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The 2005 agreement remained in force until 2 October 2008. The applicant, the Australian Rail, Tram, Bus and Industry Union ( the Union ), and the respondent, Rail Corporation of New South Wales ( RailCorp ), are parties to the 2005 agreement (along with other employers and employee organisations involved in railways in New South Wales). By an application filed on 25 September 2008 the Union claimed that RailCorp breached cll 22.1, 22.2 and 22.4 of the 2005 agreement with respect to 26 positions identified by position number and position title. Clause 22 is entitled "Filling of Authorised Positions". All 26 positions identified in the application relate to Town Hall Railway Station. The Union sought the imposition of a penalty for each alleged breach. RailCorp denied breach. The 2005 agreement is a union collective agreement under s 328 of the Workplace Relations Act 1996 (Cth). Under that provision an employer may make an agreement in writing with one or more organisations of employees. Part 14 of the Workplace Relations Act concerns compliance. The Union is authorised to bring this proceeding claiming breaches of the 2005 agreement and any resulting penalties under ss 718 and 719 of the Act. Three employers are parties to the 2005 agreement: RailCorp, Rail Infrastructure Corporation ( RIC ) and State Rail Authority of New South Wales ( the SRA ). Seven organisations of employees are parties to the 2005 agreement, including the Union. The agreement bound the parties and their employees from the date of its certification by the Australian Industrial Relations Commission on 19 July 2005 until its replacement by the Rail Corporation New South Wales Collective Agreement 2008 ( the 2008 agreement ) on 2 October 2008. Clause 9 of the 2005 agreement deals with the relationship between that agreement and other agreements and awards. Clause 9(1) specifies that cll 1 to 42 are known as the "Core Agreement". Under cl 9.2 certain "former awards and agreements" are said to be "incorporated into and form part of" the 2005 agreement, except for clauses in or to the effect of certain nominated clauses of or dealing with certain subject matters in those former awards and agreements. The former awards and agreements are listed in Pt 1 of Sch B to the 2005 agreement. The excepted clauses of those former awards and agreements are listed in Pt 2 of Sch B to the 2005 agreement. Clause 9.3 is a key provision. The employer will maintain its commitment to non-discrimination and equal employment opportunity in making these decisions. In other words, by cl 9.2, the 2002 agreement is incorporated into and forms part of the 2005 agreement subject only to the exclusion of the terms and conditions listed in Pt 2 of Sch B and the inconsistency provision in cl 9.3 of the 2005 agreement. Suitably qualified applicants will share the position on a rotational basis, for a period of up to six months. Where special circumstances exist, and with consent of the unions, the secondment may go beyond a period of twelve months, but shall not exceed two years. Clause 3.10 is subject to the inconsistency provision in cl 9.3. A principal issue in this proceeding is whether the words of exception in the last paragraph of cl 3.10 of the 2002 agreement (except where the position is under review or situated in an area that is then under review) are inconsistent with cl 22 of the 2005 agreement. Resolution of this issue involves the proper construction of both agreements. The Union referred to the summary of principles in National Union of Workers v Graincorp Operations Ltd (2002) 117 IR 136 ; [2002] AIRC 638 at [47] as useful. It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations. What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe. References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement. The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean. That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction. That intention can manifest itself not only from words used but from words considered in light of the circumstances surrounding the transaction. Clauses must be viewed broadly and in context: Australasian Meat Industry Employees Union (WA Branch) v Woolworths Limited [(2007) [2007] FCAFC 201 ; 164 FCR 420 ;] [2007] FCAFC 201 at [21] per Siopis J. It is a bilateral or multilateral concept. Although they agreed about the relevant principles, both parties sought to rely on, and objected to, certain extrinsic evidence said to support or defeat their competing constructions of cl 22 of the 2005 agreement. The parties also sought to both rely on and to object to the relevance of the 2008 agreement. This issue related to whether it was permissible to have regard to the conduct of parties subsequent to the making of the award. In my view, the overwhelming weight of authority, supports the proposition that it is impermissible to have regard to such subsequent conduct; see Seaman's Union of Australia v Adelaide Steamship Co Ltd (1976) 46 FLR 444 ; Printing & Kindred Industries Union v Davies Bros Ltd [1986] FCA 455 ; (1986) 18 IR 444 ; Hawkins v Commonwealth Bank (1996) 66 IR 322. The words of exception in the last paragraph of cl 3.10 of the 2002 agreement are "except where the position is under review or situated in an area that is then under review". Without wishing to oversimplify and thus distort RailCorp's primary argument, it effectively said that these words of exception in the last paragraph of cl 3.10 qualify the obligations imposed by cl 22 of the 2005 agreement. Accordingly, there could be no breach of cl 22 as all positions at Town Hall Railway Station were under a continuous process of review from September 2004 onwards. RailCorp said that cl 9 of the 2005 agreement ensures that cl 3.10 of the 2002 agreement continues by incorporation within the 2005 agreement unless inconsistent with it. Nothing in the 2005 agreement deals with the matters in the first three paragraphs of cl 3.10. As to the last paragraph, the only inconsistency relates to the advertising, specifically, the time requirements (six months in cl 3.10 and within four weeks of completion of the redeployment review process in cl 22.3). Clause 22.3 thus prevails over cl 3.10 to that extent only. There is no inconsistency between any part of cl 22 and the words "except where the position is under review or situated in an area that is then under review" in cl 3.10 of the 2002 agreement. Those words thus are consistent with and thus qualify cl 22.1. As part of this and various alternative arguments (with the alternatives being dependent on the facts as found), RailCorp submitted that cl 22 should be understood as being about the filling of positions. According to RailCorp, there is no difference between continuing a position as per cl 22.1 and deciding to fill the position. Further, cl 22.1 does not operate on a position-by-position basis. RailCorp said any other construction would be absurd and contrary to common business sense. Hence, cl 22.1 permits RailCorp to make a decision about all positions of a particular class at one time and thereafter to change its mind in accordance with its management prerogative. Clauses 3.10 and 22 are both about preserving RailCorp's management prerogative to decide for itself what work it wants done. Although RailCorp accepted that the decision in Electrolux Home Products Pty Ltd v Australian Workers' Union and Others (2004) 221 CLR 309 ; [2004] HCA 40 was the genesis of cl 9.2 and Pt 2 of Sch B of the 2005 agreement, it also noted that cl 9.2 and Pt 2 of Sch B provided the Union with an express mechanism to exclude cl 3.10 if the Union so wished. The Union submitted that cl 22 of the 2005 agreement and the last paragraph of cl 3.10 of the 2002 agreement are inconsistent so that, in accordance with cl 9.3 of the 2005 agreement, cl 22 prevailed. According to the Union, the clauses are fundamentally incompatible. Both clauses deal with filling positions, but cl 22 provides a comprehensive regime of which the filling of positions forms but one part. The Union said that RailCorp's submission failed to address the fact that the words of exception in cl 3.10 qualify an advertising obligation; the words have no potential application to the other obligations in cl 22 which go beyond advertising. The Union also noted that, insofar as the last paragraph of cl 3.10 deals with advertising positions, cll 22.3 and 22.5 deal with the same topic but in different terms. The Union said that the time periods for advertising in each clause cannot stand together. Further, the advertising obligation in cl 22.3 is subject to its own detailed scheme of qualifications and exceptions. According to the Union, the blanket exception in cl 3.10 for all cases "where the position is under review or situated in an area that is then under review" is inconsistent with the detailed scheme for which cl 22 provides. For example, the obligation in cl 22.1 is that RailCorp (an employer within the meaning of the 2005 agreement) determine whether the position is to "continue as an authorised position". The exception to the advertising requirement in cl 3.10 has nothing to do with any such determination. Further, and in any event, the Union submitted that the advertising obligation in cl 3.10 is displaced by cl 22.3. The Union referred to cl 23.8 of the 2005 agreement, which is part of a provision dealing with staff review, as confirming the exclusion of 3.10. Clause 23.8 requires all agreed and authorised positions to be filled in accordance with cl 22. The 2002 agreement contains no equivalent provision. According to the Union, the fact that cl 3.10 is not specifically excluded from incorporation into the 2005 agreement by inclusion in Pt 2 of Sch B is immaterial. Mark Morey, who was a Senior Industrial Officer at Unions NSW and involved on behalf of all union parties in negotiating the 2005 agreement, gave evidence that the sole purpose of Pt 2 of Sch B was to address the High Court's decision in Electrolux concerning the invalidity of provisions in industrial agreements not pertaining to the employer-employee relationship. The timing and terms of the 2005 agreement support Mr Morey's evidence. The parties were negotiating the 2005 agreement when Electrolux was delivered. Clauses 9.4 and 9.5 specifically refer to doubts about matters pertaining to the employer-employee relationship and the effect of any invalidity of any particular provision on the parties' obligations. The clauses nominated in Pt 2 of Sch B concern matters that might offend the reasoning in Electrolux . Whatever the level of specificity or generality at which the issue is considered, cl 22 of the 2005 agreement is inconsistent with the last paragraph of cl 3.10 of the 2002 agreement. The two provisions "are not capable of reconciliation" ( Hume Steel Ltd v Attorney-General (Vic) [1927] HCA 24 ; (1927) 39 CLR 455 at 465). A conclusion that the two provisions are contradictory is "inevitable" ( Butler v Attorney-General (Vic) [1961] HCA 32 ; (1961) 106 CLR 268 at 290). There is a "want of consistency or congruity"; "lack of accordance or harmony" or "incompatibility, contrariety, or opposition" between the provisions ( Coffs Harbour Environment Centre Inc v Minister for Planning & Coffs Harbour City Council (1994) 84 LGERA 324 at 331). The last paragraph of cl 3.10 concerns the advertising of positions that have been created or have become vacant. It requires RailCorp to advertise "substantive positions" that have been created or have become vacant within six months except in the circumstance nominated ("where the position is under review or situated in an area that is then under review"). Positions are advertised for the purpose of the positions being filled. Clause 22, however, provides its own detailed scheme for the filling of authorised positions of which advertising forms but one part. Clause 22 does not start with the requirement for advertising a position. It starts with a requirement that RailCorp determine whether the position which has become vacant is to continue as an authorised position. There is no definition of an "authorised position" in the 2005 agreement. There is a definition of "vacant position" in cl 3.12 of the 2005 agreement. A vacant position is "a position which is not occupied by an employee who has been appointed to the position and the position is authorised to be filled". What then is an "authorised position" within the meaning of cl 22.1? Clause 22.4 provides part of the context. Clause 22.4 requires RailCorp to "fill vacant positions, which it intends to maintain on its establishment, within six months from the time that the position becomes vacant". Assistance is also given by other terms used in the 2005 agreement, including cl 14.2 (referring to a "required position"), cl 16.7(vi)(a) (referring to an employer commencing "filling in accordance with Clause 22 Filling of Authorised Positions"), cl 23.8 (referring to "agreed and authorised positions" being filled in accordance with cl 22), cl 24.1(i) (referring to "established positions") and cll 28.1 and 28.6(i) (referring to "each level of position in the structure"). One of RailCorp's alternative arguments (discussed below) involved a proposition that a position is an authorised position if RailCorp decides to fill the position. That meaning, however, is inconsistent with the words of cl 22 and the context of the 2005 agreement as a whole. As noted, the definition of "vacant position" includes reference to a position authorised to be filled. If "authorised position" means nothing more than "vacant position" the drafting of cl 22 makes little sense. The parties to the 2005 agreement described the clause as relating to the filling of authorised positions, not vacant positions. Despite having gone to the trouble of defining "vacant position", the parties to the 2005 agreement chose to use the words "authorised position" in cl 22.1. As cl 22.4 uses the defined term "vacant position", it could not be inferred that the parties overlooked the defined term and intended "authorised position" to be synonymous with "vacant position". The condition in cl 22.2 "where the position is to be continued" must also be inferred to be deliberate. If the obligation in that clause were intended to apply to all "vacant positions" then the clause would not have been framed by reference to the condition of the position continuing as opposed to the position being filled. Clause 22.4, which refers to two conditions ("vacant positions" and "which it intends to maintain on its establishment") also indicates that the parties recognised a distinction between a position being authorised and a position being authorised to be filled. The fact that the 2005 agreement is an industrial agreement, requiring a practical rather than a narrow or pedantic construction, provides no answer to these observations. Indeed, the interpretation which I consider preferable is not inconsistent with a practical construction of the 2005 agreement. It is consistent with both the ordinary meaning of the words in cl 22 and the context of the 2005 agreement as a whole. Having regard to the 2005 agreement as a whole (particularly the various references to "required", "established", "authorised" and "agreed and authorised" positions), against the background of rail reorganisation disclosed in cl 14 of the 2005 agreement, an "authorised position" should be understood as meaning a position which RailCorp has agreed or intends or is otherwise bound to maintain at any of its establishments as a position. The 2005 agreement thus recognises a distinction between the existence of a position and the filling of a position. It follows from this that where RailCorp determines under cl 22.1 that a position is not to continue as an authorised position, the position will cease to exist on the relevant establishment. Where RailCorp determines under cl 22.1 that a position is to continue as an authorised position, cl 22.2 requires a review within a further two weeks of the suitability of employees on the displaced list to fill that position. The displaced list, I infer, is a list of employees who remain employed and yet have no present designated position within the organisation. If the position cannot be filled by employees on the displaced list as contemplated by cl 22.2, then RailCorp is to commence advertising the position within another four weeks under cl 22.3. Clause 22.5 ensures that RailCorp may advertise positions in accordance with cl 22.3 both internally and externally despite agreeing generally to advertise "Rail specific positions" internally in the first instance. Clause 22.4 requires RailCorp to "fill vacant positions, which it intends to maintain on its establishment, within six months from the time that the position becomes vacant". Clause 22.6 requires RailCorp to "select, appoint and promote people" to positions on a particular basis. Clause 22.7 provides a general exception to cl 22 in respect of transfers between depots and obtaining lines on rosters for train crews. The fact that the first three paragraphs of cl 3.10 may not be inconsistent with cl 22 is immaterial. RailCorp did not rely on those paragraphs. It relied only on the words of exception at the end of the last paragraph of cl 3.10. RailCorp accepted that cl 22.3 was inconsistent and thus prevailed over the advertising obligation in the last paragraph of cl 3.10, yet maintained that the exception to that advertising requirement continued. However, the terms of cl 22 demonstrate to the contrary. For example, are the words of exception to be read as qualifying cl 22.3 alone? If so, why would they also not be read as qualifying cl 22.2 which (read with the opening words of cl 22.3) obliges RailCorp to fill the position from the displaced list if possible? Are the words to be read as qualifying the whole of cl 22? If so, what is the function of cl 22.1? And, as the Union said, why would a qualification on an advertising obligation be construed as extending to the other components of cl 22? I accept the Union's submission that cl 22 of the 2005 agreement provides a detailed scheme for the filling of authorised positions of which advertising forms but one part. This scheme contains its own exceptions (cll 22.1 and 22.7). It regulates advertising in a manner incompatible with cl 3.10 (cll 22.3 and 22.5). It imposes obligations on RailCorp with respect to displaced employees before advertising becomes relevant (cl 22.2). It imposes substantive obligations with respect to the criteria for filling positions (cl 22.6). In such a scheme there is simply no room for the operation of an exception to another inconsistent advertising requirement in cl 3.10 of the 2002 agreement. Clause 9.2 and Pt 2 of Sch B to the 2005 agreement do not assist RailCorp. Even without the benefit of Mr Morey's evidence, the provisions of cll 9.2, 9.4 and 9.5, read with Pt 2 of Sch B, disclose that the purpose of Pt 2 of Sch B is to address the decision in Electrolux . It would be wrong to construe the relationship between cl 22 of the 2005 agreement and cl 3.10 of the 2002 agreement by reference to the fact that cl 3.10 does not appear in Pt 2 of Sch B. Clause 3.10 pertains to the employer-employee relationship and thus may be inferred to have been irrelevant to the function of Pt 2 of Sch B. The relevant provisions, construed in context, are unambiguous. By operation of cl 9.3 of the 2005 agreement, cl 22 of that agreement prevails over the whole of the last paragraph of cl 3.10 of the 2002 agreement. Accordingly, the last paragraph of cl 3.10 of the 2002 agreement has no continued operation or effect under the 2005 agreement. The context of the 2005 agreement, considered as whole, also exposes other difficulties which RailCorp's submissions must confront. RailCorp said that the function of cl 22 is to recognise RailCorp's management prerogatives to decide for itself about the work it wants done. But the manifest purpose of cl 22 is to constrain what would otherwise be certain management prerogatives of RailCorp. The constraints are express and unambiguous. First, and in contrast to the last paragraph of cl 3.10 of the 2002 agreement, cl 22 does not operate by reference to "an area" or a "position". It operates by reference to a "position" only. Clause 22.1 is only engaged where a position has become vacant. While more than one position might become vacant simultaneously, cl 22.1 requires a determination in respect of each position as to whether it will or will not continue as an authorised position. The requirement for this determination within four weeks is a constraint on what would otherwise be a management prerogative. But for cl 22.1, that question need never be considered; instead, the employer could simply decide, as and when necessary, whether to fill the position. Clause 22.1, however, requires the employer to make an anterior decision about the continuation of the position itself. Second, if a determination is made that the position is to continue, another constraint is imposed on a management prerogative by cll 22.2 and 22.3. The timing and method of filling the position is not at the employer's discretion. RailCorp has to conduct a review to see if an employee on the displaced list is suitable for the position or could become suitable if re-trained. It is only if the review discloses no such employee on the displaced list that RailCorp is permitted to commence advertising. Third, cll 22.3 and 22.5 impose a constraint on the timing and nature of the advertising. The constraint on the latter (namely, generally internal advertising first for rail specific positions) is disclosed by the fact that cl 22.5 expressly reserves a right that RailCorp would otherwise enjoy as a management prerogative but for cl 22.5. Fourth, cl 22.6 is a constraint on the criteria by which RailCorp is able to fill a position. Those criteria, subject to legal requirements, would otherwise be a management prerogative of RailCorp. These considerations undermine RailCorp's submission that the purpose of cl 22 is to protect its management prerogatives. The clause recognises certain management prerogatives in order to curtail them to the extent specified. RailCorp's submission that cl 22 permits a general decision with respect to all positions in a certain category, cannot be assessed in isolation from the facts of a particular case. The submission appeared to be informed by RailCorp's general position that cl 22 is concerned with enabling it to manage the availability of people to perform the work it requires to be performed from time to time. There was a suggestion in this submission that a position is nothing more than a range of work that RailCorp considers needs to be performed from time to time. According to the tenor of this submission, as and when work needed to be performed, RailCorp could ensure that outcome by making people available to do the work. But this submission, insofar as it was made in support of RailCorp's case, is incompatible with the provisions of the 2005 agreement as a whole and the ordinary meaning of the terms of cl 22. There are many provisions disclosing that the concept of a position is fundamental to the operation of the 2005 agreement. Clause 3.12 defines "vacant position" by reference to a position not occupied by an employee appointed to that position. In other words, the definition contemplates that a position exists whether or not an employee has been appointed to fill it. Clause 3.13 defines when a reasonable offer of redeployment into another position is made. It does so by reference to the "new position" that the employee may take up. One of the criteria for the reasonableness of the offer of redeployment is the "location where the new position is situated". In other words, not only does the definition contemplate that the position exists independently of an employee filling it, but the position also has a specific physical location. Clause 7.1, dealing with consultation, discloses that in addition to "positions", there are "worksites" and "functional areas". Clause 7.2 contemplates that affected employees are those holding positions within the relevant "worksite" or "functional area" where the change is proposed. Clause 14 recognises the fact that the Transport Administration Amendment (Rail Agencies) Act 2003 (NSW) made significant changes to the structure of rail organisations in New South Wales including, relevantly, the constitution of RailCorp and providing for a new division of functions between the SRA (the old organisation) and RailCorp and RIC (the new organisations). This reorganisation required the transfer of employees to the new organisations. Clause 14.1 requires SRA and RIC employees "required by RailCorp or RIC" to be "vested over" with accrued entitlements within six months of certification of the 2005 agreement. Clause 14.2 deals with the employees not vested into "required positions" in RailCorp and RIC. Clause 15 requires RailCorp to use direct permanent employment as its preferred and predominant employment option. Clause 15.6 provides that no direct employee shall be considered "surplus" if a temporary or casual employee is "engaged to undertake the same job/position (other than temporaries engaged on fixed term project work)". In the context of the 2005 agreement as a whole, "surplus" must mean surplus having regard to the "required positions". Moreover, cl 15.6 contemplates that the work is one thing and the position is another. Clause 16.2 refers to employees being required to possess the appropriate skills, competencies and certificates "for the position into which they are being employed". Clause 16.7 deals with casual employees. Sub-clause (vi)(a) requires RailCorp to review the ongoing need for the work carried out by a casual employee for a period of six months and to determine whether "there is an ongoing permanent position" or "fixed term position required". If an ongoing permanent position is required, RailCorp is then bound to comply with cl 22. Clause 18 is about inductions and orientation. Under cl 18.1, all employees, when commencing their employment, are required to undergo an induction and orientation program during which they will be familiarised with the employer, their "work site" and "requirements of their positions". Clause 19 is about the probationary period which is generally three months but can be extended to six months having regard to the nature of the position. Clause 22 does not merely refer to "a position". It frames RailCorp's essential obligation by reference to the issue whether the position is to continue as an authorised position. Clause 23, dealing with staff reviews, requires all agreed and authorised positions to be filled in accordance with cl 22 (cl 23.8). Clause 24 deals with structural review for corporate and administrative staff, amongst other things, by reference to the concept of the "number of established positions" (cl 24.1(i)). Clause 25 deals with a reasonable offer of redeployment which, as noted at [47] above, is a defined term. By cl 25.3, for the purpose of salary maintenance, a reasonable offer is an offer of an "alternative position" of a particular kind and having regard to "the location of the position offered and the overall circumstances of the employee". Clause 25.4 refers to temporary training or duties outside an employee's "substantive position". Clauses 25.5 and 25.6 relate to RailCorp's rights to appoint an employee to an alternative position in the specified circumstances. Clause 28 deals with classification structures. Clauses 28.1 and 28.6(i) refer to "each level or position in the structure". Clause 28.10(i) refers to training which might be "a requirement of the position". In the face of these provisions, I do not accept RailCorp's suggestion that a position is simply a range of work that RailCorp considers needs to be performed from time to time. The provisions of the 2005 agreement as a whole indicate that the various work sites, functional areas and establishments vested in RailCorp carry with them various positions. Clause 22 is one of many clauses the obvious purpose of which is to recognise and, to a certain extent, protect those positions by ensuring that, when each such position becomes vacant, RailCorp is required to determine whether it wishes to continue the position as a position. If RailCorp determines that the position is not to continue as a position, then Railcorp's obligations under the clause are satisfied. If RailCorp determines that the position is to continue as a position, then RailCorp has further obligations under the clause with respect to the filling of the position. It may be the case that RailCorp is able to satisfy its obligation under cl 22.1 with respect to a particular position that becomes vacant by a determination relating to more than one position. This is because such a determination may nevertheless be a determination about the position as required by cl 22.1. Acceptance of this possibility, depending on the circumstances of any particular case, does not alter the fact that cl 22.1 requires a determination about each position which has become vacant. Nothing in these conclusions is inconsistent with common business sense. As the Union submitted, in the present case that concept is to be applied in the context of a multi-lateral transaction between three employers and seven organisations of employees. Moreover, the parties to the transaction must be taken to have known that the 2002 agreement contained cl 3.10 and its reference to advertising positions as specified except where the position is under review or situated in an area that is then under review. Yet when they came to deal with positions in cl 22 the parties did not refer to a position or area under review. They referred first to the need for a determination whether the position would continue as an authorised position. From the language used in cl 22 and its context, this difference must be inferred to have been intended. The difference between the provisions is clear. Clause 3.10 exempts RailCorp from any requirement to advertise a position if either the particular position or the entire area in which the position is located is under review. Clause 22 exempts RailCorp only where it determines that a position which has become vacant is not to continue as an authorised position at all. Hence, the exemption in cl 22 is not applicable merely because a position is under review. Nor is it applicable merely because a position might be located in an area under review. Mere review is insufficient. There must be a determination, howsoever it might be framed, in respect of the position which has become vacant as to whether it is to continue as an authorised position or not. It is true that, at least on one view, cl 3.10 appears to have vested greater flexibility in RailCorp than cl 22. But that does not indicate that cl 22, construed in accordance with the ordinary meaning of the words in which it is expressed, flouts common business sense. Clause 22 is only one part of the bargain the parties struck. The 2005 agreement as a whole represents the entirety of the bargain. Even within cl 22 there are express checks and balances. Clause 22.1 gives RailCorp a period of four weeks in which to determine whether a position which had become vacant should continue as an authorised position or not. If it determines that question in the negative, RailCorp has no further obligations under cl 22. It is only if RailCorp determines that the position is to continue that the balance of the clause operates. Further, the balance of the clause preserves a right to advertise externally as well as internally (cl 22.5) if the position cannot be satisfied through redeployment/retraining in accordance with cll 22.2 and 22.3. RailCorp must be taken to have accepted that cl 22, and the restrictions it imposed on RailCorp's management prerogatives, satisfied the requirements of common business sense. There is also an answer to RailCorp's submission that, as RailCorp must be permitted to change its mind about positions from time to time, cl 22.1 cannot be construed as requiring a determination whether a position should continue as a position. The answer to this submission is that cl 22 does not prevent RailCorp from changing its mind. If RailCorp determines that a position should not continue, but subsequently changes its mind, the effect in terms of cl 22 is that there will be a position which has become vacant. It does not matter whether this position is characterised as the previous position reinstated or a new position created. All that matters for the purpose of cl 22 is that there is a position which has become vacant. Once RailCorp makes that determination then the balance of cl 22 operates. Equally, if RailCorp determines that a position should continue, but subsequently changes its mind, the effect in terms of cl 22.1 is that the new determination will replace the old. RailCorp, from the time of the new determination, will be taken to have determined that the position should not continue and thus will have no further obligations under cl 22. For the same reasons, RailCorp's emphasis on the difficulty of making a decision whether or not to continue a position is not persuasive. Clause 22.1 gives a period of four weeks for the making of the determination in respect of each position that becomes vacant. This may be contrasted with the position under cl 3.10 of the 2002 agreement under which RailCorp could continue an indefinite process of review of a position or an entire area. The bargain which cl 22 represents is different from that embodied by cl 3.10. But effect must be given to the bargain the parties reached in the 2005 agreement. The period of four weeks is not obviously inadequate for a determination of the kind required. RailCorp supported its submission that cl 22 should not be construed in accordance with the ordinary meaning of its terms by observing that cl 22.4, read literally, would place RailCorp in breach even if had made every reasonable attempt to fill the position but could not do so. There are three answers to this proposition. The first answer is that even if this were the case it does not justify construing the balance of cl 22 in a manner inconsistent with the ordinary meaning of the words used. Doing so in this case does not involve the attribution of any narrow or pedantic meaning to the provision. Nor , as noted, does the result flout common business sense. To the contrary, and as discussed above, construing cl 22 in accordance with its ordinary meaning results in a provision consistent with the operation of the 2005 agreement as a whole. The second answer is that industrial agreements are to be given a practical construction. It is not difficult to conclude that the parties did not intend cl 22 to impose any liability for breach in the event of impossibility of performance. In the present case, RailCorp did not lead evidence suggesting any impossibility of the performance of its obligations under cl 22. The third answer is that the 2005 agreement contains mechanisms to avoid pointless disputes, including cl 7 (dealing with consultation) and cl 8 (providing a dispute settlement procedure). If any obligation were impossible to perform then it is unlikely that any claim about breach would survive those processes of dispute resolution. RailCorp said that it would be unfair to appoint a person to a position under review or in an area under review only for the position to be removed subsequently (as, indeed, RailCorp's correspondence before the making of the 2005 agreement had noted). That may be so, but it has little relevance to the construction of cl 22. Clause 22, through cl 22.1, enables RailCorp to avoid any such unfairness. The clause does so by a different mechanism from cl 3.10 (by requiring a determination about the position continuing as a position or not), but the result of avoiding unfairness nevertheless can be achieved by cl 22 construed in accordance with its ordinary meaning. If regard may be had to any of the extrinsic material which the parties identified, the result nevertheless undermines RailCorp's submissions. All of the extrinsic material either supports or is at least consistent with the Union's case. The affidavit of Gregory Greenhalgh sworn 1 May 2009, on which RailCorp relied, annexed numerous documents. As discussed above, the 2002 agreement, which is annexed to Mr Greenhalgh's affidavit, is part of the background to the 2005 agreement. The difference between cl 3.10 of the 2002 agreement and cl 22 of the 2005 agreement is obvious. In this circumstance, and as the Union said, if RailCorp wished to reserve to itself a right not to fill a position if the position or area in which the position is located is merely under review then RailCorp could readily have said so in cl 22. But the clause contains no such exemption. Mr Greenhalgh's affidavit annexed correspondence from RailCorp leading up to the making of the 2005 agreement. This correspondence refers both to cl 3.10 and to proposals to reduce the number of positions as the reason certain positions had not been filled. In other words, it may be taken that when they were negotiating the 2005 agreement all parties knew that there was pressure to reduce positions and that cl 3.10 had been relied upon by RailCorp as the reason for not filling positions. As discussed above, RailCorp's concern about unfairness to persons appointed to positions which are then removed is equally capable of being avoided by compliance with cl 22. Mr Greenhalgh's affidavit also annexed RailCorp's policy documents for recruitment, selection and appointment. Insofar as those documents might evidence any matter relevant at the time of the 2005 agreement (as they appear to post-date the 2005 agreement), they are inconsistent with RailCorp's construction. Those documents focus upon positions and contemplate a decision as to whether each vacant position should continue as a position within the "approved establishment". The substance of Mr Greenhalgh's affidavit, insofar as it discloses the context of the 2005 agreement, provides further support to the Union's construction of cl 22. Mr Greenhalgh was the Manager, Industrial Relations, Service Delivery Group (Customer Service) of RailCorp between April 2004 and January 2009. He was involved in the negotiation of the 2005 agreement. According to Mr Greenhalgh, at the time of RailCorp's constitution on 1 January 2004, it had a large number of displaced employees. A displaced employee is a person whose position no longer exists. RailCorp has a Redeployment Services Unit ( the RSU ). One function of the RSU is to conduct priority assessments. These are assessments which aim to consider displaced employees first for vacant positions. The RSU only advertises positions after it has sought to match a displaced employee with the vacant position. By 25 September 2008, the number of displaced employees had been reduced to 33 in total. This material confirms that, at the time of the making of the 2005 agreement, the parties must have known about both the large number of displaced employees and the likelihood of pressures to reduce the number of positions. In this context, the regime established by cl 22 and the focus on redeployment/retraining of displaced employees for vacant positions, as well as decisions about positions continuing or not, could not be said to flout good business sense. The Union relied on correspondence about what the 2005 agreement should contain leading up to the making of the agreement in which the parties put their competing positions. It seems to me that, consistent with authority, this correspondence can only be used to confirm an inference I would draw in any event, namely, that the filling of vacant positions was a prominent item on the agenda of both parties during the negotiation of the 2005 agreement. The organisations of employees, indeed, identified the filling of vacant positions which were authorised to continue within six months as a "must have" negotiation item. RailCorp, for its part, was concerned about the capacity to advertise externally at the same time as internally. From this it can be inferred only that cl 22 was the subject of detailed consideration by the parties over the course of the negotiation. The Union also relied on various statements made by participants in the negotiation. I accept RailCorp's point that the content of those statements, taken in isolation, may bear no rational relationship to the negotiated outcome. Accordingly, caution is required. Nevertheless, I am satisfied that part of this evidence is relevant to a limited extent. There is evidence that during the negotiations Ms Linda Carruthers, the Union's Research and Education Officer, told RailCorp's representatives that the Union was pressing for the inclusion of cl 22 in the 2005 agreement because RailCorp continually failed to fill vacant positions. This statement is relevant at least for the purpose of showing that the Union was the initial proponent of cl 22. There is also evidence of a conversation between Ms Fran Simons, RailCorp's lead negotiator, and Mr Morey about the operation of cl 22. I accept RailCorp's submission that I should not place any weight on the content of this conversation. The Union also relied on evidence from Mr Greenhalgh in cross-examination, particularly about RailCorp's position during the negotiations. Do you agree with me that that was not said?---Not in that forum; words to that effect. It might be said RailCorp succeeded or failed depending on the proper construction of cl 22. Accordingly, I accept RailCorp's submission that I should place no weight on this aspect of Mr Greenhalgh's evidence or, for that matter, the fact that Mr Greenhalgh did not hear any RailCorp representative say that cl 3.10 had continued operation despite cl 22. Nevertheless, the evidence does at least confirm the prominence of cl 22 during the negotiations. Mr Greenhalgh gave some other evidence which I consider relevant. He said that there were about 1900 operational station positions in RailCorp with a turnover of about 30 positions a month. The number of positions and relatively high turnover confirm the significance of cl 22 and is consistent with the construction of cl 22 which I have adopted. Both parties also adduced evidence relating to the negotiation and terms of the 2008 agreement. Consistent with the approach of Marshall J in Australian Municipal, Administrative, Clerical & Services Union v Treasurer of the Commonwealth of Australia (1998) 82 FCR 175 at 178 I do not consider that material relevant. If, contrary to this conclusion, it may be taken into account, it casts little, if any, light on the construction of the 2005 agreement. The 2008 agreement, which consolidates the provisions of all earlier agreements rather than relying on the mechanism of incorporation subject to inconsistency, does not include a provision to the effect of the last words in paragraph 3.10 of the 2002 agreement. But this fact says nothing about the intention of the parties, objectively ascertained, in respect of the 2005 agreement. For the same reason I do not consider Mr Greenhalgh's evidence about a dispute relating to rosters in June 2007, and its resolution, to be relevant to the question of construction at hand. One other question of construction arises. RailCorp noted that four of the 26 positions said to found the claims of breach became vacant before the 2005 agreement came into force. RailCorp said that the obligations in cl 22 could not apply to positions other than positions which became vacant after the 2005 agreement came into force. If it were otherwise, RailCorp could not comply with cl 22.1 and, indeed, might be in breach of the clause immediately on the 2005 agreement coming into force. The Union said that nothing in the wording or context of cl 22 suggested that the clause did not apply to positions which were vacant when the 2005 agreement came into force. The Union thus said that RailCorp was obliged to make the determination under cl 22.1 within four weeks of the 2005 agreement coming into force for any such position. The ordinary meaning of the words of cl 22, particularly cl 22.1, supports RailCorp's approach to this question. All of the obligations in cl 22 follow a sequence starting with the fact of a position becoming vacant. All of the obligations involve time stipulations. For cl 22.1 to apply to positions vacant before the 2005 agreement came into force, the words "when a position becomes vacant" would have to be read as meaning "when a position becomes vacant or, if the position is already vacant, on this agreement coming into force...". There is no justification for reading those additional words into cl 22.1. Moreover, if those additional words were read into cl 22.1 then, presumably, on the agreement coming into force, RailCorp would have been obliged to make a determination in respect of all vacant positions then existing within four weeks. In an organisation involving 1900 station operational staff the practicality of such an obligation is questionable. Nothing in the language or context of the 2005 agreement indicates that it was intended to have other than a prospective operation. Clause 22.1 cannot be construed, consistent with its ordinary meaning, to apply to positions that were already vacant before the 2005 agreement came into force. In summary, cl 22 is to be construed in accordance with the ordinary meaning of its terms. Accordingly, the mere fact that a position is under review or located in an area under review is immaterial to the operation of cl 22 other than insofar as RailCorp would be entitled to take that fact into account in making any determination in accordance with cl 22.1. But the mere fact of the existence of a review, of whatever kind or character, does not itself relieve RailCorp of any of the obligations imposed by cl 22. RailCorp also accepted that all but four of the positions were subject to cl 22 of the 2005 agreement in that they became vacant after the 2005 agreement came into force. The four positions RailCorp said were not subject to cl 22 were positions 700133, 800017, 800021 and 800023, each of which became vacant before the entry into force of the 2005 agreement. Consistent with the conclusions reached at [80]-[81] above, I do not accept that those four positions are subject to cl 22 and thus they are incapable of giving rise to any breach of that provision. It is convenient to deal with certain general propositions made by RailCorp before dealing with each of the positions individually. As the last part of the final paragraph of cl 3.10 of the 2002 agreement was not inconsistent with any part of cl 22, the words of qualification "except where the position is under review or situated in an area that is then under review" continued. According to RailCorp it followed that there was no breach of cl 22 of the 2005 agreement. For the reasons given above, I do not accept RailCorp's primary construction of the 2005 agreement. In particular, I consider the last paragraph of cl 3.10 inconsistent with cl 22. Accordingly, that paragraph has no continued operation in respect of the 2005 agreement. RailCorp's alternative arguments were not dependent on cl 3.10 of the 2002 agreement continuing in force and effect under the 2005 agreement. RailCorp submitted that cl 22.1 does not require a determination whether or not to abolish a position which had become vacant. It requires only a decision whether to fill a position or not. Accordingly, RailCorp said that the process of station reform which commenced in September 2004 involved a determination not to fill any such position which became vacant within the meaning of cl 22.1 of the 2005 agreement. Clause 22.1, therefore, was satisfied. As all other obligations in cl 22 depend on a determination to continue the positions, as authorised positions there could be and was no breach of any part of cl 22. RailCorp also submitted that its determination not to fill station operations positions within the meaning of cl 22.1 of the 2005 agreement continued from September 2004 onwards irrespective of the employees' vote to reject the specific station reform proposal. Hence, RailCorp said that the fact that all 26 positions in question remain as positions at Town Hall Railway Station is immaterial. That fact does not mean that RailCorp had authorised those positions to continue. RailCorp had authorised the opposite by determining not to fill any station operations positions, subject to specific exceptions. RailCorp noted that cl 22 does not specify a time by which the position had to be removed. In any event a position is not removed from an establishment until a final decision. RailCorp submitted that these matters are consistent with the language of cl 22.4 which refers to positions the employer intends to maintain on its establishment. RailCorp submitted that certain positions were the subject of specific decisions which satisfied the requirements of cl 22 insofar as applicable. Finally, RailCorp said, if breaches of cl 22.1 were found, that it had not breached cl 22.2 because it had "actively managed" the displaced employees list. The validity of these submissions depends on the facts relating to the process labelled as "station reform" and the other events on which RailCorp relied as satisfying cl 22. As part of this new structure it was proposed to reduce the number of station managers from 207 to 134 and duty managers from 385 to 315, to delete sales team leader positions, to re-organise the duties of customer service team leaders (each designated as a CSTL ) and customer service attendants (each designated as a CSA ). By a letter dated 17 September 2004 RailCorp advised unions that it would be consulting with them about the proposal and seeking employees' endorsement for the introduction of the proposal as a package. If rejected by a majority vote of employees, the letter said RailCorp would withdraw the proposal and review its position on seeking to implement changes through other established processes such as staff reviews. At the time this proposal was put, the 2002 agreement (including cl 3.10) was in force and the 2005 agreement was being negotiated. As noted, the 2005 agreement came into force on 19 July 2005. Amongst other things, the 2005 agreement contained cl 12.2 providing for "functional agreements". Functional agreements permitted the parties to negotiate and agree on working arrangements and rates of pay where productivity improvements could be achieved. The making of a functional agreement depended on a majority vote by employees following a process of consultation. If approved by the employer and a majority vote of employees under cl 12, cl 13.3 provided for the functional agreement to prevail over the 2005 agreement to the extent of any inconsistency. At the same time as RailCorp's proposal for station reform was under consideration, RailCorp's correspondence dated 24 November 2004, 15 March 2005, 31 March 2005 and 18 April 2005 (that is, before the coming into force of the 2005 agreement) said that RailCorp relied on cl 3.10 of the 2002 agreement to support its position that there was no requirement to advertise vacant station operation positions as those positions were located in an area under review. According to RailCorp, it also would be unfair to do so in circumstances where the position may no longer exist under the station reform proposal, if accepted. Consultation about RailCorp's station reform proposal continued, albeit in fits and starts, until June 2006. In June 2006 employees voted on the proposal. I infer that they did so as contemplated by cll 12 and 13 of the 2005 agreement (which was then in force). The majority of employees voted against the proposal. Mr Greenhalgh gave evidence in his affidavit about what occurred thereafter. According to Mr Greenhalgh's affidavit: Despite the employees having voted against the Station Reform proposal in June 2006, RailCorp nevertheless remained committed to reducing the total number of station staff, and implementing other aspects of Station Reform as a matter of managerial prerogative. Rather than to implement Station Operations redundancies, RailCorp decided to reduce the number of employees from that time onwards by a process of natural attrition by not filling Station Operations positions when the incumbents left their positions. All such Station Operations positions that arose were considered by RailCorp to be under review for possible future abolition. It was my understanding that RailCorp's position was that none of these positions were regarded as substantive or authorised positions, unless specifically determined otherwise. It was a decision made at some point to that effect?---I have not seen a document in writing that says such, but I know that was my understanding from feedback that I received from senior HR management. Are you now referring to the documents referred to in paragraph 55?---I think 29 April 2008. I see. But you see --- what I'm asking you about - - -?---Yes. What I'm asking you about here, Mr Greenhalgh, is whether there was a decision, and whether you can identify the time at which such decision was made, concerning all station operations' positions being considered to be under review?---Ms Howell, it was an on and off process. Station reform, with the best intent, could have and should have been wrapped up within 12 months. It went a lot longer than that and again it was voted down. We subsequently then went into negotiations on the 2008 enterprise agreement. We have a government wages policy which provides for increases of two and a half per cent, and anything beyond that is funded by productivity offsets. It was State Rail's proposal that abolition of positions could achieve the outcome that the unions were seeking. Is the position the same, that you're unable to assist as to when and by whom that position was determined?---Yes, again, but decisions were made on an ad hoc basis to fill jobs; eg station masters at critical locations; duty managers and sales staff and on and on and on. You see, looking at paragraph 55 and the annexures thereto, Mr Greenhalgh - - -?---Yes. Again, leaving aside any issues of review processes, until such time as a decision is made, that position will continue as an authorised position?---It will continue as a position. Whether it be authorised to be filled is another issue. Now with respect to the positions which are the subject of these proceedings, none of those positions have been removed from the establishment as yet?---Not as yet, no. I am particularly asking you about whether a decision under 22.1 has been made and perhaps it follows from your answer about they all remain on establishment, I am suggesting to you that no decision has been made under clause 22.1 either way with respect to those positions?---No, because the area is subject to review. On 7 January 2008 Robert Mason, RailCorp's General Manager Service Delivery Group, sent a memorandum to Clyde Livingstone, Town Hall Station Manager, annexing a table identifying 37 positions including 17 of the 26 positions the subject of allegations of breach in this proceeding. (2) Position no's 700124, 800011 and 800013: identified in the memorandum as "placed on hold by Recruitment Unit". (3) Position no's 103190 and 905594: identified in the table as "advertised externally, recruitment process not yet finalised". (4) Position no 700109: identified as "advertised June 2007, still at recruitment stage" in the table. RailCorp internal documents entitled "Recruitment Requisition Form" attached a list of positions said to be vacant as at April 2008 including positions 103183, 103190 and 904952. An internal RailCorp email dated 26 February 2008 referred to position 103188 as one of three positions recently vacated which could be filled. A handwritten note dated 29 April 2008 is attached to the covering page. The table also referred to position 700125 and 800037 as "HR has since referred position to recruitment to fill from CSA 1 ballot eligibility". Position 905594 elicited a more detailed comment referring to its inclusion in a recruitment campaign in 2007 without success in filling the position. Further, that an external candidate was allocated the position but pre-employment checks were pending. This candidate was never appointed. He may have failed the checks or withdrawn from the offer. RailCorp proposed certain measures for station reform for the unions' consideration in September 2004. This proposal was developed and put forward before the 2005 agreement came into force and without any reference to the terms of that agreement. The mere putting forward of a proposal for consideration in September 2004, which continued thereafter, does not involve a determination within the meaning of cl 22.1 as a matter of either form or substance. The fact that the proposal included measures to reduce the number of positions within certain classes also does not mean that RailCorp's decision to put and pursue the proposal involved a determination within the meaning of cl 22. Nor does a decision not to fill vacant positions whilst the proposal was being considered. These are not decisions of the requisite character. In the context of the 2005 agreement, there is a difference between a decision not to continue a position as an authorised position and a decision not to fill a position. A decision of the latter character is incapable of discharging RailCorp's obligations under cl 22.1. I also do not accept RailCorp's submission that the station reform proposal continued after June 2006, when the majority of employees voted against the proposal. Even if I accepted this and RailCorp's original decision to pursue the station reform proposal did continue in force, that decision was not a determination within the meaning of cl 22.1 for the reasons already given. The submission, however, is inconsistent with Mr Greenhalgh's evidence. In paragraphs 44 to 46 of his affidavit, Mr Greenhalgh is saying that after a majority of employees voted against the station reform proposal in June 2006, RailCorp made a decision to rely on a process of natural attrition to reduce the number of station operations positions. This was to be achieved by not filling the positions as they became vacant except for specific positions as determined. The Union objected to paragraph 45 of Mr Greenhalgh's evidence set out at [95] above, but I admitted the paragraph into evidence. The Union submitted that a Jones v Dunkel inference ( Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298) should be drawn against RailCorp in respect of the decision RailCorp is alleged to have made in paragraph 45 because: Mr Greenhalgh could give no meaningful evidence about the decision; no document had been tendered recording it; and no witness was called apparently responsible for making it, all without any explanation. The evidence of this further decision referred to in paragraph 45 of Mr Greenhalgh's affidavit is indeed scant. Mr Greenhalgh did not identify how the decision was communicated to him, who made it, or any document recording this decision. Instead, he referred to the documents relating to certain positions (summarised above) and his "understanding" of RailCorp's position from feedback he received from the human resources unit. As the Union submitted, there are numerous difficulties with the evidence in paragraph 45 of Mr Greenhalgh's affidavit. Nevertheless, even taking the evidence at its highest, it provides no real assistance to RailCorp's case. Paragraph 45, at best, evidences a decision by RailCorp to treat all station operations positions that became vacant after June 2006 as "under review for possible future abolition" on the basis that such positions would not be filled unless a specific determination to the contrary was made about any particular position. That is not a determination within the meaning of cl 22.1 of the 2005 agreement. That clause required RailCorp to decide whether to continue a position as an authorised position (as discussed above) within four weeks of it becoming vacant. If anything, paragraph 45 supports the Union's case that RailCorp did not make any determinations within the meaning of cl 22.1. What of the undisputed fact that all 26 positions in question remain as positions at Town Hall Railway Station? RailCorp said this fact did not prove that it had determined that each such position should continue as an authorised position within the meaning of cl 22. As discussed below, in one sense this is correct. But the fact is inconsistent with RailCorp having made any determination that any position which had become vacant was not to continue as an authorised position. In accordance with Mr Greenhalgh's evidence, RailCorp simply allowed a process of natural attrition to operate by not filling vacant positions unless it decided to the contrary for any particular position. The positions, however, continued as authorised positions. The Union said that if RailCorp made no determination within the meaning of cl 22.1, RailCorp would be in breach of not only cl 22.1 but also cll 22.2 and 22.4 because cl 22 operated by default. That is, not making a determination within four weeks constituted a determination that the position would continue. RailCorp disputed this proposition. I accept RailCorp's submission on this issue. Clause 22.1 requires a determination to be made. Failure to make the required determination involves a breach of cl 22.1. But the balance of cl 22 is dependent on a determination having been made one way or another. This is evident from the opening words of cl 22.2 "(w)here the position is to be continued" and the words in cl 22.4 "which it intends to maintain on its establishment". Clauses 22.2 and 22.4 are thus dependent on RailCorp having made a determination that a position is to continue as an authorised position. As I have found that RailCorp made no such determinations, the allegations of breaches of cll 22.2 and 22.4 cannot be sustained. The specific documents on which RailCorp relied are also of no real assistance to it, at least insofar as they were said to provide a general answer to the allegations of breach. The positions identified as "to be advertised in New Year" and "advertised in the New Year" in the memorandum of 7 January 2008 may or may not have been advertised. The specific decisions not to "action" certain positions are inconsistent with the general decision referred to in paragraph 45 of Mr Greenhalgh's affidavit and RailCorp's submissions. Be that as it may, these decisions are also not determinations within the meaning of cl 22.1. They did not involve a determination whether the position should continue. They involved a decision not to fill the position at that time while RailCorp considered whether the position should continue or not. As noted, in substance, this was the opposite of what cl 22 required. Certain other documents on which RailCorp relied also have to be considered in this context. In a letter dated 9 October 2006, RailCorp said it was committed to ensuring compliance with cl 22 of the 2005 agreement and advertising vacant positions as and when they arise. But that statement is inconsistent with what RailCorp in fact did. On 18 June 2007 RailCorp wrote a letter saying that approval had been given to advertise all vacant positions on stations and that the selection process was under way. RailCorp advertised vacancies in June, July and November 2007 in respect of certain positions. But, of the 26 positions in issue, only one was part of the June 2007 advertising, with a further two said to have been advertised externally. Moreover, by February 2008 a RailCorp note recorded that management did not want any CSA 1 or CSA 2 positions "actioned". These documents are inconsistent with RailCorp having made a determination within the meaning of cl 22.1 of the 2005 agreement. If RailCorp had determined that any position was not to continue as an authorised position then the position would no longer have been part of the establishment at Town Hall Railway Station. But all positions remained part of that establishment throughout the life of the 2005 agreement. If RailCorp had determined that any position continue as an authorised position, then RailCorp had to deal with the position in accordance with cll 22.2 to 22.6 but RailCorp did not so as the discussion at [119]-[169] below relating to each position shows. RailCorp relied on its arguments of construction, the proposal for station reform, the alleged general and continuing decision from September 2004 to the effect that all stations operations positions were under review from then on, and the specific documents discussed above to support its claim that it had complied with cl 22. RailCorp did not otherwise identify any fact or circumstance said to evidence compliance with cl 22. Accordingly, it is necessary now to consider each position the subject of the Union's allegations. This is to be done having regard to the conclusions reached above including the facts relating to each specific position (which were mostly agreed). Position 103183 (CSA 1) : This position became vacant on 5 August 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 5 August 2007 (that is, by 2 September 2007). The position was to be advertised in January 2008. However, the advertisement of this position was the subject of the "do not action" note dated 25 February 2008. The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 103183 (CSA 1) as at 2 September 2007. Position 103188 (CSA 1): This position became vacant on 16 January 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 16 January 2006 (that is, by 13 February 2006). The position remained vacant until 16 November 2007. The position was filled and became vacant again on 26 January 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 26 January 2008 (that is, by 23 February 2008). Instead, this position was the subject of the email dated 26 February 2008 to the effect that management did not want the advertising of the position "actioned". The position was filled on 26 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 103188 (CSA 1) as at 13 February 2006 and 23 February 2008. Position 103190 (CSA 1) : This position became vacant on 18 February 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 18 February 2007 (that is, by 18 March 2007). The position was apparently advertised externally, but was the subject of the note dated 25 February 2008 "do not action". The position was filled on 5 January 2009. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 103190 (CSA 1) as at 18 March 2007. Position 700109 (station support officer) : This position became vacant on 30 January 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 30 January 2006 (that is, by 27 February 2006). The position was advertised in June 2007 but was described as "still at recruitment stage" in January 2008. The position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700109 (station support officer) as at 27 February 2006. Position 700113 (CSTL) : This position became vacant on 8 June 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 8 June 2007 (that is, by 6 July 2007). The position was to be advertised in January 2008. However, the position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700113 (CSTL) as at 6 July 2007. Position 700124 (CSTL) : This position became vacant on 29 October 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 29 October 2006 (that is, by 26 November 2006). The position was described as "placed on hold by Recruitment Unit" in the memorandum of 7 January 2008. The position was also subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700124 (CSTL) as at 26 November 2006. Position 700125 (CSA 1) : This position became vacant on 18 February 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 18 February 2007 (that is, by 18 March 2007). The position was filled on 16 September 2007 but became vacant again on 16 March 2008. The position was identified in the table attached to the letter of 2 May 2008 (identified at [104] above) as "HR has since referred position to recruitment to fill from CSA 1 ballot eligibility". The position was filled on 16 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700125 (CSA 1) as at 18 March 2007. Position 700133 (CSA 2) : This position became vacant on 28 November 2004, before the 2005 agreement came into force. For the reasons given at [80]-[81] above, I am not satisfied that this position was subject to cl 22 of the 2005 agreement. Accordingly, RailCorp was not in breach of cl 22 of the 2005 agreement with respect to position 700133 (CSA 2). Position 700139 (CSA 2) : This position became vacant on 27 January 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 27 January 2008 (that is, by 24 February 2008). The position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". It was also the subject of the letter dated 2 May 2008 stating "refer to management re non filling of CSA 1 Part Time vacancies/less than 6 months since becoming vacant". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700139 (CSA 2) as at 24 February 2008. Position 700163 (CSA 2) : This position became vacant on 2 August 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 2 August 2007 (that is, by 30 August 2007). The position was identified as to be advertised in the New Year in the memorandum of 7 January 2008. However, the position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700163 (CSA 2) as at 30 August 2007. Position 700165 (CSA 2) : This position became vacant on 9 January 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 9 January 2008 (that is, by 6 February 2008). The position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". It was also the subject of the letter dated 2 May 2008 stating "refer to management re non filling of CSA 2 Part Time vacancies/less than 6 months since becoming vacant". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700165 (CSA 2) as at 6 February 2008. Position 700169 (CSA 2) : This position became vacant on 1 October 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 1 October 2007 (that is, by 29 October 2007). The position was identified as to be advertised in the New Year in the memorandum of 7 January 2008. However, the position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 700169 (CSA 2) as at 29 October 2007. Position 800011 (CSTL) : This position became vacant on 8 January 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 8 January 2007 (that is, by 5 February 2007). The position was identified in the memorandum of 7 January 2008 as "placed on hold by Recruitment Unit". The position was also subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800011 (CSTL) as at 5 February 2007. Position 800013 (CSTL) : This position became vacant on 9 April 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 9 April 2006 (that is, by 7 May 2006). The position was identified in the memorandum of 7 January 2008 as "placed on hold by Recruitment Unit". The position was also subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800013 (CSTL) as at 7 May 2006. Position 800017 (CSA 2) : This position became vacant on 6 February 2005, before the 2005 agreement came into force. For the reasons given at [80]-[81] above, I am not satisfied that this position was subject to cl 22 of the 2005 agreement. Accordingly, RailCorp was not in breach of cl 22 of the 2005 agreement with respect to position 800017 (CSA 2). Position 800021 (CSA 2) : This position became vacant on 1 July 2005, before the 2005 agreement came into force. For the reasons given at [80]-[81] above, I am not satisfied that this position was subject to cl 22 of the 2005 agreement. Accordingly, RailCorp was not in breach of cl 22 of the 2005 agreement with respect to position 800021 (CSA 2). Position 800022 (CSA 2) : This position became vacant on 17 June 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 17 June 2006 (that is, by 16 July 2006). The position was identified as to be advertised in the New Year in the memorandum of 7 January 2008. However, the position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800022 (CSA 2) as at 16 July 2006. Position 800023 (CSA 2) : This position became vacant on 23 March 2004, before the 2005 agreement came into force. For the reasons given at [80]-[81] above, I am not satisfied that this position was subject to cl 22 of the 2005 agreement. Accordingly, RailCorp was not in breach of cl 22 of the 2005 agreement with respect to position 800023 (CSA 2). Position 800025 (CSA 2) : This position became vacant on 6 January 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 6 January 2006 (that is, by 3 February 2006). The position was identified as to be advertised in the New Year in the memorandum of 7 January 2008. However, the position was subject to the note dated 29 April 2008 "hold onto these until I get some advice/clearance to recruit". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800025 (CSA 2) as at 3 February 2006. Position 800030 (CSA 1) : This position became vacant on 7 January 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 7 January 2007 (that is, by 4 February 2007). The position was offered in a ballot transfer in April 2007 (being a process by which CSA 1 employees may nominate to work at the station of their choice and be placed in a ballot for transfer) but was not filled by that method. The position was filled on 10 August 2007. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800030 (CSA 1) as at 4 February 2007. Position 800033 (CSA 1) : This position became vacant on 9 January 2007. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 9 January 2007 (that is, by 6 February 2007). The position was offered in a ballot transfer in April 2007 but was not filled by that method. The position was filled on 16 September 2007 but became vacant on 30 March 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 30 March 2008 (that is, by 28 April 2008). The position was filled on 16 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800033 (CSA 1) as at 6 February 2007 and 28 April 2008. Position 800037 (CSA 1) : This position became vacant on 2 March 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 2 March 2008 (that is, by 31 March 2008). The position was identified in the letter of 2 May 2008 as "HR has since referred position to recruitment to fill from CSA 1 ballot eligibility". The position was filled on 16 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 800037 (CSA 1) as at 30 March 2008. Position 904952 (CSA 1) : This position became vacant on 24 July 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 24 July 2006 (that is, by 21 August 2006). The position was identified as to be advertised in the New Year in the memorandum of 7 January 2008. However, the position was subject to the note dated 25 February 2008 "do not action". The position remains vacant. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 904952 (CSA 1) as at 21 August 2006. Position 905594 (CSA 1) : This position became vacant on 24 December 2006. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 24 December 2006 (that is, by 21 January 2007). The position was identified as "advertised externally, recruitment process not yet finalised" in the memorandum of 7 January 2008. The letter dated 2 May 2008 identified this position as one in respect of which an external candidate had been identified in one of the recruitment drives in 2007 (I infer November 2007 due to the proposed start date in February 2008) but was never appointed, perhaps, due to failing the pre-employment checks. The position was later filled on 26 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 905594 (CSA 1) as at 21 January 2007. Position 905595 (CSA 1) : The initial date on which this position became vacant is unknown. Accordingly, I am not satisfied that the Union has demonstrated any breach of cl 22 of the 2005 agreement in respect of the initial period of vacancy. The position was selected for a ballot transfer in December 2006 but was not filled at that time. The position was filled and vacated twice between 14 October 2007 and 2 February 2008. It became vacant on 3 February 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 3 February 2008 (that is, by 3 March 2008). The position was filled on 16 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 905595 (CSA 1) as at 3 March 2008. Position 905600 (CSA 1) : The initial date on which this position became vacant is unknown. Accordingly, I am not satisfied that the Union has demonstrated any breach of cl 22 of the 2005 agreement in respect of the initial period of vacancy. The position was selected for a ballot transfer in December 2006 but was not filled at that time. The position was filled between 14 October 2007 and 28 January 2008. It became vacant on 29 January 2008. RailCorp did not make any determination with respect to this position within the meaning of cl 22.1 within four weeks of 29 January 2008 (that is, by 26 February 2008). The position was filled on 16 September 2008. From these facts, I am satisfied that RailCorp breached cl 22.1 of the 2005 agreement with respect to position 905600 (CSA 1) as at 26 February 2008. I am not satisfied that the Union has established any breaches of cll 22.2 or 22.4 because I consider that the operation of those clauses depended on the making of a determination in accordance with cl 22.1, which determination RailCorp never made. Accordingly, the breaches established are breaches of cl 22.1 of the 2005 agreement and not cll 22.2 or 22.4. 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 Jagot.

whether breach of union collective agreement whether respondent in breach of agreement by failing to fill authorised employment positions at town hall station according to terms of the agreement incorporation of prior agreement into later agreement except to the extent of any inconsistency whether any such inconsistency in present case principles of construction of industrial instruments industrial law

The appellant says that the Federal Magistrate failed to take into account compelling evidence of fraud by the migration agent, namely the fact that the application for a protection visa was not signed by him but by the agent. He claims that, due to that fraud, his claim for a protection visa has not reached the Tribunal and the jurisdiction of the Tribunal remains unexecuted. 2 The question of whether or not there was such fraud on the Tribunal rests essentially on the findings of fact made by the Federal Magistrate. The appellant seems to be relying upon SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 ; (2007) 232 CLR 189. 3 The appellant has had two migration agents advise him. A further particular of his ground of appeal is that Raphael FM failed to conduct a complete investigation into whether or not his second migration agent fulfilled his duty as legal representative. 4 The appellant's evidence before Raphael FM was that his first migration agent, Mr Shi, had concocted his protection visa claims. He says that he told Mr Shi that he was a Falun Gong practitioner and feared harm in China for that reason. The appellant says that Mr Shi completed the statement accompanying the appellant's protection visa application which stated that he had been the head chef at his workplace, had refused a request for a false receipt from some public servants, had complained to the authorities about the corruption, was warned by the head of the company to cease his involvement and was stood down and the accounts he managed audited. The appellant accepts that Mr Shi made the application on his behalf but says that he did not sign it, he did not know what was in it, he was not advised about the progress of the application, of the application for review of the delegate's decision, of the invitation to attend a hearing or of the Tribunal's decision. 5 The Tribunal decided that based upon the claims set out in the application, it was not satisfied on the material before it that the claimed persecution arose for a Convention reason. The Tribunal did not accept that the adverse consequences there described were so serious as to amount to persecution. 6 The appellant says that he told the Federal Magistrate that when he was told of the decision of the Tribunal in May 2000, he was advised by Mr Shi that he could do nothing more. He then went to a second migration agent, Mr Feng. Mr Feng wrote to the Minister on the appellant's behalf. The appellant says that he told Mr Feng that he was a Falun Gong practitioner but Mr Feng repeated his protection visa claims which, of course, were not based on his practice of Falun Gong. 7 The appellant was cross-examined before the Federal Magistrate as to why it was that the two migration agents repeated the same claims. He was asked questions on that subject both by counsel for the Minister and by Raphael FM. His Honour put to the appellant that he found it difficult to believe that, notwithstanding the fact that the appellant knew there was a discrepancy between his claims and what the first migration agent had stated, the second migration agent nonetheless repeated what the appellant described as the lies of the first migration agent. 8 The explanation given by the appellant was that the second migration agent just transferred the information from the first migration agent's files. One of the reasons for his Honour's scepticism in accepting the appellant's story was his view that it was unlikely that a migration agent would recite claims based upon allegations of corruption rather than claims based upon being a Falun Gong practitioner if the latter were available. 9 Federal Magistrate Raphael considered the matters put by the appellant and had the benefit of the evidence that was before him, including the oral evidence. His Honour accepted that Mr Shi, and not the appellant, signed the documents submitted to the Department and later to the Tribunal. However, his Honour noted that the appellant had confirmed that he had authorised Mr Shi to act for him. His Honour did not find anything fraudulent in the fact that Mr Shi had signed the document in Mandarin with the appellant's name. His Honour accepted that the appellant did not know about the Tribunal hearing because he was not told of it by Mr Shi. 11 His Honour was not satisfied that the appellant had been the victim of fraud by his migration agent. He did not accept that the appellant had been truthful in his account of his dealings with Mr Shi and Mr Feng and was not satisfied that there was a sufficient reason why both migration agents would fail to repeat the appellant's claim of being a Falun Gong practitioner. 12 His Honour rejected the claim of fraud. 13 When asked what error there was in his Honour's decision, the appellant essentially said that the Federal Magistrate did not believe his story and was therefore unfair to him. That assertion is not sufficient to point to error on the part of his Honour. 14 Like Raphael FM, I do not see sufficient explanation as to why both migration agents would have repeated the same, allegedly incorrect, story and not have described the appellant's claims to be a Falun Gong practitioner. There is no evidence of any sufficient motive on the part of either or both of the migration agents for doing so. Judges of the Court have considered that the fact that the forms were signed by the migration agent and not by the appellant may give rise to fraud. However, that is not necessarily sufficient to constitute fraud on the Tribunal. 15 As to the fact that the appellant was not aware of the Tribunal hearing, Raphael FM referred to Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501 , where the Full Court noted that, before an omission or an action can properly be said to have occasioned a fraud on a Tribunal, it must itself be properly characterised as a fraudulent omission vis-à-vis the visa applicant. His Honour observed that there was a simple explanation why the appellant was not informed of the date of the hearing. It was because he had not told Mr Shi his new address. His Honour did not infer fraud arising from that fact. 16 In SZFNX v Minister for Immigration and Citizenship [2007] FCA 1980 , Besanko J considered fraud by an agent in the context of a Tribunal hearing. In that case, the appellant's signature had been falsely placed on the document and part of the appellant's statement had been made up. Justice Besanko said at [37] that those facts may go some way towards establishing fraud but that it is still necessary for the appellant to show that the fraud has affected the process described by the Migration Act 1958 (Cth). 17 The appellant also complains that the Federal Magistrate failed to conduct a complete investigation into Mr Feng's conduct. As noted by counsel for the Minister, this is apparently a complaint about Raphael FM's comment on that subject at [9]. His Honour declined to comment upon the appellant's claim that Mr Feng's explanation of why he did not turn up to the Tribunal was false. His Honour's statement, that Mr Feng's conduct cannot constitute fraud on the Tribunal as he was not, at the time of its decision, the appellant's migration agent, is correct. 18 Counsel for the Minister raises the delay between the Tribunal decision of 21 March 2000 and the date of the application to the Federal Magistrates Court on 19 June 2008. The Minister submits that this of itself would be sufficient, even if fraud were established, to refuse relief. There has been no explanation for the delay other than a lack of appreciation on the part of the appellant of his ability to bring such an action. As I see no error on the part of the Federal Magistrate in relation to the substantive grounds of appeal, I do not need to decide whether the appellant would be refused relief by reason of his delay. 19 It follows that the appeal should be dismissed with costs. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

protection visa application completed and signed by first migration agent appellant says claims incorrect and alleges fraud by migration agent same claims repeated by second migration agent appellant not informed of tribunal hearing by migration agent appellant failed to inform migration agent of change of address claims of fraud rejected appeal dismissed migration

The appellants are citizens of India. They belonged, it is accepted, to the Muslim community in a particular city in Maharashtra State and ran a Muslim school in that city, which school they co-owned. They were also supporters of the Congress Party. 2 It was accepted that their claim for protection from potential persecution was based, first of all, upon their Muslim activities and Muslim religion and, secondly, upon their membership of the Congress Party. In particular, they were in fear of persecution at the hands of a group called Shiv Sena which, it is accepted, is an extremist Hindu group. A significant plank of the case before the Tribunal related to an incident in March 2006. They claim to have organised a rally or procession of children connected with the Muslim calendar, this rally was attacked by the Shiv Sena and the first appellant's husband was injured. They closed the school for three weeks and when they reopened the school they were attacked at their home. The police did not respond to reports about the incidents. 3 The Tribunal accepted that there was what was described as a misfortune on 21 March 2006 when they were taking part in the procession, with the first appellant's husband being hurt and hospitalised. However, the Tribunal did not accept that the harm was the result of their Muslim religion or because of their support for the Congress Party or that the attack was by the Shiv Sena, or that the police had failed to respond. The Tribunal gave reasons for those findings which I do not need to reproduce in this judgment. 4 The case for the appellants before the Federal Magistrates Court was that the Tribunal had made flawed findings in this respect because of an inconsistency between its substantial acceptance of the case for the appellants as to the nature of the occurrence on 21 March 2006 and yet its rejection of what might be thought to be the critical aspect of it, that is, the identity of the attacker and the basis for that attack. The learned Federal Magistrate considered that ground by reference to a well-known authority and formed the view that there was a basis for the findings by the Tribunal in country information to which it referred and that there was no flaw in the reasoning once they were able to refer to that material. It was said that the determination was one of fact reserved for the decision-maker that cannot be upset by judicial review and the ground was rejected. 5 The appellants seek to reargue that conclusion and particularly stress what is said to be the inconsistency involved. In my opinion, counsel for the Minister is correct in submitting that there is no ultimate inconsistency. Acceptance that the injuries occurred in the course of the procession does not involve any acceptance of there being an attack during the procession as claimed. The medical reports refer to an accidental cause for the injury. Furthermore, it is submitted that whatever criticisms might be made of the reasoning involved, they do not change the nature of the question from being a question of fact to jurisdictional error. In my opinion, that submission is correct. I confess that one could understand a feeling of some grievance or disappointment by those concerned but the decision about bona fides in these matters --- and that is what this was essentially --- is one committed to the Tribunal and the courts can only intervene in the event that there is a jurisdictional error made. None was made, in my opinion, in relation to this ground. 6 There was a second and independent ground for rejecting the claim for protection visas by the Tribunal --- what is generally referred to as the relocation principle. The Tribunal was satisfied that it was reasonable to expect the appellants to live elsewhere other than in the particular place and avoid the harm they fear. In coming to that view the Tribunal referred to the well-known authority of Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The Tribunal gave detailed reasons for coming to the conclusion that it reached and it seems to me that it involved two aspects. The first was that there would be protection in other parts of India and, secondly, that it was reasonable and practicable for these particular appellants to so relocate. 7 Again, I can understand that persons with ties to a particular community, running a school, and of a minority religion, although a substantial minority, would be disappointed by the result on this issue. However, I can find no jurisdictional error in the way in which the Tribunal approached the matter. NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 is a decision which is relatively favourable to appellants in situations like this but, even approaching the matter on the basis of Branson J's judgment in that matter does not, it seems to me, establish jurisdictional error in the present case. 8 This case illustrates the difficulties both of applicants for visas and of tribunals in dealing with those applications in deciding important issues without the usual forensic advantages. The appeal is dismissed. The appellants are to pay the costs of the first respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

appeal from decision of the federal magistrates court affirming decision of the refugee review tribunal challenge to finding that no inconsistency in tribunal's assessment of evidence challenge to finding that appellants able to relocate safely within home country no jurisdictional error by federal magistrate in affirming tribunal's findings appeal dismissed migration law

In substance the applicant challenges the validity of a decision ("the Purported Decision") of the respondent Minister for the Environment Heritage and the Arts ("the Minister") purportedly made on 5 September 2008 pursuant to s 74B Environmental Protection and Biodiversity Conservation Act 1999 (Cth) ("EPBC Act") in respect of the applicant's referral No EPBC 2008/4366 dated 30 July 2008 ("the Referral"). On 29 July 2008 the applicant provided the Referral to the Minister pursuant to s 68 EPBC Act for the Minister's decision as to whether or not the proposed action the subject of the Referral was a controlled action under the EPBC Act. 2. Pursuant to s 75(5) EPBC Act, the Minister had a duty to make the decisions referred to in para 2 within 20 business days of receiving the Referral. 4. On 5 September 2008, the Minister made the Purported Decision. 6. The Minister notified the applicant of the Purported Decision by an undated letter from the Minister to the applicant which enclosed a statement of reasons for the purported decision. 7. By the Purported Decision, the Minister purported to decide pursuant to s 74B EPBC Act that the proposed action the subject of the Referral will have clearly unacceptable impacts on the environment due to that part of the proposed action involving Commonwealth land (protected under ss 26 and 27A EPBC Act) and wetlands of international importance (protected under ss 16 and 17B EPBC Act). 8. The Purported Decision was not made by the Minister within 20 business days of receiving the Referral. 9. As a consequence of the Purported Decision, the Minister has failed to make the decisions referred to in para 2. 12. The Applicant is aggrieved by the Purported Decision and by the failure of the respondent to make the decisions referred to in para 2. A declaration pursuant to s 16(1)(c) Administrative Decisions (Judicial Review) Act 1977 (Cth) ("ADJR Act") and/or s 21 Federal Court of Australia Act 1976 (Cth) ("Federal Court Act") that the Purported Decision is invalid and of no force and effect. 2. An order pursuant to s 16(1)(a) ADJR Act quashing or setting aside the Purported Decision in its entirety. 3. An order pursuant to s 23 Federal Court Act for the issue of a writ of certiorari quashing the Purported Decision. 4. An order that the Minister pay the applicant's costs of and incidental to the proceeding, to be assessed if not agreed. 8. Such further or other orders as the Court considers appropriate. The applicant is a coal exploration company incorporated in British Columbia, Canada. It holds exploration permits for coal in the Galilee Basin in central Queensland approximately 38 kilometres north-west of Alpha, and since commencing exploration in 2007 has identified an inferred thermal coal resource of some 4.3 billion tonnes of coal. 6 The current major project of the applicant is the Galilee Basin Project ("the Project"). The coal will be sourced from Waratah Coal's mining tenements near Alpha in the Galilee Basin, Central Queensland. The project also includes the possible establishment of a water supply pipeline between the coal mine and Lake Dalrymple, and the provision of a high voltage distributor electricity transmission line between the closest high voltage distributor and the port. 9 On 14 April 2008 the applicant submitted an Initial Advice Statement ("IAS") dated 14 April 2008 to the Coordinator-General of the Queensland Department of Infrastructure and Planning Information. On 18 July 2008 the Coordinator-General declared the project to be a "significant project" under s 26 State Development and Public Works Organisation Act 1971 (Qld). An Environmental Impact Statement was required pursuant to s 26(1)(a) of that Act. 10 The Referral was submitted by the applicant to the Minister on 29 July 2008. Receipt of the Referral was confirmed by the Minister's Department by letter dated 31 July 2008. On 5 September 2008 --- more than 20 business days after the Minister received the Referral --- Mr Lynch received a telephone call from the Department advising him that the Minister was in the process of making an announcement regarding the Minister's decision (pursuant to s 74B EPBC Act) pertaining to the Referral, namely that the Minister had declared the Project "Clearly Unacceptable" and had dismissed the application for referral. A copy of the decision was forwarded to Mr Lynch on 7 September 2008. 11 It is not in dispute that the Purported Decision prevents the Project proceeding. 13 Chapter 2 provides for one means by which the EPBC Act achieves these objects. It does so by prohibiting a person from taking an action without the Minister having given approval or decided that approval is not needed. (Part 9 deals with the giving of approval. The protected environmental matters are set out in Ch 2 Pt 3 of the EPBC Act and include Commonwealth land (ss 26 to 27A) and declared wetlands (ss 16 to 17B). 15 In order to obtain the necessary approval, a person who proposes to take an action which they think may be a controlled action must refer the proposal to the Minister for a decision as to whether the action is a controlled action: s 68 EPBC Act. This is the "referral". If the Minister forms the opinion that, on the basis of the information in the referral, it is clear that the action would have unacceptable impacts on the environment, the Minister may decide that Ch 4 Pt 7 Div 1A should apply to the referral (s 74B(1)). The Minister may decide that the action is a controlled action (s 75(1)) and thereafter decide the approach to be used to assess the relevant impacts of the proposed action (s 87). The Minister must decide on the approach within 20 business days after the Minister receives the referral (s 88). The Minister may decide that the action is not a controlled action (s 75(1)) in which case the person can proceed to take the proposed action. (3) Subsection (2) has effect subject to paragraph 74D(6)(a). Is the action a controlled action? See section 78. That question is whether the Purported Decision, purportedly made pursuant to s 74B EPBC Act, was valid and effective to apply Ch 4 Pt 7 Div 1A EPBC Act to the Referral, notwithstanding that the Purported Decision was made more than 20 business days after the Minister had received the Referral. The legislative provision pursuant to which the Minister made his decision was s 74B EPBC Act. 2. Section 156(3) and s 518(1) are concerned with the validity of decisions which there is an obligation to make. 4. The construction of s 74B urged by the Minister leads to absurd results because it places s 74B in conflict with other provisions of the EPBC Act. 5. A continuing right to make a decision under s 74B cannot co-exist with the alternative and inconsistent procedure under s 75 and s 87 EPBC Act. 6. If s 156(3) and s 518(1) are capable of applying to a decision purportedly made by the Minister under s 74B more than 20 business days after the receipt of a referral, it should be concluded that s 74B(1) evinces an intention to exclude the prima facie operation of those provisions. 7. The principles articulated in David Grant & Co Pty Ltd v Westpac Banking Corporation Ltd (1995) 184 CLR 265 apply to this case. 8. Section 74B and Ch 4 Pt 7 Div 1A EPBC Act were inserted as part of a new process designed to enable the Minister to make a "prompt refusal" for a proposed action that would be clearly unlikely to receive approval under the other provisions of Ch 4. To treat a decision made any time outside the 20 business days referred to in s 74B(1) as effective to invoke s 74B(2) would be to dispense entirely with the "prompt refusal" rationale of the provision. This would be in direct conflict with the evident statutory purpose of s 74B and must be rejected by reason of s 15AA Acts Interpretation Act 1901 (Cth). Section 156(3) and s 518 are express provisions in the EPBC Act which put beyond doubt that it is clearly not a purpose of the EPBC Act that an act done outside a time period set by the EPBC Act should be invalid. 2. Even apart from those provisions, the same result is achieved by applying the approach to statutory interpretation as articulated in Project Blue Sky v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355. 3. The purpose of Ch 4 Pt 7 Div 1A EPBC Act, which was inserted into the EPBC Act in 2006 by the Environmental and Heritage Legislation Amendment Act (No 1) 2006 , was explained in the Explanatory Memorandum accompanying that legislation. 4. Section 75 and s 88 also call for "prompt" decisions to be made. 5. Importantly, a prompt refusal under s 74B avoids the expense and time involved in conducting the full assessment and approval process for an action that is unlikely to receive approval. 6. The construction of s 74B advanced by the applicant risks substantial frustration of the ultimate purpose of s 74B. 7. On the applicant's argument once the 20 business days have elapsed the Minister must proceed to make decisions under ss 75, 87 and 88 even if the Minister considers the proposed action will have unacceptable environmental impacts. This is precisely what s 74B was intended to avoid. 8. The real condition precedent to the application of Ch 4 Pt 7 Div 1A is the formation of the opinion by the Minister. While the Minister is obliged and required to act within the time specified in s 74B, it does not follow that the consequence of a late decision is that it is invalid and of no effect. No contortion of the legislation or speculation as to the manner in which s 74B is to be construed in the broader context of Ch 4 Pt 7 detracts from the natural and ordinary meaning of the words in s 156(3) and s 518(1) EPBC Act. That the failure of the Minister to comply with a time limit set by the EPBC Act does not affect its validity is clear not only in relation to any action of the Minister under the Act as a whole (s 518(1)), but, in my view crucially, is clear in relation to any decision made by the Minister under Ch 4 EPBC Act (s 156(3)). Although the legislation reflects an apparent duplication so far as concerns decisions under Ch 4 (which, presumably, would also fall within the scope of actions of the Minister for the purposes of s 518(1)) the effect of that duplication is to remove any doubt as to the validity of decisions made under Ch 4, including those in Pt 7 Div 1A and more specifically s 74B, notwithstanding a failure to comply with a set time limit. 28 I am not persuaded that s 156(3) and s 518(1) apply only to decisions in Ch 4 which the Minister has an obligation to make, as contended by the applicant. There is nothing in s 156(3) and s 518(1) which lends itself to such an interpretation. 29 I would add further that, in any event, neither s 156(3) nor s 518(1) are drafted in terms of "obligation" which could in any sense result in the disengagement of those sections from decisions under s 74B. (While s 518(2) may apply only to decisions which there is an obligation to make, that is not an issue I need to decide for the purposes of these proceedings. 31 The issue raised in submission by the applicant is encapsulated historically in the Latin maxim generalia specialibus non derogant (where there is a conflict between general and specific provisions, the specific provisions prevail). In my view the submission can be dealt with quickly. The rule of construction inherent in this maxim has its place only where contrariety is manifest: Reseck v Federal Commissioner of Taxation (1975) 133 CLR 45 at 52-53, Butler v Attorney-General for the State of Victoria [1961] HCA 32 ; (1961) 106 CLR 268 at 276; R v Kearney; Ex parte Japanangka [1984] HCA 13 ; (1984) 158 CLR 395 at 421. In this case there is no inherent conflict between the operation of s 74B (or indeed Ch 4 Pt 7 Div 1A) on the one hand, and either s 156(3) or s 518(1) on the other. (I will address the applicant's submissions as to the interplay of s 74B and other provisions of Ch 4 Pt 7 later in this judgment. ) The enactment of Div 1A subsequent in time to that of s 156(3) and s 518(1) gives rise to no inconsistency. If this were done by a specific indication in the particular enactments of the effect of non-compliance with its provisions...or by a general enactment which provided for relief against the consequences of non-compliance with a mandatory statute, the cases of the present kind would be, if not avoided, at least greatly reduced in number. Section 156(3) and s 518(1) EPBC Act are examples of such legislation in their application to decisions made under s 74B of that Act. 34 Because of the application of s 156(3) and s 518(1) to validate decisions made under s 74B more than 20 business days after the Minister receives a referral, I consider that the application fails. This is clear from applying the principles articulated in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 , as well as taking into consideration the explanation of Ch 4 Pt 7 Div 1A in the Explanatory Memorandum accompanying that Division introduction into the EPBC. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. This can be contrasted with, for example, the language of s 459G Corporations Act 2001 (Cth) to which the applicant referred in submissions, and which was the subject of consideration by the High Court in David Grant (1995) 184 CLR 265. (2) An application may only be made within 21 days after the demand is so served. In this setting, the use in s 459G(2) of the term "may" does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether "may" is used in a facultative and permissive sense or an imperative sense (13). Here, the phrase "(a)n application may only be made within 21 days" should be read as a whole. The force of the term "may only" is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (14), it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect. The same is true of sub-s (3). This consideration gives added force to the proposition which has been accepted in some of the authorities that it is impossible to identify the function or utility of the word "only" in s 459G(2) if it does not mean what it says, which is that the application is to be made within 21 days of service of the demand, and not at some time thereafter and that to treat s 1322 as authorising the court to extend the period of 21 days specified in s 459G would deprive the word "only" of effect (15). 41 Such language as "may only" in legislation is indicative of a need to comply with a set time limit, although not conclusive (see, for example, Bond v WorkCover Corporation of South Australia (2005) 93 SASR 315). In the circumstances of that case Joske J held that the Licensing Court had no jurisdiction to deal with an application made on a period of notice less than the period of 21 clear days. 42 Section 74B(1) states that Ch 4 Pt 7 Div 1A "applies to the referral of a proposal to take an action if, within 20 business days after the Minister receives the referral", the Minister makes the decision described in paras (a) and (b) of s 74B(1). In my view the language in s 74B as to compliance with the relevant time period is weaker than that in the examples to which I have referred above. Although the legislative purpose in enacting Div 1A was to facilitate a prompt refusal by the Minister of an action which would have unacceptable environmental impacts, the legislation does not support an interpretation that a decision made by the Minister on, for example, the 21st business day after the referral would not be of equal validity to a decision made within the prescribed time period. The event upon which the operation of the section depends is the prompt making of a decision by the Minister that the proposed action will have unacceptable environmental impacts, not the passage of 20 business days. In other words the making of a decision of the Minister is critical --- the time period of 20 business days, while relevant to the making of the decision, does not determine its validity (cf Hatton v Beaumont (1977) 2 NSWLR 211 at 224). To paraphrase the learned authors of Administrative Law in Australia , to which I referred earlier in this judgment, the provision as to time in s 74B simply regulates a function which has already been conferred on the decision-maker, namely that of making a decision in the circumstances described in s 74B(1)(a) EPBC Act. 44 Explanation as to the legislative purpose of Ch 4 Pt 7 Div 1A (including s 74B) can be found in the Explanatory Memorandum to the Environment and Heritage Legislation Amendment Act (No 1) 2006 (Cth) which inserted Ch 4 Pt 7 Div 1A into the EPBC Act. This item inserts new Division 1A of Part 7 of the Act. Division 1A establishes a new process that allows the Minister to make a prompt refusal for an action that would have unacceptable impacts on a matter protected by Part 3 of the Act. This avoids the expense and time involved in conducting the full assessment and approval process under Chapter 4 for actions that would be unlikely to receive approval under Part 9 of the Act. The scope and process for making a prompt refusal is established in three new sections of the Act ¬ 74B, 74C, and 74D. 79. If the Minister considers that an action would have unacceptable impacts on a matter protected under Part 3 of the Act on the basis of the information contained in a referral then the Minister may decide under s 74B that Division 1A applies to the action. The other provisions of Chapter 4 (referral assessment and approvals processes) then cease to apply to the action. Under s 74C the Minister must then notify the person proposing to take the action and provide reasons why the action is unacceptable. The person may withdraw the referral, withdraw the referral and refer a new proposal, or request the Minister to reconsider the referral. 80. New s 74D outlines the process to be followed in the event the Minister is asked to reconsider the referral. At the completion of this process the Minister may either confirm that the action is not to be approved, or determine that it should be subject to the formal assessment and approvals processes under the Act. If the Minister decides that the referral should be assessed, the Chapter 4 processes and timeframes recommence at the point where they were initially stopped under s 74B of the Act. 45 Significantly, I note that the Explanatory Memorandum makes no mention of the 20 business day time period, nor is any importance attached to that period of time. Consistently with the proposition that it is the making of the decision which is critical, the Explanatory Memorandum refers to promptitude, and the avoidance of expense and time otherwise applied in making a full assessment. 46 Historically there is a wealth of authority supporting the principle that failure to perform an act within time limits prescribed by legislation does not necessarily invalidate the act notwithstanding that it is made after the expiration of that time limit. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time. Thus, the 13 Hen. IV. (c.7), which required justices to try rioters "within a month" after the riot, was held not to limit the authority of the justices to that space of time, but only to render them liable to a penalty for neglect. I accept the Minister's submission that this interpretation is not supported by the terms of Ch 4 Pt 7. It is highly unlikely that the legislature would have intended that non-compliance with the time limit in s 74B would inevitably prevent the Minister from making a valid decision (cf Charles v Judicial and Legal Service Commission [2002] UKPC 34 at [12] ), particularly as, if the time limit under s 74B were absolute, the subsequent invalidation of any decision made under s 74B would result in substantial frustration of the ultimate purpose of s 74B. 49 Accordingly, it is clear that, contrary to the applicant's submissions, a construction of s 74B to give effect to decisions of the Minister made outside the 20 business days prescribed by the section does not place s 74B in conflict with other provisions of the EPBC Act. A construction of s 74B which enables an effective decision to be made outside the prescribed 20 business days does not make the regime contained in provisions such as ss 75, 87, 88 and 130 unworkable. 51 However it is equally clear that the 20 business day time period stipulated by s 74B is intended to "spur [the Minister] to action, not to limit the scope of his authority" ( Brock v Pierce County [1986] USSC 96 ; 106 S Ct 1834 (1986) at 1841, cf Barnhart v Peabody Coal Co 123 S Ct 748 (2003) at 755). The EPBC Act recognises that, notwithstanding the time limits specified for the making of decisions, decision-making within such time limits may not always be achievable. The effect of s 156(3) and s 518(1) is to validate decisions made after the expiry of the time stipulated by the Act, including decisions made under s 74B. 52 Further, and in any event, for reasons I have already explained, I consider that a decision made under s 74B after the expiry of the relevant 20 business days would be valid taking into account the language, structure and purpose of the statute and the consequences of non-compliance with the set time limits. 53 It follows that the Purported Decision was, in fact, valid. The appropriate order is that the application 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 Collier.

application for order for review and application under s 39b judiciary act 1903 (cth) review of purported decision by minister under s 74b environmental protection and biodiversity conservation act 1999 (cth) (epbc act) proper construction of s 74b epbc act whether s 156(3) and s 518(1) apply to validate decision purportedly made pursuant to s 74b epbc act more than 20 business days after minister reviewed referral purpose of ch 4 pt 7 div 1a epbc act administrative law statutory interpretation

The Federal Magistrates Court dismissed an application for judicial review of a decision of the Refugee Review Tribunal affirming a decision by a delegate of the first respondent (the Minister) refusing to grant the appellants Protection Class (XA) visas under s 65 of the Migration Act 1958 (Cth). The appellants are husband and wife and are citizens of India. They entered Australia on 18 June 2008 and applied for protection visas on 30 June 2008. The first appellant claimed that he had a well-founded fear of persecution arising from his membership of and activities with the BJP political party and that he had left India because of a fear of harm from a local Muslim gang leader, Abdul Kadar. The second appellant made no independent claims but was included by reason of her marriage to the first appellant. The appeal was originally set down for hearing on 18 May 2009. On 14 May 2009 the first appellant sent a facsimile to the Court requesting an adjournment of the hearing as he was suffering a "severe ear problem", was "admitted in Griffith Hospital" and had been advised "that it would take more than one month to become normal". The facsimile attached a medical certificate stating that the first appellant was unfit to attend the hearing due to mastoiditis in his right ear. The Court arranged for the appellants to appear by telephone on 18 May 2009. On that day, the second appellant maintained that the first appellant was too ill to come to the telephone and that due to his ear infection he was unable to hear. I expressed concern that the medical evidence did not suggest that there was any problem associated with the first appellant's left ear, that the first appellant was unable to hear, or that the first appellant was unable to participate in a hearing via the telephone. Nevertheless, I adjourned the hearing and listed the proceeding for a directions hearing on 21 May 2009 with the appellants to appear by telephone. I directed the appellants to file and serve on the Minister all additional medical evidence on which they wished to rely to support any further adjournment of the hearing by 20 May 2009. On 20 May 2009 the appellants provided further medical evidence as directed. The medical certificate stated that the first appellant had been under treatment "for chronic diarrhoea since 15 th April and a chronic discharging right ear and decreased hearing right ear since 22 nd April 09 and was on Antibiotics". At the directions hearing on 21 May 2009 the Minister submitted, and I accepted, that the medical evidence was insufficient to establish that the first appellant was unable to hear or participate in a hearing (at least by telephone). Accordingly, I ordered that the matter be set down for hearing on 27 May 2009 with the appellants to appear by telephone if they so wished. On 26 May 2009 the appellants sent a further facsimile to the Court from the first appellant's treating medical practitioner stating that the first appellant had attended the medical centre on that day and still had a discharge from his right ear which was being treated. The first appellant had also just started treatment for "GERD" (which I understand to be a gastric reflux problem). Again, this document did not say that the first appellant could not hear or was unfit to attend a hearing. On 27 May 2009 the appellants appeared by telephone. The first appellant said that he was unwell, his "mind was not working", he was unable to hear and claimed it was unfair for him to be required to present his case in these circumstances. I put the first appellant on notice that, on the available evidence, I did not accept he was incapable of hearing or presenting his case. I refused to adjourn the appeal and gave the appellants an opportunity to make submissions in support of the appeal. The first appellant made all relevant submissions on the appellants' behalf but maintained his claim that it was unfair for him to have to do so (a claim which, self-evidently, I did not accept). First, the appellants submitted that during the hearings before the Tribunal and Federal Magistrates Court the second appellant was unwell and did not attend. The illness of his wife made the first appellant feel extremely stressed. Although the first appellant informed the Tribunal and Federal Magistrates Court about his wife's illness and his extreme stress, neither the Tribunal nor the Federal Magistrate took into account these difficult circumstances. The Minister made the following submissions in reply to these claims: - (i) the Tribunal recorded (in [28] of its reasons) that the second appellant was not present at the hearing due to illness, (ii) the first appellant had stated at the hearing before the Tribunal that although the second appellant was absent due to illness, she did not have any separate claims and was relying on the first appellant's claims, (iii) the Tribunal's reasons at [28] disclose that the first appellant was merely excusing the second appellant's absence and do not suggest that the first appellant claimed that the second appellant's absence made it impossible for him to present his case to the Tribunal, (iv) similarly, the Federal Magistrate recorded (at [24]) that the first appellant told the Court "that he was speaking on behalf of his wife who could not come today", and (v) in circumstances where the second appellant's claims were subsumed within the first appellant's claims, there was no error in the hearings before the Tribunal and Federal Magistrates Court proceeding in the second appellant's absence. I accept the Minister's submissions. The second appellant is the wife of the first appellant. She did not make any claims separate from those of the first appellant. There is no basis to draw an inference that the first appellant was unable to present his case to the Tribunal or the Federal Magistrates Court by reason of his wife's illness during, and resulting absence from, each of those hearings. As the Minister pointed out, the first appellant consistently stated that he was appearing and speaking on his wife's behalf. The fact that the first appellant was stressed by reason of his wife's illness and absence from the hearings also does not support any conclusion of error by either the Tribunal or the Federal Magistrates Court. Nothing in the circumstances supports an inference that the first appellant was unable to present his case by reason of his stressed condition. The same conclusion applies to the first appellant's general claims of being extremely stressed before the Tribunal, the Federal Magistrates Court and, indeed, before this Court. Litigation usually involves stress. Further, litigation of the present character may often involve extreme stress on the part of an applicant seeking a protection visa. This seems likely to be a factor common to many cases given that for the statutory criteria to be satisfied the applicant must be a non-citizen holding a well-founded fear of persecution who is unable or unwilling to avail themselves of the protection of their country. Stress (even extreme stress) on the part of an applicant for a protection visa, of itself, is insufficient to found any arguable claim of jurisdictional error. Moreover, as the Minister noted, the Tribunal's reasons record that the first appellant "constantly referred to his feeling mentally stressed" (at [59]). It was the Tribunal's view that the first appellant was feeling stressed "because he was unable to explain to the Tribunal why his evidence in his Protection Visa Application, his Visitor Visa Application and oral evidence before the Tribunal differed". The available material does not indicate that any inference to the contrary (namely, that the first appellant was unable to present his case by reason of his emotional or mental condition) was required in the circumstances. Similarly, the first appellant's stress did not prevent him from raising numerous grounds of alleged error by the Tribunal when appearing before the Federal Magistrates Court. To the same effect, the first appellant appeared to have no particular difficulty in making known his allegations of error by the Tribunal and Federal Magistrates Court in this appeal despite his feelings of extreme stress. Apart from the first appellant's own assertions, nothing in the circumstances of this matter supports an inference that the first appellant's mental, emotional or physical condition in any way disabled him from presenting his case as best as he was able to do to the Tribunal, the Federal Magistrates Court or this Court. Accordingly, the appeal cannot succeed on the basis of these claims. Second, the appellants submitted that the Tribunal did not provide the first appellant with adequate time to produce certain documents which the first appellant said he had to retrieve from India. It was submitted that even if the documents were faxed it was impossible to obtain them before 21 November 2008 (the time which the Tribunal allowed from the hearing on 11 November 2008). The appellants said the Federal Magistrates Court erred in not giving the appellants an opportunity to attend before the Tribunal again and produce these documents to support their applications for review of the Minister's decision. The Minister made the following submissions in reply to this claim: - (i) in [50]-[51] of its reasons the Tribunal recorded that the first appellant stated that "he would like some time to think about" and "respond and/or comment in writing" to certain inconsistencies raised by the Tribunal during the hearing, (ii) the Tribunal gave the first appellant an opportunity to respond in writing by 21 November 2008 yet no response was provided by the time the Tribunal handed down its decision on 1 December 2008, (iii) there is no evidence the first appellant ever asked the Tribunal for more time to produce certain documents, (iv) the Federal Magistrates Court considered this issue (at [24]-[25]) but was unable to discern any error, (v) it is not clear how the documents would answer the inconsistencies which the Tribunal had identified, and (vi) there is no statutory provision requiring the Tribunal to allow the first appellant more time to produce documents. I accept the Minister's submissions. The Tribunal informed the first appellant that his evidence gave rise to certain inconsistencies (at [48]-[50]). The Tribunal recorded the first appellant's wish to respond in writing. The Tribunal gave the first appellant until 21 November 2008 to do so. The first appellant made no response by that date or at any time before publication of the Tribunal's decision on 1 December 2008. The evidence does not disclose any request by the first appellant to the Tribunal for an extension of time either during the hearing before the Tribunal or thereafter. These circumstances do not indicate any error by the Tribunal, let alone jurisdictional error. Although the appellants made no further submissions in support of the appeal, the notice of appeal filed by the appellants on 20 March 2009 identified three other (overlapping) grounds of appeal as follows: - (i) the Federal Magistrates Court misapplied the meaning of the expression "well-founded fear of persecution for a Convention reason", (ii) the Federal Magistrates Court should have found that the Tribunal wrongly applied the law to the facts as found in relation to the seriousness of harm that constitutes persecution, and (iii) the Federal Magistrates Court failed to find that the Tribunal was in error in applying a "balance of probabilities test" rather than a "real chance test" in determining whether the appellants had a well founded fear of persecution. In essence, the appellants complain that the Federal Magistrates Court should have found that the Tribunal misapplied the concept of a "well-founded fear of persecution". However, and as the Minister submitted, the Tribunal identified the statutory test in conventional terms (at [6]-[19]). Under s 36(2) of the Migration Act the criterion for a protection visa (insofar as material) is that the applicant is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. The Convention defines a refugee by reference to a well-founded fear of persecution on nominated grounds. The Tribunal observed that the requirement that the fear be well-founded involved a genuine fear founded on a "real chance" of persecution for a reason stiplutated in the Convention (at [17]). There is no basis in the available material to support an inference that the Tribunal failed to apply the correct statutory test either generally or in one of the ways identified in the notice of appeal. The Tribunal (at [58]-[62]) concluded that the first appellant was not a credible witness and that certain "inconsistencies, contradictions and implausibility" in his claims (at [58]) meant that the Tribunal was not satisfied "that the [first appellant] was targeted by [Abdul Kadar and others in India] or that he suffered physical, mental or financial harm because of his involvement with BJP" (at [60]). As the Minister submitted, this reasoning process does not disclose any jurisdictional error. The Tribunal cannot grant a protection visa unless it is satisfied that the criteria for the grant of the visa are met. As explained by the Full Court of the Federal Court in SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15] , s 65(1) of the Migration Act "does not require the decision maker to reach a decision to refuse to grant a visa only if a particular matter is established. Rather it requires a refusal if the decision maker is not affirmatively satisfied that the criteria for the grant of the visa in question have been satisfied". The Federal Magistrates Court not only addressed each of the appellants' arguments of alleged error by the Tribunal but also considered the course of the appellants' review application more generally and whether that course disclosed any breach of the Migration Act (at [38]-[48]). I agree with the conclusions reached by the Federal Magistrates Court that the available material does not disclose any arguable case of jurisdictional error. Accordingly, I am unable to see any basis for concluding that the Federal Magistrates Court erred. For these reasons the appeal must be dismissed. The Minister is also entitled to an order for 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 Jagot .

applications for protection visas whether tribunal failed to take into account illness of the second appellant whether tribunal required to give appellants time to produce documents whether tribunal misapplied the concept of "well-founded fear of persecution" migration

2 The supporting affidavit of Mr Skea, an articled clerk of the applicant's solicitors, is to the effect that the solicitors, having received the certificate of taxation dated 25 August 2006 on 28 August 2006, calculated that under the Rules of the Federal Court they had 21 days from the date of the service of the certificate to file an objection. The objection was tendered to the Federal Court on Monday, 18 September 2006 and rejected as being one day out of time. It was said that the final date for filing of the notice of objection was on Friday, 15 September 2006. It is further asserted that there is no prejudice caused to the respondent from the misunderstanding. 3 The applicant seeks to support the existence of a power to extend the time by reference to O 62 r 23 of the Federal Court Rules (FCR). That provides in relation to an extension 'that where a party applies for an extension of time he shall, unless the Court otherwise orders, pay the costs of and occasioned by the application or any order made on or in consequence of the application'. 4 The respondent does not oppose the granting of the motion in the event that the Court is satisfied that it has power to extend the time. The respondent draws attention to FCR O 62 r 46 which sets out the assessment procedures which may lead to the making of an estimate of the approximate total of a bill of costs. Rule 46(3)(c) provides that 'a party interested may, within 21 days after the date of issue of a notice under paragraph (b), file and serve on each other party a notice of objection to the estimate'. Subpar (ca) provides that if there is no notice of objection, the amount of the estimate is deemed to be the amount for which a certificate of taxation may be issued. The respondent submits that, given this deeming provision, he has doubt whether the Court has the power to grant an extension of time. Further, he submits that as r 46 deals with objections discretely and separately there may be no room for application of O 62 r 23. 5 In my opinion there is no reason in law why the provisions of FCR O 3 r 3 are not applicable to the time limit referred to in FCR O 62 r 46(3)(c). FCR O 3 r 3 provides that a court or judge may by order extend or abridge any time fixed by the Rules (or by any judgment or order). Subrule (2) provides that the time may be extended under the Rule, or any other Rule allowing for an extension of time (unless the Rule provides otherwise) before or after the time expires and whether or not an application for extension is made before the time expires. Subrule (3) provides that the period within which a person is required by the Rule to file any document may be extended by consent without an order for extension. 6 I do not consider that the presence of the deeming provision in FCR O 62 r 46(ca) is a reason for non-application of FCR O 3 r 3. It is apparent that the application of the latter Rule to effect an extension of time would leave the deeming provision in O62 r 46(ca) still to have operation but from the expiration of the extended time. The effect of the extension is to remove the foundation for the deeming provision until the extended of time has expired. 7 I do not agree with the respondent that FCR O 62 r 46 must be read independently of the other provisions in FCR O 62, including O 62 r 23, or of the Rules not specifically excluded. 8 However, I agree with the respondent that FCR O 62 r 23 is supportive of its submission that the respondent should have an order for his costs on the motion in any event. This is additionally supported by the fact that the evidence shows that the motion was made necessary by a misunderstanding of the applicant's solicitors concerning the effect of the Rules in circumstances where attention was clearly drawn to them by the Registrar's letter enclosing the certificate of taxation. 9 Accordingly, I consider that order 1 in the applicant's notice of motion should be granted. Additionally, there should be an order that the applicant pay the respondent's costs on the motion. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholson.

extension of time filing of notice of objection on estimate of bill of costs whether power to extend time notice of objection on estimate of bill of costs extension of time for filing whether power to extend procedure taxation

The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration and Citizenship who formed the view that the appellant is not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees 1951 , amended by the Protocol Relating to the Status of Refugees 1967 (Convention) and accordingly refused to grant a protection visa on 24 September 2007. On 4 July 2007, the appellant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. A delegate of the first respondent refused the application for a protection visa on 24 September 2007. On 16 October 2007, the appellant applied to the Tribunal for a review of that decision. He appeared before a tribunal on 26 November 2007 and 25 February 2008 and was also invited to comment on information pursuant to s 424A of the Migration Act 1958 (Cth) (Act). The Tribunal made a decision which was the subject of an application for judicial review to the Federal Magistrates Court and on 28 September 2008 the Court made orders by consent remitting the application for review to the Tribunal for reconsideration. The appellant then appeared before the Tribunal, differently constituted, on 6 January 2009. On 23 January 2009, the Tribunal affirmed the delegate's decision. The appellant sought review of the Tribunal's decision, and on 24 April 2009, the Federal Magistrate dismissed the application of 18 February 2009. An aunt arranged through a contact in the Public Security Bureau (PSB) for the appellant to obtain a passport and travel documentation and he subsequently arrived in Australia on 6 June 2007. He claimed that since his arrival, he had taken part in Falun Gong activities and functions in Australia. The Tribunal did not accept that the appellant was a "genuine Falun Gong practitioner" in China, or that he was arrested or detained by police, or that he was of interest to the authorities. The reason for this decision was that the Tribunal did not accept that the appellant was "a witness of truth". The Tribunal considered that much of the appellant's evidence was implausible and inconsistent in relation to significant details. For example, at the first hearing before the prior Tribunal, the appellant gave evidence that he was arrested, detained and ill-treated by authorities in China in June 2006 and that he called his aunt in Australia the day after he was released in June 2006 and she came to China from Australia to give him money to help him. The Tribunal found, however, that the aunt gave different evidence. She told the prior Tribunal that these events happened on 15 January 2006 and she went to China on 19 January 2006 in response to a call from the appellant's wife. Later, the appellant dealt with the inconsistency in dates by saying that he had made a mistake because he was nervous and upset at the time by the deaths of his parents and was under pressure about his future. However, the Tribunal considered that if the appellant had truly suffered the persecution in his country, that he claims he suffered, he would have remembered the dates of the event. The Tribunal did not accept his explanation for giving the wrong date as plausible or credible, especially given that the Tribunal reminded him in effect of the January 2006 date at the hearing when it invited him to comment on his answer as evidence. Furthermore, the Tribunal did not accept as true that the appellant was in hiding in the country when his aunt visited. In the answer letter that the Tribunal had available to it, concerning her visit to China in January 2006, she had explained she could not meet the appellant because he was "at another place for his employment". The Tribunal found that evidence to be inconsistent with the appellant's evidence at the first hearing before the prior Tribunal that he was in the country for about a month after his release from detention, recovering from injuries he received. A subsequent explanation that his aunt had given untruthful information because she was concerned a truthful account may have prejudiced his application for a visa, further damaged the credibility of the appellant and also his aunt. The Tribunal also did not consider that the appellant gave a plausible explanation for why authorities would be interested in him two and a half years after he was allegedly detained. In particular, the Tribunal did not consider that it was consistent with the appellant's claims that he left his country because he feared harm and/or because his aunt feared he would be harmed after his detention in January 2006, that he did not obtain his passport until a year later and his visa some months after that, and then did not leave China until a month after the visa was issued. In relation to the appellant's practice of Falun Gong in Australia, the Tribunal accepted that he practiced Falun Gong in Australia and attended Falun Gong activities in Australia, the Tribunal accepted he had learnt the five main Falun Gong exercises and the principles of Falun Gong and could explain and describe them. The Tribunal also accepted that he had participated in an interview with a journalist but did not accept that it would be reported. The Tribunal considered the appellant's belief in this respect to be "speculative" (AB 132, [63]). Because the Tribunal considered that the appellant had been untruthful in his evidence about what happened to him in China and why he left, it did not accept that he practiced Falun Gong in Australia and engaged in other related activities otherwise than to strengthen his claims to be a refugee. For that reason, the Tribunal disregarded that conduct in Australia, pursuant to s 91R(3) of the Act. The Tribunal therefore affirmed the decision under review. Failed to consider his claims. Did not notify him of the reason or part of the reasons for affirming the decision. Failed to consider his application according to s 91R and s 424A of the Act. Showed unawareness of conditions in China. "Something in Refugee Review Tribunal reject letter is different from what we have provided". The Federal Magistrate noted that the appellant was unable to provide any particulars or submissions in support of his grounds of review. The Federal Magistrate, for the reasons discussed below, found these grounds failed. His Honour also considered an issue raised by the Minister (as a model litigant); namely, whether the Tribunal failed to comply with s 424 of the Act. The Minister stated that a telephone call made to the appellant's uncle on 12 December 2008, before the Tribunal hearing, could be construed as an invitation to provide additional information for the purposes of s 424 of the Act and, if this was the case, raised the issue of whether the Tribunal had complied with its statutory obligations pursuant to s 424(3) and s 424B. On the Minister's concession, his Honour accepted there was jurisdictional error thereby established but refused to grant the relief sought by the appellant on discretionary grounds. The appellant claims, without amendment, that: The Refugee Review Tribunal made jurisdictional errors when considered my application for protection visa. I think the Refugee Review Tribunal didn't take all my claims and evidence into account. The Tribunal had bias against me. The Tribunal failed to consider my application for protection visa according to S91R of the migration Act 1958. Federal Magistrate ... failed to find the above mentioned jurisdictional errors. In oral submissions to the Court, the appellant (who was self-represented) confirmed that he contended that the Federal Magistrate erred in failing to find that the Tribunal: In other words, the appellant sought largely to re-argue the grounds raised before the Federal Magistrate. For the reasons explained above, the Tribunal considered the appellant not to be a witness of truth and did not accept his primary claim that he was a Falun Gong practitioner in China who had been persecuted for his opinions. Pursuant to s 91R(3), it disregarded the appellant's conduct in Australia as discussed below. The Federal Magistrate found to similar effect. His Honour found that it was clear that the Tribunal had considered all of the claims made by the appellant, who was unsuccessful before the Tribunal because of the view that the Tribunal took of his credibility. His Honour correctly found that this finding, and the findings supporting it, were all open to the Tribunal on the material before it, and for which it gave comprehensive reasons. Further, they were findings for the Tribunal to make ( Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [67] ). In this respect, as his Honour found the ground did not rise above a request for the Court to engage in impermissible merits review ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors [1996] HCA 6 ; (1996) 185 CLR 259). His Honour also reasonably considered that on any plain reading the Tribunal's decision record revealed it to be comprehensive, lucid and cogent. To the extent, therefore, that the complaint asserted some failure of the Tribunal pursuant to s 430 of the Act to record its reasons (given that any such failure would not amount to jurisdictional error in any event --- Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 ; (1999) 95 FCR 425 at [17] , Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407 at [70] , per McHugh J), such a complaint failed. Nor could his Honour identify any failure by the Tribunal to comply with s 424A or s 425 of the Act. I consider these were correct findings. There is no evident appealable error in his Honour's findings on this ground. Moreover, the findings made by the Tribunal were open to it by reason of the various inconsistencies in testimony identified. This ground must fail. Thus the case he put was on the basis of apprehended bias. Certainly on a review of the Tribunal's record nothing suggests actual bias. In relation to the allegation of bias, the Federal Magistrate noted that such complaints must be "distinctly made and clearly proven" ( SZHPD v Minister for Immigration and Citizenship [2007] FCA 157 at [22] and Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [69] ). His Honour found that, on the material before the Court, there was nothing to show that there was any basis for the appellant's claim in this regard, let alone that any such complaint could be made out ( Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 , SBBS v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 361 ; (2002) 194 ALR 749 at [43] - [44], Minister for Immigration and Multicultural and Indigenous Affairs v SBAN [2002] FCAFC 431 , VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 ; (2003) 131 FCR 102). Having closely considered the decision record of the Tribunal, I consider his Honour was correct in making those findings and he has committed no appealable error. In effect, the contention of failure to consider the claim properly and that relating to bias, were one and the same. This ground must fail. The Tribunal at [63] accepted that the applicant had practised Falun Gong in Australia with others as he claimed and that he had attended the Falun Gong activities in Australia that he claimed he had attended. It also accepted that he had learned the five main Falun Gong exercises and the principles of Falun Gong. He could explain and describe them when asked to do so by the Tribunal. The Tribunal also accepted that he had participated in an interview with a journalist in Campsie in 2007. The Tribunal did not accept, however, that what was said during the interview had been or would be reported and considered that the appellant's belief in that regard was "speculative". The Tribunal at [65] found that where conduct in Australia is an issue, the appellant has the "practical burden" of satisfying the Minister or Tribunal that it was otherwise than for the purpose of strengthening his or her claims to be a refugee. The appellant told the Tribunal that he fears harm in his country because he has spoken to the journalist and there are spies in Australia and he will be detained if he returns to China. The Tribunal finds that the reason the applicant has been involved with Falun Gong practice and activities here in Australia, including his participation in the interview with the journalist, is to give him a better chance of remaining permanently in Australia and the Tribunal finds accordingly. As the Tribunal is not satisfied that the applicant engaged in Falun Gong practice and activities in Australia, including participating in the interview with the journalist, otherwise than to strengthen his claim to be a refugee the Tribunal disregards that conduct for the purposes of this application under subsection 91R(3). In those circumstances, I consider it was open to the Tribunal to be satisfied, as it was, that the applicant engaged in the conduct in Australia "otherwise than for the (sole) purpose of strengthening [his] claim to be a refugee". His Honour found that there was nothing before the Court to suggest that the Tribunal misunderstood or misapplied the provisions in s 91R(1) or s 91R(2). His Honour also considered whether the appellant was in fact making a complaint against the Tribunal's conduct in respect of s 91R(3) of the Act, but found that the Tribunal's approach and application of this section was consistent with the relevant authorities (for example, SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 170 FCR 515). I detect no error in his Honour's approach to this case. I note that SZJGV is the subject of a reserved judgment on appeal in the High Court of Australia at this date. On the basis that SZJGV accurately reflects the law, I consider no appealable error has been identified. The Federal Magistrate correctly found that s 91R(3) applied so that the Tribunal correctly disregarded the appellant's Falun Gong conduct in Australia. The Minister stated that a telephone call made on behalf of the Tribunal to the appellant's uncle on 12 December 2008, before the hearing, could be construed as an invitation to provide "additional information" for the purposes of s 424 of the Act and, if this was the case, raised the issue of whether the Tribunal had complied with its statutory obligations pursuant to s 424(3) and s 424B. Before this Court, counsel for the Minister, in light of the Full Court's decision in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407 ( SZLPO) , delivered after the decision of the Federal Magistrate, sought leave to withdraw the concession. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review. (2) Without limiting subsection (1), the Tribunal may invite, either orally (including by telephone) or in writing, a person to give information. Before the Federal Magistrate in this case, the Minister conceded that the telephone call made to the uncle of the appellant could be construed as the exercise of the power to "invite a person to given additional information". However, in SZLPO , the Full Court construed the expression "additional information" to mean "information additional to information previously given to the Tribunal by the invitee": [99] --- [100]. In SZLPO , a Tribunal officer telephoned a detention centre regarding possible discrepancies in the date stamp on faxes received from them. Because this constituted an invitation for information to a person who had not previously given information to the Tribunal, the Full Court considered the telephone enquiry made did not attract the regime imposed by s 424(3): [133]. In the present case, applying the decision of the Full Court in SZLPO , the enquiry of the uncle of the appellant did not constitute an invitation to a person for "additional information" because the uncle had not previously given any information to the Tribunal. The facts which confirm that this is so are as follows. As set out by the Federal Magistrate (at [43]), the Tribunal had received from the appellant a completed "Appointment of Representative --- Appointment of Authorised Recipient" form, on which the appellant indicated that his "representative/authorised recipient" was his "aunt". On 11 December 2008, the Tribunal received a letter from the aunt, stating that the appellant could not attend the hearing scheduled for 6 January 2009 because he had been taken into police custody, and requesting a postponement of the hearing. On 12 December 2008, an employee of the Tribunal telephoned the appellant's uncle (who it appears at that time was incorrectly described as the authorised recipient), and asked for evidence from police that the appellant had been taken into custody (see AB 111). I attempted to ring the AR to tell her this but the answerer said 'wrong number' and hung up. I tried calling again, but there was no answer so I left a message with the answering service. On 24 December 2008, the appellant's uncle telephoned the Tribunal and advised that his nephew had been released on bail, and that he would therefore be able to attend the hearing as originally scheduled for 6 January 2009 (see AB 114). I am satisfied, in these circumstances, that the concession previously made on behalf of the Minister may now be withdrawn. In light of the facts and the decision in SZLPO, the telephone call to the appellant's uncle should not be construed as an invitation to a person for "additional information". Consequently, s 424 had no application to that telephone call and request for information. In any event, if that be considered incorrect, (for example because the uncle should be taken as the representative of the aunt, who had previously given information) I further consider that the Federal Magistrate was correct in refusing on discretionary grounds relief for the jurisdictional error made. In SZKGF v Minister for Immigration and Citizenship [2008] FCAFC 84 and SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152 , Full Courts of this Court have recognised, by reference to the authorities there referred to, the existence of a discretion of the Court to refuse relief where a "constitutional writ" is sought under s 75(v) of the Constitution of Australia (Cth) and s 39B of the Judiciary Act 1903 (Cth). In SZKGF v Minister for Immigration and Citizenship FCAFC 84 at [8] the Court considered that the discretion not to grant relief might be exercised where there has been "no practical injustice". In SZIZO v Minister for Immigration and Citizenship 172 FCR 152 at [97], Lander J (with whom Moore and Marshall JJ agreed) considered that it should only be in "exceptional circumstances" that a Court should refuse to issue the constitutional writs once breach of an imperative statutory obligation has been determined. In a case such as the present, as the Federal Magistrate found, the consequences of the "invitation" to the uncle in terms of the proper conduct of the hearing before the Tribunal were nil or minimal. At [82], his Honour noted that there is no impact at all on the Tribunal's review because subsequently the applicant attended the Tribunal hearing and so took up the opportunity to present his evidence. There was no "practical injustice" to the appellant. This may be considered an "exceptional circumstance". Therefore, to the extent that it might be necessary to consider the question of the exercise of discretion by his Honour, I do not consider that the exercise of discretion by his Honour is miscarried. It is well understood in any event, that an appeal court should be slow to interfere with the exercise of a discretionary judgment by the Court below: House v R (1936) 55 CLR 499. Further the decision record of the Tribunal does not reveal any other jurisdictional error. The appeal should be dismissed with costs. The orders shall be: The appeal is dismissed. The appellant to pay the first respondent's costs, fixed in the sum of $3,100.00. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker.

appeal from federal magistrate no appealable error appeal dismissed migration

In that judgment his Honour found certain claims in a patent application made by the applicants (Australian Patent Application Number 748263) to be not novel in the light of another patent called the Bennett Patent (Australian Patent Number 633469). His Honour found that the patent application could not proceed to grant insofar as it contained the claims he found not to be novel. 2 The applicants seek leave to appeal for the purpose of challenging his Honour's finding that the Bennett Patent deprived the relevant claims of novelty. They propose to challenge each of two bases upon which his Honour found that the Bennett Patent deprived the claims of novelty. It is not necessary for the present application for me to descend into the detail of those matters. The present application for leave to appeal arises under s 158(2) of the Patents Act 1990 (Cth). It is not opposed. The principles to govern consideration whether leave should be granted in a case such as the present were recently stated by a Full Court of this Court in Pfizer Corporation v Commissioner for Patents [2006] FCAFC 190 ; (2006) 155 FCR 578, especially at paragraphs [7] to [12]. 3 In the present case it is argued that the refusal of leave would deprive the first applicant of the opportunity to obtain the grant of a patent conferring a broad monopoly. That is so because his Honour's decision is final for the applicants in the sense that, if they are not permitted to appeal, the patent application will not proceed to grant unless the claims are amended in accordance with his Honour's orders. The effect of such amendments would be to significantly narrow the scope of the claims. It is also argued that, as the proceedings before his Honour were conducted as a hearing de novo, his Honour's judgment represents the only consideration of the evidence and submissions to date by any tribunal, judicial or otherwise. 4 In any event, his Honour's judgment represents the first determination by any tribunal that the claims in question are not novel and the first judicial determination of any kind in relation to the patent application. Accordingly, it is argued, it cannot be said that it is 'clear, beyond doubt' that there was no error in his Honour's reasoning. I am satisfied that these are cogent arguments in support of the application for leave to appeal. I am fortified in that conclusion by the fact that there is no opposition to the application for leave to appeal. 5 Costs of the present application are not sought. (2) There will be no order as to costs.

patent application decision final in effect not clear beyond doubt that there was no error. leave to appeal

2 The Applicant arrived in Australia on 2 August 2006 on a temporary business visa. For that purpose he utilised a Chinese passport which had been issued to him in January 2005. On 28 August 2006, with the assistance of a migration agent, he applied to the First Respondent ("the Minister") under the Migration Act 1958 (Cth) for what is known as a protection visa. 3 The protection visa application was refused by a delegate of the Minister. That decision was later affirmed by the Refugee Review Tribunal ("the Tribunal"). On 31 January 2008, for reasons which were then published, an application for the judicial review of the Tribunal's decision was dismissed by the Federal Magistrates Court. 4 On 22 February 2008, the Applicant filed an application for an extension of time within which to appeal against the decision of the Federal Magistrates Court. Such an application was necessary because the time period within which, as of right, an appeal may be instituted from such a decision is within twenty-one (21) days from the date when the judgment appealed from was pronounced: O 52 r 15(1)(a), Federal Court Rules . The applicant fell outside that period by one day. 5 Strictly therefore, the question which falls for determination is whether or not an extension of time ought to be granted? 6 Were I minded to grant an extension, the Minister, with respect very properly in the circumstances, was content that the appeal be determined instanter with the submissions made on the extension application in respect of the merits of the appeal being treated as submissions made on the appeal. 7 Whether or not to grant an extension of time within which to appeal is a matter for the exercise of a discretionary power conferred by O 52 r 15(2). The terms in which that rule confers the discretionary power are such that the only consideration which is expressed to be relevant to its exercise is that "special reasons" must exist. Obviously enough, those "special reasons" must be found in the circumstances of the particular case. Something in the circumstances of one case that provides a "special reason" distinguishing that case from the general position may not when considered against the different context of the circumstances of another. The occasion for the exercise of the power is thus flexible. In Jess v Scott (1986) 12 FCR 187 , at 196 the Full Court, after a review of authority, repeated a cautionary note which had earlier been sounded against the entanglement of a discretionary power to relax the requirement of a general rule, " in a web of rules spun out of the Court's discretionary decisions ". 8 This cautionary note sounded, factors to which it is nonetheless usual to have regard are the length of the delay in compliance with the specified time for the lodgement of a notice of appeal, the explanation, if any, for the delay, what prejudice, if any, might be occasioned by the grant of an extension (although mere absence of prejudice is not determinative) and the merits of the proposed appeal. 9 The Applicant was represented (using the relevant letterhead as a guide) by a dual qualified solicitor and migration agent in the proceedings before the Tribunal and by that same person, acting in her capacity as a solicitor, as well as counsel in the proceedings before the Federal Magistrates Court. He appeared on his own behalf in the application to this Court, assisted by a Court appointed interpreter. 10 The Applicant exhibited a draft notice of appeal to his affidavit which supported the application for an extension of time. He did not in that affidavit offer any explanation for his failure to lodge the notice of appeal within the time prescribed by the rules. He did though, again with the assistance of an interpreter, give oral evidence in support of his application. He was cross-examined by counsel on behalf of the Minister. 11 In the course of his oral evidence the Applicant stated that he did not understand English at all. I have no doubt, from my observation of him then and otherwise in the course of proceedings, that this is true. He related that, not long after the decision of the Federal Magistrate, his lawyers had requested further funds, that he had no money and that he had tried to raise funds from a friend for the purpose of meeting this request without success. It was put to him that he knew that that he had 21 days to come to this Court. His response, frankly given and which I thought was an honest one, was that this was not what his then lawyers had told him but rather that he had been told by them "don't go past the 21st". The latter I took to be a reference to the 21st of February. 12 The Applicant's lawyers' advice was accurate as to when the prescribed appeal period expired and was furnished in suitably imperative terms but, at least to his recollection, it lacked an explanatory quality as to why it was important that he ought not to "go past the 21st". Precisely how long after the Federal Magistrates Court's decision he was given this advice was not made clear in the course of his evidence. 13 It is also relevant to note that the applicant's protection visa application disclosed that he had received but 6 years of primary school education in China, that his listed occupation was "unskilled worker" and that he had followed either that calling or, earlier, that of farmer in the course of his working life in that country. He is thus not only illiterate in English but also has limited formal education and no occupational background which might give him at least some insight into why it might be, in a judicial system, that the imperative quality which attended his then lawyer's reference to 21 February related to a statutory time limit. There can be no doubt that the applicant wanted to challenge the decision of the Federal Magistrates Court as soon as he became aware of it. Further, it seems inherently likely that, within the 21 day period, he was aware he had a right so to do. I mean no disrespect to him in expressing the opinion that there is a need though, given his illiteracy in English, limited education and occupational experience to guard against imputing to him too sophisticated an understanding of the conditions which attended his right of appeal. 14 In WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 , at [7] the Full Court gave a reminder that the purpose for which the discretion to extend time is conferred is to do justice between the parties observing of an example where the delay was short and no injustice would be occasioned to a respondent that justice would usually be done if the extension of time were granted. 15 There could be no shorter delay than that presented in this case. No prejudice to the Minister was asserted. In such circumstances the question of the applicant's prospects of success in the proposed appeal has a determinative quality in relation to the exercise of the discretion to extend time. 16 Only one ground of appeal is specified in that draft notice of appeal. I persecuted by the Chinese authorities. I presented the documents: "Labour Reform Relief Assessment Form" and "[Named] People's Hospital Diagnosis" issued by the official authorities were not accepted by the Tribunal. I think the Tribunal has bias against me. The Tribunal didn't take my claims into account. The Tribunal fell into jurisdictional error. That does not mean that it fails to state a ground of challenge known to law. The Minister apprehended that the essence of the desired appeal was that the Federal Magistrates Court had erred in failing to set aside the Tribunal's decision on the basis that a reasonable apprehension of bias on the part of the Tribunal had been shown. This seems to me to be a fair way to approach the matter, especially having regard to the ground of review particularised in the amended application lodged in the Federal Magistrates Court. The Tribunal fell into jurisdictional error in that the Tribunal denied the applicant procedural fairness by reason of there being a reasonable apprehension of bias. (b) The findings of fact to which the fair-minded and informed person might reasonably have regard in forming the apprehension include: 1. The finding that the applicant has learned a few basic facts about the movement (that being Falun Gong). 2. The finding that the applicant had no apparent knowledge or understanding of the philosophy of Falun Gong. 3. The finding that the applicant had no apparent knowledge or understanding of how it was that practising Falun Gong achieved the benefits and outcomes claimed by practitioners. 4. The applicant had no apparent understanding of the key concept of "truthfulness, benevolence and forbearance". 5. The finding that the applicant had ample opportunity at the hearing to demonstrate his knowledge and/or understanding of Falun Gong. 6. The applicant's discussion of Falun Gong was trite and shallow. 7. The finding that the applicant's account shows that he had given seemingly low priority to Falun Gong in Australia. 8. The finding that the Applicant had changed his evidence in relation to why he had stopped exercising in a park. 9. The finding that the applicant's claim to have participated rather than just observed a singing performance in support of withdrawing from the Communist Party had evolved in response to the Tribunal's questions. 10. The finding that there was a change in evidence in relation to the applicant's contact with Falun Gong practitioners in Australia. 11. The finding that the information contained in the purportedly corroborative documents of the applicants claim as to having been sent to labour reform for detention for one year and suffered injury whilst detained are not genuine and that the Tribunal gives no weight to the documents. 12. The finding that the applicant's failure to advise the Department of the purportedly corroborative documents and the conclusion that the applicant did not hold the documents in October 2006 and that he concocted this claim as to having held the documents at that time. 13. The findings in relation to the document from the [the particular named] People's Hospital to the effect that as the document does not show how the injury came about it went against the claim that he was injured in the way he described. 14. The findings in relation to the applicant's differing statements as to his recollection of one of the names of the policeman who had struck him in May 2002. 15. The findings that the explanation by the applicant as to what happened to the persons who were detained and assaulted with him in May 2002 changed during the hearing thus suggesting that the applicant was fabricating claims and details as he gave evidence at the hearing. 16. The findings in relation to the two day difference appearing in the Labour Reform Relief Assessment Form and the finding that the applicant had dissembled in relation to the date of his detention. 17. The finding that the Tribunal's conclusions were reinforced by the applicant's arrangements to depart China. 18. The finding that there was a difference in the claims made in relation to how the applicant obtained his passport, such that it supported a finding that the applicant was fabricating claims and details as he gave evidence at the hearing. 19. The reliance on the passport being stated as having been issued on 21 January 2005, when the applicants claim was that the passport had been illegally obtained and the Tribunal elsewhere in the Decision accepted the prevalence of the irregular or improper issue of documentation. 20. The rejection of any need to consider whether the applicant or his wife had to get the assistance of a "connection" to get his passport on the basis that the Tribunal did not accept that the applicant was a Falun Gong practitioner known to the authorities. Yet the Tribunal relied on the applicants travel arrangements to find reinforcement for its conclusions concerning his Falun Gong practice. 21. The finding that the Tribunal did not accept that the applicant has had any association with the Falun Gong movement in Australia or has practised Falun Gong in Australia despite, and the failure to have regard to the evidence from the applicant's migration agent that she only represents applicants who claimed to have been Falun Gong practitioners on referral from known Falun Gong practitioners in Australia. Though the Applicant uses the bare word "bias" in his draft notice of appeal, there is nothing in the evidence before the Federal Magistrates Court or in any other evidence relied on in the extension of time application which would provide any reasonable prospect of successfully impeaching the Tribunal's decision on the ground of actual bias. 20 Prior authority counsels that to overturn a decision even on the basis of apprehended bias is no light thing: Re Lusink; Ex Parte Shaw (1980) 55 ALJR 12 , at 14B (Gibbs ACJ); s 140 (2) of the Evidence Act 1995 . It is also salutary to remember that the (in this case) administrative officer in respect of whose decision such an allegation is made is not heard from when the merits of that allegation fall for hearing and determination. 21 The decision made by the Tribunal was administrative, not judicial, in character. The governing principle is not in doubt, nor was it below, as the reasons for judgment of the learned Federal Magistrate reveal. Further, it was accepted in Minister for Immigration and Multicultural Affairs v Jia that such a failure would extend to cases in which apprehended bias is established. However, the rule with respect to apprehended bias, as it has developed in relation to the judicial process, is not based solely on the concept of natural justice. Its development is also referable to the need to maintain confidence in the judicial process. Thus, the rule as to apprehended bias, when applied outside the judicial system, must take account of the different nature of the body or tribunal whose decision is in issue and the different character of its proceedings. Moreover ... regard must be had to the statutory provisions, if any, applicable to the proceedings in question, the nature of the inquiries to be made and the particular subject-matter with which the decision is concerned. (Internal footnote references omitted). That formulation owes much to the fact that court proceedings are held in public. There is some incongruity in formulating a test in terms of "a fair-minded lay observer" when, as is the case with the Tribunal, proceedings are held in private. Perhaps it would be better, in the case of administrative proceedings held in private, to formulate the test for apprehended bias by reference to a hypothetical fair-minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias. Whether or not that be the appropriate formulation, there is, in our view, no reason to depart from the objective test of possibility, as distinct from probability, as to what will be done or what might have been done. 24 Applying that test to the circumstances of this case, I have reached the conclusion that the learned Federal Magistrate erred in dismissing the challenge to the Tribunal's decision. The explanation of that conclusion requires an analysis in some detail of the nature of the claim for a protection visa made by the Applicant, of how the Tribunal dealt with that claim and of the reasons for judgment below. 25 At the heart of the Applicant's visa claim was his asserted adherence to the tenets and practices of the Falun Gong movement, his consequential experiences in China since July 1999 when that movement became the focus of what he stated was a campaign by the public security authorities to eradicate it and an asserted, consequential fear of persecution in the event of his return to China. He related his experiences in his visa application and related supporting materials as well as in oral evidence before the Tribunal. 26 Two of these alleged experiences in particular should be noted. 27 The applicant stated that he received a beating at the hands of the police in May 2002 in which he was wounded in the head by a three legged bar stool thrown at him. A sequel to this, he stated, was his admission to a named People's Hospital where his wounds were sutured. 28 The other experience alleged by the applicant was his incarceration in "[a named] Reform Through Labour Camp" for a period of one year on and from his arrest in March 2003 while practising Falun Gong at home. 29 It is necessary to highlight these alleged experiences because, by the time the visa application refusal decision came to be reviewed by the Tribunal, the applicant's account of these experiences was supported by the Chinese language original and an accompanying English translation of a hospital report and of a "Labour Reform Relief Assessment Form". Each of these, prima facie , offered at least some corroboration of his account. 30 The Tribunal had before it generic country information from the Department of Foreign Affairs dated 5 June 2000 and 7 October 2004 the effect of which was that, as a general comment, the experience of the Australian Embassy in China was " any official document " (the 2000 advice) or " many official documents (especially identity documents) " (the 2004 advice) could either be bought or forged. 31 The Tribunal came to give no weight to the corroborating information in the original documents based on the time when they came to be produced, relative to the initial lodgement and determination of the visa application and on inferences which it drew from the documents themselves and from the Applicant's oral evidence concerning the documents and the events related in them at the hearing it conducted. 32 Albeit at the price of a considerable elongation of these reasons for judgment, but so as to give context to the conclusion which I have come to reach, it is necessary to set out the passage from the Tribunal's reasons wherein it records its findings and reasons in respect of the events described by the applicant and the original documents which he had stated related to those events. It is also necessary to set out certain excerpts from the transcript of the hearing before the Tribunal, which was exhibited to an affidavit of his solicitor which was filed and read in the Federal Magistrates Court proceedings. So as to preserve the Applicant's anonymity in these proceedings I have deleted not only his name but those of named associates and particular institutions from the reasons, hearing excerpts and documents which I reproduce in these reasons. The Tribunal consulted sources which show that there is a high level of document fraud in China: any official document can be either bought or forged in China, and irregular or improper issue of documentation is widespread. While the Tribunal acknowledges as pointed out by the adviser that this information does not mean that all documents from China are fraudulent, this information viewed in conjunction with concerns outlined below, lead the Tribunal to conclude that the information in the documents is not genuine and gives no weight to the documents. At the hearing the applicant stated that in September 2006 he had asked his wife to send evidence of his persecution, his wife mailed him the documents and he had received the documents in October 2006. He stated he did not have the envelope they came in. When the Tribunal asked why he had not then provided the documents to the Department (the delegate's decision was only made on 6 November 2006) he merely stated because he had a representing lawyer. However, he did not state that his lawyer failed to provide the documents to the Department. The applicant apparently wanted to get the documents sent from China to support his application. His failure to then advise the Department about the documents, does not support his claim that he had received the documents in late October 2006. The documents were translated on 27 December 2006 and produced to the Tribunal on 5 January 2007. A statement after the hearing indicated he had to work to save up to pay for a translation and was able to do so in December. However, this did not explain why he did not advise the Department or Tribunal that he had documents which he had yet to get translated. The applicant's claimed lack of urgency in translating the documents casts doubt on his claim to have held them since late October 2006. The Tribunal concludes that the applicant did not hold the documents in October 2006 and that he concocted this claim. This casts doubts on his credibility. The Chinese document titled 'Labour Reform Relief Assessment Form' by the 'Unit: Education Team' dated 4 March 2004, contains inconsistent dates. It indicates the duration of reform was '1 year from 6 March 2003 to 6 March 2004'; and elsewhere indicates that he was given one year Labour Reform on 4 March 2003. The applicant could not explain the inconsistent dates. The inconsistent dates raise concerns about the information contained in the document and suggest that the information is not accurate. The Chinese document titled '[Named City] People's Hospital Diagnosis' dated 13 May 2002, concerning an examination of the applicant on 13 May 2002, only describes treatment of a head injury. The document does not provide a cause, and so does not show how the injury came about. The Tribunal does not accept that the Chinese document concerning medical treatment shows that he was injured in the way he described. Incident in May 2002 At the hearing the application described the incident in 2002 (his application indicated May and the medial document indicated treatment for a facial injury on 13 May 2002) and the aftermath. He described how a police van pulled up when he and 3 other practitioners were exercising next to a factory wall, the police saw that they were practising Falun Gong, and they were arrested and taken to the police station. He stated a policeman Sun Hong Jun hit him, which differed from the application where he indicated Li Hon Jun. The applicant's explanation for the discrepancy given at the hearing that he cannot remember as it was many years ago, or explanation provided after the hearing that he was quite nervous, is at odds with his earlier evidence at the hearing that he knew the policeman's name because he had known the policeman previously. The applicant explained that because he was injured with a head wound, the police dropped him off at a hospital for treatment, left him there, and contained his wife to collect him. As indicated above, the Chinese document titled '[Named City] People's Hospital Diagnosis' dated 13 May 2002, concerning an examination of the applicant on 13 May 2002, describes treatment of a head injury. The document does not provide a cause, and so does not show how the head injury came about. The Tribunal asked about the other practitioners with whom he had been exercising. The applicant's evidence concerning the other 3 Falun Gong practitioners changed during the hearing. At first he stated he did not know what happened to the other 3 Falun Gong practitioners; then that he did see them afterwards and they had bee beaten; and then that he had heard them being beaten and yelling; then that he had no spoken to them as they were scared; and then that he did not speak to them as he was at home injured for over a month. The applicant's changing evidence, together with other instances when he changed his evidence during the hearing, suggested that the applicant was fabricating claims and details as he gave evidence at the hearing. The applicant stated that he was told by one of the group that another, [Person A], could not be found, but he did not know whether [Person A] disappeared the night of the detainment and he had not asked. The applicant's apparent lack of interest in the disappearance raises doubts, as it is reasonable to consider that this event was of some significance to the applicant and that he would have had an interest in how the police had dealt with the people who had been exercising with him. Accordingly, the Tribunal asked further questions about this connection with his fellow practitioners. Earlier in the hearing the applicant explained that in China he sometimes practised the exercises outside with other people he knew; he must just a few practitioners who lived close to him, and he learnt the exercises before Falun Gong was banned as they did them together; otherwise he described no other involvement with the Falun Gong movement. At the hearing the Tribunal indicated he had earlier said he exercised with people who lived close to him, that night he was doing Falun Gong exercises and he knew the authorities were cracking down on Falun Gong, so was it the case that he knew and trusted the people he was exercising with and they lived close to him. The applicant's answer appeared evasive: he stated he felt that doing the exercises was beneficial to health. He then stated that the 3 practitioners were not well known to him, and did not live close to him. However, in light of his evidence that they were not well known to him and did not live nearby, the Tribunal considered he did not satisfactorily explain how the group arrangement came about. The applicant's change in evidence, together with other instances when he changed his evidence during the hearing, raises concerns that the applicant was fabricating claims and details as he gave evidence at the hearing. Whilst the applicant's subsequent evidence was that he did not know the other practitioners well having only exercised on 2 nights in this way, he nonetheless remembered the name of [Person A] over 4 years later and the Tribunal considers that in light of his description of the incident (being beaten and hearing the others yelling in another room) it is reasonable to consider that he would have had an interest in how the police had dealt with the people who had been exercising with him, and sought further details about [Person A] from the practitioner who had informed him. Incident in March 2003 The third incident related by the applicant was in March 2003 when he was detained, taken directly to a labour camp without trial, and spent 12 months in detention. Thereafter he was required to write weekly reports, which he sometimes did. At the hearing he stated he was arrested on 4 March 2003 and was detained for 2 days short of one year. The Tribunal queries why he remembered this and he stated he remembered this as when he was in detention he had counted the days. However, in response to the Tribunal's suggestion that this meant he was released on 2 March 2004 he had dissembled: he did not remember, he had done nothing wrong, his mind had gone numb. Later in the hearing he stated he had been released on 6 March 2004 (2 days after the date of the assessment form) which would suggest that he was detained for 2 days more than a year. The applicant's change in evidence, together with other instances when he changed his evidence during the hearing, raises concerns that the applicant was fabricating claims and details as he gave evidence at the hearing. The applicant indicated in the application he left the labour camp in April 2004. He subsequently indicated at the hearing he left in March 2004 and he produced a document which showed detention until March 2004. In a statement after the hearing he indicated he did not know why he wrote April 2004 in the application. His explanation did not satisfactorily explain the differing dates. The discrepancy, concerning a significant occurrence in his life, and in light of his evidence at the hearing that when in detention he was counting the days, together with other aspects of his evidence, casts doubt on his credibility. The application showed that the applicant's older daughter was born on 4 September 2004. At the hearing the applicant was adamant that he was the natural father and the baby was healthy. However, the applicant claimed to be in a Labour reform camp until 6 March 2004. The applicant stated that a nice warden/guard in the Labour reform camp (after the hearing he named the guard as "Cai") permitted a conjugal visit by his wife. The Tribunal considers this explanation is improbable and does not accept that the child was conceived whilst he was undergoing labour reform in a labour reform camp. The Tribunal considers that the birth of his daughter shows that he was no in a labour camp at the time he claims. The Tribunal concludes that the information in the Chinese document concerning a period of detention is not genuine and gives no weight to the document. The Tribunal finds that the applicant is not a credible witness. The Tribunal considers that the applicant changed evidence during the hearing and fabricated claims and evidence as the hearing proceeded. The Tribunal does not accept that any of the incidents occurred: that he was detained in May 2001 and paid a fine; was arrested in May 2002 and assaulted; was detained in March 2003 and underwent 12 months detention; or any of the details of those claims. In light of these findings and the earlier findings that his level of knowledge is not consistent with that of a genuine Falun Gong practitioner, and that the Tribunal does not accept that he has had any association with the Falun Gong movement in Australia, or has practised Falun Gong in Australia, the Tribunal rejects the applicant's claimed involvement in Falun Gong in China. The Tribunal does not accept the he has practised Falun Gong since 1999. Diagnosis: Head Injury Treatment: appropriate outpatient treatment (8 stitches) [Signature of Treating Doctor] [round seal for Outpatient Diagnosis of the Hospital] Dated on 13 May 2002 Invalid without official seal. The Labour Reform Camp Document "Small Group Assessment: Suggested to be relieved from labour reform in due time. Sub Team Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Team Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Labour Reform Section Opinion: Agreed to relieve him from labour reform. [Signature of person in Charge] 4 March 2004 Decision by Labour Reform Administration Bureau: Agreed to relieve him from labour reform. "MISS BYERS: Just when you were asking the client why did he wait twenty-six days before lodging the application, Mr ... [a successful protection visa applicant] who also has an RRT decision if you want to look up about Mr ... [a successful protection visa applicant] as a Falun Gong practitioner contacted my office before 16th August for Mr ... [the Applicant] to see me. He attended my office on the 16th. TRIBUNAL MEMBER: This is Mr ... [a successful protection visa applicant] or? MISS BYERS: Mr ... [the Applicant]. Mr ... [a successful, Falun Gong practitioner, protection visa applicant] rang because I only take Falun Gong practitioners on referral, I don't take on people who only just walk in off the street, so Mr ... [a successful, Falun Gong practitioner, protection visa applicant] has been to the RRT, he was introduced to me by a reporter from the Epoch Times, so Mr ... [a successful, Falun Gong practitioner, protection visa applicant] rang before 16th August to make an appointment for Mr ... [the Applicant]. Mr ... [the Applicant] attended my office on 16th August. The rest of the time was taken up getting translations done. I think you see the translations are dated 16th August, that's when we requested them. As to what he did in the first ten days, twelve days when he was in Australia I couldn't tell you, but he came to see me on the 16th. TRIBUNAL MEMBER: Thank you. MISS BYERS: It does take time. The forms take forever, especially I'm the only one in the office that actually reads Chinese though I do have Chinese speakers but they don't read and write Chinese, so I actually have to do the romanisation, opinion, and decipher the Chinese to complete the forms, so it takes me a day or two to do that. APPLICANT: I went a few times then there was someone on the side taking photos. They said they're spies so I wouldn't dare to go any more. TRIBUNAL MEMBER: I did laugh, it's not actually amusing. How did they say to you that they were a spy? APPLICANT: Some passer-by said that. And also when I telephoned home my wife said the PSB is still going to my home to investigate. TRIBUNAL MEMBER: So your evidence was, is it, that your photo was taken by someone in that park and a passer-by said that is a spy? APPLICANT: No, I was doing exercise there then I saw someone taking photo towards the practitioners. TRIBUNAL MEMBER: And how did you come to the conclusion that this was a spy? APPLICANT: Then at work I told someone what happened, they said stop going. TRIBUNAL MEMBER: Did the person who took the photo say anything to you? APPLICANT: No. TRIBUNAL MEMBER: How often have you been to this park? You've said a few times. How often is a few times? APPLICANT: Roughly about six or seven times. 38 Evidence was also given to the Tribunal in the course of the hearing by the Applicant as to the procuring for him of his passport by family and friends. Having considered this account and differences between it and that in the protection visa application in relation to the issuing of the passport, the Tribunal concluded that the evidence which he gave at the hearing as to when and how the passport was issued was concocted. 40 In the summary which the Tribunal offered at the end of its reasons the following statement appears, "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia. The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner, protection visa applicant] shows that he is a Falun Gong practitioner ". The Tribunal expressly rejected the Applicant's claim that he had practised Falun Gong in China since 1999, that he had been detained and assaulted by police and paid a fine and undergone 12 months detention in a labour reform camp. 42 The learned Federal Magistrate conducted a methodical analysis of each of the findings of the Tribunal set out in the judicial review application. His Honour reached the conclusion that each of these findings was reasonably open to the Tribunal and demonstrated a logical and rational approach to the issues raised for consideration before the Tribunal. Seemingly (reasons for judgment, [73]), there was a concession before the Federal Magistrate's Court that, individually, each of the particularised findings in the judicial review application might not give rise to an apprehension of bias. This concession, His Honour thought, revealed the flaw in the Applicant's case, remarking, "As bias could not be demonstrated in relation to discrete matters which were particularised, then the combination could not amount to bias either" (reasons for judgment, [73]). 43 In his submissions as to the merits of the appeal the Minister essentially adopted the reasoning of the Federal Magistrate. Like his Honour, the Minister opined that, in reality, the judicial review application was a solicitation impermissibly to conduct a review on the merits of the application for a protection visa application. 44 That it is no part of the jurisdiction consigned to the Federal Magistrates Court to reach its own conclusion with regard to the merits of the applicant's protection visa application is unquestionably correct. A fortori that is so in this Court on appeal. It is axiomatic that the limits of the role consigned to a court conducting the judicial review of an administrative decision must firmly be kept in mind and respected in a principled way. The definitive, contemporary, Australian exposition in this regard is that offered by Brennan J (as his Honour then was) in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1989-1990) 170 CLR 1 , at 35-36. "The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone. Rather, it was objectively to examine in their totality the findings which the Tribunal had made in reaching its conclusion and the reasons for those findings in light of the material before the Tribunal, including the way in which those reasons were expressed. Viewed in this context, collectively and cumulatively, not individually, what this was said to reveal was a tendency or predisposition towards a particular result, an objective possibility of bias. This is the end to which paragraph "a" of the particulars given under ground 1 of the judicial review application is directed. 46 There is no necessary antipathy between the advancing of such an apprehended bias case and a concession that, viewed in isolation, one of many findings of an administrative tribunal might reasonably have been made. First, whilst it is necessary to demonstrate that the circumstances are such as would give rise to the relevant apprehension, the apprehension itself is not as to the fact or likelihood of a lack of impartiality, but of a possibility (real and not remote) thereof: Ebner at 345 at [7]. 18 Secondly, the identity, nature and function of the decision-maker are important influences on the content of the requirement to conduct the relevant task with the observance of procedural fairness by not being tainted by the appearance of disqualifying bias: Laws at 90; Ebner at 343-44; Jia Legeng at 563-64. 19 Thirdly, the place of a decision-maker such as the Tribunal here should be recognised as different from a judge in open court: Jia Legeng at 563-64; Laws at 70-71; Ebner at 343-44. The Tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The Tribunal here must investigate the facts for itself unaided by counsel presenting the parties' cases, to the degree and extent it thinks appropriate. The Tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. " (Internal footnotes omitted). It was submitted by counsel who appeared on behalf of the Minister, who did not appear in the proceedings below, that the Applicant's apprehended bias case as advanced before the Federal Magistrates Court was not directed to the manner in which the Tribunal had conducted the hearing it afforded the applicant. The way in which the apprehended bias case is particularised in the judicial review application supports such a submission. That impression is reinforced by regard to the Federal Magistrate's reasons for judgment. It is apparent from these that, though particular passages from the Tribunal hearing were highlighted in course of oral submissions for the applicant, that was to the end of giving context to a case that, objectively, the Tribunal's findings and reasons gave rise to the possibility of bias in the decision to confirm the refusal of his protection visa application. Thus the complaint here is with what is said to be an objective possibility of bias arising from the way in which the Tribunal has dealt with the material before it, not with or not in addition to the conduct of the Tribunal at the hearing. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. That conclusion does not carry with it the additional conclusion that the decision-maker was in fact biased. It is whether there is such an objectively discernable possibility, not the thought processes of the decision-maker, which must be the focus of inquiry. 50 There is an inherent tension between a finding on the one hand that "The Tribunal does not accept that the applicant is a Falun Gong practitioner at all, or has any association with the movement in Australia ," (emphasis added) and, on the other that " The tribunal does not accept that the applicant's apparent association with [a successful, Falun Gong practitioner , protection visa applicant] shows that he is a Falun Gong practitioner" (emphasis added). 52 It has been said that there is no error of law merely in making a wrong finding of fact. Likewise, it may be accepted that an administrative tribunal is not obliged to refer in its reasons to every item of evidentiary material placed before it and that its reasons should not be read narrowly and with an eye for error. In this case, the Applicant did have an association with a particular individual. So much was "apparent" to the Tribunal. Further, the Tribunal knew, because it was expressly told, that this particular individual had been accepted by the Tribunal (differently constituted) as a member of the Falun Gong movement in Australia. It was not correct to find that the Applicant had no association at all with the movement in Australia. The Applicant's assertion of his association with the known practitioner was corroborated by the evidence from his migration agent. The Applicant's evidence was that the nature of the association was not that of social acquaintance but rather that of fellow adherents. His migration agent's evidence also at least raised for consideration an inference that this was indeed the nature of the association. "Objectified" though through the prism of what a fair-minded and informed observer would reasonably apprehend: Jia Legeng at 564; Johnson v Johnson (2000) 201 CLR 488 , 493, it is quite possible to regard this error of fact and the omission to consider the ramifications of the asserted nature and quality of the association, having regard to the circumstances of the referral, as an error and omission in respect of an "inconvenient truth". 53 Recalling, at the level of objective possibility, the three elements described by Hayne J in Jia Legeng at 564, what emerges, in my opinion, is the possibility that the Tribunal had a pre-conceived view that the applicant was not a person who feared persecution on the basis of adherence to the practice of Falun Gong, applied that preconception to the question of whether the applicant satisfied the criteria for the grant of a protection visa and did so notwithstanding that there was evidence, at least worthy, prima facie , of credit, that the applicant not only was , not "apparently was", associated with an Australian resident Falun Gong practitioner but had been referred by that person to a solicitor and migration agent whose integrity the Tribunal had no reason to doubt, and who professed to take "Falun Gong" cases only on referral from known Falun Gong practitioners, for the purpose of seeking from Australia the very same refuge from a claimed fear of persecution as the Tribunal itself had regarded as well founded in the case of that referrer. 55 The Tribunal was faced with a man of rudimentary education who it found knew the basic tenets of Falun Gong, its founder, its principal text and its five exercises, who claimed benefit from their practice, who claimed to have been prevented by official persecution from readily associating in China with fellow adherents but did so at an asserted price of beating and imprisonment and who it found was unable to engage in a detailed philosophical discussion about the movement. 56 A disquiet best illustrated by analogy emerges. There must be many professed Christians who know little more than that the principal prophet of the Christian faith is Jesus who claimed to be the son of God, born of a virgin, Mary, that its Holy Book is the Bible (even though they rarely, if ever, read it), that central tenets of the faith are that a Christian must love others just as Jesus had loved them meaning that he must do unto his neighbour as he would have the neighbour do unto him, that Jesus had been crucified dead and buried for teaching this but rose from the dead in proof of the eternal truth of his claim and teaching and who gain comfort from adhering to these central tenets and mixing with like minded people but who are unable to engage in theological debate. If such a person claims to have a fear of persecution because of an asserted Christianity is he to be dismissed as an unbeliever? It is no part of the price of engendering "satisfaction" that an applicant has a well founded fear of persecution on the basis of religious belief that he or she would pass an examination in divinity studies. 57 Disquieting though the Tribunal's conception of what is necessary to evidence a religious belief may be, the conclusion which was reached in relation to this applicant's knowledge of Falun Gong may not, viewed in isolation and in the sense described by Gibbs J (as he then was) in Buck v Bavone [1976] HCA 24 ; (1976) 135 CLR 110 at 118-119, be so unreasonable that no reasonable tribunal could have so concluded. Viewed against the broader context of the way in which the Tribunal has dealt with other issues, the deference that would ordinarily be conceded on judicial review to such a conclusion is challenged by a distinct, objective possibility of a belief on the part of the Tribunal that someone could not be a Falun Gong practitioner without an ability, irrespective of educational attainment, to engage in philosophical discourse about the movement, that this belief was brought to the determination of the application and that it was applied without giving consideration to the nature of the applicant, the knowledge of the movement and, particularly, an association with an Australian resident Falun Gong practitioner that he in fact had. 58 Any assessment of the impact, in terms of an apprehended bias challenge, of the Tribunal's treatment of the Hospital Document and the Labour Reform Camp Document must be guided by the cautionary note sounded by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 ; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1165 at 1174, [49]. "[49] In a dispute adjudicated by adversarial procedures, it is not unknown for a party's credibility to have been so weakened in cross-examination that the tribunal of fact may well treat what is proffered as corroborative evidence as of no weight because the well has been poisoned beyond redemption. It cannot be irrational for a decision-maker, enjoined by statute to apply inquisitorial processes (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 s430 of the Act. But it is not irrational to focus first upon the case as it was put by the appellant. It is possible to discern differences of detail in respect of an event or experience both within the applicant's evidence at the Tribunal hearing and as between that evidence and that given in other material submitted either with the initial protection visa application or later. Such differences certainly could provide a basis for a finding about the applicant's credibility and an affording of no weight to seemingly corroborative documents. In relation to the apprehended bias challenge, the factors are certainly not all one way. 60 Yet the Tribunal's findings concerning the credibility of the applicant's account have themselves been influenced by comparison with inferences that the Tribunal drew from an inspection of the Hospital Document and the Labour Reform Camp Document. This interplay in my opinion distinguishes the present case from the position described by McHugh and Gummow JJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 in the passage quoted above. 61 The Tribunal rightly acknowledged, explicitly, that the general information that it had from the Australian Embassy concerning document fraud in China did not mean that all documents from that country were fraudulent. Possession of such information reasonably puts any administrator on guard, but nothing more than that, in relation to particular documents. 62 The Tribunal's perception of the genuineness of the applicant's account of his beating at the hands of the police, as well as of the Hospital Document itself, was expressed to be influenced by the fact that this document did not state a cause for the injury. That is true, but the Tribunal had no material before it as to whether it was the usual practice in this or any such Chinese hospital to record a cause, especially when this would record an injury inflicted on a citizen at the hands of State officials. 63 The Tribunal made much in terms of its credibility findings of the applicant of a difference between the release dates he gave in evidence and the date on the Labour Reform Camp Document. In the course of his oral evidence the applicant had at one stage mentioned 6 March 2004 whereas the Labour Reform Camp Document bears 4 March 2004 dates. 64 A study of that document though discloses that it is not, in terms, a release order but instead appears to be a release submission which passed favourably through a number of departments within the camp on 4 March 2004 as a precursor to release. Again, there was no evidence before the Tribunal which would support any different characterisation of the document. The dates on the document did not provide a reasonable basis for disbelieving the Applicant's account of his incarceration. 65 The September 2004 birth date of one of the Applicant's children and his claim to have been in detention in the labour reform camp until 6 March, or perhaps April, 2004 not unreasonably gave the Tribunal pause for thought about whether his account of being incarcerated should be regarded as credible. However, as I have mentioned, the Tribunal had no evidence concerning the practices and procedures of such camps and whether conjugal visits were possible even if not officially sanctioned. 66 In respect of the credibility findings based on the September birth date and the hospital recording of assault by police as an injury cause, there exists the possibility that the Tribunal has acted on the unarticulated premise of an understanding of Australian, not Chinese, experience, practice and procedure. So to do would not be reasonable. The other possibility, objectively raised, is that bias underpinned those credibility findings. 67 The conclusion reached by the Tribunal as to the Applicant's credibility based on his evidence as to how his passport was obtained does not, in isolation, strike me as unreasonable. The same may be said, again viewing it in isolation, of the conclusion reached by the Tribunal as to the credibility it should afford the Applicant's account of why he desisted with Falun Gong exercising in a park. Equally though, it is by no means impossible, if one accepts the Applicant's account of arbitrary street arrest, beating and incarceration, to accept that a stranger to Australia and its freedoms who had had such experiences abroad might be highly apprehensive about being photographed undertaking his exercises by strangers whom he believed to be foreign agents but other views were reasonably open. 68 The difficulty is that the possibility exists that each of these conclusions was itself influenced by other credibility conclusions which, for reasons which I have endeavoured to detail above, it is objectively possible to regard as giving rise to an apprehension of bias. In such circumstances, it seems to me that the ultimate absence of satisfaction on the part of the Tribunal with regard to the basis of the Applicant's claim for a protection visa must be regarded as tainted by an apprehension of bias. In my opinion, in relation to a visa application the success of which centred on the engendering of a state of administrative satisfaction and in circumstances where, objectively, particular findings can be seen possibly to be tainted by an apprehension of bias other credibility findings which might themselves necessarily be conceded to be reasonably open, even if other views were open, must likewise be regarded as possibly tainted. The objective possibility of all seeming jaundiced to the jaundiced eye is presented. The same possibility exists in these circumstances in relation to the conclusion that the Tribunal came to reach about whether the Applicant was a genuine Falun Gong practitioner. 69 It follows that where I respectfully differ from the learned Federal Magistrate is in the objective assessment of the possibilities raised by a consideration of the whole of the findings made by the Tribunal in the circumstances of this case. Giving due weight to a need not lightly to reach the conclusion, it seems to me that this indeed is a case where an apprehension of bias is reasonably raised. That being so, an extension of time within which to appeal should be granted and the appeal must be allowed. The orders made by the Federal Magistrates Court will be set aside and, in lieu thereof, it will be ordered that the application be allowed with costs, the decision of the Tribunal set aside and the matter remitted to the Tribunal for hearing and determination according to law. The Applicant should have his costs, such as they are for a person who appeared on his own behalf, of and incidental to the application, to be taxed. I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

application for extension of time within which to file and serve a notice of appeal application for protection visa factors to be considered where appeal lodged one day outside required period where explanation for delay not unsatisfactory where no prejudice to respondent where application for extension of time granted appeal from a decision of federal magistrates court where appeal heard instanter whether decision of refugee review tribunal affected by apprehended bias where objective possibility of apprehended bias migration

2 The applicant is the executrix of the estate of Gerard William Coleman who died on 17 March 2006. The applicant claims Mr Coleman was falsely imprisoned in the period 25 February 2003 (when he was first detained) to 9 December 2003 (when Shaw v Minister for Immigration & Multicultural Affairs [2003] HCA 72 ; (2003) 218 CLR 28 was decided by the High Court of Australia): paras 28 and 29 of the Further Amended Statement of Claim ("the FASC"). (2) On 11 December 1969, Mr Coleman departed Australia. (3) On 28 January 1974, Mr Coleman returned to Australia and remained in Australia from that time onwards except for two relatively brief periods: 19 December 1979 --- 13 January 1980 and 19 June 1982 --- 4 December 1982. (4) On 1 September 1994, Mr Coleman became the holder of a Transitional (Permanent) Visa pursuant to reg 4(1) of the Migration Reform (Transitional Provisions) Regulations . (5) On 10 January 2003, the first respondent cancelled the applicant's Transitional (Permanent) Visa pursuant to s 501(2) of the Migration Act 1958 (Cth) ("the Act "). (6) On 14 February 2003, an officer of the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"), as it was then known, notified Mr Coleman that his visa had been cancelled. (7) On 24 February 2003, a delegate of the Secretary of the Department issued a search warrant to John Bernard Robicheau, an officer of the Department, pursuant to s 251(4) of the Act . He formed the view that Mr Coleman was an unlawful non-citizen. (9) On 25 February 2003, Mr Robicheau executed the search warrant and detained Mr Coleman pursuant to s 189 of the Act . The applicant was taken first to Wyong Police Station and then to Villawood Immigration Detention Centre. (10) Mr Coleman was held in Villawood Immigration Detention Centre from 25 February 2003 to 22 August 2005. The period of detention that is relevant to these proceedings is the period 25 February 2003 to 9 December 2003. On and from 25 February 2003 the first respondent and the second respondent did not know within the meaning of section 189 of the Migration Act 1958 and had no cause to reasonably suspect that the deceased was an unlawful non-citizen within the meaning of the said Act . Second because, in any event, his statement of claim does not disclose a cause of action with reasonable prospects of success. This second basis was at the forefront of the respondents' argument and it is convenient to deal with it first. (The applicant submitted to the contrary --- that it is for the respondents to demonstrate that the detention was lawful --- and, although nothing turns on this in the case at hand, I think this must be correct. It would then be apparent that the person was not an unlawful non-citizen and not within that aspect of the operation of s 189. Section 189 is directed not only to cases where an officer knows that a person is an unlawful non-citizen, it extends to cases where the officer reasonably suspects that a person has that status. It follows that demonstrating that a person is not an unlawful non-citizen does not necessarily take the person beyond the reach of the obligation which s 189 imposes on officers. Had it been intended that those who were to be subject to detention by an officer should be confined to those who are in fact unlawful non-citizens, s 189 would have been much simpler. The section would have read, 'an officer shall detain an unlawful non-citizen'. The reference to an officer's state of mind is explicable only if the section is understood as not confined in operation to those who are, in fact, unlawful non-citizens. However. it is not confined to such persons and extends to persons who the officer reasonably suspects to be such. (5) In the present case, the law is now clear beyond argument that the applicant was in truth and at law an "alien" at all material times ( Shaw ) and, not having a valid visa, was therefore an unlawful non-citizen (s 14 of the Act). (6) The short answer to the applicant's case is that the officer was correct in forming the view that the deceased was an unlawful non-citizen --- the officer relevantly "knew" him to be such. In these circumstances, the detention was authorised under s 189 of the Act and the applicant's present application must fail. (7) Furthermore, even if there had been some breach in bringing the deceased into detention or maintaining him in detention, if he was liable to be kept in lawful custody (as he clearly was --- as is clear from the judgment in Shaw ), the deceased was not ever entitled to be discharged from detention but only remanded to some lawful custody: R v Bevan; Ex parte Elias and Gordon [1942] HCA 12 ; (1942) 66 CLR 452, Starke J at 464.5. That is, if Mr Robicheau personally did not "know" or "reasonably suspect" Mr Coleman was an unlawful non-citizen, Mr Coleman is not entitled to pursue an action for wrongful imprisonment but could seek only to be remanded to lawful custody. (8) The decision in Re Patterson is a decision in which the reasons of the majority do not have a single strain of reasoning and which has been described as having "had no precedent value beyond its own facts": Shaw at [34] --- [35], [49]. (9) Indeed, in Ruddock v Taylor , the majority indicated (at [17]) that, in Shaw , a "majority of the Court also held at [39] that Patterson should be regarded as authority for what it decided respecting s 64 of the Constitution and the constructive failure in the exercise of jurisdiction by the Minister . " That is, it should not be regarded as authoritative in deciding what the law was pertaining to identification of who are aliens: Shaw at [34] --- [37]. (10) This is particularly telling given that there is a material factual distinction between the present case and that considered in Patterson . In that case, one member of the majority (McHugh J) posited that a British subject living in Australia at the time of the enactment of the Royal Style and Titles Act 1973 (Cth) in 1973 was not an alien. In the present case, the deceased was not living in Australia in 1973 but had returned to Scotland at that time for about four years after only a two year presence in Australia. Hence, it would seem even on the stated reasoning in Patterson that a majority of the Justices would have been of the view that the deceased in this case was an alien. That this conclusion was the correct result has been confirmed by the decision in Shaw . (11) The Minister contends that there is no basis for contending that the officer who took the deceased into detention failed to hold a reasonable suspicion that the applicant was an unlawful non-citizen even as the law stood in February 2003 (which is not the correct test for the reasons outlined above). What was determinative was the power to detain in s 189 of the Act. That power is not based on the validity or otherwise of the cancellation decision that founds the reasonable suspicion. (14) In the case before this Court, Mr Coleman was detained on 25 February 2003 after the first respondent had cancelled his visa pursuant to s 501 of the Act. The evidence establishes that the officer who detained Mr Coleman (Mr Robicheau) held the view that the deceased was an unlawful non-citizen. The Minister's first contention is that this view was plainly correct and, as such, Mr Robicheau relevantly knew him to be such. There is no change pleaded between 25 February 2003 and 9 December 2003 that would make the lawful detention unlawful. (16) The respondents submit that the cancellation decision of the first respondent, acted upon by Mr Robicheau, resulted in the lawful detention of Mr Coleman. There is no cause of action disclosed by the FASC. In those circumstances the applicant has no reasonable prospect of successfully prosecuting the proceeding: s 31A(2) Federal Court of Australia Act . (It is not necessary for the respondent to establish that the proceeding are hopeless or bound to fail: s 31A(3). ) The FASC should be dismissed. Each officer had been provided with what, on its face, appeared to be a regular and effective decision of the Minister to cancel the respondent's visa. Each officer checked whether the respondent held any other visa. Upon finding that he did not, the officer concerned detained the respondent. It was not suggested that either had acted in bad faith. The conclusion that each reasonably suspected that the respondent was an unlawful non-citizen follows inevitably. 10 On the other hand, the consequence is that the FASC is to be read as if [28] was not there and as if [29] was amended so as to exclude Mr Coleman's actual detention on 25 February 2003 and be confined to his continuing detention up to 9 December 2003. Indeed, counsel for the applicant conceded as much, confining the pleading at [29] to Mr Coleman's continuing detention from 10 March 2003, when Mr Coleman's brother telephoned the Department and spoke to a Ms Cecilia Cheung, informing her that his brother and the whole family first arrived in Australian in 1967 and asking her whether she was aware of a High Court decision about British subjects not being subject to deportation. From that time on, so the argument went, Mr Coleman's continued detention until 9 December 2003 (when the High Court handed down its decision in Shaw ) was, in the face of the decision of the High Court in Re Patterson , unlawful in that the detaining authority was, from that time on, on notice that Mr Coleman first arrived in Australia on 30 October 1967 and it could no longer reasonably suspect Mr Coleman of being an unlawful non-citizen. ... Patterson said nothing about the validity of s 189. One of those four Justices, McHugh J, concluded that Re Patterson had no precedent value beyond its own facts. Third, the idea that Mr Coleman's detention was unlawful from 10 March 2003 until the High Court handed down its decision in Shaw on 9 December 2003 when the applicant effectively conceded that it thereupon became lawful, flies in the face of the principle of the retrospective operation of judicial lawmaking, so that even if Re Patterson changed the law, Shaw changed it back with retrospective operation. It is unnecessary to consider the alternative basis relied on by the respondents, namely, that the applicant's application is barred by reason of a res judicata or issue estoppel. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

cancellation of visa on character grounds unlawful imprisonment whether officer knows or reasonably suspects person is unlawful non-citizen motion for dismissal of application no reasonable cause of action no reasonable prospects of successfully prosecuting application retrospective operation of judicial lawmaking migration law practice & procedure

The trade mark was registered with effect from 29 December 2002. In the proceedings before the delegate, the onus was on the applicant to establish use of the mark within the three year period referred to in s 92(4)(b) of the Act. The non-use period was 15 March 2005 to 15 March 2008 (the 'relevant period'). The delegate concluded that the applicant had not met the onus required and ordered the removal of the mark. The applicant, who was not represented before the delegate, has submitted fresh evidence on this appeal. The issues raised in the appeal are to be considered afresh on the basis of the evidence before this Court, notwithstanding that this differs from the evidence before the delegate ( Pioneer Computers Australia Pty Limited v Pioneer KK (2009) 176 FCR 300 at [23]). The respondent has filed a notice of appearance, but has indicated that it does not propose to take any further action in relation to the appeal. That is, the respondent submits to any order of the Court save as to costs. Mr Shen is the sole director and shareholder of Solar International Proprietary Limited, trading as Solar Sports. He says that he is responsible for the day to day business activities of the company, and has authorised the company to use the trade mark. In his evidence, Mr Shen annexes copies of business records of the company, including commercial invoices, bills of lading, shipment advice, and tax invoices, relating to two shipments of footwear within the relevant period. The documents annexed to the affidavit establish that the first shipment was purchased on 1 May 2006, which led to sale of footwear under the trade mark. Those goods were sold under the trade mark in the period from 1 August 2006 to 28 February 2007. It is apparent that that period, in its totality, was within the relevant period. I also note that the goods the subject of that shipment were sold to customers in New South Wales, Queensland, and the Australia Capital Territory. The second shipment was purchased on 15 February 2006 and those shoes, also bearing the trade mark, were sold from 13 March 2006 to 14 March 2006 to customers in Victoria and New South Wales. There were more than 10 shipments of such footwear in Australia between March 2005 and March 2008. None of that evidence was before the delegate. The applicant bore the onus before the delegate and bears the onus on appeal of establishing use of the trade mark in accordance with s 100 of the Act. Relevantly, s 100(3)(a) provides that an allegation of non-use under s 92(4)(b) is taken to be rebutted in relation to particular goods or services ' if...the opponent has established that the trade mark...was used in good faith by its registered owner in relation to those goods and services ' during the relevant period. Pursuant to s 7(3) of the Act, any "authorised use" of a trade mark by another person is taken to be a use of the trade mark by the relevant owner. The manner of determination of the non-use application is dealt with in s 101 of the Act. The right of appeal from the decision of the delegate is provided by s 104 of the Act. As Drummond J pointed out in Woolly Bull Enterprises Pty Limited v Reynolds [2001] FCA 261 ; (2001) 107 FCR 166 at [14] , an applicant for removal must show that ' at no time during [the relevant period]' has there been use. It follows, as his Honour pointed out, that an opponent is entitled to rebut the allegation by proving even a single use on just one occasion during the three year period, such use being in good faith. At [16], his Honour expressed the view that the expression ' use in good faith ', has a well understood meaning in this context: namely real, as opposed to token, use in a commercial sense. I am satisfied that the applicant has demonstrated real commercial use of the trade mark by the company. The evidence also establishes more than one act of use during the relevant period, were it necessary to do so. I am satisfied that the use was authorised by the applicant. That is sufficient for the purposes of s 92(4)(b) and s 100(3)(a). The evidence establishes use during the relevant period of the trade mark on footwear. The registration was for a class of goods beyond that description. The removal application should therefore not succeed insofar as it relates to footwear. The applicant has not sought to maintain the registration for the goods beyond footwear. The applicant does not oppose the removal of the trade mark insofar as it relates to those other goods. Section 101 of the Act deals with the discretion available to the Court in circumstances such as the present. There is no need to consider whether the registration should be maintained in respect of the whole of the class registered as that is not pressed by the applicant. The Court has a discretion under s 101(2) to order the Registrar to remove a mark in respect of any or all of the goods or services to which an application applies and, under s 101(3), the Court may decide that the trade mark should not be removed even if the grounds on which the application was made have been established. I am satisfied that it is appropriate to maintain the registration to the extent that it relates to footwear but not to maintain the registration with respect to the remaining goods. I am also satisfied that there should not be any imposition of any geographical limitation on the registration pursuant to s 102. I note that, by arrangement with the respondent, the applicant does not seek any order as to costs. It follows that the appeal from the decision of the Registrar should be allowed in part and that the decision of the delegate should be set aside and, in lieu thereof, an order made that the Registrar remove the trade mark from the Register in respect of the goods other than footwear. The registration shall remain in respect of footwear. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

application for removal for non use appeal from registrar use during relevant period use of trade mark for some but not all of goods for which mark was registered trade marks

The termination is effective from 17 November 2006. The applicant seeks an order under s 15 of the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act') suspending the operation of that decision until the hearing of his substantive application. 2 The applicant is a Private in the Force. He joined in 1994 and was posted to the 7 Combat Services Battalion in Brisbane in January 2004. In his affidavit, filed in support of his application, he alleged a history of ill treatment whilst in his unit. The conduct complained of occurred from March 2004 and continued through until April 2006. He suffered depression as a result of the treatment and was required to be psychologically tested. The prospect of the termination of his service was raised more than once, but in March 2005 a psychiatrist reported that there was no ground for termination based upon his mental health. On 6 April 2006 he was given another termination notice but it was withdrawn. On 10 April 2006 he wrote to the Chief of the Defence Forces complaining about the treatment towards him. An investigation into those complaints was undertaken. 3 The Defence Instructions (Army) Issue Nos. PERS 4/2001 and 16/2005 provide for the discharge of members of the Army on medical grounds and a system of Medical Employment Classification ('MEC'). The latter Instructions provide that any member who is determined to have an MEC of 401 or 403 by the Medical Employment Classification Review Board ('the Board'), may not be upgraded at unit level and will be discharged. 4 On 24 May 2006 a Termination Notice was issued to the applicant. He was advised by the third respondent ('the delegate') that the President of the Board had determined that his classification was now MEC403 and that therefore he could not meet base Army requirements of a deployable profile. The Board had made its determination on the basis of psychiatric opinion that the applicant suffered from an Adjustment Disorder with Dysphoric Mood. The applicant was provided with a summary of its determinations. In the delegate's reasons the applicant was advised of his right to provide a Statement of Reason why his service should not be terminated, within 28 days from receipt of the Termination Notice. It was explained that if the delegate was of the opinion that the reason for terminating his service was established, and had not been affected by a change of circumstance since the Termination Notice was given, the delegate was obliged to terminate his service. It went on to say that if new, or previously omitted, medical evidence was presented, the delegate might seek a review and recommendation from the Director General of Health Services. Any such recommendation would result in a further invitation for the applicant to provide an additional written statement of reasons. The applicant was also advised that in the event that his services were retained, the delegate might direct that he be retained subject to medical and employment restrictions. 5 The Defence Personnel Regulations 2002 provide for the termination of service of an enlisted member for a number of reasons. Regulation 87(1)(c) provides that the service may be terminated for the reason that the enlisted member is medically unfit (including unfitness because of mental incapacity). Regulation 87(2) provides for the giving of a Termination Notice, which is to contain certain information including the ' particulars of the facts and circumstances relating to the reason for terminating the service that is sufficient to allow the enlisted member to prepare a statement of reasons why the service should not be terminated' . The regulation requires the member to be invited to give the Chief of Army a written statement why the service should not be terminated. A period of at least 28 days is to be allowed for this purpose. The Defence Instructions (General) List B Issue No PERS B/10/2001 provide this procedure of handling complaints from members of the Force relating to their service. The grievance identified by the applicant was the decision to issue a Termination Notice. The redress sought that the decision be overturned or delayed until the investigation into the applicant's earlier complaint and which was already underway, was completed. He requested that his Redress of Grievance be investigated by someone outside his unit. He requested that the same officer investigating his complaint deal with this application. He alleged that he had been the subject of unlawful harassment and behaviour and that this had psychologically harmed him. He provided details of this allegation. He disputed the medical classification upon which the Termination Notice was based and observed that another psychiatrist had informed his Commanding Officer that he did not have a psychiatric condition. On 20 June 2006 he wrote again requesting that the Board's decision be put ' on hold ' until his complaints were investigated. 7 The Redress of Grievance was dealt with by his Commanding Officer. On 30 June 2006 the applicant received the response to his complaints. In that response his Commanding Officer concluded that, since the applicant had not put forward medical evidence to suggest why the determination of the Board should be overturned and since there was psychiatric evidence supporting its assessment, there was no reason to reverse the decision made. 8 In the meantime, on 22 June 2006, the applicant provided a Statement of Reasons in response to the Termination Notice. He had been told that he must provide one. He described the statement as incomplete and requested an extension of time until he could receive medical reports. 9 On 8 July 2006 the applicant applied a second time for a Redress of Grievance. This time he directed it to the Chief of Army. He complained about his Commanding Officer having dealt with the first Redress of Grievance and again requested that any action in connexion with his discharge be suspended pending investigation. He cited paragraph 13 of the Defence Instructions (General) in this regard. When a complaint relates to a proposed action, that action is not normally to be taken until the complaint has been resolved. The underlying principle is that approving authority should not take irrevocable, or pre-emptive, action that would prejudice an appropriate remedy, if a member's complaint were subsequently upheld. Notwithstanding the foregoing, Service requirements may override the suspension of executive action, i.e. when considerations of safety, security, discipline or effective operation of the unit reasonable dictate that the proposed action should be taken regardless of the submission of a complaint. Such circumstances are expected to be exceptional. (The reasons for the decision are dated 8 August 2006). In his reasons the delegate advised that a very high weight was given to the Board determination with respect to the applicant's classification and that he was not expected to regain fitness for deployment in the long term. He listed a number of other factors including the psychiatric reports. One doctor had confirmed that the applicant suffered from mental illness; another, whom he saw regularly, although initially finding that there was no clinical diagnosis later did, and he was considered to be in a position to confirm the medical classification. In relation to his allegations of continuing harassment by the unit, it was noted that they were similar to those made in the application for Redress of Grievance and that it ' did not contain any new medical evidence and therefore carried little weight. You requested and was granted an extension to submit new medical evidence but failed to provide any new evidence'. The doctor who saw him regularly had provided an additional assessment at his request and the classification remained the same. 11 The psychiatric report by Professor Whiteford was provided to the delegate on about 11 October 2006. It was dated 10 August 2006. It is not explained when the applicant received it and why it took so long to be provided. In any event the opinion was there expressed that there was no psychiatric reason why the applicant could not return to his service. He had developed some symptoms of anxiety and depression, attributable to conflicts in his workplace and the breakdown of his relationship, but they had resolved. 12 The applicant sought reconsideration of the decision to terminate. This was rejected in a letter dated 26 October 2006 which however made no reference to the further evidence of the applicant's psychiatrist. 13 The investigation consequent upon the applicant's first complaint has been completed but is not yet the subject of a published report. The Court was informed that the review process in connexion with the second application for Redress of Grievance is under way but has not been completed. It is intended to complete it. 14 Although I had raised questions about the application of the ADJR Act in the context of decisions of this kind, those relating to service in the Force, the respondents did not contend that it was not engaged. And, whilst questions are raised about the ability of the delegate or the Chief of Army to revisit the question of termination, it is not contended that the Court could not grant relief. The applicant submitted that the approach to be taken to the question whether the decision to terminate should be suspended is similar to that taken to the grant of interlocutory injunctions. A suspension may be ordered if the applicant shows that there is a serious question concerning the decision, or the process leading to it, for the Court to adjudicate upon and the balance of convenience favours the applicant. A final conclusion as to the merits of the applicant's case is not required. The respondents do not dispute this to be the correct approach. It is not however explained how a decision in his favour could have a legal effect upon the decision now made to terminate his service, although it might conceivably result in voluntary steps to reinstate him. The focus of the application to stay the termination decision was upon the issue of procedural fairness. The other grounds with respect to that decision were not the subject of detailed submissions. 16 The respondents' principal contention was that the decision under the Defence (Personal) Regulations was one that was mandated by reg 87(4) in the circumstances there provided. It depends upon the delegate being satisfied about specified matters and a decision of that kind is not amenable to review. It may be that the process of review does not permit an evaluation of the delegate's decision to terminate. It might be possible to challenge a finding under reg 87(4)(b)(ii) that a change in circumstances had not been shown, if the delegate had failed to take evidence about that into account, but that situation does not arise here. An allegation of want of procedural fairness does not however involve a challenge to whether the delegate could be satisfied that the reason for terminating the service had been established. The point in relation to the decision of 9 August 2006 is that the applicant was not given an opportunity to put evidence which might be relevant to both the reason for termination and the possibility that circumstances had changed. Although the applicant contends that the delegate failed to take into account the psychiatric report subsequently obtained, when asked to reconsider the termination, there was not identified an obligation or power to revisit the decision, save for that provided by s 33(3) of the Acts Interpretation Act 1901 (Cth). That sub-section provides that where a power is conferred to make or grant any instrument, the power is to be taken to include power to rescind or revoke the instrument. It would not appear to have application to the decision in question. Moreover there is some doubt that such a decision may be revoked: Laurence v Chief of Navy [2004] FCA 1535 ; (2004) 139 FCR 555. 17 The respondents also submitted that the regulations provide a complete code for the procedure relating to a decision to terminate and the requirements of procedural fairness do not apply. The requirement principally in question is that to be given a reasonable opportunity to present a case. I shall consider questions raised by the Defence Instructions (General) later in these reasons. 18 The Defence (Personnel) Regulations are not expressed to exclude procedural fairness. It is true that they set out what is required before a decision to terminate an enlisted member's service can be made. They recognise the need to allow that member to meet the case which might provide the reason for termination, by requiring that particulars of it be provided and that at least 28 days be provided for a response. That does not however mean that the delegate is not required to consider what procedural fairness requires in a particular case. In this case the question left open by the regulation was what time should be allowed to the applicant to present the psychiatric evidence of which he spoke. It was obviously important that he be given a reasonable opportunity to do so, since the decision to be made by the delegate was final and might not be subject to review, as the respondents themselves contend. The delegate knew that the applicant challenged the psychiatric opinion about his mental state and that his Statement of Reasons was to be added to by the provision of medical evidence. Whilst the delegate did allow some time to pass, there remains a question whether he should have allowed more, in all the circumstances, and should have given the applicant a further opportunity to provide a medical report before he proceeded to make his decision. 19 The circumstances of which the delegate was aware included the applicant's second Redress for Grievance relating to the Notice of Termination. The delegate may not have been obliged by the regulations to await the outcome of that process, but he was aware that the applicant was contending that the Defence Instructions (General) provided a basis for postponement of the decision. It is not necessary for present purposes to determine whether the delegate was obliged to do so, which I take to be the error of law referred to in the grounds for review. The respondents argue that those Instructions are subordinate to the regulations. That factor would not appear to foreclose the prospect that the Instructions created a legitimate expectation, on the part of the applicant, that a decision would be deferred or that he would be told that the Instruction would not be followed in his case. That would have at least served to put him on notice that he must obtain the outstanding psychiatric evidence without delay. 20 There are serious questions about what procedural fairness required in the applicant's case is sufficient to warrant an adjudication of them. 21 The balance of convenience favours the applicant. The respondent has raised the question of the applicant's ability to repay monies which will be paid to him in the interim, in the event that the decision is confirmed. He has however been in the Force for some time and has no obvious prospects of re-employment. I do not understand the respondents to contend that appropriate arrangements cannot be made if he remains in service until a hearing of a determination of his matter. 22 There will be an order that, until the determination of these proceedings, or earlier order, the decision of the third respondent to terminate the service of the applicant be suspended. I will hear from the parties on the question of costs. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel .

judicial review applicant's service terminated with the australian defence force seeking suspension of termination until substantive hearing whether there is a serious question concerning the procedures leading to the decision, to be tried whether requirements of procedural fairness apply whether applicant given reasonable opportunity to present a case whether legitimate expectation in connexion with procedure balance of convenience. defence

2 Section 84(8) of the Act provides that the Federal Court may at any time order that a person, other than the Applicant, cease to be a party to the proceedings. 4 The present Kuuku Ya'u Application is a consolidation of three native title claims filed by the Kuuku Ya'u People in respect of country described as the traditional country of the Kuuku Ya'u People. The Cape York Land Council ('CYLC') is the representative body of the Kuuku Ya'u native title claimants. 5 The present proceeding (QUD6016/98) was first lodged with the National Native Title Tribunal ('the Tribunal') on 4 July 1995. A second Application was lodged on behalf of the Kuuku Ya'u People with the Tribunal (QUD6120/98 --- Kuuku Ya'u #2) on 7 April 1997 and a third Application was lodged with the Tribunal (QUD6197/98 --- Kuuku Ya'u #3) on 26 May 1998. 6 John Wolff and Nancy Wolff were joined as parties in proceeding QUD6120/98. 7 The three Applications on behalf of the Kuuku Ya'u People were subsequently amended and consolidated by orders of Deputy District Registrar Robson on 24 November 1999 with the principal proceeding retaining the Court number of the first filing in time (QUD6016/98). Any party who was a party to any of the three previous proceedings became a party to the consolidated proceedings. Amendments were made to the consolidated Application on 20 March 2003 when the area the subject of the claim was amended to remove parcels of land in which John Wolff and Nancy Wolff held an interest. 8 Those parcels were previously described as Lot 2 on Plan SH2, Lot 5 on SH4 and Lot 4 on SH4. Those parcels now form part of Lot 423 on Plan NPW616. These former parcels are no longer subject to the claim made by the Kuuku Ya'u People. 9 The Applicant relies upon an affidavit of Glenn David Archer sworn and filed 1 November 2006, an affidavit of Tracy Robyn Laird sworn and filed 10 November 2006 and an affidavit of Karen Lynne Douglas affirmed and filed by leave today. Ms Douglas has the day to day carriage of the claim with the assistance of Mr Glenn Archer the principal legal officer employed by CYLC. (b) In the course of mediation of the Kuuku Ya'u claim, information has been provided by the State of Queensland in relation to tenures in the claim area. That information reveals that John Wolff and Nancy Wolff were formerly the registered joint lessees of Special Lease 43/41959 (Title Reference 17596061) over an area formerly described as Lot 2 on Crown Plan SH2. This 'interest' provided the foundation for the Application by John Wolff and Nancy Wolff to be joined as parties to the native title determination application by the Kuuku Ya'u People. Special Lease 43/41959 expired on 31 July 1998. (c) Based upon information provided by the State of Queensland, Ms Douglas says that John Wolff was also the registered lessee of Special Lease 43/31328 (Title Reference 17595222) over an area formerly described as Lot 5 on Crown Plan SH4. Tenure searches reveal that Special Lease 43/31328 expired on 19 July 1998. Further, Ms Douglas says that based upon information from the State of Queensland, John Wolff was the registered lessee of Special Lease 43/31327 (Title Reference 17595221) over an area formerly described as Lot 4 on Crown Plan SH4. Special Lease 43/31328 expired on 19 July 1998. (d) By Nature Conservation (Protected Areas) Amendment Regulation (No. 1) 2000, notified in the Gazette on 24 March 2000, the description of lands comprising Forbes Island National Park was amended to Lot 423 on Crown Plan NPW616. The former Lot 2 on Crown Plan SH2 and former Lots 4 and 5 on Crown Plan SH4 were subsumed within the description for the lands comprising Forbes Island National Park by this regulation. 11 The Application by way of Notice of Motion was filed on 1 November 2006. On 2 November 2006, Ms Tracy Laird sent a copy of the Notice of Motion and supporting affidavits either by facsimile or by express post to all Third Party Respondents listed on the Notice of Motion. A facsimile number for John Wolff and Nancy Wolff was obtained by Ms Laird from a party report filed in the proceedings identifying each party, their representatives and contact details. The attempted facsimile transmission of the material to John Wolff and Nancy Wolff was unsuccessful as the transmission report reveals that the facsimile of the documents was not received by the addressee. Accordingly, Ms Laird caused the documents to be sent by express post on 3 November 2006 to John Wolff and Nancy Wolff at their address for correspondence provided to the Tribunal on 30 August 2006, namely, 23 Vasey Esplanade, Trinity Beach, Queensland, 4879. I have attached a copy of the Form 162 for your information. 14 Ms Wrafter this morning appeared on behalf of the State of Queensland in relation to the Application. Ms Wrafter was provided with a copy of the affidavit of Karen Douglas affirmed and filed this morning by leave in order to consider the matters put before the Court by Ms Douglas concerning information provided by the State arising out of mediation steps, concerning tenures in the claim area. Ms Wrafter advises that the information in relation to the matters concerning the Special Leases, the expiration of those leases and the amendment of the description of the lands comprising Forbes Island National Park was provided to the Applicant based upon Departmental information. Formal Land Registry title searches have not been conducted. 15 However, I am satisfied, having regard to the affidavits of Glenn Archer, Karen Douglas and Tracy Laird that neither John Wolff nor Nancy Wolff continue to enjoy the interest which they held at the moment in time when they were joined as parties in the second Kuuku Ya'u claim and thus became parties to the consolidated claim. For the purposes of the Act, the interest asserted by a party need not be 'proprietary or even legal or equitable in nature' ( Byron Environment Centre Inc. v Arakwal People & Ors (1997) 148 ALR 46 at 51, ln 43, per Black CJ). However, the interests affected must be genuine, greater than those of a member of the general public, not indirect, remote or lacking in substance, capable of clear definition and of such a character that they may be affected in a demonstrable way by a determination in relation to the Application ( Byron Environment Centre Inc. v Arakwal People at 51, ln 34 to 43, per Black CJ). 16 Having regard to the material filed in support of the Application, I am satisfied that neither John Wolff nor Nancy Wolff enjoys interests for the purposes of s 84(9)(b) that may be affected by a determination in these proceedings. 17 I am also satisfied that John Wolff and Nancy Wolff have received notice of the Application before the Court this morning, have not sought to appear or respond to the Notice of Motion and have not filed a Form 162 in response to the letter from the Tribunal of 30 August 2006. I am also satisfied that the election on the part of John Wolff and Nancy Wolff not to appear is consistent with evidence put before the Court by paragraph 17 of the affidavit of Glenn Archer to the effect that Mr Archer has read transcripts of prior listings of this matter before the Court and has noted that during the course of directions hearings in the matter neither John Wolff nor Nancy Wolff has appeared. Further, Mr Archer says that during his carriage of this matter on behalf of the claimant over the last year, neither John Wolff nor Nancy Wolff has attended the mediation sessions conducted by the Tribunal. 18 For these reasons, I have today made an Order that pursuant to section 84(8) of the Native Title Act 1993 (Cth), John Wolff and Nancy Wolff be removed as parties. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood J.

application pursuant to s 84(8) of the native title act 1993 (cth) to remove parties from a proceeding. native title

In that case the respondents successfully presented a creditor's petition seeking a sequestration order against the appellant, and were awarded costs by her Honour. 2 The appellant seeks the following orders from this Court: 1. The appeal be allowed. 2. The orders of the Federal Magistrate of 12 October 2005 be set aside. 3. The application for a sequestration order be remitted to the Federal Magistrates Court for reconsideration. 4. Costs. 3 Mr Cross is a director of The Drink Nightclub (Qld) Pty Ltd. In this judgment I shall refer to Mr Worchild as 'the appellant' and The Drink Nightclub (Qld) Pty Ltd and Mr Cross as 'the respondents'. In summary: 1. The genesis of this matter was proceedings commenced by the appellant against the respondents in the Federal Court of Australia in November 2003. The appellant claimed contraventions of the Trade Practices Act 1975 (Cth) in respect of the respondents' alleged refusal to honour a promotional card sold to the appellant by the Queensland University of Technology Association of Law Students. Those proceedings were heard and summarily dismissed by Cooper J on 24 May 2004 ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642). His Honour ordered that the appellant pay the respondents' costs of and incidental to the proceedings. 2. On 20 September 2004, an estimate of the respondents' bill of costs arising out of the decision of Cooper J was made pursuant to the provisions of O 62 r 46 Federal Court Rules and allowed in the sum of $24 000.00, for which sum a Certificate of Taxation was issued on 12 October 2004. 3. On 26 November 2004 Deputy District Registrar Baldwin in the Federal Court made an order that the appellant pay the sum of $24 000.00 to the respondents. 4. Bankruptcy Notice Q/N1238/2004 ('the bankruptcy notice') identifying the appellant as the debtor was issued by the Official Receiver on 15 December 2004. The bankruptcy notice was issued in relation to the appellant's failure to pay the respondents in accordance with the costs order of Deputy District Registrar Baldwin of 26 November 2004. 5. On 21 January 2005 the respondents served the bankruptcy notice on the appellant. 6. On 13 May 2005 before Deputy District Registrar Baldwin in the Federal Court the appellant sought to have the bankruptcy notice set aside. The appellant was unsuccessful and he was ordered to pay costs in the amount of $2500. The appellant unsuccessfully appealed this decision of the Deputy District Registrar ( Worchild v The Drink Nightclub (Qld) Pty Ltd ACN 090 830 854, in the matter of Worchild [2005] FCA 863 per Dowsett J), and then again unsuccessfully to the Full Court of the Federal Court ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240). As at the date of the hearing the appellant had sought special leave to appeal to the High Court from the decision of the Full Court. (I understand that special leave to appeal was refused: Worchild v The Drink Nightclub (Qld) Pty Ltd [2006] HCA Trans 223. ) 7. On 3 June 2005, the respondents filed a creditor's petition in the Federal Magistrates Court applying for a sequestration order under s 43 Bankruptcy Act 1966 (Cth) (' Bankruptcy Act ') against the estate of the appellant in respect of the debt of $24 000.00 owing to them under the order of Deputy District Registrar Baldwin in the Federal Court of 26 November 2004. The document was accompanied by an affidavit of the second respondent sworn 31 May 2005, deposing that he had access to the books and records of the first respondent, and that the appellant had not paid, nor made arrangements to the satisfaction of the respondents for the settlement of the debt claimed in the bankruptcy notice. 8. On 20 June 2005 the appellant filed and served a Notice of Intention to Oppose the Petition in the Federal Magistrates Court. 9. The petition came before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005, however the Registrar directed that the matter be adjourned for hearing before a Federal Magistrate at 10.15 am on 26 August 2005. The matter then came before Rimmer FM. Her Honour said that: • if she were not satisfied of the matters set out in s 52 of the Bankruptcy Act , the petition must be dismissed, but • if she were so satisfied then it was the debtor --- the appellant in this case --- who bore the onus of establishing there was some other sufficient cause why the sequestration order ought not be made. Accordingly in her Honour's view the matter turned on the question whether there was other sufficient cause within the meaning of s 52(2) why a sequestration order ought not to be made, and whether her Honour should exercise her discretion to dismiss the petition. In deciding whether to exercise her discretion her Honour considered: • A potential counter-claim, set-off or cross-demand of the appellant related to the original litigation between the parties, but which her Honour considered continued to suffer from all the deficits identified by Cooper J in Worchild v The Drink Nightclub (Qld) Pty Ltd [2004] FCA 642. • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed the respondents had committed contempt of court, but which her Honour considered was unlikely to have any prospects of success, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A potential counter-claim, set-off or cross-demand in the appellant in that he claimed that the judgment of Cooper J had been obtained by fraud or collusion or mistake, but which her Honour considered was not supported by the evidence before her nor by the decision of Cooper J, and which was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim described by her Honour as being essentially that an act of bankruptcy had not been committed by the appellant. Her Honour summarised this claim of the appellant as being that he should have been successful before Cooper J, the order for costs should not have been made, the appellant should not be indebted to pay those costs to the respondents, and, as a result, in not paying the debt the appellant has not committed an act of bankruptcy. Her Honour considered that the appellant had committed an act of bankruptcy, and that this was not a proper matter to be taken into account when exercising her discretion under s 52(2). • A claim by the appellant that the bill of costs produced for taxation following the decision of Cooper J included items which did not relate to the proceedings under Pt 4A Trade Practices Act 1975 (Cth). In her Honour's view, these matters should have been addressed by the appellant in the taxation process in the Federal Court of Australia, and there was no evidence before her to establish that they were raised nor what the outcome was of it being raised at the taxation. • A claim by the appellant that there were defects in the petition and/or bankruptcy notice. Her Honour considered this claim in detail, including reviewing Kleinwort Benson Australia Ltd v Crowl [1988] HCA 34 ; (1988) 165 CLR 71 and The Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2000) 109 FCR 33, which are the leading authorities in this area. He says that where in par 2 it says that the creditor does not hold security over the property of the debtor, that this leaves doubt as to whether the one or the other holds security over the property of the debtor. Further he contends that the petition refers to the words 'creditor' and 'creditors' including reference to the agent for the Petitioner which creates a doubt as to who the Petitioner is and whether or not there are two joint petitioners and whether or not the agent holds instructions to act on behalf of both petitioners. He says that par 4 of the Petition fails to state the date of the act of bankruptcy. The grounds of appeal were as follows: 1. Rimmer FM failed to appreciate that the respondents failed to comply with O 77 r 19 Federal Court Rules . 2. Rimmer FM erred in holding the debt on which the respondents relied was still owing at the hearing date for the petition contrary to the weight of the evidence. 3. Rimmer FM erred in finding that the appellant committed an act of bankruptcy where there has yet to be a final determination of the application to set aside the bankruptcy notice as required under s 43 of the Act. 4. Rimmer FM erred in finding that the creditors' petition was verified by a person who knew the relevant facts, contrary to the weight of the evidence. 5. Rimmer FM erred in finding the petition was not defective, contrary to the weight of the evidence. 6. Rimmer FM erred in holding that there was no other sufficient cause why a sequestration order not to be made under s 52 of the Act, contrary to the weight of the evidence. 7. Rimmer FM erred in finding that the respondents did not hold security over the appellant's property, contrary to the weight of the evidence. 8. Rimmer FM failed to appreciate that security for costs is required to contest a bill of costs in the Federal Court. 10 Further, by way of supplementary notice of appeal filed 7 December 2005 the appellant also raised the following grounds of appeal: 1. Rimmer FM erred in finding that the creditors' petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. 2. Rimmer FM erred in finding that the order attached to the bankruptcy notice was a final judgment or order of the Federal Court. 3. Rimmer FM erred in that she failed to appreciate no fresh affidavit verifying par 1 of the petition was filed at the time of the hearing. 4. Rimmer FM erred in that she failed to investigate the claim in the circumstances where there was sufficient cause to doubt the judgment debt. 5. Rimmer FM failed to accept and act upon documents put before her. 6. Rimmer FM failed to obtain and act upon documents which she should have considered. 11 There is some overlap between these grounds of appeal. Written and oral submissions were made by both the appellant and the respondents in relation to these grounds of appeal. The issues to which the grounds of appeal relate may be summarised as follows: 1. Whether the respondents failed to comply with O 77 r 19 Federal Court Rules . 2. Whether the debt was still owing on the date of the hearing. 3. What constitutes a final determination of the bankruptcy notice, and a final order or final judgment. 4. Whether the creditor's petition was verified by a person who knew the relevant facts. 5. Whether there were defects in the creditor's petition. 6. Whether there was other sufficient cause under s 52(2)(b) Bankruptcy Act . 7. The relevance of issues pertaining to security for costs. 8. Whether there was cause to doubt the judgment debt. 9. Whether documents were accepted, obtained and acted upon. 12 I propose to deal with the grounds of appeal in my judgment by references to these issues. The proceedings before me relate to parts of the Federal Court Rules and the Federal Magistrates Court Rules which have been repealed, but remain applicable to this case. The creditor's petition in this case was initially before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005, and subsequently before Rimmer FM on 26 August 2005. The appellant submits however that: • no affidavit of final search was conducted by the respondents on 25 August 2005, and • no affidavit was filed which states that there were no details of a debt agreement in relation to the debt on which the respondents rely on the date of the hearing, or whether any amount had been paid into court or to the respondents in accordance with the judgment. 17 In this respect the appellant claims failure to comply specifically with O 77 r 19(3) and (5) Federal Court Rules . This rule is mirrored in r 31.06(3) and (5) Federal Magistrates Court Rules. Given that the matter was in the Federal Magistrates Court, rather than the Federal Court, on this point it appears that the Federal Magistrates Court Rules apply and the appellant has incorrectly framed this ground of appeal in terms of the Federal Court Rules . In the interests of justice however I am prepared to allow the issue to be advanced. 18 In relation to this ground of appeal, the respondents submit: a) the matter was not raised before Rimmer FM, and should therefore not be included as a ground of appeal b) in any event, the petition originally came before a Registrar on 24 June 2005, and an affidavit of search of Nicole Jeanette Tovey was filed on 23 June 2005 wherein Ms Tovey deposed that she had undertaken a search of the National Personal Insolvency Index and ascertained that o there were no references in the Index to the debtor other than this petition, and o there was no debt agreement in relation to the debt on which the applicant relies in the index on the day when the petition was presented. 19 In relation to the matter not being raised previously before Rimmer FM, the appellant during the hearing strongly disputed that the Federal Court was bound by any principle with respect to consideration of matters not previously raised before a Federal Magistrate at the primary hearing of the case. The appellant submitted that common law doctrines in this respect have no place before the Federal Court. 20 I do not accept this submission of the appellant. 21 The general rule is clear. It has been a principle of the common law for many years. As the matter stands they have not been touched by the Courts below... (Their Lordships) confine themselves to deciding the issues which the Courts below were invited by the plaintiffs to decide, namely, whether there can be a judicial sale, and what it is that the receiver of the revenues of the division is entitled to receive. 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. 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. 26 Whether a court of appeal may find it expedient in the interests of justice to entertain a point not previously raised involves consideration of issues including: • where there is a question of law upon the construction of a document or upon facts either admitted or proved beyond controversy, in contrast with the situation where a plea cannot be disposed of without deciding questions of fact (where a court of appeal is in a much less advantageous position than the courts below) ( Connecticut Fire Insurance Co v Kavanagh [1892] AC 473 at 480, Mason J in O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 at 319, Suttor v Gundowda Pty Ltd [1950] HCA 35 ; (1950) 81 CLR 418 at 438 and Green v Sommerville [1979] HCA 60 ; (1979) 141 CLR 594 at 608) • the importance of avoiding the repetition of similar mistakes of law in the future ( Crampton v R [2000] HCA 60 ; (2000) 206 CLR 161 at 236, Giannarelli v R [1983] HCA 41 ; (1983) 154 CLR 212) • taking into consideration the discipline required of parties in the conduct of a case (Greenwood J in NBBL v MIMIA [2006] FCA 1045 at [12] ) • whether it is clear that the appellant does not seek to overturn the primary judgment because of any error in it, but is appealing on the basis that the primary judgment should simply be put to one side and ignored (Gyles J in Iyer v MIMIA [2001] FCA 929 at [61] ) • whether the new grounds are short, direct issues of which the respondent has had notice and which do not unduly prolong the hearing of the appeal ( Gomez v MIMIA (2002) 190 ALR 543 at 549) • whether the appellant had the benefit of legal representation at the primary hearing ( Iyer v MIMIA [2000] FCA 1788 at [24] ) • the merits of the grounds raised. That does not mean that an appellate court should enter upon a full consideration of the grounds. To do so would make the requirement for leave meaningless. It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success. No explanation was provided by the appellant as to why this ground of appeal was not raised before her Honour --- indeed that hearing would have been a timely opportunity to do so --- other than the fact that the appellant considered that he was entitled to raise new issues by way of appeal before this Court. Finally, the fact that this ground of appeal is but one of a number involving issues which were not raised before her Honour suggests, to paraphrase Gyles J in Iyer v MIMIA [2001] FCA 929 at 61, that the appellant is asking this Court to permit this appeal to proceed on the basis that the judgment below is simply put to one side and ignored. In my view the Court should not permit the proper process to be so ignored. 28 In any event, a brief consideration of this ground of appeal indicates that it is without merit. The respondents had satisfied their obligations by conducting a search and filing the required affidavit the day before the nominated date for the hearing of the petition, namely the date on which the matter came before District Registrar Ramsey and was adjourned to be heard before a Federal Magistrate. This is clear because: • section 104 Federal Magistrates Act 1999 (Cth) contemplates registrars of the court hearing, continuing to hear, or not hearing, applications which come before them • section 104(4) also contemplates a registrar making arrangements in appropriate circumstances for a matter being heard by the registrar to instead be heard by a federal magistrate • accordingly when the respondents' petition came before District Registrar Ramsey in the Federal Magistrates Court on 24 June 2005 the proceedings constituted a 'hearing', notwithstanding that the decision of the registrar was to make arrangements for the matter to instead be heard by a Federal Magistrate. 29 To find otherwise would in my view impose unnecessary additional burdens on creditors in such circumstances. 30 Further, at the subsequent hearing before Rimmer FM the appellant was at liberty to raise issues relevant to the contents of the National Personal Insolvency Index so far as applied to him, including for example details of any debt agreement in relation to the debt on which the creditor relies. The purpose of O 77 r 19(3) Federal Court Rules (and r 31.06(3) Federal Magistrates Court Rules) would seem to be to provide the court with evidence that there is no debt agreement in force which would preclude a creditor from proceeding further with a creditor's petition, and to provide evidence of any other proceedings in bankruptcy which might have a bearing on the making of a sequestration order ( French v Wilcox [2001] FCA 95 at [34] per Lee and Carr JJ). In this case the appellant did not raise any issues of this nature before her Honour and accordingly her Honour was entitled to make the findings she did. A similar issue was raised in French v Wilcox where an affidavit under O 77 r 19(3) was sworn on 21 July 2000 and, after the matter came before the court on that date, the hearing of the creditor's petition was adjourned to 30 August 2000 when the primary judge made a sequestration order. In the absence of any suggestion from the appellant that any proceedings in bankruptcy had taken place between 21 July 2000 and 30 August 2000, he was, in our opinion, entitled to assume that no such proceedings (including the making of any debt agreement) had taken place. As pointed out by Lee and Carr JJ in French v Wilcox [2001] FCA 95 at [35] . In the absence of that affidavit, there was no material before the Court to justify a finding of a final debt or the making of a sequestration order. 33 The appellant also submits that the respondents must provide an affidavit particularising the debt due not only at the date of presentation of the petition but also at the date of the hearing, and cites a number of cases including Re Agrillo, ex parte The Bankrupt (1977) 13 ALR 635, Re Padagas ex parte Carrier Air Conditioning Pty Ltd (1977) 16 ALR 475 and CSR Ltd trading as CSR Building Materials v Muscat [2002] FMCA 257. 34 The respondents submitted that at the hearing of the matter before Rimmer FM the appellant relied upon two affidavits of himself and there was no reference whatsoever to advance any other position than the debt relied upon was still owed at the date of the hearing. The respondents submitted that the only relevant affidavit was that of the second respondent sworn 23 June 2005 which stated that the sum of $24 000.00 owing by the appellant was still wholly due and unsatisfied. 35 In the judgment of Rimmer FM, her Honour noted that, within the meaning of s 44(1) Bankruptcy Act , the relevant debt must be payable not only at the date of presentation of the petition, but also at the date of hearing. Her Honour referred to Agrillo , Padagas and CSR cited earlier in this judgment as authority for this proposition. 36 It is clear that the petitioning creditor's debt must answer the description contained in s 44(1)(a) ,(b) Bankruptcy Act both at the date of the presentation of the petition and at the date of the hearing. In this case however her Honour noted that the court had received affidavit evidence in proof of the matters stated in the creditor's petition (at [21]), that the debt was still outstanding at the date of the hearing before her Honour, and that there was no dispute about the fact that the debtor had not paid the creditor the amount outstanding (at [22]). 37 The circumstances of this case bear interesting similarities to those in French v Wilcox . In the absence of any real indication that the debt had been paid when the matter was before her Honour on 26 August 2005, it was open to her Honour to infer that the debt was still owing. 38 The appellant has not brought any evidence before me which would in any way negate that finding. I reject the submission by the appellant that there was no material before Rimmer FM to justify a finding of a final debt or the making of a sequestration order. It is convenient to consider these grounds together. Specifically, the appellant submits that in an affidavit of 3 June 2005 filed by Mr Bisson, a solicitor acting for the respondents, in accordance with r 31.04 of the Federal Magistrates Rules, Mr Bisson deposed that an application was made for an order setting aside the bankruptcy notice and that the application had been finally decided by Deputy District Registrar Baldwin on 13 May 2005. However, the appellant submitted that no affidavit was filed before the creditor's petition was heard by Rimmer FM to the effect that the decision of Deputy District Registrar Baldwin had been appealed to Dowsett J, and an appeal from the decision of Dowsett J was pending before the Full Court. (The decision of Dowsett J was subsequently upheld: Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240. ) The appellant submits further that as at the date of the hearing before me there was an application for special leave to appeal the decision of the Full Court to the High Court of Australia. 41 In summary, the appellant submits that the application to set aside the bankruptcy notice is not spent and will only be spent when leave to appeal is refused by the High Court, and orders are settled. Accordingly, the respondents could not produce an affidavit verifying par 4 of the creditors' petition as required by r 31.04 of the Federal Magistrates Court Rules 2001 (as they were prior to amendment) until an order is settled. As authority for this proposition, the appellant relies on Guss v Johnstone (2000) 171 ALR 598. 42 In Guss a bankruptcy notice was issued in respect of a judgment of the Magistrates Court which was eventually appealed (unsuccessfully) to the Full Court of the Supreme Court of Victoria. The debtor filed an affidavit pursuant to s 41(7) of the Bankruptcy Act , with the result that time for compliance with the notice was extended until the Federal Court determined whether it was satisfied that the appellant had a counter-claim, set-off or cross demand such as referred to in s 40(1)(g) of the Act. Sundberg J held that he was not satisfied that the appellant had such a counter-claim, set-off or cross demand; the debtor did not comply with the requirements of the bankruptcy notice, and as a result the debtor committed an act of bankruptcy. The debtor appealed unsuccessfully to the Full Court of the Federal Court, and then to the High Court. 43 Rimmer FM considered this issue in the course of her decision. Her Honour noted that the appellant applied to have the bankruptcy notice set aside; the application was heard on 13 May 2005 by Deputy District Registrar Baldwin and dismissed; the appellant was then served with the creditor's petition; as of the date of the hearing of the matter by Rimmer FM the appellant had not paid the debt owing to the respondents, and clearly he had committed an act of bankruptcy. 44 Turning to the submissions of the appellant, it is difficult to see how the appellant is assisted by his reliance on Guss . The only relevance of Guss is that the debtor in that case, like the debtor in the case before me, also sought to raise issues as to the validity of the debt upon which the bankruptcy notice was founded. In that case, as has also been the case here as evidenced by the history of litigation involving the appellant and the respondents, the debtor was unsuccessful. 45 In my view it is incorrect for the appellant to assert that the issue is not 'finally decided' until all avenues of appeal in the matter are exhausted. This is for at least two reasons. 46 First, the plain reading of r 31.04 is that, once a bankruptcy notice is issued by the Official Receiver, it is open to the debtor to make an application to have the bankruptcy notice set aside by a court. In this case, the courts having jurisdiction under the Bankruptcy Act are the Federal Court of Australia and the Federal Magistrates Court (s 27 Bankruptcy Act ). The application by the appellant to have the bankruptcy notice set aside was heard in the Federal Court before Deputy District Registrar Baldwin. In relation to matters before the Federal Court, it is open to either a Judge or a Registrar of the Federal Court of Australia to deal with an application to set aside a bankruptcy notice (this is clear from s 35A(1)(h) Federal Court of Australia Act 1976 (Cth) and O 77 r 7 and Sch 3 Federal Court Rules ). 'Decided' in this context bears the plain meaning of the court having entertained an application, and making an order on the basis of that application. In this case, the appellant's application to have the bankruptcy notice set aside was decided by Deputy District Registrar Baldwin on 13 May 2005 when the application was dismissed. 47 The second issue is that it is very clear that the application to set aside the bankruptcy notice was finally decided by the Deputy District Registrar on 13 May 2005. In the context of r 31.04 Federal Magistrates Court Rules , the concept of finality is referable to whether the decision in relation to the application to set aside the bankruptcy notice finally determined the rights of the applicant or the respondent in favour of either of them. A similar test applies in a number of contexts, for example: • interpreting the meaning of 'final judgment or final order' in s 40(1)(g) Bankruptcy Act (see, for example, the test articulated by Lord Esher MR in In re Riddell ex parte Earl of Strathmore (1888) 20 QBD 512 at 516); and • distinguishing a 'final judgment' from an 'interlocutory judgment' (see, for example, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 440 and Windeyer J at 443). 48 Where an order is made either allowing or dismissing an application to set aside a bankruptcy notice, the decision does finally determine the rights of the parties in relation to the validity of the bankruptcy notice either in favour of the applicant or the respondent. The terms of r 31.04 indeed imply that the decision on the application is 'final'. The fact that the decision is capable of being appealed, ultimately to the High Court of Australia, does not in any way derogate from its 'finality'. 49 This ground of appeal fails. Where an application for leave to appeal is not brought within 7 days does not render the judgment a final judgment or order within the meaning of the Act: Re Carmody: Ex parte Glennan [2000] HCA 37 at 19, 20 and 26. The Federal Court rules provide that extensions of time for an application for leave to appeal is brought out of time. That debt arose from the failure of the appellant to pay the respondent the sum of $24 000.00 in accordance with a costs order made by Deputy District Registrar Baldwin in the Federal Court on 26 November 2004. 53 In my view this submission of the appellant is misconceived. 54 Principally, it appears that the issue of whether the order of the Deputy District Registrar was in the nature of a final order has already been raised by the appellant in other litigation, and dealt with by the Full Court in that context: Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240. Unlike a mere Certificate of Taxation, an order made under O 62 r 45(3) of the Federal Court Rules directs the payment of money. This was a feature absent in Re Walker; Ex parte Noble Einsiedel Pty Ltd [1992] FCA 327 , a decision of Northrop J of 16 April 1992 at p 4. A purpose of the rule is to permit enforcement and execution under the order. The latter is an important element in determining whether an order is final or not: Pepper v McNiece [1941] HCA 27 ; (1941) 64 CLR 642 at 657. In Re Draper; Ex parte Australian Society of Accountants, an unreported decision of 3 February 1989, von Doussa J held that an order made under the rule was final, within the meaning of s 40(1)(g) of the Bankruptcy Act . In his Honour's view, if there be any doubt about that, it is removed by the provisions of s 40(3)(b) of the Bankruptcy Act , as the orders are ones which can be enforced as final judgments. See also Re Luckins; Ex parte Columbia Pictures Industries & Anor (1996) 67 FCR 549, a decision of Beaumont J at p 559. I note the respondents' submission that this is the fifth occasion on which the appellant has sought to litigate this issue. The meaning of 'final judgment or final order' has been the subject of extensive judicial comment. It is unnecessary to examine this issue further, other than to emphasise the general principle that a decision of a superior court which can otherwise be considered a final judgment or final order will not lose this characteristic simply because it is liable to be set aside (Gibbs J in Re Hanby ex parte Flemington Central Spares Pty Ltd (1966) 10 FLR 378 at 380) or appealed to an appellate court (cf O 52 r 17 Federal Court Rules ). To that extent, the appellant's argument is misguided to the extent that he submits that an order is not final until all avenues of appeal have been exhausted. I note the submissions of the appellant with respect to Re Carmody; ex parte Glennan [2000] HCA 37. However this case concerned ( inter alia ) the jurisdiction of the Full Court of the Federal Court to hear and determine, out of time, an appeal from an interlocutory decision of a primary judge interpreting the Taxation Administration Act 1953 (Cth), and I do not find the case helpful in the present context. 56 This ground of appeal fails. The relevant affidavit is that of the second respondent filed 3 June 2005, which is the same date that the creditor's petition in this matter was filed. 58 The affidavit, which is headed 'AFFIDAVIT VERIFYING PARAGRAPHS 1, 2 & 3 OF PETITION (rule 31.02)' describes the applicant as The Drink Nightclub (Qld) Pty Ltd and Bill Cross, and describes the respondent as Andrew Worchild. I am the Sole Director of The Drink Nightclub (Qld) Pty Ltd, and as such have access to the books and records of the Applicant. I am duly authorised to make this affidavit on behalf of the Applicant Creditors. The statements contained in paragraphs 1, 2 and 3 of the petition signed and dated 17 31 May 2005 are within my own knowledge true. The abovenamed respondent has not paid, nor made any arrangement to the Applicants satisfaction for settlement of the debt claimed in the bankruptcy notice herein issued on the Application of the Applicant to in paragraph 4 of the petition. 60 In his written submissions, the appellant submits inter alia : • the petition should be a separate document and must not be attached to the affidavit (r 31.02(3)) • the affidavit does not identify the petition that it refers to or annexe a copy of the petition to the affidavit, and because of this it is possible that the affidavit may in fact refer to another petition or bankruptcy notice • the bill of costs was not prepared by the second respondent and 'he had no knowledge of the contents of the material in circumstances where he has now filed an affidavit verifying that monies are due for the perusal of documents that he deposed did not exist during the part 4a proceedings' • he has given notice of overstatement of the debt to the respondents. 61 The respondents submit in reply that this was not an issue raised before the learned Federal Magistrate and accordingly the Court ought not to entertain it on appeal. 62 I accept the submissions of the respondents on this issue. In accordance with the legal principles explained earlier in this judgment, there are no exceptional circumstances which warrant the Court allowing the appellant to raise any of these arguments on appeal when he had an opportunity to do so before her Honour, and no submissions have been made supporting the notion that it is in the interests of justice that this issue be entertained on appeal. In any event I also note: • In the circumstances it is absurd for the appellant to suggest there was any potential confusion as to which petition or bankruptcy notice Mr Cross' affidavit referred. • To the extent that the appellant claims that one of the creditors in question cannot depose as to the amount of costs contained in a court order in that creditor's favour, the submission is also absurd. It is difficult to imagine a deponent who would be in a better position to verify the relevant facts in a creditor's petition, than the creditor himself. Further, no 'evidence' was referred to by the appellant, the weight of which should cause the Court to find that her Honour erred. 63 This ground of appeal fails. In the seventh ground of the original notice of appeal, the appellant submitted that the learned Federal Magistrate erred in finding that the creditors did not hold security over the debtor's property contrary to the weight of the evidence. Further, the appellant submitted in the first ground of the supplementary notice of appeal that Rimmer FM erred in finding that the creditors' petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. The appellant submits that 'paragraph 1 of the Petition states that the applicant Creditors are owed an amount due under an order of the Federal Court. Paragraph 4 refers to a judgment referred to in the bankruptcy notice. The bankruptcy notice fails to contain the judgment or certificate of taxation'. It is in all respects clear and unequivocal. In relation to paragraph 1 the petition is compliant and the Bankruptcy Notice contains the order made on 25 November 2004. Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs. No application for review of the Registrar's decision was made by the debtor. No new substantive issues have been raised by the debtor. Whilst I accept that at any time prior to the making of the sequestration order the debtor can raise issues of formal defects in the Bankruptcy Notice, he cannot continue to raise the same or similar issues when that issue has been heard and determined both at first instance by a Registrar and then on review to the Federal Court. As I have already noted, none of the facts to which par 1 refers appeared to be in dispute before her Honour. Indeed, I note this same issue has been raised by the appellant before the Full Court in other proceedings, and the Full Court found that it was not necessary that a certificate of taxation be attached to the bankruptcy notice, and that the relevant order of Deputy District Registrar Baldwin was --- as required by the Bankruptcy Act --- attached to the bankruptcy notice ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240 at 8, 9). The appellant has sought to rely on the decision of the Full Court (see TS ll 38-42) however he appears to have misread the judgment of their Honours. No error in the reasoning of Rimmer FM is demonstrated by this submission. 68 Further, the appellant claimed in ground 1 of the supplementary notice of appeal that Rimmer FM erred in finding that the creditor's petition did not require a copy of the judgment and/or certificate of taxation to be attached to the petition. In his submissions on this point, I note that the appellant, in relying on Thompson v Metham [1999] FCA 935 , actually addressed the issue whether a copy of the judgment and/or a copy of the certificate of taxation ought be attached to the bankruptcy notice . However in any event this ground of appeal fails for the reason that her Honour made no such finding as claimed by the appellant. Similar arguments were put by the debtor in his application to have the Bankruptcy Notice set aside and that application has been determined and dismissed with an order being made against the debtor for costs. The appellant submits that paragraph 2 of the petition 'states that the applicant creditor does not hold security of the property of the debtor this leaves doubt as to whether the one or the other holds security over the property of the debtor'. It is a requirement of the standard form for such a statement to be made in those terns as to the holding of any security over any property of the debtor by the creditors. There is no uncertainty raised to a reasonable person with the knowledge of the debtor. There is no defect in the making of this statement. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. 71 This also answers the seventh ground of appeal in the original notice of appeal, which accordingly fails. The appellant submits that the 'petition refers to creditor and creditors including reference to the agent for the Petitioner. This creates doubt as to who the Petitioner is and whether or not there is two joint petitioners and whether or not the agent holds instruction to act on behalf of both petitioners'. I am satisfied that the debtor is fully aware that there are two creditors, one a company and one the director of that company. He is also well aware that the solicitors Hynes Lawyers act for both of the creditors. This is a spurious argument without merit. It is concerning that the appellant continues to raise this putative 'doubt' as to the identity of the petitioners as an issue. 74 There is no 'weight of evidence' against her Honour's finding. In my view, no error in her Honour's judgment is demonstrated by this submission of the appellant. The appellant submits that 'paragraph 4 of the Petition fails to state the date of act of bankruptcy'. 76 I find no error in the finding of her Honour in relation to this issue. 77 The fifth ground of appeal in the appellant's original notice of appeal fails. 80 After exhaustive consideration of these issues, her Honour concluded there was nothing in the submissions or on the evidence produced which would lead her to exercise her discretion in favour of the debtor under s 52(2)(b) of the Bankruptcy Act . 81 The appellant is not appealing in relation to the exercise of Rimmer FM's discretion under s 52(2)(b) for the reasons found in her Honour's judgment. The essence of his submission was that, if the sequestration order were to be upheld, those proceedings would be stayed (TS p 6 ll 18-19). 83 The respondents have drawn my attention to the decision of McGill DCJ of the District Court of Queensland in Worchild v University of Queensland Law Society Inc [2005] QDC 161. I note that his Honour's decision was delivered on 10 June 2005. In this case it appears that the appellant was prosecuting the claim against the Law Societies to which he adverted in ground 6 of the original notice of appeal. His Honour found against the appellant, and the appellant unsuccessfully appealed the decision of Gill DCJ to the Queensland Court of Appeal. The decision of the Court of Appeal was delivered on 5 October 2005 ( Worchild v. University of Queensland Law Society [2005] QCA 37). I understand the appellant sought special leave to appeal to the High Court from this decision, and it was refused ( Worchild v University of Queensland Law Society [2006] HCA Trans 181). 84 Two issues are therefore clear: • as the hearing before Rimmer FM took place on 26 October 2005, there appears to be no reason why the appellant could not have raised the issue of the proceedings against the Law Societies in the State Courts, including the prospect of an appeal by him to the High Court, before her Honour as an issue relevant to the exercise of her discretion under s 52(2)(b) • in any event the appellant had been unsuccessful in prosecuting that claim in the State Courts, and the appellant was presumably aware of this at the time of the hearing before Rimmer FM. 85 Further, I understand that subsequent to the decision of Rimmer FM the appellant commenced fresh proceedings in the Federal Court against the Student Law Societies. These proceedings, or the prospect of commencing them, were not raised before her Honour. In any event, the proceedings were recently dismissed by Spender J ( Worchild v University of Queensland Law Society [2006] FCA 1078). 86 On the basis of the principles I explained earlier, I do not consider there are exceptional circumstances which entitle the appellant to raise this new issue on appeal. Accordingly this ground of appeal fails. In particular, the appellant submitted that: • in order to contest a bill of costs in the Federal Court one needs to file security for costs • if a party cannot provide security for costs because of impecuniosity, then ostensibly the provision is a statutory abrogation of the right to a hearing, a denial of natural justice or a right to be heard. 88 This ground of appeal fails for the following reasons: 1. This issue was raised by the appellant in related litigation before the Full Court, and dismissed by the Full Court ( Worchild v The Drink Nightclub (Qld) Pty Ltd [2005] FCAFC 240 at [19] ). 2. It is incorrect to claim that the learned Federal Magistrate 'failed to appreciate' that security for costs was required to contest a bill of costs in the Federal Court: it does not appear that the issue was actually raised before her Honour. 3. On the basis of the principles I explained earlier, I do not consider there are exceptional circumstances which entitle the appellant to raise this new issue on appeal. 90 In my view this ground of appeal, and the appellant's submissions in support, are misconceived. At the hearing, the appellant submitted that there was a 'real and relevant issue of fact', namely that there were grounds for the learned Federal Magistrate to 'go behind the judgment in circumstances where there was no other material before the court' (TS p 10 ll 1-2). 91 The appellant has submitted, in essence, that the absence of reasons given by the learned Federal Magistrate for refusing to go behind the judgment gave rise to an error of law. He has cited as authority Petitt v Dunkley (1971) 1 NSWLR 376, a decision of the New South Wales Court of Appeal. However, with respect, Petitt is in no way comparable to the case which was before her Honour, or the case before me. In the present case there is a history of litigation demonstrating that there is a judgment debt upon which the bankruptcy notice, and subsequently the creditor's petition, are founded. It was clear to her Honour, as it is clear to me, that the appellant has had numerous opportunities in Court, across both Federal and State jurisdictions, through multiple actions, and through multiple levels of appeal, to establish flaws in either the judgment debt or the process which has resulted in the judgment debt being enforceable against him. He has been consistently unsuccessful. While as a general rule it is desirable to give reasons for a decision, to paraphrase Cussen ACJ in Brittingham v Williams [1932] VLR 237 at 239, a case may 'be so conducted that the reason or reasons for the decision is or are obvious to any intelligent person'. In my view, this is such a case with respect to this ground of appeal. 92 I can find no error in the judgment of Rimmer FM on this issue. This ground of appeal must fail. This is similar to the sixth ground of appeal, namely that the learned Federal Magistrate 'failed to obtain and act upon documents which she should have considered'. 94 The appellant has not addressed the Court in relation to these grounds of appeal, either in the form of written or oral submissions. In my view, in the absence of submissions or any evidence to this effect, these grounds of appeal must fail. The appeal be dismissed. 2. The respondents have liberty to apply within seven (7) days as to costs.

contested creditor's petition appeal from decision of a federal magistrate whether error in ordering that sequestration order be made against the appellant's estate whether compliance with o 77 r 19 federal court rules and pt 31 federal magistrates court rules whether debt owing at the date of the hearing whether appeal could raise new grounds not previously argued before federal magistrate whether application to set aside bankruptcy notice is not 'spent' until all avenues of appeal are exhausted whether application to set aside bankruptcy notice finally determined whether creditor's petition appropriately verified whether creditor's petition contained defects whether there was 'other sufficient cause' under s 52(2)(b) bankruptcy act 1966 (cth) whether cause to doubt the judgment debt ' final order' , ' final judgment', 'finally decided' bankruptcy words and phrases

The central allegations are that the respondents made false statements to the market and failed to comply with their continuous disclosure obligations with the result that their securities traded at an inflated price. Motions for my recusal have been brought on the basis of the ownership by Motown Investments Pty Ltd, the trustee of a self-managed superannuation fund of which I am a member, of shares in one of the respondents, Centro Properties Limited. An additional problem is that the trustee was a member of the group on whose behalf one action is brought. For the reasons that follow, I am satisfied I should recuse myself. 2 First, some background. I am one of two members of the self-managed superannuation fund, the trustee of which is Motown Investments Pty Ltd. Motown has two directors; I am one. On 8 August 2007, Motown purchased 2,400 shares in Centro Properties Group (ASX ticker symbol: CNP). The price per share was $8.17, and the total cost was $19,608. At the time, this constituted a very small percentage of the fund's overall value. 3 Since their purchase the value of the shares steadily declined, as has the value of all the shares in the fund. As at 30 June 2008, the value of the CNP shares had fallen to something in the neighbourhood of $600. According to the ASX website, the value of a CNP share as at 10 October 2008 (the day I informed the parties of the Motown shareholding) was $0.068, making their then total market value something in the order of $200. I should also add that, according to CNP's annual report issued on 25 September 2008, the number of CNP securities issued and outstanding is over 800,000,000, meaning that the superannuation fund's holding amounted to a relatively insignificant proportion of the company's outstanding securities. In short, both in relative and absolute terms, Motown's financial interest in CNP has been minimal. 4 In company with many other judges, in various capacities (personally, as trustee and as a beneficiary) I have an interest in shares in a range of listed companies. As a general rule (but, as with all rules, there are exceptions), prior to dealing with any case I or my staff check to see if I have an interest in relation to either the parties or the subject matter of the proceeding. In this case, due to an administrative oversight it did not immediately come to my attention that Motown held CNP shares. What happened was that shares held by Motown are listed in a "Portfolio Valuation" prepared by Motown's investment adviser. (Almost all purchases and sales of shares, including the purchase of shares in CNP, are transacted on their advice). The shares are listed in several categories (eg "Aust Shares", "Property Listed", "Int'l Shares Managed") and appear in alphabetical order in each category. The category in which CNP shares were listed ("Property Listed") was inadvertently overlooked at first instance. 5 When a subsequent check, after the writing and just prior to the delivery on 10 October 2008 of my reasons for decision in relation to the respondents' motion for a stay ( Kirby v Centro Properties Limited [2008] FCA 1505) , revealed Motown's holding, I promptly disclosed it to the parties in open court. In response to further inquiries from Freehills, who act for CNP and CPT Manager, the respondents in two actions, by letter dated 17 October 2008 (a Friday), my staff provided most of the historical information set out above in an email sent on Monday, 20 October 2008. 6 On 24 October 2008, Freehills wrote to my staff stating that, notwithstanding this disclosure, CNP remained concerned that "there may be a reasonable apprehension by fair minded lay observers, including other CNP security holders, that [I] might not bring an impartial mind" to the proceedings. Freehills also expressed the view that even if Motown was removed from the class, the apprehension of bias would remain because of the realistic possibility that the outcome of the litigation would affect the value of the shares and the fact that Motown could still bring its own independent action. Freehills' recusal request was joined in by Middletons, solicitors for the other two Centro respondents. 7 Given the relatively small nature of my interest in CNP through the superannuation fund, I initially thought that disclosure of the interest and an appropriate amendment to the statement of claim to exclude Motown as a group member would be sufficient to address any appearance of bias. This was what I proposed both in court on 10 October and in a letter from my executive assistant dated 21 October. My reasons for thinking this would solve the problem were twofold. First of all, the High Court has held that a judge's holding of a relatively small stake in a corporate party to litigation does not give rise to an appearance of impropriety such as to found a reasonable apprehension of bias requiring the judge's recusal: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337. Although disclosure of even a de minimis financial interest is no doubt the better practice, Ebner indicates that no disclosure is legally required and that certainly belated disclosure of such an interest that was the result of inadvertence (as here) or excusable neglect will suffice: at [70] (per Gleeson CJ, McHugh, Gummow and Hayne JJ) and [167] (per Kirby J). Second, having regard to the nature of a class action it is inevitable that, from time to time, a judge (and not only a judge who holds shares in listed companies) will find that he or she, or a related party, is a member of a group on whose behalf proceedings have been brought. In many cases the appropriate remedy is to amend the definition of the group to exclude the judge or the related entity. That is what occurred, for example, in Johnson Tiles Pty Ltd v Esso Australia Ltd [2000] FCA 1572 ; (2000) 104 FCR 564. Nonetheless, I informed the parties that the only proper way for the matter to be dealt with was in open court. Indeed, that matters had reached the stage they had in itself required the matter to be heard publicly. 8 In the meantime, I began to examine the authorities for guidance. I could find no Anglo-Australian authorities that considered my precise position. But in the United States, a jurisdiction which takes a much stricter view on judicial shareholding than our own, the point is not novel. Many US jurisdictions have statutory, rule-based and case law authority for the proposition that, subject to certain exceptions including the common law rule of necessity (see US v Will [1980] USSC 205 ; 449 US 200 , 217 (1980); for the Australian position on necessity, see Ebner at [64]-[65], [101]-[103] and [172]), any financial interest of the judge in the litigation requires recusal: see eg 28 USC s 455(b)(4) read with subsections (d)(4) and (e)(4) (which requires a judge to recuse himself if he or she holds a financial interest in the litigation, no matter how small, and regardless of whether the parties offer to waive any objection); ABA Model Code of Judicial Conduct (2004) Canon 3E(1)(c) (same); see also Tramonte v Chrysler Corp [1998] USCA5 334 ; 136 F3d 1025 , 1029-30 (5 th Cir 1998) (holding that s 455(b)(4) imposes a per se recusal rule where the judge or someone in his or her family is a member of a class seeking financial relief). There is also a practice in the US Supreme Court for justices to recuse themselves without regard to the size of their financial interest and even if it results in the court being unable to hear a case for lack of a quorum or unable to decide a case for lack of a majority: see eg American Isuzu Motors Inc v Ntsebeza 128 SCt 2424 (2008) (affirming the judgment below where four judges were recused and the Court lacked a quorum); Warner-Lambert v Kent 128 SCt 1168 (2008) (affirming the judgment below where the chief justice was recused and the remaining eight justices were equally divided). 9 There is an exception to this recusal rule both in statute, in the case law and according to recent US Supreme Court practice. On occasion, a justice has divested himself of the stock prior to oral argument in the case, and returned to participate in the hearing and decision of the case: see Tony Mauro, Roberts' Recusal Is Poison Pill for Drug Case Before Supreme Court (Legal Times, 4 March 2008), available at http://www.law.com/jsp/article.jsp?id= 1204544937246. This practice is authorised by statute: see 28 USC s 455(f) (which provides that where substantial judicial time has been expended on the matter, a judge need not recuse based on the discovery of a financial interest if he or she divests himself or herself of the interest); see also Kidder Peabody & Co v Maxus Energy Corp 925 F2d 556 (2d Cir 1991) (where it was held that s 455(f) obviated the need for recusal even where the judge held a large share of the stock of one of the parties where he promptly divested his interest upon learning of it and three years of the parties' and court's time and resources had already gone into the litigation). While there is some criticism of this approach in the cases, the majority view is that divestiture cures any appearance of impropriety: compare In re Initial Public Offering Securities Litigation 174 FSupp2d 70, 80-81 (SDNY 2001) (declining to recuse based on s 455(f) and criticizing Tramonte ); Key Pharmaceutical Inc v Mylan Labs Inc 24 FSupp2d 480 (WDPa 1998) (using s 455(f) curative divestiture as a basis for declining to recuse) with Gordon v Reliant Energy Inc 141 FSupp2d 1041 (SDCal 2001) (relying on Tramonte and holding that the conflict was incurable). 10 I came across two decisions that were particularly important. In re Certain Underwriter [2002] USCA2 92 ; 294 F3d 297 (2d Cir 2002), the appellate decision in the IPO case just referred to, was a securities class action in which investors in an initial public offering during the stock market boom of the late 1990s sued to recover losses against the issuers, underwriters and brokers, alleging widespread manipulation in the IPO market. The class on whose behalf the action was brought included investors who had bought stock from a particular date. The judge was a member of the class who had purchased stock in one of the defendants as well as in other companies that may have been connected to the defendants. The judge sold her stock in the companies and waived any interest in pursuing claims against them. Still, she was asked to recuse herself. She declined. The Court of Appeals for the Second Circuit refused to issue mandamus against the judge. The court referred to 28 USC s 455(f) and (at 305) said a judge with a minor interest in a class action is not considered a party once she has divested herself of that interest. Nor according to the judges did the shareholding suggest partiality to an objective disinterested observer: 292 F3rd at 306. 11 In re Literary Works in Electronic Databases Copyright Litigation 509 F3d 136 (2d Cir 2007) concerned the settlement of a class action brought on behalf of freelance authors whose works had been reproduced without consent. The settlement was approval by the District Court. An appeal from that approval to the Second Circuit Court of Appeals came before a panel of three judges, two of whom were members of the plaintiff class and entitled to share in the settlement sum. The judges did not recuse themselves. Instead they said in open court that they would forgo any interest in the settlement and this was sufficient to get rid of any appearance of bias. 12 At the time, it seemed to me that this was the approach I should adopt. Accordingly, I arranged for Motown to sell its CNP shares. I assumed, in line with the US cases, that this, plus a waiver of all claims arising out of or related to the facts alleged in the pleadings, would cure any vestigial appearance of bias. With those steps attended to, I had the strong conviction that the respondents' position was wrong. 13 When the matter came on for hearing, I advised the parties that the shares had been sold. This information did not, as I anticipated it would, appease anyone. To the contrary, it seemed to have an inflammatory affect, although, as one would expect, counsels' submissions were restrained. The principal point made by counsel (Dr Pannam QC for Centro Retail Limited and Centro MCS Manager Limited, and Mr Uren QC for CNP and CPT Manager Limited) was that as Motown had now crystallized a loss of some $19,000 and I was, to that extent, a "victim" of what the applicants say is the respondents' wrongful conduct, a fair-minded lay observer might still think I would favour the applicants' interests over those of the Centro group. That is to say, they submitted that even though I had divested myself of my pecuniary interest in both the party CNP and in the cause itself (ie in the outcome of the litigation), the reasonable apprehension of bias (said to stem from the grudge I might be perceived to bear due to the now forever unrecoverable $19,000 loss) was real and could not be cured. 14 Frankly, I had not given these contentions much weight when they were first raised in Freehills' letter. One reason was that the "victim" point had not occurred to the members of the Full Court in Johnson Tiles , two of whom were, prior to amendments to the pleadings, in positions similar to the members of the represented group. Second, having read the United States cases, I was of the view that the contentions had no merit where curative divestiture is made. Third, the cases seemed to say that the lay observer (Mr Uren QC referred to him as "Joe Sixpack") must regard the chance of the judge bearing a grudge (which is the way Dr Pannam QC put it) as being fairly high--that is, there must be a high probability of favouritism inconsistent with the fair performance of the judge's duties: R v Australian Stevedoring [1953] HCA 22 ; (1953) 88 CLR 100 , 116. As the High Court said in that case (at 116), the apprehended bias must be "real". See also Re Polites [1991] HCA 25 ; (1991) 173 CLR 78 , 86. At the time, I did not see how anyone might reasonably ascribe a high probability that I would show favouritism based on the facts I have set out. 15 However, by the time counsel had concluded their submissions, I confess to having doubt about the matter. What had earlier seemed quite clear was becoming murky. My view was that the lay observer would appreciate that, having regard to the experience and qualification of judges, as well as the high standards of independence to which they must conform, judges would be able to decide cases fairly even if they were "victims" of the actions the subject of the complaint. No doubt the judges in Johnson Tiles were of that view. But it is, I suppose, possible that the lay observer would see things differently. The problem, I think, is that it is sometimes difficult for a judge to know what a lay observer might think about a particular issue. Moreover, a closer reading of the High Court cases suggested that the bias test is much stricter--that is, it is not necessary to establish a high probability of bias to demonstrate that a reasonable apprehension is real, but instead some lower probability will suffice--in cases involving allegations of interest as opposed to, say, allegations of prejudgment: see eg Australian Stevedoring at 116 (noting that cases involving allegations of "bias through interest" are excepted from the "high probability" formulation of the test). 16 In the face of these considerations, I decided in the end that I should recuse myself. I consider that in a case such as the present, where there is real doubt about the matter, the better course is to be cautious: see Ebner at [20] (counselling that "[i]n a case of real doubt, it will often be prudent for a judge to decide not to sit in order to avoid the inconvenience that could result if an appellate court were to take a different view on the matter of disqualification"). As suggested in Ebner , I should as a first instance judge consider (and have considered) the possibility that the respondents would have appealed a refusal to recuse. I should make it clear that I am not at all troubled by the possibility that an appellate court might have taken a different view had I refused to recuse myself. What does concern me, however, is the delay an appeal would have caused, as well as the additional cost the parties would have incurred in what is already an expensive piece of litigation. 17 What this highlights is several problems. First, while the test for recusal laid down by the High Court is stated in quite clear terms, its application to particular facts is far from clear. Some refinement is necessary, perhaps even by statute. If the United States model were adopted at least everyone will know where they stand: but see Ebner at [156] (per Kirby J) (counselling against adoption of a statutory, US-style approach to recusal). Second, the problem with murky cases is that they give parties the opportunity to go judge-shopping. It is because of this possibility, among others, that on several occasions the High Court has said that a judge should not lightly recuse himself: see eg Ebner at [20] (stating that "if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench" and "[t]hat would be intolerable"). 18 Handing the cases to another judge, as I will now do, takes away the opportunity for me to deal with some quite interesting procedural issues that arise in these class actions. Still, there is one interesting procedural matter that I can address before concluding. I said at the outset that I have before me several motions for my recusal. There is authority for the view that a judge ordinarily "must not" entertain formally a motion for disqualification on the grounds of bias: see eg Idoport Pty Limited v National Australia Bank Ltd [2004] NSWSC 270 at [8] - [9] (citing, among other cases, Barton v Walker (1979) 2 NSWLR 740 , 748; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 436; and Rajski v Wood (1989) 18 NSWLR 512, 518). This line of authority (the most recent of which is Lee v Cha [2008] NSWCA 13) has been taken to support the view that although a judge may publish reasons for refusing to recuse, no independent appeal will lie nor is any prerogative writ available; rather, a party must wait until a subsequent appealable order is made, at which time the failure to recuse can be raised as a point of error underlying that subsequent order. 19 Whether the Barton line of cases is binding on me is a question I shall come to in a moment. I should start, however, by saying that the reasoning in those cases is not without its problems, notwithstanding that I was a member of a full bench of the Federal Court which approved Barton : see Parramatta Design & Developments Pty Ltd v Concrete Pty Ltd (2005) 144 FCR 244 at [36]-[37], reversed on other grounds [2006] HCA 55 ; (2006) 229 CLR 577. For one thing, the reasoning is circular --- the primary reason given for there being no order to appeal from is because the party seeking disqualification is not allowed to bring a motion. To say, as was said in Idoport (at [8] quoting Barton ), that formal application for disqualification must not be entertained because it "is beyond doubt that a judge of any court who might reasonably be suspected of bias should not hear the cause" is not a justification for the rule but rather a restatement of the problem. The question, as it is here, is always whether and when the suspicion of bias is reasonable, not what should be done if it is. In my view, the public interest in seeing justice done openly is best served by allowing (but not always mandating) recusal applications to be brought in public by motion and whatever process is required to see that the allegations are fully ventilated. 20 The solution offered in Idoport to allow an indirect appeal against a refusal to recuse by having the judge simply make whatever order might be convenient so that the parties may take an appeal from that order is not attractive. Once the concession is made (as numerous courts have, see Idoport at [9]; Gas & Fuel Corporation Superannuation Fund v Saunders (1994) 52 FCR 48 ; Parramatta 144 FCR 244 at [37]) that there will be circumstances where an interlocutory appeal based on refusal to recuse is desirable, why should the court be forced to make a pretextual order in order to facilitate appellate review? It is much cleaner simply to allow an appeal from what everyone knows is the actual decision being challenged. This would also make it unnecessary for a party to apply to the High Court for prohibition. 21 It seems, in any event, that Barton is of doubtful authority. In Brooks v The Upjohn Company (1998) 85 FCR 469 , 476-77, the Full Federal Court gave various grounds for abandoning the rule in Barton . See also Bahonko v Nurses Board of Victoria (No 2) [2007] FCA 351 at [41] (citing authorities in support of the view that it is permissible to seek disqualification of a judge by notice of motion); Witness v Marsden (2000) 49 NSWLR 429 at [96] (acknowledging the disagreement and suggesting that Barton might require reconsideration); but see Lee v Cha [2008] NSWCA 13 at [23] (discussing the contradictory authorities, reaffirming Barton and rejecting Brooks , albeit in dictum). I should also point out that in Parramatta the Full Court cited Barton but neither acknowledged nor addressed the tension between that case and Brooks . Most likely this was because, to the extent that the Court in Parramatta appeared to approve Barton , such approval was peripheral and unnecessary to the relevant holding, which was that a trial judge's earlier decision in relation to a recusal request does not foreclose him or her from revisiting that decision in light of fresh material: Parramatta at [38]. This proposition is both correct and unremarkable --- as a general matter, any interlocutory order may be the subject of reconsideration by the trial court prior to the making of final orders. 22 It is difficult to know what a trial judge should do when the Full Court of his own jurisdiction ( Brooks ) has cast doubt in dictum on the authority of another Full Court's judgment outside his jurisdiction ( Barton ) and yet a third Full Court of his jurisdiction in dictum ( Parramatta ) preferred Barton . 23 Fortunately, while I have entertained the motions I do not think there is a need for any order to be made. It would be odd (if not legally unsound), as Mr Uren pointed out, to direct myself not to hear the cases. On the other hand, I see nothing that would prevent me from circumventing that problem by simply framing my recusal in terms of an order granting the respondents' motions. In the end, however, all I will do is make a direction for the cases to be allocated to another judge. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

bias reasonable apprehension of bias judge's pecuniary interest in a party due to ownership of shares in corporate class action defendant judge's pecuniary interest in the litigation due to membership in plaintiff class whether fair-minded lay observer would reasonably apprehend that judge's loss of $19,000 in trading of defendant's shares, said to be caused by the same fraudulent conduct alleged by plaintiff, would prevent the judge from bringing an impartial mind to the proceedings disclosure inadvertent failure by judge to disclose financial interest in the litigation whether judge's prompt divestiture of financial interest and waiver of all claims arising out of or relating to the facts alleged in the pleadings is sufficient to cure apprehension of bias whether application for recusal may be brought by notice of motion precedent whether trial judge should follow appellate decision of another australian jurisdiction where that decision has been both criticised and approved in appellate dicta of judge's own jurisdiction courts and judges

b) By making a representation on 9 February 2005 to Paul Papas, a director of Papas Painting Contractors Pty Limited, to the effect that in order to work on the Avenue Apartments site, (a site at the corner of Barry Drive and Northbourne Avenue, Turner in the Australian Capital City), painters were obliged to join the second respondent, and thereby intending to coerce Papas Painting Contractors Pty Limited via Mr Papas to refuse to make use of painting services offered by any of its employees who were not members of the second respondent, the first respondent contravened s 298S(2)(b) of the pre-reform Workplace Relations Act 1996 (Cth). c) By the actions of the first respondent referred to in paragraph 1(a) and 1(b) above, the second respondent contravened s 298S(2)(a) and s 298S(2)(b) of the pre-reform Workplace Relations Act 1996 (Cth). The declarations and orders above take effect on and from 4 July 2007. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . 2 Unfortunately, the orders as formally published contain a clerical error and are incomplete. As a result, they do not faithfully reflect the orders which the parties, by consent, asked the Court to make. It has also become apparent that there is a clerical error in the orders proposed by the parties which was not detected by them or by the Court. 3 In the circumstances, and for both reasons, it is appropriate to invoke the 'slip rule' and republish the orders in the form it was intended by the parties and the Court they should be made. 4 The republished orders will take effect from the date of the earlier judgment. I certify that the preceding four (4) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

orders incomplete and contained a clerical error orders republished orders take effect from date of earlier publication. slip rule

The orders were made in favour of Niugini Mining against Mr Salfinger on 30 March 2007 (the Injunction Order), 29 August 2007 (the Adjournment Order) and 18 October 2007 (the Separate Question Order). Niugini Mining now seeks orders pursuant to O 62 r 4 of the Federal Court Rules that the costs in respect of each of these three orders be assessed as gross sums. 3 The Chief Justice has issued Practice Note No. 27, which is to the effect that an application under O 62 r 4(2)(c) must be accompanied by an affidavit stating the amount of the gross sum sought to be specified in the order, how the gross sum has been arrived at and how it is justified. Such an affidavit has been filed in the present case. It is the affidavit of Mr John Lobban, sworn 15 July 2008. 4 The purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of the taxation process: Beach Petroleum v LV Johnson (1995) 57 FCR 119 at 120. An order that costs be assessed as a gross sum does not require that any process similar to that involved in taxation should take place. However, the power must be exercised judicially and after giving the parties adequate opportunity to make submissions on the matter: Ualesi t/a Australian Empire Imports v Expeditors International Pty Ltd [2006] FCA 26. There has been filed an affidavit of service by Mr Jeremy Ian Chenoweth, which is to the effect that on 15 July he sent the relevant papers to the applicant at two addresses in British Columbia, Canada, where Mr Salfinger formerly lived and one address in Mentone, Victoria. 6 One of the British Columbia addresses was located by searching for Mr Salfinger's name in the White Pages. It is also an address at which the Niugini Mining's Canadian agent served material on Mr Salfinger in a Supreme Court proceeding. The other British Columbia address is an address used by Mr Salfinger in a previous affidavit filed in these proceedings. The Mentone address is another address used by him as an address for service. 7 On 16 July Mr Chenoweth also caused his secretary to send a copy of the documents to a Melbourne fax number, which is a number that Mr Chenoweth has used to communicate with Mr Salfinger previously in these proceedings. 8 On the same day he caused the documents to be sent to a Canadian fax number, which he has also used to communicate with Mr Salfinger previously in these proceedings. He also sent a letter to Mr Tom Glynn of Glynn's Lawyers, the firm which represented Mr Salfinger in the appeal to the Full Court of the Federal Court, enclosing the documents. Mr Glynn took instructions from Mr Salfinger as recently as 5 May 2008 in those proceedings. 9 Also on 16 July Mr Chenoweth sent an email to Mr Salfinger at [email protected] enclosing the documents. That email address has frequently been used by Mr Salfinger to correspond with Mr Lobban and his firm in these proceedings and during the course of the appeal to the Full Court. Mr Salfinger used that email address to correspond with Mr Lobban as recently as 5 May 2008. 10 Also on 16 July Mr Lobban sent a second email to Mr Salfinger at the email address mentioned serving further pages of the affidavit of Mr Lobban. 11 At the date of Mr Chenoweth's affidavit none of the various letters and emails sent to Mr Salfinger had been returned to him. 12 After the commencement of the hearing of the motion on 29 July, Mr Salfinger appeared on video link from Canada. He claimed that he had not received the documents, but that his mother had told him that she had received a bundle of papers in Melbourne. Mr Salfinger claimed that he had been at a remote location in British Columbia. As I have previously found in these proceedings, Mr Salfinger is not a man on whom I could place any credit whatsoever. 13 I am satisfied that Niugini Mining has taken all reasonable steps to bring this matter to the attention of Mr Salfinger, including service on him of the relevant documents. I am satisfied that it is more likely than not that these documents have come to the attention of Mr Salfinger. The further details alleged by Mr Salfinger in that respect are scandalous and do not bear repetition. I reject the apprehended bias claim. The gross sum can only be fixed broadly having regard to the information before the Court. ( Sony Entertainment at [197]). Niugini Mining is unlikely to recover any of its costs from Mr Salfinger. He has consistently sought to demonstrate that he lacks the financial means by which he might fulfil any costs order. 2. Mr Salfinger appears to have no real property assets in Australia. 3. A significant number of companies with which he is associated have been deregistered. 4. He apparently resides in Canada. He does not appear to be usually resident in Australia and his address for service in Australia that he has previously given in these proceedings is not his own residence. 5. He has resisted attempts to locate and serve him with material in respect of taxation in proceedings before the Victorian Supreme Court. 6. He has consistently shown little intention to comply with court orders and directions. He has made repeated attempts to delay the progress of the matter at first instance and on appeal and in respect of the present application. 7. To date Niugini Mining has not been able to recover any of its costs from him. 17 In all the circumstances, I am satisfied that it is appropriate to make gross sum costs orders. Such an order may be made notwithstanding that previous orders have been made for taxed costs. 18 As to the appropriate amount, Niugini Mining have had costs assessed by Hickey & Garrett, legal costs consultants. It is apparent from the affidavit of Mr Lobban that the gross sum costs orders sought are significantly less than the amount of the costs actually paid by Niugini Mining. There are a number of costs that have not been included in the assessments as they were not able to be determined at the time the files were submitted for assessments. The figures do not include counsels' fees for the three days of the actual hearing. In addition, there were significant costs thrown away during the course of defending the proceedings as a result of Mr Salfinger's non-observance of court orders and directions which are not reflected in the assessments. Mr Salfinger pay to Niugini Mining pursuant to the order of 30 March 2007 the sum of $16,774 for costs. 2. Mr Salfinger pay to Niugini Mining pursuant to the order of 18 October 2007 the sum of $81,626 for costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

application by respondent for gross sum costs order claim of insufficient notice failure to comply with court orders lack of assets in australia costs

The application sought pecuniary penalties, injunctions and other orders against the various respondents pursuant to ss 76 , 80 and 86C of the Trade Practices Act 1974 (Cth) (the Act) and under the Competition Policy Reform (Western Australia) Act 1996 . In addition declaratory relief was sought against the various respondents. The application alleged contraventions of s 45 of the Act and/or of the Competition Code (WA) (the Code). The contravention was said to involve price fixing in the provision of educational consultancy services to overseas students of Korean origin. 2 The corporate respondents and Sang-Hong Jung are each said to have been in the business of providing educational consultancy services to students of Korean origin. These services involved providing information to students about courses in secondary and tertiary education institutions in Western Australia and arranging for their enrolment at the institutions of their choice. The respondents were remunerated by commissions paid by the institutions. These were paid by remitter after payment of the relevant tuition fee or by permitted deduction from a tuition fee collected for the students and sent to the institution. 3 The corporate respondents and Ms Jung are said to have made oral and written agreements in 2004 and 2005 under which they agreed not to offer or to accept discounted tuition fees. Any party to the agreement that offered or agreed to accept a discounted tuition fee would be referred to a "Counsel of Korean Agency" comprising representatives of each of the parties to the agreement. Such party would be banned from enrolling students in the relevant institution for a period of three months. It is alleged that copies of the written agreement were sent to a number of educational institutions. The conduct of the corporate respondents and Ms Jung is said to have been in contravention of s 45 of the Act and the Code. The other natural person respondents are said to have been involved in the contraventions. 4 Since the proceedings commenced Study Overseas Now Pty Ltd (Study Overseas Now) has been joined as a respondent. On 17 August 2007 an order was made giving the ACCC leave to serve on Mr Seow Bing Yeo, a director of that company, a notice of motion seeking his joinder, such service to be effected out of the jurisdiction in Japan through a diplomatic channel. There was evidence that Mr Yeo was working in Japan on a three year working visa. 5 The first to fourth respondents appear to have reached substantial agreement with the ACCC as to the disposition of the proceedings. Statements of agreed facts and joint submissions have been filed along with proposed consent orders. The solicitors for the fifth and sixth respondents have ceased to act for them. The fifth respondent, Sang-Hong Jung, is now apparently out of the jurisdiction. The sixth respondent, Ms Cabalt, is unrepresented. 2. Service in accordance with either Order 2(a) or 2(b) of this Order shall be deemed good and sufficient service of the documents referred to in Order 2 on Seow Bing Yeo. 4. The documents referred to in Order 2 shall be deemed to be served on Seow Bing Yeo 7 days after service in accordance with either Order 2(a) or 2(b) of this Order. 5. Such further or other orders, directions and relief as may be necessary or as the Court deems fit. (ii) Affidavit of Hilary Frances Shanks sworn 26 November 2007. For the purposes of the motion, I find the following facts based upon the affidavit evidence. Neither the Department nor the Australian Embassy in Japan was able itself to make any inquiries on behalf of the ACCC to that end. No assistance was able to be provided by the Japanese Fair Trade Commission. 9 Despite their inability to obtain an address for service of Mr Yeo in Japan, officers of the ACCC have had a number of telephone conversations with him. An extended voluntary interview was conducted by telephone on 9 June 2006. Further telephone conversations took place on 19 and 27 September 2007 and 30 November 2007. 10 It is clear that Mr Yeo is aware of these proceedings and of the fact that the ACCC wishes to seek to join him as a respondent. In the course of his conversation with Mr Hilton of the ACCC on 27 September 2007 he asked what would happen if he were not served. He asked if he were right to assume that nothing would happen. Mr Hilton told him that he was correct but that the ACCC would keep the matter open until he was served. Mr Yeo refused to provide an address for service of process on him. He had instructed Perth-based solicitors Bowen Buchbinder & Vilensky to act for the company, Study Overseas Now. 11 On 30 November 2007 Mr Yeo told Mr Hilton by telephone that he was still consulting with his solicitors on the question of service. He said as soon as he had any information he would contact the ACCC. He also told the ACCC in an earlier telephone conversation that it was his intention to come back to Australia "in the near future". 12 As appeared from the initial conversation with Mr Yeo in 2006, Mr Yeo was instrumental in establishing the business of Study Overseas Now in Western Australia. He was a director along with his mother, Ms Patricia Yeo, and his sister, Ms Belinda Yeo. An incoming passenger card which Patricia Yeo completed in April 2006 showed her address in Perth as Unit 2, No 15 Evelyn Street, Gosnells. The address to which Belinda Yeo returned was an address in Bibra Lake. A letter was sent to each of them by the ACCC at their addresses on 10 April 2007. The letters elicited a letter in reply dated 20 April 2007 from Bowen Buchbinder & Vilensky who said they were acting for the two women. On 6 August 2007 the solicitors also said they had received instructions to accept service of the joinder application on behalf of Study Overseas Now. They said they did not act for and had no instructions to accept service on behalf of Mr Yeo. 13 On 7 August 2007 the solicitors for the ACCC wrote to Bowen Buchbinder & Vilensky asking if they would provide a current address for Mr Yeo. The solicitors replied, asserting, notwithstanding that they did not act for Mr Yeo, that the ACCC was "estopped" from joining Mr Yeo to the proceedings. There was more rhetoric than law in that statement but it was indicative of a degree of concern for Mr Yeo's interests. 14 It appears from incoming passenger cards that Mr Yeo has departed and re-entered Australia on more than one occasion in the past year. (2) Where the Court makes an order under sub-rule (1), the Court may order that the document be taken to have been served on the happening of any specified event, or on the expiry of any specified time. That rule applies where an official certificate or declaration is sent to the Court by a government or a court of a foreign country stating that attempts to serve a document on a person in that country in accordance with a convention or through the diplomatic channel have not been successful. In that event the Court may order such steps be taken as are specified in its order for the purpose of bringing the document to the notice of the person to be served. 17 The threshold condition upon the exercise of the power to order substituted service is that set out in O 7, r 9 namely that "for any reason it is impractical to serve a document in the manner set out in the Rules". The mechanisms for service set out in the Rules cover a number of ways of effecting service including personal service or service by prepaid mail to the last known address of the party to be served. There is also a deemed service of originating process where the respondent files an appearance or defence or appears in court. 18 There is authority for the proposition that an order for substituted service cannot be made in respect of a party outside the jurisdiction where leave has not been granted to serve that party out of the jurisdiction. There is, however, authority for the proposition that where such leave has been granted and service out of the jurisdiction cannot be effected, then an order for substituted service may be made. I do not consider that substituted service under O 7, r 9 is precluded by the provisions of O 8, r 7 which operates where there is an official notification that attempts to serve a document on a person in a foreign country have not been successful. In the present case, although the ACCC is aware that Mr Yeo has been in Japan on a three year working visa, it has been unable to obtain an address at which he can be served. In the circumstances it is not practical to attempt to effect service. In that circumstance it does not seem that O 8, r 7 has application. This leaves open the possibility of resort to the more general provisions of O 7, r 9. 19 There is authority for the proposition that no order for substituted service should be made in relation to a person out of the jurisdiction who has not been the subject of an order for leave to serve out of the jurisdiction: Laurie v Carroll [1958] HCA 4 ; (1958) 98 CLR 310 at 329. 20 The ACCC submitted that an order for substituted service can be made against a defendant who was out of the jurisdiction when the proceedings were issued but in relation to whom an order for service out of the jurisdiction has, or could have, been made. At this point the document to be served on Mr Yeo is a motion for his joinder. It is not the originating process itself. 24 I also have regard to the observations of Nicholson J in Mercator Property Consultants Pty Ltd v Christmas Island Resort Pty Ltd [1998] FCA 1150 and The Swan Brewery Co Ltd v Atlee [1998] FCA 277. See also Commissioner of Taxation v Ma [1999] FCA 1093 ; (1999) 92 FCR 569 where Emmett J observed that where respondents are out of Australia it is not appropriate to consider an order under O 7, r 9 for substituted service unless some leave is at least obtained to serve the proceedings outside the jurisdiction pursuant to O 8. 25 In this case Mr Yeo's mother and sister have addresses in Perth. Their solicitors have, in the course of correspondence with the ACCC, made an observation directed to the protection of Mr Yeo's interest. The same solicitors have acted for the company of which Mr Yeo, his mother and his sister were co-directors or for which they worked. In the circumstances, in my opinion, service of the notice of motion by delivery to the mother's address in Gosnells is likely to bring the motion to Mr Yeo's attention. I am also of the view, that as a practical matter, service on the solicitors would be likely to yield the same result. Mr Yeo has entered and re-entered Australia from time to time over the last two years and has been in contact with the ACCC. He has declined to cooperate with the ACCC by providing an address for service. In my opinion this is a case in which the orders sought on the motion should be made. I will direct also that a copy of the order be given to the solicitors albeit they are not instructed to represent Mr Yeo. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

service substituted service order for leave to serve out of jurisdiction service out of jurisdiction unable to be effected mother and sister living in jurisdiction co-directors of company with proposed respondent solicitors instructed by company and mother and sister proposed respondent entering and re-entering jurisdiction substituted service by delivery to mother's address copy to solicitors for company practice and procedure

The Franklins business was operated by Franklins Limited, the parent company of which was the Hong Kong-based Dairy Farm International Holdings Limited ("Dairy Farm"). Following a strategic review in 2000, Dairy Farm decided to "cut its losses and wholly leave Australia". To do so involved the sale or closure of 287 stores. 2 The Franklins supermarket chain had been one of three major national supermarket chains. The other two national chains were operated by Coles Myer Limited ("Coles") and Woolworths Limited ("Woolworths"). The exit of one of the three major players in the market plainly raised competition issues. In particular, if the entirety, or a large portion, of the Franklins business were sold to one of the two national competitors, this had the potential to infringe s 50 of the Trade Practices Act 1974 (Cth) ("the TPA") --- the prohibition on acquisitions that would result in a substantial lessening of competition. 3 On 22 May 2001, the Australian Competition and Consumer Commission ("the ACCC") announced that it had reached an in principle agreement with Dairy Farm. The agreement was for about 200 stores to be sold to independent retailers, and a maximum of 67 stores to be sold to Woolworths. This agreement was conditional upon acceptable undertakings being given by the parties to the ACCC. 4 Accordingly, on 4 June 2001, undertakings were given by Franklins Limited and Dairy Farm Management Services Limited (a subsidiary of Dairy Farm) to the ACCC pursuant to s 87B of the TPA ("the undertakings"). 5 Generally speaking, the intended effect of those undertakings was to ensure that as many as possible of the Franklins stores allocated for sale to independent operators did, in fact, end up being sold to those operators. As part of the undertakings, over 100 of the Franklins stores were earmarked for sale to independent supermarket operators pursuant to a process called the Joint Independent Divestiture Alliance ("JIDA") process. The JIDA process involved independent operators submitting "bids" for stores to the "JIDA Committee". The JIDA Committee was a body made up of representatives of Franklins Limited and Metcash Trading Limited, a wholesaler of groceries and stock to independent supermarkets. 6 The undertakings also required Franklins Limited to obtain the consent of the ACCC before selling any stores to Woolworths or Coles, other than the 67 stores the ACCC had already agreed could be sold to Woolworths. The undertakings further required Dairy Farm Management Services Limited and Franklins Limited to report to the ACCC any development that materially affected the sale of Franklins stores in accordance with the undertakings. 7 Woolworths also gave undertakings to the ACCC, dated 7 June 2001. Amongst other things, those undertakings prevented Woolworths from interfering in the JIDA process. 8 No undertakings were given by Coles. This was unsurprising, given that in mid-2001, there was no proposal before the ACCC for Coles to acquire any Franklins stores. 9 The applicant in this proceeding is a company which sought to purchase the Franklins store at Mentone, a suburb in Melbourne, Victoria ("the Mentone store"). While an agreement was reached for the sale of the Mentone store to the applicant, the respondents claim that they were unable to secure, from the landlord of the Mentone store, consent to an assignment of the lease to the applicant. As such, the respondents contend that they were unable to complete the sale and terminated, on notice, the sale agreement with the applicant. The Mentone store was ultimately sold to Coles for $2.3 million. This was the same price as had been negotiated with the applicant. 10 Mr Leo Blake is a director and shareholder of the applicant. The other director and shareholder of the applicant is Mr Blake's wife. Mr Blake owns a number of supermarkets, including the "Leo's Fine Food and Wine" stores at Kew and Heidelberg. In his view, the purchase of the Mentone store was a "one off opportunity". In simple terms, Mr Blake claims that the Mentone store should have been sold to him, and not to Coles. He claims that he failed to acquire the Mentone store as a result of the respondents' wrongful conduct, and claims damages that include the lost profits he would have earned from the Mentone business. 12 These proceedings were transferred from the Supreme Court of Victoria to this Court on 13 December 2002, following the addition of a claim against Coles for misuse of market power under s 46 of the TPA. At that time there were five respondents in the proceeding. As such, the names of the Franklins parties have changed. Franklins Limited is now Linknarf Limited (in liq) and FMS is now Linknarf Management Services Pty Ltd (in liq). I will refer to these parties jointly in these reasons for judgment as "Franklins". 14 At the time of the transfer of proceedings to this Court, the applicant relied upon numerous causes of action. They included claims under s 46 and s 52 of the TPA, as well as claims for inducing breach of lease, unlawful interference with lease, and tortious conspiracy as between Coles and the Lessor. 15 On 19 December 2003, I gave a judgment in relation to an application by the applicant for leave to amend its statement of claim: Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537. Further background to these proceedings is set out in those reasons for judgment. That decision was appealed to the Full Court: Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169. The effect of the Full Court's decision was that the applicant was able to plead claims of conspiracy as between Franklins Limited and Coles (in addition to its claim of tortious conspiracy as between Coles and the Lessor). 16 In May 2005, the applicant settled its claims against Coles, and the Lessor. It did not, however, resolve its claims against Franklins. In June 2005, Franklins, somewhat belatedly, sought leave to bring cross-claims against Coles and the Lessor. Such leave was refused: Dresna Pty Ltd v Linknarf Management Services Pty Ltd (In Liq) formerly Franklins Management Services Pty Ltd [2005] FCA 1011. 17 In its final incarnation, the application before me against the remaining respondents, the two Franklins parties, is an application for damages for breach of contract, breach of s 52 of the TPA, and breach of fiduciary duty. The first agreement is a business sale agreement dated 8 August 2001 between Franklins on the one hand, and the applicant and Mr Blake on the other. It will be convenient to describe this business sale agreement as "the Mentone BSA". The second agreement, which was said to be partially written, and partially oral, was entered into on or about 28 September 2001. That agreement, between Franklins and the applicant, involved them in jointly bringing proceedings, in the Supreme Court of Victoria, against the Lessor for unreasonably withholding consent to the assignment of the lease of the Mentone store to the applicant. For convenience sake, I will refer to this agreement as "the litigation agreement". 19 The applicant also claims that its joint collaboration with Franklins in pursuit of a common objective, namely obtaining the consent of Lessor to the assignment of the Mentone store lease, gives rise to a fiduciary relationship. The litigation agreement is said to be part of that joint collaboration. 20 The applicant submits that despite the existence of an agreement to sell the Mentone store to it, Franklins dealt with Coles and agreed, or had a "deal in principle" to sell the store to Coles ("the Franklins/Coles deal"). The applicant submits that this deal was part of a wider dealing between Franklins and Coles that took place in August 2001, that encompassed a number of stores, and was in disregard of the undertakings. The applicant contends that, in the context of this wider deal, the price for Mentone was negotiated in late August/early September 2001. This was well before Franklins gave notice terminating the Mentone BSA, on 28 November 2001, and well before it obtained ACCC consent for the sale to Coles, on 21 December 2001. 21 In the alternative, the applicant submits that Franklins and Coles entered into an agreement for the sale of the Mentone store on or about 23 November 2001. The applicant contends that Franklins did not disclose the existence of that agreement to it, or to the ACCC. The applicant also submits that Franklins did not disclose to the applicant the fact that it had made a confidential submission to the ACCC on 23 November 2001, seeking the ACCC's consent for the sale of the Mentone store to Coles. Together, I shall refer to these matters as "the late November 2001 dealings". 22 In addition, the applicant further submits that Franklins was aware, at least from 15 October 2001, of an arrangement between Coles and the Lessor, by which Coles had agreed to take up the lease on the Mentone store on a "vacant possession" basis ("the Lessor/Coles deal"). The applicant contends that Franklins failed to disclose its knowledge of that arrangement to it, or to the ACCC. 23 The applicant claims that the Franklins/Coles deal, the late November 2001 dealings, and Franklins' failure to disclose its knowledge of the Lessor/Coles deal, amount to breaches of Franklins' contractual and fiduciary obligations. 24 In addition, the applicant submits that these matters give rise to a claim of misleading or deceptive conduct under s 52 of the TPA, both in terms of Franklins failure to disclose these matters to the applicant, and its failure to disclose these matters to the ACCC. 25 The applicant contends that, had it been aware of these matters prior to the end of December 2001 (when the Mentone store was sold to Coles), it could have made use of the information to take steps to ensure the completion of the sale of the Mentone store to it. The applicant submits it would have done this either by taking legal action to force the assignment of the Mentone store lease, or by persuading the ACCC to refuse its consent for the sale of the Mentone store to Coles. 26 Likewise, the applicant contends that had these matters been disclosed to the ACCC, it would have intervened to ensure the sale of the Mentone store to the applicant. 27 The applicant claims that it has suffered loss as a result of these matters, including the costs expended in the Supreme Court proceedings taken against the Lessor and the lost profits the applicant would have earned had it acquired the Mentone store. However, the Lessor refused to consent to the assignment of the lease. Franklins joined with the applicant for a time in taking legal action against the Lessor to try to force the assignment. However, by November 2001, Franklins submits that it was apparent that time had simply "run out" in terms being able to complete the sale to the applicant before the complete closure of the Franklins business at the end of January 2002. On 16 November 2001, at a directions hearing in the proceedings Franklins and the applicant brought against the Lessor, Habersberger J indicated that the matter would not be able to be given a trial date in 2001, and set the matter down for further directions on 15 February 2002. Shortly after that directions hearing, on 28 November 2001, Franklins terminated the Mentone BSA. Only after ACCC consent was obtained on 21 December 2001, according to Franklins, did it negotiate the sale price of the Mentone store with Coles. 29 Franklins claims that it was known or understood by the applicant at all material times that some of the stores originally allocated for sale pursuant to the JIDA process would ultimately be sold to Coles. This, Franklins submits, would be for a variety of reasons. One potential reason was that no appropriate bids had been received for a store. Another potential reason was that a landlord may refuse to assign the store lease to an independent operator. 30 Furthermore, Franklins contends that at all material times it made the applicant aware that it needed the support of its Hong Kong parent company, Dairy Farm, to remain solvent, and that this support would not continue beyond the end of January 2002. Consequently, Franklins submits, the managed sell-down needed to be completed within a narrowly confined timeframe. 31 Turning specifically to the alleged "deals" between Franklins and Coles, Franklins submits there was no deal in relation to the sale of the Mentone store prior to late December 2001. It contends that the price for the Mentone store was only agreed between 21 December 2001 (the date upon which ACCC approval was given for the sale of the Mentone store to Coles) and 24 December 2001 (the date the agreement to sell the Mentone store to Coles was signed). Franklins submits that the first time the potential sale of the Mentone store was discussed between Coles and Franklins was on 23 November 2001 and, following one last attempt obtain the Lessor's consent to the assignment of the lease, which attempt was rejected on 27 November 2001, the ACCC was approached to obtain its consent to sell the store to Coles, and the Mentone BSA and litigation agreement were terminated. 32 Franklins does not dispute that it made its submission to the ACCC on 23 November 2001, five days before both giving notice to terminate the Mentone BSA and terminating the litigation agreement, on 28 November 2001. 33 In relation to the Lessor/Coles deal, Franklins does not deny the existence of such a deal. It is clear on the evidence that an agreement between the Lessor and Coles was signed on 29 June 2001. This was revealed in the Supreme Court proceedings on 18 December 2001 after the Lessor responded to a subpoena to produce documents, and was disclosed in an affidavit of Mrs Judith Wasser, the director and "owner" of the Lessor, filed the following day. 34 As previously indicated, the nature of the Lessor/Coles deal was that Coles agreed "in principle" to take up the lease of the Mentone store on a vacant possession basis. The idea behind the arrangement was that if the Lessor refused to consent to Franklins assigning the lease, Franklins would be forced simply to close the Mentone store. The property would then be vacant, and Coles could take up the lease. This would allow Coles to acquire the Mentone store without having to obtain ACCC approval, as the undertakings did not apply to Coles or the Lessor. 35 Coles stated in its offer to the Lessor, dated 6 June 2001, that "it is not our intention that you breach any contractual obligations that you may have in respect of the Site". However, the terms of the Lessor/Coles deal required the Lessor to use reasonable endeavours to ensure that Franklins continued to trade until the proposed Coles lease commenced and to negotiate to acquire stock from Franklins which Coles would then purchase from the Lessor. It is clear that the Lessor/Coles deal was an attempt to effect a practical outcome as close to assignment as possible, while trying to avoid unlawful interference with the Lessor's obligations under the existing lease. 36 The issue in this proceeding is the time at which Franklins became aware of the Lessor/Coles deal. In its final submissions, Franklins did not reject the contention that it knew of the Lessor/Coles deal prior to 18 December 2001. In relation to the line of causation through the ACCC, namely that the ACCC would have blocked the sale of the Mentone store had it known of the Lessor/Coles deal, Franklins submits that there is no evidence to support this contention. In relation to the line of causation through the Supreme Court proceedings, namely that an expedited hearing would have been obtained, and judgment given in the applicant's favour, had the Court been told of the Lessor/Coles deal, Franklins contends that the case could not be brought on for hearing in 2001, irrespective of whether or not the Court was told of the Lessor's "collateral purpose" in refusing assignment of the lease. And, Franklins submits, even if the case had been brought on in 2001, there is no assurance that the applicant would have succeeded. His evidence also provides helpful background to the circumstances surrounding the sale of the Mentone store. 40 In late May 2001, Mr Blake became aware that the Mentone store was available for purchase from Franklins. Mr Blake says that he was keen to purchase the Mentone store because of what he regarded as favourable rent on the property, the lease being a long term lease, there being less competition in that area than others, the car parking facilities, the customer base and the potential to upgrade the liquor licence. 41 Mr Blake said that he regarded the sale of the Mentone store as a "one off opportunity" because independents are not usually able to acquire stores of this type. 42 On 31 May 2001, Mr Blake met with Mr Geoff Webb. Mr Webb was contracted by Franklins to assist with the JIDA process. During the course of that meeting Webb gave me various documents in relation to the sale of Franklins stores, some of which I had already received. He said that he was here to do a deal. I asked him whether he had authority to do a deal given the formal bidding process outlined by Franklins. He said that he did. I offered to pay $2 million for Mentone. He stated that Mentone was a very profitable store and if I wanted Mentone I would also have to take a "dog store" with it, rather than cherry pick the good store. I offered $2m for Mentone and $500,000 for North Blackburn. He said the $500,000 for the North Blackburn store was okay. He then consulted a document in his briefcase and said that the $2,000,000 offered for Mentone was insufficient. I then said "What price was Franklins looking for? " He responded by saying "$2.3 million because the store is showing a profit of $1.25 million". I then said "Are you in a position to do a deal now if I offered $2.3 million and the $500,000 now? " Webb said "Yes". The JIDA process involving buyers bidding for stores and those bids being considered by the JIDA committee had been well-documented in the supermarket industry. Mr Blake wrote a short handwritten note to "cement" the deal which both he and Mr Webb signed. 44 Following this meeting, Franklins denied any agreement to sell to Mr Blake because he had not followed the proper process, namely submitting a bid to the JIDA Committee, and because Mr Webb was not authorised to sell. 45 However, after proceedings were commenced by Mr Blake against Franklins ("the Webb proceedings"), Franklins agreed to honour the deal struck between Mr Blake and Mr Webb, and on 8 August 2001, the applicant and Franklins entered into the Mentone BSA for the sale of the Mentone store. 46 Clause 4.1 of the Mentone BSA provided that a condition precedent to the completion of the sale was for the Lessor to give its consent to the transfer of the lease. Clause 4.2 provided that the parties to the sale must use "reasonable endeavours" to satisfy this condition. 47 On or about 13 August 2001, Mr Blake met with Ms Susan Herbert of Arnold Bloch Leibler ("ABL"), solicitors for the Lessor. He provided her with a submission in support of the assignment. By early September 2001, the Lessor had not given its consent to the assignment. Despite this, Mr Blake gave evidence that after the signing of the Mentone BSA, he prepared for the refurbishment of the Mentone store which he planned to undertake. This included meeting with subcontractors such as plumbers, carpenters and electricians. He proceeded with this work because, in his opinion, the Lessor had no basis upon which to object to an assignment of the lease. On 7 September 2001, Mr Herbert Fischbacher of Mason Sier Turnbull, Mr Blake's solicitors, wrote to Franklins offering, among other things, to indemnify Franklins if they issued proceedings against the Lessor seeking orders to compel it to consent to an assignment of the Mentone store lease. 50 A supplementary submission was then made by Mr Blake to the Lessor, which included the offer of further security by way of personal and bank guarantees equivalent to the sum of 12 months rent. On 24 September 2001, the Lessor again rejected the request to assign the lease. Preparations were then made for Franklins, indemnified by Mr Blake, to take legal action against the Lessor to force the lease assignment. 51 On 16 October 2001, proceedings were commenced against the Lessor by FMS, the applicant, and Mr and Mrs Blake. Directions hearings before Habersberger J were held on 19 October 2001 and 16 November 2001. On 27 or 28 November 2001, Mr Blake was informed by Mr Fischbacher that Franklins had decided to pull out of the litigation and would serve a notice of termination of the Mentone BSA. An injunction restraining Franklins from disposing of the Mentone store was granted on 10 December 2001, but was dissolved on 20 December 2001. 52 Mr Blake says that he was informed by some contractors, on 13 December 2001, that Coles was seeking tenders to fit out the Mentone store. He gave this information to his solicitor, Mr Alan Foster (after Franklins pulled out of the litigation, Mr Blake changed solicitors), and on 18 December 2001, Mr Blake says he became aware for the first time that Coles "had done a deal" with the Mentone landlord. Mr Blake also gave evidence that he did not have any knowledge of any dealings between Franklins and Coles in relation to Mentone, prior to the termination of the Mentone BSA. 53 Mr Blake says that had he known of the Lessor/Coles deal on or about 15 October 2001 (the date Mr Blake says he now understands that Franklins knew of that deal), or had he learned of any dealings between Franklins and Coles in relation to the Mentone store while the Mentone BSA was on foot, he would have instructed Mr Fischbacher to take "whatever steps were available to secure the store". He also says he would have contacted the ACCC himself, or through his lawyer. 54 Mr Blake says that the Mentone store was very important to him and his business, and that he would have done everything he could to ensure he obtained it. 55 Under cross-examination, Mr Blake acknowledged that, in general he was aware that a landlord may be able to thwart the sale of a supermarket to an independent by refusing to consent to the assignment of the lease. He also acknowledged that he was aware of the clause in the Mentone BSA that provided that the Lessor's consent to the assignment of the lease was a condition precedent to completion of the sale. He further acknowledged that by mid-August 2001, it was well-documented in the press that a number of independent supermarket buyers were having difficulty getting consents from landlords because landlords preferred chain operators, namely Coles and Woolworths, as tenants. This was because they believed that having a chain store as a tenant increased the capital value of their property. However, Mr Blake said that he believed that in his case there would be no problems getting an assignment from the Lessor, and on this basis he began preparing for the store refit to ensure that the Mentone store was ready for trading at Christmas. His main area of expertise is industrial relations law. However, he is also experienced in commercial transactions and litigation. He was responsible for the conduct of the Supreme Court litigation against the Lessor for both Mr Blake and Franklins, up until 30 November 2001. At that time, the solicitors for Franklins claimed that Mason Sier Turnbull, Mr Fischbacher's firm, was precluded from acting on behalf of Mr Blake in the litigation against the Lessor. 57 Mr Fischbacher gave evidence relating to the circumstances in which he sought the consent of the Lessor to the assignment of the Mentone store lease to the applicant. He gave evidence about his communications with Ms Herbert, solicitor for the Lessor, and explained how a number of his calls, seeking assignment of the lease, were ignored or not returned over August and September 2001. He also explained that ABL gave him "excuses" as to why instructions could not be obtained from Mrs Wasser in relation to the assignment request. 58 Mr Fischbacher then explained how Mr Blake and Franklins had arranged to commence proceedings against the Lessor for unreasonably withholding consent to the assignment, and the course that those proceedings took. As previously indicated, the first directions hearing took place before Habersberger J on 19 October 2001. The Lessor was represented by Ms Gordon. The plaintiffs were represented by Dr Croft SC and Mr Osborne. At that first directions hearing, Habersberger J refused Dr Croft's application for the matter to be given a hearing date straight away. A further directions hearing was held on 16 November 2001. At that hearing Mr Osbourne appeared for the plaintiffs and Mr Nettle QC and Ms Gordon for the Lessor. Habersberger J indicated at that point that a hearing in December 2001 was impossible and that the earliest a further directions hearing could be held was 15 February 2002, at which time his Honour would consider setting the matter down for trial. 59 In his examination in-chief, Mr Fischbacher gave evidence about a meeting he had on 19 November 2001 with Ms April Arslan and Mr Roger Stansfield, of Home Wilkinson and Lowry ("HWL"), solicitors for Franklins. Ms Mary Weir, General Counsel for Franklins, was also present by way of telephone hook up. However, Mr Fischbacher says that he assumed there was no way Coles could obtain the store. 62 Mr Fischbacher's evidence was that during the period between August to late December 2001, he had "no idea" of the existence of the Lessor/Coles deal. He says that had be been told about this deal on or before 15 October 2001, his "whole strategy would have been fundamentally different". He asserts that the case against the Lessor would have been "much simpler and more powerful" if it could have been shown that the reasons for refusing consent to the assignment were "merely a pretext". Similarly, Mr Fischbacher says had he known of the "dealings" between Franklins and Coles in relation to the Mentone store, prior to 29 November 2001 (when he says he became aware of Franklins seeking the ACCC's consent to sell the store to Coles), this would have also "fundamentally" changed his strategy. He says he may have contemplated commencing proceedings against Franklins, in addition to the Lessor. Mr Fischbacher also says he would have "reported" any dealings to the ACCC. 63 Under cross-examination, Mr Fischbacher acknowledged that he was aware of other independent operators who were experiencing difficulties similar to those of the applicant in obtaining consents to assignments of leases over Franklins' stores. He also acknowledged that he had "suspicions", by about mid-October, that Coles was interested in the Mentone store and that the Lessor may have wanted Coles as a tenant. I share your view that, in my opinion, the landlord would not accept this as an alternative to, say, Coles Myer taking the lease. He is currently the Managing Director of Coles Myer Supermarkets. Mr Masters was the primary point of contact within Coles for Mr Ian Cornell, the Managing Director of Franklins Limited, over the period of the managed sell-down. During 2001, Mr Masters had various discussions with Mr Cornell about the possible sale of Franklins stores to Coles. Mr Masters' evidence goes to the existence of the Franklins/Coles deal, and to the November 2001 dealings. 66 It is fair to say that Mr Masters' recollection of events in 2001, beyond the general, was not strong. However, his evidence does provide helpful background to Coles' commercial goals before and during the managed sell-down. 67 Mr Masters gave evidence that in about mid-2000, Coles had become aware that Franklins was considering quitting the Australian market. It commissioned a merchant banking firm to consider the acquisition of Franklins stores. That project became known as "Project Lincoln". This led to Coles making an offer to acquire a package of Franklins stores in late 2000/early 2001. That offer was rejected. However, in early 2001, Dairy Farm asked Coles to submit a new offer whereby stores in all States were "cherry picked". On 16 February 2001, Coles offered to acquire 116 Franklins stores, conditional upon Coles acquiring 21 "core stores". Mentone was included in the 116 stores, but was not identified as a "core store". That offer was rejected by Franklins as well. 68 Mr Masters gave evidence that at some stage after this, Franklins announced the sale of the parcel of stores to Woolworths and announced the JIDA process. Accordingly, Coles appeared to have been "shut out of the deal". Mr Masters was shown a draft memorandum dated 24 April 2001 from Mr Dennis Eck, the Managing Director of Coles, to Coles Directors. That draft memorandum asked "how did this position develop". He identified the document as one that had been read by him at the relevant time. The draft memorandum concludes by stating "[f]inally we will open dialogue with the landlords at the appropriate time but mindful of Dairy Farm's threat". Mr Masters was not asked to explain what the Dairy Farm "threat" referred to. 69 Coles continued to express its interest in purchasing Franklins stores following the announcement of the Woolworths sale and JIDA process. Mr Masters recalled that some time after the announcement of the JIDA process, Coles contacted a number of landlords of Franklins stores, expressing an interest in taking on the lease of the store, provided those landlords were "free to deal" with Coles. 70 Mr Masters referred to an internal Coles memorandum sent to himself, amongst others, from the Coles Property Department. The memorandum was dated 17 May 2001, and indicated that Coles had contacted the landlords of 106 Franklins stores over the preceding 24 hours. The Mentone store was listed as one of the 106 stores. Mr Masters explained that Coles continued to have discussions with landlords during this period. 72 Mr Masters gave evidence that he and Mr Cornell had various discussions about the possible sale of Franklins stores which might be available to Coles. He referred to a number of internal communications in relation to "Project Lincoln", none of which mentioned the Mentone store specifically. Those communications included a memorandum dated 29 June 2001 from Mr John Kop, the project manager for Project Lincoln, and Ms Rebecca King, an employee in the Coles Property Department, to Mr Masters. This process is operating separately to any other negotiations that may be taking place. 74 Mr Masters was subject to wide-ranging and thorough examination by Mr Garratt QC, counsel for the applicant. At one stage, Mr Garratt sought, and was granted, leave to cross-examine Mr Masters. 75 In relation to the specific dealings between Mr Cornell and Mr Masters, Mr Masters stated that he did not recall Mr Cornell saying the Mentone store was not available to Coles. In fact, he could not recall any specific conversation with Mr Cornell in relation to the Mentone store at all. Nor, strangely, was Mr Masters aware of Franklins giving undertakings to the ACCC. He stated that they formed no part of his thinking when dealing with Mr Cornell. 76 Mr Masters was unable to explain how the same purchase price as that which Mr Blake had agreed to pay for the Mentone store had also been negotiated by Coles. He was however, taken to an email, sent from Mr Nat Portelli, a senior employee in the Coles Property Department, to him on 10 October 2001. 78 Mr Masters confirmed that Coles' preference was to acquire stores as going concerns. He said that he would have thought that Coles would not have been able to conclude a deal with a landlord, without having concluded a deal with Franklins. He said he would have thought the two deals would have been done together. 79 Mr Masters said that in general, due diligence would take place after an in principle agreement had been struck between himself and Mr Cornell. He said due diligence was not used as a price negotiation tool. Mr Masters was shown a bundle of documents. He agreed that the documents appeared to be due diligence reports conducted in relation to the Mentone store. The reports all bore dates of mid-December 2001. 80 Mr Masters was taken to a document headed "Discussion with I.C. today (23/11/01)". Mr Masters identified the first page of that document as having been prepared by himself, and the following pages as having been prepared by either Ms King or Mr Kop. The first page noted that Franklins were preparing a submission to the ACCC. That submission would outline that "[d]espite all Franklins' best efforts there are a group of stores that remain unresolved and this position won't change " and "Franklins will argue that the best result for all concerned is if they are allowed to sell there [sic] stores to CML". The note also recorded that Franklins would have a meeting with the ACCC on 27 November 2001, and that "I.C. " (presumably Mr Cornell) would telephone Coles with an update on the evening of 27 November 2001. The note then stated that Franklins believed they would have a response from the ACCC by the middle of the following week, and that "[i]f everything is okay we will start the usual checks and approval processes within the company". 81 The following pages of this document began by stating "[t]he purpose of this paper is to set out the current position and the opportunity for CML to participate in the final stage of the Franklins exit from Australia". Of these 13, due diligence has already been conducted on 6. No breakdown of the $18.2 million figure was found in any documents produced by Franklins or Coles. 83 Under cross-examination, Mr Masters agreed that neither Mr Cornell nor he would have engaged in negotiations concerning Franklins stores unless Mr Cornell was "free to deal" with a particular store. When it was suggested that Mr Cornell told Mr Masters at their meeting in June that Coles should not interfere in the JIDA process by contacting landlords of stores which had been the subject of successful JIDA bids, Mr Masters said he had no recollection of this, but did not deny it either. Mr Carter was employed by Coles in 2001, and worked in Coles' property division in Victoria. However, he no longer works for Coles. 85 During the period of the Franklins managed sell-down, Mr Carter was involved with the strategy to contact and negotiate with landlords of Franklins stores directly. Mr Carter sent the original letter of offer to the Lessor on 6 June 2001, as well as the final letter of offer that was signed by the lessor on 29 June 2001. The letter of offer essentially constituted an agreement based upon Coles taking vacant possession of the Mentone store and entering into a new lease. Mr Carter sent out similar letters of offer to other landlords of Franklins stores. Nothing in this letter is intended to lead to you breaching those contractual obligations. However, on the basis that you are able to deal with us, we put the following offer to you. 88 Mr Carter was asked about any meetings he had with Mrs Wasser or her legal advisers. He did not have any specific recollections, but believed that there had been at least one meeting. Mr Carter was taken to documents that indicated that discussions between Coles and Mrs Wasser and her advisers had taken place after the original 6 June 2001 letter of offer was sent out, and which led to the terms of the offer being amended. 89 Mr Carter was taken to a letter, faxed on 18 October 2001, from Coles to Mrs Wasser. 91 Mr Carter accepted, under cross-examination, that it would be a fair summary of Coles' position that it was very keen to get the Mentone store. He gave evidence as to the value of the income stream that would have accrued to the applicant had it succeeded in acquiring the Mentone store in 2001. 93 Mr Acton assessed the value of the income stream foregone as being between $9.2 million and $9.9 million. He has 46 years experience in the supermarket industry, including as a supermarket owner, as Chief Executive Officer of independent chains of supermarkets, and as the head of a large distributor of groceries. 95 Mr Hayes' evidence went to the success of Mr Blake's supermarket operations. He considered Mr Blake to be a remarkable retailer, and one of the top independent operators in the industry. He noted that Mr Blake has succeeded in both the top end of the supermarket industry, with his Leo's Fine Food & Wine operations, and in the budget end of the market, with his Maxi Foods supermarket. Mr Hayes said that Mr Blake had an excellent commercial reputation in the supermarket industry, both in 2001 and today. These aspects of Mr Hayes' evidence were not challenged. He took over the conduct of the proceeding on behalf of the applicant on 30 November 2001, following Franklins giving notice of termination of the Mentone BSA and termination of the litigation agreement. At that time, as was previously mentioned, Franklins claimed that Mason Sier Turnbull, Mr Fischbacher's firm, was precluded from acting on behalf of Mr Blake in the litigation against the Lessor. 97 Mr Foster gave evidence that he first became aware that Coles may have entered into an agreement or an arrangement in relation to the Mentone store on 14 December 2001. The works are to be carried out between 16 and 21 January 2002. He also gave evidence as to the costs incurred in respect of that litigation from 30 November 2001 to 20 December 2001. 99 Mr Foster was cross-examined as to his evidence in relation to costs. However, it is unnecessary to say anything further about that matter. He was the Commissioner responsible for mergers, and accordingly, had oversight of the Franklins managed sell-down. Mr Jones was subpoenaed by the applicant to give evidence. 101 The importance of Mr Jones' evidence is as follows. Assuming that the ACCC had been aware of the Franklins/Coles deal, or the Lessor/Coles deal, what steps, if any, would it have taken? Specifically, would it have refused consent to the sale of the Mentone store to Coles? Accordingly, Mr Jones' evidence goes to the issue of causation of loss or damage. 102 In Mr Jones' evidence in-chief, he outlined certain aspects of the undertakings. He stated that, pursuant to the undertakings, Franklins Limited was required to obtain the prior written consent of the ACCC before selling a store to Woolworths (other than 67 stores that Woolworths had already been permitted to purchase) or to Coles. Furthermore, Franklins Limited was also required to report to the ACCC any development that materially affected the sale of stores in accordance with the undertakings, or might prevent completion of the sale of Franklins stores in accordance with the undertakings. It was required to do so within two business days of Franklins becoming aware of the development. 103 Mr Jones' evidence was that the ACCC was very reluctant to give its consent to the sale to Coles or Woolworths of a store assigned for sale pursuant to the JIDA process, unless it became apparent the store could not be sold to an independent. 104 Mr Jones stated that if there were discussions between Coles and Franklins about the sale to Coles of the Mentone store, in early or mid-August, either as part of a parcel of stores, or on its own, the ACCC was unaware of them. He stated that if such discussions had taken place, they should have been reported to the ACCC as "material developments", pursuant to the undertakings. However, under cross-examination, Mr Jones agreed that the undertakings did not extend to preventing Franklins from discussing stores with Coles, and that the ACCC was aware this was happening. He also acknowledged that the ACCC always expected that some of the JIDA stores which could not be sold to an independent would ultimately be sold to Coles. 105 Mr Jones considered that if Coles had informed Franklins that it had "done a deal" with the Lessor on the basis of vacant possession, Franklins would be under an obligation to report this to the ACCC. 106 Mr Jones readily acknowledged under cross-examination that there was no obligation on the part of Coles to reveal to the ACCC that it had concluded agreements with landlords, save for any local competition issues that may arise from Coles taking over a particular store. Nor was there any such obligation imposed upon landlords. 107 Mr Jones acknowledged that it was "quite reasonable to think" that the ACCC assumed by November of 2001 that a position had been reached between many landlords and Coles that if vacant possession was available, Coles would take up the lease on the store. Mr Jones said that this seemed to be a logical reason why some landlords were adopting a "hard-nosed attitude" in terms of refusing assignment of leases to independents. He said he could not think of another good reason why a landlord would do this unless it had some sort of arrangement with Coles. 108 Mr Jones' analysis accorded with a file note, tendered before me, prepared by Mr Russell Phillips, Director of Mergers and Asset Sales at the ACCC, of a discussion between himself, Mr Jones and representatives of Metcash on 28 November 2001. Mr Phillips worked under Mr Jones. The discussion was generally described as "about the JIDA process and how the process is to conclude". Landlords would not be so hard nosed if they didn't have the Coles option up their sleeve. But if that looks unlikely, he does not see merit in forcing the closure of the stores along with the disruption to trading/competition and employee entitlements. Should this happen, Coles will finish with the stores anyway and so there are costs for no benefits. Metcash would also be a loser as it would not get the sales volume from the nine stores. The "winner" would be Coles as it would get the stores for no cost. Metcash will lose either way but competition, employees and specialty store owners are better off if consents are granted (note: the one exception was Belmont, where a sale to Coles is undesirable on local competition grounds). It is interesting to note that even though the note records that the ACCC had local competition concerns in relation to a store at Belmont, a suburb of Newcastle, Mr Jones gave evidence that the ACCC ultimately gave its consent for this store to be sold to Coles as well, rather than forcing Franklins to close it. 113 Another file note prepared by Mr Phillips of a discussion held with Mr Jones on 19 December 2001 states that Mr Jones "also decided that Mentone could be offered to Coles if the Court decision on Thursday goes the same way as the Hampton Park decision". In the Hampton Park case, a landlord was refusing to assign the lease to another independent operator. In that case, Mr Phillips had reported to Mr Jones that the judge had "agreed to listen to case on its merits in January" and that "the Court appeared to have some sympathy for the landlord's position". 114 Mr Jones was also taken to a letter written by Mr Mark Pearson of the ACCC to Mr Blake's solicitors in response to their submission, made on 2 January 2001, that the ACCC intervene in the sale of the Mentone store to Coles. The letter was dated 8 January 2002. In general terms, Mr Jones indicated that the letter accurately reflected the ACCC's position at the time. In fact, it was Coles that informed the Commission of its intended actions. ... The Commission formed the view that the approaches made by Coles to landlords were not a contravention of the Trade Practices Act 1974 ". It also provides helpful background to the circumstances surrounding the managed sell-down. 117 Mr Cornell was the Managing Director of Franklins Limited between January 1999 and Easter 2002, and was responsible for conducting the managed sell-down. By 2002, Mr Cornell had had 26 years experience in supermarket retailing. 118 Mr Cornell explained that Franklins had lost money for three out of four years before the year ending December 2000. Following these losses, it was decided that the Franklins' supermarket business should be sold off. In about July 2000, Dairy Farm unsuccessfully attempted to find an overseas buyer for the business. In late 2000, Mr Cornell had discussions with Aldi, a German owned retailer, about the possibility of purchasing some of Franklins' stores. Ultimately, these discussions were also unsuccessful. 119 In about November 2000, Mr Cornell approached the ACCC to try to establish a basis upon which Franklins could be sold domestically. Mr Cornell said that he knew the ACCC would have to approve any sale, by reason of the competition concerns that would arise out of such a transaction. 120 In December 2000, Mr Cornell had discussions with Coles about buying Franklins stores. Coles made what Mr Cornell considered to be a "ridiculously low offer" for Franklins' Queensland and New South Wales stores. Mr Cornell said that he thought then that Coles were not seriously interested in buying Franklins' stores, or were "totally unrealistic" about any possible purchase of stores. At the same time, discussions were progressing with Woolworths for the purchase of Franklins stores. Twenty stores were allocated for closure under the proposal. 122 Following negotiations with the ACCC, on 18 April 2001, Franklins announced the managed sell-down. It stated that approximately 120 stores would be sold to independents under the JIDA process and approximately 80 stores would be sold to Woolworths. 123 On 15 May 2001, Mr Cornell participated in a video conference with, amongst others, Mr Jones and Mr Phillips of the ACCC. Mr Cornell gave evidence that Coles' contact with landlords and its likely interference with the process of stores going to independents were topics of discussion. He said that he, or one of his advisers, told the ACCC that Dairy Farm would prefer not to allocate stores to Coles, but rather would prefer to offer them to independents through the JIDA process, with Franklins seeking the ACCC's consent to offer any unsold stores to Coles. He told the ACCC that Dairy Farm expected Coles would get approximately 30 stores at the end of the process, most of these being large stores with "landlord problems". 124 After these further discussions with the ACCC, the ACCC announced on 22 May 2001, as previously mentioned, that it had come to an in principle agreement with Dairy Farm for the sale of about 200 stores to independents, and a maximum of 67 stores to Woolworths. 126 Mr Cornell gave evidence as to the ACCC undertakings and the JIDA process. It is unnecessary to summarise the detail of that evidence. 127 Turning to the Mentone store itself, Mr Cornell explained that Mentone was included in the list of stores which Woolworths had wanted to buy in early 2001. However, when the ACCC approved the sale of only 67, rather than 79, stores to Woolworths, the Mentone store fell out of the Woolworths acquisition, and was included in the JIDA process. 128 Following the close of bids for JIDA stores, Mr Cornell met with Mr Masters and Mr Tim Hammon, Coles' legal counsel, on 19 June 2001. He says that they had general discussions about Coles' interest in stores that could not be sold through the JIDA process, or where Coles was likely to end up as the only possible purchaser. Mr Cornell said that while he did not recall the detail of the discussions, the Mentone store was not discussed because it had been the subject of a successful bid under the JIDA process, and therefore was "off the table" as far as he was concerned. The "successful bid under the JIDA process" was a reference to the fact that prior to Franklins agreeing to sell the store to the applicant (in settlement of the Webb proceedings), another company, Ritchies, had been selected as the purchaser of the store. 129 Mr Cornell also says that during the meeting he told Mr Masters and Mr Hammon in general terms that Coles should not interfere with the JIDA process by contacting landlords of stores where successful bids had been made. 130 Mr Cornell gave evidence relating to his meetings with the ACCC in July 2001, following the closure of bids for JIDA stores. Franklins had a list of about 20 stores that it wished to offer to Coles. According to Mr Cornell, Mr Phillips at the ACCC said he understood Franklins' position and the likelihood that these stores could go to no-one other than Coles. 131 On 3 August 2001, Mr Cornell sent a note to Mr Masters listing 22 stores he wished to discuss with him. Mr Cornell said that the Mentone store was not on that list, and that when he later spoke with Mr Masters about these stores, Mentone was not discussed. 132 Mr Cornell said that he did remember at least one occasion, which must have been after August 2001 but well before November 2001, when Mr Masters mentioned the possibility of Coles acquiring the Mentone store. Mr Cornell said that he told Mr Masters that the Mentone store was not available to Coles, and that it had been sold to Mr Blake. 133 On 8 October 2001, it was announced that 18 stores and two sites (without stores yet operating) would be sold by Franklins to Coles. On 18 October 2001, Mr Cornell attended a meeting with Mr Phillips to discuss further stores which Franklins wished to offer to Coles, as well as reporting on other stores, including Mentone. A file note of the meeting records that the Mentone store was discussed as being the subject of litigation. 134 Mr Cornell gave evidence as to the successful JIDA bid by Ritchies and the subsequent litigation and settlement agreement with Mr Blake. Mr Cornell said that he settled the Webb proceedings because he was under instructions from Dairy Farm to complete the managed sell-down expeditiously, and the matter was likely to be protracted. In his opinion, "Franklins did not have time for lengthy litigation over who was to be the purchaser of an individual store". 135 After the signing of the Mentone BSA, Mr Cornell says that he instructed Ms Weir and Franklins' property officers to give priority to obtaining the Lessor's consent to the assignment of the Mentone store lease to the applicant. I will let you know so that Alan Rattray-Wood can contact Mr Blake and organize to meet the landlord. However, should this arise on either or both stores, we have agreed with Ritchies that they can purchase the stores. Nevertheless, we will be doing all things necessary to secure landlord consent for the sale to Blake. Mr Cornell stated that after obtaining advice from Ms Weir, he decided that Franklins would take legal action against the Lessor to compel it to assign the Mentone lease to the applicant, provided that Franklins were indemnified for costs of the proceeding by Mr Blake and his corporate entities, and provided that the proceedings were conducted expeditiously and finalised before the end of 2001. 137 Mr Cornell said that on 7 November 2001, he was instructed by Dairy Farm that Franklins must cease operating all stores by 31 January 2002. After this date, Dairy Farm would not provide any financial support. Mr Cornell said he was told that this instruction was final and irrevocable. To contravene the direction would expose him to personal liability. He said that the implication of the instruction was that sales of stores had to be finalised in December 2001, with transfers finalised in January 2002. 138 When the Supreme Court refused the application for expedition in the proceedings Franklins and the applicant had taken against the Lessor, Mr Cornell says that he had only two options in relation to Mentone and the other remaining stores. The first option was to try to sell them to Coles (or perhaps Woolworths) with ACCC consent. The second was to close the stores and surrender the leases. Mr Cornell said the first option was best. However, it could take some weeks to complete. The second option meant that Franklins would obtain no value for the store, and risked attracting claims for damages. 139 On that basis, Mr Cornell said that he instructed Franklins' external solicitors to make confidential submissions to the ACCC to seek its consent in offering the nine remaining stores to Coles. That submission was made on 23 November 2001. On the same day, Mr Cornell said that he spoke with Mr Masters about the remaining Franklins stores. Mr Cornell said that he believed that during this conversation, he and Mr Masters discussed "global indicative" or "ball-park" prices for the remaining stores that each of the companies would expect. He did not recall discussing an indicative price for the Mentone store. 140 Mr Cornell said that he did not "offer" these stores to Coles for sale at that time. He said he was still keen to get as many as possible to independents. Mr Cornell gave evidence that he instructed Ms Weir to make one last approach to the Lessor and offer to "buy" an assignment of the lease over the Mentone store. That offer was refused on 27 November 2001. 141 On the same day, Mr Cornell attended a meeting in Canberra with Mr Jones and Mr Phillips from the ACCC. The ACCC's consent in relation to the nine remaining stores was discussed. On 28 November 2001, notice to terminate the Mentone BSA was served and the litigation agreement was terminated. On 5 December 2001, the ACCC advised by letter that it did not consent to the sale of the Mentone store to Coles, due to it still being subject to legal proceedings. It did, however, consent to the sale of some of the other nine stores to Coles. 142 Mr Cornell gave evidence that by early December 2001, Franklins no longer had a buying, marketing or advertising department, and had either disposed of or sold all of its warehouses. He gave details about the winding down of other parts of the company during December 2001. In early December 2001, Mr Cornell expected that Franklins would have no substantial business assets by the end of that month, other than the unsold stores. 143 As previously mentioned, on 10 December 2001, an interim injunction was granted in the Supreme Court proceedings restraining Franklins from selling the Mentone store. That injunction was dissolved on 20 December 2001. When the injunction was dissolved, the ACCC consented the following day to the sale of the remaining stores to Coles, including Mentone. 144 Mr Cornell said that it was after this consent was received that he spoke with Mr Masters about the sale price of the remaining stores. He said that Coles originally offered less than the $2.3 million that Blake had agreed to pay. However, on 24 December 2001, Franklins and Coles signed agreements for the sale of the remaining stores. The sale price for Mentone was agreed to be $2.3 million, plus stock. 145 Mr Cornell stated that there was no "secret deal or arrangement" between Franklins and Coles in relation to the Mentone store. He stated that when the deal was done with Mr Blake, he believed it was in Franklins' best interests to sell the store to the applicant. According to Mr Cornell, it was only when Franklins was running out of time that he considered a sale of the Mentone store to Coles. 146 Mr Cornell emphasised the enormity of the managed sell-down, a project completed over an eight to nine month period. He stated that it involved dealing with a wide variety of stakeholders, and that continual problems arose. Mr Cornell said that he devoted a disproportionately large portion of time to attempting to finalise the sale of the Mentone store to the applicant, given that Mentone was one of 287 stores he had to deal with. Mr Cornell emphasised that Franklins did want to sell to the applicant, and that its "money was as good as Coles'". However, Franklins just ran out of time to litigate against the Lessor. 147 Mr Cornell was subject to sustained, detailed and probing cross-examination over the course of three days. Mr Cornell acknowledged that he and Mr Masters had direct access to each other via telephone, including mobile telephone. He was questioned about the meeting with, amongst others, Mr Masters on 19 June 2001. He reiterated that the purpose of the meeting was to discuss, in general terms, whether Coles would be interested in purchasing stores "at the appropriate time". He stated that he did not "offer" any stores to Coles for purchase on that day. 148 When it was put to Mr Cornell that he had a discussion with Mr Masters on 17 August 2001, and that this discussion embraced the Mentone store, Mr Cornell said he had no reason to doubt this. However, he denied that this was with a view to reaching some kind of agreement with Mr Masters. 149 Mr Cornell acknowledged that in late November or early December 2001 he held discussions with Mr Masters about the sorts of prices Franklins would be looking for in relation to a group of stores that included Mentone. When taken to the Coles note of 23 November 2001, which purported to record an agreement to sell a third tranche of stores to Coles, Mr Cornell said he did not specifically recall the $18.2 million figure. However, he acknowledged that he did have a discussion with Coles about the purchase of a group of stores for what "may have been around" that figure. Nonetheless, Mr Cornell did not recall telling Mr Masters that $2.3 million was what Franklins would be looking for in relation to Mentone. 150 Under cross-examination, Mr Cornell remained firm in his evidence that he had only negotiated the final price of the Mentone store with Coles following the receipt of ACCC approval and, prior to that, he had merely discussed the possibility that if it became available, Coles and Franklins could enter into negotiations about it. When pressed, Mr Cornell said that he did have "discussions" with Coles relating to "some of the stores and their particulars" from late November onwards. However, he reiterated that negotiations for the final price of the stores sold on 24 December 2001 (including Mentone) took place in the week prior to Christmas. Mr Cornell stated that it would not be wise for him to negotiate the sale price of a store with Coles prior to receiving ACCC approval because, if that consent was not forthcoming, it would have undermined his credibility with Coles. 151 Mr Cornell denied that there was an in principle agreement between Franklins and Coles that, if a sale to an independent fell over for some reason, Coles would buy the store for the same price as the independent. He also denied the existence of any arrangement between Franklins and Coles whereby Coles could have any JIDA store it liked when Franklins was in a position to provide it. 152 In general terms, Mr Cornell was unwavering from his original evidence that although the Mentone store had come up in discussions between himself and Mr Masters during 2001, a deal had not been done on that store until ACCC approval had been obtained on 21 December 2001. Ms Weir reported to Mr Cornell. Together with Mr Cornell, Ms Weir was responsible for Franklins' dealings with the ACCC. She was also responsible for instructing Franklins' external legal advisers. 154 Ms Weir, in her witness statement, explained that the managed sell-down was a very complex, time consuming and demanding process, and that she did not have a clear recollection of the many specific conversations she had with solicitors for both Franklins and for other parties involved in the process. 155 Ms Weir stated that she had always understood that the managed sell-down had to be completed by Christmas 2001. She said that it was known to her in 2001 that Coles were approaching landlords and indicating that Coles was interested in taking a lease of their premises, in the event that the landlord was free to do. Ms Weir said she was aware that this added to Franklins' difficulty in getting landlords to assign leases to independent operators who had emerged as the preferred bidder from the JIDA process. 156 Ms Weir described how, from July 2001 onwards, when it became apparent to Franklins that there would be difficulties selling certain stores to independent operators, Franklins would approach the ACCC to obtain its consent to offer a package of stores to Coles. 157 Ms Weir stated that in July 2001, Franklins offered the first "tranche" of stores to Coles. This "tranche" of stores was offered to Coles either because no viable bids had been received from independents under the JIDA process, or because of opposition from landlords. The ACCC had given its consent for the first tranche of stores to be offered to Coles. 158 Ms Weir said that during negotiations for the sale of the first tranche of stores to Coles, Franklins had sought to obtain a promise from Coles that it not disrupt further JIDA sales. Coles was not prepared to give such a promise. 159 Ms Weir attested to the difficulties Franklins specifically faced in obtaining an assignment from the Mentone Lessor, namely that the Lessor had refused three written requests to consent to an assignment to the applicant. She explained how the Supreme Court proceedings were commenced seeking a declaration that the Lessor's refusal to consent to an assignment was unreasonable, and in breach of the Mentone lease. 160 Ms Weir stated that by November 2001 the litigation was becoming "more difficult", with the Lessor making allegations of Franklins breaching the Mentone lease. This concerned Ms Weir because if the Lessor terminated the lease, Franklins may receive nothing for the Mentone store. By this stage, Ms Weir said that "time was running out for Franklins". In this context, on 16 November 2001, an application for expedition of the proceedings against the Lessor was made. 161 After the hearing of the unsuccessful expedition application, Ms Weir said that she recalled having a lengthy telephone conference with Mr Fischbacher. She did not, however, recall the detail of what was said during the conference, although she did recall being gravely concerned about the progress of the litigation. She said that while Franklins was required to cease operations by 31 January 2002, the reality was that no practical support could be given to the operation of stores beyond Christmas 2001. 162 Ms Weir's evidence was that after the application for expedition failed, she realised that Franklins had run out of time to effect the sale of the Mentone store to the applicant. She then instructed Franklins' solicitors to seek the ACCC's consent to offer the Mentone store, and eight other stores, to Coles. After Mr Cornell and Ms Weir met with Mr Jones and Mr Phillips at the ACCC on 27 November 2001, the ACCC gave its consent for the sale on 21 December 2001. Ms Weir left Franklins' employment on 21 December 2001. 163 Ms Weir's evidence was that Franklins tried very hard to sell the Mentone store to the applicant, but ultimately ran out of time. She said she was not aware of any deal or arrangement between Franklins and Coles in relation to the purchase of the Mentone store prior to the termination of the Mentone BSA on 28 November 2001. 164 An important document to which Ms Weir was taken was a facsimile sent from Ms Joanne Turner to Mr Alan Rattray-Wood. Ms Turner worked within Franklins property group and Mr Rattray-Wood was a consultant engaged to assist Franklins with the property aspects of the managed sell-down. The facsimile is a copy of an email sent from Mr Rattray-Wood to Ms Turner, to which Ms Turner appears to have responded by hand, at the bottom of the email, and faxed back to Mr Rattray-Wood ("the Turner document"). 165 The Turner document is important and, as such, I shall set it out in full. As advised on Friday, this looks like going full on legal if we don't quash their perceived options. As previously mentioned, Mr Kop was the project manager for Project Lincoln within Coles. Coles have done a deal in principle here, based on vacant possession. Mary has told Coles that Franklins is going to litigate & hopefully scared them off with the threat of tortious interference , let alone jeopardising our deal with Coles on the whole . Ms Weir gave evidence that she did not recall any conversation of the type the note purports to record, although she also said she was not suggesting that there was no basis for the note. Ms Weir said that the reference to "jeopardising the deal on the whole" did not make any sense to her. She said she was not aware of any "deal" at that time that could be jeopardised. She said that the sale of stores in the first tranche had already been signed, and ten days earlier Franklins had requested the ACCC's consent for the sale of a second tranche of stores. At that stage, there was no other "deal" with Coles that she was aware of. 169 In re-examination, Ms Weir said that the term "tortious interference" was often used by Franklins' property staff in a not very technical sense, and was used sometimes just to mean that the landlords were not necessarily cooperating or that their actions were perceived as "wrong". She said it was used as a "bit of a buzz word". 170 Ms Turner was not called to give evidence. 172 Mr Stansfield's evidence goes to what the applicant or, more specifically, what Mr Fischbacher, the applicant's legal representative, knew or suspected in relation to Coles' interest in the Mentone store. It also goes to what Mr Fischbacher was told in relation to Franklins' ability to pursue the Supreme Court proceedings against the Lessor beyond a certain date. These matters are relevant to the causation aspects of the applicant's claims, namely that the applicant knew (or should have known) that Coles may have had an arrangement with the Lessor, and that the applicant knew the Supreme Court proceedings would have to be resolved before the end of 2001. 173 Mr Stansfield also gave evidence as to the dealings with the Lessor, and its refusals to consent to assignment of the lease. It is unnecessary to summarise that evidence in any detail. 174 Mr Stansfield said that he had several conversations with Mr Fischbacher during August and October 2001 regarding the obtaining of consent from the Lessor to the assignment of the lease. Mr Stansfield gave evidence that during these conversations, Mr Fischbacher told him that the reason for the Lessor's refusal of consent was because the Lessor "had a deal with Coles" or was "holding out for a deal with Coles". Mr Stansfield did not have any file notes of these conversations. 175 Mr Stansfield specifically referred to a meeting between himself, Mr Rattray-Wood, Mr Blake and Mr Fischbacher, held at Mr Blake's "Leo's Fine Food and Wine" store on 11 September 2001. He referred to file notes of discussions with Mr Fischbacher where the words "expedition" and "[Franklins] would need to reserve the right to end litigation" were recorded. Those file notes were undated, but Mr Stansfield believed they were made some time in September or early October 2001. 177 In substance, Mr Stansfield's evidence was that he told Mr Fischbacher, at the time of the litigation agreement, and after proceedings had been commenced, that a hearing needed to be obtained before the end of 2001. 178 Following the directions hearing held on 16 November 2001, which Mr Stansfield attended, he informed Ms Weir of the virtual impossibility of a hearing date being available in December 2001, and the unlikelihood of a hearing taking place in early 2002. He organised a telephone conference, held on 19 November 2001, with Mr Fischbacher, Ms Weir, and with Ms Arslan attending. At that meeting, Mr Stansfield said that Ms Weir told Mr Fischbacher that a hearing going into the New Year would be impossible and emphasised that "this can't go on indefinitely". He said that Mr Fischbacher asked Ms Weir to "battle on". 179 Mr Stansfield stated that during this period he was not aware of the Lessor/Coles deal, and the information in Ms Turner's email was not communicated to him. Nor was Mr Stansfield aware of any agreement or negotiations between Coles and Franklins relating to the Mentone store before 28 November 2001, although he was aware that a submission was made by Franklins to the ACCC in late November seeking consent to sell the Mentone store to Coles. She commenced work on this matter when proceedings were instituted in the Supreme Court. Her evidence essentially goes to the same matters as Mr Stansfield's evidence. 181 Ms Arslan gave evidence that she had a conversation with Mr Fischbacher on 15 November 2001 in relation to some amendments to Mr Blake's affidavit in the Supreme Court proceedings. She stated that she believed that this conversation is the conversation Mr Fischbacher recorded in a file note as occurring on 16 November 2001. She stated that during the conversation Mr Fischbacher said that Coles obviously wanted the Mentone store, and that Woolworths could not be after the store because they had given undertakings. 183 As previously indicated, Ms Arslan attended the telephone conference held on 19 November 2001 between Mr Fischbacher, Mr Stansfield and Ms Weir. She also made a contemporaneous file note of this conversation. Ms Arslan's evidence was that during this conference, Ms Weir told Mr Fischbacher that all stores had to be "sorted" and closed by the end of January 2002, and that following the directions hearing held on 16 November 2001, the defendants had avoided a trial date in 2001. She said that she did not recall Ms Weir suggesting that Coles were interested in Mentone, but rather her note indicates that it was Mr Fischbacher who made this comment. I will refer to the relevant legal principles only where it is necessary to do so. 187 It is important to recall that, in general, the applicant bears the burden of proof on all of the factual issues discussed below. The standard of proof is the balance of probabilities. Where I refer to being "satisfied" or "persuaded" of a particular matter, I use those terms in that sense. That deal was said to consist of an "in principle agreement" whereby Franklins agreed to sell to Coles the stores that Coles wanted to acquire at prices to be determined by a formula, or specifically agreed, unless it proved beyond Franklins' power to sell the stores to Coles. It also submitted that I should infer that the final price for the Mentone store was struck in late August/early September 2001, and that this agreement committed Coles to taking the store, notwithstanding any issues that arose out of due diligence. 189 Mr Cornell categorically and emphatically denied the existence of any such deal. He maintained that position in the face of sustained and vigorous cross-examination. In the end, I found him to be a thoroughly credible, truthful and reliable witness. I have no hesitation in accepting his evidence. 190 By way of contrast, Mr Masters was unable to recall anything of real substance in relation to the Mentone store. He was vague on many issues, and evasive on some. His evidence did not assist the applicant. I note, in any event, that he appeared not to appreciate the significance of the constraints under which Franklins was placed by reason of the undertakings that it had given to the ACCC. Perhaps surprisingly, he seemed to have no detailed grasp of the strategy that Coles had embarked upon in 2001, or its implementation. His role essentially appeared to be to negotiate the price of any stores that were to be acquired, on a somewhat ad hoc basis. 191 Accordingly, the applicant was forced to rely largely upon inference to support this aspect of its case. As already indicated, that deal involved Coles confirming that it would enter into a new lease with the Lessor on the same terms and conditions as the vacant possession deal already entered into, if it were instead to acquire the Mentone store directly from Franklins. There was no documentary support for this claim. Moreover, these dates were a Friday and Monday respectively. To take just two examples, if there was a deal, in principle, with Coles of the type alleged, why did Franklins offer, in late November 2001, to pay compensation to the Lessor if it agreed to an assignment of the Mentone lease to the applicant? Franklins was certainly not contractually obliged to take such a step. And why was there reference in an internal Coles document, dated 3 September 2001, seeking approval for the vacant possession deal with the Lessor to the maximum amount of goodwill that " could be paid ... to Franklins should the Lessors' action generate an opportunity for Franklins to negotiate a business acquisition direct with CML" (emphasis added)? The terms of this document are inconsistent with an already existing deal whereby Coles would acquire stores from Franklins on a predetermined formula in relation to price, unless it proved beyond Franklins' ability to get the store to Coles. 193 There is no doubt that Mr Masters and Mr Cornell had a number of discussions throughout the second half of 2001. That of itself is of no great significance. The undertakings did not prevent Franklins from having discussions with Coles about Franklins stores, and the ACCC was well aware that such discussions were taking place. Moreover, having "discussions" with Coles regarding the possibility of selling some Franklins stores to Coles in the event that they could not be sold through the JIDA process, was not, of itself, in breach of the obligations that Franklins owed to the applicant under the Mentone BSA and the litigation agreement. 194 I am not satisfied, on the evidence before me, taken as a whole, of the existence of the Franklins/Coles deal, as alleged. I accept the evidence of Mr Cornell that no such deal ever existed. I am not prepared to infer, from the documentary and other evidence led by the applicant, that Mr Cornell was engaged in a clandestine arrangement with Mr Masters, and that he lied about that matter before this Court. 195 Many of the documents upon which the applicant relied in support of its circumstantial case were prepared by people who would not have been directly involved in any negotiations that took place between Franklins and Coles, and may not have known what was happening at the level that counted. For example, the Turner document, though capable of having the sinister connotation that the applicant placed upon it, it also perfectly capable of being read in an innocent light. One interpretation of the document is that Ms Turner did not appreciate that the agreement to sell the first tranche of stores to Coles had already been finalised ten days earlier, and that was the "deal with Coles on the whole" to which she was referring. The fact that Ms Turner was not called to give evidence lends some support to the applicant's case regarding the interpretation to be given to this document. See generally Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. However, that does not, in my view, override the highly favourable impression that I formed of Mr Cornell as a witness in this proceeding. The real substance of this claim is that Franklins "jumped the gun" in terms of seeking the ACCC's consent to sell the Mentone store to Coles, and in concluding an agreement with Coles to do so. It did both these things, according to the applicant, while it still owed obligations, both contractual and fiduciary, to the applicant. 197 The Mentone BSA and the litigation agreement were both still on foot on 23 November 2001. Notice to terminate these agreements was not served until 28 November 2001. The Mentone BSA required seven business days notice to be terminated. Accordingly, the Mentone BSA remained on foot until 7 December 2001. However, in relation to the litigation agreement, the applicant accepts that it came to an end on 28 November 2001. 198 There is no dispute between the parties that Franklins made a submission to the ACCC on 23 November 2001 seeking its consent to offer the Mentone store, as well as a number of others, to Coles. There is, however, a dispute as to whether the agreement to sell the store to Coles was concluded at around this time as well, or whether that agreement was only concluded after ACCC approval had been obtained on 21 December 2001. The evidence does not satisfy me that Franklins and Coles agreed the final price of the Mentone store on or about 23 November 2001, at a time when Franklins still owed obligations to the applicant. 201 In relation to the Coles document of 23 November 2001, the lack of any breakdown of the figure of $18.2 million for a group of stores, including Mentone, is consistent with Mr Cornell's evidence that "ballpark" figures only were discussed on that date. Moreover, five out of the 13 stores identified in the note did not end up being sold to Coles. Nor did the sale price of the eight stores that were sold to Coles in December add up to $18.2 million. Accordingly, the document cannot, in my view, properly be regarded as evidence of an agreement between Franklins and Coles to sell the Mentone store to Coles, as at that date. It seems to me that the note merely records an optimistic view by either Ms King or Mr Kop of Coles' position in relation to its negotiations with Franklins at that time. It does not purport to record a legally binding agreement, and there is no evidence that it was written by anyone who had first hand knowledge of the precise state of the negotiations between Franklins and Coles at the time. 202 The other evidence relied upon by the applicant in support of this aspect of its claim is at most tenuous. It is circumstantial in nature. That, of itself, does not pose a problem since circumstantial evidence can be both cogent and reliable. The difficulty is that much of the material does not point all one way. 203 To take one example, in relation to the due diligence point, although reference is made in the due diligence documents to inspections of cooling towers having been conducted in late November, it appears that these inspections were mandatory inspections carried out for Franklins, the reports of which were then provided by Franklins to Coles. The individual due diligence reports on the Mentone store are dated 11 December 2001 (detailing a walk through inspection conducted the previous day), 12 December 2001 (reporting on refrigeration), and part of a due diligence report written by Allens Arthur Robinson (Coles' solicitors) which appears to be dated 12 December 2001, and which analyses the cooling tower reports previously mentioned. This evidence indicates that at least part, and possibly all, of the due diligence was not conducted at Mentone until after the Mentone BSA came to an end, on 7 December 2001. 204 To take another example, it is entirely possible that Mr Cornell and Mr Masters agreed upon the final price of the Mentone store on 21 December 2001, as Mr Cornell claimed, and that documentation was prepared by Franklins' advisers over the weekend of 22-23 December 2001. I accept that there is no actual evidence that Franklins' advisers did draft documentation over that weekend. However, when I am invited to draw inferences, I am bound to consider alternative explanations as well. There is nothing particularly complex about the documentation in question, and I am conscious of the evidence concerning how much pressure there was upon Franklins, at that stage, to wind up its Australian operations. 205 There remains, however, the issue whether Franklins' breached any contractual, fiduciary, or statutory obligations by seeking the ACCC's consent to sell the Mentone store to Coles while the Mentone BSA was still on foot. This requires some discussion of the detail of those obligations. 206 Franklins had an express obligation under clause 4.2(a) of the Mentone BSA to use reasonable endeavours to obtain the Lessor's consent to the assignment of the lease. The applicant relies upon a further three terms that it contends are implied in the Mentone BSA. 207 First, the applicant says that the Mentone BSA contained an implied term not to deprive a party of the benefit of that agreement. The applicant submits that this term should be implied by operation of law or, alternatively, on an ad hoc basis. I understand that latter category of implied term to refer to what is sometimes described as an "implication of fact", and to which the rules laid down in BP Refinery (Westernport) Pty Ltd v Hastings Shire Council [1977] HCA 40 ; (1977) 180 CLR 266 (" BP Refinery ") and Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 ; (1982) 149 CLR 337 (" Codelfa ") apply. 208 In Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 (" Renard "), Priestley JA commented upon the notion of implications on an ad hoc basis. In recent years terms implied in contracts have been said to fall into two classes the first of which has come to be called, somewhat misleadingly, implication in fact, the second, implication by law. The so-called implication in fact is really implication by judge based on the judge's view of the actual intention of the parties drawn from the surrounding circumstances of the particular contract, its language, and its purposes, as they emerge from the language and in the circumstances. This has been called implication ad hoc (see Professor Lucke "Ad Hoc Implications in Written Contracts" (1973-1976) 5 Adelaide Law Review 32) a usage I will adopt. The applicant contends, by analogy, that the express promise of Franklins to use reasonable endeavours to satisfy the condition precedent necessarily includes an obligation not to hinder or prevent fulfilment of it. 210 Second, the applicant contends that a duty to act in good faith should also be implied into the Mentone BSA generally, or into the right to terminate specifically. The general duty is said to include an obligation of full and frank disclosure of all matters relevant to the implementation of the agreement. The applicant submits that the term is to be implied ad hoc, and as a matter of law. See Renard ; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 190-98 per Finn J; Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR |P41-703; Central Exchange Ltd v Anaconda Nickel Ltd (2001) 24 WAR 382; GEC Marconi Systems v BHP-IT [2003] FCA 50 ; (2003) 128 FCR 1 at [920] per Finn J; and Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [61] - [65] per Finkelstein J. I note that the latter case was the subject of a Full Court appeal in which judgment was given following the hearing of this proceeding. However, the majority of the Full Court did not deal with the findings of the primary judge in relation to the implied duty of good faith in the exercise of a termination right: see Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2006] FCAFC 40 at [119] per Finn and Sundberg JJ. 211 Third, the applicant submits there is an implied term requiring Franklins to do all such acts as are necessary on its part to enable the applicant to enjoy the promised benefits of the agreement. The applicant contends that this term is to be implied by operation of law or, alternatively, on an ad hoc basis. It referred to Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51 ; (1979) 144 CLR 596 at 607 per Mason J to support its contention. 212 The applicant also relies upon two implied terms it submits constitute part of the litigation agreement. The first term is the same term implied into the Mentone BSA, namely an obligation not to deprive a party of the benefit of an agreement. The second term is an implied term requiring each party to provide full and frank disclosure of any matter relevant to the Supreme Court proceedings. This term is said to be implied by operation of law as a concomitant of the duty to act faithfully or, alternatively, on an ad hoc basis. See BP Refinery and Codelfa . 213 In addition, the applicant contends that it was owed fiduciary obligations by Franklins at least until the litigation agreement was terminated on 28 November 2001. 214 Turning to the issue of breach, I am not persuaded that Franklins' submission of 23 November 2001 to the ACCC constituted a breach of clause 4.2(a) of the Mentone BSA. The submission should, in my view, be regarded as nothing more than the commencement of contingency plans for the remaining parcel of stores. As far as Franklins was concerned, it still had an outstanding offer to the Lessor to pay it "compensation" in return for its consent to the assignment of the lease. Had the Lessor accepted this offer some time between 23 November 2001 and 27 November 2001, I infer that Franklins would have gone ahead with the sale of the Mentone store to the applicant. My view is strengthened by the fact that the ACCC would plainly not have consented to the sale to Coles, at that time, if the Lessor's consent had been forthcoming. The Mentone BSA was only terminated once this last offer to the Lessor was rejected. Accordingly, the submission to the ACCC, seeking its consent to offer the store to Coles, can properly be regarded as precautionary, rather than representing, at that stage, an effort to subvert the sale to the applicant. I do not regard the submission as a breach of Franklins' obligation under the Mentone BSA to use reasonable endeavours to obtain the Lessor's consent to the assignment of the lease. 215 I am also not persuaded that Franklins owed any fiduciary obligations to the applicant. However, the basis for those arrangements was a conditional , commercial, arms length agreement for the sale of a business from one party to another. While Hospital Products Ltd v United States Surgical Corporation [1984] HCA 64 ; (1984) 156 CLR 41 per Mason J at 99-100 makes clear that commercial transactions do not "stand outside the fiduciary regime", it does not follow that such transactions necessarily give rise to fiduciary obligations. Indeed, in such circumstances, the mutual confidence and trust which underlie most consensual fiduciary relationships are likely to be more readily apparent than in the case where mutual rights and obligations have been expressly defined in some formal agreement. Likewise, the relationship between prospective partners or participants in a proposed partnership to carry out a single joint undertaking or endeavour will ordinarily be fiduciary if the prospective partners have reached an informal arrangement to assume such a relationship and have proceeded to take steps involved in its establishment or implementation. The arrangements between Franklins and the applicant concerning the efforts to obtain the consent of the Lessor to the assignment of the Mentone store lease had a singularly fragile quality. They could be terminated on short notice. At the first directions hearing in the Supreme Court proceedings on 19 October 2001, counsel then appearing for the applicant and Franklins submitted, in support of the application for expedition, that there was "nothing to stop the parties walking away". When counsel spoke of "the parties" he was referring to the applicant and Franklins. He also said that it was "a fair inference, given the nature of the commercial dealings between the parties, that the matter is quite fragile". That was an accurate statement of the parties' legal position vis-a-vis one another. 219 The reality of the litigation agreement was that Franklins lent its name to the Supreme Court proceedings, but the applicant's solicitors, Mason Sier Turnball, and counsel conducted the proceedings, and the applicant funded them. However, at the same time, Franklins retained HWL to maintain what Mr Colbran QC, counsel for Franklins, described as a "supervising brief" over the proceedings. 220 To give an example of exactly what the "supervising brief" entailed, on 14 November 2001, HWL wrote to Mason Sier Turnball complaining, inter alia, that a reply had been filed and served in the Supreme Court proceedings without seeking instructions from HWL. HWL insisted on Mason Sier Turnball seeking instructions from Franklins through HWL "when there are documents filed by our opponents, or are to be filed and served by us in the proceedings, before responding to any request or document". Under cross-examination, Mr Fischbacher of Mason Sier Turnball agreed that HWL's request was in accordance with what had been agreed between the parties. Such arrangements hardly bear the characteristics of a relationship of mutual trust and confidence. 221 The applicant and Franklins had no obligation of a fiduciary nature to refrain from pursuing their own, separate and individual interests, save for their contractual obligations to one another and, in Franklins' case, the restrictions imposed on it by the undertakings. The contractual obligations were limited in their terms. For example, as Mr Colbran correctly noted, the obligation in clause 4.2(a) of the Mentone BSA was merely to use "reasonable endeavours" to obtain the Lessor's consent to the assignment of the lease. It did not extend to using "best endeavours". In my view, the relationship between the parties in this case did not go beyond their contractual obligations to each other, and did not manifest characteristics of a fiduciary nature. 222 In relation to the implied terms, I am prepared to assume, without finally deciding, that there should be implied into the Mentone BSA a duty on the part of Franklins "not to deprive the applicant of the benefit of that agreement", a duty "to do all such acts as were necessary on its part to enable the applicant to enjoy the promised benefits of the agreement", as well as "a duty to act in good faith". I am also prepared to assume, without finally deciding, that the litigation agreement contained the implied terms pleaded by the applicant, including the duty of full and frank disclosure. Franklins, while not accepting that the terms the applicant contended should be implied into the Mentone BSA and litigation agreement, did acknowledge that there was a general duty on the parties to a contract to cooperate in the performance of that contract. 223 Even so, the applicant must still overcome the hurdle of demonstrating that Franklins, by making the submission to the ACCC, breached these implied terms. Indeed, the applicant must go further. It must establish that any breach of these implied terms caused it to suffer the loss or damage claimed. 224 The applicant argues that if it had known of the Franklins submission to the ACCC, it would have responded immediately. It says that it would have joined Franklins as a defendant in the Supreme Court proceedings, and that it would have sought interlocutory relief preventing Franklins from terminating the Mentone BSA. By implication at least, it asserts that it would have been successful in gaining such relief. 225 The difficulty with this submission is that it leaves a great deal to speculation and conjecture. It may be that the applicant would indeed have taken the steps outlined above. Whether or not it would have been successful in gaining interlocutory relief of the type foreshadowed is problematic. Even if it had gained such relief, it must be doubtful that this would have resulted in the applicant ultimately obtaining the Mentone store. It must be remembered that the Lessor's attitude had repeatedly been made clear. Mrs Wasser would not consent to the applicant taking the lease, even when offered "compensation" to do so. She wanted a "major". In the face of such intransigence, and an apparent willingness to vigorously contest the matter in court, it is highly speculative to assume that anything that the applicant could have done, at this stage, would have altered the course of events. 226 Accordingly, I am not prepared to find that Franklins, by making the 23 November 2001 submission to the ACCC, and by not disclosing this to the applicant, caused any loss or damage to it. That is assuming that these actions did constitute breaches of Franklins' contractual obligations in the first place, a matter that is open to serious doubt. 227 For the same reasons, irrespective of whether Franklins' conduct in this regard gave rise to a breach of s 52 of the TPA, the evidence falls short of establishing any loss or damage brought about by such contravention, and therefore any right to relief pursuant to that Act. That is incontrovertibly established on the evidence. Rather, the issue is when Franklins learnt of its existence. 229 It is clear from the Turner document that by 15 October 2001, some people at least within Franklins knew of the Lessor/Coles deal. Plainly, they included Ms Turner and Mr Rattray-Wood. However, I am unable to conclude, on the basis of the evidence that Franklins, and Mr Cornell in particular, knew of that deal at any time significantly prior to that date. I accept Mr Cornell's evidence in that regard. 230 Ms Weir did not have any recollection of the conversation the Turner document purported to record. However, she did not suggest that there was no basis for the note. She also stated that the part of the note which recorded that Coles had "done a deal in principle based on vacant possession" did not surprise her. Ultimately, her evidence was somewhat vague as to when she became aware of the Lessor/Coles deal. However, I am unable to conclude, as Mr Garratt invited me to, that if Ms Weir did know of the Lessor/Coles deal, she was directed by Mr Cornell not to disclose this to the applicant. There are too many steps to be taken, by way of inference, to justify arriving at that conclusion. 231 Even if Franklins' lack of disclosure did constitute a breach of its implied contractual obligations, the applicant must still demonstrate that the breach caused it to suffer loss or damage. There are serious difficulties with this aspect of the applicant's case on the Lessor/Coles deal. 232 The applicant relies upon the evidence of Mr Fischbacher to demonstrate that, had it been informed of the Lessor/Coles deal, its litigation strategy would have been fundamentally different. However, at the very least, on the basis of his own evidence, Mr Fischbacher had suspicions as far back as mid-October 2001 that Coles wanted the Mentone store. 233 Moreover, to make good this claim, the applicant has to prove, on the balance of probabilities, that not only would its litigation strategy have been different, but that this would have resulted in the Supreme Court proceedings being expedited. In addition, the applicant must prove, again on the balance of probabilities, that the outcome of those proceedings would have been in the applicant's favour, and that it would have gained the Mentone store. 234 As previously indicated, at the first directions hearing in the Supreme Court proceedings, held on 19 October 2001, Habersberger J refused the application for expedition. His Honour was sympathetic to the applicant's position, and ordered a very tight timetable in terms of trial directions. However, Habersberger J stated that while it was in the applicants' interests that the matter be dealt with as soon as possible, that was not to occur "to the detriment of the defendant [the Lessor] being able to run its case". 235 It must be remembered that it was the Lessor's contention that it had a right to refuse consent to the assignment of the lease, pursuant to clause 9.1.1. The Lessor indicated that it would submit that the applicant did not satisfy the requirements of the clause because it was not of "of comparable commercial standing" to Franklins Limited, in the sense in which that expression was used in that clause. The Lessor's case was arguable, and would, in any event, have required time to prepare. The Lessor indicated that expert evidence would be obtained, presumably after a significant discovery process. There was every indication that the Lessor was aware of Franklins' dire position, which had been well documented in the media and elsewhere. There was also every indication that the Lessor was aware, through its legal advisers, and perhaps also through the commercial advice of Mr Maurice Alter, of the significant advantage that it could gain simply by delaying the final resolution of the proceedings, for what in the context of cases of this type, was a relatively short time. 236 There is nothing in the transcript of the first directions hearing to suggest that had evidence of the Lessor/Coles deal been placed before Habersberger J, the matter would have been granted an expedited hearing. Evidence of that deal might have been regarded as indicating merely that the Lessor had acted on the rights that it asserted. Of course, it is also possible that such evidence may not have been viewed in that way. Habersberger J was not called to give evidence before me, even assuming that any such evidence could have been led: see generally s 16 of the Evidence Act 1995 (Cth). I have no idea what effect such evidence would have had upon his Honour, or what practical steps if any were available to facilitate an expedited hearing of a complex matter that was likely to have been hotly contested. Once again, the matter is highly speculative. I am not persuaded that disclosure of this information would have been likely to have resulted in an order for an expedited trial. 237 When the matter came on for directions again on 16 November 2001, Habersberger J indicated that a hearing in December 2001 was impossible. His Honour suggested that the parties come back before him for directions on 15 February 2002. Again, there is nothing in the transcript of this second hearing that suggests that earlier disclosure of the Lessor/Coles deal would be likely to have resulted in the obtaining of an early trial date, and it must be remembered that the intervening Christmas period was hardly conducive to a speedy resolution of this matter. 238 However, the applicant faces a further hurdle. Ultimately, on this limb of the case, it must satisfy me of the likelihood that the Supreme Court not only would have found in its favour against the Lessor, but that it would have done so in a sufficiently timely manner to avoid Franklins simply walking away. Once again, having regard to the evidence which points clearly to Dairy Farm ceasing its Australian operations entirely by no later than January 2002, the prospects of such a timely result in favour of the applicant must be viewed as highly doubtful. 239 Whatever else may be said about the merits of the applicant's claim, I am not persuaded that a particular outcome would have been achieved arising from a trial that never took place. 240 Although the applicant submitted that clause 9.1.1 was susceptible of only one interpretation, and that it was inevitable that the Lessor would have been ordered, at the end of the day, to grant consent to the assignment of the lease, I am unable to accept that contention. I have no idea what the evidence would have been regarding Franklins' commercial standing at the time the lease was entered into, or indeed, at the time of the proposed assignment. I do not know which of the Franklins' entities would have been regarded as the appropriate comparator, given that FMS was the leaseholder, but was a non-trading entity, wholly owned by Franklins Limited. It is not clear precisely how the Lessor would have put its case regarding the construction of the relevant clause of the lease. To conclude that, as a matter of probability, the applicant would have been successful, is to engage in conjecture, and not the drawing of legitimate inferences. 241 The matter is complicated still further by the fact that the Lessor foreshadowed bringing a counterclaim against Franklins alleging various breaches of the lease on its part. Whether or not there was anything to this, or whether it was simply a delaying tactic, I cannot say. What is certain, however, as the history of this case demonstrates, is that complex commercial litigation can take many unforeseeable twists and turns. The reality is that a well-resourced, competently-advised, and highly determined litigant, such as the Lessor, can make it difficult for a party such as the applicant, which was under extreme pressure, to have its case heard and determined within a very short timeframe. It is no answer to say, as the applicant does, that the courts will ensure that no one will be denied justice by reason of the adoption of such tactics. The harsh reality is that delay can work against the interests of plaintiffs, and that fact is well understood by commercially astute defendants. It must be remembered that the rights of plaintiffs to have their cases heard speedily have to be balanced against the rights of defendants to have sufficient time to prepare and present their cases adequately. 242 Accordingly, the applicant is left to rely, in relation to the lack of disclosure of the Lessor/Coles deal, upon the line of causation through the ACCC. Its case is that had it been informed of that deal by Franklins on or about 15 October 2001, as it ought to have been, the applicant could have passed on this information to the ACCC. The scenario is that upon receipt of this information, the ACCC would have been likely to have blocked the sale of the Mentone store to Coles. 243 The evidence of Mr Jones, and the documentary evidence of the ACCC, was seriously damaging to this aspect of the applicant's case. The ACCC had been aware since June 2001 that Coles was approaching landlords of Franklins stores, and in fact Coles had informed the ACCC of its intended actions. Mr Jones acknowledged that at least by November 2001, it was "quite reasonable to think" that the ACCC assumed that a position had been reached between many landlords and Coles that if vacant possession were available, Coles would take up the lease on the store. 244 Mr Jones acknowledged that the ACCC could not force a landlord to take on a certain tenant. The ACCC had no power to stop Coles and landlords coming to such arrangements, subject only to any local competition concerns. There were no such concerns in the case of Mentone. Even in one case where there had been such concerns, the ACCC had ultimately agreed to the sale. The ACCC was concerned with the "macro" outcome of the managed sell-down, and not with individual transactions. 245 The reality was that in circumstances where landlords were "digging their heels in", the ACCC preferred to consent to the sale of those stores to Coles, rather than blocking those sales. The reason was plain. The ACCC, sensibly, did not wish to see stores being closed, with employees losing their jobs, local competition being disrupted, and inconvenience to the public, only to see Coles obtain those stores in any event on a vacant possession basis. 246 The evidence points strongly against any finding that "confirmation" of what the ACCC already suspected, namely the existence of the Lessor/Coles deal, would have made any difference to the ACCC's position. I am not persuaded that this would have led the ACCC to refuse consent to the sale of the Mentone store to Coles after 21 December 2001, the date upon which it ultimately gave its consent. 247 The applicant's claim in relation to misleading or deceptive conduct fails for the same reason, even if I were to find that the lack of disclosure constituted a contravention of s 52. While Franklins wished to sell the Mentone store to the applicant, and did what it could to facilitate that sale, the Lessor adamantly refused to consent to the assignment of the lease. In part, that was because the Lessor had already entered into a deal with Coles, which would either take vacant possession of the property, or buy the business from Franklins. 249 Although the right of the Lessor to refuse consent to the assignment was, at best, unclear, the Lessor almost certainly knew that Franklins was pressed for time. The Lessor's legal advisers, ABL, Mr Nettle QC and Ms Gordon, must have appreciated that anything other than an immediate hearing of the case brought against their client, would work in its favour. Franklins would then be forced either to seek the ACCC's consent to sell the Mentone store to Coles, or simply close it down. Either way, Coles would get the Mentone store by reason of its deal with the Lessor, and the Lessor would achieve its goal of having a "major" as its tenant. 250 Franklins decided, following the second directions hearing before Habersberger J on 16 November 2001, and following the final refusal by the Lessor to consent to the assignment, that time had simply run out. There was no realistic prospect, so far as it was concerned, of obtaining orders forcing the Lessor to give its consent. I am not persuaded that there was, at that stage, or indeed at any stage, a "backroom" deal regarding the sale of the Mentone store between Franklins and Coles. The fact that Franklins made a final approach to the Lessor in late November indicates to me that it was still genuinely attempting to procure the Lessor's consent at that time. 251 It is possible that Franklins acted prematurely, and in breach of implied contractual obligations, by seeking the ACCC's consent to sell the Mentone store to Coles before it formally terminated both the Mentone BSA and the litigation agreement. It may also be that Franklins breached implied contractual obligations by not disclosing the knowledge that some of its staff had of the Lessor/Coles deal. However, I am not satisfied that the disclosure of these matters to the applicant would have been likely to have made any difference to the ultimate fate of the Mentone store. 252 The evidence before me suggests that Mr Blake is an excellent supermarket retailer. Had there been sufficient time to litigate the matters in dispute between himself and the Lessor, he may well have succeeded in establishing that the Lessor had no right to refuse consent to the assignment of the lease. 253 However, the reality is that Coles, which had earlier missed out on obtaining a slice of the Franklins business, and was determined to remedy that situation, and the Lessor, which was equally determined to have a "major" as a tenant, exploited the time pressure, extreme in the end, that Franklins was under to exit Australia. Neither Coles nor the Lessor had any obligations preventing them from interfering with the JIDA process. The applicant was simply outflanked by a well advised, and well resourced, Lessor, determined to secure Coles as its tenant, and not an independent. There was nothing that Franklins could realistically have done, given the time constraints it was under, to change that situation. 254 For the reasons set out above, the application must be dismissed, with costs.

agreement for the sale by respondents of supermarket business to applicant sale conditional upon obtaining consent of landlord to assignment of lease consent of landlord not obtained separate agreement between applicant and respondents to commence proceedings against landlord agreements terminated by respondents whether respondents entered into agreement with third party for sale of supermarket while sale agreement with applicant still on foot whether respondents sought approval from australian competition and consumer commission to sell supermarket to third party in breach of contractual obligations to applicant whether respondents failed to disclose material information to applicant in breach of contractual obligations to applicant whether breaches of contractual obligations, if any, caused applicant's loss or damage whether joint purpose of obtaining landlord's consent gave rise to a fiduciary relationship between applicant and respondents whether respondents' lack of disclosure of material information amounted to misleading or deceptive conduct whether respondents' conduct caused applicant's loss or damage contract equity trade practices

There were claims for declarations and the imposition of penalties in respect of the various alleged contraventions. The statement of claim contained 86 paragraphs. Early mediation did not result in a settlement. Shortly before the trial was due to begin, the parties' representatives communicated to the Court that the proceeding had been settled, on the basis of an agreed statement of facts, and that all that remained was for the Court to consider submissions on penalty in light of the agreed facts. The agreed facts disclose one admitted contravention of s 38 of the BCII Act, and one admitted contravention of s 44 of the BCII Act. In the case of s 38, there is an admitted engagement in unlawful industrial action. In the case of s 44, it is admitted that that action was taken, and two statements were made, with intent to apply undue pressure to another person to agree to make a building agreement under Pt 8 of the Workplace Relations Act 1996 (Cth) ("the WR Act"). The agreed facts are supplemented by two affidavits, one filed on behalf of the applicant and one on behalf of the respondents. The statement of agreed facts includes agreement about formal matters. The applicant is an Australian Building and Construction Inspector, appointed pursuant to s 57 of the BCII Act and is eligible to bring proceedings for a civil penalty for a contravention of a provision of that Act, pursuant to s 49(6). The first respondent is an organisation, registered pursuant to the WR Act and both a building association and an industrial association within the definitions of those terms in s 4 of the BCII Act. At the relevant times, the second respondent was a member of the first respondent and was an officer of it acting within that capacity, as a shop steward. The principal contractor on that site was Hooker Cockram Projects Ltd ("Hooker Cockram"), which is agreed to have been a building employer, a building industry participant, and a constitutional corporation, within the meaning of each of those terms as defined in s 4 of the BCII Act. The second respondent was employed by Hooker Cockram. The project manager for Hooker Cockram was Michael Woolf. Celltech Australia Pty Ltd ("Celltech") had been retained by Hooker Cockram to perform subcontracting work at the site. It was a building employer, a building industry participant, a building contractor and a constitutional corporation, within the meaning of each of those terms as defined in s 4 of the BCII Act. It did not have any form of agreement with the first respondent as to the terms and conditions of employment of employees on that site. The managing director of Celltech was Alex Buntine. Ryan Buntine and Paul Hanegraaf were employees of Celltech. The work performed on the site is agreed to have constituted building work, within the meaning of that term as defined in s 5 of the BCII Act. There were relevant industrial instruments applicable to the terms and conditions on which work was performed on the site. They were the National Building and Construction Industry Award 2000, the National Building and Construction Industry Victorian Common Rule Declaration 2005 (which, with minor exceptions, incorporates the terms of the National Building and Construction Industry Award 2000) and the Hooker Cockram Projects Ltd and CFMEU Building and Construction Industry Enterprise Agreement 2005-2008 . On the morning of 19 September 2006, Ryan Buntine and Mr Hanegraaf attended the site to perform work on behalf of Celltech. The usual duties of the second respondent included the induction of workers coming onto the site for the first time to perform work. On that morning, the second respondent advised Mr Woolf that he refused to induct Ryan Buntine and Mr Hanegraaf. As a consequence, the induction process was undertaken by Mr Woolf. On the same morning, at a meeting between the second respondent, Mr Woolf, Ryan Buntine and Mr Hanegraaf, Mr Woolf told the second respondent that Ryan Buntine and Mr Hanegraaf would be painting epoxy onto a cell door at the site. The second respondent stated that this was CFMEU work, not AMWU work, and that Ryan Buntine and Mr Hanegraaf needed an EBA (being a reference to an enterprise bargaining agreement) and all appropriate paperwork, to work at the site. Mr Woolf advised the second respondent that his position was "illegal" and that Ryan Buntine and Mr Hanegraaf did not need an EBA and that there were "no demarcations anymore". Shortly after this, an organiser of the first respondent telephoned Alex Buntine and asked if he would sign an EBA. Alex Buntine told the organiser to send him an EBA and that he would be happy to enter into it. On 20 or 21 September 2006, the first respondent forwarded by facsimile transmission to Alex Buntine a draft EBA. At some time later, the organiser rang Alex Buntine again and asked him where the EBA was. Alex Buntine said he was still looking at it. Notwithstanding his expressed willingness, Alex Buntine, or anybody else on behalf of Celltech, did not sign any agreement relating to the site with the first respondent. On the morning of 3 October 2006, but prior to 8.30 am, the second respondent told Mr Woolf that he would not do inductions of workers after 8.30 am. The second respondent then proceeded to organise the first respondent's members and others working on the site to attend a stop-work meeting. This meeting commenced at 11.00 am on 3 October 2006 and lasted some 20 minutes. Twenty-three workers who were on the site that morning attended. The meeting was conducted by the second respondent to inform those working on the site that Celltech did not have an EBA. Subsequently, those who attended the meeting did not return to work that day because they knew that, having stopped work that day, they would not be paid for four hours. This was a consequence of s 507(2) of the WR Act, which provides that an employer must not make a payment to an employee in relation to four hours of a day on which the employee engages in industrial action with a total duration of less than four hours. Ryan Buntine and Mr Hanegraaf performed work on the site, including work during the time of the stop-work meeting and the subsequent period when the 23 employees did not work. The refusal of the second respondent to induct them did not cause any significant loss of time or significant delay on the project. It is agreed that the conduct of the second respondent is taken to be conduct of the first respondent, pursuant to s 69 of the BCII Act, because it was conduct of an officer or agent of the first respondent acting in that capacity; it was conduct of a member of the first respondent authorised by the first respondent's rules, or the committee of management of the first respondent or an officer of the first respondent acting in that capacity; and it constituted the conduct of a member of the first respondent performing the function of dealing with an employer on behalf of members of the first respondent and acting in that capacity. It is agreed that the actions of the second respondent, and the first respondent vicariously, in respect of the stop-work meeting constituted building industrial action within the meaning of s 36 of the BCII Act. In turn this building industrial action constituted constitutionally-connected action within the meaning of s 36 of the BCII Act, because it was taken by an organisation, and related to building work that was regulated by Commonwealth industrial instruments. The building industrial action was not excluded action within the meaning of that term in s 36 of the BCII Act. Further, it is agreed that the building industrial action was industrially-motivated action, as that term is defined in s 36 of the BCII Act, because it was motivated by the purpose of supporting or advancing claims against Celltech in respect of the employment of employees of Celltech. By reason of the building industrial action being industrially-motivated action, constitutionally-connected action and action that was not excluded action, it constituted unlawful industrial action within the meaning of s 37 of the BCII Act. It is agreed that therefore the second respondent contravened s 38 of the BCII Act, which provides that a person must not engage in unlawful industrial action, and the first respondent has also contravened s 38, because of the second respondent's actions. It is also agreed that the second respondent, and the first respondent vicariously, took action with intent to apply undue pressure to Celltech to make a building agreement. The action was the refusal to induct, the demand for an EBA and the stop-work meeting. This conduct was not protected action within the meaning of that term in the WR Act. It is therefore agreed that the second respondent contravened s 44(1) of the BCII Act, by taking action with intent to apply undue pressure to another person to agree to make a building agreement. By reason of the second respondent's contravention, the first respondent has also contravened s 44(1) of the BCII Act. The parties invite the Court to make a declaration that the first and second respondents have each contravened s 38 of the BCII Act "by reason of the matters in paragraphs 20 to 22 and 26 to 31 of the Statement of Agreed Facts". They also invite the Court to make a declaration that the first and second respondents have each contravened s 44 of the BCII Act "by reason of the matters in paragraphs 12 to 22 and 32 to 35" of the statement of agreed facts. Orders in this form would be totally pointless. If declarations that are not true declarations of right are ever to be made, their only justification can be to provide some kind of record of what has been found to have occurred in a particular case. For that purpose, it is necessary that any such declaration contains sufficient detail to provide such a record. To require any person who might be interested in reading such a record to go from the order to a document found only on the relevant Court file would not fulfil any function at all. The function of recording the Court's findings, principally fulfilled by the Court's reasons for judgment, can also be fulfilled by specifying in an order relating to a penalty the conduct in respect of which the penalty has been imposed. See, for example, the orders made by Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548. For these reasons, I decline to make the declarations sought by both parties. The statement of agreed facts also records the agreement of the parties that there is to be no order as to the costs of the proceeding. The task of the Court is to assess and impose appropriate penalties, or an appropriate penalty, in respect of the admitted contraventions. The applicant seeks no penalty against the second respondent, who has retired from the construction industry. Penalties against the first respondent are to be assessed solely on the basis of its vicarious liability for the conduct of the second respondent. The former is constituted simply by the conduct of the second respondent, for which the first respondent is liable vicariously, in relation to the stop-work meeting. There is some, but not complete, overlap between that contravention and the contravention of s 44. The latter is agreed to have been constituted by three overt acts, together with the essential element of intent to apply undue pressure to Celltech to make an agreement. The three overt acts are: the second respondent's refusal to induct Ryan Buntine and Mr Hanegraaf on the morning of 19 September 2006; the statement by Mr Corbett to Mr Woolf, Ryan Buntine and Mr Hanegraaf on the morning of 19 September 2006, that the work it was proposed that Ryan Buntine and Mr Hanegraaf would do on the site was CFMEU work, not AMWU work, and that they would need an EBA and all appropriate paperwork to work at the site; and the stop-work meeting. An assessment of the degree of culpability of the respondents in respect of these two admitted contraventions is difficult. To some extent, the difficulty arises from dealing with the matter on the basis of a statement of agreed facts. If the same facts had been the subject of findings after a trial, the evidence would no doubt have lent to them a context which they lack when in a bald form. The stop-work meeting itself involved 23 workers ceasing work for some 20 minutes, during which the second respondent told them that Celltech did not have an EBA. Ryan Buntine and Mr Hanegraaf continued to perform work on the site. The workers who stopped work did not return to work that day. This decision no doubt owed more to the effect of s 507(2) of the WR Act than to anything else. The effect of that provision is that an employer must not make a payment for four hours of a day to an employee who engages in industrial action on that day for less than four hours. While no doubt intended as a deterrent to the taking of brief industrial action, this provision has had the perverse effect of encouraging employees who would otherwise have taken brief industrial action to extend that action to four hours in length, knowing that they would not be paid if they were to return to work within the four hours. The provision itself provides substantial incentive to extend what would otherwise be short industrial action up to the maximum four-hour limit. Aside from that, and from the fact that Ryan Buntine and Mr Hanegraaf continued to work, there is nothing in the statement of agreed facts concerning the effect of the stoppage of work on the progress of construction work at the site, or on any of the contractors involved in that work. The statement of agreed facts is silent as to the impact of the stoppage (in contrast to the agreed fact that the second respondent's refusal to induct Ryan Buntine and Mr Hanegraaf did not cause any significant loss of time or delay in the construction project). There is no indication of what work ought to have been performed or completed on that day, as to whether the completion of the project as a whole was delayed, or as to any loss suffered by anyone arising from either the stop-work meeting or the subsequent three hours and 40 minutes of refusal to work by the 23 employees. It would be an odd inference to draw from the lack of any agreement about these matters that a four-hour cessation of work had no effect at all, but it is impossible to make any finding as to the effect it did have. The assessment of culpability is even more difficult in relation to the agreed contravention of s 44 of the BCII Act. It is understandable, when a proceeding in which a regulatory body makes a large variety of allegations is compromised and confined to a much smaller number of allegations, that admissions might be made as part of the compromise. On the face of it, it is difficult to see that the admission that the second respondent did the three overt acts with intent to apply undue pressure to Celltech could be justified. The phrase "undue pressure" is not defined in the BCII Act. Neither the word "undue" nor the word "pressure" is defined. The phrase must therefore bear its ordinary meaning, in the context of the purpose of the legislation. According to the Macquarie Dictionary , the word "undue" means "unwarranted; excessive; too great" or "not proper, fitting, or right; unjustified". The Macquarie Dictionary also defines the word "pressure" in its relevant sense as "harassment; oppression". The context of the phrase "undue pressure" in the BCII Act includes the main object of the BCII Act, which is described in s 3(1) as "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. That prohibition does not depend at all upon the possession of any intent. Unlawfulness is sufficient. Section 44 is one of the provisions in Ch 6 of the BCII Act, which concerns intent to coerce and intent to apply undue pressure, to achieve various ends. The inclusion of the reference to "undue pressure", as well as the reference to "coerce" can be taken to signify that undue pressure is intended to amount to something different from, and probably less than, coercion. In determining what might amount to "undue pressure", it is necessary to bear in mind that the subject-matter of the legislation is the building and construction industry. Some degree of robustness in negotiation must be expected of the participants in that industry. It will not be possible to infer intent to apply undue pressure from every act that might be regarded as unlawful industrial action, however slight its impact. In the present case, it is somewhat mysterious that the respondents have admitted that the second respondent had intent to apply undue pressure. If the second respondent did have this intent, he failed wholly to give effect to it. The statement of agreed facts records that his refusal to induct Ryan Buntine and Mr Hanegraaf on the morning of 19 September 2006 did not cause any significant loss of time or significant delay in the project at the site. The refusal was remedied by Mr Woolf inducting the two men, who apparently then worked on the site. They continued to work during the stop-work meeting and the subsequent cessation of work on 3 October 2006. The notion that the making of a demand for an EBA can of itself be evidence that the demand was made with intent to apply undue pressure to agree is curious. An assertion that an EBA should be made, and that other paperwork was required, could itself constitute part of the genuine bargaining process contemplated by s 3(2)(a) of the BCII Act. In the present case, the exchange between the first respondent's organiser and Alex Buntine appears to have been a genuine bargaining process, involving a request to make an agreement, to which Alex Buntine apparently acceded, although the negotiations did not come to fruition. There is no indication at all that Celltech felt harassed or oppressed, whether unduly or at all, as a result of any of the three overt acts alleged to have constituted the contravention of s 44 of the BCII Act. The admitted contravention of that provision must be regarded as almost insignificant, especially in light of the fact that the agreed contravention of s 38, constituted by the fact that the second respondent organised the stop-work meeting on 3 October 2006, overlaps with the admitted contravention of s 44. Counsel for the applicant referred to a list of factors that he submitted should be taken into account by the Court in determining the appropriate penalty. The first is that the conduct of the respondents was wilful and deliberate, as well as being designed to apply undue pressure to Celltech to make an agreement with the first respondent. I have already dealt with the last of these elements. The assertion that the conduct was wilful and deliberate needs to be examined in more detail. The conduct in question in this case is that of the second respondent. The first respondent is alleged to be liable solely on the basis that it incurs vicarious liability, pursuant to s 69 of the BCII Act. There is no suggestion in the material that the first respondent ought to be regarded as liable by reason of any act or default of anybody other than the second respondent. There is no question that the second respondent acted deliberately, in the sense that he intended to take each of the steps he is admitted to have taken. It is unclear whether he took each of these steps wilfully, in the sense of knowing that they were contrary to specific provisions of the BCII Act, or in a general sense contrary to law, and intending to defy the law. The statement of Mr Woolf that the second respondent's position was "illegal", and his assertion that Ryan Buntine and Mr Hanegraaf did not need an EBA, were made after the second respondent had already committed two of the overt acts, the refusal to induct Ryan Buntine and Mr Hanegraaf and the statement that they needed an EBA. Whether the second respondent understood from Mr Woolf's statement that his position was "illegal" that this illegality extended to the third overt act (organising the stop-work meeting) is not the subject of any material before the Court. It cannot be assumed that the second respondent either did or did not know in general terms, or specifically, about the provisions of the BCII Act and the manner in which they would bear upon what he was about to do. Nor can it be assumed that the second respondent was acting perversely, in that he was simply intending to inflict mindless damage on Hooker Cockram or Celltech or any other person. There are positive aspects to the end that the respondents were seeking to achieve, that the conditions under which Ryan Buntine and Mr Hanegraaf were to perform work on the site should be regulated by an agreement between the first respondent and Celltech. Diversity in terms and conditions of employment among those performing similar work at the same site can be productive of discontent among those persons. An attempt to achieve uniformity of conditions of employment for those doing similar work was not lacking in merit. It is therefore necessary to regard the second respondent's conduct as deliberate, in the sense that he did not act inadvertently. It is not possible to characterise that conduct as wilful, either in the sense of knowing that the conduct was in breach of the law, or in the sense of gratuitous troublemaking. Next, counsel for the applicant invited me to take into account the nature and extent of loss and damage sustained as a result of the unlawful conduct. As I have already said, the parties have agreed that the refusal by the second respondent to induct Ryan Buntine and Mr Hanegraaf did not cause any significant loss of time or significant delay to the project on the site. At most, they can be said to have caused Mr Woolf to be diverted from what would otherwise have been his duties for whatever time was necessary for him to carry out the induction. There is no material quantifying the effect of this diversion. As I have already said also, there has been no attempt to provide material on the extent of any loss or damage caused by the stop-work meeting. I cannot make an assessment of what loss or damage might flow on a construction site from a 20-minute cessation of work, or even from a four-hour cessation of work. I simply do not know what progress would have been made that was not made. Counsel for the applicant asserted that there was loss to Hooker Cockram, but it is not self-evident that this would be so. It might depend on the contractual arrangements between Hooker Cockram and its client, presumably the State of Victoria, or between Hooker Cockram and those other contractors and subcontractors it engaged to perform work on the site. Those arrangements are unknown to me. It is more likely that loss to others occurred, but any quantification of that loss is impossible. There were conflicting submissions by counsel for the parties about the extent to which I should take into account previous findings of contraventions of the BCII Act by the first respondent. The conflict concerned such matters as the relevance of contraventions of provisions of the BCII Act other than those directly in issue in the present case, and whether it was legitimate to take into account contraventions brought about by the activities of branches of the first respondent in states other than Victoria, which might be affected by the degree of autonomy under which branches function. These questions are now largely dealt with in the judgment of Jessup J in Williams v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 548 , to which the parties referred me in writing by agreement after the close of argument in the present case. It is unnecessary to repeat what is said in that case. For present purposes, it is sufficient for me to say that I deal with the first respondent on the basis that it has a record of prior contraventions of the BCII Act and similar provisions, in circumstances having some similarities to those of the present case. It is not surprising that an organisation in the position of the first respondent will have some difficulty adjusting to legislation that applies sanctions in an attempt to bring about a change to an entrenched culture. It remains to be seen whether repeated imposition of penalties, and lapse of time, will bring about greater compliance. The first respondent cannot be treated as having first offender status for the purposes of this case. On the basis of the affidavit filed on behalf of the applicant, I accept that the first respondent has ample financial capacity to meet a penalty. It cannot seek leniency on the basis of poverty. It is unnecessary to go to the details of its assets. Counsel for the applicant acknowledged that there is no evidence that senior management of the first respondent was involved in the contraventions. He relied on the absence of any apology by either respondent to Celltech, or any expression of regret, contrition or remorse on the part of either respondent. He also relied on the absence of evidence of any corrective action taken by either respondent in relation to the contraventions. It is true that there is an absence of evidence about any of these matters. More controversially, counsel for the applicant asserted that there had been no cooperation by the respondents with the applicant until shortly before the trial, when settlement was achieved. Apart from making what counsel for the applicant described as limited admissions of facts, the respondents contested the allegations made against them up to that time, causing the applicant to have to prepare for a contested trial involving a large number of witnesses, and to incur costs in doing so. As I have said, when the proceeding commenced it involved many more allegations of contraventions than those that are now its subject. It is as difficult to be critical of the respondents for denying allegations that the applicant chose not to proceed with in procuring a settlement as it is to be critical of the applicant for making those allegations in the first place and being prepared to discard them to achieve a settlement. The fact is, cooperation between the parties has had the effect of reaching a settlement and saving the costs of the parties, and the expenditure of public money, that would have been involved in a full-scale trial on all of the applicant's allegations. The respondents may even have gone further in making admissions than they need have done, by admitting the element of intent to apply undue pressure. As I have said, in the circumstances, it is difficult to see that the second respondent in fact had that intent, although I am required to deal with the case on the basis that he did. In the criminal law, a plea of guilty entitles an accused person to favourable consideration in sentencing, irrespective of the stage at which the plea is entered. In my view, the respondents are entitled to be regarded as having cooperated to the extent that they did, and not to be criticised for having failed to admit to the full range of allegations made in the original statement of claim and submitted to penalties in respect of the full range of contraventions alleged. Counsel for the applicant referred to what was described as the need to ensure compliance with minimum standards, and to conflict between the respondents' conduct and the objectives of the BCII Act. As I have already said, the attempt to secure an agreement with Celltech about the terms and conditions on which Ryan Buntine and Mr Hanegraaf would perform work on the site could very well be regarded as consonant with the main object of the BCII Act, expressed in s 3(1), particularly in respect of the means referred to in s 3(2)(a), of encouraging genuine bargaining at the workplace level. Counsel for the applicant made specific reference to the means referred to in s 3(2)(b) (promoting respect for the rule of law), (c) (ensuring respect for the rights of building industry participants) and (d), (ensuring that building industry participants are accountable for their unlawful conduct). These are difficult concepts. It is understood widely that the heavy-handed application of sanctions against conduct that is widely regarded as legitimate can result in lack of respect for the law authorising the imposition of those sanctions. Various classes of building industry participants have various rights. Often those rights conflict. The "right" of Celltech to employ workers on the site on different terms and conditions from those on which other workers on the site doing similar work were employed may conflict with the "right" of those other workers not to have the terms and conditions of their employment undermined by competition from other workers. Accountability for unlawful conduct is always the object of the penalty process. It is hard to regard it as some sort of separate object to which the Court must aspire. The means by which the BCII Act is said to achieve its main object are not to be treated as separate objects in themselves. The main object itself speaks in terms of, among other things, fairness for the benefit of all building industry participants. Such an element cannot be ignored entirely, by a focus only on such things as efficiency, productivity and the benefit of the Australian economy as a whole. Like most statutory objects, this one can be a source of comfort or not, depending on which of its words are chosen for emphasis. In any process of determining penalty, deterrence, both specific and general, is a major factor. Counsel for the applicant contended that, having regard to the nature of the contraventions, the absence of regret, contrition or remorse, the lateness of the cooperation with the applicant and the record of previous contraventions, both before and after the acts the subject of this proceeding, the Court could not be confident that the first respondent would not contravene s 38 and s 44 of the BCII Act in the future. There is therefore a need for specific deterrence. In addition, counsel for the applicant sought substantial penalties for the purpose of general deterrence, to send a message to potential contraveners that penalties will outweigh any gains to be made by their conduct. The figures suggested by counsel for the applicant were $15,000 in respect of the contravention of s 38 and $20,000 in respect of the contravention of s 44, a total of $35,000. The applicant's case with respect to deterrence is undermined in the present case by two substantial factors. One is that the applicant has chosen to seek no penalty against the second respondent. This decision might be justified by the absence of any need for specific deterrence, because the second respondent has ceased to work in the construction industry. He is therefore unlikely to contravene provisions of the BCII Act in the future. In terms of general deterrence, however, the picture is different. As I have said, the liability attaching to the first respondent in this case is not said to attach because of any moral turpitude on the part of the first respondent. Its liability is vicarious as a result of the conduct of the second respondent. Considerations of general deterrence suggest that a penalty should be imposed on the actual contravener, rather than the vicarious contravener. There has been no exploration of the extent to which the first respondent might have avoided the contravention, or might avoid similar contraventions in the future, by exhortation, or perhaps improved training, to its workplace representatives. There is no material before the Court as to the extent of any communications between the first respondent and its workplace representatives on the subject of compliance with the BCII Act. This leads to the second factor undermining the case for general deterrence in the present case. In the course of the argument, I raised the question whether money that would otherwise be paid by way of penalty might be better spent on a compliance program within the first respondent than by payment by way of penalty. I asked whether it was possible for me to make orders that would bring about the conduct of such a compliance program. Counsel for the applicants sought a short adjournment and obtained instructions. He informed the Court that if the Australian Building and Construction Commissioner were to be permitted, at its expense, to conduct a program to teach workplace representatives of the first respondent about compliance with the BCII Act, the applicant would abandon her application for the imposition of a penalty altogether. The result would be a compliance program at no cost to the first respondent and the imposition of no penalty on the first respondent in respect of the contraventions the subject of this proceeding. In response, counsel for the respondents informed the Court that the first respondent would not welcome what it called the intrusion of either the Australian Building and Construction Commissioner or the Court into the internal affairs of the first respondent. This left the Court with no alternative but to impose a penalty. The attitude of the applicant undermines substantially the argument for a heavy penalty for strong general deterrence, however. The applicant was prepared to abandon general deterrence altogether in return for the chance to enhance specific deterrence by means of a compliance program. In all the circumstances, I take the view that the amounts sought by counsel for the applicant are well beyond the applicable range for penalties. Both contraventions are relatively minor. The contravention of s 38 consists of a 20 minute stop-work meeting by 23 people working on the site, followed by a cessation of work for another three hours and 40 minutes, consequent upon s 507(2) of the WR Act. Allowing for the fact that the intent necessary to constitute a contravention of s 44 of the BCII Act was admitted, for the reasons I have given, that contravention must be regarded as being at the very lowest end of the spectrum, because of the actual absence of anything that would amount to undue pressure, and the complete absence of any effect of the actions taken with the admitted intent. My assessment of the appropriate penalty is that it is $4,000 in respect of the contravention of s 38 of the BCII Act and $2,000 in respect of the contravention of s 44 of the BCII Act. Because the stop-work meeting is common to both contraventions, it is necessary then to consider whether the total of those penalties, $6,000, is proportional to the overall culpability of the first respondent. On this consideration, because of the overlap, it is appropriate to reduce the overall amount by $1,000. The total penalty for both contraventions will therefore be $5,000. Because the applicant is a public official, it is appropriate that the penalty be payable to the Commonwealth, and not to some other person, pursuant to s 49(5) of the BCII Act. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray.

building and construction industrial action penalty two admitted contraventions organising stop-work meeting refusing to induct workers, demanding enterprise bargaining agreement and organising stop-work meeting with intent to apply undue pressure appropriate penalty penalty sought only against union and only on basis of vicarious liability for shop steward's actions whether actual undue pressure whether shop steward acted wilfully whether evidence of loss and damage inflicted purpose of legislation relevance of deterrence undue pressure industrial law words and phrases

The applicant is the widow of Robert Butler (the Veteran), who died on 17 December 2002. Her claim for a war widow's pension on the basis that the Veteran's death was war caused was rejected by the Repatriation Commission (the Commission) and on 6 July 2007 the Administrative Appeals Tribunal (the Tribunal) affirmed the rejection ( Hall v Repatriation Commission [2007] AATA 1514). There is no need to explain the scheme of the Act and discuss the leading cases. The cases are well known, although far from easy to apply, particularly in relation to s 120(3) and s 120A. I will not set out all of the facts but will deal with those that are necessary to deal with the limited issues that arise for decision. The primary proceeding is an appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). There is a back up proceeding pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) in the event that any issue is not a question of law for the purposes of s 44 of the AAT Act. 2 The Veteran served in the Royal Australian Navy between 4 March 1948 and 14 June 1973. He had many periods of operational service, commencing on 27 June 1950 in Korea and ending on 25 May 1969 in Vietnam. The Tribunal found that the kind of death suffered by the Veteran was that of cerebrovascular disease in relation to which there was an applicable Statement of Principles (SOP), namely Instrument No 51 of 2006 currently in force. There had been previous Instruments but the matter proceeded on the basis that the current Instrument would govern. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person. The Tribunal found that factor 6(f) existed. That finding is not challenged on this appeal and must be taken to be correct. 5 The structure of the Tribunal's decision was as follows. Certain basic facts were set out then there was a heading "Issues", then a heading "Decision" which commenced "For the reasons outlined later in this decision we conclude that ...". A number of headings followed, the last being "Does the claim succeed?". A hypothesis postulating that Mr Butler's kind of death was caused and/or contributed to by the consumption of alcohol in specific quantities was found to be reasonable. However, we were not satisfied beyond reasonable doubt that such alcohol consumption was war-caused . The last sentence reverses the effect of s 120(1) of the Act. It is well established that, once a reasonable hypothesis connecting the death with the circumstances of the particular service rendered by the person has been raised, then the death will be determined as war caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination (s 120(1) of the Act; Repatriation Commission v Deledio (1998) 83 FCR 82 at 97---98, corrected in a manner not relevant here in Bull v Repatriation Commission (2001) 188 ALR 756 at [14]---[15]). 7 It is submitted for the Commission that this sentence was a mistake or drafting error and did not reflect the actual reasons for decision. It was submitted that the only "decision" as such was that the decision under review was affirmed and that the reasons for decision could not be subdivided into the actual decision and reasons for decision, notwithstanding the structure of the reasons and what was said by the Tribunal as to that. Counsel for the Commission drew attention to the form of the concluding paragraphs of the reasons for decision in which the correct approach is recited. 8 That explanation would be convincing were it not for the reasoning of the Tribunal which is consistent with seeking to establish the necessary link rather than disproving it. This remains the case, despite Mr Butler having had the opportunity to identify a particular event/occasion in his 1998 claim, and his denial of such an event(s) when questioned by Dr Dinnen in July 1998. However, in the absence of particular evidence of events, such a view, in our opinion, involves speculation and/or conjecture and can be given no weight. Having in mind the length and variety of that operational service, that is hardly surprising. Of particular significance is the fact that the Veteran saw operational service in Korea on three tours of duty between 27 June 1950 and 2 June 1954. The Veteran had just turned 20 years of age when he began his first tour of duty. The Veteran himself said that he was "on edge all the time" when on active service in Korea. Three planes from the aircraft carrier on which he was serving were shot down in action off Korea. At least two of the Veteran's mates were killed in the war. The Veteran told one of the doctors that the reaction to the deaths in Korea was: "poor bugger, let's go ashore and get drunk". The Tribunal had noted (at [39]) the wife's evidence of the Veteran's comments in relation to his Korean service as "not very good", "not happy about the war" and a "waste of young lives". His wife witnessed nightmares the Veteran suffered and he told her that going through cyclones was terrifying. 10 He was aboard HMAS Vampire at the time that HMAS Melbourne collided with USS Evans in foreign waters, HMAS Vampire being in the same group. His wife said that he was pretty upset about it. 11 Dr Dinnen explained that the personality of the Veteran was such as to suppress and deny stress. That would explain the lack of further detail from him. It is noteworthy in this respect that each of Dr Dinnen and Professor Mattick suggested that a Naval historian may be able to give an account of the details of operational service that would fill in the gaps in the bare official record. We only saw the tip of the iceberg really, I think, at the interview which I conducted with him. In that respect, I refer to what I said in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [16]---[19] (on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 ; 97 ALD 534 at [33] ---[34]). 13 The other link between alcohol dependence and operational service that was identified in the material is what was described in the case as peer group pressure. You get drunk and chase the girls. His wife said on a number of occasions that the Veteran took the view that if he did not drink he would not be accepted in the Navy . The latter is surprising as the Tribunal was expressly referred to the decision in Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115 in that connection. 15 It is relevant to note that the Commission's statement of facts and contentions, filed before the hearing in the Tribunal, put in issue the existence of a reasonable hypothesis of connection rather than proposing disproof of such an hypothesis. It was argued that factor 6(f) was not related to the relevant service rendered by the Veteran as required by cl 5 of the SOP. Naturally enough, the applicant's statement of facts and contentions was directed to establishing the reasonable hypothesis. 16 The transcript of the argument that took place before the Tribunal does not reveal any submission on the part of the representative of the Commission that a reasonable hypothesis, if raised, was negated beyond reasonable doubt. That is not surprising. That, in itself, creates some difficulties for the respondent in the absence of the veteran and the absence of material. Normally you would be relying on 119 but he would probably want to rely on it. That is a common phrase used where considering whether a reasonable hypothesis has been raised pursuant to s 120(3). 17 Counsel for the Commission submits that the key to the decision lies in the finding that the Veteran commenced drinking in 1949 after he joined the Navy because he was enticed by his mates to drink and that he continued to drink alcohol thereafter because he had "acquired a taste for it". It is submitted that there is no finding that alcohol consumption altered from 1949 until separation in 1973 when it increased. It is implicit in this submission that the die had been cast between the commencement of drinking at the age of 19 in 1949 and the first period of active service commencing on 27 June 1950 and that operational service led to no increase in drinking. It is suggested that such a finding was justified by, and based upon, a questionnaire filled in by the Veteran in or about 1998. It is clear enough that that simple questionnaire was hardly directed to the point at issue . Most significantly, that analysis does not sit well with the diagnosis, apparently accepted by the Tribunal, that the Veteran's alcohol dependence developed in the mid 1950s ([38]). Thus, the onset of alcohol dependence was not until after the period of operational service in Korea. It was that dependence that provides the link with the death, not the commencement of drinking of alcohol. 18 The argument put by Counsel for the Commission is not unlike that considered in Bull 188 ALR 756 . However, the discussion there concerned the existence of a reasonable hypothesis pursuant to s 120(3) rather than negating that hypothesis pursuant to s 120(1). The facts, of course, were different from those in issue here. 19 The foregoing analysis persuades me that the mis-statement of the statutory task pursuant to s 120(1) in the reasons cannot simply be ignored and treated as a slip of the pen. Satisfaction beyond reasonable doubt is an exacting standard, particularly where it is framed in the negative. There were various bases for a link between operational service and alcohol dependence in the material before the Tribunal. The Tribunal considered and dealt with some of those bases and not others. There are occasions where primary facts alleged to support a hypothesis might be positively rejected and the hypothesis, or an essential integer of it, negated beyond reasonable doubt ( Byrnes v Repatriation Commission [1993] HCA 51 ; (1993) 177 CLR 564 at 570). That is not the manner in which the Tribunal proceeded and, having in mind the objective circumstances of the case, it could hardly have proceeded to find the relevant circumstances disproved in that sense. 21 In my opinion, the parties were correct in focusing argument before the Tribunal on the existence of the necessary hypothesis, as occurred in Bull 188 ALR 756, but the Tribunal ended up misdirecting itself as to the interplay between s 120(1) and s 120(3) and so applied the wrong standard of proof. The remaining grounds of appeal are best seen as aspects of that fundamental problem. I have remarked elsewhere upon the difficult task that the Tribunal has in applying these sections as they have been interpreted by the relevant authorities of the High Court and this Court ( Byrne v Repatriation Commission [2007] FCAFC 126 , 97 ALD 359 at [1] ). 22 In my opinion, the Tribunal did apply the wrong standard of proof when arriving at the decision and, having found that a reasonable hypothesis existed, and having dealt with the facts in the way it did, the Tribunal, properly directed as to the meaning of "beyond reasonable doubt", could not have rejected the claim pursuant to s 120(1). 23 The appeal will be upheld and the decision of the Tribunal set aside. The notice of appeal seeks a further order that the matter be remitted to the Tribunal for redetermination in accordance with the law and does not seek a substantive favourable order from this Court pursuant to s 44(4), (5) and (7) of the AAT Act (cf Byrne [2007] FCAFC 126 per Gyles J at [4], Edmonds J at [14] and Buchanan J at [59]---[60]). The appeal will be stood over for a short period to enable the parties to make submissions as to the appropriate ancillary orders to be made. The Commission will be ordered to pay the costs of the applicant of the appeal. The administrative law proceeding will be dismissed with no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

veteran's entitlements application for war widow's pension whether death of war veteran was attributable to eligible war service aat found there was a hypothesis linking the veteran's death to alcohol consumption in accordance with applicable statement of principles aat erred in law by failing to satisfy itself, beyond reasonable doubt, that there was no sufficient ground for determining that the veteran's alcohol dependence arose out of his war service aat could not be so satisfied appeal allowed defence and war

2 The application relies upon Order 15, Rule 11 which relevantly provides that where an affidavit filed by a party refers to any document, the Court may, subject to any question of privilege which may arise, order the party to produce the document for inspection by any other party at a time and place specified in the order or to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy. 3 The hearing of the principal proceeding is to take place on Wednesday, 22 March 2006 at 10.15am. 4 Accordingly, I heard the Applicant's motion with some degree of urgency yesterday afternoon and advised the parties that I would consider overnight the material, the submissions and the authorities referred to me in determining the questions of whether the Applicant had discharged the obligation of demonstrating that the material sought by him is relevant to the issues in question, whether the Applicant had made a persuasive case for production of the documents in the interest of the proper determination of the issues before the Court and whether the claim made by the Respondent to resist production of the documents on the ground of public interest immunity is properly established. Finally, if both the public interest in the proper determination of the issues in the proceeding requires access to the documents and the public interest in withholding production so as to prevent prejudice to the national interest are made out, where does the balance between those competing interests ultimately lie? 5 The background facts are these. 6 On 24 June 1997, the Republic of South Africa requested the extradition of Jacob De Bruyn for an alleged offence of fraud or, in the alternative, theft of 1,200,000 Rand from the First National Bank at Johannesburg, South Africa. On 11 August 1997, the Respondent issued a notice under s.16 of the Act to a Magistrate stating that the request had been received from the Republic of South Africa. On 18 December 1997, a New South Wales Magistrate determined that the Applicant was not "eligible for surrender" under s.19 of the Act and ordered the Applicant's release from custody. 7 On 28 April 1999, that decision was set aside by a judge of this Court and an order made that the Applicant be remanded in custody pending a determination by the Attorney-General for the Commonwealth whether the Applicant ought be surrendered: Republic of South Africa v De Bruyn [1999] FCA 516. An appeal from that decision was unsuccessful: De Bruyn v Republic of South Africa [1999] FCA 1344. Prior to the Full Court's decision on 19 September 1999, Magistrate Sweeney had issued on 24 May 1999 a warrant for the Applicant's detention. 8 The Applicant was arrested on 20 February 2003 and appeared in the Southport Magistrates Court on 21 February 2003. He was remanded in custody pending the making of a determination pursuant to s.22(2) of the Act . The Applicant remains in custody. 9 On 29 January 2004, the Minister signed a warrant for the Applicant's surrender under s.23 of the Act , a determination having been made under s.22(2). On 26 February 2004, the Applicant filed an application for review of the Respondent's decision to issue the surrender warrant. On 8 July 2004, Dowsett J dismissed that application: De Bruyn v The Minister for Justice and Customs [2004] FCA 880. 10 On 22 December 2004, the Full Court of the Federal Court set aside the orders of the primary judge and set aside the determination of the Respondent made on 29 January 2004 and the surrender warrant issued pursuant to s.23 of the Act . Regulation 5(4) of the Extradition (Republic of South Africa) Regulations which govern extradition requests by a foreign government before 1 August 2001 provides that the Attorney-General may decline to issue a surrender warrant if, while taking into account the nature of the offence to which the extradition request relates and the interests of the requesting country, he is nevertheless of the opinion that in the circumstances of the case, it would be unjust, oppressive or incompatible with humanitarian considerations to surrender the person to that country. The Full Court set aside the decision of the Minister principally because regulation 5(4) arguably brought within the scope of "the circumstances of the case" considerations going to conditions in South African jails and whether they constituted incompatibility with humanitarian conditions. 11 The bench warrant issued by the Magistrate remains on foot and the Applicant remains in custody held on that warrant pending a determination by the Respondent under s.22(2) of the Act . 12 As appears from this chronology, over 14 months have elapsed since the making of the orders of the Full Court of the Federal Court. 13 On 5 September 2005, the Applicant filed an application for certain relief which is the subject of the amended application filed on 23 November 2005 by which a writ of mandamus is sought directed to the Respondent and a writ of habeas corpus directing the release of the Applicant from custody until the making of any decision by the Respondent pursuant to s.22(2) of the Act , among other orders. After the filing of the application, the Applicant secured legal representation in the conduct of the action which led to a properly formulated amended application. 14 On 25 November 2005, directions orders were made for the conduct and performance of steps preparatory to the hearing. The Applicant contends that no order for discovery of documents from the Respondent was sought because, as I read the affidavit of Mr Simon Batten (a solicitor for the Applicant) sworn 9 March 2006 and the exhibits to that affidavit, the Applicant was proceeding on the footing that the settling of the index to the Application Book would result in an arrangement by consent that documents relevant to the issues in the proceeding would form part of the Application Book for the hearing and not simply documents relevant to the proceeding in respect of which no claim for privilege might be made. 15 The Applicant says and Mr Batten deposes to correspondence with the Australian Government Solicitor in which details are sought of documents referred to in the affidavit of Sally Ann Nelson sworn 3 March and the affidavit of Joanne Sheryl Blackburn sworn 2 March both filed on behalf of the Respondent. 16 Ms Nelson is a senior legal officer employed by the Commonwealth of Australia in the Extradition Unit of the Criminal Justice Division of the Attorney-General's Department at Canberra. In her affidavit, Ms Nelson deposes to the chronology of events in relation to the consideration of submissions by the Applicant, previous material and particular documents all forming part of the assessment of the circumstances relevant to the question to be determined by the Minister pursuant to s.22 of the Act . In late August 2005, the Department took steps to commence those enquiries. Upon my review of that response, I initiated, again through diplomatic channels, another query shortly prior to Christmas 2005. A response to those enquiries has yet to be received. The information from those discussions will be considered in preparing the Department's submission to the Minister. Ms Nelson also says that submission will be finalised "after taking into account any relevant information provided by Mr de Bruyn as well as relevant information from South Africa in response to the Department's enquiries. The Department has pressed the South African authorities for an early response" : paragraph 35. 20 Accordingly, Ms Nelson refers to steps taken in August 2005 by the Department of Attorney-General with the assistance of the Australian High Commission in South Africa ("AHC"), enquiries made by the AHC of South African authorities in September 2005, advices received by the Department from the AHC in November 2005 and December 2005 and enquiries made by the Department shortly prior to Christmas and in January and February 2006. A meeting also took place on 27 February 2006. 21 As to the documents arising out of these events, Ms Blackburn provides some further details of the documents and relevant circumstances. Ms Blackburn deposes to these matters. I am employed within the Commonwealth Public Service. Within the Commonwealth Public Service, I am the First Assistant Secretary of the Criminal Justice Division of the Attorney-General's Department (the Department) and as such am the Senior Officer in charge of that Division. There are two portfolio Ministers within the Department, the senior Minister being the Attorney-General, the Hon. Philip Ruddock, MP and the other Minister being the first respondent, the Minister for Justice and Customs, Senator the Hon. Christopher Ellison. Within the Department, the division of Ministerial portfolio responsibilities is such that it usually falls to the first respondent to make Ministerial decisions in relation to international extradition. One of the units within the Criminal Justice Division is the Extradition Unit. It is that unit that has the day to day carriage of extradition requests made to the Australian Government by foreign governments. Foreign governments transmit extradition requests via diplomatic channels, first to the Australian Department of Foreign Affairs and Trade. That Department transmits the extradition request to the Department. For the purpose of the briefing, the first respondent, the Department was required to make enquiries of South African authorities regarding prison conditions in that country. Such enquiries are usually conducted at a government to government level through the relevant Australian Embassy, ie, via diplomatic channels. In this case, the Department took steps to commence enquiries with the Australian High Commission in Pretoria in the Republic of South Africa in August 2005 concerning the feasibility of securing particular information in relation to prison conditions in South Africa. On 2 September 2005, the Department made a request of the High Commission for the obtaining of information from South African authorities. Subsequently, the Department received information from and made further enquiries of staff of the Australian High Commission at Pretoria through a secure cable communications system used for communications with the Australian High Commissions and Embassies. Records of communications show that South African authorities such as the National Prosecuting Authority and the Judicial Inspectorate of Prisons provided information to the Australian High Commission at Pretoria to assist the Australian Government in its consideration of South Africa's application for Mr de Bruyn's extradition. I have personally studied the documents concerned. Some of them bear an Australian Government national security classification CONFIDENTIAL indicating that the disclosure of information could cause damage to national security. Some of the other documents bear an Australian government PROTECTED marking, indicating that, though information in the document does not warrant a national security classification, the document nonetheless contains information the unauthorised disclosure of which could cause damage to Australia and its government. The effect of a lessening in confidence has the potential of damaging Australia's working relationship with South Africa that goes beyond cooperation and exchanges of information on extradition and other trans-national criminal matters. 24 The Applicant calls for production of the documents on the grounds that the documents are relevant to the issues in the proceeding, are conceded by Ms Nelson as relevant to the formulation of the submission to the Minister addressing considerations going to the determination to be made under s.22(2) and that no proper basis has been established for a claim of public interest immunity concerning the documents either individually or as a class of documents. The Applicant contends the documents have been made relevant to the determination to be made by the Minister by reason of the matters deposed to by Ms Nelson. Whilst the documents are relevant to the formulation of the submission and the question of whether conditions in South African jails attain a level of risk or threat "so high as to come within the circumstances of which the regulation speaks": Kiefel J, De Bruyn v Minister for Justice and Customs [2004] FCAFC 334 at [66] , the question in issue in the proceedings is not whether the Minister has, for example, failed to provide procedural fairness or otherwise engaged in jurisdictional error. The question is whether the Minister as a member of the executive of the Australian government has refused or constructively refused to discharge a statutory obligation cast upon him. In that sense, the chronology of events and the fact of the sequence of exchanges reflected in the documents is relevant. So too is the subject matter of the engagement but it is probably not relevant for the purpose of properly conducting the trial of the controversy, for the Applicant to forensically examine the content of each document. 26 In that regard, the Applicant says "it will be severely impeded in its capacity to prosecute the principal proceeding unless he is able to access the documents in question and verify the nature of the information sought ". 27 It seems, therefore, the Applicant requires access to the documents to test (verify) whether the documents relate to and seek out the information claimed by the deponents in the affidavits. 28 Counsel for the Respondent Minister concedes that the documents are relevant. Accordingly, there can be no suggestion that the Applicant seeks, by calling for production of the documents referred to in the affidavit, to engage in a fishing expedition to try and find documents which might assist its case. The documents are accepted as relevant which means that the documents "could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceedings": s.55 , Evidence Act 1995 (Cth). 29 Since the documents are relevant, a party in proceedings is entitled to place such evidence before the Tribunal of fact in the conduct of its case unless the documents are otherwise excluded. 30 There is some authority, however, to the effect that demonstrating that evidence is relevant to an issue of fact in the proceeding may not be enough. The test, on one view, is whether the evidence has greater probative force than mere relevance. In Alister & Ors v R (1983) 50 ALR 41 at 44, Gibbs CJ took the view the documents ought "contain material evidence" although Brennan J at page 81 in discussing Air Canada v Secretary of State for Trade [1983] 2 WLR 494 considered the documents must contain "material substantially useful to the party seeking discovery". In the case of a claim for immunity in respect of that class of documents pre-eminently protected, Gibbs ACJ in Sankey v Whitlam [1978] HCA 43 ; (1978) 142 CLR 1 at page 43 spoke of the need to establish "a strong case" for the production of the documents, by the party seeking production, before an order for production would be made. In the same case, Stephen J at page 49 referred to evidence generally " necessary if justice is to be done". On this question, Lord Wilberforce in Air Canada v Secretary of State for Trade (supra) at page 528 observed that in the appeal below, the Court of Appeal had taken the position that there "must be a likelihood that the documents would support the case of the party seeking discovery" and said "on this point I agree with the Court of Appeal". 31 For present purposes, I will proceed on the footing that the documents in issue here must reflect material evidence, satisfy the statutory test of relevance and that the documents support the case of the party seeking production. 32 The second question is whether the Respondent had established a proper basis for a claim for public interest immunity. It seems to me that the principles are these. Generally, the Court will not order the production of a document, although relevant and otherwise admissible if it would be injurious to the public interest to disclose it. There is, however, a major public interest in ensuring that the administration of justice is not frustrated by withholding documents which must be produced if justice is to be done and seen to be done. When these interests conflict, the Court must decide which aspect of the public interest predominates and in doing so, it does not fall within the privilege of the executive government to decide whether a document will be produced or withheld. Some documents are such that the nature of the injury to the public interest through disclosure is "so grave that no other interest can prevail over it" ( Sankey v Whitlam ). 33 It is not suggested in this case that the documents in issue either individually or collectively are in such a category. Ms Blackburn says that she has examined each of the documents and has formed the view reflected in paragraph 8 in respect of the documents individually and collectively. Accordingly, the claim goes to the contents of each document and all of them collectively. To the extent that the class of documents constituting exchanges with a foreign government through the vehicle of Australia's diplomatic representative agencies, are claimed in their entirety, such a claim ought be upheld only if it is really necessary for the proper functioning of government to withhold documents of that class from production. 34 As to classes of documents, the authorities recognise a number which in the public interest should be immune from disclosure. It is not contended, as I understand the Respondent, that the documents in issue here fall within one of the recognised classes of "pre-imminent" protection to use the language of Stephen J in Sankey v Whitlam (supra) at page 57. Even so, the protection is not absolute and "in very special circumstances" the claim will not be recognised. The fundamental principle is that documents may be withheld from disclosure only if and to the extent, that the public interest renders it necessary. 35 In assessing whether the public interest renders it necessary to withhold documents from disclosure, the foundation facts demonstrating the scope, content and character of the danger to the public interest is necessarily drawn from affidavit material in which those with relevant knowledge of the risks depose to the consequences to the national interest of disclosure. Plainly enough, the deponent can not swear the issue in the sense of simply asserting a conclusion although asserting a conclusion arising out of identified risks would be entirely appropriate. Nevertheless, the affidavit is as Gibbs ACJ observed in Sankey v Whitlam (supra) at page 44 one in respect of which "the Court is still required to give proper respect to the assertion by the Minister or departmental head that production would be contrary to public interest". Importantly, the affidavit must be sworn by someone who can speak with sufficient knowledge of the facts going to the risk and who has read and properly analysed each of the documents. 36 Finally, there is no doubt that the Court has the power to inspect the documents and once a Court has decided that "on balance the documents should probably be produced, it will sometimes be desirable or indeed essential to examine the document before making an order for production". 37 A further principle which has not received a great deal of elaboration in the authorities no doubt because it is accepted uncontroversially as a proposition is that the public interest is likely to be prejudiced by the disclosure of documents which would injure national defence or, alternatively, injure diplomatic relations with other countries: Mason J, Australian National Airlines Commission v The Commonwealth [1975] HCA 33 ; (1975) 132 CLR 582 at 591. See also Asiatic Petroleum Company Limited v Anglo-Persian Oil Company Limited [1916] 1 KB 882. See also the remark of Stephen J in Sankey v Whitlam (supra) at page 51 which recognises that documents relating to "the defence of a Commonwealth or with the conduct of the nation's foreign affairs" are privileged. This category of documents going to diplomatic relations with a foreign government seem to me to include documents arising out of a request by a foreign government for the extradition of an individual under national Commonwealth law which in part reflects reciprocal international inter-governmental protocols and the implementation of bilateral treaty arrangements between sovereign governments such as the Treaty on Extradition between Australia and Republic of South Africa , although the particular governing arrangements so far as Mr De Bruyn is concerned are those established by the earlier repealed regulations under the Extradition Act . 38 In identifying these principles, I rely upon the judgments in Sankey v Whitlam (supra), Alister v R (supra), Air Canada v Secretary of State for Trade (supra), Burmah Oil Co Ltd v Governor and Company of the Bank of England [1979] UKHL 4 ; (1980) AC 1090, Australian National Airlines Commission v The Commonwealth (supra), Conway v Rimmer [1968] UKHL 2 ; (1968) AC 910, Rogers v Home Secretary (1973) AC 388. 39 In her affidavit, Ms Blackburn says that she has examined the documents. She concludes that disclosure will prejudice the international relations of Australia and goes on to say that disclosure in these proceedings is likely to have an adverse effect upon further dealings. The expression of opinion seems conclusive as to the first consequence and an assessment of probabilities as to the second. The primary and probably only reason why this view of the harm will emerge by reason of disclosure is that the South African authorities gave the relevant information to the Australian authorities for a particular reason and "in confidence" with the result that if curial processes rendered the documents susceptible to disclosure, there would be a loss of confidence in the dealings between Australia and the Republic of South Africa. Further, this loss of confidence is said to be one which might go beyond exchanges of information on extradition and affect exchanges of information on trans-national criminal matters. 40 The Respondent argues that the affidavit on its proper construction only really asserts the consequence contended in respect of information given by South African authorities to Australian diplomatic officials and does not assert the claim properly as a matter of construction in respect of the related communications between the diplomatic agencies of Australia and communications from the AHC to authorities within the Republic of South Africa. Whilst the affidavit is not clear about these matters it seems to me that the conclusion claimed arises out of the previous assertion that the deponent has considered afresh each of the documents, the classification accorded to the documents and asserts that if information "within them" were disclosed to what might broadly be called outsiders, the relevant prejudice will arise. 41 Whilst I am prepared to proceed on the footing that the nature of inter-governmental relations particularly in aid of criminal enforcement protocols is a subject matter of public interest immunity which requires a much higher level of judicial acceptance in the scope of the claims for information received by the national government from a foreign government, I am not persuaded that the communications from the Attorney-General's Department to the AHC or the AHC to the Department or the AHC to agencies within the Republic of South Africa are communications the disclosure of which would harm the national interest. I accept that the claim for public interest immunity concerning the information communicated from the Republic of South Africa and transmitted to Australia by the AHC (if it be the case), is established. 42 Because I have reservations about acceptance of the claim in respect of some of the documents, I propose to look at the documents passing between the Attorney-General's Department and the AHC and to assess whether, with the benefit of that examination, the documents should be produced. 43 In relation to the question of Salemi v Holding (supra), there is force in the proposition that the factual circumstances have a significant degree of correspondence with the facts in this case. Three things probably differentiate that case. The first is that Lee J recognised that the Applicant had demonstrated "weighty reasons" for disclosure of the documents. The Applicant in that case was seeking review of a decision in which he contended that he had a well-founded fear of persecution and that his life was at risk. Documents going to that question held by the government were said to affect communications with UNHCR. It seems to me that although the documents in this case are relevant, they are not in the class of relevance which would reflect the categorisation "weighty reasons". Secondly, although Salemi v Holding reflected claims based upon consequences for Australia in information flows from UNHCR, the character of the threat does not seem to be of the same kind which Mason J and Stephen J were talking about in Australian National Airlines Commission v The Commonwealth (supra) and Sankey v Whitlam (supra). Thirdly, the question in this case involves a government to government communication in aid of extradition arrangements and the national interest in the orthodoxy of those arrangements either on a bilateral or multi-lateral level for securing access to individuals who are required to face prosecutorial proceedings in respect of alleged breaches of the criminal law is a critical matter to a civil society. 44 Accordingly, in weighing the balance in the present case, I am satisfied that a claim for public interest immunity in respect of information received by Australian agencies from the Republic of South Africa concerning the subject matter of the request outweighs the public interest in disclosure of those documents in the conduct of the proceedings next week. However, I propose to examine all documents other than those which contain the information from either the government of the Republic of South Africa or agencies within the Republic of South Africa providing responses to the Australian government, the Attorney-General's Department or the Australian High Commission. By information, I mean to refer to the information going to the subject matter of the requests which is said by Ms Blackburn to be productive of the damage to the national interest. 45 I propose to direct that the Respondent prepare a list of all documents identifying the parties from whom and to whom they were sent, the date and a short statement of the subject matter which Ms Nelson describes in her affidavit as "enquiries into prison conditions in South Africa" (paragraph 33). 46 I will discuss the form of the order with the parties. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

extradition arrangements claim by the commonwealth of public interest immunity concerning documents relevant to the question of whether the minister has refused or constructively refused to discharge a statutory duty consideration of the principles generally matter brought forward for urgent determination prior to hearing commencing in one week. practice and procedure

The BHP and Billiton Plc merger which resulted in the name changes occurred in 2001. DRI was incorporated in Western Australia. Between 1995 and August 2005 it was engaged in the construction, development and operation of a hot briquetted iron plant located at Port Hedland. The function of the plant was to produce briquettes made from iron ore fines. Development Finance has, since 1994, provided loans to members of the BHP Group of companies which carry on business overseas. 2 On 7 June 2005 DRI and Development Finance entered into an agreement for the transfer of $89,848,367 of tax losses from DRI to Development Finance for the 1999 year. The agreement was made pursuant to s 170-50 of the Income Tax Assessment Act 1997 (Cth) (ITAA 1997). On the following day, DRI and Development Finance sent a copy of the Loss Transfer Agreement to the Commissioner of Taxation (the Commissioner) and requested that he grant an extension of time for the making of the agreement under the provisions of s 170-50. 3 Under s 170-5 as it applied to the relevant tax year a company could transfer a tax loss to another corporate member of the same wholly owned group. The tax loss was to be transferred by an agreement between the two companies. Section 170-50 required that the agreement must be made on or before the date of lodgment of the transferring company's income tax return for the deduction year "... or within such further time as the Commissioner allows". On or about 14 February 2006 Mr Paul Duffus, a delegate of the Commissioner, decided not to allow DRI and Development Finance further time within which to make the Loss Transfer Agreement. 4 On 9 March 2006 DRI and Development Finance filed an application for an order of review of Mr Duffus' decision pursuant to s 39B of the Judiciary Act 1903 (Cth). Although variously expressed, the principal grounds upon which review was sought were that he exercised his discretion to refuse an extension of time for the improper purpose of penalising Development Finance for tax avoidance conduct in respect of which a penalty had already been imposed. He was also said to have exercised his discretion in accordance with a rule of policy reflected in a Tax Ruling TR98/12 without regard to the merits of the particular case. There was a generalised complaint that his exercise of the power resulted in "unfairness amounting to an abuse of power" and that it was so unreasonable that no reasonable person could have so exercised it. 5 A significant factor in the delay that occurred between the 1999 year of income and the agreement to transfer losses in 2005 was the time taken to resolve disputes between DRI, Development Finance and the Commissioner. There were two separate lines of disputation, one relating to DRI and the deductibility of expenditure associated with the development of the hot briquetted iron plant, the other relating to Development Finance and the writing off of a bad debt to a BHP subsidiary operating in Zimbabwe. The latter event gave rise to a Pt IVA determination by the Commissioner and the imposition of additional tax by way of penalty on Development Finance. The writing off of the bad debt had an impact on the Commissioner's decision to refuse an extension of time to transfer the research and development (R & D) losses between DRI and Development Finance. 6 Having regard to the history of the matter, which is outlined below, and the reasons for the decision to refuse the extension of time sought, it is my opinion that the decision-maker's discretion has miscarried. It has miscarried in part because the narrow focus of his reasons for refusing to extend time to allow DRI and Development Finance to enter into a transfer agreement has led him to overlook matters directly relevant to the exercise of the discretion including the legislative purpose of the loss transfer provisions, the absence of any adverse impact of the proposed extension on the administration of the Act and the repeatedly stated intention of the group to seek to transfer the losses in question on crystallisation of the relevant company's tax position. In addition the discretion has miscarried because the decision-maker took the view that allegedly culpable conduct on the part of Development Finance attracted a heavy weighting said to reflect the need to penalise "to a greater extent" taxpayers involved in serious non-compliance activities. The decision will be quashed and the matter remitted for reconsideration in accordance with law. The establishment of EAF steel making facilities required much less capital than the older method. This meant that steel production could be economically developed at much lower annual capacities using EAF. If suitable raw materials were available production costs would also be much lower. The principal raw material used in EAF steel making in the mid 1990s was scrap steel. 8 An alternative to scrap steel was the use of hot briquetted iron (HBI). It was at the time a well known substitute for scrap in EAF mills. It had low levels of residual elements such as copper, lead and zinc and offered advantages to EAF producers wishing to improve the quality of their steel products. To be competitive against scrap its level of what was called acid gangue (Si O 2 + AI 2 O 3 ) should be less than 3%. Acid gangue levels of iron ore fines being exported by Australian iron ore producers were in the range of 7% to 8%. 9 In the mid 1990s BHP considered developing a technology under which it could convert iron ore into HBI and so diversify its steel making raw materials supply business by expanding into the rapidly growing EAF market which it did not then supply. It could also reduce the long term competitive pressures on the sales of iron product in the BF market. 10 Dr Colin Bensley who is an experienced metallurgist joined the BHP Group in 1972 as a scholarship student. He subsequently rose to become chief metallurgist for the iron ore group within the BHP Minerals Group. He is presently designated Manager, Process Capability Iron Ore. In 1993 and 1994 he was involved in a detailed evaluation of options for the production of HBI by BHP in Western Australia. He was given responsibility for carrying out a R & D program to support decision making about the possible construction and operation of a series of facilities by BHP which would produce HBI. He was responsible for carrying out the R & D program for the production of HBI and its precursor, "Direct Reduced Iron". Direct Reduced Iron is a metallic material formed by the reduction of iron oxide at temperatures below the melting point of iron. HBI is produced by its physical compaction. The resulting material is suitable for storage and transport. DRI proposed to manufacture HBI by building facilities for the beneficiation of iron ore and material handling and disposal facilities at Port Hedland. 12 In 1994 there was an existing technology for the production of HBI. It had been developed by the owners of the Fior de Venezuela plant. It was identified by the team working on the HBI development as the preferred process for their proposed Port Hedland plant. It was referred to as the FINMET technology. It was a second generation process developed from an earlier higher cost technology known as FIOR (Fine Iron Ore Reduction). If FINMET were to be employed at Port Hedland it would have been its first commercial application. The Venezuelan FIOR plant had been in operation for 18 years and had used Venezuelan iron ore exclusively. There were significant differences between the chemical and physical properties of the Venezuelan and Australian ores and it was not clear that the "fluid bed reduction process" which is the basis for both the FIOR and the FINMET technologies could be applied to Australian iron ore. A trial was successful and, according to Dr Bensley, was a major factor in the final selection of FINMET for Port Hedland. Although the FIOR and FINMET technologies were both based on a "fluid bed reduction process" for the extraction of oxygen they did have significant differences. Further R & D work was required before start-up in Port Hedland to reduce any risks resulting from differences in technology and differences in ore feed. 13 Dr Bensley expected, in 1995, that HBI facilities at Port Hedland would be able to achieve a commercially acceptable level of production reasonably quickly and that most of the R & D after plant start-up would be concerned with improving and maximising the use of the technology to achieve a greater output than originally forecast. He did not foresee that a large part of the R & D would ultimately be needed to secure basic levels of production. 14 The Board of BHP approved the HBI project in 1995. Russell Day, who is now Senior Tax Advisor, Iron Ore and Base Metals, for the BHP Group, then had conversations with Dr Bensley and with Mr David Webster, another BHP scientist. He was told that the technology could produce tremendous value for the group. It was expected to generate sales of iron ore briquettes to the value of US$500,000,000 per annum to markets in Asia where it was thought demand would be very strong. He understood the project needed considerable work before it became operational. The difference between the properties of iron ore fines at Port Hedland and those used in Venezuela. 2. The need to find the correct heat mass balance model. This could only be discovered by repeated testing of a reactor using different gas pressures and iron ore levels on each occasion. 3. Accretions, that is a build up on surfaces within the reactors leading to the process stopping. 4. The fact that the general flow of the material was more like that of a paste than a liquid. He estimated the total amount of the claim would be about $382.5 million. This was large by comparison with other claims made by the BHP Group and for that matter other taxpayers in Australia. 16 It is helpful to interpolate here a brief reference to the statutory provisions affecting deductions for R & D expenditure. Section 73B of the ITAA 1936 provided that where an "eligible company", that is one incorporated under Commonwealth, State or Territory law, incurred R & D expenditure during a year of income in excess of $20,000 that expenditure multiplied by 1.5 was available as a deduction from the assessable income of the company for the year of income (s 73B(14)). There were many qualifications and definitions affecting deductibility. It is only necessary for present purposes to have regard to one of them. That qualification was that the company was required to be registered, in relation to the year of income, under s 39J of the Industry Research and Development Act 1986 (Cth) (IRD Act 1986) (s 73B(10) ITAA 1936). 17 Under s 39J of the IRD Act 1986 it was necessary, in order to secure registration in respect of a year of income, to apply to the Industry Research and Development Board (the Board). The company was required to provide the Board with information in relation to its R & D activities as the Board reasonably required. The Board could refuse registration if the activities did not involve R & D (s 39K). A mechanism for advance registration was introduced with s 39HH. However it did not remove the need to be registered under s 39J in respect of a relevant income year in order to claim the deduction under s 73B of the ITAA 1936 for that year. 18 AusIndustry was the arm of Commonwealth government administering the R & D tax concessions. Mr Day decided to disclose the nature of the proposed claim to it as soon as possible. He set up an initial meeting with a manager of the AusIndustry Assessing Branch at BHP's research facility in Newcastle. A detailed presentation was made. Subsequently a request for an "Advance Opinion" was prepared and submitted to the Board. The request explained that the first of the processing reactor trains at the proposed HBI facility, known as train 1, would be dedicated to R & D. The cost of its construction would form part of the claim. At the time Mr Day expected, based on his conversations with Dr Bensley, that DRI would only need one processing reactor train to get the correct balance between heat and mass needed for the production of briquettes, to test accretion prevention initiatives and to overcome any other concerns about reactor campaign life. 19 On 24 November 1995 Mr Robinson, the public officer of DRI sent a letter to the Director of the Research and Development Tax Concession Branch of the Board. In that letter he requested that the Board "provide an advance opinion on the eligibility of the Research and Development (R & D) activities detailed in the attached project technical statement". Between 24 November 1995 and 15 April 1997 Mr Day prepared and lodged annual R & D registration applications for the HBI project. This process he described as providing "a basic level of comfort in that the material contained in the registrations was reviewed by AusIndustry assessors prior to the issue of annual registration confirmations". 20 By 15 April 1997 DRI had not received its advance opinion from AusIndustry. Mr Day then submitted an application to the Board under s 39HH of the IRD Act 1986 for "Advance Registration" of R & D activities which were to take place in the years of income ended 31 May 1997, 31 May 1998 and 31 May 1999. He prepared separate applications for registration under s 39J for each applicable income year. 21 On 3 July 1998 the General Manager of the Research and Development Tax Concession Branch of the Department of Industry, Science and Tourism wrote to Mr Day and advised that DRI was granted advance registration under s 39HH of the IRD Act 1986 for the income year 1997/98 in respect of ore sizing tests and gas composition tests. The monitoring of plant performance to determine the technical impact of ore feed sizing and the validation of heat and mass balance models to predict the effect of gas composition on plant performance qualified as supporting activities. Centrally thickened discharge. 2. Testing of accretion resistant coatings. 3. Modifying flow patterns within reduced reactors. 4. Novel sensor tests. 5. Development of process modelling strategies. 6. Briquetter development. These were refused on the basis that they were routine engineering activities not involving innovation or a high level of technical risk. Product quality testing. 2. Customer product trials. The decision came as a surprise to Mr Day. However on 9 July 1998 he prepared a letter requesting the Board to review its decision of 3 July 1998. The Board did not confirm, revoke or vary its decision within 60 days of receiving DRI's request for review. It was therefore deemed, under s 39J of the IRD Act 1986, to have made a decision to confirm its earlier refusal to register the particular activities. On 2 October 1998 Mr Day prepared an application for review of that decision in the Administrative Appeals Tribunal (the Tribunal). On 7 December 1998 the Tribunal made an order by consent remitting the matter to the Board for reconsideration pursuant to s 42D of the Administrative Appeals Tribunal Act 1975 (Cth). 22 Construction of the HBI facilities at Port Hedland commenced in 1997 and by early 1999 train 1 was ready for testing. It failed and had to be shut down after 10 days. The principal production difficulty was associated with the reduction process to produce Direct Reduced Iron. For the technology to work the iron ore and partly reduced material had to flow continuously through the reactor train. This did not occur and there were frequent stoppages which upset the process and attempts to balance the heat and mass flows in the reactors. The flow stoppages also greatly increased the rate of accretion growth in the reactors so that in the first six months of its operation the maximum production time in any one of the three train 1 campaigns was only 40 days. It became necessary during April 1999 to use an additional reactor train, called train 2 and a support unit known as module 1 in order to carry out the R & D activities. 23 On 30 November 1999 Mr Day sent an application for registration of 50 R & D activities to the Board for the year ended 31 May 1999. The application covered total R & D expenditure of $662,370,481. It included plant expenditure for train 1 as well as train 2 and module 1. 24 In June 1999 Mr Day became aware that the Commissioner was about to issue a draft ruling on the operation of the R & D plant expenditure provisions contained in s 73B of the ITAA 1936. No details of the ruling were released until its publication as TR 1999/D14 on 10 November 1999. The Commissioner expressed the view in that ruling that an intention to put a unit of plant to use for non-R & D purposes after the completion of an R & D program would prevent any expenditure incurred on the construction of that unit from being eligible for deductibility under s 73B. 25 On 1 November 1999 DRI lodged an income tax return for the year ended 31 May 1999. R & D deductions for the cost of plant were claimed only with respect to train 1. The total amount claimed was $144,424,510. $25,481,480 was a deduction in the accounting profit and $118,943,030 by tax adjustments. $75,608,741 related to plant expenditure. DRI had no income that year so the claim resulted in its incurring tax losses. Mr Day decided that claims for train 2 and module 1 should be made later in the form of a detailed request to the Commissioner for a credit amendment to DRI's assessment for 1999. Mr Day said that decision was reached because the application of those items of plant for R & D purposes was unexpected and had never formed part of the application for advance registration. 26 Throughout 1999 DRI's application for advance registration remained unresolved. However, following an assessment by an independent expert engaged by the Board, the Australian Government Solicitor's office wrote to DRI on 28 August 2000 offering to recommend to the Board a settlement of the disputed R & D claims on the basis that certain of the activities were R & D activities in the 1997 to 1999 years of income. It required DRI to give up its claim in relation to "central thickened charge". Mr Day decided to accept the offer. On 12 September 2000 the Public Officer of DRI wrote to the Australian Government Solicitor indicating that DRI would support the proposed settlement recommendation. On 30 October 2000 the Board wrote to the Deputy Commissioner of Taxation with a copy to DRI setting out a list of matters which, in its opinion, complied with the definition of R & D activities in subs 73B(1) of the ITAA 1936. These were in accordance with the proposed settlement. 27 On 21 December 2000 DRI wrote to the Tribunal referring to its determination of 7 December 1998 that the application to review the Board's decision be remitted to the Board for reconsideration. The letter stated that DRI was satisfied with the revised determination by the Board. It therefore withdrew its application for review. 28 Following the Commissioner's ruling TR1999/D14, Mr Day formed the opinion that any credit amendment request to be made in respect of train 2 and module 1 would be rejected by the Commissioner as those items of plant were intended to be used ultimately for commercial application following their initial exclusive use for R & D purposes. There was at the time extensive debate about the correctness of TR1999/D14 among tax professionals in the mining industry and with officers of the Commissioner. 29 Representations were being made to the Federal Government that s 73B should be amended retrospectively to overrule the approach adopted in the draft ruling. Those representations were eventually successful. By a press release dated 26 April 2001, the government announced that it would retrospectively amend the ITAA 1936. An amendment was introduced by the Taxation Laws Amendment (Research and Development) Act 2001 (Cth) which was assented to on 1 October 2001. On 23 January 2002 the Commissioner issued Taxation Ruling TR 1999/D14 in final form as Taxation Ruling TR 2002/1. He abandoned the approach taken in the earlier draft ruling and confirmed that expenditure on plant would be eligible for R & D deductions provided it was used exclusively for R & D in the relevant income year irrespective of whether it would be subsequently applied to commercial use. 30 When the new ruling issued Mr Day decided the time had come for DRI to make a credit amendment request for the 1999 year in respect of the costs of construction of train 2 and module 1. He submitted a request for an amendment on 14 May 2002. On 13 August 2002 he was informed by Mr Heymanson of the Commissioner's office that although the Australian Taxation Office (ATO) would process the amendment request, the R & D claim would be subject to a risk review, that is to say an audit. This advice was confirmed by letter dated 30 August 2002. 31 Mr Day said that given the Commissioner's decision to conduct an investigation into the claims made in respect of train 2 and module 1, he and BHP's Manager Group Tax, Brendan Mulqueen, decided not to transfer the additional tax losses arising from that claim to another group company until the Commissioner's review had been completed and the availability of the losses confirmed. A premature transfer would expose DRI to the risk of penalty if the deductions were denied by an audit. In addition Mr Mulqueen was concerned that a refusal by the Commissioner to recognise transferred losses would require an adjustment to the consolidated profit (or loss) accounts of the BHP Group as reported to the Australian Stock Exchange. A negative adjustment to the profit and loss account might in turn have affected the market value of BHP's shares. Mr Mulqueen was not prepared to risk the possibility of such a negative adjustment. 32 On 28 January 2003 Mr Heymanson sent a letter with a list of questions relating to the R & D activities. This was the first correspondence received from the ATO since 30 August 2002. Mr Mulqueen responded on behalf of DRI by a letter dated 30 May 2003. That letter set out answers which had been prepared by himself and Mr Day. 33 On 15 January 2004 Mr Heymanson rang Mr Day and said that the Commissioner had now completed his review and considered the "risk to be low". A confirmatory letter was sent on 4 February 2004. The letter stated that the risk in relation to the claims made concerning train 2 and module 1 was "low". Mr Day rang Mr Heymanson to confirm what was meant by the phrase in the letter that "the risk is low". Mr Heymanson said he meant that it was a very good day for BHP and a sad day for the ATO. Mr Day ceased any direct involvement with the utilisation of the losses following that letter. 34 While all this was going on, Dr Bensley had been proceeding with his endeavours to develop the technology. The problems with train 1 were essentially overcome in 2000 after significant capital was expended to alter the process conditions within the reactor trains. From the middle of 2000 onwards the level of production increased on a yearly basis but the HBI facilities continued to be plagued by problems. Between July 2003 and June 2004 the average number of production days per campaign was still only 120. Operations at the HBI facilities were suspended in May 2004 following an accident which resulted in the death of one employee and severe injuries to three others. In August 2005 BHP decided to close the facilities. The audit covered a bad debt deduction claimed by Development Finance in the year ended 31 May 1999 in relation to a loan it had made to BHP Minerals Zimbabwe Pty Ltd ( BHP Zimbabwe) and other bad debt deductions claimed in the year ended 30 June 2000. Mr Mulqueen said that, since it commenced business in 1994, Development Finance had lodged its tax returns on the footing that it carried on a business of money lending and that the loan to BHP Zimbabwe had been made in the ordinary course of such business. As a result interest was returned in Development Finance's annual tax returns as having been derived as it accrued, notwithstanding that it had not been paid. Interest on the loan to BHP Zimbabwe had reached about $100,350,000 when the debt was written off as bad. DRI and Development Finance submitted that the practice of accruing interest as assessed and returning it as assessable income accorded with Taxation Ruling TR 93/27. Under that Ruling finance companies are required to return interest as it accrues on a day to day basis. Ordinarily investors derive interest as it is received. 36 The factual background to the bad debt write off between Development Finance and BHP Zimbabwe appears from a Position Paper sent to BHP by the ATO on 29 January 2004. The Position Paper itself is relied upon in BHP's submissions for its description of the relevant transaction. 37 BHP Zimbabwe was a joint venturer in a project in Zimbabwe for the development and operation of a platinum mine called the Hartley Project. The mine was not a success and as at 31 May 1998 BHP Zimbabwe was "in a negative net asset position". On 9 July 1998, in accordance with BHP Group Accounting Policy, a Letter of Comfort was issued to the directors of BHP Zimbabwe from BHP. In that letter BHP undertook to provide sufficient funds to pay any debts incurred by BHP Zimbabwe whether the debt was incurred before or after the date of the Letter of Comfort. The Commissioner's Position Paper stated that "all companies in the Group were aware that Letters of Comfort were not intended to create any binding obligation". Accordingly, the Commissioner questions whether the existence of a Letter of Comfort justified inaction on the part of [Development Finance] in the face of [BHP Zimbabwe's] default on the loan agreement. Zimbabwe Platinum Mines Ltd is an unrelated party. 39 On or about 26 August 2003 Mr Mulqueen attended a meeting with officers of the Commissioner to discuss the audit. In the course of that meeting Mr Manning, one of the Commissioner's officers, said that the Commissioner would shortly run out of time to amend Development Finance's assessment for the 1999 year because of statutory limitation periods contained in s 170 of the ITAA 1936. Mr Manning therefore requested an extension of the period within which the Commissioner could amend Development Finance's assessment for the 1999 year pursuant to s 170(4B). This was the first of a series of such requests. 40 Development Finance decided to grant the request. At that time DRI's R & D losses arising out of the R & D claim for the 1999 year were still the subject of review by the Commissioner. As public officer for Development Finance, Mr Mulqueen signed the consent for the extension of time on 1 September 2003. 41 On 29 January 2004, Mr Killaly, a Deputy Commissioner for Taxation, wrote a letter to BHP enclosing a Position Paper in relation to the claimed bad debt deduction. He expressed the opinion that the deduction should be disallowed. This would involve the issue of an amended assessment to Development Finance for the 1999 year which would substantially increase its taxable income for that year. The Commissioner's view expressed in the Position Paper was that the operations of Development Finance did not support the conclusion that it carried on an independent business as either a money lender or as a financier with a view to profiting from such business. Rather it made its lending, credit risk and recovery decisions on the basis of, and subject to funding by, the board of BHP. The interest and profitability of the parent company, BHP, and the BHP Group were paramount in that decision-making. Development Finance, according to Mr Killaly, acted as a conduit for investments by BHP. The interest and profitability of Development Finance were subordinate considerations. To the extent that Development Finance was found to have been carrying on a business of money lender or as a financier when it advanced funds to BHP Zimbabwe, it was the Commissioner's view that the loss on the loan was not made in the ordinary course of either of those businesses. Alternatively, the debt owed by BHP Zimbabwe to Development Finance was not bad. 42 Mr Killaly further expressed the view in the Position Paper that any loss incurred as a result of Development Finance writing off the loan from Development Finance to BHP Zimbabwe was not necessarily incurred in carrying on a business for the purpose of gaining or producing assessable income. His alternative view was that the loss was on capital account. The Position Paper did not address the application of Pt IVA of the ITAA 1936. The ATO had given "preliminary consideration" to its application but such consideration had not been finalised. The covering letter invited correction of any incorrect information and BHP's views of the law as it saw it. A response by 27 February 2004 was invited. 43 Mr Mulqueen was conscious of the possibility that some of the DRI losses might be required to offset increased taxable income of Development Finance in the 1999 year as a result of the issue to it of an amended assessment relating to the BHP Zimbabwe write off. Before effecting a transfer he decided to wait to see if the losses would be required for that purpose. His decision was also based upon his experience of the practice of the ATO in relation to loss transfers arising out of ATO audits. That practice was not to entertain requests to transfer losses out of time until the tax position of the potential transferee and transferor companies was, at least from the ATO's position, finalised. 44 On or about 2 April 2004 Development Finance responded to the Position Paper and denied the correctness of the opinion expressed in it. Mr Mulqueen also signed another consent to an extension of time in favour of the Commissioner for the purpose of considering amending the 1999 assessment under s 170. At about the same time Mr Killaly on behalf of the Commissioner confirmed that his position was as stated in the earlier Position Paper and invited Development Finance to make representations about the imposition of penalties and the general interest charge (GIC). 45 Further exchanges occurred between the Commissioner's office and Mallesons Stephen Jaques (Mallesons), representing the BHP Group in relation to the audit. On 2 June 2004 Mr Clough of Mallesons wrote to the Commissioner's office enclosing a submission on behalf of Development Finance in relation to the remission of penalties and GIC. He contended that penalties and the GIC should be reduced or remitted. 46 Mr Mulqueen signed a consent to further extension of the amendment period pursuant to s 170(4B) on 25 June 2004. The extension was to 30 June 2004. Another consent was signed on 16 August 2004. 47 On 19 November 2004 the Commissioner requested a further extension of time to amend Development Finance's assessment for the 1999 year of income. He sought an extension to 31 March 2005. Mr Mulqueen was aware that the statutory period in which BHP Group companies could request credit amendments for the 2000 year of income (without the need to seek the Commissioner's consent to an extension of time for that purpose) was coming to an end. He wanted to make sure that the granting of further extensions to the Commissioner to amend Development Finance's assessment for 1999 would not unduly disadvantage the BHP Group for the 2000 year of income which was also being audited. He signed a letter on 19 November 2004 to Mr McAlister of the Commissioner's office. He expressed his expectation in that letter that the Commissioner would "favourably consider" any request to transfer tax losses out of time for the 2000 year of income following the issue of any amended assessments upon completion of the audit. Mr Mulqueen said the basis for that expectation lay in previous grants by the BHP Group of the numerous extensions of time under s 170(4B) in favour of the Commissioner. The purpose of these requests herein is to ensure that no BHP Billiton group company should be unduly disadvantaged by allowing an extension of time for the Commissioner to amend the assessments to BHP Development Finance Pty Ltd. Accordingly BHP Billiton group companies should be able to transfer any tax losses in existence in any BHP Billiton group company in the 2000 year of income. In that discussion he sought further reasons concerning BHP's request for an extension of time to make loss transfers and to amend assessments as a consequence of such amended loss transfers. In the event of audit adjustments, BHP Billiton group companies should be able to transfer any tax losses in existence in any BHP Billiton group company in the 2000 year of income. While the audit issues remain unresolved, in the interests of fairness, the purpose of the requests is to preserve the Commissioner's ability to issue amended assessments on a basis which takes into account any tax losses in existence in any BHP Billiton group company in the 2000 year of income. That year was also the subject of the audit in relation to a bad debt deduction claimed by Finance and a number of amendment requests which he reviewed at the time. He expected that the Commissioner's approach would be the same in respect of future loss transfers for the 1999 year. 50 On 30 November 2004 Mr Killaly signed a letter to Mr Mulqueen, although it seems Mr McAlister may have been its author. Any amendment to disallow deductions for losses transferred from the loss companies to income companies within the Group would be consequential upon that decision. In our view, there is no reason to seek the Commissioner's permission to make additional loss transfer agreements until such time as the loss deductions available to the income companies are finally determined. The letter acknowledged the Commissioner's position that he considered that it was too early to consider any request to transfer losses out of time. Mr Killaly responded on the same day. As we advised in our letter dated 30 November 2004, it is in our view premature to give any consideration at this time to whether the Commissioner may in future exercise the discretion in s 170-70(2)(d) of the Income Tax Assessment Act 1997 . However, if the assessments of the income companies are amended to increase their tax liability, we undertake to give prompt attention to any request we receive which seeks the exercise of the discretion in paragraph 170-70(2)(d) (by which the Commissioner may permit the making of loss transfer agreements at any time). He therefore took no further steps to deal with DRI's losses until the issue of an amended assessment for Development Finance which had been foreshadowed in the Position Paper. 53 On 18 March 2005 Mr Killaly issued an addendum to his Position Paper. He foreshadowed the issue of an amended assessment to Development Finance increasing its taxable income by the amount of $154,131,587. On 29 March 2005 he again wrote to Mr Mulqueen and asked for a further extension of the period within which the Commissioner might amend the assessment for Development Finance for the 1999 year of income. Mr Mulqueen signed a consent to a further extension from 31 March 2005 to 16 May 2005. 54 Mallesons responded to the addendum on or about 2 May 2005 and explained that even if the bad debt deduction claimed by Development Finance were disallowed, the proposed adjustment of $154,131,587 was incorrect and should be $89,848,367. On 13 May 2005 Mr Mulqueen received a facsimile from Mr Killaly attaching a notice of amended assessment for Development Finance and an income tax adjustment sheet increasing the taxable income of Development Finance by $89,848,367. The adjustment sheet reflected the Commissioner's acceptance of the point made by Mallesons that if any adjustment were to be made it was $89,848,367. 55 On 8 June 2005, Mr Mulqueen lodged a notice of objection against the amended assessment issued to Development Finance. He also sent Mr McAlister a request on that date to extend time for the making of a loss transfer agreement from DRI to Development Finance for the year ended 31 May 1999. The proposed loss transfer would transfer part of the R & D losses incurred by DRI in the year ended 31 May 1999 to Development Finance. The amount to be transferred was the amount assessed to Development Finance for that year, ie $89,848,367. 56 Mr Duffus of the Commissioner's office sent a facsimile to Mr Edney on 22 August 2005 in which he said the ATO was "turning its mind" to the application of Pt IVA of the ITAA 1936 to the bad debt deductions claimed by Development Finance. He foreshadowed the issue of a Position Paper on that question. In his letter he noted that the six year statutory period for any application of Pt IVA in respect of Development Finance's assessment for the year of income ended 31 May 1999 would expire on 1 November 2005. Mr Duffus followed up with his foreshadowed Position Paper on 25 August 2005. 57 In the course of his Position Paper Mr Duffus asserted that apart from the fundamental issue of "bankability" Development Finance had been aware for a considerable period of time and certainly since September 1997 that BHP Zimbabwe was in difficulty and could not meet its obligations under the existing loans. Development Finance nevertheless continued to make substantial additional funds available to it. From September 1997 to the end of December 1997 BHP Zimbabwe drew down on the facility on three occasions to a total amount of $42.8 million. Development Finance also allowed BHP Zimbabwe to capitalise unpaid interest. Then, he said, as a consequence of implementing a preordained integrated series of steps, BHP Zimbabwe treated the loan as forgiven to the extent of the amount written off as a bad debt. This was said to have been intended by the parties. It was said to have been shown by their conduct, by BHP's purpose of intending to divest itself of BHP Zimbabwe and the terms of the sale agreement requiring the sale of BHP Zimbabwe to be free of encumbrances. 58 Reference was also made in the Position Paper to the Letter of Comfort. Mr Duffus contended that the terms used by BHP showed that the parties intended that the Letter of Comfort constitute a legal enforceable obligation to financially support the company and its directors should the need arise. There were serious questions having regard to tort, equity and trade practices law as to whether the undertakings in the Letter of Comfort could be revoked with retrospective effect. There was a preordained series of integrated steps intended to result in the forgiveness or otherwise compromising of the loan and interest owed by [BHP Zimbabwe] to [Development Finance]. Moreover the debt of $524,864,748 was said not to be genuinely bad because the preordained integrated series of steps was intended to make it bad, creating a situation that would not otherwise exist and which involved the lender not pressing for recovery. The Position Paper then made reference to the eight factors to which the Commissioner was required to have regard under s 177D(b) in deciding whether the arrangement was a scheme to which Pt IVA applied. Mr Duffus asserted that consideration of those factors disclosed a dominant purpose in relation to the scheme of obtaining a tax benefit. 59 By letters dated 30 August 2005 the Commissioner informed Mr Mulqueen that he had considered his request to allow DRI extra time to enter into tax loss agreements with BHP Billiton Freight Pty Ltd, Finance and UMAL Consolidated Pty Ltd for the year ended 31 May 1999. The requests were allowed in full. 60 On or about 5 September 2005 the ATO wrote to Mallesons and invited Development Finance to attend a meeting of the General Anti-avoidance Rules Panel (the Panel) on 4 October 2005. The Panel is an internal committee set up by the Commissioner to review the application of Pt IVA to taxpayers. On 27 September 2005 Mallesons wrote to the Panel and advised that in the circumstances it did not consider it appropriate to accept the invitation to appear before it. 61 On 6 October 2005 the Chairman of the Panel, Mr Kevin Fitzpatrick, wrote to Mr Clough at Mallesons and said that the Panel's advice was that Pt IVA would apply to deny the bad debt deduction claimed by Development Finance assuming that that deduction was otherwise allowable. He advised, contrary to the view expressed in the Pt IVA Position Paper, that the penalty applied to Development Finance should not be increased as a result of the application of Pt IVA. Mr Mulqueen took this to mean that the Panel had reached the view that Development Finance had a reasonably arguable position that Pt IVA should not apply. 62 On 10 October 2005 Mr Mulqueen sought from the Commissioner further amendments to assessments and adjustments to carry forward the tax loss and capital loss position of the BHP Group of companies. His purpose was to put the BHP Group and the Commissioner in the same position as if all relevant information had been known at the time assessments were issued so that all income, gains and losses were correctly calculated in each year. Some of those amendments involved the transfer of part of the DRI losses for the year ended 31 May 1999 to other BHP Group companies. 63 On 24 October 2005 the Commissioner sent a notice of decision on objection in relation to Development Finance's notice of objection dated 8 June 2005 together with a determination pursuant to Pt IVA. The objection decision recorded the Commissioner's concession that Development Finance had a reasonably arguable position that Pt IVA did not apply. It also confirmed that the Commissioner did not consider the alleged shortfall to have been caused by intentional disregard of the law or recklessness on the part of Development Finance. 64 On 7 December 2005 Mr Mulqueen sent a letter to Mr Duffus in relation to the request for transfer of losses from DRI to Development Finance dated 8 June 2005. He pointed out that it had been almost six months since that request had been made and the Commissioner had still not made a decision. He said that if the request for a loss transfer were to be allowed, Development Finance would not need to proceed with an appeal to the Federal Court in relation to the disallowance of its objection for the 1999 year. Expense and the use of court time could be avoided if Development Finance's request were granted. 65 Mr Duffus responded on or about 20 December 2005. In that letter he said a decision could not be made in relation to the request of 8 June 2005 as there was an objection outstanding in relation to Development Finance. Any decision in respect of the request concerning the loss transfers could not be dealt with until the objection was finalised on 24 October 2005. You are advised that it is not appropriate to make any decision on the exercise of the discretion to extend time to transfer a loss until after the 60 day period has elapsed for [Development Finance] to lodge an appeal. Once that period has elapsed we will consider your request, taking into account our views previously expressed in our letters of 1 December 2004, 12 May 2005 and 13 May 2005. Mr Mulqueen took Mr Duffus' response of 20 December 2005 to be a refusal by him to make a decision to allow a transfer of losses by DRI to Development Finance out of time. He requested reasons for that refusal on 23 December 2005. 66 On or about 6 January 2006 Mr Mulqueen received a response from Mr Duffus to his letter of 23 December 2005. Mr Duffus said then that he was still considering the request for the extension. On 13 January 2006 Mr Duffus confirmed by letter that the Commissioner had allowed an extension of time to transfer losses from DRI to Onesteel Trading Pty Ltd and J Murray-Moore (Holdings) Pty Ltd for the year ended 31 May 1999. 67 On or about 13 January 2006 Mr Mulqueen wrote to Mr McAlister requesting that a decision be made to allow a transfer of losses by DRI to Development Finance. He sent a further letter to Mr McAlister on or about 9 February 2006. On 14 February 2006 Mr Duffus wrote to Mr Mulqueen refusing the application for an extension of time to transfer a tax loss from DRI to Development Finance for the 1999 year. 68 On 9 March 2006 DRI and Development Finance filed an application in this Court for an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act) and for relief pursuant to s 39B of the Judiciary Act in relation to Mr Duffus' decision of 14 February 2006. Paragraph 83 of the Ruling referred to a two step process of identifying relevant factors having regard to the circumstances of the case and applied a weighting to each of those factors. extension of time requests arising from ATO adjustments. It was Mr Duffus' view that the application came under both categories. 70 Dealing first with the question of non-compliance caused by delay of the taxpayer, Mr Duffus said that [85] of the Ruling referred to cases where no agreement had been made prior to lodgment of the return. Paragraph 88 indicated that the favourable exercise of the discretion would generally require the taxpayer to provide an acceptable explanation of the delay. 71 Mr Duffus referred then to the argument made by DRI and Development Finance that the transfer agreement was not entered into at the appropriate time because it had not been established that the relevant losses existed at the time of lodgment of DRI's 1999 return. Subsection 73B(1) of the ITAA 1936 had been amended in September 2001 after the date of lodgment of the return. The taxpayers had also referred to review processes involving the Board which were incomplete at the time of lodgment of the 1999 return. DRI had lodged a request for amendment on 14 May 2002 and had been advised on 13 August 2002 that the adjustment was allowed in full. A notice of assessment was not required to issue to DRI as it remained non-taxable. Although the adjustment was allowed in full DRI had been asked to provide the ATO with information about the claim as part of a specific risk review. That was completed on 4 February 2004 and DRI had been advised that the issue was rated as a low risk matter. The taxpayers contend that no losses could be transferred with certainty until the ATO had completed its specific risk review. However, the ATO is of the view that this contention is not correct. Having been advised by the ATO of BHPDRI's adjusted loss position on 30 August 2002, the losses were available for transfer from this date. Nevertheless, BHPDRI chose not to immediately transfer the losses. The ATO has formed the view that there is no basis to the claim that the taxpayers needed to await the finalisation of the ATO specific risk review to transfer the losses. Furthermore, the taxpayers waited until 8 June 2005 before requesting the loss transfer. This was less than a month after the issue of the amended assessment for BHPDF. 72 Mr Duffus then turned to the effect of ATO adjustments on the timing of the request for an extension. He referred to the imposition of primary tax of approximately $32 million in the amended assessment for Development Finance. Because Development Finance's behaviour had been culpable additional tax of approximately $8 million was imposed, being 25% of the tax avoided. A GIC in excess of $19 million was also imposed in the amended assessment. After the issue of the amended assessment a determination was also made under s 177F of Pt IVA of the ITAA 1936 in relation to Development Finance. He referred to the advice of the Panel that Pt IVA would apply in the event that the Court decided that a deduction were allowable under s 25 - 35 or s 8- 1 of the ITAA 1997. Because the Panel recommended that Development Finance had a reasonably arguable position in relation to Pt IVA , a penalty of 25% was imposed and no further amendment was necessary because the rate of penalty was identical to that imposed in the amended assessment. 73 Referring then to [93] of Taxation Ruling TR 98/12, Mr Duffus observed that in cases where it cannot be said the conduct of the group is culpable in respect of its failure to comply with its obligations that would be a factor weighing in favour of an extension of time being granted. He referred to examples given in [93] of factors weighing heavily against a favourable exercise of the discretion. It is suggested in the ruling that these matters should be weighted heavily in considering whether to exercise the discretion. The heavy weighting reflects the need to penalise to a greater extent any taxpayers who are involved in these serious non-compliance activities. Such an adjustment could result in the imposition of penalties if the taxpayer were found to be culpable. He considered that the fact of audit activity in those circumstances should not be weighted as heavily as the cases of fraud, evasion or Pt IVA schemes. Given that an audit has been undertaken, the group's position on bad debts has been found to be unreasonably arguable and a penalty was imposed, it is appropriate to take this factor into account. It is therefore considered that a rating should be applied in relation to the culpable behaviour of [Development Finance] less than the high value ascribed in Taxation Ruling TR98/12 to, for example, tax avoidance. It is also contended that as Pt IVA has been applied in the alternative to [Development Finance], it is not a factor that the Commissioner can ignore or disregard. It must therefore be a factor to be taken into account and heavily weighted in considering whether to apply the discretion to extend time to lodge the agreement under s 170- 50 of the ITAA 1997. The question whether a taxpayer proceeded to litigate a claim for a deduction was regarded as a separate issue to the exercise of the discretion for the transfer of a loss. The respondents had a duty in exercising the power under s 170-50(2)(d) of the 1997 Act to act fairly and in accordance with reasonable public standards. 36. 37. (b) The first respondent made an error of law in concluding as he did that there was "nothing within the subject matter, scope and purpose of ... Subdivision 170 of the [1997 Act] that would imply any limitation upon the Commissioner to consider the conduct of a company group giving rise to an adjustment as being a relevant factor to the exercise of the discretion". (c) The first respondent made an error of law or fact in concluding that the applicants or any of them were involved in "serious non-compliance activities". (d) The first respondent made an error of law in concluding that in the circumstances of this case where Part IVA was not applied when the BHPDF amended assessment was made and when the second respondent has conceded that it is reasonably arguable that Part IVA did not apply to deny the deduction of all or any part of the claim for a bad debt deduction, that the making of a Part IVA determination weighed heavily against the applicants in the exercise of discretion. Both companies must be members of the same wholly-owned group. (2) Both companies must be members of the same wholly-owned group. There are other eligibility requirements that they must also satisfy. (3) The transferred loss must be "surplus" in the sense that the transferring company cannot use it because there is not enough assessable income to offset it. The other company must have enough assessable income to offset the transferred tax loss. (4) Neither company must be prevented from deducting the loss by Division 165 or 175. (5) The tax loss is transferred by an agreement between the 2 companies. (6) The tax loss can be transferred in the same year as it is incurred. In that case different rules apply. (2) The amount transferred can be the whole or part of the tax loss. (2) However, if the loss year is the same as the income year of the transfer, the income company is taken to have incurred the tax loss in the income year before the loss year. That income year is called the deduction year. Step 2 Subtract the income company's deductions for the deduction year, except deductions for amounts of tax losses transferred to the income company (by the loss company or any other company). Step 3 Subtract the income company's deductions for the deduction year for amounts of tax losses transferred to the income company (by the loss company or any other company) by agreements made before the agreement by which the first amount is transferred. As originally enacted, it contained no requirement for a written transfer agreement. The 1992 amendment to s 80G requiring an agreement, where previously a notice had been sufficient, did not alter the procedural character of the conditions for effective transfer of losses. The changes simply reflected the introduction of the self-assessment regime. 84 Internal directions or rulings by the Commissioner about the way in which tax laws should be applied by officers of the ATO have been a feature of the administration of the Australian tax system for a long time. However from 1 December 1982, following the introduction of Commonwealth Freedom of Information legislation, Taxation Rulings were publicly promulgated in a formal way. The development of a statutory basis for such rulings and the attachment to them of legal consequences binding on the Commissioner, followed the November 1987 Report of the Senate Standing Committee on Legal and Constitutional Affairs entitled "Income Taxation Rulings". The 1991 Budget papers issued by the Commonwealth Government included an Information Paper entitled "Improvements to Self-Assessment Priority Tasks (August 1991). That paper foreshadowed the introduction of the Taxation Rulings system which occurred in the following year: see Cooper, Deutsch and Krever, Income Taxation Commentary and Materials (2 nd ed, Law Book Co 1993) at 2-25 et ff. 85 A statutory provision for Taxation Rulings was introduced, as an incident of the self-assessment system by the SAA. The SAA enacted a new Pt IVAAA of the Taxation Administration Act 1953 (Cth) (TAA). It commenced to operate from 1 January 1992 and continued operating until the end of 2005 when it was repealed by the Tax Laws (Improvements to Self-Assessment) Act (No 2) 2005 (No 161 of 2005). By that amending Act PT IVAAA was replaced by Div 357 in Schedule 1 of the TAA. In the present case the relevant ruling was made under Pt IVAAA of the TAA which was the applicable Act governing taxation rulings at the material times. 86 It is important to observe from the outset that the rulings made under the Act were not statutory rules. They had statutory consequences binding the Commissioner in such a way that taxpayers who had relied upon a rule were not disadvantaged if the ruling turned out to be more favourable than the law which it purported to apply. 88 The term "arrangement" was defined broadly and non-exhaustively in s 14ZAAA to include scheme, plan, action, proposal, course of action, course of conduct, transaction, agreement, understanding, promise or undertaking and also included "part of an arrangement". The term "tax law" was defined to include "an income tax law". Sections 14ZAAI and 14ZAAJ provided respectively for the procedures for publication of a public ruling and the date upon which such rulings came into effect. The withdrawal and effect of withdrawals of public rulings were dealt with in s 14ZAAK and 147AAL. The legal effect of the application of a public ruling to a person, a class of persons or an arrangement or class of arrangement was not stated. 89 The legal consequences of taxation rulings relevant to income tax were to be found in ss 170BA to 170BI of the ITAA 1936. If under a public ruling the income tax law was applied in a way more favourable to a taxpayer than the law actually allowed, then the amount of tax in an assessment relevant to that purpose could not exceed what it would have been under the public ruling. It was said in [1] to outline the system of public rulings under the income tax and fringe benefits tax laws after the SAA became law. The ruling explained in [16] that "A public ruling is binding if it can be said to be favourable to a person". Accordingly, a taxpayer can, and we believe should, self assess in line with a favourable public ruling. If the Commissioner makes an assessment involving that matter, the law compels the Commissioner to act in accordance with the favourable public ruling. Its withdrawal followed the issue of Draft Taxation Ruling TR 2006/D6 which was described as outlining "the system of public rulings following the enactment of the Tax Laws Amendment (Improvements to Self-Assessment) Act (No 2) 2005 (Cth). It was said, in its Preamble, to be a "public ruling" in terms of Pt IVAAA of the TAA and legally binding on the Commissioner. 93 The Ruling comprised a Preamble, a paragraph describing its subject matter under the heading "What this Ruling is about" ([1]), two paragraphs under the heading "Date of effect" ([2] and [3]) and a paragraph relating to "Previous Rulings" ([4]). Paragraph 5 set out "Definitions". Paragraphs 6 to 20 inclusive appeared under the heading "Ruling". They were followed by [21] to [94] inclusive under the heading "Explanations". There then followed a heading "Examples" covering [95] to [101] inclusive. The last heading was "Detailed contents list". The Ruling parts of the document therefore appeared to be contained in [6] to [20] inclusive. Paragraphs 17 to 20 inclusive appeared under the subheading "Exercise of the discretion under subsection 80G(6A) (paragraph 170-50(2)(d))". Under the heading "Explanations" there was another section which dealt with the exercise of the discretion. This covered [81] through to [94] inclusive. In exercising the discretion under subsection 80G(6A) (paragraph 170-50(2)(d)), the Commissioner is guided by administrative law principles. These include an obligation to identify and consider all factors that may be relevant to the exercise of the discretion and to give them an appropriate weighting. In determining the relevant factors and their weighting, the Commissioner has regard to the policy of section 80G (Subdivision 170-A) and its context within the Act. Although each case must be decided on its merits, this Ruling provides a guide to taxpayers and ATO officers as to what factors may be relevant in the exercise of the discretion. 19. In cases where there has been delay on the part of the relevant companies in effecting an agreement, the principles outlined in Hunter Valley Developments Pty Ltd & Ors v Minister for Home Affairs and Environment ... (1984) 3 FCR 344 ... and subsequent supporting authorities in respect of statutory discretions to extend time, is relevant to the subsection 80G(6A) (paragraph 170-50(2)(d)) discretion. Following Hunter Valley Developments, the statutory time limit is not to be ignored and, prima facie, agreements must be made within time. Therefore, the onus is on the taxpayer to demonstrate to the Commissioner that the case is an appropriate one for the favourable exercise of the discretion. This generally requires the taxpayer to provide an adequate explanation for the delay. 20. In cases where an agreement is sought to be made out of time as a result of an adjustment to the tax position of the company group by the Commissioner, a relevant factor is the conduct giving rise to the adjustment. For example, where there is fraud or evasion, or a scheme to which Part IVA of the Act applies, this factor weighs heavily against a favourable exercise of the discretion. Conversely, where an adjustment stems from conduct which could not be regarded as culpable, this factor would be weighted in favour of the extension of time being granted. This is desirable in the interests of consistent, efficient administration and equity among taxpayers in similar circumstances. The exercise of the discretion under subsection 80G(6A) (paragraph 170-50(2)(d)) includes a two-step process of identifying relevant factors and applying a weighting to each of those factors, having regard to the circumstances of the case. Further, it is for the decision-maker to determine the appropriate weighting to be applied to these factors - see Minister for Aboriginal Affairs and Anor v Peko-Wallsend Ltd and Ors [1986] HCA 40 ; (1986) 162 CLR 24. 84. Applications for the exercise of the discretion usually fall into one of two broad categories. The first is where it can be said that there has been delay on the part of the taxpayer that results in non-compliance with the ... time limit. The second is where the request for an extension of time to make an agreement arises out of an adjustment to the tax position of the company group by the Commissioner. The following paragraphs outline the factors the Commissioner considers to be relevant to the exercise of the discretion ... in both categories, although they are by no means exhaustive. In these cases, the Commissioner considers that the principles outlined by Wilcox J in Hunter Valley Developments in respect of statutory discretions to extend time are relevant to the subsection 80G(6A) (paragraph 170-50(2)(d)) discretion, although the case was decided in the context of a different statutory provision. 87. The Commissioner also considers these general principles need to be balanced with a consideration of the underlying policy of section 80G (Subdivision 170-A) (to broadly align the treatment of company groups with divisional companies) and the wider consideration of the proper administration of the Act. 88. In Hunter Valley Developments, Wilcox J stated that statutory time limits are not to be ignored and the onus is on the applicant to convince the decision-maker that the case is an appropriate one for a favourable exercise of the discretion. This would generally require the taxpayer to provide an acceptable explanation of the delay. 89. The length of the delay in making an agreement after the prescribed time is relevant to the exercise of the discretion. Generally, the longer the delay, the greater the onus is upon the applicant to demonstrate an acceptable explanation for the delay (see Stergis and Ors v Boucher and Anor (1989) 86 ALR 174; ... Also, it should not be assumed that the Commissioner will automatically exercise this discretion in circumstances where the request is lodged within the objection period relating to assessments. 90. The Commissioner will weigh the explanation of delay with the other relevant factors referred to in Hunter Valley Developments (for example, public interest considerations and the question of prejudice to either party arising from the exercise or non-exercise of the discretion). In this category, there is generally compliance with the requirement to enter into loss transfer agreements within the time stipulated in subsection 80G(6A) (paragraph 170-50(2)(d)). However, as a result of an adjustment to the taxation position of the group by the Commissioner, there is a request for an extension of time to enter into a further agreement or further agreements. 92. In Bond Corporation Holdings Ltd and Ors v Australian Broadcasting Tribunal (1988) 84 ALR 669, Gummow J stated the range of factors that can be considered in the exercise of an unfettered discretion (such as that contained in subsection 80G(6A) (paragraph 170-50(2)(d)) is unconfined, subject to any implied limitation within the relevant legislation. It is considered there is nothing within the subject matter, scope and purpose of section 80G (Subdivision 170-A) (or the rest of the taxation legislation) that would imply any limitation upon the Commissioner to consider the conduct of a company group giving rise to an adjustment as being a relevant factor to the exercise of the discretion. 93. Accordingly, where an adjustment is made, for example, as a result of fraud or evasion, or a scheme to which Part IVA applies, then this factor generally weighs heavily against a favourable exercise of the discretion. In a sense, it could be said in these circumstances the delay is directly attributable to the actions of the taxpayer. Conversely, in cases where it cannot be said the conduct of the group is culpable in respect of its failure to comply with its obligations under the law, this is a factor which weighs in favour of an extension of time being granted (eg, where a company was unclear as to the appropriate tax treatment for bill discounts prior to the High Court decision in Coles Myer Finance Ltd v FC of T [1993] HCA 29 ; (1993) 176 CLR 640). They were not given statutory force by the legislation. However certain legal consequences attached to them. Those could be found in ss 170BA to 170BI (inclusive) of the ITAA 1936. If, under a public ruling, the income tax law were applied in a way more favourable to the taxpayer than under the law properly construed, the amount of final tax, in an assessment in relation to that person, could not exceed what it would have been under the ruling. These provisions were repealed at the same time as Pt IVAAA of the TAA by No 161 of 2005. 99 In each of the three categories of ruling defined by s 14ZAAE to s 14ZAAG the subject matter was "... the way in which, in the Commissioner's opinion, a tax law or laws would apply ..." to persons and arrangements or classes of persons and arrangements. The logic of that language confined the subject matter of the rulings which it authorised to "the Commissioner's opinion" on the way in which the law would apply. A ruling about the Commissioner's opinion in that context was a statement about how the Commissioner would apply the law. It was not the law. The power to make rulings did not authorise the application of the tax law in a way that was inconsistent with the law properly construed. It could neither narrow nor extend its application. 100 Section 14ZAAD of the TAA stated that a public ruling on the way in which a tax law applied could be a ruling on the way in which a discretion of the Commissioner under that law would be exercised. It did not thereby create a class of ruling outside those defined in ss 14ZAAE to 14ZAAG. Rather it indicated that a ruling about the exercise of statutory discretions could be made under one or other of those three sections. It would still, in that event, be a ruling "on the way in which, in the Commissioner's opinion, ..." a discretion of the Commissioner under the relevant tax law would be exercised. The logical fit of s 14ZAAD rulings in the categories of rulings defined by ss 14ZAAE to 14ZAAG was not perfect. It was evidently designed to allow the Commissioner to promulgate, under the public rulings system, administrative policies about the exercise of statutory discretions. Such "rulings" did not differ in their legal character from administrative policies guiding the exercise of discretions published outside the framework of the public ruling system. In particular no such policy, whether ruling or not, could lawfully narrow the Commissioner's discretion. On general principles of administrative law the Commissioner would be entitled to apply a ruling so made as a general policy provided that each case were considered on its merits. To apply an administrative policy, ruling or not, on the basis that it must be applied in every case regardless of the particular circumstances of the case would involve anerror of law. The administrative law principles governing the application of administrative policy to the exercise of statutory discretions was recognised by the Commissioner in [82] of Taxation Ruling TR 98/12. 101 There were of course legal consequences which attached to a public ruling relating to a discretion where it could be said to be "favourable" to the taxpayer for the purposes of s 170BA. Just how such a circumstance would arise in relation to a public ruling about the way in which a discretion would be exercised is not apparent and did not arise in the present case. 102 Part IVAAA was considered by the Full Court in Bellinz v Commissioner of Taxation (1998) 84 FCR 154. ... the issue of a public ruling is to be made in accordance with the Act as interpreted by the Commissioner and not in accordance with some practice which the Commissioner may have adopted, to the extent that that is inconsistent with the Assessment Act. What is to be ruled upon is the way in which, inter alia, the Act under which the extent of a liability for income tax of the appellants is to be worked out would apply. 2. A public ruling which is inconsistent with a prior public ruling may be made if the Commissioner decides that the law is otherwise than as stated in the initial public ruling. However the new ruling will not operate retrospectively in respect of arrangements commenced or brought into operation prior to the earlier ruling. 3. A public ruling which is inconsistent with a prior private ruling may be made if the Commissioner determines that the initial private ruling was wrong. The binding quality which the legislation gives to a public ruling applies to the tax consequences of the arrangement or class of arrangements to which the ruling relates, and not, ..., to the underlying philosophy behind the ruling. No question arises as to whether it is or is not relied upon. Rather, it reflects a commitment on the part of the Commissioner to a particular approach to the law in those cases to which it applies. That commitment will necessarily be qualified by the extent to which the ruling itself embodies qualifications and conditions in its own terms. 103 Where the Parliament has conferred wide discretions on an official decision-maker, particularly in relation to high volume decision-making, it is entirely consistent with the legislative intention in conferring such a discretion that its exercise will be guided by administrative policies. Indeed it may be inferred that the creation of such policies is contemplated by the legislature when it confers such discretions. The imputed legislative contemplation of such policies for that purpose must be limited to those which are consistent with the general purposes and requirements, express or implied, of the legislation in question. They cannot be expressed to fetter the exercise of the relevant discretion. The public rulings issued by the Commissioner are expressly provided for by the TAA. They can have legal consequences in favour of the taxpayer. A failure by the Commissioner to have regard to a public ruling relating to the exercise of a discretion under the tax law could vitiate the decision made in the exercise of that discretion. Whether it would or not, would depend upon the circumstances and the factors properly considered by the decision-maker. That is not to say that the Commissioner is bound to apply any ruling which he has issued. The Act does not say so and there is no principle of estoppel in the exercise of his functions which would prevent him from doing so. Questions of procedural fairness may require the taxpayer to be heard against an unexpected departure from policy with consequences unfavourable to the taxpayer and against which there is no statutory protection. 104 The word "ruling" has an obvious capacity to mislead. It is capable of conveying the impression that rulings published by the Commissioner have legal force. Insofar as it relates to the interpretation of the law, a ruling has no greater status than an administrative opinion. In so far as it relates to the way in which a discretion conferred by law would be exercised, it has no greater status than an administrative policy. There is a risk of an unwarranted elevation of rulings, by virtue of their terminology to a kind of "de facto law". This risk has been discussed in a helpful review of the subject generally in Scolaro D, Tax Rulings: Opinion or Law? The need for an Independent 'Rule-Maker' (2006) 16 Revenue Law Journal 109. The footnotes in that article also make reference to a number of other papers on the topic. 105 Importantly the Taxation Ruling in issue in this case, so far as it related to the exercise of the Commissioner's discretion to extend the time for making an agreement to transfer losses, stated that the Commissioner was "guided by administrative law principles". It identified two particular factors of significance. The first was the explanation for the taxpayer's delay. The second was the culpability of the taxpayer in relation to any adjustment to the tax position of the company group which gave rise to an application to make an agreement out of time. 106 The "Explanations" part of Taxation Ruling TR 98/12 did not, in terms, form part of the substantive ruling which, in relation to extensions of time was confined to [18] to [20] inclusive. Paragraph 82 and the succeeding paragraphs were of an expository character. They included justifications for the approach taken. So the provision of a general guide for taxpayers and ATO officers when considering the exercise of the discretion was justified in [82] as "... desirable in the interests of consistent, efficient administration and equity among taxpayers in similar circumstances". To give an assurance to defendants that after a given period of time any possible claim against them arising out of a particular incident is at an end, that is, to operate as an "act of peace": see The Laws of Australia (Lawbook Co, subscription service) 5 at [5.10.120] and also Halsbury's Laws of Australia (Butterworths, subscription service) Vol 16, at [255.5]. Such limits are typically expressed in terms of weeks rather than years as is the case with Limitations Acts. They are imposed in part to ensure public administration is expeditious and that decisions once made take effect unless promptly challenged. 108 There are also innumerable examples of time limits imposed by statute upon subjects and decision-makers for taking steps necessary to secure rights or privileges or to exercise powers or impose liabilities. Self evidently they have the common purpose of securing expedition in statutory processes. They may also serve purposes related to the subject matter of the relevant statute. 109 Where the law imposes time limits, whether they bar or extinguish causes of action or rights to seek review or whether they require applications to administrative decision-makers or steps taken by such decision-makers to be done within a particular time, excessive rigidity in their application can lead to absurdity and injustice. There are many examples of statutory discretions to extend time to avoid such mischief. 110 Where Limitations Acts and access to judicial review are concerned it will be for courts to decide upon extensions of time. Limitation periods which are procedural in character may be waived by a defendant declining to plead them in defence. In other cases administrative decision-makers are given discretions to extend time for taking some step required by statute to be taken. Such is the present case. 111 A statutory discretion to extend time, unconfined by any explicit conditions or factors to be considered, is necessarily to be exercised within boundaries created by the subject matter, scope and purpose of the statute and of the particular provision of which the discretion is conferred. While there may be generic considerations relevant to different kinds of time limits and associated discretions, it is necessary in any particular case to focus upon the particular subject matter, scope and purpose of the statutory time limit and the discretion in question. 112 The principles enunciated by Wilcox J in Hunter Valley Developments Pty Ltd 3 FCR 344 were said by the Commissioner in Taxation Ruling TR 98/12 to be relevant to the exercise of the statutory discretion under subs 80G(6A) of the ITAA 1936. The Ruling also stated that these general principles need to be balanced with a consideration of the underlying policy of s 80G which was identified as broadly aligning the treatment of company groups with divisional companies. 113 Hunter Valley Developments Pty Ltd 3 FCR 344 concerned the circumstances in which an extension of time would be allowed for bringing an application for an order of review of an administrative decision under s 11 of the ADJR Act. Wilcox J outlined a number of positions emerging from the authorities which he suggested could guide, albeit not in any exhaustive manner, the exercise of the Court's discretion. 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 28 days is not to be ignored. Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a precondition to the exercise of discretion in his favour that the applicant for extension show "an acceptable explanation of the delay" and that it is "fair and equitable in the circumstances" to extend time. 2. Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights") and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only "... for finality in disputes" but also the "fading from memory" problem. 3. Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension. 4. The mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. 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. 5. The merits of the substantial application are properly to be taken into account in considering whether an extension of time can be granted. 6. Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the Court's discretion. That kind of discretion differs in purpose and character from the discretion presently under review. As Hill J observed in Brown v Federal Commissioner of Taxation (1999) 42 ATR 118, Wilcox J did not say that he was laying down principles of universal application or even covering all applications to commence proceedings for judicial review outside the time prescribed by the ADJR Act. Brown 42 ATR 118 was a case in which a taxpayer had sought from the Commissioner an extension of time for filing an objection against an income tax assessment. An objection to an assessment was quite different from an application for judicial review which would proceed on quite limited grounds. If the disallowance of the objection is reviewed by the tribunal and a decision adverse to the taxpayer is arrived at there is the possibility of an application to this court by way of an appeal on a question of law. While the explanation for delay in lodging an objection would be an important factor, the decision-maker was required to take into account all the circumstances of the particular case against the background that parliament had enacted a procedure to permit extensions of time being granted. Extensions should be granted where the justice of the case required. They should not be reserved for exceptional cases. In this balancing process the Commissioner or the Tribunal on a review will be guided by what the justice of the case requires. The balancing process should be approached on the basis that while Parliament has stipulated a time in which objections are required to be lodged it has entrusted to the Commissioner a power to extend that time in appropriate circumstances. The decision maker should not lose sight of the fact that s 14ZW is an ameliorating provision designed to avoid injustice. The Court agreed with the observations to that effect made by Hill J in Brown 42 ATR 118 (at 376). 118 The discretion of the Commissioner to extend time for making an agreement to transfer losses from one company within a group to another under s 170-50 of the ITAA 1997 is to be exercised having regard to the purposes of the transfer provision, the time limit which it imposes and the purposes for which that time limit may properly be extended. Section 80G is intended to be beneficial to the taxpayer: Harts Australia Ltd v Commissioner of Taxation (Cth) [2001] FCA 761 ; (2001) 109 FCR 405 at [18] . There is not, however, a complete equation with the single company. Conditions apply to the transfer of losses, one of which is that the agreement must be made before the date of lodgment of the return of income or the income company, or later as the Commissioner allows. The legislative history of s 80G, and in particular the content of the Asprey Committee Report and the Campbell Committee Report , reveals that a choice was made by Parliament not to adopt the group assessment procedure which might be seen as a complete equation of subsidiaries with divisions. That is not to deny, however, that a broad, otherwise expressly unconfined discretion, is reposed in the Commissioner in s 80G(6A)(b). Naturally, the discretion is to be confined by reference to the subject matter, scope and purposes of the provisions and the ITAA as a whole. It falls into the general class of time limit imposed on steps under administrative processes, for that purpose. That is not to understate its significance and the importance of adherence to it. If the time limit were to be too readily extended, it could become ineffectual and defeat the statutory purpose. It is nevertheless secondary or ancillary to the principal purpose of the section. It is a tool of good administration and should not be allowed to defeat the overall policy of permitting intra-group transfer of losses. 121 It is convenient to put to one side, for the moment, the six considerations referred to by Wilcox J in Hunter Valley Developments Pty Ltd 3 FCR 344. They were relied upon to a degree in Taxation Ruling TR 98/12 and to a significant extent by counsel for the applicants in these proceedings. However, given the present statutory context, they are capable of distracting from the need to focus upon the provisions which are before the Court. There was an emphasis, in the submissions put on behalf of the applicants, on the Hunter Valley Developments Pty Ltd 3 FCR 344 principles as though they were mandatory relevant considerations. 122 The discretion to extend time to make a transfer agreement under s 170-50 is conferred to ensure that the policy objective of the section is not defeated by inappropriate application of the time limit. Reference to the avoidance of absurdity or injustice may describe a broad normative criterion for the application of the discretion. There is a risk, however, that such terms invite visceral judgments. A more principled approach will have regard to factors relevant to the statutory purposes to which the transfer provision and the time limit are directed. If the delay is short that would be a factor which, depending upon its explanation, will weigh against any adverse impact on good administration. (ii) The explanation for the delay. If a delay has occurred by reason of error or inadvertence on the part of the taxpayer rather than an unwarranted assumption that time would be extended, that may be a factor weighing in favour of the exercise of the discretion to extend time. The Commissioner would, at the same time, be entitled to take the view that corporate taxpayers should have in place systems to ensure that error and inadvertence do not occur and that, absent such systems, error or inadvertence may not warrant the grant of the extension sought. (iii) The delay being the product of an understanding or arrangement with the Commissioner to defer making the transfer agreement until the tax position of the relevant companies for the income year in question has crystallised. While such understandings or arrangements would not give rise to an "administrative estoppel" it would be a mandatory relevant consideration to ensure that the primary purpose of the loss transfers facility is not defeated by the Commissioner's own actions. (iv) Related to the above, whether the group has kept the Commissioner informed of its intention to seek to effect a transfer of losses upon crystallisation of the tax position of relevant companies in the group. (v) As was set out in [20] of Taxation Ruling TR 98/12, where an agreement is made out of time as the result of an adjustment to the tax position of the company group by the Commissioner, that may be a factor weighing in favour of the exercise of the discretion. However where the adjustment and the consequential delay is the result of fraud or evasion on the part of a company in the group, then that is a factor which would weigh against the exercise of the discretion. The refusal to extend time in such a case would be based on the entirely legitimate consideration that time should not readily be extended for a delay flowing from an unsuccessful attempt to defeat the broader policy objectives of the ITAA 1997. (vi) Whether the delay would have any adverse impact on the administration of the Act if the extension of time were allowed. He pointed out that the terms of the Ruling displayed a recognition of the need to make each decision on its merits, a recognition of the purpose and policy of s 80G and a recognition of the important object of the ITAA found in PT IVA. To posit such a policy does not negate the evident beneficial purpose of s 80G, it merely sets up an available countervailing factor of weight, drawn from another important part of the ITAA. To do so does not subvert s 80G, nor does it preclude the decision-maker from taking into account any factor required by the legislation, nor does it require the decision-maker to take into account any factor required by the legislation not to be taken into account, nor does it preclude the decision-maker dealing with any decision on the merits. There is no additional or collateral penalty. If the discretion is not exercised and fresh losses are not transferred, there will, or may be, a penalty applicable by the operation of s 226 upon the amount of tax calculated as assessable or that tax less the "claimed tax" within the meaning of s 226(1). If the discretion is exercised so as to create the same position in the Income Companies as had previously subsisted before the application of Pt IVA, no penalty under s 266 arises. It is not a matter of collaterally increasing a penalty by refusing to extend time, but of removing the consequences by way of penalty for participation in a Pt IVA Scheme by extending time. 125 In any case in which a discretion to extend time is involved the decision-maker must be satisfied that there is a proper basis for it. But there is no basis in the statute for suggesting that the Commissioner should regard the extension of time for an agreement to transfer losses as exceptional. The time limit is a procedural protection of the administrative process. There is no windfall to a taxpayer who is given an extension. The taxpayer is given no more than what would have been its due had the agreement been made within time. The approach undertaken by Hill J in Brown 42 ATR 118 to extensions of time for the lodgment of objections applies also, if not with greater force, to the discretion to extend time to make agreements to transfer losses. This proposition was not reflected explicitly in Taxation Ruling TR 98/12. Indeed the reliance placed in the ruling upon Hunter Valley Developments Pty Ltd 3 FCR 344 was somewhat at odds with that approach. That is not to say that the policy is therefore unlawful. It did not treat the Hunter Valley Developments Pty Ltd 3 FCR 344 principles as exhaustive or determinative. The focus therefore must not be so much upon the content of the policy but the way in which it was applied and the discretion exercised in this case. The respondents admitted in their defence a duty to act fairly and reasonably. They submitted in argument that they did so act. 127 DRI and Development Finance did not allege any breach of a free standing statutory duty to act fairly and in accordance with reasonable public standards. The source and content of that duty was not described. No statement of such a duty is to be found in the relevant part of the statute. There was no allegation in the grounds of a breach by the respondents of procedural fairness. In the allegation in [36(e)] that the first respondent's exercise of the power resulted in unfairness amounting to an abuse of power. This allegation was also relied upon as a particular of the claim that the first respondent's exercise of the power was so unreasonable that no reasonable person could have so exercised it. No direct breach of such a duty is alleged. It is questionable whether any such "duty" is to be implied into the discretion. The discretion involves the exercise of a statutory power. Its limits are defined, inter alia, by the purposes for which it can be exercised, factors which may be relevant or irrelevant to its exercise and the way in which such a decision should be made including requirements of procedural fairness. There is probably a duty to decide whether to exercise the discretion which may be enforced by mandamus if the Commissioner or his delegate simply failed to respond to a request for an extension of time. Given the way in which the balance of the application was framed, the existence of the duty alleged in [35] and whether it was breached does not fall for decision. The written submissions began with a survey of the facts: [1] to [12]. This was followed by an outline of the legislation: [13] to [17]. The point was there made that the origin of the requirement to enter into an agreement to transfer losses was procedural only. The change made to s 80G in 1992 did not convert the procedural requirement into something more substantive. The change from giving a notice to making an agreement reflected the introduction of the self-assessment regime and no more. Then it was said that the 1936 and 1997 Acts drew a distinction between procedural steps which the Commissioner or a taxpayer must undertake and the rules which affect substantive liability to tax. The rules in s 170-50 which affect substantive liability to tax include statutory conditions for a valid transfer which were said to achieve the result of broadly aligning "the treatment of company groups with divisional companies". 130 The applicants' submissions addressed the principles to be applied by the Commissioner in exercising the power: [18] to [19]. Reference was made to the governing parameters of the "subject matter, scope and purpose of the statute" and to the decision of Wilcox J in Hunter Valley Developments Pty Ltd 3 FCR 344 as a convenient starting point in considering the principles to be applied. It was accepted that the six principles set out in that decision were not exhaustive and might require modification because of the differences between the powers involved in that case and the present case. any of the matters particularised at para 36(a) of the application --- this latter was a reference to the 29 particulars set out in that ground. Nevertheless BHPBDRI chose not to immediately transfer the losses". This was said to demonstrate a misunderstanding of the decision to be made. It was submitted that the relevant discretion is not a discretion to grant further time for DRI in which DRI might unilaterally decide to transfer losses. Instead it was a discretion to grant further time in which an agreement between a loss company and an income company could be entered into. The earliest time such a loss transfer agreement could have been made was the time at which the Commissioner had specified, by way of amended assessment, the amount by which the income of Development Finance was to be increased. It was not until 13 May 2005 that the Commissioner issued the amended assessment which increased the taxable income of Development Finance by $89,848,367. Reference was also made to the letter from Mr Killaly of 30 November 2004 indicating that any request for further time to enter into an agreement at that stage was a hypothetical exercise. 133 In [28] the submission considered what it called "errors of the decision-maker by reference first to the six general principles referred to by Wilcox J in Hunter Valley ". In [29] to [30] it dealt with the subject of delay and in [31] to [39] the imposition of GIC and the alleged culpable behaviour of Development Finance. Paragraphs 40 to 46 dealt with the Asiamet [2004] FCAFC 73 ; 137 FCR 146 decision. Paragraph 47 asserted under the heading "No limitation" that the Commissioner erred in stating that there was nothing in the subject matter, scope and purpose of s 80G which would imply any limitation upon his ability to consider the conduct of a company group giving rise to an adjustment as being a relevant factor to the exercise of the discretion. The final heading "Additional or collateral penalty" complained that the Commissioner erred in treating the refusal of the discretion as reflecting a need to penalise to a greater extent taxpayers involved in serious non-compliance activities. 134 For future reference the point should be made that where an application for judicial review sets out, as is required, grounds of review submissions made in support of the application should expressly and clearly address those grounds. Submissions should make clear which grounds are relied upon and which are not. Failure to take into account relevant considerations to the extent they could be identified as mandatory. 2. Factual error giving rise to irrelevant considerations. 3. Misconstruction of the policy affecting the scope of the discretion and, in particular, the introduction of an impermissible penal purpose in the rejection of the application for an extension. I do not propose to go to each ground in detail beyond what I see as the principal points emerging from the case for DRI and Development Finance. (b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. (c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. (d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. In the absence of any statutory indication of the weight to be given to various considerations it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. These included various aspects of the factual history which has already been outlined. It is not necessary for present purposes to address each of those matters. This was not done in the submissions. Many of them, as elements of the factual history could not conceivably be mandatory relevant considerations. Rather it is helpful to focus upon those matters, which having regard to the nature of the discretion, could be said to be mandatory relevant factors. 138 Earlier in these reasons a number of matters relevant to the discretion to extend time under s 170-50(2)(d) were set out. Some of them overlapped with those set out by Wilcox J in Hunter Valley Developments Pty Ltd 3 FCR 344. They were however formulated by reference to the scope and purpose of Subdiv 170-A and s 170-50 of the ITAA 1997. While many aspects of the history of dealings between the Commissioner, his officers and DRI and Development Finance could not be said to be mandatory relevant considerations, there were features of that history overall that went to matters at the heart of the statutory purpose. Although the reasons for his decision given by Mr Duffus in his letter of 14 February 2006 made reference to Taxation Ruling TR 98/12 they disclosed no consideration of the general purpose of Subdiv 170-A. There was no reference to the effect on the statutory purpose, in this case, of the requested extension of time. There was no reference to any adverse impact upon DRI and Development Finance of the inability to transfer losses or of any prejudice to the position of the Commissioner for the good administration of the Act were the extension of time to be allowed. A failure to have regard to those general issues may have resulted in a failure to give express consideration to certain of the factual matters referred to in [36] of the application. There was no evidence in the reasons for decision of any balancing of competing considerations having regard to those purposes. 139 It was also a relevant factor, apparently not taken into account by Mr Duffus, that the Commissioner was well aware of the intention of DRI to transfer tax losses to Development Finance when its position had crystallised. That crystallisation took a long time because of the extended audit of the tax position of Development Finance. The letter of 1 December 2004 from Mr Killaly to Mr Clough of Mallesons was to similar effect. 140 This matter is specifically referred to as a mandatory relevant consideration not taken into account in [36(a)(xxvi)]. Importantly, no consideration appears to have been given to the fact that the Commissioner was well aware well in advance of the request that the BHPGroup proposed to request a transfer of tax losses in the relevant years. A finding that the factor of delay should be "taken into account but should not be weighted heavily against the favourable exercise of the discretion" indicates a narrowly based approach to the question of the delay. Had the relevant statutory purposes and the factors of prejudice on both sides together with the ongoing advice of the intention to effect loss transfers been taken into account, then this factor might well have been treated as neutral and not weighed against DRI and Development Finance at all. 141 In this respect there was, in my opinion, a failure to take into account mandatory relevant considerations and therefore an improper exercise of the power. There was an unrelated, irrelevant consideration said to arise from his finding that DRI and Development Finance were not correct in contending that no losses could be transferred with certainty until the Commissioner had completed his audit of the R & D claims of DRI and his finding that there was no basis to the contention that the applicants needed to await the finalisation of that audit to transfer the losses. 143 The core of the argument actually presented by DRI and Development Finance in relation to Mr Duffus' consideration of the "culpable" behaviour of Development Finance focussed on his approach to the way in which evidence of tax avoidance should be weighted in the exercise of the discretion to extend time to transfer losses. The examples listed are where an adjustment is made as a result of fraud or evasion or a scheme to which Part IVA applies. It is suggested in the ruling that these matters should be weighted heavily in considering whether to exercise the discretion. The heavy weighting reflects the need to penalise to a greater extent any taxpayers who are involved in these serious non-compliance activities. Such an approach is not sanctioned by the decision of the Full Court in Asiamet [2004] FCAFC 73 ; 137 FCR 146. In that case Allsop J accepted that it was permissible to disallow an extension of time on the basis of the application of Pt IVA and that to do so was not to increase any penalty on the taxpayer beyond that contemplated by the ITAA. The fact that a penalty would be applicable, absent the transfer of losses, does not mean that a refusal to extend time involved collaterally increasing a penalty. That is a very different matter from applying a "heavy weighting" to culpable conduct in order to "penalise to a greater extent any taxpayers who are involved in these serious non-compliance activities". That does involve, in my opinion, a consideration which is irrelevant to the statutory purposes. It is not to be found in Taxation Ruling TR 98/12. It appears to be based upon a misreading of that Ruling. 144 It is necessary, of course, in reviewing reasons for administrative decisions not to scrutinise them with an eye keenly attuned to error nor to engage in close semantic analysis. It is not for the Court through judicial review to impose the requirements which would "judicialise" the process of administrative decision-making. The passage cited, however, is unequivocal in its import and in the error which it reflects. It is difficult to assess the impact which it may have had on the weight given by the decision-maker to the alleged culpable conduct and the extent to which he had put to one side other aspects of the history to which reference was made earlier. In my opinion reviewable error is disclosed under this head. I am not prepared to make such a finding. However, to the extent that consideration of a need to penalise "to a greater extent" taxpayers involved in serious non-compliance activities is an irrelevant consideration it also reflects a purpose other than a purpose for which the power was conferred. While I am satisfied that the focus of his reasons was unduly narrow, Taxation Ruling TR 98/12 itself expressly makes clear that it is not exhaustive of all relevant factors and that each case must be decided on its own merits. The narrow focus of his consideration does not reflect any confining application of Taxation Ruling TR 98/12 because that Ruling itself eschews such an application. The ground is not made out. That is a finding to be made in extremis. The reasons do not warrant such a finding. There was, in my opinion, an error of law made in that respect which has already been identified. The statutory relief available under the ADJR Act is sufficient. The decision of the first respondent made 14 February 2006 refusing an extension of time under s 170-50(2)(d) of the ITAA 1997 to enter into an agreement for transfer of tax losses in the sum of $89,848,367 from the first named applicant to the second named applicant in respect of the income year ended 31 May 1999 be quashed. 2. The application for an extension of time to enter into the agreement for the transfer of the tax losses be remitted to the first respondent to determine according to law. 3. The second respondent is to pay the applicants' costs of the application.

income tax corporate groups transfer of losses statutory requirement for written agreement to transfer losses time limit for making agreement discretion in commissioner of taxation to extend time statutory purposes factors relevant to exercise of discretion public taxation ruling legal character administrative policy refusal of extension of time whether exercise of discretion miscarried failure to consider mandatory relevant factors adverse impact on corporate group prejudice to commissioner history of matters relevant to delay prior advice to commissioner of intention to seek transfer transfer hypothetical pending crystallisation of tax position tax avoidance activity by group member express use of discretion to penalise taxpayer irrelevant consideration discretion miscarried decision set aside administrative law statutory discretion administrative policies taxation rulings legal character as administrative policies legal consequences protective of taxpayer character of ruling as administrative policy unaffected taxation

In 1990 he was convicted of driving with a 'high range PCA', fined $800 and disqualified from driving for 12 months. In 1993 he applied to become a migration agent under the Migration Act 1958 (Cth) ('the Act') falsely stating in his application that he had never had a conviction. His application was granted in April 1994 and he has practiced as a migration agent ever since. 2 In September 1994, Mr Seymour consented to an injunction by the Supreme Court restraining him from acting or purporting to act as a solicitor. In 1997 he was acquitted of a charge of contempt of that injunction. The acquittal was upheld by the Court of Appeal in 1999. But in 2000, Mr Seymour acted as a solicitor in a conveyancing transaction. He was again charged in the Supreme Court with contempt of the injunction. He pleaded guilty on 31 May 2004. In his plea, Mr Seymour also gave evidence to Buddin J that he had never had a conviction. Buddin J convicted him and imposed a suspended sentence of 9 months imprisonment. 3 In the meantime on 1 May 2004 he had made his annual application for renewal of his registration as a migration agent in which he stated, relevantly, that he had not been found guilty of a criminal offence and that he was not currently the subject of any criminal proceedings. He did not inform the Migration Agents Registration Authority of his conviction by Buddin J after that had occurred. The Authority refused to reregister Mr Seymour. The Administrative Appeals Tribunal came to the same conclusion. It found that Mr Seymour's contempt was a criminal offence and he had been obliged to disclose to the authority, first, in his 2004 application the then pending charge and, later, his conviction. The tribunal decided that Mr Seymour was not a fit and proper person to be registered as a migration agent. (b) Did the tribunal have power, after it held that the original decision maker acted without power, to review, on the merits, and to exercise the original decision maker's power to refuse to renew Mr Seymour's registration as a migration agent? The circumstances in which that issue fell to be determined were as follows. 6 On 14 April 1982 Mr Seymour had been struck off the rolls as a solicitor of the Supreme Court of New South Wales after he had been found guilty of professional misconduct. 7 On 1 November 1990 Mr Seymour had been convicted of driving with more than the prescribed concentration of alcohol, the offence being known as a ' high range PCA ' and was fined $800 and disqualified from driving for 12 months. 8 On 8 February 1993 Mr Seymour applied to the Migration Agents Registration Board ('the Board') for registration as a migration agent under the Act. That application was granted after the Board, without disclosure by Mr Seymour, became aware through its enquiries of the high range PCA offence. As part of his application, Mr Seymour had consented to the Board obtaining information from the Australian Federal Police, both from its own records and any other police force or other authority, of any criminal charge involving him or pending before any court together with details of any conviction or finding of guilt which may have been recorded against his name. The information about Mr Seymour's high range PCA offence and possible bankruptcy was received by the Board on or about 16 March 1993. 9 On 18 March 1994, Mr Seymour attended a meeting with five members of the Board in Canberra which lasted for approximately 31/2 hours during the course of which no reference was made to the Board's information that he had been convicted of the high range PCA offence, notwithstanding that in his application he had falsely said that he had not been the subject of a conviction or finding of guilt or a pecuniary penalty before a court that was not spent. 10 On 15 April 1994 Mr Seymour was registered, and thereafter continued to remain registered and to practice as a migration agent. 11 On 5 September 1994 Mr Seymour agreed to orders being made by to the Supreme Court of New South Wales that he would not in future act or purport to act as a solicitor. The reasons for and the circumstances surrounding the giving of those orders were not before the Tribunal. [Mr Seymour] be restrained, from acting, or purporting to act, as a solicitor. The following statements relate to section 290 of the Migration Act 1958 . There has not been a finding of guilt against me for a criminal offence that has not previously been declared to the Migration Agents Registration Authority. I am not currently the subject of any criminal proceedings. 14 On 3 June 2004 Buddin J, in the Supreme Court of New South Wales found Mr Seymour to be guilty of contempt pursuant to a statement of charge filed in accordance with Pt 55 r 7 of the Supreme Court Rules (NSW), on a plea of guilty. The basis of the finding of guilt of contempt was that Mr Seymour had breached the order set out above made by that court in 1994. His Honour sentenced Mr Seymour to a term of imprisonment of 9 months, the execution of which was suspended upon condition that he entered into a good behaviour bond for the period of 9 months. His Honour ordered Mr Seymour to pay the costs of the proceedings before him. It will be necessary to return to the details of that matter below. 15 On 14 February 2005 the Authority refused Mr Seymour's application for re-registration. 16 On 17 February 2005 Mr Seymour brought an application for review of that decision in the tribunal. The application asserted that the Authority had wrongly decided that Mr Seymour was not a fit and proper person pursuant to s 290 of the Act in refusing to re-register him as a migration agent and that in doing so he had been denied procedural fairness and natural justice. 17 In the proceedings before the tribunal, Exhibit R3 was a statement by an officer of the Authority, which noted that when Mr Seymour was advised by letter dated 30 September 2003 that his application for re-registration had been successful and reminded him of his obligations to inform the Authority in writing of any events prescribed in s 312(1) of the Act as soon as reasonably possible. The statement went on to assert that the records of the Authority had been examined including for the period prior to 30 September 2003 and that they did not contain any written advice from Mr Seymour to the Authority of any proceedings having been brought against him by the Law Society of New South Wales or of the decision by the Supreme Court of New South Wales, namely that of Buddin J which had been the basis of the Authority's refusal of his application for re-registration. 18 On 27 January 2006 the tribunal ordered that the decision under review be set aside, because it was a nullity since the original decision maker had had no delegation to act. The tribunal then substituted in lieu its own decision that Mr Seymour was not a fit and proper person to be registered as a migration agent. It then referred to the explanation of what the term ' fit and proper person ' connoted in the decisions of Hill J in Davies v Australian Securities Commission (1995) 59 FCR 221 at 232D-233B; (131 ALR 295 at 305) and Toohey and Gaudron JJ in Australian Broadcasting Tribunal v Bond [1990] HCA 33 ; (1990) 170 CLR 321 at 380. The tribunal referred to its earlier ex tempore decision in which it had ruled that the sub-committee had not been given a delegation in writing pursuant to s 319A of the Act and that therefore its decision was invalid. The tribunal noted that pursuant to Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338; 41 ALR 307 and Z ubair v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 248 ; (2004) 139 FCR 344 it had jurisdiction to review the impugned decision and in doing so could exercise all the powers and discretions of the Authority. The Tribunal dealt with the first of the Authority's contentions by reciting the facts the subject of the institution of the contempt proceedings before Buddin J and noting the plea of guilt. Buddin J in his judgment refers to the circumstances of the offence. It would appear that the Applicant acted for a client in the purchase of a property and that the solicitor for the vendor assumed that the Applicant was a solicitor and the Applicant did not disabuse the vendor's solicitor of that assumption. I have no difficulty in accepting Ms Doolin's evidence that had she known that the offender was not a solicitor, she would have approached her dealings with him quite differently. I accept that she would not have, for example, permitted him to act as her firm's agent on settlement. Nor is it likely that she would have forwarded the signed transfer to him in the circumstances in which she did, or at least not without having first obtained instructions about the matter. The circumstances which led to the orders of Blanch J were not before me and the Applicant was vague when asked to recount the events leading to the proceedings before Blanch J in 1994. I find that a clear inference is that the Applicant did purport to act as a solicitor, hence the nature of the orders made. In the course of his judgment, Buddin J referred to proceedings before Barr J in 1997 where the Law Society of New South Wales had sought orders from the Supreme Court that the Applicant was in contempt of that Court for failing to comply with the orders of Blanch J. There were in those proceedings, three transactions in which the Applicant's conduct was alleged to have constituted breaches of the orders made by Blanch J. That Notice of Motion was dismissed by Barr J and an appeal against his decision was dismissed by the Court of Appeal on 3 May 1999 (see Law Society of New South Wales v Seymour [1999] NSWCA 117). As Buddin J pointed out, the significance of those proceedings was that only just over 12 months after those proceedings were brought to finality in his favour, the Applicant embarked upon the activities which gave rise to the proceedings before him. It referred to a number of authorities to which I will have to refer in due course, including Attorney General (NSW) v Whiley (1993) 31 NSWLR 314; Whitham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 and Australasian Meat Industry Employees' Union v Mudginberri Pty Limited [1986] HCA 46 ; (1986) 161 CLR 98. The Tribunal concluded that there was no doubt that proceedings before Buddin J had been brought with the purpose of punishing Mr Seymour noting that it had been common ground, as Buddin J recorded in his reasons, that the provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW) applied and that the penalty imposed had been one of imprisonment for a fixed term, as opposed to an indefinite term until the contempt of being purged. Therefore whilst not free from doubt, I accept for current purposes that the contempt proceedings before Buddin J were criminal. The result of that finding has application to both subparagraphs 5.2 and 5.4 of the Respondent's Statement of Facts and Contentions. I think that this is the better view. That is to say that the tribunal appears to have accepted that, once it resolved that the proceedings had been criminal, the complaints in paragraphs 5.2 and 5.4 had been established. 25 The tribunal then discussed the contention put forward by Mr Seymour that he had believed that the proceedings before Buddin J were not criminal. The position adopted by Mr Seymour before the tribunal had been that the contempt for which he had been found guilty by Buddin J was in the category described in the authorities as ' civil contempt ' as distinct from criminal contempt and that by reason of that matter Mr Seymour asserted that he believed that their outcome did not fall within the definitions within the meaning of the expression ' criminal offence ' in either of ss 290(2)(c) or 312(1)(e) of the Act. The tribunal found that it did not accept that that belief should have resulted in Mr Seymour failing to notify the Authority of either the fact that the proceedings were on foot or of the conviction or sentence (see [26]). As pointed out by Fitzgerald JA who gave the judgment of the Court in Law Society of New South Wales v Seymour (supra), the present Applicant objected to the competency of the Law Society to appeal based on the premise that the proceedings for contempt, in which the Law Society had sought to have him found guilty and punished was a criminal proceeding. It was further argued that he had been acquitted of the charge of contempt and that no appeal lay from such a verdict (see paragraph 5 of the judgment). Unfortunately for the present purposes, the Court of Appeal found it unnecessary to rule upon that submission. Whatever the Applicant's real belief may have been, if he was to be regarded as a person in whom the Respondent could place reliance, it was incumbent upon him to make full disclosure of the proceedings against him and of the findings and orders of Buddin J. One of the Applicant's character witnesses referred to his taking a technical approach to the law. Although it may be regarded as consistent with that approach, to argue before the Court of Appeal that he had been convicted of a criminal contempt and then to argue before me that the contempt was civil and therefore he was under no obligation to notify the Respondent pursuant to ss 290(2)(c) and 312(1)(c) [scil: (e)] of the Act, I totally reject that approach. I find that such a narrow and opportunistic approach regarding his responsibilities to the Respondent indicates a lack of candour and openness which negates a finding that that Applicant can be regarded as a person of integrity and fit and proper to be licensed as a migration agent. Such a consideration would be relevant to the ultimate question under s 290(1) and to the fact that s 290(2)(h) must require the tribunal to take into account ' any other matter relevant to the applicant's fitness to give immigration assistance '. I am of opinion that the tribunal in this part of its reasoning was considering the matter as a true alternative to its earlier finding. 28 Next, the tribunal considered the Authority's contention in paragraph 5.3, namely the failure to disclose the high range PCA offence. The Tribunal said that it did not regard the offence itself as having any materiality whatsoever, but, it went on to say that it was no answer to the gravamen of the charge that Mr Seymour had not disclosed this conviction even though he had consented to the Australian Federal Police checking his criminal record. The tribunal found that that was not the disclosure required by s 290(2) of the Act and that the high range PCA offence was, in 1993, a conviction which Mr Seymour was required then to disclose. 29 The tribunal noted that Mr Seymour had adduced a large number of referees attesting to his fitness to practice as a migration agent and found that he was a person whom his contemporaries regarded as having real moral worth, after referring to Malindi v The Queen [1967] 1 AC 439 at 451. Notwithstanding his referees' views as to his character, and I note that at least one was most discomforted when the full import of Buddin J's decision was made known to him, the Applicant cannot escape his history. He is a person who in 1982 was struck off as a solicitor. In 1994, for reasons not explained to me, he gave undertakings to the Supreme Court of NSW that he would not in future act or purport to act as a solicitor. In 2004 he was convicted and sentenced to 9 months imprisonment, suspended upon entering into a good behaviour bond, for purporting to act as a solicitor in breach of his undertakings. As far as I am concerned, those facts alone would be sufficient to render the Applicant not a fit and proper person whether the contempt was criminal or civil. Added to those facts are the other facts that the Applicant committed his contempt not only after giving undertakings but within 12 months of proceedings regarding other alleged similar breaches of his undertaking, albeit those proceedings were resolved in his favour. Then, although having previously argued that the similar contempt proceedings were criminal, he declined to notify the Respondent of his conviction for contempt on 3 June 2004. Previously, he had neglected to inform the Respondent himself of a conviction in 1990 for a driving offence. Taken all together, I find that the Applicant is not a person of integrity nor is he a fit and proper person for the purposes of s 290 of the Act. It was said that contempt proceedings are sui generis , particularly where the proceedings were themselves taken within the original 1994 proceedings in which the undertaking had been given by Mr Seymour. Those proceedings arose out of the earlier 1982 disciplinary proceedings in which Mr Seymour had been found guilty of professional misconduct and struck off. Accordingly, it was argued that having regard to the fact that disciplinary proceedings both under the relevant legislation and in the exercise of the Supreme Court's inherent jurisdiction were not criminal proceedings but sui generis because the Court was called upon to examine the conduct of solicitors as explained by Mason J in Weaver v Law Society of New South Wales [1979] HCA 35 ; (1979) 142 CLR 201 at 207, that the contempt proceedings brought before Buddin J were of the same character. 31 Mr Seymour relied upon the statement that all proceedings for contempt ' must realistically be seen as criminal in nature ' as Deane J pointed out in Hinch v Attorney General (Vict) [1987] HCA 56 ; (1987) 164 CLR 15 at 49 and as approved by Brennan, Deane, Toohey and Gaudron JJ in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. It was said that, accordingly, the tribunal's finding that the contempt charge determined by Buddin J was criminal was an error of law. Next he argued that that error of law affected the tribunal's finding that Mr Seymour demonstrated a lack of candour and openness by his apparently contradictory stances taken before the Court of Appeal in the earlier contempt proceedings (namely that the Law Society should not be allowed to appeal against his acquittal) and his stance in the proceedings before the tribunal (that the proceedings before Buddin J were not criminal). 32 Mr Seymour also argued that contempt being within the inherent jurisdiction of the Supreme Court of New South Wales as a superior court of record, a conviction for it was not a conviction ' of an offence under a law of ... a State ' within the meaning of s 312(1)(e) of the Act. This was because in Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 a number of justices had held that the offence of contempt by scandalizing the court, which had been originally been triable on indictment, was not an ' ... offence against any law of the Commonwealth ' so as to require trial by jury pursuant to s 80 of the Constitution . This was because the source of the Family Court's power to deal with contempts was derived from Ch III of the Constitution , which was not, within the meaning of s 80 of the Constitution , ' a law of the Commonwealth '. So, it was said, the source of the jurisdiction of the Supreme Court to punish for contempt, being inherent in its establishment as a superior court of record, the same reasoning applied to deny proceedings for contempt the character of resulting in a conviction of an offence under a law of the State of New South Wales. 33 Mr Seymour also submitted that because a conviction for contempt could not become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act, that section manifested an intention to exclude from its purview convictions for contempt. 34 The Authority submitted that the tribunal was correct to classify the proceedings before Buddin J as having involved a conviction of a criminal offence by reference to the character of the jurisdiction invoked under Pt 55 rr 7 and 13 of the Supreme Court Rules , the fact that the proceedings were to seek the punishment by imprisonment of Mr Seymour and the nature of the inherent jurisdiction to punish for contempt. The Authority submitted that the character of the contempt charged before Buddin J was that of disobedience, in the sense of a defiance of the authority of the Supreme Court and that there was a public injury occasioned by such defiance. It was said that, the purpose of the proceedings was to maintain the integrity of the judicial process, to advance the public interest to vindicate judicial authority or to maintain the integrity of the judicial process, relying on that class of contempt as being within a class of criminal contempt as explained in Witham v Holloway (1995) 183 CLR at 531. 35 The Authority submitted that the reasoning in Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386, did not affect the construction of s 312(1)(e) despite the fact that this might mean that similar wording in that section would create different results were the contempt alleged one that had been determined in a court established under Ch III of the Constitution . This result was supported because it was said that a law of a State could include that State's common law and its statute law, including ss 22 and 23 of the Supreme Court Act 1970 (NSW) and the fact that in Attorney General v Whitley (1993) 31 NSWLR 314 at 320A-D, to which Buddin J had referred, it appeared that the finding of guilt in effect of the charge of contempt was a conviction of the criminal offence. 37 It was submitted that pursuant to the operative provisions of the Act as they were in 1993 and 1994 prior to the Board's approval of Mr Seymour's application, the secretary of the Board had to refer, if the PCA high level offence were relevant, that offence to the Board, pursuant to the then provisions of s 114T(1)(a) and (d). And that it was said that because the Board knew of the conviction through Mr Seymour's having consented to the Federal Police's check of his criminal record, it had taken that matter into account in registering him and it was not open to the tribunal on the review to revisit the matter. 38 The Authority argued that the review by the tribunal was a merits review on all grounds and that it was open to the tribunal to conclude that the failure of Mr Seymour to disclose his conviction in 1993 went to his fitness. Moreover, the tribunal noted that Mr Seymour had made a similar denial of previous convictions to Buddin J who had made an adverse finding in his judgment about that issue, again going to the question for the ultimate consideration of the Authority under s 290(1). He made a formal submission that Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307, 41 FLR 338, was wrong but acknowledged that I am bound to follow it. The Authority submitted that the approach of the tribunal applying well known authority was correct. That submission was based on characterizing the tribunal's reasoning that Mr Seymour's history of having been struck off as a solicitor in 1982, having given the undertaking to the Supreme Court that he would not in future act or purport to act as a solicitor in 1994 and his 2004 conviction and sentence for contempt were facts which ' alone would be sufficient to render [Mr Seymour] not a fit and proper person whether the contempt was criminal or civil ' (see [38] of the tribunal's reasons). 41 The Authority submitted that the tribunal had been referring in this passage of its reasoning to the earlier findings which it had set out recounting the nature of the proceedings leading up to Buddin J's decision and his Honour's findings in that decision, including matters that were set out in the decision but not necessarily referred to directly in the tribunal's reasons. The Authority said that there was a number of freestanding findings by the tribunal each of which would justify its ultimate conclusion, first, the findings which I have just set out, secondly, the findings relating to Mr Seymour's change of position as to whether contempt was a criminal offence depending on whether he was before the Court of Appeal or the tribunal (see [26]-[31] of the tribunal's reasons [26] above). Thus the Authority argued that even if the tribunal had been wrong to take account of the balance of material referred to in [38] of its reasons, having concluded that by reference to the matters in [37] alone, Mr Seymour was not a fit and proper person, that was a finding of fact on the merits in respect of which there was no error of law. 42 Moreover, the Authority relied on what Allsop J had said in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] (Weinberg J agreeing at [155]) that even if a jurisdictional error had been established, that may not vitiate the decision if there were a separate and independent reason which supported it. Likewise, the Authority referred to the observations by McHugh J in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] that discretionary relief for cases in which jurisdictional error had been established may be refused if the applicant had in fact suffered no injustice, for example, because the statutory law compelled a particular outcome. 43 Next the Authority submitted that Mr Seymour's argument was misconceived because it amounted to a collateral attack against his conviction which was impermissible ( Minister for Immigration & Multicultural Affairs v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 240-245; NSW Bar Association v Somosi (2001) 48 ATR 562 at 577 [80]-[81] per Spigelman CJ, Sheller and Giles JJA agreeing). It was submitted that the tribunal had to accept the conviction and the essential facts, that is, the ingredients of the offences found by Buddin J. That being so, it was said that there was no need in [37] of the tribunal's reasons to engage in an evaluation process of the matters to which it there referred particularly as the Authority argued that [37] incorporated a reference to the earlier findings at [8]-[15] of the tribunal's reasons. WAS MR SEYMOUR CONVICTED OF A CRIMINAL OFFENCE WITHIN THE MEANING OF THE ACT? First, do the two different descriptions of the concept of ' conviction of a criminal offence ' in ss 290 and 312 of the Act have different meanings? Secondly, was Mr Seymour's conviction of contempt within either or both of ss 290(2)(c) or 312(1)(e)? The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole" ( Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26 ; (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, "in the context of the legislation read as a whole".). In Commissioner for Railways (NSW) v Agalianos ((1955) 92 CLR 39), Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed ( Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias [1917] HCA 41 ; (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48 ; (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J). Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions (see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J). Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other" ( Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC). Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. In The Commonwealth v Baume ((1905) [1905] HCA 11 ; 2 CLR 405 at 414) Griffith CJ cited R v Berchet ((1688) 1 Show KB 106 [89 ER 480]) to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent". 47 In ascertaining what meaning the differing expressions in ss 290(2)(c) and 312(1)(e) were taken by the Parliament to have, it is important to bear in mind that each section is concerned with the impact which a conviction may have upon the Authority's performance of its functions in relation to the registration of a migration agent. First, s 290(2)(c) appears in the principal provision dealing with the function of registration, which is an annual event for every migration agent. Secondly, s 312(1)(e) is relevant to the ongoing function of the Authority under s 303 pursuant to which it has a discretion to cancel or suspend the registration of a migration agent or to caution him or her. Thus under s 312(1)(a) the migration agent's bankruptcy must be notified and s 303(e) makes bankruptcy a matter which enlivens the Authority's powers to cancel or suspend the migration agent's registration or to caution him or her. And, s 290(2)(g) requires the Authority to take into account an applicant's bankruptcy at any time in considering whether to register him or her as a migration agent. 49 Additionally, s 312(1) deals with events which occur after registration but which, had they occurred beforehand, would have been relevant for the Authority's consideration in deciding whether to register the person as a migration agent. However, it is important in construing these provisions to consider the fact that a contravention of s 312(1) is an offence of strict liability (s 312(2)), while s 290 creates no offence. 50 The other relevant provisions of Division 3 of Part 3 of the Act and s 312, which is in Division 5 of Part 3, evince the intention of protecting the public by regulating who should be, and remain entitled to be, registered as migration agents. Those provisions are also penal in nature (even though not each of them creates a criminal offence), particularly s 303, in the sense that they expose persons already registered as migration agents to a penalty for the reasons given in Rich v Australian Securities and Investments Commission [2004] HCA 42 ; (2004) 220 CLR 129 esp at 146 [35]. The penal aspect is attached to these provisions for the purpose of better securing protection of the public from persons who ought not be registered as migration agents. 51 By s 15AA(1) of the Acts Interpretation Act 1901 (Cth) a purposive approach to the construction of the Act is required. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams ((1935) [1935] HCA 62 ; 53 CLR 563 at pp. 567-568); Craies on Statute Law , 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort. If such a conflict was to arise, the court must proceed with its primary task of extracting the intention of the legislature from the fair meaning of words by which it has expressed that intention, remembering that it is a remedial measure passed for the protection of the worker. It should not be construed so strictly as to deprive the worker of the protection which Parliament intended that he should have: Harrison v. National Coal Board ([1951] AC 639 at p. 650), per Lord Porter; John Summers & Son Ltd. v. Frost ([1955] AC 740 at p. 751), per Viscount Simonds; McCarthy v. Coldair Ltd. ([1951] 2 TLR 1226 at pp. 1227-1228), per Denning L.J. In such a context the strict construction rule is indeed one of last resort. Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. 54 There are also textual differences between ss 290(2)(c) and 312(1)(e) which suggest that each may operate independently. First, s 290(2)(c) has no geographic limitation and so, on a literal reading, can apply to convictions which occurred outside Australia. Indeed, a conviction in another country for some offence involving deliberate dishonesty could well bear on the question to which s 290(2)(c) requires the Authority to have regard. Secondly, s 290(2)(c) classifies the convictions to which regard must be had to the classes of those relevant to either the fitness and propriety or the integrity of the applicant for registration. Thirdly, s 312(1)(e) catches all convictions within the geographic area, regardless of whether they were for offences of the classes identified in s 290(2)(c) or not. Thus, s 312(1)(e) would require notification of a conviction for jaywalking or for parking offences involving no question of character or integrity. 55 One reason why s 312(1)(e) may be framed as it is, is so that once notified the Authority is able to consider for itself whether the conviction enlivens or affects the exercise of its powers under s 303, which is a similar function as s 290(2)(c) creates, albeit in respect of convictions wherever made. That is, under s 290(2)(c) the Authority would be unlikely to be capable of regarding as relevant to the question it poses that an applicant for registration had been convicted of jaywalking or parking offences. Likewise, although a registered migration agent would have to disclose such a conviction under s 312(1)(f), it is equally unlikely that by having regard to it the Authority would be able to form the satisfaction required by s 303(f) to authorize it to take one of the steps in s 303(a)-(c). 56 What s 312(1)(e) catches is a conviction '... of an offence under a law of the Commonwealth or of a State or Territory' . This wording is similar to but distinct from that in s 80 of the Constitution which deals with trials on indictment of '... any offence against any law of the Commonwealth' . It is necessarily statute law, for the only power to make Commonwealth law is vested in the Parliament (Consitiution, s 1 ; see also Covering Clause 5 and ss 51 and 52 ). ... But the common law is not itself a law of the Commonwealth. By s 35 of the Family Law Act 1975 (Cth), the Family Court was declared to have the same power to punish for contempt as had the High Court. And s 24 of the Judiciary Act 1903 (Cth) provided that the High Court had the same power and authority to punish contempts as had the Supreme Court of Judicature in England at the commencement of the Judiciary Act 1903 (Cth). 59 Gleeson CJ and Gummow J (200 CLR at 397 [25]) held that the term 'law of the Commonwealth' in s 80 of the Constitution refers to laws made under legislative powers of the Commonwealth. They held that an obligation or liability which had its source in the Constitution itself did not arise under a law of the Commonwealth. He held that s 35 of the Family Law Act 1975 (Cth) was that source (200 CLR at 403-405 [48]-[50] Kirby J agreed with McHugh J on this point (200 CLR at 416 [80]-[81]. It is clear that Callinan J also considered that s 35 created an offence against a law of the Commonwealth (200 CLR at 431-433 [121]-[126], 439 [136]; see too Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [13] ). 61 Accordingly, the Court was evenly divided on the question as to whether contempt of a Ch III court was an offence against a law of the Commonwealth. However, Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 is not decisive of the question of construction of ss 290(2)(c) and 312(1)(e) of the Act in relation to a contempt of the Supreme Court of New South Wales. Rather, that case involved for Gleeson CJ, Gummow and Hayne JJ the application of the principle that the common law is not a law of the Commonwealth. 62 I am of opinion that the common law is a law of each State. The reasoning underlying the decision in the Native Title Case [1995] HCA 47 ; (1995) 183 CLR 373 at 487 was that the Constitution was the only source of the laws of the Commonwealth and it identified the Parliament as the mechanism by which such laws came into existence. But the nature of the federation created by the Constitution recognized that a body of law, separate from statute, existed in the former colonies which became States on 1 January 1901. That body of law, the common law, undoubtedly exists today. It forms part of the 'single system of jurisprudence constituted by the Constitution , federal, State and Territory laws and the common law of Australia' identified by Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ in John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36 ; (2000) 203 CLR 503 at 534 [66] (see too Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 at 562). 63 Although their Honours referred to the 'common law of Australia', that law derives its unity through the role of the High Court under s 73 of the Constitution which enables that Court to harmonize differences in the earlier common laws of the various States by establishing common principles (see e.g. Mabo v Queensland (No 2) [1992] HCA 23 ; (1992) 175 CLR 1 at 29-30 per Brennan J; ACCC v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 214 CLR 51 at 71 [38] per Gummow and Hayne JJ; Blunden v The Commonwealth [2003] HCA 73 ; (2003) 218 CLR 330 at 349 [59] per Kirby J). Nonetheless, the source of that 'common law of Australia' in relation to the inherent power of the Supreme Court of New South Wales to punish for contempt of court can only be the common law of that State, because, as the Native Title Case (1995) 183 CLR at 487 held, the Commonwealth itself has no such source. 64 The jurisdiction exercised by the Supreme Court in applying the common law, whether in a proceeding for contempt, or in an action for breach of contract or for the tort of negligence where no matter under Ch III of the Constitution arises, is an exercise of applying the law of the State to the adjudication of the proceeding or cause of action. Division 3 of Part 55 created a procedure for a motion on notice to be filed seeking punishment for a contempt committed in connection with proceedings (SCR Pt 55 r 6). A statement of charge had to be subscribed to or made part of the motion and it had to specify the contempt of which the contemnor is alleged to be guilty (SCR Pt 55 r 7). 67 Mr Seymour was proceeded against before Buddin J under Division 3 of Part 55. 68 In Young v Registrar, Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G Kirby P and at 288A-D Handley JA held that Pt 55 r 14 of the Supreme Court Rules 1970 (NSW), which contained a power to discharge a convicted contemnor from prison, was authorized by an Act, namely the Supreme Court Act 1970 (NSW). They held that this was because, first, the rule had been made as delegated legislation under the Act and, secondly, in The Queen v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10 ; (1956) 94 CLR 254 at 280 Dixon CJ, McTiernan, Fullagar and Kitto JJ had approved of the explanation given by Dixon J in Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan [1931] HCA 34 ; (1931) 46 CLR 73 at 101-102 that a statute may authorize the Executive to make a law --- i.e. to make delegated legislation --- and that such a law is made under the statute. 69 The inherent jurisdiction of a superior court of record so constituted, such as the Supreme Court of New South Wales, includes a power to punish for contempts out of court which are committed not just of that court but against any court over which the superior court exercises a supervisory jurisdiction: John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12 ; (1955) 93 CLR 351 at 364-365 per Dixon CJ, Fullagar, Kitto and Taylor JJ. In these cases each court has its own appropriate means of enforcement, and such "contempts" are not criminal. Criminal contempt consists in contumelious behaviour to a court, and is divided into two broad classes--contempt in the face of the court and contempt out of court. All criminal contempts are indictable offences at common law. Contempts in the face of the court have, however, from time immemorial been punishable summarily (i.e. without conviction by a jury) by the court before which the contempt is committed. That result followed from the undelivered judgment of Wilmot J in R v Almon (1765) Wilm 243; 97 ER 94; see too: James v Robinson [1963] HCA 32 ; (1963) 109 CLR 593 at 600-602, 612. An indictable misdemeanour was triable as an ordinary criminal offence, on indictment before a jury (see Rex v Tibbits [1902] 1 KB 77 at 87). It is a common law criminal offence which was once described by Lindley LJ as '... the only offence that I know of which is punishable at common law by summary process' ( O'Shea v O'Shea & Parnell (1890) 15 PD 59 at 64, cited with approval in Australian Building and Construction and Builders' Labourers' Federation v David Syme & Co Ltd (1982) 59 FLR 48 at 52; 40 ALR 518 at 521. ) And it must follow that where the misdemeanour is punished by summary process, it is no less a punishment that follows conviction for a criminal offence. 71 Nowadays, all charges of contempt are invariably heard by a judge or a full court sitting on a summary trial. The procedure for trial by jury of such a charge or indictment has fallen into desuetude ( Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595A-D per Street CJ, Hope, Glass, Samuels and Priestly JJA; In re Lonrho Plc [1990] 2 AC 154 at 177B-C; Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 393-394 [12] ; Borrie & Lowe: The Law of Contempt (3 rd ed) p 469). In Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707C-E McHugh JA referred to Rex v Tibbits [1902] 1 KB 77 as the last reported case in England of a trial for contempt on indictment and he said there had not been such a trial in New South Wales in the twentieth century. 72 The current mode of proceeding for criminal contempt by the summary procedure is the product of historical development. Whatever procedure be employed to prosecute a charge of criminal contempt, in my opinion, cannot change the essential nature of that charge from being a criminal charge. As McHugh JA pointed out in Attorney-General (NSW) v John Fairfax & Sons Ltd (1985) 6 NSWLR 695 at 707E-708E, the overwhelming preference has been in recent times to use the summary procedure and its utilization need not be justified, unlike attempts in the past to do so. As he said (6 NSWLR at 707E) '... the summary procedure is a departure from the ordinary course of law for criminal proceedings' . But that procedure does not change the character or incidents of criminal contempt from being at common law a criminal offence. Lord Russell of Killowen CJ explained the then state of the law in Reg v Gray [1900] 2 QB 36 at 40-41 saying that the summary jurisdiction was '... not a new-fangled jurisdiction; it is a jurisdiction as old as the common law itself, of which it forms part' . But his Lordship pointed out at that time it was exercised '... only when the case is clear and beyond reasonable doubt' and where that feature were not present he said that the courts left it to the Attorney-General to decide whether to proceed by criminal information; i.e. indictment: see R v Hull (1989) 16 NSWLR 385. The reporter noted in Reg v Gray [1900] 2 QB at 43 that the procedure then used was to issue an order on the Crown side of the Queen's Bench Division directing the accused to appear and show cause why he or she should not be committed for contempt as laid out in affidavits: see Onslow's and Whalley's Case ; (1873) LR 9 QB 219 at 219-220; see too Skipworth's Case (1873) LR 9 QB 230 at 232 per Blackburn J. 73 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 all justices considered the historical classification of contempts as 'civil' and 'criminal' to be unsatisfactory. Brennan, Deane, Toohey and Gaudron JJ described the differences upon which the distinction of classification is based as being in many respects 'illusory' (183 CLR at 534) while McHugh J said the case for abolishing the distinction 'is a strong one' (183 CLR at 549). 74 Nonetheless, the distinction had been recognized in the High Court as recently as Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 106. 75 The reliance on the distinction in a case like the present, where the applicant was sentenced to nine months imprisonment, suspended, for breaching a court order shows how unworkable the distinction really is in practice. Was the contempt with which the applicant was charged civil when the charge was preferred? Did it remain so or did it transmute, as the seriousness of, and contumaciousness of, his conduct was proved in evidence or found by Buddin J when giving judgment? The very notion that an allegation of contempt can have such a chameleon-like character demonstrated, in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109 and in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525, that all such cases had to be decided on the criminal standard of proof. The High Court did not have to decide in the latter case whether the distinction between 'civil' and 'criminal' contempt should be abolished (see 183 CLR at 549). 76 In Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534, Brennan, Deane, Toohey and Gaudron JJ said that because of the illusory nature of the differences said to exist between the 'civil' and 'criminal' classes of contempt and the fact that the usual outcome of all such proceedings is punishment, all proceedings for contempt must realistically be seen as criminal in nature. 77 That does not result in all contempt proceedings themselves being now seen to be for a criminal offence. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. There is no basis, in our view, for importing into the law of contempt the nineteenth century rules which allowed a verdict of guilty, given in a jury trial, to be quashed on appeal, but did not permit of an order for retrial. Moreover, the issue, so far as contempt is concerned, is not whether there should be a retrial, but whether there should be a rehearing. That case had applied an earlier decision of a Full Court in Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397; 19 ALR 547 which had held that the court under s 24(1)(a) of the Federal Court of Australia Act 1976 (Cth) had no jurisdiction to hear an appeal against a verdict of acquittal on the merits of a criminal charge. This line of authority was subsequently approved in Davern v Messel [1984] HCA 34 ; (1984) 155 CLR 21 (see esp at 46 per Mason and Brennan JJ). In Re James W Thompson (1893) 19 VLR 286, the Full Court of the Supreme Court of Victoria (Williams, Holroyd and Hood JJ) held that an appeal against an order attaching the appellant for contempt of court in publishing certain articles in a newspaper commenting on pending proceedings was incompetent for the reason that the proceedings for attachment were "a criminal matter, and therefore there is no appeal to this court". Their Honours commented that the purported appeal was "virtually an appeal from a punishment inflicted by a judge presiding in the criminal court for a criminal offence" (see, also, the equally strong comments of Cussen J in Re Dunn [1906] VLR 493 at 501-2). Acquittal of a charge of criminal contempt after a hearing on the merits is, in our view, an acquittal in criminal proceedings for the purposes of the established principle that no appeal lies from an acquittal on the merits of a criminal charge. Unfortunately for this contention, however, they do something more than that; they show I think, conclusively, that if a person be expressly enjoined by injunction, a most solemn and authoritative form of order, from doing a particular thing, and he deliberately in breach of that injunction, does that thing, he is not guilty of any crime whatever, but only of a civil contempt of Court" ([1913] AC at p 456). And in New South Wales, more than sixty years ago Walker J. spoke of "the mistaken view that all the offences generically known as contempts stand on the same footing, and that all contempts are criminal and must be dealt with as though they were the subject of a criminal indictment". "This", he said, "is not so. " Dealing with an application for the sequestration of the property of a trade union that had disobeyed an injunction he said, "This is not an application by the plaintiff that the Court should exercise its criminal jurisdiction, and punish the union for a criminal offence; it is a step in the suit by which the plaintiff endeavours, by the only means open to him, to enforce against the union the injunction of the Court": Keogh v. The Australian Workers' Union ((1902) 2 SR Eq (NSW) 265 at pp 281, 282). There the question was what standard of proof applied, i.e. civil or criminal, in proceedings which fell squarely within Lord Atkinson's 'civil' classification, namely, charges of contempt that the appellant knowingly or recklessly presented a false or misleading statement of his assets and liabilities in an affidavit which he had been ordered to make and that he breached (what was then termed) a Mareva injunction, (this is now known as a Mareva order: Cardile v LED Builders Pty Ltd [1999] HCA 18 ; (1999) 198 CLR 380 at 393-394 [25] [-26]) by dealing with his assets contrary to the terms. Punishment is punishment, whether it is imposed in vindication or for remedial or coercive purposes. And there can be no doubt that imprisonment and the imposition of fines, the usual sanctions for contempt, constitute punishment. And the same is true of a sequestration made in consequence of a company's failure to comply with an order or undertaking. They noted the elusive distinction between 'punitive and 'protective' proceedings. And in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 112-113, Gibbs CJ, Mason, Wilson and Deane JJ said that lying behind punishment for a contempt which involves wilful disobedience to a court order is the very substantial purpose of disciplining the defendant and vindicating the authority of the court. They held that a deliberate commission or omission which is in breach of an injunctive order or undertaking would constitute such wilful disobedience unless it were casual, accidental or unintentional. The charge of contempt related to disobedience of an order of that Court. The judicial source of the order, even if, sui generis , is not of any significance to the charge. The charge related to the conduct of Mr Seymour in contravening an order of the Court which was valid and binding on him. And while it may be that the offence of contempt of court attracts remedies which are also sui generis , the uniqueness of the remedies is not decisive of the question whether contempt is properly to be characterized as a criminal offence. 88 The tribunal referred (at [16]) to Buddin J's reference ([2004] NSWSC 493 [12] to Attorney-General (NSW) v Whiley (1993) 31 NSWLR 314 at 320B-C where Clarke, Meagher and Handley JJA said that a conviction for contempt was a conviction for an offence which is criminal in nature. However, the Court of Appeal was dealing with a case in which the contempts alleged were, if proved, 'criminal' on any view because they amounted to interferences in the course of justice by improperly attempting to influence a judicial officer hearing a matter and bringing improper pressure to bear on a party to that matter. 89 The Court of Appeal there held (31 NSWLR at 321C-D) that the provisions of the Sentencing Act 1989 (NSW) applied to a conviction for contempt. Mr Seymour argued that such a conviction cannot become spent under Pt VIIC of the Crimes Act 1914 (Cth) within the meaning of s 290(2)(c) of the Act. However, the conviction is either of a criminal offence or it is not, whatever the provisions of Pt VIIC may provide. 90 Under s 85ZM(2)(b) of the Crimes Act 1914 (Cth), a conviction for an offence is spent at the end of 10 years after conviction if a person is not sentenced to imprisonment at all or if the sentence is for less than 30 months. In s 85ZL 'State law' is defined as meaning '... a law in force in a State (other than a Commonwealth law)' and 'State offence' as meaning '... an offence against a State law'. In contrast, in s 85ZL , 'Commonwealth law' is defined by reference to an Act, an instrument or other legislation. I am of opinion that the definition of 'State law' is intended to include the unwritten law of the States and Territories as well as written laws. 91 It follows that convictions for contempt under State law can become spent under s 85ZM and so this argument has no substance. 92 As the above review demonstrates, it is no mean feat to ascertain whether what Mr Seymour was found guilty of was a criminal offence. The task is as exacting and uninformative as seeking to find the answer to the old enquiry as to how many angels can dance on the head of a pin. 93 In Attorney-General v Newspaper Publishing Plc [1988] Ch 333 at 377, Lloyd LJ tellingly observed that it was nonsensical for the law to classify as a criminal a stranger to the litigation who aided and abetted a party bound by an injunction to breach the injunction, while leaving the principal not as a criminal at all but as only 'guilty' of 'civil' contempt. He would have classified each as 'civil'. In contrast, Sir John Donaldson MR also found the classification between civil and criminal contempt no longer to be appropriate and suggested an, apparently criminal classification ([1988] Ch at 362B-D; see too: Borrie & Lowe : The Law of Contempt (3 rd ed) pp 630-664). Of course, Gibbs CJ, Mason, Wilson and Deane JJ had debunked the example of the stranger being liable on a different standard as 'an absurd proposition' in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108. 94 For my part, were I free to do so, I would regard all contempts which interfere with the course of justice or the due administration of the law ( Lane v Registrar of Supreme Court of NSW [1981] HCA 35 ; (1981) 148 CLR 245 at 257-258; Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 107) as criminal offences because they denote a qualification or impediment on (e.g. contempts by publication which can be unknowing) or a refusal to obey the lawful authority of the Court. When the Court enjoins a person from acting in a particular way, it is undoubtedly saying that it will be a breach of the law so to act thereafter. Why, when the person breaches the injunction is his or her behaviour any less serious or different in character than a breach of a statutory prohibition to which criminal sanctions also attach? 95 When the Court quells a controversy by ordering that a party do or refrain from a particular act or activity, it defines the rights and obligations of the parties as an aspect of the way in which our society is governed (cf: D'Orta-Ekenaike v Victorian Legal Aid [2005] HCA 12 ; (2005) 79 ALJR 755 at 761-762 [31] - [36] , 763 [43] per Gleeson CJ, Gummow, Hayne and Heydon JJ). A breach of such an order interferes in the administration of the law because it evinces an intention not to obey the law, as it affects the parties, which has been determined by the Court as a branch of government. That is so whether the injunction is final or interlocutory. 96 Of course, an order for the payment of money as damages or compensation is of a different character. When the Court orders a payment of this kind it creates a debt which is enforceable by a variety of means. Moreover, as is frequent, judgment debtors are not always able to pay debts. Injunctions, however, ought always be framed so that it is possible for the party enjoined to obey their commands. 97 And a failure to obey the injunction does interfere with the administration of the law because it evinces an intention that the command by the Court can be ignored. In effect, since behaviour suggests that the controversy has not been quelled and that the party enjoined can choose to obey or not as he or she pleases. 98 When the High Court held in Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534 that all contempts are criminal in nature and must be proved on the criminal standard, it ensured that the alleged contemnor was afforded the safeguards given at common law to all accuseds. The Court also recognized that the historical classification of 'civil' and 'criminal' contempt is unsatisfactory. 99 While in centuries gone by it may have been legally possible to imprison people who owed but had not paid debts, imprisonment in Australia today can only occur where a person is sentenced to a term by a court pursuant to law, be it a statute or the unwritten law, or is remanded (or held for a very limited time before he or she must be brought before a court or a justice of the peace: cf: Williams v The Queen [1987] HCA 36 ; (1986) 161 CLR 278) in custody as incident of the administration of the criminal law so as to be available at his or her trial. Administrative detention is not imprisonment ( Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562) and some statutes can authorize preventative detention after a term of imprisonment has been served (cf: Fardon v Attorney-General (Qld) [2004] HCA 46 ; (2004) 210 ALR 50, 78 ALJR 1519; Baker v The Queen [2004] HCA 45 ; (2004) 210 ALR 1, 78 ALJR 1483; Kable v DPP (NSW) [1996] HCA 24 ; (1996) 189 CLR 51). 100 Aldridge, Eady & Smith on Contempt (3 rd ed) at [3-91] suggest that notwithstanding the views of those who advocate abandoning the distinction between 'civil' and 'criminal' contempt, over the course of years many practical distinctions have occurred which would require explanation were this course to be followed. I do not think this is a sufficient justification. A convicted contemnor's rights of appeal could be protected, quickly, by amending legislation (cp the introduction and amendment of s 101A of the Supreme Court Act 1970 (NSW) where the Attorney-General of that State is given the right to refer to the Court of Appeal questions of law arising out of an acquittal on a charge of contempt: see: Attorney-General (NSW) v X [2000] NSWCA 199 ; (2000) 49 NSWLR 653 and John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198 ; (2000) 181 ALR 694; 158 FLR 81). 101 Were I free to decide the question, I would hold that it is inconsistent with the rule of law for a court to have power to imprison a person for contempt unless the person's conduct amounted to a criminal offence. I realize that preconceived notions or classifications of what is 'civil' or 'criminal' are not always helpful. But where the liberty of the subject may be in jeopardy as part of the range of sentencing or remedial options open to a court on a finding that a charge of contempt has been proved beyond reasonable doubt, I am firmly of opinion that such a proceeding is a criminal proceeding whether or not a sentence imprisonment ultimately be imposed (cp: Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49 ; (2003) 216 CLR 161 at 204-207 [131] - [139] per Hayne J, Gleeson CJ and McHugh J agreeing at 166 [1], [3]). 102 A person charged with contempt should never be exposed to the duplicitous, almost schizophrenic, nature of a charge of 'civil' contempt which, during the course of the hearing may change into a 'criminal' charge. No other court proceedings allow of such an intolerable situation. It is unfair to the point of being unjust that a person defending proceedings does not know at the outset of the hearing the full nature of the case against him or her where liberty may be in jeopardy (cf: Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 108-109). A 'civil' contempt can become 'criminal' where the act charged is contumacious in the sense that in doing it there was a direct intention to disobey the order ( Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 541 per McHugh J citing Warrington J's well known dictum in Stancomb v Trowbridge Urban Council [1910] 2 Ch 190 at 194). A breach of an injunction or undertaking to the Court can also be criminal if it is '... an obstinate disregard' of the obligation imposed by or owed to the Court ( Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 111-112). The hallmark of a classification of 'criminal' contempt of this nature is contumacy or defiance ( Australian Consolidated Press Ltd v Morgan [1965] HCA 21 ; (1965) 112 CLR 483 at 489 per Barwick CJ, 501-502 per Windeyer J; Doyle v The Commonwealth [1985] HCA 46 ; (1986) 156 CLR 510 at 516). 105 Buddin J found that the facts revealed '... a matter of considerable objective gravity' ([2004] NSWSC 493 [7]. And his Honour held that it was apparent to Mr Seymour from an early stage in the dealings the subject of his conviction that he was understood to be a solicitor by those in the office of the solicitors for the vendor of property dealing with him, yet he did nothing to disabuse them of their error. 107 I am of opinion that the conviction by Buddin J was for a 'criminal' contempt consisting of contumacious or defiant disobedience by Mr Seymour of the injunction not to act as a solicitor. I draw from his Honour's findings of fact that Mr Seymour knew exactly what he was doing in letting others with whom he was dealing think was a solicitor and he knew this was in flagrant disregard of the restraint which the court had imposed by the injunction. This conduct was not merely casual, unintentional or accidental. There was a deliberate intention to disobey the injunction which was contumacious in the sense used in characterizing 'criminal' contempt. 108 It follows that Mr Seymour was convicted of a criminal offence by Buddin J. 109 And, Mr Seymour recognized his guilt at an early stage. As soon as he was confronted with the allegation, he acknowledged his wrongdoing (see per Buddin J at [2004] NSWSC 493 at [1] , [16]-[19]. I am of opinion that this ready acknowledgment carried with it the realization by Mr Seymour that the offence clearly had been committed by his deliberate and contumacious defiance of the injunction. Thus, when he was charged he was aware of all of the material facts and, despite the legal difficulties referred to above, must be taken to have been aware that he had been charged on 24 November 2003 ([2004] NSWSC 493 at [18]); with a criminal offence. 110 Certainly he knew of the importance to the Authority of the charge listed before the Supreme Court on 31 May 2004. He made submissions to Buddin J that a conviction might affect the Authority's view as to his fitness, propriety or integrity for the purposes of ss 290 and 303 of the Act as a matter for his Honour to take into account on sentence ([2004] NSWSC 493 at [14]-[15]). 111 It follows that Mr Seymour falsely declared to the Authority in his application letter of 1 May 2004 that 'I am not currently the subject of any criminal proceedings'. 112 That brings me back to the question as to whether the conviction for contempt was a conviction of a criminal offence within the meaning of each of ss 290(2)(c) or 312(1)(e) of the Act. The conviction was relevant to each aspect to which s 290(2)(c) relates --- viz: Mr Seymour's fitness and propriety or his integrity. A person who deliberately contravenes a court order not to act as a solicitor in circumstances as found by Buddin J is capable of being found both not to be a fit and proper person to give migration assistance and not to be a person of integrity. 114 I am also of opinion that s 312(1)(e) required Mr Seymour to notify the Authority of his conviction of the offence of contempt which is an offence under the law of New South Wales. For the reasons above, I am of that opinion whether the contempt power was inherent in the Supreme Court of New South Wales, and so was part of that State's unwritten law, or was created under the Supreme Court Act 1970 (NSW) or SCR Part 55 rr 7, 13 (see Young v Registrar Court of Appeal [No 3] (1993) 32 NSWLR 262 at 281D-282G, 288A-D). 115 Accordingly, the tribunal committed no error of law in finding that Mr Seymour had been convicted of a criminal offence by Buddin J and that he had not declared that he was the subject of a criminal proceeding in his 1 May 2004 application to the Authority when he ought to have declared that he was. It was also correct to have decided that Mr Seymour failed to notify the Authority in accordance with s 312(1)(e) after his conviction by Buddin J. The tribunal found, correctly, that there was no question at that time that the PCA high range offence conviction had not been spent by reason of the Criminal Records Act 1991 (NSW) ss 7 and 9 (see [34]). 117 On a review, the tribunal may exercise all the powers the discretions conferred on the person who could make the original decision pursuant to s 43(1) of the AAT Act. Formation of the opinion required by s 290(2)(c) could relevantly be affected by the tribunal's perception of Mr Seymour's conduct in making his original application to the predecessor of the Authority, the Board. 118 A person who knows that he has been convicted of an offence, such as the high range PCA offence committed by Mr Seymour, and is asked whether he or she has any previous convictions, can fail to disclose the defence for a number of reasons. There may be some genuine lapse of memory, for example, but the person in the position of the original Board or now the Authority, who receives an answer that there have been no previous convictions of the person, when that is incorrect, can take the view, after affording the applicant an opportunity to be heard, that the failure to answer candidly reflects on either or both of that person's integrity or their fitness and propriety to give immigration assistance. Under the now repealed ss 291 and 292(1)(a) (which were in force in 1993) Mr Seymour's application for registration had to be referred to the Board itself for its consideration because he had been convicted of the high range PCA offence. 119 A person's candour about his or her faults or misdeeds in circumstances in which direct questions are asked that, if honestly answered, would reveal those past events, may be critical to the formation of the opinion required under s 290(2)(c). In the case of a legal practitioner, a failure to disclose a previous conviction for dishonesty, can have very serious consequences upon the person's entitlement to retain the right and privilege of admission to practice in the profession once it is later found that there had been such a failure: In Re Davis [1947] HCA 53 ; (1947) 75 CLR 409. As Dixon J there said (75 CLR at 426) albeit in the context of the more serious crime of housebreaking for the purpose of theft, a prerequisite for admission to the legal profession would be a complete realization by the applicant of his or her obligation of candour to the Court in which he or she desired to serve as an agent of justice. 121 I am of opinion that it was open to the tribunal to have regard to the false answer which Mr Seymour had given in his original application to the Board lodged on 8 February 1993 in which he denied ever having been convicted even though he had been the subject of a criminal conviction a little over 2 years beforehand. Mr Seymour's answer to the accusation of having failed to disclose the high range PCA offence in the initial application for registration was that he had consented to the Board making enquiries of the Police for a criminal records check which would have revealed the offence. 122 As is implicit in the tribunal's finding, it was not satisfied that that was a sufficient explanation for the failure to disclose in the first place (cf: Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592). There was no error of law in the tribunal's approach. 124 On the administrative 'appeal', the reviewing body, be it the tribunal, or some other body, is in the position of exercising afresh the powers of the original decision-maker. 125 In Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307 at 314-316, Bowen CJ and Smithers J at 337 (Deane J dissenting at 344) held that s 25 of the AAT Act allowed the tribunal to review a 'decision' where the person who purported to make the decision had no power to do so. Both Bowen CJ and Smithers J pointed out that a construction of s 25 of the AAT Act which required the decision the subject of an application before the tribunal for review to be legally valid and effective would create practical problems and inconvenience. And as Hely, Gyles and Allsop JJ held in Minister for Immigration v Ahmed [2005] FCAFC 58 ; (2005) 143 FCR 314 at 322 [33] it is clear that, unless a statute provides otherwise, the tribunal can review a decision which was not authorized by law or by statute. 126 Here, on 14 February 2005 the Authority wrote to Mr Seymour notifying him that '... the Authority has made the decision to refuse your application for registration. At that time, no one was aware that there had been no formal delegation to the actual decision-maker to make that 'decision'. Mr Seymour immediately applied on 17 February 2005 to the tribunal to review the 'decision' and on 14 April 2005 the tribunal granted a stay of the 'decision' which had the effect of permitting Mr Seymour to continue to act as a migration agent. 127 Only a court can decide authoritatively whether or not an administrative decision was legally valid or effective: Plantiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 505-506 [75] - [76] , 513-514 [104]; cf Minister for Immigration v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597 at 605 [13] per Gleeson CJ, 614-615 [51] per Gaudron and Gummow JJ, 618 [63] per McHugh J. 128 One reason why prerogative relief or constitutional writs issue when a decision is found to have been affected by jurisdictional error, even though it is 'regarded in law, as no decision at all' ( Plaintiff S157/2001 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 at 506 [76] ) is to provide an authoritative and legally binding judicial determination which recognizes that the decision has no legal effect. Of course, it could be said that any such relief or writ is unnecessary because the presence of the jurisdictional error entails the result that there is nothing to quash or upon which to prohibit further proceedings. But the availability of these remedies enables the Court to perform its function of quelling controversies and authoritatively determining that the decision cannot be given effect thereafter. 129 Now when a person such as Mr Seymour, is confronted with a decision which affects him or her or it, two possible avenues of legal challenge are available: one involving the executive power of the Commonwealth through a review in the tribunal under the AAT Act, the other involving the judicial power through proceedings under s 75(v) of the Constitution or s 39B of the Judiciary Act 1903 (Cth) or the Administrative Decisions (Judicial Review) Act 1977 (Cth). 130 It would produce great uncertainty if the result of the majority decision in Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 24 ALR 307; 41 FLR 338, which has stood for over 27 years, were now to be ignored. An example of a consequence of ignoring the settled course of authority in this Court suffices to show the unlikelihood that the Parliament intended such a result. If the original decision were found by the tribunal to have been made by a person without authority to make it or to have been infected by jurisdictional error, and the tribunal then made a decision using its powers under s 43(1) of the AAT Act to stand in the stead of the original decision-maker, the original decision-maker could set the tribunal's decision at nought by making a new decision on the basis that, notwithstanding that the tribunal had a full hearing on the merits, its decision was no decision at all. Rather than providing the subject with an effectual means of redress against the use of the executive power, the AAT Act would be turned into an instrument of uncertainty. Such a result cannot have been intended by the Parliament. Rather, I am of opinion that the intention of the Parliament in enacting the AAT Act was to enable the tribunal to review decisions which were affected by jurisdictional error as well as ones where there was some, even unknown, defect in the decision-maker's capacity to make the decision in question. Certainly this view has been taken in a number of cases--notably by the Privy Council in De Verteuil v. Knaggs ([1918] AC 557); Pillai v. Singapore City Council ([1968] 1 WLR 1278 at p 1286) and by the Supreme Court of Canada in Re Clark and Ontario Securities Commission ((1966) 56 DLR 92d) 585) and King v. University of Saskatchewan ((1969) 6 DLR (3d) 120); cf. Denton v. Auckland City ([1969] NZLR 256) and Leary v. National Union of Vehicle Builders ([1971] Ch 34) where the contrary view was taken. In this conflict of authority my preference is for the approach taken by the Privy Council and the Supreme Court of Canada: first, because the party affected has elected to treat the administrative decision as a valid, though erroneous decision, by appealing from it, in preference to asserting his right to a proper performance by the authority of its duty at first instance; and secondly, because in some cases the court will be compelled to take account of the public interest in the efficiency of the administrative process and the necessity for reasonably prompt despatch of public business and balance that interest against the countervailing interest of the individual in securing a fair hearing--in appropriate cases that balance will be achieved if the individual secures a fair hearing on his appeal. He should not be allowed to have the opportunity to approbate a favourable review or reprobate an unfavourable result as he chooses (see too: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; (1993) 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 99 per Barton ACJ, at 116 per Isaacs J (with whom Rich J agreed at 148)). Their role is to explain in the decision-maker's own words why he or she or they arrived at the result. Administrative decision-makers are not necessarily or, I apprehend, usually trained lawyers with a keen eye to what court might find revelatory of an error of law (cf: Immer (No 145) Pty Ltd v Uniting Church in Australia Property Trust (NSW) [1993] HCA 27 ; 182 CLR 26 at 41-42 per Deane, Toohey, Gaudron and McHugh JJ; Meyers v Casey [1913] HCA 50 ; (1913) 17 CLR 90 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ). The court cannot acquire jurisdiction to review a decision if the tribunal merely makes an error of fact ( Waterford v The Commonwealth ((1987) [1987] HCA 25 ; 163 CLR 54 at 66 per Mason and Wilson JJ, 77 per Brennan J). 134 Here, the tribunal had the benefit of the judgment of Buddin J. That revealed not only matters which went to the issues under s 290(2)(c) but also to those under ss 290(2)(h), namely any other matter relevant to Mr Seymour's fitness to give immigration assistance. It would be open to the tribunal to rely, as it did in [37]-[38] on the objective facts of Buddin J's decision and sentence irrespective of the technical, legal issue which it addressed, and I have also considered, as to whether the contempt was a 'criminal offence' for the purposes of either or both of ss 290(2)(c) or 312(1)(e). Even if the contempt was not a criminal offence, I am of opinion that the tribunal did not err in having regard to the findings and conclusions of Buddin J in his judgment (cf: Minister for Immigration v SRT [1999] FCA 1197 ; (1999) 91 FCR 234 at 244-245 [42] - [48] per Branson, Lindgren and Emmett JJ). 135 And, the tribunal's reasons show that it did examine 'the whole position': A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 266 [18] . Despite Mr Seymour's submissions, I am not satisfied that the tribunal made any error of law in approaching its task of making an evaluation of the particular facts and circumstances before it concerning him and in making its decision as to its satisfaction under s 290(1). The tribunal considered the detailed subjective and objective circumstances of Mr Seymour's offending behaviour (cf: 216 CLR at 268 [22]) in the context of the whole of its reasons, before expressing its conclusion at [37]-[38]. The tribunal is not obliged to set out every detail of its reasoning process ( Re Ruddock; Ex parte S154/2002 (2003) 201 ALR 437 at 449 [54] per Gummow and Heydon JJ, Gleeson CJ agreeing at 438 [1] applying Commissioner for Australilan Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 592. There Northrop, Miles and French JJ held that a decision-maker could rely on an obvious and natural evaluation of admitted facts to decide that an applicant was not a fit and proper person). 136 Of course, the tribunal's 'satisfaction' as to Mr Seymour is not unexaminable, but its decision as to that matter is of a subjective nature: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 275-277 per Brennan CJ, Toohey, McHugh and Gummow JJ. And, in exercising its functions, the tribunal stood in the Authority's shoes and, pursuant to s 43(1) of the AAT Act that included the requirements in considering Mr Seymour's application, to act according to substantial justice and the merits of the case free from technicalities, legal forms or rules of evidence (see s 311 of the Act). Here, the question was the tribunal's personal satisfaction and it was free to attribute such weight to factors as it saw fit (185 CLR at 281). 137 I am of opinion, having regard to the reasons it gave, that when the tribunal made its evaluation of Mr Seymour at [37]-[38] it did so on a separate and independent basis from the vexed question of whether the contempt was a criminal offence. That is clear because the tribunal at [38] put the question of the nature of the contempt to one side and referred to the objective facts before Buddin J and the seriousness which his Honour attached to the conduct of Mr Seymour as reflected in the substantial sentence imposed. There is no error of law in what the tribunal did in this regard. 138 It was for the tribunal to form its own state of satisfaction under s 290(1) as to the fitness and propriety or integrity of Mr Seymour. In doing so, it took into account matters under s 290(2)(c) and (h) independently of one another; that is, first, it considered that the contempt was a criminal offence thus enlivening ss 290(2)(c) and 312(1)(e) but secondly, and separately, it considered the objective facts revealed by the judgment of Buddin J, thus acting under s 290(2)(h). 139 In the second of these approaches to forming an opinion under s 290(1) the tribunal was entitled to have regard to, and form its own view as to, Mr Seymour's behaviour, as revelatory of the issue under s 290(1). It considered how he submitted, as it suited his own apparent self interest, in the Court of Appeal that contempt of the injunction was a criminal offence --- thus having the benefit of the principle that there is no appeal against an acquittal --- and in the tribunal, that it was not a criminal offence --- and so avoiding ss 290(2)(c) and 312(1)(e). Of course, each of those stances may have been legally open. But it was for the tribunal to be satisfied that a person who could adopt such flexibility about the very serious matter affecting him in the different contexts of the Court of Appeal and the tribunal, where different and opposite characterizations suited his purpose, was a person of integrity or was fit and proper within the meaning of s 290(1). 140 There is no error of law in the evaluative process which the tribunal took. It had regard to both the unmeritorious and the meritorious factors under s 290. It referred to the fact that Mr Seymour's contemporaries regarded him as a person having real moral worth but it weighed that against his history of being struck off as a solicitor, the lack of explanation for and the fact of the consent injunction in 1994 and the conviction and sentence by Buddin J. 141 It was open to the tribunal to have regard to Mr Seymour not explaining why he consented to injunctions 12 years after his striking off that he would not act as a solicitor. Again, it was open to the tribunal to see this lack of explanation, in combination with the other matters it took into account in [37]-[38] as revelatory of integrity and of fitness and propriety, just as in In Re Davis (1947) 75 CLR 407; and see too A Solicitor v Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 267-268 [20] - [21] . Moreover, the underlying facts of the 1994 injunction were relevant. The tribunal had earlier found ([13]) that Mr Seymour was vague when asked to recount them. 142 I can see no error of law (and a good deal of common sense) in the clear inference drawn by the tribunal that Mr Seymour had purported to act as a solicitor before Blanch J made his order. Mr Seymour had knowledge of the facts and he cannot complain that having failed fully and clearly to provide them to the tribunal, it drew inferences against him: cp: Blatch v Archer (1774) 1 Cowp 63 [98 ER 969]; R v Burdett (1820) 4 B & Ald 95 [106 ER 873]; Weissensteiner v The Queen [1993] HCA 65 ; (1993) 178 CLR 217 at 225 per Mason CJ, Deane and Dawson JJ, 233 per Brennan and Toohey JJ; Azzopardi v The Queen [2001] HCA 25 ; (2001) 205 CLR 50 at 74-75 [65] - [67] per Gaudron, Gummow, Kirby and Hayne JJ; see too Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418E-G per Handley JA; Temora Shire Council v Stein (2004) 134 LGERA 407 at 424 [52] per Giles JA, [56] per Hodgson JA, 425 [62] per Pearlman AJA; see too Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 ; (2000) 200 CLR 121 at 142-143 [51] per Gleeson CJ and McHugh J. 143 I am satisfied that in [38] the tribunal was expressing an independent and freestanding reason for being satisfied, pursuant to s 290(1), that Mr Seymour was not a fit and proper person regardless of the proper characterization of whether his contempt was a criminal offence. Since there is no error of law in the way in which the tribunal arrived at this conclusion, even if it and I be wrong as to the nature of the contempt, the tribunal's decision should stand: SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 184 [80] per McHugh J, 212 [211] per Hayne J with whom Kirby J agreed at 203 [174]; SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [231] - [233] per Allsop J, Weinberg agreeing at [155]. I certify that the preceding one hundred and forty-four (144) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

application to re-register as migration agent whether applicant not a person of integrity or otherwise a fit and proper person to give immigration assistance where decision of migration agents registration authority held to be invalid by administrative appeals tribunal where administrative appeals tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance failure to disclose prior charges and convictions failure to disclose contempt of court failure to disclose prior criminal offence whether conviction spent for purposes of s 290 of the migration act 1958 (cth) tribunals administrative appeals tribunal jurisdiction appeal by applicant to administrative appeals tribunal application to re-register as migration agent whether applicant not a person or integrity or a otherwise fit and proper person to give immigration assistance where decision by migration agents registration authority held to be invalid by administrative appeals tribunal effect of invalidity of decision by original decision maker where administrative appeals tribunal found applicant not to be a person of integrity or otherwise a fit and proper person to give immigration assistance whether conviction for contempt by the supreme court of nsw a conviction of 'a criminal offence' pursuant to s 290(2)(c) of the migration act 1958 (cth) whether conviction of contempt by the supreme court of nsw a conviction 'of an offence under a law of a state' pursuant to s 312 (1) (e) of the migration act 1958 (cth) whether contempt charged was criminal or civil whether distinction between criminal and civil contempt otiose migration agent administrative law contempt

The applicant, Mr Goodman, brings this representative proceeding against the respondent, his former investment adviser. The proceeding is being carried on by the Australian Securities and Investments Commission in the applicant's name pursuant to s 50 of the Australian Securities and Investments Commission Act 2001 (Cth). At the moment the action cannot proceed. The reason is that the respondent is being wound up. Section 471B of the Corporations Act 2001 (Cth) provides for the stay of proceedings against a company that is being wound up except with the leave of the court. The present application is for the grant of leave nunc pro tunc . 2 The respondent carried on the business of providing financial services, including giving advice in relation to financial services. The applicant contends that, on the advice of the respondent, he purchased an "investment product" (a promissory note) that had been issued by a company in the Westpoint group. When the Westpoint group collapsed he lost a considerable sum of money. He claims that the respondent's advice was given negligently and in breach of its obligations to act honestly and fairly as required by s 912A of the Corporations Act . There are alternative claims in negligent misstatement, misleading or deceptive conduct and breaches of other provisions of the Corporations Act . The group the applicant represents comprises other persons (it is believed there are 78 in all) who were clients of the respondent and, as a result of advice they received, invested in one or more Westpoint products. In aggregate those investors have lost in excess of $7 million. 3 The reason the applicant seeks leave to bring an action against an insolvent company is that the respondent has insurance cover which may indemnify it in respect to the claims being advanced by the applicant and the group members. If leave is granted and the claims are covered by insurance, the unsecured creditors of the company will suffer no prejudice: see s 562 of the Corporations Act . 4 The issue that I must be satisfied about is whether the applicant's claim against the respondent (and at least to some extent the respondent's claim against the insurer) is sufficiently serious to be allowed to proceed. The liquidator should not be vexed with the obligation to fight a hopeless case and incur unnecessary expenditure. While I have not formed any firm view about the merits of the case, Mr Shaw has shown that the applicant's claim has a solid foundation, as does the respondent's claim for indemnity against the insurer. I do not propose to say a lot about the claims as it is likely that they will be hotly contested, butI do make the following observations. 5 The essence of the applicant's claim is that the respondent failed to exercise due diligence in investigating the characteristics of, and risks associated with, the Westpoint products prior to giving advice to the applicant and members of the group. My impression is that the applicant's claim has merit and that it is sufficiently serious to be allowed to proceed. 6 The respondent's claim against the insurer is more complex. It appears not to be in issue that the respondent has a policy that protects it from "civil liability ... arising from any claim first made... as a result of a breach of professional duty in the conduct of the insured's profession". The policy provides that the "insured's profession" is "investment advisors/financial planners, life insurance consultants and mortgage originators/brokers". The applicant's case is that the respondent gave advice in relation to Westpoint products as an investment advisor or financial planner and that therefore the insurance policy is enlivened. Although the insurer has not formally accepted or denied liability, its conduct suggests that it will deny liability on the basis that the respondent acted dishonestly and recklessly. I am not in a position to comment on the merits of this allegation, but these kinds of allegations are usually difficult to make out. 7 There is another issue. Prior to the applicant commencing the proceeding, the respondent notified the insurer of its potential liability by lodging claim forms during the period 31 October 2005 to 31 October 2006. A claim form lodged in April 2006 attached a list of clients who had invested in Westpoint products. The list did not include all group members (the insurer was only informed of the other group members' claims after the insurance policy had lapsed). Mr Shaw says the respondent is nevertheless covered by the insurance policy by reason of s 40 (3) of the Insurance Contracts Act 1984 (Cth). Accordingly the insurer is not relieved of its liability by reason of the fact that some claims were made after the expiry of the insurance policy. This is a respectable argument. Presumably it is one ASIC will have to finance if the argument is to be run in court. 8 In the circumstances the applicant should have leave nunc pro tunc to begin and proceed with this proceeding.

company being wound up application for leave to bring action against company claim covered by insurance corporations

Each application was adjourned to 14 December 2009 to enable the parties to make further submissions as to the form of orders to be made including orders as to costs, in light of the reasons for judgment. Short submissions were received as to those matters. Having regard to the reasons for judgment, the appeal of each taxpayer from the Commissioner's appellable objection decision is to be allowed. Section 14ZZP of the Taxation Administration Act 1953 (Cth) provides that the Court may make such order in relation to the appellable objection decision as it thinks fit including an order varying the decision. It seems to me that the appropriate orders are these: The appeal be allowed. The objection decision of the respondent dated 27 October 2006 is varied by setting aside the disallowance of the applicant's objection to the respondent's Amended Assessment the subject of para 1 of the application filed on 15 December 2006 and substituting for that decision, a decision allowing the objection of the applicant. The Commissioner of Taxation is directed to issue an Amended Assessment taking account of the reasons for judgment published on 30 November 2009. As to the question of costs, the applicants initially sought an order for indemnity costs although that matter has not been pressed. The appropriate order is an order that the respondent pay the costs of each applicant of and incidental to the application. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of submissions in relation to the form of orders to be made arising out of the publication of reasons for judgment in clark v commissioner of taxation [2009] fca 1401 on 30 november 2009 taxation

In these reasons I have drawn heavily on written submissions made by the parties before the hearing on 14 December 2007. I will do so without further detailed attribution. The matter involves a dispute between two battery manufacturers (it is a gloss on the evidence to describe them as manufacturers but the details are immaterial). One alleges the other was advertising and otherwise promoting for sale its batteries in a way that involved misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1976 (Cth) ("the Act"). The impugned advertising and promotional material involved a comparison between the performance of the respondent's batteries and the performance of the applicant's batteries. 2 The history of the litigation is as follows. On 28 November 2007, the applicant approached the duty judge who granted leave to the applicant to file the application, statement of claim and affidavits in support and made the matter returnable before the duty judge at 2.15pm on 30 November 2007 for the hearing of the claim for interlocutory relief. An order was also made that certain of the applicant's exhibits (including the results of tests conducted by the applicant on the respondent's batteries) remain confidential to the external legal representatives of the respondent until further order. 3 On 30 November 2007, the respondent informed the Court that it was not ready to proceed with an interlocutory hearing on that day and was not in a position to do so the following Wednesday or Friday or "for some little time to come". The respondent indicated that it wanted an urgent final hearing of the matter. The matter was adjourned to 6 December 2007 on the basis that the applicant would apply to have the matter heard on that day. The matter was then allocated to my docket. 4 On Thursday, 6 December 2007, the matter came before me. The applicant sought to commence the hearing of its interlocutory application. The respondent opposed this course of action on the basis that it was not ready to proceed and could not be ready to proceed until Monday, 10 December 2007, at the earliest. The respondent again indicated its willingness to agree to an early final hearing. I then fixed the hearing of the interlocutory application for the following day. 5 The interlocutory hearing commenced on 7 December 2007. During the course of the hearing, the respondent offered to undertake to remove one of the contentious forms of advertising, namely the billboards, within a period of 5 days but only if the applicant desisted from seeking any further interlocutory relief. The applicant did not accept that offer. The proceedings did not finish on that day and were adjourned for further hearing to the next available Court date, namely 14 December 2007. 6 Shortly after the hearing for interlocutory injunctive relief resumed on 14 December 2007, I invited the parties to consider whether the interlocutory hearing might transform into a final hearing on the basis that I would make final orders that day disposing of all issues between the parties. I suggested this course for several reasons. First, I doubted, as I indicated to the parties, that further additional evidence would be necessary to enable the resolution of the issues on a final basis. Secondly, I had formed the preliminary view that on the evidence presented to that point, the respondent was able to make claims about the comparative performance of its batteries of the type alluded to in the advertising and other promotional material. However, I had also formed the preliminary view that the form of advertising and promotion actually used by the respondent to convey the comparative performance of its batteries was misleading and deceptive. I communicated at least aspects of these views to the parties. In the result, both the applicant and the respondent agreed to the transformation of the proceedings, with the applicant doing so on the basis that it accepted that the respondent could make a comparison between its batteries and one of the types of batteries made and sold by the applicant. 7 The batteries manufactured by the applicant are, relevantly, of three types. They are Energizer e 2 Lithium, Energizer e 2 Advanced and Energizer Max. Each is sold, relevantly, in two sizes, namely AA and AAA. Of these batteries only the Energizer Max is an alkaline battery. The respondent's battery is called Varta High Energy and is sold, relevantly, in the same two sizes, namely AA and AAA. It is an alkaline battery. The applicant ultimately accepted that the respondent could claim that both sizes of the Varta High Energy battery would last as long as the equivalently sized Energizer Max battery but alleged, correctly, that the same comparison could not be made in relation to the Energizer Lithium battery and the Energizer Advanced battery. 8 The evidence concerning the applicant's testing was to the following effect. The test results were detailed in a table entitled "Comparative Performance Summary" that was reproduced at pages 1-2 of Confidential Exhibit TM-2, exhibited to the affidavit of Anthony Mazzola and at pages 1-2 of Confidential Exhibit GRC-2, exhibited to the affidavit of Graeme Randall Clench. The testing was undertaken by reference to the applicable international standards (drawn from the International Electrotechnical Commission ("IEC") and the American National Standards Institute ("ANSI")) against which battery performance is traditionally assessed. Different tests measure the length of time a battery lasts when used in connection with different electronic devices such as high drain devices (for example, portable mp3 or tape players and cameras) and low drain devices (such as radios). The testing can take between 4 and 6 weeks. 9 The test results that were compiled in the "Comparative Performance Summary" compared the performance of different batteries in relation to the Varta High Energy battery. In the "Comparative Performance Summary", Varta High Energy, the battery against which others were tested, was given a base figure of 100%. The performance of other batteries that were tested in comparison to the Varta High Energy battery was expressed as a percentage of this base figure. 10 If a tested battery's performance was superior to that of the Varta High Energy battery (i.e. it lasted longer than the Varta High Energy battery), that particular test battery was given a figure greater than 100%. Conversely, if a tested battery's performance was inferior to that of the Varta High Energy battery (i.e. it did not last as long the Varta High Energy battery) that particular test battery was given a figure less than 100%. Given the applicant's concession on this issue, this submission can be accepted. 13 I turn now to consider the advertising and promotional material. Central to the applicant's case was the packaging in which the Varta High Energy batteries were offered for sale. In my opinion, by making the comparison on the yellow sticker that the Varta High Energy batteries lasted as long as Energizer and Duracell without identifying, as to Energizer, that the comparison did not include Energizer Lithium and Energizer Advanced and was restricted to Energizer Max, the packaging was plainly misleading and the conduct of the respondent in offering its batteries for sale in this packaging was misleading and deceptive. The fact that the comparison on the yellow sticker was only truthful if made in relation to Energizer Max was not made apparent by the reference to the comparison with the Energizer Max on the back of the pack. The comparison on the yellow sticker was on the front of the pack, which would ordinarily be the face of the pack seen by the consumer before selecting for purchase the batteries in the pack. The observations on the back of the pack were not averted to on the front of the pack and were in no way prominent. It is improbable that a consumer would have noticed those observations and understood the relevant qualification to the unqualified comparison appearing on the yellow sticker on the front of the pack. 15 In relation to the above evidence, the respondent sought to argue that a reasonable consumer would understand that the comparison was limited to alkaline batteries, and on that basis, would be with Energizer Max only. It also sought to argue that the price of the Varta High Energy battery would point to the comparison being with Energizer Max only, a comparably priced product. 16 Where a representation is made to the public, the relevant test in determining whether the representation is misleading or deceptive is whether 'ordinary' or 'reasonable' persons of the section of the community to whom the conduct has been directed (in this case consumers) are likely to be misled or deceived: Campomar Sociedad, Limitada v Nike International Limited [2000] HCA 12 ; (2000) 202 CLR 45 at 85-86; Astrazeneca Pty Limited v GlaxoSmithKline Australia Pty Limited [2006] FCAFC 22 at [37] . I do not accept the respondent's argument that a reasonable consumer would understand that the comparison on the yellow sticker was limited to alkaline batteries and, on that basis, would be with Energizer Max only. Nor do I accept the respondent's argument that a reasonable consumer would understand that the price of the Varta High Energy battery would point to the comparison being with Energizer Max only, a comparably priced product. Indeed, the foregoing submissions attribute to consumers a level of knowledge about the composition of batteries and their pricing which, in my opinion, is not realistic. 17 The advertising and promotion undertaken by the respondent also included instore display bins, counter units containing Varta High Energy batteries and streetside billboards at various locations. The display bins and counter units had the following features. • There was no reference in the billboards to the word "Alkaline" and there was no reference to equivalent wording to that which appeared on the back of the Varta High Energy battery pack next to the asterisk (i.e. that the claim was based on comparative testing of Energizer Max and Duracell CopperTop batteries). 19 Internal documents of the respondent indicated that consideration was given to including in the billboards the statement on the back of the battery pack to the effect that the claim was " [b] ased on testing of .... Varta High Energy (made in Germany), Energizer Max and Duracell CopperTop ..." but a decision was made to proceed without those words. 20 In my opinion the billboards and the instore material would have likely deceived or misled 'ordinary' or 'reasonable' consumers (see Campomar at 85-86; Astrazeneca at [37]) given that the billboards and instore material did not in any way indicate that the comparison on which the performance claim was based was with Energizer Max batteries only. Order that on and from 23 January 2008 the Respondent whether by its servants or agents or otherwise be permanently restrained from supplying or distributing Current Varta High Energy AA or AAA Batteries in Current Varta High Energy Packaging. Order that on and from 21 December 2007 the Respondent whether by its servants or agents or otherwise be permanently restrained from exhibiting or causing to be exhibited or permitting to be exhibited any Current Varta High Energy Billboard. Order that on and from 4.00pm on 17 December 2007 the Respondent whether by its servants or agents or otherwise be permanently restrained from supplying or distributing any Current Varta High Energy Promotional Material. Order that on and from 23 January 2008 the Respondent whether by its servants or agents or otherwise be permanently restrained from making any representation in trade or commerce that or to the effect that Current Varta High Energy AA or AAA Batteries last as long as Energizer or Duracell. Order that the Respondent by 21 December 2007 issue instructions to the head offices of all retail stores in which the Current Varta High Energy Promotional Material is displayed to remove from that material the words "Lasts As Long As Energizer & Duracell". Costs be reserved. Reserve for later determination, if necessary, any question of damages. I declined to make the declarations as I did not view them to be necessary given that injunctions would issue restraining the respondent from engaging in the misleading and deceptive conduct (orders 2 to 5 above) and additionally, because the orders sought by the applicant were cast in too general terms. 23 I declined to make the orders concerning the over-sticking for essentially two reasons. The first was that it appeared to me potentially impracticable to require that to be done in what would have effectively been a period commencing the week before Christmas. The second was that I had formed the view that the proceedings could have been brought by the applicant earlier and it would, in all the circumstances, have been unjust to impose on the respondent the burden of complying with the order. In other circumstances it would have been an appropriate order, particularly given that I had gained the impression from the evidence (which is mainly unnecessary to detail) that the respondent had made a conscious decision (aided by legal advice) to steer a line of saying as little as possible about the basis of the comparison on which its promotion and advertising was based, even if in doing so, there was a real and obvious risk of contravening the Act. The fact that the respondent had embarked upon this course was starkly illustrated by the fact that it did not follow the form of advertising and promotion used in the United States of America. Indeed, in advertising and promoting Varta High Energy batteries in the United States, the respondent fairly clearly revealed to consumers the nature of the comparison (namely that Varta High Energy batteries last as long as Energizer Max batteries), while in Australia, the respondent had prepared art work (which it later decided not to adopt) for stickers which in substance replicated the United States' model for advertising and promoting Varta High Energy batteries. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

alleged contravention of section 52 of the trade practices act 1974 (cth) conduct likely to mislead or deceive comparative advertising representations as to superior performance of a particular battery based on comparative testing whether there was a basis for such representations trade practices

2 The required notice of the non-claimant application has been given under s 66 of the Native Title Act . The period specified in the notice commenced on 9 March 2005 and expired on 8 June 2005. On 12 May 2005, within the notification period, the Parkinsons notified the Court in writing that they wanted to become parties to these proceedings. 3 The non-claimant application was filed by Mr Hillig ('the Administrator'), the administrator of Worimi Local Aboriginal Land Council ('the Land Council'), for the purpose of obtaining an approved determination, pursuant to s 13 of the Native Title Act , that no native title exists in relation to the land described as Lot 576 in Deposited Plan 48823 ('the land'). The land is in the local government area of Port Stephens, New South Wales. There has been no determination to date that native title exists in relation to the land. 4 The Land Council has owned the land in fee simple since 16 March 1998 having made a successful claim pursuant to the provisions of the Aboriginal Land Rights Act 1983 (NSW) ('the NSW Act'). The transfer of the land to the Land Council was conditional on s 36(9) of the NSW Act. Section 36(9) provides that any transfer to an Aboriginal land council is subject to any native title rights and interests existing in relation to the land. Sections 40 and 40AA of the NSW Act prevent the Land Council from dealing with land vested in it if the land is subject to native title rights under s 36(9) unless the land is the subject of an approved determination of native title under the Native Title Act . 5 Section 61 of the Native Title Act specifies that applications, including ' native title determination application [s]', may be made to the Federal Court by a person who holds a non-native title interest in relation to the whole of the area in relation to which the determination is sought. Section 223 defines native title. 6 The Parkinsons appeared in person without legal representation. • Before acquiring the property, the Parkinsons conducted searches with respect to the land. It was then a dedicated public reserve and this status was affirmed by the New South Wales Department of Land and Water Conservation. They claim that they relied upon written representations from the Department of Land and Water Conservation, the Department of Urban Affairs and Planning, the Minister for Aboriginal Affairs and on representations in a 1980 New South Wales Government Gazette that the land would remain a reserve. • The Parkinsons asserted that it was "in the public interest" that they be joined because they had been led astray by the New South Wales government. • The Parkinsons fear that any development of the land may ' impinge on our light, air flow, privacy, views and general ambience for which we and others paid ' , may cause air and noise pollution during construction, may detrimentally affect their home's foundations and may result in a substantial decrease in the value of their property. • The Parkinsons purport to seek to be parties to the proceedings on behalf of other adjoining owners and nearby residents. • A petition has been presented to Port Stephens Council bearing 460 signatures asking the Council to take steps to "protect" the land and prevent development. As a party, the Parkinsons would be able to oppose the Administrator's non-claimant application. It appears that the Parkinsons wish to intervene in these proceedings so as to impede the sale of the land by the Land Council, in the hope that the land would then not be developed. 9 The Administrator opposes the Parkinsons' application for joinder. On 18 November 2005, I referred the Parkinsons' joinder application to Deputy District Registrar Kavallaris for confidential case management. Registrar Kavallaris listed the application for hearing on Tuesday 13 December 2005. 10 In order to determine whether the Parkinsons are entitled to be joined in the proceedings, I received an affidavit and written and oral submissions from them and from the Administrator. The second respondent, the New South Wales Native Title Service Ltd also opposes the joinder of the Parkinsons but made no oral or written submissions. The first respondent, the Minister for Lands for the State of New South Wales, neither opposes nor supports their joinder and made no submissions. 11 Save for one matter that was not relevant to these proceedings, there was no objection by Mr Wright, who appears for the Administrator, to the matters raised by the Parkinsons in submissions being treated as admissible evidence. 12 Mr Wright submits that the Parkinsons have failed to establish that they possess an "interest" in relation to the land within the meaning of s 253 of the Native Title Act and that such failure is fatal to their claim to possess an interest within the meaning of s 84(3)(a)(iii) of the Native Title Act . Rather than an interest relevant to the determination as to the existence or otherwise of native title in the land, Mr Wright submits that the Parkinsons' interest is an intellectual concern in the possible development of the land by a future purchaser. He argues that their interest is in the nature of a land and environmental planning issue. He says that the matters that they raise are not relevant to a determination of the existence or otherwise of native title. 14 Section 84 of the Native Title Act prescribes the parties to a native title determination application. A person may become a party to proceedings pursuant to sections 84(3) and 84 (5) (but subject to s 84(8)) if the Court is satisfied that his or her interests may be affected by a determination in the proceedings and written notice is given to the Court within the notification period (s 66) that the person wants to become a party to the proceeding. The latter condition has been established. 15 The Full Court held in Byron Environment Centre Incorporated v Arakwal People (1997) 148 ALR 46 that interests which could entitle a person to become a party to the application under s 84 are not confined to the interests referred to in s 253 of the Native Title Act in relation to land or waters. The nature and content of the right also suggests that the interests must be capable of clear definition and, equally importantly, that they are of such a character that may be affected in a demonstrable way by a determination in relation to the application. Whilst the interests must be genuine and not indirect, remote or lacking substance, there is no indication that, for example, a person who has a special, well-established non-proprietary connection with land or waters which is of significance to that person is not to be regarded as having interests that may be affected by a determination. To the contrary, the consensual objects of the Act would seem to be advanced if a person with genuine interests of that nature that might or would be affected did have the rights of involvement in the process of native title determination given by the Act to a person who is a party. Each case will of course turn on its own facts and whether or not interests will or may be affected will depend upon an assessment of the interaction between the interests asserted by a person who wants to be a party and the nature and extent of the native title rights and interests claimed. 19 In Wilson (on behalf of the Bandjalang People) v Minister for Land and Water Conservation (NSW) [2003] FCA 307 ; (2003) 198 ALR 238, two applications for a determination of native title of adjoining areas of land and water were lodged by the applicant, the Bandjalang people. Included among the respondents to the second claim were a number of members of the New South Wales Farmers Association, none of whom had any interest in the lands the subject of the first claim but who had interests of various types in parcels of land within the second claim. The farmers sought to be joined as parties to the first claim or that the claims be consolidated. Hely J held it would be inconsistent with the scope and purpose of the Native Title Act to allow the joinder of the farmers. The farmers' interests, being the occupancy rights in relation to the adjoining land, would not have been directly affected by the final determination of the Court in Bandjalang #1 and, at best, there was only a possibility that their interests could have been affected. 20 In Chapman v Minister for Land and Water Conservation for the State of New South Wales [2000] FCA 1114 , Emmett J considered an application for the removal of parties to a native title determination. Those respondents were owners of land adjoining the claimed area. The issue was whether ' the right that the owner of such land exercises and the interest that that right represents [were] anything other than the public right of access over or use of part of the Claimed Area . ' His Honour held at [12] that it was not. This was because the interest of the respondents in the adjoining land was not the subject of any claim or consideration in the proceedings. Emmett J acknowledged, as a theoretical possibility, that the determination of the claim could have some effect on the value of the respondents' adjoining land by interfering with the public right of access over or use of the claimed area. However, his Honour ordered that those respondents cease to be parties of the proceedings because his Honour was satisfied that their interest, that the public right of access not be interfered with, would be properly represented in the proceedings by other respondents. 21 The Parkinsons have no legal or equitable interest in the land or any ' charge, power or privilege over or in connection with the land '. Unlike in Chapman, where the adjoining landowners had an actual or existing interest in the claimed land, which would become subject to any native title upon a native title determination, the Land Council owns the land in fee simple. The Parkinsons cannot claim a public right of access over or use of the area. 22 The determination of native title in these proceedings does not involve consideration of the interests of the Parkinsons in their property. The Parkinsons' "interest" is in relation to the consequences of a potential use of the land. 23 While there is no evidence before me as to the nature of the intentions of any proposed purchaser of the land, the parties have agreed that I am entitled to draw the inference that the land may be developed if there is a finding that no native title exists over the land. It may be that a determination in favour of the Administrator allowing for the sale of the land will have some effect on the value of the Parkinsons' property as well as on the value of other properties in the vicinity. Subsequent development may affect the value of the Parkinsons' property but whether it will increase or decrease the value and to what extent is mere speculation. 24 Section s 84(3)(iii) specifies that the interests of the persons seeking to be joined must be affected in the proceedings . The Parkinsons have not established that they have any interest in the land which may be affected by the determination of native title. There are a number of processes available to the Parkinsons if and when an application is lodged to develop the land if they have concerns about its impact on them. The New South Wales Land and Environment Court is a venue to resolve their concerns. 25 To test whether the Parkinsons' interest may be affected by the native title determination in these proceedings, it is pertinent to consider how their interest in the land might be affected if it were determined that native title did exist in relation to the land. Subject to local government approvals, the Land Council could, if they chose, develop the land themselves. The native title claim does not of itself protect the Parkinsons' interest. 26 The Parkinsons purchased their property well before the land was transferred to the Land Council in 1998. When I raised this matter with them at the hearing, they replied that they would never have bought their property had they known that the land would not remain a public park or if they had known that that it could be subject to a native title claim. That may have been the case but any remedy for this misapprehension lies outside these proceedings. 27 The right to become a party to proceedings for determination of native title under the Native Title Act is restricted to persons whose interests may be genuinely, demonstrably and not indirectly affected by a determination of native title and which are not remote or so insubstantial that it will be mere speculation as to whether, and if so, how they may be actually affected by the determination ( Byron Environment ). The Parkinsons have no interest in the land. Their interest in their property will not be affected by the determination in these proceedings. Their interest in seeking to prevent development of the land because that may affect their enjoyment of or the value of their property does not satisfy this test. 28 The Parkinsons do not have standing and their application for joinder is dismissed. 30 I have a broad discretion as to costs. It is a discretion that not only must be exercised judicially but also is informed but not governed by s 85A of the Native Title Act . One basis upon which the Court may order a party to bear costs is that the party has engaged in unreasonable conduct as set out in s 85A(2). However, s 85A(2) provides that, even if the Court is satisfied that an act or omission of a party is unreasonable, the power in s 85A(2) is not limited. 32 Mr Wright submits that the Parkinsons have been given every opportunity to reconsider their position at mediation and at directions hearings but have persisted with their application to the point where it has been necessary to seek a formal determination of their application by the Court. He submits that the Parkinsons' unreasonable persistence has resulted in four months' delay and considerable expense. 33 I note that the Parkinsons have had no legal assistance. The Parkinsons gave evidence from the bar table that they were unable to afford counsel (but that they were ineligible for legal aid) and similarly that they would be unable to afford to pay the Administrator's costs should the Court so order. No issue was taken with the form of the evidence and its content was accepted. 34 As I have indicated, while this application for joinder may have been brought with the best intentions, it is misconceived. However, I am satisfied, that the Parkinsons' application did not amount to an abuse of process, nor can it be said to have served little practical purpose ( Davidson v Fesl (No 2) [2005] FCAFC 274). The Parkinsons have stated that at no time were they conscious of the fact that they would not be successful in their application. I am of the view that the Parkinsons acted in good faith in bringing this application. The legal principles involved are by no means simple and I do not think that the Parkinsons' action should be categorised as "unreasonable". 35 In all the circumstances therefore, I make order that each party is to bear his, its and their own 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 to be joined as a party native title act 1993 (cth) s 84(3) whether interests of adjoining landowners affected by determination whether interests indirect, remote or lacking in substance interest is in possible development of the land after determination made native title

In Combis, Trustee of the Property of Peter Jensen (Bankrupt) v Jensen (No 2) [2009] FCA 1383 I ordered that these proceedings be transferred to the Family Court of Australia. The only outstanding matter for decision at this stage relates to costs incurred in the following proceedings: An application by Mrs Jensen for a stay of the proceedings for abuse of process. Mrs Jensen was unsuccessful in respect of this application. A notice of motion filed by Mrs Jensen for leave to amend the Defence and file and serve a Cross-Claim. Mrs Jensen was successful in respect of this notice of motion. The trustee's amended notice of motion in which the trustee sought to strike out various paragraphs of the Amended Defence and Cross-Claim. The trustee was successful in respect of this notice of motion. An application by Mrs Jensen for transfer of the Federal Court proceedings to the Family Court. Mrs Jensen was successful in respect of this application. To that extent the trustee was also wholly successful in respect of its opposition to Mrs Jensen's application for leave to file the Amended Defence and Cross-Claim. Accordingly the trustee is entitled to costs in respect of its notice of motion to strike out various paragraphs of the Defence and its opposition to the Cross-Claim, and also in respect of Mrs Jensen's application for leave to file the Amended Defence and Cross-Claim. Costs of the notice of motion for transfer of the proceedings to the Family Court should be costs in the cause of the trustee's application. Notwithstanding the provisions of O 62 r 3(3) of the Federal Court Rules , the trustee should have leave to tax the costs ordered in his favour, and such costs be paid forthwith because: Mrs Jensen's notice of motion to stay the trustee's proceedings was a discrete application, brought after considerable delay, which failed. The trustee's notice of motion to strike out paragraphs in the Defence and his opposition to para 24 of the Cross-Claim were discrete issues which removed those paragraphs in the proceedings. The trustee's costs in respect of this notice of motion ought not to have been incurred. Such order will not involve multiple taxations. Mrs Jensen has been successful in respect of two applications --- namely her application to file an amended defence and Cross-Claim, and her application to transfer proceedings to the Family Court of Australia. The appropriate order for costs at this stage is that costs be reserved to the trial judge because the trial judge will be in the best position to determine, on a review of the ultimate outcome of the proceedings, whether one or other of the parties had acted unreasonably. Alternatively, as the trustee has been successful in two applications and Mrs Jensen successful in two applications, the appropriate order may be that there be no order as to costs. The reason for this is that if the Court were to award costs to the successful parties on each of the applications, the result would be that the parties would be forced to incur the expense of having their costs assessed with the ultimate resolution most likely being that the costs would effectively cancel each other out. Although the trustee was successful in its application to strike out parts of the Amended Defence and Cross-Claim, in light of the fact that the proceedings have been transferred to the Family Court the strike out application has resulted in no net gain for the trustee. This is because the factual issues raised in the struck out pleadings will be ventilated in the Family Court in any event. Mrs Jensen was successful in her application for the proceedings to be transferred to the Family Court. If the Court is not minded to reserve costs, in the alternative Mrs Jensen is entitled to her costs in respect of the transfer of the proceedings to the Family Court. In any event the general rule as found in O 62 r 3(3) of the Federal Court Rules is that an order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order. The trustee has not demonstrated that the demands of justice require a departure from that general rule. Having considered the helpful and extensive submissions of the parties as to costs, I have formed the view that the appropriate order is that the costs be reserved to the trial judge. I form this view for the following reasons: 1. First, I agree with Mrs Jensen that the trial judge will be in the best position to determine, on a review of the ultimate outcome of these proceedings, the appropriate place for costs to fall. If, for example, the trustee's claim is ultimately unsuccessful the trial judge may well consider that costs should follow the event, including in respect of interlocutory applications. Such a determination is however for the future. 2. Second, at this stage of the proceedings both parties have been successful to varying extents. I am not persuaded by the trustee's submission that the trustee was wholly successful in respect of its opposition to Mrs Jensen's application for leave to file the Amended Defence and Cross-Claim. Indeed, the trustee opposed leave being granted to file the Cross-Claim for reasons other than the material in para 24 of the Amended Defence and Cross-Claim. In particular I note that another major reason for the trustee's opposition to the filing of the Cross-Claim was because the Cross-Claim sought to introduce issues relevant to a s 139ZQ notice served by the trustee previously on Mrs Jensen relating to another property in dispute between them (TS 6 October 2009 p 20 l 11 to p 22 l 41). 3. Third, I am not persuaded by the trustee's submission that costs of the notice of motion for transfer should be costs in the cause of the trustee's application in this court to be transferred to the Family Court. While the trustee had, appropriately, commenced these proceedings in this Court and had a prima facie right to have his claim heard in this Court, Mrs Jensen was well within her rights to apply for an order that the proceedings be transferred to the Family Court. I do not agree that Mrs Jensen sought, unsuccessfully, to have the proceedings transferred to the Family Court at the hearing of 31 March 2009 --- in fact although counsel for Mrs Jensen invited the Court to make the order of its own initiative, no formal application for transfer was made. I do not think that, at this stage, an order should be made that such costs should be costs in the cause and awarded according to the final award of costs in the action (cf comments of Lord Denning in JT Stratford & Son Ltd v Lindley (No 2) [1969] 3 All ER 1122 at 1123). 4. Finally, even were I minded to order costs in favour of the trustee in whole or in part, I am not persuaded that the demands of justice require a departure from the general rule that an order for costs of an interlocutory proceeding shall not entitle a party to have a bill of costs taxed until the principal proceeding has concluded (cf Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312, Life Airbag Co of Australia Pty Ltd v Life Airbag Co (New Zealand) Ltd [1998] FCA 545). Although the trustee was successful in its notice of motion to strike out paragraphs of the Defence and in its opposition to para 24 of the Cross-Claim, the principal proceedings will now continue in the Family Court. In my view it is for the trial judge in that Court to determine where costs should fall, including in respect of the interlocutory proceedings. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier.

s 43(2) federal court of australia act 1976 (cth) interlocutory proceedings previous order that matter to be transferred to the family court whether the trial judge will be in the best position to determine where costs should ultimately fall both parties successful on two interlocutory issues whether departure from the general rule in order 62 rule 3(3) federal court rules 1979 justified costs

The relevance of the documents sought by the creditors must be determined in the context of the grounds on which the debtor seeks to dismiss the creditors' petition. 2 As filed, paragraph 3 of the petition alleged that at the time the act of bankruptcy was committed (6 June 2005) the debtor was carrying on business in Australia, was personally present in Australia, was ordinarily resident in Australia and had a dwelling house in Australia. On 4 April 2006, Rares J ordered that 'the grounds in paragraph 3 of the creditors' petition being that the debtor was carrying on business in Australia and was personally present in Australia be struck out'. His Honour expressed the opinion that the creditors' claims as to the debtor's ordinary residence and as to him having a dwelling house in Australia as at the date of the act of bankruptcy were sufficiently particularised and should be permitted to remain in the creditors petition. His Honour further observed, 'depending on the evidence ultimately advanced at the trial in support of and in answer to the particulars, the trial judge could find that the debtor either was ordinarily resident in Australia or had a dwelling house in Australia within the meaning of the authorities discussed by Graham J in Mathai v Kwee [2005] FCA 932 at [111] to [126]'. The relevance of the subpoenas and notices to produce presently before me must be determined in this context. Documents responsive to paragraphs 1 and 2 were produced and the Court was informed that there were no documents falling within the category in paragraph 3. The only issue remaining is the creditors' objection to paragraph 4 of the subpoena, on the grounds that the documents sought are subject to legal professional privilege. The debtor claimed that this letter between his Australian and Scottish solicitors is protected from disclosure by legal professional privilege. The creditors claim that any such privilege was waived by the debtor because there had been disclosure to a third party (the Scottish Employment Tribunal) in circumstances where the third party was not bound to treat the information disclosed as confidential. (The letter of 3 March 2005 from Messrs Russo, the Appellant's Australian solicitors, to Russel & Aitken refers). The only apparent purpose of the reference to the letter is to summarise the content of the letter and indicate that it supported the assertion that the debtor was domiciled in Australia. The reference to the letter in the Notice of Appeal cannot be linked to the Tribunal's alleged error since the letter is dated 3 March 2005 and, according to the Notice of Appeal, the Tribunal's decision was made on 11 March 2005. In my view it constitutes waiver of legal privilege in accordance with the principle expressed in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 and for that reason I decline to set aside paragraph 4 of the subpoena. As the documents sought under this subpoena are the same as those sought under the subpoena already discussed, the debtor's objections can be dealt with expeditiously. The documents produced in response to the above subpoena are also responsive to paragraphs 1 and 2 of this subpoena and there are no documents falling within paragraph 3. The only issue is the legal professional privilege issue discussed above and my conclusion is the same as that expressed above, for the same reasons. I was informed that there are not any documents in six of the categories. Trust account and general account statements of account from Salvatore Russo, solicitor for the period 1 January 2005 to 30 December 2005 issued with respect to the Union Club litigation in the Supreme Court of New South Wales Equity Division; Supreme Court of New South Wales defamation list; Administrative Decisions Tribunal; the Supreme Court of New South Wales Court of Appeal and the Applicant's litigation before Gyles J in the Federal Court and Full Court of the Federal Court. Statements of account and/or memorandum of fees from Murray Aldridge SC and James Dupree for the period 1 January 2005 to 30 December 2005 and records by way of cheque butts, direct deposit and bank statements to show payment of same. I accept that the address to which accounts rendered to the debtor are sent has some relevance to the debtor's place of residence although the probative value of such evidence may be limited. I do not see that any other information in these accounts can be relevant. Mr Walsh accepted that it would be appropriate for all other information in such statements to be masked and I propose to order accordingly. 9 In relation to paragraph 5, the usual practice would be that counsel would render their accounts and memoranda of fees to the debtor's solicitors rather than directly to the debtor. From the bar table Mr Aldridge SC confirmed that this is his invariable practice. Mr Walsh accepted Mr Aldridge's assurance but pressed for the statements of account referred to in paragraph 5. I do not see any basis on which to distinguish between the accounts and memoranda of fees and do not accept that either is relevant. Accordingly, paragraph 5 must be set aside. The third category need not be considered as I am informed there are not documents in that category. Correspondence from Russo & Co to the Sheriff, Perth, Scotland concerning ownership of chattels. I understand that Cape Vale Pty Ltd is the owner of the home occupied by Ailsa Lee, the debtor's mother. Although paragraph 2 is limited to correspondence in 2005 I am still at a loss to understand how the correspondence could have any relevance to the issue of the debtor's residence. These paragraphs are text book examples of a fishing expedition and must be set aside. The creditors did not press the matter any further. However, the objections to these subpoenas were not pressed, apparently as a result of discussions between the parties which, Mr Aldridge advised, had narrowed the areas in dispute. 14 Both parties have had a measure of success in relation to this application and for this reason it may be appropriate to make no order as to costs. However I shall hear the parties on the matter at a later stage and in the meantime costs shall be reserved. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

subpoena notice to produce interim application to set aside subpoenas and notices to produce relevance legal professional privilege waiver of privilege practice and procedure

The objective of the proposed scheme is to effect a merger between Hostworks and Broadcast Australia Pty Ltd (Broadcast Australia) whereby, if the proposed scheme is approved, Hostworks will become a wholly owned subsidiary of Broadcast Australia. 2 Hostworks' business is managing the availability, performance and running costs of business applications. It is a profitable enterprise, and has a substantial surplus of assets and liabilities. 3 It is apparent that, for the purposes of the takeover of Hostworks by Broadcast Australia, both Hostworks and Broadcast Australia have adopted the means available under Pt 5.1 of the Act in preference to the takeover procedure available in Chapter 6 of the Act. If the proposed scheme becomes effective, Broadcast Australia will pay to the "scheme participants", that is its members other than Broadcast Australia, $0.41 for each Hostworks share as at what is called the "record date" in the explanatory statement issued with the notice of meeting. There are no classes of shareholders. It also has 9,350,001 options issued over its unissued share capital. Of those options, 4,350,001 have been granted to employees from time to time pursuant to the Employee Share Plan Options Rules, and 5,000,000 issued to Leonard Peter Shore, its non-executive chairman. 5 Mr Shore is also an executive director of Macquarie Capital Group Limited. It is a member of the Macquarie Communications Infrastructure Group, and the manager of Macquarie Communications Infrastructure Limited, which in turn, is the parent entity of Broadcast Australia. The ultimate holding company of those various entities is Macquarie Bank Limited. Mr Shore has not participated in any way in the decisions of Hostworks in relation to its negotiations with Broadcast Australia leading up to acceptance of the proposal of Broadcast Australia by Hostworks, and the implementation of the agreement then reached. Under the proposed scheme, if it proceeds to fulfilment, by the "record date", all options over Hostworks' unissued capital will have been cancelled, exercised or lapsed with the effect that, all shareholders other than Broadcast Australia, will have received the scheme consideration of $0.41 per share for each Hostworks share. All option holders will have had the opportunity to have their options cancelled, and have received a payment equivalent to the scheme consideration less the option exercise price, or alternatively have had the opportunity to have exercised their options and then to receive the scheme consideration for the shares issued following the exercise of the options. 6 It is not necessary to refer in detail to the negotiations leading to the proposed scheme. Following negotiations on a non-binding and confidential basis, on 7 December 2007 Hostworks and Broadcast Australia entered into an Implementation Agreement to give effect to the proposed scheme. It was subsequently amended in one respect on 14 December 2007 in relation to what is called the "Break Fee" payable to Broadcast Australia in the event that Hostworks' members do not approve the proposed scheme at the proposed scheme meeting. I will refer to that feature of the Implementation Agreement later in these reasons. 8 On that day, Broadcast Australia also entered into Option Deeds with three members of Hostworks, by which it was granted call options to acquire their shares in Hostworks. Those options relate to some 19% of the issued shares in Hostworks. Those call options are exercisable at the scheme consideration price, and will lapse if the scheme is not approved by Hostworks' members or by the Court. 9 Finally, in terms of documentation, on 7 December 2007, Broadcast Australia entered into a Deed Poll by which it covenanted in favour of each of the scheme participants, that is the members of Hostworks at the critical date, to performance of its obligations under the proposed scheme. I will also refer to that feature of the proposed scheme in more detail later in these reasons. 10 The Scheme Booklet to be sent to the members of Hostworks includes copies of the Implementation Agreement, the proposed scheme, the Deed Poll, notice of the proposed meeting and an independent expert's report accompanying the detailed explanatory statement provided by the independent directors of Hostworks. It appears to be comprehensive and candid. 11 KPMG Corporate Finance (Aust) Pty Ltd has provided an independent expert report to Hostworks by which it expresses a view that the proposed scheme is fair and reasonable and in the best interests of Hostworks members in the absence of an alternative offer on better terms. The KPMG report is Annexure A to the explanatory statement issued to Hostworks' members in the Scheme Booklet for the purposes of consideration at the proposed scheme meeting. I also made orders as to the means of calling the meeting and as to its content. I indicated at the time that I would later deliver reasons for those orders. These are the reasons for those orders. 15 It is, of course, clear that the Court's role on this application is not to pass a final view on whether the proposed scheme should be approved, either by the members at the proposed meeting, or then by the Court under s 411(4)(d). The decision must first await the will of the members to be expressed at the scheme meeting. Assuming the members support the proposed scheme, when the Court is then called upon to approve it, dissenting members or other interested parties will have the opportunity to oppose the Court's granting approval: Re Sonodyne International Limited (1994) 15 ACSR 494 at 497 per Hayne J. 16 However, the authorities indicate that, at this point, the Court should review the proposed scheme and the proposed explanatory statement, and may invite the plaintiff company to attend to any matters which seemed to the Court to require attention before the distribution of the documents. It is not for the Court otherwise to be concerned with the merits of the proposal or to inhibit consideration by members so that they can form their own judgment whether to vote for or against. In that case, Emmett J at [9] said that, amongst the factors to which the Court should have regard in exercising its discretion whether to convene a meeting, were the acceptability of the documentation of the proposed scheme; the commercial viability and morality of the proposed scheme; the likely acceptability of the proposed scheme; the bona fides of the proposals; whether the proposal could be achieved by another method; and any objections or submissions by the Australian Securities and Investments Commission (ASIC). Both Conti J in Re CSR Ltd (2003) 45 ACSR 34 at 36-37 and Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [38] referred to those criteria with approval, and as conforming with the observations of Santow J in Re NRMA Limited [2000] NSWSC 82 ; 33 ACSR 595 referred to. 20 I therefore turn to consider the matters of which I had to be satisfied before making an order convening the proposed scheme meeting. The first is that there has been proper disclosure in the proposed explanatory statement as required by s 411(3) of the Act: see Re NRMA Limited [2000] NSWSC 82 ; 33 ACSR 595 at [15] - [49] . The explanatory statement must explain the effect of the proposed arrangement and set out any information that is material to the making of a decision by a member or members to approve or not to approve the proposed scheme. Section 411(3A) in effect requires a statement of all the main facts which will enable shareholders to exercise their judgment whether to support the proposed scheme. I carefully considered the proposed scheme. In my view, adopting the words in s 411(3)(a), the explanatory statement does explain the effect of the proposed scheme, including in particular stating the material interests of the directors of Hostworks, and the effect on those interests of the proposed scheme. On the material, its effect on them is no different from the effect on other members of Hostworks. 21 Section 411(3) requires the explanatory statement to set out the prescribed information, and other information that is material to the making of a decision by a member of Hostworks whether or not to agree to the proposed scheme. Regulation 5.1.01(1) of the Corporation Regulations 2001 (Cth) (the Regulations) provides that, unless ASIC otherwise allows, the explanatory statement must state the matters set out in Pt 3 of Sch 8 to the Regulations and have annexed to it the reports and copies of the documents mentioned. There is nothing to indicate that ASIC has agreed that less information than that prescribed should be provided. I considered each of the pieces of information prescribed in Pt 3 of Sch 8 to the Regulations to determine whether they are contained within the proposed explanatory statement. I will not go through them seriatim. In my view, they are each apparently covered by material in the explanatory statement. 22 In reaching that view, I was assisted by the schedule provided in the written submissions of counsel for Hostworks in which each of the requirements of ss 411 and 412 and Pt 3 of Sch 8 of the Regulations are set out and cross-referenced to the relevant parts of the explanatory memorandum or other materials. There is also evidence from Hostworks that a process of verification was undertaken in relation to each of those pieces of information to ensure that it is accurately reported in or with the explanatory memorandum. 23 There is one particular aspect I should mention. Clause 8303 requires the explanatory statement to be accompanied by an independent expert's report, stating whether or not that expert considers the proposed scheme is in the best interest of the members of the company the subject of the arrangement and setting out reasons for that opinion. That obligation arises only if the other party to the proposed arrangement, that is Broadcast Australia, has a prescribed shareholding in the target company, or that any director of Broadcast Australia is a director of Hostworks. Neither of those things apply. The way in which a prescribed shareholding will exist and the level at which a prescribed shareholding will exist is set out in cl 8306. Consequently, it was not required of Hostworks that its explanatory statement should be accompanied by an independent expert's report. Nevertheless, it has procured the KPMG report in the terms to which I have referred. That report appears to meet the requirements of cl 8303 of Sch 8 to the Regulations in any event. 24 From my understanding of the proposed scheme, which is a relatively straightforward one, I have not identified any other material which I might regard as potentially significant to the making of a decision by a member of Hostworks whether or not to agree to the proposed scheme and which is not referred to. Of course, that cannot be a decision that there is no such material because the Court is not in a position to know whether or not that is the case. But at least on the material before me, there is nothing else which attracts the application of s 411(3)(b) of the Act. I note that the obligation in s 411(3)(b) appears to be mirrored in s 412(1)(a)(ii). 25 Section 411 also requires that Hostworks, as the company proposing the proposed scheme, is a Pt 5.1 body. As it is a public company limited by shares, it meets that description: see the definition in s 9 of the Act. 26 Section 411 further requires that the Court is satisfied that the scheme can properly be described as a compromise or arrangement so as to come within its ambit. The word "arrangement" has been held to be a word of wide import, not limited by its relationship or the expression "compromise". An arrangement may extend to any subject matter which is something which a company is able to agree with its members, and is likened to a contract between a company and its members. As noted earlier, there have been a number of cases in which a scheme involving the acquisition of a company's issued capital for cash, so that the company becomes a wholly owned subsidiary of an acquiring entity, is a common use of the Pt 5.1 procedure. See also e.g. Re Mincom Ltd (No 3) (2007) 25 ACLC 207; and Re APN News & Media Ltd (2007) 62 ACSR 400. The independent expert's report has assessed the offer to be fair and reasonable and in the best interests of the shareholders of Hostworks in the absence of an alternative offer on better terms. The evidence indicates that the offer made by Broadcast Australia is at the upper range of the valuation of shares in Hostworks made by the independent expert, and is considerably in excess of any listed share price in the recent past. There is nothing to suggest that the scheme works unfairly as between members of Hostworks, or that in any other respect the directors of Hostworks or others associated with it, or with Broadcast Australia, will profit to the detriment of the members of Hostworks, or that they will profit differently from the other members of Hostworks. Consequently, if the proposed scheme is supported at the proposed meeting of shareholders of Hostworks, at present, there does not appear to be any reason why the scheme then would not be approved. That seems to be a test, perhaps even put at a slightly higher level than necessary, to determine whether the proposed scheme is a proper one: see e.g. Re Promentum Limited [2007] FCA 446 at [13] ; IOR Friendly Society Ltd v IOR Group Ltd (2007) FCA 970 at [28] ; Re CCI Holdings Limited [2007] FCA 832 at [21] ; and Re Gloucester Coal Ltd [2007] FCA 1017 at [28] . Later in these reasons, I refer to particular features of the arrangement as contained in the Implementation Deed and the Deed Poll which warrant specific comment. 28 Finally, the Court is required by s 411(2) of the Act to be satisfied that ASIC has had a reasonable opportunity to examine the terms of the proposed scheme. Section 411(2)(a) requires that 14 days notice of the hearing of the application be given to ASIC or such lesser period of notice as the Court or ASIC permits. It contemplates that ASIC must have had a reasonable opportunity to examine the terms of the proposed scheme and the draft explanatory statements relating to it. ASIC was first provided with a copy of the draft explanatory statement on 10 December 2007, and was served with the documents filed in these proceedings on 17 December 2007, only seven days before the hearing. However, ASIC by letter of 19 December 2007, has indicated that it consents to a lesser period than the requisite 14 days notice of the hearing of the application, and has indicated that it does not intend to provide a statement under s 411(17)(b) until the Court is asked to approve the proposed scheme, that is after it has been considered by the members of Hostworks. However, in that letter, it recognises that proponents of the scheme may reasonably wish for an indication of ASIC's views before committing to the expense of calling a meeting and printing the scheme documentation. That letter therefore contains an indication that ASIC does not currently propose to appear to make submissions, or to intervene to oppose the application for the convening of the proposed meeting of the scheme. 29 It is convenient at this point to refer briefly to s 411(17) of the Act. If that consideration is relevant at this point, that is whether there is a likelihood (or prospect) of s 411(17) being satisfied at first stage, I have the necessary level of satisfaction at this point and on the material referred to. The provisional view of ASIC referred to above indicates that there is a prospect of it producing to the Court the form of statement referred to in s 411(17)(b), although of course the Court then clearly is not obliged to approve the proposed scheme. Alternatively, on the information presently available to me, as I have indicated, I do not see a reason why, if the members of Hostworks at the proposed meeting of the scheme support the proposed scheme, I would not be satisfied that the scheme has not been proposed for the purpose of enabling any person to avoid the operation of any of the provisions of Chapter 6. That must necessarily be only a tentative and provisional judgment. However, it is accepted, as is now commonplace, that in circumstances such as the present, an entity such as Hostworks has a choice between following the takeover procedure in Chapter 6 in conjunction with Broadcast Australia or following the scheme of arrangement procedure supported by inter partes documentary agreements as contemplated by Pt 5.1 of Chapter 5 of the Act. Consequently, the mere choice of the procedure now being adopted is not an indication that a purpose of this procedure is to enable any person to avoid the operation of any provisions of Chapter 6. There will thus need to be some identification of which provision or provisions of Chapter 6 might relevantly operate so as to produce potentially a different outcome to that which would follow from the present procedure and an exploration of why the Pt 5.1 procedure has been used having regard to that provision or those provisions if s 411(17)(a) is to be enlivened. Such consideration may also be relevant to the discretion of the Court under s 411(17) if ASIC has provided a statement under s 411(17)(b). No such provision has presently been identified. Each of those features is present in the proposed scheme. It is appropriate to consider them each in turn. 32 The performance risk concern has been raised in previous scheme of arrangement applications. They are referred to by Lindgren J in Re APN News 62 ACSR 400 at [23]. I will not repeat them. It is necessary to consider the so called "performance risk" of shareholders being left in a position, once the scheme has become effective, of their shares having been transferred to Broadcast Australia, but then facing a delay in the provision of the scheme consideration, so that their only remedy would be to sue on the Deed Poll. That risk has been overcome here by requiring the scheme consideration to be paid to Hostworks before 12 noon on the "implementation date" to be held in trust by Hostworks for the purpose of being paid to the scheme participants, that is the shareholders of Hostworks, before they are divested of their shares in Hostworks later on in the implementation date. Broadcast Australia must provide the funds to pay for the shares it is to acquire before they are transferred. A similar arrangement was satisfactory to Robson J for the purposes of authorising or directing the calling of the proposed meeting in Re Coles Group [2007] VSC 389 ; see at [38]. The Deed Poll contains a covenant on the part of Broadcast Australia to provide the scheme consideration on the implementation date in accordance with the terms of the scheme so that it ties the settlement step of payment and transfer together. 33 Clauses 10.1 and 10.2 of the Implementation Agreement contain "no-shop" and "no-talk" provisions during the "exclusivity period", defined as the period from the date of the Implementation Agreement to the "sunset date" or the date when the agreement is earlier terminated. The sunset date is 31 May 2008. During that period, Hostworks is obliged to ensure that neither it nor its representatives directly or indirectly solicits or invites any discussions in relation to, or which may reasonably be expected to lead to, a competing transaction, that is defined as any expression of interest, proposal or offer by a third party to evaluate or enter into any transaction similar to the proposed scheme or by which a person would acquire an interest in 10% or more of the issued shares in Hostworks or engage in other like transactions. During the same period, under the "no-talk" provision, Hostworks is to ensure that neither it nor its representatives negotiates with any persons in relation to, or which might reasonably be expected to lead to, a competing transaction, even if it was not solicited or initiated by Hostworks in any way. It is also obliged under cl 10.3 to ensure that neither it nor any of its representatives in relation to a competing transaction, facilitates any other party undertaking due diligence investigations in relation to Hostworks, or makes any non-public information relating to Hostworks available to any such person. Because such clauses provoke obvious concerns as to the directors' potential breach of fiduciary duty or statutory obligations by entering into such agreements, cl 10.7 contains what is called "fiduciary and other carve-out" provisions. It provides that the restrictions in cl 10.2 and cl 10.3 do not apply to the extent that, in response to an approach by a third party, Hostworks informs the third party that it can only participate in negotiations or discussions with that third party if the third party proposes a competing transaction of a certain quality. If a competing transaction is then made which meets certain criteria, and if Hostworks' directors determine in good faith and acting reasonably that failing to respond to a bona fide competing transaction would "more likely than not" constitute a breach of their fiduciary or statutory obligations, they are not bound to comply with cl 10.2 or cl 10.3. Before that carve-out operates, the directors of Hostworks must be satisfied that the competing transaction is bona fide and in writing by a reputable entity, and they must have determined in good faith and acting reasonably (after independent advice) that the competing transaction is capable of being valued and completed, and is of a higher value to Hostworks and its shareholders than the proposed scheme. They must also have received written advice from Hostworks' external legal adviser that failing to respond to such a bona fide competing transaction would more likely than not constitute a breach of the independent directors' fiduciary duties or statutory obligations. It identifies the former as inherently more anti-competitive at [7.30], and so considers it necessary for a "no-talk" agreement to contain an appropriate fiduciary carve out. It does not require generally that a "no-shop" agreement be similarly subject to a fiduciary carve out, because such a clause generally only prevents the target company from soliciting alternative or additional bidders or transactions, and does not prevent an interested party from bidding: at [7.31] and [7.7]. 35 As I have noted, the exclusivity period will expire by no later than 31 May 2008, and the "no-talk" provision in the Implementation Agreement is subject to a carve out recognising the directors' fiduciary obligations and statutory duties. The evidence also indicated that the directors of Hostworks (other than Mr Shore who did not participate in the decision-making processes at all) considered the interests of the members of Hostworks in agreeing to those provisions, including the procuring of legal advice about them. 37 The structure of the exclusivity clause in cl 10 of the Implementation Agreement is quite sophisticated. The effect is to put a potential rival bidder out of the opportunity to do so unless that rival bidder were prepared to make a specific, albeit informal, offer subject to certain conditions during the period that the Implementation Agreement is in force, in effect, up to 28 May 2008 (unless in the meantime the members of Hostworks at the proposed meeting do not support the proposed scheme). The independent directors, before discussing the proposed transaction with the third party offeror, must assess the offer as capable of being valued and as of being higher financial value to Hostworks and its members than that under the proposed scheme. It is only in those circumstances that Hostworks may through its independent directors engage in discussions with a competing potential offeror and may provide information to the potential offeror. Having considered those terms, in my view and consistent with the approach which has been adopted in other cases, there is no reason not to order the convening of the proposed scheme meeting in the circumstances. 38 Clause 11 of the Implementation Agreement imposes a break fee provision. Break fees are also now a commonplace feature in proposed agreements for schemes of arrangements and in merger and takeover agreements, both in Australia and overseas. See per Lindgren J in APN News Ltd 62 ACSR 400 at [43]. As his Honour said at [44], break fees are justified by reference to the costs incurred by the offeror company; the benefit that that company confers on the members of the target company by increasing its value; and the desirability, from the viewpoint of those members, that takeover offers be made to them. His Honour then went on to consider contemporary practice in relation to break fees. There is a more lengthy discussion by his Honour of general considerations relating to break fees in Bolnisi Gold NL in the matter of Bolnisi Gold NL (No 2) [2007] FCA 2078 at [9] - [30] . It is a most helpful discussion. 39 There have been a number of orders made by the Court under s 411(1) of the Act in which the existence of provisions such as those in cl 11 of the Implementation Agreement concerning break fees have not been an obstacle to the making of orders for the convening of meetings. 40 In this case, the break fee is not payable if the members of Hostworks fail to support or approve the proposed scheme. A term to the contrary effect was removed from the Implementation Agreement by its amendment on 14 December 2007. There can therefore be no suggestion that the provision for the payment of the break fee will coerce shareholders to vote in favour of the proposed scheme. Those matters are fully explained in the draft explanatory statement. It is also fair to observe that, as reported in the Implementation Agreement, the break fee proposed is not of an inappropriate magnitude. It is identified as being $675,000, representing an estimate of Broadcast Australia's costs of and in relation to making the proposed offer. My general understanding is that that was not an unrealistic figure. It is a figure which the parties have agreed is a genuine and reasonable pre-estimate of the costs that Broadcast Australia will suffer if the proposed scheme does not proceed: cl 11.3. I note that the break fee is less than 1% of the equity value of Hostworks. To that extent, it accords with the Takeovers Panel Guidance Note 7: Lock Up Devices at [7.17]. I am not sure that it is appropriate to determine that an appropriate break fee may be fixed by reference to a percentage of the equity value of the takeover target as distinct from a genuine pre-estimate of the costs of the proposed offer. However, that is not of significance here because the break fee is less than 1% of the equity value of Hostworks. It is not necessary to take that further. There is in the circumstances no reason why that provision of the Implementation Agreement should have impeded the Court from making the order for the convening of the proposed meeting. 41 Under cl 7.3(a) of the Implementation Agreement, each scheme participant is deemed to have warranted that all of its shares in Hostworks which are transferred under the scheme will be free from all mortgages and encumbrances. Fryberg J in Re Mincom Ltd (No 3) (2007) 25 ACLC 207, regarded an almost identical deemed warranty clause as onerous and unreasonable and "calculated to catapult unsuspecting shareholders who have not read the small print of the arrangement in the schedule to the explanatory statement into a state of breach of warranty": at [21]. In Re APN News & Media Ltd 62 ACSR 400, Lindgren J disagreed with the approach of Fryberg J: see at [59]-[62]. I respectfully agree with and adopt the views of Lindgren J. I share the understanding of his Honour that the purpose and effect of such a clause is simply to ensure that a scheme participant whose shares are subject to an encumbrance is not unfairly advantaged. The amount of the damages payable for breach of the warranty would be equal to the amount required to discharge the encumbrance. I note that the approach of Lindgren J has been preferred in subsequent cases, including by Robson J in Re Coles Group Limited [2007] VSC 389 at [45] ; by Lander J in Re Adelaide Bank Limited [2007] FCA 1582 at [33] ; and by Gyles J in Orion Telecommunications Ltd [2007] FCA 1389 at [9] . 42 Counsel for Hostworks also drew to my attention the question whether there should be meetings of separate classes of shareholders and option holders, and whether the three major shareholders of Hostworks, who have each granted an option over their shares in favour of Broadcast Australia, should be a separate class for the purposes of the proposed meeting. 43 In my view, neither of those matters is necessary. The relevant question is to determine whether either the option holders, or the three major shareholders who have granted an option over their shares in favour of Broadcast Australia, have rights which are so dissimilar as to make it impossible to consult together with a view to their common interest: see e.g. per Bowen LJ in Sovereign Life Assurance Co v Dodd [1892] 2 QB 573 at 583. Whilst not foreclosing the possibility that a dissenting shareholder might persuade me in due course that there should have been separate meetings of one or other of those classes, as well as of the other members of Hostworks excluding those three shareholders, so that the Court would not approve the scheme if the members otherwise approve it under s 411(4)(b), at this point I do not see that such separate meetings are necessary. 44 I do not regard the shareholders and the option holders as having different interests to such an extent that they could not consult together with other shareholders. The consideration payable for the cancellation of options takes into account the strike price of options. Upon exercise of the options, the option holders will receive consideration equivalent to the scheme consideration. The scheme consideration exceeds the exercise price of all the options. The only impediment to the immediate exercise of some of the options is the approval of the proposed scheme, triggering the operation of r 6.2(p) of the ESOP Rules, but I do not think that consideration renders the interests of the option holders so dissimilar from those of the shareholders of Hostworks as to preclude them from having a general common interest with the shareholders. Ultimately, they are proposed to be treated the same. The options do not affect the rights and obligations of those shareholders in relation to Hostworks. Those option grantors will not be advantaged or disadvantaged depending upon the outcome of the scheme in relation to other members of Hostworks. Broadcast Australia does not have the ability to exercise or to control the exercise of the votes attached to those shares in Hostworks before the exercise of the options, and effectively in practice before the meeting. 46 For those reasons, I made orders under s 411(1) of the Act that Hostworks convene the proposed scheme meeting for the purpose of considering and, if thought fit, approving (with or without notification) a scheme of arrangement for the transfer of all of the fully paid ordinary shares in the issued capital of Hostworks to Broadcast Australia, being the scheme contained in and more particularly described in what is Appendix C to the draft explanatory statement contained in the scheme booklet. The scheme booklet is Annexure PJW-8 to the affidavit of Peter John Wildy sworn on 20 December 2007, except that the definition of scheme booklet in Appendix C was amended by deleting s 412(b) and substituting s 412(6), that being simply a typographical error. I also ordered that the meeting be held at the Macquarie Graduate School of Management on 13 February 2008 at 11 am. I made further orders for the despatch of the scheme booklet to each member of Hostworks. I made orders then as to the conduct of that meeting. I do not need to set them out in these reasons. They were relatively routine. 47 The proceeding generally has been adjourned for hearing to 22 February 2008 to consider the approval of the proposed scheme in the event that it is passed by the members of Hostworks. 48 I note that subsequently I varied the order made by substituting for the dispatch date specified in the order, namely 7 January 2008, the date 8 January 2008. That was made on the application of Hostworks, having regard to an administrative difficulty, and I was satisfied that it made no practical difference to the orders I had made, and in particular that the prescribed time for the giving of the notice prior to the conduct of the meeting, and the opportunity in real terms for the members of Hostworks to be able to consider the material and to participate in the meeting, were not in any way qualified. 49 Finally, I note the considerable assistance I received by the full and frank submissions of counsel for Hostworks, as well as from senior counsel for Broadcast Australia. 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.

corporations act 2001 (cth) corporations scheme of arrangement application for order under s 411(1) that company convene meeting of members to consider proposed scheme of arrangement consideration of performance risk "no stop" and "no talk provisions" "break fee" clause deemed warranty corporations law

His Honour dismissed an application for judicial review of a decision adverse to the appellant given by the Refugee Review Tribunal ("the Tribunal") on 1 October 2006. 2 The appellant is a Pakistani national who claimed to fear persecution as a Mohajir, that is, an Indian who had come to live in Pakistan after the partition of India and Pakistan in 1947 and because of his activities in a movement concerned with Mohajir affairs. He came to Australia in July 1994 and applied for refugee status in August of that year. His application to a delegate of the first respondent was rejected on 17 May 1997. Together with that application there was enclosed a document entitled "Appointment of Person to Act as Agent" in which the appellant indicated that the name of his agent was Barbara Maher and that her address was Adrian Joel & Co, 225 Crown Street, Darlinghurst, and he asked that all correspondence relating to his application should be sent to his agent. 4 The Tribunal conducted a hearing in 1998 and affirmed the decision of the delegate. However, by consent that decision was set aside by orders made in the Federal Magistrates Court on 11 April 2006. 5 In connection with the intended rehearing of the appellant's application by the Tribunal, an officer of the Tribunal sent out the invitation contemplated by s 425 of the Migration Act 1958 (Cth) ("the Act ") for the appellant to appear before the Tribunal to give evidence and present arguments in support of his claims. The hearing was to take place on 28 August 2006. On 1 August the officer attempted to send by facsimile a copy of a letter of that date addressed to Ms Maher, containing the invitation, to the telephone number that had appeared on the letterhead of the letter sent to the Tribunal nine years before, in June 1997. The facsimile transmission failed after the transmission of some part of the material. 6 The original letter, according to a note made by the relevant officer in the Tribunal's papers, was then "mailed to Adrian Joel & Co 225 Crown St Darlinghurst NSW 2010. " Mr Adrian Joel advised the Tribunal Officer on 1 August by telephone and on 10 August by a fax note that he did not act for the appellant and had had no contact with him since 1998. 7 The officer also sent a letter, in pretty much identical terms, to the appellant at the address shown in his original application for review. That letter, however, was returned to the Tribunal marked "Unknown. On 26 August 2006 Mr Khan sent to the Tribunal by facsimile a form of appointment of authorised recipient signed by the appellant and by somebody else indicating that Mr Khan was to be the appellant's authorised recipient. 9 The appellant attended the hearing conducted by the Tribunal on 28 August and gave evidence and made submissions. He also collected sound tapes of the hearing before the Tribunal. On 30 August 2006 the Tribunal gave the appellant lengthy particulars of information that it said would, subject to any comments made by the appellant, form the reason or part of the reason for deciding that he was not entitled to a protection visa. The appellant's advisor and now authorised recipient Mr Khan, provided those comments by a letter of 7 September 2006. 10 As indicated, the Tribunal handed down its decision on 1 October 2006 which affirmed the decision of the delegate. 12 Section 425A(2) provides, so far as presently relevant, that such a notice of invitation must be given to the applicant by one of the methods specified in s 441A. Section 441A prescribes the methods by which a document is to be given to a recipient as given by hand, handing to a person at least 16 years of age at the last residential or business address, dispatched by pre-paid post or transmission by fax. Section 441G provides that if an applicant has given the Tribunal written notice of an authorised recipient, it "must give the authorised recipient, instead of the applicant, any document that it would otherwise have given to the applicant. " This provision is followed by a note in the following terms: "If the Tribunal gives a person a document by a method specified in section 441A , the person is taken to have received the document at the time specified in section 441C in respect of that method. However, this does not prevent the Tribunal giving the applicant a copy of the document". Subsection (3) essentially provides that, while the applicant may vary or withdraw the appointment of an authorised recipient, the general intention is that there is to be only one authorised recipient. First, the fax to Ms Maher was not quite transmitted by facsimile within the meaning of s 441A(5) and secondly because the letter was posted to the firm Adrian Joel & Co and not the person named as the authorised recipient, namely, Ms Maher. The learned Federal Magistrate did not make factual findings about those matters, dismissing the application on the basis that, after 1 August 2006, there was no authorised recipient and, accordingly, the letter sent to the appellant at his last known residential address complied with the notification provisions of the Act . 15 In any event, his Honour decided that he would refuse relief in the exercise of his discretion because it was necessarily the case that the applicant had been actually notified and indeed had, after authorising a further recipient in connection with the review, attended the hearing. 16 No other attack was made on any aspect of the Tribunal's actions, hearing or decision. However, in my opinion, his Honour was incorrect to conclude that Mr Joel's notification that he was no longer authorised to act in the proceedings was enough to constitute a withdrawal of the notice given in 1997 to the Tribunal. 18 The whole scheme of the Act is that there be a named individual who is to be the authorised recipient. Mr Joel never was that person. He did not purport to speak for Ms Maher nor for the purposes of the Act could he have done so unless specifically authorised by her. 19 It may possibly be that there can, for the purposes of the Act , simply cease to be an authorised recipient if it is clear beyond question that the person who was an authorised recipient has abandoned that role. But here there was no evidence as to Ms Maher's present position before the Tribunal. For all anyone knew, she may have been in business on her own account as an immigration agent and been able and more than willing to communicate with the appellant and to represent and assist him if he still wished her to do so. (ii) Letter sent to authorised recipient? There is, however, no evidence that the letter was sent in an envelope which named the intended recipient as Ms Maher. Such information as is to hand suggests the contrary and, in my opinion, the appellant has produced just enough evidence to warrant the conclusion, absent any evidence on the point from the respondents, that the notice was posted simply to Adrian Joel & Co. There is a big difference between that and sending it to Ms Maher with the name Adrian Joel & Co and that firm's street address following. I think it should be concluded that the letter was not sent to the authorised recipient. 21 Another argument, more impressive for its ingenuity than for its substance, was put before his Honour and repeated before me, namely that what occurred was a dispatch of the invitation within the meaning of the Act : it was sent by pre-paid post provided it went to the address of the authorised recipient. It was said that the envelope is merely the means by which the document is dispatched. 22 A moment's reflection on the likely difference between the receipt of an envelope through the post in the name of a person, followed by the business name of the entity with which that recipient had been associated, rather than an envelope omitting the name of the intended recipient will indicate that Parliament was very unlikely to have intended other than a commonsense and efficacious interpretation of its requirements. The case is to be distinguished from others such as: SZFOH v Minister for Immigration and Citizenship ( 2007) 159 FCR 199 where there had been no appearance by the applicant at the Tribunal's hearing; Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181 where the failure to reply to a notice of invitation to comment allowed the Tribunal to proceed to make a decision without further invitation to the applicant; and Vean of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 311 ; (2003) 133 FCR 570 where the appellant did not receive the invitation until a considerable time after it had been sent to and received by the authorised recipient because it had been addressed to the applicant care of the authorised recipient. Because the appellant was in fact fully heard and the Tribunal rejected the veracity of his claims it is a case where the "decision-maker was bound by the governing statute to refuse the application": SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609 at [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ and separately Kirby J and Hayne J. 24 On the discretion point, the appellant chiefly relies on SZFOH 159 FCR 199 and Lee 159 FCR 181. In the latter case the Full Court considered discretionary relief and accepted a "forward looking" approach to the question of utility and futility. In SZFOH 159 FCR 199, Lee 159 FCR 181 was applied and the fact that the authorised recipient may have known of the notice, though the notification was irregular, was apparently held not sufficient to warrant a discretionary refusal of relief (cf Buchanan J at [60]). In Lee 159 FCR 181, as I understand it, the Court appeared to prefer the view given by Merkel J in a separate judgment in Giretti v Deputy Commissioner of Taxation (1996) 70 FCR 165, favouring a "forward-looking" view. 25 However, the decision in SZBYR 235 ALR 609 was given on 13 June 2007 shortly after the decisions in Lee 159 FCR 181 and SZFOH 159 FCR 199 and in my opinion SZBYR 235 ALR 609 now provides authoritative guidance. As succinctly put by counsel for the Minister, the appellants in SZBYR 235 ALR 609 argued that the Tribunal had failed to comply with s 424A of the Act in dealing with issue A, but the Tribunal had also relied on issue B which was in itself an independent ground for refusing their application. This is so because, even if the appellants be correct as to the proper operation of s 424A , they cannot overcome the tribunal's finding that their claims lacked the requisite convention nexus. The appellants' case, like Mobile Oil Canada Limited ... cited in [ Re Refugee Tribunal; Ex parte] Aala [(2000) [2000] HCA 57 ; 204 CLR 82 at [56] ], was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse". (Footnotes omitted. That being so, the appellants were not entitled to relief of the kind they sought. The discretion to grant that relief was to be exercised against them. (Footnotes omitted. His Honour took the view that "issue B" as counsel and I have called it, (the nexus issue in SZBYR 235 ALR 609) was on analysis the only reason for the Tribunal's decision and was sufficient. An application for judicial review of that decision was therefore liable to dismissal on discretionary grounds. Discretionary refusal of judicial review must be exercised with care, particularly where the hypothesis of jurisdictional error is a possibility. However, in some such cases (of which this was one) invocation of the discretion is proper, prudent, economical and just. In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court's time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case. When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case. (Footnotes omitted. Second, this is not a case where, simply, actual notice had also come to the attention of the appellant personally in his application before the Tribunal but there was no notice to any person authorised by him to be his desired recipient. Third, there was, in fact, notification to someone in whose understanding of the legal and practical implications of his litigious position the appellant had confidence. Fourth, here the appellant acted on that actual notice and in the event there was secured to him every right and opportunity of substance which s 441G envisaged for him. There was adequate and due notice of the hearing and an unmistakably clear and adequate opportunity to attend before the Tribunal and for him to put his case to it, all of which opportunities the appellant took up. 29 To set aside the Tribunal's decision and require reconsideration of the appellant's claims de novo would be, in my opinion, to allow the triumph of mere technicality over substance and would be, as Lindgren J observed in Giretti 70 FCR at 165, to put the appellant in a better position than if the technical error had not occurred. Bray CJ of the Supreme Court of South Australia was fond of saying that if the application of the law by courts, or its declaration, strayed too far from what reasonable and open-minded lay members of the community might see as correct, and sensible and just, then the application or declaration of the law is likely wrong. I do not suggest that lay notions of injustice should govern the exercise of discretion in this area, but I do feel that there are considerations in the public interest which justify not exalting technical errors to a tyrannical role where manifestly there is no question of substantial or practical injustice. 30 If my decision should not be in accord with Lee 159 FCR 181 and SZFOH 159 FCR 199, I believe any departure of mine from the reasoning in those cases is appropriate and warranted after SZBYR 235 ALR 609. I should add, however, that all the cases on exercise of discretion have to be closely examined in the light of their own facts. It is very easy to make remarks able to be read as nostrums for general application when really what the court is doing is seeking to explain the considerations which have weighed with it in the instant case. I have probably been guilty of the same thing here myself. I do not suggest that I would necessarily have decided Lee 159 FCR 181 or SZFOH 159 FCR 199 differently, even after SZBYR 235 ALR 609. Their facts are not these facts. 31 The appeal will be dismissed with costs. 32 As to costs, it is put that the appellant's "substantive argument" has succeeded. This is not correct. I will not adjust the quantum sought by the Minister, which is $4,300. No suggestion was made that that amount is in any way unreasonable and to my mind, having regard generally to levels of legal costs presently prevailing, it is by no means unreasonable. Costs will be assessed in the sum of $4,300. I certify that the preceding thirty-two (32) 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 notice to appear where notice sent to firm of solicitors but not addressed to authorised recipient judicial review discretionary relief exercising discretion to refuse relief where there has been jurisdictional error but no likely prospect of ultimate success appellant had actual notice of hearing appellant appeared and was fully heard citizenship and migration administrative law

In that judgment the Federal Magistrate dismissed an application for judicial review concerning a decision of the Refugee Review Tribunal ("the Tribunal") of 23 November 2004. 2 The first appellant ("the appellant") had sought a protection visa (an application relating to both her and her son) on the basis that she had been a journalist in her country of nationality, Mongolia, and that she had investigated and gathered together material concerning corruption. The appellant claimed that she was at risk of harm were she to return to Mongolia because of, amongst other reasons, the revelation by her of that corruption. 3 Ultimately, the Tribunal did not accept the appellant's account of what she had done and the position she had been in before she left Mongolia. In particular, the Tribunal made a finding of fact (as it was entitled to) rejecting that the appellant collected information about corruption in the Health Ministry as she had claimed. However, the Tribunal went on to indicate that even if the appellant in these proceedings had, on a limited basis, identified corruption in her published articles, that fact was not likely to give rise to persecution against her. 4 In the proceedings before the Federal Magistrate three grounds were argued. The first concerned the approach taken by the Tribunal to state protection. The second concerned the way the Tribunal dealt with, potentially, the membership of the appellant to a particular social group; and an apparently related ground concerning the definition of a particular social group. The notice of appeal filed in these proceedings identified one ground, namely that the Magistrate erred in law in holding that the Tribunal did not err in failing to consider whether she had a well-founded fear of persecution for the reason of her political opinion. It is not entirely clear whether that ground is intended to involve a repetition of the grounds advanced before the Magistrate or some additional ground. 5 I have read the reasons for decision of the Tribunal and the reasons for judgment of the Federal Magistrate. It is not apparent that the Tribunal fell into jurisdictional error, nor is it apparent that the Federal Magistrate erred in concluding that the Tribunal had not fallen into jurisdictional error. 6 The appellant's failure before the Tribunal arose primarily because of the non-acceptance by the Tribunal of her account of her experiences in Mongolia. These were matters of fact which were the province of the Tribunal. 7 I propose to order that the appeal be dismissed and that the appellant pay the first respondent's costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

no point of principle migration

I ordered that, if LFF wished to contend that costs should not follow the event, it should file and serve written submissions and that, if it did so, the respondents should file and serve answering submissions. LFF filed written submissions in which it contended that no order for costs should be made or, alternatively, that it should be ordered to pay no more than 70% of the Minister's costs and 40% of Gunns' costs. Both the Minister and Gunns filed submissions in which they sought orders that LFF pay their costs of the proceeding on the basis that they were successful in resisting the application. The ordinary rule is that costs follow the event. The principle is grounded in reasons of fairness and policy and operates whether the successful party is the plaintiff or the defendant. Costs are not awarded to punish an unsuccessful party. The primary purpose of an award of costs is to indemnify the successful party ... . If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. As the terms "ordinary rule" and "usual order" imply they constitute guidelines to inform the exercise of a broad and unfettered judicial discretion: see Latoudis v Casey at 541 (Mason CJ), 557 (Dawson J). A Court will not decline to award costs against a successful party unless justice so requires having regard to the "facts connected with or leading up to the litigation": Latoudis at 557 (Dawson J). See also Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at 234 [9] (Black CJ and French J). There is no general exception to the ordinary "rule" in cases in which environmental issues are raised or, more generally, "public interest" issues are involved: see Oshlack at 75 (Brennan CJ); 84, 91 (Gaudron and Gummow JJ), 91-2, 98-100 (McHugh J); South-West Forest Defence Foundation Inc v Executive Director of Department of Conservation and Land Management (No 2) (1998) 154 ALR 411 at 412 (Kirby J); Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171 (Burchett J). That is not to say that public interest considerations may not, in a particular case, support a departure from the "ordinary rule": Ruddock at 236 [14]; Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8 ; (2008) 165 FCR 211 at 227-8 (Heerey J). LFF identifies four matters which it contends warrant a costs order which is more favourable to it than an order that costs follow the event. They are: There were a number of strands to LFF's argument relating to the public interest aspects of the litigation. One of these strands focussed attention on the objects and standing provisions of the Act. An object of the legislation is "to promote a co-operative approach to the protection and management of the environment involving governments, the community, land-holders and indigenous peoples": see s 3(1)(d). Section 487 of the Act extends standing to organisations with an active interest in the conservation of the environment which wish to challenge decisions made under the Act. If such organisations were to be required to pay costs in proceedings initiated by them in which they were unsuccessful this would, so it was said, discourage or prevent them from initiating proceedings. This would, in turn, undermine a Parliamentary intention that such organisations should be involved in the administration of the Act and be able to participate in testing decisions made under it. A second strand of LFF's public interest argument emphasised that the organisation did not stand to benefit financially from the litigation. This consideration was said to be of sufficient importance to the community "for costs generally not to be ordered. " This consideration, it was suggested, weighed heavily where the community organisation confronted respondents who had greater financial and other resources which they are able to apply to litigation. The third strand directed attention to the issues which were raised in the application which were said to be "of significant public interest and concern. " Even when wound together these "public interest" strands lack strength. As already noted, there is no general "public interest" exception to the operation of the ordinary "rule". It is necessary for an unsuccessful party who wishes to obtain a more beneficial costs order to point to particular aspects of the litigation which warrant the orders sought. The legislative provisions do not assist LFF's case. An object of promotion of a co-operative approach to the protection of the environment has no implications for the determination of costs questions when co-operation gives way to litigation. The expanded standing provisions in s 487 do not, as Heerey J held in Your Water Your Say Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 900 at [8] "carry any particular significance on the issue of costs. " The standing provision is not designed to encourage litigation and, in any event, the issue would not arise unless the unsuccessful applicant had standing in the first place. LFF did not cite any authority for the proposition that a community organisation which prosecutes proceedings, in what it perceives to be the public interest and in which it does not stand to benefit financially, should not, generally, be ordered to pay costs, especially where there is a substantial "inequality of arms" between the contending parties. This is not surprising because, as the Full Court observed in Save The Ridge Inc v Commonwealth [2006] FCAFC 51 ; (2006) 230 ALR 411 at 415, "the "public interest" nature of an association's objects and its consequent lack of potential financial gain from litigation has not, at least generally, been considered a reason to depart from the ordinary rule as to costs. " See also Ruddock at 237; Australian Conservation Foundation v Forestry Commission (1988) 81 ALR 166 at 171. The third strand of LFF's "public interest" argument overlapped with its "exceptional and special circumstances" submission. It contended that its application "was a test case which raised difficult legal questions of general importance to the administration of Australia's primary environmental conservation legislation. " The questions of construction which it raised were novel; the Act was lengthy and complex. The concept of "the public interest" is notoriously difficult to define. There is, first, a distinction to be drawn between the public interest and a matter of interest to the public: see for example Director of Public Prosecutions v Smith [1991] 1 VR 63 at 73-4. The relevant interest is the interest of the public generally as distinct from the interest of an individual or individuals: Smith ibid. Sometimes these distinct interests will coincide: see for example Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8 ; (2008) 165 FCR 211 at 228. Often there will be competing public interests which must be brought into account. In a context, such as the present, there will often be a public interest in seeking to ensure the lawfulness of determinations made by the executive government and a public interest in giving effect to the principles, identified by McHugh J in Oshlack (above at [2]), especially where public funds are involved. In Oshlack the trial judge had held that proceedings characterised as "public interest litigation" did not, merely by reason of that characterisation, constitute special circumstances warranting departure from the ordinary rule. He considered that "something more" was required. Among the additional considerations which led him to hold that there were sufficient special circumstances to justify the making of no order as to costs was that the application was "arguable" and had raised "significant issues" as to the interpretation and future administration of environmental legislation. The High Court majority held that the exercise of the trial judge's discretion had not miscarried. It must, then, be accepted that such considerations are relevant when the judicial discretion to award costs is being exercised. The case advanced by LFF was arguable. It was so held by Marshall J in the course of a preliminary hearing in which security for costs was sought: see Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588 at [14] . It was not, however, a test case; nor did it raise novel issues. The resolution of the various issues raised by the grounds relied on by LFF turned, in the main, on the application of well established judicial review principles to the written reasons of the Minister and the documentary material considered by him when he made his decision. LFF is an incorporated association. Its objects include: the promotion of the conservation and better management of Australia's native forests and the stimulation and encouragement of public interest in the value and importance of protecting native forests and related environmental issues: see Lawyers for Forests Inc v Minister for the Environment, Heritage and the Arts [2008] FCA 588 at [2] . It has determined that, in pursuit of its objects and, in what it perceives to be the public interest, that the Minister's approval of construction of the pulp mill should be challenged. It has a democratic and legal right to do so. These considerations do not, however, weigh strongly in favour of the making of the orders which it seeks. There was no evidence before the Court as to LFF's present financial position or as to its capacity to raise funds to meet any costs order which the Court might be minded to make. In any event LFF's capacity to meet a costs order is not a relevant consideration in determining whether an order should be made: see Scott v Secretary, Department of Social Security (No 2) [2000] FCA 1450 at [4] (French and Beaumont JJ); Blue Wedges Inc v Minister for the Environment, Heritage and the Arts (No 2) [2008] FCA 1106 at [14] (North J). For the foregoing reasons I consider that the respondents, subject to the outcome of a further submission by LFF, should have the benefit of the usual order as to costs. In the alternative LFF submits that it should be ordered to pay no more than 70% of the Minister's costs and 40% of Gunns' costs. As it happens these were the respective percentages fixed by the Full Court as "a matter of judgment or impression" in an unsuccessful appeal involving the same respondents in Wilderness Society Inc v Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 ; (2008) 101 ALD 1. In that case the appellant had appealed from a trial judge's decision dismissing its challenges to decisions which the Minister had made, under s 75 of the Act, that the proposal to construct and operate the pulp mill was a controlled action and as to the identification of the relevant controlling provisions of Part 3 of the Act. One issue on the appeal was whether or not s 42(c) of the Act applied so as to render it unnecessary for the Minister to have regard to certain forestry operations when making decisions under s 75. It was common ground that the Minister had not had regard to such forestry operations when making his decision. This question was dealt with "somewhat summarily" by the trial judge. The Full Court considered that the question was one "of general importance both to the Minister and to the public" and proceeded to deal with it on appeal. In the event there was a division of opinion in the Full Court on the issue of the construction of s 42(c). In determining that the Minister was only entitled to 70% of his costs of the appeal the Court emphasised that it was important that the proper construction of the relevant provisions of the Act should be clarified; that the appellant was concerned to avoid harm to the Australian environment; that it was not seeking financial gain from the litigation; and that it had taken appropriate steps to resolve a dispute by resort to the Court "rather than elsewhere"; see at [10]. In determining that Gunns should only recover 40% of its costs of the appeal, the Full Court acknowledged that Gunns was a proper party to the proceeding. It noted, however, that no conduct of Gunns was challenged by the appellant; that Gunns did not have any reason to conclude that the Minister would not deploy appropriate legal resources to defend the appeal and had done so; that Gunns' legal representatives did not confine their role to supplementing submissions already made on behalf of the Minister; and that Gunns has sought to participate "on equal terms with the minister" in defending the appeal. LFF contended that all of the factors which influenced the Full Court in making its costs orders in the Wilderness Society case were present in the present proceeding. Even if LFF were correct in this assertion it would not compel a similar apportionment in the present case. In any event the two proceedings are not comparable in all respects. Self-evidently the present proceeding was a trial not an appeal. In Wilderness Society the trial judge had ordered that the applicant pay the respondents' costs of the application: see [2007] FCA 1863. This order was not disturbed on appeal. The appeal was, initially, dismissed with costs: see [2007] FCAFC 175 ; (2007) 166 FCR 154 at 178 [93] . On the application of the appellant the costs order was recalled. Having considered the parties' submissions on costs the apportionment order was made. There is no suggestion in the present case that a construction point of any significance arose or, having arisen, was not resolved by the Court. As already noted the present proceeding was a conventional challenge, by way of judicial review, to the Minister's ultimate decision. Although some construction points were argued and determined, they did not assume the significance of the s 42(c)/s 75 point which occupied the Full Court in Wilderness Society . Furthermore, Gunns played a different role at the trial of the present proceeding than it appears to have done on the appeal in Wilderness Society . It is accepted, as it should be, that Gunns was a proper party to the proceeding. Its legal rights to take "controlled action", as defined in the Act, were called into question by LFF's application. Gunns played a complementary (or supplementary) role to that of the Minister in defending the proceeding. Its written submissions and its oral submissions did not duplicate those of the Minister. For the most part, Gunns adopted the Minister's submissions and advanced additional grounds for refusing LFF's application. Gunns participation did not add significantly to the length of the hearing. In my view, there is no justification for a departure from the usual order as to either the Minister's or Gunns' costs. LFF will be ordered to pay the respondents' costs of the application. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tracey.

discretion to award costs whether appropriate to depart from general rule public interest litigation "the public interest" costs words and phrases

2 First is the principle that it is not open to a party to engage in repeated litigation about issues which have been already determined in a way which is legally binding. It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. It does not represent an opportunity, with no attempt being made to demonstrate error in the decision from which the appeal is brought, to simply recanvass matters which have been decided against a litigant. 4 The appellant is Bangladeshi. He arrived in Australia on 27 May 1995. He applied for a protection visa on 24 June 1996. Due to procedural issues which it is unnecessary to discuss the application for a protection visa was not decided until 14 August 2003, when it was refused by a delegate of the relevant Minister. An initial application to the Refugee Review Tribunal ('the RRT') was rejected on 22 June 2004 but that decision was quashed and remitted by consent to the RRT on 23 March 2005 by the Federal Magistrates Court of Australia ('the FMCA'). On 27 October 2005 the RRT, differently constituted, affirmed the delegate's decision of 14 August 2003. The appellant made an application for judicial review to the FMCA. On 10 October 2006 that application was dismissed ( SZEYK v Minister for Immigration & Anor [2006] FMCA 1473). An appeal to this Court was dismissed on 16 February 2007 ( SZEYK v Minister for Immigration & Citizenship & Anor [2007] FCA 133). In that decision Lander J gave detailed consideration to the nature of the arguments which the appellant had placed before the FMCA and this Court and rejected each of them. A subsequent application for special leave to appeal to the High Court was dismissed on 8 November 2007 ( SZEYK v Minister for Immigration & Citizenship [2007] HCA Trans 640). 5 By the use of all these procedures the appellant had exhausted every avenue of review and appeal available to him. Nevertheless within a matter of days he applied again to the FMCA for judicial review of the decision of the RRT handed down on 27 October 2005. On 7 December 2007 the FMCA dismissed this application as an abuse of process ( SZEYK v Minister for Immigration & Anor [2007] FMCA 2095). It is from that decision that the present appeal is brought. 6 The appellant filed written submissions in support of his present appeal. They did not suggest, much less address, error in the decision of the FMCA from which the appeal is brought. They dealt with matters which were the subject of attention in the earlier decisions of the FMCA and this Court. They repeated contentions which have already been rejected. At the hearing of the appeal in this Court the appellant declined the opportunity to make oral submissions beyond saying that he "did not get a fair go". 7 The appellant has shown no error in the decision of the FMCA which is under appeal. His application to the FMCA, which was rejected in that decision, was an abuse of process. The appeal must be dismissed. It is appropriate to dismiss it with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

application to federal magistrate abuse of process issue already decided appeal from the decision of federal magistrate appeal is for correction of error no error in the decision of federal magistrate shown appeal dismissed migration

In the course of carrying on its business Promaco had a requirement for printing services to produce brochures and other documents. The principals of Promaco were, and are, Mr Donald Pearce and his wife, Mrs Pamela Boddington Pearce. At that time, the first defendant (Dedline Printing) carried on a printing business. The principals of Dedline Printing were Mr David Ripley and his wife, Mrs Debra Ripley, the second defendant. Mr Ripley, an experienced printer, had for some time wanted to enter the four colour process printing market, but Dedline Printing was unable to afford to do this on its own. Promaco and Dedline Printing entered into a partnership agreement. The parties agreed that they would carry on a printing business in partnership. They would cause a company to be registered and to purchase a four colour process printing machine. Mr Ripley would be responsible for the day-to-day operations of the printing business. In turn, Promaco would refer its printing work to the company. There is a dispute as to the precise content of this obligation. Each of Promaco and Dedline Printing would share equally in the profits, and each would be equally liable for the expenses of the business. 2 The company, The Printing Place Pty Ltd, was registered in July 2001. Mr Pearce, Mrs Pearce, Mr Ripley and Mrs Ripley became directors of the company. Each of Mr and Mrs Ripley was issued with 45 of the 180 issued shares in the company. Each of Ms Michelle Anne Ainsworth, Ms Bronwen Jane Brew and Ms Sharen Margaret Cooper was issued with 30 of the remaining 90 issued shares in the company. The company entered into a hire purchase agreement with the Bank of Western Australia Ltd for the purchase of a Heidleburg SM 52 printing machine. The bank also obtained a fixed and floating charge over the company's assets. Each of the directors of the company became guarantors of the company's obligations under the hire purchase agreement. 3 The company's trading operations were unsuccessful. After Mr Ripley obtained the advice of an insolvency practitioner, the company ceased trading in October 2002. There are allegations that a reason that the business failed was Promaco's breach of its obligation to refer its printing work to the company. In August 2003, the printing machine was sold. One of the purchasers was Mr Ripley. Promaco discharged the company's remaining liability under the hire purchase agreement and was subrogated to the bank's security. Promaco has also discharged all the other liabilities of the company. 4 Administrators were appointed to the company on 6 April 2004 and the company went into liquidation pursuant to s 446A of the Corporations Act 2001 (Cth) (the Act) on 5 May 2004. Mr Anthony Hayes Douglas-Brown and Mr Jeffrey William Vibert were appointed the liquidators. Promaco is the only creditor of the company. 5 After the company ceased trading and before the printing machine was sold, Mr Ripley continued to operate and use the machine to carry out printing jobs on behalf of Dedline Printing. It is alleged that he did so without informing Mr Pearce of his actions. Mr Pearce says that he first found out in April 2003 that Mr Ripley was continuing to use the printing machine. Mrs Ripley, however, still resides in Western Australia. 7 Ms Ainsworth, Ms Brew and Ms Cooper (the second plaintiffs) now apply under s 237 of the Act for leave to issue proceedings in the name of the company, against Mrs Ripley. In support of their application dated 15 December 2005, the second plaintiffs filed a document called "the amended statement of claim", which shows that the claims proposed to be brought in the name of the company against Mrs Ripley and Dedline Printing, are in respect of the unauthorised use by Dedline Printing of the printing machine and the failure to account for profits. The proposed claims against Mrs Ripley are that she breached her director's duty to the company in respect of the use by Mr Ripley and Dedline Printing of the printing machine. 8 The "amended statement of claim" also contains claims, which Promaco proposes to bring against Dedline Printing for breach of the partnership agreement, and also against Mrs Ripley as guarantor of the company's obligations under the hire purchase agreement. 9 The second plaintiffs rely upon affidavits of Mr Pearce sworn on 7 December 2005, 3 May 2006, 26 July 2006 and 17 August 2006 respectively, an affidavit by each of Ms Ainsworth, Ms Brew and Ms Cooper each sworn on 26 July 2006 and an affidavit of Mr Douglas-Brown sworn on 15 February 2006. Mrs Ripley read her affidavit sworn on 1 June 2006. 10 I granted Mrs Ripley a certificate under O 80 of the Federal Court Rules in respect of the second day of the adjourned hearing of this application. The director's belief that the decision was in the best interests of the company is a rational one unless the belief is one that no reasonable person in their position would hold. Mr Douglas-Brown does not identify the possible claims that might be able to be pursued on behalf of the company, nor does he identify any potential defendants. Mr Douglas-Brown does not depose to having made an attempt to obtain funding to pursue any claim. Counsel referred to the case of BL & GY International Co Ltd v Hypec Electronics Pty Ltd [2001] NSWSC 705 ; (2001) 164 FLR 268 ( BL & GY International ). In that case Einstein J observed that the legislative intention was that s 236 and s 237 of the Act were only to apply where the application was made in respect of a company which was a going concern, and not in respect of a company which was in liquidation. The rebuttable presumption the subject of s 237(3) contemplates the directors participating in a decision by the company not to bring the proceedings or not to defend the proceedings or not to discontinue, settle or compromise the proceedings. Where a company is in liquidation the directors cannot participate in such a decision. Where a company is in liquidation the scheme of the Corporations Act is that it is the liquidator who is the appropriate party to determine whether proceedings should be brought on behalf of a company or whether any particular step should be taken on behalf of the company in relation to any proceedings. Absent some exceptional leave of the court, while a company is being wound up in insolvency or by the Court, a person cannot perform or exercise, and must not purport to perform or exercise, a function or power as an officer of the company except as a liquidator appointed for the purposes of the winding up; or as an administrator appointed for the purposes of an administration of the company beginning after the winding up order was made; or with the liquidator's written approval; or with the approval of the Court (s 471A(1)). Hence, as far as directors are concerned, they are unable to exercise their powers except where they obtain either the approval of the liquidator or the approval of the Court. The manner in which the subsection refers to a decision "by the company" also does not suggest that there was an intention to refer to a decision by a liquidator on behalf of a company in liquidation. (Original emphasis. The intention behind the enactment of ss 236 and 237 appears to have been to avoid confusion in that regard and to codify that form of entitlement and right of action. The explanatory memorandum gave no attention whatsoever to questions involving the jurisdiction of the Court to permit actions to be taken in the name of a company in liquidation. Counsel referred specifically to the decision of Santow J in Roach v Winnote Pty Ltd (in liq) [2001] NSWSC 822 ( Roach ) to the effect that s 236 and s 237 of the Act were applicable in circumstances where the company in question was in liquidation. The decision in Roach has been followed on a number of occasions by judges at first instance. In the case of Brightwell v RFB Holdings Pty Ltd (in liq) [2003] NSWSC 7 ; (2003) 171 FLR 464, Austin J noted that in the Roach case , the decision of BL & GY International had not been cited to Santow J. However, Austin J observed that "with some hesitation" he preferred the view of Santow J in Roach to that of Einstein J in BL & GY Interntational . The first was BL & GY International Co Ltd v Hypec Electronics Pty Ltd where Einstein J expressed the view (without having to decide the question) that Pt 2F.1A does not apply to a company in liquidation. His Honour was influenced by the fact that one provision within that part (s 237(3)(c)) refers to a decision of directors with respect to proceedings that this company may bring. In two subsequent cases --- Roach v Winnote Pty Ltd (Santow J) and Brightwell v RFB Holdings Pty Ltd (Austin J) --- it was held that Pt 2F.1A did apply in relation to a company in liquidation, there being no contrary indication by reason of the reference to the directors in s 237(3)(c). Section 237(3) , which refers to decision making by directors, does no more than cause a rebuttable presumption to arise as to one of the matters to be examined by the court under s 237(2). If the facts as found (including as to directors' decision making) cause the case to fit within s 237(3) , the presumption arises. If they do not --- because directors did not participate in a relevant decision, or for any other reason --- the presumption does not arise. In either event, there is no reason why the substantive provisions of s 237(1) and (2) cannot operate perfectly well according to their terms. [28] The fact that a creditors' voluntary winding up pursuant to s 446A is in progress in respect of NAA therefore presents no barrier to the grant of the leave Mr Charlton seeks under s 237. The question should now be regarded as settled. (References omitted. 19 Counsel for Mrs Ripley, however, submitted that until there was a decision which was binding on a first instance judge, the Court was at liberty to apply the decision in BL & GY International . 20 Each of Santow J in Roach and Einstein J in BL & GY International took a different approach to the function of s 237(3)(c) in construing the Act. Einstein J relied upon the subsection as indicative of Parliament's intention that s 236 and s 237 were to apply only to a company as a going concern - because s 237(3)(c) could not have any application where a company was in liquidation. Santow J, on the other hand, observed that the subsection was "adjectival", in that, it provided only for a rebuttable presumption, and it was possible to construe that subsection as indicative of Parliament's intention that the presumption would apply when the company in question was a going concern, but not when the company in question was in liquidation. Therefore, said Santow J, the subsection was not inconsistent with a Parliamentary intention to alter the existing law, so that Pt 2F.1A would apply, both when the company was a going concern and when it was in liquidation. In seeking to discern Parliament's intention, it is possible to have regard to the mischief that the legislation was intended to remedy; and to discern the mischief by reference to the Explanatory Memorandum to the Bill in question and to any law reform report referred to therein. The common law, independently of s 15AB of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act ), permits the Court to do so in order to ascertain the mischief which the statute was intended to cure. (Reference omitted. 23 Prior to the enactment of Pt 2F.1A of the Act, the law distinguished between the power or right of a shareholder to bring a claim in the name of a company depending upon whether the company was a going concern or was in liquidation. But even in the case of a going company a minority shareholder is not entitled to proceed in a representative action if he is unable to show when challenged that he has exhausted every effort to secure the joinder of the company as plaintiff and has failed. But cessante ratione legis, cessat lex ipsa [the reason of the law ceasing, the law itself ceases]. So soon as the company goes into liquidation, the necessity for any such expedient in procedure disappears. Passing over the superficial difficulty that a company in compulsory liquidation cannot be proceeded against without the leave of the court, the real complainants, the minority shareholders, are now no longer at the mercy of the majority, wrongly retaining the property of the company by the strength of their votes. If the liquidator, acting at the behest of the majority, refuses when requested to take action in the name of the company against them, it is open to any contributory to apply to the court and under s 234 of the Provincial Companies Act , which corresponds to s 252 of the Imperial Statute ( Companies Act , 1929 (Imp), c 23), it is open to the court, on cause shown, either to direct the liquidator to proceed in the company's name or on proper terms as to indemnity, and otherwise to give to the applicant leave to use the company's name as plaintiff in any action necessary to be brought for the vindication of the company's rights....And it is the policy of the Act that all claims competent to the company should be brought within the scope and control of the winding up, and that not only in a compulsory liquidation. Therefore, such procedure is not to be discouraged. (Reference omitted and translation inserted. In such a case, it is, in my view, not appropriate to speak of the rule in Foss v Harbottle or exceptions to the rule in Foss v Harbottle which have the effect of taking the carriage of such claims outside the winding up. It has been said on more than one occasion that winding up is a process which affects rights in rem, and there is obviously much sense in the policy of the legislation in confining those questions to the one forum designated by the legislation to deal with the whole of the subject matter. There are other possible remedies, for example, removal of the liquidator or, as was done in Garden Mews---St Leonards Pty Ltd v Butler Pollnow Pty Ltd (1984) 9 ACLR 91 the appointment of a receiver of the company's right of action (see generally, Scarel at 351-352). 28 The focus of the CLERP Paper was on inadequacies of the exceptions to the rule in Foss v Harbottle (1843) 67 ER 189 as affording an aggrieved shareholder a practical and effective means of enforcing rights as between the shareholders and directors. The paper criticised the existing law, particularly the so-called "fifth exception to the rule", on the grounds that it was uncertain. Another obstacle identified was the lack of access by a minority shareholder to the company's funds to bring an action in the company's name. Also, it was said that the power of the majority to ratify breaches of duty could frustrate a minority shareholder who wanted to enforce the rights in the company's name, against a defaulting director who enjoyed the support of the majority. The paper said that these obstacles meant that few actions, relying on the exceptions to the rule in Foss v Harbottle , were ever effectively brought against defaulting directors. In this respect, the CLERP Paper contrasted the unsatisfactory operation of the existing law when the company was a going concern, with the position when a company went into liquidation. In the past, relatively few breaches of directors duties have been able to be litigated, other than in the insolvency context , especially when there has been no involvement by the ASC. (Emphasis added. There is no criticism of the existing law as reflected in those cases. To the contrary, as mentioned above, the position when a company is in liquidation, is contrasted favourably with the position when it is a going concern. There is no recommendation that the existing law as reflected in those cases be amended. In particular, there is no consideration in the CLERP Paper of whether the distinction recognised in those cases between the legal position of an aggrieved member, when the company was a going concern, and when it was in liquidation, should be abolished, merged or otherwise disturbed, and there is no recommendation to that effect. 30 The Explanatory Memorandum to the Bill also made no reference to the existing law in relation to the power of a member or contributory to bring an action in the name of the company, when the company was in liquidation. In describing the "current position" which the legislation was intended to remedy, the Explanatory Memorandum confines its description only to the exceptions to the rule in Foss v Harbottle - in other words, only to the law as it applied to an aggrieved shareholder in a company which was a going concern, desirous of bringing a claim in the name of the company. However, a number of practical and legal difficulties regarding the operation of the exception have meant that very few derivative actions have proceeded. This is designed to promote certainty regarding the nature of the action and avoid confusion between any diverging principles relating to the statutory action and the common law action. In particular, there is no suggestion that the proposed statutory amendment would, or should, abolish or affect the distinction recognised in the cases between the legal position of a member or contributory, when the company was a going concern, and when it was in liquidation. 33 Further, the Bill provided for the inclusion of "officers" and "former officers" in the class of persons who would be eligible to apply to Court to bring an action in the name of a company. Such a change would have represented an expansion to the category of persons who had standing to complain about the exercise of the powers of a liquidator under s 477(6) and s 511 of the former Corporations Law , which was confined to "contributories" and "creditors". Likewise, only contributories and creditors had standing to invoke the inherent power in the course of winding up, to bring proceedings in the name of the company ( Cape Bretton Company v Fenn (1881) 17 Ch D 198; Cadima Express Pty Limited v Deputy Commissioner of Taxation [1999] NSWSC 1143 ; (2000) 157 FLR 424 at 433, at [42]). However, there is no discussion in the CLERP Paper, nor in the Explanatory Memorandum, of any rationale for reforming the law by expanding the class of eligible complainants to include a director or former director of the company. 34 In my view, the mischief which Parliament intended to address was confined only to that manifest in the existing law relating to the right of an aggrieved shareholder in a company, which was a going concern, to bring an action in the name of the company. Therefore, I agree with the observations made by Einstein J at 294, at [70] in BL & GY International referred to in [15] above. 35 It follows that, in my view, the abolition of the general law right, referred to in s 236(3) of the Act, was intended to be confined to the abolition of the right founded on the exceptions to the rule in Foss v Harbottle - being the general law which applied when the company in question was a going concern. It was not intended that the scope of the replacement statutory provisions would extend beyond the scope of the provisions of the general law which the statute abolished. 36 Another basis relied upon by Santow J in Roach for concluding s 236 and s 237 applied even when the company in question was in liquidation, was that the definition of "company" in the Act was wide enough to include a company in liquidation. Section 6(1) says that the definitions in Pt 1.2 of the Act "have effect for the purposes of the Act, except so far as the contrary intention appears in this Act". Accordingly, the definition of "company" does not preclude a finding that the relief in Pt 2F.1A was intended only to apply when the company in question was a going concern. 37 The distinction in the position of a person seeking to bring a claim in the name of a company, where the company is a going concern, and where it is in liquidation, and the rationale for the distinction, is authoritatively stated by Lord Blanesburgh in Ferguson and by Gummow J in Scarel in [23] and [25] respectively above. For the reasons set out above, in my view, Parliament did not intend, in enacting Pt 2F.1A, to undermine or affect that distinction. It follows, that the better view, in my opinion, is that Pt 2F.1A of the Act has no application when a company is in liquidation. 38 The case of Australian Securities and Investments Commission v Marlborough Gold Mines Ltd [1993] HCA 15 ; (1993) 177 CLR 485 presents an obstacle for the submission of counsel for Mrs Ripley. That decision requires a single judge interpreting a statute applied nationally, to give effect to the decisions of other single judges construing that statute, unless the single judge is of the view that the previous decisions of those single judges are "plainly wrong". This test requires a high degree of assurance on the part of the single judge departing from the existing view. As I have said, I am of the opinion, that the better view is that Pt 2F.1A has no application where a company is in liquidation, but in light of the considerable number of other single judges who have come to a different view, I do not have the high degree of assurance necessary for me to characterise the contrary view as "plainly wrong". 39 Accordingly, I will consider whether the second plaintiffs have satisfied the conditions necessary for the grant of leave to bring an action against Mrs Ripley in the name of the company. It is necessary for the plaintiffs to satisfy the Court in respect of each of the requirements in s 237(2) of the Act. 41 In cases where the company in question is in liquidation, and there is an external body of creditors, it has been said that the best interests of the company are to be defined by reference to the best interests of the creditors. However, there is a special circumstance in this case which takes it outside the usual position of a company in liquidation, namely, there is not a general body of external creditors. As appears from the plaintiffs' submissions, Promaco is the company's only creditor. This circumstance arises from the fact that the company was the vehicle whereby Promaco and Dedline Printing agreed to carry on a business in partnership, and Promaco has paid all the external creditors of the company. 42 In my view, when assessing the best interests of the company, it is not appropriate, therefore, in the unusual circumstances of this case, to apply the principles which would apply where a company is in liquidation and there is a general body of external creditors. 43 In Swansson v R A Pratt Properties Pty Ltd (2002) 42 ACSR 313 at 324, at [56], Palmer J observed that whether it was in the best interests of the company that the applicant be granted leave, could "only be determined by taking into account all of the relevant circumstances". One of the circumstances referred to by Palmer J was the "character of the company". His Honour observed that "different considerations may well apply depending on whether the company is a small, private company whose few shareholders are the members of a family or whether it is a large public listed company". 44 Another relevant consideration identified by Palmer J was whether the substance of the redress, which the applicant sought, could be achieved by the applicant for leave, bringing the proceedings in his or her own name, so that the company was not involved in the litigation at all. 45 In considering the nature of this company, this is a private company which was registered, and used, as a means of giving effect to a partnership agreement between Promaco and Dedline Printing. However, neither of the "partners" were registered shareholders of the company. The evidence of Ms Ainsworth, Ms Brew and Ms Cooper does not disclose the relationship that they have with Promaco or Mr Pearce. Neither does Mr Pearce in any of his affidavits disclose the nature of the relationship between the second plaintiffs, himself and Promaco. However, I infer that the second plaintiffs act at the direction of, and are under the control of Promaco, and are, in effect, the nominees of Promaco. I found this inference on the fact that the company was formed to give effect to the partnership between Promaco and Dedline Printing, with the profits being shared between them. Secondly, the application when it was first made was accompanied only by an affidavit of Mr Pearce. That affidavit stated that Mr Pearce was authorised to swear the affidavit on behalf of the second plaintiffs. 46 The true nature of the dispute in this case is a partnership dispute between Promaco and Dedline Printing. It was these two parties, and not the company, nor its shareholders, that were entitled to the profits of the business. The complaint in substance is that Dedline Printing has breached the partnership agreement and its fiduciary duty, and that its principals have caused it to do so. Any claim which Promaco has in relation to the unauthorised use of the printing machine, or in relation to Dedline Printing's alleged failure to indemnify Promaco in respect of the payment of the partnership expenses, can be brought in the name of Promaco itself. 47 To the extent that Promaco wishes to bring a claim for an account of profits for the misuse of the printing machine, it would be able to allege a breach of fiduciary duty against Dedline Printing. Likewise, to the extent that it wishes to pursue claims against each of Mr and Mrs Ripley, it is open to Promaco to allege that each is personally liable on the grounds that he or she knowingly assisted in a breach of fiduciary duty by Dedline Printing, in using the printing machine for its own benefit, without accounting for the profits. 48 Further, it is open to Promaco to claim from Dedline Printing the share of expenses which it claims that Dedline Printing has, in breach of the partnership agreement, failed to pay. 49 There is a further consideration. The evidence shows that there is an issue between Promaco and Dedline Printing, as to the reason for the demise of the partnership business, with the consequential liquidation of the company. The report of Mr Douglas-Brown as administrator, records as one of the possible reasons for the failure of the company, the failure of one of the partners to provide printing work to the company. Further, Mrs Ripley has deposed to deprivation being suffered by Dedline Printing, in relation to what she claims to be a failure of Promaco, in breach of the partnership agreement, to bring the level of business that it had promised to bring to the partnership. 50 Any potential cross-claim founded upon a breach by Promaco of the partnership agreement can appropriately be dealt with in the context of a claim and cross-claim founded upon the partnership relationship between the parties. 51 The granting of the second plaintiffs' application has the potential of leading to a counter application being made by Mrs Ripley, for the company's name to be used in an application against Mr Pearce, for a breach of his duty as a director, for preferring the interests of Promaco to that of the company. In my view, the true substance of the claims by Promaco, and any incipient cross-claim by Dedline Printing, can be effectively litigated without the company bringing an action, at all. 52 In my view, therefore, the plaintiffs have failed to show that it is in the best interests of the company, that the plaintiffs be granted leave under s 237 of the Act. The dispute can be more properly, in my view, litigated within the context of its true nature, namely, as a partnership dispute. 53 In light of my conclusions, it is unnecessary to consider Mrs Ripley's further contentions. However, I would add, I would also have found that on the evidence, the second plaintiffs were unable to satisfy the Court that they were acting in good faith. The evidence of Mr Pearce on the question of Promaco failing to meet its obligations, went no further than a generalised assertion that Promaco could provide no more work to the company than it did, largely because of a "general downturn in tourism following the events of 11 September 2001 and the Ansett collapse". I would, on the balance of probabilities, have been unable to find that Promaco was not complicit in the company's failure. 56 The application is dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

statutory derivative action application for leave under s 237 of the corporations act 2001 (cth) to bring an action in the name of a company company in liquidation whether pt 2f.1a of the act has application when company in liquidation whether in the best interests of company that leave be granted corporations

Merim holds 192,308 convertible notes issued by Style with a face value of $250,000. These notes were acquired in July 2007 and were part of an issue by Style to raise $10 million ("the capital raising " ). Merim also holds 329,696 options to take up shares in Style. Merim acquired the options in May 2007, and became a shareholder in Style on 16 June 2008. Mr Yunghanns says that Merim holds 9,578,229 shares in Style representing in excess of 8% of its issued capital. According to Mr Christopher Ritchie, Style's Chief Financial Officer, in June and July 2008 Merim acquired shares in Style itself or through nominees totalling 8,276,682 shares or thereabouts. For present purposes, the precise shareholding of Merim in Style is not critical. Merim was entered on Style's register of members on 14 August 2008. Style is a public company and has been listed on the Australian Securities Exchange ("ASX") since April 2004. It specialises in the manufacture and distribution of strand woven bamboo products. In May 2007, Style completed the acquisition of the remaining 50% of the shares it did not hold in Anji Ya Feng Bamboo Products Limited, a company based in Anji, China, which produces wooden flooring made from strand woven bamboo. At sometime around the middle of 2007, prior to 3 July 2007, Mr Yunghanns met on several occasions with Mr Stephen Roux, a director of Style, and Mr Marcus Freeman, an employee of Bell Potter Securities Limited, lead manager for an offer of convertible notes Style was proposing to make. Each of them told Mr Yunghanns that the money raised by the issue of the convertible notes was to be used to fund the acquisition of 5,500 hectares of a bamboo plantation in China. Style's business activities were significantly affected by a number of circumstances in late 2007 and early 2008 and it suffered a downturn in revenue for the financial year ended 30 June 2008. Despite early encouraging forecasts for revenue and earnings before interest, taxation, depreciation and amortisation ("EBITDA") in market announcements made to the ASX on 24 September and 31 October 2007, Style did not achieve those forecasts in the financial year ended June 2008. Style contends that this was due to a number of events that occurred between November 2007 and March 2008 that were not foreseeable at the time that the forecasts were made. Style asserts that it announced each of these matters to the market in the form of announcements to the ASX on 31 January 2008 and 30 April 2008 and downgraded its forecasts as a result. Merim says that its purpose in applying for an order to inspect Style's books is to investigate whether directors and officers of Style have exercised their powers reasonably, in good faith and for a proper purpose consistent with their statutory and fiduciary duties. It also seeks to investigate whether Style's chairman and directors misled Style's members and the market regarding the performance of Style, and in particular, whether announcements made to the market containing financial forecasts were designed to coincide with the sale of certain options to acquire shares in Style by Style's chairman. The Company is in the final stage of a transaction to acquire a substantial area of land in China under a 30 year lease with existing bamboo plantations. Hartleys Limited had previously prepared reports on Style in 2006 and 2007. Although Style has no record of any documents being provided to Hartleys Limited at any time, the report of 31 July 2007 set out a forecast of actual results for Style for the year ended 30 June 2006, and forecasts for the financial years 2007, 2008 and 2009. In particular, it forecast revenue for the 2007 financial year of $20.1 million, rising to $78.3 million and $123.4 million in 2008 and 2009 respectively, and EBITDA of $1.7 million in 2007 rising to $18.7 million and $35.4 million in 2008 and 2009 respectively. The Hartleys report recommended Style as a "Buy" for potential investors, noting that recent investment highlights included the capital raising and the company being in the final stages of acquiring a 30-year lease in a bamboo plantation in Wanzai, China. Style released its preliminary financial report for the year ended 30 June 2007 on 31 August 2007. On 24 September 2007, Style sent a market update to the ASX, stating that it had received a confidential preliminary approach from a private equity firm. The update set out Style's inaugural forecast, noting that the 2007 financial year revenue was $19.8 million and that revenue was forecast to rise to a range of $60 million to $80 million in the 2008 financial year. EBITDA for the 2007 financial year was reported as $1.8 million and was forecast to rise to a range of $14 million to $20 million in the 2008 financial year. On 27 September 2007, Style sent a letter to the ASX advising that Mr Gregory Johnson, the Chairman and Chief Executive Officer of Style, had sold 6,499,839 listed options in Style through Bell Potter Securities Limited to Australian and international institutional and professional investors for $4,159,988 on 24 September 2007. On 28 September 2007, Style released its audited financial results and annual report for the financial year ended 30 June 2007. It reported that revenue for the 2007 financial year was approximately $19.9 million, net profit was $112,178 and EBITDA $1,700,440. The annual report stated that options over approximately 6,900,000 shares in Style had been granted which were due to expire on 30 January 2009. The report stated further that Style had commenced proceedings to collect outstanding debts of approximately $65,000 owed to it by two former franchisees and that although one of the parties to the dispute had launched a counterclaim against Style and the other party had notified its intention to lodge a counterclaim, Style was confident that it had a strong case against these parties. On 31 October 2007, Style sent its September 2007 quarterly report to the ASX in which it reported its results for the first quarter of the 2008 financial year, recording a 5.1% increase in revenue over the previous quarter's revenue, and reported EBITDA of $766,000. The report reaffirmed Style's guidance revenue range for the financial year 2008 of between $60 million to $80 million and its EBITDA range of $14 million to $20 million. The report recorded that in the quarter ended 30 September 2007 Style had paid the consideration for the acquisition of the remaining 50% of the shares in Anji Ya Feng Bamboo Products Limited. On 23 November 2007 Style announced to the ASX that the terms for the acquisition of the Wanzai plantation had been met. These terms included a contract term to 2057 under a 50 year lease. Style also announced that it expected a 30% improvement in the total cost of goods sold. On 31 January 2008, Style announced to the ASX that forecast revenue for the financial year 2008 had been revised to $30 million to $35 million with EBITDA of $3 million to $3.6 million. The announcement stated that the lower than projected revenue had arisen from the effects of a five month delay in the delivery by the supplier of the initial phase of the upgrade of the factory facilities in Anji and short-term quality issues that had delayed the schedule of shipments to the United States of America. The announcement stated that the new machine lines had been installed and were operational, and that "the full benefits of the plant expansion will be realised at the commencement of fiscal year 2009. " It also noted that the shipments of finished product for the March 2008 quarter were below the shipments for the corresponding period in 2007 due to the time taken to rebuild sales in the United States market following the quality and machine delay issues announced in January 2008. The announcement also stated that the severe ice and snowstorms that had affected China in February had prevented employees from working at the Anji factory and that it was experiencing administrative delays with Chinese customs. On 3 June 2008, Style released an investor update. In relation to the Wanzai plantation, Style stated that it had reviewed the project after receipt of an independent report confirming substantial damage caused to the plantation by the ice storm in February 2008. The report had concluded that the plantation would take approximately four years to regenerate. The Company will benefit from a reduction in ongoing annual leasing costs of RMB 5 million ($769,000) and an absence of a commitment to develop the plantations and industrial site. Unlike previous quarterly statements the results announced did not disclose Style's revenue, EBITDA or profit or loss. Instead, figures relating to the cash flow of the company were released. On 25 August 2008, Merim instituted this proceeding. On the same day, Style released an update by its Chief Executive Officer, Mr Peter Torreele (who had taken on the position in June 2008) and an update from the Chairman, Mr Johnson. It also released its preliminary results for the year ended 30 June 2008. The emails contained not only requests for information, but also invective and personal criticisms of particular members of Style's board of directors. Mr Yunghanns swore affidavits which were relied upon by Merim but he was not required by Style to attend for cross-examination. In those circumstances, it is not appropriate to draw any conclusions from the sometimes intemperate nature of Mr Yunghanns' communications. I do not intend to set out verbatim all their contents. It is sufficient, for present purposes, to set out the requests for information that Mr Yunghanns has made to Style and the responses that he has received which he contends have been unsatisfactory. On 4 July 2008, Mr Yunghanns sent an email to one of Style's non-executive directors, Mr Stephen Roux, asking him to explain how particular working capital (to a value of $14,163,000) as recorded in the quarterly cash statement for the period ended 31 December 2007 was applied. This statement is also made in a number of other announcements issued by the company and lodged with the Australian Securities Exchange. It raised $10,000,000 during the 1 st quarter of 2008, yet, at the end of the first quarter, it had cash of $7,884,000 and no bamboo plantations. How was the $8,379,000 applied? Please explain the asset category to which the $14,163,000 was applied. We hope to be in a position to respond to you tomorrow. When was the 1 st revenue range guidance given? Whether you choose to reply is up to you. " On 21 July 2008, Mr Yunghanns sent an email to Mr Roux, noting that Mr Roux had said on 17 July 2008 that the company was formulating a response to his email of 4 July and hoped to be in a position to respond tomorrow. I am unable to identify the asset of a bamboo plantation in the Balance Sheet of 30/12/07. Can you help me? Is this the goodwill on the acquisition of the 50% interest in the manufacturing joint venture? The key terms were not set out and the cash consideration was payable on 30/06/07. The June 07 Cash Flow does not reflect the payment. Surely the cash consideration was a liability, or had it been paid on the 30/06/07? I want an immediate response to all the issues raised above and the issues raised in my other emails. On the same day, he sent an email to Mr Torreele in which he referred to a discussion between them the day before and said how 'greatly encouraged' he was by the 'action' that Mr Torreele was taking to 'clear the decks'. Mr Ritchie further noted that the company acknowledged receipt of Mr Yunghanns' additional questions and 'is endeavouring to provide a response in due course'. The letter attached to the email was signed by Mr Hamilton, Style's Company Secretary. This strategy was partly implemented when substantial damage was caused to the plantation by an ice storm in February 2008. Subsequently, an independent report has confirmed that it would take approximately four years for the plantation to regenerate. The Company has reached an in-principle agreement with the relevant government authorities in China to exit from its obligations relating to the project. Supply of bamboo to the Company's existing operations continues to be made from third party plantations. We propose to provide further information about the inflows and outflows of cash for the full financial year at that time. This will provide even more details about the application of funds raised from the note issue or internally generated. I assume it is not the auditor's duty to police this, however, there must be someone who does. Can you help me? Should you require any further information of me please let me know. It will be evident from the letters why I have requisitioned the meeting. I am unable to get any meaningful response out of Style to questions I have asked on behalf of all shareholders. The originating process was filed on 25 August 2008. By 4.00pm on 10 September 2008 the defendant notify the plaintiff in writing of the documents that it will make available for inspection and the location of those documents. Adjourn the further hearing to 9.30am on 30 September 2008. Costs reserved. These were not all the documents in respect of which Merim had sought inspection. The inspection was made subject to a stipulated confidentiality regime making inspection only available to Merim's senior counsel and instructing solicitor. Style refused inspection to Mr Yunghanns. Merim's solicitors objected to the confidentiality requirement on the ground that it was unfounded and inappropriate and said that Style's reply was not compliance with Finkelstein J's orders. Style's solicitors' response was that Merim had not made out a case to inspect any documents pursuant to s 247A of the Act. Merim's solicitors sought access to further documents but Style did not make any documents available for inspection. On that day, Finkelstein J made orders setting out a timetable for Merim and Style to file and serve any affidavits upon which they intended to rely and written outlines of submissions. In its submissions, Style argued that at the hearing of 2 September 2008, it had preserved its right to determine which, if any, documents it would make available once it had sufficient time to consider the categories of documents sought in the application. In its submissions, Merim contended that Style was now precluded from contesting aspects of the application on the basis of the orders made by Finkelstein J on 2 September 2008. It argued that Style was seeking to "re-litigate the Plaintiff's entitlement to inspect the books and records of the Company". Merim argued that the orders made by consent on 2 September 2008 evidenced an agreement by Style that the documents would be produced to the plaintiff for inspection, and that a regime of inspection had been agreed to. IS STYLE PRECLUDED FROM ARGUING THAT AN ORDER UNDER S 247A SHOULD NOT BE MADE? Merim contends that the orders made by consent by Finkelstein J on 2 September 2008 evidence an agreement by Style that documents would be produced by Style to Merim for inspection. There is a difficulty in characterising the orders made by Finkelstein J as evidencing an agreement that documents would be produced for inspection. The question immediately arises "what documents"? The orders made on 2 September 2008 do not identify or specify particular documents which Style has agreed to produce for inspection. Putting the matter another way, in contractual terms, if Merim sought specific performance of the agreement upon which it relies, what performance would Style be required to carry out? The orders made on 2 September 2008 left Style at large as to whether it would make any documents available for inspection. Merim submitted that such a construction of the orders would make the orders a nullity. The orders were not a nullity, but the consequence of them was that Style was not obliged to notify Merim of any particular documents it was prepared to make available for inspection. It seems to follow that if Style did not notify Merim of any documents it was prepared to make available for inspection or notify Merim that it was only making available a limited number of documents for inspection, the matter would have to go back to Finkelstein J for further orders. Merim submitted that if that was the proper construction to be given to the orders made on 2 September 2008 the result was that Style was not entitled to re-litigate Merim's standing or purpose or the power of the Court to grant inspection under s 247A of the Act. I do not accept that submission. If the matter had returned to Finkelstein J, he could only have proceeded to make further orders for inspection of particular categories of documents if, as required by s 247A(1) or s 247A(5), he was satisfied that Merim was acting in good faith and that the inspection was to be made for a proper purpose. I have read the transcript of the hearing before Finkelstein J on 2 September 2008 and I am satisfied that his Honour did not address that issue at all. He was not required to do so at that time. What apparently occurred on 2 September 2008 was that a short cut was taken designed, if possible, to avoid a further substantive and contested hearing. The short cut did not work and as a result the matter had to be litigated before a judge particularly in relation to the issue of good faith and inspection for a proper purpose. Even if the parties consented to an order for inspection of specific categories of documents, it was still necessary, as a matter of jurisdiction, for the judge making the order affirmatively to be satisfied that Merim was acting in good faith and that inspection was to be made for a proper purpose. That was required by s 247A. This threshold issue is therefore resolved not on the basis of any learning in relation to the effect and consequence of consent orders or the doctrine of estoppel but rather on the basis that a procedural short cut agreed to by the parties was taken and adopted by Finkelstein J which did not work out. The result was that the principal issue whether an order should be made under s 247A had to be argued and determined. He was not cross-examined on those affidavits. I am also concerned that the defendant is or may become insolvent. For that purpose, I wish to inspect the books of the company to consider whether action in the name of the defendant should be commenced against officers or former officers. Senior counsel for Merim developed Mr Yunghanns' concerns further during the course of the hearing. The company may be entitled to bring an action against the directors for the following relief: To disgorge any profit obtained from breach of duty; To compensate the company for losses caused by breach of duty; For declarations that they indemnify the company in respect of any claims made against the company arising from their breach of duty or misconduct (eg to satisfy the convertible notes when they fall due and/or any claims by aggrieved shareholders); and Equitable compensation. However, by the time Merim purchased its shares in Style, Style had stated in an investor update that it was likely to make a loss for the year ending 30 June 2008 and that it did not intend to give forecasts of future performance for the time being; Mr Yunghanns had between 4 July 2008 and 23 September 2008 addressed approximately 48 emails and letters to Style's chairman, directors, chief executive officer, chief financial officer, company secretary, auditors, bankers, distributors and shareholders and caused Merim to bring this application, causing disruption and cost to Style; Between 16 July 2008 and 12 September 2008, Merim had requisitioned three general meetings of the shareholders of Style to remove two incumbent directors and appoint four nominees of Merim (including Mr Yunghanns) to the board. The first of these meetings had been held and Merim's resolutions were not passed. 57 None of these matters were put to Mr Yunghanns. He was not cross-examined on his affidavits and, in particular, he was not challenged on what he said was his and Merim's purpose in seeking inspection of Style's documents: see [54] above. In any event, I do not consider that any of those matters impeach Mr Yunghanns' stated purpose. In particular, Merim had acquired a financial or economic interest in Style in July 2007 through the issue to it of convertible notes issued by Style. A person applying for an order pursuant to s 247A bears the onus of establishing that he is acting in good faith and that the inspection is to be made for a proper purpose: Acehill Investments Pty Ltd v Incitec Ltd [2002] SASC 344 at [29] . Merim must do more than demonstrate that it is dissatisfied with the management decisions: Re Augold NL [1987] 2 Qd R 297 at 308 Cescastle Pty Ltd v Renak Holdings Ltd (1991) 6 ACSR 115 at 117. Merim must satisfy me that it is entitled to inspect the books because the information sought relates to matters that it as a shareholder ought to be informed of by the company: see, for example, Czerwinski v Syrena Royal Pty Ltd (No 1) [2000] VSC 125 ; (2000) 34 ACSR 245 at 248. Provided the primary or dominant purpose for which the inspection is sought by Merim is a proper purpose, any subsidiary purpose for some other benefit is not relevant. In my view its primary or dominant purpose is to ascertain whether or not the directors of Humes have been and are in breach of their duties to the shareholders of Humes in so far as the proposed acquisition of Smorgon Steel is concerned and whether or not it should oppose the proposal. If that is its dominant purpose as I am satisfied it is, in my opinion it is not to the point that an inspection of Humes books relating to the proposal may in some way be of benefit to Unity APA so far as its take over is concerned. If its primary purpose is a valid purpose such a consideration is irrelevant. The requirement that the applicant is acting in good faith and that the inspection is to be made for a proper purpose expresses a composite notion and the court will determine whether each has been demonstrated by applying an objective test. I emphasise that this is a general rule. That proposition is not disputed by Style. In answer to a question from me, whether Mr Yunghanns had received an answer to his queries, counsel for Style replied "Not comprehensively". I am satisfied Merim has not received an answer to the questions raised in Mr Yunghanns' email of 4 July 2008, nor has Merim received answers to a number of the questions and issues raised in subsequent emails and letters sent to Style and its officers. Style argued that I should not attach a lot of weight to the fact that Mr Yunghanns had sent letters asking questions that had not been answered, in the absence of Mr Yunghanns pointing to specific matters that caused concern. In fact, Mr Yunghanns has identified specific matters that cause him concern. He has raised queries as to the manner in which funds of Style have been used and he has not been given an answer. He is not questioning management decisions but is rather seeking explanation as to how funds of Style have been deployed and where the proceeds of a capital raising have been used. He has identified a case for investigation. Style's explanations for not responding to Mr Yunghanns' queries do not warrant the conclusion that Mr Yunghanns' purpose in seeking inspection is different from what he has stated as his purpose. While there is some evidence that Mr Yunghanns may be contemplating action to gain control of, or take over, Style, I do not consider that I should reject his evidence as to his purpose in seeking the order for inspection. In the absence of cross-examination of Mr Yunghanns there is no reason why I should reject his evidence as to his purpose having regard to the sequence of communications between Mr Yunghanns and Style to which I have referred. I am satisfied that even if the inspection sought may assist Mr Yunghanns or Merim in a proposal to gain control of, or take over, Style, Merim's primary or dominant purpose is as stated by Mr Yunghanns. Section 247A requires me to be satisfied that Merim is acting in good faith and that the inspection is to be made for a proper purpose. I am so satisfied. Mr Yunghanns has raised a number of financial issues concerning Style which Style has not answered. In my view, those issues are substantive and not fanciful. Mr Yunghanns' queries raise specific matters that cause concern to Mr Yunghanns and, on the material placed before me, I do not consider those concerns are artificial, specious or contrived. To adopt the expression used by Brooking J in Intercapital Holdings Ltd v MEH Ltd (1988) 13 ACLR 595 at 601-602 and in Knightswood Nominees Pty Ltd v Sherwin Pastoral Company Ltd (supra) at 154, I consider there is a "case for investigation". Style responded to the concerns raised by Mr Yunghanns and the potential derivative action claims that Merim wishes to investigate by explaining the circumstances surrounding a number of those matters. For example, Mr Ritchie explained the circumstances relating to the acquisition of a leasehold interest in the Wanzai bamboo plantation. But he does not explain the disposition of the funds raised by the convertible note issue, nor does he seek to reconcile the figures referred to by Mr Yunghanns in his email to Mr Stephen Roux on 4 July 2008. In the present circumstances, having regard to Style's failure to respond to the matters raised by Mr Yunghanns in correspondence, given the sudden decline of the company's financial position and the decision taken not to report on revenue, EBITDA or forecasts in June 2008 in the same manner as reports produced in earlier quarters of the 2008 financial year, I consider that Merim should be entitled to inspect the books of Style which bear upon the matters which cause it concern. I am satisfied that in seeking such inspection Merim is acting in good faith and that the inspection is to be made for a proper purpose. The fact that Merim and Mr Yunghanns have sought to convene a general meeting of members of Style does not detract from the primary or dominant purpose Merim has given for inspecting Style's books. It merely indicates the level of dissatisfaction Mr Yunghanns has with the way in which Style has been managed in recent months. This would cause unnecessary disruption to the company. In any event the books to be inspected should be books that bear on, and be particularly relevant to, the purpose for which the inspection is sought. Merim has sought inspection of specific categories. In its application filed on 25 August 2008, Merim specified in a schedule thirteen categories of documents it sought to inspect. In the course of argument I indicated to counsel for Merim that I considered some of the categories of documents sought by Merim for inspection were widely expressed and some categories were not relevant to the purpose for which the inspection was sought. As a result, counsel for Merim amended and redrafted the schedule of documents in respect of which inspection was sought. The amended schedule of documents sought was in the following terms: All documents, supporting accounts, profit forecasts that support the announcements by Style to the Australian Stock Exchange on 24 September 2007, 31 October 2007, 31 January 2008, 29 February 2008 and 30 April 2008. All documents relating to any comparison of variations of actual financial performance against projection for each of the four quarters of financial year 2008. All documents including projections, cash flows, contracts or other agreements and advice received in relation to the acquisition of the leasehold of the Wanzai plantation. All documents relating to the increase in banking facilities held by Style in FY07 and FY08. All documents including all budgets, projections and other information or instructions provided by Style to Bell Potter Securities Limited regarding the convertible note issue announced to the Australian Stock Exchange on 4 July 2007. All documents relating to any underwriting agreement or possible underwriting agreement which may have been discussed between Style and the potential underwriters of options issued by Style. All documents relating to proceedings for recovery of a debt of $65,000 referred to in note 24 to the financial statements for the FY07 year and the subsequent settlement by payment by Style of $675,000 to the franchisees and which settlement was disclosed in the announcement by Style to the Australian Stock Exchange on 30 April 2008 [should be 21 July 2008]. All documents relating to the private equity enquiry referred to in the market update released by Style on 24 September 2007. All documents created by Style between 30 June 2007 and the present including any cashflow forecasts, budgets and directors' considerations relating to the solvency of Style for the year ending 30 June 2009. All documents that support the announcement to the Australian Stock Exchange on 23 November 2007 that Style expects that the acquisition of the Wanzai plantation will result in a 30% improvement in total cost of goods. All policies of insurance and policy schedules relating to any directors and officers insurance entered into by Style for the benefit of its directors and officers. All documents in relation to the extension of the distribution agreement between Style and its "Major North American Distributor" (Buckwold Western). All documents in relation to the issue of additional securities in the company without a prospectus announced on 8 September 2008. All documents relating to the acquisition of the remaining 50% shareholding in Anji Ya Feng Bamboo Products Limited. All documents relating to the acquisition, installation and commissioning of the plant and equipment at the finishing factory in China in the course of the year ending 30 June 2008. All documents relating to the proposed sale and lease-back of that finishing factory. All documents relating to the recently announced commitment by each of Greg Johnson and Fairmount Investments Pty Ltd to exercise options held in the company by 31 January 2009. The parties were unable to refer me to any cases which had considered whether orders should be made which allowed for the inspection of directors and officers insurance policies held by a company pursuant to s 247A. Merim submitted the position for a shareholder, who is granted inspection of the books of a company pursuant to s 247A for the purpose of considering whether proceedings should be commenced in the name of the company against its directors is analogous to that of a liquidator examining the affairs of a company to determine whether litigation on behalf of the company should be pursued. I do not consider that there is an exact analogy between the position of a shareholder and the position of a liquidator in these circumstances. The liquidator is given specific functions and powers by statute and has a status quite independent of any other interest in the company. This status was emphasised by the Full Federal Court in Grosvenor Hill (Queensland) Pty Ltd v Barber [1994] FCA 921 ; (1994) 48 FCR 301. The liquidator comes to the company as an officer of the court under a duty and responsibility to get in and maximise the assets of the company for distribution for the benefit of creditors. In the discharge of his or her duty and function, the liquidator comes to the company with limited or no knowledge of the company's assets, business and affairs. The liquidator is therefore in a position of disadvantage to make informed decisions of both a legal and a commercial nature necessary to carry out the winding up. The effect of the legislation is to place a liquidator in a privileged position to obtain information relevant to and necessary for the proper discharge of his or her statutory function. The seeking of information to make decisions as to whether or not litigation ought to be embarked upon or continued in itself is no more than 'an exercise of his duties and the fulfilment of his responsibilities as liquidator' (per Bryson J in Lombard Nash International Pty Ltd v Berentsen (1990) 8 ACLC 1213 at 1217). As was pointed out in the cases to which I have earlier referred (par [67] above) the rationale underlying s 247A, insofar as the purpose is to inspect documents in order to consider possible legal proceedings against directors is to enable a shareholder who has identified an appropriate "case for investigation" to determine whether that case has any substance or prospects. In Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) [1993] SASC 4359 ; (1993) 61 SASR 557 , the Full Court of the Supreme Court of South Australia permitted a liquidator to seek information as to the nature and extent of the professional indemnity insurance cover held by professional advisors to the company in liquidation to determine the likely possibility of recovering any judgment obtained against them having regard to the cost likely to be generated by liquidation. Merim did not seek to rely, by analogy on O15A r 6 of the Federal Court Rules which enable an order to be made for preliminary discovery. Merim accepted that the Court, under O 15A r 6, is required to determine whether an applicant has reasonable cause to believe that it may have a cause of action against another person, and whether the applicant has insufficient information to enable the decision to be made. Merim acknowledged that access to insurance policies are usually denied under this Rule (unless relevant to investigating the identity of potential parties to an action). Style contended that there was no analogy between the issues in this proceeding and the situation of a liquidator investigating whether to institute proceedings against directors of the company. Style emphasised the unique situation of a liquidator compared to that of an ordinary litigant, Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 , 497. According to Style, the 'real' purpose of s 247A is to enable a shareholder who has identified a case suspected as requiring investigation to the requisite degree to obtain access to documents of the company to determine whether the case has substance; it is not to enable a shareholder to inspect all the documents of the company that the shareholder may wish to see to determine whether a derivative action would result in the company ultimately recovering substantial funds from directors if a case against them is proved. The situation facing Merim is quite different from the situation facing a liquidator in the cases where a liquidator has sought production of directors and officers insurance policies. In those cases the liquidator did not know whether any such policies were held by the relevant companies or persons against whom proceedings were being contemplated. In this case Merim knows that Style holds, or at least has held, directors and officers insurance. The amount of the premium is estimated to be $12,636. Merim therefore knows of the existence of a policy of insurance and the amount of the premium estimated by Style to be payable under it. That was the position as at 30 June 2007. What Merim does not know, however, is the extent of the cover granted under that policy and whether it is current. I therefore consider that it is appropriate, as a matter of exercise of discretion to order that Style produce for inspection any directors and officers insurance policies currently held by Style. The cover granted under any such policies will be relevant to the decision to be made by Merim, after inspection of the other documents in respect of which I propose to make an order, whether to apply for leave under s 237 of the Act to bring a proceeding on behalf of Style in its name against any directors or officers of Style. Senior Counsel for Merim also requested that an accountant for Merim be added to the list of persons to inspect the relevant documents. In short, the Regime proposed by Style requires that documents are to be inspected at the premises of the solicitors for Style, and a copy of the documents may be made, but that the Nominated Individuals must not disclose the contents of the documents to any person other than another Nominated Individual, and may not make or permit to be made further copies of the relevant documents. The Nominated Individuals must maintain the confidential nature of the relevant documents, safeguard the documents from unauthorised access, and return the copy documents to Style's solicitors if no application is made to the Court by Merim for leave under s 237 of the Act within 60 days of the completion of the inspection of the relevant documents. I do not consider that it is necessary for a specific confidentiality regime to be imposed in relation to the order for inspection I propose to make. Section 247C(1) provides that a person who inspects books on behalf of an applicant under s 247A "must not disclose information obtained during the inspection" other than to the Australian Securities and Investments Commission or the applicant for the order. In my view that is an appropriate and sufficient protection for Style in relation to the confidentiality of its documents. It does not, for example, allow the persons carrying out the inspection to disclose such information in the course of any later proceedings which may be brought. To the extent to which an applicant would wish to tender in evidence any of those documents, it would need to obtain access to them by way of discovery or notice to produce. I have accordingly limited the order for the inspection to those categories of documents which bear upon and relate to the particular concerns raised by Mr Yunghanns in his affidavits and the correspondence into which he entered with the various officers and persons associated with Style which establish a case for investigation. I have excluded from the order a number of the categories of documents in respect of which inspection has been sought by Merim as I am not satisfied that Merim has established a sufficient case for investigation of the subject-matter to which those categories of documents relate. I am prepared to make an order permitting Mr Yunghanns, Merim's legal adviser and accountant nominated by Merim to inspect the documents set out in the schedule to the order for the purpose of considering whether proceedings should be brought in the name of Style against Style, or directors or employees of Style, and that those persons are not to communicate or disclose information they obtain as a result of the inspection to any persons other than the legal advisers to the plaintiff or until further order. I will give the parties the opportunity to speak to the form of the order and I will reserve liberty to apply. Style has been unsuccessful in its opposition to Merim's application and it should pay Merim's costs and incidental to the application. I certify that the preceding eight-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

section 247a application to inspect the books of a company good faith and proper purpose dual purposes dominant purpose access to director and officer insurance policies corporations

At pages 13 and 24 of the transcript of proceedings before her Honour, the house plan is described as the Cortona 290 plan and the Kertona 290 plan although the pleadings in the action, and her Honour in the course of her reasons, described the plan as variously the Cambridge 245, Verona 245 and Cortona 245 plan (hereinafter called the 'Cortona 245 plan'). 2 In the course of proceedings, the respondents admitted, that the applicant is the owner of the copyright subsisting in the plan; the respondents were responsible for bringing into existence a design and plan for a house generally described as the Bogdan plan; and the respondents constructed a house based on the Bogdan plan. 3 The applicants in the proceeding before her Honour contended that the Bogdan plan is a substantial copy of the Cortona 245 plan and the Bogdan house is a three-dimensional reproduction of the applicant's two-dimensional work. 4 The applicant seeks to appeal from the decision and orders of her Honour. 5 The appellate jurisdiction of the Federal Court of Australia includes a jurisdiction to hear and determine appeals from judgments of a Court of a State exercising federal jurisdiction, in such cases 'as are provided by any other Act' (s 24(1)(c) Federal Court of Australia Act 1976 ). Section 131B(2) of the Copyright Act 1968 (Cth) (' Copyright Act ') provides that an appeal lies from a decision of a Court of a State under Part V of the Copyright Act to the Federal Court of Australia. Section 39(2) of the Judiciary Act 1903 (Cth) provides that 'the several Courts of the States shall within the limits of their several jurisdictions, ... be invested with federal jurisdiction, in all matters in which the High Court has original jurisdiction or in which original jurisdiction can be conferred upon it ...'. The High Court has original jurisdiction in the five matters set out in s 75 of the Constitution . By s 76 of the Constitution , the Parliament may confer original jurisdiction on the High Court in any matter arising under any laws made by the Parliament (s 76(ii)). Additionally, by s 77(iii) of the Constitution , the Parliament may make laws investing any Court of a State with federal jurisdiction in respect of the nine matters identified in ss 75 and 76 of the Constitution . Since original jurisdiction can be conferred upon the High Court in any matter arising under the Copyright Act , s 39(2) invests the Magistrates Court of Queensland with federal jurisdiction in respect of a matter under Part V of the Copyright Act which includes s 115 of the Copyright Act conferring an entitlement upon the copyright owner to bring an action for infringement of copyright. The decision of her Honour was thus a decision under Part V of the Copyright Act and an appeal lies from that decision to the Federal Court of Australia ( Ly and Another v Jenkins and Others [2001] FCA 1640 ; (2001) 114 FCR 237 per Sackville J at [69] and following). 6 The exercise of the Court's appellate jurisdiction contemplates applications for leave to appeal or for an extension of time within which to institute an appeal to the Court (s 25(2)(a) and (b)). By s 25(2A) , the rules of Court may make provision for applications to be dealt with of the kind mentioned in s 25(2). Order 52, rule 15(1)(a) provides that a notice of appeal shall be filed and served within 21 days after the date when the judgment appealed from was pronounced. The time limited for filing and serving a notice of appeal, in this case, expired on 10 April 2007. Order 52, rule 15(2) provides that the Court or a judge for 'special reasons' may at any time give leave to file and serve a notice of appeal which, in accordance with Form 54A and Order 52, rule 15(3) involves an application for an extension of time within which, by leave, to file and serve a notice of appeal. The notice of motion seeking an extension of time was filed on 13 December 2007 approximately eight months after the expiration of the time limited for filing and serving an appeal. 7 It is entirely uncontroversial that in considering an application to extend time to file and serve a notice of appeal, the Court will have regard to the length of the delay ( Jess v Scott (1986) 12 FCR 187 per Lockhart, Sheppard and Burchett JJ); the explanation for the delay and whether the applicant has contributed to the delay ( Stollznow v Calvert [1980] 2 NSWLR 749, per Moffit P); any prejudice to the respondents arising out of the delay ( Douglas v Allen (1984) 1 FCR 287 per Morling J; Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 per Wilcox J at p 349); actions taken by the applicant to alert the respondent to the fact that the decision is or may be contested ( Hunter Valley Developments at p 349); the merits of the proposed appeal ( Hunter Valley Developments at p 349; Seiler v Minister for Immigration (1994) 48 FCR 83 per French J at p 98B); alternative avenues of relief ( Re Envirotech Australia Pty Ltd (1989) 14 IPR 108 per Jenkinson J); and any questions going to public interest ( Envirotech and Johns v Australian Securities Commission (1992) 108 ALR 277 per Heerey J). 8 The background events are these. 9 The proceedings before her Honour SM Payne were conducted over two days on 26 and 27 April 2006. An ex tempore judgment was delivered by her Honour on 20 March 2007 approximately 12 months later. The applicant sought access to a transcript of the ex tempore reasons from the Magistrates Court and an appeal was filed in the District Court of Queensland at Brisbane on 16 April 2007, and served. On 24 April 2007, the present solicitors for the respondents, Bennett & Philp, sent a notice of address for service to the solicitors for the applicant. On 26 July 2007, the applicant's solicitors wrote to the Magistrates Court requesting a copy of the transcript of proceedings. The transcript of the trial was collected by the applicant's solicitors on 2 August 2007. The appeal filed in the District Court of Queensland on 16 April 2007 was prosecuted in accordance with District Court Practice Direction No. 4 of 1997 which required the appellant in that Court to file an outline of submissions which occurred on 2 October 2007. The appellant's outline was served on the solicitors for the respondents on 8 October 2007. On 25 October 2007, the respondent's solicitors wrote to the District Court seeking an extension of time to prepare, file and serve an outline of argument until 28 days after receiving a copy of a transcript of the proceeding and the ex tempore reasons for decision. On 5 December 2007, the solicitors for the respondents sent a letter to the Registrar of the District Court contending that by reason of s 131B of the Copyright Act , the District Court had no jurisdiction to entertain an appeal from the decision of the Magistrates Court. A copy of that letter together with a further letter dated 5 December 2007 was sent by Bennett & Philp to the solicitors for the applicant. 10 On 14 December 2007, the applicant filed the present notice of motion seeking an extension of time to file and serve an appeal to this Court. 11 It can be seen that although there is a very lengthy period of delay, the applicant's solicitors promptly sought access to a transcript of the ex tempore reasons of her Honour; filed an appeal in the District Court on 16 April 2007; sought access to a transcript of the entire proceeding heard on 26 and 27 April 2006 and acted consistently with the relevant District Court Practice Direction. Equally clearly, the solicitors for the respondents engaged in that process and sought an extension of time to file submissions in response. During the course of early December 2007, it became apparent to both parties that a notice of appeal ought to have been filed in the Federal Court of Australia. It follows that the applicant proceeded on an incorrect assumption by reason of the approach adopted by the legal advisers and the failure to file a notice of appeal in the Federal Court is not conduct truly referable to the applicant itself. Also, the respondents for a time at least, by their lawyers thought that the District Court of Queensland was the proper forum for hearing and determining an appeal from her Honour's orders. 12 Accordingly, I am satisfied that although the delay is lengthy, it is sufficiently explained by the events between 20 March 2007 and the filing in this Court of the present notice of motion on 14 December 2007. 13 As to the question of prejudice to the respondents, no prejudice is contended for by the respondents. 14 As to the question of notice to the respondents that the decision would be contested, the appeal filed in the District Court of Queensland at Brisbane gave notice to the respondents that the applicant proposed to contest the decision. The content of that contest was elaborated by the applicant's outline of argument filed in the District Court as appellant, consistent with the Practice Direction of that Court. 15 The central matter upon which the application is to be resolved is whether the applicant has demonstrated sufficiently arguable grounds of appeal that the interests of justice require the grant of an extension of time to enable an appeal to be heard and determined. 16 As to the grounds of appeal, the applicant contends that the ex tempore decision of her Honour of 20 March 2007 approximately 12 months after the conclusion of the two day hearing resulted in the dismissal of the applicant's claim based upon reasons which failed to deal with important evidence going to the question of conscious copying and substantial similarity as the test of reproduction of the work. The applicant relied upon contended substantial similarities between its plan for the Cortona 245 and the features evident in the Bogdan plan and house and, in particular, the contended three-dimensional reproduction of the artistic work. The applicant relied upon those similarities as the basis for an inference of copying by the respondents, that is, an inference of a causal connection between the conduct of the respondents and the applicant's work, and satisfaction of the test of reproduction. In dismissing the applicant's claim, the applicant contends that her Honour failed to dispositively deal with the evidence of Mr Henesey-Smith; the evidence of an expert architect called by the applicant, Mr Deshon; the evidence of a third party manufacturer of roof trusses, Mr Neuson of Truss Master; the evidence of Mrs Bogdan; and inferences to be drawn from the failure of Mr Bogdan to give evidence as to the authorship and evolution of the Bogdan plan and the failure of the respondents to call evidence from the draftsman retained by the respondents, Mr Djako. 17 In response, the respondents say that her Honour properly considered the authorities relevant to the question of whether the respondents brought their drawing into existence and ultimately constructed their house having regard to any work or structure of the applicant and also the question of whether the Bogdan plan and ultimately the Bogdan house reflect substantial qualitative similarities so as to constitute a reproduction of the work. The applicant says that her Honour erred in concluding that although there are similarities evident in the relevant comparison, those similarities are referable to 'common design features' emblematic of house plans. Secondly, her Honour is said to have erred in concluding that the dissimilarities are such that no inference of causal connection can be drawn from the similarity of features in the absence of evidence of access to the work of the applicant, and thus the applicant had failed to discharge the onus of proof. 18 In her reasons for decision, her Honour noted that the applicant called three witnesses: Mr Neuson who worked for Truss Master; Mr Henesey-Smith, the Executive General Manager of the applicant; and Mr Deshon. Her Honour turned to the evidence of Mr Deshon and noted his evidence of the distinguishing features of the applicant's plan and particularly the features of 'higher ceilings' and 'splayed' or 'angled' walls. Her Honour noted aspects of Mr Deshon's evidence concerning a plan of 'Dixon Homes' which was put to him in cross-examination and Mr Deshon's observation of some similarities within the layout of that plan and the applicant's plan. 19 Mr Deshon, in his evidence, also dealt with the central contention of the respondents that the Bogdan plan had evolved from a combination of references to a plan for an earlier Canberra house and contributions to the evolution of the plan by Mr Bogdan's father-in-law having regard to a particular photograph from a magazine selected by Mr Bogdan exhibiting raked windows. Mr Deshon considered a document described as Annexure 'A' (the 'Canberra plan'), Annexure 'C' (the 'Bogdan plan') and Annexure 'B' (a drawing) out of which Annexure 'C' was said to have emerged. Mr Deshon gave evidence that he could not see any progressive development of Annexure 'C' from Annexure 'A' and questioned the sequence of Annexures 'A', 'B' and 'C' (transcript pp 25-28). It seems from the cross-examination by Mr Bogdan who conducted a defence of the proceeding on behalf of both respondents that references to the Dixon Homes drawing was either intended to suggest an evolution in the development of the Bogdan plan having regard to the Dixon Homes drawing or perhaps more simply that some common features in the Dixon Homes drawing and the applicant's drawing suggested that features in the Bogdan drawing could not be thought to derive from references to the applicant's plan or structures built by the applicant based on its plan. 20 Although her Honour initially made reference to the evidence of Mr Neuson, there is no evaluation of Mr Neuson's evidence to the effect that a request made of him to build a truss for the Bogdan structure based on the Bogdan plan immediately suggested to him as an experienced manufacturer of trusses that there was a striking similarity between the applicant's plan and the Bogdan plan. Similarly, her Honour did not deal with the evidence of Mr Henesey-Smith. Her Honour concluded from her own examination of the plans that the comparison 'shows there are striking similarities'. Her Honour concluded that notwithstanding these striking similarities, her Honour could not find that there had been a reproduction of the whole or a substantial part of the applicant's plan. Her Honour noted some of the similarities and dissimilarities in terms of features, the arrangement of the rooms and the footprint of the buildings. Her Honour observed that she had carefully considered the evidence of Mr Deshon who was of assistance to the Court. Her Honour concluded however that, when considering all of the similarities and dissimilarities, the applicant had not 'discharged its burden of proof'. Her Honour further concluded that the splayed walls and raised ceiling features identified as significant distinguishing features were 'that of a common idea and not sufficient to sustain a conclusion of reproduction of the whole or a substantial part' of the applicant's plan. 21 Having regard to the finding of 'striking similarities', the failure of her Honour to deal with the evidence of Mr Neuson and Mr Deshon is, it seems to me, an appellable error in dispositively quelling the controversy. Mr Deshon sought to deal with the primary contention of Mr Bogdan put to Mr Deshon in cross-examination that the Bogdan plan was the rational and logical evolution of a drawing from the Canberra plan assisted by the magazine photograph. Moreover, Mr Bogdan although warned by her Honour of the consequences of taking a course of not giving evidence as to his authorship and contribution to authorship of the plan, failed to give that evidence and thus explain his independent authorship of the plan and the contribution of his father-in-law to the plan. Mrs Bogdan's evidence was that she did not know of the applicant's plan or structures and that any question about similarities and authorship would have to be directed to Mr Bogdan. However, he gave no evidence as to these matters. Her Honour noted that Mr Bogdan's election not to give evidence was 'unhelpful as his evidence would have been likely to assist me, especially as he was, according to Mrs Bogdan, one of the persons who drew up the plans before they were sent to the architect for the final plans to be drawn'. 22 As to that final observation, the architect who drew up the final version of the Bogdan plan was Mr Djako of Igor Designs. Mr Djako was not called to give evidence either. 23 In dealing with the question of whether inferences might or might not be drawn from striking similarities, the disposition of the proceeding required her Honour to weigh in the balance the evidence of Mr Deshon and Mr Neuson and the curious matter that Mr Bogdan notwithstanding her Honour's invitations to him to consider his position, elected not to give any evidence as to independent authorship. 24 I am satisfied that arguable grounds of appeal have been made out. I am satisfied that having regard to all of these matters, the applicant has established 'special circumstances' and accordingly I grant leave to the applicant to file and serve a notice of appeal to the Federal Court of Australia from the orders of her Honour dismissing the applicant's proceeding before the Magistrates Court of Queensland and for that purpose grant an extension of time. 25 As to the costs of the application, although the applicant proceeded on a false assumption, the respondents did not bring about that false assumption. The events provide an explanation for the delay in filing a notice of appeal before this Court. However, had the applicant filed and served its notice of appeal within the 21 day period provided for, this application would not have been necessary and the respondents would not have been put to the expense of dealing with an application for an extension of time for the filing and serving of a notice of appeal. Accordingly, the applicant shall pay the costs of the respondents of and incidental to the application. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

application for an extension of time to file and serve a notice of appeal consideration of whether 'special reasons' made out consideration of the circumstances of delay consideration of the principles governing an application for an extension of time consideration of the exercise of federal jurisdiction by the magistrates court of queensland practice and procedure

In July 1992, the applicants consulted the respondents to obtain financial and investment advice about their future retirement. At all material times, the first respondent was a licensed securities dealer and securities adviser, and the second respondent acted as its representative. The applicants say they told the second respondent that they wanted to be in a position of having, during their retirement, an annual income of $40 000 indexed for inflation. The respondents provided financial and investment advice to the applicants over a period of 11 years. A central part of the advice given to the applicants was that they should enter into margin loans and use the money so borrowed to build up their investment portfolios. Relying on that advice, the applicants borrowed money on margin loans and made investments. 2 In 2002, the applicants were required to dispose of a substantial portion of their investment portfolios to meet margin calls which were made on the margin loans. In 2003, the applicants terminated their relationship with the respondents. In March 2005, the applicants filed an amended statement of claim. By April 2005, each of the respondents had filed defences to the applicants' amended statement of claim. However, in October 2005, the respondents' solicitors raised concerns regarding the pleading of the applicants' amended statement of claim. In December 2005, the applicants filed and served a re-amended statement of claim, their witness statements and the expert evidence upon which they relied. 4 On 3 February 2006, being the date on which the respondents' amended defences was due, the respondents sought an extension of time within which to file and serve amended defences. Shortly thereafter the respondents sent the applicants a notice complaining about the terms of the re-amended statement of claim. On 12 June 2006, the applicants, pursuant to leave, filed and served a substituted statement of claim, with the object of accommodating the complaints of the respondents. The substituted statement of claim is 108 pages, and consists of 194 paragraphs. This document did not satisfy the respondents. 5 By the notice of motion now before the Court, the respondents seek to strike out the whole of this substituted statement of claim, alternatively, 124 of its 194 paragraphs. I will refer to the substituted statement of claim as the statement of claim from now on. These are referred to in the statement of claim as the 1999 breaches, the May 2001 breaches and the January 2002 breaches. 8 In addition, the applicants rely upon other causes of action, which are referred to, in the statement of claim, as the '2001 securities recommendations' and the 'margin call breaches'. 9 I have distinguished between the first set of alleged breaches, identified in [7] above, and the causes of action, identified in [8] above, because in respect of the first set of breaches the pleader has adopted a 'templated' approach to the manner in which the causes of action in contract, tort and breaches of fiduciary duty are pleaded in the statement of claim. This is relevant because many of the objections, which are taken to the pleading of the causes of action comprising the 1999 breaches, apply equally to the equivalent 'templated' paragraphs in respect of the May 2001 and January 2002 breaches. 10 At the hearing, counsel for the respondents withdrew objections to 13 of the paragraphs of the statement of claim. 11 The objections made by the respondents to the statement of claim are grouped in three main categories. Firstly, it is said that the applicants have failed to plead the implied term which arises by law in a contract for provision of professional services to exercise reasonable care and skill in the provision of the services, which it is said, has consequential effects for a number of other paragraphs. Secondly, it is submitted that in a large number of paragraphs the applicants have pleaded material facts as particulars, or failed to plead essential material facts. Thirdly, it is said that in a number of paragraphs the applicants have pleaded conclusions rather than materials facts. 12 The applicants submitted that I should dismiss the respondents' strike out application on the basis that it was an abuse of process. Counsel for the applicants said that the respondents' defence was being conducted by insurers, and I should infer from the oppressive nature of the application that it was brought for the purpose of causing delay and expense to the applicants, and that it was an instance of an abuse of position by parties whose defence was backed by substantial resources vis-à-vis parties with limited resources. Counsel for the applicants said that this inference was open because of the large number of objections which were made, and also the 'technical' nature of the objections that were made --- this not being a case where legitimate complaint could be made that the respondents were unable to know what the case was that they would have to meet at trial. 13 I agree that the respondents have made a large number of 'technical' objections. However, I am unable to infer the application has been brought by the respondents in bad faith as an abuse of process with the purpose of stifling the litigation. Other inferences are also open and, in some instances, the respondents have established good grounds for the objections made. Pleadings are a means to an end, and not an end in themselves: Banque Commerciale S.A. , En Liquidation v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 ('Akhil') at 293 per Dawson J. Their essential function is to state with sufficient clarity the case that must be met, so as to ensure the basic requirement of procedural fairness: Akhil at 286 per Mason CJ and Gaudron J. In Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664, the High Court said that pleadings and particulars have a number of functions: they furnish a statement of the case that is sufficiently clear to allow the other party a fair opportunity to meet it; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. In Akhil , Dawson J referred, with approval, to the statement by Isaacs and Rich JJ in Gould & Birbeck & Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517 that the function of pleadings is discharged when the case is presented with reasonable clearness, and any want of clearness can be cured by amendment or by particulars. That proposition is directed towards material facts that must be alleged to constitute a complete cause of action. The difference often turns upon the level of generality at which the material facts are alleged in a particular pleading. Consistently with the rules of pleading, a cause of action can be pleaded at different levels of generality, depending upon the nature of the case and the subject matter in question. A pleader is not compelled to plead primary or evidentiary facts. Most pleadings will set forth the material facts at a level which involves some element of conclusion concerning the factual ingredients of the cause of action. But, whatever level of generality is adopted in the statement of claim, it must adhere to the basic principle that the purpose of pleadings is to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it: Charlie Carter at 417. On the other hand, a pleading will infringe the applicable practice rules if it contains nothing more than broad conclusions asserted at such a high level of generality that the opposite party cannot understand the case it has to meet: see, eg, Trade Practices Commission v David Jones (Australia) Pty Ltd , supra, at 113-115. The first is that it casts an additional onus on those who are responsible for the preparation of pleadings to ensure that all of the requirements of pleadings are appropriately met. Secondly, it casts an onus on those who receive the pleadings and evaluate them only to resort to a string out application where that is absolutely necessary and it has not proved possible, by reason of negotiation between the parties, to overcome any deficiencies in the pleadings. They are always productive of delay and expense, sometimes substantially so, and often produce no sufficient countervailing benefit, particularly when they are brought at a late stage of the proceedings...Those who wish to bring an application of this kind...should consider...what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense. The underlying principle is that the case of each of the parties is adequately exposed to the other. It is important to maintain a sense of balance in the detail of particulars sought and ordered. The provision of particulars should not be allowed unduly to increase the cost and delay associated with litigation. In contemporary commercial litigation where, frequently, the court will direct the filing of witness statements or affidavits on either side subject to the right to cross examination, the necessity for elaborate particulars and lengthy debates about them is even more questionable. 19 As mentioned, previously the applicants have applied a 'templated' approach to the pleading of a number of the causes of action. Accordingly, the objections raised to one of the templated paragraphs also apply to the other equivalent templated paragraphs in the statement of claim. In those instances, I will deal with those objections by reference to the first paragraph in respect of which the objection is raised. The heading will indicate the related paragraphs to which the reasons apply. 21 The respondents seek to strike out para 15 because it contains an allegation that two contracts came into being on the acceptance of the offer pleaded in para 8, whereas the offer in para 8 is alleged only to have been made by the second respondent as agent for the first respondent. Therefore, say the respondents, the offer could, on acceptance, only give rise to the making of a contract with the first respondent. 22 In my view, there is merit in the respondents' argument. The applicants accept this and say they will amend para 8 of the statement of claim, to allege that the offer was made by the second respondent, on his own behalf, and as agent for the first respondent. 23 I will strike out para 15 of the statement of claim, but give leave to the applicants to amend para 8 of the statement of claim as anticipated. The paragraph should not be struck out because there is no issue in relation to the question of when the respondents should be required to comply. 26 The respondents complain that the applicants have not accurately pleaded the implied term to exercise reasonable care and skill which is implied by law as part of a contract to provide professional services. The implied term, say the respondents, can only be pleaded as being 'to exercise reasonable care and skill'. Counsel for the respondents submitted that the vice, in the way that the applicants have pleaded the term, is that it permits an expert witness to assert what he or she would have done in a specific situation, and that this introduces a false issue. Accordingly, say the respondents, the numerous references in the pleading to what a competent financial planning and investment adviser would have done or advised, should all be struck out as raising false issues. 27 Although it is common practice to plead the duty in the terms contended for by the respondents, it cannot be said that pleading the duty in terms of an obligation to exercise the care and skill of a reasonably competent member of the relevant profession, as the applicants have done in this case, is so untenable that it should be struck out (see, for example, Yates Property Corp v Boland (1997) 145 ALR 169 at 198; Boland v Yates Property Corporation [1999] HCA 64 ; (1999) 167 ALR 575 at 588, at [47]; Heydon v NRMA Ltd [2000] NSWCA 374 ; (2000) 51 NSWLR 1 at 54-56, at [149]-[155] and at 78, at [228] ('Heydon') ). Further, as the applicants point out, the implied term is pleaded in those terms in a precedent in Bullen & Leake & Jacob's, Precedents of Pleadings , 15 th edn, vol 2, Sweet & Maxwell, London, 2004, p 1280. 28 Expert evidence on the standards of care and skill that would be applied by a competent professional has been held to be admissible ( Heydon at 55, at [152]). The question of whether the witness statement of the expert witness, whom the applicants intend to call at trial, is in an admissible form, is a matter for trial, and is a separate question to whether it is untenable to plead the implied term in the terms pleaded by the applicants. 29 Accordingly, para 17 and all the other related paragraphs to which the objection has been taken, should not be struck out. Reference is also made in the particulars to certain facts relied upon in support of the terms alleged. 31 The respondents seek to strike out para 18 on the basis that the implied terms there pleaded are conclusions from material facts that have not been pleaded. The respondents object that it is not sufficient to plead these facts as particulars. The respondents also say that the facts and matters relied upon in support of the elements of the test in Codelfa should be pleaded in the body of the statement of claim as material facts. 32 In my view, it is not necessary to plead as material facts, in the body of the statement of claim, each of the facts relied upon for the implication of the term. It is sufficient if particulars of those facts and matters are given, so long as the respondents know the case they have to meet. The particulars appended to para 18 do, in fact, refer to certain facts relied upon in support of the implied terms, which are pleaded in the body of the statement of claim, but it is not necessary for all such facts to be pleaded in the body of the statement of claim. The applicants, also, refer in the particulars to the fact that the respondents held themselves out as members of the Financial Planning Association. Any further clarification of the applicants' case as may be necessary can be obtained by a request for further and better particulars. 35 However, the respondents complain that para 19(c) does not, as is the case with para 19(a) and para 19(b), allege that the respondents knew of the fact pleaded in para 19(c). 36 The applicants say they will amend the statement of claim to make it clear that it is alleged that the respondents knew of the fact pleaded at para 19(c). In my view, whilst the allegations made in para 30(f) and para 30(h) are conclusions, they also plead material facts, and they are not objectionable conclusions in the sense referred to in Trade Practices Commission v David Jones (Australia) Pty Ltd (1985) 7 FCR 109 ('David Jones') , in that the conclusions do not obscure the essential factual elements of the cause of action, so that the respondents do not know the essence of the case they have to meet. 39 As to para 30(g), counsel submitted that the paragraph was vague and embarrassing. It was said to be inconsistent with another plea in para 30, that in June 1999 the applicants had an income earning capacity as teachers or self-employed writers, and so it was not sufficiently clear that the source of income being referred to in para 30(g), was the only source of income that would be available during their retirement. In my view, para 30(g) makes it tolerably clear that the pleader is referring to the position of the applicants during their retirement from all income earning activity. Accordingly, I would not strike out the impugned parts of para 30. The respondents complain that the applicants have not pleaded any facts in support of an allegation that the applicants should have been classified by such a financial planning and investment adviser, as 'balanced investors'. In my view, the facts relied on are sufficiently identified by reference to the allegations made in paras 26, 28 and 30 in para 31. The paragraph should not be struck out. 42 In my view, the necessary facts are provided by the pleader referring in that paragraph to the need arising, 'having regard to matters alleged in paras 28 to 31' --- which identify the applicants' financial circumstances and risk profiles. The paragraph should not be struck out. The applicants identify five specific elements of that financial plan and investment strategy. The respondents object saying that the pleading is vague and embarrassing. 44 In my view, the specific elements of the financial plan and investment strategy are identified. The pleading sufficiently advises the respondents of the case which they have to meet. If further detail is required, a request for further particulars can be made. The paragraph should not be struck out. 46 The respondents make the same objections to para 40 as they do to para 39. The comments I made in respect of the objections to para 39 apply equally to these objections. The respondents say para 43 is hypothetical and 'not a material fact'. In my view, the plea is a material fact pleaded in support of a causation allegation. The pleading then sets out, in the particulars, a number of facts and circumstances upon which the applicants rely for the allegation that the advice was unsuitable to their circumstances. 49 It is alleged that the breach of duty is improperly pleaded because the material facts do not clearly identify 'conduct by a party'. 50 The respondents also object that material facts have been pleaded as particulars. Further, the respondents object to the particulars. They say paras 44(a), 44(b), 44(c), 44(d) and 44(e) do not describe 'conduct by a party'; paras 44(b), 44(c), 44(d) and 44(g) plead conclusions without material facts and that paras 44(c), 44(e) and 44(g) are vague and embarrassing. 51 In my view, the body of the pleading identifies with sufficient specificity that the respondents gave advice in 1999 (identified as the '1999 Advice') and that the advice was unsuitable. The pleading of the material fact, albeit it is also a conclusion, is not objectionable. Together with the particulars, the pleading is sufficient to advise the respondents of the case they have to meet. It is not incumbent upon the respondents to plead to the particulars, and whilst the particulars are not couched in language which expressly states that the respondents 'acted' or 'failed to act' in a specific way, the particulars sufficiently identify the respects in which the respondents' conduct in giving the 1999 Advice, is said to be deficient. The foundation for the facts and circumstances which are recorded in the particulars has been made in earlier parts of the pleading and they do not comprise objectionable conclusions; nor are they objectionably vague and embarrassing so as to obscure the case to be made. Insofar as there may be a need for further particularity, this can be done by a request for further and better particulars. Particulars are then given of the facts and matters relied upon as comprising the defects in the advice which undermined the protection of the applicants' standard of living in the future. The respondents object that the allegations of breach are conclusions and contain vague and embarrassing expressions. 53 In my view, the material fact, namely, that the advice that was given was of such a character that it would not protect the applicants' standard of living in the future, was a sufficient pleading of the material fact. It was also a conclusion, but not in an objectionable sense. The particulars which identify the defects in the advice sufficiently inform the respondents of the case that they need to meet at trial, and are not objectionably vague and embarrassing. 54 In the event that further particulars are needed, a request for particulars can be made. 56 Thereafter, particulars are provided as to the effect that the reliance by the applicants on the 1999 Advice, had on their loan to valuation ratio. It is also stated in the particulars that the respondents did not have a plan to deal with the contingency that there might be a margin call in respect of the applicants' margin facility, and had not discussed with the applicants the need to have such a plan; and that the advice to use superannuation, savings and inheritance to defray living expenses reduced the applicants' capacity to meet margin calls. 57 The respondents complain that the pleading is a conclusion and that material facts cannot be pleaded as particulars. The respondents also complain that the particulars contain allegations of alleged 'future consequences' rather than allegations about the respondents' conduct. 58 It is true that the material facts pleaded, are also a conclusion. However, the conclusion is not objectionable, and a sufficient foundation for that pleading has been previously laid in the pleading so that the respondents are not embarrassed by the pleading in that form. Further, there is a sufficient amplification of the pleaded facts in the particulars so that the respondents know the case that they have to meet at trial. The breach relied upon is sufficiently identified. The pleading, accordingly, complies with the rules on pleadings. The respondents are not required to plead to particulars, and the 'future consequences' referred to in the particulars, support the basis for the allegations of breach of duty. 59 Insofar as further clarification is required, a request for further and better particulars can be made. 61 There are then appended three paragraphs of particulars, which state that the second respondent did not take any steps to review the applicants' risk profiles since June 1998, that, in giving the 1999 Advice, the second respondent did not take into account the changed personal circumstances of the applicants, and that a thorough analysis of the applicants' circumstances would have led a 'competent financial planner and investment adviser' to conclude that the applicants were 'balanced investors', whereas the second respondent had assessed the applicants as 'aggressive investors'. 62 The respondents object that material facts cannot be pleaded as particulars and that the particulars are vague and embarrassing. 63 In my view, the material fact pleaded in the body of the pleading, is also an unobjectionable conclusion. Together with the particulars which are appended, the pleading sufficiently discloses the case which the respondents have to meet at trial. The respondents are not required to plead to particulars. Any need for greater particularity, can be remedied by a request for further and better particulars. The paragraph will not be struck out. The applicants rely upon the particulars to para 46. 65 The respondents raise the same objections to this paragraph as they did to para 46. 66 I have already found that para 46 should not be struck out. The same reasoning applies to the objections made to this paragraph. The applicants plead that if they adopted the 'allocated pension plan' (which is defined in para 40 of the statement of claim), the value of their investments as at 30 June 2005 would have been $771 572. The applicants also state that the figures have been calculated in the manner set out in appendix 19 to the statement of expert witness, Mr David Barber, and the calculations are said to be incorporated into the statement of claim. The applicants plead that at the date that the applicants terminated the contract in March 2003, the net value of the investments was $207 997.96. The applicants then plead that the loss is the difference between $771 572 and $207 997.96 and that the full extent of the applicants' loss between 30 June 2005 and the trial will depend upon the performance of the applicants' investments during that time. 68 The respondents complain saying that para 51 fails to plead a causal link between the alleged breach and the alleged loss, fails to plead material facts, pleads conclusions and purports to compare or contrast figures that have been derived at different points in time, and the response to the statement of Mr Barber is embarrassing. 69 In my view, the pleading does plead a sufficient causal link between the breach and the loss. In paras 39 to 43, the applicants plead a case that, had the respondents performed the contract, the applicants would have adopted a different retirement strategy and implemented an 'allocated pension plan' as that term is defined in para 40 of the statement of claim. By that pleading, the respondents have been properly informed of the case that they have to meet at trial on the causal link between loss and breach. Contrary to the respondents' objection, the statement of claim discloses a reasonable cause of action, and the claim should not be struck out. 70 As to the objection that the paragraph does not plead material facts and contains conclusions, it is the case that para 51(a) and para 51(b) contain statements of material facts and also conclusions, because the pleader does not disclose the calculations behind the figures there pleaded. However, the conclusions do not render the pleading objectionable in the David Jones sense, in that the conclusions are not such as to obscure from the respondents essential factual elements of the cause of action, such that they do not know the essence of the case to be made against them. The answer is to request further and better particulars as to the basis of the calculations. 71 However, in my view, the pleading of damages in its current form is embarrassing because it does, as counsel for the respondents submitted, contrast the applicants' financial position as at March 2003, with the position that they would have been in as at 30 June 2005. The same issue arises in relation to the claim for tortious damages in para 56(e) in respect of the respondents' alleged negligence. Counsel for the applicants recognises the deficiency, and says the quantum of the applicants' claim, and the manner in which it is calculated, will be provided before the trial. 72 The applicants have made it sufficiently clear that the basis of their claim for damages is the difference between the position they would have been in, had the respondents performed the contract, with the position that they are now in. Further expert reports will need to be produced to update the position on damages - both in relation to the applicants' current position and the position they claim they would have been in. 73 There has already been substantial delay, arising from pleading objections, to the progress of this matter. This issue should not be permitted to cause further delay. I will strike out all the words in para 51 after 'damage' in the second line of the paragraph, and para 56(e). This ruling will also apply to the other paragraphs in the pleading which suffer from the defect referred to above. I will permit the applicants to provide the further information on the quantum of damages by way of particulars of loss and damage. The means of giving these particulars and the timing, will be a matter for separate directions. The respondents object on the basis that the plea is a conclusion from material facts that have not been pleaded. In my view, albeit, that the plea contains a conclusion, it is not objectionable because the plea sufficiently informs the respondents of the case being made against them. 75 It is then pleaded that the respondents' interest conflicted with the interest of the applicants which was in 'limiting the risk of losses on their investment portfolios'. The respondents also said that the expression 'limiting the risks of losses on their investment portfolios' is vague and embarrassing. I disagree --- the case sought to be made is sufficiently identified. 76 The applicants then plead that the respondents failed to obtain the applicants' fully informed consent to the conflict of interest and particulars are provided. The respondents object saying that this plea is vague and embarrassing. However, in my view, the applicants have made sufficiently clear the basis of the case sought to be made. 78 The respondents complain that this paragraph pleads conclusions not material facts. In my view, the paragraph pleads both material facts and a conclusion. However, the conclusion is not objectionable. The factual basis for the conclusion is set out in the paragraph. 80 There is appended to that pleading, particulars of the total amounts spent on living expenses, over a period of about three and a half years, and the sources of those amounts. 81 The respondents object that the paragraph contains conclusions that have been expressed as particulars; and that the paragraph 'has not set out material facts of payments and when and for what the payments were made'. Also it is said to be embarrassing in failing to state the time period over which payments were made. 82 In my view, albeit that the pleading is stated at a high level of generality, the pleading is not objectionable, because the acts allegedly done in reliance on the respondents' advice are sufficiently identified. The particulars amplify the plea. The pleading, as it currently stands, sufficiently advises the respondents of the case that they have to meet, such as to constitute a proper pleading. Insofar as the date and the purpose of each of the component elements of the payments may be relevant, it would be open to the respondents to apply for further and better particulars of those allegations. In my view, the pleading is sufficiently clear to make known to the respondents the case that is being made against them. If the respondents require further details, then a request for further and better particulars can be made. The respondents object that the pleas are conclusions. In my view, these please do not amount to an objectionable pleading of a conclusion because they do not obscure the essence of the case to be made. If the respondents require details as to how the figures are derived, they can make a request for further and better particulars. The respondents object that the plea is deficient in that no particulars of knowledge are provided. Order 12 r 3 of the Federal Court Rules does not require that a pleading contain particulars of an allegation of 'knowledge'. I will not strike out the paragraph. 88 The respondents complain that the paragraph pleads a conclusion because the recommendations and the investments made have not been pleaded as material facts. In my view, the plea is at a high level of generality but is not an objectionable conclusion. Further, details as to the recommendations and investments relied upon by the applicants can be obtained by a request for further and better particulars. 90 In my view, each of paras 117(c)(i), 117(c)(ii) and 117(c)(iv) should be struck out. The pleader does not, in terms, plead that the 2001 Return Representation, namely, that the investment portfolios were providing a return of approximately $40 000 per annum, was, at the time that it was made in May 2001, false. Rather the applicants have, in paras 117(c)(i), 117(c)(ii) and 117(c)(iv), pleaded facts from which such an inference could be drawn. However, in my view, it is necessary to plead specifically, that the representation was false, if, as appears to be the case, such a claim is intended to be part of the applicants' case. It may well be open to the applicants to refer to the matters pleaded in paras 117(c)(i), 117(c)(ii) and 117(c)(iv), in particulars of a plea that the representation was false, on the basis that they support an inference to that effect; but, in my view, the pleading of the facts in those three paragraphs, as currently pleaded, does not make up for the failure to plead the 'falsity' case, clearly and directly. Further, the particulars to para 117(c)(iv) do not appear, on the face of it, to support the plea in that paragraph. 91 In my view, each of paras 117(c)(iii), 117(c)(v) and 117(c)(vi) amounts to a plea that there were no reasonable grounds for the making of the representation. However, each is expressed as a conclusion. In my view, this is a case where each of the conclusions is objectionable, because the conclusions go to the essence of the case being made against the respondents under the ASIC Act, and the conclusions obscure the case made by the applicants. It is necessary to identify in the pleading, the specific basis on which it is alleged that there were no reasonable grounds for the making of the representation. 92 Likewise, in relation to para 117(c)(vii), it is necessary to plead the basis on which it is alleged that there were reasonable grounds for the making of the representation as to a future matter. Paragraphs 117(c)(iii), 117(c)(v), 117(c)(vi) and 117(c)(vii) will be struck out. Leave will be given to replead each of these paragraphs. 93 Paragraph 117(c)(viii) properly pleads the material fact that at the time of making the Margin Loan Representation the second respondent did not intend to give effect to its terms. This paragraph will not be struck out. 95 Paragraphs 119(a), 119(b) and 119(c) are not inherently objectionable. However, they depend upon the matters which are pleaded in para 117(c) which I have struck out. They, therefore, also fall to be struck out. 96 None of paras 119(d), 119(e) and 119(f) should be struck out because, each of those paragraphs, pleads facts material to causation and are not objectionable conclusions as contended by the respondents. 97 The references 'retirement strategy' and 'allocated pension plan' are not embarrassing because they are referred to, and defined, earlier in the statement of claim. Any need for further detail, can be remedied by way of a request for further and better particulars. The respondents complain that no causal link, between the contravention of the ASIC Act and the loss, is pleaded in para 120. In my view, the applicants sufficiently pleaded such a causal link, when, in para 119 they pleaded, in effect, that, but for the contravening conduct, they would have embarked upon a different course of conduct which would have caused them to be better off. They claim as their loss the difference between the position they are now in, and the position they would have been in, but for the contravention. In my view, this is a plea open to the applicants, and informs the respondents of the causal link to be relied upon. In para 139, the applicants plead that the purchase of the securities referred to in para 138, constituted the breach of the due care and skill implied term. There are particulars appended which identify the basis for the plea --- for example, that the securities were not appropriate for the applicants' portfolios and their risk profiles as 'balanced investors'. 100 The respondents complain that the plea is a conclusion from material facts not pleaded and that material facts are pleaded as particulars. The plea contains both material facts and unobjectionable conclusion. In my view, the plea, together with the particulars, sufficiently informs the respondents of the case to be made at trial. Further, it is not incumbent upon the respondents to plead to particulars. Any need for further particulars, can be remedied by a request for further and better particulars. The respondents complain that the plea pleads conclusions from material facts not pleaded. In my view, the paragraph pleads a material fact relevant to causation and the paragraph should not be struck out. 103 The complaint is that there is nothing pleaded to show that the loss was due to the respondents' conduct, rather than, changes in market conditions and the applicants' conduct in selling the securities at an inappropriate time. 104 The paragraph pleads, in terms, that the loss was due to the respondents' conduct, namely, their breach, as alleged in para 139. Further, the applicants also plead expressly that, had the respondents performed the agreement, the second-named applicant would not have bought the securities, and the loss would have been avoided. The respondents know the case to be met. The complaints made by the respondents are matters for the defence, not strike out. There are also particulars appended to para 153 which set out the basis for the plea that the securities recommendation breached the implied term. For example, the particulars state that the securities recommendation was not one which was appropriate for the applicants' investment portfolios and their risk profiles as 'balanced investors', because of the volatility of the securities recommended. 106 The respondents' object that the pleading is a conclusion from material facts that have not been pleaded. There are also complaints that the particulars are vague and embarrassing. 107 In my view, the plea incorporates material facts and also pleads a legal conclusion. However, the plea is not objectionable because the plea, together with the appended particulars and the reference to the matters pleaded at paras 144 to 150, which identify the recommendations, sufficiently makes known the case that respondents have to meet at trial. 108 It is not incumbent upon the respondents to plead to particulars. However, insofar as further clarification is required in respect of some of the particulars, such as, that Bankers Trust was a fund manager whose funds had 'performed badly', further and better particulars can be sought of those allegations. The loss claimed is the difference in value between the securities on 28 July 2002, when it is alleged the respondents should have sold the securities, and the value of the securities when they were sold in September and October 2002, to satisfy margin calls. 110 The respondents complain that the applicants have not pleaded the figures comprising the loss. The applicants say that they have been handicapped in pleading those figures because the information is within the knowledge of the respondents. 111 In my view, the position can be resolved by the respondents requesting further and better particulars of the calculation. The paragraph should not be struck out. Particulars are given of the personal distress, stress and anxiety. 113 In para 193 it is pleaded in the alternative, that the breaches of the duty of care which have been alleged in the statement of claim, are breaches brought about by reckless and/or gross indifference by the respondents to the duty of care owed by them to the applicants and constituted conduct that displayed a contumelious disregard for the applicants' rights. 114 The respondents complain that damages are not recoverable for personal distress, stress and anxiety falling short of mental illness, under either head of claim. The respondents say that the paragraph does not plead that the applicants have suffered from mental illness. 115 In the case of Newman v Financial Wisdom Ltd [2004] VSC 216 ; (2004) 183 FLR 164, Mandie J awarded damages for anxiety and stress in an analogous case. Accordingly, it cannot be said that the claims for loss and damage pleaded, are so untenable that they should be struck out. 116 The applicants foreshadowed that they would seek indemnity costs. I will hear the parties on the question of costs. I certify that the preceding one hundred and sixteen (116) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

striking out whether application to strike out substantial portions of the statement of claim is an abuse of process whether the statement of claim sufficiently disclosed the case the respondents had to meet pleading of the implied term to exercise reasonable care and skill in the contract for the provision of professional services. practice and procedure

He saw operational service within the meaning of s 6C of the Veterans' Entitlements Act 1986 (Cth) on ten voyages to and from South Vietnam as a member of the crew of HMAS Sydney between 1970 and 1972. Mr Gilkinson suffers from sleep apnoea for which he claimed a pension under the Act. He claimed that the Administrative Appeals Tribunal committed errors of law when it held that it was satisfied beyond reasonable doubt that his operational service did not contribute to his being obese at the time of the clinical onset of his sleep apnoea. A reference in the Act to the incapacity of a veteran from a war-caused disease is, unless the contrary intention appears, by force of s 5D(2) "... a reference to the effects of that ... disease and not a reference to the ... disease itself". And, "disease" is defined as meaning "any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development" (s 5D(1)). A person who has rendered operational service is taken to have been rendering eligible war service while rendering that operational service by force of s 7(1). McHugh, Gummow, Callinan and Heydon JJ held that that meaning was not necessarily circumscribed by considerations such as whether the relevant act of the veteran was one that he was obliged to do as a member in the armed forces. They held that the test of attributibility was capable of being satisfied by a causal link alone or a causal connection without any qualifications. Their Honours held that, by failing to pose and answer to the correct question, the tribunal had committed an error of law which was appellable under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): Roncevich 222 CLR at 126 [27]-[28]. 5 Their Honours had earlier accepted that whether an event arose in the course of an activity or "out of" an activity, depended upon such matters as the nature of the person's employment, the circumstances in which it was undertaken, and what, in consequence, the person was required or expected to do to carry out his or her actual duties. If that incapacity related to operational service rendered by the veteran, the Commission had to determine that the disease was a war-caused disease "... unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination". Next, in applying s 120(1) in respect of the veteran's incapacity from disease related to service rendered by him or her, the Commission must be satisfied beyond reasonable doubt that there is no sufficient ground for determining that it was a war-caused disease. It may only reach this conclusion if the Commission, "... after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the ... disease ... with the circumstances of the particular service rendered by the person" (s 120(3)). A statement of principles must set out, first, the factors that as a minimum must exist and, secondly, which of those factors must be related to service rendered by a person before it could be said that a reasonable hypothesis had been raised connecting a disease of that kind with the circumstances of that service (s 196B(2)(d) and (e)). 9 Here, the Repatriation Medical Authority's 2005 statement of principles concerning sleep apnoea specified in par 5(b) that "being obese at the time of the clinical onset of sleep apnoea" was one factor which had to exist as a minimum. And, par 4 of the statement of principles required that factor to be related to the operational service rendered by the veteran. The statement of principles defined "being obese" as meaning an increase in body weight by way of fat accumulation which resulted in a body mass index of 30 or more. Thus, "being obese" for the purposes of par 5(b) involved there being an increase in the veteran's body mass index at the time of the clinical onset of his or her sleep apnoea. It found that Mr Gilkinson's service medical records first disclosed that he had become or was considered obese on 7 June 1971. At that time he had accrued 92 days of operational service. The medical records revealed that Mr Gilkinson had gained weight progressively from the time of his enlistment until the time of his discharge in 1977. 11 Mr Gilkinson put evidence before the tribunal from a dietitian, Dr Dianne Volker. In both her written report and oral evidence Dr Volker referred to research which had shown the effect of shift work on appetite and food consumption. Factors contributing to the development of obesity were shift work, nasal congestion leading to low exercise tolerance and alcohol use. However, the tribunal made no express finding about the effect of shift work in relation to Mr Gilkinson being obese at the time of the clinical onset of his sleep apnoea. The veteran was 57.2kg in May 1965 and 87.5 kg in March 1969. This represents a gain of 30.3kg in 55 months. This translates to a gain of over half kilo/month. The veteran was already over-weight and well on his way to being obese (BMI >30 in 1969). Obesity does not occur instantly, it takes time to accumulate excess energy storage. The adverse health effects of over-weight and obesity develop as gradually as the weight is gained. As can be ascertained from the report of Ms Volker, the Applicant's obesity was well on the way to being established prior to his operational service. As Ms Volker pointed out in her evidence to the Tribunal, the Applicant, because he had access to unlimited amounts of food whilst undergoing recruit training at HMAS Leeuwin, became used to eating. This, of course, had nothing to do with operational service. For the Applicant, it was submitted that operational service had made a contribution to his obesity and Kattenberg v Repatriation Commission [2002] FCA 412 ; (2003) 73 ALD 365 was authority for the proposition that, if operational service contributed to a material degree to his obesity, then that was sufficient connection with operational service. We are satisfied beyond reasonable doubt that the Applicant's obesity was not connected with his operational service. What is clear from the Applicant's medical records, is that he was well on the way to being obese before operational service. There was nothing that occurred during his operational service, prior to the assumed clinical onset of Sleep Apnoea in 1970-1971, that in any way caused or contributed to his obesity over and above the existing fact that the Applicant was eating to excess and not exercising sufficiently. The tribunal dealt with the plentiful supply of food and low level of physical activity which were part of Dr Volker's four factors (emphasised above) which contributed, in her opinion, to Mr Gilkinson's weight gain. And, later in its reasons, the tribunal negated any effect of alcohol. It concluded that it was satisfied beyond reasonable doubt that the facts necessary to support an hypothesis of alcohol causing aggravation of sleep apnoea had been negated beyond reasonable doubt. Mr Gilkinson does not challenge the tribunal's findings about alcohol. DID THE TRIBUNAL POSE AND ANSWER THE WRONG QUESTION RELATING TO SHIFT WORK? The tribunal need only set out the findings that it actually made: Minister for Immigration v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 349 [77] per McHugh, Gummow and Hayne JJ. The tribunal's identification of what it considered to be the material questions of fact might demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration: Yusuf 206 CLR at 346 [69]. A complaint that the tribunal failed to make a relevant finding of fact will often amount to a complaint of error of law or a failure to take into account relevant considerations, as their Honours pointed out in Yusuf 206 CLR at 349-350 [78]. 15 If a decision-maker does not give any reason for his or her decision, a court may be able to infer that the decision-maker had no good reason for it: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 224 [39] per Gleeson CJ, Gummow and Heydon JJ. They pointed out that the decision in R v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120 had held that where a constitutional writ of prohibition was sought, the inadequacy of material on which the decision-maker acted might support the inference that the decision-maker had applied the wrong test or was not in reality satisfied of the requisite matters: Palme 216 CLR at 223 [39]. 16 As I have said no mention was made of shift work in any part of the reasoning process. Rather, in [20] and [22] of its reasons the tribunal referred to the evidence that Mr Gilkinson "... was well on the way to being obese before his operational service". Mr Gilkinson accepted that the tribunal was entitled to arrive at that finding based on the objective evidence and Dr Volker's opinion in which she also used the expression that he was "well on his way to being obese" at that time. 17 However, being well on the way to an end point, is not the same as arriving at it. The tribunal had an obligation to set out its reasons for its coming to the conclusion that it was satisfied beyond reasonable doubt that Mr Gilkinson's obesity was not connected with his operational service. It asserted that there was nothing that occurred during the operational service prior to the assumed onset of sleep apnoea in 1970-1971 "... that in any way caused or contributed to his obesity over and above the existing that [he] was eating to excess and not exercising sufficiently". Both parties accepted that Mr Gilkinson was engaged in shift work before he saw operational service, on other voyages on navy vessels. 18 The tribunal's reasons did not deal with that part of the hypothesis in Dr Volker's evidence that the development of Mr Gilkinson's obesity, first observed in 1971, was contributed to by either the effects of shift work alone, or that in combination with the two factors of eating to excess and not exercising sufficiently. Whether or not Dr Volker's hypothesis was right or wrong, it could not be said to be fanciful, impossible, incredible, not tenable, too remote or too tenuous, unless the tribunal found as a fact that it was satisfied beyond reasonable doubt that there was no temporal connection between Mr Gilkinson having to undertake shift work while on operational service and the development of his obesity: Bushell v Repatriation Commission (1992) 175 CLR 408 at 421-422 per Mason CJ, Deane and McHugh JJ. 19 The relevant question for the tribunal was whether there was a reasonable hypothesis that Mr Gilkinson's shift work during the period of his operational service prior to the diagnosis of obesity in June 1971 contributed causally to his being obese at this time. The fact that prior to his operational service Mr Gilkinson may have been well on the way to that physical state, did not mean that when he arrived there his obesity had not arisen out of or been attributable to his operational service at all. The tribunal made findings which dealt with only three of the four factors mentioned by Dr Volker. It gave no reasons why, despite her opinion and her references to literature supporting the theory, shift work could not have contributed to Mr Gilkerson's obesity which first occurred during his operational service: Repatriation Commission v Tuite [1993] FCA 39 ; (1993) 39 FCR 540 at 542 per Davies J. But here the circumstances and incidents of camp life were plainly capable of having a causal influence upon the respondent's decision to take up smoking, and upon his continuance in the habit until the inevitable onset of nicotinic addiction. Likewise, here it was open to the tribunal to find that a consequence of Mr Gilkinson continuing with shift work during operational service was the onset of obesity. The hypothesis put forward by Dr Volker and the undisputed fact that Mr Gilkinson was undertaking shift work, had been raised before the tribunal. But, the tribunal did not expressly consider in its reasons the impact of shift work either alone or in combination with Mr Glkinson's eating to excess and not exercising sufficiently. All it did was to assert that "nothing that occurred during his operational service" prior to the assumed onset of sleep apnoea "in any way caused or contributed to his obesity over and above the existing fact that [he] was eating to excess and not exercising sufficiently". 21 Mr Gilkinson actually became obese during his operational service, notwithstanding that before that time he was well on the way to being obese. Dr Volker's hypothesis was that the shift work itself that Mr Gilkinson was undertaking during operational service, contributed to his being obese. This issue was like the veteran's having continued to smoke in Tuite 39 FCR at 545 amounting to a matter that the tribunal could conclude was a contributing factor to the veteran's addiction to nicotine. However, the tribunal did not consider or make any finding relating to whether Mr Gilkinson's obesity arose out of or was attributable to the shift work he engaged in on operational service. DID THE TRIBUNAL FAIL TO CONSIDER WHETHER THERE WAS A REASONABLE HYPOTHESIS THAT MR GILKINSON'S EATING TO EXCESS AND NOT EXERCISING CONTRIBUTED TO HIS OBESITY? The question for the tribunal was whether, having regard to the hypothesis of Dr Volker, his obesity could be said beyond reasonable doubt not to have arisen out of or been attributable to Mr Gilkinson's operational service: Roncevich 222 CLR at 125-126 [23]-[28]; see too Byrne v Repatriation Commission (2007) 242 ALR 620 at 633 [58] per Buchanan J, with whom Gyles J at 621 [3] and Edmonds J at 623 [11] agreed. 23 Mr Gilkinson was required to carry out shift work in the course of his operational service. The hypothesis put forward by Dr Volker was that shift work itself caused persons to eat to excess. It is not to the point that Mr Gilkinson might have been exposed to exactly the same conditions as he experienced at the time his obesity was first noticed in 1971 when on other occasions he had been performing shift work in the course of service which was not operational service. Mr Gilkinson was required to carry out the duties involving shift work during his operational service. 24 Of course, the reasons of an administrative decision-maker must not be construed minutely and finely with an eye keenly attuned to the perception of error. Those reasons are meant to inform and should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which they are expressed. The Court must guard against turning a review of a decision-maker upon proper principles into a reconsideration on the merits of a decision as explained by Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272. 25 Here, the tribunal simply asserted that Mr Gilkinson's eating habits and lack of exercise habits had nothing to do with his operational service. But it never dealt with the questions of any relationship between either or both of those habits and the necessity for him to undertake shift work as a part of his ordinary service and how his being obese may or may not have been arisen from or been attributable to the necessity for him to perform shift work during his operational service. 26 The Commission argued that, at least implicitly, the tribunal must have reasoned that Mr Gilkinson would have reached obesity whether he had gone on operational service or not. That argument recognised, by using the word "implicitly", the tribunal's lack of express reasons to negate any hypothesis concerning shift work. The tribunal was required under s 43(2B) of the Administrative Appeals Act to set out its reasons and not to leave important matters to be dealt with by implications. It was not entitled to leave open the hypothesis, clearly articulated by Dr Volker, that the necessity to perform shift work while on operational service itself contributed to Mr Gilkinson's eating disorder and lack of exercise leading to his obesity. The tribunal dealt expressly with only three of the four factors raised in Dr Volker's hypothesis namely, the plentiful supply of food and alcohol and low levels of physical activity. It did not deal with shift work. 27 The Commission argued before me that while Dr Volker made a suggestion that shift work had contributed to Mr Gilkinson's weight gain, that aspect of operational service had not deprived him of the ability to choose how much he ate, drank or exercised. The Commission argued that operational service merely provided a setting in which, for the periods of his operational service, he made day to day decisions about his diet and exercise. 28 But, the tribunal did not consider the effect of shift work. There may have been other hypotheses or other ways of viewing Mr Gilkinson's claim, had it done so. But, it did not do so and the Commission can now not uphold the erroneous decision of the tribunal on that basis. I am of opinion that the tribunal made an error of law by failing to consider that hypothesis expressly in its reasons. It did not find beyond reasonable doubt that the requirement that he undertake shift work did not contribute to Mr Gilkinson being obese. DID THE APPEAL RAISE A QUESTION OF LAW? 30 I am of opinion that the amended notice of appeal did state questions of law. As was the case in Roncevich 222 CLR at 126 [28], the questions of law were whether the tribunal posed for itself and answered the two relevant questions. The tribunal's statement in the last sentence of [22] of its reasons, that nothing occurred during the operational service that in any way caused or contributed to Mr Gilkinson's obesity, over and above the existing fact that he was eating to excess and not exercising sufficiently, was a mere conclusion or assertion: cf: Byrne 242 ALR at 632 [53] per Buchanan J, Edmonds J agreeing at [10]. It did not advance a reason for negating beyond reasonable doubt Dr Volker's hypothesis that shift work could have caused or contributed to Mr Gilkinson's eating or not exercising. Instead, the tribunal simply stated a conclusion which indirectly may have rejected the hypothesis. But, it had to make a finding of fact as to whether that hypothesis had been disproved beyond reasonable doubt. Since Dr Volker put forward the hypothesis that shift work contributed to the eating disorder, the tribunal had to make findings which negated any causal effect of shift work on the obesity of Mr Gilkinson first observed in 1971 after he had completed 92 days of operational service for his country. 31 The tribunal did not ask itself the question whether the existence of the continued need for Mr Gilkinson to do shift work while on operational service was a factor which contributed to his obesity. It accepted that his then eating to excess and failure to exercise sufficiently did so. However, his operational service placed him in the position where, because he did shift work, that was the very kind of activity he was likely to have engaged in. Now it may be that, having asked the right question, the tribunal could come to the same ultimate conclusion which it did. Here, the tribunal, standing in the shoes of the Commission, had to consider whether the disease "was contributed to a material degree by his obesity". 32 The Commission also argued that the last sentence in [22] of the tribunal's reasons was to be understood as a finding that nothing other than eating and the lack of exercise caused or contributed to the obesity. However, such a finding is consistent with the causal operation of shift work leading to Mr Gilkinson's eating disorder and disinclination to exercise as an incident of his operational service. If it considered that shift work on operational service did not make any material contribution to Mr Gilkinson being obese, the tribunal was obliged to state such a finding and to give its reasons for it. The effect of the shift work in relation to the eating disorder was not addressed by the tribunal is its reasons. 33 I am of opinion that the tribunal did not consider the correct questions and failed to consider a relevant consideration. It committed an error of law. 34 For these reasons, I am of opinion that the appeal succeeds, the determination of the tribunal should be set aside and the matter remitted to be heard by it in accordance with law and these reasons. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

administrative appeals tribunal defence and war veterans whether tribunal committed errors of law whether tribunal posed and answered wrong question whether material before tribunal raised reasonable hypothesis that veteran's disease arose out of or was attributable to his operational service whether tribunal's failure to address expressly this hypothesis resulted in its failure to comply with s 43(2b) of administrative appeals tribunal act 1975 (cth) administrative law

2 The appellant in the proceedings has failed to appear. 3 The matter was listed for hearing at 2.15pm today and it is now 2.32pm and the appellant, although called, has failed to appear. The Federal Court Registry sent a letter to the appellant on 20 September 2007 advising the appellant of the place, date and time for the hearing of the appeal and that letter was sent to the address for service nominated by the appellant in the notice of appeal filed on 2 July 2007. 4 In addition to that letter, the solicitors for the respondents, Blake Dawson Waldron, wrote a letter to the appellant at the same address enclosing a copy of the first respondent's outline of submissions. That letter is dated 2 November 2007 and those letters have been marked Exhibits 1 and 2 in the proceeding. 5 By reason of the failure of the appellant to appear, the first respondent moves for an order pursuant to s 25(2B)(bb) for an order of the Court dismissing the appeal. 6 In view of the failure to appear, I order that the appeal is dismissed with costs. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an appeal from the federal magistrates court raising questions going to s 424a(1) of the migration act 1958 (cth) and whether the refugee review tribunal was required to make particular findings of fact no appearance by the appellant motion for dismissal pursuant to s 25(2b) of the federal court of australia act 1976 migration

2 On 22 March 2007, the first appellant and his wife (the second appellant) arrived in Australia. The first appellant contends that he holds a well-founded fear of persecution for a Convention reason and supports that contention by a written statement in support of his application and oral evidence given by video-conference before the Tribunal. The second appellant relies upon her membership of the first appellant's family and is thus included within the first appellant's application. 3 Since the substantive application for a protection visa is made by the first appellant, I will refer throughout these reasons to the appellant as a reference to both appellants. 4 On 27 April 2007, the appellant lodged an application for a protection visa setting out in his statement, facts upon which he relied in support of the contention of a well-founded fear of persecution for a Convention reason. On 6 June 2007, the first respondent's delegate refused the grant of a protection visa and on 26 June 2007, the appellant applied to the Tribunal for review. On the appeal to this Court, the appellant was self-represented and assisted by an interpreter. The appellant has filed brief written submissions which set out a number of submissions in support of the proposition that the primary judge fell into error in dismissing the application before the Federal Magistrates Court. A number of observations made by the appellant in support of the appeal to this Court rely upon error on the part of the Federal Magistrates Court in failing to find error on the part of the Tribunal. Accordingly, the focus of the appellant's appeal is to assert errors on the part of the Tribunal rather than identified errors of reasoning on the part of the primary judge. 5 The appellant's contentions can be summarised as these. 6 First, the Tribunal fell into error in failing to give the appellant the 'benefit of the doubt' and failing to accept the appellant's claims of a well-founded fear of persecution for a Convention reason in circumstances where it found the appellant's evidence plausible. Secondly, the Tribunal denied the appellant procedural fairness by concluding that the appellant suffered no real chance of serious harm for a Convention reason if the appellant (and his wife) returned to India. The appellant says such a conclusion was not open on the evidence before the Tribunal. Thirdly, the appellant was not given an opportunity by the Tribunal to be heard in respect of that matter. Fourthly, the Tribunal failed to consider all of the available material and failed to address relevant questions arising out of that material. Fifthly, the Tribunal failed to investigate the appellant's claims and especially the appellant's contentions of persecution in India. The appellant says that the Tribunal's decision of 10 October 2007 was made in circumstances of actual bias. Sixthly, although this contention is a subset of the earlier propositions, the Tribunal failed to properly analyse the appellant's contention of 'future harm' should the appellant return to India. Thus, the appellant contends that the Tribunal failed to discharge its statutory duty of review and fell into jurisdictional error. 7 Apart from these matters, the appellant made oral submissions that the Tribunal dealt with the application for review in a 'very fast' manner and the decision was 'taken quickly'. Secondly, the investigation by the Tribunal was not done 'properly' and the Tribunal ought to have undertaken 'greater inquiry' into the factual matters. Further, the appellant says that he was given no 'opportunity to be heard' by the Tribunal. Finally, the appellant says the Tribunal failed to give proper regard to the appellant's fear of serious harm arising out of racial tensions both those tensions and riots referred to by the first appellant in his written statement and evidence before the Tribunal and continuing recent evidence of racial tension. 8 The brief history of the proceeding before the Tribunal is this. 9 The application for review before the Tribunal was filed on 26 June 2007. The Tribunal acknowledged the application on 27 June 2007 by a letter written to the appellant at the address he provided for correspondence, namely, PO Box 923, Griffith, NSW, 2680. On 28 June 2007, the Tribunal again wrote to the appellant correcting the earlier letter of 27 June 2007 noting that the earlier letter failed to make reference to the family member position of the appellant's wife as part of the overall application for a protection visa. Each of those letters was sent by registered post. On 3 August 2007, the Tribunal wrote to the appellant and invited him to attend a hearing before the Tribunal on 30 August 2007. That letter was also sent by registered mail. The appellant acknowledged before this Court the receipt of that letter which, of course, was entirely consistent with the return to the Tribunal by the appellant of the 'Response to Hearing Invitation' form signed and dated by the appellant on 22 August 2007 and received by the Tribunal on 24 August 2007. The Tribunal's hearing record demonstrates that a hearing took place on 30 August 2007 at Hearing Room 3 by video-conference. The hearing commenced at 10.10 that morning and concluded at 11.10am. The second appellant was not present. The first appellant gave evidence for one hour before the Tribunal. On 30 October 2007, the Tribunal wrote to the appellant at the same PO Box number by registered letter and put to the appellant for comment for the purposes of s 424A of the Act, those matters the Tribunal considered would either be or be part of the Tribunal's reason for affirming the decision under review. 10 That letter raised a number of matters I will mention shortly. 11 The appellant made submissions that he did not receive the letter of 30 August 2007. The Tribunal noted that the appellant had not responded to the letter. The letter bears the registered number RP33513430. In the course of the hearing, I asked the appellant whether the reference to the registered post number assisted the appellant in his recollection of whether he received the letter. He said it did not. The appellant could not recall receiving the letter. On 10 October 2007, the Tribunal reached its decision to affirm the decision of the first respondent's delegate. On 30 October 2007, the Tribunal wrote to the respondent advising of its decision and providing a copy of the decision record. 12 Although the appellant contends that the Tribunal dealt with the matter in a fast manner with the decision being taken quickly and with the appellant being given no opportunity to be heard, it can be seen from the chronology that the Tribunal had before it the appellant's statement in support of the application, took oral evidence from the appellant, provided the appellant with an opportunity to comment upon a range of matters set out in its letter of 30 August 2007 and ultimately reached a decision on 10 October 2007. Although the appellant contends that he did not receive the letter of 30 August 2007, the Tribunal's letter was addressed to the same address for correspondence as each of its other letters to the appellant and each letter was sent by registered post. The appellant did not have with him in Court on the hearing of the appeal to this Court, a copy of the Appeal Book. The first respondent's solicitors on 21 July 2008 (Exhibit 1) wrote to the appellant at the same post office box as the address for correspondence and enclosed a copy of the Appeal Book. I invited the appellant to look at that letter and advise the Court whether he recalled receiving that letter and a copy of the Appeal Book referred to in the letter. The appellant acknowledged receiving the letter and the Appeal Book. 13 It seems to me very probable that the appellant received the Tribunal's letter of 30 August 2007 inviting comment notwithstanding that the appellant has no present recollection of receiving that letter. In any event, the Tribunal quite properly addressed the letter to the appellant's address for correspondence and took the precaution of sending that letter by registered mail. There is no evidence that the letter was returned to the Tribunal. 14 The appellant has not demonstrated any basis for contending that the Tribunal acted with undue haste or took its decision too quickly or failed to provide the appellant with an opportunity to be heard. Nor is there any foundation demonstrated to support the proposition that the Tribunal was motivated by actual bias. There is nothing in any of the material which suggests any basis for an apprehension of bias on the part of the Tribunal, by any objective observer. 15 The next question is whether the Tribunal failed to discharge its statutory duty of review in the manner contended for by the appellant. 16 In these reasons, I do not propose to record in great length the detailed content of each of the factual contentions put to the Tribunal. It is sufficient to note that the appellant's contentions involved a number of topics and they are these. 17 The appellant is a national of the Republic of India. He was born in Kukarwada, Vijapur, Mahesana in Gujarat. He asserted that he held a Bachelor of Arts degree, a Bachelor of Physical Education and a Master of Physical Education and worked as a physical education teacher from August 1999 until 2005 employed by the Gujarat State Fertiliser Company. The first element concerned an incident in July 2002. At that time, the appellant disciplined a student named Faruq for misbehaviour. That student was the nephew of a criminal called Babakham. The appellant claimed that Babakham threatened him, warned him not to discipline Faruq again, beat him with a wooden rod and caused threats to be made to his wife concerning her safety and the safety of his children. The appellant claimed that he was deeply fearful of these threats and feared for his own safety and that of his wife and children. 18 The second element of the appellant's contentions involved issues in relation to riots in 2002 described as the Godhrakand riots. The appellant is a Hindu. He said that he and his parents were Hindus living in a Muslim area where riots occurred and they saw extreme Muslim acts of violence against Hindu people. The appellant claimed that during these riots, Babakham and his supporters attacked him and threatened him. The appellant contended that aspects of these attacks related to perceptions on the part of Babakham and his supporters that the appellant was hostile to Muslim people. 19 The third element of the appellant's contentions involved his contended affiliation with the BJP ruling party in India. The appellant said that because he supported the BJP whereas Muslim interests supported the congress party, a political element was involved in the attacks upon him. Thus, the appellant contended that an element of the conduct directed against him related to his support for the BJP. 20 The fourth element of the appellant's contentions involved his election, because of his fears, to search for a job in another city and open a shop in Naranpura, Ahmedabad. The appellant claimed that Babakham and his supporters (seven in all) rushed into his shop, broke things and threatened the appellant that he would be killed if he opened another shop. The appellant claimed that he was advised by supporters to leave the country. The appellant says that the conduct of Babakham and his supporters is influenced in part by the events in July 2002, a perception that the appellant is hostile to Muslim people and involves aspects of the appellant's engagement in the political affairs of the ruling BJP party. 21 It is clear from the Tribunal's decision record (AB122-AB124) that the Tribunal asked questions of the appellant about each of these contentions, examined the chronology of events and asked questions going to the facts and circumstances surrounding each of the incidents described by the appellant. In addition, it is clear that the Tribunal sought in the course of the hearing, responses from the appellant concerning the circumstances of the appellant's travel to Sri Lanka, Hong Kong, China, Thailand, Malaysia, Singapore and Indonesia in September 2006 for 17 days which was well after the incident involving the further threats by Babakham relating to the shop on 12 July 2005. The Tribunal sought to understand why the appellant, having left India to visit a range of countries, did not seek to agitate his concerns of fear when in any of those countries either with authorities in that country or diplomatic missions of representative governments present with missions in those countries or with any United Nations organisations if the appellant held a well-founded fear of persecution for any particular reason and especially a Convention reason concerning race, religion, nationality, membership of a particular social group or political opinion. Moreover, the Tribunal sought to examine why the appellant returned to Kukarwada upon his return to India if he held an enduring fear of persecution. Finally, the Tribunal noted two further matters. First, the appellant's contention that if he returned to India Babakham and his supporters would seek him out and would kill him. Secondly, it would not be possible for the appellant to relocate within India to another place as each city and State in India is violent and Babakham would find him. 22 Accordingly, the decision record reflects a close analysis of all the areas of contention advanced by the appellant and thus it is impossible to conclude that the Tribunal acted with undue haste, too quickly or failed to inquire into each of the areas of contention put to it. 23 On 30 August 2007, the Tribunal wrote to the appellant and raised a number of matters for comment. The first matter concerned independent country information available to the Tribunal outlining the government's response to Hindu/Muslim riots in Gujarat and Maharashtra States in February 2002. The country information suggested that Muslim/Hindu clashes provided a greater threat to adherents of the Muslim faith than the risk of fear to the Hindu population. The independent country information suggested to the Tribunal that perhaps Hindus in Gujarat might not have a basis for a fear of serious harm as compared with a fear which might be held by members of the Muslim faith. Secondly, the Tribunal noted the travel to overseas countries by the appellant on 6 September 2006, his failure to seek asylum in those countries or contact foreign diplomatic missions or United Nations representatives to agitate his concern about a fear of serious harm. The Tribunal also noted the appellant's return to Kukarwada in Gujarat in September 2006. The Tribunal put to the appellant that his failure to agitate his concerns in those foreign countries and his willingness to return to Kukarwada suggested that the appellant did not hold a well-founded fear of serious harm of persecution for a Convention reason in India arising out of the events concerning the 2002 riots, the conduct of the Muslim community, the appellant's participation in the BJP or the activities of Babakham and his supporters. Finally, the Tribunal put to the appellant that the evidence before the Tribunal did not support the notion that the appellant had a 'high profile' in political or religious affairs or otherwise and thus the appellant might, in the view of the Tribunal, be able to return to India and live elsewhere in that country in safety and without risk of serious harm for a Convention reason. The primary judge notes that the Tribunal may have made an error of fact by assuming that the range of countries visited by the appellant in September 2006 were signatories to the Convention thus an application for asylum by reason of a well-founded fear of persecution for a Convention reason would not have been possible. However, as the primary judge observes, the Tribunal also makes reference to the failure of the appellant to make contact with any diplomatic mission of another country in those countries and the appellant's failure to make contact with United Nations officials. As the primary judge also notes, the Tribunal's reference to these matters was for the purpose of highlighting an inconsistency of treatment on the part of the appellant. The point of the reference to these matters by the Tribunal is to observe that the appellant took no steps when out of India, after experiencing the contended fear of persecution, to secure sanction in another country through international mechanisms. Rather, the appellant elected to return to his home village where the source of the harm arose. 24 The Tribunal reached these conclusions. 25 First, the Tribunal accepted that the appellant had suffered some damage during the 2002 riots and had developed an enmity with Babakham. The Tribunal concluded that 'from the limited and unsupported claims made by the applicant, the Tribunal has not been able to satisfy itself that these events are Convention related or that the applicant has a well-founded fear of serious harm amounting to persecution for a Convention reason on this basis' . The Tribunal did not accept those claims. 26 Secondly, the Tribunal examined the applicant's contention of fear of the Muslim community against the background of the appellant's travel in September 2006 to the nominated countries. The Tribunal concluded that if the appellant left India because of a fear of the Muslim community as he contended, it was unlikely that he would have chosen to visit countries with significant Muslim populations. The Tribunal noted that some of those countries were not comprised of Muslim majorities yet the appellant said he did not feel safe in those countries either and thus returned to his home village in India. The Tribunal noted that the appellant did not take the opportunity, outside India, to go to a country where he could seek asylum. The Tribunal noted that the appellant did not respond to its letter of 30 August 2007 dealing with the independent country information suggesting that Muslims in Gujarat might be the subject of official discrimination and harassment rather than Hindus. 27 The Tribunal accepted the independent country information and concluded that if the appellant held a well-founded fear of serious harm amounting to persecution from the Muslim community or Muslim fundamentalists because of his experiences in the riots of 2002, the appellant would have moved elsewhere within India and would not have continued to work at the Gujarat State Fertiliser Company for a further three years. The Tribunal further noted that the claims of attacks upon the appellant derived not from the Muslim community or Muslim fundamentalists but as a result of the particular conduct of Babakham. That conduct represented transactional enmity between the two men rather than conduct emblematic of Muslim hostility. The Tribunal concluded that 'from the unsupported claims made by the applicant, the Tribunal has not been able to satisfy itself that there is a Convention reason for this enmity. It follows that the Tribunal does not accept the applicant's claims that flowed from this such as the threats he received from Babakham and the mental stress this caused were Convention related either'. The Tribunal concluded that consistent with the criminal or domestic conduct reflected in that hostility rather than a fear of serious harm for a Convention reason, no effort was made by the appellant to seek refugee status in any place outside India until the present application. 28 The Tribunal concluded that having regard to all of its conduct, the appellant did not hold a well-founded fear of serious harm amounting to persecution for a Convention reason within India. The Tribunal concluded that the appellant's willingness to return to his home village was consistent with an absence of a well-founded fear of serious harm due to the conduct of the Muslim community. The Tribunal refused to accept the appellant's unsupported claims that he was forced to leave his role as a teacher in May 2005 or his business in Naranpura for any Convention reason. 29 As to political engagement, the Tribunal asked a series of questions at the hearing of the appellant about the extent of his engagement with the BJP. The Tribunal noted that the appellant had no real knowledge of the BJP's party platform, its manifesto or its political philosophy and nor did the appellant indicate that he had ever had an active involvement in politics in India. The Tribunal concluded that the appellant was not a member of the BJP and did not take part in its activities but rather simply expressed interest in it. The Tribunal accepted that the appellant's motivation in expressing interest in the BJP was in the expectation that he would secure some degree of protection or support from the party against the activities of Babakham. The Tribunal noted that no Convention nexus was made out in respect of any aspect of the appellant's contentions involving the BJP. The Tribunal accepted that enmity existed between Babakham and the appellant and that the hostility between the two men was the source of the appellant's fear of harm rather than any question of the infliction of serious harm by a person or group by reason of the appellant's membership of a political party or a commitment to the Hindu faith. Moreover, the Tribunal concluded that since the appellant did not exhibit a high political or religions profile in India he would be very likely to be able to live elsewhere in India in safety without there being a risk of being found. Thus, the Tribunal concluded that the applicant could live elsewhere in India in safety without being at risk of serious harm for a Convention related reason. 30 The formal grounds of appeal to this Court are these. 1. The single judge of the Federal Magistrates Court failed to find errors of law, jurisdictional error, procedural fairness and failed to grant relief under s 39B of the Judiciary Act 1903 (Cth). 2. The learned Federal Magistrate has dismissed my case without considering the legal and factual error contained in the decision of the Refugee Review Tribunal. 31 Neither of these formal grounds identifies any content to the ground. Accordingly, I have assessed the merits of the appeal in the context of the appellant's short written submissions and propositions advanced at the hearing described at [5] and [6] of these reasons. 32 As to the first of those reasons, the appellant says that the primary judge erred by failing to find that it was open to the Tribunal to find that the appellant is a refugee being a person who holds a well-founded fear of persecution for a Convention reason and as a part of that proposition, the appellant contended orally that the Tribunal erred by failing to give the appellant the benefit of the doubt and accept his claims when the Tribunal found the appellant's evidence to be plausible. As to the first limb of that ground, the Tribunal undertook an analysis of the facts in the discharge of its fact-finding role and reached a conclusion which was plainly open to it. As to the second limb, the Tribunal accepted some aspects of the appellant's evidence and rejected others. The evaluation of the claims made by the appellant and the weight to be given to the field of factual controversy is entirely a matter for the Tribunal. The primary judge did not fall into error by failing to find error on the part of the Tribunal in that regard. 33 As to the second ground, the appellant says that he was denied procedural fairness on the footing that the Tribunal concluded that the appellant suffered no real chance of serious harm for a Convention reason if he returned to India. The appellant says that conclusion was not open on the evidence. That conclusion reflects the discharge of the fact-finding role by the Tribunal and the conclusions reached were open to the Tribunal. To the extent that the appellant says that he was denied procedural fairness because he was denied an opportunity to be heard, the chronology of events, the steps taken by the Tribunal and the decision record makes it clear that the appellant was provided with an opportunity to be heard and ventilate each of his contentions on the facts as to a well-founded fear of persecution for a contended Convention reason. 34 The appellant further contends that the Tribunal failed to consider all the material before it and failed to address questions arising out of it. An examination of the decision record demonstrates that the Tribunal considered the appellant's statement, asked questions of the appellant at the video-conference about each of the relevant events and weighed the body of fact in reaching its decision. 35 The appellant further contends that the Tribunal failed to investigate his claims and was actuated by actual bias. Plainly enough, the Tribunal has power to seek information but has no duty to investigate the appellant's claims by conducting its own inquiries to test particular evidence put to the Tribunal or to seek out corroborative or contradictory evidence. It may elect to make inquiries. However, it has no obligation to either exercise the statutory power to make inquiry or to make findings that the particular matter under review does not warrant the exercise of any power to seek information ( Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12 per Gummow and Hayne JJ at [43]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 per Black CJ, Sundberg and Bennett JJ at [20]). The power to seek information is entirely permissive. Moreover, the failure to exercise a power to obtain further information does not constitute either actual bias or an apprehension of bias. Bias must be clearly demonstrated. The written decision record does not suggest any basis for a contention of actual bias and nor is there any material which suggests to the reasonable observer any basis for apprehended bias ( Minister for Immigration and Multicultural and Indigenous Affairs v JIA [2001] HCA 17 ; (2001) 205 CLR 507 per Gleeson CJ and Gummow J at [69]; SBBF v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 358 per Tamberlin, Mansfield and Jacobson JJ at [16]). 36 Accordingly, it follows that none of the grounds of appeal expressed in the formal language of the notice of appeal elaborated by the content of the appellant's written submissions and oral submissions are made out. 37 Therefore, the appeal must be dismissed with an order that the appellants pay the first respondent's costs of and incidental to 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 Greenwood.

consideration of an appeal from the federal magistrates court on grounds of denial of procedural fairness, actual bias and failure to investigate matters within the factual controversy before the refugee review tribunal migration

Adnunat is the registered proprietor of Australian Patent No. 752353 (the Patent). The Patent concerns an invention of a concrete lifting anchor (the "Lifting System") that can be embedded into pre-cast concrete elements so as to hoist them into place in the construction of walls for both commercial and residential buildings. By its cross-claim, ITW seeks a declaration that the claims of the Patent are invalid and an order pursuant to s 138 of the Patents Act 1990 (Cth) revoking the Patent. Adnunat contends that it has a complete defence to the cross-claim by virtue of an agreement it says is in place between it and ITW, a term of which is an undertaking by ITW not to challenge the validity of, or seek to revoke, any claim of the Patent. Adnunat's current application turns on the existence, or otherwise, of this agreement. If it exists, then it follows that ITW is in breach of the agreement in bringing the cross-claim and will be barred from so doing. I should emphasise that, in what follows, I make no findings of fact: see Imobilari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920 at [6] (Finkelstein J); Three Rivers DC v Bank of England (No 3) [2003] 2 AC 1 at 282. Rather, what follows is a summary of the evidence adduced by Adnunat, given by way of an affidavit of Mr Marco Olivetti, its General Manager. Aside from a short affidavit exhibiting a business name extract of the second applicant, ITW adduced no other evidence. Reid denied infringement and brought a cross-claim that the Patent was invalid for lack of novelty and lack of inventive step. Following mediation in December 2003, Adnunat and Reid agreed to settle their dispute and executed a "Settlement Deed" on 23 December 2003. The parties to the Settlement Deed were Adnunat, Reid and a third company registered in New Zealand, Nylex (New Zealand) Limited, against whom Adnunat had threatened similar litigation. Relevantly for present purposes, the Settlement Deed contained the following terms: The relationship between Adnunat and the second applicant, Olivetti Concrete Lifting Systems Pty Ltd (Olivetti Concrete), and another entity, Olivetti Engineering Pty Ltd (Olivetti Engineering), was provided by Mr Olivetti: Each of Adnunat, Olivetti Concrete and Olivetti Engineering are family owned and operated companies. Mr Olivetti's parents are the sole directors and shareholders of Adnunat. His father is the sole director and shareholder of Olivetti Engineering and he and his mother are the sole directors and shareholders of Olivetti Concrete. At all relevant times, he has been responsible for the day to day control and management of all three companies. From about 1 August 2000, Olivetti Concrete has carried on the business of supplying concrete lifting anchors and associated building products. From July 2003, Olivetti Concrete has held an exclusive licence from Adnunat to manufacture, advertise and sell 9 tonne anchors in accordance with the Patent. Other than licencing the Patent, Adnunat does not carry on business. As the companies are family owned and operated, Mr Olivetti has tended not to "discriminate" as to which of the three corporate vehicles is used when conducting the family business, including its transactions with the respondents. In particular, Olivetti Engineering (in addition to Olivetti Concrete) was permitted by Adnunat to manufacture, advertise and sell 9 tonne edge anchors made in accordance with the Patent. In particular: The licences granted to Reid under cl 3.1 of the Settlement Deed in respect of the Two Tonne and Five Tonne Products expired on 23 December 2004: cl 3.1(a) and (b). The licence for the Nine Tonne Product had earlier expired on 23 June 2004: cl 3.1(c). In January 2005, Mr Olivetti revised the cost price he wished to charge Reid for the 9 tonne anchors up to $5.60 per anchor. According to Mr Olivetti, Reid made a number of purchases in the early part of February 2005. Three of these were evidenced by invoices issued by Olivetti Concrete to Reid, together with extracts from Olivetti Concrete's accounting system, showing payments received by Olivetti Concrete for the anchors in April 2005. Two of the invoices refer to a price of $5.60 and the other, a price of $5.45. Mr Olivetti said he has "no recollection as to why the price" in the third invoice was $5.45 rather than $5.60, but does not believe the reduction was intentional. On about 1 March 2005, Adnunat received a letter from Ms Careen Lai, who described herself as "Financial Controller". One of the main operating companies in the ITW group of companies in Australia is Ramset Fasteners (Aust) Pty Ltd, ABN 48 004 297 009. The legal entity name of which has been changed to ITW Ramset Australia Pty Ltd., effective 1 March 2005. From that date Reid will operate as a division of ITW Ramset Australia. This change reflects only a change in the legal ownership of the Reid business, our business will continue to operate as an autonomous business unit from the ITW Ramset Australia other division, Ramset Fasteners Australia. Following Ms Lai's letter, Mr Olivetti says that ITW began to perform Reid's obligations under the Settlement Deed. In particular: On 16 March 2005, an email was sent by Mr Brian Pleysier, who was described as "Supply Chain Manager --- Reid Construction Systems", complaining about apparent shortfalls in the number of anchors delivered by Adnunat so far that year. Mr Pleysier's email was preceded by an email from Mr Fithall to Bob Connell of Reid on 15 February 2005, which explained that Olivetti Engineering had been experiencing "major problems with [its] machines", was "now only getting back into normal production" and planned "to be able to service [Reid's] required levels as of March 1 st . I have not yet heard from you despite having made it explicitly clear that we need your response urgently as we are in a very critical situation. 5,000 per month to service our customer needs. As your email below clearly suggests, we have not received anywhere near "normal production" quantities --- please indicate what you consider normal in your recovery plan? Neither have we received "increased amounts", nor have you serviced our "required levels" since March 1 st . We currently have purchase orders outstanding with you for 19,000 anchors. This is unacceptable in any terms. This appears to have been preceded by an invoice for the royalties in the amount of $6,990.72 issued by Olivetti Concrete to "Reid Construction Systems P/L" on 31 March 2005. Please also [forward] your Tax Invoice attention to myself. From March to June 2005, ITW purchased a total of 18,700 9 tonne anchors from Olivetti Concrete. These were typically delivered and paid for in tranches of 1,000, 1,500 or 2,000. Invoices for the purchases were issued by Olivetti Concrete and the anchors were paid for by ITW between May and August 2005. Mr Olivetti was unable to explain the price difference. (b) Each of the invoices was addressed to "Reid Constructions Systems Pty Ltd" but included at the bottom ITW's ABN (48 004 297 009) as the "Customer ABN". Adnunat referred to several documents, including the share sale agreement, a transfer of business agreement and company extracts obtained from ASIC's company database: see the exhibits to the affidavit of Graeme Scott, Adnunat's solicitor, sworn 7 November 2008. It is apparent from these documents that ITW and ITW Reid Holdings Pty Ltd are both members of the ITW group of companies, the ultimate holding company being a US company, Illinois Tool Works Inc. The share sale agreement and the relevant ASIC company extract disclose that ITW Reid Holdings Pty Ltd acquired the shares in Reid on 30 January 2004. Accordingly, ITW and Reid became related companies from that date onwards. Subsequently, on 13 May 2005, Reid entered into a "Transfer of Business Agreement" (Business Agreement) with ITW (named ITW Ramset Australia Pty Ltd at the time) pursuant to which Reid agreed to transfer to ITW its entire business of "manufacturing and supplying concrete fasteners, concrete reinforcing and concrete lifting systems". The Business Agreement provided for ITW to acquire all of Reid's assets (including all of its "contracts" and "goodwill") and assume all of its liabilities: see cll 1, 2 and 3. The transfer of assets and assumption of liabilities was to have effect on and from 1 March 2005: see cl 1, definition of "Effective Date". The ASIC company extracts exhibited to Mr Scott's affidavit disclose that Messrs Michael Davies, Allan Sutherland, Bela Hargitay and David Speer were directors of both Reid and ITW at the time of the transfer of Reid's business to ITW in March 2005. [Reid] must comply with such a request to the extent it lawfully can. The applicants' allegations in the proceeding may be summarised as follows: Adnunat is the proprietor and Olivetti Concrete is the exclusive licensee of the Patent. The respondents have infringed the Patent by, among other things, manufacturing and selling two products, the Swiftlift Jaws Ultra (Swiftlift Anchor) and Hair Pin Lift Edge Anchors, models 5HPA and 10HPA (HP Anchors). Reid has acted in breach of the Patent Infringement Term of the Settlement Deed (see [4] above) by engaging in the infringing conduct and failing or refusing to ensure that ITW (as a Related Body Corporate) does not engage in the infringing conduct. Both respondents deny infringement. Reid alleges further that the Patent Infringement Term is void by operation of subss 144(1) and (1A) of the Patents Act 1990 (Cth) and the No Challenge Term is void and unenforceable as an unlawful restraint of trade. ITW denies that it is a party to the Settlement Deed or in any other way bound by its terms. ITW has brought a cross-claim against Adnunat seeking a declaration that the Patent is invalid and an order that it be revoked. Accordingly, it says that ITW has no reasonable prospect of prosecuting the cross-claim and judgment should be given in its favour dismissing the cross-claim with costs. As referred to at [17], Adnunat's claim that ITW is bound by the Settlement Deed, despite not having been an original party to it, is made with reference to cl 17 of the Deed. Its contention is that ITW is bound by the Settlement Deed because the parties' conduct demonstrates an agreement to be bound. Adnunat relied on the following evidentiary matters. First, prior to the transfer of business, both Reid and Adnunat had complied with the Settlement Deed, in particular the royalty and anchor supply terms. The representative with which Adnunat corresponded was a Mr Bob Connell, who was at the same time both the General Manager of Reid and Marketing Manager of ITW, then named Ramset Fasteners (Aust) Pty Ltd. Second, by its letter dated 1 March 2005, ITW notifed Adnunat that Reid's business had been transferred to it, that the change reflected "only a change in the legal ownership of the Reid business", that ITW would thereafter be conducting the business under Reid's existing trading name, Reid Construction Systems, and Adnunat was to deal with ITW instead. Adnunat placed significance on the fact the letter was addressed to Adnunat, rather than Olivetti Concrete or Olivetti Engineering. As it was those latter entities that had dealt with Reid on a day to day basis, Adnunat submitted that the only reasonable inference open was that the letter was directed towards and would be understood as a reference to the Settlement Deed and the existing relationship to which the Deed related. The letter, Adnunat said, demonstrated ITW's intention to assume Reid's existing third party contractual obligations and gave notice of that intention to Adnunat. Third, the Business Agreement makes clear that Reid and ITW intended that the entire business would be transferred and, in particular, all contracts --- including the Settlement Deed --- were to be novated or, failing novation, assigned. In particular, by cl 6.3(a) of the Business Agreement, ITW was to perform Reid's obligations under the Settlement Deed pending novation: see [14] above. Taking cl 6.3(a) together with ITW's conduct towards Adnunat after 1 March 2005 (including its provision of the letter dated 1 March 2005), Adnunat said it should be inferred that ITW intended to comply with, and be bound to Adnunat directly by, the terms of the Settlement Deed. Fourth, it is an admitted fact that from March 2005 Reid ceased to trade and ITW conducted business under the name "Reid Construction Systems" (see pars 3(iii) and 4(v) of the respondents' amended defence). From that date onwards, Adnunant says, ITW alone performed Reid's obligations under the Settlement Deed; as Adnunat put it, "ITW stood in [Reid's] shoes ... as successor". It did this by ordering and paying for 9 tonne anchors, pursuant to cl 3.4 of the Settlement Deed, as well as by paying Adnunat royalty amounts owing in respect of Reid's sales in the last three calendar months of 2004: see [10] above. In relation to the supply of 9 tonne anchors, Adnunat relied on Mr Pleysier's email dated 16 March 2005. The email was sent after 1 March 2005 (when Reid had ceased trading) and should be construed, according to Adnunat, as a "demand" by ITW for supply. The demand was referable to, and indeed "consistent only with", the terms of the Settlement Deed which obliged Adnunat to supply (ie cl 3.4). As to the royalty payments, Adnunat submitted that Ms Lai's email dated 1 April 2005 --- requesting details of "the royalty amount and ... bank details so that we can process the payment" --- could only be referable to cl 3.2 of the Settlement Deed. Accordingly the inference should be drawn that ITW considered itself bound to pay the royalty amount, which significantly was a debt that Reid owed for sales it had made prior to ITW acquiring the business. Fifth, Adnunat itself understood that ITW was prepared to be bound by the Settlement Deed. At the time the Deed was executed (23 December 2003), cl 17 expressly contemplated that a successor of any original party would receive the benefit of and be bound by the terms of the Settlement Deed. When Adnunat received notice of the transfer of Reid's business, it expected not only that ITW would be bound but that Adnunat itself was obliged to continue performing its obligations under the Settlement Deed in favour of ITW. Consistently with that understanding, Adnunat continued to conduct itself at all relevant times after 1 March 2005 as if the parties had an agreement in place. As evidence that it had turned its mind to the fact it was dealing with a different legal entity, Adnunat referred to the post 1 March 2005 invoices discussed at [10] above. The inclusion of ITW's ABN in those invoices, so the argument went, demonstrated that Adnunat was cognisant of the fact it was transacting with ITW, albeit as part of a continuing course of trade established with the Reid business. Adnunat, it said, focuses on an irrelevant question when it claims that ITW is a "successor" of Reid for the purposes of cl 17 of the Settlement Deed. It is not to the point that the original parties to the Settlement Deed included an enurement clause in the terms of cl 17, purporting to bind any future "successors". The doctrine of privity mandates that a new party will only be bound by a contract if it intends to be bound or is otherwise bound by operation of law (for example, by way of a corporate merger). The relevant question here therefore is not whether ITW is properly described as a "successor" of Reid, but whether ITW in fact bound itself to a new contract with Adnunat. Relying on South Australia v Peat Marwick Mitchell & Co (unreported, Supreme Court of South Australia, Olsson J, 15 May 1997) at [158], ITW submitted that the concept of liability independently attaching to a "successor" of a business --- without its agreement in contract --- is not recognised in Australia, except to a limited extent where a corporate merger is undertaken (usually accompanied by court orders effecting the transfer of rights and liabilities to the merged entity). Instead, when a corporation acquires the assets (and thereby, the business) of another corporation, the general rule of separate legal personality applies and the acquiring corporation does not, by operation of law, take on the obligations of the transferring corporation. The acquiring corporation will only take on liabilities and obligations to third parties if it decides to contract itself with them, either directly or through novation of an existing agreement. (The passage relied on by ITW in Peat Marwick at [158] is not reproduced in the report of the decision at (1997) 24 ACSR 231. ) With that in mind, ITW contends that Adnunat has failed to adduce any, or any sufficient evidence, to demonstrate that Adnunat and ITW had by their correspondence or conduct intended to bind themselves to a new contract in the same terms as the Settlement Deed. In "contract by conduct" cases, it said, it is necessary to show from the parties' conduct a "tacit understanding or agreement", where the conduct is such as to prove "all the essential elements of an express contract": see Giles JA, with whom Priestley JA and Meagher JA agreed, in Industrial Rollformers Pty Ltd v Ingersoll-Rand (Australia) Pty Ltd [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 ( Industrial Rollformers ) at [137]. In particular, if a court is to hold that one party has bound itself in contract by its conduct, it must be able "to identify within the conduct of both parties the terms of the contract , and to be objectively satisfied that both parties agreed to be bound by those terms": see Giles JA at [138] (emphasis added). Here, ITW submitted, its conduct in purchasing 9 tonne anchors points to nothing more than the existence of an agreement for the sale of those goods. Adnunat failed to adduce evidence of any conduct or communications by ITW that are referable unequivocally to the express terms of the Settlement Deed, for example the grant of the licence (cl 3.1), the payment of royalties (cl 3.2), the undertaking not to infringe or challenge the validity of the Patent (cl 4 and cl 4.1), the release (cl 5.1) or indemnities (cl 5.3). Moreover, the lack of any such conduct is explicable said ITW, because: ITW then made the following submissions in response to the evidence put forward by Adnunat, summarised at [26]-[31]: ITW also relied on what it described as a number of "serious legal and factual questions" about Adnunat's case, which have a bearing on the terms of the Settlement Deed and which it said are properly determinable only at trial. Adnunat claims that since July 2003 it has had an exclusive licence agreement with Olivetti Concrete for Olivetti Concrete to manufacture, advertise and sell 9 tonne anchors (see par 8 of the applicants' statement of claim and exhibit MGO-1 to Mr Olivetti's affidavit). However, according to its ASIC company extract, Olivetti Concrete did not exist under that name in July 2003. It was instead called Hatherford Pty Ltd until 29 June 2007. While the business name "Olivetti Concrete Lifting Systems" had existed since August 2000, it was registered in the name of Olivetti Engineering until 30 September 2005, when it was transferred to Hatherford Pty Ltd and thereafter deregistered in July 2007. ITW submitted that the exclusive licence agreement was therefore either a forgery or the reference in it to Olivetti Concrete was an error. If it were an error, then the validity of the licence agreement, the standing of the second applicant in the proceeding and par 8 of the applicants' statement of claim would all be in serious question. However if, regardless of the identity of the licensee, the exclusive licence were held to be valid, then the licence granted to Reid under the Settlement Deed must be in serious question, because Adnunat would have retained no right to grant it. In that event, ITW submitted that a major part of the consideration for the No Challenge Term would fail because Reid would not have received an effective licence from Adnunat. Absent a trial, it said, these important factual issues, which are at the heart of the applicants' claims, would not be the subject of proper findings and a determination. In White Industries 160 FCR at [59], Lindgren J considered that a claim requires "real" as opposed to "fanciful" or "merely arguable" prospects in order for it to have reasonable prospects of success as required by s 31A. Justice Rares in Boston 236 ALR at [45] was of the view that, unless there are no real issues of fact --- such that "only one conclusion can be said to be reasonable" --- summary judgment (or dismissal) ought not be given pursuant to s 31A. The Full Court has recently considered the summary judgment standard in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 (Finkelstein, Rares and Gordon JJ) ( Jefferson Ford ). Although different views were taken as to the precise operation of s 31A, the following principles appear to have been endorsed: Precisely how a claim is assessed will depend on the nature of the cause of action, as well as the identity of the parties, the pleaded facts and the evidence adduced: see Jefferson Ford 167 FCR at [126] (Gordon J). Although this application is for dismissal of ITW's cross-claim, the allegations to be assessed are not concerned with the claim of invalidity. They concern the alleged existence of a separate and distinct agreement. That agreement and its alleged terms arise in the first instance as part of Adnunat's primary claim: see pars 14---20, esp 17---19, of the applicants' statement of claim. As a consequence, granting the relief sought by Adnunat on this application would have the effect of determining, summarily and in its favour, an important aspect of Adnunat's own claim, which it would otherwise have to prove at trial. It is in that context that ITW advanced no substantive evidence in response to the matters deposed to by Mr Olivetti. The thrust of ITW's submissions appeared to be that Adnunat, bearing the ultimate onus of proving that a binding agreement exists, failed to demonstrate even a prima facie case that ITW has no reasonable prospects of successfully proving otherwise. A contract may in certain circumstances be inferred from conduct, even where no offer and acceptance can be identified: see Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 97326 ; Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 ( Vroon ); Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129. However the existence or otherwise of an enforceable agreement depends ultimately on the manifest intention of the parties, objectively ascertained: see Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548-50 (Gleeson CJ) and his Honour's reference to Gissing v Gissing [1970] UKHL 3 ; [1971] AC 886 ; see also Cheshire & Fifoot's Law of Contract (9 th ed, LexisNexis, 2008) at [3.5] and [3.9]. Where mutual promises are sought to be inferred, the conduct relied upon must, on an objective assessment, evince a tacit agreement with sufficiently clear terms. It is not enough that the conduct is consistent with what are alleged to be the terms of a binding agreement. The evidence must positively indicate that both parties considered themselves bound by that agreement: Industrial Rollformers [2001] NSWCA 111 ; (2001) Aust Contract R 90-129 at [137] - [138] and [142]; Pacific Brands Sport & Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 ( Pacific Brands ) at [47]. As Finkelstein J observed in Pacific Brands [2005] FCA 288 , it will only be in very clear cases that the courts will infer a contract from conduct in the absence of written or oral communications that evidence the exchange of mutual promises: see [2005] FCA 288 at [45] and the cases there referred to. In most instances, contract by conduct cases will involve a complex set of facts and require evidence from those who have played a role in the relationship between the parties. Necessarily, where a contract is denied, the credibility of those involved on both sides may be crucial. These considerations are in my view an obstacle to Adnunat obtaining summary relief. At its simplest, Adnunat's case consists of the following steps: In my view, Adnunat's motion confronts three initial problems. First, Adnunat has adduced no evidence that ITW communicated to Adnunat a preparedness, let alone an agreement, to perform Reid's obligations under the Settlement Deed. There is simply no evidence of any discussions between ITW and Adnunat concerning the terms of the Settlement Deed. The problem confronted by Adnunat is that, given it asserts ITW "bound itself to the provisions of the [Settlement Deed]", it must point to conduct that positively and unambiguously demonstrates an agreement to observe those provisions, in particular the No Challenge Term. However there is no evidence that ITW considered itself bound by the No Challenge Term, either from its conduct or communications with Adnunat. Nor is there any evidence it agreed to the Patent Infringement Term or the indemnities given by the original contracting parties. Secondly, Adnunat's reliance on cl 6.3 of the Business Agreement should be treated with some caution. The Business Agreement was between Reid and ITW. ITW's promise to comply with Reid's obligations under existing contracts was a promise given to Reid for Reid's benefit. It is true that cl 6.3 reveals an intention by ITW to perform Reid's existing contractual obligations. However it makes no specific reference to Adnunat or the Settlement Deed. At best, it demonstrates that ITW was prepared to agree with Reid that it would perform Reid's contractual obligations and be accountable to Reid if it failed to do so. The third related issue is that cl 6.3 of the Business Agreement in fact shows that Reid and ITW intended that existing contracts would be novated. This suggests an intention by ITW to bind itself to third parties only where formal novation agreements were entered into. Adnunat does not contend that there was a novation of the Settlement Deed and there is no evidence that a novation was attempted or suggested to Adnunat. Adnunat instead claims that a new bilateral contract came into existence between it and ITW on the same terms as the Settlement Deed. However on the evidence on this application it is reasonable to infer that ITW did not intend to bind itself to the Settlement Deed, because the parties did not, as ITW and Reid contemplated, novate the terms of the Deed. Indeed, a reasonable inference to draw from the lack of a novation is that ITW considered there to be little benefit to it in rendering itself a party to the Settlement Deed. In the absence of any evidence of discussions about the terms of the Settlement Deed, it is difficult to see what consideration ITW would have understood it was receiving in agreeing to take on Reid's obligations, other than Adnunat's promise to supply anchors at "a reasonable market price" subject to alteration at any time by Adnunat "in its absolute discretion": see cl 3.4 of the Settlement Deed. The difficulty for Adnunat is that, without more, ITW's conduct appears to be equally consistent with an intention not to bind itself to the Settlement Deed but instead simply to purchase anchors that it knew Adnunat was in a position to supply. In that regard, it should be noted that Mr Olivetti says he cannot explain why the price paid by ITW for anchors after it acquired the business was not the same as that which had been set previously with Reid: see [10] above. The evidence seems to me at best ambiguous as to the basis upon which the parties were conducting themselves in relation to the supply of anchors. Adnunat sought to draw assistance from the decision of the House of Lords in Tolhurst v The Associated Portland Cement Manufacturers (1900) Limited [1903] AC 414 ( Tolhurst ). Tolhurst involved a contract for the supply of chalk at a stipulated price over a 50 year period. In 1898, Alfred Tolhurst entered into a long term agreement with a cement manufacturer, the Imperial Portland Cement Company, to supply chalk on a weekly basis from the extensive chalk quarries located on his land. The long term arrangement was to both parties' benefit, securing a regular market for Mr Tolhurst and a regular source of supply for Imperial. Two years later in 1900, Imperial sold its cement business to another company, the Associated Portland Cement Manufacturers (1900) Limited, assigned the benefit of the chalk agreement to Associated and went into voluntary liquidation. Mr Tolhurst, while prepared to supply to Associated, was unwilling to do so at the price stipulated in the chalk agreement. Nevertheless, he supplied chalk on credit and brought an action against Associated to recover a higher price. He claimed that Imperial had by its conduct rescinded the chalk agreement and sought a declaration that he was not bound to supply to Associated, as the purported assignee, at the stipulated contract price. Associated and Imperial brought a separate action seeking declarations that the agreement was valid and subsisting and that Mr Tolhurst was bound to supply chalk to Associated at the contract price. On appeal, the House of Lords upheld the Court of Appeal's decision to grant the declarations sought by Imperial and Associated. The House of Lords considered that the terms of the chalk agreement, properly construed, permitted the benefit of the chalk agreement to be assigned. Lord Macnaghten, delivering the leading opinion, observed that contractual rights are not always assignable, for example where the contract involves an element of personal skill or confidence on the part of the original parties. However in the circumstances their Lordships held that the chalk agreement did not require personal performance by either Imperial or Tolhurst and the rights under it were assignable by Imperial, notwithstanding the absence of any express provision regarding assignment in the agreement. Adnunat referred to two particular passages in Lord Macnaghten's judgment. They, and they only, are named as the persons to perform the contract. From beginning to end of the instrument, if the contract be taken literally, there is not one word pointing to the continued existence of the contract in the hands of any other person, either by succession or substitution. ... And yet the contract is to endure for the period of fifty years, or if the supply of chalk in the quarries does not hold out so long, it is to last for thirty-five years at least. Now, when it is borne in mind that the Imperial Company must have been induced to establish its works at Northfleet by the prospect of the advantages flowing from immediate connection with Tolhurst's quarries, and that the contract in substance amounts to a contract for the sale of all the chalk in those quarries by periodical deliveries (less what Tolhurst might sell elsewhere), it is plain that it could not have been within the contemplation of the parties that the company would lose the benefit of the contract if anything happened to Tolhurst, or that Tolhurst would lose the benefit of the market which the contract provided for him at his very door in the event of the company parting with its undertaking, as it was authorized to do by its memorandum . (Emphasis added. It seems to me that the contract is to be read and construed as if it contained an interpretation clause saying that the expression "Tolhurst" should include Tolhurst and his heirs, executors, administrators and assigns, owners and occupiers of the Northfleet quarries, that the expression "the company" should include the company and its successors and assigns, owners and occupiers of the Northfleet Cement Works, and that the words "his" and "their" should have a corresponding meaning. That, I think, was the plain intention of the parties. Adnunat acknowledged that, unlike this case, Tolhurst [1903] AC 414 was concerned with an action by an assignee to enforce the chalk agreement against an original party. However, in reliance largely on the passage quoted at [46] above (in particular the last sentence), it said that this case was otherwise "on all fours with the facts in Tolhurst " and submitted that it was irrelevant, in determining whether there was a mutual intention to contract, which one of the two parties sought to enforce the agreement (ie the assignee or the original debtor). This latter proposition requires some further explanation. Adnunat appeared to place significance on the fact that the House of Lords had made it a condition of the assignee's entitlement to the benefit of the agreement that it perform Imperial's obligations (ie to pay for the chalk): see [1903] AC 414 at 421 (Lord Macnaghten). This, said Adnunat, was significant because Imperial had been dissolved (and existed in name only) and the House of Lords, while observing that it is not possible to assign the burden of a contract without the original debtor's consent, was prepared in the circumstances to find that both Tolhurst and Associated had effectively consented to Associated taking the benefit, along with the burden, of the chalk agreement. This conclusion was reached notwithstanding that Mr Tolhurst had never previously discussed or agreed terms with Associated directly. Mr Tolhurst's consent arose from the terms of the chalk agreement, while Associated's consent was self-evident from the assignment and its preparedness to perform the agreement in place of Imperial. This was an example, said Adnunat, of how a contractual burden may be transferred to a third party --- without there being a formal novation --- giving rise to new rights and obligations as between the original debtor (Tolhurst) and the new party assignee (Associated). Applying that result to this case, Adnunat contended that the necessary consent as between ITW and Adnunat should be found given the existence of the enurement clause and ITW's conduct in accepting both the benefit and burden of the Settlement Deed. In my view Tolhurst [1903] AC 414 provides little assistance in resolving the dispute in this case. The issue in Tolhurst [1903] AC 414 was whether the rights created by the chalk agreement were capable of assignment. Once it was decided that they were, it followed as a relatively straightforward matter that the party to whom the rights had been assigned was capable of enforcing them against the original debtor. That is not this case. Adnunat's case is not based on an assignment of the Settlement Deed. Adnunat seeks to enforce the terms of the Deed against a third party, ITW. Its ability to do so depends on there being a finding that a new bilateral contract exists between it and ITW, on the same or substantially the same terms as the Settlement Deed. Rather than it being irrelevant, it is a critical difference here that there was no assignment of the relevant contractual benefit and ITW (unlike Mr Tolhurst) had nothing to do with the original negotiation and formation of the Settlement Deed. Here, the consent of the party against whom the alleged agreement is to be enforced does not turn on the construction of that agreement (or, more particularly, its assignability), as was the case in Tolhurst [1903] AC 414. Instead, this case requires a detailed factual analysis of the parties' conduct, and correspondence, in order to determine whether ITW (a stranger to the original contract) truly made its consent manifest to Adnunat (as the original contracting party). It is true that in Tolhurst [1903] AC 414 the House of Lords considered it unnecessary that the assignor (Imperial) be made a party to Associated's action and held in effect that the assignee itself was obliged to pay for the chalk, if it were to have the benefit of the chalk agreement. The question of necessary parties and the appropriate relief to be given to the assignee in Tolhurst [1903] AC 414 were dictated strongly by the particular circumstances. Imperial was in liquidation, no longer had a board of directors and was deemed by the Companies Act 1862 (UK) to have been dissolved. In the absence of the assignor in all but name, the House of Lords considered it appropriate to grant a declaration that the assignee was entitled to the benefit of the agreement, but only so long as it was willing to pay for the chalk, in place of the assignor. In so doing, their Lordships recognised that in ordinary circumstances an assignor would need to be made a party by an assignee seeking to enforce an agreement: see [1903] AC 414 at 420 (Lord Macnaghten). All of this seems to me to provide little assistance to Adnunat in this case. The House of Lords in imposing the payment condition on Associated was doing no more than fashioning relief, in exercise of its equitable jurisdiction, to ensure an equitable result in the circumstances of that case. Given their Lordship's conclusion as to the assignability of the rights under the agreement, it followed that it would make no difference to Tolhurst if Imperial's obligation to pay for the chalk was performed, albeit vicariously, by Associated. This was not to determine that a new contract existed between Tolhurst and Associated but rather that the original agreement subsisted and was capable of enforcement by Associated as assignee. Having dealt with what I consider are the main difficulties with Adnunat's motion, I turn to some of the key factual matters it relied on. First, it will be recalled that the letter dated 1 March 2005 giving notice of the transfer of business was addressed to Adnunat (as the contracting entity) and stated that the sender was looking forward to "continuing our relationship with you". It thus referred to an existing "relationship" and expressed a desire that that relationship would continue. The letter also stated that the change "reflects only a change in the legal ownership of the Reid business". That statement appears to have been made to explain that the new owner would operate the Reid business separately from its other business units. The letter makes no reference to the Settlement Deed or, significantly, to any possible novation of the Deed (a matter which, it might reasonably be inferred, was in the mind of the new owner, given the terms of the Business Agreement). Once all relevant evidence is in, one might conclude that the letter, viewed from the perspective of the reasonable observer and taking into account all of ITW's conduct after 1 March, demonstrates an intention to take on and perform the terms of the Settlement Deed. However at this stage I do not accept that that is the only reasonable conclusion to reach. It seems to me reasonably arguable that the import of the letter, which is apparently in a standard form, amounts to no more than putting each previous supplier to Reid on notice that Reid's business had been sold and would now be operated by a new entity. A reasonable recipient of the letter might in that context wonder what effect that was to have on any existing contracts, rather than assume that the new owner would as a matter of course observe existing contracts. In my opinion it is not so clear from the letter and the other relevant conduct that these arguments have no reasonable prospects of success. Second, it is true that ITW continued to order 9 tonne anchors from Adnunat over a period spanning four months from March to June 2005. However as I have said earlier, the parties' intentions as revealed by that conduct alone are not unequivocal. Taking into account the matters I have referred to at [41]-[43], it is reasonably arguable that the parties were simply content as a practical commercial matter to continue a pre-existing anchor purchase and supply relationship, without having directed their attention to whether ITW would be bound by the Settlement Deed. It is of some relevance in that regard that this is not a case in which the relevant conduct took place over a long period of time (cf Pacific Brands [2005] FCA 288 and Vroon [1994] 2 VR 32) but instead came to an apparently abrupt end after only four months. It may be that ITW considered it commercially expedient to continue sourcing anchors from Adnunat rather than to challenge the Patent and manufacture the 9 tonne anchors it required itself. While that is speculation at this stage, it highlights the difficulty in finding that ITW has no reasonable prospects. Adnunat relied in particular on the email from Mr Pleysiar (see [10]) and contended that it was consistent only with a demand for supply pursuant to the Settlement Deed. However the email makes no reference to the Settlement Deed and the insistence on supply might be said to have arisen just as much from the commercial exigencies ITW faced at the time, compounded by Adnunat's apparent inability to meet existing purchase orders. Third, the fact that ITW paid Adnunat the final royalty amount owing by Reid does suggest an acceptance by ITW of an obligation to do so. The email dated 1 April 2005 reveals that Adnunat had sought sales information from Reid previously in January 2005 and that ITW would make the royalty payment previously due. It is not entirely clear, but it appears from the invoices adduced by Adnunat that the payment was made in about May 2005: see exhibit MGO-29 to Mr Olivetti's affidavit. However even assuming the payment was made, evidence of how and why ITW came to make the payment is not at this stage before the Court and ITW in my opinion has reasonable prospects of rebutting the inference that it made the payment because the parties considered it was bound. All in all, I think the applicants' claim for novation is hopeless. In my view the fact that ITW made the royalty payment might be said at this stage to be just as consistent with a recognition that it would have to pay any old debts of the Reid business before it could expect to secure the further supply of anchors from Adnunat. Alternatively it is open to infer that ITW was doing no more than complying with cl 6.3 of the Business Agreement, ensuring that Reid was not in breach of its pre-existing contractual obligations. Either way, those contentions do not in my view lack reasonable prospects of succeeding. Fourth, Adnunat's reliance on the fact that invoices from Olivetti Concrete included ITW's ABN need to be approached with some caution. ITW's ABN also appears on invoices dated earlier than 1 March 2005, the date on which, on Adnunat's case, it was first notified of the change of ownership. It is not clear whether this is easily explicable, because for example Adnunat's electronic accounting system has been updated subsequently (causing newly generated copies of old invoices to record the updated information). It raises an important factual question however as to precisely when and in what circumstances Adnunat was first informed of the change of ownership. Finally, from the pleadings and Mr Olivetti's affidavit, Adnunat appears to rely on the fact that a number of individuals were employed by or associated with both Reid and ITW. In particular: Adnunat however did not advance this matter in its submissions. I am not in a position to draw inferences either way in relation to their knowledge or intentions in connection with the parties' relationship. In contract by conduct cases, the key individuals involved will usually provide probative and helpful evidence, both in chief and in cross-examination. In this case, I am of the view that such evidence will be necessary. In so concluding, I have also taken into account the matters raised by ITW at [35]-[36] above, which will require some examination at trial. Accordingly, Adnunat's motion should be dismissed with costs. In the result, it is not necessary that I deal with the additional submission made by ITW that the No Challenge Term is in any event invalid as an unlawful restraint of trade. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sundberg.

formation approach where no discernable offer and acceptance where party to existing contract with supplier sold entire business to a related third party whether contract between third party and supplier to be inferred from conduct. summary judgment whether no reasonable prospect of successfully denying the existence of alleged contract federal court of australia act 1976 (cth) s 31a. contracts practice and procedure

The Tribunal had affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs, made on 19 February 2004, to refuse a protection visa to the appellant. 2 The appellant is a citizen of Nepal. Before the Tribunal the appellant claimed to have a well-founded fear of persecution because of his membership with the United Marxist Leninist Communist Party of Nepal. He claimed to fear persecution by Maoists, who he claimed had detained him, made continuous demands for money and made threats against him and his family. The appellant stated that he had tried relocating from Parbat to Kathmandu but still could not escape the Maoists, and he claimed that should he migrate to India, the Maoists would pursue him there as well. The appellant's evidence in support of his claims included submissions received by the Tribunal on 19 August 2004. 3 The Tribunal accepted that the appellant was a member of the claimed political party and that he was harassed in Parbat, but did not accept that there was continued harassment of the appellant by Maoists after he had moved to Kathmandu. The Tribunal found the appellant's claims regarding matters after his relocation to Kathmandu were 'far-fetched' and did not accept that the profile of the appellant, which was local to Parbat, was such that would lead Maoists to pursue him to Kathmandu in order to harm him. In any event, the Tribunal concluded that the appellant would have been able to enlist the assistance of the authorities in Kathmandu in addressing any Maoist threats, if any were to occur. Furthermore, the Tribunal did not accept that Maoists would pursue the appellant to India, and further that should he feel unsafe in Kathmandu, he could relocate to India, since he had a right to live and work there. 4 On 14 September 2004, that being after the Tribunal's decision and before the handing down thereof, the Tribunal received a letter from the appellant asserting his dissatisfaction as to the Tribunal's addressing of the issue of relocation, and moreover that the appellant would be in danger if he returned to live in India, and that a one hour interview with the Tribunal was not sufficient enough time to put his claim. However the Tribunal did not re-convene a hearing with the appellant. 5 On 27 October 2004 the appellant sought judicial review of the Tribunal's decision in the Federal Magistrates Court of Australia. He filed an amended application on 31 January 2005 in which he asserted that the Tribunal failed to consider all aspects of the appellant's claims, that the Tribunal failed to consider the documents provided by the appellant, that the Tribunal further failed to look at information available to it on the Internet, and that the Tribunal also failed to address reasons put forward by the appellant as to why he could not relocate to India. He further asserted that the Tribunal's decision was biased, and that the Tribunal breached s 430 of the Migration Act 1958 (Cth) ('the Migration Act '). He claimed that the Tribunal did not get in touch with the Australia Embassy in Nepal to investigate the credibility of the police document provided by the appellant, despite assurances that it would do so, and moreover that the Tribunal breached the rules of natural justice by not providing the appellant with an opportunity to comment on adverse materials. The appellant attached a bundle of documents to his amended application, including a document purporting to be a transcript of the Tribunal hearing. 6 The Minister submitted that there were two substantial and separate reasons given by the Tribunal for rejecting the appellant's claims, being first the finding that the harassment to the appellant did not continue after his move to Kathmandu, and secondly that the finding that the appellant had the right to go and live in India. However he claimed that the Minister relied only on the first finding, since the second line of reasoning was no longer available in light of the decision of the High Court in NAGV and NAGW of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 213 ALR 668. The Federal Magistrate found further that there was nothing to show the findings relating only to Nepal were dependent on, or affected by, the findings in relation to India and observed that in order for the appellant to succeed, there must be established some legal error in the first line of the Tribunal's reasoning. His Honour observed authority where relief was not granted, irrespective of a breach of s 424A of the Migration Act , because of the existence of substantial and separate bases for the decision that were not affected by any such breach. 7 The Federal Magistrate examined the documents which the appellant asserted the Tribunal had failed to consider but found that the ground thereby invoked did not rise above anything more than disagreement with the Tribunal's finding as to the appellant's 'profile' and thus constituted only impermissible merits review. The Federal Magistrate observed that the document submitted by the appellant purporting to be the transcript of the Tribunal hearing was not admissible, but even if it was, his Honour further observed that the document did not assist the appellant's case that the Tribunal failed to address an important aspect of his claims. 8 The Federal Magistrate found that there was no obligation on the Tribunal to set a line by line refutation of evidence which it did not accept, and that the Tribunal did not express a conclusion that any of the documents submitted by the appellant were not genuine. The appellant's claims in relation to the situation in Parbat, supported by the documents, were not rejected by the Tribunal. The documents relating to the violence involving Nepalese Maoists were consistent with the Tribunal's findings. The Federal Magistrate accepted the Minister's submissions that the Tribunal had rejected the appellant's claims of harassment in Kathmandu as 'far-fetched', and that no amount of corroborating evidence by way of the relevant documents would have caused the Tribunal to have come to a different conclusion. The Federal Magistrate was of the further view that on a fair reading of the Tribunal decision, the Tribunal did more than just list the documents, and then make no reference to them. Although the documents were not specifically referred to in the Tribunal's 'Findings and Reasons', when read contextually from what was discussed at the hearing, the same showed that the Tribunal did consider the appellant's claims and documents. 9 In relation to the materials submitted by the appellant to the Federal Magistrate in order to show that the appellant could not safely relocate to India, so much constituted no more than a request for impermissible merits review. The appellant did not indicate to the Tribunal that he wished to submit additional documentary evidence when he requested a further 'interview' post-hearing. 10 The Federal Magistrate found the Tribunal did not give any undertaking to verify with the Australian Embassy in Nepal regarding the authenticity of the police document submitted by the appellant, and that the Tribunal was not under any duty to pursue its own investigation. 11 The Federal Magistrate further found no bias could be imputed to the Tribunal and that the appellant's transcript of the Tribunal proceedings did not support any contention of bias, and further that the Tribunal's alleged failure to deal with each matter raised by the appellant was not sufficient to support his contention of bias. 12 The Federal Magistrate additionally found that the grounds for review relating to s 430 of the Migration Act related to the Tribunal's alleged failure to make findings on the appellant's documents, and observed that his Honour had dealt with this earlier. Further, his Honour observed that s 430(1)(c) of the Act did not impose a statutory duty to make findings on questions of fact that are not material. 13 The Federal Magistrate considered that the independent information before the Tribunal, on which it relied, clearly fell within the exception contained in s 424A(3)(a) of the Migration Act , nor was the Tribunal's critical thinking required to be put to the appellant, that not being a matter where the Tribunal relied on inconsistencies between the appellant's different version of events, and moreover that the documents provided by the appellant were exempted by s 424A(3)(b) of the Act. 14 The Federal Magistrate also further observed that the appellant was unrepresented, and that he had considered all the material placed before his Honour, including the letter from the appellant to the Tribunal after the Tribunal hearing. His Honour found that the matters raised in that letter were discussed at the hearing and the appellant had not given reasons as to why one hour was not a sufficient time for that hearing. The Federal Magistrate emphasised moreover that the Tribunal had made a very clear as well as discrete finding that the appellant could live safely in Kathmandu. 15 In the result, his Honour found no jurisdictional error in the Tribunal decision regarding that line of reasoning, and otherwise, and dismissed the application for review of the Tribunal decision. 16 On 28 April 2006 the appellant filed a notice of appeal in this Court to the effect that there had been a denial by the Federal Magistrate of natural justice constituting jurisdictional error, and sought certiorari 'against the decisions' of the Federal Magistrate and mandamus for in effect a rehearing by the Tribunal. That ground of appeal related purportedly to his claim that the Federal Magistrate had wrongly applied the law to the facts in relation to the seriousness of harm that constituted persecution, and had disregarded the current political situation in Nepal. Furthermore, the appellant alleged by the notice of appeal that the Tribunal did not provide the appellant with an opportunity to respond to the material the Tribunal had available to it, including the appellant's protection visa application. In both instances, those purported grounds of appeal were essentially unspecific. 17 At the hearing of the appeal the appellant provided no written submissions pursuant to the Court's directions made in that regard, either in chief or in response to the Minister's written submissions. 18 In my opinion, neither the approach of the Federal Magistrate nor his Honour's conclusions were shown to be vitiated by any denial of natural justice or, more generally, jurisdictional error. No basis for relief by way of orders in the nature of certiorari or mandamus was made out. The only course open to the Court was dismissal of the appeal with costs. 19 The Minister is of course entitled to an order for the costs of the appeal. Counsel for the respondent nominated a figure of $3,100.00. Given the relatively straightforward nature of the grounds of appeal, as exemplified by the extent of the Minister's written and oral submissions, I am uncertain as to the quantification of this amount and in the circumstances I think that I should refrain from quantifying a figure for the Minister's costs. That will therefore be a matter for assessment by the appropriate Registry officer.

no point of principle migration

These scratch cards were aimed at obtaining subscriptions to the Respondent's "Moby Planet" mobile phone content services. The Applicant, the Australian Competition and Consumer Commission, commenced these proceedings in May of this year. It alleges that, by causing the scratch cards to be published, the Respondent has contravened s 52(1) , s 53(e) and s 53(g) of the Trade Practices Act 1974 ( the Act ). The Applicant claims declaratory and injunctive relief together with orders requiring the Respondent to publish corrective advertising in a number of forms. The Respondent opposed the grant of any relief, irrespective of whether or not the Respondent is found to have contravened the relevant provisions of the Act. It was common ground at the hearing that the precise form of any relief that might be granted should be the subject of further argument following publication of Reasons for Judgment. I propose to indicate my views as to the appropriate form of relief that should be granted in general terms which will provide context for any further argument that might occur. The Respondent is a provider of premium mobile phone content which includes ringtones, mobile alerts, games and jokes. This content is referred to in the Respondent's promotional material as "Moby Planet mobile content". The Respondent supplies this content to mobile phone users for a fee pursuant to subscription agreements between it and mobile phone users. Pursuant to arrangements between the Respondent and its subscribers' mobile phone service providers (eg. Telstra, Optus, Vodafone), the costs of the subscription are included in the bill from the service provider to the mobile phone user which is then collected by the mobile service provider and ultimately passed on to the Respondent. When a mobile phone user subscribes to the Moby Planet service, he or she incurs a $10.00 fee which entitles the user to their first six days of Moby Planet mobile content. Another $10.00 fee is incurred every six days until such time as the user takes steps to terminate the subscription. This should occur once the user sends an SMS message consisting of the word "STOP" to a particular telephone number. There is evidence which suggests that some users had difficulty in terminating their subscriptions to the Moby Planet service. There is no claim made by the Applicant based upon that matter and I shall say nothing more about that. In January of this year the Respondent caused a large number of scratch cards to be included as inserts in a wide range of magazines and newspapers which were then circulated throughout Australia. These publications included metropolitan newspapers, national magazines and various regional publications. The list of publications is extensive and I will not reproduce it in these Reasons for Judgment. It includes the Daily Telegraph, the Sun Herald, the West Australian, New Idea, Woman's Day, TV Week, Reader's Digest and Ralph. The distribution of the scratch cards began in January 2009 and continued through to October 2009. There was an application for interlocutory relief brought by the Applicant in June of this year which was heard by Jacobson J. His Honour granted some interlocutory relief and took steps to ensure the proceedings were listed for an early final hearing. The first, referred to in evidence as the "yellow" scratch card, was distributed in the period January to March 2009. A colour reproduction of an example of the yellow scratch card appears in Appendix "A" to these Reasons for Judgment. As is apparent from that reproduction, the front of the scratch card is brightly coloured while the back is in black and white. In the bottom left-hand corner of the front of the scratch card is a rectangular panel of grey latex which may be scratched away to reveal what lies beneath it. A colour representation of the same scratch card with the latex panel removed appears in Appendix "B" to these Reasons for Judgment. The second scratch card, referred to in the evidence as the "red" scratch card, was distributed in the period April to October 2009. A colour reproduction of an example of the red scratch card appears in Appendix "C" to these Reasons for Judgment. A colour representation of a red scratch card with the latex panel removed appears in Appendix "D" to these Reasons for Judgment. The colour reproductions of the scratch cards appended to these Reasons for Judgment are not the same size as the actual cards. The approximate dimensions of the cards were 153mm x 175mm in the case of the yellow card and 150mm x 153mm in the case of the red one. There are other differences between the yellow and red scratch cards though some of these are not material for present purposes. I will refer to the material differences later in these Reasons for Judgment. Near the top of each scratch card the words "Subscribe to Moby Planet for your chance to" appear in small print followed by, immediately beneath them and in large block print, the words "WIN THIS BRAND NEW MERCEDES SLK". Below this statement is a picture of the Mercedes SLK. In the case of the red scratch card, the latex panel appears toward the centre of the front of the card. It incorporates three boxes containing question marks. Adjacent to the boxes is the statement: "MATCH 3 TO WIN" and immediately below it, "reveal 3 identical symbols under the panel and you're a guaranteed WINNER!". When the latex panel is scratched away the three matching symbols appear together with a prize code and an instruction to SMS the prize code to 19948889. See back for Terms and Conditions. In the case of the yellow scratch card, the front of the card is arranged somewhat differently. The latex panel appears near the bottom left hand corner beneath the names and pictures of the various prizes. See back for Terms and Conditions. The reverse side of the yellow and red cards are in substantially the same form. The numbers to which winners are directed to SMS their prize code are different but nothing turns on that. SMS with your mobile phone (standard carrier chargers apply) the prize code under the panel to 191213 to subscribe to MobyPlanet mobile content service. Of these, about 5 million were yellow cards and about 5 million were red cards. It is common ground that a substantial number of people were led to subscribe to the Respondent's Moby Planet service through the distribution of the scratch cards. The evidence as to the number of people who subscribed was given by Lesley Hynes, the Marketing Manager for the Respondent. Ms Hynes was the only witness called by the Respondent and she was not cross-examined. According to Ms Hynes' first affidavit, by 14 May 2009 some 108,110 consumers had subscribed which she said was equivalent to 1.125% of the 8,600,343 scratch cards distributed up to that time. She went on to depose in the same affidavit that approximately 75% to 80% of consumers "... opt out of the Moby Planet services immediately after sending an SMS to claim their prize and/or during their initial 6 day subscription period. " In a later affidavit, Ms Hynes deposed to another 1,399,657 cards having been distributed since she made her first affidavit, resulting in a total of 114,418 subscriptions overall. Of that number, there were 3,561 subscribers who had not opted out of the service, as at 15 September 2009. She calculated the overall rate at which consumers took up subscriptions as a percentage of the total number of cards distributed at 1.14%. She again estimated the percentage of consumers opting out during their initial subscription period at approximately 75% to 80%. I accept this evidence of Ms Hynes. There was no evidence to indicate whether a success rate of about 1.1% of cards distributed would be considered high or low by people who were responsible for organising this promotion or another like it. I would infer that there are many people who are unlikely to have any interest in promotions of this kind and who do not bother themselves with inserts of this kind. On the other hand, I would not be prepared to infer that there were many people who, having read the scratch cards, made a considered decision not to participate in the competition. According to the Respondent's evidence, none of the people who claimed a prize won either the motor vehicle or any of the electronic appliances. It was said that one person won $1,000 cash, but this was the only occasion upon which any person won what the Respondent described as a "major" prize. All other people who claimed a prize "won" what I shall refer to as a holiday voucher. As is apparent from the figures appearing in para [23] above, the probability of any person winning any other type of prize was extremely small. Conversely, there was an extremely high probability that the "winners" in this competition would receive nothing more than a holiday voucher. The transmission of that SMS triggered a series of automated responses. The evidence did not suggest that consumers were given any opportunity to opt-out prior to receiving the two SMS containing Moby Planet mobile content. I find that the reverse was true; it was not possible for a consumer who took the first step of sending the SMS consisting of the prize code to avoid being charged for the first two SMS containing Moby Planet mobile content at a total cost of $10.00. I approach this case having regard to the following principles. A corporation may be found to have contravened s 52 even though it lacked any intention to mislead or deceive: Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd [1978] HCA 11 ; (1978) 140 CLR 216 at 228 per Stephen J. But if it is established that the corporation did intend to mislead, a Court may be more likely to find that the conduct complained of was misleading: Campomar Sociedad Limitada & Anor v Nike International Limited & Anor [2000] HCA 12 ; (2000) 202 CLR 45 at 63. Conduct may be misleading or deceptive if it induces error but it is not sufficient merely to show that it may have led to confusion or caused people to wonder: Parkdale Custom Built Furniture Proprietary Limited v Puxu Proprietary Limited [1982] HCA 44 ; (1982) 149 CLR 191 at 198 per Gibbs CJ. In order to establish that conduct is misleading or likely to mislead it is usually necessary to show that it conveys, in all the circumstances of the case, a misrepresentation: cf. Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ; Henjo Investments Pty Ltd v Collins Marrickville Pty Ltd (No. 1) [1988] FCA 40 ; (1988) 39 FCR 546 at 555 per Lockhart J. Evidence that some people may have been misled is not essential but it is admissible and may be persuasive if given: Taco Co of Australia Inc v Taco Bell Pty Ltd [1982] FCA 136 ; (1982) 42 ALR 177 at 202 per Deane and Fitzgerald JJ. In the present case the representations complained of are alleged to have been made to the general public or a broad cross-section thereof. In Campomar Sociedad Limitada & Anor v Nike International Limited & Anor [2000] HCA 12 ; (2000) 202 CLR 45 , the High Court stated at 84-85: It is in these cases of representations to the public, of which the first appeal is one, that there enter the "ordinary" [the phrase "ordinary purchaser" was used by Mason J in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210] or "reasonable" [the term used by Gibbs CJ in Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199] members of the class of prospective purchasers. Although a class of consumers may be expected to include a wide range of persons, in isolating the "ordinary" or "reasonable" members of that class, there is an objective attribution of certain characteristics. Thus, in Puxu [(1982) [1982] HCA 44 ; 149 CLR 191 at 199], Gibbs CJ determined that the legislation did not impose burdens which operated for the benefit of persons "who fail[ed] to take reasonable care of their own interests". In the same case, Mason J concluded that, whilst it was unlikely that an ordinary purchaser would notice the very slight differences in the appearance of the two items of furniture in question, nevertheless such a prospective purchaser reasonably could be expected to attempt to ascertain the brand name of the particular type of furniture on offer [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 210-211]. Where the persons in question are not identified individuals to whom a particular misrepresentation has been made or from whom a relevant fact, circumstance or proposal was withheld, but are members of a class to which the conduct in question was directed in a general sense, it is necessary to isolate by some criterion a representative member of that class. The inquiry thus is to be made with respect to this hypothetical individual why the misconception complained has arisen or is likely to arise if no injunctive relief be granted. In formulating this inquiry, the courts have had regard to what appears to be the outer limits of the purpose and scope of the statutory norm of conduct fixed by s 52 [ cf Environment Agency v Empress Car Co (Abertillery) Ltd [1998] UKHL 5 ; [1999] 2 AC 22 at 30-31]. Thus, in Puxu , Gibbs CJ observed that conduct not intended to mislead or deceive and which was engaged in "honestly and reasonably" might nevertheless contravene s 52 [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 197]. Having regard to these "heavy burdens" which the statute created, his Honour concluded that, where the effect of conduct on a class of persons, such as consumers, was in issue, the section must be "regarded as contemplating the effect of the conduct on reasonable members of the class" [ Puxu [1982] HCA 44 ; (1982) 149 CLR 191 at 199]. There are a number of matters that emerge from the High Court's statement of principle in Campomar that will guide a Court in determining whether there has been a contravention of s 52 in a situation where the representations complained of have been made to the general public or a section thereof. First, it is necessary to identify the relevant class of people to whom the scratch cards were distributed. It is clear that the relevant class was very wide comprising readers of a broad range of newspapers and magazines with widespread appeal and circulation. It would include people who had not previously received premium mobile phone content and who were unfamiliar with the nature of such services, the manner in which they are activated or the prices charged for them. Secondly, it is necessary to identify the members of that class with a view to postulating a hypothetical individual to whom the attributes of the class can be attributed. That person will be an "ordinary and reasonable" member of that class who takes reasonable care of his or her own interests. But that is not to say that he or she will always be alert to the existence of fine print that might qualify in important ways more prominent statements which capture their attention to begin with. Thirdly, it is necessary to inquire why, in the case of such a hypothetical individual, misconception has arisen in the past, or is likely to rise in the future, with a view to determining whether such misconception is correctly seen as resulting from the Respondent's conduct. The misconception should not be seen as resulting from the Respondent's conduct where it is the product of some extreme or fanciful assumption made by the individual concerned that would not be attributed to ordinary or reasonable members of the relevant class. Leaving aside the likely effect of the scratch cards upon the hypothetical individual, the areas of dispute were relatively confined. There were two areas in which there was disagreement as to the effect of the evidence. First, there was a difference between the parties which is reflected in the evidence as to what was the value of one of the seven different prizes identified on the scratch cards. This particular prize, which is what I have referred to as the holiday voucher, was said by Mr White SC, who appeared with Ms Higgins for the Applicant, to have little or no value and, in particular, to be worth substantially less than the upfront cost of subscribing to the Respondent's Moby Planet service. Secondly, there was a debate as to the weight that should be given to the documentary evidence relied upon by the Applicant as evidence of actual deception or confusion. Mr Webb SC, who appeared with Mr Bevan for the Respondent, submitted that the evidence in question should be given little or no weight. I will return to both these issues later in these Reasons for Judgment. DID THE RESPONDENT CONTRAVENE SECTION 52 OF THE ACT? This in turn depends upon whether the scratch cards gave rise to one or more representations and whether, if they did so, any such representation was misleading or deceptive or likely to mislead or deceive. The scratch cards invited readers to scratch away the latex panel so as to disclose three symbols beneath it. Having regard to the various statements on the cards referred to by me in para [13] --- [16] above, I think the clear message conveyed by the cards was that any person who scratched away the latex panel of the card would become a player in a genuine game of luck or chance, the outcome of which would determine his or her entitlement to receive a listed prize. A most curious feature of this competition was that there were three matching symbols beneath the latex panel on every scratch card, though there is no suggestion that this would have been known to any of the players. There was, therefore, no luck or chance involved in matching the three symbols. Everyone who played was bound to win a prize. This gives rise to the Applicant's first submission. The Applicant says that consumers were misled into believing that there was a genuine contest involved in trying for a prize when, in fact, everyone who scratched away the latex panel found, inevitably, that there were three matching symbols entitling them to a prize. I think that the scratch cards were, in this particular respect, misleading and deceptive and likely to mislead and deceive. This has broader significance in two respects. First, I think it likely that many people who discovered the three matching symbols would have been genuinely surprised and excited by the prospect that they had actually won a prize. From that moment they would have quite reasonably understood that all that remained for them to do was ascertain which particular prize they had won. I think the sense of anticipation created helps explain why a significant number of people are likely to have sent an SMS message containing their prize codes to the designated numbers without understanding that this resulted in them becoming subscribers to the Moby Planet service at a cost of $10.00 for six days. Secondly, I think the impression conveyed by the scratch cards was that the prizes people had won were valuable. How valuable the different prizes were to particular individuals it is impossible to say except in the case of the cash prizes. For example, a digital camera might be worth less to someone who already owned one than to someone who was looking to purchase one. But I think most players would have understood that they had won a prize that was at least worth collecting. The Applicant submitted that a "holiday" voucher did not entitle the "winner" to a holiday at all and, further, that a "holiday" voucher was worth little, if anything, to most consumers. I accept the first part of this submission. It is desirable to look once again at the scratch cards to see precisely how this prize is described. On the front side of the scratch card the prize is identified as "HOLIDAYS" and immediately underneath that word the expression "Flexibreak vouchers" appears in small type. There is no reason to believe that the expression "Flexibreak vouchers" would mean anything to most readers of the scratch cards except, perhaps, when used in conjunction with the word "HOLIDAYS", as a reference to a particular brand of voucher entitling the holder to a holiday of some description. Moreover, I do not consider the rather cryptic reference to either minimum spend or the Flexibreaks website appearing in fine print on the reverse of the scratch cards would be likely to lead to any different conclusion, even if closely studied by the reader. Of course, holidays vary in many ways; by destination, duration, standard of accommodation, standard of service and in many other respects. In terms of value, a voucher entitling a person to a holiday at a destination that they have no interest in travelling to might well be regarded as worthless by that person but still remain capable of being properly described in a promotion of this kind as a valuable prize. But that is not what has occurred here. Precisely what use could be made of a holiday voucher is not at all clear from the evidence, which includes copies of a sample voucher with printed terms and conditions appearing on its reverse side, together with terms and conditions of use made available online at the website of a business involved in their sale and promotion. To the extent that the vouchers gave rise to any entitlement to accommodation at any of the participating hotels listed at that website, it is clear that, at best, the voucher would only entitle the bearer to "one free night" if he or she paid for the first night of accommodation. The vouchers did not entitle their holders to holidays of any description and the false representation conveyed by the scratch card to that effect was misleading and deceptive and likely to mislead or deceive. As to the second part of the Applicant's submission, it is necessary to bear in mind that the cost of claiming any prize was considerable in that a person was required, amongst other things, to take out a subscription to the Respondent's MobyPlanet service at a cost of $10.00 for six days of service. The question arises as to whether it is in any sense appropriate to describe that person as a winner if the value of the voucher is less than the cost that must be incurred to claim it. Each of the prizes referred to in the scratch cards is assigned a value in the block of small print appearing at the foot of the reverse side of the yellow cards. The most expensive of the prizes is the Mercedes motor vehicle valued at $102,055. The holiday vouchers have a value assigned to them of $1.00. No value is assigned to the holiday vouchers in the red card even though values are assigned to all other prizes. The evidence called by the Respondent indicated that the initial allocation of 5,000 vouchers was purchased by it at a cost of $1.00 per voucher and this most likely explains where the assigned value came from. Subsequent allocations of these vouchers appear to have been purchased by the Respondent at a cost of $1.50 per voucher. Either way, I would infer that the actual cost of these vouchers to the Respondent probably reflects their approximate value in the hands of most of the players. There was no evidence called to indicate the number of vouchers which were actually redeemed by the 29,005 or so people who received them. The Respondent sought to establish that the value of each voucher was in the region of $80 to $230 but I do not accept the evidence relied upon by the Respondent to that effect. There was no attempt in the evidence or submissions to explain how that range was arrived at. In light of the cost of the vouchers to the Respondent, the value assigned to them by the Respondent on the scratch cards and in light of my own consideration of the terms and conditions governing their use, I find that the vouchers were likely to have little, if any, value to most people. It follows that most people who claimed their prize were required to incur subscription and other costs in order to do so which substantially exceeded the value of the prize they had won. In Medical Benefits Funds of Australia Ltd & Anor v Cassidy & Anor [2003] FCAFC 289 ; (2003) 135 FCR 1 , Stone J (with whom Moore and Mansfield JJ agreed on this issue) rejected a submission by the Appellant in that case that various written disclosures appearing in billboard advertisements appropriately qualified more prominent statements appearing upon them which would otherwise convey a misleading representation. In that case Moore J held that an asterisk can be sufficient to draw the attention of a consumer to a qualification of a representation. That case concerned, inter alia, the packaging of bread which declared in large typeface "Now Twice the Fibre*". One could expect a consumer interested in the fibre content to seek out the qualification or explanation. Not only is the explanation within 2 cm of the words used on the package (albeit in much smaller type) but it is repeated elsewhere on the packaging. The qualifying material must be sufficiently prominent to prevent the primary statement being misleading and deceptive or likely to mislead or deceive; Australian Competition and Consumer Commission v Signature Security Group Pty Ltd (2003) 52 ATR 1 at [26]-[27]. I do not accept this submission. Having regard to their overall appearance, the scratch cards do not sufficiently bring home to the minds of ordinary and reasonable consumers that it is necessary for them to subscribe to the Moby Planet service to win a prize. Indeed, the statement to the effect that by matching three symbols the player is guaranteed to win a listed prize is literally inconsistent with the small print relied upon by the Respondent. The additional statements appearing in fine print at the foot of the front of the yellow scratch card and underneath the latex panel of the red one are also insufficient to convey to ordinary and reasonable consumers that it was necessary for them to subscribe to Moby Planet in order to collect a prize. These statements are neither clear nor prominent enough to convey to players that the prizes come at significant cost in the form of a subscription to the Moby Planet service. As to the back of the scratch cards, it is by no means clear why people who scratched away the latex panel to discover that they were "winners" of one of the listed prizes should even bother to look at the reverse side of the scratch card before sending the SMS consisting of their "prize code" to the Respondent. I consider many ordinary and reasonable people would be unlikely to do so. All the information necessary for them to send this SMS appears on the front of the scratch card. Many people would have been surprised and delighted to have won any of the prizes shown on the scratch cards which they would have attributed to good luck. Why would they then bother looking at the reverse side of the card before sending the SMS unless there was reason to believe there was some catch? In fact, there was a catch in that those people sending the SMS to claim their prizes were subscribing to the Moby Planet service and incurring the cost that entails. And while many people may have appreciated that sending the SMS involved taking on such a subscription, I consider that many others would have been oblivious to that fact. I think it likely that many people were caught out in this way. In arriving at these conclusions I have not overlooked Mr Webb's submission that people can read the scratch cards at their leisure, including the qualifying statements. I think the answer to this submission is found not only in the qualifying statements' lack of clarity and prominence, but also in the fact that everyone who played the game was encouraged to believe that by good luck they had won a valuable prize which was at the very least worth collecting. In the excitement of believing that they were a winner of a valuable prize I think it unlikely that a person would have proceeded to read the scratch card in the careful and leisurely manner suggested by the Respondent, at least not before he or she had first sent the SMS consisting of the prize code. The Respondent accepted that the front side of the yellow scratch card was, in this respect, incorrect and that the yellow scratch card should have referred to Apple iPods rather than 3G iPhones. The error was corrected in the red scratch cards. There was some evidence from Ms Hynes that this error was the result of a mistake on the Respondent's part. I accept that the description of this particular prize on the front side of the yellow scratch cards was the result of a mistake and was subsequently corrected by the Respondent. But even if this error was the product of an innocent mistake, it does not follow that the misdescription of this prize on the front side of the yellow scratch card did not give rise to a contravention of s 52 by the Respondent. I find that it did give rise to such a contravention. The fact that it was the result of an innocent mistake may be relevant to the question of relief and I will return to it when considering that question. It referred to the statement appearing in the box on the reverse side of the card which appears in parenthesis. It was common ground that the standard charge for sending an SMS was between about 18 cents and 25 cents. The Applicant submitted that the representation was misleading given the subscription costs of $10.00 also payable by consumers collecting prizes. There are differences between the yellow and red cards that are material to this particular complaint. The only disclosure of the Moby Planet subscription costs appearing on the reverse side of the yellow card is in the block of fine print at the bottom of the page. This is not called up by any asterisk. In the case of the front of the yellow card, the Moby Planet subscription costs are stated in two separate places. In the case of the red card there is a disclosure of the subscription costs in the same sentence in which the reference to standard carrier charges appears. I think this provides a complete answer to the Applicant's complaint based upon the reference to "standard carrier charges" in the case of the red card. It would not be reasonable for a consumer to focus on the words appearing in the first part of that sentence while ignoring the quite specific disclosure appearing in the remainder of it. In the case of the yellow card I consider the qualifying statements relied upon by the Respondent are neither clear nor prominent enough to correct what to my mind is a misleading representation as to the costs involved in subscribing to the Moby Planet service. The statement appearing in the box on the reverse side of the card conveys that the costs of subscribing to the Moby Planet service attracts standard carrier charges when in fact it attracts much higher charges. As I have already mentioned, the qualifying statement appearing in the fine print at the bottom is not called up by any asterisk. I accept the Applicant's submission recorded at para [67] above that there has been a contravention of both s 52 and s 53(e) of the Act in relation to the yellow card. I reject that submission in so far as it extents to the red card. It was submitted that the scratch card required people to subscribe to Moby Planet both to claim their prize and to receive Moby Planet mobile content. Consumers who did not have WAP enabled mobile phones could not receive all forms of Moby Planet content. They were instead supplied with SMS messages comprising jokes, trivia and other material said to be of inferior quality. It was submitted on behalf of the Applicant that some people whose mobile phone was not WAP enabled would have taken out a subscription not knowing that they would be unable to receive the full range of Moby Planet content and that they would instead receive something different and inferior to it. The Respondents answer to this is that the scratch cards convey no representation as to the nature or quality of the content that is to be made available to subscribers. Leaving aside one reference to "fantastic Moby Planet content" appearing in the block of fine print at the bottom of the reverse side of the cards, this seems to me to be correct. In my opinion the case based upon "the functionality misrepresentation" is not made out. The rules of the competition appear to have excluded consumers who did not have SMS/WAP enabled mobile phones from participating. The reverse side of both cards contains a statement to the effect that the competition is only open to people who, amongst other things, "have a current Australian SMS/WAP enabled mobile telephone and service. " Yet consumers who did not have a WAP enabled phone (many of who would have been oblivious to this condition) and who sent the SMS consisting of the prize code were not told they were ineligible and were charged $10.00 in return for a subscription. It may be that by accepting subscriptions from people with mobile phones that were not WAP enabled, the Respondent impliedly represented, contrary to the fact, that they were legally entitled to participate. Ignoring the rules of its own competition may not have mattered to the Respondent in circumstances where these people won a holiday voucher, but if one of them had been lucky enough to win the Mercedes SLK the Respondent's attitude may have been quite different. There is a difficulty in that I do not consider that a case along the lines of that described in para [74] and [75] has been pleaded. Accordingly, I do not propose to say anything more about it. Mr Webb submitted that the evidence should be given no weight. I agree with his submission that much of the material relied upon by the Applicant does not prove actual deception or confusion. Most of the material consisted of records of communications from consumers who appeared to believe that the Respondent's conduct was unscrupulous but which did not go much beyond that. I give evidence of that kind no weight. However, included in the material relied upon by the Applicant are records of a number of complaints which are evidence of actual deception. In particular, this evidence reveals a number of examples of people who looked at the front of the card only before scratching away the latex panel and sending an SMS consisting of the prize code to the Respondent. It is quite clear from that evidence that some people did this without appreciating that by sending such an SMS they were subscribing to the Moby Planet service and incurring the costs which that entails. I should add that I would have arrived at the same conclusions in relation to the Respondent's contravention of the Act in the absence of this evidence. But it does tend to underscore the correctness of the conclusion reached by me in para [63] above. I consider that there is a significant public interest in these proceedings and that it is appropriate for the Court to make declarations which identify the particular contraventions of the Act of which the Respondent has been found guilty. There is ample authority to justify the making of a declaration in a case such as this: Australian Competition and Consumer Commission v Chen [2003] FCA 897 ; (2003) 132 FCR 309 at [35] - [36] per Sackville J. The declarations should identify with some precision the facts that have led the Court to the conclusion that a particular contravention has occurred. I would not make a declaration that did no more than declare that the Respondent had contravened a provision of the Act. On the question of injunctive relief Mr Webb submitted that there was no evidence of any threatened repetition of the conduct alleged to have given rise to a contravention of the Act. However, I consider it appropriate to grant injunctive relief for a number of reasons. First, there is no suggestion that the Respondent ever proffered any form of undertaking not to engage in the relevant conduct whether on a "without admissions" basis or otherwise. I take this into account. Secondly, there was no evidence from any officer of the Respondent from which I could conclude that there was unlikely to be any repetition of the relevant conduct. Ms Hynes gave no such evidence and there was no evidence from any director of the Respondent on that issue. I take this into account. Thirdly, there is a public interest to be protected here. Even if I was of the view that there was only a small likelihood of the Respondent engaging in a repetition of the relevant conduct I would still grant injunctive relief. The harm that might be caused to members of the public in the event that there was any repetition of the relevant conduct is potentially quite serious. I think the declaratory and injunctive relief should extend to the misleading description of prizes referred to by me in para [53] and [66]. While I accepted evidence that the reference to the 3G iPhone on the front of the yellow card was the result of a mistake, I have taken into account the fact that the holiday prize was also described in misleading and deceptive terms. Mr Webb also submitted that the Respondent's activities are now regulated by an industry code of conduct the effect of which is to either eliminate or greatly reduce the risk that consumers will be induced to subscribe to the Moby Planet service without knowing they are doing so and without a proper understanding of the costs involved. At best this submission answers only one part of the case against the Respondent. Moreover, it appears to assume that it would be open to the Respondent to lead consumers down a particular path with a view to collecting a prize in the mistaken belief that there is little or no cost involved in doing so provided that they were disabused of that belief at some moment before the subscription costs are incurred. In these circumstances the Respondent's conduct would still involve a contravention of the Act albeit one less likely to result in any significant damage. Having taken the submission recorded at para [87] into account I remain of the view that injunctive relief should be granted. I should add that what I have said about the form of the declaration applies to the form of the injunction. It must identify with some precision the particular conduct in which the Respondent is restrained from engaging. That brings me to the issue of corrective advertising. The Applicant seeks orders under s 86C of the Act requiring the Respondent to publish, at the Respondent's expense, advertisements of two types. First, the Applicant says that the Respondent should be required to send a corrective advertisement via SMS to all current subscribers to the Moby Planet service who took up their initial subscription as a consequence of their participation in the competition. Secondly, the Applicant says that the Respondent should also be required to publish corrective advertisements in the newspapers and magazines in which the Respondent caused the scratch cards to be included in the first place. In deciding what relief, if any, should be granted under s 86C I am guided by the observations of the Full Court in Medical Benefits Funds of Australia Ltd & Anor v Cassidy & Anor [2003] FCAFC 289 ; (2003) 135 FCR 1. I refer in particular to the Reasons for Judgment of Stone J (with which Moore and Mansfield JJ agreed) at para [45]-[58] and the authorities referred to by her Honour in those paragraphs. As I have already found, as at 15 September 2009 a total of 114,418 people had subscribed to the Moby Planet service as a consequence of their participation in the competition. Only 3,561 people had continued with their subscriptions up to that date. The vast majority of people opted out soon after taking out their initial subscription but this did not enable them to avoid payment of the initial $10.00 subscription fee. I agree that it is appropriate that a corrective advertisement be sent by SMS to all current subscribers to the Moby Planet service who took up their initial subscription as a consequence of their participation in the competition. It was submitted for the Respondent that compliance with such an order would give rise to a contravention of the industry code of conduct previously referred to. I am not satisfied this is correct. I think the more significant question is what to do in relation to the large number of people who opted out soon after taking out their initial subscription. In my view many of these people may be entitled to either a refund or compensation from the Respondent on the ground that they were induced to take out their initial subscription by the Respondent's misleading and deceptive conduct. This would enable them to assess any rights they may have if they so choose. One way of bringing such findings to the attention of at least some of those people is by the publication of a corrective advertisement in various newspapers and magazines in which the scratch cards were inserted. Another possibility is for the Respondent to write to each person who claimed a prize (there were approximately 29,000 such people) advising them of the Court's findings. The latter possibility has not been addressed by either party and I raise it for their consideration. It seems to me that a combination of advertisements in newspapers and magazines and a letter of the kind I have mentioned may be a sensible and effective way of conveying an appropriate message to those people who were affected by the Respondent's conduct. I propose to give both parties the opportunity to make further submissions in relation to the appropriate form of orders. What I propose to do is order that within 7 days of today each party file and serve a written submission not exceeding 5 pages in length addressing that issue. Each party should append to its written submissions a minute of the orders it submits are appropriate having regard to these Reasons for Judgment. My present inclination is to order the Respondent to pay the Applicant's costs of this proceeding but that is an issue that may also be addressed in the written submissions. I certify that the preceding one-hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas.

trade promotion involving a scratch card competition promoting the respondent's mobile phone content service whether respondent engaged in misleading and deceptive conduct whether the respondent contravened s 52, s 53(e) or s 53(g) of the trade practices act 1974 (cth). trade practices

4 At a directions hearing held on 27 March 2007, I made certain directions by consent. Among these was Order 2, which required the respondent/contemnor to file any evidence in answer to the contempt motion by 15 May 2008. Order 2 of the orders of the Federal Court constituted by Sackville J made on 27 March 2008 be vacated. Paragraph 1 of the applicant's notice of motion (re contempt charge) dated 7 February 2008 ( Contempt Motion ) be heard and determined prior to the hearing and determination of paragraphs 2 and 3 of that motion. An order to this effect is consistent with the ' two-stage approach ' to contempt applications outlined in the authorities: see Forge v Australian Securities and Investments Commission [2004] NSWCA 448 ; (2004) 213 ALR 574 , at 664-666 [416]-[427], esp at [425], per McColl JA, with whom Handley and Santow JJA agreed. Moreover, the applicant did not object to such an order being made. Accordingly, as I indicated at the hearing, I propose to make an order in terms of para 4 of the motion. She also acknowledged that the respondent had erred in consenting to Order 2. She submitted, however, that the Court should set aside the order pursuant to Federal Court Rules (' FCR '), O 35 r 7(1), which confers power on the Court to set aside an order before it has been entered. (See, too, O 35 r 7(2)(c)). 8 Ms Baird accepted that the respondent, being a corporation, cannot invoke the privilege against self-incrimination: Environment Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477. Thus she accepted that Order 2 could not be set aside on the ground that an order requiring a respondent in criminal or civil penalty proceedings to file and serve evidence prior to the hearing could detract from the privilege against self-incrimination: cf Australian Competition and Consumer Commission v Amcor Printing Papers Group Ltd [1999] FCA 672 ; (1999) 163 ALR 465 ; Australian Competition and Consumer Commission v FFE Building Services Pty Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37. 9 Ms Baird contended, however, that I should exercise my discretion, whether pursuant to FCR, O 35 r 7(1) or O 10 r 1 (which allows the Court to give directions as to the filing of affidavits and the giving of evidence at the hearing), to allow the respondent to file its evidence after the applicant closes its case at the hearing. She relied on the principle that proceedings for contempt are criminal in nature and must be proved beyond reasonable doubt: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , at 534, per Brennan, Deane, Toohey and Gaudron JJ. According to Ms Baird, this principle supports the proposition that, as a matter of procedural fairness, a party against whom contempt charges are brought by reason of alleged contraventions of orders of the Court should have the opportunity of testing the evidence against it before having to decide whether or not to give evidence. The applicant may also be able to use the material in dealing with any " no case " submission that the respondent may seek to make at the close of the applicant's case. This potential for use of the respondent's affidavit evidence may limit the respondent's entitlement to make a no case submission, and to require the applicant to prove its case before electing whether to go into evidence. It has by virtue of that section such power and authority as is possessed by the High Court in respect of contempts of that court. The section therefore does not create an offence of contempt but is declaratory of an attribute of judicial power of the Commonwealth vested in federal courts by s 71 of the Constitution of the Commonwealth: Re Colina; Ex parte Torney [1999] HCA 57 ; (1999) 200 CLR 386 at 395 [16] per Gleeson CJ and Gummow J. Contempt of court is a distinctive offence attracting remedies which are sui generis: Morris v Crown Office [1970] 2 QB 114 at 129 referred to by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98 at 115. In particular, they thought (at 533) that there was considerable difficulty with the notion that in some cases the purpose or object of contempt proceedings is ' punitive ' and in others the purpose is ' coercive or remedial '. Their Honours pointed out that proceedings for breach of a court order have the effect of vindicating judicial authority, as well as a remedial or coercive effect. They certainly do not justify the allocation of different standards of proof for civil and criminal contempt. Rather, the illusory nature of those differences and the fact that the usual outcome of successful proceedings is punishment, no matter whether primarily for the vindication of judicial authority or primarily for the purpose of coercing obedience in the interest of the individual, make it clear as Deane J said in Hinch [ v Attorney-General (Vic) [1987] HCA 56 ; (1987) 164 CLR 15 , at 49], that all proceedings for contempt " must realistically be seen as criminal in nature "'. There are clear procedural differences, the most obvious being that criminal charges ordinarily involve trial by jury, whereas charges of contempt do not. 14 This aspect of the reasoning of the High Court was emphasised by Lander J in Australian Securities and Investments Commission v Reid [2006] FCA 699. In that case, his Honour held that the principle in Dietrich v The Queen [1991] HCA 57 ; (1992) 177 CLR 292 , which allows an indigent accused in serious criminal proceedings to apply for a stay if legal representation is not provided, does not apply to proceedings for contempt of court. As Lander J pointed out, the procedure in contempt proceedings in the Federal Court is governed by FCR , O 40. In particular, O 40 r 7 requires evidence in support of a charge to be given by affidavit unless the Court directs otherwise, while O 40 r 5(1) requires an allegation that contempt has been committed in connection with a proceeding in the Court to be made by motion on notice in the proceeding. Neither of these procedural requirements applies in criminal proceedings. 15 Ms Baird did not suggest that the respondent was entitled as of right to delay putting on its evidence (if any) until after the applicant's case in chief had closed. Her contention was that the Court, in the exercise of the discretion conferred by the FCR , should give the respondent the opportunity to test the evidence against it before having to decide whether or not to make a ' no-case ' submission and whether or not to put on evidence. 16 Ms Baird acknowledged that she had found no authority holding that it was inappropriate, in the circumstances of the present case, to direct that the respondent contemnor file in advance of the hearing any affidavits on which it intends to rely. However, she cited ACCC v Amcor , a decision of mine, in support of her contention. 17 In ACCC v Amcor , the issue was whether, in civil penalty proceedings brought by the ACCC, the Court should order the individual respondents to file and serve their statements of evidence prior to trial. I held that such orders were consistent with the rationale underlying the privilege available to the respondents to refuse to provide information that might expose them to a civil penalty. In my opinion, it would be unfair, in the circumstances of the present case, to require the individual respondents to file statements of evidence in advance of the trial. As I have said, the ACCC alleges that each of the individual respondents was knowingly involved in a contravention by one of the corporate respondents. Having regard to the fact that the ACCC seeks substantial pecuniary penalties against each of them, I think that they should have the opportunity not only of examining, but testing the evidence against them, before having to decide whether or not to give evidence. ... In my view, there is no convincing reason why the ACCC should have such a forensic advantage in a case in which, after all, it seeks to recover penalties against individual respondents for alleged contraventions of Commonwealth law. Each individual respondent is content to provide a written statement of evidence on the opening of his case, should he decide to give evidence. If any individual respondent does give evidence, the ACCC of course will be entitled to cross-examine him and, if appropriate, to tender evidence in reply. Since the statements of evidence to be relied on by Amcor and Visy are to be filed before the hearing and since they are to provide discovery (the privilege against exposure to a penalty not applying to a corporation ...), any disadvantage to the ACCC is very likely to be minimal. Should the statements of any of the individual respondents raise important matters that could not reasonably have been anticipated by the ACCC, an appropriate application could be made and would be dealt with on its merits. 19 In the present case, the respondent, unlike the individual respondents in ACCC v Amcor , is not entitled to invoke the privilege against self-incrimination in any of its manifestations. Like the corporate respondents in ACCC v Amcor , the respondent in the present case can be compelled to provide discovery of documents relevant to the issues in the proceedings. Nor has it been suggested by Ms Baird that any particular evidence that might be filed by the respondent is likely to put it at any disadvantage in making a no-case submission at the conclusion of the applicant's case. In ACCC v Amcor , counsel for the ACCC frankly conceded that the object of seeking orders requiring the individual respondents to file their affidavits in advance of the hearing was to make it easier for the ACCC to establish the case against them. No such concession has been sought or obtained in the present case. 21 In these circumstances, I do not think that the respondent has made out its contention that I should, on discretionary grounds, vacate Order 2 made on 27 March 2008. In my opinion, the order creates neither injustice to the respondent nor any significant risk of injustice to it. On the contrary, the order will assist in the orderly conduct of the proceedings and eliminate, or at least substantially reduce, the chances of the hearing being disrupted or delayed because of the need for the applicant to be given time to investigate or assess evidence it sees for the first time during the trial. 22 I therefore do not propose to vacate Order 2. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

contempt charge against a corporation direction that the corporation file its evidence in advance of the hearing whether direction should be set aside practice and procedure

Raphael FM ordered the appellant to pay the first respondent's costs in an amount of $3500. It was not fair. The member was allowed to be late, but I was not allowed to delay the hearing even because of my health reasons. I had to answer questions with serious headache and the feeling of very cold. When I answered questions, the member often stopped me before I finished, and then wrongly made conclusion. I required completing what I wanted to say, they did not allow me to continue to say. The Tribunal failed to notify me the reason or part of the reasons for affirming the decision. The Tribunal failed to consider my application according to s 424A of the Migration Act 1958 . Those grounds included contentions that the Tribunal did not apply the correct procedure in the consideration of the appellant's then application; that the application was not considered carefully; that the appellant was found to be unreliable in relation to factual contentions and that the Tribunal failed to consider the claim properly. An amended application was filed on 21 March 2006 and in that application, the appellant contended that the Tribunal failed to carry out its statutory duty, and in part, that was said to be due to a failure to provide the applicant with information as required by s 424A(1) of the Migration Act and a failure to explain the relevance of that information to the applicant, being information said to form the basis for the decision by the Tribunal. 3 The second ground raised by the amended application contended that the Tribunal refused the appellant's application "just because RRT regarded me as a uncredible person", which of course is a challenge to the finding of credit and the rejection of the appellant's factual contentions before the Tribunal. The third ground raised the question of the refusal by the Tribunal to engage in understanding the appellant's contentions as to his involvement with the pro-democracy movement in the People's Republic of China in 1989. The applicant contended that he was not given an opportunity to articulate the substance of those factual matters. In the proceedings this morning, the appellant recites those matters and again gives emphasis to them with the assistance of an interpreter. The appellant is not legally represented in the conduct of the appeal. 4 This morning the appellant has said that at the previous hearing before Raphael FM, the appellant's contentions in relation to the conduct of the proceedings before the Tribunal (and the difficulty he faced concerning the claims of a headache and a request for postponement of the hearing) was rejected on the footing that there was no evidence going to those matters and that decision was not fair to him. The appellant reasserts the contention that he was not allowed to express himself properly before the Tribunal and that was unfair to him. The appellant says that because he was not allowed to say what he wanted to say, no accurate assessment was made of his contentions. 5 The appellant contends that Raphael FM simply supported the Tribunal and not the appellant, and that a decision made under those circumstances is unfair. 6 The factual background to the appellant's circumstances and the contentions put by him before the Tribunal are essentially these. 7 The appellant is a citizen of the People's Republic of China ('PRC') and arrived in Australia on 1 May 2005. On 11 May 2005 the appellant lodged an application for a protection visa. That application was rejected by the delegate of the first respondent and ultimately a date was nominated for a hearing before the Tribunal on review. That hearing took place on 23 November 2005. 8 On 10 October 2005, the Tribunal wrote to the appellant advising the appellant that the hearing would take place on Wednesday, 23 November 2005 at 12.30pm at the nominated place (AB49). The appellant claimed before the Tribunal to hold a well-founded fear of persecution for a Convention reason should he return to the PRC based on his religious beliefs. The appellant claimed before the Tribunal to be an adherent of the spiritual cultivation movement Falun Gong which was banned in the PRC on 22 July 1999. The applicant claimed before the Tribunal that Falun Gong provides its adherence with 'several tens of basic exercises'. 9 However, when told by the Tribunal that that number seemed to be incorrect, the appellant contended that in different parts of the PRC the movement teaches a different number of exercises. The Tribunal put to the applicant that Falun Gong teaching is evidently universal. The Tribunal requested the applicant to perform what he regarded as the first of the Falun Gong exercises. However, the applicant could not do so and was unable to describe in any detail the principles underlying Falun Gong. The applicant said that he had only practised once since coming to Australia as he had been busy at work. The Tribunal found that the applicant provided no plausible reason for not practicing any of the exercises more than once. 10 The Tribunal noted that the applicant said that he would be arrested if he were to return to the PRC. However, the Tribunal noted that the applicant's passport presented at the hearing demonstrated that he had left the PRC and re-entered the PRC in 2004 after a period abroad in Thailand. The Tribunal noted that the applicant said that he was questioned when he last returned to the PRC, and then let go. The Tribunal considered this evidence in light of the applicant's educational and occupational background. He claimed to the Tribunal that he was unemployed in the PRC due to his political and religious problems, but later disclosed that he was a farmer. At AB76, the Tribunal made findings about the applicant's contentions in relation to his adherence to the principles of Falun Gong and in relation to his contentions concerning his political beliefs. An appreciation of all five and of their purpose is evidently essential. On the basis of his evidence at the hearing, the Tribunal does not accept that the applicant is, or ever was, or would mistakenly be taken for, a Falun Gong practitioner, either by the PRC authorities or by other Falun Gong practitioners or anyone else. His performance at the RRT hearing with regard to credibility was particularly poor. Even if he had supported the movement as claimed, much time has passed since 1989 during which the applicant has been able to obtain a passport and move freely. The applicant's return to the PRC in 2004 leaves the Tribunal concluding that he did not have subjective fear of persecution at that time, as no relevant plausible events have taken place since then, and in particular since the Tribunal does not accept that he was detained after his last return to the PRC, there is no new actual basis for his claimed fear of persecution. In those circumstances, there is no relevant information which does not fall within one of the exceptions to s 424A. The Tribunal certainly took the matter into account. In the absence of some evidence that the applicant did not get a proper opportunity to provide the Tribunal with sufficient information concerning the 1989 activities, I am unable to find jurisdictional error. There was one further matter raised before Raphael FM which is a matter upon which reliance has been placed by the appellant in these proceedings, and is the subject of emphasis this morning in oral remarks made by the appellant with the assistance of the interpreter. He told me how on 23 November 2005, the day of the hearing, he arrived about 40 minutes late, and then was required to wait for an hour. He said he was very cold and that he told the Tribunal that he was sick. He asked the Tribunal to reschedule the hearing date but that was refused. He told how he was given a blanket and used it to warm himself. He said that, as a result, he could not express himself very well. He said he could answer some questions, but there were others he could not answer because of his health. He said he was very sick that day, and that it was unfair [to have continued with the hearing]. The applicant said that he could not tell all his ideas at the hearing. He did not give all the evidence that he had. The decision was based on the evidence that he did provide and that could not be fair. In response to Ms Wong's argument that he had not provided a medical certificate, he said that he was busy and that it was impossible to get a doctor's certificate. Raphael FM noted that the affidavit was prepared on behalf of the applicant by another and that may be a reason the affidavit and the application did not raise the matter at the outset. Raphael FM observed that nevertheless it was curious that the appellant did not instruct those preparing the application and the affidavit of that matter as it was apparently a matter of real concern and remains so. 21 Raphael FM noted that the Tribunal's decision did not make any reference to these matters. His Honour also observed that it is correct to say that the proceedings started late, as reflected in exhibit 1 before the Federal Magistrates Court. His Honour concluded that in the absence of corroborative evidence of the claims concerning the conduct of the proceedings before the Tribunal, Raphael FM was unable to be satisfied that the applicant failed to be accorded a 'hearing' as required by the Migration Act . The Act requires the Tribunal by s 414(1) to 'review the decision'. Section 425 of the Migration Act requires the Tribunal to invite the applicant to appear before the Tribunal and to give evidence and present arguments relating to the issues arising in relation to the decision under review. That step occurred. 22 Essentially the appellant's contention is that he did not receive a proper hearing for the purposes of the Migration Act . That contention was dealt with by Raphael FM in the manner indicated and his Honour was dispositive of the contention on the footing that there was 'no evidence' before him to support the oral assertion that there was any inadequacy in the conduct of the proceeding before the Tribunal. It seems to me plain enough that Raphael FM was entitled to reach that conclusion and I can find no error in his so finding. Accordingly, on the face of the available evidence, the Tribunal conducted the proceeding properly. The appellant, however, presses that contention before this Court this morning. 23 The rules of the Federal Court provide an appellant with an opportunity to produce evidence on the hearing of the appeal with the leave of the Court assuming that the criteria for granting leave can be satisfied and the discretion exercised properly. The appellant has not sought to file an affidavit exhibiting the transcript or adduce any affidavit evidence pursuant to Order 52, r 36 of the Federal Court rules. The position remains as it was before Raphael FM, that there is simply no evidence to support the contention other than the bare assertion by way of submission. I can find no basis for finding that there is any error on the part of Raphael FM in relation to that matter. 24 Accordingly, I am satisfied that the appellant has failed to establish any of the grounds of appeal and it necessarily follows that the appeal must be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an appeal from the federal magistrates court raising questions going to whether the refugee review tribunal discharged obligations required by s 424a(1) of the migration act 1958 (cth) consideration of whether the tribunal miscarried in failing to grant an adjournment of a tribunal hearing and whether the tribunal failed to carry out its statutory duty of review migration

The remaining issue is what, if any, orders the Court should make in respect of each respondent's contravention having regard to the relevant provisions of the BCII Act and the circumstances of each case. 2 The applicant discontinued the proceedings against the second, third, fourth, tenth and eleventh respondents before this hearing but I have recorded them as parties given the references to some of them in the evidence. The proceedings against the fifth, sixth and seventh respondents were heard separately. 3 Section 38 of the BCII Act provides that a person must not engage in unlawful industrial action. Section 38 is a civil penalty provision (being a Grade A civil penalty provision) as defined in s 4 of the BCII Act. 5 The maximum penalty for a contravention of s 38 is $110,000 for the CFMEU and $22,000 for Mr Wakelin (s 49(2)). 6 The parties agreed the relevant facts. 8 The CFMEU is a building association as referred to in the BCII Act (s 4). 9 Mr Wakelin was an employee of John Holland Engineering Pty Ltd (a construction company) until 13 November 2005. At all material times Mr Wakelin was also: - (i) a member of the CFMEU, (ii) a delegate of the CFMEU, (iii) an officer of the CFMEU within the meaning of s 69(3) of the BCII Act, (iv) dealing with John Holland on his own behalf and for other members of the CFMEU within the meaning of s 69(1)(d) of the BCII Act, and (v) a member of the OH&S Committee of the mine site identified below. 10 The mine site is a gold mine at Lake Cowal in New South Wales owned by Barrick Australia Limited. Barrick engaged John Holland to carry out a construction project at the mine site comprising civil, structural, mechanical and piping works. The construction project involved building work within the meaning of the BCII Act. 11 The CFMEU, John Holland, and John Holland's employees (including Mr Wakelin) were each building industry participants as defined in s 4 of the BCII Act. 12 The CFMEU and John Holland were parties to a certified agreement entitled John Holland Engineering Pty Ltd New South Wales --- SMP Certified Agreement 2005 (the agreement) made under Div 2 of Pt VIB of the Workplace Relations Act 1996 (Cth). The Australian Industrial Relations Commission certified the agreement on 14 July 2005. The agreement had a nominal expiry date of 31 March 2006. The agreement applied to and bound employees working on the construction project at the mine site including Mr Wakelin. 13 During October or early November 2005 the Australian Council of Trade Unions and various unions advertised an organised national day of community protest to be held on 15 November 2005 against Federal Government legislation (the protest day). The advertising invited union members to attend the protest day. 14 On or about 9 November 2005 James Bryce, the project manager of John Holland at the mine site, arranged for a memorandum to all employees to be placed on the notice boards in the crib hut area at the site. The memorandum advised that, with the exception of union delegates, all employees were expected to attend work and John Holland did not give its consent for employees to be absent from work on the protest day. Wakelin: We need to put it to them at a meeting. Bryce: It should not take long. I authorise a 15 minute meeting after smoko. 16 On or around 10.30 am on 10 November 2005 the employees at the mine site held the meeting. The meeting went longer than the 15 minutes authorised. Mr Bryce and Roland Smits (a construction manager employed by John Holland) interrupted the meeting and told the employees to return to work. Mr Bryce said words to the effect of "The time authorised for the meeting has passed. Please return to work immediately". Mr Wakelin subsequently began shouting words to the effect "What are we going to do about this, men? Should we vote on this? Hands up who's for the motion? Hands up for who's against the motion?". The employees at the meeting resolved to go on strike for the remainder of 10 November 2005 in protest against Mr Bryce's interruption of the meeting, the memorandum, and alleged intimidation by John Holland's management, and in fact did so. 17 Shortly after the meeting Mr Best (a delegate of the Australian Manufacturing Workers Union on the construction project) said to Mr Bryce words to the effect of "The blokes have voted to withdraw their labour for the rest of the day in protest at management intimidation. The intimidation was the notice put up yesterday and your actions in disrupting a union meeting and telling them to return to work". 18 A number of employees, including Mr Wakelin, did not attend work at the mine site from around 11.00 am on 10 November 2005 until 6.30 am on 11 November 2005. 19 By reason of these facts, Mr Wakelin and the employees: - (i) failed or refused to attend for building work, (ii) engaged in action that was industrially-motivated and constitutionally-connected within the meaning of s 36 of the BCII Act, and (iii) engaged in action that was not protected action for the purposes of the Workplace Relations Act and was unlawful industrial action in contravention of s 38 of the BCII Act. Further, Mr Wakelin also contravened s 38 by reason of his involvement, within the meaning of s 48(2) of the BCII Act, in the contravention of that section by the other employees who did not attend work. 20 Mr Wakelin's actions were conduct: - (i) by him as an officer or agent of the CFMEU acting in that capacity, (ii) by a member of the CFMEU authorised by its rules and/or by an officer or agent of the CFMEU acting in that capacity, and (iii) by a member of the CFMEU who performs for the CFMEU the function of dealing with an employer on behalf of himself and other members of the CFMEU acting in that capacity. Accordingly, by Mr Wakelin's actions and the operation of s 69 of the BCII Act, the CFMEU contravened s 38 of the BCII Act. 21 Mr Wakelin swore an affidavit. He was not cross-examined. Mr Wakelin has worked in the building and construction industry for about 31 years. For the last 15 years he has worked as a crane operator/rigger for which he possesses the relevant course qualifications. He is a member of the CFMEU and has been since the 1980s. He has been an assistant delegate for the CFMEU at various sites from time to time and was the CFMEU's delegate at the mine site owned by Barrick Australia at Lake Cowal. 22 Mr Wakelin is 46 years old, single, with no dependants. He is currently employed on a large construction job in Brisbane which has approximately 12 months to run to completion. He is not a union delegate or assistant delegate on that job. Mr Wakelin lives alone in rented accommodation. Depending on whether he works Saturdays he currently earns between $60,000 and $70,000 per year net. He pays monthly car repayments of $550 and has about $10,000 in the bank. 23 Mr Wakelin has never before been the subject of any relevant legal action and has not been found to have breached any industrial relations legislation. Further, he has not been a delegate or assistant delegate of the CFMEU since he resigned as the delegate at the mine site whilst employed by John Holland. He resigned because he was spending a lot of his time on work related problems both in his role as delegate and as a member of the mine's OH&S committee. The main reason he resigned his employment was frustration at all the problems he had to deal with as a delegate. Mr Wakelin said that, although he recognises the importance of being a union member, he has had no desire since 10 November 2005 to be a delegate or to participate in any other representative role on behalf of the CFMEU. 24 The CFMEU agreed to provide formal training to the first to fourth respondents in respect of all of their obligations under the BCII Act and Workplace Relations Act , with the CFMEU bearing the costs of such training and the nature and content of the training being the subject of consultation with the applicant. (2) On the facts there was no intimidation by John Holland. (3) Mr Wakelin's conduct was obviously hot-headed and an over-reaction to Mr Bryce's intervention in the meeting which had run over the agreed time. This indicates ulterior or collateral motivations behind the withdrawal of labour. (4) In his position as delegate, Mr Wakelin's exhorting of the employees to react precipitately was not responsible conduct conducive to respecting the industrial laws or the rights of John Holland or the employees. It was also contrary to the objects of the BCII Act which include promoting respect for the rule of law, ensuring respect for the rights of building industry participants, and ensuring that building industry participants are accountable for their unlawful conduct. (5) The conduct was in breach of the agreement and precisely the type of conduct the agreement was intended to avoid. Although the terms of the agreement were not in evidence any contrary inference as submitted on behalf of the respondents would involve accepting that the agreement permitted unlawful industrial action. (6) The Court can infer that the failure of the employees to attend work was a substantial disruption to John Holland's operations at the mine, although limited in time to approximately 24 hours. Contrary to the submissions for the respondents, this inference should be drawn as to do otherwise would suggest that the employees who did not attend work were wholly superfluous to John Holland's operations. (7) The CFMEU's record of contraventions of the BCII Act (three matters) and Workplace Relations Act (seven matters) before the present contravention "attests to the corporate culture of the union as a serial abuser of the industrial laws and rights of building industry participants, and calls for some deterrent". (8) Although the CFMEU and Mr Wakelin admitted the contravention of s 38, this is a modest mitigating factor as the admissions were made on the first day of the trial. Before that, almost every allegation in the pleading was denied, including that Mr Wakelin was a delegate and officer of the CFMEU acting in that capacity on 10 November 2005. (9) The applicant had been put to the time and expense of making applications for substituted service on the first to fourth respondents who are all members of the CFMEU. (10) Mr Wakelin and the CFMEU had not expressed any remorse for their conduct or apologised to John Holland. Mr Wakelin's affidavit studiously avoided any expression of remorse or apology. Contrary to the respondents' submissions, had any apology been made to John Holland then the respondents would have given evidence of the apology, but there was no such evidence. (11) The CFMEU had not offered training of all persons likely to be acting in the position of union delegate or organiser. (12) There is no evidence of financial hardship on Mr Wakelin's part or that he will have to pay any fine personally. (13) Having regard to these matters, a mid range penalty should be imposed on Mr Wakelin as a first offender with a higher penalty being imposed on the CFMEU. It started at 11.00 am and finished by 6.30 am the next morning. Moreover, it could not be suggested that the employees otherwise would have worked through the night. (2) There was no evidence of the number of employees who failed to attend work (as the agreed facts refer only to Mr Wakelin and a number of employees not attending). (3) There was no evidence of substantial disruption or even disruption to John Holland's operations. (4) There was no evidence that the failure to attend for work involved a breach of the agreement as the terms of the agreement were not in evidence. Further, claims for breach of the agreement initially pleaded by the applicant had been discontinued. (5) There was no evidence that Mr Wakelin and the CFMEU used the alleged intimidation as an excuse to punish John Holland. This submission involved mere speculation. (6) The applicant's submissions that Mr Wakelin's conduct was hot-headed and an over-reaction are difficult to understand and, in any event, not supported by the evidence. (7) The timing of the respondents' admissions has to be seen in the context of the large number of claims the applicant made against many respondents. All of the allegations were withdrawn insofar as the CFMEU and its members were concerned but for a single allegation against each of Mr Wakelin and the CFMEU for contravention of s 38 of the BCII Act by reason of the events on 10 November 2005. The admissions had utilitarian value and should be given weight for that reason and because the admissions evidence contrition. (8) The applicant could not make submissions on what might have happened with respect to any apology to John Holland. It did not create a presumption of any order being made, let alone any penalty being imposed. The word "appropriate" in s 49(1)(c) indicates the discretion involved. The classes of case where a penalty might be inappropriate are not closed and should be informed by the object that would be served in imposing a penalty and the seriousness of the conduct. (2) The basis of Mr Wakelin's complicity in the contravention is unclear (whether as a person present at the meeting who took the vote or because he took industrial action himself). If the former, recording the views of others does not involve serious culpability. If the latter, Mr Wakelin is the only person being pursued for a penalty. (3) It is difficult to determine if the contravention was wilful, flagrant or deliberate in the sense of a conscious decision by Mr Wakelin to defy the legislative proscription in s 38. There is no evidence of Mr Wakelin or the CFMEU instigating discussion about strike action or engineering or contributing to a situation from which such action ensued. (4) Mr Wakelin's actions were responsive to management action rather than in pursuit of some unlawful object, advantage or gain. (5) The strike action involved other people and organisations against whom no action has been taken, without any explanation for that fact. Mr Wakelin and the CFMEU should not be left with some justifiable sense of grievance by this lack of parity. (6) The limited duration of the action taken (less than one shift) by an indeterminate number of employees (at least two), and the fact that it was at least in part responsive to management action is relevant, as is the offer of training and Mr Wakelin not having any desire to be a delegate or assistant delegate in the future. (7) It is also relevant that the CFMEU attracted liability solely by reason of the operation of s 69 of the BCII Act and the actions of Mr Wakelin, who was employed by John Holland. (8) Penalties in other cases are also relevant. Hadgkiss v Aldin (2007) 164 FCR 394 ; [2007] FCA 2068 involved more serious contraventions and resulted in fines on individuals of $9000 and $7500 with two thirds suspended in the form of a good behaviour bond (that is, effective fines of $3000 and $2500). Suspended fines also act as a deterrent. Temple v Powell (2008) 173 IR 189; [2008] FCA 714 involved far more serious conduct with more serious consequences and resulted in a fine of $12,000 on the CFMEU and $2500 for an employed organiser of the CFMEU. Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 164 IR 375; [2006] WASC 317 involved a multiplicity of offences in contrast to the present case and that in Temple v Powell . In Leighton Contractors , the parties agreed and the Court imposed penalties of $90,000 on the CFMEU, $30,000 on the Construction, Forestry, Mining and Energy Union of Workers and $30,000 on a CFMEU official. (9) The BCII Act was of recent origin at the time of the contraventions in this case. Neither respondent had been found to have contravened s 38 at 10 November 2005. 29 Observations in other cases are also relevant. 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. Penalties must be imposed at a meaningful level if they are to serve as a general deterrent to others who may be disposed to engage in proscribed conduct. 31 Any penalty must nevertheless be proportionate to the conduct of the individual or organisation in contravention ( Temple v Powell (2008) 173 IR 189; [2008] FCA 714 at [58] ). 32 The issue of any and, if so, what order should be made under s 49 of the BCII is to be assessed having regard to the facts either as agreed or as proved. 33 From the agreed facts and other evidence I do not know the number of employees involved in the industrial action other than that a number were involved including Mr Wakelin. Nor do I know the terms of the agreement in order to find breach of the agreement as submitted by the applicant. Further, I cannot be satisfied that John Holland's operations at the mine site suffered substantial disruption. I can infer that the operations must have suffered some disruption for the reason given by the applicant (namely, that I can and should infer that Mr Wakelin and the other employees who failed to report for work were not wholly superfluous to John Holland's operations). But I accept that the nature and extent of the disruption is unknown except that it would have been limited in duration to shifts which would otherwise have been worked between 11.00 am on 10 November and 6.30 am on 11 November 2005. These facts (or lack of facts) are relevant to the capacity to assess the seriousness of the contravention of s 38 by Mr Wakelin and the CFMEU. 34 I am satisfied that the agreed facts disclose that Mr Wakelin's liability flows from both his own taking of unlawful industrial action and his involvement in the taking of the industrial action by a number of other employees in his capacity as a delegate and officer of the CFMEU. The agreed facts disclose that Mr Wakelin shouted about what was going to be done (I infer about the interruption to the meeting against the background of apparent concerns about the memorandum relating to the protest day) and took the vote. It is also an agreed fact that he was involved in the contravention of s 38 by the employees (which can only mean the other employees, whatever their number) by reason of s 48(2). Taken together these facts show that Mr Wakelin, in his capacity as a delegate and officer of the CFMEU, was involved in the instigation of the unlawful industrial action. I do not accept the respondents' submissions to the contrary. 35 The agreed facts also permit (and I draw) the inference that Mr Wakelin reacted to perceived intimidation by John Holland management when there was no reasonable basis to do so. This is supported by Mr Wakelin's evidence expressing the frustrations he felt at dealing with issues as the CFMEU's delegate on the mine site. Accordingly, the applicant's characterisation of Mr Wakelin's conduct as an over-reaction and inconsistent with the objects of the BCII Act was well founded. However, I do not accept the applicant's submission that, on the evidence, I can infer that Mr Wakelin and the employees used the alleged intimidation as an excuse to punish John Holland. I do accept that the evidence supports the inference that the action was, at least in part, a response to John Holland's position with respect to the protest day as set out in the memorandum posted on or about 9 November 2005. In other words, Mr Wakelin's actions on 10 November 2005 were not a wholly spontaneous response to Mr Bryce's intervention in the meeting. 36 I do not consider the lack of action by the applicant against other people involved in the unlawful industrial action of any material weight or capable of legitimately founding any sense of grievance on the part of Mr Wakelin and the CFMEU. 37 The admissions of liability were not made until the first day of the hearing. Although various allegations of breach were not ultimately pursued by the applicant, Mr Wakelin and the CFMEU effectively denied all relevant allegations until the last moment. The admissions of liability nevertheless have some utilitarian value. They also provide some evidence of contrition but, as the applicant said, not particularly weighty evidence given the lack of any other supporting material. This acknowledgment avoided the need for a hearing to determine whether the allegations made by the applicant against the third respondent could be substantiated. As a consequence the community was spared the cost of a contested trial. However, I do not accept that the Court should adopt the approach that the third respondent should receive a penalty mitigated to the same degree as it would be appropriate to mitigate a sentence passed on an individual after a plea of guilty entered at the first reasonable opportunity (see Cameron v R (2002) 209 CLR 339 ; [2002] HCA 6). The present proceeding is not a criminal proceeding. The third respondent was not asked to plead to any offence. Rather the third respondent was required in its defence to traverse specifically each of the allegations of fact made against it in the statement of claim that it did not admit (see O 11 r 13 of the Federal Court Rules ). Indeed under O 11 r 1B of the Federal Court Rules the third respondent's legal representative ought to have certified at the time of the filing of the third respondent's defence that the factual and legal material available to him or her provided a proper basis for each denial or non-admission in that defence. 38 Mr Wakelin has no record of prior contraventions of industrial legislation, a significant factor in his favour. He is of relatively modest means, albeit with no dependants. He is in regular employment. He is not presently acting as a union delegate and has no desire to do so (although that may change in the future). Specific and general deterrence remain relevant considerations. I am satisfied that a penalty should be imposed on Mr Wakelin in the circumstances recorded above. To make no order by way of penalty, even given the offer of training by the CFMEU, would undermine the objects of the BCII Act (as set out in s 3(2)(b), (c) and (d) in particular). 39 To be proportionate to the circumstances (particularly the relatively short duration of the unlawful industrial action and Mr Wakelin's lack of any relevant prior unlawful conduct), a fine at the low end of the scale is required with respect to Mr Wakelin. Taking into account the late admission of liability I impose a penalty of $1100 on Mr Wakelin. I see no reason in the circumstances of this case to suspend payment of any part of the penalty. 40 The CFMEU contravened industrial legislation, including s 38 of the BCII Act, on a number of occasions before 10 November 2005 (including three contraventions of s 38, albeit in circumstances different from the present case). The liability provisions in s 69 are a part of the statutory scheme. The fact that the CFMEU attracted liability under s 69 through the actions of Mr Wakelin acting as its delegate and officer on the mine site is part of the factual context. However, there is no reason to treat liability attracted under s 69 as necessarily of a different character or consequence for the purpose of making orders under s 49. Mr Wakelin was the CFMEU's delegate and officer within the meaning of the BCII Act. His actions in shouting about what was to be done, taking the vote, and being involved in the contravention of s 38 by a number of employees were all carried out by him in that capacity. Consistent with my approach to Mr Wakelin, I consider a penalty should be imposed on the CFMEU having regard to the circumstances of the contravention and the objects of the BCII Act. In particular, specific and general deterrence are of greater weight with respect to the CFMEU than Mr Wakelin. 41 Having regard to the relatively short duration of the unlawful industrial action and the lack of evidence about the number of employees involved and any particular disruption John Holland suffered in consequence, I consider that a penalty towards the lower end of the scale is required. Taking into account the late admission of liability I impose a penalty of $8000 on the CFMEU. Again, I see no justification for suspending any part of the penalty with respect to the CFMEU. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.

unlawful industrial action admissions of contravention of s 38 of the building and construction industry improvement act 2005 (cth) by first and eighth respondents appropriate orders for contravention penalty industrial law

The application was based upon the failure by the companies to comply with statutory demands issued by the receivers and managers of Westpoint Corporation Ltd (Westpoint Corporation) in respect of the amounts of loans said to be owing by each of them to that company. 2 Failure to comply with a statutory demand gives rise to a presumption of insolvency and in winding up proceedings based on such failure the presumption operates except so far as the contrary is proved. 3 In addition to demonstrating non-compliance with the statutory demands, ASIC has adduced evidence about the financial circumstances of each of the companies so far as that appears from accounting records of the Westpoint Group to which ASIC has had access. That evidence does not displace the presumption. In addition, oral evidence was given by Mr Carey, the common director of each of the companies to the general effect that the financial records relied upon by ASIC were not complete. Mr Carey's principal contention was that there were unrecorded offsets in favour of various of the respondent companies against their loan accounts with Westpoint Corporation. His evidence, however, did not do more than raise possibilities. It certainly did not displace the presumption flowing from the failure to comply with the statutory demands. The Court is obliged to give effect to that presumption by the provisions of the Corporations Act 2001(Cth) (the Act). 4 In the circumstances, ASIC will be granted the necessary leave to make the applications and winding up orders will be made against each of the respondent companies. In respect of those companies which are the trustees of trusts identified in the ASIC evidence, the liquidators will also be appointed as receivers of the trust assets subject to liberty to the receivers and any beneficiaries of the trusts to apply for directions relating to the exercise of the receivers' powers. ASIC has leave to amend its application for the purpose of seeking the orders for the appointment of receivers to the trusts. The application was brought under Pt 5.4 of the Act. An application of this kind can be made under s 459P of the Act by ASIC but only with the leave of the Court. The Court must be satisfied, before giving leave, that there is a prima facie case that the company the subject of the winding up application is insolvent. In this case the contention that the companies are insolvent is based upon a statutory presumption flowing from their non-compliance with statutory demands for the payment of moneys said to be owing to Westpoint Corporation. 6 It is not in dispute that, on instructions from Oren Zohar of KordaMentha, a receiver and manager of Westpoint Corporation, statutory demands under s 459E of the Act were served on the first to twelfth respondents on 10 March 2006. A statutory demand was served on the thirteenth respondent on 15 March 2006. In each case the demand was supported by an affidavit verifying that the amount of the debt claimed was due and owing by the company to Westpoint Corporation. 7 The verifying affidavits depended upon examination of the books and records of Westpoint Corporation by Mr Zohar. The verifying affidavits did not set out the transaction or transactions which gave rise to the debt but in each case the deponent, Karen Price, stated her belief that there was no genuine dispute about its existence. According to the affidavit of Mr Zohar, sworn 21 November 2006, there had, at that date, been no response to the statutory demands and as of that date the amount of the debts remained due and payable to Westpoint Corporation. 8 The respondents were represented, on the hearing of the winding up application, by Norman Carey their common director who was given leave to represent them. Mr Carey had applied to strike out the application in August 2006 on the basis that it was invalid for failure to comply with s 459Q of the Act which requires verification, by affidavit, of the currency of the debts at the time of the making of the application. On 16 August 2001 that motion was dismissed --- Australian Securities & Investments Commission v Eastlands Pty Ltd (No 1) [2006] FCA 1101. Other interlocutory orders refusing leave to issue certain subpoenas and requiring ASIC to provide a list of documents in its possession relevant to the question of solvency were made on the same day --- Australian Securities & Investments Commission v Eastlands Pty Ltd (No 2) [2006] FCA 1193. 9 At the commencement of the substantive hearing counsel appeared for the respondents and applied for an adjournment. That application was refused. Counsel, whose instructions were limited to the application for an adjournment, then withdrew and Mr Carey represented the respondent companies in person. 10 At the hearing ASIC relied upon a number of affidavits including those of Oren Zohar and ASIC investigators, Kevin Chin and Richard Gomm. It also relied upon the affidavit of Wendy Chan, formerly an assistant accountant with Westpoint Corporation and David McEvoy, a partner in PricewaterhouseCoopers. The affidavits went variously to the records of intragroup debts in the books of Westpoint Corporation, the financial position of the respondents as disclosed in computer databases held by Westpoint Corporation, the way in which the accounting system operated, the service of the relevant statutory demands and of the originating process and supporting affidavits. There were no affidavits relied upon by the respondents. However Mr Carey gave oral evidence at the hearing. The evidence, together with the presumption, was thereby sufficient to support the winding up orders sought by ASIC. Section 459A provides that, on an application under s 459P, the Court may order that "... an insolvent company be wound up in insolvency". These include ASIC (s 459P(1)(f)). By s 459P(2) an application by ASIC may only be made with the leave of the Court. A condition of such leave is that the Court be "... satisfied that there is a prima facie case that the company is insolvent,..." (s 459P(3)). That leave may be given subject to conditions (s 459P(4)). 16 Section 459F of the Act sets out the circumstances in which a company is taken to fail to comply with the statutory demand. The time limited by this section expires on 29 December 2006. 19 Section 459S limits the grounds upon which a company may oppose an application. Rule 5.6 requires notice of the application for the winding up order to be published. 23 Section C of the application set out particulars of service of the demand on each of the respondents as required by s 459Q(a). It also asserted the failure of each to pay the amounts of the debt demanded or to secure or compound for that amount to the reasonable satisfaction of the receivers and managers of Westpoint Corporation within 21 days after the demands were served on the respondents. The demands and accompanying affidavits were served by Alex McLean, a Senior Associate at Corrs Chambers Westgarth, who delivered them to the registered office of the respondents at Level 9, 160 St George's Terrace, Perth in the State of Western Australia on 15 March 2006 in relation to the thirteenth respondent and on 10 March 2006 in relation to the other respondents. A copy of each of the demands and the accompanying affidavits, marked "A" to "M", are attached to this originating process. Each respondent failed to pay the amounts of the debt demanded or to secure or compound for that amount to the reasonable satisfaction of the receivers and managers of Westpoint Corporation Pty Ltd within 21 days after the demands were served on the respondents. However at the time it was served it was accompanied by the affidavits of Oren Zohar and Alexander Jason McLean, sworn 29 June 2006. Each of those affidavits annexed copies of the demands and accompanying affidavits as annexures "OZ1" to "OZ13" and "AM1" to "AM13" respectively. The omission to attach the relevant demands to the application was obviously the result of oversight. At the time of service each of the respondent companies received two copies of each demand and affidavit as annexures to the affidavits of Zohar and McLean. In circumstances where the necessary document was in fact annexed to the supporting affidavit rather than the contemporaneously filed originating process, the non-compliance was a "defect or irregularity in connection with the application" as referred to in s 467A(a) and, since no injustice could conceivably have been occasioned, the court was bound by s 467A not to dismiss the application merely because of the non-compliance. If there were substantial injustice the time to raise it was at the time of the application to strike out the proceedings for failing to comply with s 459Q of the Act made on 16 August 2006. That application went to the sufficiency of the backing affidavit. I accept that this is a case in which there is no substantial injustice arising from non-compliance with s 459Q(b)(i) and on that basis will entertain the application notwithstanding the non-compliance. The factual outline in its submissions, with respect to each of the respondents, was supported by reference to the relevant parts of the affidavits filed in support of the application. It is convenient to refer to that outline in respect of each of the contested applications. It is not necessary to repeat individually the reference to the basis upon which the debts were asserted, the service of the statutory demands, the non-compliance with those demands and the currency of the relevant debts. Mr Carey is the company's only director. 30 Eastlands is trustee of the Eastlands Unit Trust. The computer database containing the financial records of Westpoint Corporation and associated companies was kept on a "Triumph" accounting system. According to Mr Richard Gomm, an ASIC investigator, who examined records obtained by ASIC from that system in relation to Eastlands, its business records are almost exclusively concerned with its role as trustee of the Eastlands Unit Trust. It submitted that the value of Eastland's loan to Quartz Nominees ought to be discounted entirely as the largest asset of Quartz Nominees was its right to indemnity from the trust assets which were in the form of loans to businesses or investments in shares in other companies and units in trusts in the Westpoint Property and Finance Group. These had not been made available and were unlikely to be made available to assist Eastlands. Mr Carey is its sole director. 33 The company is the trustee of the Westpoint Consulting Group Unit Trust. The most recent accounts for the company related to the period ending 30 June 2003 and showed that it earned no income and incurred no expenses but held $2 contributed capital. It had trust liabilities of $165,477. As with Eastlands, the business records of the company related exclusively to its role as trustee of the Westpoint Consulting Group Unit Trust. 34 Mr Gomm set out the result of examination of the Triumph accounting system for the Westpoint Consulting Group Unit Trust. It had accumulated losses for prior periods of $161,000. It submitted that, as in the case of money owing to Eastlands, the value of the company's loan to the Quartz Trust ought to be entirely discounted. 35 Westpoint Consulting Group had also executed guarantees and indemnities in favour of a number of so called Mezzanine finance companies associated with the Westpoint Finance and Property Group. The guarantees related to borrowings from other companies within the Group. The relevant Mezzanine companies are in liquidation. The relevant debtor companies are under external administration in that receivers or liquidators have been appointed save for Cinema City Development which, as already noted, is one of the respondents to these proceedings which is not contested in the winding up application. The debts of the debtor companies to the Mezzanine finance companies were due and owing. The Triumph system accounting information for the debtor companies acknowledged their obligations to the Mezzanine finance companies. The liquidators of the Mezzaine companies had issued notices, under the loan agreements, to the debtor companies that the loans were immediately due and payable. They have also issued demands to Westpoint Consulting Group and other guarantors. The demands against Westpoint Consulting Group exceed $287 million. 36 On 7 April 2006 Westpoint Consulting Group sent a letter indicating that no payment would be made on its behalf under the guarantees. It gave three reasons. The first was that the guarantees were uncommercial transactions and were voidable under s 588FE of the Act. The second reason was that they did not provide a requisite commercial benefit. The third reason was that they were limited to the amount of the loan agreements. The solicitors for the Mezzanine finance companies have not accepted these contentions. ASIC points out that even if confined to the loan agreements, the debt recoverable under the guarantees would be $80 million. The guarantors of the same debtor companies have not paid the demands received. According to the Triumph system accounting information the other guarantors are unlikely to be in a position to meet those demands. One is held by Bowesco. The other is held by Tarlina Pty Ltd. Norman Carey is the only director of Jetstone. 38 Jetstone is the trustee of the Jetstone Trust. Its business records relate almost exclusively to its role as trustee. Norman Carey is its only director. Apart from a very small number of external clients it was reliant upon Westpoint Corporation which is now in receivership and in liquidation. Both are held by Westpoint Corporation. It has two directors, Norman Carey and his sister, Karen Carey-Hazell. Juson is the trustee of the Juson Unit Trust. Its business records relate almost exclusively to its role as trustee. One is held by Heca Nominees Pty Ltd. The other is held by Mr Carey. The company has two directors who are Mr Carey and his sister, Karen Carey-Hazell. Bridgeview is the trustee of the Bridgeview Family Trust. Again, its business records relate almost exclusively to its role as trustee. Mr Carey is its sole director. The Triumph system accounting information indicates that the fees were not paid and the option was not exercised. He described himself as the Group Managing Director for the Westpoint Group and said he is a director of each of the respondent companies. The Group has been in existence since about 1985. He is a certified practising accountant and has held that qualification for about 20 years. 49 Mr Carey began by describing what he called the business model under which the Westpoint Group operated. The Group operated its business "across a value chain". Westpoint Corporation "provided central services ...". It charged significant fees against development projects carried out by the Group. It would also engage the services of service providing businesses within the Group to carry out various aspects of project development. 50 Mr Carey contended that ASIC's evidence was not based upon financial accounts but what were in effect "general ledger printouts". ASIC had taken intragroup loan amounts from the general ledgers. You start with journals, post ledgers to a trial balance, and then you produce financial, statements being the profit and loss and balance sheet ...'. Within the Group there was a business unit called Group Financial Control that oversaw all the accounting, administration and financial functions. The Group Financial Control operated on a month by month basis updating intragroup accounts. Primarily it took into account the costs. From time to time income would be "... brought to account in relation to these companies for their services". By "income" Mr Carey explained, he meant income earned by Westpoint Group companies for the provision of services to Westpoint Corporation. The effect of his evidence was that the Triumph system accounting figures relied upon by ASIC in connection with the solvency of the respondents did not paint a true picture because it did not disclose moneys owing to the companies, but not entered in the system, for services provided to Westpoint Corporation. 51 Mr Carey was asked whether members of the Westpoint Group invoiced Westpoint Corporation for their services. He said invoices would be rendered "often on a six-monthly basis and sometimes on a 12-monthly basis". Such invoicing would frequently occur at the end of the financial year. There was no need to invoice on a monthly basis. The businesses operated internally in providing services to Westpoint Corporation. Income attributable to member companies providing services to Westpoint Corporation had not been booked to the general ledger. 52 Asked about the function of Eastlands, Mr Carey described it as "a bit of a mixed bag". He said it "... wasn't a specific business". It carried out activities from time to time. Some of the other companies were more specific. The activities it carried out included marketing as an aspect of project management. 53 Mr Carey said that Westpoint Consulting Group showed a loan of $172,000 owing to Westpoint Corporation according to ASIC's evidence. He asserted that during the relevant period it had earned income well in excess of that amount by carrying out work on the Emu Brewery project. The company had not "booked" that income. Jetstone acquired properties for the development of two Lone Star Restaurants. It carried out "substantial work in relation to those [two properties] but [had] not booked the income". He described Pagelight Nominees as "the multimedia business within Westpoint". It provided promotional and advertising services that would be charged to the various projects. It prepared brochures, display material, display suites and the like for property development projects. Juson also carried out work in relation to project management including the set-up of display suites. 54 Westside Brisbane Developments had acquired an option to purchase property in Brisbane for a development. It carried out "due diligence" work on the proposal. This was the "type of stuff" which was done with lawyers and cost "tens and tens of thousands of dollars". It prepared cashflow feasibility studies. Somehow this work was able to be transmuted into a service provided to Westpoint Corporation. Just how it could be so characterised did not emerge with clarity from Mr Carey's evidence. The assignment of the option held by Westside Brisbane Developments would have been directed to a special purpose development "vehicle", ie another company in the Group. Westside Brisbane Developments would be able to raise a charge within the Group for the preparatory work that it had done. 55 Mr Carey's evidence in relation to Bridgeview was confusing. He said there was an error in the accounts relied upon by ASIC. The true position was that Bridgeview did not owe Westpoint Corporation any money. The debt attributed to Bridgeview was in fact owed by Forestview Nominees Pty Ltd (Forestview). Counsel for ASIC correctly pointed out that this was, in effect, a challenge to the debt underlying the statutory demand. 56 In cross-examination Mr Carey said that there were between 20 and 30 accountants working for the Westpoint Group throughout Australia. Their responsibilities included the preparation of "journals" which was the starting point for the posting process of the Triumph accounting system. He said that while some of the businesses didn't use the Triumph system, by and large "... Triumph was the major general ledger package...". It was put to him that transactions on the Triumph accounting system reflected journal entries prepared on the basis of primary legal or other documentation. However, as an accountant that is how I suspect it operated, yes. 57 Mr Carey said in cross-examination that there was a series of financial managers in each of the businesses. There was dual reporting to those financial managers, to Mr Rundle who was his Chief Financial Officer, and to Mr Nairn who was assisting him. He did not see the summary reports himself. Most of the reporting that came to him was on a systematic basis of costing systems and not necessarily off the accounting system. He ran the major projects, but his interest was in the committed costing system. They are just running balances to that point in time and clearly accounting --- accounting is like a lot of things. It is only as good as its input, so as I'm saying, if invoices were not journalised or invoices, the income hadn't been booked, they wouldn't have been journalised and therefore that income wouldn't have been shown in the general ledger. 58 Westpoint Corporation was described by Mr Carey as the "central treasury" for the Group. If a member of the Group incurred an expense such as a debt to a subcontractor that debt would be paid by Westpoint Corporation and recorded as money owing by the member company to Westpoint Corporation. At the same time the member company would record in its balance sheet a corresponding asset in the form of work in progress. 59 An example of the preceding process appears in the accounts for Westside Brisbane Developments taken from a Triumph printout. This showed work in progress of $12,671 and a loan from Westpoint Corporation of $13,939. Mr Carey agreed that as Westside Brisbane Developments was incurring expenses in relation to its project they were paid by Westpoint Corporation and a loan in that amount was acknowledged by Westside Brisbane Developments. He agreed also that work in progress appearing on the balance sheet of the member company would be "transferred across to the income side as costs of goods sold, to work out profit". This "income" would not necessarily be paid in cash. Westpoint Corporation would simply "alter the loan account balance". 60 Mr Carey was pressed in cross-examination with the proposition that any debts owing by Westpoint Corporation to a member company would not be recoverable because Westpoint Corporation was in liquidation. He maintained however that the debts owed to Westpoint according to the Triumph accounting system could be offset by debts owed by Westpoint for "income" which had not been recorded by way of invoices from the member companies or adjustments to the loan accounts. 61 Mr Carey was directed to a record of reductions in the Pagelight Nominees' loan account with Westpoint Corporation for the period 1 July 2005 to 31 January 2006. There was no "income" shown for the months of December 2005 and January 2006. He was asked whether Pagelight Nominees had done work in subsequent months. He said he could not answer in specific terms as he did not have access to the relevant documents. He considered, however, that the company would have been owed more by Westpoint Corporation than the sum of $55,800.85 which it was said to owe to Westpoint Corporation. This was because of work that Pagelight Nominees had done on the Emu Brewery development. The amount of that work was substantial. Someone called "Sean" had been managing the Pagelight Nominees' business. Mr Carey said he had not been in contact with Sean in connection with the winding up application. Having been refused an adjournment of the hearing of the application he had been "caught by surprise". Nor had he spoken to Mr Rundle or Mr Nairn in connection with the Westpoint Corporation accounting system. He did not think they would necessarily have been able to give him details about the precise position of the particular company because they were not managing its business. 62 Mr Carey was asked about the services provided to the Westpoint Group by Eastlands. He agreed that it had provided management services. Asked if it had any employees he said that Westpoint Corporation "employed everyone for and on behalf other entities" (sic). Some of Westpoint Corporation's employees did work which entitled Eastlands to render an account to Westpoint Corporation. He himself had done work on account of Eastlands. This work had not been billed to Westpoint Corporation. 63 As to Bridgeview and the alleged error in the attribution of liabilities as between Bridgeview and Forestview, Mr Carey was unable, in cross-examination, to explain with any precision how that error occurred. There is therefore a presumption that the Court must adopt, pursuant to s 459C(2), that each of the respondents is insolvent. The presumption applies to satisfy the condition of a prima facie case of insolvency necessary to ground ASIC's application for leave to apply for each of the respondents to be wound up in insolvency. 65 I am satisfied that ASIC should be granted leave to apply to wind up these companies. It has been put in a position, because of orders made affecting companies in the Westpoint Group generally, to access the information and records necessary to assess the circumstances of member companies in the Group. All of the respondents are effectively under the control of one man, Mr Carey. Beyond the particular interests of individual creditors of the respondents there is a wider public interest, if Group members be insolvent, that they be wound up with as little expense to creditors as possible. ASIC which can bring this application against all the respondents at the same time is not confined, as an individual creditor would be, to a particular respondent or respondents owing money to the creditor. It is appropriate that ASIC be granted leave to bring the application and, given the common features of the evidence relied upon and the common control of the respondents, to join them in the one application. 66 The affidavit evidence relied upon by ASIC, to which reference has been made earlier in these reasons, has generally disclosed that the presumption of insolvency, based on the failure to comply with the statutory demands, is not displaced by what appears from the records of the Westpoint Group to which it has referred. 67 Mr Carey's evidence, if accepted, could raise questions about the completeness of the financial picture painted by the Triumph accounting system. It raises the possibility that there may be unrecorded offsets against the debts recorded as owing to Westpoint Corporation. That evidence however does no more than raise the possibilities. It might have been a basis for setting aside the statutory demands, but no application of that kind was made. His evidence, taken at its highest, does not displace the presumption of insolvency. It does not, in terms of the Act, "prove the contrary" in the sense defined in s 95A. 68 In my opinion each of the respondents is to be taken as insolvent and no discretionary basis is disclosed for refusing to make the winding up orders sought. 69 ASIC also seeks, by way of amendment to its application, the appointment of receivers to the assets of those Trusts of which various of the respondent companies are trustees. The proposed receivers are also the proposed liquidators of the respondents. An important asset of each of the respondent trustees will no doubt be its right of indemnity out of the trust assets in respect of liabilities incurred in discharging its function as a trustee. The enforcement of that indemnity, in the circumstances, may appropriately be joined with the discharge of the liquidator's function in winding up the company. 70 The scope of the powers proposed for the liquidators in their capacity as receivers of trust assets is not limited to the enforcement of the trustees' indemnity. While, in an ideal world, it would be desirable to separate the function of the liquidators and receivers of the trust assets, in my opinion, in this case, that is likely to involve unnecessary expense and duplication of function. The position of the beneficiaries of the trusts will be protected by an order in each apposite case, that there be liberty to apply to the Court for directions as to the duties of the receivers. The liquidators themselves, in their capacity as receivers, may also apply for such directions. I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

insolvency winding up failure to comply with statutory demands presumption of insolvency members of inter-company group evidence by common director of financial arrangements within inter-company group insufficient to displace presumption winding up orders made appointment of liquidators as receivers of assets of trusts of trustee companies corporations

BUCHANAN J: TABLE OF CONTENTS INTRODUCTION [1] The two proceedings [1] The parties in NSD 1955 of 2004 [2] General Background [6] THE KNOW-HOW CONTRACT [24] Governing law of the contract [25] The subject matter of the contract [50] The territorial reach of the contract [63] Termination of the contract [74] The operation of clause 16 [74] Each party purports to terminate [97] The effect of valid non-stated grounds for termination [123] Was PIV Antrieb in breach? The proceedings in NSD 1423 of 2004 were commenced first in time. They have been temporarily accommodated by undertakings. Most of the factual and legal issues they concern have been subsumed in proceedings NSD 1955 of 2004. It is convenient therefore to deal primarily with NSD 1955 of 2004. Antrieb Werner Reimers GmbH & Co. KG ("PIV Antrieb") which is in "insolvency administration" pursuant to court orders made in Germany. The second applicant ("Brevini Australia"), an Australian company, is a subsidiary of Brevini Riduttori SpA/Brevini International Holdings B.V., ("Brevini Italy"), an Italian company which is the ultimate owner of PIV Drives. Brevini Australia has the right, in Australia, to exploit the intellectual property of PIV Drives. The first respondent ("Elecon Australia") is an Australian company which is a subsidiary of the second respondent ("Elecon Engineering"), an Indian company. The third respondent (Mr Patel) is the chairman and managing director of Elecon Engineering and a director of Elecon Australia. It is alleged that he is accessorily liable for some of their conduct. Although it was events in Australia, directly concerning Elecon Australia and Brevini Australia, which explain why the two proceedings were commenced, the underlying dispute has its origins in the relationship between PIV Antrieb and Elecon Engineering, and in the question of what rights, if any, Elecon Engineering retained, as against PIV Drives, to the benefit of a licence agreement it had with PIV Antrieb after PIV Antrieb was placed in insolvency administration. In order to understand that question, some further general explanation is required before the detailed issues are discussed. It stands for Positive Infinitely Variable, a term which is associated with large industrial reduction gearboxes. The term PIV, according to evidence given by Mr Michael Kissel, the managing director of PIV Drives, was used for a power transmission system invented in 1924. In 1928 a company was formed in Germany to exploit the invention. It was called Ketten-und Getrebe GmbH. In 1936 the name of the company was changed to P.I.V. Antrieb Werner Reimers GmbH & Co. KG. Mr Kissel deposed that during the 1940s to 1960s PIV Antrieb developed a number of industry specific variable speed drives including a high performance continuous variable transmission which became the basis of the "Multi-tronic" transmission used in the automobile industry. During the late 1970s parallel and right angle shift gear reducers with universal mounting arrangements were designed and developed by PIV Antrieb. They are known by the term "POSIRED". In about 1991, PIV Antrieb developed a series of helical and bevel helical gears for use in its PIV gearboxes which it called the POSIRED 2 series. Promotion of the POSIRED 2 series was carried out, in part, by the publication of a catalogue whose first edition was published in March 1995. One feature of the POSIRED 2 series was that the gearbox housings were modular. PIV Antrieb was placed in insolvency administration on 1 March 2001. It is not a party to the present proceedings. According to evidence given by Mr Patel, Elecon Engineering was formed in India in 1951 by Mr Patel's father and a business partner. Elecon Engineering was listed as a public company in India on 28 November 1961. The name "Elecon" was a derivative of the core business of manufacturing elevators and conveyors. A major part of its business involves the manufacture of gears through its Gear Division. From the time Mr Patel joined Elecon Engineering on 1 July 1983 until 2005 he was, apart from his other responsibilities, the chief executive officer of the Gear Division of Elecon Engineering. He gave evidence that Elecon Engineering commenced to manufacture helical and bevel helical gear units during the 1970s pursuant to a collaboration agreement with another German company. Mr Patel came to the view that it would be desirable that Elecon Engineering had the capacity to manufacture modular gearboxes which he thought to have a number of advantages over gearboxes with fabricated housings. In his assessment, development of the technology by Elecon Engineering itself would take two to three years and would require a team of engineers. Elecon Engineering had some experience in collaborating with foreign technology owners and decided to investigate that possibility. In the mid 1990s, Mr Patel met a representative of PIV Antrieb at a trade fair in Germany. Discussions followed which in due course resulted in a contract between Elecon Engineering and PIV Antrieb ("the know-how contract"). This contract required approval by the Reserve Bank of India. Its terms are at the heart of the issues which arise for consideration in the present proceedings. The know-how contract was written in English and was expressed to be governed by Indian law. It was signed on 26 March 1998 by Mr P Wendland who was then the managing director of PIV Antrieb and by Mr Patel's father who was then the chairman of Elecon Engineering and managing director jointly with Mr Patel. The know-how contract provided for a licence to Elecon Engineering to use technical know-how and information, to be supplied by PIV Antrieb, in the manufacture and sale of POSIRED 2 series gearboxes, extruder drives, crane drives and mixer drives. Elecon Engineering was required to pay 1,000,000 Deutsche Marks in three instalments (one-third after the agreement was approved by the Reserve Bank of India, one-third against dispatch of technical documentation and one-third on the commencement of commercial production or 18 months after receipt of the technical documentation, whichever was earlier). The contract required PIV Antrieb to supply information, drawings, plans and other technical documents described in an annexure to the contract. All were to be treated as secret both during and after the life of the contract. The contract was to last for seven years and was capable of extension for a further period of three years by mutual consent if approved by the Indian Government. Elecon Engineering was to pay a royalty of 4% of the ex-factory selling price of all contract products and parts thereof manufactured and sold or leased or used commercially by the licensee during the life of the contract. It was to mark all articles made under licence with serial numbers and to affix to such articles a plaque which was inscribed "Licence P.I.V.-Reimers". Specific provisions were made for termination of the contract, to which it will be necessary to return. Over the next two years there were disagreements between PIV Antrieb and Elecon Engineering about the extent of compliance by PIV Antrieb with its obligation to provide information. Although about 12,500 "documents" were provided, mostly in the form of electronic files, Elecon Engineering was not satisfied and withheld the second payment due under the contract. Part of the difficulty arose from the fact that PIV Antrieb had not drafted all the drawings and plans which would be necessary to manufacture the whole POSIRED 2 range. Accordingly it was provided in the contract that "Drawings which are not available yet will be designed and sent on licensee's request". Efforts to resolve the disagreement about the provision of documents, in order to release the payments which Elecon Engineering had withheld, led to two meetings in Bad Homburg in Germany. Each meeting resulted in a "Confidential Agreement". In my view those agreements, having regard to their terms which will be discussed in due course, operated to modify the provisions of the know-how contract with respect to the provision of information and the responsibility of PIV Antrieb and Elecon Engineering respectively for the production of technical drawings. The first meeting was held on 13 April 2000. It recorded a division of responsibility for the production of drawings which varied the original understanding. Broadly speaking, it required that PIV Antrieb would produce any necessary drawings to respond to its own orders and provide them without charge to Elecon Engineering, and Elecon Engineering would do any necessary detailed drawings with its own staff for "projects coming up in India" and provide them to PIV Antrieb for checking and any necessary correction. The second meeting occurred on 7, 8, 9 and 10 August 2000. It recorded a detailed resolution of outstanding issues and, generally, an acceptance by Elecon Engineering that all documents available at that date had been received. This agreement finally resulted in an undertaking by Elecon Engineering to pay the balance of the amount outstanding under the know-how contract. Although there was some dispute in the proceedings about whether the whole of the lump sum payment due under the contract was in fact ultimately remitted by Elecon Engineering to PIV Antrieb it is not necessary, for the purpose of the present proceedings, for that issue to be resolved. PIV Antrieb encountered financial difficulties. By a court order made by the Bankruptcy Court in Bad Homburg dated 28 February 2001, PIV Antrieb was placed in "insolvency proceedings" effective from 1 March 2001 and Dr Wellensiek of Wellensiek Lawyers was appointed the insolvency administrator. Dr Wellensiek wrote to Elecon Engineering on 12 March 2001 to advise it of the insolvency proceedings and his appointment as insolvency administrator, although Elecon Engineering obviously had some knowledge of developments because it wrote to Dr Wellensiek on 30 January 2001 making a number of representations and claims. Dr Wellensiek's letter of 12 March 2001 made it clear that any claims which had been lodged prior to the formal institution of the insolvency proceedings on 1 March 2001 were ineffective and would need to be resubmitted. It will be necessary, in due course, to say a little more about the letter of 30 January 2001. It appeared to foreshadow termination of the know-how contract but it became clear that it was not treated by the parties as effective notice of termination of the contract. It appears from the evidence that, as part of his administration of the business and assets of PIV Antrieb, Dr Wellensiek was a party to plans and arrangements to transfer the assets, but not existing contractual rights and obligations, to a new company which in due course became known by the name of the first applicant. Initially, a contract was executed on 25 October 2001 (to take effect on 1 November 2001) between Dr Wellensiek as insolvency administrator of PIV Antrieb and a company then known as Einhunderteinste Vermögensverwaltungsgesellschaft mbH Frankfurt ("Einhunderteinste"). Mr Kissel signed the asset sale agreement on behalf of the purchaser. Then, on 31 October 2001, employment of all of the staff of PIV Antrieb was terminated and on 1 November 2001 a substantial number of those staff, including the whole design division and senior management such as Mr Kissel, became employed by Einhunderteinste. On the same day, Einhunderteinste was purchased by Brevini Italy. Later, Einhunderteinste changed its name to that now used by PIV Drives. On 28 November 2001, Elecon Engineering wrote to PIV Antrieb asking for information about its "present position" and whether it had been taken over so that Elecon Engineering could "take necessary steps" under the know-how contract. On 14 January 2002, Mr Kissel wrote on behalf of PIV Drives to Elecon Engineering informing it that the business activities of PIV Antrieb had been transferred to PIV Drives with effect from 1 November 2001. The letter appeared to contain an offer that PIV Drives become a party to the know-how contract although with altered arrangements for termination. There was some suggestion in Mr Kissel's evidence that this letter did not refer to the know-how contract but to an agency agreement. It is not necessary to resolve that uncertainty. The significance of this communication was that it prompted a letter from Elecon Engineering to PIV Antrieb dated 25 March 2002. That letter purported to terminate the know-how contract with effect from 1 November 2001. Finally, on 22 May 2002, Dr Wellensiek wrote to Elecon Engineering also giving notice of termination of the know-how contract "with immediate effect". He asserted that "the know-how made available to you under the contract may no longer be used by you". Elecon Engineering continued to use the know-how and the technical information which had been provided to it by PIV Antrieb and to manufacture and sell gearboxes which bore the mark PIV. In May and July 2004 and February 2005 there were exchanges of correspondence between attorneys in India representing PIV Antrieb and Elecon Engineering respectively about the consequences of termination of the know-how contract. The representative of PIV Antrieb, who claimed to be instructed by its managing director, Mr Wendland (although by this time PIV Antrieb had no staff and was still under the direct control of the insolvency administrator), sought an end to the use, by Elecon Engineering, of the know-how and technical information earlier provided to it. The representative of Elecon Engineering claimed various breaches of the know-how agreement and claimed compensation. In his letter of July 2004, Elecon Engineering's representative claimed, apparently for the first time, and somewhat confusingly having regard to other aspects of the letter, that Elecon Engineering had retained the right to continue using the technical information which had been transmitted by PIV Antrieb and to manufacture gearboxes using that information. Although the letters make no reference to it things had, at the same time, come to a head in Australia. In about April 2004, a joint venture between Barclay Mowlem Construction Pty Limited and Roberts & Schaefer Pty Limited ("the Barclay Mowlem joint venture") was awarded a contract to design and construct a coal handling and preparation plant to be located at the Blackwater coal mine in central Queensland. Elecon Australia won a tender to supply conveyor drives to the joint venture. Brevini Australia had tendered also for this contract but was unsuccessful. On or about 17 September 2004, upon becoming aware that Elecon Australia's tender had been accepted, Brevini Australia made some suggestion to representatives of the Barclay Mowlem joint venture that Elecon Australia did not have the right in Australia to sell the gear units which it proposed to provide to the joint venture. On 30 September 2004, Elecon Australia commenced the proceeding in NSD 1423 of 2004 against Brevini Australia in this Court alleging that the latter had engaged in misleading and/or deceptive conduct and seeking relief, including an interlocutory restraint upon Brevini Australia from making any representation that Elecon Australia had no right to sell the gear units in question and from interfering in any way in the performance by it of its arrangements with the joint venture. The issues which arose for immediate consideration in those proceedings were resolved temporarily by an undertaking from Brevini Australia which satisfied the claim for interlocutory relief. Shortly thereafter, on 23 December 2004, PIV Drives and Brevini Australia ("the Brevini interests") commenced the proceeding in NSD 1955 of 2004 against Elecon Australia, Elecon Engineering and Mr Patel ("the Elecon interests"). Those proceedings alleged breach by Elecon Australia and Elecon Engineering of the Copyright Act 1968 (Cth), the Trade Marks Act 1995 (Cth), the Trade Practices Act 1974 (Cth), asserted that they had passed off their products as the products of PIV Drives which were offered for sale in Australia by Brevini Australia and alleged that Mr Patel was liable as an accessory for the purposes of the trade practices and the passing off claims. Later amendments added allegations that Elecon Australia and Elecon Engineering breached a confidence, by which they were bound, by continuing to use the know-how and technical information transmitted to Elecon Engineering by PIV Antrieb. It will be convenient, hereafter, to refer to the latter proceedings as the main proceedings and the earlier proceedings as the initial proceedings. For all practical purposes the proceedings have been heard, and may be resolved, together. Apart from consideration of the individual claims the central issue upon which, for the most part, those claims and the defences to them rest concerns the circumstances of the termination of the know-how agreement and the extent to which, if at all, Elecon Engineering continued, as its representative asserted in July 2004, to have an ongoing right to use the know-how and technical information which had been transmitted to it by PIV Antrieb. It was accepted by the Brevini interests that if such a right existed it was a good answer to all the claims which they had made and rendered their defence to the initial proceedings unavailing. On the other hand, although the Elecon interests relied primarily upon the existence of a continuing right of manufacture and sale they erected a series of alternative defences to individual claims in the main proceedings. An assessment of the parties' positions must commence, therefore, with an examination of the contractual arrangements between PIV Antrieb and Elecon Engineering. In particular, it will be necessary to reach a conclusion about the legal foundation for termination of the know-how contract, and the rights and obligations which ensued as a result. When that has been done the individual causes of action may be examined. The first arises from the fact that the contract was declared to be subject to the law of India. The question which arises is whether there were any terms in the contract which bore a special meaning under Indian law and, otherwise, how Indian law would regard the contractual obligations with which the present case is concerned. A second issue concerns whether Elecon Engineering had any right to sell gearboxes in Australia. The third issue concerns the rights of the parties to terminate the contract and, on the facts of the present case, when termination of the contract was effected, by whom and for what reason. Arising from those conclusions will be further conclusions concerning the rights and obligations of the parties upon termination of the contract. There are also a series of subsidiary issues which require attention. Mr Vahanvati provided two expert reports. The second report responded to questions put to him as a result of an expert report by Mr Chetan Sharma, also a senior legal practitioner. Mr Sharma's report was eventually not read or relied upon by the Brevini interests and I need give it no further attention. As evidence was given in the proceedings by an expert in Indian law, it is desirable that I should distil the principles which are to be applied to an assessment of evidence of that kind. Evidence of the content of foreign law is admissible but opinion about how the foreign law would apply to the facts of the case in question is not. I propose to apply these principles to a consideration of Mr Vahanvati's evidence, which was virtually unchallenged. During the hearing, I disallowed certain aspects of his evidence where he responded to an invitation by solicitors acting for the Elecon interests to express a view about the application of Indian law, as he had identified it, to the facts of the present case. That ruling implied no criticism of Mr Vahanvati. The questions he was asked sought to elicit a statement of opinion which, under Australian law, was clearly inadmissible. The responsibility for that lay with those who formulated the questions. A number of the matters with which Mr Vahanvati was asked to deal receded into the background as the proceedings progressed or became otherwise irrelevant. I do not propose to say anything about those issues. Other matters will require specific mention when I deal with particular aspects of the know-how contract. However, some general points may conveniently be made at this stage. Indian law closely follows English law. One of the leading texts on Indian contract law is Pollock & Mulla --- Indian Contract and Specific Relief Acts ("Mulla") which was first published in 1905 and is now in its 13 th edition (Padia RG (ed), 2006, LexisNexis Butterworths). Mr Vahanvati made frequent reference to Mulla as an authoritative exposition of the principles of Indian contract law. In his discussion of the subject it became clear, as it is also from Mulla, that the law appropriated from England must be read subject to any relevant Indian statutory provision, particularly the Indian Contract Act 1872 which, although not exhaustive, has primary force where applicable and also ss 91 and 92 of the Indian Evidence Act 1872 . Two matters arising from this discussion might be mentioned at once. There was considerable debate in the proceedings about the term "major default", whether a major default had been committed by PIV Antrieb, either directly or through the insolvency administrator Dr Wellensiek, and whether a major default by PIV Antrieb entitled Elecon Engineering to terminate the know-how contract. Another area of debate concerned beliefs and intentions, on the part of PIV Antrieb and Elecon Engineering respectively, at the time the contract was made, about its future operation. Mr Vahanvati's evidence was that the concept of default is well known in India but that the Indian Contract Act does not use the term major default. The general law requires a construction of the term in accordance with natural meaning. He referred to Mulla at page 281. Contracts ought to be construed according to the primary and natural meaning of the language chosen by the parties, and grammatical or natural or usual meaning given to the words used in the contract. (Footnotes omitted. His opinion was that a major default under Indian law would be something more than "a mere failure to perform some part of the contract, which would not result in the complete non-performance of the contract". Effect of refusal of party to perform promise wholly. The question in every case is whether the conduct of the party in default is such as to amount to an abandonment of the contract or a refusal to perform it, or, having regard to the circumstances and the nature of the transaction, to 'evince an intention not to be bound by the contract'. In other words, a party renunciating must 'evince an intention' not to go on with the contract, which may be by words or by conduct, provided it is clearly made. The test, whether the intention is sufficiently evinced by conduct is whether the party renunciating has acted in such a way as to lead a reasonable person to the conclusion that he does not intend to fulfill [sic] his part of the contract. One view is that the material intention is not that with which the contract is broken, but that with which it was made. Parties can undoubtedly make any term essential or non-essential; they can provide that failure to perform it shall discharge the other party from any further duty of performance on his part, or shall not so discharge him, but shall only entitle him to compensation in damages for the particular breach. Omission to make the intention clear in this respect is the cause of the difficulties, often considerable, which the courts have to overcome in this class of cases. The other view is that both intentions are material, first that with which the contract was made, for unless there is a breach of a vital term, there can be no repudiation under this section; secondly, that with which the contract is broken, for unless the defendant is refusing to perform the said vital term, there can be no repudiation. It must be such that it results in making it impossible for the other party 'to go on'. If a party is in major default, the other party under Section 39 of the Contract Act is entitled to terminate or put an end to the contract. In other words, the words 'major default' would be failure to perform an essential term or a vital term of the contract. It must be such that it results in making it impossible for the contract 'to go on'. I disallowed, as evidence, statements of opinion by Mr Vahanvati about whether the conduct of the insolvency administrator, Dr Wellensiek, who transferred assets from PIV Antrieb to PIV Drives, amounted to major default. I did so having regard to the principles already identified. The opinion sought and expressed did not relate to the content of Indian law but rather to the application of Indian law to the facts of the present case. The second aspect of Mr Vahanvati's evidence, to which I earlier referred, concerned evidence of belief or intent at the formation of a contract. The necessity to take evidence from witnesses from overseas with limited time in Australia resulted in little attention being given, in the ordinary way, to the resolution of objections to affidavit evidence before oral evidence was taken. However, it was understood that the adoption of such procedures was without prejudice to the potential necessity to apply a stricter view at the time that the evidence was being assessed. It has been said that "[t]he burden of proof rests on the party asserting that foreign law differs from domestic law" (see Heydon JD, Cross on Evidence (7 th Australian edition, LexisNexis Butterworths, 2004), p 1358). Written statements of witnesses, no doubt prepared by lawyers, were received as evidence in chief. Those statements contained a deal of inadmissible material that was received without objection. The uncritical reception of inadmissible evidence, often in written form and prepared in advance of the hearing is to be strongly discouraged. It tends to distract attention from the real issues, give rise to pointless cross-examination and cause problems on appeal where it may be difficult to know the extent to which the inadmissible material influenced the judgment at first instance. If the words are clear, there is very little the court can do about it. This precludes the parties from giving direct evidence to show that their real intention was different from that reflected in the document. (Footnotes omitted. Evidence of terms of contracts, grants and other dispositions of property reduced to form of document. --- When the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained. Exclusion of evidence of oral agreement. --- When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. The limitations imposed by Indian law, including ss 91 and 92 of the Indian Evidence Act, were no doubt infringed in the present case. Despite the provisional admission of evidence which infringed those limitations that evidence must now be regarded as irrelevant, as it would be under Australian law. I do not propose to explore the subjective beliefs and understanding of the parties at the time the know-how contract was made, or to have regard to post-contractual conduct as an aid to its construction, except where it is clear that the contract itself was modified or supplanted by later written agreements. as well as POSIRED 2 related single screw extruder drives 265/. crane drives and mixer drives. The licensee shall not without the consent of the licensor bring the licence into the assets of a company. 264/. as well as POSIRED 2 related single screw extruder drives according to catalogue no. 265/. crane drives and mixer drives. This aforementioned know-how has already been the subject of industrial exploitation by the licensor, the licensor having manufactured on a large scale helical gear units and bevel helical gear units system POSIRED 2 for industrial application. Drawings which are not available yet will be designed and sent on licensees request. The technical information prepared in the form of computer software/CAD would be preferable to the licensee. Apart from the technical documents listed in the technical field of application, the licensor, if need be, shall at the expense of the licensee also furnish one set of special tools and information/documents regarding assembly and testing equipments required for the production of the articles, which may not be available in the commercial market. The travelling expenses, board and lodging and redemption of the despatched personnel shall be undertaken by the licensee. Costs shall be reimbursed immediately on receipt of the bill. The extent of the instruction by the licensor will be defined beforehand. All expenses incurred for travelling board and lodging, insurance and other costs, shall be borne by the licensee. The licensee shall take all proper steps to keep them secret. In particular, he shall impose this obligation on his employees and subcontractors and forbid any unauthorised use. The licensor has the right to check. The licensor shall provide all necessary advice and information concerning his own experience in accordance with the provisions of clause 7 and 8. In this case the licensor's claim for payment according to clause 10 shall be preserved. The licensee declares that he knows the subject matter of the licence and he shall undertake its industrial realisation. If he fails to do so within a period of 18 months after the transfer of drawings and documents, the licensor shall be entitled to terminate the contract. In case of termination in consequence of aforementioned reason the entire lumpsum is to be paid. --- Reimers'. Some reference was made to rights of termination of the contract by PIV Antrieb for particular kinds of default by Elecon Engineering in clauses already extracted --- cl 4.2 and cl 5.2. Those provisions, which were capable of activation in the event that Elecon Engineering failed to commence manufacturing in a timely way or to the required standard, involved forfeiture of the whole of the licence fee. Apart from those special provisions, cl 16 made further general provisions for termination. Clause 16 deserves attention in its own right and will be addressed in due course. It is clear from the provisions I have set out that there was to be a fulsome transfer of information, documents and technical know-how from PIV Antrieb to Elecon Engineering, although a comprehensive set of plans and drawings to manufacture the whole POSIRED 2 range had not by then been prepared. The products which were the subject of the contract were in part identified by reference to particular catalogues --- 264/. and 265/.. In my view it is clear that the intellectual property in the material provided by PIV Antrieb to Elecon Engineering remained with PIV Antrieb, subject to one contention arising from the operation of cl 16. Subject to later consideration of that issue, there can be no real argument that Elecon Engineering's entitlement to use the intellectual property and confidential information provided to it depended upon rights which it was given by the provisions to which I have referred and was subject to the limitations already identified. I do not accept this contention. The licensee shall not manufacture in any other territories. The evidence relied upon fell into three broad categories. First, they pointed to material exchanged between the parties by way of proposals and drafts before the contract was signed. I have already indicated that I do not propose to have regard to subjective understandings of the parties at the time the know-how contract was made. The same principle, as further discussed hereunder, precludes reliance on pre-contractual negotiations. Secondly, they referred to the terms of an application to the Indian Government, after the contract was signed, which made no reference to the possibility of royalties being earned on exports. However, disclosure to the Indian Government in April 1998 that Elecon Engineering would pay royalties on domestic sales under the contract was not inconsistent with the possibility that, some years later, Elecon Engineering might turn its attention to export markets. Thirdly, they drew attention to an agency agreement made between PIV Antrieb and Renold Australia Pty Ltd ("Renold"), shortly after the contract was signed, giving Renold an exclusive agency to use technical information to sell some of the POSIRED 2 range (according to catalogue 264) in Australia. The agency agreement with Renold was admitted into evidence upon the basis that it could not be used to advance a construction of the know-how agreement (see s 136 of the Evidence Act 1995 (Cth)). The use sought to be made of it infringed that ruling. The Brevini interests argued that the two latter pieces of post-contractual conduct, one of which was under the exclusive and unilateral control of Elecon Engineering and the other of PIV Antrieb, had contractual significance. The most that can be said, even if the evidence was otherwise admissible or could be relied upon, is that it was consistent with the suggested construction. However, it was not probative of the conclusion advanced. There was no evidence that either form of post-contractual conduct came to the attention of the other party at the relevant time or gave effect to any mutual understanding. (Footnotes omitted. The true construction of an agreement must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. (Footnotes omitted. In India it was required to sell directly and not through an agent. Subject to those requirements, it had an exclusive right to manufacture (cl 1.2) and sell (cl 2) in India. Elecon Engineering was prohibited from exporting any gearboxes which it manufactured to Europe, South America and North America, whether directly or through an agent. They were the only restrictions imposed by the contract itself. The argument by the Brevini interests rendered the express prohibition on export to Europe and South and North America otiose and devoid of content, meaning and operation. Those were the only territorial rights and, more importantly, limitations agreed between the parties and imposed by the contract. There was no contractual limitation (apart from the seven year term of the contract) on Elecon Engineering selling in Australia gearboxes which it had manufactured in India or selling them through an agent as it subsequently did. There was no ambiguity in these provisions. Under Indian (and Australian) law it is not permissible to conjecture about the subjective intentions of the parties to construe cl 2 much less to pay regard to post contractual conduct. Such matters are irrelevant. Evidence about them is inadmissible. It follows that so much of the case of the Brevini interests, in either proceedings, as depends on the contention that Elecon Engineering had no right, during the currency of the know-how contract, to sell gearboxes in Australia, including through an agent, must be rejected. He shall give the licensee to rectify the defects within 90 days from the date of receipt of notice by the licensee. Failure on the part of the licensee to rectify the cause of defect within a period of 90 days shall entitle the licensor to terminate the contract. The agreement can be terminated by licensor or licensee upon any one of the two going into bankruptcy, liquidation or court receivership without any liability or claim on the other party for such an event. Licensor or licensee shall have the right of termination of agreement without any liability on account of change of ownership with a major change in management. (Emphasis added. Accordingly, it was argued, Elecon Engineering had a right to terminate the contract and continue to apply all the technical information and know-how it had received from PIV Antrieb indefinitely for its own benefit with no further payment of royalties, the contract being, apart from the reservation of this indefinite right, at an end. It was further argued that Elecon Engineering's letter of 25 March 2002, to which I referred earlier in this judgment, should be seen as having engaged that asserted right to continue to manufacture and sell indefinitely, using the know-how transferred under the contract. That right was said to have either been engaged directly under the terms of the letter of 25 March 2002 or by reason of the fact that a right to terminate for major default existed as at 1 November 200, even if Elecon Engineering had not known to take advantage of it. The latter part of the argument requires more detailed attention shortly. However, the basic premise on which it depends, namely that this part of cl 16 operated for the benefit of Elecon Engineering, is not in my view well founded. Although cl 16 generated a major part of the debate in the proceedings, in my view its terms and structure are clear. It may be seen as directed to a series of possibilities. First, the parties each had, subject to the later provisions of cl 16, a right to terminate the contract for cause. Next, if PIV Antrieb wished to terminate the contract it was required to give Elecon Engineering 90 days in which to remedy any deficiency being relied upon as a reason for termination. Failure to rectify the deficiency confirmed the right to terminate for the cause notified. Then, if the contract was terminated by PIV Antrieb by reason of major default by Elecon Engineering, Elecon Engineering would nevertheless retain the right (but not exclusively) to manufacture and (by inference) to sell gearboxes in India (and elsewhere) for the duration of the contract. Then, two specific provisions were made to accommodate circumstances in which either company went into liquidation or either company changed hands with the result that there was a major change in management. In either case the other party could declare the contract at an end and all rights and obligations on both sides were thereby terminated. The reason for the conclusion that the major default provision operated for the benefit of PIV Antrieb, but not for the benefit of Elecon Engineering, requires further elaboration. The meaning of the major default provision must be determined, in accordance with Mr Vahanvati's evidence, by reference to "the primary and natural meaning of the language chosen by the parties, and grammatical or natural or usual meaning given to the words in the contract". There are a number of matters, positive and negative, which point to the construction I favour. First, accepting that the concept of default, which is "well known in India", is synonymous with failure, there is nothing about that concept which, without more, makes it more likely to have been used in connection with a major failure by one party than the other. However, structurally, the provision follows immediately (and in my view logically) upon provisions referring to failure to rectify a notified defect. Those provisions, in turn, operated as a fetter upon PIV Antrieb's right to terminate for cause. Notwithstanding Mr Vahanvati's concentration upon breach of an essential or fundamental term of the contract, the Indian law he referred to equally accommodates a circumstance where Elecon Engineering failed to rectify a deficiency notified to it in accordance with the preceding provisions of cl 16. Mr Vahanvati himself equated default with failure under Indian law. He made it clear that the term major default is not one which has a special significance under Indian law. Insofar as his evidence sought to apply the content of Indian law identified by him to the particular terms of the know-how contract and to provide an opinion about the construction of that contract, his evidence was inadmissible under the principles I identified earlier. I am satisfied that the appropriate construction of the contract is that the term major default, read in context, and in accordance with the natural meaning of the words used, refers to a default notified under cl 16 which remained unrectified, thereby justifying termination by PIV Antrieb. Read that way, the protections afforded to Elecon Engineering in the event of termination for major default would accompany any termination for cause by PIV Antrieb under cl 16. For reasons explained below, that does not appear to me inconsistent with a sensible commercial operation of the know-how contract. Secondly, the phrase, in the major default provision, "terminated on the part of licensor" must be read consistently with the phrase, in the previous paragraph, "failure on the part of the licensee". There "on the part of" clearly meant "by". Similarly, a reference to termination "on the part of licensor" should, in my view, be construed as meaning termination by the licensor. Such a provision could easily have been included, if it was intended. I was concerned at one stage about the commercial rationale for a provision which would operate in this way to preserve the rights of a party (the licensee) which was in major default and allow it "to continue manufacturing of the articles without reservations", even if not exclusively. I was also concerned whether such rights would be rights in perpetuity or rights for the balance of the contract period. I have come to the view that, subject to consideration of the period for which it would endure, there is nothing commercially unrealistic about a term which would preserve a non-exclusive right to manufacture and sell for some period at least. For reasons which I have explained below, any right to continue to manufacture under the major default provision of cl 16 would, whatever the proper construction of that provision, have endured only for the balance of the original contract period of seven years. The major default provision, as I have construed it, might have been invoked after, and even though, the whole of the license fee had been paid. The overriding requirement to pay the licence fee was emphasised by cll 4.2 and 5.2. The engagement of those provisions would have rendered Elecon Engineering liable to pay the whole of the sum of DM 1,000,000 due under cl 10 even though it had not (under cl 4.2) succeeded within 18 months in undertaking the "industrial realisation" of the subject matter of the licence or (under cl 5.2) manufactured to the requisite quality. Elecon Engineering might also have expended a great deal of further money, in addition to payment of the whole of the licence fee, in preparing to manufacture. One can readily see that it would be reasonable for Elecon Engineering to have an opportunity to secure a return on the large investment it may have made before defaulting. The relevant part of cl 16, as I have construed it, would provide it with an opportunity to manufacture and sell the product for the balance of the contract period, although it would lose its exclusive right in India to do so. However, there is no basis to conclude that a defaulting party would retain any such rights beyond the stipulated period of the original contract. It is inconceivable that such a party would have been placed in a better position than if the contract had been fully performed by it in accordance with its terms, without default. Although I have found that the major default provision operated for the benefit of PIV Antrieb, a contrary conclusion would not have greatly assisted the Elecon interests. Even if I had accepted the argument that the major default provision allowed Elecon Engineering to terminate the contract, and that it was entitled to do so on the facts of the present case, I would not have found that any rights given to Elecon Engineering by cl 16, had it been engaged, to continue manufacturing "without reservations" would properly be seen as giving an indefinite right to do so. I would have regarded such a right as confined to the original term of the contract. The know-how contract only provided for the possibility of an extension of three years, but that possibility was subject to the agreement of both parties, apart from the necessity of approval by the Indian government. The only guarantee that Elecon Engineering had, in return for the payment of the contract price and whatever other investment it was required to make, was that it would enjoy a right of manufacture and sale for a period of seven years. The construction for which the Elecon interests contended was, in effect, that Elecon Engineering would gain a perpetual right to use the intellectual property of PIV Antrieb without paying a further fee and without paying any royalties. Where the contract intended ongoing rights or obligations beyond the contract period it said so expressly --- e.g. in cll 3 and 14 in relation to secrecy. To construe cl 16 as giving rights in perpetuity, which did not protect some pre-existing entitlement but created a new perpetual right, would in my view have yielded a result which was commercially unrealistic and not to be implied. The opposite implication would have been required. Mr Vahanvati did not deal, in his expert evidence, with the tests under Indian law for the implication of terms into a contract. ... Courts are required to imply a term to give efficacy to the contract, to prevent 'the enjoyment of the rights conferred by the contract (being) rendered nugatory, worthless, or, perhaps,...seriously undermined'. Whether a term will be implied is a question of law for the court. It will not be implied so as to contradict any express term. It ought not to be implied unless on considering the whole matter in a reasonable manner, it is clear that the parties have intended that there should be the suggested term. (Footnotes omitted. ...A term will not be implied if the contract is effective without it. The test is of necessity and not merely reasonableness. (Footnotes omitted. In my view, in the context of the know-how contract, it is so obvious that it goes without saying that any rights given to Elecon Engineering in the event that the contract was terminated for major default, even major default by PIV Antrieb, would not have been intended to endure beyond the term of the contract itself. The consequence of this subsidiary conclusion is that, even if cl 16 had borne the construction for which the Elecon interests contended, and all other conditions for the application of the clause had been met, any rights to continue using the subject matter of the licence granted by the know-how agreement would have expired on 26 March 2005. On the construction which I favour, Elecon Engineering did not obtain any rights at all as a result of the operation of this part of cl 16 because there is no suggestion of any kind that the contract was terminated by reason of major default by Elecon Engineering. I have not overlooked an argument to the effect that it would make more sense if Elecon Engineering had been given rights in response to a major default on the part of PIV Antrieb, rather than the reverse. However, the test is not whether the contract would operate more conveniently or more reasonably in that fashion but rather, doing the best possible with the actual language of the contract, what did the parties themselves put in their bargain. The question is not whether they could have provided for something else but whether they did so. In my view, cl 16 should be construed as I have explained. My conclusions about those matters are destructive, in various ways, of the major line of defence mounted in the main proceedings and of the foundation of the initial proceedings. It follows that Elecon Engineering, in 2002, lost its right to continue to use the subject matter of the licence granted by the know-how agreement. I shall, however, in deference to the possibility of some future challenge to my conclusions, go on to examine the various strands in the proposition that PIV Antrieb was in major default under the contract. As will be seen, in my view this contention, on whatever foundation it was put, does not survive analysis. There were various exchanges of correspondence between the parties about the issue of termination. Each party purported to terminate the contract during 2002. In order to put the matter into a satisfactory context it is necessary to trace the history of events in a little more detail than I referred to earlier. On 11 January 2001, PIV Antrieb filed for insolvency. The steps which were taken occurred under German law. There was no expert evidence given about the operation of German law but the position appears sufficiently straightforward that some conclusions may confidently be stated. The relevant court order was made on 28 February 2001. The formal period of liquidation commenced on 1 March 2001. KG --- filed for on 11/01/2001 --- have been instituted effective 01/03/2001 and the undersigned has been appointed insolvency administrator. It will not be necessary to resubmit the documentation in itself. I draw your attention to the fact that notice of claims assessment and determination results will only be given to those creditors whose claims were wholly or partially objected to. Payments for the purpose of reducing the Petitioner's liabilities shall not be made after the date at which proceedings are instituted. Any payments made notwithstanding this order and not contributing towards the pool of insolvency assets may be subject to further obligations as ordered by the insolvency administrator. (The Petitioner was PIV Antrieb. On 30 January 2001 Mr Patel's father, as chairman and managing director of Elecon Engineering, wrote two letters to Dr Wellensiek. One letter contained an offer to purchase assets of PIV Antrieb. The other letter complained about the non-provision of know-how concerning crane drives and mixer drives, and other matters, and claimed a refund of one-third of the licence fee of DM 1,000,000. P.I.V. going into bankruptcy/liquidation/court receivership as well as on account of change of ownership or management which may arise by virtue of liquidation of assets by M/s. P.I.V. Indeed, the Brevini interests did not initially rely expressly on termination of the know-how contract at all and did not, therefore, plead the date of its termination. In an amended statement of claim, filed shortly before the proceedings were heard, an allegation of breach of confidence was added. On this occasion it was pleaded that the know-how agreement was terminated by a letter from Dr Wellensiek dated 22 May 2002, to which I referred earlier in the judgment. On 11 December 2008 I gave leave to further amend the statement of claim. The further amended statement of claim pleaded that the know-how agreement was terminated by Elecon Engineering's letter of 25 March 2002 to Dr Wellensiek or, alternatively, by Dr Wellensiek's letter of 22 May 2002. However, I refused leave to plead, also in the alternative, that the know-how contract was terminated by the letter from Mr Patel's father dated 30 January 2001. I did so because the proceedings were in the last of eight days of evidence and because I could not be sure that evidence might not have been available to the effect that the letter would be ineffective under German insolvency law to operate in advance of the formal insolvency proceedings. The last in a series of defences filed by the Elecon interests admitted that the know-how agreement was terminated on 25 March 2002. I have come to the same view, but it is important to explain why, as the parties were not agreed on the factual or legal foundation for their individual conclusions. Some further factual detail is also necessary to explain the context in which the letters of 25 March 2002 and 22 May 2002 were written. PIV Antrieb was not formally in insolvency proceedings at the date of the letter of 30 January 2001. Elecon Engineering did not, when advised by Dr Wellensiek's letter of 12 March 2001 that insolvency proceedings had been commenced, give any notice of termination but, rather, treated the know-how agreement as remaining on foot. That is how matters remained for many months. As earlier described in an introductory way, by a contract dated 25 October 2001, which took effect on 1 November 2001, Dr Wellensiek sold the assets of PIV Antrieb, not including the benefits or obligations of existing contracts, to the company which later became known as PIV Drives. On the same day, 1 November 2001, the purchasing company was itself acquired by Brevini Italy. At the same time, PIV Antrieb ceased, on 31 October 2001, to employ any staff and their contracts of employment with it came to an end. A substantial number commenced employment with the purchasing company on 1 November 2001. Apart from assets and stock physically on the premises of PIV Antrieb at the date of transfer there were transferred also: all the documents available on the due date that have a necessary relationship with the business enterprise of the debtor, in particular documents in connection with the production program, the manufacturing process, drawings, receipts, working instructions, regulations related to operations, lists of clients and suppliers, brochures, personnel data and personnel documentation in relation to the employees. Not counted under company documentation are papers related to company law or documentation that relates to previous owners of the company or to the insolvency procedure. The relevant parts of the asset sale agreement which related to intellectual property in the design and manufacturing process for the gearboxes were contained in the following two provisions: all rights to inventions and technical experience (technical know-how), industrial secrets, processes, formulas and other intangible assets that do not fall under protective commercial property rights as well as all embodiments of such assets, such as for instance written descriptions, sample drawings, plans and so on, and in addition to these, all usufructuary rights and similar rights allied to them. all rights to commercial experience (commercial know-how), business secrets and administrative and marketing processes, as well as all embodiments of such assets, such as for instance documentation about the administrative and marketing organization, documentation about clients and suppliers, as well as correspondence and other commercial documentation. No party called evidence about the content of German law on this issue and I was left to deal with it as best I could having regard to Australian law. I will deal with it when I discuss particular causes of action. It is clear that the transfer of the intellectual property, and any rights and interests in it, was subject to the rights which Elecon Engineering had under the know-how contract. Antrieb Werner Reimers GmbH & Co. Elecon Engineering Co. Ltd., India have entered into a Know how Contract with you on 26 th March, 1998 for transfer of technology for the licensed product concerning design, manufacturing and sales of helical gear units and bevel helical gear unit system POSIRED 2 according to Catalogue Nos. 264 as well as POSIRED 2 related single screw extruder drives 265/ crane drives and mixer drives. As per the agreed terms, we have fully paid the technical know how fees of DM 1.00 Million. Antrieb Werner Reimers GmbH & Co. KG has now been taken over by an Italian Company. In terms of Clause 16 of the Contract, we would like to know the present position of the Company, as also whether the Company has been taken over by any other company or persons and if yes, complete details of the acquirer so as to enable us to take necessary steps, in terms of the Knowhow Contract. The letter is confusing for more than one reason. KG, Bad Homburg v.d.H. KG, was transferred with effect of 01.11.2001 to a new society. The new society's name is PIV Drives GmbH. In his oral evidence Mr Kissel said the letter did not refer to the know-how contract but to an agency agreement of 28 October 1998. The agency agreement to which he said the letter referred is not in evidence. The confusion is ultimately not important. The letter was not countersigned by Elecon Engineering. The offer it contained, whatever it was, was not accepted. The letter of 14 January 2002 only has any significance now as an element in the chain of events. It provoked a response dated 25 March 2002 which the parties are prima facie agreed had the effect of terminating the know-how contract. KG. with effect from 01.11.2001. Antrieb Werner Reimers GmbH & Co. KG. was transferred with effect from 01.11.2001 to a new society namely PIV Drives GmbH. Antrieb Werner Reimers GmbH & Co. KG, Germany (herein after referred to as PIV) and Elecon Engineering Co. Ltd., India (herein after referred to as Elecon) dated March 26, 1998, Clause 16 which refers to the circumstances leading to Termination of the Contract, states that the agreement can be terminated by the Licensor or Licensee upon any one of the two going into bankruptcy, liquidation or court receivership without any liability or claim on the other party for such an event. The Licensor or Licensee shall have a right of termination of agreement without any liability, on account of change of ownership with a major change in management. We would like to know when they would like to visit us in India. While we are still open to have further discussion as to the continuation of business, we hereby would like to convey that in view of the information we have on the status of P.I.V. Antrieb Werner Reimers GmbH & Co. KG, Germany, this may be treated as a Notice of Termination of the said Know How Contract and that Elecon Engineering Co. Ltd., Gujarat, India be considered as absolved from any obligations under the said Contract with effect from the date of transfer of business and/or change of ownership with a major change in management . (Emphasis added. In my view this letter did not, in terms, invoke a right of termination on account of bankruptcy, liquidation or court receivership, although there is no doubt that the objective facts would have justified such a course. It appeared to purport to terminate the know-how contract for the reason that PIV Antrieb's business had been transferred to PIV Drives or that there had been a change of ownership. Transfer of business was not a ground of termination under cl 16 of the know-how contract. Although PIV Antrieb had been subject to a major change in management upon the appointment of Dr Wellensiek as insolvency administrator it had not been affected by a change of ownership. Had the question, therefore, been simply whether this letter of 25 March 2002 was effective by reference to its own terms to terminate the know-how contract I would have concluded that it was not. KG and the undersigned was appointed insolvency administrator. KG and your Company. Article 16 of the contract provides for the fact that if one of the two contractual partners becomes insolvent each contractual partner has the right to terminate the contract. In accordance with this, the know-how made available to you under the contract may no longer be used by you. It is worth mentioning some later correspondence before returning to give further consideration to the legal effect of the letter of 25 March 2002. On 14 May 2004 an attorney purporting to represent PIV Antrieb, Mr Joshi, wrote to Elecon Engineering demanding cessation of the use by Elecon Engineering of intellectual property now belonging to PIV Drives and the know-how transmitted in accordance with the know-how contract. Two responses were made. In the first response dated 6 July 2004 Mr Shah, an attorney representing Elecon Engineering, asserted in a number of places in a lengthy letter that the contract had been terminated on account of the liquidation of PIV Antrieb. The letter also asserted, however, that Elecon Engineering had the benefit of the major default provisions. No reference was made to the letter dated 25 March 2002. Mr Shah wrote another letter on 22 February 2005. This letter appeared to rely, as notice of termination of the know-how contract, on the earlier letter from Mr Patel's father dated 30 January 2001. Mr Shah sought compensation to remedy a series of alleged defaults under the contract. None of the three letters dated 14 May 2004, 6 July 2004 or 22 February 2005 can have any bearing on the matters which require decision in the present proceedings except as an indication that a demand was made in 2004, as it was by Dr Wellensiek in his letter of 22 May 2002, that Elecon Engineering cease using the technical information and know-how, and that Elecon Engineering asserted a right to continue to do so. The Elecon interests claimed that the letter was legally effective to terminate the know-how contract by reason of Dr Wellensiek's conduct in "disabling" PIV Antrieb from further performance of its obligations under the contract. The submission was bound up with the contention that Dr Wellensiek's actions, taken with other matters, represented a major default to which Elecon Engineering had the right to respond under cl 16 of the contract. I have already indicated that in my view Elecon Engineering did not have such a right. However, it clearly had a right to terminate for cause under the opening paragraph of cl 16. It also had a right to terminate on account of the insolvency of PIV Antrieb. It will be necessary to examine, therefore, whether the letter of 25 March 2002 was effective to do so for either reason even though it did not assert a right of that kind. It will be necessary, in that connection, to give some attention to whether Dr Wellensiek's actions may be fairly described as anticipatory breach of the know-how contract, even if the time for performance had not arisen and to also consider whether the letter of 25 March 2002, which clearly intended to terminate the contract, was effective to do so on the ground of insolvency proceedings although it did not, in its terms, rely upon that ground. (References omitted. That total disability must be proved 'in fact and not in supposition' --- per Devlin J in Citati [1957] 2 QB at p 450. A builder terminated a building contract relying erroneously on a provision in the contract conditions (cl 20) which had no application to the circumstances. 20 of the conditions, to which the letter refers, contains nothing which could justify the cancellation of the contract. It has not been suggested in argument that any of the events mentioned in cl. 20 actually occurred. If, however, a right to rescind at common law had accrued to the builder on 31 st July, the letter of that date will operate as an effective rescission, leaving the builder with a right to recover damages for loss of the contract. Effect of refusal of party to perform promise wholly. --- When a party to a contract has refused to perform, or disabled himself from performing, his promise in its entirety, the promisee may put an end to the contract, unless he has signified, by words or conduct, his acquiescence in its continuance. This is the right to the maintenance of the contractual relation right up to that time, as well as to the performance of the contract when due. A contract is a contract from the time it is made, and not from the time performance is due. The repudiation of the obligations under the contract before the time for performance is due, therefore entitles the other party to treat the contract at an end. If, before the time for performance arrives, a party refuses to perform it in its entirety or disables himself from performing it in its entirety, this constitutes 'anticipatory breach' of the contract. Though the term 'anticipatory breach' has been used, it is in fact a breach in the present repudiation. (Footnotes omitted. He may accept that repudiation and sue for damages for breach of contract, whether or not the time for performance has come; or he may, if he chooses, disregard or refuse to accept it and then the contract remains in full effect. Anticipatory breach was not devised as a whip to be used for the chastisement of deliberate lawbreakers, but from which the shiftless, the dilatory or the unfortunate are to be spared. Anticipatory breach means simply that a party is in breach from the moment his actual breach becomes inevitable. It is not confined to any particular class of breach, deliberate or blameworthy or otherwise. (Footnotes omitted. A contract is not necessarily broken by the mere notice of intention to break the contract, or by repudiation. There must be two parties to end the contract. The words 'may put an end to the contract' have been held to make the contract 'voidable' at the option of the promisee. (Footnotes omitted. Since the repudiatory breach makes the contract voidable, the innocent party can rescind the contract, and the rescission must, under s 66 of the [ Indian Contract Act ], be communicated in the same manner and be subject to the same rules as communication of proposal. (Footnotes omitted. Communication, acceptance and revocation of proposals. --- The communication of proposals, the acceptance of proposals, and the revocation of proposals and acceptances, respectively, are deemed to be made by any act or omission of the party proposing, accepting or revoking, by which he intends to communicate such proposal, acceptance or revocation, or which has the effect of communicating it. (Emphasis added. Mode of communicating or revoking rescission of voidable contract. --- The rescission of a voidable contract may be communicated or revoked in the same manner, and subject to the same rules, as apply to the communication or revocation of a proposal. (Footnote omitted. They are judgments delivered by judges held in high repute. Although none of these decisions are binding upon the courts in India, they are authorities of high persuasive value to which the Indian courts may legitimately turn for assistance. Whether the rules laid down in any of these cases can be applied by the courts, must however, be judged in the context of the Indian laws and legal procedure and the practical realities of litigation in India. The decisions of Australian, Canadian and other Commonwealth courts and of the Courts of the United States of America, when relevant, will have persuasive authority and will be listened to in courts in India with attention and respect, as judgments of eminent men accustomed to expound the principles of jurisprudence similar to our own . (Footnotes omitted, emphasis added. Although there was an issue at one point in the proceedings about whether Elecon Engineering had paid all the instalments due under the know-how contract, I have not been asked to decide that question. In addition, it was not submitted by the Brevini interests that Elecon Engineering would be disentitled, by reason of any breach of its own, from relying upon the principle stated in Sunbird if it was otherwise applicable. I can proceed, therefore, on the legal premise that the letter of 25 March 2002 was effective to terminate the know-how contract if there were, in fact, circumstances at that date which justified termination, whether they were referred to or expressly engaged by the letter or not. It would make little difference if I was wrong in that conclusion because, in that event, Dr Wellensiek's letter of 22 May 2002 was certainly effective. The only consequence would be that the know-how contract came to an end about three months later. However, accepting that Elecon Engineering had a right to terminate the know-how contract as at 25 March 2002 and its letter of that date was effective to do so even if it misstated the ground upon which termination was available, or which was being relied upon, that does not mean that the contract would be cancelled with effect from 1 November 2001 or any other date prior to 25 March 2002. Under the common law, termination for breach, even if justified later as acceptance of repudiation or anticipatory breach, is not effective until notified (see also Mulla at page 1027). Was PIV Antrieb in breach? The Elecon interests argued that PIV Antrieb had, in two respects, provided grounds for Elecon Engineering to terminate the contract as at 25 March 2002. First, PIV Antrieb had failed to comply with its obligations to provide information and plans. Secondly, the conduct of Dr Wellensiek, in transferring the assets of PIV Antrieb to PIV Drives, coupled with the movement of staff out of the employ of PIV Antrieb, had the effect of disabling or incapacitating PIV Antrieb from the ability to perform the contract as and when required. Neither contention should be accepted. As a result, even if the contractual terms bore the meaning attributed to them by the Elecon interests I would not have found that the rights of Elecon Engineering under the know-how contract remained alive after it was terminated. As has been seen, cl 3 recorded that a full range of plans for the POSIRED 2 series was not available at the date of execution. Supply in the future of drawings not available at that date appeared to be conditional on a request from Elecon Engineering, presumably in response to an order for a gearbox within the range. Annexure 1 to the know-how contract (which was referred to in cl 3) was a list of matters to be supplied as part of the technology transfer. Vilas Balkrishna Kalyankar is the Chief Executive Officer of the Gear Division of Elecon Engineering. He was intimately involved in the administration of the know-how contract. He said in affidavit evidence that he visited the PIV Antrieb plant between 16 and 20 November 1998. While he was there he collected material identified in Annexure 1. He marked his copy of Annexure 1 to indicate the documents provided and the medium in which they were provided (usually electronic). Further documents were dispatched on a compact disk in about July 1999. Apparently the disk was damaged. Mr Kalyankar's oral evidence was that a new compact disk was sent on request. Evidently, however, disagreements continued and led to a meeting in Bad Homburg on 13 April 2000. That meeting, at which both Mr Patel and his father were present, resulted in an important agreement ("the April 2000 Agreement") which was signed by the managing director of PIV Antrieb and by Mr Patel's father, as chairman and managing director of Elecon Engineering. The April 2000 Agreement modified the effect of cl 3 of the know-how contract. It was made in a context where Elecon Engineering had withheld payment of some of the lump sum licence fee. The remaining drawings will be produced as soon as they become necessary for a project occurring at either ELECON or PIV. ELECON will not charge PIV for this design work. PIV then will carefully check the drawings and point out any corrections to ELECON. If the drawings are approved by the PIV design dpt., PIV will produce the drawing on their own papers/dxf file with the PIV stamp on and make it available to ELECON. This procedure applies only for projects coming up in India. PIV will produce all drawings necessary for their own projects and provide them to ELECON as and when they are ready according to the original agreement. Therefore project drawings for any bigger PLB units above size 50 do not exist and are not available. PIV then will check their drawings. PIV will not charge ELECON for the project drawings. ELECON does not charge PIV herefore. The understanding of the parties "at the beginning" was that "available documents" were to be provided at the outset. Remaining drawings were to be provided in the event of a "project". Consequent upon the April 2000 Agreement, Elecon Engineering would henceforth produce necessary drawings for projects in India and send them to PIV Antrieb for checking and reproduction, stamped as verified. PIV Antrieb would produce necessary drawings for its own projects and supply them also to Elecon Engineering. As to larger sizes, some "project drawings" had been made. Others did not exist and were not available. Available project drawings would be made available so that Elecon Engineering could produce detailed drawings for any project coming up. They would be checked by PIV Antrieb. No charge was to be made by either party pursuant to these arrangements. The April 2000 Agreement was clearly intended to operate as a variation of the know-how contract. That is clear from its title and from the substance of its terms. That is the effect it would have under Indian law (Mulla at page 1242) as well as Australian law. In my view it was clear from the date of the April 2000 Agreement that Elecon Engineering had no further right, if indeed it had such a right earlier, to demand production by PIV Antrieb of new drawings for projects of Elecon Engineering. Rather, it had an obligation to produce them for itself and provide them to PIV Antrieb for checking. There was no evidence that any such request was ever made. Notwithstanding the April 2000 Agreement, it appears that Elecon Engineering continued to withhold payment and disagreements continued. There was a further meeting, over a period of four days, in Bad Homburg from 7 to 10 August 2000. It resulted in a further agreement ("the August 2000 Agreement"). The meeting was attended by Mr Patel and Mr Kalyankar for Elecon Engineering. In preparation for the meeting Mr Kalyankar compiled a document listing drawings and parts, to the supply of which Elecon Engineering claimed to be entitled. That document, it appears, was an important element in detailed discussions which took place over a number of days. Kaljankar [sic], Asst. Kalyankar of ELECON and Mr. M. Karimi of PIV. It was signed by Mr Karimi for PIV Antrieb and Mr Kalyankar for Elecon Engineering, who were the two persons with primary responsibility for resolving matters at this level of detail. The August 2000 Agreement explicitly recorded that all drawings to which the know-how contract referred "existing at this date" or "available at this date" had been transferred and received. I am satisfied that the August 2000 Agreement should be regarded, by reference to its title, its terms and its substance, as a variation of the April 2000 Agreement and as a further variation of the know-how contract under Indian law. The April 2000 Agreement continued to operate, in accordance with its own terms, to regulate the rights and duties of the parties concerning future projects. Any issue concerning drawings in existence as at August 2000 had been resolved. There was oral evidence that after the August 2000 Agreement Elecon Engineering paid the amounts it had withheld against non-provision of drawings and technical documents. Notwithstanding the terms of the April 2000 and August 2000 Agreements the Elecon interests argued in the proceedings that PIV Antrieb had failed, as required, to supply a large number of drawings. It relied upon a list compiled by Mr Kalyankar as at 1 November 2001. I am satisfied that the claim has no substance for a number of reasons. First, it disregards the clear terms and effect of the April 2000 and August 2000 Agreements by which Elecon Engineering was bound. Secondly, it was established in cross-examination that the list was compiled by reference to a complete list of every part of every potential gearbox which was the subject of the licensing arrangement in the know-how contract, whether or not detailed drawings for such gearboxes had ever been produced or they had been ordered, manufactured or supplied. Thirdly, it was established in cross-examination that the list contained a good deal of duplication for the reason that many parts, identified by different numbers in the parts list as parts in different gearboxes, were nevertheless identical. In my view the list was misleading and reliance upon it was misconceived. No case has been made out of a generalised failure by PIV Antrieb to meet its obligations under the know-how contract. There were three such suggested failures. On 17 September 1999 Elecon Engineering sent a facsimile message to Mr Peter Janssen of PIV Antrieb who had been involved in the negotiation of the know-how contract and was closely connected with its implementation for PIV Antrieb. He gave evidence in the proceedings at the request of the Elecon interests. The facsimile requested drawings for five specified gearboxes. It was endorsed with a hand written note and apparently returned by facsimile in that form. The handwritten note said that the nominated gearboxes were not standard and not part of the know-how contract as standard items. It said, however, that the drawings would be prepared "especially for you" and the sales would be subject to royalty payments. Further detail had to be supplied by Elecon Engineering by way of "drawings of motors and couplings you are going to fit". The evidence is inconclusive about what, if anything, happened thereafter. It does not matter. This exchange could not have any further significance after the April 2000 and August 2000 Agreements and needs no further attention. The second alleged failure arose in September 2001. Mr Kalyankar sent an email to Mr Karimi saying Elecon Engineering had received orders for four sugar mill gearboxes and one cement mill gearbox. He identified suitable models and asked for drawings. This was clearly a matter where the April 2000 Agreement imposed the responsibility on Elecon Engineering to produce its own drawings and send them to PIV Antrieb for checking. There is no evidence that was ever done, in this or any other case. It appears, moreover, that contrary to the representations in the email to Mr Karimi, there were no actual orders at this time. Can you just repeat your question? Mr Kalyanka, the question I asked you was whether you have any recollection, sitting in the witness box now, of any orders that Elecon Engineering Co may have received for EP series gearboxes which Elecon Engineering could not satisfy, that is to say, prior to September 2001?---We were --- if you --- if I'm --- I'm trying to give a very brief answer. There was a possibility of the order. Is that the position, there were orders that you say you couldn't meet? Is that what you're saying?---No. Is that what your position is?---Yes. During that time there was a need of a 900kW gearbox for the cement mill and that gearbox was fitting in the size 71 and if I had to supply this gearbox in time --- because in time is very important because client cannot wait eternally so I should have all the drawings for this available with me. There were two ways, either I make the drawings and get it checked from PIV or I request PIV to make the drawings and give it to me. Both the things were not possible because I requested PIV that they should give me the drawing. They were not in a position to give me the drawing in time, and that was the reason I am saying the opportunity I could not utilise by going --- by using this EP series gearbox. The third contention relied upon alleged a general failure to supply various drawings between 2000 and 2001. The evidence relied upon to support the contention that the drawings in question had been brought into existence was given by Mr Janssen who disagreed with affidavit evidence given by Mr Karimi. Mr Karimi was intimately involved with the POSIRED 2 project. He identified a specific request for particular drawings on 7 November 2000 which he said were supplied on 9 November 2000. Otherwise, he said that most of the drawings produced by PIV Antrieb were for standard gearboxes of sizes 10 to 47. He said there were some drawings produced for gearbox sizes bigger than 47 but they were for customised gearboxes and not standard gearboxes. I understood from his oral evidence that customised gears were a departure from those identified in the catalogues, which in turn identified the gears which were the subject of the licence in the know-how contract. Mr Janssen's oral evidence was that there were standard drawings for sizes up to 67 and that some of them were given to Elecon Engineering. However, as to larger sizes, he first said there were none in the period before November 2001, then suggested that PIV Antrieb had actually produced some and finally agreed that development work had been commenced by PIV Antrieb in mid to late 2001 but not completed by the time he left the company. In my view this evidence, so far as it was relied upon by the Elecon interests, was too general and inconclusive to be useful. It certainly did not establish that there had been a breach of contract. Mr Karimi was directly involved in the technical detail and the production of plans. Mr Janssen was not in the technical department but in the sales department. It was not established that his knowledge of the existence of technical plans and drawings was more reliable than Mr Karimi's, much less that Mr Karimi's sworn evidence should be rejected. The third matter, therefore, relied upon to suggest breach of contract by PIV Antrieb before 1 November 2001, does not provide support for the proposition. Before I leave this general topic it should also be noted that Mr Karimi said, in both his affidavit and oral evidence, that there was no occasion upon which Elecon Engineering asked PIV Antrieb to check plans or drawings which it had made itself. No occasion, upon which any such request might have been made, was put to him in cross-examination. It is a question of facts in each case. This is not of itself equivalent to a total refusal or disability to perform the contract, though it may be accompanied by conduct which amounts to a notice of the insolvent debtor's or his representative's intention not to pay his debts or perform his contracts. Insolvency does not determine a contract nor does it operate as rescission of a contract. A contract after initiation of insolvency proceedings and before adjudication is not per se void. I shall give separate attention to the express right of termination in cl 16 of the know-how contract. The question of whether the transfer of assets from PIV Antrieb frustrated future performance of the contract on the part of PIV Antrieb cannot be assessed in the abstract. It can only be resolved by reference to such contractual obligations as remained to be fulfilled. They were few. PIV Antrieb was obliged to provide drawings prepared by it to fill its own orders. It was not, however, under any contractual obligation to seek or accept such orders, whether or not in insolvency. It was obliged to check drawings provided by Elecon Engineering in connection with its own projects and, under the April 2000 Agreement, to provide "all the necessary support" to enable Elecon Engineering to produce drawings. Mr Karimi's evidence, to which I referred earlier, was that PIV Antrieb had never been asked to check any drawings. There was no evidence that any other form of support was withheld. These were matters for the Elecon interests to prove, both before and after 1 November 2001. There was no evidence that any relevant request was made between 1 November 2001 and 25 March 2002 when Elecon Engineering gave notice of termination. There was therefore no evidence of actual breach of contract in that respect. Neither may it be said that the evidence showed that PIV Antrieb, under the administration of Dr Wellensiek, would have been incapable of undertaking such a task or fulfilling such an obligation. Mr Kissel was the managing director of both PIV Antrieb and PIV Drives. He gave evidence that about 340 staff (out of 560) moved from PIV Antrieb to PIV Drives (including the design and development department), as did all the real estate and all the know-how and technology. He said also that Elecon Engineering did not make any request for drawings or technical support from time of commencement of the insolvency proceedings to 25 March 2002. Had it done so, he said, then in accordance with other arrangements for dealing with ongoing warranty obligations it would have been possible for Dr Wellensiek to ask for support and, after consideration of the matter on a case by case basis, for PIV Drives to provide it. Despite the contingent bases of this evidence it does not support the contention that Dr Wellensiek would have been unable to respond to a request from PIV Antrieb. There was no other evidence which supports the proposition. The argument really depends on conjecture in a context where the possibility did not ever arise. In Australia, Sunbird is authority for the proposition that an assertion of incapacity depends on showing that a party was "wholly and finally disabled" from performing when required to do so (see at 264 and 280 quoted earlier). Under Indian law it is necessary to show that "actual breach becomes inevitable" (see Mulla at page 1018 quoted earlier). The test is not met in the present case. There is an insufficient basis to conclude that Dr Wellensiek's actions disabled PIV Antrieb from continuing to perform the know-how contract to the extent necessary. Under cl 16 there was clearly a right to terminate for that reason. The right had existed since the commencement of the insolvency proceedings on 1 March 2001. The intention in the letter of 25 March 2002, to terminate the contract, seemed clear. In my view the existence of the insolvency proceedings provided a sufficient foundation for it. Accordingly, I am satisfied that the know-how contract was terminated by Elecon Engineering's letter of 25 March 2002. Termination in those circumstances brought the contract to a complete end. As I said earlier, if I am wrong in that conclusion the result is only that the know-how contract was terminated three months later, on 22 May 2002 by Dr Wellensiek. There is no cause of action in the present proceedings concerning breach of contract to which the foregoing conclusions need to be applied. They are, however, relevant to the causes of action which now require discussion. It should be noted that it is primarily questions of liability which need to be addressed at the moment because, on 27 April 2007, Branson J ordered that all issues of the quantum of pecuniary relief, if any, be determined separately from, and after, all other issues. In accordance with the conclusions already expressed the causes of action in the main proceedings and the initial proceedings must be examined on the basis that Elecon Engineering lost the benefit of the know-how contract, and any licence to use any confidential information provided to it, on 25 March 2002. Correspondingly, its use of such information prior to that date was as the licensee of PIV Antrieb. It did so on two occasions, in 1999 and in 2004. The Brevini interests pleaded that distribution of the 2004 catalogue in Australia, and the communication of it to the public in Australia by making it available online, constituted an infringement of s 36 of the Copyright Act 1968 (Cth) ("the Copyright Act ") which, amongst other things, protects copyright in artistic works and literary works. Artistic works, as defined by s 10 of the Copyright Act , include drawings and photographs. Literary works, as defined by s 10 , include tables and compilations expressed in words, figures or symbols, and computer programs. The Elecon interests admitted that a catalogue first published by PIV Antrieb in 1995 in Australia contained numerous original works in which copyright subsisted pursuant to s 31(1) of the Copyright Act and that the 2004 Elecon catalogue reproduced the whole or a substantial part of the PIV catalogue. They also admitted that the 2004 catalogue was imported into Australia for the purpose of trade in Australia and was distributed in Australia for the purpose of trade and communicated to the public in Australia. Subject to consideration of particular defences, the admissions made are sufficient to establish in favour of the Brevini interests that the 2004 catalogue contained copyright material in which PIV Drives had exclusive rights as the assignee of the intellectual property of PIV Antrieb. They relied upon termination of the know-how contract as extinguishing any relevant licence. In answer, the Elecon interests advanced four lines of argument to suggest the existence of some form of licence. First, it was contended that the licence granted by the know-how contract continued after the termination of the know-how contract by operation of cl 16. I have already rejected this contention. In the alternative three further contentions were advanced. The Elecon interests sought to support the proposition that PIV Antrieb granted to Elecon Engineering "an express or implied licence to use the copyright and intellectual property in the PIV catalogues and trademarks 'Posired', 'PIV' and 'Posirex' in any of three separate ways". The first alternative was that there had been a licence to facilitate the use of the know-how transferred under the know-how contract. Any such licence could not survive the termination of the know-how contract and the general licence under it. The second alternative was that there had been a separate agreement made in October 1998 when diskettes containing the 264 and 265 catalogues were provided to Mr Kalyankar. It was suggested this represented either an equitable assignment or an express or implied licence to use the catalogues in connection with the manufacture and sale of gearboxes. The third alternative was that there was an express or implied licence arising from the obligation on PIV Antrieb to provide assistance. The three variants of the alternative contention all relied upon a suggested right and obligation of Elecon Engineering to carry out the manufacturing and marketing processes contemplated by the know-how contract. There was no basis advanced in the submissions for acceptance of the argument that, regardless of termination of the know-how contract, there was any form of continuing licence after termination of the contract. Reliance by the Elecon interests upon a continuing licence arising from the know-how contract must be rejected. In oral submissions, it was asserted that there had been an unqualified assignment of copyright from PIV Antrieb to Elecon Engineering in 1998. Under s 196(3) of the Copyright Act an assignment of copyright, whether it is total or partial, has no effect unless it is in writing. The asserted written assignment relied upon was a one page handwritten list of computer disks provided by Mr Janssen to Elecon Engineering. The provenance of this handwritten list requires examination in accordance with the evidence given in the case. In an affidavit sworn on 16 October 2006 Mr Kissel identified correspondence and other documents concerning the provision of computer disks containing materials for the POSIRED 2 catalogue, including some discussion of what was necessary to open, read and print material contained therein. A handwritten page was included which was undated but described by Mr Kissel as: "manuscript notes detailing what was sent to Elecon Engineering". The handwritten note appears to identify 12 items. Mr Patel, in an affidavit affirmed on 30 August 2007, responded by admitting that catalogues were physically received and the authenticity of the correspondence. He made clear that he did not admit the authenticity of the undated handwritten document. This is the document which was said, in oral submissions, to constitute the written assignment of copyright. In a further affidavit sworn by Mr Kissel on 30 August 2007 he identified the undated document as one written by Mr Janssen on 26 November 1998 as "a list of catalogues delivered to Elecon as signed by Mr Peter Janssen (in his capacity as head of the licensing department)". The document dated and initialled by Mr Janssen had 13 items listed. The document earlier attached to Mr Kissel's first affidavit appeared to contain some handwritten amendments. Their significance was never explained and the discrepancy may be ignored. Mr Janssen both affirmed an affidavit on 19 June 2007 and gave oral evidence in the proceedings. As mentioned earlier, he was called by the Elecon interests. In his affidavit evidence he made no reference to the handwritten list. In a written statement filed in court when his evidence commenced Mr Janssen referred to a visit in late October 1998 by Mr Kalyankar to the factory and offices of PIV Antrieb in Germany. Mr Janssen said that, at that time, Mr Kalyankar was given some computer disks, at which time he said words to Mr Kalyankar to the effect that Elecon could use them to produce its own catalogue. He said that in December 1998 and January 1999 he assisted Mr Kalyankar to access the information on the computer disks so that Elecon could use the information on the disks to produce its own catalogue. He made no reference to the handwritten note which was relied upon in oral submissions as a written assignment of copyright. In his oral evidence, which was given on 5 December 2008, Mr Janssen was asked no question concerning the handwritten list which Mr Kissel had identified as being made by him and initialled and dated 26 November 1998. In the circumstances, there was no foundation in the evidence for the submission that the handwritten list was a written assignment of copyright within the meaning of s 196 of the Copyright Act . It clearly was not. In addition to the arguments with which I have dealt already, the Elecon interests denied that there was any ground upon which damages might be awarded under s 115 of the Copyright Act or orders made for damages or delivery up of the 2004 catalogues pursuant to s 116 of the Copyright Act . The pleaded resistance to orders under s 115 and s 116 of the Copyright Act was that the Elecon interests were not aware, and had no reasonable grounds for suspecting, that they were infringing copyright or that copyright subsisted in any of the works. In my view, those assertions are without any substance. It is clear from the evidence given by Mr Patel that the Elecon interests were quite aware of the circumstances in which they were conducting themselves. Mr Patel accepted in his evidence that, apart from some photos on the front and back pages, which he identified as photos of gears manufactured by Elecon Engineering, the 2004 Elecon catalogue was almost identical in content to the 1999 catalogue and contained material which had been provided by PIV Antrieb and had also been reproduced in various PIV catalogues from 1995. The Elecon interests also accepted in their submissions that the source of the tables and text in the 2004 catalogue was the same as for the 1999 catalogue. The 2004 catalogue was made available on the Elecon website for download anywhere in the world. It was exported to Australia in physical form with the intention that it be supplied to customers of Elecon Australia. As at the date that Mr Patel commenced his oral evidence (8 December 2008) the 2004 catalogue was intended still to be used in Australia. Earlier in this judgment I set out the text of a letter written by Dr Wellensiek to Elecon Engineering on 22 May 2002. In his evidence Mr Patel accepted that the letter had been received. The letter gave clear notice that Elecon Engineering had no ongoing rights under the licence granted by the know-how contract or otherwise. The letter written by Elecon Engineering three months earlier on 25 March 2002 did not, in fact, purport to terminate the know-how contract for reasons which would activate any ongoing right under cl 16 of the know-how contract, even if the construction advanced by the Elecon interests in the present proceedings about major default was correct. The first time, at least so far as the evidence discloses it, that a suggestion was made that any such ongoing right existed was in the letter from Mr Shah dated 6 July 2004 when he replied to Mr Joshi's letter of 14 May 2004 which had reminded Elecon Engineering of Dr Wellensiek's notification that the licence had come to an end. Mr Patel's evidence, both by affidavit and orally, was that it was he who gave instructions to Mr Shah. Mr Patel contended that the issue of major default had been raised before Mr Shah's letter of 6 July 2004. When cross-examination had concluded I invited him to identify the earlier occasion on which the matter had been raised. He responded by referring to the letter of 25 March 2002. That letter made no reference of any kind to the concept of major default. No other occasion was identified. So far as the evidence discloses, therefore, the first occasion on which any such reference was made was in Mr Shah's letter of 6 July 2004. The inference is inescapable that Elecon Engineering, by its conduct and by the representations made on its behalf, chose a course of continuing to manufacture and sell products which had been the subject of a licence granted under the know-how contract knowing that its right to do so was in issue. It did so using the 2004 catalogue. There can be no doubt that its actions were deliberate and considered. They were accompanied by an assertion of rights represented by the commencement of the initial proceedings. Mr Patel was clear in his evidence that the Elecon interests would continue upon the course they had chosen unless restrained from doing so. In all the circumstances I do not accept the suggestion that the Elecon interests had no reasonable grounds for suspecting that they might have been infringing copyright or suspecting that copyright subsisted in the PIV catalogues. The contentions advanced by the Elecon interests that damages ought not be awarded and/or relief not granted under s 115 or s 116 of the Copyright Act are, accordingly, rejected. Although the assessment of relief is not a matter for present attention I should record also that it appears to me that the conduct of the Elecon interests was flagrant within the meaning of s 115(4) of the Copyright Act . Explanation of that conclusion requires attention to issues concerning use of trade marks, as well as publication of the 2004 catalogue, but it is convenient to deal with it at this point. In cross examination Mr Patel was asked whether, after January 2004, products were advertised by Elecon Australia as POSIRED. He said he was not aware of it. Shortly thereafter he said that the name POSIRED was used until production of the 2004 catalogue in April that year. The following day he said that Elecon Engineering ceased using the trademarks PIV and POSIRED and POSIREX in 2002: "because we got an objection from PIV. That is [why] we stopped it. My mistake. In re-examination the issue was revisited. Did you, at any time, give any instructions to any employees of Elecon India at some point in time after 25 March 2002, in relation to the 1999 Elecon catalogue?---Yes. I gave instructions that these should be withdrawn. Not only that, every document as well as soft copies, which means the website also, should be corrected, eliminating the PIV logo and the name POSIRED II, as well as PIV. I take that to be a reference to the commencement of the initial proceedings in response to the protestation that Elecon Australia had no right to sell gearboxes to the Barclay Mowlem joint venture. Mr Patel was shown Dr Wellensiek's letter of 22 May 2002 and Mr Joshi's letter of 14 May 2004. He also appeared to say, in one fashion or another, that in response Elecon Engineering ceased to use the trade marks PIV, POSIRED and POSIREX and withdrew all copies and versions of the 1999 catalogue in which those terms were used. He then seemed to say that occurred after the incidents in Australia which led to the commencement of the initial proceedings. However, Mr Patel also said that, after the 2004 catalogue was published in April 2004, the process of changing from the 1999 catalogue to the 2004 catalogue and retrieving the 1999 catalogue took between three to six months. That evidence cannot be related to any of the matters identified by Mr Patel as having prompted the steps that were supposedly taken. The publication of the 2004 catalogue in April 2004 was clearly not responsive to the notice given by Dr Wellensiek. It predated the protest by Mr Joshi. It predated the incidents in Australia. I conclude that Elecon Engineering did not respond, as Mr Patel asserted, to any of the protestations or complaints which he identified. On the contrary, the Elecon interests pursued their own commercial agenda without regard for the notification issued by Dr Wellensiek on 22 May 2002. The decision to publish a 2004 catalogue which reproduced, almost in its entirety, the 1999 catalogue was unconnected with any recognition and respect for the rights in the material which had been possessed by PIV Antrieb and which were now possessed by PIV Drives. The complaint made in Australia was met with the commencement of the initial proceedings seeking interlocutory restraint from giving further expression to the complaint. In my view, on the evidence, Elecon Engineering and Elecon Australia acted in flagrant disregard for the interests of the copyright owner of the material which was reproduced in the 2004 Elecon catalogue. Finally, the Elecon interests also argued that the Brevini interests are estopped from denying a licence to use the copyright material as a result of a failure to take steps to protect the asserted rights until the commencement of the main proceedings in December 2004. This contention cannot succeed. It is clear from the evidence of Mr Patel to which I have already referred that clear notice was given to Elecon Engineering, the significance of which it understood, commencing on 22 May 2002. There is no foundation for any assertion of unreasonable delay or acquiescence. Accordingly each of the lines of defence to the allegation that PIV Drives' copyright was infringed fails. PIV Drives is entitled to relief for infringement of copyright, including consideration of the grant of relief under s 115 and s 116 of the Copyright Act . According to the arrangements made for hearing the matter the quantum of relief is not to be addressed at this stage. The Brevini interests claimed that the PIV and POSIRED trademarks were infringed. In written submissions a pleaded claim of trademark infringement of the POSIREX trademark was withdrawn. Section 124 of the Trade Marks Act 1995 (Cth) ("the Trade Marks Act ") makes it clear that an infringement of a registered trade mark does not occur if a person has continuously used an unregistered trade mark in the course of trade from a time before the date of registration of the registered trade mark, or before the first use of the trade mark by the registered owner or a predecessor in title, whichever is earlier. The Elecon interests claimed that they had used the marks "PIV" and "POSIRED" before the date of registration. Mr Patel's evidence for example, to which I referred when dealing with the claim of breach of copyright, made it clear that Elecon Australia used the three trademarks in Elecon's 1999 catalogue until it was phased out in the months following the publication of the 2004 Elecon catalogue in April 2004. The Brevini interests, however, claimed that the marks had been used by a predecessor in title to PIV Drives from even earlier, although it took some time for that contention to come properly into focus. I have concluded that this contention is sound and that use of the trademarks by PIV Antrieb or by persons under its control, which may each be relied upon by PIV Drives, predated use by the Elecon interests in their own right and that the Elecon interests accordingly have no defence to the claim under s 124. Under s 6 of the Trade Marks Act a predecessor in title is a person, or persons, from whom the trademark was assigned or transmitted. Assignment, under s 6 , requires an act. Transmission includes transmission by operation of law, devolution on a personal representative or any other kind of transfer except assignment. Section 8 of the Trade Marks Act defines the terms "authorised user" and "authorised use" by reference to a use of a trade mark by a person under the control of the owner of the trade mark. Section 7(3) stipulates that an authorised use of a trade mark is taken to be a use of the trade mark by the owner of the trade mark. As a consequence of the conclusions I reached and earlier expressed about the operation of the know-how contract, any use of the trade marks in Australia by the Elecon interests must be taken to be an authorised use up until, but only until, 25 March 2002. Before 1 November 2001 it is taken to be a use by PIV Antrieb and therefore, for the purpose of this case, by PIV Drives to whom PIV Antrieb assigned its intellectual property effective on 1 November 2001. The period between 1 November 2001 and 25 March 2002 must be differently assessed. During that period PIV Drives was the owner of the unregistered trade mark. PIV Antrieb was no longer the owner of the trade mark but the owner of the trade mark, PIV Drives, did not take the benefit or obligations under the know-how contract and did not, therefore, exercise control in relation to goods or services within the meaning of s 8 of the Trade Marks Act . PIV Antrieb did not do so on its behalf. It seems to me, therefore, that PIV Drives can claim the benefit of trade mark use in Australia by the Elecon interests until 1 November 2001, but not between 1 November 2001 and 25 March 2002. As will be seen, nothing turns on that difference. The alleged infringements were said to be evidenced by five matters: The first three pieces of evidence were attached to an affidavit of Christopher John Warner Bayliss sworn 18 October 2006. Mr Bayliss did no more than identify the documents as ones provided to potential customers of Elecon Australia by it. However, no objection was taken to this evidence or to the documents referred to and annexed to his affidavit. Their authenticity was not put in issue. They may therefore be regarded as satisfactory evidence of the representations they contain. Amongst the catalogue material which Mr Bayliss said was supplied on or about 18 October 2004 was a catalogue dated 2000 entitled "Elecon range of transmission products" in which was contained depiction and description of "Elecon --- PIV POSIRED 2 solid and Hollow shaft Modular gear units". On its face that was an infringement of both the POSIRED and PIV trade marks. The document dated 25 March 2003 was a letter from Mr Terry Hall, a director of Elecon Australia, to an unidentified recipient containing a quote for a gearbox citing alternatives which included an "Elecon PIV helical speed reducer". As you are aware, Elecon also manufactures the PIV Posired range and we can offer the same size unit. The letter had attached to it a summary sheet for an "Elecon PIV Speed Reducer". As pointed out earlier, however, the PIV mark was not registered until 8 May 2003. Neither the quote of 25 March 2003 nor the letter of 26 March 2003 provide evidence, therefore, of infringement of the PIV trade mark. The letter of 26 March 2003 was, however, on its face, an infringement of the POSIRED trade mark. The fourth piece of evidence relied on as breach of trademark was the 1999 catalogue. On Mr Patel's evidence, to which I earlier referred, it appears that the 1999 Elecon catalogue, which used all three trade marks, was in circulation in Australia until some months after the publication of the 2004 catalogue in April 2004. It was in circulation, therefore, after registration of the "PIV" and "POSIRED" trademarks. The fifth piece of evidence was a 2007 installation operation and maintenance manual. Reliance on the 2007 installation operation and maintenance manual was supported by a lengthy footnote in the written submissions which asserted that the words "LICENSE PIV-REIMERS" were depicted on page 1 and "PIV" appeared in schematic form products depicted on page 2. Those assertions did not correspond with the contents of the document on which reliance was placed. I could not see either term used elsewhere in the document either. Accordingly I am not satisfied that this piece of evidence supports the trade mark cause of action. There are therefore three matters which, subject to consideration of competing contentions about prior use, support the claim of breach of trade mark --- provision of the 2000 "Elecon range of transmission products" catalogue on or about 18 October 2004, the letter of 26 March 2003, signed by Mr Hall (but only as to the POSIRED trade mark) and the circulation of the 1999 catalogue until it was phased out sometime in 2004. Elecon may certainly claim to have distributed the catalogues in its own right during the period when it was not under any control by PIV Antrieb in relation to the use of the marks PIV and POSIRED and before registration of those marks on 8 May 2003 and 15 January 2003 respectively. That represents use prior to registration. There are other probable specific instances of such prior use. On 15 May 2002 Mr Hall wrote to Simon Engineering (Australia) Pty Ltd. The letter referred to some data sheets and a catalogue which were not attached as part of the evidence. One could readily infer that the catalogue was the 1999 catalogue but in view of matters to be discussed shortly it is not necessary to actually make that finding. I will assume it was. On 28 June 2002 a Mr Howard Esler from (apparently) a New Zealand company called Eric Paton sent an email to Mr Hall acknowledging receipt of some catalogues. Again, probably an inference is available that the catalogues were the 1999 catalogue but it is not necessary to actually make that finding. I will assume they were. Both those communications pre-date registration of either the POSIRED or PIV trade marks. However, PIV Drives may rely, as evidence of prior use by PIV Antrieb before 1 November 2001, on the conduct of Elecon Engineering and Elecon Australia with respect to the distribution of the 1999 catalogue at all times prior to 1 November 2001. Under s 124 of the Trade Marks Act it was for the Elecon interests to establish that their use of the unregistered trade marks predated the earliest of the date of registration and first use of the trade mark by PIV Drives or its predecessor in title, including, for that purpose, any person using the trade mark under the control of the predecessor in title. Having regard to Mr Patel's evidence it would have been necessary for the Elecon interests to show that there had, in fact, been no distribution in Australia of the 1999 catalogue prior to 1 November 2001. No such attempt was made. Moreover, there are other specific examples of prior use that must be attributed to PIV Antrieb and, therefore, to PIV Drives. On 21 September 2001 Mr Hall had written earlier to Simon Engineering (Australia) Pty Ltd providing some catalogues and information about the PIV POSIRED range. The letter was written within the period of operation of the know-how contract and before any transfer of intellectual property to PIV Drives. PIV Drives is therefore entitled to rely upon it as its own use through the control, at that time, of PIV Antrieb. Mr Hall's actions did not represent prior independent use by the Elecon interests. Renold made an agreement dated 1 April 1998 with PIV Antrieb to assemble and distribute "helical gear reducers and bevel helical gear reducers, model POSIRED II according catalogue 264/..". Those products were to be assembled from "PIV components". Renold was given permission to use the logo PIV and the name "POSIRED" for marketing purposes for the duration of the agreement which was ongoing and, apart from termination for cause or other specified reason, was terminable on 12 months notice after an initial period of five years. This represents a clear use by PIV Antrieb of the marks PIV and POSIRED in Australia before any use by the Elecon interests. There were some additional matters relied on by the Brevini interests as evidence of prior use upon which PIV Drives might rely which I do not accept. The Brevini interests relied on invoices and an order exchanged between PIV Antrieb and Renold. The invoices (from PIV Antrieb) appear to be dated 24 July 1997 and 23 October 1997. They do not use the term POSIRED. One invoice uses the term "PIV" but not in a way which satisfies me that it was used in relation to goods as required by s 7(4) of the Trade Marks Act . The invoices were also in German and no translation was made available. The order (by Renold) was for PIV bevel helical products intended for dispatch on 1 October 1997 and arrival on 12 November 1997. The use by Renold in this order predated its appointment under the agreement which took effect on 1 April 1998. There is no other evidence that Renold was, at the time the orders were sent, under the control of PIV Antrieb within the meaning of s 8 of the Trade Marks Act . In my view, in the circumstances, neither the invoices nor the order are shown to be evidence of use upon which PIV Drives may rely prior to 1 November 2001. The result of these various factual conclusions is that use of the trade marks upon which the Brevini interests may rely predates any use upon which the Elecon interests may rely. The two specific instances of infringement which I earlier identified therefore stand unprotected by any defence of prior use. The Elecon interests pleaded, in their latest defence, that they were protected from a finding of infringement by s 122(1)(f) of the Trade Marks Act by reason that registration of the trade mark in the name of one of them would be granted if it were applied for. That pleading was abandoned on the last day of the hearing. It was also pleaded that s 123 of the Trade Marks Act applied because the trade mark was used with the consent of the registered owner. The pleading was supported only by a submission to the effect that there was express or implied consent since 1998. The submission is misconceived. Section 6 defines a registered owner as the person in whose name the trade mark is registered. The registered owner is PIV Drives. In any event it is quite clear that neither PIV Drives, nor, if it matters, PIV Antrieb, gave consent to use of the trade mark outside the bounds of the licence granted by the know-how contract. In written submissions reliance was also placed on s 120(2) (using a sign as a trademark which is not likely to deceive or cause confusion), s 122(1)(c) (using a trademark in good faith to indicate the intended purpose of goods, e.g. as accessories or spare parts) and s 122(1)(e) (exercise of a right to use a trademark given under the Trade Marks Act ). None of these defences were pleaded and I will not permit the Elecon interests to rely upon them. Its last (replacement second further amended) defence was filed on 2 March 2009, after the filing of the submissions in question on 10 February 2009. In any event, none of these lines of defence, if permissible, are established. The complaint made by the Brevini interests did not relate to a sign, the trade mark was not used to indicate the intended purpose of goods and the suggested line of defence under s 122(1)(e) was related, in the written submission, to the defence I have already discussed under s 124 of the Trade Marks Act . It could not survive the rejection of that defence. In all the circumstances the allegation of infringement of trade mark is made out. The representations, which were all said to be misleading and deceptive, were conveyed in part directly to unidentified customers, in part in promotional materials made available to customers and in part by statements on the Elecon Engineering website. In final submissions four specific representations were relied upon. However, the legal and factual issues which now arise, in connection with the allegation that they constituted misleading and deceptive conduct, raise different matters for examination. I shall deal with them shortly. The first allegation was supported by a printout from the Elecon Engineering website dated 5 October 2004. That printout did not, in terms, say that helical gears in the EP-series "were produced" in technical collaboration with PIV Antrieb. Forced lubrication by built-on or motor driven pump is optional. It might equally be a statement referring to design. There is no doubt that during the period of the licence under the know-how contract Elecon Engineering was producing helical gears which had been designed by or in collaboration with PIV Antrieb. After 25 March 2002 the gears were no longer produced under licence but it remained true to say that they were the product of technical collaboration with PIV Antrieb. There was a further difficulty with the evidence upon which this allegation was based. The downloaded page was attached to an affidavit of Mr Bayliss. He said no more in his affidavit than that the page was printed from the website of Elecon Engineering and was "dated on or about 5 October 2004". His affidavit evidence, therefore, did not purport to verify that the date which appeared at the bottom of the page (05.10.2004) was the date upon which the representation appeared on the website or was downloaded from it. In his oral evidence Mr Bayliss was unable to say whether he had downloaded the material himself. He was asked what was the significance of the date 5 October 2004. He was unable to say. The second allegation was based upon a "facsimile dated 25 March 2003 from Elecon Australia to an unidentified customer". Mr Bayliss identified this simply as "a true copy of a Quote for PD40 and PD42 gearboxes issued by Elecon Australia". The first page of the three page annexure to his affidavit was a facsimile stating that it consisted of one page whose subject was "Quote for gearbox". That quote, which was signed by Mr Hall, did refer to PD40 and PD42 gearboxes. That was not the subject of the allegation made. Two pages appeared in the annexure to the affidavit behind the one page quote. They appeared to be the final two pages of a document signed by Mr Hall. It is not clear how many pages preceded these two pages on the original document. It is not clear on what date the document was brought into existence. It is clear, however, that the two pages should not be regarded as a part of the one page facsimile transmission. They were not the subject of any evidence by Mr Bayliss. Mr Hall was not asked any questions about the matter. In the circumstances the applicants have not established that the representations contained in the second and third pages of the annexure were made on 25 March 2003. The third representation relied upon was contained in a letter by Mr Hall on behalf of Elecon Australia to an unidentified customer dated 26 March 2003 (not 25 March 2003) to which was attached a data sheet. The data sheet was headed "Elecon PIV Speed Reducer Ratings Summary". As you are aware, Elecon also manufactures the PIV Posired range and we can offer the same size unit. I see this written here, and they are referring to it as PIV gearbox, but I'm telling you that we knew they were selling a gearbox --- trying to sell a gearbox into the market that was the same as ours. I can see no reason to conjecture that other members of the small and necessarily knowledgeable class to whom these matters would be of significance would understand the position differently. Although Mr Bayliss had attached this letter from Mr Hall to his affidavit he was not able to say when he saw it. You're quite right. I mean, I'm reading it. I can see it. That's the problem. The only time we've come across them in a significant way was when we lost an order to them at Blackwater and these letters here, I mean, it's evidence they were using PIV but the time frame just doesn't fall into my lap. He did not know who had done that. He did not know who the customer was. The consequence was that the respondents had no opportunity to seek evidence from the recipient of the letter concerning their understanding of the statements which were made in it. Although in many cases misunderstanding by a consumer will be insufficient to establish misleading or deceptive conduct in the present case it would have been of significance if the recipient of the letter had proceeded upon the same understanding as Mr Bayliss. In the circumstances I do not regard the third representation which was relied upon as sufficient to make out any case of breach of the TP Act. The fourth matter relied upon was three statements contained in a catalogue which was amongst a bundle of catalogues and promotional material said by Mr Bayliss to have been "provided by Elecon Australia Pty Ltd to a potential customer of Elecon Australia Pty Ltd on or about 18 October 2004". The catalogue was entitled "Elecon range of transmission products". It was a 2000 catalogue. It was therefore a catalogue produced during the currency of the licence under the know-how agreement. There was no other information provided by Mr Bayliss or anybody else about the customer or the circumstances in which the range of catalogues and promotional material was provided. Mr Gary David Harradine, who gave evidence for the Elecon interests, gave evidence that catalogues and brochures of this kind played virtually no part in the selection of industrial gearboxes of the kinds sold by the applicants, Elecon Engineering or Elecon Australia. In any informed tender or procurement process there are several criteria used to evaluate tenders, and to make a recommendation to the owner to purchase any particular type of gear box, or numbers of gear boxes, which all get to the question of the size and nature and performance of those gear boxes, and to get to that point the person doing that work on behalf of the owner needs to have sufficient experience in the industry to understand the merits of various gear boxes, and the specific applications for those gear boxes for the project in question. Again, in my experience, the brochures don't come into play in that analysis for a number of reasons. One, they are usually out of date. Two, any graphic or representation of a gear box, or drive, has no relevance, compared to the certified engineering design data normally sought by the owner's engineer to make sure that that particular drive is well and truly defined. And three, it's not possible to design and select a gear box from a brochure alone. Would you agree with that as a faithful recollection of what you said?---Yes, I do. There are other factors that are more relevant. Catalogues invariably are part of the definitional process and in my experience they're very rarely used to make an informed purchasing decision. He had 25 years experience in Australia and internationally. He had project development and management experience in the mining, quarrying, bulk materials handling, mineral processing, infrastructure and food industries. In an expert report provided to solicitors for the Elecon interests he outlined the role of Joharko in acting for and providing advice to the mining and mineral companies in the development, design and construction of mining operations in Australia and overseas. He said that Joharko, on behalf of its clients, did not rely on catalogues or brochures for the purposes of technical specification or procurement of drives. There was no evidence to the effect that representations of the kinds made in the catalogue relied upon would have any significance for the selection of gears or gearboxes in the relevant industries in Australia. In the circumstances I am not satisfied that any of the allegations upon which the suggested breach of the TP Act depends has been established. This part of the case faced further, related, difficulties. In Interlego AG v Croner Trading Pty Ltd [1992] FCA 624 ; (1992) 39 FCR 348 Gummow J at 387-8 distilled the principles of evidence which apply in cases alleging contravention of s 52 of the TP Act and passing-off. A judge, though he must use his common sense in assessing credibility and probative value of that evidence is not entitled to supplement any deficiency in evidence of this kind by giving effect to his own subjective view as to whether or not he himself would be likely to be deceived or confused. That requirement has not been met in the present case. The trade practices claim must be rejected. There is a further difficulty which is fatal to the passing off claim. Damage is an essential ingredient of a passing off claim. Although I am not, at present, dealing with any question of pecuniary relief it was necessary at least to plead that the Brevini interests had suffered some damage. They accepted that this was so. Damage was not pleaded in the further amended statement of claim in support of the passing off case. What was pleaded in relation to passing off was a series of allegations (which did not include paragraphs pleading loss or damage) pleaded for the purpose of the TP Act case. In written submissions in reply the Brevini interests sought to rely upon the facts and circumstances which were pleaded to support the allegation of damage in the trade practices case. The two elements of damage were alleged to be the possibility of a financial benefit if Brevini Australia had been awarded the Blackwater project instead of Elecon Australia and loss of sales in Australia as a result of sales by Elecon Australia. Each represents no more than a speculative possibility. There was no evidence that Brevini Australia would have won the Blackwater contract if Elecon Australia had not. There was no evidence of any loss of sales to Brevini Australia and consequent loss of royalties to PIV Drives as a result of sales by Elecon Australia. This attempt to overcome the defect in the pleadings was therefore ineffective as, in the end, there was no evidence to fill the gap. In my view the defect in the pleadings is fatal to the passing off case and for that additional reason the passing off claim would fail in any event. No evidence was given by any party of the consequences which German law would attach to the transfers of intellectual property and confidential information. I am left with no alternative but to examine these matters by reference to Australian law. The evidence established that Elecon Engineering was put in possession of what was necessary to manufacture the POSIRED 2 series of gears and that it would not have been possible for it to have done so without that confidential information being supplied to it. Assuming this cause of action is made out, any responsibility of Elecon Australia is derivative in the sense that it was merely acting in consequence of the manufacture of articles by Elecon Engineering. However, and again assuming that the cause of action is made out, there does not appear to be any reason why Elecon Engineering and Elecon Australia might not be restrained from any conduct in this country which gave effect to, or exploited, a breach of confidence. By their latest pleadings, the Brevini interests alleged, and the Elecon interests admitted, that PIV Antrieb was to provide confidential information to Elecon Engineering. It was pleaded and admitted that information concerning the know-how and technical knowledge for the manufacturing of POSIRED 2 gear units was confidential. It was admitted that information contained in approximately 12,500 technical drawings provided by PIV Antrieb to Elecon Engineering was confidential. The Brevini interests claimed that the Elecon interests had breached an obligation of confidence owed to PIV Drives by continuing to use the confidential information after the know-how contract came to an end. Although this cause of action originally included a claim for relief with respect to catalogues which were provided to Elecon Engineering, that claim was abandoned in final submissions. Under Australian law any transfer of intellectual property, including confidential information, to PIV Drives was subject to the licence granted to Elecon Engineering for as long at that licence should endure. German law has not been shown to be different. On the findings I have made the licence came to an end on 25 March 2002. The principal line of defence to this cause of action was that Elecon Engineering retained a right, pursuant to cl 16 of the know-how contract, to use the confidential information "without reservation". I have already rejected that contention. A number of other defences were also raised. It was submitted that there had been no effective assignment of PIV Antrieb's interest in the confidential information to PIV Drives at the time that other assets were sold because of the existence, at that time, of the licence to Elecon Engineering to use the confidential information. Based on this circumstance it was contended that any assignment was partial only. A consequence was said to be that it was necessary to join PIV Antrieb to the proceedings. I will return to this issue. An alternative line of defence was that PIV Drives took insufficient steps to protect the interest it now claims, allowing the Elecon interests to adopt an assumption, to their detriment, that they were permitted to use the confidential information and that the Brevini interests are now estopped from asserting their rights or should be denied relief due to their acquiescence or delay. I reject this contention for the same reasons I rejected a similar suggestion in relation to the copyright claim. It was argued that PIV Drives had acted unconscionably in acquiring any equity upon which it now relies. This submission was related to a contention that PIV Antrieb had been disabled from fulfilling its obligations under the know-how contract and that PIV Drives was complicit in that action. I have already rejected the premise upon which this contention depends and I need say no more about it. Another submission which was advanced orally was that the confidential information had been insufficiently identified to found the cause of action. In light of the admissions made in the pleadings, to which I have already referred, this submission must also be rejected. That leaves for consideration an examination of the character of the interest upon which the breach of confidence claimed is based and the suggestion that the proceedings are defective because PIV Antrieb was not made a party to them. Under cl 3 of the know-how contract Elecon Engineering was bound in contract to PIV Antrieb (although not at any time to PIV Drives) to keep all reproducible drawings, plans and other technical documents of the kind referred to in Annexure 1 of the know-how contract secret both during and after the duration of the know-how contract. Similar provision was made by cl 14 of the know-how contract. The rights and obligations under the know-how contract were not assigned. However, the action to restrain breach of confidence is not based in contract. Rather, it appeals to a general equitable jurisdiction to grant relief against an actual or threatened abuse of confidential information. A general equitable jurisdiction to grant such relief has long been asserted and should, in my view, now be accepted: see The Commonwealth v. John Fairfax & Sons Ltd . Like most heads of exclusive equitable jurisdiction, its rational basis does not lie in proprietary right. It lies in the notion of an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained. Relief under the jurisdiction is not available, however, unless it appears that the information in question has 'the necessary quality of confidence about it' (per Lord Greene M.R., Saltman ) and that it is significant, not necessarily in the sense of commercially valuable (see Argyll v. Argyll ) but in the sense that the preservation of its confidentiality or secrecy is of substantial concern to the plaintiff. That being so, the starting point of the alternative argument must be the identification of the relevant confidential information. Again, the argument breaks down at the threshold. (Footnotes omitted. There is no doubt, in the present case, that the information was communicated and obtained in circumstances that rendered it confidential and which obliged Elecon Engineering to keep it secret even after the contract was at an end. It makes little difference, in my view, that the obligation was owed, as a matter of contract at least, only to PIV Antrieb. At the time the information was communicated the right to its use lay exclusively with PIV Antrieb. It now lies exclusively with PIV Drives. I am satisfied that the preservation of its confidentiality or secrecy is of substantial concern to PIV Drives, that the information has the necessary quality of confidence about it and is also significant. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 ; (2007) 230 CLR 89 (" Farah Constructions "), the High Court said at [118]: ... The protection given by equitable doctrines and remedies causes confidential information sometimes to be described as having a proprietary character, 'not because property is the basis upon which that protection is given, but because of the effect of that protection'. Certain types of confidential information share characteristics with standard instances of property. Thus trade secrets may be transferred, held in trust and charged. There is no doubt, therefore, that PIV Drives' interest in the intellectual property which was assigned to it by Dr Wellensiek effective on 1 November 2001, and particularly the confidential information which was provided to Elecon Engineering, may, even if not property in the usual sense, be protected. In TS & B Retail Systems Pty Ltd v 3Fold Resources Pty Ltd (No 3) [2007] FCA 151 ; (2007) 158 FCR 444 , Finkelstein J decided that although confidential information was not property in the usual sense it may be passed by one person to another and the person to whom it had been imparted can take action to protect the information. His Honour concluded that this Court may grant both injunctions and equitable compensation in a cause of action for breach of confidence (see at [72]-[77]). In the present case the benefit of the know-how contract was not assigned from PIV Antrieb to PIV Drives. The cause of action for breach of confidence is not, therefore, based upon a contractual covenant. It does not depend upon the assignment of a chose in action (cf Mid-City Skin Cancer & Laser Centre Pty Ltd v Zahedi-Anarak [2006] NSWSC 844 ; (2006) 67 NSWLR 569 at [162] - [175] ). However, I see no reason to doubt that the interest in the confidential information was, in accordance with the observations in Farah Constructions , directly assignable, at least so far as Australian law is concerned. In those circumstances PIV Drives' title to sue does not depend upon the assignment of any covenant under the know-how contract. It was not necessary that PIV Antrieb be joined as a party. In my view a case has been made out to the effect that Elecon Engineering is in breach of the obligation of confidence which it owes to PIV Drives and that both it and Elecon Australia may be restrained, in this country at least, from further breach and/or ordered to pay compensation. Those claims do not succeed and as a result no liability attaches to Mr Patel arising from those allegations. Moreover there is a further fatal difficulty disclosed by the pleadings. The bare facts pleaded in paragraph 75 are insufficient to fix Mr Patel with liability under s 75B of the TP Act even if the causes of action had been made out against Elecon Engineering and/or Elecon Australia. The three facts pleaded do not establish that Mr Patel aided, abetted, counselled, procured and/or authorised the conduct complained of. The first alleged fact is incorrect in any event. Intentional participation is an element of this form of accessorial liability (see Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666-669, Houghton v Arms [2006] HCA 59 ; (2006) 225 CLR 553 at [17] ). In my view the failure to plead the necessary mental elements was fatal to any action against Mr Patel. In each case the representations were made to a representative of the Barclay Mowlem joint venture. No evidence was called from any representative of the Barclay Mowlem joint venture which would establish that the representations were received but it was admitted that a letter was sent on 17 September 2004 to Mr Mapleson, the project manager of the Barclay Mowlem joint venture, and that on 24 September 2004 an email was sent to Mr John Hannah of the Barclay Mowlem joint venture. Neither Mr Mapleson nor Mr Hannah were called to give evidence. Mr Bayliss, in his cross examination, agreed that he had instructed Mr Lowe to write the letter of 17 September 2004. This is because of the size of the contract and the relatively small size of that organisation! They are in stark contrast to all the other serious gearbox companies in Australia who have substantial and long established presence with the depth and ability to service and support their products throughout Australia. That burden is not satisfied by suggesting that there was no evidence to the contrary. I find that the first allegation is not made out. As to the second statement, on the findings which I have earlier made it was incorrect to represent that the licence to Elecon Engineering was restricted to manufacturing and marketing in India alone. However I have also found that from 25 March 2002 Elecon Engineering had no licence of any kind. It was therefore not incorrect to make a representation to the effect that it had no licence to market in Australia which, in my view, is the substance of the representation which was made. That representation was neither misleading nor deceptive. No submissions were addressed to the statements alleged to have been made on 22 September 2004 or to the email dated 24 September 2004. I infer that those matters are not pressed. It follows that, to the extent that it was pressed, the claim made in NSD 1423 of 2004 must be dismissed. The Brevini interests have made out a case for infringement of the registered trade marks PIV and POSIRED. The infringement of the PIV and POSIRED trade marks is constituted by the provision of the 2000 "Elecon range of transmission products" catalogue on or about 18 October 2004 and by the distribution of the 1999 Elecon catalogue after the date of registration of the trade marks. Infringement of the POSIRED trademark is also established by the contents of a letter written by Mr Hall to an unidentified recipient on 26 March 2003. The Brevini interests have not made out a case for relief under the TP Act or in passing off. The Brevini interests have made out a case that the Elecon interests have breached an obligation of confidence owed to PIV Drives. The parties should be heard on an appropriate form of relief. No cause of action has been made out against Mr Patel. The proceedings against Mr Patel will be dismissed. Matter NSD 1423 of 2004 will be dismissed. Brevini Australia will be released from the undertaking which it gave on 6 October 2004. I certify that the preceding two hundred and eighty-seven (287) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

expert evidence about foreign law tests to be applied. whether termination of a contract might be attributed to a legal cause in existence at the time of termination but not relied upon anticipatory breach need to show that a party is wholly and finally disabled from performance on the date when performance is required. breach of confidence whether confidential information is property whether confidential information may be protected if not property whether an entity entitled to the benefit of an express covenant of confidence must be joined to proceedings commenced by a party to whom the confidential information was assigned. passing off need to plead damage as an element of the cause of action. consideration of prior use by a predecessor in title prior use includes use by a person under the control of the predecessor in title. misleading and deceptive conduct evidence of consumers and retailers as to the likelihood of deception critical if a special market is involved accessorial liability under s 75b of the trade practices act 1974 (cth) need to show intentional participation failure to plead necessary mental elements. evidence contracts equity tort trade marks trade practices

The Tribunal set aside a decision of the applicant made under the Veterans' Entitlements Act 1986 (Cth) ('VE Act') that the death of the respondent's husband ('the veteran') was not war-caused, and substituted a decision that the veteran's death was war-caused. By reason of his service with the 112 Light Anti-Aircraft Regiment in the Northern Territory in 1943 and 1944 the entire period of the veteran's military service was operational service. 3 The veteran died on 14 November 2001, aged 78 years. His death certificate stated that the cause of his death was myelofibrosis which he had suffered for 4 years, and oesophageal varices which he had suffered for 2 years. 4 On 11 February 2002 the respondent lodged a claim with the applicant in respect of the veteran's death. The applicant refused the claim because the cause of myelofibrosis was unknown and therefore the disease could not be related to the veteran's service. The respondent applied to the Veterans' Review Board ('the Board') for review of the applicant's decision, and the Board affirmed the decision. 5 The respondent then sought review of the Board's decision by the Tribunal who set aside the Board's decision and substituted the decision the subject of this application. 6 On 2 November 2005, the applicant appealed to this Court from the decision of the Tribunal. The circumstances in which a veteran's death is taken to be war-caused are set out in s 8(1) of the VE Act. • The veteran's death was due to a disease which would not have occurred but for the veteran having rendered eligible war service or but for changes in the veteran's environment consequent upon his or her having rendered eligible war service (s 8(1)(d)). That section imports the civil standard of proof: see Repatriation Commission v Smith (1987) 15 FCR 327 at 335. The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s (1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. Further, it is mandatory to find in favour of an applicant unless the decision-maker forms an opinion that the whole of the material does not raise the reasonable hypothesis referred to in the statute: see Repatriation Commission v Whetton (1991) 31 FCR 513 at 521. 13 It seems to me that there are three issues for my determination. First, whether the decision of the Tribunal was open on the material before it and whether the Tribunal failed to consider the relevant connection between the veteran's death and the eligible war service. Secondly, whether the Tribunal applied the wrong test in its asking whether there was proof that benzene does not cause myelofibrosis and whether there was proof that the relevant connection was false. Thirdly, whether the Tribunal contravened s 39(1) of the AAT Act or failed to accord procedural fairness and the consequences of such contravention or failure in the circumstances of the proceedings before the Tribunal. 15 The hypothesis relevantly considered by the Tribunal was that the veteran's service exposed him to the use of petroleum products which caused exposure to benzene which precipitated, or was responsible for myelofibrosis, which in turn caused death. • The duration, extent, and quantity of the usage was unknown. • The petroleum to which the veteran was exposed contained benzene. • The period of possible exposure was approximately 12 months when the veteran cleaned guns and machinery in the Northern Territory. • That exposure was over 52 years before the veteran contracted myelofibrosis. • The kind of death suffered by the veteran was myelofibrosis. I say having regard to these facts because the reasonableness of the hypothesis is to be considered in the context of the relevant factual scenario. This includes that exposure to benzene occurred some 52 years before the veteran contracted myelofibrosis, and was at best intermittent whilst cleaning guns and machinery over a period of approximately 12 months: see, e.g. the approach taken in Whetton 31 FCR 513. This is not to say that proof of any of these facts is necessary at this stage, just that they needed to be considered in connection with the hypothesis before the Tribunal. 18 I should mention, however, that in this case the hypothesis relied upon is not itself limited to the time and duration of exposure to benzene, to which I will refer as the temporal issues. Whilst I have come to the view that there is sufficient evidence to support the findings of the Tribunal even on the basis of the temporal issues, the necessity for such evidence is not to be assumed. For example, if a Tribunal accepts medical evidence that condition B may be caused by any degree of exposure to factor A, that the veteran was exposed to factor A and that he or she subsequently developed condition B, it would be wrong to reject the claim because of an absence of evidence as to the extent of the exposure. The hypothesis itself makes quantity irrelevant. If, on the other hand, the evidence is that exposure to quantity X of factor A may cause condition B, the hypothesis cannot be described as reasonable unless there is reason to believe that the veteran was exposed to factor A to the extent of quantity X. Two experts were called by the applicant --- Professor Fox (a haematologist) and Professor Peach (an epidemiologist). I need not rehearse their evidence except to say they both held the view that there was no connection between exposure to benzene and the contraction of myelofibrosis, especially in the circumstances of the temporal issues raised in this case. I accept that their evidence (without more) could have led to the conclusion that the hypothesis considered by the Tribunal would not have been reasonable. The Tribunal similarly regarded that as the likely position. 21 The applicant contended that this further material cannot support the hypothesis, particularly when one considers the temporal issues, and that the Tribunal failed to consider, as s 120(3) of the VE Act requires, whether the whole of the material before it raised a reasonable hypothesis connecting the veteran's death with the circumstances of the particular service rendered by the veteran. Undoubtedly s 120(3) of the VE Act requires the Tribunal to consider that connection. In my view, the Tribunal did undertake that enquiry and it was open for the Tribunal on the whole of the material before it to reach its conclusions. 22 In my view, the applicant underestimated the impact of the other material (in addition to the evidence of Professors Peach and Fox) before the Tribunal and, in particular, the evidence of Dr Collins who was called by the respondent. In fact, if accepted, the evidence of Dr Collins could in itself sufficiently point to the connecting hypothesis, even taking into account the temporal issues. 23 Dr Collins (a pathologist) prepared two written reports which were in evidence before the Tribunal. He was not required for cross examination and he did not appear before the Tribunal. The representative of the applicant stated before the Tribunal, when indicating that Dr Collins was not required for cross-examination, that it was for the Tribunal to decide "how much evidence (sic) to give to Dr Collins' reports without cross-examination". It was a forensic decision made by the applicant not to cross-examine Dr Collins, and the Tribunal was invited to and was entitled to place appropriate weight upon the reports of Dr Collins as tendered. 24 It cannot be said that Dr Collins' reports should have been completely disregarded by the Tribunal. Dr Collins maintained his position in support of the hypothesis contended. Whilst the applicant may regard Dr Collins' position as unconvincing, the Tribunal obviously did not regard the opinion of Dr Collins as worthless, and was entitled to rely upon it to reach its conclusions. The Tribunal, having received the evidence of Dr Collins, considered his opinion, and weighed that opinion in light of the whole of the material before it. The development of this form of the disease has been linked to exposure to petroleum derivatives, particularly toluene and benzene, or to ionizing radiation (see accompanying example article by Tondel). If such a suggestion can be appropriately substantiated then, in my opinion, there is a real possibility his death was war associated through the link between benzene exposure causing toxic effects on the bone marrow which then resulted in myelofibrosis. I also observe that Dr Collins was aware that the veteran's exposure to benzene was as "a Bofors gunner" and during the war, and thus was aware of the substantial gap in years between exposure and death, and probably between exposure and the time the veteran contracted myelofibrosis, and of the general nature of the veteran's exposure. It cannot be said that Dr Collins was not aware of the temporal issues, and that his view should be disregarded on this account. 28 Before me, an attack was sought to be made of Dr Collins on the basis that he was not qualified at all, and certainly not as qualified as the expert witnesses called by the applicant. This was not raised before the Tribunal and, as I have said, his reports were tendered without objection. I note that Dr Collins is described in his reports as a Consultant Forensic Pathologist. It was also contended that Dr Collins, in any event, only raised the "possibility" of the relevant causal connection, which was not sufficient to give rise to a reasonable hypothesis. I do, however, accept that the Tondel article could not assist directly on the temporal issues as it concerned a case study about one man who had been exposed to benzene for 17 years as a petrol station attendant and who contracted myelofibrosis 13 years after that exposure. 32 However, Dr Collins expressed himself, knowing of the temporal issues in this case, more definitively than the applicant submitted. Dr Collins spoke of a " real possibility", not just a "possibility" or "mere possibility", that the veteran's death was relevantly connected to his exposure to benzene. Dr Collins' above response to Professor Peach does not detract from the opinion of Dr Collins, which he did not recant, in favour of the hypothesis proposed by the respondent, being cognisant of the temporal issues. 33 In any event, this was not the only material before the Tribunal that supported the hypothesis connecting the veteran's death with his war service, although Dr Collins' evidence was the only material before the Tribunal to address the temporal issues in the way I have indicated above. 34 The other expert called by the respondent was Dr Parkin. Dr Parkin provided a letter to the respondent dated 24 April 2003, which letter was tendered in evidence before the Tribunal. Dr Parkin was a haematologist at Heidelberg Repatriation Hospital and he identified four reports that linked benzene with myelofibrosis. Dr Parkin concluded that there was support for the hypothesis that benzene exposure contributed to the veteran developing myelofibrosis. The Tribunal does not seem to expressly take Dr Parkin's evidence into account, but that was material before the Tribunal. 35 In addition there was the survey material from Sweden referred to in the Tondel article, and the United Kingdom survey referred to (although also discounted) by Professor Peach, and the bundle of documents produced by the respondent which were specifically relied upon by the Tribunal. Even accepting the criticisms of the applicant in respect of the content of the material, it does nevertheless show that the hypothesis (putting aside temporal issues) was not contrary to known scientific facts, nor was so obviously fanciful, impossible, incredible or untenable, or too remote or too tenuous: see Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414 and East 16 FCR at 533. 36 In addition to the concession regarding the veteran's exposure to benzene, the Tribunal also referred to other decisions of the Tribunal (on which no objection was taken) where it seemed clear that access to petroleum was readily available and its usage was probably without protective clothing or breathing apparatus: see Whitworth v Repatriation Commission [2002] AATA 861 ; Prestegar v Repatriation Commission (unreported, Northrop J, 14 February 1997). All this material was available to the Tribunal to support the hypothesis. 37 There was also the study in the United Kingdom of 24,500 male employees in oil distribution centres of three petroleum companies in the UK between 1950 and 1975 (Rushton and Alderson, 'Epidemiological survey of Oil Distributions Centres in Britain' (1983)), which was referred to by Professor Peach. The Tribunal referred to this study by reference to three "petroleum refineries" but I do not think anything turns upon this incorrect reference to petroleum refineries instead oil distribution centres. It was not a mistake which necessarily gives rise to an error of law and does not in my view impact upon the reliance placed by the Tribunal upon the study. This study concluded that having regard to the instance of myelofibrosis in the UK, it was expected that there would be 3 deaths within the total number surveyed, but in fact there were 5 deaths. Professor Peach, whilst acknowledging that the greater number of deaths than expected would not have been "a chance finding", said that the study did not conclude an association between myelofibrosis and benzene. In fact, Professor Peach said that there had been studies conducted within the Australian petroleum industry which had concluded that there was no association between myelofibrosis and benzene and where there had been a measure of the extent of benzene exposure. Nevertheless, the Tribunal was entitled to attribute less weight to Professor Peach's view, and rely upon the study itself (which it did). 38 Finally, there was the bundle of documents produced by the respondent. Putting aside the circumstances of reliance by the Tribunal upon those documents (to which I will return) that material does contain some general references to the connection between benzene and the contraction of myelofibrosis, although again not in respect of the temporal issues. 39 Against this material before the Tribunal, the Tribunal heard the very strong views of Professors Fox and Peach concerning the connection between benzene and myelofibrosis. Professor Peach, in particular, did not agree with Dr Collins and criticised his conclusions. However, the Tribunal did not find the evidence of Professors Fox and Peach to be of such a "superior reliability" that there was not sufficient ground to determine the death was war-caused. Both were subject to cross-examination, and one adverse comment was made implicitly of Professor Peach by the Tribunal in the Tribunal stating that Professor Fox was far less rigid than Professor Peach in expressing his opinions. 40 In any event, it was not for the Tribunal to necessarily determine opposing views, just have regard to them in examining the validity of the reasoning which supports the hypothesis: see Bushell 195 CLR at 413-416. This, in my view, was the task the Tribunal undertook. 41 I mention one further matter for completeness. The respondent seemed to suggest that assistance could be obtained by s 119 of the VE Act. 42 No reliance can be placed upon s 119 of the VE Act to fill in gaps where there is insufficient evidence to assist the respondent's case: see Repatriation Commission v Bey (1997) 79 FCR 364 at 373-374 and Mason v Repatriation Commission [2000] FCA 1409. However, in my view there were no relevant gaps in the material before the Tribunal, and for the reasons I have indicated, the evidence before the Tribunal supported the Tribunal's conclusions. The applicant submitted that the Tribunal asked itself the wrong question when it tested the hypothesis of connection by asking whether there was "proof that benzene does not cause myelofibrosis" and "proof that the connection is false". 44 The applicant submitted that the absence of evidence disproving a connection between benzene and myelofibrosis could not elevate the hypothesis of such a connection to a reasonable hypothesis. 45 In my view, the Tribunal did not ask the wrong question or pose the wrong test. 46 The Tribunal needed to test the hypothesis to determine whether it was reasonable. The Tribunal could rely upon the material before it to so test the hypothesis. The absence of evidence, whilst not elevating in itself a hypothesis as being reasonable not otherwise supported by sufficient material, could be taken into account in determining whether the hypothesis was reasonable. The Tribunal raised the issue of the absence of proof in connection with whether the hypothesis relied upon was contrary to proven scientific facts or to the known phenomena of nature. In my view, this was appropriate. It accepted that the contents of the report of Dr Collins, the survey material from Sweden referred to in the report of Tondel, the United Kingdom survey referred to by Professor Peach, and the bundle of documents produced by the respondent supported or pointed to a reasonable hypothesis connecting the service of the veteran and his exposure to benzene to his subsequent death from myelofibrosis. When the Tribunal said that there was no proof that benzene does not cause myelofibrosis and no proof that the connection is false, the Tribunal was not postulating a test, but merely observing that the hypothesis was not contrary to proven scientific facts or to the known phenomenon of nature, which was a relevant enquiry. The applicant sought leave to amend its notice of appeal to raise this new ground of appeal. The amendment was first notified to the respondent on 25 January 2006. The respondent was given ample notice of the amendment and the substance of the amendment. No relevant prejudice could be said to arise by reason of the proposed amendment. 48 As I have found that the ground raised in the amendment is to be successful for the reasons I set out below, I will give leave to amend the notice of appeal to raise the new ground. 49 The applicant submitted that the bundle of documents referred to at [95] of the Tribunal's reasons should not have been relied upon by the Tribunal in its reasons as it was not given copies of such material at the hearing, not given the opportunity to make submissions in relation to them, and not given the opportunity of putting the documents to Professors Peach or Fox. Further, the applicant submitted that, despite objecting to the tender of the material at the hearing, and the Tribunal stating that it would hear the applicant on the question of the weight to be given to the material, the Tribunal did not hear the applicant further on this matter, and proceeded to rely upon the documents. In this regard, the applicant submitted that it had been denied procedural fairness and there had been a breach of s 39(1) of the AAT Act. In my view, this submission should be upheld. Some have been on the Tribunal files, some are not and I am not sure really what the status of them is. I am surprised at this latest turn of events. The problem with the documents of course, sir, is that we cannot cross-examine on the authors or find out any details of the studies in which they appear to be --- and how those studies were conducted and so on. So, you know, it would be my submission, sir, that if you are taking me to evidence that you ought to record the weight with which they ought to be attributed. Indeed, the Tribunal in its reasons for decision stated that the bundle of documents was not the subject of specific attention or submission and acknowledged that reference to them appeared unorthodox. The Tribunal also acknowledged that the documents were not the subject of examination by the applicant, nor were they put to Professors Peach or Fox. 52 In my view it appears from the transcript that the bundle of documents was implicitly accepted by the Tribunal as evidence before it, but the Tribunal was envisaging submissions from the respondent concerning the weight to attach to them. It would appear from evidence filed by the applicant in this proceeding that the bundle of documents was not formally tendered or assigned an exhibit number during the hearing, although they were subsequently marked by the Tribunal as "Exhibit I Medical Research Documents". Copies apparently were not provided to the representative of the applicant. It may be that some of the documents in the bundle were previously filed and exchanged between the parties, and used in cross-examination, but it is clear that the Tribunal relied upon others in the bundle to reach its conclusions. There seems to have been no objection to the actual admission of the material, but this failure to object was done on the basis that the respondent would indicate (presumably in submissions) the weight to be attached to them, once 2 sets of the bundle had been copied to ensure all parties had the same documents. 53 Undoubtedly the Tribunal is entitled to rely upon material to inform itself as it sees fit, but it must accord the parties procedural fairness and comply with s 39 of the AAT Act. If I am correct to conclude that the Tribunal was indicating to the applicant that it would be given the opportunity to consider the bundle of documents (after copies had been made), and was calling upon the respondent to address it as to weight, and thus give the applicant an opportunity to respond, in failing to do so, the Tribunal failed to accord procedural fairness and failed to comply with s 39 of the AAT Act. 54 Section 39(1) of the AAT Act provided that, subject to provisions which are irrelevant for present purposes, the Tribunal must ensure that every party sitting before a Tribunal is given a reasonable opportunity to present his or her case and, in particular, to inspect any documents to which the Tribunal proposes to have regard in reaching a decision, and to make submissions in relation to those documents. It seems to be clear that the section provides that the Tribunal must apply notions of procedural fairness: see Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J and O'Sullivan v Repatriation Commission [2003] FCA 387 ; (2003) 128 FCR 590 at [45] . Obviously the requirements will depend upon the particular circumstances of each case. It may be in some circumstances where a party is represented then there is some onus upon a party to be proactive in requesting from the Tribunal an opportunity to present its case such as, for instance, in seeking an adjournment: see, e.g. Schiffer v Pattison [2001] FCA 1094. However, as I have said, in this case the Tribunal and the respondent effectively represented there would be an opportunity for the applicant to present further submissions on the issue of the bundle of documents once those documents had been seen. That opportunity was not given. 55 I do not consider it was incumbent upon the representative of the applicant to have voiced any further objection or to have sought to reserve further rights to address, because it was anticipated the issue would be dealt with later by the Tribunal and the respondent. The formal tender of documents was the practice of the Tribunal. It would have been reasonable to assume that a formal tender would occur, along with the opportunity to address the Tribunal as to the weight to be given to the documents. It cannot be said there was any waiver by the applicant, because of the expectation, to which I have referred, of the course of action which was proposed and because the applicant could not have known (without seeing the actual documents) of their contents or significance. 56 The respondent submitted that the bundle of documents simply strengthened the Tribunal's resolve, and it was not in fact necessary for the Tribunal to rely upon the bundle of documents to reach its conclusion in favour of the respondent. It was contended, therefore, that the reliance on the bundle of documents would have made no difference to the outcome. 57 I cannot accept that submission. As may be seen from the foregoing, a hypothesis may be reasonable despite the fact that it might be unproved, may have little support within the medical profession and may be dependent upon assumption. I cannot find on the material read and heard in these proceedings, that the raised facts are unreliable. Nor can I find that the evidence of Professors Fox and Peach is of such a superior reliability that there is no sufficient ground to determine that death in the present application was war-caused. At the conclusion of the evidence but before the conclusion of the hearing, Mr De Marchi produced a bundle of extracts from internet web sites, without specific attention or submission being directed to any of them. An analysis of those sites indicates that there is some support within the profession for an association between benzene and myelofibrosis --- refer www.merck.com/mmhe/sec14 and www.caremark.com/wps/portal. Additionally, one of the documents forming part of the " web " exhibits --- the copy of which is so poor that the web address cannot be identified refers to an increased incidence of myelofibrosis in the case of firemen who have been exposed to benzene. Regard for this material may appear unorthodox however it does highlight that contrary to the opinion of Professor Peach, in 'world medical literature' there does exist a body of literature raising a connection between benzene and myelofibrosis. I readily acknowledge that those documents were not the subject of examination by the respondent, nor were they put to Professors Fox or Peach. However, the opinions expressed in those documents found at web sites of reputable medical organisations, do indicate that the hypothesis is reasonable because the connection between benzene and myelofibrosis is more than a possibility. Veterans and their widows need not establish a hypothesis as reasonable by a "causal connection" (refer Professor Peach) or a "definitive causal connection" (refer evidence of Dr Byron Collins). The finding of the reasonableness of the hypothesis does not depend on a resolution of or choice between competing medical theories. The contents of the report of Dr Byron Collins, the survey material from Sweden referred to in the report of Tondel (including his own survey), the United Kingdom survey referred to by Professor Peach and the information found from the internet sources as tendered does point to material raising a reasonable hypothesis connecting the operational service of the deceased, his exposure to benzene by petroleum products and myelofibrosis. The hypothesis is not "obviously fanciful, impossible, incredible, or not tenable or too remote or too tenuous" (refer East v Repatriation Commission (1987) 74 ALR 518 at 533). One was to impact particularly upon the acceptance of the evidence given by Professor Peach. The other was to show the connection between benzene and myelofibrosis was "more than a possibility", which was a critical issue. 59 It may be said that in view of Dr Collins' evidence and the other material referred to by the Tribunal supporting the relevant connection, the acceptance or otherwise of Professor Peach's evidence has immaterial. However, it does seem to me that the Tribunal did look into the relative strengths of the expert evidence, and could not find the evidence of either Professors Fox or Peach of such a "superior reliability" to persuade it that there was no sufficient ground to determine that the death of the veteran was war-caused. The bundle of documents was used by the Tribunal to highlight a view which was contrary to Professor Peach's in relation to the existence of world medical literature, and impacted upon the Tribunal's assessment of Professor Peach adversely to the applicant. 60 In addition, the Tribunal did seem to single out this bundle of documents as at least assisting in the Tribunal concluding that the hypothesis was "more than a possibility". I acknowledge that the Tribunal did later refer to other material, which in itself may have been sufficient to assist in the conclusion reached (particularly the reliance on Dr Collins), but I cannot be satisfied as to the comparative weight given to all the material relied upon by the Tribunal to reach its ultimate conclusion. Having regard to the separate and specific treatment given to the bundle of documents by the Tribunal, it may well be that the Tribunal was finally persuaded by the information in the bundle to reach the conclusion it did. 61 Generally speaking, if a court decides that the Tribunal has erred in law, the Tribunal decision is set aside and the matter is remitted for determination according to law: see Morales v Minister for Immigration & Ethnic Affairs (1995) 60 FCR 550 and compare with Harradine v Secretary, Department of Social Security (1989) 25 FCR 35. 62 There may be an issue whether a denial of procedural fairness is an error of law, but in the circumstances of this case where the lack of procedural fairness is clearly apparent on the reasoning of the Tribunal, in my view, the reasons of the Tribunal do disclose an error of law: see Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 ; (2003) 131 FCR 28. 63 Another way to approach the present issue is to treat the actions of the Tribunal as a breach of s 39(1) of the AAT Act, and thus there was a failure to comply with its statutory duty. This would itself be an error of law: see O'Sullivan (2003) 128 FCR at [60]. 64 I have a discretion under s 44(4) of the AAT Act, which includes not remitting the matter if that is appropriate. This is not a case where this Court can be sure what decision would have been reached had procedural fairness be accorded. I cannot be satisfied for the reasons given above that there is no possibility of a different result: see Giretti v Commissioner of Taxation (1996) 70 FCR 151 at 165-166; and O'Sullivan (2003) 128 FCR at [62]. 65 I should mention that there was another ground of appeal relating to the bundle of documents and whether it was open for the Tribunal to make certain findings on the basis of the information contained therein. As I have found that the bundle of documents should not have been relied upon by the Tribunal, it is unnecessary for me to address this other ground of appeal. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

review of decision of administrative appeals tribunal ('tribunal') that veteran's death was war-caused whether tribunal considered whole of the material before it whether material raised a reasonable hypothesis in the context of the veteran's service consideration of principles to be applied procedural fairness whether breach of s 39 of the administrative appeals tribunal act 1975 (cth) where tribunal failed to give opportunity to applicant to examine bundle of documents handed to tribunal at the hearing where tribunal indicated that submissions would be received on the weight to be attached to the documents where tribunal did not receive further submissions and relied upon documents in its decision consideration of circumstances in which matter must be remitted administrative law administrative law

These reasons for judgment should be read in conjunction with those which I published that day: Russell v Commissioner of Taxation of the Commonwealth of Australia [2009] FCA 1224. As those reasons reveal, a particular motivation for not then pronouncing final orders was an apprehension on my part that procedural fairness required the affording of an opportunity to the parties to make submissions as to whether the jurisdiction conferred upon the Court by the Taxation Administration Act 1953 (Cth) (TAA) in relation to the hearing and determination of a taxation appeal extended to the remission of a matter to the Commissioner of Taxation (Commissioner) for the purpose of amending an income tax assessment so as to increase the amount of the appellant taxpayer's taxable income for a given income year. Another motivation was the need for the parties to have an opportunity to assimilate lengthy reasons for judgment in respect of appeals raising a plethora of issues in respect of which each party had enjoyed mixed success before making submissions in respect of costs. The parties have now made submissions with respect to the question of the powers exercisable on a taxation appeal, costs and the form of orders disposing of the appeals. I shall deal with each in turn. That provisional conclusion was that the powers exercisable by the Court in the circumstances obtaining in respect of the 2001 income year did not extend to the setting aside of the decision disallowing the objection, the making of an order setting aside the assessment concerned and the making of a declaration that Mr Russell's taxable income for that income year was $1869.23 higher than that assessed. In short, the Commissioner's submission was that "the Court's powers under s 14ZZP of the TAA had to be exercised conformably with the scope of the Commissioner's powers under s 14ZY of the TAA". His further submission was that, subject to the impact of any statutory time limitation, it would be open to him to issue an amended assessment increasing Mr Russell's liability for the 2001 income year. Mr Russell, who had the benefit by then of the Commissioner's supplementary written submissions, did not advance any contrary submission. Instead, he submitted that I should make whatever determination I sought fit in relation to orders in respect of the 2001 income year in light of the submissions made on behalf of the Commissioner. As he had, similarly, earlier also not sought in the High Court in Commissioner of Taxation v ANZ Savings Bank Ltd [1994] HCA 58 ; (1994) 181 CLR 466 at 481 ( ANZ Savings Bank Case ), the Commissioner did not seek to rely upon the legislative stipulation, previously found in s 200B(1) of the Income Tax Assessment Act 1936 (Cth) (ITAA 1936), now found in s 14ZZQ(1) of the TAA, that "when the order of the Federal Court in relation to the decision becomes final, the Commissioner must, within 60 days, take such action, including amending any assessment or determination concerned, as is necessary to give effect to the decision". Thus, in the present case, the Commissioner did not contend that this section authorised the issuing of an amended assessment so as to give effect to the conclusion which I had reached as to the income tax assessment for the 2001 income year had not been shown to be excessive because it understated Mr Russell's true taxable income for that year. That position was adopted even though then, as now, this Court is empowered on the hearing and determination of an appeal against an objection decision, to "make such order in relation to the decision as it thinks fit, including an order confirming or varying the decision": see s 14ZZP of the TAA, which replicates a like conferral of power found at the time of the ANZ Savings Bank Case in the then s 199 of the ITAA 1936. It is, on further reflection prompted by consideration of these supplementary submissions, by no means impossible to conceive of a basis upon which, in the circumstances of the present case, power would exist to order remission to the Commissioner for the purpose of making the requisite amendment. Section 200B of the ITAA 1936 was one of the provisions introduced into the ITAA 1936 by the Taxation Boards of Review (Transfer of Jurisdiction) Act 1986 (Cth) (Transfer of Jurisdiction Act) to which I made reference in my earlier reasons for judgment. In their joint judgment in the ANZ Savings Bank Case (at 481), Brennan, Deane, Dawson and Toohey JJ observed of it that it "has an essentially mechanical operation, aimed at ensuring that in the absence of a power in the Tribunal or a court itself to amend an assessment the Commissioner will do so in order to implement a decision of the Tribunal or a court". In a footnote to this passage their Honours note that such a power was removed from the courts by the Transfer of Jurisdiction Act. The way in which their Honours describe this section and the tenor of their joint judgment in relation to the then s 190(b) and s 199(1) of the ITAA 1936 does not, with respect, suggest that they apprehended that a consequence of the amendments made by the Transfer of Jurisdiction Act was that a sequel to the Commissioner's being able to support an assessment on a taxation appeal on a ground not taken into account at the time of assessment might be that it was no longer possible for that assessment to be amended so as to give effect to the basis upon which the Commissioner had successfully supported the assessment before a court. Rather, all it suggests is that they considered that the change wrought by the Transfer of Jurisdiction Act was, in substance, nothing more than to the way in which necessary amendment of the assessment was to occur, ie by administrative action by the Commissioner instead of, as had hitherto been the case, by court order; hence the description, "mechanical". Commonwealth taxation legislation must necessarily provide for a taxpayer to have the ability to have recourse to an exercise of judicial power so as to contest a decision by the Commissioner that he is subject to a taxation liability: see the High Court authorities to which I refer in Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330 at 333, [13] . The administrative decision by which that liability is ascertained is an assessment, not an objection decision. The latter decision might result in the confirmation or varying of an assessment but it remains an assessment by which the taxable income and the tax payable thereon is, in the absence of further challenge, fixed for a given income year. The exercise of judicial power having in this case been sought, there is, at least on reflection, something rather odd about the notion that, even though, in the exercise of that judicial power, a conclusion has been reached that an assessment is not excessive because, as the Commissioner has permissibly and successfully contended that, in truth, the assessment understates the taxable income, and even though s 14ZZP of the TAA is broadly expressed, warrant for the making of an amended assessment is to be found only in s 170 of the ITAA 1936 (but not s 170(7)), assuming that conditions then obtain for the administrative exercise of that power. That would leave open the prospect of a further objection and appeal or review proceeding in respect of that amended assessment. That would also mean that the exercise of judicial power had not resulted in the final determination, as between the Commissioner and the taxpayer, of the latter's assessed taxation liability for a given income year. In truth, it is as yet an open question as to whether there is power to order remission for the purpose of amendment so as to increase a taxation liability. Be this as it may, the position which obtains is that, though he has now been offered the opportunity to seek the same, the Commissioner has expressly not sought the making of any order which would have the effect of authorising him to amend Mr Russell's 2001 income tax assessment so as to increase his taxable income and, necessarily, the tax payable thereon. Further, Mr Russell has not sought the making of any such order. Nevertheless, we question, at least in the circumstances of this particular case, the appropriateness of the adoption by the Full Court of an approach, and a conclusion, that neither party has sought. Perhaps it is desirable in the public interest that contributions be made to an approved fund calculated in accordance with the Full Court's compromise formula. But even though that may be so, which we are inclined to doubt as the respondent as the party responsible for the administration of the Acts advanced no such proposition, this remains civil litigation between parties who have identified the issues upon which they are joined. Even if we thought the reasoning of the Full Court correct, we would still entertain doubt whether we should uphold its conclusion, unwanted as it is by each side. I expressly refrain from voicing any opinion as to whether, either in light of the position he has adopted in this case or otherwise, the Commissioner has any other power to raise such an amended assessment. While s 43(2) of that Act generally consigns the awarding of costs to the exercise of a discretion, that does not mean that the power may be exercised arbitrarily, whimsically or capriciously. Generally, costs follow the event. In this instance, as the submissions of each of the parties recognise, an uncritical adoption of that approach would not do justice between them. There were many issues raised by the appeals. In respect of those issues and as I have already observed, the parties enjoyed mixed success. In these circumstances, one way of resolving the awarding of costs might be to make orders which provided for an issues based taxation. Neither party sought such an order. That is understandable as such a taxation of costs would, in this instance, be a complex task, especially where there was an overlap of evidence as between issues on which one party or the other succeeded to some extent at least and issues on which one or the other failed. The Commissioner submitted that costs should be awarded on a percentage basis. He submitted that he should receive 80% of the costs of the appeals but that this percentage should be reduced to 75% so as to obviate a need for taxation of costs to which Mr Russell submitted he was entitled. Mr Russell's primary position was that there should be no order as to costs. However, if I was not disposed to make such an order, he, too, suggested that the allocation of a percentage would be appropriate. While a percentage approach involves an element of value judgement upon which reasonable minds might reasonably differ, I agree that it is an appropriate method to adopt in the circumstances, subject to the allowance to Mr Russell of particular disbursements. Neither party, rightly, submitted that costs should be awarded other than on a party and party basis. Unsurprisingly, the parties' submissions gave different emphasis to the nature and extent their respective forensic successes and failures in the appeals. The Commissioner's submission also highlighted that, in the income tax appeal, Mr Russell had, by concession, enjoyed the modest success of a reduction in his taxation income for the 2002 income year by an amount of $416.00. He reminded that this concession was made of his own motion in an Amended Appeal Statement (Income Tax) filed on 2 May 2008 (at para 19B), almost three months prior to the commencement of the hearing of the appeals. The Commissioner emphasised that Mr Russell's goods and services tax appeal had failed insofar as it concerned each of the alleged accountancy practice and the naturist retreat enterprises. I recall, too, in this regard, the misconception on Mr Russell's part of the effect on the ability for the partnership A W Russell & Co to continue as an enterprise following the resignation of his wife. The Commissioner noted, accurately, that Mr Russell's goods and services tax penalty appeal had failed to the extent that he had not secured any reduction in the base penalty concerning the alleged accounting practice enterprise and in respect of remission of the partnership's base penalty liability in respect of that alleged enterprises and the alleged naturist retreat enterprise. In response, Mr Russell emphasised, accurately, that he had secured a considerable reduction in the amount now payable by him to the Commissioner. He submitted that it would give appropriate recognition to the relative successes and failures to make no order as to costs. (ii) Whilst the [Commissioner] in his Appeal Statement advised that he no longer sought an increase in the base penalty amount of 20% for obstruction, he did not make this concession at the time of notifying the Applicant of the outcome of his Objection and yet nothing had happened between advising of the Objection Decision and the lodging of the Appeal Application with the Court. Clearly if the Appeal had not been lodged the [Commissioner] would have insisted on the payment of the additional 20%. If it was good enough not to insist on payment of the 20% after lodging an Appeal Application why was it not good enough to make the concession in the Notice of Objection? Clearly the Commissioner has not acted fairly or in good faith despite saying in The Tax Payers Charter that he does so. The gain made by [me] in the abandonment of this 20% uplift in the base penalty should be taken into consideration in determining the level of costs. (ii) Whilst the [Commissioner] in his Appeal Statement advised that he no longer sort the GST on the [Ancath] income, he did not make this concession at the time of notifying the Applicant of the outcome of the Objection and yet nothing had happened between advising of the Objection Decision and the lodging of the Appeal Application with the Court. Clearly if the Appeal had not been lodged the [Commissioner] would have insisted on the payment of this item after lodging an Appeal Application why was it not good enough to make the concession in the Notice of Objection? Clearly the Commissioner has not acted fairly or in good faith despite saying in The Tax Payers Charter that he does so. The gain made by [me] in the abandonment of this item should be taken into consideration in determining the level of costs. (iii) Despite the concession made by the [Commissioner] mentioned above at paragraph 2(b)(ii), the Commissioner has continued to issue demands for payment of the gross amount of his assessments including the GST on the [Ancath] income, together with interest thereon, the most recent demand being a statement of account issued on 24 October 2009 which statement had attached to it a return addressed envelope for payment. [Mr Russell attached an appendix giving particulars of these expenses. In so doing, he did not thereby become entitled to any award of costs in respect of the time which he spent in the preparation for and presentation of his case. ) introduced the notion of costs to the common law, that costs are awarded by way of indemnity (or, more accurately, partial indemnity) for professional legal costs actually incurred in the conduct of litigation. They were never intended to be comprehensive compensation for any loss suffered by a litigant. As Coke observed of the Statute of Gloucester , the costs which might be awarded to a litigant extended to the legal costs of the suit, "but not to the costs and expences of his travell and losse of time" ((5) Coke, Second part of the Institutes of the Laws of England at 288. See also Howes v Barber [1852] EngR 15 ; (1852) 18 QB 588 at 592 [1852] EngR 15 ; (118 ER 222 at 224); Dowdell v The Australian Royal Mail Co. (1854) 3 El and Bl 902 at 906 [1854] EngR 604 ; (118 ER 1379 at 1381). Absent such statutory authority, the Court has no power to award any costs. Mr Russell did not seek an award of costs in respect of the time which he spent in the preparation for and presentation of his case but he did seek disbursements related to his appearance. The latter though are what Coke termed in the passage quoted "the expences of his travell". In my opinion, there is no power to award Mr Russell such costs. This must follow from the proposition that he is not entitled to any award in respect of the costs of the appearance itself. Such travel expenses were not allowed in Cachia v Hanes [1994] HCA 14 ; (1993-1994) 179 CLR 403 at 417, although that outcome is there described as one within the discretion of the taxing officer. Having regard to Coke's observation, the disentitlement might, with respect, have been regarded as absolute rather than discretionary. The position is different in respect of the disbursements incurred by Mr Russell in securing the attendance of Mr McKenzie. These are disbursements in respect of a witness. There is power to make an award in Mr Russell's favour in respect of them. The amounts claimed in this regard strike me as reasonable, even modest. I therefore intend to make an order in Mr Russell's favour in respect of these disbursements. I shall also order that the amount thereof be set off against the percentage costs which I am disposed to award to the Commissioner. I conceive that the interests of justice are best served by an express recognition in Mr Russell's favour of disbursements intimately associated with an issue upon which he enjoyed conspicuous success rather than by some arbitrary adjustment of a percentage of costs otherwise appropriate to award in favour of the Commissioner. It will be apparent from the indication in the preceding paragraph as to the awarding to the Commissioner of a percentage of his costs that I am not disposed to make no order as to costs. Such an order is sometimes made as a matter of discretion in, for example, a case where each party is legally represented and each has enjoyed degrees of success and failure on issues such that, albeit as a matter of advance impression, were there to be issues or percentage based taxations of their respective costs and mutual set off of the resultant awards the end result might be that neither party came to owe the other anything in respect of costs. Even assuming that the parties had enjoyed roughly equal measure of success, to adopt that approach in this instance would be but a different way of giving impermissible recognition by way of set off to costs associated with Mr Russell's case preparation and appearance. This apart, the Commissioner's legal representatives conducted the proceedings with consummate fairness. There has, in relation to the proceedings, been no conduct on the part of the Commissioner or those representing him which would disentitle him to an award of costs. It may, with respect, be that a degree of rigidity of thinking and misconception attended the objection decisions insofar as they affirmed the penalty uplift for obstruction. This is not the first occasion either when in practice or thereafter when I have seen an obstruction based penalty uplift imposed on assessment and maintained on objection only to be abandoned in appeal or review proceedings. Those within the Commissioner's office who conceive such a penalty uplift is applicable on assessment or who review the same on objection would be well advised to read the observations made by Helman DCJ (as his Honour then was) on the subject of what does and does not amount to obstruction in Scanlan v Swan (1982) 61 FLR 468 at 472-473 (Special leave to appeal to the High Court from this decision was granted but then revoked on the hearing of the appeal), a judgment described by Gray J in Australian Federation of Air Pilots v Ansett Transport Industries (Operations) Pty Ltd (No 1) [1991] FCA 61 ; (1991) 28 FCR 379 at 385 as, "helpful". What is relevant for present purposes though is that, in these proceedings, the Commissioner readily and at an early stage conceded that Mr Russell ought to succeed in respect of this aspect of his appeals. That is hardly behaviour consistent with an absence of good faith on the Commissioner's part. The same may be said in respect of the Commissioner's ready and voluntary concession that the amount assessed in the 2002 income year was excessive and in respect of his conceding that the goods and services tax and related penalty assessments were excessive insofar as they related to the "resident agent amount". Assuming for the moment that the Commissioner did, as Mr Russell submitted, as recently as 29 October 2009, press for the payment of outstanding goods and services tax, that is not conduct in respect of these appeals. Further, unless and until the assessment is set aside, the amount of goods and services tax assessed remains payable notwithstanding the institution of an appeal to this Court: s 14ZZR of the TAA. Though I can understand the sense of grievance Mr Russell feels in that he has had to come to court to secure concessions that one might perhaps have hoped would have occurred at the objection stage, in truth there is no evidence of a want of good faith on the part of the Commissioner in relation to these appeals. So far as the determination of a percentage of costs is concerned, there is merit in each of the approaches evident in the submissions of the parties. On the one hand, the Commissioner points to the preponderance of issues upon which he has succeeded. On the other hand, Mr Russell points to the substantial reduction he has achieved in his hitherto assessed indebtedness to the Commonwealth as a result of these appeals. It will recognise the former of these approaches to award the Commissioner the greater part of his costs. However, it would give undue recognition to the latter of these approaches for that greater part to be, before set off or adjustment, the 80% sought by the Commissioner. In my opinion, the percentage that is more appropriate in the circumstances is 66.67% or, expressed another way, two thirds. As it happens, a similar result is achieved by a rough approximation based on a hearing time of six days for the appeals. I agree with the Commissioner's broad estimate in his submissions that the forestry operation issue occupied, in all, no more than a day's hearing time. Allowance ought then also to be made for some at least of the time spent in the making of submissions referable to all of the issues upon which the Commissioner did not succeed. Taking this also into account also results, in my opinion, in the Commissioner being entitled to two thirds of his costs. Mr Russell also enjoyed success in an interlocutory controversy in respect of which I gave directions on 14 March 2008: Russell v Commissioner of Taxation [2008] FCA 343 ; (2008) 168 FCR 330. The costs of and incidental to that interlocutory proceeding should not form part of the Commissioner's costs. There are also other reserved costs. The Commissioner should have two thirds of these as well as those two thirds of the appeal hearing costs. These, in turn, have evidently been drawn by reference to my earlier reasons for judgment. I was initially inclined to think that, in respect of the 2001 income year, I should make an order confirming the objection decision insofar as it concluded that the assessment in respect of the 2001 year was not excessive but on the basis that Mr Russell's taxable income for that year was $1869.23 higher than that assessed and thus his assessed tax was in fact lower than that payable in respect of that higher taxable income. The draft proposes the making of such an order. Were I to have made an order remitting the matter so as to enable the making of an amended assessment increasing Mr Russell's taxable income, I should also have had to set aside the objection decision insofar as it related to that year and to declare what was his true taxable income for that year. However, neither party has contended for such a remitter order. On reflection, that poses something of a conundrum. What has occurred is that Mr Russell has failed to show that an assessment confirmed on objection is excessive for the reason that the Commissioner has shown that his taxable income was in truth higher than that assessed. Relevantly, the actual decision on the objection was to confirm the assessment. While the power granted by s 14ZZP of the TAA is broadly stated, it expressly includes a power to confirm or vary the objection decision , not the reasons for that decision. The Commissioner has not sought to have the objection decision set aside, instead opining in submissions that he may nonetheless be able to amend the assessment for that income year if the statutory conditions for so doing are met. In these circumstances, I consider that I should do nothing more in respect of this income year than to dismiss the appeal insofar as it relates to that income year. Save as aforesaid and with the addition of the orders foreshadowed as to costs and making provision for remitter in respect of the income tax penalty assessment, I shall make orders in terms of the proposed short minutes. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

whether court has power to remit a matter to the commission of taxation to amend an income tax assessment so as to increase the amount of an appellant taxpayer's taxable income for a given income year neither party seeking order of remission for this purpose held question of whether court has the power remains an open question held in appropriate in the circumstances to determine question or order remitted. whether costs should be awarded on a percentage basis according to the relative success of each party at trial held award of costs on a percentage basis the appropriate method where appellant self-represented held appellant not entitled to award of costs in respect of the preparation and presentation of his case whether appellant entitled to disbursements related to his appearance held no power to award such disbursements whether appellant entitled to disbursements in respect of a witness held power to award such disbursements costs awarded on a 1/3:2/3 basis in favour of the respondent commissioner of taxation, subject to set off of appellant's permissible disbursements taxation costs

His application related to an unsuccessful claim for compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth). In the following week I caused Comcare to be called on not to enter judgment. I then foreshadowed the possibility that I would exercise my power to set aside my judgment, then allow Mr Wiegand's application, set aside the Tribunal decision in question and remit the matter to the Tribunal to be reheard and determined: see O 35 r 7(1) of the Federal Court Rules . 2 My reason for so acting can be shortly explained. On 29 November 2006 I heard a matter in another judge's docket which involved an appeal under the AAT Act, this time by Comcare, raising an issue of construction of the definition of "disease" in s 4(1) of the SRC Act which was contrary to that assumed to be, or else accepted by Comcare as, correct in the earlier matter and on which I had relied. Different counsel appeared in each matter. 3 It was only during the hearing of the latter matter that I became aware of the dictum of French and Stone JJ in Comcare v Canute [2005] FCAFC 262 ; (2005) 148 FCR 232 at [63] - [66] with which, with respect, I agreed, but which nonetheless was inconsistent with the test that I had applied in Wiegand . 4 On 19 January 2007 I delivered judgment in the latter matter. I upheld the construction of the s 4(1) definition propounded by Comcare, but dismissed the application on the basis that it would be futile to remit the matter having regard to the findings made by the Tribunal: Comcare v Sahu-Khan [2007] FCA 15. 5 I subsequently heard the parties in this matter on the question whether my judgment should be set aside and the orders made that I had foreshadowed. On 16 February 2007 I made those orders. Accepting that the discretion to set aside a judgment not entered should be exercised with caution, I am satisfied that the circumstances of this matter warrant the course I have taken. A miscarriage of justice is being averted. 6 The question of construction I decided in Sahu-Khan concerned the proper construction to be given the phrase "in a material degree" in the definition of "disease" in s 4(1) of the SRC Act. Put shortly "disease" is defined to mean any ailment or aggravation of any ailment suffered by an employee "that was contributed to in a material degree by the employee's employment by the Commonwealth". In conformity with the dictum in Canute , I held that the phrase imposed a more demanding requirement of contribution than had conventionally been considered to be the case, largely because of misplaced reliance upon observations made in Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at 323 (a decision under earlier and differently worded legislation). 7 It clearly was the case in the present matter that Dr Coyte, the medical practitioner whose evidence the Tribunal accepted, gave his evidence concerning what matters contributed in a material degree to Mr Wiegand's condition after being directed by the Tribunal in accordance with the less exacting Treloar test. That direction was given after Dr Coyte had been asked by Mr Wiegand in oral examination about whether his employment did or did not contribute materially to his condition, to which Dr Coyte replied: "one would have to define what degree of contribution is material". 8 I am satisfied that Dr Coyte's evidence was contrived by the Treloar direction. I am not satisfied that it would not have been different and more discerning if he had been properly directed. Given the significance attributed to Dr Coyte's evidence in the Tribunal's reasons, I am not prepared to say that it would be futile to remit the matter to the Tribunal because if it applied the proper test it would nonetheless be driven ineluctably to the same conclusion. 9 Accordingly, I have made the orders I earlier foreshadowed. I would add that, in my view, Comcare should have appropriate procedures in place to ensure consistency in the stances it takes on matters of statutory interpretation. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

set aside judgment not entered to avert miscarriage of justice o 35 r 7(1) federal court rules relevant authority discovered in different proceedings authority inconsistent with authorities applied whether remittal to the administrative appeals tribunal futile practice and procedure administrative law

The Tribunal's decision affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant the appellant a protection visa. The appellant failed to appear before the court this morning. The respondent elected to deal with the matter on the merits rather than in default of appearance. The background facts and circumstances are set out comprehensively in the reasons of the Tribunal, and I particularly refer to pages 4, 5 and 6 of the Tribunal's reasons, which are contained at pages 129, 130 and 131 of the Appeal Book. 3 One of the background facts of significance in this particular matter is that the Tribunal invited the appellant to attend before the Tribunal and put before the Tribunal any evidence upon which he may seek to rely. The appellant indicated to the Tribunal that he would attend such a hearing, but failed to do so. In the proceedings before Federal Magistrate Baumann, the appellant was ordered to file a written outline of submissions 14 days prior to the hearing, and also failed to do so. And the appellant has failed to appear before the court this morning. 4 There is, no doubt, consistent with authority, that the Tribunal was entitled to proceed to determine pursuant to s 426A of the Migration Act 1958 (Cth) the matters before it, upon the failure of the appellant to appear at the hearing. The appellant has failed to demonstrate any foundation for any jurisdictional error on the part of the Tribunal, and in consequence, has failed to establish that Federal Magistrate Baumann fell into error by failing to find jurisdictional error on the part of the Tribunal. 5 Accordingly, the appeal must necessarily be dismissed with costs. 6 Leave is given to amend the title of the respondent Minister to 'Minister for Immigration and Citizenship'. Leave is given to join the Refugee Review Tribunal as a second respondent consistent with the decision of the High Court in SAAP v Minister for Immigration and Multicultural Affairs [2005] HCA 24 ; (2005) 215 ALR 162. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of a claim of error on the part of the federal magistrate in failing to find jurisdictional error on the part of the refugee review tribunal. migration

To that end, unless a provision of the Native Title Act provides otherwise, a future act is invalid to the extent that it affects native title: s 24OA Native Title Act . Section 227 of the Native Title Act states that, "An act affects native title if it extinguishes the native title rights and interests or if it is otherwise wholly or partly inconsistent with their continued existence, enjoyment or exercise" (Emphasis in the original). 2 The Second Respondent, Queensland Water Infrastructure Pty Ltd (QWI), is the company responsible for the development of the Traveston Crossing Dam. Stage 1 of that development involves the construction of a new dam in the Mary River, about 100 km north of Brisbane and some 27 km upstream from Gympie. The total project area for Stage 1 is some 3000 hectares. QWI is obliged under Queensland subordinate legislation made under the Water Act 2000 (Qld) to "take all necessary steps to prepare for, and construct, the Traveston Crossing Dam Stage 1" by 31 December 2011: s 87(1)(a) and Sch 10B, Item 12 Water Regulation 2002 (Qld). The development is one of a number of measures conceived by the Queensland Governor in Council to be necessary to be carried out to ensure the security of essential water supplies to the South-East Queensland region: s 82 Water Regulation 2002 (Qld). 3 The project for the development of the Traveston Crossing Dam Stage 1 is a "future act" for the purposes of the Native Title Act : s 233 , definition of "future act" and s 226 , definition of "act". 4 One way in which validity can be secured under the Native Title Act in respect of a future act which affects native title is via what is known as an "indigenous land use agreement" (ILUA). Once such an agreement is registered by the Native Title Registrar (the Registrar) on the Register of Indigenous Land Use Agreements (the Register), a future act is valid to the extent that it affects land or waters in the area covered by the ILUA: s 24EB Native Title Act . 5 Conceiving that it may be possible that native title might exist in respect of at least some areas within the project area, and so as to ensure the validity for the purposes of the Native Title Act of the undertaking of the proposed works, QWI entered into negotiations with persons who claimed to hold native title within or which overlapped the project area. QWI's aim was to secure the making and subsequent registration of a particular type of ILUA known as an area agreement. 6 The requirements for the making and registration of such an ILUA are set out in Subdiv C of Div 3 of Pt 2 of the Native Title Act (s 24CA to s 24CL). It will be necessary later to consider these requirements in some detail. 7 The culmination of the negotiations was the making of what at least purported to be an area agreement. It is known as the Traveston Crossing Dam Indigenous Land Use Agreement (the Traveston Dam Agreement). 8 QWI subsequently applied to the Registrar to register the Traveston Dam Agreement on the Register. Section 24CJ of the Native Title Act requires the Registrar to decide whether or not to register an agreement. On 14 April 2008 the First Respondent, a delegate of the Registrar (the Delegate), decided to register the Traveston Dam Agreement. The Delegate later, on 19 May 2008, furnished reasons for her making that decision. 9 The Applicants are each persons who claim to hold native title in relation to the project area. It is no part of the court's role in this case to decide whether or not they do in fact hold native title. Pursuant to the Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act), the Applicants have sought the judicial review of the agreement registration decision made by the Delegate. 10 Neither the question of whether the agreement registration decision was amenable to review under the AD(JR) Act nor, in the end, the question of whether the Applicants were "persons aggrieved" proved to be controversial issues in this case. It suffices therefore to do no more with respect to these subjects than to record that I am satisfied that the decision is one amenable to review under the AD(JR) Act and that, for the purposes of that Act, the Applicants are each "persons aggrieved". 11 Given that QWI was an active contradictor, the Delegate properly took the stance of abiding the order of the court and not wishing to be heard save if need be in respect of costs: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13 ; (1980) 144 CLR 13 , at 17, 35-36. 12 For the reasons which follow, I have concluded that the various grounds upon which, by their amended application, the Applicants sought the judicial review of the agreement registration decision do not lead to the result that the decision should be set aside. Work done under the Traveston Dam Agreement is therefore a valid future act for the purposes of the Native Title Act . 14 The underlined grounds were added by amendment by leave. Though the granting of leave was opposed by QWI, it seemed to me that the further grounds had been foreshadowed sufficiently far in advance of the hearing by the Applicants as not to be unfair to entertain them and that they did not occasion any evidentiary embarrassment. 15 The grounds of review do, as QWI submitted, lend themselves to grouping by category of challenge. As pleaded, ground 1(h) is a derivative ground whose fate depends upon the fate of grounds 1(a) to 1(g). Prima facie , ground 1(e) appears to be an impermissible solicitation to conduct merits review of the Delegate's decision. Nonetheless, I have considered it in conjunction with other grounds in the way now indicated. 16 Before so doing, some preliminary observations ought to be made about the material provisions of the statutory scheme for the registration of an ILUA and about the ability of the Applicants in these proceedings to challenge whether the Traveston Dam Agreement is in law an area agreement. Such an agreement is termed an "area agreement": see the heading to Subdiv C of Div 3 of Pt 2 of that Act, "Indigenous land use agreements (area agreements)" which heading forms part of that Act by virtue of s 13(1) Acts Interpretation Act 1901 (Cth). It is from that heading that the term "area agreement" is derived for this particular type of ILUA. Other types of ILUA for which the Native Title Act makes provision are what that Act terms a "body corporate agreement" (Subdiv B of Div 3 of Pt 2 refers) and an "alternative procedure agreement" (Subdiv D of Div 3 of Pt 2 refers) respectively. 18 Section 24CB requires that an area agreement must be about one or more of a number of specified matters about an area. If there are registered native title bodies corporate for the whole of a particular area, an area agreement must not be made in respect of that area: s 24CC Native Title Act . Were this to be the case in this instance, and it is not, a body corporate agreement would be the apt type of ILUA. 19 Those who may be parties to an area agreement are specified in s 24CD of the Native Title Act . It is mandatory that all persons in the relevant "native title group" be parties to an area agreement: s 24CD(1). 20 A "native title group" is an artificial statutory construct the membership of which depends in the first instance upon whether, in relation to any of the land or waters in the area, there are registered native title claimants or registered native title bodies corporate or, in respect of any non-claimed or non-determined part of an area, any representative Aboriginal/Torres Strait Islander body: s 24CD(2). Where, as here, none of the foregoing is applicable, the "native title group" consists of the person or persons who claim to hold native title in relation to the land or waters of the relevant area: s 24CD(3)(a). 21 The statutory provision for the making of an area agreement in respect of an area even where there are no registered native title claimants or registered native title bodies corporate balances two of the main objects of the Native Title Act . Out of an abundance of caution and evidencing the recognition by the Parliament of the importance of native title, it liberalises membership of a "native title group" in those circumstances to the extent of permitting those who do nothing more than claim to hold native title in relation to an area to have an opportunity to be heard and to have an opportunity to participate in decision-making. In this fashion the provision can be seen as a benign endeavour, out of an abundance of caution, to preserve native title where it may exist, fulfilling the object in s 3(a) Native Title Act . At the same time, by permitting the making in such circumstances of a consensual agreement the effect of which may be to extinguish native title by a future act done under the authority of a registered agreement, the Native Title Act serves the object in s 3(b) by establishing a way in which a future dealing concerning native title may proceed. 22 If an agreement makes provision for the extinguishment of native title rights and interests in relation to an area by their surrender to the Commonwealth, a State or a Territory, the body politic concerned must be a party to the area agreement: s 24CD(5). Even where an area agreement does not make such provision, it is still permissible, but not mandatory, for a body politic to be a party to an area agreement: ibid. Any other person may be a party to an area agreement: s 24CD(6). In this fashion, QWI was eligible to be a party to the Traveston Dam Agreement. 23 Providing the same are lawful, an area agreement may be made for such consideration or be subject to such conditions as the parties may agree: s 24CE Native Title Act . 24 Those wishing to make an area agreement may seek the assistance of the National Native Title Tribunal or of a recognised State or Territory body in negotiating the agreement: s 24CF Native Title Act . 25 Any party to an area agreement may, if all of the other parties to the agreement agree, apply to the Registrar for the agreement to be registered on the Register: s 24CG(1). 26 So far as "authorise" is concerned, a footnote to s 24CG(3)(b) refers the reader to s 251A of the Native Title Act . Strictly, a footnote does not form part of an Act: s 13 Acts Interpretation Act . Nonetheless, notwithstanding some infelicity in its drafting, it is tolerably clear that s 251A does give content to what amounts to "authorise" for the purposes of s 24CG(3)(b)(ii) of the Native Title Act . Further, the better view is that, when s 24CG(3)(b)(ii) and s 251A are read together and in the context of the Native Title Act as a whole, they admit of circumstances in which authorisation by a majority of those who comprise a "native title group" is possible. Put another way, in relation to authorisation of an area agreement, the word "all" in s 24CG(3)(b)(ii) does not, when read together with s 251A and in the context of the Native Title Act as a whole, mean that a single dissentient or non-participant will invariably have an ability to veto the authorisation of an agreement. To reach that conclusion requires a detailed consideration of the legislation and prior authority, which I set out below in my discussion of the merits of the grounds of review. 27 The Registrar is permitted to give such assistance to a party as the Registrar considers reasonable to prepare an application and its accompanying material: s 24CG(4). 28 Upon receipt of an application, the Registrar is obliged to give notice of the making of the agreement to the Commonwealth Minister administering these provisions of the Native Title Act , the relevant State or Territory Minister if the agreement covers an area within the jurisdictional limits of a particular State or Territory, any representative Aboriginal/Torres Strait Islander body and the local government body responsible for the area the subject of the agreement as well as to the public: s 24CH(1). The required contents of such a notice are set out in s 24CH(2) and s 24CH(3). Though in certain circumstances there is scope for the making of a formal objection to the registration of an area agreement (s 24CI) , these are not applicable in respect of the Traveston Dam Agreement. 29 Notice having been given, the Registrar, as already noted, must decide whether or not to register it on the Register: s 24CJ. 30 Section 24CL of the Native Title Act is applicable to the making of a registration decision in respect of a registration application containing a statement as mentioned in s 24CG(3)(b). The application for the registration of the Traveston Dam Agreement is of that type. In essence, s 24CL obliges the registration of an agreement if two conditions which it specifies have been met and forbids registration of they have not been met. 31 One of those conditions, described in s 24CL(2) as "the first condition", is not applicable in the circumstances of this case. That is because there was no person who, in respect of the area the subject of the Traveston Dam Agreement, either at or after the end of the notice period was or became a registered native title claimant or a registered native title body corporate. (Emphasis added). 33 As a matter of construction, the use of the verb "considers" in s 24CL(3) has the effect of placing that subsection within "that category of laws whose operation is made conditional upon the opinion or satisfaction as to certain matters of a designated authority or person, with the consequence that the merits of the matter are not examinable upon judicial review": The Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297 , at 303. As the High Court found in that case (ibid), the word "considers" was used to that end in the legislation then under consideration. Later, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 650, [127] et seq, Gummow J, who had been a member of the Full Court which delivered the unanimous joint judgement in The Australian Heritage Commission Case , comprehensively analysed this type of statutory provision and the amenability of decisions made thereunder to judicial review. Moreover, a person affected will obtain relief from the courts if he can show that the authority has misdirected itself in law or that it has failed to consider matters that it was required to consider or has taken irrelevant matters into account. Even if none of these things can be established, the courts will interfere if the decision reached by the authority appears so unreasonable that no reasonable authority could properly have arrived at it. However, where the matter of which the authority is required to be satisfied is a matter of opinion or policy or taste it may be very difficult to show that it has erred in one of these ways, or that its decision could not reasonably have been reached. This passage is consistent with the proposition that, where the criterion of which the authority is required to be satisfied turns upon factual matters upon which reasonable minds could reasonably differ, it will be very difficult to show that no reasonable decision-maker could have arrived at the decision in question. It may be otherwise if the evidence which establishes or denies, or, with other matters, goes to establish or to deny, that the necessary criterion has been met was all one way. Referring for this purpose to s 24CL , QWI submitted that, "if certain conditions are satisfied, the Registrar must register the ILUA; if the conditions are not satisfied, the registrar must not register the agreement". Thus, so QWI submitted, it was no part of the Registrar's function to decide whether what was presented for registration was an ILUA whereas the Applicants submitted to the contrary. 36 The error in QWI's submission is apparent on its face. Section 24CJ empowers the Registrar to register an "agreement", i.e. the particular type of ILUA known as an area agreement for which Subdiv C of Div 3 of Pt 2 of the Native Title Act provides, not any agreement. Section 24CA is cast in imperative terms, "an agreement meeting the requirements of s 24CB - 24CE is an indigenous land use agreement " (emphasis in original). Section 24CB of the Native Title Act is equally imperative --- "the agreement must be about one or more of the following matters in relation to an area". If it does not, the Registrar is both entitled and obliged not to register it on the Register, even if the conditions in s 24CL are otherwise met. It is necessary to say "otherwise" because s 24CL itself is predicated on the application for registration being in respect of what is truly an "agreement". The extent to which the Registrar has cause in a given case to investigate whether an agreement presented for registration meets the requirements of s 24CB - 24CE may depend upon whether and to what extent there is an assertion of non-compliance with those requirements. The absence of any such assertion would not though thereby confer validity on an agreement which manifestly did not meet those requirements. 38 QWI likewise submitted that the Delegate's preliminary conclusion that the Traveston Dam Agreement was an ILUA for the purposes of the Subdiv C of Div 3 of Pt 3 of the Native Title Act was not amenable to review in the context of the present application under the AD(JR) Act for the review of the Delegate's registration decision. It is true that the preliminary decision would not constitute a "decision" for the purposes of the AD(JR) Act, but it by no means follows that whether what is presented for registration is indeed an ILUA is immune from challenge upon the judicial review of the registration decision. 39 The Delegate was perfectly entitled, as a matter of good public administration, to reach a preliminary view about whether the agreement presented with the application was an ILUA, but the decision to register the same necessarily carried with it the maintenance of that preliminary view that the agreement was an ILUA. For it was only such an agreement that the Delegate was empowered to register. The only decision which falls to the Registrar (or a delegate) to make under Subdiv C of Div 3 of Pt 3 of the Native Title Act which has the requisite quality of statutory provision and affectation of legal rights to make it a "decision" for the purposes of the AD(JR) Act is a decision under s 24CJ as to whether or not to register an agreement on the Register: Griffith University v Tang [2005] HCA 7 ; (2005) 221 CLR 99 , at 130-131, [89]. 40 One permissible ground of review under s 5 of the AD(JR) Act is "that the decision was not authorized by the enactment in pursuance of which it was purported to be made" (s 5(1)(d)); another is "that the decision involved an error of law, whether or not the error appears on the record of the decision" (s 5(1)(f)); yet another is "that the decision was otherwise contrary to law" (s 5(1)(j)). Each or any of these grounds would be apt as a ground for the challenging, on the basis that it was not in law an ILUA, of what purported to be a decision by the Registrar under s 24CJ to register an agreement. 41 A decision to register an agreement which was not an ILUA would be no decision under s 24CJ of the Native Title Act at all: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at 614-615, [51] per Gaudron and Gummow JJ. Contrary to the submission of QWI, a challenge on such a ground is quite different to a challenge on an alleged error of law said to arise in the failure of an administrative decision-maker to find a fact, which is not a "jurisdictional fact", where such a finding was never sought before the decision-maker and where its materiality is asserted for the first time on "appeal" or judicial review. Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901 ; (2000) 106 FCR 157 at 175-176, [86] --- [90] and the authorities there discussed by Carr J highlight the difficulty of contending that such a failure is an error of law but such cases are quite different from one where the power to register is only exercisable if what is presented for registration is indeed an ILUA. 42 Further, that there may be other means of challenge to whether the Traveston Dam Agreement is an ILUA, e.g. by way of an application to this Court for declaratory relief under s 39B(1A)(c) Judiciary Act 1903 , does not mean that it is not open for the Applicants in this proceeding to raise grounds going to whether the Traveston Dam Agreement is in law an ILUA. Where the material "jurisdictional fact" is a state of administrative satisfaction that does not leave much scope for the operation of s 5(3)(a). When one recalls the impact of the use of the word "considers" in relation to the "second condition" for which s 24CL provides and that it is evident from the Delegate's reasons that she "considered" that the second condition was satisfied, the "particular matter" to which s 5(3)(a) of the AD(JR) Act refers is, in that language of that paragraph, "established". 45 In Australian Retailers Association v Reserve Bank of Australia , Weinberg J also offered (148 FCR at 587, [578]), a succinct summary of the views expressed by Black CJ (with whom Spender and Gummow JJ agreed) in Curragh Queensland Coal Mining Ltd v Daniel [1992] FCA 44 ; (1992) 34 FCR 212 in what has become a seminal judgment as to the effect of s 5(3)(b) of the AD(JR) Act. 46 The views expressed in Curragh Queensland Coal Mining in relation to s 5(3)(b) of the AD(JR) Act were cited with approval by various members of the High Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 210 at 234. [33] per Gleeson CJ; at 257-258, [115] --- [118] per Kirby J; at 267, [140] per Callinan J. 47 Grounds 1(a), 1(c), 1(e) and 1(f) each seek to challenge the opinion of the Delegate that the "second condition" was met. 48 The Delegate's reasons reveal that she came to consider whether the "second condition" was met under two headings --- "Were 'all reasonable efforts' made? " and "Authorisation (s 24CG(3)(b)(ii))". In this commendably focussed fashion, the Delegate expressly directed herself to the very subjects consideration of which s 24CL(3) of the Native Title Act required, i.e. whether the twofold requirements of s 24CG(3)(b) were met. Again recalling the impact of the verb "considers" in s 24CL(3) , what that subsection required in this regard was the making of a value judgement by the Delegate on the basis of the material before her. 50 The Delegate's reasons further record and the evidence before her was that the consequential, so-called "identification meeting" held in February 2007 was attended by 29 community members who were described at that meeting as being from the Kabi Kabi people #2 (an unregistered claim), Kabi Kabi People #3 (dismissed claim) and the Gubbi Gubbi #2 (an unregistered group). 51 As the opening words of the passage quoted from her reasons highlight that she clearly appreciated, the Delegate was required to come to an opinion as to the efforts made to identify those who may hold native title in respect of the area to which the Traveston Dam Agreement related. For it was those persons who would comprise the members of that artificial statutory construct known as a "native title group". The Delegate's reasons summarise the course and content of subsequent meetings and evidence a reflective consideration of the appropriateness of the choice of meeting venues, intervals and discussions. Her opinion that all "reasonable efforts" had been made was one which was reasonably open on the evidence before her. In their written submissions the Applicants expressly disclaimed any challenge to the lawfulness of the formation of that opinion. No further consideration of that aspect of her decision is necessary. 52 The Delegate next directed her attention to the question of "authorisation". Point four of that document states a decision-making process to authorise the ILUA was discussed and agreed upon by the elders and then put to the community (those in attendance) to vote. The affidavits of the asserted native title holders also set out the way in which the agreed decision-making process was adopted (nothing the process was accepted unanimously). The process agreed upon was on e where initially the elders meet to discuss and possibly make decisions about the proposal and then those descended from the group's apical ancestors (a list of persons agreed upon by the elders) meet with the elders to receive and consider their decision. The community decision requires consensus, or a majority vote (see Resolution 2). It was also agreed that no elder, single family or individual should have a right to veto. In relation to authorisation the material informs that the elders discussed and agreed in a private meeting who should be authorised to execute the agreement on behalf of the Kabi Kabi people. The elders agreed on six persons and when the result ion was put to the community to vote, one further name was added and then a resolution was passed to accept the elders' recommendation. The statutory declaration of Jodi Lee-anne Rutherford states that during the negotiation process a Dr Fesl, on behalf of the Gubbi Gubbi People voiced, though her legal representative, that they no longer consented to the agreement. This was reflected in the affidavit of Mr Elston and reference is made to that person requesting the opportunity to voice their objection and being provided the opportunity to do so at the authorisation meeting. The information provided to the Registrar by the Application about the identification and authorisation process also also accounts for the expression of non-consent. The statement notes the following things were done in an attempt to ensure that the Gubbi Gubbi People received adequate notice: • The objection to the agreement was made by the Gubbi Gubbi People on 4 June 2007 at a negotiation meeting and they then withdrew from the agreement making process. The Gubbi Gubbi People did, however, remain involved in the negotiation of the Cultural Heritage Investigation Management Plan. • It was indicated to the Gubbi Gubbi People that negotiations would continue. • The known representatives of the Gubbi Gubbi People were personally hand-delivered a copy of the newspaper advertisement for the authorisation meeting. Their legal representative was also provided with a copy of that advertisement. • Enquiries were made with the Gubbi Gubbi People legal representative for information on what other individuals were in the group so they too could be notified of the authorisation meeting. No information was forthcoming. • Two persons named on the discontinued Gubbi Gubbi People register extract were contacted and the correspondence was filed noted and forms part of Jodhi Rutherford's statutory declaration. Relying on the above information, I am of the view that what was asserted to be the case in affidavit material is supported by meeting minutes and has integrity. It is also my opinion that the Gubbi Gubbi People withdrew voluntarily form the proceedings on matters of principle (apparently environmentally driven); at no time did they assert they ought not be regarded as part of the Kabi Kabi People. Therefore I infer that because it is accepted that the Gubbi Gubbi People were part of the Kabi Kabi People, they were bound by the decision to authorise the Agreement. The above information causes me to be satisfied that the second registration condition is met. It further shows that, of the Applicants, Dr Fesl and Mr Serico attended that meeting while Mr Chapman was not present. Dr Fesl and Mr Serico voted against the authorisation resolutions. They were the only attendees so to do. 54 There was evidence (statutory declaration of Ms Lurlene Henderson dated 12 September 2007, affidavit dated 7 September 2007 of Lynette Johannessen and affidavit dated 11 September 2007 of Alexander Davidson) before the Delegate, to which she referred in her reasons, to the effect that, in spite of the different names and spellings used for the Kabi Kabi and Gubbi Gubbi, each referred to the same group of people. The Delegate's consequential conclusion, which was also open on the evidence, was that Kabi Kabi, Gubbi Gubbi and other variant spellings were ways of naming one broader group of related persons who, together, assert native title interests in relation to the project area. 55 The Delegate's reasons also recite, based on the statutory declaration of Ms Lurlene Henderson dated 12 September 2007, that the Kabi Kabi people did not have a traditional decision-making process that dealt with ILUA. Again, this was a conclusion open to the Delegate on the evidence. 56 It necessarily follows that, insofar as the Applicants seek to advance any "no evidence" administrative law error ground in respect of these evidentially supported conclusions of the Delegate, the challenge is without merit. Likewise, in the face of such conclusions, grounds which seek to differentiate the "Gubbi Gubbi" people and their alleged traditional decision-making processes can have no substance. It is not for this Court on judicial review to decide on the merits matters which were consigned by the Parliament to the Registrar (or a delegate) to "consider". (Emphasis given by me to the words "persons holding native title"). Yet the correctness of that thought is immediately challenged by the use of the words "hold or may hold" in each of para (a) and para (b) which follow the section's preamble and by the knowledge that there is no other section in the Native Title Act which is directed to how an ILUA may be "authorised". 59 Both the Applicants' and QWI's submissions proceeded upon the assumption that it was s 251Athat fell for consideration in relation to "authorisation". The explanation given to cl 24CG(3)(b) in the explanatory memorandum to the Native Title Amendment Bill 1997 which, after further amendments not presently relevant were incorporated, became the Native Title Amendment Act 1998 (Cth), which inserted s 24CG and s 251A into the Native Tile Act , makes reference to "potential native title holders" and also makes reference to cl. 251A as supplying the method of authorisation. Finally, in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38 , which was a case where the native title group included those who were but potential native title holders, Branson J and all parties to that case evidently proceeded upon the assumption that s 251A fell for consideration in relation to the authorisation of an ILUA. 60 The symmetry of language "hold or may hold" in the paragraphs of s 251A and s 24CG(3)(b) is striking, as are the references in s 251A to "authorise" and "indigenous land use agreement". It seems to me that this is one of those cases where the draftsman has made a mistake and that it is permissible to construe the reference in the preamble to s 251A to "persons holding native title" as if it read "persons holding or who may hold native title": Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297. I therefore consider that the assumption made by the Applicants and QWI in relation to s 251A was not misplaced. 61 The findings of fact made by the Delegate were such that para (a) of s 251A of the Native Title Act had no application. 62 The Applicants advanced a submission based on the proposition that s 251A was premised on the existence of a single community or other group and that the section could not apply if the community or group were not established on the evidence. Support for this submission was said to be found in the reasons for judgment of Branson J in Kemp v Native Title Registrar [2006] FCA 939 ; (2006) 153 FCR 38. This can be seen from the reference in paragraph (a) to a process of decision-making that, under the traditional laws and customs of the persons who hold or may hold the common or group rights comprising the native title, must be complied with in relation to authorising things of that kind. It is hard to imagine any such process of decision-making where the respective claims of two groups to hold the native title are in conflict; it would require traditional laws and customs in relation to jointly authorising things binding on the members of both groups. That finding was open on the material before her. Kemp's case was decided against the different background of there being conflicting claimant groups, not one group in which there happened to be differing views. Kemp's case is thus distinguishable. 64 A noteworthy feature of Kemp's case is that it is not apparent that any of the parties drew her Honour's attention to a body of authority which had developed in relation to s 251B of the Native Title Act , which makes provision in terms analogous to those of s 251A for how "authorisation" by a "native title claim group" of a native title determination application or a compensation application or dealing with matters relating to the same is to occur. QWI referred me to certain of these authorities, one decided before Lawson's case, the other afterwards but which made reference to prior authority. This was in support of its submission that, on the evidence before her, the Delegate's finding that due "authorisation" of the Traveston Dam Agreement by the native title group had occurred was one open in law for her to reach. 65 A consideration of the authorities concerned is assisted by setting out the material provisions in the Native Title Act . (1) A person or persons authorised by all the persons (the native title claim group) who, according to their traditional laws and customs, hold the common or group rights and interests comprising the particular native title claimed, provided the person or persons are also included in the native title claim group; or Note 1: The person or persons will be the applicant: see subsection (2) of this section. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. She cited examples of this experience drawn from earlier cases. The case before her Honour was one where there was no relevant traditional decision-making process capable of dealing with the decisions that needed to be made to progress the claim and to resolve the problem of who was to represent the native title claim group. At issue in Lawson's case was whether a decision-making process adopted in the absence of a traditional decision-making process had resulted in a valid "authorisation" in terms of s 251B of the Native Title Act . The effect of the section is to give the word 'all' a more limited meaning than it might otherwise have. If there is no traditional process of decision-making 'in relation to authorising things of that kind' then, in accordance with s 251B(b) , authorisation in accordance with a process of decision-making 'agreed to and adopted, by the persons in the native title claim group' is sufficient. In s 251B(b) there is no mention of 'all' and, in my opinion the subsection does not require that "all" the members of the relevant claim Group must be involved in making the decision. Still less does it require that the vote be a unanimous vote of every member. Adopting that approach would enable an individual member or members to veto any decision and may make it extremely difficult if not impossible for a claimant group to progress a claim. In my opinion the Act does not require such a technical and pedantic approach. It is sufficient if a decision is made once the members of the claim group are given every reasonable opportunity to participate in the decision-making process. In that case, however, there was evidence that all the claimants were given a reasonable opportunity to participate in the authorising process. Other judges have observed that notwithstanding the references to 'all' in s 61, it may be sufficient, at least in some cases, that applicants are authorised by a majority of the persons in the claim group (Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [40] ), or all of those whose whereabouts are known and have capacity to authorise (Quall v Risk [2001] FCA 378 at [33] ), or '"all" those who are reasonably available and who are competent to express an opinion' (De Rose FCA/O'Loughlin at [928]). " (Internal case citations where not given by his Honour in passage quoted not reproduced). 70 Also relevant, so far as the meaning and effect of s 251B of the Native Title Act is concerned, is a decision of the Full Court, to which I was not referred by QWI: Noble v Mundraby, Murgha, Harris and Garling [2005] FCAFC 212 (North, Weinberg and Greenwood JJ). The section accommodates a situation where a native title claim group agrees to follow a particular procedure for a particular decision even if other procedures are normally used for other decisions. Nor does s 251B require a formal agreement to the process adopted for the making of a particular decision. Agreement within the contemplation of s 251B may be proved by the conduct of the parties. There was evidence in this case that the claim group conducted itself at the meeting on the basis that it agreed to a vote by the members of the group to determine the question of authorisation. All persons present voted in favour of the motion. Nobody is recorded as leaving the meeting or refusing to vote or in any other way conducting to indicate dissent from the course adopted. There was thus evidence from the conduct of the claim group on which the primary judge could base his conclusion that the requirements of s 251B were satisfied. 72 Section 251A plays an identical role in relation to native title group "authorisation" decisions as referred to in s 24CG(3)(b)(ii) to that which s 251B plays in relation to native title claim group "authorisation" decisions under s 61 of the Native Title Act . The language employed in s 251A compared to that in s 251B is very similar and each gives content to the word "authorise" in a provision in which the word "all" appears in relation to the making of "authorisation" decisions. The analogy of application between the two sections is indeed a close one. In my opinion therefore, each of the propositions which I have distilled from cases concerning s 251B has like application, mutatis mutandis , to the meaning and effect of s 251A and in relation to the impact of that section on "authorisation" for the purposes of s 24CG(3)(b)(ii) of the Native Title Act . In turn that means that the Delegate was entitled to conclude that the "second condition" for which s 24CL of the Native Title Act provides was satisfied. 73 The facts of this case make it unnecessary to decide whether and to what extent principles to be distilled from cases concerning s 251B are congruent with all of the observations made by Branson J in Kemp's case in relation to s 251A. 74 What is clear, having regard to the analogies to be drawn in relation to s 251A(b) from the case law in relation to s 251B(b) , is that the process which led up to the so-called "authorisation meeting" of 11 August 2007 was lawful, as was the process of decision-making at that meeting. The non-participation or, as the case may be, dissent of the Applicants did not affect the validity of the authorisation decision which was made in respect of the making of the Traveston Dam Agreement. There was evidence before the Delegate by reference to which she was entitled to conclude that the authorisation decision had been duly made and that each of the Applicants had been given a reasonable opportunity to participate in the adoption of a decision-making process and in the decision-making process itself. 75 There is no merit in grounds 1(a), 1(c), 1(e) and 1(f) of the application. A consideration will be "relevant" or, as the case may be, "irrelevant" if the legislation concerned either expressly or by necessary implication either requires or, as the case may be, forbids it to be taken into account by a administrative decision-maker in the making of a decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1985-1986) 162 CLR 24 at 39-40. 77 Section 24CL of the Native Title Act makes provision for registration of an agreement only if particular conditions are satisfied, and forbids registration if they are not. The conditions for which s 24CL provides are "relevant considerations". Of those conditions, what is made "relevant", so far as the "second condition" is concerned, is that the Registrar (or a delegate) considers that the requirements of s 24CG(3)(b) are met. In turn, in considering that question, it is s 24CG(4) which supplies matters which are "relevant". For reasons which I have already given when discussing the statutory scheme, whether the requirements of s 24CG(3)(b) were in fact met is not a "relevant consideration" in the exercise of the power to register an area agreement. 78 I have already noted that the conditions in s 24CL are imposed in respect of what is an "agreement" for the purposes of Subdiv C of Div 3 of Pt 2 of the Native Title Act and that it is only such an "agreement" that the Registrar (or a delegate) is empowered under s 24CJ to register. In my opinion, it necessarily follows that whether the application concerns such an "agreement" is also a "relevant consideration". 79 Ground 1(b) in the grounds of review evidences a misconception of what constitutes a "relevant consideration" for the purposes of the AD(JR) Act in relation to the registration decision which the Delegate made under s 24CJ of the Native Title Act . Materially, s 24CL(3) obliged the Delegate to consider whether the persons who had in this case been identified as the members of the "native title group" had, in terms of s 251A , "authorised" the making of the Traveston Dam Agreement, The Delegate's reasons prove that she did consider that the agreement had been so authorised and that, in making her registration decision, she took that fact, i.e. her opinion that this requirement had been met into account. She did therefore take into account a "relevant consideration". 80 Grounds 1(b), 1(d) and 1(g) assume, wrongly, that the Delegate was bound on the evidence before her to conclude that what the Applicants term "the Gubbi Gubbi people" were separate from the Kabi Kabi people. The evidence on this subject was not all one way. The Delegate was entitled to reach the conclusion which she did as to there being but one clan or tribal group. Moreover, the Applicants each had an opportunity to participate in the decision-making process in relation to the Traveston Dam Agreement. The extent to which they availed themselves of that opportunity was entirely a matter for them. There was no obligation on the part of the Delegate in the circumstances to afford what the Applicants term the Gubbi Gubbi people a separate opportunity to consider whether or not to authorise the making of that agreement. 81 The Delegate's findings of fact make it unnecessary to decide in the circumstances of this case whether, had the finding been that the members of the so-called Gubbi Gubbi people claims to native title separate from the claims of the Kabi Kabi people, s 251A(b) nonetheless supplied the means by which an authorisation decision might have been made. 82 There is no merit in any of grounds 1(b), 1(d) and 1(g). 83 It follows from the foregoing that ground 1(h) must fail. For the reasons set out above, I find that it is an Indigenous Land Use Agreement within the meaning of s 24CA of the Act and that all other formal requirements are met". It is not necessary to detail "the reasons set out above". Suffice it to say, they evidence that the Delegate worked her way through a check list which, materially, led to her concluding that the agreement met the requirements of s 24CB, s 24CC and s 24CD of the Native Title Act . 85 The Delegate's later registration decision must be read in light of and is predicated upon the reaching of this earlier conclusion that the Traveston Dam Agreement was an ILUA for the purposes of the Native Title Act . As I have already observed, the Delegate was perfectly entitled, as a matter of good public administration, to make a pre-notification assessment of whether the agreement presented with a registration application was indeed an ILUA. There is obvious good sense in not progressing an application to the notification stage if it does not relate to what is truly an ILUA. For reasons that I have given above, that does not mean that whether the document which comes to be registered under s 24CJ is in law an ILUA is thereby quarantined from scrutiny upon an application for the judicial review of the registration decision. 86 By the time when the Delegate came to make her registration decision she had been pressed with a submission on behalf of the Applicants that the CHIMA component of the Traveston Dam Agreement contravened the provisions of the ACHA and rights said to be enjoyed by Dr Fesl under that Act and therefore violated the requirement found in s 24CE(1) of the Native Title Act that a condition of an area agreement must not be contrary to law. The CHIMA component of the Traveston Dam Agreement is to be found in Sch 3 to that agreement. 87 The Delegate's response to the Applicants' submission, as her reasons reveal, was that, "In considering the application for registration of the [Traveston Dam Agreement] there is no scope for me to consider this point and I have no further comment in relation to this assertion. If a condition of an agreement the subject of a registration application was unlawful, that raised a question as to whether that agreement was one which could be registered either at all or only if the offending condition were severable. Reading the statements in the Delegate's reasons in light of her earlier "pre-notification" assessment of the Traveston Dam Agreement and especially the checklist through which the Delegate worked after the initial application, it is clear enough that the Delegate did not initially conceive that the limits of what she might consider in deciding whether to register the Traveston Dam Agreement were confined to whether the conditions specified in s 24CL were met. However, that initial assessment having been made, it is fair to say that the reasons of 19 May 2008 evidence a rigidity of thinking on the part of the Delegate to the effect that what then remained for her to consider was circumscribed by s 24CL. 89 None of this is to say that the Delegate was obliged at any stage narrowly to scrutinise the Traveston Dam Agreement looking for any condition which may be unlawful in the absence of any concern having been raised. However, the point having been raised before she made her registration decision, it was an error for the Delegate to conceive that she could not deal with it. 90 To this extent the premise upon which ground 2 of the application proceeds is made out. It does not follow that the Delegate's registration decision ought to be set aside. That will depend, at least in the first instance, on whether the CHIMA was unlawful. 91 There is no doubt that the Traveston Dam Agreement is "about" one or more of the matters for which s 24CB of the Native Title Act provides. Subsection 24CE(1) permits the agreement to be subject to any condition other than one that contravenes the law. Providing the CHIMA does not contravene the law, there is therefore nothing in the Native Title Act which would prevent its terms being a condition of the Traveston Dam Agreement. To the extent that ground 2 contends for a more restrictive construction of what is permissible in an area agreement, it is misconceived. 92 Clause 4.1 of the CHIMA recites its status as a schedule to the Traveston Dam Agreement and records that the agreement is intended to satisfy the requirements of s 23(3)(a)(iii) and Pt 7 of the ACHA. Paragraph 23(3)(a)(iii) of the ACHA sets out ways in which a person carrying out an activity can comply with the cultural heritage duty of care. 94 Reference to some definitions for which s 7 and the "Dictionary" in Sch 2 to the ACHA provide is necessary. A "native title agreement" is, materially, defined to be a "an indigenous land use agreement registered on the Register of Indigenous Land Use Agreements". Other definitions make it plain that the reference to the "Register of Indigenous Land Use Agreements" is a reference to the Register established under the Native Title Act . Thus, if lawfully registered, the Traveston Dam Agreement is, definitionally, a "native title agreement" for the purposes of the ACHA. 95 The "Dictionary" directs one to s 35 of the ACHA for the meaning of "Aboriginal party" in relation to an area. (4) Subsection (5) applies to a native title party for an area who is or was a registered native title holder the subject of a determination of native title under the Commonwealth Native Title Act . (5) The native title party is an Aboriginal party for the whole area included within the outer boundaries of the area in relation to which the application for the determination was made, regardless of the extent to which native title was found to exist in relation to any particular part of the whole area. 96 Part 7 of the ACHA is directed to the subject of cultural heritage management plans. Div 2 of Pt 7 deals with when a cultural heritage management plan is or may be required to be developed and approved for a project. Paragraph (b) of s 86 provides that Div 2 does not apply to a project to the extent the project is the subject of a native title agreement, whenever entered into, unless Aboriginal cultural heritage is expressly excluded from being subject to the agreement. 97 The CHIMA schedule to the Traveston Dam Agreement makes it plain that Aboriginal cultural heritage is not expressly excluded from that agreement but, instead, is expressly included: see cl 13.1 of the agreement and cl 4.1 of the CHIMA in Sch 3. 98 The Applicants' argument is that Dr Fesl is an "Aboriginal party" for the purposes of the ACHA and that she is not a party to the Traveston Dam Agreement and, to the extent that it might separately matter, the CHIMA. I shall assume, without deciding, that she falls within the definition of that term in s 35 of the ACHA. The contention that the Traveston Dam Agreement does not make lawful provision for the discharge of the cultural heritage duty of care imposed by the ACHA in turn depends upon reading the words "with an Aboriginal party" in s 23(3)(a)(iii) of the ACHA as also in that paragraph governing "under a native title agreement". The Applicants submit that they do whereas QWI submits to the contrary. 99 The composite phrase "under a native title agreement or another agreement with an Aboriginal party" appears in three other provisions of the ACHA besides s 23(3)(a)(iii) --- s 24(2)(a)(iii), s 25(2)(a)(iii) and s 26(2)(a)(iii). In each instance, as with the use of the phrase in s 23(3)(a)(iii), the composite phrase supplies one way conduct otherwise unlawful and subject to penal sanction is lawful. In other words, the alternatives described in the composite phrase supply an authorisation, justification or excuse in law for particular conduct. Assuming for the moment that there is more than one construction of the composite phrase open, the use noted would incline one to a construction which enlarged rather than narrowed the scope for exculpation. That in itself supplies a reason why one would not regard the words "with an Aboriginal party" as governing "native title agreement" in s 23(3)(a)(iii) of the ACHA. 100 "Native title agreement" appears absent any alternative in s 86(b) of the ACHA. As already noted, that provision excludes projects which are subject to a native title agreement from the cultural heritage management plan requirements found in Pt 7. That use provides a helpful clue as to the use of the term "native title agreement" in other provisions of the ACHA. Read with its definition, it is apparent that in s 86(b) of the ACHA "native title agreement" is being used in a self contained way to describe a type of agreement for which the Native Title Act makes provision. Providing Aboriginal cultural heritage is not expressly excluded from such an agreement, it is apparent that the State Parliament has decided to treat an ILUA under the Native Title Act as an alternative way by which, in particular circumstances, the ACHA's main purpose (q.v. s 4) of providing effective recognition, protection and conservation of Aboriginal cultural heritage can be met. 101 A study of the ACHA discloses that it is designed to complement the Native Title Act . The very notion of what constitutes "native title rights and interests" for the purposes of the ACHA is defined by reference to the definition of that term in s 223 of the Native Title Act . It would in these circumstances be an odd result in s 23(3)(a)(iii), s 24(2)(a)(iii), s 25(2)(a)(iii) and s 26(2)(a)(iii) of the ACHA to engraft onto a self contained agreement type for the purposes of the Native Title Act for the parties to which that Act makes express provision an additional, ACHA derived requirement that the agreement be with a person or persons who constitute an "Aboriginal party" for the purposes of that Act. The more likely construction is that "with an Aboriginal party" governs only "another agreement". The word "another" is awkwardly used but the intent seems to be to highlight that an agreement with an Aboriginal party is an alternative to an ILUA for the purposes of the ACHA, not that every agreement must be with an "Aboriginal party". 102 In these circumstances it is unnecessary to reach a final conclusion in respect of QWI's alternative submission that, because Dr Fesl was bound by the Traveston Dam Agreement, that agreement was in any event with an "Aboriginal party" for the purposes of the ACHA. However, there is merit in the notion that another sensible way of construing the composite phrase in s 23(3)(a)(iii) of the ACHA is that each member of a "native title group" is an "Aboriginal party" in terms of s 35(7)(b)(ii) of the ACHA such that an ILUA which binds that group for the purposes of the Native Title Act ipso facto binds each "Aboriginal party" for the purposes of the ACHA. On that basis, the draftsman has simply considered that an ILUA is axiomatically an agreement with an "Aboriginal party". 103 It follows that the Traveston Dam Agreement is not, as the Applicants advance in ground 2 of the application, one which is contrary to law in the way contended by the Applicants. That the Delegate did not advert to the submission that it was contrary to law was erroneous on her part but the submission itself was predicated upon an erroneous view as to the construction of the ACHA. For this reason, ground 2 does not supply a basis for the setting aside of the decision to register the agreement. 104 The application must be dismissed. I certify that the preceding one hundred and four (104) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

application for judicial review of decision by a delegate of the native title registrar to register an indigenous land use agreement whether it was part of delegate's function to decide if agreement presented was an indigenous land use agreement whether conclusion that agreement was an indigenous land use agreement was amenable to judicial review whether there was no evidence or other material to justify the delegate's registration decision whether failure by delegate to consider relevant considerations whether agreement did not make lawful provision for cultural heritage duty of care application dismissed administrative law

In 1758 he organised all living things into fundamental units of biological life called a species with particular defining characteristics grouped within genera, families, orders, classes, phyla and kingdoms. The defining features of a species are the rules that exclude participation by others. In this application for leave to appeal, the applicant contends, among other things, that the primary Judge erroneously applied the notion of a bona fide purchaser for value, relevant only to a 'species of proprietary interest' to deny the possibility of relief to bind the conscience of the respondent in the performance of an obligation of confidence. 2 The applicant, Retractable Technologies Inc ('RTI') seeks leave to appeal pursuant to s 24(1A) of the Federal Court of Australia Act 1976 and O 52, r 10 of the Federal Court Rules from an interlocutory judgment of Dowsett J ( Occupational and Medical Innovations Limited v Retractable Technologies Inc. [2006] FCA 1814 ( OMI v RTI )) dismissing RTI's application for preliminary discovery of documents by the respondent, Occupational and Medical Innovations Limited ('OMI') pursuant to O 15A, r 6 of the Federal Court Rules . 3 In the primary application, RTI sought preliminary discovery of a range of documents relating to communications between OMI and its contracting party China Medical Group Inc ('CMG') and/or communications between OMI and an entity described as Double Dove Group Co Ltd ('DDGCL') and other entities said to be related to DDGCL concerning the manufacture, sterilization, packaging and supply by CMG to OMI of a product described as a 'retractable syringe'. The material before the primary Judge comprised five volumes of evidence including one volume (Volume 5) containing confidential information and was therefore comprehensive. For the purposes of these reasons, I have made reference to a number of documents from the confidential volume referred to in submissions before the court on the present application. References to those documents do not include any reference to the commercially sensitive aspects of the documents. 4 Order 15A, r 6, contemplates that where there is reasonable cause to believe that an applicant has or may have the right to obtain relief in the court from an ascertained person; the applicant, after making all reasonable enquiries, does not have sufficient information to enable a decision to be made whether to commence a proceeding in the court; and there is reasonable cause to believe that a person 'has or is likely to have or has had or is likely to have had' possession of any document relating to the question of whether the applicant has the right to obtain the postulated relief (and inspection of the documents by the applicant would assist in making a decision whether to commence a proceeding), the court may order that the identified person make discovery of the relevant documents to the applicant. 5 In considering the evidence and dismissing RTI's application, the primary Judge exercised a discretion to be exercised according to settled principle. In seeking leave to appeal from the exercise of that discretion, the considerations are whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt to warrant its being reconsidered by the Full Court and whether substantial injustice would result if leave were refused supposing the decision to be wrong ( Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 398 per Sheppard, Burchett and Heerey JJ; Jarrett v Seymour (1993) 46 FCR 557 at 559 and 560 per Lockhart, Sheppard and Beaumont JJ). 6 In addressing those considerations it is important to remember that the question of whether in all the circumstances the decision of the primary Judge is attended by sufficient doubt is to be considered in the context of the observation of their Honours Dixon, Evatt and McTiernan JJ in the well known passage from House v The King (1936) 55 CLR 449 at pp 504 and 505. See also Johnston v Cameron & Ors [2002] FCAFC 251 ; (2002) 124 FCR 160 (FC, Branson, Tamberlin and Finkelstein JJ) per Branson J p 163 [9] and Australian Broadcasting Commission v Parish (FC, Bowen CJ, Frankie and Deane JJ) (1980) 29 ALR 228 at p 232 per Bowen CJ. First , the applicant says that having regard to particular evidence, the primary Judge ought to have found that at the date upon which OMI entered into its contract with CMG or alternatively after that date but at a time prior to the applicant's lawyers putting OMI on notice of relevant matters, an inference ought to have been drawn that OMI knew either, actually or constructively, that the supply of retractable syringes to OMI by CMG derived from and embodied confidential information disclosed by DDGCL to entities related to it including CMG, in breach of DDGCL's obligation of confidentiality to RTI and thus an obligation arises in OMI not to use or derive any benefit from the acquisition and sale of retractable syringes from CMG. 8 Secondly , the applicant contends that even if no inference can be drawn concerning knowledge or 'requisite notice' of the relevant matters consistent with the first proposition, it is nevertheless plain as a result of correspondence written by the applicant's United States lawyers, Messrs Locke Liddell & Sapp, to OMI on 5 October 2004 and 24 March 2006, that OMI was put on notice that supply of retractable syringes by CMG to OMI necessarily derived from a manufacturing process which utilised and the articles of manufacture embodied confidential information disclosed by RTI to DDGCL which, in breach of an obligation of confidentiality on the part of DDGCL, was disclosed to entities related to that company including CMG and thus, as to future conduct, OMI is impressed with an obligation owed to RTI to preserve the confidentiality of RTI's information and not to seek to use or derive benefit from the acquisition and supply of retractable syringes from CMG. 9 The contention derived from the second proposition is that RTI has reasonable cause to believe that it has or may have the right to obtain equitable relief in the exclusive jurisdiction to restrain OMI from using or seeking to derive benefit from the acquisition and supply of retractable syringes notwithstanding that OMI prior to notice of the relevant matters on 5 October 2004 and 24 March 2006 innocently entered into its contract with CMG and now seeks, consistent with that innocence, to obtain the benefit of the contract and secure performance of CMG's obligations under the contract. 10 Thirdly , the applicant contends that it has reasonable cause to believe that OMI has or may have, by its conduct, intentionally interfered with the contractual relationship between RTI and an entity which, for present purposes, is probably DDGCL although precise identity of RTI's contracting party is potentially part of the factual controversy in any proposed proceeding. 11 Accordingly, the error on the part of the primary Judge and the basis upon which the discretion is said to have miscarried is that the primary Judge failed to have regard to important evidence from which an inference is to be drawn as to the state of OMI's knowledge at or after the date of contract with CMG and prior to 5 October 2004 thus impressing upon OMI an obligation of confidence to RTI; in deciding that question, the primary Judge failed to apply the correct test of determining whether OMI was aware, either actually or constructively, of the relevant matters; the primary Judge erred by concluding that because OMI entered into its contract with CMG in good faith and thus acted bona fide without notice of any breach of an obligation owed to RTI by DDGCL and through DDGCL, an obligation owed by CMG to RTI, no remedy or relief lies against OMI to restrain the acquisition of retractable syringes from CMG; and the primary Judge erred by failing to draw an inference that OMI knew or ought reasonably to have known of the terms of the contract between RTI and DDGCL and particularly a prohibition upon DDGCL manufacturing any needle product utilising automated retraction technology for any entity other than RTI without RTI's prior written consent with the result that having regard to the relationship between DDGCL, nominated companies and CMG, OMI has intentionally interfered with DDGCL's performance of its obligations to RTI. 12 The respondent contends that the primary Judge applied the correct test in determining whether there is reasonable cause to believe that RTI has or may have the right to obtain relief in respect of the contended matters for the purposes of O 15A, r 6. In properly applying the required test, the primary Judge had regard to evidence from which inferences are said to arise; the primary Judge correctly determined that the evidence does not demonstrate a reasonable cause to believe OMI knew that supply of retractable syringes by CMG would involve the use of RTI's confidential information; and actual knowledge in OMI must be demonstrated. 13 As to rights asserted against OMI on the footing of an innocent third party now on notice concerning future purchases of product from CMG, the respondent contends that the applicant has failed to identify the equity it asserts as the source of its right to relief in the contemplated proceedings as the applicant has not identified with specificity the confidential information of RTI said to be embodied in the articles of manufacture by CMG (or the processes of manufacture confidential to RTI). Thus, no remedial order lies in the exclusive jurisdiction because any relief is conditioned upon RTI demonstrating use of (or a derived benefit from) RTI's confidential information. If the articles of manufacture can be supplied under the contract by CMG based upon OMI's specifications, drawings, patent or other OMI information (or without demonstrated use of RTI's confidential information), an essential element of the foundation upon which the jurisdiction might be exercised, it is said, is not made out. 14 Such a case is to be contrasted with a case where confidential drawings or etchings, a confidential description of a manufacturing process or a confidential synopsis for a potential television series is delivered into the hands of a third party acting innocently and the particular confidential information can be identified and demonstrated to be in the hands, sought to be bound by intervention, of the third party. The applicant says this element of the respondent's contention is a distinction without a difference. The applicant contends that if the articles, on the evidence, suggest an embodiment of RTI's confidential information, RTI has 'reasonable cause to believe' as to that element of its cause of action. 15 As to the tort of inducing a breach by DDGCL of its contract with RTI, the respondent says the evidence does not demonstrate that OMI knew of the contract or the stipulated prohibition; and secondly, the act of manufacturing is not undertaken by DDGCL and thus no breach of the prohibition upon manufacture for an entity other than RTI, arises; and the contract between RTI and DDGCL expired on 31 December 2006 in any event. 17 Four further matters are important. 18 First , the reference in the authorities to the test for determining 'reasonable cause to believe' as an objective test, recognises that the phrase in O 15A, r 6(a) 'where there is reasonable cause to believe' connotes 'where to the court at the hearing of the application' there is reasonable cause to believe. Secondly , a demonstrated controversy of fact emerging on the evidence in the application, to be resolved by findings of fact in the contemplated proceeding out of which a right to obtain identified relief is said to arise, will not answer a contention that there is reasonable cause to believe that the applicant may have a right to the relevant relief. However, the controversy of fact must demonstrate that first, the contended facts go beyond mere suspicion, assertion or conjecture and secondly, potential findings of fact in favour of the applicant support all elements of the cause of action that may give rise to the contended relief (see Minister for Health and Aged Care v Harrington Associates Ltd [1999] FCA 549 per Sackville J [28]; Paxus Services Limited v People Bank Pty Limited (1990) 99 ALR 728 per Burchett J (NG 670/1990); Hooper v Kirella (supra) [39]; Quanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 at 541-2 per Sackville J [24]). 19 Thirdly , the evidence should reveal a 'reasonable cause to believe' that the applicant has a right to relief or may have a right to relief which reinforces the notion that the applicant must demonstrate that all elements of the cause of action are made out although discretionary considerations might prevent the grant of the identified relief. The test is not whether, objectively, there is or may be a reasonable cause to believe. Fourthly , when the authorities determine that an applicant need not establish a 'primary facie' case, such a reference contemplates that an applicant need not show that it is more likely than not that a right or possible right to relief subsists. 20 Although plainly enough an application for leave to appeal does not involve a reconsideration of the primary application other than to determine whether the Décor Corporation v Dart Industries test is satisfied, it is necessary to consider the contextual facts of the primary application in dealing with the contended errors on the part of the primary Judge. The patent describes the problems reflected in the prior art for needle devices, the features of OMI's invention, exhibits particular drawings and defines the integers of each monopoly claim by reference to claims 1 to 13. On 28 October 2003, OMI (or at least a company described as OMI Manufacturing Pty Ltd which for present purposes has been treated by the parties as OMI) entered into a manufacturing and distribution agreement with CMG. OMI grants CMG exclusive rights to manufacture the Product worldwide . If CMG cannot supply the Product OMI reserves the right to source an alternative manufacturer. (cl. 2.1) The Product is defined by the schedule to mean each OMI retractable syringe manufactured by CMG in accordance with nominated specifications. The schedule does not identify any specifications. (b) CMG warrants that the Product shall strictly conform with the specifications listed in the schedule (cl. (cl. (cl. (cl. The pricing provision contemplates that CMG will supply OMI with a retractable syringe of various dimensions including a 1 ml, 3 ml, 5 ml and 10 ml Product. (cl. Schedule 3 provides that a production year means each 12 month period commencing on the date of delivery of the first order of 1 ml, 3 ml, 5 ml and 10 ml Products or anniversary thereof. Schedule 3 also provides that CMG will invoice OMI for Product manufactured in accordance with a purchase order, on delivery of the Product and invoices will be paid within 90 days. (h) Schedule 3(2) provides that CMG will provide OMI with a certain number of units of the 1 ml version no later than 31 January 2004 and units of the 3 ml, 5 ml and 10 ml version no later than eight calendar months after the date of agreement. (i) CMG may use such trade marks and names in the Territory as are approved from time to time by OMI on all product. The agreed brand name will be Double Dove and will include the OMI Chinese patent number on all packaging. All such uses shall be consistent with all specifications notified by OMI from time to time. (cl. 2.10, cl. Each purchase order must set out the number and type of Product required, the date delivery, the delivery point and any other matters as agreed between the parties from time to time. If CMG is unable to meet a purchase order, it must notify OMI as soon as it becomes aware that it will not be able to meet the purchase order'. (k) CMG may not subcontract any part of the manufacturing process in relation to the Product. (cl. (cl. The option might be exercised by either party at least six months before the end of the initial five year term by notice expressing a 'desire to exercise the three year option' and in that event, 'the parties agree to enter into good faith negotiations in respect of extending this agreement for one further term of three years'. (cl. (o) CMG agrees to procure Vital Care to keep in place product liability to a certain value in terms and conditions wholly satisfactory to OMI. (cl. (cl. (cl. 4.9) The confidentiality clause is to survive the termination of the agreement. In particular, the applicant says that the agreement recognises that no specifications have been provided by OMI to CMG (and therefore manufacturing information must necessarily come from somewhere else); modifications will be necessary to CMG's plant (suggesting the deployment of existing plant for syringe production for RTI to CMG's use and ultimately that of OMI, but nevertheless requiring modification); the agreement contemplates the use of the name Double Dove in connection with the manufacture and distribution of the product and recognises that CMG will call upon Vital Care to procure product liability insurance acceptable to OMI, in connection with manufacture. 24 Mr Bruce Leigh Kiehne, a director of OMI, swore an affidavit on 30 November 2006. In that affidavit, Mr Kiehne says, as to the specifications, that in late 2003 a copy of a 'Device Master File' ('DMF') for the OMI syringe (together with sample syringes) was provided by him to CMG after the signing of the manufacturing and distribution agreement. The specifications for manufacture are contained in the DMF. Mr Kiehne says the DMF was provided by CMG to Zhejiang Vitalcare Medical Device Co. Limited ('Zhejiang'). The respondent contends that Zhejiang is the actual manufacturer of its retractable syringes to be supplied by CMG. 25 The DMF is kept up to date with the latest information specified for manufacture as the device is modified. Old information is removed from the DMF as changes occur and placed on a further file called the Device History File ('DHF'). Mr Kiehne examined the DHF as at 26 November 2003 to determine the materials which comprised the bill of materials making up the specifications as at 26 November 2003. Mr Kiehne says that the prescribed list of materials was the product of OMI's own independent product research and development and contained no contribution from CMG or any company associated with DDGCL. 26 The applicant also says that on 15 February 2004 OMI lodged an application with the Therapeutic Goods Administration ('TGA') within the Department of Health and Aging of the Australian Government for approval for the use of a syringe and in that application OMI nominated Shanghai Double Dove Industry China Co. Ltd ('Shanghai DD') as the manufacturer of the device. Thus, it is said, by 15 February 2004 and earlier, OMI knew of Shanghai DD, must be taken to have known of Shanghai DD's relationship with DDGCL and knew of the manufacturing role to be discharged by Shanghai DD. 27 Mr Kiehne says that in late 2003, OMI sought approval from the TGA for use of its insulin syringe for medical trials for a potential distributor of the insulin syringe. OMI proposed to manufacture the devices in Australia and send them to China for inspection, sterilization and packaging. The application nominated CMG as the manufacturer. CMG did not have the relevant certification and, as a result, advised OMI to nominate Shanghai DD as the manufacturer. Shanghai DD provided contract sterilization services to Zhejiang. Mr Kiehne says that auditing and manufacturing compliance on the part of the nominated manufacturer would prove to be difficult and as a result in November 2005 a fresh application to the TGA was lodged by OMI nominating Zhejiang as the manufacturer of the nominated devices. A certificate to that effect issued on 28 August 2006. 28 The applicant also relies upon the lodgement on 11 January 2006 with the United States Food and Drug Administration of notification (described commonly as a 510K notification) by VitalCare Group Inc. to market a new device in the United States described as the 'OMI Retractable Safety Syringe'. The device is described in the notification as 'substantially equivalent to a legally marketed device'. 29 The notification was prepared by Mr Daniel Kamm a regulatory engineer and FDA consultant; nominates OMI as the developer; nominates China Double Dove Vitalcare Group Co. Ltd ('China DDV') as the manufacturer; describes the device as a new device for the US market; identifies a 'Predicate Device' of substantial equivalence and draws comparisons between the features of the OMI retractable syringe and the Predicate Device. The conclusion is based on biocompatibility testing, clinical testing, compliance with voluntary standards and comparison to the predicate device. A clinical investigation was performed, and test for the comparison between OMI Retractable Safety Syringe and the legally marketed predicate device was performed in accordance with [a nominated standard] . The results of the investigation showed that the OMI Retractable Safety Syringe is clinically acceptable'. 31 The features of this document said to be important are that it reflects a recognition by OMI of an additional Double Dove company which has the same address as the entity with which RTI has its contract and pursuant to which disclosures of confidential information were made; the document reflects a comparison with information concerning the features and characteristics of RTI's safety syringe; the document was lodged under the signature of Ramzi Abulhaj, described as the president of VitalCare Group Inc.; Ramzi Abulhaj's co-corporate officer in VitalCare Group Inc. is Mr Xianyu Li; Mr Li controls 98.08% of the issued share capital of DDGCL; and at the moment in time when the notification to the Food and Drug Administration was lodged, Mr Daniel Kamm was 'OMI's agent in the United States' . 32 The applicant also relies upon the 510K application of 20 January 2006 and the information contained within it, particularly references to a common address for China DDV and DDGCL; references to Zhejiang; an inspection report issued by Shanghai DD; a Shanghai DD Certificate of Compliance; a 'Latex Free Certificate' from China DDV; a cytotoxicity report; vacuum leak test data; a report on sterilization procedures and a Shanghai DD Technical Report, to support an inference that OMI, when placing orders upon CMG, was aware that manufacture and supply by CMG would involve a breach by DDGCL of its contractual constraints to RTI. 33 Mr Gareth John Jenkins, OMI's solicitor, swore an affidavit on 24 November 2006. Mr Jenkins deposes to a conversation with Mr Graham Scott McNicol, OMI's project manager for the development of the OMI retractable syringe. Mr McNicol is familiar with OMI's application to the United States Food and Drug Administration for approval of its device. He is aware of an earlier application submitted in relation to the OMI syringe by Vitalcare Group Inc. This was not authorised by OMI. He was not aware at the time it was submitted of its contents. He knew that Vitalcare had submitted an application in Vitalcare's name but OMI wanted its own separate FDA approval. As part of this task he made inquiries of OMI's agent in the United States, Mr Daniel Kamm who is a regulatory engineer. Mr Kamm reminded him that there was a 510K application already prepared for OMI's syringe that had been put together by "Vitalcare". It was received around March 2006. When he received it he noted it contained errors and mistaken references to RTI information. He decided the document was useless for his purposes and destroyed it in March 2006. 35 The applicant has conducted searches of a number of companies. 36 The searches reveal that DDGCL was established on 3 August 1994; has a registered address of 888 Daqiao Road, Huangyan District, Taizhou, People's Republic of China; and is 98.08% controlled by Mr Li. 37 Zhejiang is described as a subsidiary of DDGCL and has the same registered address as DDGCL. That company was established on 20 January 2003; 49% of the shares are held by DDGCL and 51% by Vitalcare Group Inc.; the shares were originally held 60% by DDGCL and 40% by Vitalcare Group Inc.; the company originally incorporated Double Dove in its name but that changed in 2004. At that time Ms Hui Hui Li, the daughter of Mr Xianyu Li, replaced Mr Li as a director of Zhejiang. 38 Shanghai DD was established on 27 March 2000; commenced operation on that date; has a registered address of 1888 Huhang Road, Shanghai Fengpu-Jiaghai Economic Zone, Fengxian, Shanghai, People's Republic of China; the company is controlled as to 89% by Mr Xianyu Li and Mr Li is the company's 'legal representative'. 39 The affidavit of Mr Charles Gibson sworn 20 November 2006 reveals that CMG is a United States corporation established in the State of Florida and came into existence upon registration on 5 September 2003. The director, president, secretary and treasurer is Mr Xianyu Li and the director and vice president is Mr Ramzi Abulhaj. 40 On 27 June 2002, the applicant entered into a manufacturing agreement (with an effective commencement date of 14 June 2002) with an entity described as 'Double Dove' and defined as 'Double Dove China' and recorded in the execution clause (although not signed) as Double Dove Group Ltd. On 7 April 2003, RTI entered into a further contract (effective from 1 June 2003) in the name of Double Dove Group Ltd which was signed by Mr Li on behalf of that company. It seems there is no such company and the obligation relied upon by RTI reposes in DDGCL but nevertheless derives from each of these agreements. Clause 13.1 of each agreement provides that the agreement terminates on 31 December 2006 but may be renewed if mutually agreed upon in writing by both parties, for successive one year terms. 41 Although there seems to me to be no evidence on the question, it appears that neither agreement has been renewed. This is not surprising since the core contention of RTI is that DDGCL has consciously failed to observe obligations of confidentiality in relation to disclosures made by RTI and through entities associated with DDGCL has made RTI's confidential information available to CMG and thus to OMI, a competitor of RTI. There must, no doubt, be real controversy as between RTI on the one hand and DDGCL and Mr Li on the other, concerning the contended breaches of the obligation of confidentiality owed to RTI. In connection with that litigation, it is desirable that RTI's legal counsel and technical representative be permitted to visit the plant in which the syringes made for OMI are manufactured, so that the manufacturing process, source materials, method of assembly and testing, and completed syringes, may be observed and inspected. Please advise how arrangements for the visit can be made. We look forward to receiving your reply and invitation letter as soon as possible. The Products listed in exhibit 'A' are described as 'VanishPoint Syringe Product'. The 'Specifications' for the Product are contained in a separate document marked exhibit 'B'. (cl. (cl. (cl. (f) Clause 18 provides 'the Parties acknowledge and agree that during the term of this agreement, each of them and their Affiliates may exchange Confidential Information and the disclosure and use of any such Confidential Information shall be governed by the provisions of this Article 18. Each party shall use the Confidential Information of the other party only for the purpose of the activities contemplated by this Agreement and shall not disclose such Confidential Information to a Third Party except in accordance with the provisions of this Agreement. The Parties shall ensure that their Affiliates keep all Confidential Information exchange hereunder confidential in accordance with the provisions hereof as though the Affiliates were parties hereto. This provision shall remain in effect for a period of fifteen (15) years after termination or expiration of this Agreement for all Confidential Information excluding trade secrets. Trade secrets shall be kept confidential by the receiving party according to the terms set forth in Section 18.2'. Clause 18.2 sets out a protocol in relation to trade secrets and provides for a 15 year period of non-disclosure. 1.1) means any corporation or other business entity controlled by DDGCL and control means direct or indirect beneficial ownership of at least 50% of the voting interests in the relevant corporation. Affiliate also means any corporation or other business entity which is controlling of DDGCL and any corporation under common control with DDGCL. Zhejiang, for the purposes of this clause, is not an affiliate of DDGCL nor is Shanghai DD. The evidence does not reveal the shareholding in China DDV nor CMG. 44 The clause 2.3(b) prohibition is not one assumed by DDGCL in respect of conduct by Affiliates of DDGCL. 45 Apart from the matters already mentioned, the applicant relies upon the following further matters to support an inference and thus a reasonable cause to believe that OMI had either actual or constructive knowledge that manufacture in China of its retractable syringes would involve misuse of RTI's confidential information. 46 First , OMI is a publicly listed company and must be taken to know with whom it is dealing. Secondly , the incorporation of CMG on 5 September 2003 is sufficiently proximate to the date of OMI's contract, namely, 28 October 2003, coupled with Mr Li's role in CMG and his control of DDGCL, to put OMI on 'notice' or inquiry. Thirdly , in October 2003, OMI personnel toured the Shanghai factory of DDGCL in and around the place where the RTI syringes were being assembled and packaged. The packaging displays a reference to RTI. Fourthly , clause 2.5 of the OMI contract suggests existing substantial manufacture of retractable syringes. Fifthly , negotiations between OMI and CMG leading to the contract of 20 October 2003 must have revealed that DDGCL was manufacturing retractable syringes for RTI. Sixthly , OMI issued a statement to the Australian Stock Exchange on 4 November 2003 stating that OMI had signed an exclusive worldwide agreement with CMG which OMI described as one of the world's largest syringe manufacturers and distributors. Since CMG had been brought into existence on 5 September 2003, it is said to be unlikely that the description adopted by OMI was properly a reference to CMG rather than a conscious recognition that the manufacturing facilities were operated by DDGCL. Seventhly , OMI must have been aware that critical parts of RTI syringes were being made at Double Dove's primary manufacturing facility at Taizhou during 2003 and 2004. Eighthly , prior to RTI's disclosure of confidential information to DDGCL in 2002 and 2003, DDGCL was not commercially manufacturing retractable syringes. 47 None of these matters establish a basis or reasonable cause for believing that RTI has or may have a right to obtain relief against OMI on the footing that OMI knew that striking a contract with CMG to procure the manufacture and distribution of OMI's retractable syringes would involve a breach of an obligation of confidence owed by DDGCL to RTI or such an obligation owed by CMG or Zhejiang to RTI assuming disclosure by DDGCL to those companies. 48 It is true that Mr Li controls DDGCL, has established DDGCL's; manufacturing facilities in Taizhou and Shanghai; controls Shanghai DD; is director, president, secretary and treasurer of CMG and is central to the activities of the Double Dove group of companies. However, the terms of the OMI-CMG contract do not give rise to an inference that OMI knew that performance of CMG's obligations required CMG to breach obligations of confidence owed to RTI by reason of unlawful disclosures of RTI's confidential information by DDGCL. Moreover, the construct the applicant seeks to establish derived from the OMI contract taken in conjunction with the matters referred to at [26] to [41] and [46] do not give rise to the conclusion that OMI knew that manufacture by CMG would involve a misuse of RTI's confidential information. 49 It may well be that by reason of the role played by Mr Li in the affairs of DDGCL, his role in CMG and DDGCL's interest in Zhejiang that disclosures of RTI's confidential information occurred. However, there is no basis for a reasonable belief that OMI knew of that conduct or that the manufacture of OMI retractable syringes for the purposes of the performance of CMG's contract involved a use by CMG of any of RTI's confidential information. 50 The applicant places additional emphasis upon the evidence of Mr Yasheng Shao. Mr Shao's primary responsibility was to assist DDGCL in the manufacture of retractable syringes for RTI. (d) Between May 2003 and June 2003 Mr Shao assisted DDGCL in the production of sample syringes at the Huangyan factory although the syringes were packaged at DDGCL's Shanghai factory. The sample syringes were despatched to RTI for quality testing. Comments on the quality of the sample syringes were developed during September 2003. (e) On 15 July 2003, Mr Shao met with Mr Li in Shanghai to arrange for the installation of equipment to manufacture RTI syringes at DDGCL's Shanghai factory. At the end of July 2003 the assembly of RTI syringes was relocated to DDGCL's Shanghai factory. DDGCL relocated 10 employees permanently to the Shanghai facility dedicated to the RTI project. Nevertheless, some of the more complicated component parts were moulded at the Huangyan factory. (f) In October 2003, Mr Shao says he saw several people who were not Chinese being given a tour of the DDGCL Shanghai factory. These individuals were escorted around the plant in the area where the RTI syringes were being assembled. Mr Shao says that in November 2003 he had a conversation with a person described as an employee close to Mr Li who told him that DDGCL had just signed a contract to manufacture syringes for an Australian company and the production would involve greater numbers than the RTI contract. (g) Mr Shao says that in December 2003 while at the Huangyan factory, Mr Shao saw parts for a retractable syringe that was not RTI's syringe. Mr Shao understood that these syringes were manufactured for an Australian company and he took photographs of them. (h) Mr Shao says that in March 2004 he saw rolls of packaging for syringes marked with the logos of OMI, at the Shanghai facility where RTI's syringes are also packaged. Mr Shao says that the packaging process involved the use of RTI's confidential information including the use of specialised packaging paper specified by RTI. (i) Mr Shao says that in April 2004 DDGCL sought information from RTI concerning the springs used in the manufacture of RTI syringes. At about this time Mr Shao was told that an individual from OMI had been visiting the DDGCL Huangyan plant for visits of about three months in length. Mr Shao says that at this time DDGCL sent people from the Huangyan factory to Shanghai for training in relation to assembly and packaging and shortly thereafter three machines were relocated from the Shanghai factory together with new sterilisation equipment to the Huangyan factory. I have been many times to the Huangyan plant and have never seen or been made aware of any RTI parts being manufactured there or personnel being based there. This plant is huge and covers an area of some 400 hectares. Many different things are manufactured there for example electricity generators and farm equipment. Following these letters being despatched, I had discussions with Mr Ramzi, Mr Li and Mr Pan Hi regarding the inquiries we had made. OMI instructed its lawyers to seek information as to the agreement from RTI's lawyers by letter dated 15 October 2004. This was never answered. ... OMI personnel have toured the Double Dove Shanghai factory. This is because the OMI Intravenous Valve is proposed to be manufactured there. This valve is a completely unrelated product for use on IV drips. Arrangements to finalise this are ongoing. The relevant parts of that correspondence are set out in the reasons of the primary Judge ( OMI v RTI [5] --- [12]). The letter of 5 October 2004 noted the acquisition by OMI of retractable needles through a 'commonly owned or controlled Affiliate of Double Dove [DDGCL]'; noted RTI's exclusive manufacturing agreement with Double Dove; drew attention to the commitment of Double Dove not to manufacture needle product utilising automated retraction technology of any type for any entity other than RTI; noted the disclosure of RTI's confidential information to Double Dove and advised OMI that RTI would take appropriate proceedings to protect its position against any relevant entity. 54 On 15 October 2004, OMI's solicitors responded and requested copies of the agreement in order to properly respond to the letter of 5 October 2004. There was no response. RTI's lawyers wrote again on 24 March 2006 taking objection to OMI's 'continued cooperation with Double Dove for the manufacture of syringes having retractable needles' and OMI's tour of the Double Dove factory. RTI asserted intentional interference with the contractual relationship between RTI and Double Dove; conscious conspiracy with Double Dove to contravene RTI's rights and misappropriation of RTI's confidential and 'proprietary technological and business information', among other things. 55 In the meantime, OMI's lawyers on 8 October 2004 wrote to Mr Li of CMG enclosing the letter of 5 October 2004 and requested Mr Li to provide OMI with a copy of the RTI-DDGCL agreement and to advise of any association or relationship between Double Dove and CMG. A similar letter was written on 11 October 2004 to Mr Ramzi Abulhaj seeking information as to any association between DDGCL and CMG. OMI was told that DDGCL had no controlling interest in CMG or in Zhejiang; DDGCL was not in breach of its agreement with RTI; and no copy of the agreement could be provided as it was confidential. First , the applicant emphasises that the 'threshold' to be met in an application pursuant to O 15A, r 6 is low which, in effect, is a submission that the primary Judge, on the evidence before him, set the bar too high in dismissing the application and thus applied the wrong threshold test. Secondly , the applicant contends that the primary Judge failed to find in his ex tempore assessment of the evidence including an assessment of the OMI-CMG contract that, put metaphorically, 'all roads lead to Rome'. In other words, an inference or imputation necessarily arises out of all the evidence before the primary Judge that OMI knew not only of a connection between CMG and DDGCL but that OMI knew that the manufacture of syringes by CMG would involve the use of RTI's confidential information. 57 The primary Judge considered all of these matters and, in assessing the evidence, concluded that OMI had acted reasonably in relation to the assertions put to it and secondly, although OMI did not deny knowledge of DDGCL, or a degree of connection with CMG, there was no evidence of knowledge of the exact nature of the connection nor evidence of knowledge of the dealings between DDGCL and RTI, other than knowledge derived from the exchanges of correspondence. 58 There is no error on the part of the primary Judge either as to the test to be applied in an application pursuant to O 15A, r 6 or the conclusion reached on the material put before the primary Judge that OMI had no knowledge of the contractual dealings between DDGCL and RTI or that the manufacture of retractable syringes by CMG would involve use of RTI's confidential information disclosed by DDGCL in breach of its obligations. Thus, RTI has failed to establish that there is reasonable cause to believe that it has or may have a right to obtain relief against OMI derived from that contention. 59 Since the evidence does not support a conclusion that OMI had knowledge of the dealings between DDGCL and RTI or knowledge of the provision of the contract upon which RTI relies which imposed a prohibition upon DDGCL engaging in the manufacture of retractable syringes for any entity other than RTI, or an obligation of confidentiality owed by DDGCL to RTI, the contended relief based upon OMI's interference with the contractual relationship between DDGCL and RTI is also not made out. Thus, no conclusion arises that there is reasonable cause to believe that RTI may have a right to obtain relief from the court against OMI in the acquisition of retractable syringes from CMG on the basis of an intentional interference with the obligations to be discharged by DDGCL to RTI. The evidence does not support a conclusion that DDGCL is manufacturing articles for OMI. 60 These conclusions of the primary Judge which are not shown to be attended with sufficient doubt to warrant reconsideration by the Full Court rest upon an assessment of OMI's state of actual knowledge. It may be that although actual knowledge is not demonstrated on the evidence, secondary facts may give rise to an inference of actual knowledge. The evidential facts do not support such an inference. Secondly, the evidence may establish a conjunction of circumstances, participation by a respondent in particular events, notice of matters going to a breach of an obligation, turning a blind eye to events etc such that a party will be taken, as a construct, to have knowledge. However, the evidence does not establish that this is such a case. The evidence establishes a degree of interconnection between DDGCL, CMG, Mr Li and other entities associated with Mr Li which, for the purposes of determining the primary application, the primary Judge assumed to exist. 61 The evidence does not establish actual knowledge of the terms of any contract between DDGCL and RTI nor any intention to interfere with the contract ( Australian Development Corporation Pty Ltd v White Constructions Ltd & Anor 189 ALR 266 per Handley JA at [89]) nor OMI's actual or constructive (in any analogous sense contemplated by Barnes v Addy (1874) LR 9 Ch App 244 per Lord Selborne at 251-252) knowledge of CMG's contended use of RTI's confidential information and thus the contended error on the part of the primary Judge is not made out. In the course of argument today, a further aspect of the potential litigation has been raised. Retractable Technologies asserts that even if, at the time OMI entered into its contract with China Medical Group in late 2003, it did not know of any potential breach of duty by Double-Dove, it can no longer insist upon performance of its contract with China Medical Group because of its current knowledge that Double-Dove or China Medical Group has, or may, in the future, use confidential information derived from Retractable Technologies in satisfying the requirements of any contract between OMI and China Medical Group. In my view, a cause of action based on that assertion would be unmaintainable. For the purposes of this argument it must be accepted that OMI entered into its contract with China Medical Group in good faith. It has contracted to purchase syringes of a particular quality at a particular price. It contemplates only the supply of a particular product at a particular price. I see no legal basis upon which Retractable Technologies could deprive OMI of the benefit of that contract. Unless Retractable Technologies manages to restrain China Medical Group from manufacturing syringes to meet OMI's contract, it will presumably do so and supply them to OMI. OMI will be bound to accept them. ... I see no way in which, assuming innocence on the part of OMI, Retractable Technologies can interfere in the contract between OMI and China Medical Group. However, for present purposes, given the contract between Double-Dove and Retractable Technologies, I assume that Retractable Technologies reasonably suspects an infringement by Double-Dove of its obligations and reasonably suspects that Double-Dove may have used, or planned to use, information derived from Retractable Technologies in connection with the supply of syringes by China Medical Group to OMI. There is a logical gap in that thought process because the relationship between China Medical Group and Double-Dove is still not entirely clear. Nonetheless, I can understand that Retractable Technologies might reasonably suspect that Double-Dove's knowledge will find its way to China Medical Group. The area in which I find difficulty with Retractable Technologies' case is in the implied assumption that OMI, at any relevant time, had knowledge that completion of its contract with China Medical Group would involve breach by Double-Dove of its obligations to Retractable Technologies. Given that there is some connection between Double-dove and China Medical Group, and given that Double-Dove derived some information from Retractable Technologies, there is a theoretical possibility that Double-Dove has made, or will make, that technology available to China Medical Group for use in performing its contract with OMI. There is a theoretical possibility that OMI may at a relevant time, in some way, have become aware of these circumstances. However, there is no evidence that it so did and, in my view, no basis for reasonable cause to believe that it did so. 64 The respondent says it has entered into an initial five year exclusive worldwide supply agreement of considerable commercial importance with CMG which compels it to source syringes from CMG; having struck that contract innocently and bound itself bona fide without notice of any breach of any obligation owed to RTI by CMG as supplier, OMI can not now be deprived of the benefit of its contract at the suit of RTI. The contract is said by OMI to be not simply a standing purchase arrangement but an exclusive supply agreement that prohibits OMI seeking the manufacture and supply of retractable syringes from any other entity for the life of the agreement. Accordingly, the respondent contends that to enjoin OMI from acquiring syringes from CMG would either deprive OMI of syringes for the life of the agreement or cause OMI to otherwise source the supply of syringes, in breach of contract. 65 The applicant says, in effect, that if syringes supplied by CMG embody RTI's confidential information, CMG's use of that information in the supply of syringes to OMI, would place it in breach and thus OMI would be entitled to take steps to put itself in the position it would have enjoyed under the contract with CMG by sourcing syringes from another supplier (apart from any question of election, damages etc). 66 The respondent says the pre-existing contract OMI struck with CMG defeats any claim by RTI because the contract is the source of enduring rights and obligations and subsequent notice to an innocent bona fide party will not result, on the authorities, in Equity's intervention by injunction, in these circumstances. Secondly, RTI has failed to identify the use of any confidential information of RTI in the manufacture by Zhejiang and supply by CMG of syringes to OMI. Since identifying with precision the confidential information used by CMG, particularly in the context of threatened relief against an innocent third party, is central to the 'right to obtain relief', the claims made by RTI on the evidence are nothing more than mere assertion, suspicion or conjecture. The respondent also notes that nowhere in the material is there any evidence of agitated proceedings or complaints against DDGCL, Mr Li or other DDGCL related companies arising out of the contended breaches. 68 The foundation of Equity's intervention is the exclusive jurisdiction to enforce an obligation of conscience arising out of the demonstrated circumstances ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) [1984] HCA 73 ; (1984) 156 CLR 414 per Deane J at 437 and 438. 69 One of the three elements focuses upon whether the confidential information was imparted in circumstances 'importing an obligation of confidence' ( Coco v Clark at p 47) recognising that 'the notion of an obligation of conscience [arises] from the circumstances in or through which the information was communicated or obtained' ( Moorgate Tobacco v Philip Morris at p 438). The relief 'depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it' ( Seager v Copydex per Lord Denning at p 368). 70 In the case, however, of an innocent third party acting bona fide and thus without notice, the circumstances which condition an obligation of conscience are much removed from the commercial intimacy of a bilateral relationship between the originator and primary disclosor and the originator's immediate recipient, importing that obligation. It seems to follow logically in the case of an innocent third party that the court will closely examine the contended circumstances that are said to warrant intervention beyond simply whether the third party has been put on notice and thus identify the 'matters which determine whether a duty of confidence has devolved' upon a third party ( Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 at 460, per Gaudron J). The reasons of the primary Judge suggest that his Honour had in mind the notion that since an assessment of the circumstances in which OMI continues to acquire articles of manufacture said to embody RTI's confidential information includes acceptance of the position that OMI acted as an innocent third party for value pursuant to an arms-length contract, the 'relevant circumstances' of the present applicant, properly examined, do not give rise to an obligation of conscience in OMI, rather than a notion of simply applying a derivative proprietary rule that a bona fide third party for value can not be the subject of the court's intervention. 71 The same principles derived from the in personam jurisdiction apply to the position of third parties ( Best Australia Ltd & Ors v Aquagas Marketing Pty Ltd & Ors (1989) 13 IPR 600 at 603). Accordingly, the circumstances in which the third party received the confidential information require close attention to determine whether the conscience of the third party ought to be bound. 72 In Johns v Australian Securities Commission at 460, Gaudron J recognised that in Foster v Mountford & Rigby Ltd (1976) 29 FLR 233 at p 238, Muirhead J enjoined a publisher on an interlocutory basis from continuing to publish and distribute a book revealing, in breach of an obligation of confidence on the part of the author, sites and objects of deep religious and cultural significance to particular Aboriginal claimant groups, and in Wheatley v Bell [1982] 2 NSWLR 544 at p 550, Helsham CJ (in Equity) enjoined on an interlocutory basis innocent licensees (described as parties who 'have already been licensed or chosen, or engaged, or are either purchasers or potential purchasers') of a promotional business system from using that system notwithstanding that they had apparently paid contracted amounts to a disclosee who had failed to observe an obligation of confidence to the plaintiff disclosor. Gaudron J noted at p 460 that the law had not developed to a point of identifying in a 'definitive or comprehensive way' the matters which would determine whether a duty of confidence might arise in a third party. 73 Her Honour also noted the statement of principle of Lord Denning in Fraser v Evans [1969] 1 Q.B. 349 at p 361 to the effect that if a person 'comes by [confidential information] innocently, nevertheless once he gets to know that it was originally given in confidence he can be restrained from breaking that confidence' and the statement of principle of Goff J in Butler v Board of Trade [1971] Ch. 680 at 690 that 'an innocent recipient of information conveyed in breach of confidence is liable to be restrained'. 74 The decision in Johns v Australian Securities Commission , on this aspect of the matter at least, turned on the basis that the information made available voluntarily to the relevant media organisations had become publicly available and the question of the innocence of the third parties, Australian Broadcasting Corporation and the Herald & Weekly Times Ltd, would require further determinations of questions of fact. The decision in Foster v Mountford arose out of an ex parte application and the commercial arrangements with the publisher were not examined. The decision in Fraser v Evans concerned the disclosure to an English national newspaper of aspects of a confidential report submitted by the plaintiff as a public relations consultant to the Greek Government. The case seemed not to involve acquisition of confidential information pursuant to an arms-length contract. Although the consultant had no standing to agitate a contended obligation on the part of the newspaper, and the information, in any event, was of such a nature that disclosure was in the public interest, the statement of general principle recognises that a third party who has not received confidential information in confidence might be restrained 'once he gets to know that it was originally given in confidence'. The decision in Wheatley v Bell adopted that expression of principle together with the observation of Professor Pettit ( Equity and the Law of Trusts , 3 rd ed (1974)) that a third party who knowingly obtains confidential information in breach of confidence or in any other fraudulent manner will be restrained from use and 'even if a man obtains the confidential information innocently, once he gets to know that it was originally given in confidence, he can be restrained from breaking that confidence', as the foundation for the interlocutory orders against the innocent licensees. 75 These expressions of principle concerning rights to relief against third parties are stated at a reasonably high level of abstraction and do not deal 'definitively or comprehensively' with the 'matters' which determine ultimately whether a duty of confidence has devolved upon a third party. The applicant also relies upon what is said to be an applied expression of the principle to a bona fide third party for value in the decisions of Lloyd-Jacob J in Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1951) 68 RPC 190 and the Court of Appeal in Stephenson Jordan & Harrison Ltd v MacDonald & Evans (1952) 69 RPC 10 per Evershed M.R. and Denning and Morris LL.JJ. In that case, Lloyd-Jacob J granted an injunction to restrain a publisher from publishing, pursuant to a contract with the author, a book containing confidential information of the plaintiff concerning the application of principles of business management to particular problems encountered at various functional levels of commercial activity. The publisher struck the contract innocently but once put on notice, prior to publication, of the confidential content incorporated within the work, the jurisdiction to grant an injunction was found by Lloyd-Jacob J to arise on the footing that 'an innocent mind at the time of contract could not overcome the consequences of full knowledge at or before the time [of publication]'. This applied statement of principle was said to derive from Prince Albert v Strange (1849) 1 Mac. & G. 25 and Morison v Moat (1851) 9 Hare 241 at 263. On appeal, the Court of Appeal found that the principles of business management reflected in the work were not confidential and in the context of a contention that an injunction will not lie in the absence of some right of property, breach of contract or breach of trust, Evershed M.R. observed at p 16, '... it would be, to my mind somewhat shocking if reputable publishers, who discovered that there was in some work which they had acquired, a gross breach of faith, publication of which would involve the ruin of some business, yet nevertheless could say, having discovered that fact before they had published or incurred any substantial expense that they were entitled to insist on going on with their publication'. Denning LJ at p 22 fully agreed with 'all that [Evershed M.R. ] has said on all the issues' and Morris LJ 'at p 23 also fully agreed'. 76 Some of the 'matters' which influenced Evershed M.R. in concluding that an obligation of confidence might devolve upon such a third party included discovery that the work incorporated confidential information, the breach of faith was a gross breach, publication might involve ruin of the applicant's business and the intervention of the court was sought before the incurring of any substantial expense by the publisher and, obviously enough, before publication of the work. 77 Since the decision of the Court of Appeal rests on the footing that the principles of business management incorporated within the work were not 'secret or confidential' and the decision of the primary Judge was set aside, the respondent says firstly, that no great weight can be given to the expression of principle by Lloyd-Jacob J and secondly, the observations of the Court of Appeal on the question of principle are ultimately obiter. 78 In Franklin v Giddins [1978] QdR 72 Dunn J made an order for the delivery up of nectarine trees by a female defendant who from a nominated date knew that an orchard conducted by her husband and herself contained nectarine trees propagated by a grafting process undertaken by her husband based upon budwood cuttings stolen by her husband from the plaintiff's orchard. Because the female defendant knew, from the relevant date, that the trees were propagated from a stolen trade secret Dunn J in reliance upon the observations of Greene M.R. in Saltman Engineering Co. Ltd v Campbell Engineering Co. Ltd (supra) at p 213, held that it was unconscionable for her to derive any benefit from the propagation and sale of the trees and thus she, like her husband, infringed the plaintiff's rights. 79 Since the female defendant jointly conducted the orchard with her husband (the first defendant), and became after knowledge of her husband's conduct an active participant in the continued use of the plaintiff's stolen trade secret, she became an accessory to the primary conduct and thus susceptible to an injunction (although undertakings were ultimately recorded) and delivery up of the trees. 80 No feature of this case involves the notion of a party acting bona fide and striking an arms-length contract with another prior to any notice of a contended breach of an obligation of confidence by such a party and then being enjoined from exercising rights under the contract, upon notice. Accordingly, the primary Judge addressing the O 15A r 6 application, observed [16] that the case of Franklin v Giddins involved use of confidential information by somebody who had obtained it from an infringer rather than a case adapted to the relevant circumstances of the present applicant. 81 There is no doubt that the authorities recognise that an innocent third party thus acting bona fide may come into possession of confidential information of a primary disclosor either by reason of a disclosure in breach of an obligation of confidence by the disclosee owed to the primary disclosor or because an entity dealing with the third party may have a degree of interconnection with the initial recipient such that information has been disclosed to that entity in breach of an obligation of confidence and then disclosed to the third party; and, in principle, 'in some circumstances the restraint of an apprehended or continued breach of confidence may involve enjoining third parties' ( Breen v Williams [1995] HCA 63 ; (1996) 186 CLR 71 per Gummow J at p 129; see also, Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2002) 54 IPR 161 per Gummow and Hayne JJ [137] [2001] HCA 63 ; (2002) 185 ALR 1; and Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3 ; (1997) 188 CLR 501 at 537 and 567; Johns v Australian Securities Commission (supra)). Although Gummow J in Breen v Williams at p 129 was emphasising that the assertion of a right to relief in respect of an obligation of confidence does not rest upon any species of proprietary right, his Honour also notes that the circumstances of disclosure to the third party condition whether such a party will be enjoined. 82 In the primary application, his Honour concluded that although the precise depth or content of the connection between CMG and DDGCL could not be determined, OMI knew of some connection between DDGCL and CMG [13] and, for the purposes of the application, the primary Judge accepted that 'there is an association between those companies and that they share some manufacturing facilities' [4]. His Honour also concluded that RTI reasonably suspects an infringement by DDGCL of its obligations to RTI [17]; reasonably suspects that DDGCL may have used or planned to use information derived from RTI in connection with the supply of syringes by CMG [17]; and RTI reasonably suspects that DDGCL's knowledge will find its way to CMG [17]. 83 Although the degree of connection was not known to OMI nor the use by CMG of information derived from DDGCL confidential to RTI, once OMI was put on notice of the connection and the demonstrated use by CMG of RTI's confidential information in the supply of articles under the contract with OMI, OMI as an innocent third party became at least potentially susceptible of an obligation of conscience to RTI enforceable by remedial relief as to future conduct. 84 Although considerations such as the continued supply of articles under a contract struck before notice; the precise construction of the contractual arrangements; the proposed deprivation from OMI of the benefit of its contract; the circumstances concerning OMI's expenditure commitments in reliance upon the contract; OMI's position in the market in reliance upon the contract; OMI's ability to undertake its business activity by sourcing syringes in reliance upon the contract and resupply of syringes; the impact upon OMI should relief in the form of an injunction be granted restraining the acquisition of syringes from CMG; and the financial threat to the business undertaking of OMI among other circumstances; are all important matters in determining whether an order might be made in all the circumstances, the recognition that OMI entered into the contract as an innocent third party for value is not necessarily a complete answer to the proposition that an order may be made binding the conscience of such a third party as to future conduct. 85 For example, the acquisition and resupply of syringes embodying RTI's confidential information derived from purchase orders submitted to CMG prior to notice might not be enjoined but the submission of further purchase orders might be the subject of an order if, as I conclude, the contract between OMI and CMG although binding OMI to an exclusive source of manufacture and supply, contemplates successive purchase orders throughout an executory agreement to be performed by a supplier manufacturing syringes to the 'specifications of OMI' and thus, as an implied contractual term of that supply, 'not embodying the confidential information of another'. 86 Although the foundation of the court's intervention is to fashion relief in the exclusive jurisdiction to enforce an obligation of confidence and bind the conscience of the third party put on notice that particular conduct involves the use of another's confidential information (rather than intervention in support of equitable rights in property), the circumstance that the third party has acted innocently in reliance upon a contract, altered its position and conducted its commercial affairs on a particular footing (perhaps with great prejudice and no real ease of adjustment) are factors among, no doubt, a subset of matters arising out of all the relevant circumstances, that a court would closely examine either in framing the scope of the relief fashioned appropriately to particular conduct or from or to a particular time; or, in determining the respective positions of the parties having regard to the equity asserted by the claimant primary disclosor on the one hand and the innocent purchaser for value without notice, on the other, in making a remedial order at all. 87 In that sense, I do not accept the ubiquity of the proposition that the whole notion of the position of a bona fide purchaser for value has no role to play in the discourse upon the right to or scope of relief that might be granted against an innocent third party put on notice that its conduct involves use of another's confidential information, simply because the jurisdictional foundation for relief lies in enforcing an obligation of confidence rather than an order in support of a proprietary interest. 88 However, a right to relief may arise which binds the conscience of OMI not to acquire further syringes from CMG which embody the confidential information of RTI disclosed to the supplier by DDGCL in breach of an obligation of confidence by that company to RTI. 89 As a result, the conclusion of the primary Judge that RTI's case 'cannot possibly succeed' [16] on the footing discussed at [62] to [88] of these reasons is attended by sufficient doubt as to warrant reconsideration by the Full Court subject to the question of whether substantial injustice would result if leave were refused. However, such a conclusion assumes at its centre that the supply of syringes by CMG involves the use by CMG of RTI's confidential information. 90 In seeking the court's intervention to restrain use of confidential information it is essential that the applicant demonstrate with precision the information said to be confidential and the content of use sought to be attached. Assertions of confidentiality at high levels of abstraction will not establish a basis for relief against a disclosee. In the case of an innocent third party who simply seeks reliance upon a contract struck without notice of a relationship of confidentiality between the primary disclosor and any other party or breach, the requirement for precision is even more acute. The starting point is the identification of the relevant confidential information ( Moorgate Tobacco Co Ltd v Philip Morris Ltd (No. 2) (supra) per Deane J at 438; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor (1987) 14 FCR 434 per Gummow J at 443; O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 per Mason J at pp 326 --- 328; Liberty Financial Pty Ltd & Anor v Scott & Anor (No. 4) [2005] VSC 26 ; (2005) 11 VR 629 per Harper J, [13], [35]; Pioneer Concrete Service Ltd v Galli (1985) VR 675 per Crockett, Murphy & Ormiston JJ at 711). 91 The applicant says the confidential information supplied by RTI to DDGCL is that identified in paragraphs 70, 72 and 73 in the affidavit of Steven Raymond Wisner sworn 21 November 2006. Mr Wisner is the Executive Vice President, Engineering and Production and a Director of RTI. Mr Wisner has been employed by RTI since 25 October 1999 and his responsibilities include the management of engineering and production of retractable syringes. The evidence describes the features of the confidential information. These paragraphs of the affidavit do not form part of the confidential Volume 5. During the course of argument, references were made to a confidential exhibit. However, the transcript of proceedings before the primary Judge on 24 November 2006 make it clear that the applicant relied upon paragraphs 70, 72 and 73 of Mr Wisner's affidavit. Prior to being taught the importance of a seat in the needle holder, Double Dove had an internal bore that had the same diameter throughout, which results in unacceptable variances during commercial manufacture. Based upon my examination of the OMI syringes and my knowledge of the RTI Confidential Information, there are a number of confidential aspects relating to the materials used in RTI's syringes that I am concerned are present in the OMI syringes; however, mere examination of the syringes is not sufficient to determine if the RTI Confidential Information was used or disclosed in relation to the production of the syringes. That specification is not confidential information. In addition, the seat for the OMI syringe is shown at claim 6 of the OMI patent. The polypropylene used for the barrel and plunger of OMI syringe is a standard medical grade material readily located on the internet. It was specified by OMI to the pilot production manufacturer in 2002 (before the involvement of any company connected with DDGCL) and was not information obtained by OMI from the current manufacturer. (h) [W, 72(b)] all needles are lubricated to prevent surface rusting due to humidity. It is a common process. OMI's specified lubricant was sourced from B Braun in 2000. The OMI syringes are a different design with different parts which fit or combine together in a way different to the RTI syringes. (n) [W, 73(c)] the springs and the wire for the two devices are plainly different on examination. (o) [W, 73(d)] no evidence was adduced of any confidential information as to the method of holding the needle for insertion as conveyed by RTI to DDGCL. The method used by OMI is common knowledge in the industry and was sourced by OMI in 2001. There is no evidence of a disclosure by RTI to DDGCL nor evidence of actual misuse. (p) [W, 73(e)] no evidence has been adduced of confidential information imparted by RTI to DDGCL as to positioning racks of syringes on a conveyor belt. There is no evidence of disclosure or misuse. (q) [W, 73(g)] there is no evidence adduced that OMI's needle holders are subjected to the same surface treatment as RTI syringes. There is no evidence of the treatment nor evidence of use of that treatment. (r) [W, 73(h)] this is a reference to the volume information which is printed on the outside of the syringe barrel in millilitres or cubic centimetres. But it is important to measure skewed print on the syringe barrel is not confidential information. No confidential information as to the method of measuring skewed print is identified in any of the evidence. There is an international standard as to positioning and accuracy of print on a syringe barrel. Further, there is no evidence of actual misuse and no suggestion of disclosure in the evidence. (s) [W, 73(i)] there is no evidence adduced of confidential information as to the suggested methodology or procedures for sampling manufactured articles and classifying defects in syringes to determine that proportion of the samples that must pass examination so as to avoid a rejection of the batch articles. Moreover, there is an international standard governing this matter. (t) [W, 73(j)] no evidence has been adduced in identifying any confidential information directed to validation protocols for each manufactured syringe part, assembly of syringes or sterilization. The evidence does not demonstrate misuse of disclosed RTI information. Moreover, there is an international standard governing this matter. 94 It can be seen that much of the contended confidential information said to be embodied in the syringes supplied by CMG is no more than an assertion. The particularity of the confidential information in some cases identifies features not present at all in the CMG articles; in other cases, the contention is no more than a short general conclusion which fails to identify the confidential information with any precision and less particularity then would be required of material facts in a pleading; in other cases, international standards govern the matter being addressed; and in some respects the contention is based simply on the observation that because the CMG syringes reflect the adoption of practices such as exhibiting lot numbers, bar codes or other features also adopted in respect of RTI syringes, those features derived from those practices must necessarily have come from RTI's confidential disclosures to DDGCL. 95 Some further illustrations are these. 96 As to the 'stepped plunger head', RTI says that Mr Wisner's evidence is that OMI syringes contain a feature 'equivalent to a stepped plunger head' and that RTI taught Double Dove the importance of a stepped plunger head or its equivalent and therefore OMI's contention that it does not use a stepped plunger head responds to the wrong proposition. A comparison of the plungers for each syringe reveals this. In RTI's plunger a rubber ring seals the barrel at the penetrating end. In front of the rubber ring there is an indented elevated step which carries a small nipple. In the case of the OMI syringe, there is no indented elevated step and the reason is said to be attributable to the functionality of the OMI syringe. RTI says that regard should be had to Mr Wisner's evidence that the OMI plunger head is in any event equivalent to a stepped plunger head. However, that contention does not identify any of the features of equivalence and is therefore simply too general to constitute a controversy of fact in the relevant sense and does not rise above an assertion denied. In any event, a direct comparison of the two plunger heads reveals, on the evidence, a quite different design. 97 As to the needle holder, a comparison of the two syringes reveals this. In the OMI syringe, the needle holder is made out of material that appears to be white and plastic. Mr Kiehne swears that the material is polystyrene. The clear plastic material is polypropylene and RTI says that in January 2006 the Vitalcare 510K application described the material as polypropylene. However, OMI's evidence is that the article of manufacture is made from polystyrene. 98 As to the vents located at the back of the plunger, OMI adopts a cross hatch vent as revealed in its patent which is different from the vents shown in RTI's article. 99 As to the syringe barrel, the evidence demonstrates that RTI's barrel is made from polypropylene which was specified at the time of pilot production manufacture in January 2002. 100 As to the needle lubricant, Mr Kiehne's evidence is that all syringe needles are lubricated and the source of the lubricant for the OMI syringe is an external lubricant manufacturer nominated in 2000. 101 As to the rubber used in the seal, the evidence is that OMI specified santoprene 181 at the time of the pilot production in January 2002. As to the tolerances for parts, the evidence reveals that the size of the OMI barrel, the size of the plunger, the mechanism for the needle holder and retraction are different to that adopted by RTI and accordingly RTI's tolerances would be meaningless to a manufacturer making syringes for OMI. As to the springs, OMI identifies a range of differences as to length, coils, dead coils, springing action, physical properties and the diameter of the wire (OMI .35 and RTI .24). 102 It is important to remember that OMI has its own patent for retractable syringes and the evidence reveals the disclosure by OMI of specifications for manufacture of OMI syringes to CMG against the background of the specifications maintained on the DMF and details kept on the DHF [24] and [25]. It should also be remembered that OMI causes retractable syringes to be manufactured for supply in a market in which its retractable syringes are precise substitutes for RTI's retractable syringes. Plainly enough, retractable syringes can be made, consistent with OMI's patent and its manufacturing specifications, that do not embody or depend upon RTI's confidential information. Deductive conclusions that because OMI supplies a retractable syringe it must necessarily in some way have done so through the use of RTI's confidential information is no substitute for the precise identification of the actual information demonstrated to be confidential or demonstrated to be used in the manufacture and consequent supply of OMI's syringes. 103 In order to demonstrate that RTI may have a right to relief against OMI as an innocent third party acting in reliance upon a contract for the supply of retractable syringes OMI contends derive from disclosures made by it to its manufacturer, RTI must demonstrate 'reasonable cause to believe' by identifying with great precision the information, confidential in character, communicated to DDGCL and the presence or embodiment of that information in the article supplied by CMG or, alternatively, to the extent that RTI relies upon confidential processes of manufacture, evidence must be adduced of the precise process together with evidence that the CMG articles are necessarily the emanation of that process. In all of these respects, the evidence fails to establish that the articles of manufacture supplied by CMG involve a use of any of RTI's confidential information. 104 In those cases where there is no closely substitutable field of common activity (such as the manufacture of immediately substitutable retractable syringes), use of another's confidential information may be more readily identifiable whether in the form of etchings submitted to a publisher, confidential information contained within a manuscript, an instruction manual provided to a third party or a description of a methodology for a manufacturing process or business method. In the absence of very precise identification particularly in the case however of parties involved in closely substitutable fields of common endeavour, of the information, its confidential character and its use, assertions or general conclusionary contentions relied upon to support a claim of use are insufficient and will not give rise to inferences of use. 105 An illustration of the distinction might be that although Charles Darwin received on 18 June 1858 Alfred Wallace's letter setting out a theory of natural selection in the evolution of species, Darwin's address to the Linnean Society in London on 1 July 1858 outlining his central thesis of the origin of species by means of natural selection was the emanation of years of his own research, field studies and thinking. 106 The claims of use of information said to be confidential to RTI made by paragraphs 70(a), (b), (c), (d), (e), (f) and (g); and paragraph 72(b), (d); and paragraphs 73(a), (b), (c), (d), (e), (f), (g), (h), (i) and (j) against the background of 'SW11' are no more than an assertion. As to the plunger seal, RTI's evidence is that OMI uses the 'specific type' of rubber used by RTI. However, in the light of OMI's response that it uses santoprene and specified santoprene 181 as early as January 2002, RTI says that santoprene is a form of rubber. That controversy of fact seems to be inconsistent with the initial contention of use of the 'specific type' of rubber. 107 The conclusion arising out of a consideration of the articles and the evidence is that reflected at [106]. 108 Accordingly, notwithstanding the view I have taken concerning the conclusion of the primary Judge in relation to the implications of OMI acting as a bona fide purchaser for value, RTI has failed to establish a central element of a basis for relief and accordingly no reasonable cause to believe subsists that RTI either has a right to relief or may have a right to relief against OMI in connection with the acquisition of retractable syringes from CMG. 109 Having regard to all of these matters, the application for leave to appeal must be dismissed with costs. I certify that the preceding one hundred and nine (109) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an application for leave to appeal from an interlocutory judgment dismissing an application pursuant to o 15a, r 6 of the federal court rules consideration of the principles to be applied in an application under o 15a, r 6 consideration of whether a basis demonstrated for enjoining a third party acting bona fide without notice that particular conduct might involve a use of the applicant's confidential information consideration of the extent to which the conduct of a third party acting bona fide without notice and for value might be restrained in the exercise of the court's jurisdiction to enforce an obligation of confidence said to devolve upon such a third party in the acquisition and resupply of retractable syringes said to embody the applicant's confidential information practice and procedure intellectual property

The right of appeal under that section is limited to an appeal on a question of law. 2 The Repatriation Commission is the appellant and Mr Gregory Michael Butcher is the respondent. 5 It was common ground before the Tribunal that the respondent satisfied the requirements of s 24(1) other than s 24(1)(c) and the question before the Tribunal was whether he satisfied the requirements of that paragraph. 7 Pursuant to s 15(1) of the Act, a veteran who is in receipt of a pension may apply for an increase in the rate of the pension on the ground that his or her incapacity has increased since the rate of the pension was assessed or last assessed. 8 The Commission's obligations with respect to the determination of such an application are set out in s 19 of the Act and, in particular, subsections (4A), (5A), (5B), (5C) and (5D) thereof. 10 The respondent was born on 22 March 1956. He completed three years of high school. He has no formal qualifications. He served in the Australian army from 8 January 1974 to 13 April 1981. Prior to his service in the army, the respondent was employed as a block hand. After he was discharged from the army, the respondent has been employed for relatively short periods of time as a truck driver, a fork-lift driver, a storeman, a process worker, a labourer and a general hand. He has been unemployed for various periods of time and has now ceased employment. 11 Before 31 March 2003, the respondent was receiving a pension at 90 per cent of the general rate for a number of accepted war-caused disabilities, being a personality disorder, a conversion reaction, a psycho-somatic illness, psoriasis, an anxiety disorder and alcohol dependence or abuse. 12 On 31 March 2003, the respondent lodged an application with the appellant seeking to have a condition of hypertension accepted as a war-caused disease and to have the pension paid at the special rate pursuant to s 24 of the Act. 13 On 20 February 2004, a delegate of the appellant accepted the condition of hypertension as a war-caused disease effective from 31 December 2002 and increased the pension payable to 100 per cent of the general rate, also effective from 31 December 2002. However, he refused the application insofar as it sought payment of the pension at the special rate. 14 The respondent applied to the Veterans' Review Board ('the Board') for a review of the decision to refuse the application for the payment of the pension at the special rate. On 17 August 2004, the Board affirmed the decision. 15 On 31 August 2004, the respondent lodged an application with the Tribunal for a review of the decision by the appellant. 16 The Tribunal found that the respondent has longstanding psychiatric problems. He suffers from excessive anxiety, panic attacks and an almost constant feeling of 'edginess'. For many years he has taken medication for these problems. The respondent's skin condition has also been a persistent and significant problem, affecting every part of his body. It prevents him from working in hot or closed environments, or in environments where he would be exposed to dirt, dust or chemicals. His condition is exacerbated when he becomes stressed or is put under pressure. The Tribunal found that the interaction between his psoriasis and his psychiatric disorders results in a very significant level of disability for any employment. 17 In 1978, the respondent was involved in a motorcycle accident in which he dislocated his left shoulder, requiring surgery. Thereafter, he had no significant problems with his left shoulder until 1999/2000. Since that time, he has experienced problems intermittently with his left shoulder and left arm. However, the Tribunal found that those problems do not relate to the motorcycle accident, but are due to natural degenerative changes in the respondent's cervical spine. I will refer to the natural degenerative changes to the respondent's cervical spine and the symptoms caused by that condition as the respondent's 'cervical spine condition'. The condition is not a war-caused disease. 18 The respondent was last employed in 1998 by Comit Farm Produce Pty Ltd ('Comit Farm'), where he was employed as a general hand for a period of about four or five months. Comit Farm was in the business of growing and exporting vegetables. The respondent worked both in the field and in the processing sheds. The work was manual and sometimes quite dirty. The respondent was exposed to unwashed vegetables and the pesticides on them. He worked long hours, sometimes between 14 and 15 hours per day. The respondent left that employment because of his skin condition and anxiety disorder. Whilst employed by Comit Farm, the respondent did not have any problems with his arm or any problems that could have been associated with his cervical spine condition or his old shoulder injury. 19 The Tribunal found that the respondent's cervical spine condition would prevent him from undertaking certain of the types of remunerative employment which he had undertaken in the past. For example, the respondent would not be able to undertake work as a labourer in tasks that entailed working above his head and looking up, such as fixing ceilings or cornices, or painting, or tasks such as concrete laying or flooring work, which involved looking down for long periods. Furthermore, the Tribunal found that the respondent's cervical spine condition would be a factor preventing him from working as a fork-lift driver, because that work frequently entails stacking shelving at heights that would involve the operator looking upwards for significant periods. 20 The Tribunal found, however, that the respondent's cervical spine condition would not prevent him from undertaking work as a storeman or general farm labourer. Nor would his cervical spine condition be a factor that would prevent him from working as a truck driver, bearing in mind that many trucks are equipped with lifting devices, and, if necessary, the respondent could also use a fork-lift as an incident to truck driving to load heavy objects when receiving or delivering loads. 21 Having regard to the above findings, the Tribunal concluded that the respondent had been prevented by his war-caused injuries alone from carrying out remunerative work which he had previously undertaken. The Tribunal also found that, as a result of his war-caused conditions, the respondent was suffering a loss of wages or earnings on his own account that he would not have suffered if he were free of that incapacity. In reaching that conclusion, the Tribunal said that it had had regard to the provisions of s 24(2)(a) of the Act. In that context, it found that the respondent ceased to engage in remunerative work when he left his employment with Comit Farm and that this occurred because of the exacerbation of his severe psoriasis and psychiatric problems and for no other reason. 22 The Tribunal found that the respondent was not entitled to the pension at the special rate from the date of his application, that is, 31 March 2003, but, rather, fixed the commencement date as 1 August 2004. The Tribunal said that before that date the respondent's cervical spine condition 'would have been a factor in his having been prevented from undertaking any of the kinds of remunerative work which he had undertaken in the past'. The Tribunal said that as from 1 August 2004, the respondent's cervical spine condition 'would not have been a factor that would have prevented him from undertaking work as a farmhand or a truck driver'. The appellant submits that, in view of those two findings, the requirements of s 24(1)(c) were not satisfied and that, in holding that they were, the Tribunal must have erred in law. I say 'must have', because I did not understand the appellant to submit that it could point to an incorrect statement of the law in the Tribunal's reasons. 24 The respondent submits that there is no error of law and that, in view of the Tribunal's findings, he satisfied the requirements of s 24(1)(c). 25 Broadly stated, the issue on appeal is whether the Tribunal erred in law in its approach to the question of the remunerative work the respondent was undertaking for the purposes of s 24(1)(c) of the Act. 26 Before I discuss the rival contentions, I note that the Tribunal correctly identified that s 24(1)(c) raised two questions, namely, whether the respondent's war-caused injuries alone prevented him from continuing to undertake remunerative work and whether, by reason thereof, the respondent was suffering a loss of salary or wages, or of earnings on his own account, that he would not be suffering if he were free of that incapacity. 2 Is the veteran, by reason of war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work? 3 If the answer to question 2 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the veteran from continuing to undertake that work? 4 If the answers to questions 2 and 3 are, in each case, yes, is the veteran by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity? 29 First, as stated previously, the Tribunal found that the remunerative work that the respondent was undertaking within the terms of s 24(1)(c) was that as a truck driver, fork-lift driver, driver, storeman, process worker, labourer and general hand. 30 Secondly, the Tribunal found that, at least from 1 August 2004, the war-caused injuries were the only factors preventing the respondent from undertaking work as a storeman, labourer or general hand and truck driver. The Tribunal also found that the respondent's cervical spine condition would prevent him from undertaking work as a fork-lift driver and certain types of labouring work (as outlined in [19], above). 31 The appellant submits that, in light of its findings, the Tribunal must have reasoned that if the war-caused injuries alone prevented the respondent from undertaking certain types of remunerative work which he had undertaken, then that was sufficient to satisfy the requirements of s 24(1)(c). The appellant submits that that reasoning involves an error of law, because it involves a misconstruction of the subsection. The appellant submits that, to succeed, the respondent had to show that the war-caused injuries alone prevented him from carrying out all types of remunerative work which he was undertaking, and that, in light of the findings of the Tribunal (as outlined in [19], above), he plainly did not do that. The appellant submits that I should decide the matter without remitting it to the Tribunal and that on the findings of the Tribunal, the decision of the delegate was correct and the appeal to the Tribunal should be dismissed. 32 The respondent submits that the Tribunal did not reason in this way. He submits that the Tribunal described the type of work the respondent had done in the past, which involved a reference to his work as a truck driver, fork-lift driver, storeman, process worker, labourer and general hand. He submits that that was no more than a reference to what had in fact occurred and that it was not a characterisation of the remunerative work the respondent was undertaking for the purposes of s 24(1)(c). The Tribunal did that later when, in making its finding that the respondent had been prevented by his war-caused injuries alone from carrying out remunerative work which he had previously undertaken, it referred to his work as a storeman, general farm labourer or truck driver, or, later again, when, in considering the point in time in the assessment period from which payment of the special rate of pension should commence, the Tribunal referred to his work as a farmhand or truck driver. The appellant submits that this was the line of reasoning which the Tribunal adopted and that, providing its characterisation of the remunerative work the respondent was undertaking did not involve an error of law, its findings provided a basis for the conclusion that the requirements of s 24(1)(c) were satisfied. 33 In my respectful opinion, the Tribunal has erred in law. It committed either one of two errors of law. The Tribunal either characterised the remunerative work the respondent was undertaking as all six forms of employment previously referred to, but then applied the requirements of s 24(1)(c) to some only of these forms of employment, or it incorrectly approached the characterisation of the remunerative work the respondent was undertaking for the purposes of s 24(1)(c). The first possible error requires no elaboration other than to say that the error lies in selecting without explanation some only of six specific forms of employment as the remunerative work the respondent was undertaking for the purposes of the subsection. As far as the second possible error is concerned, for reasons I will give, a more general description of the remunerative work the respondent was undertaking was called for in this case. It is not possible to identify from the Tribunal's reasons which error it made, but either error warrants the intervention of this Court. 34 The question then arises as to whether I should decide the matter myself or remit the matter to the Tribunal. The powers of this Court on appeal are set out in s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) and include the power to make findings of fact in certain circumstances. Given that the findings of primary fact are not in dispute, I think that I should decide the matter myself. However, the result for which the appellant contends does not necessarily follow, because the remunerative work the respondent was undertaking for the purposes of s 24(1)(c) needs to be reconsidered. 36 The authorities establish a number of propositions about the proper approach to the characterisation of the nature of remunerative work the veteran was undertaking for the purposes of s 24(1)(c). 37 First, it is not a matter of focusing only on the last job the veteran had, or indeed on any particular job; rather, the phrase 'remunerative work that the veteran was undertaking' refers to the type of work the veteran was undertaking or his field of remunerative activity: Banovich v Repatriation Commission (1986) 69 ALR 305 at 402; Starcevich v Repatriation Commission (1987) 18 FCR 221 at 225 per Fox J; Doig v Repatriation Commission (unreported, Federal Court of Australia, Lindgren J, 18 December 1996); Flentjar v Repatriation Commission (supra) at 4. 38 Secondly (and this is perhaps no more than the development of the first point), the issue requires the decision maker to identify the 'substantive remunerative work' that the veteran has undertaken in the past: Repatriation Commission v Hendy (2002) 76 ALD 47 at [36], or the 'substantial remunerative work that he has undertaken in the past': Starevich v Repatriation Commission (supra) per Fox J at 225. Thirdly, in Doig v Repatriation Commission (supra), Lindgren J said that the appropriateness of any particular description of work that has been undertaken is governed by the purpose of the description, and in cases under s 24(1)(c), that purpose is one related to capacity to work. 39 In view of the last point, some general matters about the scope and operation of s 24(1)(c) should be noted. First, under s 24(1)(c), the veteran must, by reason of the incapacity from the war-caused injuries alone, be prevented from continuing to undertake remunerative work. It is clear from the authorities that other words should not be substituted for the word 'alone', and the issue is to be approached in a practical, common-sense, fashion. Davies J there cited passages from Banovich v Repatriation Commission (1986) 6 AAR 113, Lucas v Repatriation Commission (1986) 6 AAR 122, and Re Apthorpe and Repatriation Commission (1986) 9 ALN N157, a Tribunal decision, each of which emphasises that what must prevent the veteran from continuing to undertake remunerative work, in order to satisfy par (c), must be the war-related incapacity, and that incapacity alone. As was pointed out in Lucas 's case (supra), that means it must be relevant to determine whether the applicant would, in any event, have been debarred from work because of a factor such as age. In the absence of ambiguity, other words should not be used in place of the words used by the legislation. This is not to say, of course, that a paraphrase may not throw light into a dark corner of a statutory prescription. But the phrase used by the Tribunal to which objection is taken, involves an almost scholastic insistence upon analysis of the concept of singularity. The tendency of that is to distract the Tribunal from its true task --- to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide. 41 Of course, in addition to showing that the war-caused injuries alone prevented the veteran from continuing to undertake remunerative work, the veteran must show that, by reason of being prevented from undertaking remunerative work, he or she is suffering a loss of salary or wages, or of earnings on his or her own account that the veteran would not be suffering if the veteran were free of that incapacity. 42 It seems to me that the determination of the type of work the veteran was undertaking, or his or her field of remunerative activity, involves a consideration of the veteran's qualifications and the work which he or she has in fact undertaken in the past. On occasions, the decision will be a relatively straightforward one, where, for example, the veteran has specialised qualifications and has only ever worked in one field of employment. In other cases, of which this is one, the decision will involve a process of characterisation and is not necessarily resolved by simply characterising the field of remunerative activity as involving all of the particular types of employment which the veteran has undertaken. Nor will it necessarily be appropriate to include in the field of remunerative activity a particular type of employment performed some time in the past for a short period of time. 43 The decision as to the characterisation of the type of remunerative work the veteran was undertaking is, like the decision as to causation, a decision which must be made with an eye to reality, and as a matter in respect of which common sense is the proper guide. An unduly narrow definition may result in veterans receiving the pension at the special rate in circumstances not contemplated by the legislature. An unduly wide definition may result in veterans being refused the pension at the special rate in circumstances in which, in reality, they are not working (and thereby not receiving wages) solely because of war-caused injuries or diseases. In other words, the danger in the case of an unduly wide definition is that a veteran will be denied the pension at the special rate in circumstances where, in reality, it is very unlikely that even without any injuries or diseases, the veteran would ever have undertaken a particular form of employment which happens to fall within the wide definition. 44 In my opinion, in this case a more general characterisation of the type of work, or field of remunerative activity, the respondent was undertaking is appropriate, rather than one which includes all six previous forms of employment. I would describe the remunerative work the respondent was undertaking as general labouring duties involving unskilled work, process work and general driving duties. I would not include driving a fork-lift in the description of general driving duties. That was employment he undertook for only a short period of time and the question is the 'substantive' or 'substantial' remunerative work the respondent has undertaken in the past. That leaves for consideration whether, in this case, the general labouring duties involving unskilled work includes tasks that required work above his head, such as fixing ceilings or cornices, or painting, or prolonged looking down, such as concrete laying or flooring work. I do not think that it does, because there is no evidence that the respondent undertook such work on a prolonged or repetitive basis for any period of time, or that he was qualified to undertake such work. 45 Having regard to those conclusions and to the other findings of the Tribunal, the requirements of s 24(1)(c) were satisfied. As from 1 August 2004, the respondent's cervical spine condition would not have prevented the respondent from continuing the remunerative work he was undertaking. 46 There was a suggestion by the appellant that the Tribunal had erred in not considering the respondent's age and lack of recent work experience --- he last worked in 1998 --- in the context of whether other factors prevent him from continuing the remunerative work he was undertaking. The respondent was only 48 years old on 1 August 2004 and I do not think his age or lack of recent work experience were factors of such significance that the Tribunal should be held to have erred in law in failing to mention them. 47 For these reasons, which differ from those of the Tribunal, the decision of the Tribunal is upheld and the appeal to this Court is dismissed. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

appeal from order of administrative appeals tribunal that veteran entitled to pension at special rate veterans' entitlements act 1986 (cth), s 24(1)(c) relevant considerations whether tribunal erred in its characterisation of type of 'remunerative work' that veteran undertaking held, in circumstances of case, more general characterisation appropriate error of law however, for different reasons, requirements of section satisfied appeal dismissed. veterans' affairs

She came to Australia on a visitor visa, arriving on 26 November 2005. Shortly before that visa expired, on 23 March 2007 she applied for a Protection (Class XA) visa under the Migration Act 1958 (Cth) (the Act). Initially she had applied for the incorrect class of protection visa, but nothing turns on that. To qualify for that visa, in essence, the appellant had to have a well-founded fear of persecution by reason of her race, religion, nationality, membership of a social group or political opinion as explained in Art 1A(2) of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (the Convention), using those terms as defined in the Act. Her application was refused by a delegate of the first respondent (the Minister) on 26 June 2007. She subsequently sought review of that decision by the Refugee Review Tribunal (the Tribunal). As it was required to do, the Tribunal conducted a hearing in relation to her application on 20 September 2007. It will be necessary to refer to the content of that hearing in a little detail. On 22 November 2007, the Tribunal affirmed the decision of the delegate of the Minister, refusing her a protection visa. The decision of the Tribunal was challenged in the Federal Magistrates Court for jurisdictional error. On 8 October 2008, that Court dismissed her application. The present appeal is an appeal from the decision of the Federal Magistrate. It accepted that the appellant fears the possibility of being the victim of a future attack by Palestinian or other parties hostile to Israel. It accepted that that fear is a real one, having regard to the recent past history of events in Israel and the continuing evidence of terrorist attacks and armed conflict. It also accepted that there are security issues in Israel as a result of hostilities between Israel and several of its neighbouring countries. The Tribunal concluded that the kind of fear which the appellant so described is a "daily reality" for all Israelis. It noted that, following the decision of the High Court in Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55 ; (2000) 204 CLR 1 , a person does not fear persecution for a Convention reason if the fear is one of generalised violence, internal turmoil or civil war where that person or her immediate family is not personally attacked for a particular Convention reason. Hence, although it accepted her fear about living in an environment of tension and uncertainty, it was not satisfied that her fear was a fear of persecution for a Convention reason. The generalised violence, which she feared, would not impact differentially upon her due to her civil or political status, that is the basis upon which she made claims to have been a refugee. The Tribunal notes that independent country information corroborates the explanation of compulsory military service given by the applicant. The Tribunal notes that the enforcement of laws providing for compulsory military service (and for punishment of desertion or avoidance of such service) does not provide a basis for a claim of persecution within the meaning of the Convention: Mijoljevic v MIMA [1999] FCA 834. The Tribunal finds that in Israel the obligations to undertake military service generally amount to a non-discriminatory law of general application. The contention was that the Tribunal had failed to identify that the appellant had made a claim to have been a conscientious objector, that is to have conscientiously objected to undertaking compulsory military service or further military service in Israel, and that as a result she may be persecuted by the Israeli authorities. The Federal Magistrate pointed out that the Tribunal had not accurately reflected the observations of Branson J in Mijoljevic v Minister for Immigration and Multicultural Affairs [1999] FCA 834 in that passage. Her Honour in that decision at [23] said that it is ordinarily the case that a basis for a claim of persecution within the meaning of the Convention will not flow from the enforcement of laws providing for compulsory military service, or for the punishment of those who avoid such service. If it be the case that a person will be punished for refusing to undergo compulsory military service by reason of conscientious objection stemming from political opinion or religious views, or that is itself political opinion, or that marks the person out as a member of a particular social group of conscientious objectors, it will not be difficult to find that the person is liable to be persecuted for a Convention reason. It is well-established that, even if a law is a law of general application, its impact on a person who possesses a Convention-related attribute can result in a real chance of persecution for a Convention reason. His Honour concluded that it did not because, upon the whole of the evidence before the Tribunal, the appellant's evidence did not "even get to that nascent stage" of considering whether there was a Convention related reason for any fear of the appellant flowing from a decision not to undertake her compulsory military service, because there was no indication of her having formed an intention not to serve in the army. It also followed that the second contention on behalf of the appellant before the Federal Magistrate also failed. That contention was that there was material before the Tribunal which indicated that the appellant did not want to return to Israel because she did not want to serve in the army on account of her conscientious objection, either because of her political opinion or because of a more generalised opposition to war which might itself also be said to be political opinion. The Federal Magistrate concluded, having reviewed the hearing before the Tribunal, that the appellant had the opportunity to raise with the Tribunal any decision by her to refuse to perform military service on the part-time basis required of her if she were to return to Israel, but that she but did not do so. His Honour noticed, correctly, that the main focus of the appellant before the Tribunal was her fear to return to Israel principally from fear for her physical safety given the terrorist threats to the country. He did not consider that the exploration of those issues by the Tribunal was conducted in a way which dissuaded or discouraged her from pursuing an aspect of her claim: cf NAQF v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 781 ; (2003) 130 FCR 456. In essence, however, the argument centred upon and depended upon the appellant persuading the Court that the Federal Magistrate had erred in not identifying that the appellant had raised before the Tribunal an unarticulated claim to have a well-founded fear of persecution by reason of how she might be treated by the Israeli authorities were she to return to Israel and in face of her conscientious objection which (it was argued) she had signalled to the Tribunal. I have identified the focus of submissions on the appeal in that way because, notwithstanding the general observations of the Tribunal set out in [6] above which may demonstrate legal error, they do not do so relevantly except in the context of a claim by the appellant to be a conscientious objector. I would otherwise read the Tribunal's observations in that passage, with an eye not keenly attuned to the perception of error (see Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456 ; (1993) 43 FCR 280) , as indicating no more than that the enforcement of laws for compulsory military service do not of themselves provide a basis for a claim of persecution merely because those obliged to undertake compulsory military service might thereby be at greater risk than civilians. If the appellant were not in fact a conscientious objector, there was nothing to indicate that she was required to undertake compulsory military service for a Convention reason or that she would then be treated differently whilst doing so for a Convention reason. Indeed, counsel for the appellant appeared to accept as much. At one point, he said that the error discussed by the Federal Magistrate flowed from failing to ask what would happen to the appellant if she is a conscientious objector. Absent the making of a claim, either articulated or implied, that the appellant feared persecution for a Convention reason if she were to conscientiously object to further undertaking compulsory military service in Israel, the "behaviour modification" considerations addressed for example in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473 do not relevantly arise. The second contention is that the appellant's material exposed an unarticulated claim to fear persecution, in effect for a political opinion, by being a conscientious objector to undertaking compulsory military service if she were to return to Israel. She had, on the material, previously undertaken a period of compulsory military service between 2000 and 2002. It was also clearly accepted by the Tribunal that she would have to undertake a further 30 days' military service each year until the age of 35. She said in her application for the protection visa that, if called up, "it will be more risky for me if I'll (sic) have to take that call in this situation". Tell me slowly. Okay. Israel --- as we all know, it's a really hard place to live. Like, apparently all of our neighbours just want to get all the Israelis out of Israel and have the country for themselves. So some people living in Israel just choose to live with this situation, just look at it as an ordinary thing, like you wake up in the morning, maybe one of the buses right next to you will blow up and people will be dying and life goes on. That's the only thing. I just think that what's going on is wrong --- what's going on in our side and also in their side, what our army doing to them --- it's also wrong. I just can't live with it being --- and this is why I think I just --- I need you to let me stay here. Yes, I understand how it works. This applies to all Israeli citizens? Yes. And also the army --- it's also arrest you to go back there and something can happen. You're just frightened to go back there. It pointed to the Convention reasons: race, religion, nationality "and so on", and it suggested that she did not fit neatly into the category of persons persecuted by their own government. She responded by saying the government could not protect her from Palestinian or other terrorist acts. The Tribunal was obliged to deal with any claim raised by the evidence or contentions which, if resolved in one way, could resolve the application: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at [58] and [63] provided the claim has been squarely raised. As noted, the Federal Magistrate properly identified that obligation. However, his Honour did not consider that there was any unarticulated claim for refugee status on the basis of a fear of persecution arising from a conscientious objection to military service. In my judgment, the Federal Magistrate erred in that conclusion. Clearly, the appellant's main concern was that she and all Israeli citizens may be exposed to Palestinian or other terrorist violence, and that the Israeli authorities are unable to protect its citizens from such acts. Whether as a civilian or while doing compulsory military service, that fear (as the Tribunal found) was not one for a Convention reason. There is no challenge to that conclusion before the Federal Magistrate, and hence on this appeal. However, in my view, there was also squarely raised on the material a claim that the appellant feared persecution by reason of being a conscientious objector to further compulsory military service. That claim was not addressed by the Tribunal. It should have been. If it was, and if it was addressed in the manner set out in [6] above, that claim would have been incorrectly addressed for the reasons discussed by the Federal Magistrate. The Tribunal would have needed to consider, in the appellant's particular circumstances, the reason for her objection to compulsory military service to determine whether the consequence of such objection might amount to persecution for a Convention reason. Those questions were not considered by the Tribunal. As to the third ground of appeal, I have carefully considered the contentions and the course of the hearing before the Tribunal. I note that the appellant adduced evidence before the Federal Magistrate about the Tribunal's interview. The Federal Magistrate considered, nevertheless, that the Tribunal had not diverted her from expressing her claims in the manner she wished to do so, even though the affidavit suggests that she had been so diverted. I respectfully agree with the Federal Magistrate's decision in that regard, and his reasons for that conclusion. I do not need to repeat them. (2) The orders of the Federal Magistrates Court of 8 October 2008 be set aside. (3) The decision of Refugee Review Tribunal of 22 November 2007 be quashed and the application to the Refugee Review Tribunal of 29 July 2007 be remitted for further consideration according to law. (4) The first respondent pay to the appellant her costs of the proceedings before the Federal Magistrates Court and of this appeal. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

protection visa whether unarticulated claim made of well-founded fear of persecution by reason of being a conscientious objector to compulsory military service whether claim addressed by tribunal whether jurisdictional error migration

The appellant sought review on the ground of alleged jurisdictional error by reason of the Tribunal wrongfully refusing to exercise jurisdiction on the basis of the application being out of time. Before the Federal Magistrates Court the appellant submitted that the Tribunal erred in that the prescribed time limit --- 28 days after notification of the decision under s 347(1)(b)(i) of the Migration Act 1958 (Cth) --- had not yet commenced as notification of the decision of the Minister's delegate refusing the appellant's visa application had not been given as required by law. The Minister accepted that if notice had not been given as required by law, then time would not have started to run against the appellant. The Federal Magistrates Court held that notice was given as required ( Maroun v Minister for Immigration & Anor [2009] FMCA 535). (2) It was not open to the Federal Magistrates Court to find that notice was given "within 3 working days (in the place of dispatch) of the date of the document" as required by s 494B(4)(a) of the Migration Act . (3) The notice was not sent by any method specified in s 494B of the Migration Act . I deal with each of these issues below. NOTICE GIVEN OF WHERE APPLICATION CAN BE MADE? The court book contains a copy of a letter from the Department to the appellant under Ms Carrillo's name dated 20 August 2004. If you require further information about review by the MRT, you should contact one or more of the MRT offices listed in the leaflet. Underneath the barcode is a blank space, the shape of which corresponds to the sticker which appears on the letter. The serial number of the label on the envelope is the same as the serial number of the label on the letter. In her affidavit Ms Carrillo said that she could not recall the letter in question. However, her usual practice was to enclose the decision and Tribunal leaflet with such letters. After sealing the envelope she would place a registered post sticker on the envelope and then place the envelope in the out tray for collection and posting by another officer. She would do so on the same day as she signed the letter. Ms Carrillo also annexed a copy of a Tribunal leaflet to her affidavit. This leaflet bears the date 10 December 2003 on each page. It is headed with the coat of arms of the Australian Government and entitled "Australian Government: Migration Review Tribunal - Applying For Review". Amongst other things, this leaflet lists methods of contact and locations of the Tribunal in each State including New South Wales. In her oral evidence Ms Carrillo agreed that her job finished with her placing the envelope in the out tray for collection by another officer. She was not responsible for posting letters, although she thought the Department would have a record of the posting of registered mail (which record, if kept, was not in evidence). Nor was she responsible for dealing with returned letters. Ms Carrillo did not recall which leaflet was current as at 20 August 2004. She did not know if the version of 10 December 2003 as annexed to her affidavit was the version of the leaflet then in force. She had not gone back to see if that version was current at 20 August 2004. It does not appear that the contents of the envelope returned to the Department were retained. No contents were presented as evidence. On the other hand the applicant can give no evidence of what was in the envelope as he did not receive it. I am prepared to accept from Ms Carillo's evidence as to her usual practice, and the documentary record that the letter at CB 28, the decision record at CB 29-34 and a MRT leaflet were included in the envelope. On the basis of Ms Carillo's evidence I also accept that it is more likely than not that the leaflet was the same as that at Annexure B to her affidavit. While the drafting of that leaflet could have been improved, I accept that the leaflet adequately informed applicants of where an application for review might be made. That decision is distinguishable on the facts. In that case, Allsop J found that the leaflet was not enclosed with the letter (at 475 [23], 478 [30] and 483 [64]). It would appear that his Honour's finding was based on the applicant's evidence (at 478 [29]-[30]) that the leaflet was not included. In this case, I have found that the leaflet was included. The applicant's first contention is not made out. The giving of notice of the decision is a jurisdictional fact. Thus the Court needed to be satisfied that notice had been given. The court book showed that the letter had been returned to the sender. The envelope and letter both appear in the court book but the Tribunal leaflet does not. The Minister had not explained the absence of the Tribunal leaflet from the court book. The obvious inference is that the Tribunal leaflet was not enclosed. The appellant asked the Federal Magistrates Court to draw that inference having regard to these matters and Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298. The Federal Magistrate, however, did not address this submission. Alternatively, no inference can be drawn that any Tribunal leaflet that was enclosed notified the appellant of all places "where the application for review can be made" as required by s 66(2)(d)(iv) of the Migration Act . By analogy to Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 a notice has to identify all places where an application for review can be made. I do not accept these submissions. It was open to the Federal Magistrate to find that the letter was sent and included a copy of a Tribunal leaflet that satisfied the requirements of s 66(2)(d)(iv) of the Migration Act . Moreover, I consider that this was the correct inference to draw on the basis of the evidence. As a general proposition, the characterisation of a matter as a jurisdictional fact does not alter the appellant's onus of proof. The legal onus to prove jurisdictional error by the Tribunal lies with the appellant. The legal onus may be discharged by reference to any and all parts of the evidence, but it does not shift from the appellant merely because the fact in issue may be described as a jurisdictional fact (and thus is a matter a court must decide for itself). As to the fact of sending, Ms Carrillo gave evidence of the Department's system as well as her usual practice. The Department's system was to have one officer place his or her outgoing mail in an out tray and another to collect and post it, with out trays cleared by the end of each day for the purpose of posting. The fact that Ms Carrillo did not personally post letters does not mean she could not give this evidence of the Department's system about posting. Evidence about a system for posting letters supports an inference of posting in accordance with the system. Further, the envelope is marked "return to sender". That alone is sufficient to support an inference of the fact of the posting of the envelope. As to the enclosure of a Tribunal leaflet with the letter as sent, there is the evidence on the face of the letter (as recorded in [7]-[8] above). There is also Ms Carrillo's evidence that it was her usual practice to enclose a Tribunal leaflet with such a letter. The fact that Ms Carrillo could not recall doing so in the particular case or which leaflet would have been enclosed does not undermine the rationality of an inference that a Tribunal leaflet was enclosed. Nor does the fact that the leaflet does not appear in the court book. I accept that the court book may be inferred to include all relevant material on the Minister's file. The fact that the copy of the letter in court book bears the "sender to keep" sticker indicates that the file includes the letter as originally retained on the file and not the letter as returned to sender. The fact that the envelope appears in the court book enables an inference to be drawn that, after return of the envelope by the postal system, an officer placed the envelope, but not its contents, on the file. It does not enable (let alone require) an inference, by reference to Jones v Dunkel or otherwise, that the envelope as sent never included the Tribunal leaflet. It does not enable that inference because the letter as sent is also not in the court book. It does not require that inference because the evidence as a whole rationally points to the inclusion of a Tribunal leaflet in the envelope, particularly the evidence on the face of the letter and of Ms Carrillo's usual practice. As to the contents of the leaflet identifying all places where an application for review could be made, there are two answers. The first answer is factual. It is that the evidence, taken as whole, supports the inference that the Tribunal leaflet enclosed did identify all places where an application for review could be made. The evidence includes the terms of the letter as recorded in [7] above. The letter refers to the "addresses" of the Tribunal and invites the appellant to contact "one or more" of the Tribunal's offices for more information. This is sufficient to support an inference that all Tribunal offices were identified in the leaflet as enclosed. In short why would the leaflet include more than one but not all addresses? There is other evidence supporting this inference. It may be accepted, as the appellant submitted, that the leaflets changed from time to time and Ms Carrillo did not know if the version she annexed to her affidavit was current as at 20 August 2004. The leaflet annexed to Ms Carrillo's affidavit is dated 10 December 2003. It lists all of the Tribunal's offices. When that is taken together with the description in the letter of the terms of the leaflet (see [7] above) it would be irrational to infer that the leaflet had been changed so as to delete reference to one or more of the offices. There is simply no basis for such an inference. Jones v Dunkel does not assist the appellant. It permits an inference only that a Tribunal leaflet is not on the Minister's file. In the face of the evidence supporting an inference that a Tribunal leaflet was placed in the envelope, it does not permit an inference to the contrary. It follows that the Federal Magistrate was correct to distinguish Zhan v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 469 ; [2003] FCA 32 which turned on a factual finding that no Tribunal leaflet was sent at all. The second answer is legal. Uddin v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 841 does not deal with s 66(2)(d)(iv) of the Migration Act . Insofar as potentially relevant it deals with s 137J(1) which concerns a different issue (revocation of a visa) and different requirements (including to attend before an officer as defined). In Uddin Scarlett FM held that these notice requirements had to be complied with strictly. The statutory circumstances in Uddin (and the cases referring to it, Morsed v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 88 ALD 90 ; [2005] FCAFC 193 and Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300 ; [2007] FCA 18) not are not sufficiently similar to s 66(2)(d)(iv) to support any form of reasoning by analogy. Section 66(2)(d)(iv) does not say that the notice must identify all places where an application for review can be made. It states only that the notice must state "where the application for review can be made". I do not accept the appellant's submissions to the contrary. Even if the section were construed as requiring all locations where an application can be made, having regard to the principles in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [91]-[93], I am not satisfied that any breach of s 66(2)(d)(iv) , no matter how trivial, would operate to invalidate a notice. However, as I did not receive detailed submissions on that question I say no more about it. For these reasons I am not persuaded that the Federal Magistrate erred in finding compliance with s 66(2)(d)(iv) of the Migration Act . NOTICE GIVEN WITHIN 3 WORKING DAYS? That section requires the notice to be dispatched within 3 working days of the date of the document. The document is dated 20 August 2004. That was a Friday. Three working days after that date was 25 August 2004. The Federal Magistrate held that markings on the envelope, together with Ms Carrillo's evidence, led to the inference that the notice was dispatched by 24 August 2004 and thus within the time required by s 494B(4)(a). The appellant submitted that, in so holding, the Federal Magistrate erred. According to the appellant, first, Ms Carrillo had nothing to do with the dispatch of the envelope and said she had no idea whether the envelope would have been sent within that time. Second, Ms Carrillo said that the Department kept records of the sending of documents by registered post but no records had been produced, giving rise to a Jones v Dunkel inference that the letter was not dispatched as required. Third, the markings on the envelope could not be inferred to have been made by Australia Post (as opposed to the Department, for example) as there was no evidence about the making or provenance of those markings (see, by analogy, the Minister's submissions in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 ; [2000] FCA 377 at [16] and [23]). I do not accept these submissions. It may be accepted that Ms Carrillo was not responsible for posting the envelope. But she did not simply say she had "no idea" about the process for dispatch. She gave evidence about the Department's system. This included the fact that she placed envelopes in the out tray on the same day she signed the letter. Further, that the usual practice was for the tray to be emptied by the end of each day, having been collected by those responsible for dispatch. This evidence has to be considered together with the evidence presented by the envelope. The Federal Magistrate was entitled to draw rational inferences from the face of the envelope including as to the provenance of markings thereon. The envelope contains two references to the date 24 August 2004. Given Ms Carrillo's evidence and the other markings on the document (particularly the return to sender marking showing that Australia Post handled the envelope) it was open to the Federal Magistrate to find that Australia Post handled the envelope on 24 August 2004. More to the point, the appellant has not proved to the contrary. The fact that the Department has not produced records of the dispatch of the envelope does not support a Jones v Dunkel inference that the envelope was not sent within the required time. There was evidence available supporting an inference of dispatch of the letter within the required time. The appellant did not advance contrary evidence. In these circumstances it cannot be said that anything remained that the Minister was required to explain or contradict. Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 ; [2000] FCA 377 also does not assist the appellant. That case did not turn on the markings on the envelope. The Court did not say anything inconsistent with the proposition that a court may draw any rational inference available from the face of any admissible document. For these reasons I am not persuaded that the Federal Magistrate erred in finding compliance with s 494B(4) of the Migration Act . NOTICE GIVEN BY A METHOD IN SECTION 494B? If such a method is used s 494C provides that a person is taken to have received the document within the time periods prescribed. He did not complete question 20 (his address for correspondence). He completed question 21 which asked "Do you agree to DIMIA communicating with you by facsimile, e-mail or other electronic means?". He answered "yes" and gave his email address. This question was followed by a note stating " Note : If this visa application is refused, you will be notified by mail". He did not complete question 73 "Options for receiving written communications". The Federal Magistrate found that the question of purpose had to be determined objectively. On that basis the Minister was entitled to send the notice to the appellant's residential address in Australia under s 494B of the Migration Act . The appellant submitted that s 494B(4) did not apply as the appellant did not provide his residential address in Australia for the purposes of receiving documents as required by s 494B(c)(ii) of the Migration Act . The only address the appellant gave for that purpose was his email address as referred to in s 494B(5) but the notice was not sent to his email address. The words "for the purposes of receiving documents" are words of limitation. They can be contrasted with the more general description in ss 379A(4)(c) and 441A (4)(c) (which refer to the address "provided...in connection with the review"). By analogy to Chand v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 140 ; [2000] FCA 1743 at [14] - [17] , the appellant elected to receive correspondence at his email address. Further, the residential address in Australia was not the appellant's last residential address as he also gave an address in Lebanon whereas the requirement for a last address connotes a single address. I do not accept these submissions. The appellant provided his residential address in Australia. He did so in a form which asked for an address for correspondence but which the appellant chose not to provide. He agreed to receive documents by email on a form which told him that if his visa application was refused notice of that refusal would be given by mail. That can be understood only as the Minister advising the appellant that despite his provision of an email address any notice of refusal would be to a postal address as provided and not to an email address. In the context of the form as a whole the appellant must be taken to have provided his residential address as his address for the purpose of, at the least, receiving any notice of refusal of the appellant's visa application. Chand v Minister for Immigration and Multicultural Affairs turned on its own facts and is not authority to the contrary. As the Minister submitted, choice of method was for the Minister to decide. On the basis of the form as lodged the appellant had provided his residential address as an address for the purpose of receiving documents. The Federal Magistrate was correct in so finding. As to the further submission about the address not being the appellant's "last" address, the ordinary meaning of the word "last" in s 494B(4) does not mean "single" or "only". It means "most recent at the time in question". The appellant gave his address when he lived in Lebanon. However, as the appellant was physically in Australia at the time of his application his Australian address was his "last" (that is, most recent) residential address. For these reasons I am not persuaded that the Federal Magistrate erred in finding compliance with the address requirements of s 494B(4) of the Migration Act . It follows that the appeal must be dismissed with costs.

jurisdiction of the migration review tribunal application for review lodged out of time whether appellant notified of the first respondent's decision in the prescribed manner whether notice of where the application for review could be made in accordance with s 66(2)(d)(iv) of the migration act 1958 (cth) whether notice given within the prescribed time period whether notice sent in accordance with methods prescribed by s 494b of the migration act inferences to be drawn migration

2 His Honour found that by operation of s 46 of the Migration Act 1958 (Cth) (the Act), the first appellant could not make a valid application for a Graduate --- Skilled (Class UQ) (Temporary), Subclass 497 visa lodged on 25 March 2002. His Honour concluded that the Migration Review Tribunal (the Tribunal) had made no error of law in reaching that conclusion. 3 The appeal to this Court, while it has to be seen against a very extended and extensive history of litigation, ultimately involves a short point: the appellant contends that as condition 8534 of Schedule 8 of the Migration Regulations 1994 (Migration Regulations) does not contain the phrase "despite anything else in this Act", it is not a condition described in s 41(2)(a) of the Act, and therefore, s 46(1A) has no application to an application by a person who holds a visa that is subject to condition 8534. 4 For the reasons which follow, I am satisfied that condition 8534 is a condition described in s 41(2)(a) of the Act, and the Tribunal and the Federal Magistrate were right to so conclude. The consequence is that the appeal has to be dismissed with costs. 5 What follows are my reasons for that conclusion. The primary visa applicant (the first appellant) was born in 1963, and is the wife and mother of the other appellants. The first appellant, with her husband, entered Australia on 1 August 2000 on student visas. They were subsequently granted various extensions to those visas, and, later, bridging visas. 7 On 25 March 2002, the appellants lodged an application for Graduate Skilled (Class UQ) (Temporary), Subclass 497 visas, while being holders of Subclass 574 visas. The first appellant's visa was subject to condition 8534 in Sch 8 of the Migration Regulations . 8 On 29 April 2002, the first appellant lodged an application for a class DD visa, which could be lodged prior to a decision being made on the 497 visa application. 9 A delegate of the first respondent refused the application for visas on 7 June 2002. On 27 June 2002, the first appellant applied to the Tribunal for a review of that decision. Some years later, on 6 April 2005, the Tribunal, as originally constituted, affirmed the decision of the delegate. On 4 October 2006, Federal Magistrate Lloyd-Jones quashed the Tribunal's decision by consent, and remitted the matter to the Tribunal, noting that the Tribunal had incorrectly applied the criterion in item 497.224 of Sch 2 of the Migration Regulations . The correct interpretation was that although condition 8534 might preclude the visa applicant from being granted a Subclass 880 visa while she was in Australia it did not preclude her from making a valid application for the visa. 10 The decision of what I will call the second Tribunal was dated 5 April 2007, and handed down on 20 April 2007. The second Tribunal found that condition 8534 did not prevent an applicant from making a valid application, but prevented the grant of a further visa, other than the ones referred to in the condition, which included a Subclass 497 visa. 11 The first appellant was able to apply for a Subclass 497 visa, but without waiver of condition 8534, pursuant to s 41(2A), the visa could not be granted. The first appellant applied to the Federal Magistrates Court on 3 May 2007 for review of the second Tribunal's decision. 12 Before Federal Magistrate Turner, the issue was whether condition 8534 in Sch 8 of the Migration Regulations was a condition within s 41(2)(a) of the Act, and consequently, whether s 46(1A) applied to condition 8534. 13 The principal submission of the first appellant before Turner FM, which was the submission made on the first appellant's behalf to this Court, was that "condition 8534 is not a condition caught by s 41 and s 46 of the Migration Act as it does not contain the qualification 'despite anything else in this Act' as referred to in s 41(2)(a). 15 Turner FM accepted that condition 8534 was applicable in the circumstances. The Court accepts the submission by Mr Kennett (Transcript 16, line 38) that s.41(2)(a) describes something that the regulations may achieve, and does not purport to describe the form of words that has to be used to achieve it. The Court refers to the decision in Inland Revenue Commissioners v Hinchy [1960] AC 748 per Lord Reid at 767: "What we must look for is the intention of Parliament from the words which they used in the Act". ... 15. The intention behind, and purpose of s.41(2)(a) , is the making of a condition that the holder of a visa will not after entering Australia be entitled to be granted a substantive visa while he or she remains in Australia, despite anything else in the Act. If the argument advanced for the applicant is accepted, clause 8534 would be rendered ineffective, which would conflict with the intention and purpose of s.41(2)(a). An interpretation which gives operative effect to a provision is to be preferred to one that renders it nugatory, and defeats the intention of the legislature: Anstee v Jennings [1935] VLR 144 per Macfarlan J. 16 Turner FM found that by operation of s 46 of the Act, and as the visa held by the first appellant was subject to a condition described in s 41(2)(a) , which had not been waived by the Minister, the first appellant could not make an application for the visa which she did, and by condition 8534, she could not be granted the visa. His Honour concluded that the second Tribunal made no error of law in the conclusions it reached. (d) the application is for a visa of a kind that, under that condition, the applicant is not or was not entitled to be granted. 22 The Second Tribunal concluded that the primary appellant could not meet the criterion in item 497.224. The central point, and really the only point for the first appellant on the appeal, is that condition 8534 does not conform to the condition described in s 41(2)(a) , with the consequence that s 46 does not operate, and has no application, to the Subclass 497 visa. 25 The argument that condition 8534 does not comply with the statutory requirements of a condition described in s 41(2)(a) of the Act is founded on the absence of the words "despite any other provision of the Act" in condition 8534. 26 In my opinion, the contention by the primary appellant fails. 27 Section 41(2)(a) authorises the regulations to impose a condition that, despite anything else in the Act, the holder of the visa will not, after entering Australia, be entitled to be granted a substantive visa, other than a protection visa or a temporary visa of a specified kind (while he or she remains in Australia). Condition 8534 conforms to the words of s 41(2)(a) save that the words "despite anything else in this Act" do not appear. The words "despite anything else in this Act" neither add nor detract from the scope of condition 8534 as it appears in Sch 8 of the Migration Regulations . Those words are merely emphatic of the condition (which is really a prohibition) expressed in the terms of condition 8534. 28 In my judgment, condition 8534, as enacted in the Migration Regulations , conforms to the requirement of the description contained in s 41(2)(a) of the Act. The absence of the particular words contended for does not enlarge or limit the extent of the prohibition, or absence of entitlement, that affects the holder of the visa. 29 In my opinion, the second Tribunal was not in error in concluding that condition 8534 was valid and operative in the case of the first appellant. 30 It should also be noted that Counsel for the Minister sought to rely on a Notice of Contention, which had been communicated to the legal representatives of the appellants only on the Friday preceding the hearing of this application. Having regard to non-compliance with the time within which, pursuant to Order 52, rule 22(3)(a) of the Federal Court Rules , a Notice of Contention ought properly to be served, and the unfairness in requiring a party to respond on such short notice, I declined to grant leave to the respondent to rely on that Notice of Contention. 31 For the above reasons, the appeal is dismissed, with costs to be taxed if not agreed. I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

appeal from decision upholding refusal of grant of subclass 497 visa whether the absence of the phrase "despite anything else in this act" has the effect that condition 8534 does not fall within the scope of s 41(2)(a) of the migration act whether s 46(1a) therefore does not preclude a person holding a visa subject to condition 8534 from applying for another visa held that s 41(2)(a) authorises a condition such as condition 8534 condition 8534 conforms to the requirement of the description contained in s 41(2)(a) held the tribunal was not in error in concluding that condition 9534 was valid and operative appeal dismissed migration

His employer, the respondent, is the Australian Postal Corporation. As a result of the injuries sustained to his right foot during the attack and an unrelated injury sustained two years earlier he received compensation under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act ). He received compensation under s 14 for incapacity or impairment and later under s 29 for household cleaning services. During 2006 the respondent made two separate decisions effectively terminating these payments. Applications for internal review were unsuccessful. Subsequent applications to the Administrative Appeals Tribunal seeking review of the decisions were also unsuccessful. In these proceedings the applicant challenges the Tribunal's decisions affirming the decisions. The SRC Act contains two sections of importance. The first, s 29 creates a liability to pay compensation for household services if, as a result of a compensable injury, the employee obtains those services. The second, s 37 empowers a rehabilitation authority to require an injured employee to undertake a rehabilitation program and also provides that if the employee refuses or fails to do so (without reason excuse) rights to compensation are suspended. On 28 November 2006, the respondent formulated a rehabilitation program under s 37(1) for the applicant. It was common ground that the respondent was a rehabilitation authority for the purposes of s 37. The program specified that the applicant was to work 7 hours per day 3 days a week (Monday, Wednesday and Friday) and 6 hours per day 2 days a week (Tuesday and Thursday). Before the Tribunal the applicant's counsel appeared to concede that the applicant has never worked 33 hours a week since 28 November 2006 in accordance with the program. On 20 December 2006 the respondent made a decision that it was no longer liable to pay compensation to the applicant, as "[he had] failed to participate in [his] return to work program" as required by s 37 . The applicant challenges the Tribunal's decisions to affirm, indirectly, these decisions on a number of grounds, relying both on the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Administrative Appeals Tribunal Act 1975 (Cth). First, the applicant argues that the Tribunal failed to take into account a relevant consideration for the purposes of s 5 of the former Act, namely that the applicant had begun to undertake the rehabilitation program when the Tribunal affirmed the decision. At the forefront of the applicant's submissions was the contention that the Tribunal erred in law by failing to address a central element of his case. It was that if there had been a refusal or failure on the part of the applicant to undertake the rehabilitation program, it was with reasonable excuse. The excuse was that the applicant was taking, from time to time, a medication which rendered him incapable of driving, his usual means of coming to work. His inability to drive himself to work constituted a reasonable excuse explaining and excusing his failure to undertake the rehabilitation program. Had that argument been accepted then the justification of reasonable excuse for the failure found in s 37(7) would have been established. This contention raises three issues. First, was the argument an element of the applicant's case before the Tribunal. Secondly, did the Tribunal fail to address this argument. Thirdly, and if so, did this constitute an error of law. I have read relevant parts of the transcript of the proceedings before the Tribunal. The following emerges. When opening his case, counsel for the applicant adverted to the fact that the applicant had not worked the maximum number of hours included in his rehabilitation program. He identified several matters which, on the applicant's case, explained why the applicant had not worked the hours the program contemplated. Counsel was asked by one of the Tribunal members whether it was his case that for the hours the applicant did not attend the rehabilitation program, he had a reasonable excuse. Counsel replied fairly emphatically that this was so. There was a discussion between the Tribunal and the applicant's counsel about whether it would be necessary for the Tribunal to review the reason, and therefore the excuse, for each day the applicant had not worked or had worked hours less than those contemplated by the rehabilitation program. Counsel indicated he was going to take the Tribunal through sufficient number of days to establish the case. In that context counsel referred to the fact that when the applicant had an exacerbation of his pain he took additional medication and noted that when he did so he was not allowed to or should not drive. Counsel said that this was so if the applicant took "more than 50 mg of oxy-something per day". A Tribunal member volunteered that this was a reference to Oxycontin. As the case developed it was clear that counsel's hesitating and incomplete reference should have been to Oxynorm. The applicant gave oral evidence in chief for several hours on the first day of the hearing. This was 23 February 2009. When giving that evidence he explained what medications he had been taking immediately before and at the time the rehabilitation program commenced and later. His evidence was that he had been taking medication for a number of years and the clear import of his evidence was that this included one drug, Oxycontin. His evidence was that his dosage of this drug started off at 10 mg and had increased to 50 mg and the frequency of dosage had changed from twice a day to three times a day. His evidence also was that at least for a couple of years he had been taking another drug, Oxynorm, to deal with breakthrough pain. He indicated he was pretty sure he had been taking that drug when he was attempting to return to work in 2006. The initial dosage he took was 10 mg which increased to 15 mg and his evidence was that he was "pretty sure" it was at the increased dosage when he was attempting to return to work. He gave evidence that he probably or "maybe" took it three times a week, three times a day and the frequency depended on pain levels. At this point both the questions and answers appeared to become a little confused about what drugs he had been taking and with what frequency. Obviously it is not my function to make findings of fact on this evidence. It is sufficient to point to the fact that evidence was given which could have sustained findings that the applicant took both drugs and regularly took the Oxynorm, that it was evidence capable of supporting the argument referred to in paragraph [7] above and, it could be inferred, was led for that purpose. A little later in his evidence, the applicant addressed the effect of these two drugs on his capacity to drive and what he had been advised by his medical advisers about taking them and driving. He gave evidence that he was usually okay to drive when taking Oxycontin though, on one view of his evidence, he said that he had been advised not to do so. However his evidence was that when he also took Oxynorm he could not drive a car. He also gave evidence that he had been advised by his rehabilitation doctor, Dr Faux, and his general practitioner not to drive if he had taken 15 mg of Oxynorm. He again gave evidence about the frequency with which he took Oxynorm, namely about three times a day about three times a week. He gave evidence that if he took the additional morphine-based medication of Oxynorm on a particular day it stopped him from going to work. He also gave evidence that if one of the three days he took it was a work day he would not go to work. In response to a question from the Tribunal, the applicant said he drove to work. He also gave evidence to the effect that he had never gone to work when he had taken the additional medication of Oxynorm because he could not drive. He also said he could not really do anything under the influence of the medication. Again this evidence could have sustained findings that when the applicant took Oxynorm he could not drive to work and could not work, was evidence capable of supporting the argument referred to in paragraph [7] above and, it could be inferred, was led for that purpose. None of the evidence of the applicant I have summarised to this point was objected to and, importantly, was not challenged in cross-examination. The applicant was cross-examined at great length (for a little over a day) by counsel for the respondent about a variety of matters. He was cross-examined about his ability to drive a car and ride a motorbike but the cross-examination was directed to whether or not the injuries he had suffered to his feet limited his capacity to drive. The cross-examination was not directed to his capacity to drive having regard to the medications he may have been taking. Similarly he was cross-examined about his use of public transport but not whether he was able to use it having regard to his medication. The applicant was cross-examined about having been told by Dr Faux in February 2006 to stop taking Oxynorm and increase the dosage of Oxycontin as a means, it appears, to increase his hours of work. However his evidence about what in fact was his consumption of medication was not challenged. The applicant was cross-examined about his reasons for not attending work and, it may be accepted, he did not raise directly his inability to drive to work having regard to the medications he was taking. However that had clearly been raised by his evidence in chief. In re-examination the applicant gave evidence, without objection, that he was taking quite a bit of Oxynorm in December 2006. Expert evidence was given by four doctors (of six who gave evidence) which touched upon the applicant's capacity to drive after having taken his medication. Before the doctors gave oral evidence there was a discussion between counsel for the applicant and the Tribunal about the medical evidence and the proposition was put that this evidence was dependent on what the applicant had told the doctor. It was suggested to counsel that if the Tribunal did not believe the applicant then conclusions of the doctors based on the applicant's account might not assist him. The applicant's counsel accepted that in part but submitted that if the Tribunal believed his evidence about the amount of medication he had been taking, it would raise a question of whether he was even capable of going to work, submitting that that was an objective test and part of the reasonableness argument. The applicant's treating general practitioner, Dr McFarlane, gave evidence. He gave evidence in chief that the applicant would be able to drive on his standard medication of Oxycontin once he had habituated to that dose. However he also expressed the opinion that the applicant should not be driving if he was taking the extra narcotic Oxynorm (15 mg) and that he had told the applicant that he should not be driving. That opinion was not expressed to be based on any history given by the applicant. Dr McFarlane was not cross-examined on this evidence. It was not challenged. Evidence was also given by the applicant's rehabilitation doctor, Dr Brooke. She gave evidence in chief that the applicant would not be able to drive a motor vehicle when he was taking "this increased medication", Oxynorm. She gave evidence that the effect of one 15 mg tablet lasted six hours. A: He couldn't get to work, no. So I think you are up in dreamland at the moment, Mr Richards [the applicant's counsel]. " Quite what this meant is unclear. Dr Brooke also gave evidence expressing the opinion that the Oxynorm would affect the applicant's ability to go on public transport saying that it would be quite dangerous. Again Dr Brooke's opinion was not expressed to be based on any history given by the applicant. Dr Brooke was not cross-examined on this evidence. It was not challenged. Evidence on this topic was also given during cross-examination by Professor Nade, an orthopaedic surgeon of 40 years experience. It was to the effect that a person taking 50 mg of Oxycontin three times a day should not be driving a motor vehicle and that it went without saying that such a person taking an additional dose of Oxynorm (15 mg) should not be driving. This evidence was not objected to and the matter was not explored in re-examination. The remaining doctor to give evidence about the effect of Oxynorm on the applicant's capacity to drive was Dr McGill, a consultant rheumatologist. He was asked in cross- examination by the applicant's counsel his opinion about the effect of Oxycontin and Oxynorm on the capacity of a person to work and to drive a motor vehicle. His opinion was that it depended on the habitual nature of the use. The people who habitually used it could drive a motor vehicle safely. He was asked that on the assumption a person was taking Oxycontin three times a day and an additional 15 mg of Oxynorm, could that person work, drive a motor vehicle safely and catch public transport. He answered in the affirmative. He did not, at this point, differentiate between habitual and non-habitual use. On one view of this evidence it contradicted the opinions of Dr McFarlane and Dr Brooke. On another view they might be able to be reconciled. That would depend on whether the actual use about which the applicant gave evidence was, for the purposes of Dr McGill's opinion, habitual use or not. There was no re-examination on this topic. During final submissions, the applicant's counsel observed that, putting Dr McGill to one side, all the medical evidence said that the applicant could not drive or use public transport if he was on Oxynorm. Counsel submitted, in the form of rhetorical question, that if the Tribunal accepted that the applicant was taking Oxycontin why would it not be a reasonable excuse why the applicant could not go to work or that he had to go home. It is not clear whether, in this submission, counsel was confusing Oxycontin or Oxynorm though plainly he was differentiating between the two during the submission. In submissions in reply counsel for the applicant noted that counsel for the respondent had been silent on the question of Oxynorm and Oxycontin and observing, again, that apart from Dr McGill, all the other doctors said it was unsafe to drive. Counsel invited the Tribunal to accept the medical evidence that it was unsafe for the applicant to drive and take public transport and that "would affect the capacity of the applicant to undertake the rehab program". Having regard to this analysis of the evidence and the submissions, it is clear, in my opinion, that the applicant was advancing, as part of his case, an argument that his consumption of Oxynorm prevented him, on the working days he took it, from driving to work and that circumstance constituted a reasonable excuse for not undertaking his rehabilitation program. In its reasons for decision the Tribunal identified two issues. It identified the second issue as being whether the applicant had a reasonable excuse for failing to undertake his rehabilitation program. It then summarised the case for the applicant. It made no reference to the argument referred to in the preceding paragraph. The Tribunal then commenced to set out its reasoning leading to its ultimate conclusion to affirm the decision the subject of review. Its first finding was that the applicant's evidence including his complaints of pain, the adverse effect of medication, and psychiatric symptoms, to doctors, his employer, and in evidence before the Tribunal had been grossly exaggerated and therefore was unreliable. The Tribunal went on to say that it did not accept the evidence of doctors whose opinions depended on the reliability of what the applicant had told them. In particular it said that, for this reason, the evidence of Dr McFarlane and Dr Brooke was of no assistance. It later observed that Dr McGill's clinical findings were not consistent with the symptomatology reported and also observed that Professor Nade found that the applicant's symptomatology was exaggerated. At no point did the Tribunal address the argument referred to in [19] above. It made no express findings about whether, and if so, in what amount the applicant had been taking Oxynorm and the effect of that on his capacity to drive. It made no express findings about whether, if the applicant's consumption of Oxynorm prevented him from driving to work and if it did, it constituted a reasonable excuse for not undertaking the rehabilitation program. Counsel for the respondent submitted in these proceedings that the rejection of the applicant's evidence about the effect of his medication and the rejection of medical opinions based on the applicant's account of his history and experiences should be taken to be a rejection of the evidence about the effect of Oxynorm on a person's capacity to drive. However that evidence was not given in terms which suggested it was based on the applicant's account. It was evidence of medical practitioners about the effect of a particular drug. Neither the evidence generally on this topic nor the expertise of the doctors who gave it had been challenged. I accept, as I must, that the Tribunal's reasons should not be scrutinised with an eye to error. Due regard must be paid to the fact that in deciding cases such as the present, the Tribunal is not obliged to set out its reasoning in the same level of detail as a court. However if a party advances an argument which is substantial (even if, in one sense, morally unattractive) and directed to negativing what would otherwise be the effect of a statutory provision suspending compensation, then the Tribunal is bound to consider and deal with the submission and if it rejects it, provide some explanation as to why. In the present case there is absolutely nothing that I can discern in the Tribunal's reasons which suggests it considered the argument based on the applicant's inability to drive to work and thus work as his rehabilitation programme required and rejected it. It could only affirm the decision suspending compensation if it had rejected the argument. Having regard to at least some of the evidence led before the Tribunal, supervisors of the applicant employed by the respondent and those associated with implementing his rehabilitation scheme possibly together with the members of Tribunal may have formed the view that the applicant was an extremely difficult person at best indifferent to the efforts of those trying to rehabilitate him and perhaps even unworthy of any sympathy. The Tribunal may also have found entirely unattractive the suggestion that the applicant's consumption of narcotic drugs to deal with the symptoms it thought were grossly exaggerated could be thought to justify, because it provided a reasonable excuse, his failure to comply with the rehabilitation program. However the SRC Act is beneficial legislation intended to operate for the benefit of injured employees whatever their personal attributes. If in fact the applicant's drug consumption prevented him from travelling to work then a finding to that effect would at least raise a question about whether there existed a reasonable excuse. In my opinion, the Tribunal was under a duty to consider the argument and reach and express a conclusion about it. It failed to address a case of substance advanced on behalf of the applicant and, in so doing, erred in law: Industry Research and Development Board v Bridgestone Australia Ltd [2004] FCAFC 56 ; (2004) 136 FCR 47 per Tamberlin, Sackville and Selway JJ at [26]. It is unnecessary to address the other grounds seeking to impugn the Tribunal's decision affirming, indirectly, the decision to suspend the applicant's rights to compensation. I deal briefly with the Tribunal's decision concerning compensation for cleaning services. The only ground challenging the Tribunal's affirming, indirectly, the respondent's decision that it was no longer liable to pay compensation for household cleaning services, was that the Tribunal did not give reasons for doing so. However, as best I can glean from the transcript, the challenge to that decision assumed no real prominence at the hearing before the Tribunal. Whether or not the applicant was entitled to compensation for household cleaning depended upon whether his work related injury limited his capacity to clean himself. As I have already explained, the Tribunal rejected, in fairly robust terms, the applicant's evidence about the disabling effect of his injury. Necessarily this involved a rejection of the contention that his injury prevented him from undertaking household cleaning. Little more was probably required by the Tribunal to indicate its rejection of the applicant's claim that the compensation for household cleaning services should have continued. I am not satisfied that the Tribunal erred, in this respect, as alleged. I propose to set aside the Tribunal's decision in relation to the suspension of rights to compensation and remit the matter but otherwise dismiss the appeal and application. As the applicant has had substantial success in its appeal, he is, in my opinion, entitled to his costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

appeal from administrative appeals tribunal (aat) decision on questions of law aat affirmed determinations of australian postal corporation that it was no longer liable to pay compensation whether aat for the purposes of s 5 of administrative decisions (judicial review) act 1977 (cth) took into account a relevant consideration, and whether for the purposes of s 44 of the administrative appeals tribunal act 1975 (cth) the aat incorrectly applied the safety, rehabilitation and compensation act 1988 (cth) , failed to consider a submission of substance, and failed to provide adequate reasons for its decisions. administrative law

On 30 April 1997 a passport was issued to him by the People's Republic of China. On 6 August 1997 he secured a visa to enter Australia on a short-term basis. He departed from Shanghai on or about 25 August 1997 and arrived in Australia on or about 26 August 1997. On 26 September 1997 he applied for a Protection Visa (866). No grounds were specified in the application for the visa but it would appear to have been accompanied by a typed two page document entitled 'APPLICATION FOR REFUGEE STATUS'. 2 That document referred to what was said to have been persecution of the appellant's father in 1957 for expressing his opinions as a member of a right wing party. The appellant indicated that as a son of a right wing party member he had been beaten and discriminated against. This was said to have hurt him deeply in his heart. No particulars of the circumstances of his beating or discrimination were provided. The appellant referred to the fact that in 1978 the cultural revolution ended and China was ready to open its doors to the world. 3 Mention was made of the 'China Modern democrat' and it may be inferred that the appellant was a supporter of that movement. It is said that in 1986, when the appellant was about 30 years of age, he received 'checking and suppressing'. The appellant says that in 1989 he went to Beijing and made contact with student representatives within a body known as the 'Beijing Workers' Self-government'. After the massacre, which I would understand to have been a reference to the Tiananmen Square massacre of 1989, the appellant says that he escaped from Beijing to Fushuen and that he was dismissed from the company by which he was employed. 4 He says that in 1994 he joined a 'China Democracy, Human Rights Federation' body headquartered in the United States of America. He says that from that time onwards he 'desired to escape China'. The application was accompanied by a document described as 'APPOINTMENT OF PERSON TO ACT AS AGENT' which had been marked to indicate that all correspondence relating to the appellant's application was to be sent to the agent and if any information, additional documentation or action was required on the appellant's case the agent was to be contacted. The nominated agent was Chun George Ao whose address was 340/401 Sussex Street, Sydney 2000. 8 On 12 November 1997 an Application for Review was lodged with the Refugee Review Tribunal ('the Tribunal'). The Application for Review again nominated Chun George Ao of 340/401 Sussex Street, Sydney, 2000 as the appellant's adviser. 9 On 13 November 1997 the Tribunal wrote to the appellant at his nominated 'home address' in Enmore, with a copy to Chun George Ao at 340/401 Sussex Street, Sydney, NSW, 2000, acknowledging receipt of the Application for Review. 10 On 13 October 1998 the Tribunal wrote again to the appellant at his nominated 'home address' advising that the Tribunal was unable to make a favourable decision on the material relating to his application alone. 11 A copy of that letter would appear to have been sent to 340/401 Sussex Street, Sydney, NSW, 2000. For some unexplained reason the copy was directed to 'K & Z Marketing Pty Ltd' at the address in Sussex Street. On 20 October the copy of the letter addressed to the appellant at his Enmore address was returned to the Tribunal marked 'no such person at address'. However, it is clear that the copy directed to the Sussex Street address reached the appellant's adviser. 12 On 3 November 1998 the adviser rang the Tribunal to indicate that the appellant had not received his offer of hearing letter. It would appear that mention was made of a change of address and the adviser was asked to cause notice of the change of address to be provided. 13 On 6 November 1998 the Tribunal again wrote to the appellant at the address provided by him in Enmore. A copy of the letter advising the appellant of this hearing date was also sent to the address 340/401 Sussex Street, Sydney, NSW, 2000. Again, for an unexplained reason, it was also addressed to 'K & Z Marketing Pty Ltd'. 15 The letter addressed to the appellant at his Enmore address was returned to the Tribunal on 12 November 1998. 16 On 23 November 1998 the Tribunal contacted the appellant's adviser to inform him that the letter sent to the appellant at his nominated Enmore address had been returned and that the Tribunal had not been told of any change of address in writing. The adviser indicated that he had difficulty in contacting the appellant as the appellant was 'always moving about and not informing him of any changes of address'. 17 The Tribunal informed the adviser that the appellant had an obligation to inform the Tribunal of any change of address and that if the Tribunal did not hear from the appellant it would proceed to make a decision on his appeal on the material before it. 18 It seems clear that no response was provided. 19 The appellant did not appear before the Tribunal on 9 December at the specified time and place. Accordingly the Tribunal proceeded to decide the matter without the benefit of the appellant's assistance and by letter dated 10 December 1998 the Tribunal forwarded the decision and reasons for decision of the Tribunal, which was to affirm the decision of the Minister's delegate not to grant a protection visa, to the appellant at his Enmore address and to the appellant's adviser at K & Z Marketing Pty Ltd at 340/401 Sussex Street, Sydney, NSW, 2000. 20 It is unnecessary in these reasons to deal with the Tribunal's decision. The Tribunal was not satisfied that the applicant before it was a political activist at risk of attracting the adverse attention of the authorities in the People's Republic of China. It was not satisfied that he had a well-founded fear of persecution in China, due to his political opinion, were he to return. 21 When addressing the Court, the appellant was asked to explain why no action was taken in respect of the decision of the Tribunal for over six years. The appellant's response was to the effect that it was merely his mistake. He attributed his default to his difficulties with the English language and his understanding of the laws in Australia. He also sought to visit blame on his adviser. He asserted that he was not permitted to see the documents which his adviser held as they were secret documents belonging to the adviser's office. This is inconsistent with the case that he presented to the Federal Magistrate to which I will shortly refer. 22 On 1 September 2005 the appellant filed an application in the Federal Magistrates Court of Australia for constitutional writ relief in respect of the decision of the Tribunal. If I go back to my country, I will be risk of suffering persecution, within the meaning of the 1951 Convention relating to the status of (RRT) Refugees and the 1967 protect [sic] relating to the status of Refugees. Further particulars to be provided. He made orders for costs against the appellant and on 18 January 2006 delivered supplementary reasons for judgment affirming his proposed orders in respect of costs. 24 In the reasons for judgment of the Federal Magistrate reference was made to the appellant's desire to inspect his file as held by his adviser. He said in his statement that his adviser said that the documents were hers and that the appellant could only look at them in her office, but could not take them away. This assertion does not sit comfortably with the submission of the appellant before me that his adviser had said that the documents were secret documents which belonged to the adviser's office and which, as I understood it, he was saying he was not allowed to see. 25 The learned Federal Magistrate comprehensively reviewed the Tribunal's decision and was unable to detect any jurisdictional error on the Tribunal's behalf. His Honour found that it was probable that the appellant's agent was sent a copy of the letter appointing the hearing before the Tribunal on 9 December 1998. His Honour's view was confirmed by the terms of the appellant's written account of his dealings with his advisers where mention was made of his attendance upon his advisers 'one day after his RRT hearing was scheduled' and of a conversation where the adviser inquired of the appellant as to why he did not go to the Tribunal hearing. 26 His Honour concluded that the appellant was not unfairly denied a reasonable opportunity to appear before the Tribunal. His Honour found that the appellant's absence from the hearing before the Tribunal was, '... due to his own omissions. The second ground of appeal is in the circumstances of this case meaningless as the appellant readily acknowledged that he provided no evidence to the Tribunal. The third ground is without substance as there was no default on the part of the Tribunal which may have justified a finding that there were communication difficulties between the Tribunal and the appellant. 29 There is no reason to doubt the correctness of the decision of the learned Federal Magistrate in dismissing the application for constitutional writ relief. 30 Notwithstanding that the matter has not been raised in the notice of appeal, it would appear that the appellant is now urging that he was let down by his own agent in a way which would warrant him having a second chance to present a case for review to the Tribunal. Amongst other things he says that he told his story to his adviser but never saw any of the documents which were prepared by the adviser, they having been signed by him in blank and completed later. It does not seem to me that the shortcomings of the appellant's adviser, if any, can properly be visited upon the Tribunal. On the facts of that case his Honour did not find that the requirements of s 425 had been satisfied (see [19] - [20] and [30] - [31]). I have real doubts that, properly construed, the Migration Act as it was at the relevant time required the Tribunal to refrain from making a decision if, for reasons beyond its control, it was unable to contact an applicant in order to notify him or her of the opportunity afforded by s 425. The Tribunal member conducting an inquiry is obliged to be fair. However, the Tribunal is not in the position of a contradictor of a case being advanced by an applicant. In a case such as that brought by the appellant under his application for review to the Tribunal, it was for him to advance whatever evidence or argument he wished to advance and for the Tribunal to decide whether his claim that he was a refugee within the meaning of the Refugees Convention had been made out. 35 The Tribunal was not obliged to prompt and stimulate an elaboration which the appellant may have chosen not to embark upon. 36 In the context of administrative decision making, there would not appear to be support in Australia for the view that problems which arise in the conduct of the case of the person to be the subject of the decision through their mistaken view or that of their advisers could amount to procedural unfairness. There would seem to be strong policy grounds why this should not be the case (per Kiefel J in Freeman v Health Insurance Commission [2004] FCAFC 335 ; (2004) 141 FCR 129 at [52] ). 37 In my opinion, s 425 did not impose any greater obligation upon the Tribunal in terms of notifying an applicant of an intended hearing, than that found in s 426 itself. I am satisfied that s 426 was duly complied with by the Tribunal in the circumstances of the present case. It does not seem to me that there is any proper basis for disturbing the findings of the learned Federal Magistrate in respect of the notification of the intended hearing date to the appellant. In these circumstances, there is no proper basis for departing from the findings and conclusions of the learned Federal Magistrate. 38 In his Honour's reasons he indicated that even if he had found jurisdictional error, he would have refused relief on discretionary grounds (see [2005] FMCA 1834 at [26] - [29]). Constitutional writ relief is discretionary (see Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [54] , see also [5], [145] - [148], [172] and [217]; SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at [80] and [211]). Circumstances in which it would be appropriate to decline relief to an applicant include cases where such an applicant has been guilty of unwarrantable delay, has acquiesced in the invalidity of which he now complains or has waived it. 39 It seems to me that the appellant's inaction for over six years before instituting his proceedings in the Federal Magistrates Court would justify a refusal to grant relief on a discretionary basis independently of merit. Once again, I consider that the learned Federal Magistrate's decision in that regard was correct. In any event, his exercise of discretion in that regard was one which, in accordance with established principles, should not be disturbed. 40 For the foregoing reasons, the appeal should be dismissed with costs. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Graham.

whether former s 425 of the migration act required more by way of notice of a proposed tribunal hearing than compliance with former s 426 whether shortcomings of an adviser to an applicant for review can affect the validity of a tribunal decision on such a review refusal of constitutional writ relief on discretionary grounds migration

A Statement of Claim was filed and served by the applicants on 11 March 2009 and an Amended Statement of Claim was filed and served on 23 March 2009. The application by the respondents was framed in terms of the original Statement of Claim. However, the application now proceeds having regard to the formulation of the causes of action asserted against the second respondent, reflected in the amended pleading. The application was heard during the course of Wednesday morning and I indicated to the parties that I would seek to give a decision on the application during the course of either Thursday or today subject to other urgent applications coming before the Court on Wednesday and Thursday and a trial set down for both days. However, I have had an opportunity to consider the submissions of the parties and the relevant authorities. For convenience, in these reasons, I will continue to describe the applicants on the motion as the respondents and the respondents on the motion as the applicants, although I will also refer to the first respondent, John Holland Pty Limited, as "John Holland". The causes of action against the second respondent are, of course, framed by the Amended Statement of Claim in the proceeding. To the extent that the respondents seek an order for the dismissal of the proceeding as disclosing no cause of action or otherwise frivolous or an abuse of process, that question turns upon whether the Amended Statement of Claim pleads material facts upon which a cause of action is disclosed. To the extent that the respondents seek an order for summary judgment in their favour, the respondents rely upon s 31A of the Federal Court of Australia Act 1976 ("the Act"). Section 31A(2) of the Act provides that the Court may give judgment for a respondent in relation to the whole or any part of a proceeding if the Court is satisfied that an applicant has "no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding". In Boston Commercial Services Pty Ltd v GE Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720 , Rares J observed that the Court ought to be very cautious to ensure that an injustice is not done to a party by summarily dismissing a proceeding where there may be contested questions of fact to be determined at trial and the resolution of that factual controversy might go one way or the other. Rares J also observed that s 31A is engaged only to determine summarily a claim or defence which has no reasonable prospect of success. That view has been followed in Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd [2006] FCA 416 per Jacobson J [39]; Hicks v Ruddoch [2007] FCA 299 ; (2007) 156 FCR 574 per Tamberlin J [13] and Spiteri v Nine Network Australia Pty Ltd [2008] FCA 905 per Edmond J [10] to [15]. In the present proceeding, there is simply an Amended Statement of Claim asserting material facts. There is no defence and thus no engagement by the respondents on the amended pleading. Nevertheless, the respondents say that the amended pleading is the second attempt by the applicants to frame a cause of action against the second respondent. The first formulation of the cause of action against the second respondent was abandoned. The second formulation asserts accessorial liability on the part of the second respondent in respect of contraventions of the Workplace Relations Act 1996 (Cth) ("the Workplace Relations Act ") by the first respondent, John Holland Pty Limited. The central contention of the respondents is that the amended pleading fails to come to grips with the pleading of material facts which, if proved, would establish that Mr Sasse elected to engage in conduct fully knowledgeable of all of the integers comprising the contraventions on the part of the first respondent. Since the pleading fails, it is said, in that fundamental sense and the applicants have made two attempts at framing a cause of action, the Court ought to proceed on the footing that the applicants have no reasonable prospect of either framing or succeeding in the cause of action the applicants are seeking to press against the second respondent. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits . It would not, of course, be necessary, in most cases, to require the party to do more than provide an outline, because that would turn the summary judgment application into a trial. In the present proceeding, there has been no engagement by the respondents with the amended pleading. That partly arises because the respondents contend that the amended pleading fails to plead material facts which establish, if proved, a cause of action based on accessorial liability on the part of Mr Sasse. Therefore, there can be no relevant engagement or an assessment in terms of the methodology contemplated by either Gordon J or Finkelstein J. Moreover, there can be no proper assessment of whether there is a genuine dispute as to factual matters as the material threshold facts have not been pleaded. The applicants say that the pleading properly asserts material facts from which, if proved, accessorial liability in Mr Sasse can be established. Nevertheless, the applicants say that the application by the respondents is premature and, in any event, the application should be treated as an application going to the adequacy of the amended pleading. If the Court is not satisfied that the amended pleading properly frames material facts establishing a cause of action in accessorial liability, the relevant paragraphs of the pleading ought to be dismissed and the applicants ought to be given leave to re-plead the claims. The first question then is whether the amended pleading properly frames a cause of action in accessorial liability on the part of Mr Sasse. Section 736 sets out the objects of Part 15 (in addition to s 3) as establishing a framework that provides a balance between the rights of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected breaches of industrial laws on the one hand and the right of occupiers of premises and employers to conduct their businesses without undue interference or harassment on the other. Part 15 provides (among other things) for permits to be issued and held by persons who understand their rights and obligations under that Part of the Workplace Relations Act . Division 2 provides for the issue of permits. Section 738 provides for a form of entry notice. Divisions 4 and 5 address particular rights of entry by subject matter or purpose and Division 6 addresses rights of entry to hold discussions with employees. Section 760 is in these terms: A permit holder for an organisation may enter premises for the purposes of holding discussions with any eligible employees who wish to participate in those discussions. Section 767(1) provides that a permit holder seeking to exercise rights under s 760 must not intentionally hinder or obstruct any person. Division 3 of Part 14 provides for general provisions relating to civil remedy provisions. By paras 1, 2 and 3 of the pleading, the first applicant ("AMWU"), the second applicant ("ETU") and the third applicant ("CFMEU") are in the first and third cases an organisation of employees and in the second case a transitionally registered association for the purposes of the Workplace Relations Act . By para 4, the fourth applicant, Mr Bradley, is an employee of the AMWU and a permit holder for the purposes of s 737 of Part 15. The fifth, sixth and seventh applicants, Mr Lowth, Mr Ong and Mr Robinson are employees of the AMWU, the ETU and the CFMEU respectively and are each permit holders for the purposes of s 737 of Part 15. By para 8, John Holland is a corporation, an employer and a person within s 767 of Part 15. By para 9, the applicants plead that Mr Sasse is an employee of John Holland; he is the first respondent's Group General Manager, Human Resources and Organisation Strategy; he acted at all material times within the scope of his actual or apparent authority as such an employee; and he is a person within s 767 of Part 15. By paras 10, 11 and 12, the applicants plead three awards. By para 10, the AMWU was a party to the National Metal and Engineering On-site Construction Award (the "NMEOC Award") which bound the AMWU, the Australian Workers' Union and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia. By para 11, the ETU was a party to the Electrical Contracting Industry Award 2003 described as the "NAPSA" and by para 12, the CFMEU was a party to the National Building and Construction Industry Award (the "Construction Award"). By paras 13 and 14, John Holland was bound by the NMEOC Award and the Construction Award by reason of its membership of the Australian Industry Group. By para 15, John Holland was bound by the NAPSA. By para 16, the applicants say that John Holland has been engaged in construction work in respect of port facilities at the Ports Corporation of Queensland, Abbot Point expansion premises located approximately 20 kilometres north of Bowen on the Abbot Point Peninsula. Para 16 describes the premises as the "Abbot Point X 50 premises" which is a reference to expansion work to extend facilities at Abbot Point to a particular utilisation capacity. By para 16, the applicants say that the scope of work being performed on the Abbot Point X50 premises is work provided for and defined by a contract between John Holland and Ports Corporation of Queensland described as the Abbot Point Coal Terminal X50 Expansion Marine Works Contract No. Q08-004 . By paras 17, 18 and 19, the applicants plead that John Holland employed persons at the Abbot Point X50 premises engaged on on-site construction work as defined in the NMEOC Award, engaged on-site electrical workers as defined in the NAPSA and engaged in on-site construction work as defined in the Construction Award. By paras 20 to 25, the AMWU, the ETU and the CFMEU had members employed at the Abbot Point X50 premises or alternatively persons were employed who were eligible to become members of one of those organisations. Paragraphs 26, 27 and 28 are in these terms: As a result of the matters pleaded in paragraphs 10, 13, 14, 17, 20 and 23 there were at all relevant times persons employed at the Abbot Point X50 premises who were "eligible employees" within the meaning of s 760 and Part 15 ... in respect of the [AMWU]. As a result of the matters pleaded in paragraphs 11, 15, 18, 21 and 24 there were at all relevant times persons employed at the Abbot Point X50 premises who were "eligible employees" within the meaning of s 760 and Part 15 ... in respect of the [ETU]. As a result of the matters pleaded in paragraphs 12, 13, 14, 19, 22 and 25 there were at all relevant times persons employed at the Abbot Point X50 premises who were "eligible employees" within the meaning of s 760 and Part 15 ... in respect of the [CFMEU]. An eligible employee, for the purposes of s 760 , is not simply a person who is eligible to become a member of the relevant organisation. An eligible employee for the purposes of s 760 is a person who carries out work on the relevant premises where that work is " covered by an award or collective agreement" that is binding on the relevant organisation and the person is a member or is eligible to become a member of the particular organisation. The first limb of the definition, however, is directed to a factual and legal enquiry as to whether the employee is, on the relevant premises, carrying out work that is covered by an award or collective agreement. The pleading by paras 26, 27 and 28 asserts a conclusion arising out of the preceding paragraphs that the relevant employees were "eligible employees" within the meaning of s 760. Counsel for the applicants accepts, by force of the pleading itself, that it is necessary to plead, as part of its cause of action, against the first respondent, that there were persons, that is, employees, who were "eligible employees" within the meaning of s 760. Otherwise, the contention would not be there. Counsel for the applicants accepts that the pleading might be a little "inelegant" in the way it asserts the conclusion but what is intended, it seems, is that the work undertaken at the Abbot Point X50 premises is work falling within the relevant definitions in the NMEOC Award, the NAPSA and the Construction Award and the employees are carrying out work on the premises that is covered by each of those awards. That second limb is wrapped up in the conclusionary pleading that the employees are "eligible employees within the meaning of s 760 ". It seems to me that if the applicants accept that it is necessary to plead that the employees are eligible employees for the purposes of s 760 , the applicants ought to specifically plead as to the element required by the section, namely, that employees carry out work on the premises that is covered by each relevant award. Although the respondents have not pleaded to the Statement of Claim, it is common ground between the parties that the central question in issue between the parties is whether two Union Greenfield Agreements entered into for the purposes of Division 2 of Part 8 of the Workplace Relations Act between John Holland and the Australian Workers' Union, regulate the terms and conditions of employment in respect of work conducted on the premises, to the exclusion of any other award. It seems to me that paras 26, 27 and 28 of the pleading ought to be reformulated so as to remove the inelegance and plead those matters that need to be pleaded as required by s 760 of the Workplace Relations Act . By paras 29 to 43, events are pleaded that occurred in the period 17 to 19 November 2008 which are said to give rise to contraventions of ss 767(3) and 767 (7) on the part of John Holland. On 17 November 2008, Mr Bradley served a notice under s 760 upon John Holland which is said to meet the requirements of ss 738 and 763 of the Act for such a notice, to enter the Abbot Point X50 premises on 19 November 2008. On 17 November 2008, Mr Lowth also served such a notice. By paras 32 and 33, the applicants say that Mr Bradley and Mr Lowth were thus entitled to enter the premises and hold discussions with eligible employees. By paras 34 and 35, Mr Bradley and Mr Lowth attended the premises on 19 November 2008, attempted to enter the premises and were refused entry by persons acting on behalf of John Holland and in particular Mr Ingham. By para 36, Mr Bradley and Mr Lowth entered the premises on 19 November 2008 at 9.45am and were subsequently hindered and/or obstructed in exercising their rights as permit holders, by persons acting on behalf of John Holland and in particular Mr Ingham. By para 37, Mr Ingham and other employees of John Holland were acting within the scope of their actual or apparent authority as employees or agents of John Holland. By paras 38 and 39, John Holland contravened s 767(3) by refusing or unduly delaying entry to the premises by Mr Bradley and Mr Lowth. By paras 40, 41, 42 and 43, the events described particularly at paras 35 and 36 gave rise to contraventions of s 767(7) on the footing that Mr Ingham and others intentionally hindered or obstructed Mr Bradley and Mr Lowth from exercising rights under s 760. By paras 44, 45 and 46, the applicants plead events which engaged Mr Sasse. The applicants plead that on 24 November 2008 (and thus after the events of 17 to 19 November 2008), Mr Sasse as servant or agent of John Holland wrote a letter to the AMWU asserting that the entry onto the premises on 19 November 2008 by Mr Bradley and Mr Lowth amounted to trespass. The applicants plead that the letter accused Mr Bradley and Mr Lowth of breaching the Workplace Relations Act and proposed entry onto the premises by permit holders employed by the AMWU be limited by the terms of an "interim right of entry protocol". The applicants plead that the proposed protocol was more restrictive than the rights of a permit holder under Part 15 or that of an official of the AMWU. By para 45, the AMWU wrote to John Holland denying that entry to the premises on 19 November 2008 by Mr Bradley and Mr Lowth amounted to a trespass. By para 46, the applicants plead: On 3 December 2008 the Second Respondent on behalf of the First Respondent and as the servant or agent of the First Respondent, wrote to the [AMWU] asserting that permit holders employed by the [AMWU] had no right of entry onto the Abbot Point X50 premises for the purposes of s 760 of the Act. It stated that any further entry onto the Abbot Point X50 premises for the purposes of s 760 of the Act would be trespass and treated as such by the First Respondent. Paragraphs 46, 47 and 48 assert conduct and a state of mind on the part of Mr Sasse on and from 3 December 2008. By paras 49, 50, 51 and 52, Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson served on 10 February 2009 a notice for the purposes of s 760 on John Holland of an intention to enter the premises on 13 February 2009. By paras 58 and 59, each of those men attended the premises, sought to enter for the purpose of holding discussions with eligible employees and were refused entry by John Holland employees including Mr Ingham. By para 58(b), Mr Ingham told Mr Bradley that "there is already an agreement on this site and John Holland does not recognise your right of entry". By para 59, Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson entered the premises and were hindered and/or obstructed in exercising their rights as permit holders, by persons acting on behalf of John Holland. The content of that conduct is set out in particulars of para 59 at (a) to (l). By para 60, the conduct of a security officer, Mr Ingham, and other employees was conduct within the scope of the actual or apparent authority of those employees or agents of John Holland and in accordance with the instructions of Mr Sasse as described at para 48. By paras 61, 62, 63 and 64, John Holland contravened s 767(3) of the Workplace Relations Act by refusing or unduly delaying entry to the premises by Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson and by paras 65, 66, 67, 68, 69, 70, 71 and 72, John Holland contravened s 767(7) by obstructing and by hindering each of those four men from exercising rights under the Workplace Relations Act . By para 73, the applicants plead accessorial liability on the part of Mr Sasse. The matter is pleaded, substituting the content of the relevant cross-referenced paragraphs, in this way. As a result of the letter Mr Sasse wrote on 24 November 2008, the reply he received on 26 November 2008, the letter he wrote on 3 December 2008, his concern in terms of para 47, his instructions pleaded in para 48 and the conduct of employees or agents of John Holland described in para 58 and particularly the matters pleaded under para 59, undertaken in accordance with the instructions given by Mr Sasse described in para 48, Mr Sasse aided, abetted, counselled or procured the contravention by John Holland of ss 767(3) and 767 (7) of the Workplace Relations Act , as contemplated by s 728(2)(a) in respect of the events that occurred on 13 February 2009. Thus, Mr Sasse is treated as having contravened ss 767(3) and 767 (7) (paras 74 , 75 , 76 , 77 , 78 , 79 , 80 , 81 , 82 , 83 , 84 and 85 of the amended pleading). Further events occurred on 4 and 5 March 2009. The formulation is in common terms to the earlier paragraphs. On 4 March 2009, Mr Bradley served a notice on John Holland of an intention to enter the premises on 5 March 2009. On the same day Mr Robinson served a notice of intention to enter the premises on 5 March 2009. On 5 March 2009, each man sought to enter the premises and was refused. The particulars of refusal are contained at para 91. By para 92, on 5 March 2009 each man having entered the premises for the purpose of holding discussions with eligible employees and was hindered and/or obstructed in exercising rights as a permit holder. The acts of hindering and obstructing each man involved exchanges with Mr Ingham and security officers. By para 93, the conduct of those employees was within the scope of their actual or apparent authority and "in accordance with the instructions of [Mr Sasse] as described in para 48 of the pleading ([32]). By paras 94 and 95, John Holland contravened s 767(3) in refusing entry and by paras 96, 97, 98 and 99, John Holland engaged in conduct of obstructing and hindering Mr Bradley and Mr Robinson. By para 100, as a result of the letter of 24 November 2008, the reply of 26 November 2008, the letter of 3 December 2008, Mr Sasse's concern pleaded at para 47 ([31]), his instructions pleaded in para 48 ([32]) and the conduct of employees of John Holland described at paras 91 and 92 said to be undertaken in accordance with the instructions given by Mr Sasse in para 48, Mr Sasse aided, abetted, counselled or procured the contraventions of ss 767(3) and 767 (7) of the Workplace Relations Act by John Holland. By paras 101, 102, 103, 104, 105 and 106, the second respondent's accessorial liability has the effect that Mr Sasse is treated as having contravened those provisions of the legislation. The respondents criticise the pleading on the footing that the pleading simply fails to plead that Mr Sasse knew that each permit holder was entitled to enter the premises and knowingly engaged in conduct which by operation of ss 767(3) and 767 (7) constituted a contravention by John Holland of those sections. The pleading refers to correspondence Mr Sasse wrote on 24 November 2008 after the first event in November 2008 and a letter dated 3 December 2008 in which Mr Sasse asserted that the permit holders had no right of entry. The pleading at para 47 pleads Mr Sasse's state of mind of being concerned to ensure that consistent with his letters of 24 November 2008 and 3 December 2008, permit holders would be refused entry. Similarly, para 48 pleads instructions given by Mr Sasse consistent with an opinion he had formed as recited in para 47 of the pleading. The state of mind pleaded at para 47 is simply Mr Sasse's contended view, as an employee of John Holland, that permit holders had no right of entry to the premises. Mr Sasse's opinion on that matter is either right or wrong. However, these paragraphs of the pleading do not assert actual knowledge on the part of Mr Sasse that he knew and understood that each permit holder had a right of entry to the premises and notwithstanding that knowledge, he chose to engage in conduct by writing letters and issuing instructions which had the effect of refusing or unduly delaying entry to the premises or causing others to refuse or unduly delay entry to the premises, by a permit holder " entitled to enter the premises". Nor does the pleading assert actual knowledge on the part of Mr Sasse of intentional hindering or obstruction of a permit holder exercising rights given to such a person by s 760 of the Workplace Relations Act . Accessorial liability requires a pleading of actual knowledge on the part of the accessory of each and every element of the offence or contravening conduct on the part, in this case, of John Holland Pty Limited and an election to engage in the relevant conduct. The pleading asserts conduct on the part of Mr Sasse in his capacity as an employee of John Holland and in every relevant sense he was acting within the scope of his authority. It is not said that the conduct of Mr Sasse gave rise to a contravention by John Holland. The pleading asserts that Mr Sasse aided, abetted, counselled and procured the contravention of the sections by John Holland. In order to establish that case, the pleading must assert as material facts that Mr Sasse was sufficiently aware of all of the relevant facts going to the contravention by the company, that is, intentional participation. In this case, it must be established that Mr Sasse had knowledge that the permit holders enjoyed a right of entry and notwithstanding that knowledge, he set about engaging in the contravening conduct. To form the requisite intent he must have had "knowledge of the essential matters which go to make up the offence whether or not he knows that those matters amount to a crime" ( Yorke & Anor v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at pp 666 and 667; Giorgianni v The Queen [1985] HCA 29 ; (1985) 156 CLR 473 at 481; Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd [1999] FCA 1161 ; (1999) 95 FCR 302 at 346; Rural Press Ltd & Ors v Australian Competition and Consumer Commission [2002] FCAFC 213 ; (2002) 118 FCR 236 at [154] to [162]; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission [2007] FCAFC 132 ; (2007) 162 FCR 466 ; Hamilton v Whitehead [1988] HCA 65 ; (1988) 166 CLR 121). It follows therefore that those paragraphs of the Amended Statement of Claim which assert that Mr Sasse aided, abetted, counselled or procured the contravention by John Holland of ss 767(3) and 767 (7) of the Workplace Relations Act in respect of the events that occurred in February 2009 and March 2009 having regard to the conduct asserted on the part of Mr Sasse, have no reasonable prospects of success. I accept the submission of the applicants in the proceeding that it is inappropriate to give summary judgment pursuant to s 31A of the Act in respect of that part of the proceeding consisting of the claim of accessorial liability against Mr Sasse. Rather, I propose to order that those paragraphs of the Statement of Claim by which a claim of accessorial liability is made against Mr Sasse be struck out and the applicants be given leave to file and serve an Amended Statement of Claim by 4.00pm, Thursday, 2 April 2009. I also give leave to amend the Statement of Claim in respect of those matters relating to paras 26, 27 and 28 of the Amended Statement of Claim and any paragraphs upon which they depend. Although there may be other paragraphs which go to the issue of accessorial liability, the paragraphs of the amended pleading that are directed solely to the claim against Mr Sasse seem to be 44, 45, 46, 47, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 100 and 102 to 106. Accordingly, I order that those paragraphs be struck out with leave to file and serve an Amended Statement of Claim. No doubt, a reformulation of a claim of accessorial liability, if it can be properly formulated, will reflect some of those paragraphs. The costs of the notice of motion will be reserved. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an application for dismissal of a part of a proceeding against a second respondent pursuant to s 31a of the federal court of australia act 1976 consideration of whether an amended statement of claim in the proceeding properly pleads material facts supporting a claim of accessorial liability in respect of contended contraventions by a corporation of provisions of the workplace relations act 1996 (cth) consideration of the adequacy of a pleading of a claim of accessorial liability pursuant to s 728 of the workplace relations act 1996 (cth) in respect of contended contraventions by a corporation of ss 767(3) and 767 (7) of the workplace relations act 1996 (cth) practice and procedure employment

The investigation has been conducted by staff within the Enforcement and Compliance Division of the ACCC. The conduct under investigation involves allegations of price fixing in contravention of s 45 of the Trade Practices Act 1974 (Cth) by way of the imposition of fuel and other surcharges on air cargo into and out of Australia. The period covered by the investigation is 2000 to 2006. 2 On 31 October 2006 senior officers engaged in the investigation prepared a Minute addressed to Mr Graeme Samuel, the Chairman of the ACCC. 3 The Minute, which is sometimes referred to as "the Reason to Believe paper", requested the Chairman to issue the Notice to assist the ACCC to accurately establish three items of information. These were the tonnages, total revenues and total revenues attributed to fuel surcharges that KAL derived from air cargo destined to, and originating from Australia. At all times since mid 2006, he has been the most senior staff member of the ACCC with overall responsibility for the air cargo investigation. Mr Pearson was not an author of the Reason to Believe paper but he conceded in cross-examination before me that the sentence I have quoted only makes sense if the word "liability" is read as meaning penalty. 6 Mr Pearson, very fairly, made three further concessions. The first was that the purpose of the investigation is to establish contravention of s 45(2)(a) and (b) of the Act. The second was that the information sought in the s 155 Notice goes only to the extent of KAL's allegedly contravening conduct. Third, Mr Pearson conceded that the information sought does not go to establishing an element of a breach of s 45(2)(a) or (b) of the Act. 7 These concessions ultimately formed the essential basis of KAL's attack on the s 155 Notice ("the Notice") issued by the Chairman to KAL on 31 October 2007. The Notice, which was served the following day, was in the precise terms recommended in the Reason to Believe paper. 8 KAL seeks an order for review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the " ADJR Act ") of the decision to issue and serve the Notice. KAL seeks orders under s 16 of the ADJR Act including an order setting aside the Notice. 9 The essence of KAL's attack on the Notice is that, in light of Mr Pearson's concessions, the decision to issue the Notice was one which did not turn upon the need for the information so as to enable the ACCC to determine whether it had sufficient evidence to establish a contravention of s 45. Rather, the information sought by the Notice was said to be confined to the extent of the contraventions and the question of the penalty to be imposed on KAL. 10 KAL therefore submitted that the purpose for which the Notice was issued exceeded the limits of the power to issue a Notice under s 155. The clearest statement of the principle which underlies KAL's attack on the decision to issue the Notice is to be found in the words of Deane J in Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1982) 55 FLR 77 at 95. 13 However, this contention must of course be looked at in light of the evidence as a whole, including in particular other evidence given by Mr Pearson as to the circumstances which existed at the time when the decision to issue the Notice was made. 14 These circumstances include the stage which the investigation had reached. They also include the existence of a settlement regime or settlement strategy to be followed with any airlines who would agree to a settlement with the ACCC. 15 The existence of the settlement strategy was a factor to be taken into account in considering whether, at the time when the Notice was issued, the ACCC had already decided, either formally or informally, to bring proceedings against KAL. The effect of KAL's contention was that, the decision having already been taken to commence proceedings, the ACCC's power to issue the Notice was exhausted or spent. 16 Initially, this was at the forefront of KAL's case. However, in closing addresses, KAL's case was refined in the manner I have referred to above. 17 One aspect of KAL's contention that the ACCC's power was spent, was that on 12 October 2007 Mr Glenn Owbridge, a solicitor from the Australian Government Solicitor telephoned Mr Bruce Lloyd, a partner in the firm of Clayton Utz. The ACCC contends that the conversation was protected by "without prejudice" privilege under s 131 of the Evidence Act 1995 (Cth) as a communication in connection with an attempt to negotiate a settlement of a dispute between the parties. 18 I heard the evidence of Mr Owbridge and Mr Lloyd on the voir dire. I reserved my decision as to the admissibility of the evidence. I will determine this question in the course of my judgment. 19 KAL had one further way in which it put its case. This was that the Notice was issued for an improper purpose, namely to obtain evidence that the ACCC may not be able to obtain through the Court's processes once it commenced penalty proceedings. 20 KAL submits that this inference is to be drawn from the circumstances in which the ACCC made its decision to issue the Notice and from certain other factors to which I will refer later. 22 On 21 September 2006, Mr Paul Taylor and certain other members of the ACCC's investigation team provided a Minute to Mr Samuel and the members of the ACCC. Mr Taylor is a Director of the Coordination Branch of the ACCC. He has been responsible for conducting the investigation on a day-to-day basis since around July 2006. 23 The Minute was copied to a number of people including Mr Pearson and Mr Lee Hollis, the General Manager of the ACCC's Criminal Enforcement and Cartel Branch. 24 The purpose of the Minute of 21 September 2006 was stated to be to provide an update to Commissioners on developments in the investigation into possible cartel conduct in the international air cargo industry. 25 The Minute stated that the strategy had been to conduct a "thorough but focussed" investigation to establish the circumstances in which a contract, arrangement or understanding, or a number of them, may have been reached concerning fuel surcharges and other items. He also accepted that the "end game" was that if a contravention was established, then proceedings would follow. He agreed that this remained the intention throughout, and that it still does. 28 On 13 March 2007 the ACCC served a Notice under s 155 of the Act on KAL. That Notice sought information and documents which have apparently been provided by KAL. No issue arises about this notice. 29 The Submission to the Enforcement Committee meeting of 26 April 2007 stated that the Committee's proposed strategy was to complete the investigation and, subject to the sufficiency of evidence, commence proceedings by mid-September 2007. 30 That Submission also stated that staff proposed to finalise evidence gathering and obtain advice on sufficiency of evidence with respect to a number of airlines and to return to the Committee in August 2007 for a direction as to whether proceedings should be commenced. 31 The 26 April 2007 Submission again confirmed the approach that, subject to the sufficiency of evidence, the ACCC would commence proceedings. 32 A statement was made in the Submission that evidence gathering to date suggested there was "profuse collusion" by numerous airlines across many routes throughout the world on the fuel surcharge. Mr Pearson was not aware of whether that statement encompassed KAL at that time. 33 The ACCC's approach that, subject to the sufficiency of evidence, proceedings would be commenced against offending airlines, was repeated in the Submission to the Enforcement Committee for the meeting of 24 May 2007. 35 The catalyst for the development of the settlement strategy appears to have been an approach that was made to the ACCC in about August 2007 by two air cargo carriers. The carriers made separate approaches to the ACCC to discuss a settlement regime which would include admissions of contraventions of the Act and other steps necessary for the Court to make appropriate orders including penalty. Needless to say, those steps could only be taken after the ACCC commenced proceedings. 36 A further reason for the development of a settlement regime was that Mr Pearson was aware that several suspected cartel participants were, at that time, under investigation, and that they were subject to court proceedings in other countries in respect of conduct that was similar to that being investigated by the ACCC. 37 Indeed, it was in or about August 2007 that ACCC staff considered that KAL was a candidate for inclusion in the proposed settlement framework. This was because in August 2007 the Department of Justice of the United States announced that KAL had agreed to a penalty of $US300 million in respect of to conduct that included price fixing in relation to fuel surcharges. 38 A staff submission to the ACCC for a meeting of 22 August 2007 recorded that there had been recent media publicity about price fixing by international airlines following settlements in the UK and the USA and various announcements by Qantas. 39 The submission stated that work had begun on "concept" or dot point pleadings to assist in the preparation of subsequent draft pleadings. The submission also stated that work had commenced on a preliminary penalty matrix in anticipation of discussions with airlines. 40 One of the reasons for the establishment of a settlement regime was that Mr Pearson considered that an overall settlement framework should be established and approved by the Enforcement Committee so that there would be parity among airlines with respect to the penalty scale. 41 On 13 September 2007 the investigation team sought from the Enforcement Committee additional funding to take the investigation to the point of issuing proceedings. Estimates of counsel's fees were obtained for this purpose based on the number of hours that would be required up to the time of the commencement of proceedings. 42 In about October 2007 Mr Pearson reorganised the ACCC's staffing arrangements for the investigation. This was achieved by splitting the ACCC staff into two separate teams, a settlement team and an investigation team. The settlement team was, and apparently still is, led by Mr Mark Quinane, a Director of the ACCC's Coordination Branch. 43 The investigation team continued to be led by Mr Taylor but there was apparently some overlap between the teams, with team members working together on an "as needed" basis. 44 On 2 October 2007 Mr Pearson sent an email to Mr Samuel and Mr David Smith. Mr Smith is a Commissioner and Chairman of the Enforcement Committee. Mr Pearson's email requested a meeting with Mr Samuel and Mr Smith to discuss the current status of the investigation and the strategy that was being pursued. 45 Mr Pearson's email stated that one of the approaches that had been pursued was the possibility of parties agreeing to settlements. He referred to the separation of the staff into investigation and settlement teams. Mr Samuel and Mr Smith agreed to hold the suggested meeting. One of the purposes of the submission was to seek the Enforcement Committee's endorsement of a proposed strategy in the form attached to the paper. 47 The submission recommended that the Enforcement Committee endorse the proposed settlement strategy and penalty matrix. However, he said that the direction of the Enforcement Committee was to continue the investigation because "at that time we didn't have sufficient evidence" to commence proceedings against any of the airlines. He made concessions about the Reason to Believe paper which may have been adverse to the ACCC, but he also gave evidence which was adverse to KAL's case. 50 First, and most importantly, Mr Pearson said that when the Reason to Believe paper was prepared he had not reached any decision to recommend to the ACCC that legal proceedings be instituted against KAL. Moreover, he said that before the Enforcement Committee could make such a recommendation, factual enquiries would need to be completed and legal advice would need to be obtained from external legal advisers that the Commission had reasonable grounds to commence proceedings. 51 Mr Pearson expanded upon the need for further factual enquiry when he was cross-examined about that topic. He reiterated the force of that evidence in re-examination when he said that at the date of the hearing there was still no recommendation to the ACCC by the Enforcement Committee to commence proceedings against KAL. 52 Second, Mr Pearson accepted that he had given instructions to Mr Owbridge to contact KAL and other airlines about a possible settlement. But Mr Pearson rejected the proposition that he would not have given those instructions unless he had, at that time, reasonable grounds for believing that a contravention could be made out. 53 Mr Pearson explained the basis for determining which airlines were to be approached by saying it was the airlines around which "there was a smell of price-fixing". He said there were airlines whose names had come up from discussions overseas. He also referred to the public knowledge of the fine that had been agreed to by KAL in the United States. 54 Third, Mr Pearson also rejected the suggestion that as at 31 October 2007, KAL having declined the settlement proposal, he was "in due course" going to make a recommendation that proceedings be commenced against KAL. 55 Fourth, Mr Pearson made the point that, quite apart from the sufficiency of evidence, there are public interest considerations which affect the exercise of the ACCC's discretion to commence proceedings. One of these is the size of the "footprint" that a particular airline has in Australia because that determines the extent to which Australian consumers have been harmed by the anti-competitive conduct. Nevertheless, no other reason was stated. I will also make an order under s 50 of the Federal Court of Australia Act 1976 (Cth) forbidding publication of the transcripts of the evidence of the conversation. Access to the transcript of the Solicitors' evidence will be restricted to the legal advisors of the parties. 60 Both Mr Lloyd and Mr Owbridge gave evidence that Mr Owbridge commenced the conversation by stating it was without prejudice and without instructions. The essential difference between them is that Mr Lloyd states that Mr Owbridge told him that he, ie Mr Owbridge, was calling in relation to a settlement proposal for proceedings that the ACCC "would be commencing" against KAL and other airlines. 61 By contrast, Mr Owbridge says that he told Mr Lloyd that he was phoning "in relation to the air cargo matter" and that he wished to discuss a proposal for a quick resolution of the matter. 62 Both witnesses agreed that Mr Owbridge explained the detail of the proposal. It is unnecessary to set out what passed between them on that topic. The first is whether it was a communication made between persons "in dispute" within the meaning of s 131(1)(a) and s 131(5)(a) of the Evidence Act . 65 The third issue is whether, in the event that the communication would otherwise be excluded under s 131(1) , it is admissible under the exception stated in s 131(2)(g) of the Evidence Act . 67 I do not consider that this confines the nature of the dispute to one which is the subject of existing proceedings. To do so would be contrary to the rationale for the existence of the privilege which is to enable parties to engage in negotiations aimed at the settlement of litigation: Field v Commissioner for Railways for New South Wales [1957] HCA 92 ; (1957) 99 CLR 285 at 291-292; Glengallen Investments Pty Ltd v Arthur Anderson [2002] 1 Qd R 233 at [27]. 68 The position at common law was that the privilege operated even where litigation had not yet commenced and extended to a dispute which would become the subject of litigation if it were not resolved: Rodgers v Rodgers [1964] HCA 25 ; (1964) 114 CLR 608 at 614; Harrington v Lowe (1996) 190 CLR 311 at 323; Glengallen at [28] --- [29]. 69 It is implicit in the remarks of Emmett J in Brown v Commissioner of Taxation (2001) 187 ALR 714 at [172] --- [174] that the same position applies under s 131 of the Evidence Act . 70 Here, it is sufficiently clear from the terms of the conversation between Mr Owbridge and Mr Lloyd and the background which I have recounted that there was a likelihood of litigation if the settlement proposal was not accepted. In my view, that was sufficient to constitute a "dispute" for the purposes of s 131(1)(a) and s 131(5)(a) of the Evidence Act : Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 69 at 73-74. 71 Nor is there any substance in the suggestion that the privilege does not apply because the "dispute" concerning the air cargo investigation is different from the dispute which is the subject matter of these proceedings: First Capital Partners Pty Ltd v Sylvatech Ltd (2004) 186 FLR 266 at [33] --- [34]. There, Dixon CJ, Webb, Kitto and Taylor JJ contemplated that the privilege extends to cover communications that are reasonably incidental to negotiations. 73 The effect of the authorities at common law is that the privilege applies to offers to negotiate and expressions of willingness to do so; it is not necessary that there be an offer capable of acceptance: Trade Practices Commission v Arnotts at 72-73. 74 The same position applies under the Evidence Act . It is sufficient that the communication can be described as an "opening shot" in negotiations: GPI Leisure Corporation Ltd (In Liq) v Yuill (1997) 42 NSWLR 225 at 226. 75 Mr Owbridge's proposal to Mr Lloyd fell within this description. First, other evidence must have already been adduced which would be likely to mislead the court unless evidence of the without prejudice communication is adduced. 77 The second requirement is that the evidence of the without prejudice communication must contradict or qualify the evidence that has been adduced. 78 In Brown v Commissioner of Taxation at [184] --- [185], Emmett J considered that s 131(2)(g) will apply where the Court would be likely to be misled as to the existence or contents of an excluded communication where those matters are in issue in the proceedings: see also Bloss Holdings Pty Ltd v Brackley Industries Pty Ltd [2005] NSWSC 756 at [7] . 79 KAL submitted that certain portions of Mr Pearson's evidence would be likely to be misleading in the absence of the evidence of the communication between Mr Owbridge and Mr Lloyd. • that the information sought in the Notice was relevant to whether proceedings against KAL should be instituted. • that Mr Pearson had not reached a decision to recommend to the Commissioners that proceedings be commenced. However, I reject the submission for two reasons. 81 First, it is inconsistent with a concession made by Mr Gageler to which I refer below. This is to the effect that no unqualified decision was made by the ACCC to commence proceedings. 82 Second, it depends upon whether I accept Mr Lloyd's evidence that Mr Owbridge told him that the ACCC would be commencing proceedings. Although I consider that Mr Lloyd was doing his best to give his evidence honestly and fairly, I do not accept that Mr Owbridge said those words. This is supported by Mr Lloyd's concession in cross-examination on the voir dire that those words did not appear in his contemporaneous note of the conversation or in three emails which he sent to Mr Owbridge within a few weeks of the conversation. 83 KAL submitted that the evidence of the conversation was admissible under s 131(2)(g) because, without it, I would have only part of the picture in respect of an important aspect of KAL's case: Moran v Moran (No 3) [2000] NSWSC 151 at [13] . However, in my view, that is not the whole of the test which is stated in s 131(2)(g) and, ultimately, Kirby J appears to have admitted the evidence in accordance with the terms stated in the subsection because he considered that the jury may have been misled without it. The essential point which arises is whether, in light of Mr Pearson's concession that the information sought in the Notice is not required to establish a contravention of s 45(2)(a) or (b), it can nevertheless be said that the power was exercised for the purpose for which it was conferred. 85 The answer to this question turns upon a consideration of the authorities on the ambit of the power and upon Mr Pearson's other evidence. 86 A consideration of the authorities supports the view of Deane J in the Full Federal Court of the Federal Court in Pioneer Concrete that the power is to be used only for the performance of the administrative function of determining whether proceedings should be instituted. 87 Earlier, in Riley McKay Pty Limited v Bannerman [1977] FCA 7 ; (1977) 15 ALR 561 at 566, Bowen CJ said that the power must be exercised for the purposes for which it is given and not otherwise; that is, to assist the Commission in the exercise of its functions. Bowen CJ reiterated that view in Pioneer Concrete at 84. Sheppard J agreed with both the Chief Justice and Deane J. 88 The decision of the Full Court in Pioneer Concrete was upheld on appeal to the High Court: Pioneer Concrete (Vic) Pty Ltd v Trade Practices Commission [1982] HCA 65 ; (1982) 152 CLR 460. Mason J at 474 agreed with the analysis of Deane J in the Full Court of the Federal Court. See also Environmental Protection Authority v Caltex Refining Co Pty Ltd [1993] HCA 74 ; (1993) 178 CLR 477 at 516-517 (note 62) per Brennan J. 89 Other decisions of the Full Court of the Federal Court are to the same effect as the statement of principle of Deane J in Pioneer Concrete: see Kotan Holdings Pty Ltd v Trade Practices Commission (1991) 30 FCR 511 at 514 per Davies and Foster JJ; Seven Network Ltd v Australian Competition and Consumer Commission [2004] FCAFC 267 ; (2004) 140 FCR 170 at [48] per Sackville and Emmett JJ. 90 This approach is consistent with that expressed by Mansfield J in Australian Competition and Consumer Commission v Rural Press Ltd [2000] FCA 66 ; (2000) 96 FCR 389 at [38] , [40]. 91 Accepting therefore that the exercise of the power is confined to the purpose stated by Deane J, the question then is whether it follows from the concessions made by Mr Pearson that the Notice was issued other than for the administrative function of determining whether proceedings should be instituted. 92 It is true that Mr Pearson accepted that the information sought by the Notice does not go to establishing any element of a breach of the provisions of s 45(2)(a) or (b) of the Act. But, in my opinion, it does not follow that the decision to issue and serve the Notice was for an improper purpose. There are two reasons for this. 93 First, the exercise of the administrative function of determining whether proceedings should be instituted is not limited to the gathering of evidence on the question of liability. It extends to the pursuit and assessment of information which informs the exercise of the discretion, properly exercisable by the ACCC, as to whether to institute proceedings. 94 As Mr Pearson said, public interest considerations are to be taken into account and there is always a discretion in the Commission as to the exercise of the administrative function of determining whether or not to commence proceedings. 95 Thus, in my view, the type of information to which Mr Pearson referred, namely the size of KAL's "footprint" in Australia and the extent of any harm to the Australian market are relevant to the administrative function of determining whether proceedings should be instituted. 96 Second, as Lockhart J observed in Kotan at 522, the use of s 155 for the purpose of obtaining evidence to be tendered in penalty proceedings on the question of the quantum of any penalty is a legitimate use of the power. 98 An affirmative answer to that question would not necessarily lead to a finding that the power was spent. This is because a question of law would then arise as to whether a decision by the ACCC to institute proceedings against KAL bars it from thereafter exercising the power to issue a notice under s 155 of the Act. 99 The question of law is a debateable one. It cannot rise above the statement of Davies and Foster JJ in Kotan at 516 that there may be an arguable case that the power to issue a s 155 notice ceases when the Commission has formally resolved that legal proceedings be commenced. But there are other indications that this proposition does not accurately state the law. 100 First, Davies and Foster JJ thought the preferable view to be to the contrary. Second, Lockhart J was inclined to the view that the power to issue a notice under s 155 does not end and is not abused merely because the Commission has made a decision to institute proceedings against the addressee of a proposed notice. His Honour went on to say that whether the power to issue a notice is abused is a question of fact to be determined in all of the circumstances: Kotan at 521. 101 Third, Lockhart J's view is supported by the observations of French J in Shannahan v Trade Practices Commission [1991] FCA 95 ; (1991) 28 FCR 239 at 244. (See also French J at first instance in Re Kotan Holdings Pty Ltd & Ors v Trade Practices Commission [1991] FCA 273 ; (1991) 13 ATPR 41-122 at [7] ). His Honour said that there is nothing in the terms, context or purpose of s 155 to indicate that the power is compromised by the Commission having decided to commence proceedings. 102 Fourth, in Rural Press at [37], Mansfield J agreed with the view expressed by Lockhart J in Kotan . Mansfield J went on at [38] to say that the question of whether the power has been exercised for an improper purpose is a matter to be decided in all the circumstances. I respectfully agree with this observation. 103 Nor, in my view, does the statement of Franki J in Brambles Holdings Ltd v Trade Practices Commission (No 2) (1980) 44 FLR 182 at 189 support the view that the power automatically ceases when the proceedings have been commenced. 104 It seems to me that the effect of what Franki J said was captured in the words of Gibbs CJ in Pioneer Concrete at 467-468. Thus, if the power were used to assist a party in proceedings already pending, in a way that would confer an advantage which the procedures of the Court would otherwise deny, there would be a contempt; however, not every investigation into facts the subject of an existing proceeding constitutes a contempt. 105 In any event, whether or not the question of law is decided favourably to KAL, the contention fails at the factual level because I am not satisfied that the ACCC had decided to commence proceedings. 106 Ultimately, Mr Gageler conceded that there was no decision by the ACCC to commence proceedings and he accepted that there was no recommendation to the ACCC that proceedings be commenced. However, he adhered to the submission that, as at 31 October 2007, there had for some time been a very firm intention, contemplation or expectation that proceedings would be commenced subject only to the ACCC being satisfied of the sufficiency of evidence of a contravention of s 45. 107 It may be accepted that the ACCC's intention was to establish whether there had been a contravention of the Act, and if so, to commence proceedings in the event that the relevant public interest considerations supported that step. This is the effect of the Minutes of and Submissions to the Enforcement Committee, to which I referred above, as explained by Mr Pearson: see [26], [27] and [55] above. It is also consistent with the recommendation made to the Enforcement Committee meeting of 25 October 2007 to which I referred at [47]. 108 But an intention to commence subject to completing all factual enquiries, is not to be equated with a firm intention to commence proceedings. 109 Nor do the various matters to which KAL referred as indicating that the ACCC had decided to commence proceedings support an inference that there was a firm and unqualified intention to do so. 110 Mr Pearson's evidence was that he did not have such an intention. Moreover, he said that staff of the ACCC had not advanced the investigation sufficiently to warrant a recommendation. 111 It is true that the investigation had been on foot for approximately two years. It is also true that the Enforcement Committee documents, such as those of 26 April 2007, suggest that the investigation must be near to completion. Indeed, that is an inference which arises from the nature of the material sought in the Notice, it being concerned only with the extent of the contraventions and penalty. 112 However, there is nothing to suggest that Mr Pearson's evidence of the state of the ACCC's staff's investigation is inaccurate and I accept it. 113 In any event, officers of the ACCC do not have power to institute proceedings: Kotan at 516, 522. This is not a case in which it has been demonstrated that the principle stated in Carltona Ltd v Commissioner of Works [1943] 2 All ER 560 has any application: see also O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. 114 I do not consider that the decision of a Full Court in Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122 at [84] assists KAL. Lander J at [84], with whom Moore J at [1] and Weinberg J at [23] agreed, accepted that a distinction is to be drawn between the power to commence proceedings which is only exercisable by the Commissioners, and contemplation of litigation by ACCC staff for the purpose of determining a claim for legal professional privilege. 115 In my opinion, this distinction supports the view expressed in Kotan because it reaffirms the principle that it is only the Commissioners who have the power to institute proceedings. 116 Nor do I consider that the principle in Jones v Dunkel (1959) 101 CLR 298 is enlivened by the failure of the ACCC to call Mr Samuel or the members of staff who prepared the Reason to Believe paper. There are limits on the use which can be made of Jones v Dunkel in administrative law proceedings. This is not a case in which the inferences sought to be drawn by KAL would be hard to resist in the absence of evidence from the author of the documents: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 ; (2001) 205 CLR 507 at [92] , [143], [316] --- [317] and Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389 ; (2001) 109 FCR 152 at [71] . 118 The matters on which KAL relied were listed in its written submissions. I do not propose to list them but they include the advanced state of the investigation, the fact that the Court's discovery processes are more restrictive than the Commission's powers under s 155 , the limits imposed on the use material obtained in discovery and the ACCC's "bitter experience" of these issues in Australian Competition and Consumer Commission v Qantas [2003] FCA 907. 119 The short answer to KAL's submission is that the evidence before me demonstrates that the purpose of the ACCC in deciding to issue the Notice was to obtain evidence of the extent of any contraventions by KAL and evidence going to the quantum of any penalty. All of this might ultimately be used in the event that the ACCC decides to commence proceedings. This purpose falls "squarely within the Act": Rural Press at [40]. 120 Reference was made in cross-examination of Mr Pearson to the ACCC's knowledge of difficulties encountered in obtaining an order for discovery and interrogatories in existing proceedings. It has not been demonstrated that this was an actuating purpose in the decision to serve the Notice. I will hear the parties briefly on the question of costs. I certify that the preceding one hundred and twenty-one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

accc investigation into price-fixing by air cargo cartel applicant rejected the accc's settlement offer the accc issued a notice under s 155 of the trade practices act 1974 (cth) applicant claimed notice issued for improper purpose evidence of without prejudice discussions inadmissible accc had not made decision to commence proceedings against applicant if settlement offer were rejected s 155 is a power conferred for an administrative purpose whether a notice under s 155 is issued for an improper purpose is to be determined in all the circumstances administrative law

They are in competition with each other although they sell in different price ranges. As this case shows they may be commercially sensitive to each other's marketing efforts. According to evidence given by Mr Stephen Sheppard, a director of each of the respondents (collectively Dare Gallery), in early 2007 he became aware that the applicant (King Furniture) had embarked on a national television advertising campaign disparaging timber framed sofa products. Dare Gallery sells such sofas. King Furniture manufactures and sells sofas with a metal frame construction. He authorised an advertising campaign. There is no suggestion that the King Furniture advertisements mentioned Dare Gallery by name. The advertising campaign authorised by Mr Sheppard respected no such limitation. Mr Sheppard authorised advertisements in print media and on radio which made a direct comparison between specific models of modular furniture --- the Phoenix modular sofa sold by King Furniture and the Montreaux modular sofa sold by Dare Gallery. In the radio advertisements the bowling ball theme was perpetuated with a spoken commentary being punctuated by the sound of bowling balls and falling pins. 3 There were a number of very similar versions of the print advertisements. A typical example is reproduced as Appendix A to this judgment while a transcript of the radio advertisement is at Appendix B. In its Statement of Claim King Furniture pleaded that the advertisements made a number of representations which were misleading or deceptive within the meaning of s 52 of the Trade Practices Act 1974 (Cth) (The TP Act). 2. are any or all of the representations misleading or deceptive? 3. if so, what relief, if any, should be granted to King Furniture? 4 The advertisements were published and broadcast in about mid-August 2007. The proceedings were commenced by Application filed 29 August 2007. They included a claim for interlocutory relief. Upon the proceedings being commenced the advertising campaign by Dare Gallery was discontinued. It has not been recommenced. Pending hearing of the proceedings the matter has been accommodated by an undertaking from Dare Gallery not to resume the advertising campaign. A choice to advance the merits of a particular product by comparison advertising must be carefully implemented. Care must be taken not to mislead with half-truths about a competing product or by the omission of 'an essential integer to a fair comparison'. 6 So far as s 52 of the TP Act is concerned '(i)t is not essential for the applicant to show that the effects of the contravention of s 52 upon these persons would continue up to the point of sale to them by the respondent' ( Collier Constructions 97 ALR at 478 citing Taco Co of Australia Inc v Taco Bell Pty Ltd (1982) 42 ACR 177 at 197-199). It is unnecessary to go further and establish that any actual or potential consumer has taken or is likely to take any positive step in consequence of the misleading or deception. 8 The respondents, however, argued in the present case that the matter was to be tested by reference to what might happen at the potential point of sale, and with the benefit of further information. In the circumstances of this case, prospective customers of sofas would normally need to attend one of the Applicant's or Respondents' showrooms to discuss their specific furniture requirements; both as to configuration, fabric and final price of their chosen furniture and are likely to go to a number of different retailers before deciding to purchase. The furniture would likely be a substantial purchase and would not be bought either on impulse or merely by reference to the advertisements. Any impact the alleged misrepresentations may have had upon potential consumers would have worked itself out because any consumer likely to purchase a sofa would have had an opportunity to discover the truth and reverse any misrepresentation when they attended at the parties' respective stores to investigate the purchase of such sofas. In Parkdale the causes of action focussed on the proposition that the respondent had engaged in misleading or deceptive conduct by manufacturing and offering for sale furniture that was deceptively similar to the distinctive furniture made by the applicant. The High Court rejected allegations of breach of s 52 of the TP Act observing that purchasers of expensive furniture might be expected, if acting reasonably, to satisfy themselves of the origins and manufacture of the furniture before purchase. It is important to note that the case was argued in the High Court on the footing that the relevant deception was 'with respect to the source of manufacture as distinct from deception as to the quality of the goods ' (per Mason J at 202 --- italics in original). The respondent's practice, in that case, of labelling its chairs to show the name of the manufacturer was found to be a relevant, indeed critical, part of its conduct viewed as a whole. The case did not turn on the effect of advertising, but on what might happen at the point of sale. That was to be evaluated by reference to the entirety of the conduct of the respondent. Such considerations do not apply in the present case. There is no reason, therefore, to depart from the well established principles to which I earlier referred. WHAT ARE THE REPRESENTATIONS MADE IN THE DARE GALLERY ADVERTISEMENTS? I shall deal, therefore, with each in turn. In my view the same representation was made in the radio advertisement. I find the representation as pleaded established. Although it is true that both the published advertisement and the radio advertisement use the terms 'half the price' and 'twice the warranty' these statements lack any real specificity and in my view are too general to be regarded as intended to provide specific, rather than very approximate, comparisons. For example, in the published advertisement it is clear that the figures shown do not satisfactorily equate with the general statement 'half the price'. Similarly the general statement 'twice the warranty' invites further attention. I am not satisfied that there is a sufficiently specific representation that the Dare warranty was 'twice as valuable'. Curiously, in its Defence Dare Gallery in substance denies the allegation in 10(c) with respect to the published advertisement but admits it with respect to the radio advertisement. Although the pleaded alternative representation remains somewhat general I am satisfied that it captures fairly the intendment of both kinds of advertisement. There seems no doubt that the representation that the Dare Montreaux sofa was available for (less than) half the price of the King Phoenix sofa was intended to be seen in counter position with the suggestion that, at the same time, the available warranties were significantly more valuable on the Dare Montreaux sofa than on the King Phoenix sofa. I find this representation established. It arises in particular from the table in that advertisement. It is quite clear that the intent of the comparison there offered is to suggest that the King Phoenix sofa, if it has any warranty on foam at all, has warranty arrangements for foam which are less than the 10 years available for the Dare Montreaux sofa. I am satisfied that this representation is established. I can see no satisfactory basis for any distinction. In my view the statements made in the radio advertisement, which are introduced with the words 'buying a quality sofa' convey the same sense as the admitted representation in the published advertisement. Even without the admission I would be satisfied that this representation has been established. The whole tenor of the advertisements is to suggest that, with respect to sofas of a similar quality, the Dare sofa is better priced and has a better warranty. 11(b) and 11(c) --- Australian made? In my view it is not established that this statement refers to all Dare sofas or all King sofas. The better view is that it refers to the sofas earlier identified in the radio advertisement --- namely Dare's Montreaux modular sofa and King's Phoenix modular sofa. I find that these representations are not established. However, the radio advertisement says 'Dare sofas are guaranteed for life. King's aren't. ' This statement is not confined to matters of structure but applies to the sofa as a whole. I am not satisfied that the representation can fairly be read to specifically relate to 'component parts' but I am satisfied that the radio advertisements make a representation that Dare sofas have a lifetime guarantee. WERE THE REPRESENTATIONS MISLEADING OR DECEPTIVE? The evidence was that all Dare Montreaux modular sofas are manufactured in Australia. King Furniture has two factories, one in Sydney and one in Shanghai, China. King Phoenix modular sofas are made at both locations. Ms Margaret Thompson, the office manager at King Furniture's Sydney premises, gave affidavit evidence that she had extracted, from a database maintained by King Furniture, a large number of records which she printed. According to her searches, and the data which was printed out, in 2006 345 Phoenix sofas sold by King Furniture were manufactured in Australia and 215 in China, while in 2007, from January to June, 104 were manufactured in Australia and 72 in China. 21 Ms Thompson was not cross-examined although counsel for Dare Gallery said that he did not accept that the figures were satisfactorily established in the precise amounts given by Ms Thompson. That was because earlier attempts by Mr King to provide hearsay evidence of similar searches carried out by another employee, which I rejected, yielded different figures. However, there was no issue taken by Dare Gallery that a substantial number of the overall quantity of King Phoenix modular sofas made and sold by King Furniture are manufactured in Australia. 22 According to Mr Sheppard's evidence he gave instructions to Matthew Mister, Dare Gallery's Marketing Manager, to design print advertisements on 13 August 2007, to Mr Grahame Dingle, Dare Gallery's advertising and marketing consultant, to create and produce a radio advertisement 'in or around August 2007' and that he approved the content of both forms of advertisement on or about 16 August 2007. The print advertisements were first published on 17 August 2007 and the radio advertisements were first broadcast on 16 August 2007. 23 I am satisfied that Mr Sheppard knew that King Phoenix sofas are manufactured in both Sydney and Shanghai. He acknowledged as much in his evidence. The explanation which he gave for this representation was that an enquiry which he made on 11 August 2007 at a King Furniture store in Richmond, Victoria about a particular King Phoenix modular sofa on the showroom floor in a particular fabric (Daintree) yielded the information that it was made in Shanghai. According to Mr Sheppard's evidence he was first told, on 11 August 2007, that a sofa in the same fabric was available from Australia at a slightly higher price ($8,166 rather than $7,815). Two days later when he called the store 'to confirm the information' he was told that the sofa was not available in that fabric from the Sydney factory. 24 I reject Mr Sheppard's explanation as any form of defence. The evidence did not establish that the King Phoenix sofa in the advertisement was a photo of a sofa in the Daintree fabric. It would be impossible, in any event, to tell from the photo in the advertisement what fabric is used. There is no suggestion in the print advertisement that the King Phoenix sofa depicted in the photo was shown in a particular fabric or was made in China. The radio advertisement provides no scope at all for any excuse of the kind offered. 25 I am satisfied that the representation in both the print advertisement and the radio advertisement to the effect that King Phoenix sofas are not made in Australia was misleading or deceptive within the meaning of s 52 of the TP Act. In the radio advertisement the representation is conveyed also by the words 'twice the warranty' and also by the words 'Dare sofas are guaranteed for life. King's aren't'. In his affidavit evidence Mr Sheppard offered the following analysis about these matters in the form of the table set out hereunder. 3. 4. Dare Gallery also offer a structural warranty for the frame and structural components of the sofa and this is a full warranty for the life of the sofa. The Dare warranty covers wear and tear, and also includes the costs of freight, labour, transport. Dare Gallery offers a lifetime warranty on the frame and structural components. Dare Gallery will repair the sofa at no cost to the consumer and on a "no fault" basis. Dare Gallery offers a full 10 year warranty on foam and webbing and will repair it on a "no fault" basis at no cost to the consumer during the 10 year period. The King Furniture Warranty diminishes such that after 2 years the consumer has to pay 25% of the total cost of repairs, and the King Furniture Warranty continues to diminish until at 15 or above years the consumer must pay 100% of the cost of the repairs. Further, the King Furniture Warranty only covers manufacturer's defects, does not cover wear and tear, and does not cover freight, labour, transport. King Furniture's 15 year diminishing "pro-rata" warranty only covers manufacturing faults with the frame and all components including fabrics, leathers, foam, feather & fibre fillings, suspension, springs, mechanisms, zippers, fasteners & legs. The King Furniture warranty states "depending on the covering and the degree of use the covering materials cushion fillings and suspension may need to get replaced periodically at the customers expense". This is not a lifetime guarantee on the structure of the sofa. King Furniture's 15 year diminishing "pro-rata" warranty (covers only 31% of costs of defective component after 10 years), and does not cover freight, labour, transport. 27 This table contained one significant factual error as well as some omissions. The King Furniture warranty on its steel frame was not offered on a diminishing or pro-rata basis. It was a 15 year warranty. So much was clearly stated in its printed warranty and Mr Sheppard was not able to offer a satisfactory explanation for his failure to summarise it accurately. Other components were warranted against manufacturing defects (wear and tear was not included) according to a schedule by which the purchaser would make an increasing percentage contribution to the cost of repairs or replacement. The warranty only applied to the original purchaser. 28 According to Mr Sheppard the Dare Gallery warranty at the relevant time (and since April 2007) included a two-year guarantee against manufacturing faults on fabric notwithstanding that a warranty issued from Dare Galleries Fortitude Valley store on 28 August 2007 stated that 'fabric is not under warranty'. I am prepared to accept this evidence for the purpose of the present analysis. The effect, so far as fabric is concerned, is that the Dare sofa had an equivalent warranty to the King Furniture sofa (which required no contribution from a customer in the first two years) and thereafter the King Furniture warranty continued, although diminishing, for a further substantial period. 29 So far as structural guarantees are concerned the Dare Gallery warranty applied also only to original purchasers. Mr Sheppard's explanation of the effect of a 'lifetime' warranty was that 'a purchaser in their thirties or forties could be expected to live for at least another 30 years after buying a Dare Gallery sofa' and '[e]ven considering the period of just the first 15 years from the date of purchase I believe that Dare Gallery offer twice the warranty on the frame and webbing compared to the 15 year diminishing "pro-rata" warranty offered by King Furniture on frames and structure on their sofas'. This second statement is incorrect. For a 15 year period both sofas were the subject of a structural guarantee. I find it impossible to attribute any real weight to the suggestion that the Dare Gallery sofa guarantee to the original purchaser might continue indefinitely after 15 years. There was no evidence about how long sofas are retained by their original purchasers. Both guarantees appeared to me, from the evidence, to be confidently offered upon the basis that it was highly unlikely they would need to be honoured. 30 I deal separately with the representation about the foam warranty but so far as it makes a contribution to the alternative Dare warranty issue again there is no evidence from either side of the record about the practical significance of the respective positions. Neither Dare Gallery nor King Furniture called any evidence about the extent to which any warranty on foam had ever been required to be honoured. It seems true, however, that viewed simply by reference to possibilities the Dare Gallery warranty on its face appears superior. 31 An assessment of this element of the case is difficult. If Dare Gallery bore an onus to show that its warranty was significantly more valuable than that offered by King Furniture I would not be satisfied that such a case had been made out upon the simplistic comparison offered by Mr Sheppard, particularly having regard to the errors and omissions incorporated within it. However in respect of this issue, as with other issues, the applicant bears the onus. In the absence of any hard evidence about warranty claims and responses and having regard to the requirement that a customer make an increasingly large contribution to repair and replacement arising from 'failure due to a manufacturing defect' (wear and tear being excluded) I am not satisfied that the applicant has discharged its onus of showing that this representation is misleading or deceptive. In that advertisement it appears in the table. It consists of the assertion that the Dare Montreaux sofa has 10 years (warranty) on foam and the King Phoenix sofa does not. It is certainly misleading to say that the King Phoenix sofa does not have at least a 10 year warranty on foam. It does although, as earlier discussed, the value of the warranty reduces over time commencing after the first two years. After 10 years (i.e. in year 11 onwards) a customer must contribute 75% and upwards of the cost of repair or replacement as well as meeting transport costs. In my view the representation is misleading but not seriously so and it provides no real foundation for relief if this was the only complaint which the applicant had. The applicant called not only Mr King to give evidence about the matter but also two experts, Associate Professor Douglas Tomkin from the Faculty of Design, Architecture and Building, University of Technology, Sydney and David John Granger, a Director of Bang Design Pty Limited with extensive experience in furniture design. The respondents relied, in relation to this issue, on Mr Sheppard's evidence and evidence from Mr Ian Hemburrow, the Managing Director of Oakgrove Furniture Pty Limited which manufactures the Montreaux sofas and other furniture for Dare Gallery. In addition I had an inspection on the first day of the hearing of a King Phoenix sofa and a Dare Montreaux sofa which permitted an examination of both external appearance and features as well as methods of construction and materials and componentry which are normally hidden from view. I found this of considerable assistance in understanding the evidence which was given about the respective sofas. 34 I was invited by the applicant to form my own view about the relative quality of the sofas from this inspection. In my view I should use the inspection as an aid to understanding the evidence which was given, including expert evidence, and refrain from relying on any subjective initial impression of my own. 35 Not surprisingly, Mr King asserted superior quality for the King Phoenix sofa and Mr Sheppard disagreed. Mr Sheppard's contribution to the debate was diminished somewhat by the fact that in his initial affidavit evidence he asserted that Dare Montreaux sofas were made exclusively from structural grade timber. This assertion was contradicted both by Mr Hemburrow and by the visual inspection which was carried out on the first day of the hearing. Some timber used in the sofa inspected and, it was accepted, other Dare Montreaux sofas is clearly marked non-structural. It has knots in places. However Mr Hemburrow's evidence was that, although of 'merchant' quality and not structural grade it was more than adequate for its intended task. Both Mr Tomkin and Mr Granger agreed that the Dare Montreaux furniture was structurally adequate. 36 Professor Tomkin and Mr Granger were not unanimous about every aspect of their evaluation of the two sofas but they were agreed that the King Phoenix sofa was a superior quality sofa to the Dare Montreaux sofa. Their opinions were based very substantially on the methods of construction or 'build quality' of the various sofas as well as the nature of the materials used. The King Phoenix sofa has a welded metal frame to which is attached a 'Pullmaflex' spring system with an integrated wire mesh. Systems of this kind are commonly found in motor vehicle seats. It has substantial foam padding on the arms and back of the sofa as well as on the seat. The fabric is double top-stitched. 37 The Dare Montreaux sofa has a wooden frame to which webbing is stapled. The webbing goes from back to front. It has less padding on the arms and back of the sofa and Mr Sheppard's evidence was that by contrast to the King sofa these were not intended to be sat on. It has single stitching in the fabric which is not top-stitched. In the Dare Montreaux sofa which was inspected there were some fairly obvious examples (although not visible to any customer or purchaser) of staples not driven home and screws not properly located. In my opinion, from my first impression, the King Phoenix sofa is of better finish than the Dare Montreaux sofa. I am of this opinion because of the general appearance of the upholstery and the impression I receive of the quality of "fit and tailoring" of the upholstery over each of the sofa frames. (a) The stitching of the King Phoenix sofa is of high quality, utilizing top-stitching (and twin-needle stitching) in most areas. Whereas the stitching of the Dare Montreaux sofa is not the same quality, utilizing only single stitch seams. Although both sofas demonstrate straight and accurate stitching and seams, it is my opinion that in upholstered furniture top stitching produces a product of higher quality, durability and finish than that of single stitching. Upon this closer inspection it is my opinion that the construction and engineering (the "build quality") of both the King Phoenix and Dare Montreaux sofas are of satisfactory quality and durability for their intended use. However it is my opinion that the "build quality" [of the] King Phoenix sofa is better than the Dare Montreaux sofa. For example, the welding of the steel frame components provides greater integrity and durability to the joints/assembly --- whereas, as a general rule, it is possible for staples and screws to be miss-aligned during construction, and/or work loose over time under continued heavy use. The King Sofa uses double top stitching compared with the Dare Sofa which is single stitched. The mitre pattern cut on the King Sofa arm/back upholstery results in a neater and tighter fit than on the Dare Sofa. It is my view that a properly constructed spring system is superior to a seat support using high quality webbing. Steel is longer lasting and more reliable than synthetic webbing which can degrade over time. By and large it was accepted by each side that the sofas inspected were representative of the model in question although Dare Gallery pointed out the Montreaux sofa inspected (which had been purchased by Mr King for the purposes of the litigation) was floor stock which had been manufactured in December last year. The intense scrutiny to which each sofa was subjected caused a design change in the Dare Montreaux sofa during the course of proceedings. On the sofa as inspected (and as sold prior to the proceedings) the centre foot was, in part, ineffectively attached to the frame. One of four screws inserted to hold the foot in place did not locate at all in the frame. The explanation given was that the foot in question was designed for some other sofa but had been used for the Montreaux sofa as well. It appears that future models of the Montreaux sofa will have a centre foot designed specifically for that model. 40 It is not necessary to outline all the challenges that were made to various aspects of the sofas and the responses to those challenges. They do not change the general picture. I am satisfied on the basis of the evidence that the King Phoenix sofa is a clearly superior sofa to the Dare Montreaux sofa in terms of its overall quality, having regard to the method of construction and the materials used, by a fair margin. It follows that the representation to the effect that the sofas were of the same or of similar quality in the context of the advertisements, and that the Dare Montreaux sofa was available for about half the price, was misleading or deceptive within the meaning of s 52 of the TP Act. There was evidence from Mr Sheppard that he was quoted this price on 11 August 2007. Only a limited amount, and usually due to specifics requested by customers (such as fabric --- see below) would be sold at full retail price. could be less than $7,815)'. However there was no evidence called about the normal retail price of a King Phoenix sofa. Mr King accepted that the price quoted to Mr Sheppard was correct. He accepted in his oral evidence that lower prices would not normally be offered except in sale periods. Although he agreed that sales staff had authority to discount that is not the same, in my view, as a publicly offered price. I am not satisfied that it was misleading or deceptive of Dare Gallery to publish $7,815 as the price of a King Phoenix sofa. The representation suggested by the Statement of Claim was 'that Dare sofas have a lifetime guarantee as to their component parts'. I earlier indicated that I was not satisfied that the representation made in the radio advertisement (which was 'Dare sofas are guaranteed for life') could fairly be read in the way pleaded although I am satisfied that the advertisement makes a representation that the sofa as a whole is guaranteed for life and I am also satisfied that such a representation falls within the scope of the pleaded case. The evidence showed that the only part of a Dare Montreaux sofa which had a 'lifetime' guarantee was the frame. The representation made in the radio advertisement about a lifetime guarantee was in my view misleading or deceptive within the meaning of s 52 of the TP Act. Although I found that the representation about foam warranties was misleading or deceptive I do not think that it justifies relief or adds anything to the relief which is otherwise warranted. 45 What then of the overall impact of the representations I have found to have been made? 46 I have taken into account and carefully considered the respondents' arguments that prospective customers are used to a bit of 'puffing' and that it is unlikely that a decision to spend thousands of dollars would be made without much more thought than would be generated by either class of advertisement. There was some evidence that such decisions are not quickly or spontaneously made. However, I agree with the applicant that the vice of the advertisements (and I have no doubt their intended effect) is their tendency to produce a disinclination (aversion might not be too strong a word) to further investigating or considering an overpriced and non-Australian product. This is, in accordance with the authorities, to be judged at the time of the advertisements themselves and not by reference to later possibilities. 47 I am satisfied that the areas in which the representations have been found to be misleading or deceptive are important ones. There can be no doubt, in my mind, that Dare Gallery set out to actively dissuade potential customers from a critical comparison between the two models by rejecting the King sofa as an overpriced alternative at the outset. I am satisfied that the representations I have identified were seriously misleading. Furthermore, they were intentionally misleading or deceptive about matters within Mr Sheppard's knowledge. 48 I think that the impact of each radio advertisement would be more fleeting than the print advertisement. Some allowance must be made for the fact that the scrutiny to which a television or radio advertisement is subjected after it has been captured and replayed for the purpose of litigation, perhaps often, is not a fair duplication of its impact upon consumers. Secondly, unlike the judge, they do not carefully view the commercial with a special interest in noting and memorising its features. Thirdly, they view the commercial, not in the calm of chambers, but against a background of distractions, such as domestic activity, or simply a preoccupation with other more interesting or pressing concerns. Fourthly, usually they do not know in advance that the commercial is about to commence. Although the evidence disclosed that the radio advertisement was played in Sydney on 14 occasions between 16 and 23 August 2007 and in Melbourne between 16 and 21 August 2007 on 23 occasions and on 14 occasions on the Gold Coast between 23 and 26 August 2007, it is impossible to be satisfied about the specific level of repeat exposure to a potential purchaser. Nevertheless, repetition of the radio advertisement was one of its features. The print advertisement was capable of being retained and referred to by a potential purchaser as often as necessary. The level of repetition was not as high. The print advertisement appeared in Melbourne on 20 and 26 August 2007; in Sydney on 21 August 2007, in a half page advertisement in a magazine on 22 August 2007 and on 25 and 26 August 2007 and in Queensland in a Brisbane newspaper on 17 August 2007 and a Gold Coast newspaper on 18 August 2007. In the end it seems to me I should deal with both categories of advertisement as equally serious. 50 The applicant has not sought damages. It has sought relief by way of declarations and injunction and an order for corrective advertising. I am satisfied that appropriate declarations should be made. I am not satisfied that it is necessary to grant injunctions. The advertising campaign ceased virtually immediately. It has not resumed. Mr Sheppard gave evidence that in his assessment it had been ineffective. There is no suggestion of any proposal to embark upon any future advertising of this kind. I do not think it should merely be assumed, in the absence of some solid foundation for concern, that Dare Gallery will be imprudent enough to repeat conduct which the Court has declared to be misleading or deceptive. 51 However, King Furniture has a legitimate commercial concern about the impact of the advertisements and the fact that the impact may linger. In my view this should be addressed. For this purpose I place no weight upon Mr Sheppard's evidence that he does not think that the advertisements were of benefit to Dare Gallery. Whether or not that is so (and his evidence is insufficient to establish that as a fact) it is no answer to concern by King Furniture that its reputation or that of its sofas may have been damaged. The applicant asks that the Court direct corrective advertising in the same media as the original advertisements and to the same extent. 52 Before any corrective advertising can take place it will be about four months since the original advertisements. It is accepted that it would not be appropriate to use corrective advertising as a form of punishment. Nevertheless I agree that some form of corrective advertising is warranted. 53 I do not consider that the Court should direct that the advertisements contain an apology. Of its nature an apology is a gesture suggesting contrition. In my view that quality is not faithfully reflected by a formula imposed by the Court. 54 Subject to those qualifications I am satisfied that corrective advertising, substantially in the form sought in the Statement of Claim, should be published at Dare Gallery's expense in such newspapers as contained the print advertisements and on the radio stations to the same extent and at the same times as the radio advertisements were broadcast. Dare Gallery has been ordered by the Federal Court to publish and pay for this corrective advertisement. Dare Gallery has been ordered by the Federal Court to publish and pay for this corrective advertisement. The spoken words are to be preceded and followed by the same bowling ball noise as the original advertisements. 56 In addition to publication of notices in newspapers and broadcast announcements on radio stations the applicant sought that Dare Gallery for three months display on its website and in a prominent place on the front window of each Dare Gallery retail outlet a statement effectively denouncing the content of the advertisements by describing as untrue a list of statements made within them. I am not satisfied that it would be appropriate to make such an order. It seems to me to be punitive in character. Accordingly no order of this kind will be made. 57 It was accepted at the conclusion of proceedings that there is no evidence fixing responsibility for the misleading or deceptive representations to any of the second to sixth respondents. Accordingly, the application will be dismissed so far as it concerns the second to sixth respondents. The orders which I will make will apply to the first respondent. I was asked by the respondents not to deal with costs in this judgment. I will hear the parties as to costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

comparison advertising conduct to be judged at time of advertisements and not at point of sale corrective advertising misleading or deceptive conduct

The relief sought includes an order which would have the effect of extending the time by which the tax assessed is to be paid, various declarations of breaches of obligations by the respondent and an injunction restraining the respondent from seeking to enforce the assessment or the penalty assessment or both. Alternatively, that the application be summarily dismissed. It provides, among other things, that the Court may give judgment for a respondent against an applicant if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the proceeding. It provides that a proceeding need not be hopeless or bound to fail for it to have no reasonable prospect of success. 5 It is not necessary for me to consider the extent, if any, to which this section relaxes the well-established test enunciated in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 because I have reached the conclusion, by a reference to that test, that this proceeding must be dismissed. In my opinion, no reasonable cause of action is disclosed in the proceeding. 6 To date, the action has proceeded on affidavits (O 4 r 6). On the hearing of the respondent's application I received affidavits filed and served on behalf of the applicant and affidavits filed and served on behalf of the respondent. I have treated the statements made by the applicant in his affidavits in a similar way to allegations in a statement of claim. In other words, on this application I have taken them to be correct. I have not attempted to resolve any disputed issues of fact, and the respondent did not suggest that it was appropriate that I do that. He was appointed to that position on 18 November 2005. The other directors of the applicant have been directors for a number of years. They are Mr George Charitopoulos and Ms Rosa Charitopoulos. I will refer to them as Mr Charitopoulos' parents. 8 The applicant is the trustee of the Charitopoulos Family Trust. It filed an income tax return in respect of the year ended 30 June 2002 within the time prescribed by the respondent. It disclosed in that return that the trust made a capital gain as a result of the sale of property situated at 91 Exeter Terrace, Dudley Park, South Australia ('the property'). The property was owned by the trust. It was acquired by the trust in 1994 and sold by it on 16 May 2002. In its return, the applicant disclosed the fact that it had made a capital gain of $4.4 million as a result of the sale of the property (s 104-10 of the Income Tax Assessment Act 1997 (Cth) ('the 1997 Act'). It used the method set out in s 102-5 of the 1997 Act. The capital gain of $4.4 million was reduced by 50 per cent under step 3 of the method statement. The resulting figure was reduced by a further 50 per cent under Subdivision 152-C. The resulting figure was then rolled over under Subdivision 152-A. By reason of the above matters, it was said by the applicant that there was no assessable capital gain required to be included in the assessable income of the trust for the year, and the return was correctly prepared on that basis. 10 In its capacity as trustee of the trust, the applicant made a resolution that any income of the trust for the year ended 30 June 2002 would be distributed to beneficiaries of the trust. 11 Between November 2004 and November 2005 the respondent carried out an audit of the applicant's affairs for taxation purposes. Mr Charitopoulos' parents were involved in a group of companies known as 'the Golden Chef Group'. Mr Charitopoulos became involved with the respondent on behalf of the group shortly prior to becoming a director of the applicant on 18 November 2005. He had a telephone conversation with Mr Zoumaras on 17 October 2005. On 20 October 2005, he met with Mr Steven Zoumaras who was a representative of the respondent so that he could deal with any outstanding compliance issues arising between the applicant and the respondent. At the meeting, Mr Charitopoulos agreed to supply to the respondent all matters that were outstanding. He was told by Mr Zoumaras that the respondent would receive the information and would issue an assessment in any event and hold any information provided in the event that the applicant lodged an objection to the notice of assessment. 12 Mr Charitopoulos sent emails to Mr Zoumaras on 26 October and 7 November 2005 respectively. In the email of 7 November 2005 he advised Mr Zoumaras that a package of information was lodged at the Australian Taxation Office at Waymouth Street on 3 November 2005. You are advised that as previously discussed with you and your accountant (KPMG), default assessments are in the process of issuing. The decision to issue default assessments was only taken after repeated efforts by the Australian Tax Office to obtain the relevant information was unsuccessful. You are reminded that at the meeting of the 20 th October 2005, you were advised that the Australian Tax Office was issuing default assessments due to the repeated delays in providing the required information. You were also advised that the assessments would take at least six to more than eight weeks to issue. Further your accountant at KPMG was similarly advised on 17 October 2005. The information you have provided will be held should you wish to lodge objections to the default assessments. 14 On 8 November 2005 the respondent issued and served on the applicant a notice of assessment wherein the respondent determined that the capital gain derived by the trust for the year ended 30 June 2002 was $5,800,000. 15 On 10 November 2005 the applicant wrote to the respondent stating that it exercised its rights under the Freedom of Information Act 1982 (Cth) (' Freedom of Information Act ') to request all calculations as to how the stated amount had been calculated. On 14 November 2005 the respondent wrote to the applicant stating that the request did not meet the requirements of s 15 of the Freedom of Information Act as the applicant had not paid the application fee. On 22 November 2005 the applicant wrote to the respondent enclosing the relevant fee. 16 On 21 November 2005 the respondent wrote to the applicant through its accountants advising the applicant that a default assessment would be prepared by the respondent as the applicant had failed to provide documents relating to the income tax return for the financial year ended 30 June 2002 and that the documents were necessary to determine the applicant's tax-related liability. It advised the applicant that the respondent had made a default assessment of the amount upon which income tax ought to be levied under s 167 of the Income Tax Assessment Act 1936 (Cth) ('the Act') and that the default assessment for the year ended 30 June 2002 had been raised to include a capital gain of $5,800,000, resulting in an increase in the applicant's tax liability by $2,726,000. The respondent advised the applicant that pursuant to Division 6 s 99A of the Act, the applicant would be assessed on its capital gain. The respondent also advised the applicant that a notice of assessment of administrative penalty would also issue shortly. The respondent advised the applicant of its right to object. 17 The applicant asserts that the respondent has incorrectly calculated the capital gain arising from the disposal of the property, and has incorrectly determined that the applicant is not entitled to the various capital gains tax concessions. Furthermore, by reason of the resolution made by the applicant in its capacity as trustee of the trust ([10] above), the applicant asserts that if (which is denied) there is any assessable capital gain required to be included in the assessable income of the trust arising from the sale of the property in the year, then that assessable gain is properly assessable to the beneficiaries under s 97 and s 101 of the Act. In particular, it asserts that there is no taxable income of the trust to which no beneficiary is presently entitled and therefore there is no basis upon which the respondent can assess the taxpayer as liable for tax under s 99A of the Act. 18 On 24 November 2005 the respondent issued a notice of assessment of penalty for having a tax shortfall amount. An explanation of how this penalty was calculated is attached to this notice. 20 In March 2006 the applicant lodged a notice of objection with the respondent and on 5 May 2006 the respondent wrote to the applicant acknowledging receipt of the objection to the assessment made by the respondent on 8 November 2005. On 12 May 2006 the respondent wrote to the applicant advising it that it did not have all the information it needed to make a decision on the objection. The letter noted that the applicant asserted that it had previously provided the missing information to Mr Zoumaras and that Mr Zoumaras confirmed that he did not receive this information. Further correspondence between the parties followed and, in July 2006, the respondent disallowed the objection in full and issued reasons for that decision. 21 The applicant asserts that the officers who issued the reasons for decision did not consider the package of information provided to the respondent by Mr Charitopoulos on or about 3 November 2005. 22 The applicant asserts that the respondent administers the Act, the 1997 Act and the Taxation Administration Act 1953 (Cth) (' Taxation Administration Act ') and is also the person who sets the tax to be paid and penalties for which there is no redress in the Courts before such tax and penalties have to be paid and in those circumstances the decision in relation to the penalty is not independent, objective or impartial. 24 The applicant asserts that in making the assessment and the penalty assessment the respondent has exceeded 'its constitutional and/or jurisdictional limits and acted mala fides '. 25 The applicant states that it proposes to have the decision on its objection reviewed by the Administrative Appeals Tribunal. 26 Bearing in mind the nature of this application and the way the parties have approached it, I do not propose to summarise the evidence put forward by the respondent. 28 First, the applicant claims that the respondent failed to provide particulars of the assessment and the penalty assessment. The applicant claims that particulars of the assessment were not provided in the assessment and then not provided afterwards in response to the request under the Freedom of Information Act . The applicant claims that particulars of the false and misleading statement(s) referred to in the penalty assessment were not provided in that document or afterwards. The applicant was not able to identify any statutory provision requiring the respondent to provide particulars in the assessment or the penalty assessment and a failure to provide particulars after the assessment or penalty assessment were made cannot affect their validity. In theory, a failure to provide particulars might form part of a course of conduct which constitutes bad faith, but there is no evidence of a course of conduct of that nature in this case. 29 Secondly, the applicant claims the penalty assessment is invalid because it is affected by a lack of independence, objectivity and impartiality and that arose because the respondent assesses the tax to be paid and that amount and the penalty assessment have to be paid before the applicant has the opportunity to seek judicial relief. This claim was not developed in submissions and appears to be without substance. It was not put to me that there was a provision of the Act which suggested that the making of the penalty assessment was unlawful and there is no reason to think that it was other than lawful. 30 Thirdly, the applicant claims that for some reason the respondent gave an intimation that it would take six to eight weeks for the assessment to issue and yet it made the assessment well before the expiration of the six to eight-week period. It is unclear why the assessment was made when it was bearing in mind the intimation given by the respondent. It may have had something to do with the respondent's view of the financial position of the applicant or a related entity. However, on an application of this nature it is not for me to make a finding on this issue. I do not think the timing of the assessment affects its validity even in light of the intimation as to when it would issue. If it has any relevance it is linked to the fourth claim which I now turn to consider. 31 Fourthly, the applicant claims that it provided to the respondent what it calls a package of information relevant to the assessment. That was done before the assessment was made. What was in the package of information is unclear, but on this application it is appropriate that I assume that it was information relevant to the assessment. No undertaking was given by the respondent prior to the making of the assessment that the package of information would be considered; in fact, it was made clear that it would not be considered, but held by the respondent pending an objection to the assessment. It is clear from the evidence that inquiries by the respondent and correspondence between the respondent and the applicant concerning the subject matter of the assessment had been going on for nearly a year before the assessment was made. The applicant claims that the respondent's failure to consider the package of information constitutes an arguable case of bad faith or an arguable case of a breach of s 166 of the Act or an arguable case of a breach of the rules of procedural fairness and, in particular, the hearing rule. 32 Cases in which bad faith is established will be rare and extreme and claims of bad faith must be clearly particularised. I do not think the fact that the respondent did not consider the package of information before making the assessment constitutes an arguable case of bad faith. More would be required to give the respondent's conduct even the flavour of bad faith. There is nothing to suggest that the respondent did not genuinely believe that it was entitled to proceed to make the assessment. 33 In the alternative, the applicant submitted that it was arguable that the respondent had acted in breach of s 166. First, s 166 does not in terms impose an obligation on the respondent to consider all information in his possession. He may make his assessment from the return and from any other information in his possession, or 'from any one or more of these sources'. Secondly, even if there was an obligation on the respondent to consider the information, it was an obligation imposed by the Act, and s 175 expressly provides that failure to comply with such an obligation does not affect the validity of the assessment. 35 In the further alternative, the applicant submitted that the failure to consider the package of information constituted a breach of the rules of procedural fairness and, in particular, the hearing rule. It was part of its right to be heard and to put forward and have considered such material as was relevant to its case. This submission raises two questions: was the respondent under an obligation to accord procedural fairness to the applicant before making the assessment and, if so, is a breach of the rules of procedural fairness a ground upon which, arguably, the Court may grant relief under s 39B of the Judiciary Act ? 36 I did not receive detailed submissions on the question whether the rules of procedural fairness and, in particular, the hearing rule applied by reason of the common law to the respondent's decision to make an assessment. The respondent was content to argue its application on the basis that even if they did, they could not form the basis of a challenge under s 39B of the Judiciary Act . 37 In my opinion, there is a good deal to be said for the proposition that the hearing rule has been excluded from a decision to make an assessment. First, the terms of s 175 and s 177 of the Act are such that an assessment, providing it is in law an assessment, is to be treated as valid. 40 The High Court considered the effect s 175 and s 177 of the Act in Richard Walter . At least a majority of the Court considered that an assessment cannot be challenged on an application under s 39B of the Judiciary Act unless one of the three matters identified by Dixon J (as he then was) in R v Hickman; Ex parte Fox and Clinton [1945] HCA 53 ; (1945) 70 CLR 598 (' Hickman ') is established. Deane and Gaudron JJ took a similar view to that expressed by Brennan J. The result of its application is that s 175's protection from invalidity is applicable only if the purported "assessment" (i) is "a bona fide attempt" by the Commissioner or other authorised officer to exercise powers conferred by the Act, (ii) "relates to the subject matter" of the Act and (iii) "is reasonably capable of reference to" those powers. If a purported "assessment" does not satisfy those three requirements, the protection of s 175 will be unavailable and the purported "assessment" will be invalid. That being so, s 177(1) of the Act is inconsistent with s 75(v) of the Constitution to the extent that it purports to make a certificate of the Commissioner or a Second or Deputy Commissioner conclusive evidence of the due making of an assessment in proceedings in the original jurisdiction of this Court under s 75(v) in which it is alleged that the assessment does not satisfy one or more of those requirements. In what follows, references to an assessment (or a determination) not being "bona fide" should be understood as encompassing not only failure to satisfy the first requirement but also a failure to satisfy either the second or third. 43 It seems to me that unless Richard Walter has been overruled by the High Court, it is binding on me and the applicant's claim for relief under s 39B of the Judiciary Act insofar as it is based on an alleged breach of the hearing rule arising at common law cannot succeed. 44 The applicant submitted that the High Court adopted a line of reasoning in Plaintiff S157/2002 v The Commonwealth of Australia [2003] HCA 2 ; (2003) 211 CLR 476 (' S157 ') which suggests a different approach will now be taken to privative clauses or the like than that taken in Richard Walter . In particular, the applicant submitted that the decision in S157 meant a breach of the rules of procedural fairness may not be protected by a privative clause or the like. In S157 , the Court held that the privative clause in the Migration Act did not prevent judicial review of decisions which involved jurisdictional error. 45 Gleeson CJ said that in the particular statutory context of the Migration Act the privative clause did not operate to exclude judicial review for breach of the requirements of natural justice (at 493-494 [35]-[38]). His Honour did not disapprove of Hickman ; he said that as a matter of statutory construction it did not contain the relevant principles for the case before him. He referred to the decision in Richard Walter on two occasions without disapproval (at 484 [11], 488 [19]). Gaudron, McHugh, Gummow, Kirby and Hayne JJ said that Hickman was not a principle but 'simply a rule of construction allowing for the reconciliation of apparently conflicting statutory provisions' (at 501 [60]). There is no general rule as to the meaning or effect of a privative clause. Callinan J adopted a similar approach (at 533-534 [159]). 47 I do not think that the decision in S157 throws any doubt on the particular principles to be applied to the provisions of the Act as enunciated by the High Court in Richard Walter . That is, to successfully challenge an assessment, one of the Hickman provisos must be established. That is the view taken in other decisions of this Court: Engler v Commissioner of Taxation (No 2) (2003) 52 ATR 642 at [44] per French J; Deputy Commissioner of Taxation v Warrick (No 2) (2004) 56 ATR 371 at [77]-[86] per French J. In any event, even if there was reason to think the High Court might not follow Richard Walter , until that Court overrules the decision I am bound to follow it. There is no arguable case of bad faith. There is no arguable case of a breach of s 166 and, even if there was, there is no arguable case that such a breach affects the validity of the assessment. Even if at common law there was an obligation to observe the hearing rule in connection with the making of an assessment the decision in Richard Walter means that there is no arguable case that a breach of such an obligation can form the basis of a successful challenge under s 39B of the Judiciary Act . In those circumstances, an order should be made dismissing the proceeding. I will hear the parties as to costs and other orders. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

income tax assessment where applicant company trustee for family trust where trust realised capital gain from the sale of real property where respondent issued assessment and penalty assessment where the applicant challenges the assessment and penalty assessment where applicant claims to have provided package of information to respondent prior to assessment where applicant claims respondent did not take information into account where applicant lodged notice of objection with respondent where respondent disallowed objection and upheld assessment where applicant claims respondent failed to provide particulars of assessment and penalty assessment where applicant claims failure to consider package of information amounted to bad faith or breach of rules of procedural fairness where applicant makes other claims application by respondent for summary dismissal of proceeding whether applicant's claims arguable whether respondent under an obligation to accord procedural fairness before making assessment whether breach of rules of procedural fairness a basis for relief under s 39b of judiciary act 1903 (cth) in circumstances effect of ss 175 and 177 of income tax assessment act 1936 (cth). taxation

The Principal Member had dismissed Mr Rodda's application to the Veterans' Review Board ('the Board') for review of a decision of the Repatriation Commission ('the Commission'). 2 At issue is the proper construction of s 155AA and s 155AC of the Veterans' Entitlements Act 1986 ('the Act'). He applied for an increase in a pension accorded him by the Commission under the Act and sought acceptance of a range of new medical claims. Mr Rodda's entitlement to an increased pension was calculated accordingly. This letter was treated by the respondents (and, before me, by all parties) as an application to the Board for review of the Commission's decision. 6 On 19 December 2002 the Board received a signed form from Mr Rodda stating that Mr David Woodcock of the Coffs Harbour Returned Services League ('RSL') Sub-Branch would represent him at his review hearing. The form also stated that Mr Woodcock would advise the Board when both men were ready for a hearing to be arranged. 7 On 8 January 2003 the Board wrote to Mr Rodda informing him that his application would be listed for hearing as soon as his representative sent a 'Certificate of Readiness'. A copy of that letter was also sent to Mr Woodcock, as was a 'Certificate of Readiness for Hearing' form, under cover of a letter requesting that Mr Woodcock return the form once the application was ready for hearing. 8 For two years the Board did not hear from either Mr Rodda or Mr Woodcock. The Board then wrote to Mr Rodda asking him to contact Mr Woodcock and have Mr Woodcock lodge a 'Certificate of Readiness' if the matter was ready to proceed to hearing, or, if it was not ready, to indicate when he expected that the matter would be ready. A copy of that letter was also sent to Mr Woodcock. 9 Eight months later, on 20 October 2004, the Board's Registrar sent Mr Rodda a 'Notice under section 155AA Veterans' Entitlements Act 1986 '. The notice required Mr Rodda to inform the Board as to whether his application was ready to proceed to hearing or, alternatively, whether he wished to withdraw it, or finally, if he wished to continue with the application but was not yet ready to proceed, to provide a reasonable explanation for the delay. Two documents, entitled 'Form 1' and 'Form 2' respectively, were enclosed with the notice for the purposes of this information being supplied. The s 155AA notice explained that Mr Rodda could complete and return Form 1 himself, or alternatively, Mr Rodda could authorise someone else to represent him in relation to the notice by using Form 2. The authorisation must be in writing. Form 2 is enclosed for this purpose. You should not send Form 2 back to me. You should give it to the person you have authorised to represent you so that he or she can send it to me together with the statement I have requested within the 28 days allowed. If you choose to be represented in relation to this notice and your representative fails to respond or does not provide a reasonable explanation within the 28 days, your application must be dismissed. ' (Original emphasis. 10 On receiving the s 155AA notice, Mr Rodda contacted Mr Woodcock immediately. I asked him if I should sign the document and bring it down to him. He replied, "No, we don't need to do that, I'll take care of it. Don't you do anything! " I then replied "OK then if that's what you think is the way to go that's OK with me. " I concurred with what Mr Woodcock suggested should occur in that he knew better than I. I had complete faith in Mr Woodcock's advice and I was happy for him to deal with it. Mr Woodcock said that he had been 'in and out of hospital', and that a ' s 31 review' had already been submitted on behalf of Mr Rodda. (Section 31 of the Act permits the Commission to review its own previous decisions). An extension of time was also requested. The Board's Registrar replied the following day, saying that the Act required Form 2 to be completed, and in particular, 'Mr Rodda's appointment of you to respond to the Notice ... as well as your response'. The Registrar explained that arranging for Mr Rodda to complete Form 1 was an alternative, and outlined the requirements for completing that particular form. In concluding the email, the Registrar reiterated that 'the Act requires that things be done this way'. 12 On 19 November 2004, the Board received back the Form 1 and Form 2 documents, both of which had been completed by Mr Woodcock. The authorisation section of the Form 2 document that was required to be completed by Mr Rodda had been left blank. On that same day the Registrar sent Mr Woodcock another email which spelled out the requirements for completing the forms again. 13 On 13 January 2005, Mr Rodda's application for review of the Commission's decision was dismissed because the delegate had not received a written statement from Mr Rodda, or from a representative authorised for that purpose, as was required by s 155AA(5). 14 Mr Rodda had turned 65 on 18 December 2002. The Act places more onerous eligibility requirements for the (higher) Intermediate or Special rates of pension on applicants aged 65 years and over: see s 23(3A) and (3B), and s 24(2A) and (2B), so that it would now be significantly harder for Mr Rodda to qualify for those higher rates. 16 Section 135 provides that applications may be made to the Board for review of pension decisions made by the Commission. Section 136 requires that applications be in writing and be submitted to an office of the Department. 17 Section 147 deals with representation before the Board generally. Subsection (1) provides that the parties are the applicant for the review and the Commission. A party to a review may 'appear in person, or be represented at the party's own expense by a person other than a legal practitioner, at any hearing of the review': s 147(2)(a). A party to a review may also make such submissions, in writing, to the Board, as the party, or the party's representative, considers relevant to the review: s 147(2)(b). It appears that the note forms part of the text of s 147. Indeed, the Explanatory Memorandum to the Veterans' Affairs Legislation Amendment Act 1992 (Cth) ('Amendment Act') which inserted the dismissal provisions, addressed the purpose of that note, stating that the amending Act 'will insert a note at the end of section 147 to alert the reader to the separate provisions relating to representation for the purposes of notices given under the new provisions'. 18 The Board is given power by s 155AA to dismiss an application following a 'standard review period'. Such a period is defined as the period of two years after the day on which the application for review was received at an office of the Department. Subsection 155AA(4) requires that if, at the conclusion of the standard review period, the Principal Member considers that the application should be ready for hearing, the Principal Member 'must' issue the applicant a written notice requesting a written statement in response within 28 days indicating readiness for hearing, or an explanation for unreadiness. If a written statement is not provided within 28 days, the Principal Member must dismiss the application: s 155AA(5). 19 Section 155AC deals with an applicant's representation in relation to a notice issued under s 155AA. Subsection 155AC(1) provides that an applicant for review may authorise another person to represent him or her in relation to a s 155AA(4) notice. The authorisation must be in writing: (subs (2)), and can only be conferred once the applicant has received the notice: (subs (3)). If the Principal Member has approved a form for the purpose of authorising a representative under subs (1), then that form must be used: subs (4). 20 As mentioned above, the Amendment Act introduced s 155AC into the Act. The amendments will provide that it is only after a notice has been given to an applicant under the dismissal provisions that a specific authority can be given for a person to act on the applicant's behalf in such matters. Where an applicant wishes to be represented in relation to a notice, the authorisation can be made only after the notice has been given, and it must be in accordance with a form, if any, approved by the Principal Member. ' (Original emphasis. Evidence from both Mr Rodda and Mr Woodcock was before the Tribunal. 23 The Tribunal Member accepted that when Mr Rodda received the notice he contacted Mr Woodcock promptly and that Mr Woodcock told Mr Rodda that he would 'take care of it'. The Member also accepted that Mr Woodcock had undertaken training provided by the Department of Veterans' Affairs in the procedures relevant to an application to the Board. She also accepted that Mr Woodcock suffered from ill-health. 24 However, the application for review was dismissed. The Tribunal Member found that the Board's Principal Member had been obliged to dismiss Mr Rodda's application. 25 In reaching this conclusion, several factors were noted. First, the Tribunal Member said that the repeated use of the word 'must' in s 155AA and s 155AC, was indicative of the sections' imperative quality. While the Act's 'beneficial' purpose was recognised, the Tribunal noted that s 155AA and s 155AC were introduced with the specific aim of freeing-up the Board's resources. It was said that the introduction of these provisions in substitution for earlier sections was designed to 'clarify the earlier provisions' and (to quote the Act's Explanatory Memorandum) to 'remove any uncertainty about the scope of the dismissal provisions'. The Tribunal Member also considered that the requirement that the authority to act be in writing underlined the seriousness of that authorisation. The implications for Mr Rodda of the dismissal --- insofar as they affected his eligibility for the Special Rate of pension as opposed to his scope for obtaining payment at a higher rate --- were not clear, however the Tribunal Member noted that it was possible for individuals to make another claim after an application has been dismissed under s 155AA. (The age 65 barrier to the higher types of pension rate would, however, still apply). Finally, the Tribunal considered that the requirement that a period of two years must elapse before a dismissal notice under s 155AA may be sent was lengthy and generous. Is an authorised person's reply to a dismissal notice under s 155AA of the Act of no effect where the applicant has only orally authorised the person to reply on his or her behalf? In other words: was the oral authorisation given by Mr Rodda to Mr Woodcock sufficient notwithstanding s 155AC(2), such that Mr Woodcock's response to the notice was valid? The Tribunal Member had accepted that when Mr Rodda received the notice he contacted Mr Woodcock promptly and that Mr Woodcock told Mr Rodda that he would 'take care of it'. The applicant submitted that it follows that the Tribunal must have accepted Mr Rodda's evidence that he orally authorised Mr Woodcock to respond to the notice on his behalf. The respondent disputes that there was any authorisation, but it seems to me that, on a fair reading of the Tribunal's decision in its evidentiary context, the Tribunal accepted that there had been such an authorisation and that such a conclusion was open to the Tribunal. 28 A second preliminary point was raised in relation to s 147. The applicant submitted that the Note following s 147 introduced some ambiguity as to whether the reference to 'another person' referred to a person other than the applicant, or, to a person other than a person representing the applicant under s 147. However, the applicant conceded, properly in my view, that it is clear from s 155AC(3) that the Note in s 147 refers to a person other than the applicant . Mr Woodcock, undoubtedly Mr Rodda's representative for the purposes of s 147, gave evidence that he thought the Note meant the latter alternative. He believed, therefore, that because he had been authorised under s 147, there was no need to be authorised again. 29 In relation to the main issue, the applicant pointed out that both the Court and the Tribunal have disavowed a technical and narrow construction of the dismissal provision and have required a beneficial approach in construing it: Re Linnehan & Veterans' Review Board and Repatriation Commission (1991) 24 ALD 376 at 380; Repatriation Commission v Allen & Veterans' Review Board (1995) 38 ALD 557 at 563; Johnson v Veterans' Review Board (2002) 71 ALD 16 at 25; and Johnson v Veterans' Review Board [2003] FCAFC 89 ; (2003) 129 FCR 197 at [49] . Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. ... In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute". ' (Footnotes omitted. In this regard, reliance was placed on the decision of the Full Court in Formosa v Secretary, Department of Social Security (1998) 46 FCR 117, wherein the Court considered (at 122) that there was much force in the view that the distinction between 'mandatory' and 'directory' requirements had its meaning and utility primarily upon consideration of the consequences of a breach. The applicant also relied on Hall v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 415 ; (2000) 97 FCR 387 at [11] in which Finkelstein J held that: 'what must be determined is the consequence of a failure to comply with such an instruction. ... It is also important, no doubt, to consider the consequences of a failure to adhere strictly to the requirements of the Act'. The legislature, it was submitted, had not addressed the consequences of non-compliance with the requirement for written authorisation of s 155AC representative. The Act does not expressly provide whether such non-compliance leads to the validity or invalidity of a response otherwise authorised. 32 The applicant submitted that several factors indicate that actual but informal authorisation ought not invalidate the response given: the scope and object of the whole statute; the language of the relevant provisions; the nature of the preconditions and their place in the legislative scheme; the consequences if the response was invalid; and finally, the consequences if the response was valid. 33 As to the scope and object of the whole statute, the applicant rightly characterised the Act as 'beneficial legislation', to be interpreted liberally, and in a manner that facilitates the provision of benefits to eligible veterans. 34 In relation to the language of the relevant provisions, the applicant argued that while the provisions repeatedly use the imperative 'must', that factor does not, of itself, determine whether the response given by Mr Rodda's representative is invalid. Rather, what has to be considered are the consequences of a failure to comply with such an instruction and the consequences of requiring compliance, regardless of the circumstances. 35 In relation to the preconditions and their place in the legislative scheme, the applicant accepted that, at a general level, the provisions are designed to enable the Board to dispose of cases that are not being pursued actively. However, the applicant submitted that the Explanatory Memorandum makes clear that the requirement for a written authorisation under s 155AC(2) exists to protect applicants, because of the importance of that response to an applicant. Consequently, the essential requirement is authorisation in fact, which was given in Mr Rodda's case. The requirement for it to be in writing was to protect Mr Rodda. It is not a provision cardinal to the objective of the statute. The applicant argued that it is unlikely that Parliament intended that a failure to comply with a provision to protect applicants could lead to their applications being dismissed and a response, actually authorised by an applicant, being rendered invalid and of no effect. 36 The applicant also drew attention to the context in which the Act was created. Parliament would be aware that many veterans are now elderly; s 147(2) --- which prohibits representation before the Board by persons with legal qualifications --- argued against excessive concern with formalities. It is a well-known feature of Board proceedings that much of the advice available to applicants is provided by volunteers, many of whom lack legal expertise in reading legislation and case law, and in addition, are veterans with their own problems. Such a system has been institutionalised, with the Department sponsoring training for those volunteers who provide assistance. It cannot have been Parliament's intention that the dismissal provisions be implemented in a 'too technical and narrow way' when veterans before the Board are often so represented and advised. 37 The applicant argued that the consequences of treating a response such as Mr Rodda's as invalid were too unfair to have been intended by Parliament. Because the age of the veteran at the time at which the form is lodged can affect the veteran's eligibility for a pension under s 23 or s 24 of the Act, dismissing an informally authorised response as invalid could, as here, have a profound effect on a veteran who had reached 65 but whose claim had been lodged before he or she reached that age. 38 The applicant submitted that the Tribunal failed to consider the loss of benefits that could potentially flow from its interpretation of s 155AC; Mr Rodda's age had been overlooked. At the time of the hearing, 100 percent of the General Rate of pension amounted to $303.90 a fortnight. By contrast, the Special Rate of pension conferred $816.20 per fortnight on recipients. In light of these figures, if the dismissal of Mr Rodda's application in fact prevented him from qualifying for the Special Rate of pension, and he lived to age 80, he would lose approximately $200 000 in tax-free pension. Individuals not already in receipt of a pension could stand potentially to lose even more. The potential for an adverse construction of s 155AC to have profound financial consequences for veterans was said to tell against such an interpretation being made. 39 The applicant submitted that holding responses such as Mr Rodda's to be valid would not overburden the Board. Little loss of administrative efficiency would occur if the Principal Member had to obtain written confirmation from an applicant that an allegedly authorised response received from another person had been specifically authorised after the s 155AA(4) notice had been received by the applicant. Moreover, whether or not there is a need for further information or action by the Principal Member would turn on the particular issues that might arise, but they do not go to the validity of the response. '[I]mperative language' of the kind considered in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 is used in ss 155AA(5), 155AC(2) and 155AC(4). The Explanatory Memorandum showed that the legislature had deliberately chosen the most definitive possible means of ensuring that a veteran's representative is authorised. Because Project Blue Sky (at [78]) mandates that the Court has a duty to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have, any attempt to read down the requirement for an authorisation in writing would defeat the intention of s 155AC. Reliance was also placed on the statement by the High Court in Project Blue Sky (at [78]) that: 'Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision'. 41 In this respect, the Commission submitted that it would be impossible to think that Parliament intended to create a provision that said merely, 'You must to this', but then abandon that requirement in situations where a person had been misadvised to the contrary. Parliament was not likely to have used mandatory language such as 'must' if it intended to undercut or relax that imperative in certain sets of circumstances. 42 The Commission submitted that the requirement for writing serves both the interests of applicants and the Board. The exercise of providing a written authority was intended to bring home to the applicant the significance of his/her situation, and protect him/her from the activities of unauthorised persons. The corollary of this is that a written authority also enables the Board to be confident that a representative who submits a written statement on behalf of an applicant has been duly authorised. It is clear from the Explanatory Memorandum that it is the Principal Member who must be satisfied that a representative is duly authorised because the Principal Member is placed under a statutory compulsion , rather than given a discretion, to dismiss the matter in certain circumstances. It is no answer to say that at some later stage a person might send a written authority: the statutory scheme is predicated on the basis that, after a delay of at least two years, there are 28 days in which to comply, and at that point the Principal Member comes under a mandatory duty to act. 43 The Commission also argued that 'substantial compliance' with the provisions of s 155AC were not sufficient to validate a response. The requirement in s 155AC(2) that an authorisation be made in writing is, like the requirement that was considered in Tasker at 25D-E, a requirement 'of a kind which does not admit of substantial compliance. There will either be strict compliance or non-compliance'. In the present case it was said that there was non-compliance. 44 The Commission conceded that the Act was beneficial legislation. However, this characterisation did not permit an interpretation that would allow the substitution of the words 'an authorisation may be given orally' for the statutory mandate that 'an authorisation ... must be in writing'. The fair meaning of the language must be kept in mind. 45 While the purpose of the Act is to make provision for the payment of pensions to veterans and certain others, eligibility criteria confine the circumstances in which pensions and benefits are payable, and mandatory requirements exist in respect of such matters as the lodgment of various types of claims and applications. The Commission submitted that the lawful exercise of those powers and discretions by the Commission and the Board is subject to those mandatory requirements. It is inappropriate to characterise a provision such as s 155AC(2) as a 'procedural technicality'. Rather, it touches the Board's jurisdiction. 46 Further, the Commission submitted that the clear Parliamentary intention underpinning s 155AA and s 155AC was the facilitation of the dismissal of applications for review that had not been prosecuted for a period of at least two years. Subsection 155AC(5) compels the Principal Member to dismiss the application for review if a response has not been received within 28 days. The Commission contended that there is no support in the Act or the Explanatory Memorandum for the proposition that Parliament intended the Principal Member to make further inquiries before dismissing an application in accordance with s 155AC(5). While detrimental consequences could, in some cases, follow the dismissal of an application for review under s 155AA, the provisions should not be read down to remove those disadvantages. The Commission conceded that a dismissal does bring a veteran's then existing entitlements to an end, but noted that a fresh claim or application may be lodged in relation to the same medical condition. Consequently, the disadvantage principally takes the form of lost entitlement to back payments of pension that would have been paid if the application for review had remained on foot and if the applicant had succeeded before the Board. 48 In relation to the question of representation, the prohibition on legal representation in the veterans' jurisdiction had a long history and continued to operate at the insistence of the major veterans' organisation. While the work performed by lay representatives is often of much assistance to applicants and to the Board, the fact is that some representatives are less experienced and less capable than others. 49 It was submitted that the Explanatory Memorandum makes clear that s 155AC was introduced to avoid the risk of representatives acting without specific authorisation, and to ensure that the Principal Member is able to rely on the statement lodged on behalf of the applicant for the purposes of determining whether the application for review should be dismissed. 50 As such, these requirements afford protection to applicants and enable the Principal Member to be sure that the response, if any, that has been received was properly authorised. This was said to be particularly important when it is remembered that representatives are not legally qualified, need not have had any training, and are not governed by professional standard or rules of ethical conduct. 51 Consequently, it was submitted, the requirement that an approval be in accordance with a form approved by the Principal Member assists to avoid any ambiguity regarding the scope and effect of a purported authorisation. As a matter of principle, what both counsel had to say about that case is correct. The relevant matters are summarised at [32] above. The difficulty is their application to the facts of this case. 53 Neither the Tribunal's (and the respondents') interpretation, nor that of the applicant, yields a wholly satisfactory result. The result of the Tribunal's interpretation is that a veteran may lose some valuable substantial rights for merely procedural failures. 54 The result of the applicant's interpretation is that a practical burden would be imposed on the Principal Member either to establish somehow that an applicant for review has not, orally or by conduct, authorised a purported representative, or to require the purported representative to obtain the applicant's written authorisation after the expiry of the 28 day period. (The Registrar in this case required that of the purported representative within the 28 day period). 55 Regrettably for the applicant, it seems to me legally necessary that the respondents' interpretation must be regarded as the less unsatisfactory one and, therefore, is the interpretation that must prevail. Notwithstanding that the Act was intended beneficially for veterans, there are three reasons for this. 56 The first is that, if the applicant's submissions are accepted, the Act's specific and detailed provisions are set at nought. Those provisions allow a two year delay; provide for formal notice from the Principal Member of the Board; require specific written authorisation of a purported representative; and then mandate dismissal of the review application after 28 days. The Principal Member would, on the applicant's approach, be required after such 28 day period at least to go through the whole notification process again and perhaps do more, in an inquisitorial fashion, to establish from the applicant personally whether a purported representative was actually authorised. The express statutory scheme would be rendered pointless. 57 The second reason is that the result which follows for the applicant is not so unexpected that it might have, as it were, passed under the radar of parliamentarians when they enacted the relevant dispositive amendments. It is a well-known incident of the repatriation pension schemes that claimants aged over 65 have much greater difficulty qualifying for a 'TPI pension' at the higher rates. It is obvious enough that a two year plus delay could push a claimant past that age limit. There can be no confident attribution to Parliament of an intention that the disentitling provisions, themselves dependent upon procedural steps, should, on that account, not have what appears to be their plainly intended effect. 58 The third is that, in many fields of legal entitlement to monetary benefits, it is a common consequence of a failure to comply with procedural steps, with which a claimant has a duty to comply, that the entitlements may be lost. A generous balance has here been made by the legislature: over two years to progress a review application and minimal procedural responsibilities placed on a review applicant to avoid summary dismissal of his/her application after that time. The provisions are aimed at both requiring the dismissal by the Principal Member of long outstanding claims not being duly prosecuted and avoiding such dismissal only where there is clearly and reliably presented to the Principal Member a satisfactory response for which an applicant actually takes personal responsibility. The means of assuring such reliability to the Principal Member is that the applicant must specifically authorise such a response, authorise it separately from instructing his/her general representative in relation to the claimed review, and do so in writing. Nevertheless those responsibilities are actually placed on applicants. There is insufficient reason to ascribe a parliamentary intention to waive those responsibilities when they have not been met, where it later emerges that the applicant was content to stand by what the representative had to say. 59 I do not wish to add any element of criticism of Mr Rodda to his lack of success. However, I should note that this is not a case of a review applicant who has done everything that he could in the circumstances. The case, for example, of a veteran who had authorised the representative in writing but, through infirmity, had been unable to get the written authorisation back to the Board in time might possibly stand in a different position. Such a case may be decided if and when it arises. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

veterans entitlements pensions for veterans requirement of written authorisation for representation before veterans' review board in relation to s 155aa notice interpretation of s 155aa and s 155ac of the veterans' entitlements act 1986 (cth) defence and war

The respondents are, respectively, the daughter and son of the bankrupt. The contract provided for a purchase price of $500,000. The applicant, Mr McBain, is the trustee in bankruptcy of the estate of the bankrupt. Mr McBain applied to the Court for orders, including the following: This proceeding raises the following two issues for determination: was the transfer effected for less than the April 2002 market value of the property? was the bankrupt solvent at the time of the transfer? Mr McNamara is a certified valuer. He provided a report in which he valued the property, as at 10 April 2002, at $490,000. Mr McBain relied on the evidence of Mr Cripps and Mr Edwards. Mr Cripps is a certified valuer. He provided a report in which he valued the property, as at 10 April 2002, at $1,000,000. Mr Edwards is also a certified valuer. He provided a report in which he valued the property, as at 10 April 2002, at between $690,000 to $790,000. The government valuation for the property, as at 10 April 2002, was $500,000. This fact is of little weight as Mr Cripps gave uncontradicted evidence that, until recently, government valuations had no capacity to keep pace with market movements. Mr McNamara agreed with a proposition put to him, in cross-examination, that the most appropriate method of performing a valuation involves consideration of comparable sales. According to the evidence of Mr Edwards, which I accept, the most comparable sale disclosed in the evidence was the sale of a neighbouring property situated at 765 Rifle Range Road, Sandford ("765"). 765 was sold in July 2001 for $575,000. It consists of 103.3 hectares. Mr Cripps gave evidence, which I accept, that 765 is a much inferior property to the property sold by the bankrupt. As Mr McNamara conceded, 765 has inferior foreshore, beach access and views to that of the bankrupt's neighbouring property. 765 was capable of being sub-divided, but I accept the evidence of Mr Cripps that no-one would have paid more for that property for the potential of sub-division, as distinct from its use as a single parcel. As at April 2002, the bankrupt's property was a "lifestyle property", with no sub-divisional potential. Mr McNamara believed that the potential for sub-division enhanced the value of 765. I do not accept that evidence. I prefer the evidence of Mr Cripps that sub-dividing 765 would not have added to its value. This is based on Mr Cripps' unchallenged evidence that the highest and best use of 765 was without sub-division at the relevant time. He gave the same unchallenged evidence concerning the subject property. Mr McNamara's view about the value of 765 was influenced by his understanding that approval had been given to sub-divide the property. When pressed, Mr McNamara conceded that the information that led him to come to that view was gained from an optimistic surveyor. On a balance of probabilities, taking into account all of the valuation evidence, I consider that the market value of the bankrupt's former property exceeded $500,000 as at 10 April 2002. I consider that the valuation provided by Mr Edwards after a mature consideration of the competing valuers provided by the two experts to be the most reliable valuation. Accordingly, in the context of s 120(1)(b) of the Act, the respondents gave consideration of less than the market value of the property. Subsection 5(2) provides that "a person is solvent if, and only if, the person is able to pay all the person's debts, as and when they become due and payable" (emphasis omitted). Subsection 5(1) provides that "'[d]ebt'" includes liability". It distinguishes a provable debt by stating that "'[p]rovable debt' means a debt or liability that is, under this Act, provable in bankruptcy". Subsection 5(3) provides that "a person who is not solvent is insolvent" (emphasis omitted). The respondents bear the onus of proving that, as at April 2002, the bankrupt was solvent. This involves a consideration of his assets and debts as at that date. Debts include liabilities. Unless a contrary intention is evident, the general includes the specific. A critical issue for determination in the proceeding is the identity of the bankrupt's liabilities at the relevant time. Those paragraphs are set out below. They relate to the Corporations Act 2001 (Cth) ("the Corporations Act "), but are applicable to like considerations which arise under the bankruptcy legislation. First, the words of s 95A must be construed as they stand, without addition or subtraction. In considering the company's financial position as a whole, the Court must have regard to commercial realities. The question arises retrospectively where, for example, a liquidator is seeking to recover an unfair preference or to set aside an insolvent transaction so that the issue is solvency as at a date prior to the winding up. The question may arise prospectively where a company is sought to be wound up in insolvency and the company's ability to pay its debts must be determined not only by reference to debts payable as at the date of trial but also by reference to its ability to pay debts which will fall for payment some time in the near future. One can see the whole picture, both before, as at and after the alleged date of insolvency. The Court will be able to see whether as at the alleged date of insolvency the company was, or was not, actually paying all of its debts as they fell due and whether it did, or did not, actually pay all those debts which, although not due as at the alleged date of insolvency, nevertheless became due at a time which, as a matter of commercial reality and common sense, had to be considered as at the date of insolvency. By reference to what actually happened, rather than to conflicting experts' opinions as to the implications of balance sheets, the court's task in assessing insolvency as at the alleged date should not be very difficult. Resources available to the bankrupt, whether by cash or realisation of assets or by borrowing upon security, are to be taken into account. With hindsight, the bankrupt's ability to pay his debts as and when they fall due is to be assessed. The cash flow test is not simply an assessment of the bankrupt's debts due and cash available to pay them on one day fixed in time, but involves a forward looking assessment of the bankrupt's ability to pay his debts as and when they fall due in the not distant future. Debts are not simply "debts 'then' payable, but...debts 'as they become due' --- a phrase which looks to the future" (Griffiths CJ in Bank of Australasia v Hall [1907] HCA 78 ; (1907) 4 CLR 1514 at 1527). The identification of the bankrupt's contingent and prospective liabilities as at 10 April 2002 and the extent to which they may be considered as part of his debts, at that time, is a crucial matter for determination. The weight of authority suggests that contingent or prospective liabilities may be included as part of a person's debts provided that there is a real likelihood of them being established. In Re Saebar; Official Receiver v Saebar (1971) 18 FLR 317 , Hoare J was concerned with the predecessor version of s 120. In that form, the exception currently found in s 120(3)(b) was found in s 120(2)(a). The exception provided that the transfer would not be void if the party claiming under the transfer could prove "that the settlor was, at the time of making the settlement, able to pay all his debts without the aid of the property comprised in the settlement". As in the current Act, "debt" was defined to include a liability. In that case, the prospective liability at issue was a liability to pay damages for a personal injury, where judgment had not yet been entered. The question before Hoare J was whether a liability extended to contingent and prospective liabilities. His Honour held that a prospective liability should be taken into account in determining "all of the debts" of the settlor if, considering the whole of the circumstances, there is a real likelihood of the prospective liability becoming, in due course, an actual liability. According to Hoare J, prospective liabilities may be ignored if they are "purely speculative and without any real likelihood of being established" (at 322). It should be noted that the test for insolvency at that time was a cash flow test which is the same test required by the current Act and the Corporations Act . In Re Hyams; Official Reciever v Hyams (1971) 19 FLR 232 , Gibbs J similarly held that when determining the debts of a settlor for the purposes of s 94(1) of the Bankruptcy Act 1924 (Cth), contingent liabilities should be considered if there was a reasonable possibility that the settlor would have had to meet them at the time. That case dealt with a contingent liability arising from a guarantee and as such it was a liability that could be easily quantified. In any event, Gibbs J did not limit his relevant observations to cases so quantifiable. Justice Davies' judgment in Re Cao, ex parte Dixon v Cao [1994] FCA 536 provides an interesting analysis of the case law dealing with the inclusion of contingent liabilities in the assessment of insolvency for the purposes of s 120 of the Act. His Honour relied on this extract by Cotton LJ in Re Ridler; Ridler v Ridler (1882) 22 Ch.D. A man is not at liberty to take a sanguine view, but is bound to act upon a reasonable view of what is likely to happen. Justice Einfeld in Re Finney; Official Trustee in Bankruptcy v Finney (1996) 35 ATR 259 endorsed the decision in Re Cao and also relied on the decisions in Re Saebar and Re Hyams in holding that contingent and prospective liabilities are relevant debts for the exercise of determining solvency pursuant to s 120 of the Act. At 270, Einfeld J said, "[i]t is clear law that a prospective liability for a debt should only be disregarded if it is purely speculative and without any real likelihood of being imposed". In White Constructions (ACT) Pty Ltd (In Liq) v White [2004] NSWSC 71 ; (2004) 49 ACSR 220 , McDougall J distinguished the circumstances of the case before him from those of both Re Saebar and Re Hyams . White Constructions concerned the solvency of a company for the purposes of the Corporations Act and relying on the definition of solvency in s 95A of that Act. They do not show that a claim for unliquidated damages is a debt, let alone a debt that is due and payable. I therefore do not think that the decisions are of direct relevance to the issue of insolvency as it has been framed. The respondents rely on Box Valley Pty Ltd v Kidd [2006] NSWCA 26 as an answer to the authorities reviewed above. That judgment dealt with whether a contingent liability arising from a default clause in a forward sales contract before a default notice has been given constitutes a debt for the purposes of s 95A of the Corporations Act . The New South Wales Court of Appeal determined that it did not because it was an unliquidated claim for damages that was not yet quantified. At [14], Bryson JA said: "The word 'debt' is used in s 95A of the Corporations Act without any supporting definition. An entitlement to claim damages for breach of a contractual obligation to sell and deliver goods is not a debt within the ordinary meaning of that word. " Section 95A of the Corporations Act defines solvency and insolvency in the same terms as ss 5(2) and (3) of the Act. In contrast to the Act, the Corporations Act does not define debt to include liability. I am persuaded, having regard to the above analysis, that the proper view of the authorities on this question is that the principles enunciated in the early 1970s in Re Saebar and Re Hyams are still good law and should be applied, as they were in Re Finney . What debts, including contingent liabilities, did John Turner have? The bankrupt's only immediate debt was the amount of $31,554.09 to the National Australia Bank which was secured by way of mortgage over the property at 31 Beddome Street, Sandy Bay. There are a number of possible sources of prospective or contingent liabilities of the bankrupt as at April 2002. I will deal in order with these possible sources. While the fund had operated for many years before, it was registered with the Law Society of Tasmania as a controlled fund and operated as such from 4 January 1995. The bankrupt was one of two partners of PWB who were responsible for the running of the Fund, on behalf of the firm as a whole. On 2 November 1998, PWB first reported to the Law Society that the Fund was in trouble. The Fund ceased accepting deposits and lending monies in November 1998 as a result of significant borrower defaults. In a notice to investors dated 6 November 1998, PWB advised investors with monies invested in defaulting loans of that fact and that "investors will be unable to withdraw their money until either we are satisfied that the borrower has and will continue to meet its obligations under the loan or until the mortgaged property or properties which secure the loan have been sold" (original emphasis). When the shortfall in the Fund became well known, there was a run on the Fund with many investors demanding that PWB return their invested monies. PWB was not in a financial position to meet those demands. It is contended by the applicant that PWB was contractually obliged to refund investors' monies within one month of the investor giving notice of its demand. Justice Crawford, as his Honour then was, made factual findings to this effect in Law Society of Tasmania v Turner [2001] TASSC 129 ; (2001) 11 Tas R 1 at [7] . Investors were provided by PWB with a "PWB Mortgage Register Information Sheet" and with a "Mortgage Investment Form" to sign. Though these forms appear to have changed slightly over time, they are, in all relevant respects, the same. The Information Sheet states that the terms of the investment are contained in the Investment Form and the Information Sheet. The Information Sheet contains a term, under the heading "Withdrawals" that "[o]ne month's notice is required for both partial and total withdrawal of funds". The respondents contend for an interpretation of this term that is both contrary to the finding of Crawford J and contrary to the plain meaning of the document. They submit that, read in conjunction with another section of the Information Sheet which is headed 'Loan Advances' and states "[l]oan advances are interest only and repayable on demand. Capital repayments are accepted subject to notice", one should understand the 'Withdrawals' term to refer to the loans made by PWB to borrowers on behalf of the investors, not to funds invested with PWB and repayable by PWB. I do not accept this submission. PWB was liable to investors for the repayment of their monies on one month's notice. Investors had a cause of action for breach of contract against PWB as at April 2002. There is no evidence as to how many investors made demands for the return of their money and what amounts were demanded and were unpaid, although it may be inferred that investors with a right to seek a repayment of their funds would have pursued their return in the absence of any other method of recovery. It does not stand to reason, as a matter of commercial reality, that they would not have pursued PWB for a return of their funds. I am satisfied that the shortfall in funds owed by PWB to investors was significant. Even on the basis of the most conservative estimate, they were in the realm of $6.4 million. That figure is reached by calculating the defaults in the problem loan reports prepared by PWB's external accountant, Mr Robinson, for the Law Society of Tasmania. PWB itself provided the figure of a $6.87 million shortfall in its report to the Australian Securities and Investments Commission of 14 September 2001. Mr Hamilton, appointed by the Court as liquidator of the Fund pursuant to s 601EE of the Corporations Act , came to a balance of unpaid investor funds of $9.8 million. It is not necessary to make an exact determination of what the claims might have been worth. I am satisfied on this evidence that there was a shortfall of at least $6.4 million and that actions by the investors to recover their monies was not, as at 10 April 2002, merely speculative but was an event that was reasonably foreseeable. PWB was in a trust relationship with investors in the Fund. PWB was more than an agent, it was a trustee. Investors invested their funds with the Fund, not with a specific borrower. They were, amongst other things, entitled to be informed and kept up to date about the loans in which their money had been invested. PWB engaged in conduct that breached the trust arrangement constituted by the Fund between PWB and the investors. Judgment has not been entered in relation to these claims, but, in accordance with the authorities referred to above, I am satisfied that these claims as at 10 April 2002 were likely to become debts of the bankrupt. I base this finding on the following: PWB regularly substituted investor funds in defaulting loans without advising clients and without client consent. The bankrupt has conceded as much. It is unnecessary to quantify the equitable debts that these breaches of trust gave rise to in light of my finding in relation to the contractual right of investors to their funds. Quantifying the debts of the bankrupt resulting from the breaches of trust is not straightforward. On the evidence, it is in the realm of millions of dollars. Absent the debts of the bankrupt as a result of the breach of contract, I am satisfied the bankrupt would not have had the ability to meet the debts arising from claims in breach of trust. Mr Turner was not named as a respondent to this action because he was not a partner of the firm at that date. An order was made on 1 October 2002 that PWB was "in default". The Solicitors Trust paid $80,216.04 into the Court fund subsequent to that order. That amount increased to $195,601.74 by August 2004. Prior to amendments that came into force on 28 June 2002 to s 111 of the Legal Profession Act 1993 (Tas) ("LPA"), the Solicitors' Trust only had a cause of action against the firm, not former members of the firm, for the amount the Solicitors' Trust paid into the Court fund pursuant to the orders of 1 October 2002. The amendments gave rise to a statutory cause of action in favour of the Solicitors Trust against Mr Turner as a "a former member" of the firm PWB because of an amendment to s 111(8) of the LPA that allowed the Solicitors' Trust to apply to the Supreme Court for an order that the amount be paid to the Trust by a firm, a member or former member of a firm or a legal practitioner corporation. Pursuant to s 111(8) of the LPA, on 6 November 2003 the Solicitors' Trust commenced proceeding TASC M319 of 2003 in the Supreme Court. As a result of the amendment to s 111 of the LPA, Mr Turner was able to be named as the second respondent. The Solicitors' Trust originally claimed for the repayment of $80,216.04. Judgment was entered in favour of the Solicitors' Trust in the amount of $195,601.74 plus costs, which was the actual amount paid into the Court fund by the Solicitors' Trust. Pursuant to that order, Mr Turner became liable for that judgment debt. On 23 January 2003, the Solicitors' Trust filed an application pursuant to s 108(2C) of the LPA for the recovery of $1,114,231.61 paid by the Solicitors' Trust to cover the costs of Mr Hamilton as liquidator of the Fund pursuant to s 108(2)(a)(iii). Mr Turner was named as second respondent in the proceeding. The provision pursuant to which that application was made only came into force on 28 June 2002. Judgment was entered in that proceeding, TASC M13 of 2003, on 6 August 2004 for the amount of $2,085,636.48 against the respondents. The respondents submit that those statutory liabilities did not exist at 10 April 2002 because the amendments to the legislation allowing the Solicitors' Trust to claim against the bankrupt were not in force at that time. While that may be true, it does not change the existence of investors' claims against the bankrupt as at April 2002 either as a result of breach of contract or breach of trust. The potential claims of investors were not far flung or illusory. The bankrupt was found guilty of unprofessional conduct in November 2001 in respect of his conduct in running the Fund, in particular, the substitution of clients' funds and further advances of clients' funds into defaulting loans. Justice Crawford made findings of fact in relation to the practice and also about the incompetence and negligence involved. There is no question that investors' claims were real as at April 2002. The manner of pursuing those liabilities is of minimal relevance. The fact that at some later date the investors' interests were assigned to the Solicitors' Trust by virtue of a legislative provision does not change the bankrupt's liability to the investors as at April 2002. The submission that the bankrupt only became bankrupt in fact as a result of the amendments to the LPA may well be true. The Court is not presently concerned with the cause of the bankrupt's actual bankruptcy, but with whether the bankrupt was insolvent, at a time, some 3 years before he became bankrupt. This was comprised of the following: Mr Turner also had an interest in the firm PWB, but that interest had lost any material value by April 2002. The above is uncontested by the parties, except for two points. Firstly, the value of the subject property is at issue and, consistent with my finding above, the property was worth $690,000---$790,000. The applicant contests that the bankrupt's superannuation should be included in the assessment of the bankrupt's solvency. I turn to that question now. The bankrupt's superannuation was a protected asset. It may be taken into account if the Court is convinced that the bankrupt would have made it available. I do not accept that Mr Turner would have used it to pay his debts at the time. The bankrupt has given hypothetical evidence that he would have drawn on his superannuation entitlements in 2002 to pay his debts. When he later had the opportunity to try to avoid bankruptcy, he did not offer to access his superannuation to settle or compromise with creditors. The bankrupt was not able to offer the Court an explanation why the circumstances would have been different in 2002. It defies reality to suggest that in 2002, the bankrupt would have made protected funds available to creditors which would have then been lost to him. The respondents submit that it is not open to look at the subjective intentions of the bankrupt when assessing solvency. They submit that the assessment is an objective test of looking at what assets a bankrupt has, not at whether the bankrupt would have provided them. I do not agree with the respondents' submission concerning protected assets. In respect of non-protected assets, the bankrupt would have no choice but to make them available and therefore the existence of the asset can be looked at objectively. However in the case of a protected asset, it only becomes available by the bankrupt making it so. This must involve an assessment whether, in reality, the bankrupt would or would not access the protected asset. The assessment made in the foregoing paragraph is one the Court is entitled to make. PWB had a compulsory insurance policy with FAI of $1.1 million. It also had top-up insurance with a number of insurers, including FAI, of up to $7.5 million. The collapse of HIH/FAI in early 2001 led to a Commonwealth Government assistance scheme, however PWB's eligibility under the scheme is limited to claims of more than $1.1 million in line with the policy not to cover insurance compulsorily acquired. It is unknown how the policy will be applied and it is as yet unresolved. Indemnification from the top-up insurers has not progressed and those insurers are yet to confirm or deny any liability. Any possibility of recovering monies was uncertain at best in 2002. It is highly unlikely that any possible insurance claim would have crystallised by 10 April 2002, as litigation on this issue is ongoing. After December 2001, Mr Hamilton, as liquidator of the Fund, stepped into PWB's shoes in relation to the litigation. Mr Hamilton also instituted a separate proceeding against RL Jones & Associates Pty Ltd in 2005. Ultimately, Mr Hamilton was able to recover $1.2 million, which was a mediated settlement and was inclusive of costs. As at April 2002, that litigation had not been settled and any foreseeable recovery through that litigation could not have been available to creditors by April, or even June, 2002. Ms Oxenbould gave evidence that, if asked, she would have given the bankrupt $1.1 million and a further $254,000 after consulting about the latter amount with other members of the family including her sister and the respondents. She said that this would have been done as a gift to help a brother in trouble. Ms Turner-Smith and Ms Burley gave similar evidence. I place no weight on the evidence referred to above or similar evidence of the respondents. I do so because I do not accept that the bankrupt would have asked family members for any funds in April 2002. He would not have done so because he would have known that the funds would have been used to pay creditors and be lost to the family. I am fortified in this view by the fact that the bankrupt did not ask for funds from family members to avoid bankruptcy in 2005. It is highly unlikely that the bankrupt would have asked for funds in 2002 to stave off insolvency if he did not later do so in 2005, in circumstances where the events which led to his insolvency had crystallised as long ago as 1998. I am also satisfied that consideration provided for the transfer was for less than the market value. The applicant's case under s 120 is made out and the transfer is void. Section 120(4) provides that "the [applicant] must pay to the [respondents] an amount equal to the value of any consideration that the [respondents] gave" for the transfer of the property. This issue turns on whether the interest paid on the unpaid balance of the purchase price falls within the scope of consideration referred to in s 120(4). Section 120(4) refers to "any consideration" given and I do not interpret that to intend a narrow meaning of consideration. The respondents paid a part of the purchase price on or around the date of the transfer. The contract of sale also required later payment of the outstanding balance. In the meantime, the respondents paid interest on the amount outstanding. That interest was consideration given for the transfer, albeit that the transfer had already occurred. I can see no reason why the applicant should retain the benefit of the approximately $40,000. The purpose of the provision is to undo a transfer that was at below market value and to return to the transferee the value of what they paid for the property. The interest was part of that transaction and it is fair that having lost the benefit of the property, the respondents are entitled to the full amount paid in consideration of the purchase. I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

whether a transfer is void against the applicant pursuant to s 120 of the bankruptcy act 1966 (cth) whether the transfer of property was effected for less than market value whether the bankrupt was solvent at the date of the transfer bankruptcy

His Honour's judgment dismissed an application for judicial review of a decision of the Migration Review Tribunal ('the Tribunal') which was handed down on 17 September 2008. That decision affirmed the decision of a delegate of the Minister for Immigration and Citizenship ('the delegate') made on 1 April 2008 to cancel the Higher Education Sector (Student) Subclass 573 visa ('Subclass 573 visa') which had been issued to the appellant. He arrived in Australia on 3 February 2006 holding a Subclass 573 visa. On 10 April 2006 the appellant was granted a further Subclass 573 visa valid to 30 July 2010. The visa contained conditions, one of which, namely condition 8202, stipulated that the holder of the visa comply with the educational requirements of the institution at which the student was enrolled. The appellant enrolled at Curtin International College ('the college') for a Diploma of Engineering. The course commenced on 6 March 2006. On 16 October 2006 the appellant transferred to the Diploma of Information Technology course at the same college. The appellant was due to complete such course on 15 October 2007. By letter dated 1 February 2007, the college wrote to the appellant advising him that he had been reported to the Department of Immigration and Multicultural Affairs ('the Department') for non-compliance with the conditions of his Subclass 573 visa. The college referred to his poor attendance and unsatisfactory record. On the same day the college issued the appellant with a notice under s 20 of the Education Services for Overseas Students Act 2000 (Cth) stating that in the period from 16 October 2006 to 25 January 2007 he had attended 69% of the scheduled contact hours and therefore that he had failed to comply with the extant version of condition 8202(3)(a) of the visa which required him to attend 80% of classes. The appellant was invited to provide comments at an interview to be held at the Department on 21 February 2007 in respect of the first notice and to provide reasons why his visa should not be cancelled. The appellant attended the interview and provided information including evidence establishing that his maternal grandfather had died. In these circumstances a delegate from the Department decided not to cancel the appellant's Subclass 573 visa on the basis that there were exceptional circumstances beyond his control that led to his non-compliance with the conditions attaching to his visa. On 21 January 2008 the Department forwarded an email to the appellant concerning his failure to attend an interview fixed for that date and advised him that he should arrange another appointment. On 5 February 2008 the Department arranged a second interview at 9.00 am on 11 February 2008. The appellant did not attend such interview. On 13 February 2008 the appellant contacted the Department by telephone and advised that his non-attendance was due to poor health. A further interview was scheduled for 19 February 2008. The appellant again failed to attend and attempts to communicate with him by telephone were unsuccessful. On 26 February 2008 the Department issued the appellant with a Second Notice of Intention to Consider Cancellation of his visa ('the second notice') on the ground that he had ceased to be enrolled in a registered course of study. The invitation informed the appellant that it had come to the Department's attention that there might be grounds for cancellation of his visa under ss 116(1)(b) and 116(3) of the Act and under reg 2.43(2)(b) of the Migration Regulations 1994 (Cth) ('the Regulations'). However, there is a Decision ('the primary decision') signed on 1 April 2008 at 10.15 am and also a Notification of decision signed 1 April 2008 at 10.20 am and verified by the appellant's signature on the same day at 10.40 am. The primary decision and Notification of decision constitute the record relating to the interview. Such documents (relevantly identical) suggest that the appellant raised three issues before the delegate on 1 April 2008 (there being no other record of an interview pertaining to the second notice). Item 7 of the aforementioned documents require the decision maker to state whether the reasons for cancelling the visa outweigh the reasons not to cancel. In the space provided, the decision maker is required to give reasons. The decision maker repeated exactly the same response as stated in Item 3 and 5. On 1 April 2008 the delegate cancelled the appellant's visa for non-compliance with condition 8202 pursuant to ss 116(1)(b) and 116(3) of the Act and reg 2.43(2)(b) of the Regulations. The delegate found that the appellant had not been enrolled and studying in a full-time registered course since June 2007. On 1 August 2008 the Tribunal sent a letter to the appellant by registered mail, addressed in accordance with the residential address for correspondence provided by him in his application for review ('the invitation'). The invitation invited the appellant to comment upon numerous issues including his failure to attend several interviews before the Department. The invitation relevantly stated: The invitation advised the appellant that if the Tribunal found that he did not comply with condition 8202 of his visa it would need to consider whether that non-compliance was ' due to exceptional circumstances beyond the non-citizen's control '. It therefore invited the appellant to provide any evidence that the non-compliance was due to exceptional circumstances beyond his control. It stated that if no comments or additional information was received by 19 August 2008, the decision could be made without reference to him. The appellant did not provide information or comment to the Tribunal. Pursuant to s 359C(1) and (2) of the Act, the Tribunal proceeded to hand down its decision on 17 September 2008 on the premise that by virtue of the operation of s 360(3) of the Act the appellant lost any entitlement to appear before the Tribunal. The unchallenged facts establish that the invitation was never received by the appellant. It was returned after the decision was handed down and marked 'unclaimed'. The Tribunal proceeded to make a decision without taking any further action in accordance with s 359C of the Act. It did so on the alternative stated assumptions that it did or did not retain a discretion to invite the applicant to a hearing after he had failed to respond to the invitation. However, there is no record on the departmental file that the review applicant attended and was interviewed by the Department at an interview held on 10 March 2008. The delegate found that the review applicant had not been enrolled in and studying a fulltime registered course since June 2007. In addition, the decision record stated that the review applicant was unable to demonstrate that the wrong student had been reported, that the section 20 notice had been defective or that there had been a critical incident that constituted exception circumstances and which led to his non-compliance in relation to the requirement to maintain his enrolment in a registered course. However, no submissions were provided to the Department to explain the significance or relevance of this evidence to the possible cancellation of the review applicant's student visa. In addition, the Tribunal notes that, in its section 359A letter dated 1 August 2008, the review applicant was invited to provide comment and further information relating to the issues arising in relation to his application for review. However, the review applicant failed to do so within the prescribed period, namely, 19 August 2008, or at any time thereafter. Accordingly, the Tribunal has had regard to the evidence presented to the Department, and accepts that the review applicant may well have been concerned about his maternal grandmother's health at the time that he ceased to be enrolled in a registered course. However, based on the limited evidence before it, the Tribunal is not satisfied that having regard to Ministerial Direction No 38, the tests in Wang and Chen and the dictionary definition of "exception", that these circumstances, even once cultural matters are factored in, constitute exception circumstances beyond the review applicant's control. Nor does the evidence before the Tribunal provide any causal link between the circumstances cited by the review applicant and the non-compliance that has occurred in relation to the cessation of his enrolment. The grounds of application raised numerous issues relating to the alleged failure of the Tribunal in the conduct of the proceedings. In support of such application the appellant swore an affidavit on 19 February 2009. The affidavit makes no reference to the events on 10 March 2008 but states that a few days before 1 April 2008 the delegate telephoned him. I received the medical records about this time and took along copies of file notes of my grandmother's doctor to the Department 1 April, 2008. These were notarised by a Notary Public. I had made up my mind to tell Ms Krishnan about the trouble that my family had suffered in Burma during 2007 and that my father had had trouble making payments in Australia as a result of those problems. I was also going to tell her about my wish to transfer to the University of Technology in Sydney. On 1 April, 2008, I arrived at the Department at 10.00 am and went to the reception counter. I said words to the effect that I had a meeting with Ms Krishnan. I was given a ticket and asked to wait. I waited for about 20 minutes. Ms Krishnan then asked me to the counter and I spoke to her there. Myself: At that time, my grandmother was sick, and I was not healthy enough. My family also has had some other problems. Here are the medical records for my grandmother. Ms Krishnan didn't look at the records. Ms Krishnan: This is not a good reason. Have you got a Doctor's certificate? Myself: No. Ms Krishnan: Your visa will be cancelled. Ms Krishnan left the counter for about 5 minutes. I had not had a chance to tell her about my family's problems. Ms Krishnan came back and gave me the document titled "Decision" on pages 67 and 69 of the Court Book. She also gave me a document titled "Notification of cancel visa under s116 of the Migration Act, 1958 ". A copy of this document is at pages 71 and 73 of the Court Book. The transcript suggests that Raphael FM admitted both the affidavit of the appellant and an affidavit sworn by his father. No cross-examination was made on the allegations made in the appellant's affidavit by the Minister for the reason, expressed before this Court, that the affidavit was not relevant to any issue then being considered by the Federal Magistrate. However, in his Honour's decision, it is apparent that several portions of the appellant's affidavit were relied upon by him in reaching his decision. There is simply no other source for many of the factual findings made by his Honour. Raphael FM dismissed the application for judicial review. At the hearing the appellant sought to rely upon an Amended Notice of Appeal containing five grounds of appeal. The Minister objected to the appellant being granted leave to rely upon both the original Notice of Appeal and the Amended Notice of Appeal on the ground that the issues raised in both the Notices of Appeal had not been raised before the Federal Magistrate. To enable the Court to consider both the appellant's and the Minister's submissions the Court granted leave to the appellant to file in Court the Amended Notice of Appeal. The first submission of the appellant, as it was made orally, contended that there was a discretion vested in the Tribunal, pursuant to s 359(1) and s 359C of the Act, to not proceed to make a decision on the facts before it, even though the appellant had failed to respond to the invitation seeking more information. The appellant submits that the Tribunal retains a discretion to gain more information in such situation, and pursuant to Minister for Immigration and Citizenship v SZKTI and Another [2009] HCA 30 ; (2009) 258 ALR 434 , it may do that by telephone or other means. The appellant submits that in the very particular factual circumstances of these proceedings the Tribunal should have sought more information before making its decision. These circumstances include the uncertainty surrounding 10 March 2008; the unclear decision of the delegate; the unclear purpose of the medical documents provided to the delegate; and the obligation of the Tribunal, pursuant to reg 2.43(2)(b) of the Regulations, to be positively satisfied that there were no exceptional circumstances explaining the appellant's failure to comply with condition 8202 of his visa. Secondly, the appellant submits that the Tribunal, pursuant to SZJBA v Minister for Immigration and Citizenship and Another [2007] FCA 1592 ; (2007) 164 FCR 14 , was obliged to undertake reasonably open and regular administrative steps to permit or facilitate fulfilment of the ' real and meaningful nature of the invitation to comment ' (at [53]). The appellant submits that such obligation arises where the Tribunal is aware that the record of claims made by an applicant and received by the Tribunal is incomplete. It is submitted by the appellant that the Tribunal was aware of a ' conspicuous absence of any explanation ' of the medical records submitted by the appellant. Thirdly, the appellant submits that, following the submissions in ground one (namely that the Tribunal retains a discretion pursuant to s 359(1) and s 359C of the Act to obtain further information even if a reply to an invitation is not forthcoming), that exercise of discretion is guided by s 353 and s 357A(3) of the Act. Section 353 states: (1) The Tribunal shall, in carrying out its functions under this Act, pursue the objective of providing a mechanism of review that is fair, just, economical and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) shall act according to substantial justice and the merits of the case. The appellant submits, however, that while the provisions might not give rise to positive rights for an applicant before the Tribunal, they must be given some meaning, and they must govern the exercise of discretion of the Tribunal. On the basis of this submission the appellant points out that the Tribunal did not explain why the appellant was not contacted by means such as email or telephone. Following from similar considerations outlined in other grounds of appeal, the appellant submits that there was an obligation on the Tribunal to make such further inquiries. Fourthly, it is submitted that the Tribunal failed to consider the appellant's claims as made before the delegate. The appellant seeks to rely on his affidavit as admitted before the Federal Magistrate as unchallenged evidence of what was put by him in the interview before the delegate. Such evidence suggests that the decision of the delegate had nothing to do with the grounds put by the appellant. The appellant submits therefore that the Tribunal did not consider his claims. Fifthly, and finally, the appellant claims that the Tribunal applied the wrong test in determining whether grounds existed for the cancellation of his visa. The appellant submits that rather than form a positive state of satisfaction that there were no exceptional circumstances beyond the appellant's control which explained his non-compliance with condition 8202 as reg 2.43(2)(b)(ii) of the Regulations requires, the Tribunal referred to the discussion in Chen v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 229 ; (2005) 142 FCR 257 at [107] - [116] . That discussion is based on s 137L(1)(b) of the Act which is phrased in different terms to reg 2.43(2)(b)(ii). That section requires an appellant to satisfy the Tribunal that certain circumstances do exist. In contrast, reg 2.43(2)(b)(ii) requires the Tribunal to form a positive state of satisfaction that exceptional circumstances don't exist. The appellant submits that such application of the wrong test constitutes a jurisdictional error. Consequently the Minister submits that such grounds should not be entertained by this Court. In particular the Minister objects to grounds one, three and four and suggests that such grounds are prejudicial because had they been put earlier there might have been (not necessarily would be) more evidence that the Minister would have put before the Court in answer to such grounds. The appellant's counsel acknowledges that the issues raised for consideration by the Amended Notice of Appeal were not raised in the hearing before the Federal Magistrate in the precise form currently argued. However, the appellant submits that since the delivery of judgment by the Federal Magistrate, the High Court of Australia has delivered its decisions in SZMOK and in SZKTI which were on 2 July 2009 and on 26 August 2009 respectively, each of which the appellant submits are pertinent to the issues raised by the appeal. The Court granted leave to the appellant to make supplementary submissions highlighting where the submissions as put before this Court were before the Federal Magistrate. The appellant has done so. The Court also granted leave for the Minister to make supplementary submissions in answer to the appellant's supplementary submissions. The Minister, in making its supplementary submissions, acknowledged that the appellant's first ground of appeal was partly raised in written and oral submissions before the Federal Magistrate. The Minister maintains that grounds two, three, four and five were not raised before the Federal Magistrate in any form similar to that which is now argued before this Court. The Court has had regard to those authorities, particularly the decision of Madgwick J in NAJT v Minister for Immigration and Multicultural Affairs and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [166] in which his Honour stated eight factors guiding the exercise of discretion to grant leave for an appellant to rely on new grounds of appeal. Those grounds were: Do the new legal arguments have a reasonable prospect of success? Is there an acceptable explanation of why they were not raised below? How much dislocation to the Court and efficient use of judicial sitting time is really involved? What is at stake in the case for the appellant? Will the resolution of the issues raised have any importance beyond the case at hand? Is there any actual prejudice, not viewing the notion of prejudice narrowly, to the respondent? If so, can it justly and practicably be cured? If not, where, in all the circumstances, do the interests of justice lie? The Court, having considered the eight factors referred to in NAJT , will grant leave for the appellant to rely on the new grounds of appeal for the following reasons. In regards to the first factor, the Court considers that the legal arguments have a reasonable prospect of success. The explanation for the failure to raise the arguments below, that being recent High Court authority, is sufficient. The Court accepts that the decisions of SZMOK and SZKTI are highly relevant for the purposes of the appellant's arguments. The Court considers that there is no inconvenience to it in allowing the appellant's arguments, given that it was open to the Court to hear arguments in favour of granting leave and, if granted, then to proceed into a consideration of the new grounds of appeal in the hearing of the proceedings. As to the fourth factor referred to in NAJT , obviously much is at stake for the appellant. An unsuccessful appeal will see his visa cancelled and his deportation to Myanmar. Indeed, one could imagine few more significant consequences for an individual in a hearing before the Federal Court. The Court does not consider that this decision will have wider application than the present circumstances. Indeed, as will become apparent in the Court's findings, the Court emphasises the very specific factual circumstances of these proceedings. Finally, as to the issue of prejudice to the respondent, the Minister relied upon Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497 where the majority said ' more than once it has been held by this Court that a point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence below '. However, Moustakas relates to a situation distinct from the present circumstances. The appeal court described in Moustakas was an appeal court from a first instance trial . In that circumstance, it is far more understandable that a court of appeal would seek to constrain grounds of appeal that could call for more evidence. While this Court is acting as a court of appeal, it is so acting in respect of a decision of the Federal Magistrates Court which itself was acting as a court of judicial review of a Tribunal decision, not a trial court. In that sense, this Court is just as well placed as the Federal Magistrates Court to receive evidence or review the decision of the Tribunal. In the circumstance that this Court is effectively judicially reviewing a decision of the Tribunal, being the practical effect where new grounds are relied upon and no error is shown on the part of the Federal Magistrate, then this Court is in just as good a position as the Federal Magistrates Court to fulfil that role. Consequently, the Court does not believe that Moustakas is apposite in the present circumstances and prefers to rely on the considerations of minimising prejudice discussed in the decision of NAJT . The Court notes the prejudice identified by the Minister relating to grounds one, three and four relied upon by the appellant and the assertion that the Minister might have chosen to lead evidence in the Federal Magistrates Court had it been on notice of the grounds as now raised. The Court also notes that the Minister, in supplementary submissions, noted that ground one had been partially raised before the Court below in similar terms to those now put. The Court notes that the Minister was afforded the opportunity to cross-examine the appellant and was also granted the opportunity to adjourn the proceedings in order that it be able to put on further evidence. Such offer was declined. An offer to allow the Minister to cross-examine the appellant on his affidavit in the Court below was also declined by the Minister. In the circumstances, the Court believes the Minister has been given adequate opportunity to rectify any prejudice identified, particularly as this Court is in just as good a position to take evidence to review a decision of the Tribunal as the Federal Magistrates Court. Even if such prejudice is not overcome, the Court considers that it is ' expedient in the interests of justice to allow the new ground to be argued and determined ': VAAC at [26]. The Court granted leave to the appellant and Minister to make further submissions in reliance upon this decision and for both the appellant and Minister to make further submissions in reply to each other's further submissions. Both the appellant and Minister took advantage of the leave to make submissions on the effect of SZIAI , and the Minister has also made submissions in reply to the appellant's submissions on the effect of SZIAI . As will become apparent, the Court finds such submissions to be highly relevant to its decision. The Court does not need to, and therefore declines to, make any findings in relation to the other grounds of appeal, though it should be noted that submissions in relation to the other grounds of appeal are partially relevant for the consideration of ground one. All of the following observations are made based on the information that was before the Tribunal. Firstly, it appears that there was no interview between the delegate and the appellant on 10 March 2008, as had been scheduled. No record existed explaining why there was no interview. There was no record of the rescheduling of the interview to 1 April 2008 when the decision was made. These facts must be considered against the background of detailed records of communications made and received between the Department and the appellant in previous communications such as those regarding the first notice. The absence of any information explaining what occurred on 10 March 2008 is, to say the least, puzzling. One would have expected there to be some record of events which occurred on that day, even if the proceedings were simply adjourned. Secondly, it was clear that there had to have been some kind of discussion between the appellant and the delegate concerning the proposed cancellation of the appellant's visa, given that the box in Item 3 of the Notification of decision was entitled ' RESPONDED to the notice of intention to consider cancelling the visa ' was ticked. The Court assumes that such notation was made on 1 April 2008, the day of the decision, and therefore that the interview occurred on that day, rather than 10 March 2008. Thirdly, it was apparent that medical records were provided by the appellant to the delegate, though it is entirely unclear when this occurred. It is also unclear what they evidenced. Fourthly, the reasons provided by the delegate for making the primary decision were lacking in detail and profoundly unhelpful in determining the basis of the decision, let alone what evidence was presented to the delegate by the appellant to show exceptional circumstances. The cryptic reasons, namely ' the wrong student was reported '; ' the section 20 notice was defective '; ' the event of a critical incident ', because of their brevity, do little to inform. Even the Minister acknowledges before this Court that the primary decision is most unclear. Fifthly, there was no apparent mention in those reasons, such as they were, that would explain the purpose of the medical records that were apparently provided to the Tribunal by the appellant, let alone what the delegate's opinion was in answer to them. There is also a clear discrepancy in that the medical records, which were presumably evidence of something, were not listed under Item 5 in the primary decision as ' Evidence of reasons why GROUNDS for cancellation DO OR DO NOT EXIST '. This was the state of the facts and evidence before the Tribunal at the time it made its decision. One does not even need to consider the affidavit of the appellant, setting out his account of the circumstances, to be aware that there was a dearth of information upon which the Tribunal could make its decision. The Tribunal recognised that this was a problem, as it wrote to the appellant on 1 August 2008 in the invitation seeking information under s 359A and s 359(2) of the Act and specifically sought information concerning 10 March 2008 and 1 April 2008. The issue, therefore, is given that no reply was forthcoming from the appellant to such invitation, was the Tribunal entitled to proceed to make its decision upon the factual matrix as outlined above? For example, despite the reality, the Act deemed the invitation to have been received by the appellant seven days after it was sent provided that certain procedures were followed (s 379C(4)). Such procedures were followed. The Act also allowed the Tribunal to proceed to make a decision in the absence of a reply by the appellant (s 359C). However, it is imperative to note that section s 359C(1) and (2) are phrased as ' the Tribunal may make a decision on the review without taking any further action to obtain the additional information [emphasis added]'. That is a discretionary power. If the Tribunal may proceed without seeking further information, the corollary is that it is possible for the Tribunal to not proceed without seeking additional information. That information could be sought by contacting the appellant through other means (than that for which there was no response), or by seeking to contact someone other than the appellant who might have the relevant information, for example, the delegate or Department. Whatever course the Tribunal adopts ought to depend on the circumstances of each case. The Tribunal addressed such issue obliquely at [33] to [38] of its decision. However, it concentrated on the narrower issue of whether it could have invited the appellant to appear before it, notwithstanding his failure to reply to the invitation. The Tribunal referred to conflicting authority which considered whether s 360(3) and s 363A of the Act mandates that upon the failure to respond under s 359C of the Act, an applicant is not entitled to appear before the Tribunal. The Federal Magistrate also considered such issue. Since SZKTI it is clear that a Tribunal may obtain information without an appellant appearing before it, for example by telephone: see SZKTI at [47] (referring to s 424(1) which is in identical terms to s 359(1)) and s 366. Therefore, the Tribunal never addressed the issue why it was not exercising its discretion to attempt to seek further information. Instead it appears that the Tribunal either felt it had no power to invite the appellant to appear before it, or, even if it did, it refused to do so. This is not to suggest that the Tribunal must positively state in every decision similar to the current one why it is not going to seek additional information when an applicant fails to provide a response. However, it is notable that the Tribunal did feel it necessary to explain its decision not to seek more information in the present circumstances, albeit on the narrower issue of whether it could have attempted to invite the applicant to appear before it. In many situations, the Tribunal's decision to proceed to a final decision in the absence of comment by the applicant may not be problematic, as the reasons for not seeking further information would be obvious. One of the reasons for the provision of invitations to provide more information or make comment under s 359A of the Act is procedural fairness. For example, the requirement that an applicant ought to be able to make comment on information adverse to his or her position (s 359A(1)). In the situation where no comment is forthcoming, there will usually be no difficulty with the Tribunal exercising its discretion to proceed to a decision because the applicant has been afforded procedural fairness, in the sense of being invited to comment, even if such offer is not accepted. It is possible that, as demonstrated by the current circumstances, the Tribunal can proceed upon a fiction, that being that the applicant had been provided with notice when, in reality, the notice had not been received. The Act, pursuant to sections such as s 379C(4), makes it clear that such a course is open to the Tribunal. However, the current situation is distinct. Although the Act allowed the Tribunal to proceed to decision in the absence of a reply from the appellant, if it did so it would be proceeding on a paucity of facts on an issue critical to the eventual finding, that being whether there were exceptional circumstances which justified the appellant's failure to comply with condition 8202 of his visa. It was entirely unclear when the medical records were provided, and for what purpose. Such issue was highlighted by the Tribunal at [63]. Yet at [64] the Tribunal stated: ' accordingly, the Tribunal has had regard to the evidence presented to the Department, and accepts that the review applicant may well have been concerned about his maternal grandmother's health at the time that he ceased to be enrolled in a registered course '. There is no evidence before this Court of any information available to the Tribunal upon which it could have based such statement, other than an assumption that that was the reason for the medical records having been provided. Such records might have been for that reason, but they might equally have been for another reason, for example, that the appellant's parents were unable to give him sufficient funds because they were paying for treatment of his sick grandmother. Those records might have gone to proving any number of exceptional circumstances. That was entirely the problem, yet the Tribunal made a guess as to what the exceptional circumstances might be, and then took no further steps to verify the purpose of the records. While the assumption may be that the Tribunal was merely taking the appellant's position at its highest, in doing so it exposed the paucity of information it had before it to make its decision. Further, the statement ' evidence presented to the Department ' does not accord with the circumstance that the Tribunal had before it a record of the primary decision which cited three grounds that appeared to have nothing to do with the medical records. The Tribunal clearly had no idea what, if any, evidence supported those grounds, given that the evidence section of the decision merely repeated those three grounds. The Tribunal did not appear to have any real understanding of what the grounds even meant. It ' may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review '. The majority in SZIAI found that a failure to make an inquiry in the above circumstances could constitute a jurisdictional error because of a constructive failure to exercise jurisdiction. As will be discussed, the majority also left open the door for failure to make an inquiry being a jurisdictional error for other reasons. Thus, a failure by a decision-maker to obtain important information on a critical issue, which the decision-maker knows or ought reasonably to know is readily available, may be characterised as so unreasonable that no reasonable decision-maker would proceeded [sic] to make the decision without making the enquiry: see Prasad 6 FCR at 169-170 per Wilcox J; Videto v Minister for Immigration and Ethnic Affairs [1985] FCA 326 ; (1985) 8 FCR 167 at 178 per Toohey J ( Videto ); Luu v Renevier (1989) 91 ALR 39 at 47-50 per Davies, Wilcox and Pincus JJ ( Luu v Renevier ); Detsongjarus v Minister for Immigration, Local Government and Ethnic Affairs [1990] FCA 364 ; (1990) 21 ALD 139 at 143 per Pincus J ( Detsongjarus ); Rahman [2000] FCA 1277 at [30] per French J; Tickner v Bropho [1993] FCA 208 ; (1993) 40 FCR 183 at 197-198 per Black CJ; Ahamed v Minister for Immigration and Multicultural Affairs [2000] FCA 1325 at [12] per French J; Yang v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 258 ; (2003) 132 FCR 571 at 579 per Ryan and Finkelstein JJ ( Yang ). This proposition is also discussed in other cases, such as Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275 at 288 per Foster J and Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20 ; (1995) 183 CLR 273 at 289-90 per Mason CJ and Deane J and 321 per McHugh J. Despite comments in SZIAI at [13]-[15] and [22]-[23] noting the difference between judicial review under the Administrative Decisions (Judicial Review) Act 1977 and judicial review under s 75(v) of The Constitution , SZIAI would not appear to disturb Le . Indeed at [26] of SZIAI the majority stated: ' no factual basis for the conclusion that the failure to inquire constituted a failure to undertake the statutory duty of review or that it was otherwise so unreasonable as to support a finding that the tribunal's decision was infected by jurisdictional error ' [emphasis added]. Such statement would appear to confirm that a failure to make an inquiry could constitute jurisdictional error for at least two different reasons. Those are, a constructive failure to exercise jurisdiction in fulfilling the role of the Tribunal to review, and ' Wednesbury unreasonableness'. The Court believes that the information in the present circumstances satisfies such test. It was critical to the review whether the appellant's failure to comply with his visa conditions was due to exceptional circumstances beyond his control. The Tribunal was on notice that there evidently were exceptional circumstances claimed through the decision record of the delegate, and the unexplained medical records. However, on the information before the Tribunal, it could not be clear precisely what those grounds were. The Minister submits that a Tribunal is not required to make the case for an applicant before it, it is for the applicant to make their submissions: see Abebe v The Commonwealth of Australia (1999) 197 CLR 510 at [187] and Re Ruddock (in his capacity as Minister for Immigration and Multicultural Affairs) and Another; Ex parte APPLICANT S154/2002 [2003] HCA 60 ; (2003) 201 ALR 437 at [57] . This is undoubtedly correct. However, the inquiry in question would not make the appellant's case for him. Rather, it would seek clarification of the grounds already provided to the delegate, in the circumstance where the delegate's record was wholly unsatisfactory. It is true that the appellant did not reply to the invitation of the Tribunal on these matters. However, the Act, specifically s 359C, envisages the circumstance that no reply is forthcoming and the Tribunal may still need to seek additional information before it should make its decision. This was such a circumstance. Such finding is strengthened by the fact that the relevant test in reg 2.43(2)(b)(ii) of the Regulations is that the Tribunal ' is satisfied that...the non-compliance was not due to exceptional circumstances beyond the visa holder's control '. That is, that a positive state of mind must be found on the part of the decision maker that there are no exceptional circumstances. The Tribunal could scarcely have positive satisfaction that the appellant's non-compliance was not due to exceptional circumstances if it had evidence before it that might go to exceptional circumstances, namely the medical records, but did not know to what issue such evidence related. The Minister submits that as the Tribunal, in essence, conducts a de novo review on the merits, it is not essential that the record of the delegate be complete before the Tribunal. This submission overlooks two important considerations. Firstly, whether or not the Tribunal needed to, the Tribunal did have regard to the primary decision. In its decision at [64] it stated, ' accordingly the Tribunal has had regard to evidence presented to the Department...based on the limited evidence before it, the Tribunal is not satisfied...that these circumstances...constitute exceptional circumstances beyond the review applicant's control '. The only source of that evidence was the medical records and the primary decision itself. Therefore, the Tribunal, because it paid regard to, and embellished the primary decision, made the primary decision an issue. This leads to the second point which is that the critical inquiry to be made is not of the primary decision in the sense of what the delegate decided, but what evidence or submissions were put to the delegate in support of the claim of exceptional circumstances. It was clear that there were some submissions made to the delegate and medical records provided to the delegate. It was also clear that there were discrepancies regarding the nature of those submissions and the evidence provided which should have been apparent to the Tribunal. In short, the Minister misconstrues the true nature of the inquiry which is required. The exact nature of the inquiry could have been to seek to contact the appellant by another means such as email or telephone since the Tribunal had his details. Alternatively, the Tribunal could have contacted the delegate or Department. The Minister submits that it would be strange that in the circumstance that s 359C and s 360(3) prevented the Tribunal from inviting the appellant before it that it should be able to seek oral evidence under s 359(1) and s 366. However, that informal mechanism is exactly what the High Court has said is available in SZKTI at [47]. Even if the Tribunal did not seek oral evidence, the Tribunal could have sought to clarify whether the appellant had, in fact, received the invitation. To repeat, this is not to suggest that such step is always required of the Tribunal, merely that in certain circumstances it should be taken. As to the alternative source of information, the Department or delegate, the Minister submits that the Tribunal was entitled to proceed on the assumption that it had all the relevant documentation pursuant to s 352(4) of the Act which requires the Secretary, upon being notified of an application for review, provide to the Registrar all documents considered by him or her to be of relevance to the review. The problem is that it was obvious that such documentary record was flawed. As the Tribunal was acutely aware, the documentary record lacked any documentation regarding 10 March 2008 and there was little useful information regarding the interview on 1 April 2008. In such circumstance, an enquiry of the delegate regarding these discrepancies could have resolved the issue. ...the existence of which is easily ascertained. Both SZIAI and Le make it plain that the inquiry must be directed towards information, ' the existence of which is easily ascertained ' (in SZIAI at [25]) or ' which the decision-maker knows, or ought reasonably to know is readily available ' (in Le at [63]). There was nothing before the Federal Magistrates Court or the Federal Court to indicate what information might be elicited if the tribunal were to undertake the inquiry which was said to be critical to the validity of its decision. The inquiry suggested was telephone contact with the persons whose mobile telephone numbers were shown on the certificates. But the question whether the certificates contained false statements as to authorship or otherwise would not be able to be determined by calls placed to those telephone numbers. If the respondents to the calls admitted to the tribunal or its officers that the certificates contained false statements, then the grounds for a decision adverse to SZIAI would have been strengthened. If the respondents said that the contents were true, it would have added nothing to the statements effectively conveyed by the certificates themselves. The second reason is that the response made by SZIAI's solicitors to the tribunal's letter of 14 January 2008 itself indicated the futility of further inquiry. Additionally, a decision-maker, acting reasonably in this sense, would have enquired whether the interviewing officer, acting under the misapprehension that Mr Nguyen said that his marriage relationship had ended, had advised Mr Nguyen to withdraw his sponsorship. In the circumstances of this case, especially the mistranslation, a decision-maker acting reasonably might also have made some enquiry as to whether the interpreter at the Departmental interview was adequately qualified and, perhaps, whether the interpreter had accompanied the others to Mr Huynh's residence that day. These enquiries were not difficult to make. The Tribunal ought to have known that they might readily be made. Presumably, they would have yielded at least some relevant information on issues that were plainly critical to the outcome of the Tribunal's review. The mere failure of the appellant to reply to the invitation was not evidence that there were no exceptional circumstances. As subsequent facts showed, such failure was because he never received the invitation. The Tribunal was not to know that, but it could have emailed or phoned the appellant to find out with certainty whether there was evidence of exceptional circumstances. Such step would not have posed any difficulty, since the Tribunal held the appellant's email and telephone contact details. Positive contact with the appellant himself could have put beyond any doubt whether there were, in fact, exceptional circumstances. It is absurd to claim in the light of SZKTI that a simple telephone call or email to the appellant to make contact with him did not render such information ' easily ascertainable '. Alternatively, a call or email to the delegate or Department would be highly likely to have provided at least some degree of clarification of the exceptional circumstances claimed by the appellant. Kenny J found in Le at [77], as extracted above, that an enquiry of the primary decision-maker was a step that could be taken by the Tribunal. It is possible that the delegate would not recall the circumstances of 10 March 2008, 1 April 2008, or the exceptional circumstances claimed by the appellant at that time, as submitted by the Minister, but such possibility is unlikely. Even if information was not forthcoming from either of these sources, had such enquiries been made the Tribunal would have put beyond all doubt that it had before it all the information it could to make its decision. In such circumstance s 359C of the Act would have allowed it to proceed to its decision and there would have been no ground for criticism from this Court. As it stands, however, the Court finds that there was a failure by the Tribunal to make an obvious inquiry about a critical fact, the existence of which was easily ascertainable. Is there a jurisdictional error? It is not enough that the Tribunal makes an error, that error must be a jurisdictional error if the decision is to be quashed: see Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 at [83]. As outlined above, two alternative grounds of jurisdictional error would appear to be Wednesbury unreasonableness or a constructive failure to exercise jurisdiction in failing to fulfil the role of the Tribunal, that is, to review. The Court considers that the latter ground is relevant for the current circumstances. The Court considers that traditionally Wednesbury unreasonableness has been seen as only applicable in the most extreme of circumstances. That may well be why the High Court allowed the appeal in SZIAI . The Court does not consider that the Tribunal's failure to make further inquiries was so unreasonable that no reasonable person would have adopted such course. Rather, the Court prefers the view that the failure to make further inquires of the appellant, or to inquire of the delegate or Department; coupled with the ease at which such inquiry could be made; coupled with the paucity of information the Tribunal had to make its decision; coupled with the type of inquiry required by reg 2.43(2)(b) of the Regulations leads to the conclusion that the Tribunal failed to conduct a proper review. Despite the prolixity of the Tribunal decision, in reality, the Tribunal only served as a 'rubber stamp' for the primary decision, a decision that was obviously highly problematic, even on the evidence before the Tribunal. The Court does not need to rely on such affidavit, and it would be problematic to do so, given that the appellant has not been cross-examined on it, although the Minister declined the opportunity to do so in both the Federal Magistrates Court and before this Court. The Court accepts that when the appellant's affidavit was provided to Raphael FM the Minister was justified in considering that it was not relevant to any issue which was then identified. However, since the Federal Magistrate relied upon the affidavit in reaching his decision, this Court was obliged to take it into consideration. The appellant's affidavit suggests that the delegate's three reasons for cancelling the visa have no relationship to the matters allegedly raised by the appellant at the interview on 1 April 2008. Therefore if regard is paid to the contents of that affidavit and to the appellant's description of events before the delegate (which the Court has not needed to in order to come to a decision), the decision of the Court is fortified. The envelope discloses that it was 'unclaimed'. Accordingly, no inference can be drawn that the appellant was responsible for its non-delivery. Consequently, the Court will make no finding on the other grounds of appeal sought by the appellant. In making its decision, the Court emphasises that there is no error on the part of Raphael FM since the arguments as put before this Court were not put before his Honour. Nevertheless for reasons already given the Court has found that it is in the interest of justice to entertain those arguments. His Honour's decision should be set aside, the Tribunal decision quashed, and the matter be remitted to the Tribunal for rehearing. This is because there was no fault on the part of the Federal Magistrate in making the decision he did. Rather, the Court considers that each party should pay their own costs of the appeal, similarly to the basis for the costs order in Snedden v Republic of Croatia (No 2) [2009] FCAFC 132. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

student visa whether appellant had complied with conditions of visa whether tribunal should have made decision pursuant to s 359c of the migration act 1958 whether information before tribunal was sufficient to make decision whether tribunal should have sought further information whether tribunal failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained whether failure to make that inquiry was a jurisdictional error whether leave should be granted to allow new grounds of appeal to be argued whether grounds of appeal relating to conduct of tribunal ought to be allowed where grounds were not argued before federal magistrate whether prejudicial to respondent migration practice and procedure

He served for two years. For part of this time he was on active service in South Vietnam. In later years he suffered a number of medical conditions which were caused by his war service. He was paid a disability pension by reason of these conditions. 2 In 2005 he applied for a further pension entitlement because of, among other conditions, post-traumatic stress disorder ("PTSD"), osteoarthrosis of the fingers of the right hand and hearing problems in the right ear. He attributed these conditions to his service in South Vietnam. His application insofar as it was based on these conditions was rejected by the Repatriation Commission ("the Commission") and his appeal to the Veterans' Review Board ("the VRB") from the Commission's decision failed. He appealed to the Administrative Appeals Tribunal ("the Tribunal"). The Tribunal affirmed the decision of the VRB. Mr Masliczek now purports to appeal to this Court. • If so, whether the Tribunal has erred in law in applying various provisions of the Veterans' Entitlements Act 1986 (Cth) ("the Act "). • Whether the Tribunal failed to meet its obligations, under the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act "), to provide reasons for its decision. It accepted that he suffered from a psychiatric condition which could be diagnosed as general anxiety disorder or depressive disorder and that he suffered from osteoarthrosis of the fingers of the right hand but held that neither of these conditions could be linked to his operational service. 5 Mr Masliczek sought to persuade the Tribunal that he suffered PTSD as a result of a number of stressful incidents which occurred while he was in South Vietnam. The second was when he was at a fire support base and felt that his life was in danger from the firing of rockets and mortars (the firing event). The third was when he witnessed the body of a friend who had shot himself (the shooting event). The fourth was when he was threatened with a hand gun by a taxi driver (the taxi event). The fifth was the death of a friend during the Tet Offensive (the casualty event). It also considered medical evidence about his claim to be suffering from PTSD. The Tribunal found Mr Masliczek to be an unsatisfactory witness. It concluded that the bodies event did not occur and that, if the other events did occur, they did not occur in the manner described by Mr Masliczek and they did not constitute traumatic events such as to give rise to a response involving intense fear, helplessness or horror. He has a collection of symptoms that can be diagnosed as general anxiety disorder or depressive disorder. However, the Tribunal finds that the stressful events described by Mr Masliczek either did not occur or do not amount to a category 1A stressor or a category 1B stressor within the meaning of the Depressive Disorder Instrument or the Anxiety Disorder Instrument. It follows that the psychiatric condition suffered by Mr Masliczek cannot be linked to his operational service in Vietnam. The reference to the Anxiety Disorder Instrument appears to be a reference to the RMA's Statement of Principles concerning Anxiety Disorder (No 1 of 2000) or its successor (No 101 of 2007). Definitions of category 1A and category 1B stressors are to be found in the Statements of Principles on Depressive Disorder (No 17 of 2007 and No 27 of 2008) and Anxiety Disorder (No 101 of 2007) but not in their predecessors. The definitions are in the same terms. [41] The discharge medical examination on 19 September 1968 records: Sprain R thumb Jun 68 --- sporting injury --- no sequelae. An x-ray report dated 4 November 1968 of the fourth finger of the right hand noted: No fracture or dislocation is seen. The interphalangeal joints appear normal. [42] In relation to the first step from Deledio, after considering Mr Masliczek's evidence and the x-ray reports, the Tribunal determines that the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him. Therefore he does not satisfy the first step. " (Emphasis in original). 1.2 Was the Tribunal wrong in law by applying incorrectly or not at all sections 119 , 120 (1) and (3), 120A of the Veterans' Entitlements Act 1986 (Cth) and the decision of Deledio v Repatriation Commission ? 3.1.2 The Tribunal conflated the two questions depriving the Applicant the benefit of the doubt in ascertaining whether he suffered a stressful event during his service. 3.1.3 The test adopted by the Tribunal throughout was that of the balance of probabilities whereas because of his operational service some of the circumstances surrounding the stressful events had to be given the more generous test of a reasonable hypothesis. The Tribunal erred in law in failing to apply the sections or the authority. 3.2.3 The Tribunal was required by law only to determine that the injuries claimed were not war caused if it was satisfied beyond reasonable doubt that there were no sufficient grounds for making such a claim (s 120(1) to do so it had to raise the test of a reasonable hypothesis based on all the material before it (s 120(3)). This the Tribunal failed to do. 3.2.4 The Tribunal was wrong in law in requiring the applicant to provide objective evidence that he had encountered the bodies of the children whereas the Tribunal was required to determine whether there was a reasonable hypothesis pointed out by the material that he had encountered the bodies. The Tribunal, although rejecting the event as being neither truthful nor accurate, did not challenge it pursuant to the requirements of s 120(1) , namely disprove it beyond reasonable doubt. 3.2.5 The Tribunal failed to apply s 120(1) to the circumstances of the applicant's case. 3.2.6 It was insufficient for the Tribunal to note that the circumstances of mortar and rocket fire did not accord with official records and that the events were not mentioned to two psychiatrists and to conclude that these were not traumatic events experienced by the applicant. It was not appropriate for the Tribunal to prefer the accuracy to the old official records of the events in relation to the shooting event. The Tribunal was required to ascertain whether the Applicant had been exposed or confronted with a traumatic event regardless of the position of the body or whether or not he had entered the tent. 3.2.7 The Tribunal appears to confuse between what constituted a traumatic event and whether or not the event took place. The Tribunal conflates these two questions to the detriment of the applicant. The Tribunal failed to take into consideration these reports and the evidence given. 3.4.2 The Tribunal was wrong in law in the standard of proof it adopted in determining whether the applicant met the requirements of the statements of principle for post traumatic stress disorder. 3.6 [This ground was not pressed]. 3.7 The Tribunal was wrong in law in failing to provide sufficient and adequate reasons for its decision. 10 Section 44(1) of the AAT Act provides for a right of appeal from the Tribunal "on a question of law". 12 It is, therefore, essential, in appeals brought under s 44 of the AAT Act , that a question or questions of law be identified. If the notice of appeal fails to disclose a question of law the necessary subject matter of the appeal is lacking. The Court has repeatedly emphasised the need for pure questions of law to be identified and for them to appear in the notice of appeal in order for the Court to be able to entertain an appeal: see, for example Australian Telecommunications Corporation v Lambroglou (1990) 12 AAR 515 at 524; Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 ; (2003) 76 ALD 321 at 324-325; Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd [2003] FCAFC 244 ; (2003) 133 FCR 290 at 300-302; Comcare v Etheridge [2006] FCAFC 27 ; (2006) 149 FCR 522 at 526-527; Commissioner of Taxation v Dixon [2006] FCA 1250 ; (2006) 155 FCR 101 at 104-106; Hussain v Minister for Foreign Affairs [2008] FCAFC 128 ; (2008) 248 ALR 456 at 465-468. It is in the specification of the grounds relied upon in support of the orders sought that, in our view, one should expect to find the links between the question of law, the circumstances of the particular case and the orders sought on the appeal. " (Emphasis added). 13 Each of the "questions of law", which are said to be raised in the present appeal is prefaced by the words "Was the Tribunal wrong in law ..." In each case the question was completed at the utmost level of generality. The questions did no more than invite an inquiry into whether the Tribunal had committed some error of law in reaching its decision. As framed these are not questions of law and are not rendered such by resort to a formula of the kind adopted in the prefatory words of each question: see Lambroglou at 527. The additional part of each question is cast at such a level of generality that an answer would not forge a link between the question, the circumstances of the case and the orders being sought by Mr Masliczek. An affirmative answer to question 1.2 would not, for example, necessarily mean that Mr Masliczek was entitled to any relief. An incorrect application of one of the nominated sections may not have any bearing on the adverse outcome of Mr Masliczek's appeal to the Tribunal. It is also unclear whether the question inquires whether all of the sections or any one of them has been incorrectly applied or not applied at all. In any event an affirmative answer would, for practical purposes, be meaningless because of the ambiguous references to a number of legislative provisions and a case and the suggestion that error might have resulted from their incorrect application or a failure to apply them at all. Similarly, an affirmative answer to question 1.4 would not avail Mr Masliczek if, in the circumstances, there was no occasion for the Tribunal to apply any statement of principle relating to PTSD. 14 The Commission recorded its objection to the competency of the proceeding two weeks before the hearing. It also filed and served detailed written submissions in support of its objection. They were not accepted by Mr Masliczek. Instead, he filed written submissions which sought to support the efficacy of the notice of appeal. At the hearing I drew attention to the absence of what I considered to be questions of law. Despite these warnings no application was made by Mr Masliczek to amend his notice of appeal or to frame alternative questions. The result is that the Court does not have before it the essential subject matter of an appeal. There is no question of law on which it can adjudicate under s 44 of the AAT Act . 15 In other cases in which the Court has been confronted with this problem and in which it has determined that it might be possible to frame an appropriate question of law, it has done so itself: see, for example, Birdseye . The time may have come, given the clear statements by the Court about the need for properly framed questions of law, now made over many years, for the Court to strike out purported appeals which do not identify questions of law. I would, nonetheless, be prepared, reluctantly, to attempt to frame questions of law in the present case if I considered that the interests of justice so required. I have concluded that they do not because I do not consider that the Tribunal has made any of the errors attributed to it by Mr Masliczek. As already noted the Tribunal found, as a matter of fact, that the traumatic events which Mr Masliczek claimed had given rise to PTSD, either had not occurred or had not occurred in the manner described by him and that they did not give rise to a response of the required intensity. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio, come into operation. 18 Once the Tribunal had concluded that the traumatic events described by Mr Masliczek had not occurred and that he was not suffering from PTSD there was no occasion for the Tribunal to embark on the four step process which is outlined Deledio in order to determine whether a non-existent medical condition could be linked to operational service. 19 Mr Masliczek submitted that it was not open to the Tribunal, having regard to the specialist medical evidence, to find that he did not suffer from PTSD. This submission must be rejected. Only one psychiatrist gave oral evidence. That was Dr Walton. Dr Walton made a diagnosis of PTSD on the basis of the bodies' event, the shooting event and the firing event as described by Mr Masliczek. He did not consider that the taxi event or the casualty event were stressful in the necessary sense. Drs Holwill, Cole and Gelb, whose reports were before the Tribunal, also diagnosed PTSD principally on the basis of the bodies' event. As the Tribunal found, this event did not occur. The fifth doctor, Dr Kenny, did not diagnose PTSD. The evidence did not, therefore, compel a finding that Mr Masliczek suffered from PTSD. 20 During oral argument counsel for Mr Masliczek sought to argue that the Tribunal had erred in the manner in which it dealt with the general anxiety and the depressive disorders which it found, in paragraph [36], that Mr Masliczek suffered. He argued that the Tribunal's reasons suggested that these conditions had been found not to be service related because Mr Masliczek had fallen at the third of the Deledio steps: he had not experienced a category 1A or a category 1B stressor as defined in Statements of Principles Nos 101 of 2007 and 27 of 2008. It was argued that, in accordance with the Full Court's decision in Repatriation Commission v Keeley [2000] FCA 532 ; (2000) 98 FCR 108 at 123; 131-2, the Tribunal was required to consider whether earlier versions of these instruments, which were in force at the time at which the primary decision on Mr Masliczek's claim was made, might, if applied, have led to a favourable decision. These earlier versions did not contain a requirement that an applicant must have experienced defined stressors during service. The Tribunal had not considered the earlier versions. 21 The Tribunal does not explain why it was that it embarked on a consideration of the general anxiety and depressive disorders from which it found Mr Masliczek to suffer. Counsel for Mr Masliczek (who also appeared for him before the Tribunal) was unable to advise the Court as to whether the Tribunal had been urged to find that Mr Masliczek suffered from these conditions or whether the Tribunal was referred to the Statements of Principles which deal with the conditions. It may be that the Tribunal felt bound to deal with these additional conditions, because of the ruling of the Full Court in Benjamin v Repatriation Commission [2001] FCA 1879 ; (2001) 70 ALD 622 at 633 that the Tribunal is required to consider issues raised by the material and evidence before it, even if an applicant does not articulate a case which is or may be supported by that evidence. 22 The difficulty which confronts Mr Masliczek is that there is no question of law or ground of appeal which raises any issue arising from the Tribunal's treatment of the psychiatric conditions identified in paragraph [36]. No application to amend was made. Had it been it was not bound to succeed because counsel for the Commission indicated that, had such issues been raised, it was likely that it would have filed a notice of contention. 23 Grounds 3.5 deals with Mr Masliczek's claim that the osteoarthrosis of the fingers from which he suffers was service related. The Tribunal held that Mr Masliczek did "not satisfy the first step" which was identified in Deledio . The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. It noted the reports of medical examinations conducted shortly after he was discharged from the Army in 1968. Those reports did not detect any injuries to his hand. The Tribunal also considered Mr Masliczek's evidence. The Tribunal determined that "the material does not point to a hypothesis connecting the condition with the circumstances of the particular service rendered by him. " This conclusion was open to the Tribunal. None of the material pointed to the necessary connecting hypothesis. 26 Ground 3.7, as developed in argument, directed attention to the way in which the Tribunal had explained (or failed to explain) its reasons relating to Mr Masliczek's general anxiety and depressive disorders and his osteoarthrosis. 27 Section 43(2B) of the AAT Act requires that the written reasons of the Tribunal "shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. In oral argument attention was focussed on paragraphs 36 and 42 of the Tribunal's reasons. 29 Paragraph 36 is relatively short. It dismisses any link between the general anxiety and depressive disorders from which Mr Masliczek suffers and his operational service. Although briefly expressed, the Tribunal's reasons for reaching this conclusion are, in my view, adequate. The paragraph picks up, by reference, the Tribunal's earlier findings that the events on which Mr Masliczek relied either did not occur or did not occur in the manner described by him. Those events falling in the latter category had earlier been found not to have constituted traumatic events. In order for them to fall within the definitions of category 1A or category 1B stressors within the meaning of the relevant Statements of Principles it was necessary for them to be "severe traumatic events". The Tribunal does not go on to explain in detail why it was that the absence of a category 1A or category 1B stressor meant that the necessary links between the conditions and war service were not forged under the relevant Statements of Principles. The Tribunal appears to treat this as being self evident. Although some of the intermediate steps in its reasoning are not exposed, the Tribunal has provided an adequate explanation of why it is that Mr Masliczek has not been able to bring his case within either of the relevant Statements of Principles. This is because the reader is referred to the Statements and is able, by examining them, to appreciate why it is that it is necessary for the defined stressors to be present in order for the links, based on an hypothesis, to be forged. 30 Paragraph 42 of the Tribunal's reasons has already been examined above at [23] to [25]. The Tribunal has adopted some shorthand expressions such as "the first step from Deledio ". Nonetheless its reasoning processes, as I have earlier summarised them, are sufficiently clear, in my opinion, to satisfy its obligations under s 43(2B) of the AAT Act . I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY.

veterans' entitlements disability pension whether appeal raised a question of law post-traumatic stress disorder question whether veteran experienced a severe traumatic event osteoarthrosis whether disease war-caused statements of principles whether administrative appeals tribunal failed to provide adequate reasons defence and war

He previously had had his resident visa cancelled under s 501 of the Migration Act 1958 (Cth) on character grounds. The basis of his claim to refugee status, as it was crystallised by the Refugee Review Tribunal, was that if he was returned to India he would suffer persecution for reason of his membership of a particular social group being "persons who have been convicted of sexual offences on children". While finding the applicant to be an Indian national, the Tribunal rejected the application on the ground that "the postulated group" is not a particular social group as envisaged by the Refugees Convention. That conclusion is impugned in the present proceedings. It is not the object of the Refugees Convention, in enumerating 'particular social group' as one of the reasons for persecution, to create a category which would encompass such putative agglomerations of individuals so as to render the concept meaningless. The groups envisaged require some concrete manifestation of their existence, discussed variously as being identifiable. Furthermore, the characteristic is not one which distinguishes the group from society at large. It may be a characteristic which distinguishes an individual from other individuals but not one which characterises a group. This distinction applies notwithstanding the cultural, religious and other factors relevant to India. The Tribunal finds that this element is absent. The contents of the newspaper article from The West Australian does not seem to support the applicant's contentions. The remarks attributed to his ex-wife and daughter seem to indicate to the Tribunal that their objective is to be as far away as possible from the applicant in order not to be reminded of the offences. Be that as it may, even if the Tribunal were to accept that the applicant's ex-wife were able to find the location of the applicant in India and were able to somehow publicise his history and the applicant were to be harmed to a degree that could be construed as persecution, the reason would not be because of his membership of any group but because of his actual crimes. It follows that the Tribunal finds that there is not a real chance that the applicant would be persecuted, now or in the reasonably foreseeable future, for his membership of a particular social group should he return to India. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A ... a group that fulfils the first two propositions, but not the third, is merely a 'social group' and not a 'particular social group'. I considered that the issue it was likely to raise was one which, in the interests of the administration of justice, required legal representation. To that end I made a referral under O 80 of the Federal Court Rules . I wish to express my appreciation to counsel, Mr Ower, and to his instructor, Ms McCarthy, both for their preparedness to act in this matter and for the assistance they have given. They do credit to their profession. 5 The two-pronged manner in which jurisdictional error is ascribed to the Tribunal's conclusion amounts in substance to alternative ways of looking at the same issue. It is whether the Tribunal asked and/or properly answered the correct question, hence the reliance upon observations in the joint judgments in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] and Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [34]-[37] which point up the various routes by which jurisdictional error may be demonstrated. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. Put shortly, it is said that that paragraph appears to answer the first Applicant S question (directed at whether there is a group identified by a characteristic or common attribute) by resort to considerations relevant to the third question and vice versa. It is equally said that the third question (directed at whether the group is distinguished from society at large) was answered without consideration of cultural and other factors relevant to India. In other words, it is said that the Tribunal has confused the requirement that the group be identifiable (the first Applicant S question) with the requirement that it be distinguished from society at large (though what makes it identifiable and distinguishes it is the member's sharing of a characteristic or attribute. ) Objection likewise is taken to the Tribunal's insistence that the group alleged must have "some concrete manifestation". I am in consequence asked to infer error from the sequencing of the sentences in the paragraph, the inaptness of some of what is demanded (e.g. "concrete manifestation") and the failure to locate the question in its Indian context. 7 The Minister's submission is that the Tribunal posed the correct question for itself as to whether "one can talk of such a particular social group and in India". While the Tribunal's expression could have been better, it dealt with the two relevant questions posed by Applicant S . In any event, it is said the Tribunal concluded that were the applicant to be harmed in India to a degree amounting to persecution, "the reason would not be because of his membership of any group but because of his actual crimes". 8 My own view, which reflects what the applicant has submitted, can be put shortly. While I accept that the Tribunal's reasons ought not be scrutinised overzealously, it is nonetheless apparent that they betray jurisdictional error in the paragraph upon which the applicant has focussed. The Tribunal posed for itself the correct question, i.e. whether "one can talk of [the particular] social group and in India". What it did not do was to answer that question. 9 After accepting that being convicted of a sexual offence on children may be a characteristic, it reasoned that that characteristic was not the matter that "makes the group identifiable". Why this is so seems to be because this alleged "group" was not "identifiable"; it was a "putative agglomeration of individuals" --- whatever this is meant to signify; it lacked "concrete manifestation of [its] existence"; and the characteristic relied upon merely distinguished "an individual from other individuals" but it did not characterise a group. 10 It is difficult to comprehend from this (a) what the Tribunal considered would constitute "a group" and how it could be constituted for the purposes of the first Applicant S criteria and (b) what the requirement of "concrete manifestation" was supposed actually to signify in light of that criteria. What is clear, though, is that the Tribunal forsook applying the Applicant S criteria in favour of a process which conflated both the first and third criteria in a way that defeated its answering properly the question it posed for itself. The critical question, ultimately, was whether there was the particular social group claimed. By discountenancing that there was such a "group" in the manner in which it did, the Tribunal never reached the third Applicant S criteria, let alone a consideration of whether that group was a "particular social group in India" having regard either to societal perceptions in India and to "cultural [etc] factors relevant to India": cf Applicant S at [34]-[35], [68]-[69]. 11 The differentiating characteristic advanced by the applicant was not so semantically uncertain as to render it too uncertain as a criteria for differentiating those to whom it did apply, from those to whom it did not. It was a characteristic capable of application to isolate what could be considered to be a distinct group. Why it could not perform that differentiating function in this matter is, with respect to the Tribunal member, wholly unclear. 12 To identify a "group" is a relatively easy matter. There is a myriad of possible differentiating criteria capable of being invoked to that end in a myriad of possible settings: "supporters of [X] football club"; "all boys under the age of two": cf Matthew 2:16; etc. Societies and their members commonly designate persons as constituting a group for a host of familial, social, cultural and political reasons and purposes. Few, though, of such groups will constitute "particular social groups" in the sense that the characteristic or attribute which individually identifies such groups, distinguishes the groups from society at large. 13 Because of what I infer was the Tribunal's erroneous analysis of the "group" requirement, it failed to address the principal issue before it which was whether, in India, the claimed group was a particular social group. From the manner in which it disregarded "the cultural, religious and other factors relevant to India", it equally appears that it misapprehended as well what the third Applicant S criteria would have required of it. 14 The respondent sought to rob this conclusion of legal significance by relying upon the later finding of the Tribunal which, it is claimed, was independently decisive of the matter. I would, in any event, add that the distinction between persecution of a person because of what he or she does as distinct from his or her membership of a group whose attribute is the doing of the same thing can be illusory. I need only instance societies in which adultery or homosexuality can attract persecutory conduct: cf Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ; (2003) 216 CLR 473; see also Ram v Minister of Immigration and Ethnic Affairs (1995) 57 FCR 565 at 568-569. 16 My conclusion necessitates that this matter be remitted to the Tribunal to be heard and determined according to law. Whether or not the applicant will be found to belong to a particular social group and whether he has a well founded fear of persecution if returned to India for reasons of membership of that group are questions yet to be answered. A writ of certiorari be issued, directed to the Refugee Review Tribunal removing its decision in this matter into this Court for the purpose of quashing it. 2. A writ of mandamus be issued, directed to the Refugee Review Tribunal, requiring it to hear and determine according to law the matter the subject of the decision. 3. The first respondent pay the applicant's costs of the application.

applicant a convicted child sex offender resident visa cancelled under s 501 of migration act 1958 (cth) applicant applied unsuccessfully for protection visa applicant claimed well-founded fear of persecution for reason of membership of a particular social group being "persons who had been convicted of sexual offences on children" tribunal rejected application on ground that claimed group not a particular social group for purpose of refugees convention migration

The application is supported by the affidavit of Krysti Justine Guest affirmed on 28 May 2008. The applicant has been called the "Rubibi applicant" in these proceedings. This is because they were brought by a group of people who adopted the name "Rubibi", which is an aboriginal soak or waterhole in Broome and a name generally associated with the Broome Aboriginal community. The Rubibi applicant brought the proceedings on behalf of the Yawuru Community. 4 The applicants in the first motion were originally applicants but became respondents to the proceedings on behalf of a subset of the Yawuru Community, known as the Walman Yawuru ("the Walman Yawuru respondents" ) . Their independent application for native title was dismissed: Rubibi Community v The State of Western Australia (No 7) [2006] FCA 459. They were joined as respondents on their application, by order of Merkel J: Rubibi Community v The State of Western Australia (No 3) [2002] FCA 876 ; (2002) 120 FCR 512. 5 The Walman Yawuru respondents had contended that they had competing and conflicting native title rights and interests, relevantly, in respect of the area being claimed by the Rubibi applicant on behalf of the Yawuru Community. The joinder was made so that the Court could determine all disputes between the competing claimants as to the existence, nature and extent of the native title rights and interests being claimed by both the Yawuru and the Walman Yawuru claimants. 6 The Walman Yawuru respondents were found to have a special attachment to part of the claim area known as the Mangalagun area. However, it was not such as to constitute or give rise to a native title right or interest as defined in ss 223(1) and 253 of the Act . It followed that no rights or interests claimed by the Walman Yawuru respondents were possessed by them as members of the Walman Yawuru clan: Rubibi Community v The State of Western Australia (No 5) [2005] FCA 1025 [233] and [375]. 7 In later reasons, Merkel J held that any native title rights and interest in the claim area were held by the Yawuru people on a communal basis and not by members of the Walman Yawuru on a group or clan basis and that they did not have native title rights and interests in that capacity in the claim area: Rubibi Community v The State of Western Australia (No 6) [2006] FCA 82. These findings were undisturbed on appeal: The State of Western Australia v Sebastian [2008] FCAFC 65. 10 The proceedings were the subject of final orders made by Merkel J in April 2006 in Rubibi (No 7) . Those orders were amended by orders of French J made on 23 November 2006, 30 April 2007 and 9 May 2007 pursuant to a limited liberty to apply. 11 Importantly, for reasons I will explain later, the determination as to the existence of native title does not take effect until the making of a determination in respect to a PBC under s 56(1) or s 57(2) of the Act . 12 It is anticipated that final orders will shortly be made giving effect to the reasons of the Full Court. 14 Edward Leonard Roe, an elder of the Walman Yawuru clan, stated that after receiving notice of a meeting from the Kimberley Land Council ("KLC"), who represent the Rubibi applicant in relation to the negotiations, it was decided that the Walman Yawuru members would not participate in the negotiations due to previous threats of violence and because they were awaiting the decision of the appeal in this matter. A letter to that effect was sent to the KLC, the State of Western Australia ("the State") and other relevant parties. 15 Mr Roe deposes to the perceived threat to the native title of the Walman Yawuru as a result of negotiations being conducted between the Rubibi applicant and the State. He says that the Walman Yawuru are concerned to protect their traditional and custodial country especially those areas in respect of which clan members were found in the original proceedings to hold special attachment and responsibilities. He also states his concern on behalf of the Walman Yawuru to the perceived threat to damage to areas of country covered by these negotiations. The affidavit was affirmed two days after the determination of native title made at first instance by Merkel J on 28 April 2006 but before the decision of the Full Court to which I have referred. It asserts, on a number of occasions that the Walman Yawuru have native title to their "clan and custodial country". 16 Ms Hanigan is a law student who, on 10 February 2003, was granted leave by this Court under s 85 of the Act to represent the Walman Yawuru in the substantive proceedings. She stated that she received an undated letter from the KLC on 11 May 2007. That letter stated that "the State had commenced negotiations with Rubibi (applicants) in order to settle native title and heritage issues affecting specific future developments proposed for Broome. " The "Rubibi Steering Committee" was to represent all the native title holders, as determined by the Court, in the negotiations. It stated that a global agreement was to be negotiated as opposed to "future act" negotiations for each individual area of land. The global agreement was to be for the whole community of native title holders, despite the fact that the Walman Yawuru people had, in the past, taken separate action. It also invited Ms Hanigan to meet with the Rubibi Steering Committee to discuss any concerns the Walman Yawuru had in negotiating a "global" agreement. On 7 June 2007, the State sent a letter to Ms Hanigan indicating, amongst other things, that substantive negotiations would commence in July of that year. 17 Ms Hanigan maintained in her correspondence that the Rubibi Steering Committee did not represent the Walman Yawuru and that they wished to be independently represented in the negotiations. She complained that the KLC and State have failed to provide details of the locations of the "specific future developments" that may affect the Walman Yawuru claim area, or to provide full and frank disclosure of the negotiations between the State and the Rubibi Steering Committee. 18 Ms Hanigan also pointed to the concern of the Walman Yawuru in relation to the State's alleged disregard of their objection to the compulsory acquisition and subsequent clearing and development of certain land at Cable Beach, Broome as well as the damage to Ngaminyarri, a location found in the original proceedings to hold native title and to be important to the Walman Yawuru. 19 This affidavit too was sworn in the period between the determination judgment and the appeal. 20 In her affidavit of 4 June 2008, Ms Hanigan refers to evidence given in the proceedings in support of assertions for clan-based native title rights and interests in Walman Yawuru traditional clan and custodial lands that covered only part of the Rubibi claim area. She refers to a finding at first instance and by the Full Court of a general finding that native title existed in the determination area. She complains that the actions by the State and the KLC have effectively denied the Walman Yawuru the options of taking action either in the courts or under State or Commonwealth Aboriginal Heritage Protection legislation to protect specific sites of cultural significance. Another compelling reason in support in the proposed interlocutory injunction is said to be the possibility that part of the determination area may be chosen for a gas processing plant and/or an associated alumina refinery plant. The "critical issue" is said to be that the State and the KLC have entered into a formal agreement which recognises the KLC as the sole authority to enter into negotiations and discussions on behalf of "Traditional Owners" including the Walman Yawuru in Broome over the potential gas processing sites to service the Browse Basin gasfield. It is nonetheless not relief which is granted lightly and the Court should be cautious in dismissing proceedings pursuant to s 31A: Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 ; (2006) 236 ALR 720. The utility of bringing such a motion in the present circumstances is questionable when, inevitably, there was, in effect, full argument on the first motion as the means of considering the motion for dismissal. I will refer to the Walman Yawuru respondents, in respect to the dismissal motion, simply as the respondents. 24 The relief sought in the first notice of motion it is said, does not fall within either category and therefore, the liberty to apply ordered by Merkel J in Rubibi (No 7) does not extend so far as to allow the making of the application for the relief sought in the first notice of motion. Further, on the appeal, the only procedural steps available to any of the parties, including the Walman Yawuru Respondents, in relation to the proceeding on appeal are in accordance with the final orders, once made, of the Full Court or to file an application in the High Court of Australia seeking special leave to appeal. 25 For these reasons the applicant submits that the first motion is incompetent. 26 I am not persuaded that this is necessarily the case. Common Law Superior Courts of record do not become functus officio merely upon the making and entry of the judgment or order that determines the rights of the parties: they retain power in the same suit to make supplemental orders not limited to orders in aid of the enforcement and working out of the order determining the rights of the parties. So observed Drummond J in Australian Competition & Consumer Commission v The Shell Company of Australia Limited (1997) 72 FCR 386 at 395. His Honour also observed that this Court's ancillary powers flow from authority under ss 22 and 23 of the FCA Act to resolve the whole of the controversy between the parties. 27 This Court has power to make supplemental orders and the exercise of this jurisdiction, while no doubt requiring caution, is not limited to the making of orders in aid of the enforcement and working out of original orders, although to do so may be appropriate: Caboolture Park Shopping Centre Pty Ltd (in Liquidation) v White Industries (Qld) Pty Ltd [1993] FCA 471 ; (1993) 45 FCR 224 at 234-236. These principles were reaffirmed recently by a Full Court in Remington Products Australia Pty Ltd v Energizer Australia Pty Ltd [2008] FCAFC 47. 28 Because of the position adopted by the respondent, to which I will turn shortly, it is not necessary to decide this question. It is unnecessary, for the same reason, to deal directly with the balance of arguments made by the applicant. I will assume, without deciding the question, that the Court has jurisdiction to entertain the first motion. 29 The principle concern of the applicants on the first motion relates to "future acts" which would extinguish, impair, or would otherwise be inconsistent with native title rights and interests, the subject of the determination and which might result from negotiations currently on foot between the Rubibi applicant and the State. It is accepted by the parties that any action that falls within paragraphs 1(a) and 1(b) of the first motion is an act affecting native title, and potentially a future act, in respect of which procedural rights may accrue. Further it is accepted that any action falling within paragraph 1(c), in so far as it affects native title rights and interests, is also potentially a future act. Such future acts, could include, for example, an indigenous land use agreement involving the extinguishment of native title or surrender of native title in return for payment of compensation. 30 It is for the applicant to establish the grounds to warrant an order for dismissal under s 31A: Boston Commercial Services Pty Ltd [2006] FCA 1352 ; 236 ALR 720. Nonetheless the respondents submit that two issues arise on the first motion which, if resolved against them, would justify an order for dismissal. I take this concession to mean that if the applicant satisfies me that the respondents have no reasonable prospects of successfully demonstrating that the two issues are serious issues to be tried then the first motion ought to be summarily dismissed. Both issues reflect the core submission of the respondents which is to the effect that the applicant has no authority to negotiate future acts, on behalf of the Yawuru Community which includes the Walman Yawuru clan, with the State. In this way the matters for judgment have been significantly confined. It involves consideration of s 30(2) of the Act . Properly understood this issue does not involve any question of the construction of that statutory provision but rather, whether, on the facts, the provision presently has application. 32 The requirement to negotiate in respect to future acts is provided for in Subdivision P of Div 3 of Part 2 of the Act . Notification must be given by a Government party, before the act is done, relevantly here, to the registered native title claimant, which is by definition also the native title party (ss 29(2)(b) and 30 (1)(a); definition of "registered native title claimant" in s 253). 33 It was common ground between the parties that procedural rights in relation to future acts, including the right to negotiate, accrued to a registered native title claimant, defined under s 253 of the Act , as relevantly, persons whose names appear in an entry on the Register of Native Title Claims as the applicant in relation to a claim to hold native title in relation to land and waters. 34 On 24 September 1999, some of the persons comprising the Rubibi applicant were registered as a native title claimant in respect of the application which covers the whole of the area described in the notice of motion. The application was amended, inter alia , to include all of the people comprising the Rubibi applicant and that registration was confirmed on 12 May 2005. All the people comprising the Rubibi applicant are still registered as native title claimants. 35 A PBC has not yet been the subject of a determination by the Court under s 56(1) or s 57(2). 36 The respondent submits however that the Rubibi applicant has ceased to be a native title party because it has ceased to be a registered native title claimant by virtue of s 30(2) of the Act . 38 Clearly the Act contemplates that once an effective determination has been made the registered native title claimant will be removed from the Register and substituted by a PBC. However, to the extent that it was determined that native title existed, the determination was to take effect immediately upon the making of a determination under s 56(1) or s 57(2) of the Act : Order 2(b) of Merkel J made on 28 April 2006. No determination has been made under either of those provisions of the Act . Accordingly the determination of native title has not yet taken effect. 39 Counsel for the State has advised me, and I accept, that Order 2(b) was drafted in terms so as to ensure that the Rubibi applicant as the registered native title claimant would remain on the Register of Native Title Claims so that any party, such as the State, proposing to do a future act over the area where native title was determined to exist would know whom to notify of the relevant act until such time as a PBC was determined under s 56 and s 57(2) of the Act . 40 This drafting addressed a perceived hiatus in the Act whereby, once a native title determination had been made and taken effect over an area of land, the Registrar of the Federal Court would notify the Native Title Registrar pursuant to s 189A(b) of the Act and the Native Title Register would then be amended to remove the entry pursuant to s 190(4)(d) of the Act if the application was finalised. Early determinations became effective immediately with respect to areas where native title had been extinguished, as well as areas where native title existed, but allowed a period of time for nomination of a prescribed body corporate. An example of this is to be found in the orders made in James on behalf of the Martu People v State of Western Australia [2002] FCA 1208. In such a case, there was an hiatus period between removal of the entry from the Register of Native Title Claims and thereby removal of the details of the registered native title claimant and the entry onto the National Native Title Register of the PBC: s 193(2)(e) of the Act . In James , a period of 3 months was allowed for nomination of a PBC. Arguably, in this period there was no native title party (s 253 of the Act ) to notify or to negotiate with for the purposes of Part 2 Division 3 of the Act . Proposed paragraph 190(4)(da) would make clear that when a determination of native title has been made but no RNTBC has yet been determined, the Register of Native Title Claims should be amended to reflect that situation. The NNTT currently proceeds on the basis that the claim is not finalised until the RNTBC has been determined or registered, which ensures that the native title holders may still be notified of any proposed future acts pending registration. However, this approach gives rise to confusion where the determination establishes that native title has been extinguished over parts of the claim area, in so far as the National Native Title Register will not reflect this (and could suggest that the claimants continue to have procedural rights over those parts). 43 Accordingly in the period between the making of a native title determination and the making of a PBC determination or nomination, the Register of Native Title Claims will make the situation clear to ensure that procedural rights are only accorded to the registered native title claimants over areas where native title has been found to exist. The concern that led to the drafting of Order 2(b) has now been legislatively addressed. 44 In any event, because the determination of native title in this case, by virtue of Order 2(b) is yet to take effect, the Rubibi applicant, as a matter of fact, is the registered native title claimant on the Register of Native Title Claims and it is the native title party, by virtue of ss 30 and 253 of the Act for the purpose of negotiating future acts with the State. 45 Accordingly s 30(2) of the Act has no application presently. The respondents' submission fails. 47 Section 251B sets out the meaning of "authorise" for the purposes of the Act . Section 61(1) of the Act relevantly provides that a native title determination application may be made by persons "authorised" by all the persons (the native title claim group) who according to their traditional laws and customs, hold the common or group rights and interest comprising the particular native title claim provided the persons are also included in the native title claim group. No application to replace the Rubibi applicant, under the provisions of s 66B of the Act was made. The description of the native title claimant group in the Further Amended Native Title Determination Application Claimant Application dated 24 September 2004 includes a list of apical ancestors which is the same as the list now included in Schedule 1 to the Determination made 28 April 2006 but for the omission of the last name on the Application list, which was omitted as a result of Merkel J finding that the Goolarabooloo people were not part of the native title holding group. The first two apical ancestors named on both lists are those persons identified in oral submissions by Ms Hanigan on 4 June 2008 as the apical ancestors of the Walman Yawuru people. 50 Accordingly, the native title claim group in the WAD 6006 of 1998 Application includes the Walman Yawuru. The Registrar was satisfied that the claim was authorised by all persons in the native title claim group. No challenge has been made concerning authorisation and the claim is now finalised, but for the nomination of the PBC. Final orders have been made. In my opinion, the Walman Yawuru cannot now raise the question of the lack of authorisation of the Rubibi applicant to deal with matters arising under the application, including the nomination of a PBC as well as future act negotiations under the provisions of the Act pending the determination of the PBC. In its negotiations with the State the Rubibi applicant represents the Yawuru Community which includes the Walman Yawuru people. 51 This submission also fails. Accordingly I am of the opinion that there is no reasonable prospect that the first motion can be successfully prosecuted and it ought to be dismissed under the provisions of s 31A of the Federal Court of Australia Act 1976 (Cth). The power to do so is discretionary. 54 The first motion is brought within the substantive proceedings which are proceedings under s 61 of the Act . I have proceeded, in these reasons, on the basis that the Court has jurisdiction and is not functus officio . The prima facie position under s 85A(1) is that in such proceedings each party will bear his or her own costs. 55 The issues involved are, at one level, complex. The applicants in the first motion have not been represented by solicitors or counsel. I would not, in the circumstances, be prepared to characterise the conduct of the applicants in the first motion as being unreasonable. This is so, even though I have concluded that the first motion has no reasonable prospect of success. The position may well have been different if the applicants in the first motion had been represented by experienced lawyers: cf Birri-Gubba (Cape Upstart) People v State of Queensland [2008] FCA 659. [37] These observations should not be seen in any way as a reflection on Ms Hanigan. Ms Hanigan is a law student who I have no doubt has been doing her best to represent the interests of the applicants in the first motion. They are not in receipt of public funding. 56 Furthermore, the articulation by Ms Hanigan of the two issues, which I have dealt with, together with her concession, quite properly made, that the resolution of these adverse to those whom she represents would justify the summary dismissal of the first motion greatly reduced both the time of the hearing and the issues for judgment. 57 No other basis exists, in my view, to depart from the prima facie rule under s 85A. I would make no order as to costs either in respect of the first motion or the dismissal motion, each of which was necessarily tied to the other. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. In accordance with s67(1) of the Native Title Act 1993 (Cth) ( Native Title Act ), WAD 285 of 2004 be heard and determined at the same time as these proceedings. 2. There be a determination of native title in WAD 6006 of 1998 and WAD 233 of 2004 in terms of the Rubibi Native Title Determination No.2 attached. 4. If a prescribed body corporate is nominated in accordance with Order 3, it will hold the native title rights and interests described the Determination in trust for the common law holders of the native title rights and interests. 5. If a prescribed body corporate is not nominated in accordance with Order 3, the native title rights and interests described the Determination will be held by the common law holders (as defined in the determination) in respect of the Determination Area as the common law holders of the native title rights and interests. 6. If a prescribed body corporate is not nominated in accordance with Order 3, and native title is therefore held by the common law holders in accordance with order 5, then the matter is to be relisted by the Registrar in order that the Court can consider the making of orders in accordance with section 57(2) of the Native Title Act . 7. Maps indicating, to the satisfaction of the parties, the location of the Determination Area and the areas comprising the Determination Area be filed and served within 6 months of the date of this Order and when file and served, shall be included in Schedule 8 of the Determination and form part of the Determination. 8. Liberty to apply to a Judge of the Court in respect of any matter arising out of Orders 3 to 7 of these Orders. 9. No order as to costs. In respect of land and waters other than that referred to in paragraph 2 of the Determination, applications WAD 6006 of 1998 and WAD 223 of 2004 are not "finalised" within the meaning of s 190(4)(e) of the Native Title Act until a prescribed body corporate has been determined, in accordance with s 56(1) or s 57(2) of the Native Title Act , to perform the functions mentioned in s 57(1) or s 57(3) of that Act as the case may be. Native title exists in relation to the land and waters described in Schedules 4, 5 and 6. 2. Native title does not exist in relation to the land and waters described in Schedule 3. The native title is held by the "Yawuru Community", being the persons described in Schedule 1 ( native title holders ). The native title rights and interests in Orders 5 and 6 do not confer possession, occupation, use and enjoyment on the native title holders to the exclusion of all others. 8. The nature and extent of other interests in relation to the Determination Area are those set out in Schedule 7 (" other interests "). 13. In the event of an inconsistency between the written description of an area in Schedules 2 to 7 and the area as depicted on the Maps in Schedule 8, the written description prevails. The areas described and listed as being in Schedule 3 in the Determination Area Table, and generally shown on the Maps in Schedule 8. 2. Any part of an area (other than an area identified in the Determination Area Table as an area to which s47A or s 47B of the Native Title Act applies to require prior extinguishment to be disregarded) upon which an improvement has been constructed pursuant to a right granted under a pastoral lease or a mining lease prior to the date of this determination and including any adjacent land or waters the exclusive use of which is necessary for the enjoyment of the improvement. 3. The interests of holders of tenements under the Mining Act 1978 (WA) including any entitlement to use (including by servants, agents and contractors) such portions of existing roads and tracks in the Determination Area as necessary in order to have access to the mining tenement for the purposes of exercising the rights granted by that tenement provided that such use does not include the upgrade, extension, widening or other improvement of a road or track or any work on a road or track other than work done to maintain it in reasonable repair and in order to leave it in substantially the same condition as it was prior to such use. 4. The interests of the holders of statutory fishing interests granted under the Fish Resources Management Act 1994 (WA), the Pearling Act 1990 (WA), and the Fisheries Management Act 1991 (Cth) and any regulations made pursuant to such legislation. 5. The interests of holders of any other valid or validated rights and interests granted by the Crown pursuant to statute or otherwise in the exercise of its executive power. 6. Rights and interests held by reason of the force and operation of the laws of the State or of the Commonwealth, including any right or interest created by or in relation to the proclamation of the Broome Groundwater Area on 1 November 1974 and the Canning-Kimberley Groundwater Area on 22 April 1997 pursuant to section 26B(1) of the Rights in Water and Irrigation Act 1914 (WA); and the constitution of the Broome Water Reserve pursuant to section 9 of the Country Water Supply Act 1947 (WA). 7. The rights under the international right of innocent passage. 9. 10.

native title motion for summary dismissal under s 31a federal court of australia act 1976 (cth) of motion for interlocutory injunctive relief whether the "rubibi applicant" still the registered native title claimant and native title party and thereby entitled to negotiate with the state of western australia future acts on behalf of the yawuru community, including the walman yawuru clan s 30 native title act 1993 (cth) whether rubibi applicant had ceased to be the registered native title claimant s 30(2) of the native title act whether rubibi applicant, even if it was the registered native title claimant had been authorised to make original application to the court ss 61 and 251b native title act whether rubibi applicant entitled to negotiate on behalf of the yawuru community, including the walman yawuru clan with the state. proceedings under native title act 1993 (cth) whether s 85a of the act had application if so whether applicant in motion engaged in unreasonable conduct such as to enliven s 85(2) displacing prima facie rule that each party bear his or her own costs. aborigines costs

NN4442 of 2009 ('the Bankruptcy Notice') served on Mrs Coshott on 10 October 2009. By the amended application, Mrs Coshott also sought, pursuant to s 41(6A) of the Bankruptcy Act 1966 (Cth) ('the Act'), that time for compliance with the Bankruptcy Notice be extended 'pending the outcome of [her] Notice of Motion filed on 23 October 2009 in proceeding 4000/09 in the District Court of New South Wales at Sydney'. 4000/09) together with interest accrued since the date of judgment in the sum of $1,187.76. The judgment arises from the registration of a determination of costs assessed against Mrs Coshott under s 368 of the Legal Profession Act 2004 (NSW) ('the Legal Profession Act '). The costs assessment (2008/00017354) arises from a costs order made in favour of Mr Barry against Mrs Coshott and her husband in proceedings in the Supreme Court of New South Wales: Coshott v Barry [2007] NSWSC 1094. An appeal to the New South Wales Court of Appeal was unsuccessful: Coshott v Barry [2009] NSWCA 34. On 1 July 2009, Mrs Coshott filed in the District Court an amended summons to appeal the costs assessment 2008/00017354. The appeal (No. 2872/09) is brought pursuant to ss 384 and 385 of the Legal Profession Act . The appeal under s 384 is brought as of right; the appeal under s 385 is subject to leave. On 23 October 2009, Mrs Coshott filed a notice of motion in the District Court to set aside the judgment in proceeding No. 4000/09, a stay of the judgment, a stay of the enforcement of the judgment and a suspension, pursuant to s 386 of the Legal Profession Act , of the cost assessor's determination (2008/00017354) pending the outcome of proceeding No. 2872/09. On 29 October 2009, a Registrar of this Court extended time for compliance with the Bankruptcy Notice to 11 November 2009. That decision is the subject of an interim application for review by Mr Barry, which I heard at the same time as Mrs Coshott's amended application. Time for compliance with the Bankruptcy Notice was further extended by another Registrar of the Court on 11 November 2009, extending time for compliance until 18 November 2009. On 17 November, I fixed Mrs Coshott's amended application and Mr Barry's interim application for hearing on 4 December 2009 and extended the time for compliance with the Bankruptcy Notice until 7 December 2009. On 27 November 2009, the notice of motion in District Court proceeding No. 4000/09 was heard and dismissed in its entirety on the basis that the court did not have jurisdiction to grant the stay and other relief sought. On 1 December 2009, Mrs Coshott filed a notice of motion seeking to amend the summons in proceeding No. 2872/09 so as to add a claim that judgment in proceeding No. 4000/09 be set aside. Those proceedings were also listed for directions on that date, and directions were made in relation to the notice of motion, including that it be listed for hearing on 18 December 2009. There was exhibited to that affidavit and marked 'Exhibit LC-1' various documents including a copy of the Bankruptcy Notice, a copy of the sealed judgment in proceeding No. 4000/09, a copy of the certificate of determination of costs (assessment No. 00017354 of 2008), copies of various correspondence and other process in proceedings Nos. 2872/09 and 4000/09. It is not clear whether 'Exhibit LC-1' was filed with the affidavit, but if it was, it became detached and was not before the Registrar when, on that same day, she extended time for compliance with the Bankruptcy Notice until 11 November 2009. The fact that 'Exhibit LC-1' was not before the Registrar at the time she extended time for compliance with the Bankruptcy Notice forms the basis of Mr Barry's interim application for review of the Registrar's decision. The notice had been served on Mrs Coshott on 10 October 2009. (2) The amended application in these proceedings was filed on 29 October 2009 prior to the expiry of the Bankruptcy Notice, and (it should be inferred) was also filed before the making of the order extending time. The relief sought in that application includes the setting aside of the Bankruptcy Notice and an extension of time for compliance with the Bankruptcy Notice in accordance with s 41(6A) of the Act. 4000/09. (4) The Court therefore had jurisdiction under s 41(6A) to extend time. There is no suggestion that the Court, or the Registrar, was of the opinion referred to in s 41(6C). (5) The Registrar had power to extend time under s 41(6A): Federal Court of Australia Act 1976 (Cth), s 35A(1)(h) ; Federal Court (Bankruptcy) Rules 2005 (Cth), r 2.02, Sch 2, Item 4. (6) The discretion to extend time was granted up to and including Wednesday, 11 November 2009, whilst at the same time the parties were given liberty to apply to vary or discharge the order extending time on 24 hours' notice. (7) This extension of time was a minimal extension of time, to the date of the first directions hearing, at which time it was then necessary for Mrs Coshott to renew her application. (8) If the application had not been granted, an act of bankruptcy would have occurred prior to the directions hearing, rendering the application futile. The alternative would be for the Court to list any such application for an inter partes hearing within the time limited under the Bankruptcy Notice. This would no doubt cause considerable inconvenience for the Court if this course were to be generally adopted. (9) It was appropriate for the extension of time to be granted on that occasion, just as it was granted on two subsequent occasions, pending a final hearing of the application. I agree with these submissions. I am firmly of the view that in exercising her discretion to extend the time for compliance with the Bankruptcy Notice until 11 November 2009, the Registrar's discretion did not miscarry and that her decision is not otherwise infected with any error which would warrant it being set aside. I therefore decline to do so. NN4442 of 2009 (" Bankruptcy Notice "), which was served on the Applicant on 10 October 2009, be set aside. A copy of that Bankruptcy Notice accompanies this Application. Pursuant to s.41(6A) of the Bankruptcy Act 1966 , that the time for compliance with the Bankruptcy Notice be extended pending the outcome of the Applicant's Notice of Motion filed on 23 October 2009 in proceedings 4000/09 in the District Court of New South Wales at Sydney. In other words, the first application was to set aside the Bankruptcy Notice. There is no express power in the Act to do so but it is common ground that it is within the general powers of the Court conferred by s 30(1) of the Act: see Australian Securities and Investment Commission v Forge [2003] FCAFC 274 ; (2003) 133 FCR 487 at [26] per Emmett J. The second application sought an extension of time for compliance with the Bankruptcy Notice in reliance on s 41(6A) of the Act pending the outcome of Mrs Coshott's notice of motion filed on 23 October 2009 in proceeding No. 4000/09. The written and oral submissions on behalf of Mrs Coshott were structured and articulated on the basis that the primary application was for an extension of time for compliance when, in truth, that was not the primary application; the primary application was to have the Bankruptcy Notice set aside. If that application is dismissed, then one of the two bases upon which the Court may extend time for compliance with the Bankruptcy Notice, that in para (b) of s 41(6A) , goes away. In any event, that is how I propose to consider and deal with Mrs Coshott's amended application of 29 October 2009. First, consider and rule on her application to set aside the Bankruptcy Notice and then consider and rule on her application for the Court to further extend time for compliance with the Bankruptcy Notice. Arguably, Mrs Coshott's affidavit of 27 October 2009 filed in support of her amended application of 29 October 2009 set out the grounds upon which she sought an extension of time for compliance with the Bankruptcy Notice in compliance with r 3.03(1), but even that is not beyond argument. But even if she did, that would not satisfy the requirements of r 3.02(1) which requires the affidavit to set out the grounds in support of the application to set aside. As was noted in Maher v Commonwealth Bank of Australia [2008] FMCA 1004 , a failure to address the material requirements of r 3.02 (in that case it was r 3.02 of the Federal Magistrates Court (Bankruptcy) Rules, but they are in the same terms) will normally be fatal to an application to set aside a bankruptcy notice. (2) Second, counsel for Mrs Coshott did not articulate any grounds upon which the application to set aside the Bankruptcy Notice was founded. The Act permits the issue of a bankruptcy notice and, if the notice is valid, prescribes the consequences to the bankrupt of non-compliance. The grounds upon which a bankruptcy notice may be set aside must relate to the form or content of the notice, service of the notice or the existence of the debt upon which the judgment, and, in turn, the notice, is founded. Reference to the existence of a debt includes the existence of a counterclaim, set-off or cross demand equal to or exceeding the amount of the debt: Re Briggs; Ex parte Briggs v Deputy Commissioner of Taxation (WA) (1986) 12 FCR 310 ; Re Athans; Ex parte Athans (1991) 29 FCR 302. Since jurisdiction to set aside a defective bankruptcy notice is not a general discretionary jurisdiction, it differs from the jurisdiction to make a sequestration order under s 52(1), which is expressly discretionary. Turning to her application pursuant to s 41(6A) of the Act that the time for compliance with the Bankruptcy Notice be extended, I do so on the basis that, in the face of the conclusion expressed in [19] above, the requirement that is para (b) of s 41(6A) is no longer satisfied; there is no application to set aside the Bankruptcy Notice before the Court. Consequently, the application for an extension of time for compliance can only be entertained if the requirement that is para (a) of s 41(6A) is satisfied, namely, that Mrs Coshott has instituted proceedings to set aside the judgment in respect of which the Bankruptcy Notice was issued. 4000/09 and the other relief sought. The dismissal of Mrs Coshott's motion in proceeding No. 4000/09 did not operate as a discharge of her application for an extension of time for compliance with the Bankruptcy Notice because, on 17 November 2009, I had extended the time for compliance until 7 December 2009 and, on the completion of the hearing of these applications, I ordered that the time for compliance be further extended until the day I pronounce the orders of the Court and publish my reasons for judgment on the amended application. 2872/09 in the District Court of New South Wales at Sydney and the final determination of this proceeding . 2872/09 was instituted well before the issue and service of the Bankruptcy Notice and not in response to it. It was the filing of the notice of motion in proceeding No. 4000/09 which was in response to the issue and service of the Bankruptcy Notice. So amended, the next question which arises is whether proceeding No. 2872/09 satisfies the requirement of para (a) of s 41(6A) as being a proceeding to 'set aside a judgment or order in respect of which the [B]ankruptcy [N]otice was issued'. Proceeding No. 2872/09 was an appeal '... from the decision below (costs assessment 2008/00017354)'. The orders sought included an order that: Certificate of Determination in 2008/00017354 be set aside. Counsel for Mrs Coshott submitted that the fact that it was not sought to set aside the judgment in proceeding No. 4000/09, but rather the underlying certificate of determination which had merged into the judgment is of no import because the judgment is liable to be set aside or varied if the certificate on which it is based is set aside or varied. Reliance was placed on what was said by Hodgson JA (with whom Mason P and Campbell JA agreed) in Doyle v Hall Chadwick [2007] NSWCA 159 at [48] to [53]. What was said there was said in relation to s 208J(3) of the Legal Profession Act 1987 (NSW), the equivalent provision in the Legal Profession Act being s 368(5). I agree with this submission. So understood, the fact that Mrs Coshott has filed a notice of motion seeking to amend the summons in proceeding No. 2872/09 so as to add a claim that judgment in proceeding No. 4000/09 be set aside (see [8] above), is arguably irrelevant. It does not seem to accord with any legitimate policy consideration that a debtor whose careless or delictual conduct has allowed judgment to pass by default should be in any better position than a judgment debtor who has unsuccessfully but conscientiously defended a claim and succeeds in having the judgment set aside on appeal. 2872/09 in the District Court and the terms of para (a) of s 41(6A) of the Act. The only remaining issue is how I should exercise my discretion: to further extend the time beyond the extensions already made, or to decline to do so. In Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264 , Lehane J undertook a comprehensive review of the considerations that had been taken into account in other cases involving the exercise of the discretion under s 41(6A) , although, and it almost goes without saying, the considerations to which his Honour referred were conditioned by the facts of the case in respect of which the exercise of his discretion was called for. (2) His Honour noted the different approaches of Kiefel J in Re Baker; Ex parte Baker v Staples (unreported, Federal Court, Kiefel J, 4 September 1995) and Sheppard J in Re Geard; Ex parte Reid (unreported, Federal Court, Sheppard J, 11 February 1994) and to later decisions in which Geard was followed. (4) The approach adopted by Sheppard J was followed by Whitlam J in Re Smith (unreported, Federal Court, 4 May 1994) and by Sackville J in Agrillo v Codisposto (unreported, Federal Court, Sackville J, 16 December 1994). The commission of an act of bankruptcy is, undoubtedly, a serious matter; it is, however, of a different order of gravity from the change of status brought about by the making of a sequestration order; and there is also to be taken into account the interest of both the judgment creditor and other creditors of the judgment debtor in ensuring that, if ultimately a sequestration order is made, the relevant act of bankruptcy occurs earlier rather than later. It did not follow that other matters were not to be taken into account: the discretion is 'at large' ( Re Taylor; Ex parte Deputy Commissioner of Taxation (Cth) [1983] FCA 316 ; (1983) 74 FLR 377 at 379). His Honour further observed the authorities suggest that, reluctant as the Court may in most cases be to enter into the merits of an appeal, the merits may be relevant, at least where the Court is able to regard the prospects of success as 'slight' or, possibly, in a case where it is apparent that the prospects of success are unusually strong. Finally, on the facts of the case before him, his Honour thought it relevant, as a consideration reinforcing the Court's reluctance to extend time in the absence of a stay, that an appeal had already been dismissed and the proceeding in question was an application for special leave to make a further appeal. Section 41(6C) , to an extent, recognises that position. Moreover, the date of the commission of the act of bankruptcy is significant to determine the commencement of the bankruptcy if a sequestration order is made: s 115(1) , and so to determining the property of the bankrupt which is divisible amongst the creditors of the bankrupt: s 116(1). It also has significance to the application of ss 118 , 120 , 121 and 122 of the Act. The delay in the commission of the act of bankruptcy, if ultimately the requirements of a bankruptcy notice are not complied with and a sequestration order is made, by an extension of time to comply with a bankruptcy notice may therefore have significant consequences to the creditors of the bankrupt. An extension of time to comply with the requirements of a bankruptcy notice does not, on the other hand, preclude any other judgment creditor from procuring the issue and service of a bankruptcy notice, or from presenting a petition for a sequestration order if some other act of bankruptcy has already been committed. Such considerations, if significant in the particular circumstances, together with other considerations relevant to the circumstances of the particular case, will no doubt be considered by the Court in exercising its discretion under s 41(6A) of the Act: see for example the discussion by Lehane J in Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264. However, such considerations are properly left to the Court in exercising its discretion whether to extend time for compliance with the requirements of a bankruptcy notice. (2) While there is no stay in place, the application for a stay of proceeding No. 4000/09 having been dismissed on 27 November 2009, it was dismissed on jurisdictional, rather than discretionary, grounds. Considerable weight should only be given to the absence of a stay of the underlying judgment ( Byron at 270G; Geard (in the passage quoted in Byron at 269G)), if the court that granted the judgment had jurisdiction and power to grant a stay. In circumstances such as the present, where the court that issued the judgment has determined that it has no jurisdiction to grant a stay, the absence of a stay should, in relation to the discretion under s 41(6A) , be viewed as carrying no weight, rather than 'considerable weight'. (3) Only a short amount of time is likely to be involved in any extension of time, as the proceeding in the District Court is of limited scope. (4) If Mrs Coshott succeeds in the District Court to any extent, she will be entitled to an order setting aside the Bankruptcy Notice: Halstead v Westpac Banking Corporation [1991] FCA 424 ; (1991) 31 FCR 337 at 355. (5) Reference was made to the merits of the appeal while acknowledging the reluctance of courts to enter upon that area, save in the particular circumstances referred to by Lehane J in Byron at [36] above. (6) The Bankruptcy Notice was served after the District Court proceeding No. 2872/09 to appeal the Certificate of Determination had been commenced. Whilst Mr Barry was entitled to do this (there being no stay in place), it is relevant to the discretion that Mr Barry chose to issue his Bankruptcy Notice in circumstances where he knew that the Certificate of Determination, and hence the judgment, was under challenge. This is not a situation of the appeal being launched in response to a bankruptcy notice. Indeed, it is arguably the reverse. (2) There were a number of difficulties with the issues which Mrs Coshott identified as being raised by her appeal in proceeding No. 2872/09 which cast serious doubt on the likelihood of its success, if not its bona fides , not the least of which was that the orders made by James J of the Supreme Court of New South Wales on 20 February 2008 that Mr and Mrs Coshott pay the costs of Mr Barry in proceeding No. 20114/04 gave rise to a joint and several liability: Re Bowen; Ex parte The Australian Workers Union & Ors (1945) 13 ABC 275 at 278 --- 279. (3) The consideration in (2) aside, it is inappropriate for me to embark on a course of determining what is or is not going to happen with the appeal. But both were sought and refused on jurisdictional grounds: see [4] and [7] above. The contrast with Geard and Byron is clear. On 1 December 2009, Mr and Mrs Coshott filed a notice of motion in the District Court in proceeding No. 2872/09 seeking leave to file and serve an amended summons, as well as an order that the enforcement of the judgment in proceeding No. 4000/09 be stayed pending determination in proceeding No. 2872/09. That motion is listed for hearing today. I agree with the submission of counsel for Mr Barry that it is not appropriate for me, in the exercise of my discretion under s 41(6A) , to get involved in the merits or otherwise of Mrs Coshott's appeal. The consideration which I find most telling in favour of exercising my discretion to further extend the time for compliance with the Bankruptcy Notice is that the appeal against the cost assessor's determination was instituted on 1 July 2009, over three months before service of the Bankruptcy Notice. That fact alone informs one that the proceeding is not brought to frustrate the proceeding commenced under the Act by the service of the Bankruptcy Notice and there is no evidence to suggest, nor was it suggested, that there are circumstances now extant which would otherwise attract the operation of s 41(6C). For these reasons, I propose to exercise my discretion pursuant to s 41(6A) of the Act by extending the time for compliance with the Bankruptcy Notice until the day on which the District Court of New South Wales makes final orders in proceeding No. 2872/09. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds.

interim application to review decision of registrar to extend time for compliance with bankruptcy notice held exercise of discretion did not miscarry amended application to set aside bankruptcy notice held no proper ground to set aside amended application to further extend time for compliance with bankruptcy notice whether jurisdiction to consider the extension under s 41(6a) of bankruptcy act 1966 (cth) relevant considerations in exercising discretion to extend whether discretion should be exercised where appeal against judgment upon which bankruptcy notice is based was on foot prior to service of bankruptcy notice extension allowed. bankruptcy

That judgment determined that there was no jurisdictional error in a decision of the Refugee Review Tribunal handed down on 11 December 2003, which determined that the appellant was not entitled to a protection visa. On 21 February 2003, the appellant applied for a protection visa under the Migration Act 1958 (Cth) ('the Act'). On 27 March 2003 a delegate of the first respondent refused to grant the protection visa and on 8 April 2003 the appellant applied to the Tribunal for a review of that decision. 3 The appellant, who was born on 9 November 1973, is a Maronite Christian and formerly resided in Hadchit in North Lebanon. He claimed that he joined the Lebanese Armed Forces ('LAF') as a volunteer in 1993 to protect himself from harassment as a suspected member of the Lebanese Forces ('LF'). The LF was originally a Christian militia engaged in fighting during the Lebanese civil war. After the civil war ended in 1990 the LF continued to exist as a political party. The appellant said he had no involvement with the LF but because of his religion and his residence in Hadchit, a town in which three quarters of the population supported the LF, he was accused of supporting the party. 4 The appellant claimed that he initially joined the LAF for a period of three years and that he encountered numerous difficulties during his army service because of his religion and imputed political opinion. He said he had wished to leave the army but was not allowed to do so. In October 2002 he was demobilised with the assistance of his cousin, a colonel in the LAF. 5 Amongst other claims, the appellant told the Tribunal that when he returned to Lebanon after three months leave spent in Australia in 2000 he was court-martialled on charges of being an Israeli agent and a member of the LF and of taking information to Australia, and was sentenced to 60 days' imprisonment. This information had not been disclosed in his written statement to the Department, which stated that he had been detained for seven days on his return from Australia. 6 The Tribunal accepted that the appellant had experienced some difficulties during his military service, but considered that he had exaggerated his experiences. Further, the Tribunal found that the appellant had not been targeted for harassment essentially or significantly because of his religion. The Tribunal characterised many of the events described by the appellant as personal disputes or reasonable applications of military discipline. 7 The Tribunal rejected the appellant's claim to have been court-martialled on charges of being an Israeli agent following his return from Australia in 2000. The Tribunal said that the appellant's reasons for not having mentioned it in his original application were not plausible, and further that the sentence given would have been excessively light if such a charge had really been made. 8 The Tribunal considered that the events described by the appellant (excluding the court-martial, about which it was not satisfied) did not represent harm of sufficient seriousness to constitute persecution under the Refugee Convention. 9 The Tribunal further found that, even if it were wrong in that conclusion, it was satisfied that there was no prospect that mistreatment would occur in the future if the appellant returned to Lebanon, because he had now been discharged from the LAF. The Tribunal did not accept that the appellant had a profile as an LF supporter since, on the appellant's evidence, he was not a member of the LF and had not been involved in LF activities. 10 For these reasons the Tribunal was not satisfied that the appellant had a well-founded fear of persecution in Lebanon. When the proceedings in the Federal Magistrates Court were first filed, the appellant was represented by a firm of solicitors. However, a notice of ceasing to act was filed on 18 April 2006. Accordingly, when the hearing before the Federal Magistrates Court took place on 4 May 2006, the appellant was unrepresented. 12 Before the Federal Magistrates Court, the appellant alleged that the Tribunal had made a jurisdictional error by failing to apply the Refugee Convention, misdirecting itself as to the nature of persecution under the Convention, and erring in law in its construction of the protection obligations under the Migration Act . 13 The appellant made allegations at the hearing about statements which had been made before the Tribunal. However, Smith FM noted that the transcript of the Tribunal proceedings had not been tendered, despite the fact that the appellant had been on notice that it would be required to prove his claims. 14 The appellant made two main challenges to the Tribunal's decision at the hearing. Firstly, the appellant alleged that his original migration agent did not provide an accurate translation of the statement he had made in support of his application for a protection visa, in particular as it related to his alleged court-martial following his return from Australia. When I was returned back to Lebanon I was detained and interrogated by L. Colonel [name] . I was detained for 7 days and paid LL 300,000. There was no evidence that the appellant gave information to the Tribunal which should have caused it to doubt that the English statement attached to the appellant's application form accurately represented the instructions given by the appellant to his agent. In these circumstances no jurisdictional error could arise. 17 The appellant also contended that the interpreter who assisted him before the Tribunal had been unable to translate accurately the positions and ranks in the Lebanese Army, which prejudiced the applicant. Smith FM found that this claim had not been factually established, since the transcript of Tribunal proceedings was not before the Federal Magistrates Court. His Honour added that he had ' difficulty seeing how any errors in relation to " positions and rank " in the army would have made a material difference to the Tribunal's assessment of the evidence '. 18 The third issue which arose in the proceedings in the Federal Magistrates Court, raised by Counsel for the Minister, was whether the Tribunal had breached its obligations under s 424A(1) of the Migration Act . The potential breach of s 424A(1) was based upon the fact that the Tribunal drew an adverse conclusion from the absence of a reference to his imprisonment for 60 days in his written statement accompanying his application for a protection visa. 19 Smith FM accepted that the reasoning of the Tribunal might reveal the use of ' prior information ' which would be required to be the subject of a written notice from the Tribunal if the prior information was the reason, or part of the reason, for affirming the decision under review. However, Smith FM considered that the Tribunal in the present case used two entirely independent lines of reasoning, one of which was not reliant upon information used in breach of s 424A. Accordingly, the decision could be sustained on a separate ground. His Honour failed to consider my Affidavit filed on 19 April 2006 and the serious errors involved in the translation and also the failure of the Refugee Review Tribunal to consider my circumstances and discrimination during my duty as an Army soldier as meeting convention reasons. His Honour failed to take into consideration the transcript, a copy of which I assumed was lodged by my previous Solicitor as per the cost agreement. I ask the Federal Court to consider the statement in English language submitted by my first Migration Agent, Australian Immigration Information Centre, as a document which does not reflect the contents of my Arabic statement given to him. Mr Laba Sarkis is not legally qualified and is acting as a friend to the applicant, with no objection from the first respondent and with the leave of the Court. Despite Mr Sarkis' efforts, which I note were provided on a voluntary basis, his assistance was not equivalent to the assistance of a legal practitioner. Accordingly, I consider it appropriate to examine the judgment of Smith FM and of the Tribunal to ensure that there is no jurisdictional error which has escaped the attention of the appellant. 22 As to the first ground of appeal, the appellant claimed that the interpreter in the Tribunal hearing was inadequate, resulting in several errors revealed by the transcript of the hearing before the Tribunal. The appellant accepts that the transcript was not tendered before the Federal Magistrate, but says that he believed the transcript was being obtained by his solicitor as part of the preparation for the hearing before Smith FM, as he paid his solicitor to obtain it. 23 In support of his claim, the appellant sought to tender a copy of the costs agreement made with his former solicitor. He also sought to tender a version of the transcript, although not an official version. The respondent objected to the tender of both of these documents on the basis that new evidence could not be filed on an appeal of this nature, and, in the case of the transcript, because it had not been authenticated and, on the face of it, contained obvious errors. However, I allowed the tender of these documents, as I considered them necessary for me to understand the appellant's arguments. 24 The appellant's agent took the Court to several examples when the interpreter had difficulty in translating the appellant's evidence. The appellant claims that he was prejudiced because of the difficulties in translation. He submitted that had a more competent interpreter been present, he may have been able to establish to the Tribunal's satisfaction that he had a well-founded fear of persecution. 25 The transcript was not in evidence before Smith FM, although directions had been made in the Federal Magistrates Court for it to be filed. Whilst the appellant claimed that the omission resulted from the default of his former solicitor, I do not consider the costs agreement alone provides sufficient evidence to establish this fact. It is evident that the agreement between the appellant and his solicitor was, for some reason, terminated, which led to the filing of a notice of ceasing to act in these proceedings. The reasons for that termination have not been given. Accordingly, I am not satisfied that there are any grounds for allowing the transcript to be tendered as new evidence in this appeal. 26 Even if I were to consider the transcript, the grounds of error alleged by the appellant could not succeed. The primary error relied upon by the appellant was the inability of the interpreter to interpret properly the correct military ranks. This subject matter has no bearing upon the ultimate decision of the Tribunal. Further, it is clear from the transcript which has been provided that the interpreter alerted the Tribunal to this problem. The Tribunal itself observed that it would be of no significance in its decision. 27 As a second ground, the appellant says the Federal Magistrates Court erred in rejecting the ground of appeal which alleged errors in the translation of the appellant's original statement. However, I consider the Federal Magistrate was correct to reject this ground. As Smith FM noted, there was nothing before the Tribunal which might have caused it to doubt that the appellant's statement had been incorrectly translated. The Tribunal was entitled to rely upon the documents which were before it. Further, Smith FM said that even if the correct translation was that subsequently tendered by the appellant, there was no significant difference between the two statements and it would not have been capable of materially affecting the conclusions of the Tribunal. I agree. I would add that the transcript tendered by the appellant in these proceedings indicates that he told the Tribunal that he had actually been imprisoned for 60 days, which is, in any event, inconsistent with the newly translated statement provided by the appellant. 28 The appellant further submits that the Tribunal misapplied the definition of ' persecution ' by not finding that the appellant's experiences, namely being required to serve in dangerous areas, being denied promotion, fines, loss of pay and leave entitlements, removal of religious symbols from his motorcar and imprisonment, constituted persecution. 29 I accept that, if they had occurred for a Convention reason, the experiences described above might constitute persecution. However, the Tribunal in this case found that the experiences of the appellant were not suffered as a result of his religion. Nor was it satisfied that the authorities may have imputed to the appellant an affiliation with the LF. Accordingly the appellant could not be said to have a well-founded fear of persecution for a Convention reason. 30 A further issue considered by Smith FM was whether the Tribunal had breached s 424A of the Migration Act by relying upon the discrepancy between his original statement attached to his protection visa and his statements to the Tribunal concerning his imprisonment on return to Lebanon in 2000. I agree with Smith FM that the Tribunal did breach s 424A(1) in this respect. 31 The question, therefore, is whether, as Smith FM suggests, the decision of the Tribunal can be sustained because there is a separate and independent line of reasoning which is not affected by the breach of s 424A(1): see SZECD v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 31 ; (2006) 150 FCR 53. I do not accept the applicant's evidence that his relative the colonel advised him to leave Lebanon once he was demobilised. There is no sensible reason arising from the evidence before me to suggest that the applicant would be at risk of any continuing harm or human rights violations arising from his military service once that service had ended. Whatever ill treatment he may have encountered during that period, I am satisfied that there is no real chance that it would continue in the future. Accordingly, the question is whether this finding is free from jurisdictional error. 34 I consider that it was open to the Tribunal to find that there was no real chance that the appellant would be subject to mistreatment if he were to return to Lebanon because he had been discharged from the military, even given the possibility that the appellant might be called up for reservist duty. The Tribunal was clearly aware of this possibility. The finding that there was no real chance of future persecution was open on the evidence. I can see no jurisdictional error in the finding. Accordingly, the appeal should be dismissed with costs.

judicial review whether errors by interpreter affected tribunal decision failure to tender transcript before federal magistrates court evidence on appeal breach of s 424a(1) of the migration act 1958 (cth) whether a separate and independent line of reasoning disclosed migration

Subsequently I heard argument as to some aspects of the relief sought. The Respondent has infringed claims 1 and 3 to 8 (inclusive) of Australian Standard Patent No. 757412 ("the Standard Patent") by exploiting in Australia the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM50 ("the Tyrannosaw Mark I"). 2. The Respondent has infringed claims 1 to 6 (inclusive) of the Standard Patent by exploiting in Australia the multi-purpose power saw sold under the name "Tyrannosaw" with Model No. TRM51 ("the Tyrannosaw Mark II"). 3. The Respondent has infringed claims 1 to 5 (inclusive) of Australian Innovation Patent No. 2002100583 ("the Innovation Patent") by exploiting in Australia the Tyrannosaw Mark I. 4. The Respondent has infringed claims 1 to 5 (inclusive) of the Innovation Patent by exploiting in Australia the Tyrannosaw Mark II. THE COURT CERTIFIES THAT: 5. For the purposes of s 19 of the Patents Act 1990 (Cth), the validity of claims 1 to 8 of the Standard Patent was questioned unsuccessfully in these proceedings. 6. For the purposes of s 19 of the Patents Act 1990 (Cth), the validity of claims 1 to 5 of the Standard Patent was questioned unsuccessfully in these proceedings. THE COURT ORDERS THAT: 7. 4 The declarations and certificates sought are appropriate. B & D's application from the outset sought declarations that GMCA's two products, referred to in the judgment as T1 and T2, infringed, in the case of T1, claims 1 and 3 to 8 of the Standard Patent and, in the case of T2, claims 1 to 6. The cross-claim sought declarations of invalidity of those claims. Thus the validity of all claims was in issue. Likewise the respondent sought revocation on alleged grounds of invalidity, which referred to all claims. Debate particularly centred on the term "vector" which appears in claim 1 and is carried forward into all the subsequent claims. The declarations and certificates sought are appropriate. 5 It is proper to have an injunction not only referring to particular products found to have infringed, but also in respect of any other infringing products which the infringer might produce or sell: see Welcome Real-Time SA v Catuity Inc (No 2) [2001] FCA 785. Thus each side had some success in relating to design issues. GMCA says that it should recover its costs on those issues or at least on the infringement issue. B & D says there should be no reduction of a general order as to costs in relation to design issues or at worst there should be no order as to costs. See also Cretazzo v Lombardi (1975) 13 SASR 4 at 16. 8 In the present case B & D did not fail on all issues relating to the design. The design infringement issue did not take up a major part of the design case, still less of the total hearing. From a commercial aspect it was understandable that B & D should pursue design infringement as well as the Standard and Innovation Patent infringements as they were all bound up with the one product. Also, the design infringement issue, turning as it did essentially on visual inspection, did not become the subject of very detailed expert evidence, although there was some. There was no witness whose evidence was confined to design infringement, the one issue on which GMCA succeeded. 11 These issues need to be seen in the context of the tortuous history of this case. His patent is swallowed up, and he is ruined. Whose fault is it? It is really not the fault of the law: it is the fault of the mode of conducting the law in a patent case. That is what causes all this mischief. Lawyers' and experts' time is normally measured and costed. Because they are highly skilled, lawyers' and experts' time is expensive. Time spent by the parties themselves is generally irrecoverable. [3] It follows as night follows day that every issue or topic in a patent action which causes significant expenditure of time will contribute to the overall cost. Some additional points can be made. In most commercial litigation the relevant events, the creation of documents, the conversations, the payment or non-payment of money etc, have already occurred by the time the litigation commences. With patent litigation, however, much of the critical evidence is from experts and only comes into existence after the proceedings have been launched and those experts have been located and retained and have prepared their evidence. All this takes time, and since both sides face the same kind of problems there is a natural tendency for mutual accommodation: "We understand you need an extra three months to get Professor X's evidence, just give us an extra three months after that to get Dr Y's". 14 Patent law by its nature throws up multiple issues; construction, novelty, obviousness, fair basing, infringement etc. Lawyers have a natural inclination to raise every conceivable issue at the start on the not entirely unreasonable basis that it is usually easier to drop a claim or defence than to add one. The merits of a party's case on any particular issue are unlikely to be at risk of summary judgment or strikeout. In 2005 the Federal Court of Australia Act 1976 (Cth) was amended by the insertion of s 31A which makes the standard for summary judgment the "reasonable prospect of successfully" defending or prosecuting the proceeding. The provision, by subs (3), explicitly rejects the old standard, by which it had to be shown that a claim or defence was "hopeless" or "bound to fail": see General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125. It remains to be seen what real change s 31A will bring about in Australian legal culture, but patent litigation is unlikely to be at the forefront. 15 Another factor is a rather indulgent attitude often taken towards amendment and adjournment applications, in reliance on Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146. However, there is a limit, as was demonstrated in the present case when Finkelstein J refused GMCA a further adjournment of the trial date. I refused leave to appeal from this decision and an application by GMCA for special leave to appeal to the High Court was dismissed: GMCA Pty Ltd v Black & Decker Inc [2007] HCATrans 662. 16 Undue prolongation and expense of patent litigation can be particularly damaging in Australia where the relatively small size of markets, in comparison with those in the United States and Europe, make it all the more difficult for firms to recover costs. 17 To minimise cost and delay it is critical that practitioners take a realistic and common sense approach, confine the contest to factual and legal issues that are truly arguable and agree as much as possible on what should not be in dispute. For its part, the Federal Court, under the leadership of Bennett J in Sydney and Middleton J in Melbourne, has recently introduced, on a trial basis, procedures whereby patent cases, upon commencement, are brought before the judge in charge of the Patents Panel for a thorough analysis of the issues. The case is then passed on to the Panel docket judge for further management and trial. An outline of the procedures appears as a schedule to this judgement. 18 The procedures just mentioned were not in operation for use in the present case. Still, the co-operation and common sense approaches usually adopted should have been taken. Regrettably, on the part of GMCA, they were not. On 7 February 2006 GMCA filed and served its first particulars of invalidity containing 21 alleged anticipations, 18 of which were patents. 20 On 22 May 2006 GMCA filed its second particulars of invalidity. These raised one further anticipation (a patent) in relation to the patents in suit and four in relation to the design and also 22 particulars in respect of which it was said the Standard Patent lacked clarity. 21 On 14 August 2006 GMCA filed its third particulars of invalidity. These made some minor corrections to the alleged anticipations. 22 On 18 August 2006 Finkelstein J set the matter down for trial with an estimate of five days commencing 10 April 2007 and gave directions as to the filing of evidence. 23 On 16 November 2006 GMCA's solicitors wrote to B & D's solicitors requesting an extra month in which to file its evidence in chief on invalidity. 24 On 27 November 2006 Finkelstein J extended the time for filing of evidence (evidence in chief by both parties 15 December 2006, GMCA answering evidence 16 February 2007, B & D answering evidence 2 March 2007) and directed that no evidence could be filed thereafter. 25 On 15 December 2006 GMCA filed its evidence. 26 On 19 December 2006 GMCA filed its fourth particulars of invalidity. These added 11 further anticipations in relation to the patents in suit and eight in relation to the design. 27 On 20 March 2007 GMCA was granted leave by Finkelstein J to amend its particulars of invalidity and file further evidence in relation to new prior art. As a consequence, on 11 April 2007 his Honour made orders vacating the trial date and fixing a new trial date of 19 November 2007. His Honour gave directions as to the further filing of evidence. 28 On 18 April 2007 GMCA filed its fifth particulars of invalidity. These deleted 25 pieces of prior art that had previously been cited against the patents and introduced 11 new pieces. The particulars also deleted six pieces of prior art that had previously been cited against the design and introduced one new piece of prior art. 29 Since the adjournment of the trial a further four affidavits were filed on behalf of GMCA in May 2007. A further five affidavits were filed on behalf of B & D in July 2007 and a further five affidavits on behalf of GMCA between August and October 2007. 30 On 5 October GMCA sought a further postponement of the trial date. As already mentioned, this application was rejected by Finkelstein J, who gave reasons on 26 October. His Honour said at [6] that GMCA's non compliance was "not excusable". Initially the trial was fixed to begin on 10 April 2007. On the eve of the trial the respondent said it was not ready to begin the hearing and sought leave to introduce further prior art with which to attack both the patent and the design. Leave was granted so that the respondent was not shut out from running its best case. 31 His Honour noted that a consequence was the trial had to be vacated. It was refixed to commence on 19 November and a new timetable was set in place. [8] Despite the orders (or in defiance of them) the respondent has served two reply affidavits in which it seeks to add to its evidence in chief. The affidavits were filed without leave. The application for leave to rely on the additional material was made orally at the recent case management conference. 32 His Honour then went on to note how the affidavits referred to, and produced, new prior art. His Honour refused leave to rely on any additional material. 33 In the event, by the time of its closing submissions at trial GMCA relied on only seven pieces of prior art, two of which had not been pleaded. This is to be contrasted with the pleading at various stages of no less than 45 pieces of prior art. 34 B & D was put to significant wasted expense dealing with alleged anticipations which ultimately were not relied on by GMCA. Many of these took the form of patents, which required careful analysis by B & D's experts and lawyers. 35 Some latitude needs to be allowed for the changing of a party's case as investigations reveal possible new arguments. But a line has to be drawn somewhere. Otherwise cases would never get to trial. When, as often happens today, and did so in the present case, there is no interlocutory injunction in place, an ultimately successful patentee may suffer loss which is difficult or impossible to quantify. In the present case B & D claims that costs wasted or duplicated by reason of GMCA's fourth (19 December 2006) and fifth (18 April 2007) particulars of invalidity should be ordered on an indemnity basis. I agree. Ragata Develpopments Pty Ltd v Westpac Banking Corporation (unreported, Federal Court of Australia, Davies J, 5 March 1993) at 5, cited with approval in Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225 at 233. 37 Much of B & D's work and evidence up to that time was wasted and B & D was forced to prepare for a trial seven months later. As Finkelstein J noted in the passage already quoted, the case was "a particularly bad one as regards delay". I reject GMCA's argument that B & D was somehow equally to blame because it was a day late in serving exhibits to some of its affidavits. 38 B & D should receive costs on an indemnity basis for costs wasted or duplicated by reason of this adjournment of the trial date. By this stage the parties had completed discovery but had not filed any evidence. 42 The only matter GMCA was prepared to admit was that the B & D companies were incorporated, and then only subject to the production of certificates of incorporation. Despite requests by B & D's solicitors that GMCA reconsider its position, no further admissions were forthcoming. 43 On 15 December 2006 B & D filed further affidavits dealing with various matters the subject of the notice to admit. On the same day GMCA filed an affidavit by its principal expert, Dr Stark, in which he concluded that many of the integers of the claims of the patents were present in GMCA's products and all of the integers of claims 1 to 5 of the Innovation Patent were present in the T1 product. 44 On 31 July 2007 B & D filed a second notice to admit repeating the facts set out in the first notice. Further correspondence ensued, but no admissions were made by GMCA. 45 Much of this had already been affirmed as correct by Dr Stark in his affidavit the preceding December. Nevertheless, no admissions were forthcoming. 46 I must say that the attitude of GMCA and its solicitors to the admission of facts is, of all the conduct in this case which is open to criticism, the most disturbing. It reveals an obstructionist view which should have been long abandoned in commercial litigation in this country, a deliberate unwillingness to get to the real issues in dispute. However, paradoxically, it does not seem really practicable to make an indemnity costs order in respect of this particular aspect. As senior counsel for B & D frankly accepted, insofar as admissions were sought in relation to integers which contained contentious features, it was proper to resist them. In light of the way the trial was conducted and the evidence that was called, it is hard to see how the taxing officer could be expected to identify any extra costs which were incurred by reason of unreasonable failures to admit. B & D were not able to suggest a practical answer to this problem. For that reason only, there will be no special order for costs in that respect. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. The aim of the procedures is to accelerate the identification of issues and generally to improve the facilitation of the trial process. Upon filing in the District Registry, there will continue to be the random allocation of patent cases to individual judges assigned to the Patent panel. In New South Wales and Victoria, new proceedings will be listed before a nominated Patents List Judge. Subsequent directions may be before the docket judge or Patents List Judge depending upon the nature of the procedural dispute. These procedures are deliberately not over prescriptive, with an emphasis on flexibility of application to each proceeding. However, by setting out what is expected of practitioners and litigants, the Court anticipates that, to the extent practicable, it will be informed of the matters required for giving the appropriate directions at the earliest possible stage in the proceedings. • After the filing of particulars of invalidity the party seeking revocation must explain how each ground of invalidity can be supported. The particulars of invalidity should include details of the passages of any prior publication relied upon for novelty purposes. • Before any directions are made for the filing of evidence, the court will enquire whether any expert evidence will be required, whether a single expert is appropriate for all or any part of the evidence, whether any of the evidence can be given orally or by reference to standard texts, or in a combination of summary outline and oral evidence, whether a primer is appropriate, and as to the appropriate method of evidence (such as evidence of experts and prior meetings of experts to explain or narrow the issues in dispute). • Before discovery is ordered, the parties must confer to discuss the issues to be addressed by discovery and the nature of the documents sought, and whether evidence should precede discovery. • Unless there has been satisfactory narrowing of issues and resolution of procedural issues, the parties will be referred to a procedural mediation. • If appropriate, a case management conference will be arranged to resolve issues concerning discovery and any interlocutory steps. • Any special matters should be raised at the earliest possible occasion including, for instance, any intended application for amendment to the patent.

applicant successful overall but not on all issues whether appropriate to apportion costs on issue by issue basis whether indemnity costs should be awarded on basis of conduct leading to loss of trial date and failure to admit facts costs

It was placed into administration on 14 July 2008 and the plaintiffs were appointed the joint administrators. The plaintiffs then took control of the company and held the first meeting of creditors on 23 July 2008. They are required to convene the second meeting within 20 business days of their appointment, but wish to hold off the meeting for two months. The application made today is for orders to extend the time within which the meeting must be held. 2 The purpose of the second meeting of creditors is to decide the company's future. The creditors have three options to choose from: that the company execute a deed of company arrangement; that the administration end; and that the company be wound up: Corporations Act 2001 (Cth), s 439C. To enable the creditors to make an informed choice the administrators must investigate the company's affairs and report the result to the creditors: s 439A(4). 3 Here the administrators need more time to prepare their report. There are several reasons for this. First, they do not have enough information to properly advise creditors which of the options is likely to be in their (the creditors') best interests. Part of the problem is that the secured creditor, the ANZ Bank (which for voting purposes initially lodged a proof of debt for $150 million but now claims $113 million), appointed receivers over the company's assets before the administration commenced. The assets include the company's books and records. As a result the administrators require the co-operation of the receivers to obtain the information they need to prepare the report. Getting the information has proved not to be an easy task. Correspondence with the receivers concerning both access to the records and the provision of information about the company's affairs has taken time. Only recently have the receivers agreed to make the books available for inspection. 4 Another problem has been the absence of a report of affairs from the directors. The receivers obtained the report two days ago and yesterday made it available to the administrators. 5 The second reason is that the administrators are investigating whether the security granted to the ANZ Bank is vulnerable to attack. The administrators need time to complete that investigation. This does not mean that a claim to challenge the security has merit. But it is a matter that must be looked at. After all, if the security stands there will be nothing left for unsecured creditors. 6 An extension is also sought because the directors have informed the administrators that they (the directors) are seeking to raise funds so that a deed of company arrangement can be put to the creditors. The administrators are not in a position to say how likely it is that a deed will be proposed, although they remain optimistic that it will happen. In the end it will depend upon the ability of the directors to raise sufficient funds to put a worthwhile proposal to the creditors. Nevertheless, the directors should be given a chance to come up with a proposal. 7 These are legitimate reasons to delay the second meeting. It remains to consider whether any prejudice will result if the orders are made. In particular, it is necessary to consider whether the unsecured creditors will be worse off if the extension be granted. I should point out in this connection that the receivers and the ANZ Bank have appeared and, although their interest in this application is different from that of unsecured creditors, have indicated that they do not oppose the application. So far as the unsecured creditors are concerned, the administrators point out that the company carries on no business (it has no employees and all its assets have been seized by the receivers) and is not incurring debts other than those for which the administrators are responsible. Further, the administrators have deposed that no-one will be prejudiced by the extension. 8 In these circumstances, it is appropriate that the extension be granted. I will make the orders in the terms sought by the administrators. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

administration application to extend convening period for second meeting of creditors whether circumstances justify extension corporations

The documents he sought to file consisted of what appears to be intended to be an application, together with an affidavit with a single annexure. A registrar of the Court formed the view that the proposed proceeding would be an abuse of the process of the Court, or would be frivolous or vexatious, and referred the matter to me as duty judge, pursuant to O 46 r 7A of the Federal Court Rules . 2 I indicated to the Registrar, by way of other staff, that I proposed to hear Mr Bowen before making a decision whether to direct the Registrar to accept or to refuse to accept the process proffered. It appears that this message was misunderstood and, in the meantime, the staff of the registry have sealed copies of the process, and have opened a file bearing the number VID 130 of 2006. The Registrar having referred the matter to me pursuant to O 46 r 7A, I do not think that I am deprived of the power given to me by that rule to give a direction to the Registrar by the opening of the file and the sealing of the process proffered. 3 The application, which Mr Bowen attempted to file, purports to invoke the jurisdiction conferred on the Court by ss 80 and 86 of the Trade Practices Act 1974 (Cth) ('the Trade Practices Act '). An award of damages to offset the claim for costs allegedly incurred in the Victorian Civil and Administrative Tribunal. A full trial, with proper evidence adduced, on oath, to determine the parties relevant rights. Costs to follow the event. 6 Mr Bowen conducts a business as a dairy farmer and ice-cream manufacturer near Lakes Entrance. On land next door to his farm, two corporations, who are named as the first two respondents in the documents which Mr Bowen has sought to file, constructed some years ago an airfield. Apparently this construction involved the laying of sealed runways, and the depositing of what Mr Bowen described as saline sand. The result is that the run-off from the airfield is delivered into the dam on Mr Bowen's property and is causing turbidity, the presence of suspended solids, and salinity, in the water in that dam. Mr Bowen complains that the dam is contaminated to such an extent that it is unusable for irrigation, or for manufacturing purposes, and has been affecting his business adversely. 7 Mr Bowen attempted to obtain redress in respect of this by instituting a proceeding in the Victorian Civil and Administrative Tribunal ('the Tribunal') for what is called an enforcement order. He alleged that the first two respondents had failed to adhere to conditions in the permit under which they constructed the airfield. The two respondents were represented by senior and junior counsel. Mr Bowen had the assistance of a civil engineer and an environmental scientist. The proceeding took some days. In the result, it appears that Mr Bowen was unsuccessful. The first two respondents then sought an order for costs. The Tribunal had some restricted statutory power to award costs and there was a hearing as to whether it could invoke that power, and should invoke that power. Senior and junior counsel on behalf of the first two respondents made submissions. Mr Bowen was represented by counsel, who also made submissions. It appears that he had legal aid for such representation. It also appears that Mr Bowen has failed to make payment of those costs, although I have been told that he would be able to afford to do so. Because of his failure to pay the costs, steps have been taken to enforce the order for costs. The exact steps are not the subject of any evidence but it appears that the matter is now in the hands of the Sheriff, who is named as the third respondent in the documents tendered by Mr Bowen for filing, and who proposes to take some action in three days' time, on Friday 17 February 2006, to seize Mr Bowen's property or to sell it. 9 It is this seizure or sale which Mr Bowen seeks to prevent by means of his application for interlocutory relief. In his material, Mr Bowen invokes ss 52 and 51A of the Trade Practices Act . In order to establish that he has a cause of action under those provisions, Mr Bowen would have to establish that there was some misleading and deceptive conduct, or some unconscionable conduct, on the part of the respondents, arising out of which he has suffered or would suffer damage. 10 Initially, when I asked Mr Bowen questions about the nature of his cause of action, he gave me to understand that he was concerned with the contamination of the water in the dam and the damage that had been done to his business. What emerges from the material, however, is that that matter has been the subject of complaint to the Tribunal, which has given a decision adverse to Mr Bowen. I do not sit, and this Court does not sit, on appeal from the Tribunal. It could not say that the Tribunal was incorrect in the result it reached. It does not appear that Mr Bowen has so far made any use of any cause of action under State law that might be available to him in respect of diversion or pollution of surface water, other than to contend in the Tribunal that the construction of the airfield was otherwise than in accordance with the permit. Whether he could do this I do not know but, if he can, he cannot do it in this Court. 11 It was Mr Bowen's McKenzie friend who was able to bring some legal knowledge to bear in a discussion with me about the applicability of the provisions in the Trade Practices Act and about various other matters of law which he attempted to invoke. As I see it, it would be quite impossible for Mr Bowen to establish a cause of action in misleading or deceptive conduct, or unconscionable conduct. It cannot be either misleading or deceptive, or unconscionable, for a party to make submissions to a tribunal, which that tribunal then accepts, concerning whether it should make a particular order, whether for costs or otherwise. It cannot be misleading or deceptive conduct, or unconscionable conduct, for a party to conduct in its own interests a case in such a tribunal, to produce evidence which is then accepted by the tribunal, and to succeed in defeating a claim brought to the tribunal by another party. 12 Even if it could be said that the first two respondents, by their counsel and by their conduct of the proceedings in the Tribunal, had misled and deceived the Tribunal, or had acted unconscionably, there is a causation issue that would cause great difficulty for Mr Bowen. It is very hard to see how Mr Bowen could say that he has been disadvantaged by the conduct of the first two respondents when the actual disadvantage to him arises from the decisions of the Tribunal, first to reject his application for an enforcement order and, second, to make an order for costs against him. There are policy reasons also for not allowing such a proceeding to be brought. In effect, it would be to arrogate to this Court a right to decide whether the decisions of the Tribunal were correct or otherwise. This Court has no appellate jurisdiction in respect of decisions of the Tribunal, which is set up under State law. To the extent to which there may have been available to Mr Bowen rights of appeal or review under State law, he does not appear to have availed himself of them, although he says he has made some attempt in the recent weeks in the County Court to obtain a stay on the sale of the farm. That attempt, so I am told, was unsuccessful. 13 As I have said, discussion with Mr Bowen's McKenzie friend ranged over various issues of constitutional law, the application of Imperial Acts, the power of the State Parliament to repeal Imperial Acts, the power of the State Parliament to create tribunals and to confer on them judicial and quasi-judicial power, and various such things. None of these things, so far as I can see, would have any chance of giving rise to a cause of action justiciable in this Court. 14 The proposed proceeding is therefore an abuse of the process of the Court, or is frivolous and vexatious, within the meaning of O 46 r 7A of the Federal Court Rules . As a consequence, it seems to me that I must direct the Registrar not to accept the documents that Mr Bowen has proffered. 15 In effect, it seems to me kinder to Mr Bowen so to direct the Registrar, rather than to allow him to serve any proceeding on the proposed respondents and, as is certain to occur, to be unsuccessful and to incur further liability for costs. 16 Accordingly, I propose to direct the Registrar to refuse to accept the documents that Mr Bowen has attempted to file this day. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray.

proceeding initiating process whether should be accepted whether abuse of process whether frivolous and vexatious claim of misleading and deceptive conduct and unconscionable conduct by counsel in making submission to state tribunal whether cause of action available causation submission accepted by state tribunal courts and judges

For present purposes s 84C empowers the Court to strike out an application which does not comply with s 61 of the Native Title Act , and s 31A permits the Court to give summary judgment for a respondent in relation to the whole of a proceeding if it is satisfied that the applicant has no reasonable prospect of successfully prosecuting the application. 2 There are two principal bases on which the State challenges Mr Kite's application. The first is that the claim group does not include all of the persons who hold the native title claimed. The second is that the designated claim group is incapable of authorising the claim made. It covers an area of approximately 53,000 square kilometres and overlaps seven other native title claims. Relevantly for present purposes, two of these are the Kokatha Native Title Claim and the Antakirinja Matu-Yankunytjatjara Native Title Claim. Mr Kite is the sole applicant in the claim he has filed. The claim group is made up of five named individuals. The members of the claim group discussed the making of this application on 26 June 2007. 8. I knew the other members of the claim group in that discussion. I knew that they were each people who can claim the country covered by this native title determination application. 9. In the discussion the other claim group members and I unanimously decided that I should make this application on behalf of the claim group and deal with matters arising in relation to it. 10. The procedure used by the group in the discussion on 26 June 2007 was the traditional process of discussion and the reaching of an agreed position that is used by the members of the claim group pursuant to their traditional laws and customs in making decisions about their traditional country. 11. It has become the established and agreed practice of our claimant group that this is the way in which we run our group meetings and discussions about native title claim business. That was what was understood and agreed between all of the claimants in the discussion on 26 June 2007. Mr Kite filed a further affidavit. The following is drawn from this material. 8 (i) Mr Kite's claimant application appears to be another instalment in the disintegration of agreements struck at Spear Creek in South Australia in May 2004 which sought, it would seem, to resolve overlapping native title claims in parts of the State. In one such agreement --- that between the Antakirinja People, the Antakirinja Land Management (Aboriginal Corporation) and the Kokatha Munta Native Title Claim Group --- Mr Kite is described as a member of the Kokatha Munta claim group and his name and signature are given as signifying support for the agreement. His membership of that claim (which was later withdrawn) was founded, apparently, on the Kokatha ancestry of his mother, Mrs Gladys Kite. 9 (ii) The claimant application overlaps (inter alia) the Kokatha Native Title Claim. Mr Kite and his family have been involved in that claim; he is said by his sister to have represented his family on a management committee for the claim and continued to do so until an unspecified incident in February 2006. It is the case, though, that the Kite family does not fall within the current claim group description. 10 (iii) The Form 1 Application for the Antakirinja Matu-Yankunytjatjara Native Title Claim Group includes Gladys Kite and all her descendants. In his second affidavit he indicated he was not aware of that membership and at the hearing it was indicated steps would be taken to have him removed from it. His present claim overlaps that claim. 11 (iv) In his second affidavit Mr Kite acknowledges that all the members of his claim group were members of the extended family of his mother. He also indicated that the former Kokatha Munta claim was made on the basis of Kokatha ancestry and his mother, as earlier noted, was of Kokatha ancestry. The present Southern Arunda Yunkunjatjara Nguraritja claim is not based upon Kokatha ancestry, but upon my father's and his father's ancestry and upon the paternal ancestry of the other members of the Southern Arunda Yunkunjatjara Nguraritja claim. Under my traditional law and culture, my father's father and his ancestors are the basis of my capacity to be one of the claimants in the Southern Arunda Yunkunjatjara Nguraritja claim. My capacity to make this claim, and the capacity of the other claimants, (apart from Adam Tunkin, to whom I refer in paragraphs 19 to 22) is through our paternal grandfather Bill Kite and his ancestors, more so than through my father or the other claimants' fathers. My father, Gilbert Kite, always used to say to me and to my brothers and sisters that he and his father and the ancestors before them were Southern Arunda people and that they had family connections as far north as to Hermannsburg in the Northern Territory. It indicates that while Bill Kite is Mr Kite's grandfather, he is the great-grandfather of the other members of the claim group. Mr Kite's father is the grandfather of two of the members (Luke Ayre and Marcus Moore). Mr Kite's brother is the grandfather of the third (Trevor Warrior). 12 (v) The fifth member of the claim group, Adam Tunkin is said by Mr Kite to be a member of the claim group on the basis that his father (Charlie) was a relative of his mother, Mrs Gladys Kite. He was adopted by Mrs Kite's father, "the same person who adopted her". Mr Tunkin's father, it is said was recognised as "nguraritja" for the area where he spent most of his life, this being a big part of the claim area. Mr Tunkin, who was born in the country where his father lived, is said by Mr Kite also to be "nguraritja for the claim area as a result of his father's status as nguraritja". I would interpolate that "nguraritja" is said in the State's submissions to be a Western Desert Bloc term for "land owner". g. The other four claimants in the Southern Arunda Yunkunjatjara Nguraritja claim and I are the only descendants of grandfather Bill Kite and his ancestors who fit this description, today. h. My fellow claimants and I are certain of that fact because we know our extended family well, and through that knowledge we are aware that the other four claimants and I are the individuals who fall within the defining characteristics of those who have maintained traditional knowledge and observances, so as to be qualified to speak for our traditional country. i. The members of our extended family who have not learned and who do not now live by the traditional laws and customs of grandfather Bill Kite and his ancestors, so that they are not qualified to claim traditional country are, from my knowledge of the extended family, content that my fellow claimants and I hold the traditional knowledge and that we perform the traditional role of exercising the traditional claims upon, and responsibilities toward our grandfather's country. j. As we are required to do by our traditional laws and customs, my fellow claimants and I observe our traditional laws and customs, including in the ways in which they require us to recognise our traditional relationship to our country. The following, with some addition, is drawn from what I there said. Note 2: Section 251B states what it means for a person or persons to be authorised by all the persons in the native title claim group. The expression is commonly and understandably used to refer to the group on whose behalf a native title determination application --- claimant application is made. Indeed, Form 1, prescribed by para 5(1)(a) of the Native Title (Federal Court) Regulations 1998 (Cth), uses the expression in that sense, treating 'claimants' and members of the 'native title claim group' as synonymous. But there is no escaping the fact that the 'native title claim group', all of whose members are required by s 61(1) to authorise the applicant to apply, is a group constituted by all the actual holders, according to their traditional laws and customs, of the common or group rights or interests comprising the particular native title claimed. 19 Section 61(4) provides that where a native title application is one authorised by a claim group the application must (a) name the persons constituting the group or (b) otherwise describe the persons sufficiently clearly so that it can be ascertained whether any particular person is one of those persons. It is that group which provides the authorisation under s 251B: see Harrington-Smith (No 9) , at [1186] ff. It is in that group's favour that a determination, if successful, is made: ibid; see also Colbung v State of Western Australia [2003] FCA 774. 22 The requirements that the group be constituted by all the actual native title holders and that a determination, if successful, is to be made in their favour carry with them two consequences. The first is that a subset or part of what truly constitutes a native title group cannot itself be a claimant group under s 61(1): Risk v National Native Title Tribunal [2000] FCA 1589 at [60] - [61] ; although in some, though by no means all, instances, there may be good reason for hesitation in readily concluding that an alleged group is only a sub-group or part of a group for s 84C purposes: see McKenzie v State of South Australia (2005) 214 ALR 214 at [41]. However, where a sub-group of a community sharing traditional laws and customs alone possesses rights and interests in a particular area, that sub-group may itself constitute a native title claim group: see 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 at [60] . 23 I have noted above the tie between group membership and authorisation. Authorisation is 'fundamental to the legitimacy of native title determination applications', and is 'not a condition to be met by formulaic statements in or in support of applications': Strickland at 259-260. Where the authorisation requirement of s 61(1) is not complied with, the non-compliance is fatal to the success of the application: Moran v Minister for Land and Water Conservation for the State of New South Wales [1999] FCA 1637 at [48] ; Strickland at [56]-[57] (approved in WA v Strickland at [77]-[78]); Drury v Western Australia [2000] FCA 132 ; (2000) 97 FCR 169 at [10] ; Daniel v Western Australia (2002) 194 ALR 278 (FCA) at [11]; De Rose FCA/O'Loughlin J at [933]. Authorisation must be by all the persons who constitute the native title claim group in respect of the common or group rights and interests comprising the particular native title claimed: Risk v National Native Title Tribunal [2000] FCA 1589 at [30] ; Dieri People v South Australia [2003] FCA 187 ; (2003) 127 FCR 364 at [55] ( 'Dieri People' ); Tilmouth v Northern Territory [2001] FCA 820 ; (2001) 109 FCR 240. All I need observe here is that the court's power should be exercised only where the claim as expressed is untenable upon the "version of the evidence" favourable to the respondent to the strike out: McKenzie , at [26]; Bodney v Bropho [2004] FCAFC 226 ; (2004) 140 FCR 77. As the claimant application is fatally flawed in a number of respects, I need only refer to four matters. Before doing so, I should indicate that, on its face, the application contains apparent contradictions, ambiguities and infelicities that would have required systematic address were I not to strike it out. To illustrate this I would note the following. (i) While Schedule F to Form 1 suggests that the claim group members' status as native title holders is derived by means of ancestry in some manner, it was said by Mr Kite's counsel in oral submissions --- and this is consistent with his second affidavit --- that "Mr Kite's instructions to me have been adamantly and repeatedly: you claim through your grandfather". The grandfather relied upon for the purposes of the application is Bill Kite. Of the five claim group members, John Kite alone is the grandchild of Bill Kite. (ii) As I indicated above, the Schedule F description of native title rights and interests suggests on its face that Aboriginal peoples other than the claim group acknowledge the same traditional laws and observe the same customs in relation to the claim area. Rather, they are acknowledging that there may be others who hold native title rights and interests in the parts of the same country, but on the basis of different groups' laws, customs and traditions. 27 Turning to the matters of substance that need to be considered, the first two relate to the question whether the designated claim group constitutes the entirety of the possible native title group suggested by the application and evidence. These relate (i) to the inherently contradictory character of the claimant application itself as revealed in Schedule F ("the sub-group claim"); and (ii) to Mr Kite's conception of who is possessed of native title rights and interests ("the trust-like claim"). I have noted Mr Kite's response to this contention. That response may have suggested that the defect exposed by the State could be cured by an appropriate amendment under O 13 of the Federal Court Rules ; and see the Note to s 84C(1) of the Act. Having regard, though, to the other deficiencies in the application the making of such an amendment would not save the application. As the genealogical evidence indicates, and as Mr Kite accepts, there are considerably more living descendants of Bill Kite than the claim group members. Yet Mr Kite asserts that the claimed native title rights are held by the claim group alone. Rather, the rights are held in the custody of the 5 named male claimants for the benefit of thew [sic] wider community of Bill Kite descendants. 30 While I would not wish to be taken as suggesting that the common law trust has any place in native title claims, I will for ease in exposition describe this claim as a "trust-like claim". The basis of the claim is that the five claim group members, as Nguraritjas, are the traditional custodians of the claimed land and alone are entitled to speak for it. No such membership is disclosed. It recognises ancestry (albeit in an uncertain way) as the author of the status as native title holder. There is a genealogy of descendants of Bill Kite. Yet these are not included in the claim group. I am in consequence asked to infer that the claimant group is simply a sub-group of the wider community of Bill Kite's descendants. 33 For my own part I consider the trust-like claim gives some reason for pause. The application and the accompanying evidence when considered most favourably to Mr Kite: see McKenzie at [26]; does suggest (subject to what is later said) that there is a basis for asserting the claim group members were, in accordance with traditional law and custom, authorised to make the claim (i.e. as Nguraritjas); that they were entitled to speak for the country; and that they had particular responsibilities in relation to the land claim. But the doubt it engenders is that these matters have had some part to play in contriving the claim group itself. That doubt is exaggerated by the not altogether satisfactory explanation given of the "rights" of the wider community of descendants of Bill Kite to enjoy or to have the benefits of the native title rights and interests claimed. Nonetheless, it is said on Mr Kite's behalf that the division between holding the claimed rights and interests on the one hand, and having the benefit or enjoyment of them on the other is a factual proposition that is not to be tested on the present motion. 34 In the end I consider that I am obliged to give Mr Kite the benefit of the doubts I have. I would, however, observe this much. I am not prepared to assume that the particular traditional laws and customs of an Aboriginal group cannot produce the type of internal relationship within a community such as is advanced in this claim. Nonetheless, I have some concern that in this matter the claim may well owe more to concepts drawn from common law conceptions of property than from traditional laws and customs. I refer in particular to the apparent equation here of the idea of being a "holder" of native title rights and interests with that of being the "owner" of those rights and interests. 35 The second two matters to which I need refer relate to the actual composition of the claim group itself and to the basis of its membership. I have foreshadowed both of these matters. The first relates to the members' relationship to Bill Kite; the second, to Adam Tunkin's membership of the group. Mr Kite alone of the claim group is Bill Kite's grandchild. The application and the evidence simply do not address the status of the three other Kite descended claim group members by reference to their respective grandfathers (I leave out of consideration the question posed by Adam Tunkin's inclusion in the group). Mr Kite's affidavit simply proceeds on the incorrect assumption that all of the claim group members are Bill Kite's grandchildren. 37 When this error is coupled with the opaque ancestral basis upon which Schedule F states that the members of the claim group have acquired their status as native title holders, I am satisfied that the application itself does not reveal an intelligible basis upon which the claimants themselves each derive their claimant status by descent. Together the application and the evidence are embarrassing. For present purposes I am prepared to accept that the Kite claim does not depend in any way on the members of the claim group being Kokatha people and deriving their rights as such. Rather it is founded upon descent from Bill Kite. Adam Tunkin is conceded not to be a descendant of Bill Kite. It must be said, though, that the affidavit purports to qualify Mr Tunkin on the basis of descent from Bill Kite. This cannot be. 39 The evidence concerning Adam Tunkin is that he was adopted by Mrs Gladys Kite's father. I put it to Mr Kite's counsel that Mr Tunkin appeared thus to have a Kokatha connection and, distinctly, that he could speak for the country. It was accepted that the affidavit evidence does not "expressly" take the matter any further than this. 40 It is clear from what was said for Mr Kite on the issue of sub-groups that there were other possible native title claimants observing different laws and customs with rights and interests in the land claims. The claim, I would note, does overlap the Kokatha Native Title Claim. 41 The best that can be said on the material before me is that while Mr Tunkin may be able to speak for the country, no satisfactory explanation for his membership of the claim group has been advanced. His presence simply reflects the confusion and disorder that attends so much of this application. It is, in the State's submission, arbitrary. Recognising the difficulties posed by the evidence concerning Mr Tunkin, Mr Kite's counsel acknowledged, though he did not concede, that Mr Tunkin might not "make the grade" in establishing claim group membership. It was suggested, nonetheless, that he could be excised from the claim group and that it proceed with the remaining four members. 42 I am satisfied that there is no acceptable explanation for Mr Tunkin's inclusion in the claim group consistent with the basis of the native title rights asserted in Schedule F or in para 23 of Mr Kite's second affidavit (reproduced in part earlier in these reasons). However, I am not prepared to consider giving leave to amend the application to excise his name from the claim group because, as I indicated earlier, the basis upon which the remaining group members (apart from Mr Kite) are asserted to be within the group in virtue of their relationship with their respective grandfathers (who are not Bill Kite) has not been adverted to at all in the material before me. I need say no more about this, other than to observe that this particular claim group is itself probably best described as self-identifying and self-authorising and is objectionable for those reasons: see Bolton on behalf of the Southern Noongar Families v State of Western Australia [2004] FCA 760 at [45] . The process of authorisation described in the affidavit accompanying the Form 1 suggests as much. 44 The State also raised subsidiary issues of non-compliance with procedural requirements imposed by s 61A and s 62. Given my conclusion as to the fate of the application itself, it is unnecessary that I deal with these. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

notice of motion to strike out native title determination application under s 84c native title act 1993 (cth) or s 31a federal court of australia act 1976 (cth) whether the claim group includes all people who hold the native title claimed whether all members of the claim group satisfy criteria said to give status as native title holders native title

I also made an order pursuant to s 411(1) of the Act approving the explanatory statement required by s 412(1)(a) to accompany the notices of the Share Scheme Meeting. The following are the reasons why I made those orders. As explained below, the Investa Group comprises Investa itself and the Investa Property Trust, a listed unit trust of which Investa is the responsible entity. 3 According to the evidence, based on the closing price on 30 May 2007, being the day immediately prior to the date of the Implementation Agreement referred to below, the Investa Group had a market capitalisation of approximately $4.1 billion. As at 31 December 2006, the Investa Group had assets under management of approximately $7 billion, which included direct investments, managed funds and development assets. The Investa Group's business includes a listed office portfolio, an external funds management business, a residential development business, and a commercial development business. 4 On 31 May 2007 Investa entered into an Implementation Agreement with Post Bidco Pty Limited (Morgan Stanley Bidco), an instrument of Morgan Stanley Real Estate (MSRE). MSRE is a division of the global financial services firm listed on the New York Stock Exchange, Morgan Stanley. MSRE comprises three major global businesses, being investing, banking and lending. MSRE manages approximately US$55.6 billion in real estate assets on behalf of its clients. 5 By the Implementation Agreement, Investa and Morgan Stanley agreed to implement a scheme by which, subject to security holders' agreement and Court approval, Morgan Stanley Bidco or a related body corporate of Morgan Stanley would acquire all of the shares in Investa (the Shares) and units in the Investa Property Trust that are "stapled" to the Shares (the Units) (together, the Securities). Morgan Stanley's offer was $3.00 per Security plus a dividend or distribution of eight cents per Security. The dividend or distribution is payable on 22 August 2007 and is in respect of the six month period ended 30 June 2007. 6 The fact that the Shares and Units are stapled indicates that neither a Share nor a Unit may be disposed of otherwise than with its accompanying Unit or Share respectively. Under the constitution of Investa, Shares may not be issued or transferred without an issue or transfer of the Units to which they are stapled. The constitution also provides that if there is a transfer of Shares without a transfer of the stapled Units, Investa is authorised to act as the transferor's agent for the purpose of transferring the stapled Units to the transferee (cl 5.2(c)). The Trust Deed dated 15 July 1977 constituting the Investa Property Trust contains reciprocal provisions (cl 19.3(a)). 7 Associated with the Share Scheme are certain amendments to the Trust Deed. For convenience, the amending of the Trust Deed may be referred to as the "Unit Scheme". Under the Unit Scheme the Unit holders are to resolve by special resolution to approve amendments to be effected by way of a Supplemental Deed to the same general effect as the Share Scheme. The Court is not called upon, however, to make any order in relation to the Unit Scheme. Whereas the acquisition of the Shares will fall outside Ch 6 of the Act (s 611 item 17 exempts from the prohibitions contained in s 606 "an acquisition that results from a compromise or arrangement approved by the Court under Pt 5.1") , the acquisition of the Units will not. However, s 611 of the Act provides that certain acquisitions are exempt from the prohibitions in ss 606(1) and (2). One class of exempt acquisition is that described in item 7 of the table within s 611. 9 The Australian Securities and Investments Commission (ASIC) is proposing, in exercise of the power given to it by s 655A of the Act, to declare that Ch 6 applies as if specified provisions within Ch 6 were omitted, modified or varied as specified in the declaration. However, at the time of the hearing, consideration was still being given to the wording of the declaration. Senior counsel for Investa said that he was instructed that the question of the wording would probably be resolved during the course of the day of the hearing (18 July 2007). Investa asked that I include in the orders sought provision to cover the possibility that formal confirmation of the relevant declaration may not be received from ASIC prior to registration of the explanatory statement in accordance with s 412(6) of the Act. Accordingly, Investa asked that the words "in principle" be inserted in s 7.2(b) and s 9.17(a) of the explanatory statement in relation to the modification granted by ASIC. The effect of this would be that the relevant statement would be that ASIC had granted a modification under s 655A "in principle". I included those words in the orders made on 18 July 2007. 11 The Share Scheme recites that Investa is the responsible entity of the Investa Property Trust, that Investa is admitted to the official list of ASX, and that the Securities are quoted on the financial market conducted by ASX. The Share Scheme recites that at the date of the Scheme Booklet there were 1,525,535,427 Securities comprising 1,525,535,427 Shares stapled to 1,525,535,427 Units on issue. 12 The Share Scheme and Unit Scheme will not apply to "Excluded Securities". This expression is defined to mean the "Excluded Shares" and the "Excluded Units". Those expressions, in turn, are defined to mean respectively Shares and Units held by or on behalf of Morgan Stanley Bidco. 13 The Scheme consideration in respect of each Security held by a Scheme Participant is $3.00 cash, but if Investa or the Investa Property Trust should declare or pay any dividend or distribution, other than that of eight cents per Security previously mentioned, before the Share and Unit Schemes are implemented, then the consideration for each Security means $3.00 less the amount per Security of all such distributions and dividends, the record date for which precedes the Implementation Date. 14 The Scheme sets out various conditions precedent on which the Share Scheme is conditional, including, of course, approval by the Court in accordance with s 411(4)(b) of the Act, with or without modifications. If all of the conditions precedent have not been satisfied or, where applicable, waived, by 31 October 2007, the Share and Unit Schemes will not be implemented unless Investa and Morgan Stanley Bidco agree to extend that date, and, if required, the Court approves of the extension. 15 On the first business day after the date of Court approval, Investa is to lodge with ASIC not only an office copy of the Court orders under s 411(4)(b) of the Act approving the Share Scheme, but also, in its capacity as responsible entity of the Investa Property Trust and for the purposes of s 601GC(2) of the Act, a copy of the Supplemental Deed. In a series of cases, Gyles J has noted that notwithstanding such a deed poll, it is unsatisfactory that persons whose shares have been acquired should have no remedy for non-performance by the acquiring company other than to sue it on the deed poll: see Re Kaz Group Ltd [2004] FCA 738 ; Re Tempo Services Ltd (2005) 53 ACSR 526; Re SFE Corporation Ltd (2006) 59 ACSR 82 ( SFE) . 19 In SFE 59 ACSR 82, Gyles J suggested that a scheme might provide for payment by the acquiring company to a trustee prior to the vesting of title to the shares in the acquiring company, to be held by the trustee for payment to the shareholders immediately following the vesting. In my experience, this procedure is now commonly followed, as it has been in the present case. 20 Accordingly, under cll 4.2 and 4.4 of the Share Scheme, on or before 12.00 noon on the Implementation Date, Morgan Stanley Bidco is to pay the aggregate Scheme consideration in cleared funds into an account in the name of Investa, to be held by Investa on trust for the Scheme Participants (except that any interest on the amount is to be for the account of Morgan Stanley Bidco) for the purpose of its being paid over to them by dispatch not later than the Implementation Date. Also by 12.00 noon on the Implementation Date Morgan Stanley Bidco is to provide a certificate signed by a director confirming that Morgan Stanley Bidco has made that payment. After 12.00 noon on the same date, and subject to receipt by Investa of that certificate, the Shares, other than the Excluded Shares (if any), together with the Units that are stapled to the Shares, are to be transferred to Morgan Stanley Bidco. I have no difficulty with a provision of that kind: see APN News & Media Limited (2007) 25 ACLC 784 ( APN ) at [57]---[63]. I discussed such a term in WebCentral Group Limited (No 2) (2006) 58 ACSR 742 ( WebCentral ) at [14]---[24], and will not repeat here what I said there. 23 The question that arises is whether, in the exercise of its discretion in an ex parte proceeding and without a contradictor, the Court should make an order for the convening of the meeting and later approving a scheme containing the particular term proposed. 24 Could the presence of the term detrimentally affect the interests held by third parties in the shares the subject of the scheme? If not, why have, or not have, the term as part of the scheme (see WebCentral 58 ACSR 742 at [20])? If so, should the Court support a term that can detrimentally affect the interests of third parties who have not been heard? 25 The effect of the Court's approval of a scheme agreed to by the requisite majorities in number and in value is that the scheme is binding on all members and on the company: s 411(4). As noted in WebCentral 58 ACSR 742 at [18], in substance the effect is to supply consent to be bound by the scheme, even of members who did not vote in favour of it. The vesting free of encumbrances term would be binding on all members. It would, however, leave the interests of third parties to be governed by general law principles. As noted below, those principles give very substantial protection to an acquiring company. 26 A "share" is a legal chose in action that is constituted by a bundle of contractual rights and obligations and represents a person's interest in a company, and which, subject to the company's constitution and possibly other constraints, is transferable, transmissible and capable of devolution by will and by operation of law: see the Act s 1070A , and Borland's Trustee v Steel Bros & Co Ltd [1901] 1 Ch 279 at 288; Commissioners of Inland Revenue v Crossman [1937] AC 26 at 66; Archibald Howie Pty Ltd v Commissioner of Stamp Duties (NSW) [1948] HCA 28 ; (1948) 77 CLR 143 at 157. Under general law principles, a buyer of a share enjoys priority over the holder of an earlier equitable interest because of the doctrine of bona fide purchaser of the legal estate without notice: see Meagher RP, Heydon JD and Leeming MJ, Meagher Gummow and Lehane's Equity Doctrines and Remedies (Butterworths LexisNexis, 2002) at [8-230]---[8-300]. 27 The only circumstances in which a "vesting free of encumbrances" term would have work to do would be if and to the extent that the acquiring company had notice of the equitable interest of a third party. I note in passing that the deemed warranty of freedom from encumbrances is expressed in terms that are, in the relevant part, identical to those of the vesting free of encumbrances provision, and this suggests that the drafter accepted that it was conceivable that at least in some circumstances equitable interests of third parties might survive implementation of the Share Scheme. Although it may be difficult to imagine such a case, a fortiori where the shares are traded on the market of the ASX, I see no reason why the Court should do anything that might give the impression that it was supporting the extinguishment of a third party's equitable interests in such rare circumstances. At least, before approving a scheme containing an unqualified vesting free of encumbrances term, I would require evidence that the acquiring company had no notice of any third party interests. 28 Apparently the purpose of a vesting free of encumbrances term is only to make clear, as is the position under general law principles, that the acquiring company takes the shares free of equitable interests of which it was unaware. 29 The vesting free of encumbrances term expressed in cl 7.3(b) of the Share Scheme incorporates a qualification in the light of the observations in WebCentral 58 ACSR 742. (Emphasis added. I therefore took the view that those words overcame the difficulty referred to in WebCentral 58 ACSR 742, which was that the presence of a vesting free of encumbrances term might give the impression to third parties that their interests had been extinguished by the presence of the term where they would not have been in its absence. I discussed such provisions in APN 25 ACLC 784 at [25]---[35] and [36]---[55] respectively. 32 The affidavit of Jonathan Peter Callaghan, the Group General Counsel of the Investa Property Group, sworn 17 July 2007 deals at paras 23---26 with such provisions in the present case. The "no shop" provision (cl 14 of the Implementation Agreement) is to the effect that during a "No Shop Period" competing takeover proposals are not to be sought, and that if any are received, Morgan Stanley Bidco is to be given an opportunity to match them. 33 The break fee provision (cl 15 of the Implementation Agreement) is to the general effect that Investa will pay to Morgan Stanley Bidco a break fee of $20 million if, within nine months of the date of the Implementation Agreement, certain events occur. In general terms, these are that the proposed acquisition by Morgan Stanley Bidco fails for certain reasons, such as the acceptance of a competing takeover proposal. The break fee is not payable if the Investa Shareholders simply decide not to accept Morgan Stanley Bidco's offer. 34 Mr Callaghan's affidavit shows that the "no shop" and break fee provisions were agreed to by Investa following ordinary arm's length commercial negotiations between Investa and Morgan Stanley Bidco that were conducted over a period of two months, during which the parties were separately advised and represented by external legal advisers, and (in the case of Investa) by external financial advisers, with extensive experience of transactions of the present kind. Mr Callaghan states that Investa received legal advice on the operation of both provisions, and that Investa had regard to the guidelines set out in the Takeovers Panel Guidance Note 7 when it was negotiating and agreeing to them. 35 The amount of the break fee is $20 million which represents 0.49% of the equity value of the Securities as at 30 May 2007, and 0.43% of the total consideration offered by Morgan Stanley Bidco, including the eight cents per Security dividend or distribution to be paid to Security holders on 22 August 2007. Clearly, the amount of the break fee is well below the 1% of equity value referred to (at [7.18]) in the Takeovers Panel's Guidance Note 7: Lock-up Devices (2 nd Issue, 2005). They assessed the fair value of the Securities to fall in the range of $2.85 to $3.15 per stapled Security (before allowing for payment of the dividend or distribution of eight cents per Security). Mr Jedlin and his co-authors note that the Morgan Stanley Bidco offer represents a value that is higher than any price at which the Securities have traded for the 12 month period to 30 May 2007, the date of the announcement of MSRE's offer. The offer represents a premium of between 13% and 28% over the market price of the Securities determined over that period of 12 months. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

scheme of arrangement application for order under s 411(1) of corporations act 2001 (cth) that company convene meeting of members to consider proposed scheme of arrangement term of scheme that "to the extent permitted by law" shares will vest in acquiring company free of interests of third parties discussion of such a term. held : order made that company convene meeting to consider scheme incorporating the term. corporations

It was a business operation of the Clunies Ross and Murray families. In 1948 the British Phosphate Commissioners took over the management of mining on Christmas Island as agent for the Australian and New Zealand governments. In 1982 the Phosphate Mining Company of Christmas Island, wholly owned by the Australian government, took over the mining operations from the British Phosphate Commissioners. The mining operations were closed in 1987 and a liquidator was appointed but the local union, the Union of Christmas Island Workers, was instrumental in the re-establishment of mining operations in 1990. 2 PRL was incorporated, under the name of Phosphate Resources NL, on 12 June 1989. Its initial shareholders were members of the union. In a joint venture with one of its subsidiaries and Cluff Engineering, PRL acquired the assets of the previous operator. PRL subsequently bought out Cluff Engineering's interest. PRL was granted a mining lease in 1998 for 21 years. Although the current mining lease therefore expires in 2019 PRL's assessment is that 'there are insufficient high grade phosphate resources in this lease to last for the balance of the term of the lease'. It proposed mining in nine additional areas on Christmas Island. Modifications were subsequently made to the proposal, particularly to avoid identified environmental effects, with the result that the area directly encompassed by the original additional mining proposal of 403.7 hectares was reduced to 256.3 hectares. PRL emphasised that an area of this size represented less than 2% of the Christmas Island land mass. 4 PRL estimated that approving its application would extend export operations, from a projected three to five years, to ten years. There will also be significant impacts on the Australian economy. As a result the unique cultural heritage of the Island will be seriously impacted. The loss of population is likely to lead to the collapse of the vibrant religious and cultural activity. Similarly depopulation will result in the loss of the inputs of CIPs employees into the social fabric and social cohesion of the Island. PRL contended in an environmental impact statement prepared for that purpose that 'the impacts of the modified proposal are within the limits of environmental acceptability and will have a number of positive benefits for the whole environment of Christmas Island including both the natural and social and economic environment' . The proposal is firmly based on the proponent's extensive experience in its current mining and rehabilitation operations, a comprehensive research program and sound scientific principles. It offers a balance of beneficial socio-economic security for the Island's unique community, benefits for the broader Australian economy and enhanced outcomes for the conservation of the Island's biodiversity. (Substitution of the Minister who now has portfolio responsibility for the administration occurred by consent for the purpose of the proceedings --- s 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the ADJR Act'). The decision made on 27 April 2007 had significant consequences for businesses and people on Christmas Island. 7 The way in which the proposal was to be assessed, and the matters which the Minister was required to take into account, were directed by the Act. An assessment of, and a decision about, the application for extended mining operations on Christmas Island required judgments to be made about a range of factors, some of which needed to be balanced against others. One of the matters which the Minister was required to take into account concerned the environmental impact statement produced by PRL in accordance with guidelines provided by the Department. The environmental impact statement advanced a case, on balance, in support of the proposal, particularly having regard to its social and economic benefits; matters which the Minister was directed by the Act to consider. 8 The Minister refused approval in accordance with recommendations made to him in two departmental briefs and an assessment report which was required by the Act to be made by the Department and provided to him. The economic and social benefits of the proposal were there said to be outweighed by considerations concerning the environment and biodiversity. On 14 June 2007, about six weeks after the decision was made, the Minister signed a Statement of Reasons for his decision. That written Statement of Reasons set out a long series of explicit factual findings and judgments said to have been made by the Minister in the course of coming to his final decision. At the outset, and until quite late in the proceedings, PRL accepted that the Statement of Reasons should be accepted as identifying the factual conclusions reached by the Minister and explaining his reasons for decision based on those conclusions. It mounted its case, and presented its submissions in chief, both in writing and orally, on that important premise. 10 The ADJR Act permits a review in this Court of the decision made by the Minister. The grounds upon which such a decision may be challenged are set out in s 5 of the ADJR Act. They involve challenges on legal grounds. They do not include challenges merely to findings of fact or the assessment of merits. Those distinctions and limitations are ones which were largely ignored in the challenges which PRL initially sought to make to the Minister's decision. 11 It would be tedious, unproductive and unnecessary to attempt to illustrate, much less discuss in detail, all the ways in which the limitations upon the scope of the proceedings, and hence the matters which the Court may take into account, were not observed by PRL as it originally formulated its arguments. Many of the challenges which PRL sought to make initially were, in truth, challenges to the findings of fact set out in the Statement of Reasons and to the explanation there given about the merits of PRL's application. Later in this judgment I will explain in broad outline the challenges which were made to the decision, based on an acceptance of the Statement of Reasons as an accurate description of the basis for the decision. 12 During the course of oral submissions for the respondent, and after the respondent had put its case in chief by both written and oral submissions, PRL changed its position. It withdrew its acceptance that the written Statement of Reasons should be regarded as accurately stating the Minister's actual reasons for decision. That change of position was of considerable significance. It required attention, in the first instance, assuming it was to be permitted, to whether the parties should have an opportunity to supplement their cases. I shall explain in more detail how the change in position came about, the procedural steps taken in response to it and the additional issues which were thereby generated. However, the respondent successfully resisted PRL's proposal that the proceedings should continue on the pleadings. Instead French J decided on 27 September 2007, in accordance with the respondent's desires, that 'the matter should proceed by way of affidavit and written submissions' ( Phosphate Resources Limited v Turnbull, Minister for Environment and Water Resources [2007] FCA 1507 at [10] ). 14 Before the hearing commenced the respondent filed a large number of documents. PRL later filed two affidavits sworn by Lai Ah Hong, the Managing Director of PRL. The respondent filed two affidavits sworn by Gerard Patrick Early, Deputy Secretary of the Department of the Environment and Water Resources. The first of Mr Early's affidavits also attached a further number of documents. 15 The evidence filed to that point disclosed the material which was before the Department when it assessed PRL's application, the briefs which were given to the Minister before he made his decision on 27 April 2007 and the written Statement of Reasons provided to PRL on 14 June 2007. That was the evidentiary material on which the case went to a hearing. 16 Later, in circumstances to which it will be necessary to refer in greater detail, further evidence was filed. It consisted of a further brief given to the Minister shortly before he signed the Statement of Reasons and a third affidavit by Mr Early sworn on 6 August 2008. That affidavit sought to identify certain elements of departmental practice and to explain some 'errors' in the material provided to the Minister before he made his decision on 27 April 2007. Some, due to the operation of transitional provisions, did not apply to the decision. Further, some aspects of the assessment process were also governed by earlier provisions which applied when those aspects required attention. Those complexities can largely be put to one side because no change of substance, which might affect the outcome of the case, occurred with respect to matters which require attention. I will endeavour, where complications of this kind arise, to set out the statutory provisions operative for the purpose of the proceedings. 18 There were a number of provisions in the Act which prohibited the taking of certain 'actions' that would have a 'significant impact' unless approval was first sought and given under Part 9 of the Act. The term 'action' was defined and limited by ss 523, 524 and 524A. What was proposed by PRL was an 'action'. The meaning of 'impact' was given by s 527E. It included both direct consequences and a range of indirect consequences. The term 'significant impact' was not defined. The prohibiting sections which required consideration in the present case were ss 16/17B (significant impact on the ecological character of a declared RAMSAR wetland --- the RAMSAR Convention is the convention on wetlands of international importance, especially as waterfowl habitat, 'done' at RAMSAR Iran on 2 February 1971), ss 18/18A (significant impact on a listed threatened species included in the extinct in the wild category); ss 20/20A (significant impact on a listed migratory species); ss 23/24A (significant impact on the environment in a Commonwealth marine area --- Commonwealth marine area was defined in s 24) and ss 26/27A (significant impact on the environment on Commonwealth land --- Commonwealth land was defined in s 27 - see also s 525). 19 Section 67 of the Act designated an action, which would be prohibited by, inter alia, ss 16/17B, 18/18A, 20/20A, 23/24A or 26/27A, as a 'controlled action'. The prohibiting provisions were each designated a 'controlling provision'. Section 68 required that a person who proposed to take such an action refer the proposal to the Minister for decision whether or not the action was a controlled action. Referral of such a question to the Minister by PRL in 2001 commenced the chain of decisions and assessments that preceded the present proceedings. 20 If the Minister decided that an action was a controlled action, s 82 of the Act applied a series of legislative provisions to the assessment of the 'relevant impacts'. The term 'relevant impacts' was defined by s 82 and extended to past as well as future and probable impacts. Section 87 required the Minister to decide on an approach for the assessment of the relevant impacts. One of those approaches was 'assessment by environmental impact statement under Division 6' (s 87(1)(d)). That was the approach chosen. A series of further statutory directions (in Chapter 4, Part 8, Division 6 of the Act) were thereby engaged. The Minister was required to 'prepare written guidelines for the content of a draft statement about the action and its relevant impacts' (s 102). After a period for comment and finalisation of the environmental impact statement, the Secretary of the Minister's Department was also required to provide an 'assessment report' (s 105). Provided the Minister took into account matters identified for that purpose by the Act, and did not take into account irrelevant or extraneous matters, it was left to the Minister to strike the necessary balance and come to an ultimate conclusion. The central thrust of PRL's representations to the Minister was that the risks of environmental damage could be satisfactorily contained and that the social and economic factors to which it drew attention should have prevailed over those risks. It contended, in effect, that the balance should have tipped in the other direction. 24 Section 130 of the Act required the Minister to decide whether or not to approve the taking of the action for the purpose of each of the controlling provisions. Section 136 set out the conditions governing the Minister's consideration of whether or not to approve the taking of an action. It is as well to set it out in full in the form it took as it applied to the Minister's decision which was challenged in the present case. It identified ss 18/18A, 20/20A and 26/27A as controlling provisions relevant to its proposal. It said ss 16/17B and 23/24A were not relevant and were therefore not controlling provisions. On 14 November 2001 Mr Gerard Early, Deputy Secretary of the Department, decided, as a delegate of the Minister, that the proposed action was a controlled action and that the controlling provisions were each of: ss 16/17B; 18/18A; 20/120A; 23/24A; and 26/27A. Reasons for that decision were provided on 8 January 2002 at the request of PRL. In due course the Minister's decision on 27 April 2007 to refuse approval for the action (the additional mining) proposed by PRL was expressed to have effect for each of the provisions identified by Mr Early. That was also what the Department recommended at the time the decision was made. 27 It is worth noting, at this point, a defect in the decision of the Minister which was admitted during the course of the proceedings. When the Minister provided written reasons for his decision, the Statement of Reasons explained only why the decision had effect for ss 18/18A, 20/20A and 26/27A, the provisions accepted as relevant by PRL in its referral. Despite the failure to explain why the decision had been stated to have effect also for ss 16/17B and 23/24A, no amendment of the decision was made. The lack of justification for the decision having effect for those latter provisions was referred to in written submissions by PRL. That part of PRL's written submissions drew no response until the hearing when, for the first time, it was conceded that to the extent that the decision was stated to have effect for ss 16/17B and 23/24A it could not be sustained. 28 That concession prompted an application by PRL for discovery, which I rejected ( Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385). The concession also contributed to PRL's change of position about the reliability of the Minister's written Statement of Reasons. Evidence advanced by the respondent in answer to the application for discovery revealed an offer to consent to an order setting aside the decision to the extent that it was said to have effect for ss 16/17B and 23/24A. I will deal later with whether that would be an appropriate and sufficient response to the error which was somewhat belatedly admitted. Simplified outline of this Division The following is a simplified outline of this Division: The Minister must choose one of the following ways of assessing the relevant impacts of an action the Minister has decided is a controlled action: (a) an accredited assessment process; (b) an assessment on preliminary documentation; (c) a public environment report; (d) an environmental impact statement; (e) a public inquiry. That decision engaged the provisions of Division 6 of Part 8 of Chapter 4 of the Act. The Act then required (s 102) in the first instance, that 'written guidelines for the content of a draft statement about the action and its relevant impacts' be prepared. Draft guidelines dated January 2000 were issued for public comment. Final guidelines for the draft environmental impact statement, dated August 2002 were later published. 31 In accordance with s 103 of the Act, PRL provided a draft environmental impact statement to the Minister on 5 September 2002. Publication was approved by a delegate of the Minister on 23 September 2005. The draft environmental impact statement (and an erratum dealing with some printing errors) was made available for public review. PRL received 413 submissions about the draft environmental impact statement. 32 Section 104 required PRL to finalise the draft environmental impact statement, taking account of comments received and 'give the finalised statement to the Minister' . The Department required further information. In the meantime, the Department had commissioned an independent report from Dr Libby Mattiske. The Department of Transport and Regional Services also commissioned a report from the Centre for Mined Land Rehabilitation. Those two reports were provided to the Department late in 2006 and then provided to PRL. You will no doubt be aware that two reports on aspects of the proposal have been commissioned by the Department of the Environment & Heritage (DEH), and the Department of Transport and Regional Services (DOTARS) respectively. I have received a draft copy of the 'Independent Review of the Environmental Impact Statement (EIS)' commissioned by DEH, and I'm currently reviewing it. I understand that the DOTARS report on the rehabilitation of mine sites is progressing, and a workshop on the matter is due to be scheduled soon. Given the relevance of both reports in assessing your proposal, I am keen to get your comments on them prior to accepting your response to the matters raised in public submissions to the draft EIS. This will ensure that your comments can be taken into account in writing the assessment report on the proposal. At this stage I would expect to send you a copy of the final DEH report within the next two weeks. It was relatively short. Whilst PRL strongly agrees that Christmas Island is unique and will need to be carefully managed into the future to preserve the ecological characteristics for which it is famous, nothing presented in either the Mattiske or CLMR report link the proposed new leases to significant long-term impacts on the Island's ecological integrity or biodiversity. PRL asserts that the socio-economic environment of Christmas Island is also unique. The phosphate resource is limited, and PRL has made the commitment not to apply for any more leases. A transition from an economy based on phosphate mining to a more diverse economy based on industries like eco-tourism is therefore necessary. Nevertheless, studies conducted as part of the draft EIS suggest that many on the Island feel tentative that an abrupt end to mining will leave their futures uncertain. A continuation of mining in the short to mid term will alleviate these concerns, and give Christmas Island the "breathing space" required to build upon the foundling tourism industry and other potential economic activities and move towards a more sustainable economic future for the Island's residents. The proposal we have set out in the draft EIS provides for a balanced outcome that will provide for a well managed continuation of mining, an orderly transition to a post mining economy and an increase in the size of Christmas Island National Park which will enhance the management of the Island's biodiversity and threatening processes. As discussed, we have outlined the Department's information requirements to finalise the supplementary EIS in the following attachment. Apparently a response was provided, although it is not in evidence. There were further exchanges of correspondence during November 2006. On 21 November, 2006 Ms Dickman wrote advising PRL that the information provided 'met the requirements of the finalised environmental impact statement required under s 104' of the Act although, on 29 December 2006, PRL made further representations to Ms Dickman after receipt of an updated report by Dr Mattiske. 38 Although the Secretary's assessment report and the Minister's later written Statement of Reasons for decision referred frequently to the 'draft' environmental impact statement, in view of the fact that it was finalised as required by the Act, I shall refer to it as the environmental impact statement. The assessment report required by s 105 was dated January 2007. It recommended against PRL's proposal. 40 Section 136(2)(b) of the Act explicitly required the Minister to take account of the assessment report. From 14 December 2002[sic] to 22 March 2002, draft guidelines for the EIS were published for public comment. The final guidelines were accepted on 15 November 2002. The proponent published the draft EIS as required under section 93(1)(a), on 18 November 2005, and invited public comments until 30 December 2005. Advertisements were placed in The Australian newspaper, and in English, Mandarin and Malay in the "Islander". The proponent notified DEH that 413 public submissions were received, and provided copies and a summary of the comments. The revised Supplementary Report, taking into account the comments received, was accepted by a delegate for the Minister on 21 November 2006. A total of 413 submissions were received. Submissions were made by current and former Island residents, scientists, wildlife experts, tourists, Australian and overseas residents, the Shire, commercial businesses, and the peak business body on Island. Most submissions opposed the proposal (approximately 75%), concentrating on the removal of primary rainforest for mining. The Christmas Island Chamber of Commerce, which represents the majority of businesses on the Island, supported PRL's mining operation, however, it also voiced concern that PRL does not threaten Christmas Island's unique natural biodiversity, or clear rainforest. The Shire of Christmas Island stated the need to maintain and support the Island's community "while steps are taken to diversify the Christmas Island economy in an environmentally sustainable manner. Those later sections of the assessment report referred frequently to the environmental impact statement, as well as to Dr Mattiske's report and the report from the Centre for Mined Land Rehabilitation. 42 There can be no doubt that, in the assessment report, the environmental impact statement was treated as advancing, overall, a case for the proposed action. That case was moderated by the contents of the other reports. The purpose of the assessment report was clearly to provide the Minister with a recommendation that took account of all the available information. The information extended to the social impact of accepting or refusing the proposal. There was also a discussion of the principles of ecologically sustainable development. An extensive bibliography was included. Approximately 2/3 (78) of the PRL fulltime workforce is 50 or more years of age. Therefore approval of the proposal would probably enable most of those workers to retire in their current jobs, although the mining industry on mainland Western Australia is currently experiencing a shortage of skilled workers. On the information provided to date it is not possible to determine whether the proposal is economically sustainable, given the uncertainty about the costs and scope of decommissioning, although it would have short-term economic and social benefits for existing workers. However, the proposal would cause certain and significant irreversible environmental damage. Therefore, on balance, the proposal to continue short-term mining on Christmas Island at the cost of the high likelihood of further loss of rainforest habitat, and the consequent facilitation of the extinction of species, is inconsistent with the principles of ecologically sustainable development. " Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, it would be in the interests of the long term protection of the Island's biological diversity and ecological integrity that the proposal does not proceed. ' (Emphasis added. First is the discussion of the environmental impact statement. There can be no doubt that the environmental impact statement was at the forefront of attention in the assessment report provided to the Minister by the Department, and that as a matter of substance the recommendation to the Minister which it contained proceeded from a consideration, and rejection, of the case made by PRL through the environment impact statement. On the other hand, the assessment report did not attempt any summary of the environmental impact statement. The references to it were for the purpose of advancing the analysis in the assessment report. 45 The second matter concerns the operation of the Act. Although each of the controlling provisions of the Act was mentioned, along with the matter each protected, there was no discussion, as such, of statutory prohibitions. In particular, there was no suggestion that approval of the proposal was prohibited by the Act for any reason. The conclusions and recommendation were reached, as the extract above shows, 'on balance'. By the end of the case PRL's position had been significantly modified. It will be necessary to give further detailed attention to the reasons attributed to the Minister in the written Statement of Reasons, but it is possible to deal in a more general way with PRL's original case in the light of the statutory scheme I have outlined. Initially the challenge to the Minister's decision fell principally into six broad categories. In each category of suggested legal error the argument depended heavily on conclusions to be drawn from contested facts. In many cases the argument involved little more than debate about the soundness of conclusions expressed in the written Statement of Reasons. In some cases it depended upon a wrong view of the statutory scheme. 47 When PRL withdrew its acceptance that the Statement of Reasons represented the Minister's actual reasons for decision, that removed the foundation of most of its original arguments, which were heavily dependent on debating the justification for, and accuracy of, various 'findings' expressed in the Statement of Reasons. Nevertheless, I shall explain why the matters which were originally relied upon did not, in my view, provide any basis for the relief which was sought. 49 Once a decision was made that the proposed action was a controlled action (s 75) and that the action should be assessed, in the first instance, by environmental impact statement (s 87) PRL was required to prepare an environmental impact statement that dealt with 'the relevant impacts of the action'. Under s 136(2) the Minister was required to take the environmental impact statement into account. The Act did not impose any further express or independent obligation upon the Minister to take likely impacts into account but it is clear he could not simply disregard them because he had an obligation to consider 'matters relevant to any matter protected by a provision ... that the Minister has decided is a controlling provision for the action'. The submission was highly selective and ignored the plain language of relevant parts of the Statement of Reasons. For so long as the Statement of Reasons was accepted as stating the Minister's reasons for decision (as it was when these arguments were advanced) the argument was, in my view, without substance. 52 Another aspect of the argument was that the Minister did not give attention, as the Act required, to the likely effect on species as a whole but was diverted by an examination of the effect on individual members or populations of species. It is true that examination, in the various reports including the environmental impact statement, frequently began with the identification of known populations of particular species of flora and fauna and the likely effect on them of the proposed action but I am satisfied that, at least so far as the Statement of Reasons is concerned, the stated findings made about loss of habitat and other threats sufficiently concerned the endangered and critically endangered species as such that they cannot be dismissed as matters affecting only individual members or confined populations of the species. Once it is clear that attention was given to the effects and potential effects upon species the debate becomes one about whether the judgments made were correct or not. That is a different issue which does not involve a debate about legal error. I might, however, permit myself the observation that it is difficult to dismiss discussion of even individual populations of a critically endangered species upon the basis that it is remote from a discussion of the effect upon the species as a whole. PRL contended that the Statement of Reasons demonstrated that the Minister had failed to apply the correct test (significant impact) but had used other, incorrect, tests. The notion of 'significant impact' was imported by PRL from the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A, and 26/27A) but in those provisions the concept of 'significant impact' had different work to do. 54 Under the statutory scheme, an action that 'has or will have a significant impact' in a relevant respect was one which might not be taken without approval. That was the matter to which all of the controlling provisions (ss 16/17B, 18/18A, 20/20A, 23/24A and 26/27A) were directed. When a decision was to be made whether a controlling provision was engaged by the action or proposed action it was only the adverse impacts, and not the beneficial impacts, which might be taken into account (s 75(2)). When the Minister came to consider whether or not to approve an action (ss 130 and 133) or to approve an action subject to conditions (s 134) the Minister was not directed to, or confined by, a consideration of 'significant impacts'. The existence of such impacts was assumed. His consideration of whether or not to grant approval could, and should, take into account beneficial, as well as adverse, impacts and he was also expressly required to take into account economic and social matters (s 136(1)(b)). In my view, this line of argument was misconceived. It did not point to any failure to apply the correct statutory tests. 56 In one way or another all the matters relied upon for the proposition that the Minister had no evidence for the findings set out in the Statement of Reasons were derived from the proposition that he either ignored or gave insufficient weight to the environmental impact statement. One variant of the argument (dealt with below) was that, although he was not legally obliged to personally read the environmental impact statement, any summary of it which was provided to him was misleading and inaccurate. 57 As earlier mentioned, the Statement of Reasons made frequent reference to the environmental impact statement. For so long as the Statement of Reasons was accepted as an explanation of the Minister's reasons for decision it was impossible to successfully contend, as PRL attempted to do, that the environmental impact statement had been ignored altogether. On the other hand, if the environmental impact statement had been taken into account, PRL's argument amounted simply to a contention that the representations in the environmental impact statement about a wide range of matters deserved more weight than they had been given or, in some cases, deserved acceptance rather than rejection. The argument was bolstered by a submission that the environmental impact statement should be regarded as the primary source of facts. That contention had no support in the statutory scheme. The environmental impact statement was an important, but only one, source of information. It had no presumptive weight, whether with regard to factual statements or value judgments. 58 The arguments advanced suggesting there was no evidence to support a range of findings really sought to invoke an impermissible review of the merit of those findings. For so long as the Statement of Reasons was accepted as stating the Minister's reasons then, unless it could be shown independently that he did not, as he asserted, take into account the environmental impact statement, PRL's argument really amounted to a contention that he should have given it greater weight. That is not an argument about legal error. The precautionary principle was also incorporated in the principles of ecologically sustainable development (see s 3A(b)). PRL's submission was to the effect that although the Minister referred to the principle he made no finding that, in any area under consideration, there was a 'lack of full scientific certainty'. This submission did not accord with the operation of s 391. The Minister was directed not to delay action to protect the environment if there was a lack of full scientific certainty. He did not do so. In my view, there was no substance in the argument. It said it should have been provided with a copy of the Secretary's assessment report made under s 105. Section 105(2) obliged the Secretary to provide a copy of the report to PRL if asked for it. It was conceded that no such request was made. The submission was untenable. It was also argued that PRL was misled by statements attributed to a former Minister, Senator Campbell, that reassured PRL that there would be an opportunity for further submissions if there was any concern about the environmental impact statement. Neither the evidence specifically relied upon (a letter from PRL attributing remarks to Senator Campbell), nor the evidence generally, supported the factual foundation for this assertion. It also had no substance. 63 The argument was supplementary to the argument suggesting the Minister acted without evidence. This variant suggested that the assessment report was the summary relied upon and it was an inaccurate summary. The argument mistook, and misstated, the effect of the assessment report, which did not, in any event, purport to be a summary of the environmental impact statement. Under the Act, the assessment report was required to be taken into account in its own right (s 136(2)). So far as it suggested conclusions which departed from the representations in the environmental impact statement that was because the Department did not share the views advanced by PRL, not because it was a misleading summary. 64 Some of the argument about the assessment report descended into a debate about whether it was correct to attribute responsibility to PRL for remediation of past mining activities. It was alleged that attribution of responsibility in that respect demonstrated incorrect findings of fact and that therefore irrelevant matters were taken into account. The matters referred to did not involve findings of fact at all. They involved opinions and judgments about who should bear the financial burden for past damage and final decommissioning of plant. Such matters were not within the scope of the present proceedings which are concerned only with the identification of legal error and not a debate about the merits of the Minister's decision, much less about who does, or should, carry present responsibility for the environmental damage done in the past. For so long as PRL accepted that the Statement of Reasons was a reliable statement of the actual reasons for the Minister's decision, the contention faced almost insuperable difficulties as the Statement of Reasons referred in a number of places to the environmental impact statement and the case presented by it. During an adjournment, before submissions for the respondent were complete, PRL changed its position. As a result of the concession made by counsel for the respondent, during her oral submissions, that aspects of the decision could not be supported (namely, that the decision had effect for ss 16/17B and 23/24A) and the suggestion that they had been included in error, PRL during the adjournment filed a notice of motion seeking discovery and other orders. 66 PRL then led evidence, in support of the notice of motion, without relevant objection, that after the respondent's concession it had reviewed its position. PRL's submissions in relation to the notice of motion made it clear that it no longer necessarily accepted, as it had earlier, 'that the reasons for the Decision are set out in the Statement of Reasons'. The concession by the respondent has some significance in its own right as I will later indicate. Its significance for the change in PRL's position was, however, that it suggested to PRL's legal advisers, apparently for the first time, that there were reasons to doubt whether the written Statement of Reasons could be adequately reconciled with the advice and explanations which were, on the evidence, before the Minister at the time he made his decision. 67 PRL's change of position was a significant one. As the case did not proceed on the basis of pleadings there was no formal barrier to PRL's change of position. I decided the parties should have a further opportunity to deal with that issue. 68 In further written submissions PRL confirmed that it no longer accepted the Statement of Reasons. Earlier submissions, to the extent that they rely on the Statement of Reasons, are now put in the alternative. In that affidavit, Mr Early described the processes followed within the Department to submit matters for consideration and decision by the Minister and identified a number of 'errors' in material supplied to the Minister before he made his decision on 27 April 2007. Before I give his evidence about those matters further attention, I propose to deal with the material by reference to its own terms. Then I will return to Mr Early's explanations when a fuller context is available. That interim step was required because before he made a decision it was necessary, under s 131 of the Act, that the Minister inform other Ministers, whose portfolio responsibilities might be affected, of his proposed decision and invite their comments. Under s 136 such comments had to be taken into account also when making the decision. 72 The Minister who made the decision under challenge, Mr Turnbull, assumed his responsibilities on 23 January 2007. The first evidence of any provision to him of material relating to the proposal by PRL was the brief from Mr Early dated 2 February 2007. The brief to the Minister gave only short reasons for the Department's recommendation that he reject the proposal. It referred to PRL's environmental impact statement, the report of the Centre for Mined Land Rehabilitation, Dr Mattiske's report, PRL's responses to that report, additional information provided by PRL and the Department's own assessment report. It should be set out in full. 1. Noted / Please discuss 3. propose to refuse approval, as reflected in the proposed decision at Attachment B. 2. Agreed / Not agreed 4. sign the letters at Attachment C to the Prime Minister and Ministerial colleagues in relation to the proposed decision. 3. Signed / Not signed MINISTER 14/2/2007 Key Issues; • Phosphate Resources Limited (PRL) initially proposed to expand phosphate mining by 403.7 hectares over nine sites of vacant Crown land on Christmas Island. PRL subsequently revised the proposal to 256.3 hectares over eight sites. The proposal has been assessed under the environment Protection and Biodiversity Conservation Act 1999 (the 'EPBC' Act). It is controversial locally, nationally and has also gained international attention. More than 400 submissions were made during the public comment period, of which more than 75 per cent opposed the proposal. • The proposal includes the clearing of 197.3 hectares of (primary) evergreen closed tall rainforest. A moratorium on rainforest clearing for mining was declared on Christmas Island in 1988, and current leases issued in 1990 and 1998 (expiring in 2019) specifically prohibit the clearance, degradation or damage of any primary rainforest, restricting mining activities to previously mined areas. • Christmas Island contains a large number of endemic species (ie found only on Christmas Island), and 16 threatened and migratory species listed under the EPBC Act. The proposal to clear primary rainforest would directly impact 11 of these species. It would also inhibit the annual Christmas Island Red Crab migration, important for the maintenance of the Christmas Island rainforest ecosystem. • There are long-term environmental impacts from mining on the integrity of the Christmas Island ecosystem. The independent review of mined land rehabilitation (Attachment D) found that of the approximately 3,000 hectares of previously mined land, 220 hectares have been rehabilitated. Due to the finite reserves of topsoil available, only 14% of the remaining 2,780 hectares may ever have scope for rehabilitation back to rainforest. • PRL proposes to replace the original closed forest with another vegetation type. This would result in the permanent loss of 6% of the remaining closed canopy rainforest. PRL's rehabilitation programme does not intend to progress to secondary or primary rainforest. • The Department is concerned that phosphate mining on the proposed leases would impact upon various matters protected under the EPBC Act. In addition to the loss of primary rainforest and the general concerns about rehabilitation, there would be impacts on native vegetation and listed flora through edge effects (ie making a longer boundary for the remaining intact areas); loss of habitat for native, endemic and listed mammals, birds, and crabs; and a likely spread of introduced flora and fauna that may prey upon, compete with, or displace native species. • Given the isolated and unique nature of the Christmas Island environment, the restricted range of many of the species and ecosystems, the extent of impacts on biodiversity through previous mining, and the evidence that various important species and ecosystems are already under significant stress from a variety of threatening processes, the Department considers it would be in the interests of the long-term protection of the Island's biological diversity and ecological integrity that the proposal does not proceed. • Independent analysis (Attachment E) has suggested that the clearing of primary rainforest for further mining is likely to contribute to the extinction of a number of listed threatened and migratory species in the long term. PRL was given a copy of the report and responded to the issues raised (Attachment F). In essence, PRL disputes that the report provides any new information that had not been adequately addressed in the draft environmental impact statement (Attachment G) or in additional information provided by PRL (Attachment H). In particular, PRL disputes there is any evidence to suggest that well managed semi-deciduous mesophyll vine forest (as proposed in its rehabilitation plans) would necessarily be less diverse than closed evergreen rainforest. The Department notes that even the success of the more limited rehabilitation proposed by PRL is not guaranteed. • The Department believes that, based on the information provided by PRL, a decision to approve the proposal would be inconsistent with Australia's obligations under international treaties, and recovery plans for listed threatened and migratory species (Attachment A). Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment J). Handling: • You are required to make a decision on whether or not to approve the proposal by 20 February 2007. The assessment report prepared by the Department (Attachment I) recommends that you reject the proposal. • Under PRL's currently approved leases, the Department understands there are phosphate reserves for a further five years mining. The Department of Transport and Regional Services (DOTARS) has actively lobbied this Department for EPBC approval of the proposal on economic and social grounds. DOTARS and PRL believe that 10 years is needed to transition workers into new economically viable employment, or to reach retirement age. DOTARS has been aware since August 2001, however, that this Department has had grave reservations about the acceptability of the proposal. • While the continued operation of the mining company is seen by some as a substantial contributor to the ongoing viability of Christmas Island, the further loss of rainforest may impact adversely on future business options for the Island, including eco-tourism. The economic benefit of the proposed additional mining may also be significantly outweighed by the true cot of proper rehabilitation. • You have a legal obligation under section 131 to consult with the Minister for Transport and Regional Services and the Minister for Local Government, Territories and Roads on your decision, and given the broad Government interest in the future of the Island, you may wish to consult with the Prime Minister. Draft letters for your consideration are at Attachment C. Background: • Over sixty percent of Christmas Island is under formal protection through the Christmas Island National Park. The Park contains the last remaining nesting habitat in the world for the EPBC listed endangered Abbott's booby. It also supports the world's largest remaining Robber crab population, and probably contains the largest and most diverse land crab community anywhere. The World Wildlife Fund, the Duke of Edinburgh and Sir David Attenborough have written to the Australian Government about the impacts of phosphate mining upon the higher number of endemic and iconic species, such as land crabs on Christmas Island. The Island has been referred to as Australia's "Galapagos Island". • On 14 November 2001, the Assistant Secretary, Environmental Assessment Branch, as your delegate, decided that the above action is a controlled action. Based on this information and the other material presented in this brief, we have prepared a draft refusal decision at Attachment B . - Noted; 2. --- Agreed; and 3. --- Signed. The Minister's signature appeared thereunder, with a date '14/2/2007'. The 'draft refusal decision' was not relevantly distinguishable from the decision signed on 27 April 2007. It contained the same (admittedly unsustainable) references to ss 16/17B and 23/24A of the Act. Both documents were entitled (incorrectly) 'Decision to Approve the Taking of an Action'. Adoption by the Minister of these errors on 14 February 2007, and later on 27 April 2007, is a strong indicator, apart from his formal endorsement of the recommendations, that he acted on, and relied upon, the advice to him and the reflection of that advice in the formal instrument executed by him. It should be noted, for later reference, that the brief signed by Mr Early contained a clear statement that all five sets of controlling provisions were engaged in relation to the matters before the Minister for his decision. 74 Three further particular matters should also be noted about the nature of the decisions which the Minister was asked to make on 2 February 2007. First, he was obliged to consult with some Ministerial colleagues before making a final decision. It was for that reason it was recommended (and he agreed) that he 'propose to refuse approval'. Secondly, he was advised that it was the Department's view that approval of the proposal would be 'inconsistent with' (presumably therefore prohibited by) the Act although, as noted earlier, there was no such conclusion stated in the assessment report and there was no detailed case to that effect argued in the brief. Thirdly, the Minister's attention was drawn directly to his 'legal obligations' in connection with the decision to be made. That was done in recommendation 1 which the Minister noted. It also appeared in the brief in the final passage emphasised. The detailed obligations were set out in Attachment A. 75 Attachment A was not a very satisfactory document. It betrayed a lack of care. In addition, attachments to which it referred were not given the same designation (e.g. G, H, etc) as the brief itself. Phosphate Resources Limited (PRL) states that it contributes approximately $7.5 million to the Australian economy through taxes, royalties and levies. The company employs 127 permanent and 76 casual staff, comprising approximately 19% of the Island's workforce. It constitutes 16% of the islands annual economy. A guarantee of $1 million has been provided to the Commonwealth for demolition by the company for the existing lease. However, total cost of rehabilitation of land, and the ongoing long-term costs of managing weeds on mined land, is unknown. That Department claims it needs 10 years to transition workers into new economically viable employment or to reach retirement age, although DOTARS has been cognisant since August 2001 that the Department has "grave reservations" about the acceptability of the proposal. Due to the finite reserves of topsoil available, only 400ha of the remaining 2780ha will be able to be rehabilitated back to rainforest. The proposal for further mining recognises that it will result in the permanent loss of more primary rainforest. Attachment A indicated, contrary to the Act, that there was no applicable factor to be considered arising from an environmental impact statement. This effectively dismissed as irrelevant a mandatory statutory factor to be taken into account. 77 The second, less important, error is disclosed by the final passage emphasised. It was contradicted by the brief itself which proposed that the Minister sign individual letters to his Ministerial colleagues (as he did) rather than consult them 'through the Cabinet process'. 78 Attachment A also referred to, but did not discuss the effect of, ss 138 --- 140 of the Act and the separate statutory prohibitions there contained on proposals which were inconsistent with obligations under international treaties or recovery plans for listed threatened and migratory species. I shall discuss this issue separately. It is enough to record, at the moment, that no effective case was made to support the opinion stated in Mr Early's brief that approval of the proposal was, for that reason, prohibited. 79 The summary of the Minister's legal obligations was erroneous. It was contrary to the Act. I do not doubt that those errors were the product of carelessness at some level. They may not reveal any misunderstanding by Mr Early, for example, of the need for the Minister to have taken into account the environmental impact statement. However, as at 14 February 2007, what may fairly be concluded is that, although the environmental impact statement was one of a number of attachments to the Ministerial brief, the Minister was told by Attachment A that an assessment under Division 6 of Part 1 of the Act (i.e. by environmental impact statement) was not applicable to the decision he should in due course make, a draft of which was attached for his approval in principle. There was no evidence of any oral advice to the Minister, then or later (before the decision was taken), inconsistent with the written brief. They were refused ( Phosphate Resources Limited v Minister for the Environment, Heritage and the Arts [2008] FCA 385) but the refusal was based in part, on an erroneous view of the content and effect of the first brief. Exhibit 7 in the proceedings contains a brief provided to the Minister on 2 February 2007. That brief recommended to the Minister, amongst other things, that he consider his legal obligations for decision making as set out in an attachment, marked A, that he propose to refuse approval for the operations sought by the applicant and that he advise certain Ministerial colleagues of that proposal and seek their response. Attachment A drew the Minister's attention to mandatory considerations, with respect to the decision which he would be required to take, and factors which he should take into account in that respect. His attention was drawn expressly in more than one place to an attachment G which contained the environmental impact statement in question. ' (Emphasis added. I did so because Attachment A advised the Minister that 'Attachment G' was relevant to mandatory considerations for his attention. However, the Attachment G referred to in Attachment A was not the environmental impact statement (in fact Attachment F to Attachment A) but the assessment report prepared under s 105 (which was identified as Attachment I to the brief). As earlier discussed, Attachment A to the brief did not draw the Minister's attention to the environmental impact statement but, on the contrary told him that such a statement was 'N/A' (not applicable). (b) Neither an affidavit filed in support of the notice of motion or any submission of PRL, written or oral, drew attention to the discrepancies. (c) Neither an affidavit filed in opposition to the notice of motion or any submission of the respondent, written or oral, drew attention to the discrepancies. PRL's change of position, that it did not accept the written Statement of Reasons as reliable, also took on added significance in the light of the advice to the Minister in the first brief that an environmental impact statement was not a relevant factor to take into account. Although PRL had not earlier drawn attention to it, the content of that advice is not easily reconciled with the assertions made in the written Statement of Reasons. The parties were asked to consider whether further evidence or submissions were necessary. Again this brief should be set out in full. Purpose: You are required to make a decision to refuse or approve, for the purposes of a controlling provision, the taking of an action under Part 9 of the Environment Protection and Biodiversity conservation Act 1999 (the EPBC Act). Background: • On 14 February 2007 you agreed to a brief recommending the draft decision to refuse the above proposal. That brief outlined your legal obligations in making your decision under the EPBC Act (Attachment A), and had a copy of the Department's assessment report. Given the magnitude of impacts on the matters of national environmental significance outlined in that brief, and the legislative requirement that you must not act inconsistently with the relevant environmental international conventions, the Department recommended that you refuse the proposal. • In making the above draft decision, you also wrote to the Minister for Transport and Regional Services, and the Minister for Local Government, Territories and Roads, as required under section 131 of the EPBC Act. You also wrote to the Prime Minister advising him of your proposed decision. The Minister for Local Government, Territories and Roads, the Hon Jim Lloyd MP, and the Minister for Transport and Regional Services, the Hon Mark Vaile MP, responded to your letter (Attachment B). The Prime Minister and has not replied. In signing the draft approval brief at Attachment A, you considered the impacts of mining on Christmas Island ecosystems, as outlined under the key issues heading. • The Minister for Local Government, Territories and Road, the Hon Jim Lloyd MP, notes the need to shift the economic reliance of Christmas Island from mining however he is concerned about the reaction of the mining company and the community to your decision. • Minister Lloyd is seeking your support with the development of the Government's strategy to transition the Island's economic future. Depending on the intentions of the mining company he may seek your early support to obtain the agreement of senior Ministers to make an announcement indicating the Government commitment to the future of the Island. He has also indicated he will seek your support for a joint Cabinet submission to follow the release of the Commonwealth Grants Commission report on funding required for the Indian Ocean Territories in October 2007. A letter (Attachment E) has been drafted replying to Minister Lloyd agreeing to support his proposed approach. • Parks Australia, will take the lead on the interests of your Department in the development of a strategy for Ministers' consideration in October 2007. Parks Australia North is actively engaged on the Island and has responsibility for managing existing rehabilitation arrangements under a memorandum of understanding with the Department of Transport and Regional Services. • A campaign is currently underway supporting the refusal of the release of new areas of land for phosphate mining on Christmas Island. A refusal decision is therefore likely to be supported by environmentalists. However, miners on the Island would be expected to respond adversely. • A refusal decision does not set a precedent for other EPBC proposals. On three other proposals have been refused under the EPBC Act to date, not counting the Bald Hills wind farm that was subsequently approved. Each proposal is considered on its merits, and ecologically sustainable developments would still be expected to be approved. • In discussion with the Department of Prime Minister and Cabinet we have been advised that the Prime Minister may wish to write to HRH the Duke of Edinburgh informing him that the Australian Government is not allowing further mining on the Island. His Royal Highness has taken an active interest in the environmental protection of Christmas Island. • An instrument for the refusal of the action is provided at Attachment C. No information has been provided to support the reconsideration of your draft refusal decision since you considered the proposal on 14 February 2007. • Given the public interest in your decision, a media release and briefing notes are provided at Attachment F. Recommendations 1. Note the brief and assessment report at Attachment A 1. Noted / Please discuss 2. Note the letter from the Minister of Local Government, Territories and Roads and the Minister for Transport and Regional Services at Attachment B 2. Noted / Please discuss 3. Refuse the proposed action by signing The decision instrument at Attachment C 3. Signed / Not signed 4. Sign the letter at Attachment D informing PRL of your decision 4. Signed / Not signed 5. Sign the letter at Attachment E to the Hon Jim Lloyd, Minister for Local Government 5. Signed / Not signed Territories and Roads, copying the Prime Minister, supporting his approach to Developing a transition strategy for Christmas Island. 6. Issue the media release at Attachment F 6. 87 Attachment A to the second brief was not the same as Attachment A to the first brief. Rather, it consisted of copies of the first brief and the assessment report, each of which recommended refusal of approval. Reference was again made in the second brief to the requirement to comply with international obligations. No reference was made to the environmental impact statement. The decision to be made was Attachment C. It was signed, therefore, in circumstances where the Minister was reminded only about the earlier advice to him from the Department, which was attached again --- i.e. the first brief and also the assessment report. 88 A further issue arises potentially from the content of the second brief if it is accepted as a faithful part of the record of the decision-making process. The second brief recorded that the Minister's earlier consideration of the impacts of the proposal proceeded 'as outlined under the key issue heading' . That statement casts doubt on whether the Minister, before 14 February 2007, ever considered for himself the assessment report, rather than the summary in the brief. The only evidence that he did so are statements which appear in the later written Statement of Reasons. However, PRL made no argument to this effect and the possibility may be put aside. matters relevant to protected matters and social and economic matters): the principles of ecologically sustainable development; the assessment report prepared by the Department; and the environmental impact statement finalised by PRL. There was no contention by PRL that the Minister did not take into account the principles of ecologically sustainable development or the assessment report. The Minister was expressly advised by Attachment A to the first brief that he was required to take these into account. He was also told by Attachment A that Dr Mattiske's report was relevant to matters under s 136(1) and was to be taken into account under s 136(2) in considering the principles of ecologically sustainable development. The report by the Centre for Mined Land Rehabilitation was also identified as a matter to be taken into account in relation to the principles of ecologically sustainable development. There can be no doubt, therefore, that the Minister was advised, and noted, the requirement to take into account the principles of ecologically sustainable development, the assessment report, Dr Mattiske's report and the report by the Centre for Mined Land Rehabilitation. PRL's case was that the Minister did not take into account the environmental impact statement. As I have said a number of times, for so long as PRL accepted that the written Statement of Reasons, signed by the Minister and provided on 14 June 2007, was a reliable statement of the Minister's reasons for the decision he made on 27 April 2007 its case to that effect faced very great obstacles. Once PRL withdrew its acceptance that the written Statement of Reasons was a true statement of reasons the argument came into focus. 90 The factors that suggest that the Minister took into account the environmental impact statement finalised by PRL are: it made the principal case for approval; it was an attachment to the first brief; it was referred to in Attachment A; it was discussed in the assessment report. It was also later mentioned a number of times in the written Statement of Reasons for decision, which requires separate consideration. The factors that suggest (as at 27 April 2007, when the decision was made) that it might not have been taken into account are: neither brief nor the assessment report advanced any summary of the environmental impact statement; the Minister was not told he should read it or otherwise take it into account; although Attachment A to the first brief referred to it as one source of information about social and economic matters it did not say (as the Act did) that it was required to be taken into account in its own right; the first brief, through Attachment A, told the Minister (expressly in connection with the legal requirements applying to his decision) that an environmental impact statement was not a factor to be taken into account; the Minister was told by Attachment A that he should not take into account matters he was not required to consider. It would not be unreasonable for him to rely on a summary of the relevant facts furnished by the officers of his Department. No complaint could be made if the departmental officers, in their summary, omitted to mention a fact which was insignificant or insubstantial. But if the Minister relies entirely on a departmental summary which fails to bring to his attention a material fact which he is bound to consider, and which cannot be dismissed as insignificant or insubstantial, the consequence will be that he will have failed to take that material fact into account and will not have formed his satisfaction in accordance with law. Part of a Department's function is to undertake an analysis, evaluation and précis of material to which the Minister is bound to have regard or to which the Minister may wish to have regard in making decisions. The press of ministerial business necessitates efficient performance of that departmental function. The consequence of supplying a departmental analysis, evaluation and précis is, of course, that the Minister's appreciation of a case depends to a great extent upon the appreciation made by his Department. Reliance on the departmental appreciation is not tantamount to an impermissible delegation of ministerial function. A Minister may retain his power to make a decision while relying on his Department to draw his attention to the salient facts. But if his Department fails to do so, and the validity of the Minister's decision depends upon his having had regard to the salient facts, his ignorance of the facts does not protect the decision. The Parliament can be taken to intend that the Minister will retain control of the process of decision-making while being assisted to make the decision by departmental analysis, evaluation and précis of the material relevant to that decision. Ministers come and go; departments, though their names may change from time to time, remain. Discretion in making administrative decisions is conferred upon a minister not as an individual but as the holder of an office in which he will have available to him in arriving at his decision the collective knowledge, experience and expertise of all those who serve the Crown in the department of which, for the time being he is the political head. The collective knowledge, technical as well as factual, of the civil servants in the department and their collective expertise is to be treated as the minister's own knowledge, his own expertise. He was also, as I see the matter, entitled to accept, as the basis for his decision, particular conclusions and recommendations of the Committee established to inquire into, and report upon applications for increases in fees. He is entitled to rely upon the advice and analysis of officers of his department. That is so whether expressly permitted by statute or not. In the present case the Minister was also expressly directed to take into account, amongst other things, the assessment report prepared by the Department. However, when a Minister relies upon advice, as he is entitled to do, and the advice is materially inadequate or misleading, any such failing may introduce legal error into the Minister's decision. Whether it does so will depend upon the significance of the error or omission in the advice tendered. The facts to be brought to mind are the salient facts which give shape and substance to the matter: the facts of such importance that, if they are not considered, it could not be said that the matter has been properly considered. A number of other decisions were made by officers of the Department, although under the Act they were nominally entrusted to the Minister. For example, on 14 November 2001 Mr Early decided, pursuant to s 75 of the Act, that the proposal by PRL was a controlled action. In reasons for that decision, which were published by him on 8 January 2002, he described himself as 'a delegate for the purposes of section 75' of the Act. Similarly, on 21 December 2001, Ms Parsons, who described herself as a delegate of the Minister, decided under s 87 of the Act that the proposed action should be assessed by environmental impact statement. 98 Section 515 of the Act expressly permitted delegation of their respective functions by the Minister, the Secretary and the Director of National Parks. The power of delegation was unconfined. That is an important circumstance to bear in mind when considering the effect of some of the authorities. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Minister. The delegate is, in the exercise or performance of a delegated power or function, subject to the directions of the Secretary. The delegate is, in the exercise of a delegated power or function, subject to the directions of the Director. 100 A number of cases have emphasised the quality of attention required when a Minister is required to decide a matter personally. A requirement of that kind may arise because a statute expressly excludes any power of delegation or it may arise from the nature and importance of the decision or, perhaps, the context in which it is to be made. 101 For example, in Tickner v Chapman (1995) 57 FCR 451 ( 'Tickner' ) the Court viewed as important the fact that the powers and functions of the relevant Minister under s 10 of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth) were specifically excluded from the power of delegation conferred by s 31(1) of that Act (see per Black CJ at 462, per Burchett J at 476 and per Kiefel J at 493; see also Minister for Aboriginal and Torres Strait Island Affairs v State of Western Australian (1996) 67 FCR 40 at 60). That statutory context did not apply in the present case but, as Mason J pointed out in Peko-Wallsend (at 38-39), the importance of a matter to be decided may, in its statutory setting, suggest that a particular decision is to be made by a Minister personally. One circumstance which might require a personal decision by a Minister is when the decision to be made involves review of a decision of the permanent head of a department (see e.g. Sean Investments at 369). In the present case the Minister was required to take into account an assessment report by the Secretary but, as already noted, the Secretary's function was able to be delegated and clearly was. The assessment report was prepared by the Environment Assessment Branch of the Wildlife Division of the Department. 102 There is therefore no basis to conclude, in the present case, that the decision was, by its character either, one to be made personally, or was non-delegable, and that therefore the general principles stated in Peko-Wallsend either did not apply or required supplementation by some stricter test. The intellectual process preceding the decision of which s.10(1)(c) speaks is not different. It requires that the Minister have regard to what is said in the representations, to bring his mind to bear upon the facts stated in them and the arguments or opinions put forward and to appreciate who is making them. From that point the Minister might sift them, attributing whatever weight or persuasive quality is thought appropriate. However, the Minister is required to know what they say. A mere summary of them cannot suffice for this purpose, for the Minister would not then be considering the representations, but someone else's view of them, and the legislation has required him to form his own view upon them. Furthermore, the Act required that it be informed in certain specified ways and that particular matters and documents be taken into account. Any advice to the Minister about the matters he was required to take into account had to be accurate. Any summary of those matters had to be relevantly accurate and complete. Before turning to the significance of that document I propose to state my conclusions about the evidence concerning the decision making process up to the point at which the Minister's decision was actually made. Then it will be necessary to turn attention to the written Statement of Reasons and decide what weight and significance should be accorded to it when it indicates (as it does in various ways) that the Minister took into account the environmental impact statement. I shall also need to deal with some matters arising from the further evidence that PRL's change of position prompted. 105 The strongest indicators, up to 27 April 2007, that the environmental impact statement might have been 'taken into account' by the Minister when he made his decision are, as earlier indicated, that it was an attachment to the first brief, it was referred to in Attachment A to the first brief as a source of information on social and economic matters and it was discussed in the assessment report. 106 Although it was attached to the first brief the Minister was told it was not applicable. It was not suggested that he read it or give it any attention. In my view it is not possible to conclude from its attachment that it was taken into account. The reference to it in Attachment A as a source of information takes the matter no further. It was Attachment A that declared that an environmental impact statement was not relevant as a factor to be taken into account. 107 Was the discussion in the assessment report sufficient for it to be said that the Minister took into account the environmental impact statement in its own right? Could a rejection, by the assessment report, of the position taken in the environmental impact statement suffice to conclude that the Minister had paid independent regard to it? 108 An affirmative answer to those questions would be contrary to the approach taken by the High Court in Hot Holdings Pty Ltd v Creasy [1996] HCA 44 ; (1996) 185 CLR 149. In that case the High Court considered the significance of a statutory requirement which obliged a mining warden to provide a recommendation about whether an exploration licence or a mining lease should be granted under the Mining Act 1978 (WA), to allow consideration of it by the responsible Minister. The High Court held that the statutory context required that the Minister have regard to the recommendation and take it into account in its own right. It is apparent that the Minister is bound to consider the information which the warden transmits under s 58(3) and s 75(3). The Minister may not exercise the discretion to grant or refuse applications until the warden's recommendation and report, expressing as it must the warden's decision on priority, is received and taken into account. The result of this statutory process is that, regardless of the content of the "right in priority", the warden's decision has a discernible legal effect upon the Minister's exercise of discretion. That conclusion is not affected by those provisions which make clear that the Minister is in no way bound by the recommendation of the warden (ss 59(4) , 75 (4)). These provisions are but a statutory indication that the weight of those considerations need not be decisive. They do not go to show that the consideration is other than one which the Minister is bound to consider. In my view, the assessment report could not be regarded in this case as fulfilling the role of a sufficient summary of the environmental impact statement, as well as a departmental assessment of the proposal. It is apparent from the assessment report that it was a response to, and a critique of, conclusions advanced by the environmental impact statement but it did not even purport to attempt a summary of it and nor did either of the briefs to the Minister. 110 Nothing in the second brief altered the earlier advice that the environmental impact statement was not applicable. No reference at all was made to it in the second brief. A conclusion that the environmental impact statement was taken into account on 27 April 2007 would require preceding conclusions, for which there is no evidentiary support in the period before the decision was made, that contrary to the advice to the Minister conveyed with the brief of 2 February 2007, he took into account, in the requisite legal sense, something he was told was legally not applicable, in a context where he was informed he should not take into account matters not required or permitted by the Act to be taken into account. I am not prepared to make any such finding based only on the evidence about the position so far discussed. The significant issue which is therefore exposed by PRL's change of position is whether a contrary conclusion is required by reason of the content of the written Statement of Reasons. Necessarily, that requires a judgment about the weight to be given to that document. He attached a copy of his decision and the assessment report provided by the Department. On 9 May 2007 PRL requested a formal Statement of Reasons for decision. A Statement of Reasons was provided on 14 June 2007. 112 The only direct suggestion that the Minister did take the environmental impact statement into account is to be found in that written Statement of Reasons furnished as required by s 13 of the ADJR Act. The suggestion implies, necessarily, that the Minister did not act in accordance with the advice he was given in the first brief. It is not necessary to trace the various exchanges, in and out of court, on that issue. In due course the respondent filed a bundle of documents informally discovered to PRL consisting of a brief to the Minister dated 13 June 2007 (with attachments) which led to his acceptance, on 14 June 2007, of the recommendations it contained and his execution of the written Statement of Reasons sent to PRL on that date. 114 The brief was also attached to the later affidavit of Mr Early sworn on 6 August 2008. As will become clear, Mr Early's evidence did not provide a basis upon which to reach conclusions about the Statement of Reasons which were inconsistent with conclusions which followed from consideration of the terms of the Statement of Reasons and the content of the brief dated 13 June 2007. For that reason I may defer discussion of Mr Early's affidavit for the moment. 115 The brief dated 13 June 2007 was provided to the Minister by the Assistant Secretary of the Environment Assessment Branch, Ms Middleton. It was relatively short and was, in part, directed to an issue that has no significance for the present proceedings --- a statutory requirement to provide written reasons, when requested, within 28 days. However, one practical significance of the pressure of time thereby identified was that the Minister gave himself very little time for consideration of the complex issues which this brief put before him in the form of the written Statement of Reasons he was being asked to consider and sign. 116 I shall set out the brief in full. 06-Jun-2007 Statutory Deadline. Purpose: To provide you with a draft statement of reasons for the above decision. Background: • On 27 April 2007, you decided to refuse to approve the expansion of phosphate mining on Christmas Island (see covering brief at Attachment A). The decision has received national and international attention. • On 9 May 2007, Phosphate Resources Limited (PRL) requested a statement of reasons under the Administrative Decisions (Judicial Review) Act 1977 (Attachment B). • The enclosed statement of reasons (Attachment C) has been reviewed by the Australian Government Solicitor (AGS) and suggested changes incorporated. Issues/Sensitivities: • The 28 day statutory deadline commenced on 9 May 2007, when it was faxed to your Office, however, the Department did not receive the request until 15 May 2007. We have worked to produce the document as quickly as possible, while ensuring that it is a true and accurate statement of reasons for your decision. • On 17 May 2007, PRL requested that the statement of reason [sic] be issued by 23 May 2007 or they may commence proceedings in the Federal Court of Australia under section 13 of the ADJ(JR) Act, (Attachment E). We advised PRL that the statutory deadline was actually 6 June 2007. • Should PRL wish to challenge the decision, the late issue of the statement of reasons would not increase the success of any legal challenge. Recommendation/s: 1. consider the attached draft statements of 1. Noted/Please discuss reasons at Attachment C and make any modifications you consider necessary to ensure the statement reflects your reasoning 2. sign the statement of reasons at Attachment C 2. Signed/Not signed 3. sign the letter to the proponent to advise of 3. Signed/Not signed Your reasons at Attachment D ... If the document the Minister was asked to consider and sign was a reliable indication of his own reasons it would not suffer from reference to legal advisers or being produced over a period of almost a full month on those accounts alone. However, as the more detailed discussion which follows will illustrate, the document produced to the Minister, for his eventual consideration between 13 and 14 June 2007 only, was complex and, in parts, highly technical. The suggestion that he should modify it to render it an accurate reflection of his own reasons cannot easily be reconciled with the position disclosed by the evidence of the earlier advice to him when he was asked to act on the recommendations made in the two briefs I have discussed. Mr Early's later evidence was that a statement to this effect was part of a 'template' to be used as standard practice. Apart from the observance of this formality by Ms Middleton, there is no other basis to conclude that the Minister, in fact, gave the document independent consideration. No changes were made. The draft reasons were adopted in all their complex entirety. 118 While it may have been open to the Minister to adopt the reasons put before him on 13 June 2007 as a statement of reasons which he, acting on advice, might rely upon if he was making the decision on that day, the suggestion that they could be adopted after the event must be tested by some reference to the purpose for which written reasons are required to be provided, when sought, by s 13 of the ADJR Act. It will be necessary to examine this question more closely after the written Statement of Reasons is described in more detail. In part that view is based upon the history I have already recounted. In part it is based on the terms of the document itself. 120 The first 27 (of 134) paragraphs contained an uncontroversial statement of the relevant legislative provisions and the history of procedural events concluding with the decision of 27 April 2007. Paragraph 28 listed the evidence and other material upon which the Minister's findings were said to be based. There was no separate mention of the advice given to the Minister in Attachment A to the first brief about the requirements for decision-making. Presumably it was regarded simply as part of the first brief. 121 Paragraphs 29 --- 71 (which dealt with 'Previous mining', 'Current rehabilitation of previously mined areas', 'Proposed action', 'Clearing of rainforest required for proposed action', 'Christmas Island Flora' and 'General impacts on flora from clearing and processing of phosphate') each commenced with the statement: 'I found that' followed by a statement or conclusion of some kind. The technique employed suggested that the Minister had personally made detailed individual findings, sometimes about matters at a high level of scientific or technical detail. I find the technique unconvincing so far as it suggests detailed personal resolution by the Minister of the whole range of debated issues. Neither is there any evidence that a set of conclusions to the effect stated in those paragraphs was ever articulated before 27 April 2007, much less placed before the Minister before he made his decision. 122 The suggestion to the Minister, that he make modifications to the document 'to ensure the statement reflects your reasoning' may now be examined a little more closely. According to the brief to the Minister on 13 June 2007, which presented the Statement of Reasons to him for his consideration, the Minister was not provided with any of the material upon which the detailed findings were said to be based except the briefing document which was part of the second brief which I earlier set out. No doubt those other documents (including the environmental impact statement) had been studied in great detail by whoever prepared the Statement of Reasons but the suggestion to the Minister that he should make modifications seems, with respect, a hollow one. 123 Paragraphs 72 to 75 stated more general conclusions or findings (based on the earlier particular findings) in relation to impacts on flora. In the light of my findings in paragraphs 31, 34, 36, 41 and 42, I concluded that it is likely that existing mined sites will not be rehabilitated to the original rainforest. I also found that the rehabilitation of existing mine sites is likely to be less effective as a consequential impact of the proposed action. In the light of my findings in paragraphs 43 and 45, I concluded that the proposed lease sites will not be rehabilitated to the original rainforest. I also found that the proposed action will result in a long-term change in the vegetation type present on mined areas, and consequently, the habitat values of the rehabilitated mine fields. I therefore found that the action would result in a significant permanent loss of rainforest. In the light of my findings in paragraphs 43 to 46, 48 to 52, 55, 56, 58 to 60, I found that the clearing will result in the loss, and potential loss, of endemic flora of conservation significance, including the listed threatened flora, Tectaria devexa and Asplenium listeri . However, there was insufficient information to quantify the magnitude of the impacts on all of the species mentioned. In the light of my findings in paragraphs 41, 42, 62 to 66, 69 and 71, I found that the consequential impacts of the action will result in a larger impact footprint than the immediate area cleared for mining. In the light of my findings in paragraphs 82, 87, 90, 91 and 95, I found that the clearance of primary rainforest, secondary forest, and canopy and emergent trees will result in loss of nesting and foraging habitat for a number of listed threatened endemic birds. I also found that the loss of habitat will likely be long-term or permanent, given the conclusions reached in paragraph 72. In the light of my findings in paragraphs 99 and 100, I found that the removal of habitat for the critically endangered Christmas Island Pipistrelle, and the Christmas Island flying Fox will contribute to the decline of both species. In the light of my findings in paragraphs 101 and 102, I also found that the removal or fragmentation of Christmas Island Blind Snake and Lister's Gecko habitat will contribute to their decline. I found the proposal to mine the large area of crab habitat noted in paragraph 106 will add to the stress on crab species, and given their important role in recycling nutrients in the Christmas Island ecosystem, as noted in paragraph 103, this will result in further degradation of the rainforest. I found that phosphate mining has contributed to the decline of species through habitat loss. I found that without effective biodiversity conservation strategies, such as the preservation of primary rainforests, there is a high likelihood of species becoming extinct within the next twenty years. 126 The 'findings' I have identified cannot be explained as intended to suggest acceptance or adoption of material placed before the Minister in either of the briefs or the assessment report. None of those documents advanced this catalogued resolution of issues referred to and debated across the range of reports which were finally in the Department's possession more than five years after PRL put its proposal and request for additional mining leases. The detailed list of findings advanced in the Statement of Reasons is obviously the result of careful assessment by a person (or persons) with a detailed knowledge of the factual and scientific issues involved. The process of articulating the 'findings' took some time as the brief of 13 June 2007 disclosed, even when done 'as quickly as possible'. It is clear that the Minister did not personally perform the task, either before his decision was made or later. Nor is it open to conclude that, on or before 27 April 2007, he accepted and adopted an analysis to the effect represented by the 'findings' which had been prepared by somebody else. There is no evidence to that effect. In making the decision on whether to approve the taking of the proposed action, I took into account (among other matters listed above) the principles of ecologically sustainable development, and the precautionary principle as discussed in paragraphs 124 to 127. I considered that the proposed action would have significant adverse consequences for the achievement of the recovery objectives in the recovery plans of a range of listed threatened species as noted in paragraph 46. In the light of my findings in paragraphs 42 to 46, 72 to 75, and 114 to 117 and 129, I concluded that the likely impacts of the action on the environment are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval. In the light of my findings in paragraphs 71, 81, 82, 86 to 95, 98, 99, 101, 102, 114, 115, 117 and 129, I concluded that the likely impacts of the action on listed threatened species are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval. In the light of my findings in paragraphs 88 to 96, 114, 117 and 129, I concluded that the likely impacts of the action on listed migratory species are unacceptable, and cannot be sufficiently prevented or mitigated by the attachment of conditions to an approval. In light of my findings in paragraphs 118 to 120 I concluded that the likely impacts of the proposed action on the environment, listed threatened species and listed migratory species are unacceptable, even after taking account of the economic and social benefits. In the light of my findings in paragraphs 124 to 127 I concluded that the action is not ecologically sustainable. I therefore decided on 27 April 2007 not to approve the taking of the proposed action for the purposes of sections 18 and 18A (Listed threatened species and ecological communities), 20 and 20A (Listed migratory species) and 26 and 27A (protection of the environment from actions involving Commonwealth land) of the EPBC Act. Contrary to one submission advanced by PRL, it was not a requirement of the Act or the general law that he do so. Neither of the briefs to him before the decision was made on 27 April 2007 suggested it was necessary or asked him to do so. Apart from the Statement of Reasons itself which, although signed, was not verified by the Minister, or otherwise, for the purpose of the proceedings there is no evidence that he did so. Nor, as I said before, is there any basis to conclude that the Minister had earlier (i.e. on or before 27 April 2007) adopted or approved any analysis of that kind. 129 It is clear that the written Statement of Reasons was prepared for the Minister, and reviewed, over a period of about four weeks. It made detailed reference to an extensive series of factual circumstances, scientific arguments and conclusions offered by various reports, including the environmental impact statement. None of the material in which those facts and arguments were stated, or any of the reports, including the environmental impact statement, was put before the Minister with the brief on 13 June 2007. Obviously, whoever prepared the Statement of Reasons made frequent and detailed reference to that material but there is no satisfactory evidence to support an inference that the Minister did so. I have enclosed the statement of reasons, signed under section 13 of the Administrative Decisions (Judicial Review) Act 1977 . You should note that if you wish to apply for a review of the approval decision under the ADJR Act, you should make an application to the relevant court within 28 days of this statement being furnished to you. 132 Indeed, they did not, as was later conceded, adequately explain some aspects of the decision which the respondent has been obliged to concede were not justified by, or able to be sustained by reference to, the Statement of Reasons ultimately prepared. A number of objections were taken to Mr Early's affidavit. Some of them suggested that his evidence of departmental practice was not relevant. Some of them complained that he had stated conclusions without adequately disclosing the facts upon which the statements were based. The factual content of the affidavit, however, seemed uncontroversial even if arguably irrelevant or generally expressed. It was clear from responses made to the objections and from written submissions filed with the affidavit that the respondent wished to be in a position to invite me to conclude that the Minister had acted in accordance with the practices to which Mr Early deposed. Although the evidence fell well short of establishing what the Minister had done (except that he had received the brief dated 13 June 2007 and signed the Statement of Reasons sent to PRL on 14 June 2007) much less why he had taken any particular step I decided I would not remove from the respondent the foundation advanced, such as it was, for the suggested inferences and I therefore overruled the objections. I saw no prejudice to PRL, as it remained open to it to submit that the suggested inferences were either not available or too slender to be drawn. Under this practice, those draft reasons for decision are then put to the decision-maker to consider whether they accurately reflect the decision-maker's reasoning and can be adopted as such by the decision-maker or whether they do not accurately or completely embody the decision-maker's reasoning and require modification. The practice requires the brief to expressly state that the decision-maker is to consider the draft statement of reasons and to make any modifications the decision-maker considers necessary to ensure the statement reflects the decision-maker's reasoning. It would be no more than an assumption, made in the respondent's favour, unsupported by any cogent evidence. As I said earlier, the Minister was not, with the brief dated 13 June 2007, provided with the material from which the detailed reasoning in the Statement of Reasons was drawn. An assumption that he did more than simply accept the Statement of Reasons as reliable would be unwarranted. Nor am I prepared to draw an inference, much less simply assume, that the fact that the Minister made no changes to the draft reasons put before him indicated that they were matters present to his mind on 27 April 2007. 136 Another issue dealt with by the affidavit concerns what were said to have been errors in the material before the Minister when he made his decision on 27 April 2007. The Attachments A, B and C to the Brief dated 2 February 2007 and which I forwarded to the former Minister on that date (see paragraph 24 of my first affidavit and Annexure "GPE-18" thereto) contained a number of errors which I did not identify at the time that I signed the brief. At paragraph (a) on the first page of Attachment A and paragraph (b) on the second page, the references to Attachment G should have been references to Attachment I (the Departmental assessment report). The designation "N/A" at paragraph (c) on page 2 of Attachment A was also incorrect, and should have stated "see Attachments G and H". In the proposed refusal decision at Attachment B to the Brief dated 2 February 2007 it is stated that the refusal has effect for all five sets of the controlling provisions which, on 14 November 2001, I had determined were the controlling provisions for the proposed action (see paragraph 4 of my first affidavit). The proposed refusal decision should not have stated that the refusal for approval had effect for sections 16 and 17B (Wetlands of international importance) and sections 23 and 24A (Commonwealth Marine Area) of the EPBC Act. The heading of attachment B also refers to "Decision to approve the taking of an action" when it should have said "Decision to refuse the taking of an action". The proposed letters to the Minister for Local Government, Territories and Roads and to the Minister for Transport and Regional Services at Attachment C to the Brief of 2 February 2007 should also not have referred to the controlling provisions sections 16, 17B, 23 and 24A of the EPBC Act. Before I signed the Brief of 2 February 2007 I had carefully read the Departmental Assessment report at Attachment I, and I was aware that the Department had only recommended refusal of the proposed action because of its assessment in relation to controlling provisions sections 18, 18A, 20, 20A, 26 and 27A of the EPBC Act. 138 I confess that, in part at least, I find some of the explanations unconvincing. For example, it is hard to dismiss the references to the assessment report (identified as Attachment G) in Attachment A to the first brief as oversights or slips. Attachment A refers to the assessment report explicitly as Attachment G in two separate places. The environmental impact statement is referred to in two separate places as Attachment F (not Attachment G, as it was in the first brief). 139 I am also bemused by Mr Early's treatment of the 'errors' made about the controlling provisions. As Mr Early pointed out, the suggested errors were made not only in the decision offered to the Minister for approval but also in correspondence he was asked to sign. The only departure from statements to the effect that ss 16/17B and 23/24A were relevant controlling provisions for the purpose of the Minister's decision to refuse approval did not occur until six weeks after the decision was made and a comprehensive set of written reasons had been prepared and then reviewed by the Australian Government Solicitor in circumstances of 'national and international attention' to the decision. I intend to reject the proposal by Phosphate Resources Limited to expand phosphate mining over nine sites of vacant Crown land on Christmas Island. I am informing you of my proposed decision, the relevant controlling provisions for which are: • Section 16 and 17B (Wetlands of international importance); • Sections 18 and 18A (Listed threatened species and communities); • Sections 20 and 20A (Listed migratory species); • Sections 23 and 24 A (Marine environment); and • Sections 26 and 27A (Protection of the environment from actions involving Commonwealth land). 142 The five sets of controlling provisions were expressed to be ones for which the proposed decision would have effect in the draft decision approved in principle by the Minister on 14 February 2007, in accordance with Mr Early's recommendation to him on 2 February 2007. 143 The five sets of controlling provisions were ones for which the decision signed on 27 April 2007 was expressed to have effect. 144 Section 130 of the Act (which I will discuss in a little more detail) required that the Minister make a decision for each of the sets of provisions that Mr Early had decided were controlling provisions. The decision was required to be 'whether or not to approve the taking' of the action. On its face, the decision made on 27 April 2007 met this requirement. 145 The statement in the Minister's decision that the decision had effect for ss 16/17B and 23/24A of the Act, and the same statement in correspondence sent to Ministerial colleagues, draws attention inevitably to the fact that the Minister's decisions and actions were based directly on the recommendations in the two briefs and were infected by any legal error or inadequacy of advice or analysis there disclosed. The respondent argued that those aspects of the decision should be regarded simply as a clerical error. In my view the matter should not be approached that way. I am convinced that the better view is that the suggested errors are, seen in their historical and proper context, further cogent evidence of the fact that the Minister's actual, and contemporaneous, reasons for decision are explained by the two briefs and the summaries and recommendations they contain, rather than in the written Statement of Reasons. 146 Finally, the statement in the last paragraph of Mr Early's affidavit which I set out earlier should be mentioned. Apart from a reference at the beginning of the assessment report that all five sets of controlling provisions had been determined to be applicable (as they had earlier by Mr Early himself), the assessment report made no further specific reference to any of the controlling provisions. It did not state any recommendation in terms which referred to the controlling provisions, much less to only three sets of such provisions. Reference was made to specific parts of the assessment report, which I have identified hereunder, which, it was suggested, made clear that ss 16/17B and 23/24A of the Act were not intended to be a foundation for the decision to refuse approval. PRL has withdrawn the ninth lease, MCI 70/9 (124.14ha), which contains primary rainforest, a high density of roosts of Abbott's Booby Sula abbotti, and is close to Hosnie's Spring (Ramsar site). 149 No conclusion, based on this circumstance, was stated elsewhere in the assessment report. Any conclusion about the significance of withdrawal by PRL of the ninth proposed lease requires other information which was certainly in Mr Early's knowledge but about which there was no evidence that it was within the Minister's knowledge. It was certainly within Mr Early's knowledge because, on 8 January 2002, he gave written reasons for deciding on 14 November 2001, contrary to PRL's contentions, that all five sets of provisions were controlling provisions. I found that Hosnie's Spring is listed as a wetland of international importance under the Convention on Wetlands of International Importance especially as Waterfowl Habitat 1971 (the Ramsar Convention). I found that the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland make an important contribution to the ecological character of Hosnie's Spring. I found that most of the rainwater that falls on Christmas Island percolates through the soils and porous limestone into groundwater systems. I found that Hosnie's Spring is located approximately one kilometre from the site of the proposed mining operations and that most of the water flowing into the wetland comes through groundwater systems. I found that changes to the surface as a result of mining operations could alter the characteristics of water percolating into groundwaters. In view of the close proximity of the site of proposed mining operations to Hosnie's Spring, it is possible that the operations will result in a major change to the quality and quantity of water flowing into the wetland. This would adversely affect the physico-chemical status of the wetland and the life-cycle of native species dependent upon the wetland. I found that there is insufficient information about groundwater flows to provide full scientific certainty about whether or not the effects referred to in paragraph 17 will occur. Applying the precautionary principle, I decided that it is likely that the action will result in changes in the quality and quantity of water flowing into Hosnie's Spring. I found that some of the phosphate-laden dust referred to in paragraph 14 is likely to be blown into Hosnie's Spring, resulting in further adverse changes in the physico-chemical status of the wetland. In light of my findings in paragraphs 15 to 19 I found that the proposed action is likely to have a significant impact on the ecological character of a Ramsar wetland. Mr Early's statement of his reasons for decision of 8 January 2002 was not amongst the material placed before the Minister with any of the briefs. 151 The position regarding ss 23/24A of the Act is even more obscure. As the extent of coral and seagrasses is restricted around the Island, impacts can contribute to substantial alterations of the local marine biota. It is unknown to what extent the change in nutrient levels from phosphate in stormwater runoff, will impact upon the food sources for adult and juvenile Green Turtles (Chelonia myda), Hawksbill Turtle (Eretmochelys imbricate), the spawn of Red Crabs, and migrating Whale Sharks (Rhincodon typus). However, the issues can probably be managed through appropriate mitigation measures. Compaction of soils during mine site establishment and mining operations can result in preferential flow paths for water, and development of erosion channels. Sediment eroded from mine areas has the potential to impact on the marine environment. He said he was concerned about phosphate laden dust. I found that phosphate-laden dust will be generated by mining operations, road transport, ore-drying, and ship-loading. Some of this dust will be blown into the marine waters surrounding Christmas Island, with a consequential increase in the concentration of phosphorus and sedimentation in these waters. I found that increased phosphate concentrations and sedimentation can have a deleterious effect on marine waters. I found that these waters support coral reefs, tropical fish and turtles and are likely to be sensitive to increased phosphate concentrations and the smothering impacts of ore dust, especially upon the inshore benthic reef biota. I therefore found that the proposed action is likely to have a significant impact on the environment in the Commonwealth marine area. Moderate slopes will be mined in a terrace fashion where the excavator will dig from the base of the slope. During the clearing, mining and transport of ore associated with this proposal, dust will be generated both in the proposed leases, and in the transport corridors to the phosphate dryers. The dust has the potential to coat the leaves and stems of exposed vegetation in the immediate vicinity of its source. Dust generation currently occurs from existing, high-usage roads on the Island, and from current mining of stockpiles, during ore processing and during shiploading, with the latter two sources being the most significant. The vegetation and underlying soil surface immediately adjacent to these areas is often coated with dust, especially during dry periods. However, this effect is relatively localized with little evidence of major dust deposition more than 30m into the forest from major roads. I do not accept, therefore, that a careful reading of the assessment report by the Minister, had that occurred, would have made it apparent that the references to ss 23/24A were erroneous and inadvertent. 155 It seems to me that no real attention was given in the assessment report to the question of which of the controlling provisions should provide the statutory foundation for refusal of PRL's proposal. Rather, the assessment report dealt in its discussion, conclusions and recommendation with the larger question of whether the proposal should be accepted or rejected. The brief, however, and its various attachments which the Minister was asked either to execute or approve in principle (the correspondence to other Ministers and the draft decision) did explicitly state the controlling provisions which were at work and for which the decision should be made. 156 I do not accept the submission made by the respondent that there was a simple unintended clerical error in the terms of the decision made on 27 April 2007. In my view, the conclusion is inescapable that the inability of the Department to justify the decision refusing approval for the purposes of ss 16/17B and 23/24A only became apparent when work started on the preparation of detailed written reasons to explain the decision. However, it does not matter in the end what view is reached about this issue. Even had I accepted Mr Early's evidence about his own appreciation of the position at face value it would only have added to my conviction that the Minister's assessment was dependent upon, and he did rely upon, the specific recommendations made to him in the briefs of 2 February 2007 and 19 April 2007, including what are now said to be the errors they contained. 157 Whatever view is taken, I see no basis upon which I could conclude that the admitted deficiencies should be regarded as having no significance for an appreciation of the Minister's actual reasons at the time he made his decision. Quite clearly those reasons were not adequately, reliably or accurately expressed by the written Statement of Reasons signed on 14 June 2007. If they were the decision would not have been made in the terms it was. 159 The written Statement of Reasons gains no additional evidentiary value from any application of this 'presumption'. The authors of Cross on Evidence (loose-leaf edition) observe that: 'in truth the presumption is merely a principle of expediency whereby it falls upon the impinging party to assert and justify the grounds of his attack'. Where a public official or authority purports to exercise a power or to do an act in the course of his or its duties, a presumption arises that all conditions necessary to the exercise of that power or the doing of that act have been fulfilled. The question here is not whether a condition necessary to the exercise of power has been fulfilled but whether the reasons for the exercise of power are as described in a document brought into existence after the power was exercised or should be distilled from an examination of the material before the Minister at the time the power was exercised. The presumption of regularity cannot prevent an examination of the issue by reference to the available evidence and it does not give evidentiary priority to an explanation brought into existence after the power is exercised. 162 In any event the presumption is rebuttable ( Kingham v Sutton [2002] FCAFC 107 ; 114 IR 137 at [58] ). In the present case there was rebutting evidence. That evidence was put forward in the respondent's own initial case. The later provision of the Ministerial brief of 13 June 2007, if anything, confirmed what was already apparent, namely that the reasons for decision carefully crafted in the Department after they were requested by PRL were not the reasons present to the mind of the Minister, or adopted by him, when he signed the decision on 27 April 2007. In my view there is no room for the operation of the presumption in those circumstances (see also Ray v Superannuation Complaints Tribunal [2004] FCA 1120 ; (2004) 138 FCR 548 at 558-9). Reference was made, by way of analogy, to Minister for Immigration and Multicultural Affairs v W157/00A [2002] FCAFC 281 ; (2002) 125 FCR 433 ( 'W157/00A' ) and Navarrete v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1723 ( 'Navarrete' ). I shall discuss those cases shortly. 164 In the present case, the written Statement of Reasons signed by the Minister, and provided to PRL on 14 June 2007, was admitted into evidence without objection. It was not verified. On 27 April 2007, the Minister made a decision pursuant to section 133 of the Environment Protection Act refusing approval of the Applicant's proposed action. A copy of the Minister's decision forms part of Annexure " GPE-22" hereto. The Applicant subsequently requested that the Minister provide a statement of reasons for his decision of 27 April 2007 pursuant to section 13 of the Administrative Decisions (Judicial Review) Act 1977 (Cth). The Minister provided the Applicant with his statement of reasons on 14 June 2007. Annexed hereto and marked " GPE-23 " and " GPE-24 " respectively are copies of the Minister's letter to the Applicant's Managing Director, Mr Lai Ah Hong, dated 14 June 2007 and his signed statement of reasons. On 14 June 2007 the former Minister signed the Brief, and signed the draft statement of reasons at Attachment C to the Brief without making any modifications to the draft statement of reasons. A copy of the draft statement of reasons at Attachment C to the Brief dated 13 June 2007 which was signed by the former Minister on 14 June 2007 is Annexure "GPE-24" to my first affidavit. There was, therefore, no further exploration through him of the mechanism by which the Statement of Reasons was constructed and the basis, so far as Mr Early could have given evidence about it, for the categorically stated findings which were represented as the Minister's own. There was no reason why Mr Early could not have been cross-examined about those matters (see e.g. Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 61-62) and I must also bear in mind the fact that no objection was taken to Mr Early's introduction of the Statement of Reasons (cf. Minister for Immigration and Ethnic Affairs v Taveli [1990] FCA 169 ; (1990) 23 FCR 162 ( 'Taveli' ) and Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1263 ; (2003) 133 FCR 190 ('Nezovic' ). However, although those matters must be taken into account they are far from conclusive. 167 In W157/00A a Full Court examined the decision-making processes arising under s 501 of the Migration Act 1958 (Cth) ('the Migration Act '). Section 501G of the Migration Act required that a notice cancelling a visa on character grounds set out the reasons for cancellation. Those reasons were to be stated, however, in the same notice that set out the decision to cancel. There is, as a result, no parallel with the present case. Branson J (with whom Goldberg and Allsop JJ agreed) pointed out (at [39]) that it was not necessary that the reasons be drafted by a Minister personally. However, there was no evidence here upon which I could conclude otherwise than that the draft reasons were adopted by the Minister as her own reasons after due consideration and that she made the decision for herself and adopted the draft reasons therefor. The difficulty this argument faces is that, unlike the position discussed in W157/00A and Navarrete , any such adoption of the reasons occurred after, and not contemporaneously with, making the decision. A conclusion that the Minister adopted the draft reasons as his own, some six weeks after the decision was actually made, does not resolve the present case in the respondent's favour. On the contrary, it highlights the problem which PRL has, somewhat belatedly but nonetheless sufficiently, now identified and relied upon. 170 Another response made by the respondent was to suggest that PRL's new arguments amounted to an allegation of lack of good faith on the part of the Minister which imposed a further heavy onus on PRL. In my view this argument proceeds, at least in part, on a false premise. Uncritical adoption of 'reasons' prepared by departmental officers need not involve any lack of good faith. It may proceed from honest reliance upon the capacity, integrity and diligence of the officers in question. Courts have repeatedly emphasised that Ministers of the Crown are entitled to rely upon advice and are not expected to be equipped, or able, to give detailed personal attention to every facet of matters which inform a final decision. As I pointed out earlier, however, errors made in the advice provided to a Minister may become incorporated in the Ministerial decision. Such errors are not excused legally by the suggestion that the Minister acted in good faith. 171 In Taveli , (although dissenting on the question of admissibility of an unverified statement of reasons to which objection was taken) French J made, with respect, an important statement about the statutory objectives of s 13 of the ADJR Act and the character of written statements of reasons which s 13 requires. As Professor Pearce has observed, it was implicit in the recommendations of the Commonwealth Administrative Review Committee for the enactment of such a provision, that the giving of reasons will not only reveal defects in the decision but will also lead to better decision making by requiring administrators to identify for themselves the reasons for their decisions ---C D Pearce - Commonwealth Administrative Law (1986) - para.357. This is consistent with the evident policy of the legislative scheme for review of administrative decisions reflected in the Administrative Appeals Tribunal Act 1975 (Cth), The Ombudsman Act 1976 (Cth), Administrative Decisions (Judicial Review) Act 1977 and the Freedom of Information Act 1982 (Cth). They provided significantly new opportunities for access to the processes and materials underlying official decision making and substantially widened the bases and mechanisms for review. And although the facilities provided for redress against unlawful or unfair or erroneous decision-making are important elements of these statutes, their overarching objective must be to improve and maintain standards of official fairness, rationality and compliance with the law. It is against that broad policy background that s 13 is to be considered. Importantly, the obligation imposed by the section is not satisfied by the provision of an ex post facto justification for the decision under challenge. It is not enough that an administrator confronted with a request for reasons should draft a set of reasons and findings which he or she think will stand up in court. The duty under s 13 is clear. It is to set out "the findings on material questions of fact" and "the reasons for the decision". That does not require the degree of precision or detail which may be appropriate to a judicial decision. But it demands a statement of the real findings and the real reasons. It is an incident of the obligation that the statement should not omit findings or reasons for the decision which may, in the light of a pending review application, appear to be irrelevant or reflective of some false assumption or pre-judgment. If an official or his or her advisers discover error when asked to provide a s 13 statement, the appropriate course may be to concede that the decision requires reconsideration. It is not appropriate to draft a statement from which the error is censored. The Court is sufficiently aware of the pressures associated with administrative responsibilities for high volume and urgent decision-making to accept that mistakes will occur which can and should be redressed without any personal reflection upon the competence or integrity of the officials whose decisions are under challenge. But the statute requires that a statement provided under s 13 will reflect the true reasons for the decision in question. Anything less would approach, if not amount to, a fraud upon the public and the Court. And it is that statutory context that lays a foundation for the acceptance of a properly authenticated statement of reasons under s 13 as evidence of the truth of what it says, namely, that the findings made, the evidence referred to and the reasons set out were those actually made, referred to and relied upon in coming to the decision in question and that no finding, evidence or reason which was of any significance to the decision has been omitted. That the statement may be used in evidence to support such an inference does not exclude the possibility that a contrary inference may be drawn from its form and contents considered alone or against other evidence in the case. Absent any such contra-indication, the inference that it is an accurate account of the findings and reasons actually relied upon is no more than a piece of circumstantial reasoning not dissimilar in character from that which underlies the so called presumption of regularity or presumption against fraud --- P Gillies - Law of Evidence in Australia (1987) pp.85-88. To the extent that evidentiary effect is given to the s 13 statement by a process of inferential reasoning, the term "presumption" may mislead. The inferences which may be drawn about its accuracy as a true account of findings and reasons are derived from the facts implicit in its authentication and that it was prepared by the decision-maker in the exercise of a statutory duty to give such an account of his decision. ' (Emphasis added. His Honour's views in Taveli were also referred to with approval by a Full Court in Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 456 ; (2000) 98 FCR 469 at [31] (see also [44]). What is required is a faithful and reliable statement of the reasons that were actually (not ostensibly) present to the mind of the decision-maker at the time the decision was made. For reasons earlier explained, having regard to the material before the Minister at the time the decision was made, the context in which it was made, the matters to which his attention was drawn (and not drawn) and the absence of any other direct evidence concerning the matter, I do not accept that the Statement of Reasons meets the requirements distilled by French J. I am not precluded from concluding, on the whole of the evidence, that the stated reasons deserve no weight ( Minister for Aboriginal and Torres Strait Islander Affairs v State of Western Australia (1996) 67 FCR 40 at 63). Having regard to the matters discussed earlier concerning the structure and content of the Statement of Reasons, and the evidence about what had been put before the Minister before the decision was made, that is the view to which I have come. 173 That conclusion leaves the defects in the decision making process earlier discussed exposed and unprotected. On that analysis it should be concluded on the evidence that the Minister failed to take into account the environmental impact statement prepared by PRL. Accordingly, I conclude on the balance of probabilities that the Minister, acting on the advice of his Department, failed to observe a mandatory statutory requirement. The decision must for that reason alone be set aside. Under sections 139 and 140 of the EPBC Act, the Minister must not act inconsistently with such obligations or plans (Attachment I). Attachment I contained a number of recovery plans for listed threatened species). 175 As I earlier pointed out, neither of the two briefs to the Minister advanced any case in support of the Departmental opinion that refusal of the proposal was required by s 139 and/or s 140. Thereunder ss 138, 139 and 140 were set out, with some commentary. No conclusion was expressed about the question of possible inconsistency. That is not surprising as the author(s) of Attachment A had not yet provided any factual foundation on which any conclusion could be drawn. However, it made frequent reference to recovery plans for particular listed species. The recovery plans which were later said, in the Statement of Reasons, to have been provided to the Minister concerned: Christmas Island Spleenwort; Tectaria devexa; Abbott's Booby; Christmas Island Frigatebird; Christmas Island Hawk-owl; Christmas Island Goshawk; Christmas Island Pipistrelle; Lister's Gecko and Christmas Island Blind Snake; and Christmas Island Shrew. Although the assessment report expressed concern about possible or likely impacts or 'additional pressure' on those species of flora and fauna, there was no statement to the effect that rejection of the proposal was required by s 139 or s 140 of the Act. For that reason it is instructive to test the statements in the first two briefs suggesting that the proposal was directly inconsistent with international obligations or recovery plans by reference to it. I considered that the proposed action would have significant adverse consequences for the achievement of the recovery objectives in the recovery plans of a range of listed threatened species as noted in paragraph 46. No direct statement to that effect was made. Was the matter dealt with indirectly? I think not. I found that land clearance, including for mines and roads, is listed as a key threatening process under the EPBC Act. I found that land clearance affects listed threatened species, mentioned in paragraphs 56, 58, 82, 87, 90, 95 and 102 and could cause unlisted species to become eligible for listing as threatened. I also found that habitat loss from land clearance was listed as a threat in the recovery plans for listed threatened species noted in paragraphs 56, 58, 82, 87, 90, 95 and 102. I found that as stated in the recovery plan for Tectaria devexa , "removal of actual or candidate habitat by phosphate mining or by construction of roads or other developments" and "weed invasion arising from rehabilitation of mined areas or from construction" are potential threats for the species. I found that PRL proposes to clear vegetation from a number of proposed leases with potential habitat for the species, as noted in paragraph 55, and this would have an adverse impact on Tectaria devexa . I found that as stated in the recovery plan for Christmas Island Spleenwort, "removal or modification of actual or potential habitat by phosphate mining or by construction of roads or other developments" and "weed invasion arising from rehabilitation of mined areas" are potential threats for the species. I found that as stated in the recovery plan for the Christmas Island Goshawk, habitat loss from clearing is a threat to the species. I found that PAN survey data in the recovery plan suggests that most Christmas Island Goshawks (approximately 95%) are located within rainforest areas, and are likely to require rainforest habitat containing suitable trees to breed. I found as stated by PRL's consultant EWL Sciences Pty ltd, the significance of the loss of habitat from clearing "will depend upon how rapidly the areas regenerate to a stage when the goshawk can occupy them for hunting and ultimately territory establishment. " I further found as stated by PRL, that "the re-establishment of potential nest trees might take 20 years or more. I found that as stated in the Hawk-owl recovery plan, habitat loss is a threat to the species. I found that although the Christmas Island Hawk-owl forages in all habitats, the sparse data collected so far suggests that the owl requires mature rainforest trees with hollows for nesting. I found that revegetation after mining on nesting sites would be long term. I found that the clearing of some proposed mining leases would result in the loss of some Hawk-owl territories. I found that as stated in the recovery plan for the Abbott's Booby, the modification and destruction of the species breeding habitat is a threat. Modification and destruction of breeding habitat includes mining and rehabilitation practices for mined areas. I found that clearing for the PRL action will result in the loss of many canopy and emergent canopy trees, as noted in paragraph 45, that the species may be able to use. I found that the recovery plan for Abbott's Booby states that "wind turbulence is exacerbated downwind from clearings, with negative impacts on breeding boobies and their habitat. " I found that the clearing of areas would therefore facilitate the loss of further nest site adjacent to proposed lease areas, due to exposure to wind, and would also reduce the potential for the species to recover. I found that as stated in the Christmas Island Frigatebird recovery plan, wind turbulence around nesting sites is a cause for concern, and as such, I found that areas adjacent to nesting sites need to be carefully managed. I found that some research suggests that clearance of vegetation within 300m of nesting sites may have deleterious impacts on the species. I found that PRL's consultant EWL Sciences Pty ltd noted that "MCI 70/11, 12 and 13 are about 195 to 300m from these colonies", but a part of MCI 70/12 "was too steep to survey". However, I also found that, based on more recent data from PAN, MCI 70/11 is within 280m of Christmas Island frigatebird nests to the north and 190m to the east. MCI 70/12 is within 110m of nests to the east. MCI 70/13 is within 190m of nests to the north. I found that as stated in the Christmas Island Frigatebird recovery plan, all nesting sites should be considered habitat critical to the survival of the Christmas Island Frigatebird. I found that as stated in the recovery plan for the Christmas Island Blind Snake and Lister's Gecko, habitat loss, fragmentation and degradation are listed as threats to both species. I found that PRL did not find either of those species in surveys. I found that the reduction in reptile populations has occurred across all different habitat types. However, I also found that this decline in species populations enhances the value of any remaining habitat for those species. 187 Upon the assumption that the written Statement of Reasons provided the most considered and detailed analysis by the Department (even if not the Minister's own reasons for his decision) there was, therefore, no apparent justification for the assertion in the first brief to the Minister that refusal of the proposal was, in effect, proscribed by the Act itself. 188 That circumstance suggests that the Minister's attention was directed by the brief to an irrelevant consideration --- namely the unsupported assertion that Australia would breach its international obligations if the proposal was approved. However, that possibility was not identified by PRL. No submissions were addressed to it by either party. In the circumstances I will not give it any weight. In the case of ss 16/17B that was because PRL had abandoned a proposal to mine within about one kilometre of a Ramsar wetland. In the case of ss 23/24A of the Act the position was less clear but the admission of error in the decision was not. Rather, until that time, the matter had proceeded upon the footing determined by Mr Early, namely that there were five sets of relevant controlling provisions. As I said earlier, it does not appear to me that the assessment report gave any specific attention to the question of which statutory provisions underpinned a decision to reject the proposal. 192 One way of looking at the situation, although not one upon which PRL relied, is that neither the Department nor the Minister took into account the necessity to give the matter further attention until after the decision was actually made. On that view the Department, and the Minister, failed to have regard to a relevant consideration and failed to act in accordance with the Act. Even though that was not the way the case was argued by PRL the question remains how the admitted (indeed asserted) errors may be accommodated, if they can be at all. 193 The respondent submitted, relying upon s 16(1)(a) of the ADJR Act, that the 'errors' which were made could be addressed by the Court itself without the whole decision being set aside as erroneous or legally flawed. to the extent that it had effect for ss 16/17B and 23/24A of the Act. I am not satisfied that would be a correct approach to the issue. As the Minister's delegate had earlier decided that the action was a controlled action (i.e. required approval) and that five sets of provisions were controlling provisions (see s 67 of the Act) the Minister was required by s 130 to decide whether or not to give approval for each of the controlling provisions and not just for some only of them. Any amendment by the Court to delete a reference to some only of the controlling provisions would leave the statutory duty under s 130 unperformed with respect to those provisions. 196 The power in s 16 of the ADJR Act to set aside part of a decision has not received much attention. Where the consequence of setting aside part of a decision is, as here, that the remaining part of the decision must likewise fall, with the consequence that the whole decision should be set aside, the only proper order of the Court can be that the entire decision be set aside. The first aspect does not arise directly in the present case but, on one view, does so by analogy. If reference in the decision of 27 April 2007 to ss 16/17B and 23/24A was deleted, could the remaining part of the decision stand alone? The respondent argued that it could. The respondent contended that it would be pointless and inconvenient to require a decision 'approving' the proposal for some controlling provisions when the practical effect of refusal for even one set only would be to prevent the proposal going ahead. 198 In my view, this suggested approach pays insufficient regard to the whole of the statutory scheme. Mr Early had decided that the actions proposed by PRL were controlled actions for five sets of controlling provisions including two sets of provisions which PRL had argued were not engaged. The effect of that decision was to expose PRL to statutory sanctions under each of the sets of provisions if it acted without approval. The Minister's obligation was to make a decision whether or not to refuse approval for each of the controlling provisions which Mr Early had decided were applicable. I do not accept that it was unnecessary to resolve the matter explicitly for each of the controlling provisions. The whole scheme of the Act was directed to providing resolution of PRL's application with respect to each one of the prohibitions, and not just some of them. I think PRL was entitled to removal of the statutory sanctions which were in place to the extent that refusal of its proposal was not based upon any of the sets of controlling provisions earlier nominated. 199 In my view therefore, if the Court was to edit or re-write the decision in the fashion suggested it would convert it into a decision which did not conform to the Act and which represented a failure to perform a statutory duty. I am not persuaded that the Court has such a power. 200 Moreover, the incorrect reliance on ss 16/17B and 23/24A of the Act in the decision strikes at the whole of the decision and not simply part of it. Once the concession was made that the decision was erroneously made with respect to two sets of controlling provisions, legal error in both the decision and the decision-making process was admitted. That is because the identification of the error also revealed a fundamental defect in the process which was followed, whether discovery of the error revealed a failure to take into account a relevant consideration or, alternatively, simply revealed an error with respect to the application of s 130 of the Act. In those circumstances the power in s 16 of the ADJR Act to set aside part of a decision does not appear to me to be available as was suggested. Whatever view is taken of the status of the Statement of Reasons the decision under challenge should be set aside for that reason independently. 201 In any event, I would not, in the present case, make such an order as the respondent sought as a matter of discretion. Here, the decision was intended to be one which conformed to s 130(1) of the Act. It was affected by admitted legal error so far as it was expressed to have effect for ss 16/17B and 23/24A of the Act. In place of that decision one should be made that has effect one way or the other for each of the controlling provisions. PRL is entitled to know, and have a decision by the Minister about, the extent to which it faces statutory sanctions if it acts without approval and the provisions of the Act under which those sanctions might be imposed. That would not be the result if I was to edit or re-write the decision in the way suggested by the respondent, even assuming power to do so. On the evidence, the Minister, in acting upon the advice and recommendations in the briefs dated 2 February 2007 and 19 April 2007, failed to observe a mandatory statutory requirement because it should be concluded that he failed to take into account the environmental impact statement prepared by PRL. 2. In deciding that the decision made on 27 April 2007 took effect for ss 16/17B and 23/24A of the Act the Minister failed to apply the correct statutory tests under the Act. It would have been open to the Minister to have accepted a realistically expressed analysis of the kind contained in the Statement of Reasons had it been before him at the time the decision was made. An analysis of that kind might still be accepted if the decision must be made again. However, since the decision was made on 27 April 2007 both the Minister and the political complexion of the Government have changed. The two principal documents which the Minister was required to take into account, the environmental impact statement and the assessment report, stated a final position 'on balance'. I cannot exclude the possibility that further attention to the matter might result in a different view of where the balance should be struck between the competing priorities which require consideration. Accordingly, I see no reason to withhold relief in the exercise of any discretion, on the basis that it would necessarily be futile. I will hear the parties on costs, if necessary. Normally costs would follow the result, but having regard to the reasons expressed above I have real doubt whether PRL is entitled to all its costs and some doubt whether it is entitled to any order for costs. PRL is to file any application for costs, with a written submission in support, within 14 days. The respondent will have 14 days to respond and PRL will have a further 7 days to reply, if necessary. That issue will be decided on the basis of the written submissions unless a party expressly seeks a further oral hearing. I certify that the preceding two hundred and five (205) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

reliance by a minister on departmental advice and recommendations whether a decision was required to be made by a minister personally minister advised that a statutory requirement was not applicable whether written reasons prepared later should be regarded as the real reasons for the decision at the time it was made whether a presumption of regularity applies whether the decision could or should be set aside in part minister wrongly advised written reasons prepared later not the reasons present to the mind of the minister when the decision was made legal error established no reason to withhold relief as a matter of discretion decision set aside in its entirety. 'presumption of regularity' administrative law words and phrases

The respondents move on a notice of motion filed on 26 October 2004 which on 3 October 2006 was adjourned sine die. The applicant's proceeding is a claim for damages arising out of a Heads of Agreement (HOA) which was entered into by the parties in September 1996. The applicant claims that the respondents have breached a number of clauses of the HOA and have thereby breached the HOA; breached a duty of confidence; breached a fiduciary duty that was owed; and engaged in misleading and deceptive conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth). The procedural history relating to the pleadings in this proceeding needs to be identified and understood to put this application in its context. The applicant commenced this proceeding on 18 June 2004 seeking a declaration that it was the owner of intellectual property and for equitable compensation and damages. It sought various ancillary orders. The causes of action upon which it relied are identified above. The originating application was accompanied by a statement of claim. On 10 August 2004, pursuant to leave given by Lee J on 9 July 2004, the applicant filed an amended application and an amended statement of claim. On 13 October 2004, pursuant to a further grant of leave given by Lee J on 20 August 2004, the applicant filed a further amended statement of claim. On 25 October 2004 the respondents sought an order that certain paragraphs of the statement of claim be struck out or in the alternative that the applicant give particulars. The application resulted in Lee J ordering on 14 December 2004 that the applicant file a second further amended statement of claim. That second further amended statement of claim was filed on 7 January 2005. In the meantime, on 26 October 2004 the respondents filed a notice of motion seeking an order pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) or in the alternative s 1335 of the Corporations Act 2001 (Cth) that the applicant provide security for the respondents' costs in the amount of $1,978,337.00. The parties filed their written submissions in relation to the application for security for costs. On 20 May 2005 the applicant filed a third further amended statement of claim pursuant to leave given by Lee J on 4 May 2005. On 31 October 2005 the respondents filed their defence and cross-claim. The respondents' cross-claim is for an alleged advance repayable by the applicant and for damages for a failure by the applicant to pay licence fees. The cross-claim is in dollar terms relatively insignificant. On 23 January 2006 the respondents filed an amended defence and cross-claim. On 17 February 2006 the respondents applied to have the proceeding transferred to the South Australian Registry. The applicant's then solicitors ceased to act and other Western Australian solicitors were appointed. On 29 March 2006 Lee J made an order transferring the proceeding to the South Australian Registry. On the same day he adjourned the respondents' notice of motion seeking security for costs sine die. After the matter was transferred to the South Australian Registry the parties filed further evidence on the respondents' notice of motion for security for costs. On 3 October 2006 the applicant's solicitors changed for the second time. On the same day the Court entered consent orders on the respondents' application for security for costs. If any amount of security required by order 1 to be provided by a certain date is not provided by that date in the manner specified, the proceedings be stayed while the default continues. The order pronounced by Lander J on 17 July 2006 for costs thrown away be vacated and in lieu thereof that the applicant pay the respondents' costs of and incidental to their motion of security for costs filed 26 October 2004 that have been incurred since 8 March 2006, as agreed or taxed. The notice of motion was otherwise adjourned sine die . It is that notice of motion upon which the respondents presently move. The applicant complied with paragraph 1 of that order by providing bank guarantees in the amount ordered. On 10 October 2006 the applicant's solicitors changed again. On 1 February 2007 the applicant filed its reply and defence to the cross-claim. On 26 April 2007 the respondents filed a notice of motion to strike out certain parts of the applicant's reply and defence to the cross-claim. The respondents' strike out application raised issues relating to various aspects of the applicant's statement of claim. This led to the applicant on 12 June 2009 filing a notice of motion seeking leave to amend the third further amended statement of claim. The history relating to that application is fully described in my reasons for judgment in Smart Company Pty Ltd v Clipsal Australia Pty Ltd [2008] FCA 1008 at [2] - [22] . For completeness I include these paragraphs. That notice of motion was listed for mention on 9 July 2007 and was heard on 12 July 2007. The hearing of the applicant's notice of motion dated 12 June 2007 to amend its further amended statement of claim be adjourned to 9.30am on 4 September 2007. The applicant pay the respondent's costs of the applicant's notice of motion dated 12 June 2007 to date. The respondent's notice of motion dated 26 April 2007 be adjourned to 9.30am on 4 September 2007. The hearing of the application was adjourned again by consent to 20 September 2007. The respondents' oral application for an order that the costs be paid forthwith be reserved. The respondents advise any objections to the proposed amended statement of claim by Monday, 29 October 2007. The applicant respond to any notice of objection by Friday, 2 November 2007. They were also advised that the orders so far made required the applicant to "lodge" with the Court any proposed amended statement of claim rather than file and serve that document. It was also proposed that the matter proceed by way of a directions hearing on 7 November 2007, instead of for the purpose of hearing the substantive application. The question of costs be reserved. The respondents' responded to the revised proposed fourth amended statement of claim by filing affidavits in opposition. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions by 14 December 2007. The respondents provide Lander J's associate and the applicant's solicitors with the respondents' written submissions by 25 January 2008. The applicant provide Lander J's associate and the respondents' solicitors with the applicant's written submissions in reply by 12 February 2008. The applicant's application for leave to amend the applicant's statement of claim be adjourned until 9.00am on Wednesday, 20 February 2008. The applicant pay the respondents' costs of the application for leave to amend up to and including today. The questions as to the scale of costs and as to whether there is a further order that costs be paid forthwith be reserved. Moreover, an order was made that the applicant pay the respondents' costs of the applicant's notice of motion of 12 June 2007 which I dismissed on 20 September 2007. To avoid any doubt, there will be an order that the applicant pay the respondents' costs of that hearing. The time from which the amendments the subject of paragraph 1 take effect shall be reserved for trial, and for that purpose this order is a contrary order within the meaning of Order 13 rule 3A. The questions of costs the subject of the parties' submissions on 20 February 2008 be reserved. As the history shows, a number of drafts of a proposed fourth further amended statement of claim were lodged and considered by the respondents and the Court before leave was eventually given on 20 February 2008 for the applicant to file that document. The time lost between the filing of the notice of motion on 12 June 2007 and the grant of leave was almost exclusively a result of the applicant's inability to articulate its claim. On 7 March 2008 the applicant filed an amended application. Pursuant to the leave granted it also filed a Fourth Further Amended Statement of Claim (FFASOC), which remains the current pleading. On 3 July 2008 I published reasons for making the following orders as to costs in relation to the costs occasioned to the respondents by reason of the applicant's various amendments to the Statements of Claim: The applicant pay the respondents' costs of the hearing of 7 November 2007. The respondents' application for leave to have costs taxed forthwith pursuant to O 62 r 3 be dismissed. The respondents recovered most of their costs in relation to the amendments. Importantly however I refused, as order four (4. ) shows, to give leave to the respondents to have their costs forthwith. In other words I allowed O 62 r 3(3) to continue to apply. On 4 September 2008 the respondents filed a further amended defence and cross-claim. On 16 September 2008 I made orders by consent that the applicant file its reply and defence to cross-claim by 12 November 2008. On 13 November 2008 on the application of the applicant I made an order extending compliance with my orders of 16 September 2008 until 4 December 2008. The applicant admitted that it could not comply with the orders which had been made by consent on 16 September 2008. On 4 December 2008 the applicant filed a reply to the defence and a defence to the cross-claim. On 5 December 2008 the proceeding was referred to mediation. The mediation took place on 17 March 2009 but was unsuccessful. The mediator (The Hon. John von Doussa QC) reported on 17 March 2009 that there was no reasonable prospect of the parties reaching an agreement. On 26 March 2009 the respondents requested that their application for security be re-listed. On 1 April 2009 I made the following directions for the filing of further evidence on the motion: The respondents file any affidavits in support of their motion for security for costs within 14 days. The applicant file any affidavits in opposition to the respondents' motion for security for costs within 14 days thereafter. The respondents' motion for security for costs be listed for hearing on 27 May 2009 at 10.00am. The respondents file any written submissions in relation to their motion for security 7 days prior to the date of hearing and the applicant file any written submissions in answer 3 days prior to the date of hearing. On 22 April 2009 the applicant's solicitors changed again for the fourth time. On 12 May 2009 I made orders extending the time within which the applicant had to file its evidence on the respondents' motion for security for costs and to comply with orders made on 8 April 2008 relating to discovery. On 19 August 2009 and since the judgment has been reserved, the applicant's solicitors who were instructed to act in April 2009 filed a notice that they had ceased to act. After some delay the applicant appointed a new firm of solicitors which filed a notice of acting three days ago. The applicant company cannot defend itself except by a solicitor: O 9 r 1(3). Although nearly two years has passed since the order for security for costs was made on 3 October 2006 the proceeding is now effectively no further advanced than it was at that date, except that the applicant has filed a reply and a defence to the cross-claim. The period between 3 October 2006, with the exception of the period between 5 December 2008 and 17 March 2009 when the parties went to mediation, has been taken up with the applicant attempting to set its pleadings in order. They claim that there has been a material change in circumstances since the October 2006 orders; and the appropriate order is that the applicant pay into the Court or procure bank guarantees to the value of $500,000. In support of the first point the respondents contend that the applicant will be unable to pay the costs of the respondents if successful, because: the applicant conceded on the previous application for security for costs which led to the order of 6 October 2006 that the threshold question for the operation of s 1335(1) of the Corporations Act , had been met even though the applicant now contends that the threshold test has not been met; the applicant also has other proceedings which have been brought against it; the applicant's net assets are comprised of assets which are difficult to value and the values it puts upon its assets is questionable; and the applicant's financial accounts do not indicate any reliable source of revenue. In support of the second point that there has been a material change in the proceeding since the last order for security for costs was made in October 2006, the respondents relied upon three matters: the proceedings have been significantly delayed and, the proceedings are now, in mid-2009, no further progressed than they were in mid-2006; since October 2006 the respondents have incurred significant costs; because of significant amendments to the applicant's case the respondents' preparation for trial will need to be more extensive. In relation to the third point and the amount claimed for security for costs the respondents contend that since 22 February 2006, its party and party costs are in the order of $900,000, and it will incur further party and party costs in the order of $1,500,000 in preparing the matter for trial. However the respondents say that taking a conservative approach provision of further security in the amount of $500,000 by way of bank guarantee, or by payment into Court should be ordered. However, on this application the applicant contends that its circumstances have changed such that now the Court can no longer find that the applicant is not in a position to meet the respondents' costs if the applicant's claim was unsuccessful. The applicant contended that the respondents, in order to succeed in this application must demonstrate: that there is reason to believe that the applicant will be unable to pay the costs of the respondents if successful; that there has been a material change in circumstances sufficient to warrant the provision of additional security; and that in all the circumstances the Court's discretion ought to be exercised in favour of the grant of additional security. The applicant has tendered evidence of its financial position to show that there is not credible testimony that the applicant could not pay the respondents' costs. It tendered financial statements for the financial years 2006, 2007 and 2008. It also relied upon evidence of Ms Tomazos who has been a director of the applicant since 2005, who said that the applicant's financial position has markedly improved since October 2006. The applicant submitted that its most recent balance sheet showed that the applicant's net assets were in the order of around $15-18 million. The applicant took issue with the respondents' contention that the current proceeding has changed such as to warrant an award of further security. The applicant relied upon the affidavit of a solicitor with experience in costs, Mr Ericson of 11 May 2009 that the quantum of costs was not such as to warrant the need for further security. In particular, the applicant submitted that the respondents' estimation of costs contained in the evidence of another solicitor experienced in costs, Mr Cogan was too high because: the respondents erred in the method they used to calculate the costs; the highest rates for the National Guide to Counsel Fees were adopted, rather than using the local market rate for counsel fees in South Australia; and an over estimation as to time and resources required in the preparation of a trial had been used. However to enliven s 1335(1) the respondents must establish that there is credible testimony which establishes that there is reason to believe that the applicant will be unable to pay the costs of the successful respondents. This has been described as the threshold condition for the exercise of the discretion in the exercise of the power given to the Court in s 1335(1). This will be so even if in other events which can also be described as reasonably possible the plaintiff corporation would be able to pay the costs. The degree of likelihood of the plaintiff corporation being unable to pay the costs along with all the circumstances, actual and possible, about its financial position, would be then taken into account in the exercise of discretion, and in framing the orders of the court if the decision is to order security. The test it said was, "[i]s there reason to believe that the corporation will be unable to pay the defendant's costs? ": Livingspring Pty Ltd [2008] VSCA 93 ; 66 ACSR 455 at 459. The Court of Appeal was right in my opinion to return to the wording of the statute to identify the statutory test. The words of the statute must govern the exercise of the power, not like words or any restatement of the statute: Central Bayside General Practice Association Ltd v Commissioner of State Revenue [2006] HCA 43 ; (2006) 228 CLR 168 at [84] . They wrote a long letter dated 2 June 2009 setting out why in the respondents' view the applicant was not entitled to maintain that stance. They argued in that letter as they did at the hearing that in view of the history of the matter the applicant was not entitled to claim that it could meet an order for costs. The applicant did apparently concede in 2005 and again in 2006 that the respondents had made out the threshold test. The respondents pointed to the fact that the letter dated 2 June 2009 had not been responded to by the applicant, which might indicate that the applicant had not altered its position. The respondents' contention that the applicant should not be entitled to change its position and claim on this application that its financial position has changed is with respect untenable. The applicant was quite entitled on this application to adduce evidence that supported its now financial position showing that it could pay the respondents' costs if so ordered. Whilst it had conceded the threshold test three years earlier, that did not prevent it at the hearing of this further application from contending that its current financial position meant that an order for security for costs should not be made. The respondents' righteous indignation at the applicant's stance in claiming on this application that the threshold test in s 1335 has not been made out is misconceived. The threshold test must be addressed by reference to the evidence concerning the applicant's financial position at the hearing. The present directors of this applicant are Ms Tomazos, Mr Gerblich and Mr Clift. Ms Tomazos swore four affidavits and was examined on them. She exhibited to an affidavit sworn on 2 June 2009 the respondents' tax returns for the financial years 2006, 2007 and 2008. Included in those tax returns are the respondents' financial statements. The applicant's net assets were much the same in the financial year ending 2007. A feature of the 2007 financial year was revenue of $3,253,975 resulting in a $2,541,001 profit. Ms Tomazos said in her affidavit that an amount of $2 million was received in the 2009 financial year in licence fees. Ms Tomazos also said in her affidavit that the applicant expected to earn income in the 2010 financial year of in the order of $3.3 million whilst the budgeted expenses are $924,000 and the cost of goods $300,000 (given the stock on hand). Three items in the applicant's assets need to be addressed. The figure of $880,011 has been deposited with the applicant's bankers to secure the bank guarantees which were given to satisfy the earlier order for security for costs. In those circumstances, that sum would not be available to satisfy any additional costs of the respondents. The respondents do not accept that the unsecured loans included as non-current assets are recoverable. Those loans have been made to entities associated with or related to the applicant. The unsecured loans include a loan of $1,135,659 to Smart America. The respondents have identified a number of proceedings in the District Court of South Australia, the South Australian Industrial Relations Court and the Supreme Court, in which former directors of the applicant and companies associated with the applicant, including Accordent Pty Ltd, which is one of the parties to whom a loan has been made by the applicant have been involved. It would appear from those proceedings that Accordent Pty Ltd, which owes $66,501 to the applicant, might be unable to repay that amount. None of the proceedings concern Smart America. I am not in a position on this application to make a judgment on the recoverability of so much of the applicant's non-current assets which relate to loans from associated or related entities. The directors have included those loans in the financial statements of the applicant, including its balance sheet at the amount of the loan. The directors have an obligation to assess recoverability of the loans so it would appear that the directors are of the opinion that the loans are recoverable. That was Ms Tomazos' evidence in her cross-examination. I am not prepared to hold as has been urged by the respondents that those non-current assets should be excluded. However they have been identified as non-current assets which would suggest that the directors do not expect the loans to be repaid within 12 months. In those circumstances, they would not be immediately available to satisfy an order for the respondents' costs if an order were made. The third, and of course most important, asset which the respondents were not prepared to accept at the value indicated in the balance sheet is the intellectual property. The directors have valued the intellectual property which consists of Domain names, Trademarks and a pending application for a patent at the amortised value of $14,651,042. The intellectual property is the applicant's primary asset. It appears from Ms Tomazos' cross-examination that the valuation was apparently adopted by previous management of the applicant in 1998, but continued by the current directors on the advice of the applicant's accountants. The difficulty with adopting a valuation in 1998 as the valuation of the intellectual property of the applicant in 2008 is that the intellectual property in 2008 is quite different to the intellectual property that the applicant owned in 1998. Ms Tomazos maintained that the applicant owned the Domain names even though a search of 'Who is' showed the owner of some of these names in Smart World Enterprises Pty Ltd (Smartworld). Smartworld has the same shareholders as the applicant. Enterprise Global Resources Pty Limited holds its shares in the applicant upon trust for the Smart Card Trust, the beneficiaries of which Ms Tomazos refused to identify because she did not have the beneficiaries' permission. She said there was an agreement in place between the applicant and Smartworld to that effect. She also said the applicant owned trademarks notwithstanding they were not registered and have not been used publicly. She agreed that the patent property has been filed in August 2007 and lapsed and refiled in February 2009. Ms Tomazos agreed that the applicant had been into and come out of administration. As at 21 March 2006 it was not trading at all. She said that sometime after that date the applicant took over the trading activities of Smartworld. The applicant was paid $3,077,000, which was included in the revenue for 2007 in relation to the sale of intellectual property in that financial year. A domain name was sold and an ongoing relationship arose with a third party. Ms Tomazos agreed that the sale of the domain name did not result in the directors revaluing the intellectual property to reflect the sale. The respondents have urged me to disregard the directors' valuation of the intellectual property because of the unsatisfactory way in which the directors have approached their valuation of that intellectual property. I must say that I have some reservations as to whether or not the amount included in the balance sheet as the value of the intellectual property has been arrived at after an appropriate valuation of that intellectual property. I think, however, that the applicant does own intellectual property which has a value which would allow the applicant to include a sum in its balance sheet against intangible assets. I am simply not in a position to determine what that figure is. I think it is probable that the applicant's net assets are less than that stated on the balance sheet. However, I am not able to say how much less. The applicant claims to have receivables of $249,012, stock on hand of $970,000, the unsecured loans and intellectual property with a value of $14,650,000. Whilst I am not confident that the applicant's assets are of that magnitude, I cannot find on the evidence available that the applicant would not be in a position to meet the respondents' costs if so ordered. I have to take into account in making that assessment that the respondents' costs have already been secured by the amount ordered on 3 October 2006. In those circumstances, in my opinion, the respondents have not made out the threshold test that it appear by credible evidence that there is reason to believe that the corporation will be unable to pay the respondents' further costs if the respondents were successful. For that reason alone, the application should be dismissed. That would not lead, of course, to a discharge of the orders made on 3 October 2006 because I have assumed for the purpose of this application that that order will stand and that the respondents' costs are secured to the amount ordered at that time. I will in case the respondents wish to take this application further address the other arguments that were advanced on the assumption that the threshold test had been satisfied. On this hearing, the respondents led evidence from Mr Timothy Cogan, who is a solicitor in South Australia experienced in costs, estimating the respondents' further costs if the matter were to proceed to trial, but not the trial costs. He estimated those costs at $1,382,570. Subsequently, various adjustments were made to that figure but they are irrelevant for the purpose of the point I am about to make. The applicant on the other hand tendered evidence from Mr William Ericson, also a solicitor in South Australia experienced in costs. He estimated the respondents' further costs up to trial at $355,522. Below is a table that summarises the differences in cost estimates for each item provided by Mr Cogan in his affidavit sworn on 15 April 2009, and Mr Ericson in his affidavit sworn on 11 May 2009. Mr Cogan Mr Ericson Respondents' Discovery Counsel Fees $19,250.00 $1,400.00 Respondents' Discovery Solicitors' Fees $119,390.00 $38,464.20 Applicant's Discovery Solicitors' Fees $39,796.80 $3,979.68 Applicant's Discover Counsel Fees $19,250.00 $0.00 Electronic Database $28,366.00 $0.00 Directions Hearing --- Solicitor $9,949.70 $1,600.00 Directions Hearing --- Counsel $19,250.00 $0.00 Interlocutory Hearing --- Counsel $16,970.00 $10,950.00 Interlocutory Hearing --- Solicitor $10,898.90 $3,233.49 Respondents' Witness Statement --- Counsel $193,600.00 $9,800.00 Respondents' Witness Statement --- Solicitor $119,390.90 $64,669.80 Expert Witness Statement --- Counsel $78,712.00 $21,900.00 Expert Witness Statement --- Solicitor $59,695.20 $7,461.90 Reviewing Applicant Information --- Counsel $3,850.00 $1,200.00 Reviewing Applicant Information --- Solicitor $11,939.04 $1,989.84 Reviewing Applicant Information --- Experts $13,200.00 $4,400.00 Expert Witness Reports and Evidence $240,000.00 $102,300.00 Pre-trial Preparation --- Counsel $149,125.00 $50,500.00 Pre-trial Preparation --- Solicitor $198,989.00 $14,923.80 Document Reproduction $25,000.00 $16,750.00 Travel and Accommodation $5,948.00 $0.00 Total $1,382,570.54 $355,522.71 The difference in the methodology used to calculate these two estimates is largely explained by Mr Ericson in his two affidavits sworn on 11 May 2009 and 18 June 2009. The respective witnesses' use of the different methods in part explains the differences between the two estimates. Mr Cogan came to his estimation using a lump sum basis approach, looking at costs in a broad sense, estimating the overall time and work it would take for the matter to proceed to the conclusion of a trial. He adopted that approach instead of a bottom-up assessment because otherwise the amount of work that would be required would be the same as producing a long form bill of costs. However he did accept that the lump sum basis approach was less accurate. Mr Cogan further noted that his estimation did not include the costs of: Mr Ericson on the other hand was of the opinion that Mr Cogan had adopted an inappropriate method of ascertaining costs for the purposes of security for costs. Mr Ericson noted that the lump sum approach is used for calculating costs after the conclusion of a matter. For a calculation of costs on an application for security for costs the method that should be adopted should seek to arrive at a more conservative estimate of costs. On the information available, Mr Ericson was of the opinion that a "bottom-up" approach should be used, noting that the method used by Mr Cogan "may well grossly overstate the allowable party-party costs". Mr Cogan's estimate of costs is more than three times Mr Ericson's estimate. It is difficult to think that two experts could reasonably come to such startlingly different estimates. The difference between the two estimates is so great as to suspect that neither estimate can be relied upon. In my opinion, the respondents' costs are likely to be higher than Mr Ericson has estimated and lower than Mr Cogan has estimated. However, apart from that, I cannot put any meaningful estimate on those costs. However, I am not able on the evidence adduced to arrive at a more precise estimate of the respondents' costs to trial. It has to be remembered that the consent orders of 3 October 2006 was predicated upon the basis of an estimate of the respondents' costs at that time to trial. The respondents now claim that that estimate with which they then agreed is no longer appropriate for two reasons. First, because of the costs incurred by the respondents for the period between 12 June 2007 and the grant of leave to the applicant to file its fourth further amended statement of claim on 20 February 2008. Secondly, the respondents claim that the fourth further amended statement of claim is a larger claim than was contemplated in October 2006. I accept that the parties entered into their agreement in relation to the consent orders of 3 October 2006 upon the mistaken assumption that the applicant's statement of claim would be in the form of the statement of claim which the applicant then relied upon. I accept that the respondents have been put to additional costs by reason of the applicant's inability to articulate its claim over the period which I have mentioned. That has been recognised in the orders for costs which I have already made. I was not, however, at that time that those orders were made, prepared to allow the respondents to tax their costs in advance of the proceeding ending. Initially the parties were ordered to make discovery by category in relation to the third further amended statement of claim. However before discovery was made, arguments were advanced resulting in the redrafting of the applicant's statement of claim which resulted in the fourth further amended statement of claim. The respondents claim that the result of the filing of the fourth further amended statement of claim rendered the initial preparations for discovery wasted. I have no doubt that the filing of the fourth further amended statement of claim did mean that the respondents had to revisit the work already done on discovery. However, I do not accept that all that had been done was wasted. I am not on the evidence available able to estimate the further costs incurred in relation to the respondents' discovery by reason of the filing of the fourth further amended statement of claim. The respondents also claim that they ought to be entitled to further costs for the more complex litigation which is contemplated in the fourth further amended statement of claim. I am not persuaded that the matter has been so enlarged that the estimate made by the parties in October 2006 is no longer valid and if I had been disposed to make an order for security for costs I would not have allowed any further amount to cover a more complex proceeding. However, I would have, if I had found that the respondents had made out the threshold test, ordered the applicant to give security for the additional costs which have been incurred over the period to which I have referred. However, for the reasons which I have given, I have reached the conclusion that the application should be dismissed. The respondents must pay the applicant's costs of the application. I certify that the preceding eighty-five (85) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.

application for further security for costs s 1335 corporations act 2001 (cth) threshold to be met for an award of security to be granted words of statute must govern the exercise of the power application dismissed. costs

3) [2007] FCA 87 ('the primary judgment') at [294(a), (c), (d), (e), (g), (h), (i), (k) and (l)]). (b) By making a representation on 18 February 2004 to Norm Philipp and Reinhard Philipp to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site [a site at the corner of Bank and Harbour Streets, Wollongong at which Hansen Yuncken Pty Limited was the head contractor] or any other site in Wollongong, each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act. (c) By making a representation on 18 February 2004 to Anthony Summers to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site he was obliged to join the first respondent and/or the second respondent, the fourth respondent contravened s 298SC(c) of the Act. (e) By the action of the fourth respondent referred to in (b) above, the first respondent contravened s 298SC(c) of the Act. (f) By the action of the fourth respondent referred to in (c) above, the first respondent contravened s 298SC(c) of the Act. (g) By the action of the third respondent referred to in (a) above, the second respondent contravened s 298SC(c) of the Act. Section 298SC fell within Part XA. 5 At [30] s 298U of the Act was set out in full. It deals with orders that the Court may make in respect of conduct in contravention of Part XA of the Act. It is also common ground that the second respondent is, and at all material times was, an 'industrial association'. 7 The circumstances of this case are recorded in detail in the primary judgment. They are all relevant in relation to the determination of the relief that the Court may consider to be appropriate. In the circumstances, regard may also be had to the powers of the Court under, inter alia, ss 21 and 23 of the Federal Court of Australia Act 1976 (Cth) ('the Federal Court Act') in relation to conduct in contravention of Part XA of the Act. The basis on which that relief is sought is that it is necessary to remedy the reorganisation of the Group in which the employer companies, in alleged contravention of s 298K(1)(c) [a provision within Part XA of the Act] , altered the position of the employees to their prejudice. That remedy is sought in reliance on s 298U(e) of the Act. 14 Subject to the orders not interfering with the exercise by the administrators, acting lawfully, of their powers in respect of the employer companies, such orders were considered to be open to the Court. 15 The breadth of the powers of the Court under s 298U(e) and (f) of the Act were addressed by Madgwick J in Australian Municipal Administrative Clerical Services Union v Greater Dandenong City Council (No. By the use of the term "and any other orders", after the spelling-out of a number of specific kinds of possible orders, in my opinion the legislature made a fresh start as to the kinds of principal relief which the Court might order: any reasonable curial order was authorised. It must be borne in mind that conduct contravening Part XA may be of many different kinds and may occur in many different circumstances. The statutory phrase is aimed at giving the Court maximum power and flexibility do what it thinks appropriate in the circumstances. 17 In McIlwain v Ramsey Food Packaging Pty Ltd (No. 4) [2006] FCA 1302 Greenwood J made numerous declarations in respect of contraventions of s 298K(1)(a) of the Act, which falls within Part XA; ordered the payment of numerous penalties in respect of conduct in contravention of Part XA of the Act in accordance with s 298U and ordered the payment by certain of the respondents of compensation to certain individuals consequent upon their dismissal in contravention of s 298K(1)(a) of the Act for reasons proscribed by s 298L(1) of the Act, which also fell within Part XA of the Act. In ordering the compensation payments Greenwood J accepted the applicant's contention that s 298U(c), (e) and (f) of the Act, properly construed, were sufficiently broad to provide, in a proper case, a foundation upon which a sum analogous to general damages might be identified as compensation for the disturbance, disruption, loss of opportunity and loss of secure employment occasioned by the termination of employment in breach of Part XA of the Act (see [65]). The second step is to determine those things that have occurred in the lives of the individuals affected by the conduct that bear at least some relation to the contravening conduct. The third step is to determine whether those things arise in respect of the contravening conduct. The fourth step is to determine whether it is appropriate in all the circumstances to make an order that the affected individuals be compensated for the relevant events. If so, the fifth step is to determine "such amount as the Court thinks appropriate". He also failed to establish contraventions of s 298S(2)(a) (see [295(m), (n) and (o)]) and contraventions of s 170NC of the Act (see [296(p), (q) and (r)]). 22 As indicated at [31] in the primary judgment these proceedings were commenced on 27 July 2005 by the filing of an Application accompanied by a Statement of Claim. In relation to the contraventions of s 298SC(c) of the Act which were alleged the applicant claimed declaratory relief and orders imposing penalties under s 298U of the Act. Such further or other orders as the Court thinks fit. 24 In the primary judgment at [297] it was indicated that nine declarations should be made in respect of the contraventions recorded in paragraph [2] of this judgment. 25 In my opinion it would be artificial in the extreme to expand the declaratory relief from nine declarations of contravention to 21 declarations as proposed by the applicant. 26 The means whereby the applicant seeks to expand the number of contraventions is to say that when, for example, the third respondent made a representation on 19 January 2004 to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr, who were all gathered together at the same time and at the same place, to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or the second respondent, he contravened s 298SC(c) of the Act in respect of the making of the representation to Norm Philipp, further contravened the section by making the representation to Reinhard Philipp, further contravened the section by making the representation to Barry Sindel and further contravened the section by making the representation to Norman Philipp Jnr. 27 Section 298SC proscribes the making of a false or misleading representation about a subject matter. Once the representation has been made, it matters not that it was made to more than one person. The section does not require consideration to be given to the impact of the representation as made upon the particular positions of particular representees (cf Maritime Union of Australia v Geraldton Port Authority (No. 2) (2000) 94 IR 404 at 413 [41]). 28 I can see no reason for making the 21 declarations sought by the applicant in the draft Short Minutes of Order. 29 Whilst the respondents indicated a willingness to consent to declarations being made in the terms proposed in the primary judgment at [297], they have in their more recent 'Outline of Submissions by Respondents', faintly suggested that the making of declarations in respect of contraventions of s 298SC(c) of the Act is inappropriate. In the present case, there is an agreement that there has been a contravention by the respondent of s 187AA(1)(b) of the Workplace Relations Act . In my view, the making of a declaration reflecting that agreement would not be a proper exercise of the Court's power. I am aware that it has become a practice under the Trade Practices Act 1975 (Cth) ('the Trade Practices Act ') for applicants to seek, and for the Court to make, declarations that appear to do nothing other than reflect the fact that past conduct amounts to a contravention of provisions of that Act. Declarations in that form have often been made in cases in which the option of a penalty has not been available, but have also been made in cases where a penalty is an option, and even in cases in which penalties have been opposed. It is perhaps too late to protest about that practice under that Act, it having been sanctioned by the High Court of Australia, at least impliedly, in Rural Press Ltd v Australian Competition and Consumer Commission ... [2003] HCA 75 ; (2003) 216 CLR 53 at [89] ---[90] per Gummow, Hayne and Heydon JJ, by the failure of the High Court to condemn the making of declarations of that kind, even though it condemned the particular, rather vague, form of the declarations that had been made in that case. There have been a number of cases in which judges have made declaratory orders where they have not imposed penalties under s 187AA. In no case, so far as I am aware, has any judge engaged in discussion in reasons for judgment about whether the making of such a declaration is appropriate. Counsel for the applicant contends that the making of a declaration would send the right message to others that the law is being enforced. I am not sure that a case such as this would gain such notoriety that others would inevitably learn what they would learn from reading s 187AA of the Act, namely that it is unlawful to make payments to employees who are engaging, or have engaged, in industrial action. I think it would be unfortunate to be making any declaration in a case such as this, which I think would not tend to promote respect for the law. However, I would respectfully disagree with the observations of his Honour in respect of the making by the Court of declaratory orders in respect of conduct in contravention of the Act. Certainly, in the case of contraventions of Part XA of the Act which have been claimed, contested and ultimately decided adversely to a respondent or respondents, the grant of declaratory relief would be entirely appropriate. So much is made clear by the observations of Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ in Patrick Stevedores and of Madgwick J, Marshall J and Greenwood J in the other cases referred to above at [15]---[19]. 31 Separate declarations should be made in respect of the several contraventions of Part XA which have occurred and which are recorded in this judgment at [2] above. No distinction has been drawn in the case of the first, second and fourth respondents, between the different contraventions on their respective parts which were found to have occurred. Alternatively, any penalty imposed upon them should be 'at the lower end of the scale'. Secondly, the section requires that the discretion be exercised having regard to 'all the circumstances of the case'. Thirdly, in exercising the discretion the Court is to consider whether the imposition of a penalty is 'appropriate' in all the circumstances of the case, and, fourthly, any penalty must be imposed 'in respect of' the 'conduct in contravention of' Part XA of the Act. 38 Putting penalties to one side for the moment, it may also be observed with respect to orders, other than interlocutory or permanent injunctions, that the Court may think necessary to stop the conduct in contravention of Part XA or to remedy the effects of such conduct and any consequential orders that, firstly, s 298U confers a discretion on the Court as to whether to make such an order or orders. Secondly, the section requires that the discretion be exercised having regard to 'all the circumstances of the case'. Thirdly, in exercising the discretion the Court is to consider whether the making of an order or orders of the type or types mentioned is 'appropriate' in all the circumstances of the case, and, fourthly, any such order or orders must be made 'in respect of' the 'conduct in contravention of' Part XA of the Act. 39 Plainly, regard to 'all the circumstances of the case', whether in respect of the imposition of penalties or the making of other orders, requires that attention be given not simply to the contravening conduct itself but also to the context in which that conduct took place. 41 It is also appropriate to have regard to what has been referred to as 'the totality principle' so that where there have been numerous individual contraventions of Part XA of the Act, the penalties, in aggregate, in respect of the conduct in contravention of the Part, may be appropriate in all the circumstances of the case (see per Finkelstein J in CPSU, The Community and Public Sector Union v Telstra Corporation Limited ('CPSU') (2001) 108 IR 228 at 230 [7]). 42 In relation to the third respondent's conduct in contravention of Part XA of the Act, one contravention has been found, namely, that on 19 January 2004 the third respondent made a representation to each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr to the effect that in order to work on the Fairy Meadow site workers were obliged to join the first respondent and/or second respondent. At [142] of the primary judgment it was found that words to the effect of those deposed to by Mr Norm Philipp in his Affidavit were spoken by the third respondent to the persons mentioned on the morning of Monday 19 January 2004. If you haven't got a ticket you won't be starting. If you're not a financial member, you won't be starting. This is a union site. You can't throw people off site just because they don't want to be in the union. There's freedom of association laws and there will be legal problems if you try to force people to be in the union. 44 In the primary judgment at [133] the 'critical question' was posed as to whether 'what Mr Casper said with a view to encouraging non-members to become members and unfinancial members to become financial went beyond encouragement and should be construed as words of insistence directed at ensuring that all persons working on the site were financial members of the Union'. 45 On 28 March 2003 the third respondent had signed the 'CFMEU Code of Conduct for Union Delegates' form which recorded his agreement to abide, to the best of his capacity, by the Code of Conduct, which included an undertaking, perhaps appropriately described as a 'best endeavours' undertaking, to ensure that all workers on the Fairy Meadow site were financial members of the relevant union. The third respondent's practice, as recorded at [119] of the primary judgment, was to allow a few days' grace for non-members to join the Union of their own accord before they had to do so (see [142] of the primary judgment). 46 In relation to the third respondent's conduct in contravention of Part XA of the Act, only one contravention was found. 47 In all the circumstances of the case including, inter alia, the facts and matters set out at [97]-[98] and [114]-[142] of the primary judgment, one cannot construe the representation made by the third respondent on 19 January 2004 as a slip of the tongue or the product of inadvertence. It stands out as being deliberate. 48 The most that can be said for the third respondent is that he was a good union delegate and he was doing precisely that which the union expected of him as disclosed in its 'CFMEU Code of Conduct for Union Delegates' form. 49 It may be noted that, notwithstanding the contravening conduct, each of Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr were permitted to work at the Fairy Meadow site through to the end of January 2004 when Pro Finish Interiors Pty Limited's ('Pro Finish Interiors') work on that site was essentially complete. 50 Given the above matters and the violation of the objects of the Act which resulted from the contravening conduct of the third respondent, there is, in my opinion, a need for a penalty to be imposed upon him having a deterrent effect of both a specific and general character (see per Finkelstein J in CPSU at 230-231 [9]). 51 Documents tendered at the further hearing of the matter on the questions of relief and costs demonstrate that the third respondent served in the US Military for 21/2 years, undertaking 21/2 months' service in Vietnam in that time, that he is a good family man who has accepted responsibility for bringing up a granddaughter whose mother has a drug dependency problem, that he is considered to be reliable, helpful, caring, loving and patient, all of which are excellent human virtues. It is said of him that he is a law abiding person. However, in relation to his obligations under the Act it is clear that he effectively undertook to, and thereafter did, contravene one of the many provisions directed at ensuring freedom of association. 52 His contravention was serious. In all the circumstances it is appropriate to impose a penalty in respect of the third respondent's contravention of Part XA of the Act in the sum of $1,250. 53 The situation in relation to the fourth respondent is much worse. In his capacity as an organiser of the CFMEU in the Wollongong area, he engaged in similar conduct to that engaged in by the third respondent. However, his conduct was part of a vendetta being carried out by him, directed at unionising building sites in the Wollongong area and harming employers that were, in his estimation, 'anti-union'. 54 In relation to the fourth respondent's conduct in contravention of Part XA of the Act, two contraventions have been found, namely, that on 18 February 2004 he made a representation to Norm Philipp and Reinhard Philipp to the effect that in order to continue working on the Fairy Meadow site, or to work on the Wollongong site or any other site in Wollongong, each of Norm Philipp and Reinhard Philipp was obliged to join the first respondent and/or second respondent, and, that on the same day he made a representation to Anthony Summers to the effect that in order to continue working on the Fairy Meadow site or to work on the Wollongong site he was obliged to join the first respondent and/or second respondent. 55 The fourth respondent's visit to the Fairy Meadow site on the afternoon of 18 February 2004 was directed at dealing with workers at that site who were assisting Innovation Interiors Pty Limited with the performance of its plastering contract, whom he described as 'the former Pro Finish workers' and whom he believed were not financial members of the union (see [253]-[254] of the primary judgment). At [260] of the primary judgment it was found that words to the effect of those deposed to by Mr Norm Philipp were spoken by the fourth respondent to himself and his brother Reinhard Philipp. I accept that this was the case. 56 At [263] of the primary judgment it was found that words to the effect of those deposed to by Mr Anthony Summers were spoken by the fourth respondent to him on the same afternoon of 18 February 2004. 58 Notwithstanding the fourth respondent's knowledge that it was improper for the CFMEU or its employees or delegates to insist upon workers joining the union, nevertheless on 28 March 2003 he witnessed the third respondent's execution of the 'CFMEU Code of Conduct for Union Delegates' form which recorded the third respondent's agreement to abide, to the best of his capacity, by the Code of Conduct, which included the undertaking, referred to at [45] above, to ensure that all workers on the Fairy Meadow site were financial members of the relevant union. 59 In relation to the fourth respondent's conduct in contravention of Part XA of the Act, two contraventions were found. However, given the proximity of the making of the two separate representations, which gave rise to the contraventions, one to the other it is appropriate to view the two contraventions as arising out of one course of conduct. 60 The representations made by the fourth respondent on 18 February 2004 could not possibly be construed as slips of the tongue or as the product of inadvertence. They were deliberate. His conduct was contumacious. 61 The fourth respondent had told the third respondent that the Fairy Meadow site was a 'union site'. On 12 February 2004 the fourth respondent had warned Hansen Yuncken against retaining Pro Finish Interiors, a company which customarily engaged partnerships of which Mr Norm Philipp, Mr Reinhard Philipp and Mr Anthony Summers were members to carry out subcontract plastering work for it, as a plastering contractor at the Wollongong site because its principal director, Mr Spiro Repas, was 'anti-union'. On 16 February 2004 the fourth respondent had advised Hansen Yuncken that, in effect, the union had an issue with Hansen Yuncken awarding a plastering contract to Pro Finish Interiors because none of Pro Finish Interiors' employees were union members. The fourth respondent had gone on to say that if Pro Finish Interiors were allowed to continue working on the Wollongong site he would or should resign. However, he never actually said that he did not want Pro Finish Interiors on the Wollongong site. On 17 February 2004 the fourth respondent had a lengthy meeting at the Union's Wollongong office with Mr Suter of Pro Finish Interiors. During the course of this meeting the fourth respondent said in respect of the Wollongong site that it was going to be a union site. Well I'll fuckin' tell you they're not. 63 Documents tendered at the further hearing of the matter on the questions of relief and costs demonstrate that the fourth respondent is regarded as a dedicated and true professional, who is a genuine and committed defender of workers' rights. He is also regarded as a person who has a genuine concern for a safe working environment and one who behaves with integrity and honesty. However, in relation to obligations under the Act it is clear that he contravened one of the many provisions directed at ensuring freedom of association and, in doing so, flouted the relevant legal requirement. 64 His contraventions were extremely serious. But for the application of the totality principle, penalties at the top end of the scale would have been appropriate in respect of each contravention. 65 In all the circumstances, it is appropriate to impose a total penalty in respect of the fourth respondent's conduct in contravention of Part XA of the Act in the sum of $2,000 which should be apportioned between the two contraventions so that a penalty of $1,000 is imposed in respect of each contravention. 66 Whilst the liability of the first and second respondents for contraventions by them of s 298SC(c) of the Act are constructive in nature, their culpability is demonstrable given the involvement of their organiser, the fourth respondent, and their imposition upon the third respondent of an apparent requirement that he provide a 'best endeavours' undertaking to ' ensure that all workers on site are financial members of the relevant union' in accordance with their printed 'CFMEU Code of Conduct for Union Delegates' form. The third respondent's signature on that form, which was dated 28 March 2003, was witnessed by the fourth respondent. 67 Affidavits read by the respondents on the hearing on relief and costs, indicate that a Senior Legal Officer with the second respondent held seven 2 hour training courses for workplace delegates in October 2003 --- May 2005 under the title 'Delegates and their rights under the law'. It is noteworthy that the courses did not bear a title such as 'Delegates and their rights and obligations under the law'. The notes make no reference to the obligations imposed by the Act to protect the rights of the workers who choose not to be members of a union. 69 Under the heading ' THE ROLE OF DELEGATES ' in the speaking notes, attendees at the courses were to be reminded that '● you cannot force someone to join the union who does not want to --- you must try and persuade without crossing that line'. Unfortunately the conferral on workers of rights to freedom of association which would allow them to refrain from joining the Union if they did not wish to do so, did not rate a mention in the speaking notes or in the Union's standard Code of Conduct for Union Delegates form. 70 Between December 2005 and September 2006 the same legal officer conducted 11 training sessions with the Union's organisers about various aspects of the Workplace Relations Amendment (WorkChoices) Bill 2005 (Cth). They involved extensive powerpoint presentations. However, once again, they were silent on the rights of workers in respect of freedom of association. 72 An Affidavit affirmed by the Senior National Legal Officer for the Construction and General Division of the first respondent read at the hearing on relief and costs, contains no information to demonstrate that the Union has attempted to inform its organisers or union delegates that the Act aims to confer rights to freedom of association on workers. These documents have included relevant information in relation to the freedom of association provisions of the WRA. 74 The same Senior National Legal Officer has conducted 18 briefing sessions with organisers, officials, delegates and industrial officers on various aspects of changes to industrial laws between December 2004 and November 2006. He says that on the second day of a two day meeting in June 2005 attended by National and Branch Industrial Officers, the issue of freedom of association was 'dealt with' under the heading 'Some Recent Cases --- Reports from Branches'. Once again, the Affidavit is silent as to how the rights of workers to freedom of association under the Act were explained, if at all. 75 The second respondent's Senior Legal Officer has also affirmed that on 23 February 2007, that is to say after the judgment on liability was handed down in this matter and 'mid-hearing' on the questions of relief and costs, counsel for the respondents and the solicitor for the respondents 'undertook a detailed explanation of the "Freedom of Association" provisions of the WorkChoices legislation to Organisers of the Union'. Once again no evidence has been proffered as to what was said, although one might infer that guidance as to the importance of compliance with the freedom of association provisions was provided. 76 Whether that be the case or not, the serious nature of the contraventions of Part XA of the Act by the first and second respondents and the complicity of those respondents in the contravening conduct of the third and fourth respondents through their provision and use of the 'CFMEU Code of Conduct for Union Delegates' form warrants the imposition of significant penalties against those respondents in respect of their conduct in contravention of Part XA of the Act. 77 Whilst there have been six separate contraventions, each of which could attract a penalty of $10,000, it seems to me that, firstly, the contraventions referred to in [2(e)] and [2(f)] above, and also in [2(h)] and [2(i)] should be addressed on the basis that they arise out of one course of conduct. This calls for a reduction in the penalties which might otherwise be appropriate in all the circumstances of the case. 78 The constructive nature of the liability of each of the first and second respondents also warrants consideration in assessing what level of penalty is appropriate in all the circumstances of the case. I do not consider that contravening conduct by each of the third and fourth respondents, which simultaneously exposes both the first and second respondents to liability for the same contravening conduct in accordance with s 298B(2) of the Act, renders it appropriate that each of the first and second respondents should suffer the same maximum penalty, if a maximum penalty were, relevantly, in contemplation. 79 Having regard to these matters and to all the circumstances of the case, appropriate penalties would total $10,000 for each of the first and second respondents in respect of their conduct in contravention of Part XA of the Act which has been found to have occurred. 81 Without going into any greater detail in relation to the Court's powers than that provided at [8]-[19] above, it is appropriate and necessary in all the circumstances of the case to make orders for the destruction of Code of Conduct for Union Delegates forms which call upon delegates to use their best endeavours to ensure that all workers on a site are financial members of the relevant union. Conduct which encourages and leads to the contravention of provisions such as s 298SC(c) should be stopped. 82 In addressing whether, in all the circumstances of the case, it is appropriate and necessary to make orders to remedy the effects of the conduct of the respondents in contravention of Part XA of the Act, those effects need to be identified. 83 Put simply, the contravening conduct at the Fairy Meadow site on 19 January 2004 was indiscriminate. It mattered not that it was Norm Philipp, Reinhard Philipp, Barry Sindel and Norman Philipp Jnr who arrived at the Fairy Meadow site to commence work on that day. They were simply seen as new workers who had to, effectively, be told that the site was a union site and that if you weren't a financial member of the union, you wouldn't be able to work there. The workers who were so addressed were not to know that, in effect, the union would give them a few days' grace before they had to join. 84 The conduct of the third respondent cannot be regarded as 'one-off'. His contravening conduct was in fulfilment of the 'best endeavours' undertaking which the CFMEU had sought and obtained from him to ensure that all workers on the site were financial members of the relevant union. The Code of Conduct for Delegates form did not pay lip service to the freedom of association provisions of the Act. It was in direct conflict with the objects of Part XA of the Act, namely, to ensure that employers, employees and independent contractors were free to join industrial associations of their choice or not to join such associations. The Code of Conduct for Delegates form called for conduct to be engaged in which contravened Part XA of the Act. Section 298SC(c) fell within that Part. 85 The 19 January 2004 conduct in contravention of Part XA of the Act cannot be viewed in insolation. 86 Unlike the 19 January 2004 contravening conduct, the 28 February 2004 contravening conduct was discriminate. It was directed at Norm Philipp, Reinhard Philipp and Anthony Summers because they through their businesses provided sub-contract services to Spiro Repas' Pro Finish Interiors, the fourth respondent considered Mr Repas to be 'anti-union', and they were thought to be non-members of the Union. The fourth respondent had been doing his best to ensure that plastering work in the Illawarra area went to firms which favoured or at least were sympathetic towards unionism amongst their workers. 87 The contravening conduct was, in large measure, underpinned by the CFMEU's use of its quite improper Code of Conduct for Delegates form (see paragraph 10 thereof). 88 Part XA of the Act was intended to, inter alia, protect workers, whether employees or independent contractors, from being bullied into union membership. 89 The union's conduct, on the other hand, was directed at ensuring that workers became financial members of the union. Furthermore, it did so by means of an arguably improper, membership form, under which new members were confronted with barriers to withdrawal from their membership. 90 It may reasonably be inferred that the effects of the contravening conduct, in all the circumstances of the case, were to induce in workers at the Fairy Meadow site a belief that the CFMEU was entitled to insist on compulsory unionism and that little, if anything, could be done about it. 91 Such effects render necessary the making of orders requiring the first and second respondents, at their own expense, to publish notices in the local 'Illawarra Mercury' newspaper acknowledging the right of workers to enjoy the freedom of association for which the Act provides. The publication of such notices should reinforce in the minds of the CFMEU's officers and delegates, who should know better, that unionism is voluntary and also allay the fears amongst workers in the area that they must become union members if they are to secure work in the building industry. 92 An Affidavit which was read at the hearing on relief and costs indicates that the cost of a full page advertisement in the Early General News section of the 'Illawarra Mercury' newspaper on Monday to Friday is $4,548.60 plus GST per advertisement. 93 A requirement should be imposed on each of the first and second respondents that they cause to be published in the 'Illawarra Mercury' newspaper a full page advertisement containing a notice drawing attention to the rights to freedom of association for contractors and employees working or wishing to work on a building site in the Wollongong area and also the reason for the advertisement. 94 Whilst there may be undoubted benefits associated with the membership of the first and/or second respondents, those benefits must be demonstrated by the first and/or second respondents with a view to enticing workers in the building industry to join them of their own free will. The union has no right to take discriminatory action against any worker who chooses not to join or to insist that workers join the Union. That rule must yield to any relevant statutory provision to the contrary. As set out above at [20] a party to a proceeding in a matter arising under the Act shall not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. 96 The test for determining whether a proceeding is in a matter arising under the Act for the purposes of s 347(1) is whether the right or the duty that is sought to be enforced owes its existence to a provision of the Act (per Brennan CJ, McHugh and Gummow JJ in Re McJannet; ex parte The Australian Workers' Union of Employees, Queensland [No 2] [1997] HCA 40 ; (1997) 189 CLR 654 at 656). Established doctrine ... holds that the word has the same meaning in each of the sections in Ch III [of the Constitution ] in which it is used .... In both cases, the 'matter' determined in one court is separate and independent from the 'matter' determined in the other court even though each 'matter' arises out of the same factual substratum. They held at 529 [36] that the same legal controversy can give rise to separate matters because different courts can provide different remedies. 100 In Seven Network (Operations) Ltd v Media Entertainment and Arts Alliance [2004] FCA 637 ; (2004) 134 IR 19 Gyles J had to consider an appropriate order as to costs in circumstances where Seven Network (Operations) Limited had commenced proceedings under the Act for contravention of s 170NC. The application was subsequently amended to allege a breach of the Privacy Act 1988 (Cth) and of the Copyright Act 1968 (Cth). A claim was also raised in respect of an alleged breach of an equitable obligation of confidence. The latter claim was not pursued. The applicant's claims for relief under the Act failed. However, injunctive relief and other orders were made in its favour in respect of the breaches of the Privacy Act and the Copyright Act . One of the questions which his Honour had to determine was whether or not s 347 of the Act 'immunised' the respondents from liability for any order for costs in the proceedings even though they lost in respect of the claims made under the Privacy Act and the Copyright Act . Indeed the respondents went further and submitted that the proceeding instituted under the Act, which failed, had been instituted vexatiously or without reasonable cause, thereby entitling them to costs. Gyles J was not satisfied that the institution of the proceeding was either vexatious or without reasonable cause. However, his Honour proceeded to determine that the discrete federal claims under the Privacy Act and the Copyright Act were not 'in a matter arising under' the Act within the meaning of s 347. His Honour proceeded to order costs against the parties who were unsuccessful in relation to the claims for breach of the Privacy Act and of the Copyright Act to the extent that they were costs which would not have been incurred in relation to the s 347 cause of action in any event and were only attributable to the other successful causes of action. 101 It is clear in the present case that the proceeding which was instituted by the applicant was in a 'matter arising under' the Act. Whatever other 'matters' may be inherent in the one legal controversy, the present case involved a proceeding in respect of a controversy which arose under the Act, whether the claims for relief be expressed as being made under s 170NC, s 298S(2)(a) or s 298SC(c). 102 Section 347(1) does not allow for separate determinations to be made in respect of costs by reference to different statutory claims arising from the one legal controversy. For the respondents to succeed in securing an order for costs they must demonstrate that the whole of the proceeding was instituted vexatiously or without reasonable cause. They cannot secure an order for costs referrable to the success or failure of individual claims within the one proceeding in the one matter arising under the Act. 103 The respondents' submission that one can differentiate, in terms of an appropriate costs order, between successful claims and unsuccessful claims under the Act is not supported by the judgment of Wilcox J (his Honour then serving as Chief Justice of the Industrial Relations Court of Australia) in Shackley v Australian Croatian Club Ltd ('Shackley') (1996) 141 ALR 736 or the judgment of Black CJ, Tamberlin and Sundberg JJ in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271. 104 In Shackley , Wilcox J considered the meaning of the word 'proceeding' in the expression 'proceeding ... in a matter arising under the Act'. His Honour did not hold that a claim for relief founded on one section of the Act constituted a different proceeding from a claim for relief founded on another section. What his Honour decided was that an application for review by a Judge of a judicial registrar's decision may itself be seen as a proceeding in a matter arising under the Act. As the Full Court observed in Commonwealth of Australia v Construction, Forestry, Mining and Energy Union at 273 [8] Wilcox J had held that '"proceeding" included a subsidiary application made in the course of the principal action: see at 737--- 745'. 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. 106 The applicant's proceeding was not instituted vexatiously or without reasonable cause. 107 In any event I am not satisfied that, in respect of any of the claims under s 170NC, 298S(2)(a) or s 298SC(c), where the claimed contraventions were not made out, those claims were raised vexatiously or without reasonable cause. 108 There should be no order as to costs.

breadth of relief available for conduct in contravention of part xa of the act circumstances in which declaratory relief should be granted principles governing the imposition of penalties when orders are appropriate and necessary to stop the contravening conduct and/or remedy its effects held: declarations should be made and penalties imposed; destruction of code of conduct for delegates forms ordered along with the publication of notices acknowledging the rights of workers to enjoy the freedom of association for which the act provides workplace relations

Having determined that the affairs and assets both joint and several of the bankrupts were such that his administration may need to be divided into five separate bankrupt estates, the trustee now seeks directions of the Court under s 134(4) of the Act as to how the assets of the bankrupts of which he has taken control ought be allocated to the various estates. 2 While s 134(4) of the Act empowers a trustee to seek directions "in respect of a matter arising in connexion with the administration of the estate", it is well accepted that the Court is not for that reason obliged to give the directions sought: Re Driller (1972) 21 FLR 159. The proper subject of directions, in my view, is the manner in which a trustee should act in carrying out his or her functions as such: cf Re G B Nathan & Co Pty Ltd (in liq) (1991) 24 NSWLR 674 at 679. Their proper effect, if full disclosure has been made to the Court of the material facts, is to protect the trustee from liability to a creditor or a bankrupt for a breach of duty of office for things done in accordance with the directions: see generally the decision of Sackville J in Sutherland (in matter of Scutts) [1999] FCA 147 at [9] ff. The s 134(4) procedure is not of itself an appropriate vehicle to determine the substantive rights of creditors as against a trustee in bankruptcy or a creditors amongst themselves: Scutts , at [14]; see also Re Lofthouse [2001] FCA 25 ; (2001) 107 FCR 151 at [9] . By 1990 Colin and Marlene Weber, who were husband and wife, conducted a partnership business as grain dealers under the name "Weber Agencies". In 1996 their son, Craig, was admitted to the partnership. I am informed that the trustee has not located any partnership agreement. 4 Colin and Marlene purchased real property in Bordertown, South Australia, approximately twenty years ago to be used as their matrimonial property ("the Bordertown property"). They were registered as joint tenants of the property. They later transferred one undivided third part of this property to Craig for which he was registered as a tenant in common. Though the partnership business was operated from this property, the trustee has formed the view that the property itself was not an asset of the partnership for reasons he gives in his affidavit. That is not a matter into which I need inquire. The partnership overdraft with the Commonwealth Bank of Australia ("the CBA") was secured by this property. 5 The three Webers resided at the Bordertown Property until 1997 when a house in McLaren Vale ("the McLaren Vale Property") was purchased and Colin and Marlene commenced residing there. That property was registered in the joint names of Colin, Marlene and Craig and partly funded by a loan to all three by the CBA. Craig continued to reside in the Bordertown property. 6 In late 2000 Craig transferred his interest in the McLaren Vale property to his parents. He obtained a loan from the CBA which he used, in the main, to pay out the joint loan taken out by him and his parents when purchasing the McLaren Vale property. The partnership's overdraft was in turn then secured on the McLaren Vale property. The intention is that when the parents die, under joint tenancy he will then own the property outright. The file of the conveyancer who dealt with the transfer of Craig's interest in the McLaren Vale property was put in evidence. It revealed that in mid June 2000 it was envisaged that a composite of transactions was envisaged in which a one third interest in the Bordertown property was to be sold to Craig and Craig's interest in the McLaren Vale property was to be transferred to his parents. Stamped transfers were prepared to those ends. It also indicated the significant costs by way of government charges that would be incurred particularly on the Bordertown property ($5,392) relative to the McLaren Vale property ($1,530) were both transfers to be effected. In May 2001 Colin and Marlene sold the McLaren Vale property. 8 Several months earlier Colin and Marlene purchased as joint tenants a property at Hayborough ("the Hayborough property"). They later built a residence on it. The trustee has concluded that this property was not partnership property. 9 In realising the assets of the bankrupts the trustee (i) sold (a) the Bordertown property which produced a net balance of $115,377.00; and (b) the Hayborough property for which the net balance was $146,653.93; and (ii) has received partnership assets amounting approximately to $230,800. There are, it seems, creditors whose proofs have been admitted for all of the estates except for Marlene's separate estate. 11 Some number of the creditors, by virtue of their contracts with the partnership and its members which impose joint and several liability, are creditors of both the joint partnership estate and the partners' separate estates. Section 95 has its provenance in English Bankruptcy legislation provisions originating in the Bankruptcy Act 1861 (UK) s 152 and achieving its presently relevant form in the Bankruptcy Act 1883 (UK) Sched II r 18 (see also Bankruptcy Act 1914 (UK) Sched 2 r 19). The English legislation was copied in r 244 of the Rules made under the Bankruptcy Act 1924 (Cth) . While the English and Australian legislation to which I have referred did not totally abolish that rule, it rendered the rule "[p]ractically of little consequence": see the short version of this history in Lindley and Banks on Partnership , 27-164 --- 27-167 (18 th ed, 2002). As there pointed out, the common law rule was in real terms confined to torts, frauds etc: see e.g. Ex p Adamson; In re Collie (1878) 8 Ch D 807. The view expressed by Street J merely reflected long standing English authority to the same effect: see Ex p Honey (1871) LR 7 Ch App 178; and what was earlier understood to be orthodox Australian law: see Eastman, Commonwealth Bankruptcy Act 1924-1933 , 650-651 (2 nd ed, 1940). 16 There being nothing in this matter to suggest that it falls within those exceptional cases not covered by s 95, a creditor to whom the Webers are jointly and separately bound on distinct contracts has a statutory entitlement to prove in both the joint and several estates. 17 I should add for the sake of completeness that the rule that only one proof may be lodged against a single estate in respect of each debt of that estate: see generally Western Australia v Bond Corporation Holdings Ltd (1992) 37 FCR 150 at 161-164; has no present relevance. 19 It was held by the Full Court of this Court in Re Francis; Ex parte Official Trustee in Bankruptcy (1988) 82 ALR 335 that the bankruptcy of one of two joint tenants severs the joint tenancy with the interest of the bankrupt vesting in the Official Trustee or a registered trustee under s 58 of the Act, and the remaining co-owner becoming a tenant in common with the Official Trustee or trustee. Nor is there any unity of time between the two estates. The unity of interest also does not exist because the interest of the Official Trustee is impressed with his responsibilities under the Bankruptcy Act 1966 and may, and very likely will, be of less duration than that of his co-owner. 20 Boots' case raised for the consideration the operation of s 110 of the Act in circumstances in which a husband and wife (a) carried on a business in partnership; (b) jointly owned real property which was not partnership property; and (c) were bankrupted at the same time. In holding that that property was part of the joint estate, Riley J clearly proceeded on the premise that no severance of the joint tenancy resulted from the contemporaneous bankruptcy of the joint tenants. The dictum quoted above from Re Francis endorsed the correctness of that premise. In this matter I am being asked to deal directly with whether the Full Court's dictum and the premise of Boots' are correct. 22 I am satisfied that they are, while acknowledging that the concept of joint tenancy does not accommodate itself easily to the scheme of the Bankruptcy Act at least where the property held as joint tenants is not partnership property and the joint tenants are made bankrupt at the same time. I exclude from this comment jointly owned partnership property for this reason. Such property will necessarily constitute part of joint estate on the winding up of the firm irrespective of whether the property co-owned is held by the partners as joint tenants or as tenants in common: cf Partnership Act 1891 (SA) s 2(1)(a) , s 20. In the case of non-partnership co-owned property, it will only be capable of forming part of the joint estate of joint debtors if that co-ownership is as joint tenants. If the co-ownership is as tenants-in-common, the co-owner's shares on their bankruptcy will form part of each's separate estates. 23 There is now a significant body of Australian case law in addition to Re Francis to the effect that the bankruptcy of a joint tenant severs the joint tenancy at law (if the land in question is old system land) or in equity (if the land is held under a title registration system), the involuntary alienation worked by s 58 of the Bankruptcy Act effecting the severance in either case: see generally Sistrom v Urh (1992) 40 FCR 550; Re Holland; Ex parte Official Trustee in Bankruptcy (1985) 5 FCR 165; Re Prestia [2001] FCA 792 at [23] - [24] . As Re Francis indicates, that involuntary alienation severs at least two of the "unities" (i.e. of interest and of time). 24 When one turns to where joint tenants are made bankrupt at the same time as joint debtors, a somewhat more complex state of affairs exists. Section 110(1) in express terms contemplates that, in such a case, a joint estate does come into existence. I consider the section envisages that where jointly owned property is alienated to the Official Trustee or trustee by s 58 that property retains that character in the Official Trustee's or trustee's hands. And it does so because as between the joint tenants no act was done by, or to, either or both of the bankrupts other than the bankruptcy itself and its s 58 consequence which could require that the property no longer be considered as joint property to be applied in the payment of their joint debts. To say that the very act which makes the joint property of both available to be utilised under s 110 (i.e. the joint bankruptcy) has the effect of severing what was joint property until that moment is to negate what I consider to be the manifest purpose of s 110. I do not consider that the section requires that construction, hence my agreement with the dictum in Re Francis . 25 Having reached this conclusion I would have to say, though, that I have some difficulty in seeing a principled operation for the right of survivorship of a joint tenant were one of the bankrupts to die during the course of the administration either before or after the jointly owned property was sold. 26 Accordingly, I would direct that the interests of Colin and Marlene as joint tenants in both the Bordertown and Hayborough properties be allocated to the joint estate of Colin and Marlene, this being the only joint estate of which they alone are joint debtors. While they are also joint debtors for the purposes of the partnership estate, the joint debtors for that particular estate are not limited to them alone. They include Colin as well. 28 The trustee is not seeking a direction as to whether in the circumstances Craig could have maintained an action against Colin and Marlene "for specific performance to rectify the manner in which he held his interest in the Bordertown property [sic]". Rather, what is sought are directions as to whether he should take any further steps in relation to whether a claim exists and, if so, what steps should be taken in relation to dealing with that claim. The trustee acknowledges that any claim Colin might have has vested in him and that Colin "has no right to bring or prosecute proceedings to protect, enhance or add to the property of which he has been divested on bankruptcy": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 136. 29 The directions sought are not ones I am prepared to give notwithstanding that they may be of a type that a trustee properly could seek (i.e. concerning the incurring of expense to ascertain whether legal proceedings may be in the interests of creditors and, if there is the prospect of a surplus, the bankrupt). By way of analogy, trustees commonly approach courts under the provisions of the Trustee Acts that obtain in most Australian jurisdictions for directions as to whether to sue or to defend an action: see Jacobs' Law of Trusts in Australia [2134] (7 th ed, 2006). 30 I would preface what I have to say with this comment. A successful claim by Craig against his parents would not result in a nett accretion to the totality of the joint and separate estates being administered by the trustee. However, depending upon whether the outcome of that action was to give Craig a joint tenancy with his parents in part of the Bordertown property or only an additional several interest, the result of his claim could affect both the partnership estate and the joint estate of his parents (in the event of a joint tenancy finding) or the joint estate of his parents and his own separate estate if his additional interest in the property was that of a tenant in common. 31 Turning to my reasons for declining to give any directions, the materials put before me are opaque and are quite inadequate insofar as they reveal the possible basis of any claim or claims that might be made. Is it to specifically enforce a contract, in which case what contract and is it in writing: cf Property Law Act (SA) s 29. Is it a Holroyd v Marshall type constructive trust claim based on the consideration for the transfer of an interest having been executed in the steps taken by Craig in relation to the McLaren Vale property: Meagher, Gummow and Lehane's Equity: Doctrines and Remedies , (4 th ed, 2002)? Is the claim based on equitable estoppel? Etc. Equally, with any possible claim being likely to turn critically on the intentions and actions of the three bankrupts, there seems to be no material at all before me from them which might illuminate the matter. I am simply asked to speculate. While I do not have to determine whether or not any proposed proceedings will or will not be successful, I need to investigate the matter sufficiently to determine whether or not any such proceedings would be fruitless: cf Re Lemon Tree Passage & Districts RSL and Citizens Club Cooperative Ltd (1987) 11 ACLR 796 at 799. There is insufficient material before me to make this determination let alone a determination as to whether it would be worthwhile for the trustee to further investigate a possible claim by Craig: Re Lemon Tree Passage , at 799. Hence I decline to give the directions sought.

application for directions pursuant to s 134(4) of bankruptcy act 1966 (cth) husband, wife and son in partnership husband and wife joint tenants of non-partnership properties son tenant in common of one such property alleged intention for son to be joint tenant all 3 made bankrupt simultaneously multiple bankrupt estates. proof of debt whether a creditor can lodge proof in joint and separate estates when bankrupts jointly and separately liable to creditor whether creditor required to elect estate whether bankruptcy severed joint tenancies whether trustee should ascertain intention of parties regarding son's claim to joint tenancy. bankruptcy bankruptcy

I have received those submissions and heard further from the parties. The following issues arise for my determination: whether to refix at all, and if so, when, the requisitioned general meeting; whether to make any order affecting the record date of any requisitioned meeting; and costs. The meeting being so requisitioned in accordance with the Corporations Act 2001 (Cth) ('the Act') should proceed. Even if practical considerations were in favour of not refixing a date for the adjourned meeting (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212, per Mandie J), I do not consider I should adopt this approach where the Act places an obligation on the directors to call and arrange to hold the general meeting so requisitioned. Further, the meeting is an adjourned meeting: (see eg Jackson v Hamlyn [1953] Ch 577, and Scadding v Lorant (1851) 3 HLC 418). The adjourned meeting should not be delayed longer than necessary. The procedural steps required to be taken are not those of a new meeting. Notice will need to be given of the adjourned meeting, but not necessarily of 28 days. I observe that the general meeting has already been effectively adjourned for more than one month. A new notice of the resumed meeting would be required to be given by operation of s 249M of the Act. However, as s 249M of the Act is a replaceable rule, the constitution of LFE replaces its operation by not requiring any such notice. This does not mean that the Court cannot, if an order is made under s 1322(4)(d) of the Act, extend the period of the holding of the general meeting, make a consequential or ancillary order directing notice to be given of the resumed meeting. However, 28 days notice would not be required as a matter of law. In my view, the adjourned meeting could be undertaken within two weeks. I propose to order that the time for the holding of the general meeting be extended to no later than on or before 23 October 2008. It is appropriate, as a consequential and ancillary order, to order that the notice of such resumed meeting be given within a certain time. I will assume I have the discretionary power to permit the convenor of an adjourned meeting to alter the record date. The first defendant has applied for such an order, and it has the onus of proving that no substantial injustice will be or is likely to be caused to any person if an order is made: (see s 1322(6)(c) of the Act). There has been much discussion of the share trading that has taken place since 21 July 2008, the existing record date. There is still some doubt as to the actual change of beneficial ownership in the shares. However, I do not regard this as significant. Normally an important matter is to ensure that at the time of voting, those entitled to vote reflect as far as possible the current membership of a company. The Court should endeavour to make, in accordance with the general policy of the law, the vote of a meeting reflect the views of shareholders identified and entitled to vote at a time as close as possible to the holding of the meeting: (see In the Matter of Village Roadshow Limited (No 2) (2004) 22 ACLC 212) at [6], and Myners, Review of the Impediments to Voting UK Shares (January 2004) at [18]). I have come to the view that, despite the lapse of time, I should not, even if empowered, make an order changing the record date. It seems to me the adjournment has effectively come about because of a Court order, which was to maintain the status quo, pending resolution of the dispute. Further, I am not satisfied that, in making any order changing the record date, no substantial injustice will be, or is likely to be, caused to any person, including those who acted on the basis of the resumed meeting being merely an adjournment of the original meeting. In my view, in the case of an adjourned meeting, and in the absence of special circumstances, the record date should not be changed. This is resisted by Bell. Apart from the issue of the first trial, Bell does not put forward submissions against an adverse order as to costs on a party---and---party basis. Essentially, it was argued that Bell conducted the trials in a way that was plainly unreasonable. Further, the first defendant relies upon a Calderbank letter to seek indemnity costs (or solicitor-client) costs from 2 July 2008. The question then arises whether it was unreasonable for Bell not to accept the Calderbank offer contained in the Calderbank letter, assuming the offer was to be so treated. Undoubtedly, Bell's case was founded on a series of varying and implausible conjectures, which I found were explicable and could not be a basis for a determination in favour of Bell. Moreover, Bell had the advantage of the first trial and the decision of the Full Court to consider its case before embarking upon the second trial. It was argued by Bell that no order as to costs should be made as the application was made in the public interest. I do not consider that, even if there was a public interest element in this proceeding, this would be reason to make no order as to costs. Bell brought this proceeding to primarily protect its own interests, and was eventually unsuccessful. Nevertheless, I do not consider that Bell should pay any costs on an indemnity basis. Up until the second trial, there were objective matters which gave some basis to continue with the proceedings. That inference was not inevitable but much depended on when it was to be inferred that the directors of LFE learned of the acquisition by a large shareholder of about 7% of the issued stock and what was inferred to be the state of mind of the directors at that time. The making of those inferences depended upon a number of intermediate findings of fact, none of which was made by the primary judge but, no less importantly, none of which was rejected by the primary judge. Some of those intermediate findings of fact necessarily depended upon what assessment was made of the credibility of certain evidence given by particular witnesses and, for that matter, the credibility of the witnesses generally. They are not findings of fact which this Court can make based only on the transcript of evidence. They were important witnesses, and the acceptance of their evidence by the Court was significant in a final determination dismissing the proceeding. I do not think, in view of the approach taken by Finkelstein J and the Full Court, that Bell needed to capitulate completely at the time of the offer, especially without a complete picture of the evidence to be called before me. I do not accept the submissions of the defendants that the result in this case was inevitable which Bell ignored. The case depended on an important part of the oral evidence of the individual directors, which was appropriately tested, but in the end the evidence was accepted by the Court. Further, I do not consider that the Calderbank offer (assuming it can be so characterised) was unreasonably rejected. Obviously I take into account its rejection by Bell, but I pay higher regard to the time when the offer was made, the time allowed to consider the offer, the extent of the compromise offered, and the fact that the prospects of success as at the date of the offer were difficult to assess, involving issues of credibility and at a time before all the sworn evidence to be relied upon by the defendants was filed and served. For the reasons stated by Bell in its written submissions, I do not regard the conduct of Bell as being unreasonable: (see Kernaghan v Corrections Corporation of Australia Staff Superannuation Pty Ltd (No. 3) [2007] FCA 2018 at [13-14] per North J, and Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) (2005) 13 VR 435, 441). The question then arises as to what costs order is appropriate to make as to the first trial before Finkelstein J. The Full Court determined that the matter of costs of the first trial be considered after the re-trial determination. If the rehearing was based upon the same evidence as before Finkelstein J, then in view of the result, it would be appropriate to make an order for costs in relation to the first trial in favour of the defendants. However, as I have said, the defendants did call additional witnesses, which were important to the determination of this proceeding in favour of the defendants. These witnesses could have been called by the defendants at the first trial. The Full Court, in the passage referred to above in ordering a re-trial, referred to the necessary dependence on the assessment of the credibility of witnesses. I consider that no order should be made in favour of any party as to the costs of, and incidental to, the proceedings before Finkelstein J. Finally, as to the second and third defendants, I consider that their appearances on 31 July 2008 were appropriate and prudent, and that they should be entitled to their costs of that day. The second defendant further argued that Bell commenced and continued with the proceedings without articulating how it was entitled to any remedy against the second defendant, and despite comments made by Finkelstein J at the first hearing indicting he would grant no relief against it. It was contended that in the circumstances the second defendant should be awarded costs on an indemnity basis. The second defendant made no application for summary dismissal of the proceedings against Bell on this basis, and the matter proceeded by the second and third defendants being represented by the same Counsel and solicitors for the purposes of the trial. It seems to me that the second defendant was a proper party. It sought to be heard to oppose, on behalf of the beneficial owners, the cancellation of the relevant shares. I do not accept the arguments of the second defendant seeking indemnity costs because the joinder of the second defendant as a party was appropriate. Therefore, the appropriate costs orders which I propose to make are: The plaintiff pay the costs of the first defendant of the proceeding, other than costs of and incidental to the trial before Finkelstein J. The plaintiff pay the costs of the second and third defendants of the proceeding (including of and incidental to the hearing on 31 July 2008) other than costs of and incidental to the trial before Finkelstein J. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton.

adjourned meeting record date whether the record date should be amended for a requisitioned general meeting indemnity costs calderbank letter corporations costs

2 The Tribunal determined that the applicant is liable to pay compensation to the respondent pursuant to the Seafarers Rehabilitation and Compensation Act 1992 (Cth) (the Seafarers Act) in respect of an injury to the respondent's left knee in about June 2004. He has worked in the shipping industry since 1989, mostly as a steward. Between 2001 and 2004, he worked for P & O Ports Ltd as a stevedore, which involved loading and unloading ships. That work required the respondent to engage in some heavy lifting and frequent kneeling. 4 The respondent has some history of medical problems. In 1985, he fractured his left tibia and dislocated his left ankle. He recovered from this over a period of four months. He told the Tribunal that it has not caused him problems since. In 1990, he developed back pain while working as a steward. He told the Tribunal those symptoms had persisted, and he gets sciatic pain down his left side. In May 2002 he also had symptoms in his left knee when driving a truck with a heavy clutch, but the symptoms quickly resolved and (he said) he had no subsequent problems with his left knee prior to his employment with the applicant. In 2003, the respondent experienced pain in his right knee, which he attributed to his work as a stevedore. He was treated first by a physiotherapist and then by an orthopaedic surgeon, who performed an arthroscopy. The respondent returned to work two months after that operation, in a co-ordinating role rather than returning to physical work. 5 The respondent undertook a trainee integrated rating (TIR) course in 2004. 6 He then commenced employment with the applicant, a shipping company that operates the ship vessel Iron Chieftain between Whyalla and Port Kembla. He worked for a continuous period from 17 May 2004 to 20 July 2004. During that time, he worked as a steward during the morning, essentially involving cleaning duties, and on TIR duties in the afternoon for about two hours. The TIR duties involved various maintenance work on the ship, requiring him to work on each of the ship's six decks, using stairs or ladders to move between them. He did that mix of duties for about two weeks without difficulty. 7 The respondent said that he developed pain in his right knee, which he controlled by taking anti-inflammatory medication (which he had taken with him to the ship) and by favouring that knee. He then began to experience pain in his left knee. He said it became progressively worse and made kneeling especially difficult. He spoke to the bosun about this and as a result stopped doing tasks that involved kneeling but otherwise continued in his duties. 8 On 7 July 2004, he completed an employee notification form, in which he described his injury as: "Soreness stiffness and swelling in left knee. Has become progressively worse over last few weeks. Will be seeking medical advice during my leave. " Subsequently, in response to specific questioning by a doctor, he recalled one incident when he missed his step and struck his left knee on some machinery; his leg was bruised but he did not think much of the incident at the time. 9 The respondent told the Tribunal that he continued in his duties after that time, but would use the lift on the ship whenever possible, rather than taking the stairs, because use of stairs and ladders also made his symptoms worse. However, he would still use the stairs, on average about twelve times per day, sometimes because it was quicker and sometimes because one of the work areas (known as the tunnel) had no lift access. 10 When the respondent took leave later in July 2004, he received medical treatment on his left knee, culminating in an arthroscopy in August 2004. 11 The respondent made a formal claim for compensation for injury to his left and right knees under the Seafarers Act on 8 August 2004. Subsequently, it appears that the respondent's left knee condition has been the cause of the claimed ongoing incapacity. Began to favour that knee and then noticed pain in left knee after a while which became progressively worse. Decided to report it to captain but was able to continue to carry out my duties by taking anti-inflammatory until end of swing [period of continuous work]. Duly sought medical advice when I got home. Was referred to specialist. He attributed the injury to having to climb and descend stairs. He said also that he had had a similar injury in 2003 whilst working for P & O Ports Ltd at Port Adelaide, for which he had received compensation. 12 The respondent did not work for about one year after the arthroscopy on his left knee. He then worked as a cook on a dredge from October 2005 to December 2005. 13 The applicant rejected the claim. Hence the Tribunal's review. That involved a direct attack upon the truthfulness of the respondent. It also led the applicant to contend that the respondent's left knee injury was caused by serious and wilful misconduct. The bases of that claim included that the applicant had allegedly made false statements in, or omitted information from, a pre-employment medical examination form (the medical form) which he provided to Dr Macris to secure a certificate of medical fitness; that the respondent should have been aware that he was not fully fit for work as a result of having to alter his duties following the arthroscopy of his right knee in 2003 yet he continued working; the non-disclosure of the fact that he had received physiotherapy treatment only shortly before commencing work on the Iron Chieftain; and the taking of anti-inflammatory medication at the beginning of the period of work on the Iron Chieftain. It was put that the respondent knew he should not have undertaken that work. It was also contended that, by continuing to work on the Iron Chieftain as he did after being aware of increasing pain in his knees, the respondent so disregarded his own safety as to be guilty of serious and wilful misconduct. 18 In turn, the word "ailment" is defined relevantly to mean any physical disorder, defect or morbid condition (whether of sudden onset or gradual development) and the word "aggravation" is defined to include "acceleration or recurrence". 19 The issues raised on this appeal also require reference to some other provisions of the Seafarers Act. 20 Because the eligibility of the respondent to compensation is in issue, the definition of "employee" should be noted. Section 4 relevantly defines an employee as "a seafarer" and s 3 relevantly defines a seafarer as a person employed in any capacity on a prescribed ship, on the business of the ship. Section 6 makes it clear that a reference to an injury suffered by an employee is a reference to an injury suffered by the employee for which compensation is payable under the Seafarers Act. 21 There are also in s 10 particular provisions relating to diseases. Section 10(3) provides for certain circumstances in which employment contributes in a material way to the aggravation of a disease (a concept entrenched in the definition of "disease"). It relates to the making of a claim for compensation. (4) Strict compliance with an approved form referred to in subsection (2) is not required and substantial compliance is sufficient. The Tribunal made certain findings based upon his evidence. In particular, it accepted that the respondent did not have any symptoms in his left knee after the episode in 2002 whilst driving a truck until the pain in his left knee which developed during his employment on the Iron Chieftain. It also found that the torn meniscus identified during the arthroscopy in August 2004 probably pre-existed his employment with the applicant and was not the cause of the left knee symptoms he developed in his employment with the applicant. Then it concluded that, during the respondent's employment with the applicant, he suffered an aggravation of a pre-existing condition of his left knee which resulted in an incapacity for work. It also found that the employment on the Iron Chieftain contributed in a material way to that incapacity, and that this resulted in incapacity for work and the incurring of medical expenses. 24 As to the claim that the respondent's injury arose from serious and wilful misconduct on his own part, and so was not compensable, the claim foundered on the factual findings of the Tribunal. It said there was no basis for the respondent to have been aware that his duties during his employment on the Iron Chieftain would cause the injury to, or disability in, his left knee, which it had found was the compensable injury producing incapacity for work. And it also found that there was no causative link between the conduct which the applicant alleged amounted to serious and wilful misconduct and the compensable injury. In relation to that finding, the Tribunal observed that there was no evidence that Dr Macris would not have issued the medical form if the respondent had fully disclosed his medical history, or that the applicant would not have employed him if it had known in particular of the medical history concerning his right knee condition. And it specifically found that, even if the matters relied on by the applicant amounted to serious and wilful misconduct, that conduct did not cause the symptoms in the left knee which led to the respondent's incapacity for work. The Tribunal also found that both captains of the Iron Chieftain were, or should have been, aware that the respondent was having knee problems at work but that they nevertheless, in effect, expected the respondent to continue with his duties. 25 The Tribunal therefore set aside the decision under review, and substituted a decision that the applicant is liable to pay compensation to the respondent under the Seafarers Act for the injury to his left knee. The matter was remitted to the applicant to determine the amount of the compensation in accordance with the Tribunal's reasons. 26 By a separate decision given on 4 July 2006, the Tribunal ordered the applicant to pay the costs of the respondent of the proceedings, save in respect of one issue. There were six matters which, the applicant contended, involved errors of law by the Tribunal. The applicant said that any one of those matters, if made out, would result in the appeal being allowed and the initial decision that the respondent was not entitled to compensation under the Seafarers Act being restored. (2) That the respondent did not make a claim for compensation under s 63 of the Seafarers Act in respect of the injury which the Tribunal found he had suffered, so that compensation was not payable under the Seafarers Act in respect of that injury. (3) That the respondent did not suffer any aggravation of the pre-existing degenerative condition of his left knee, resulting in incapacity for work, but merely a temporary experiencing of pain evidencing, but not aggravating, that degenerative condition which does not entitle him to compensation under the Seafarers Act. (4) That, in any event, the alleged aggravation of the pre-existing degenerative condition of the respondent's left knee produced pain, but no change in the underlying pathology, and the pain itself did not produce any ongoing incapacity for work, so there was no entitlement to compensation for incapacity in respect of it. (5) That s 10(7) of the Seafarers Act applied in the circumstances, namely that the respondent had made a wilful and false representation that he did not suffer or had not previously suffered from the disease for which he claimed compensation, so his injury was not compensable. (6) That s 26(3) of the Seafarers Act applied to disentitle the respondent from receiving compensation because his injury was caused by serious and wilful misconduct on his part. 28 The respondent contended that the applicant had not raised before the Tribunal the issues numbered (1), (2), (3) and (5) above and had limited its opposition to the respondent's claim to the attack upon the respondent's credibility, and that it only sought findings that the respondent had pre-existing degeneration in both his knees and any worsening of symptoms in his left knee was caused by his serious and wilful misconduct. 29 The application by way of appeal is limited to questions of law. Section 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth) permits the Court to make findings of fact in certain circumstances, where such findings are not inconsistent with those made by the Tribunal and where an error of law on the part of the Tribunal has been made out, so as to finally resolve a proceeding expeditiously. The applicant on this appeal did not clothe its contentions with s 44(7). 30 It is clear from the Tribunal's reasons, and the written submissions of the applicant to the Tribunal, that the applicant did not raise before the Tribunal the issues identified in (1), (2) and (5) above, and probably also did not raise the issue raised in (3) above. There is no reference to those contentions in the Tribunal's reasons, and in particular ss 10(7) and 63 also were not referred to. 31 The applicant justifies the raising of those issues for the first time on appeal on the basis of an asserted obligation of the Tribunal to inquire into and correctly consider questions of law arising on the matter before it, even in the face of concessions or admissions by the parties. It relies upon Comcare v Fiedler [2001] FCA 1810 ; (2001) 115 FCR 328 at [36] --- [39] for that proposition. 32 I do not consider that that decision supports its contention. That case relevantly concerned the question of whether the Tribunal had erred in failing to address the question under s 24(2)(c) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) of whether the employee claiming compensation had undertaken all reasonable rehabilitative treatment for the impairment which was compensable. That consideration was relevant to whether the injury had resulted in permanent impairment, so as to entitle the employee concerned to a lump sum compensation payment. The Tribunal will, however, fall into error of law by failing to inquire of its own motion into, and make a finding on, an issue the subject of an admission or concession by a party that is material to its decision if there is reason to doubt that the admission or concession is factually justified. But in the absence of there being some reason to question the admission or concession, the Tribunal will generally be entitled not to inquire into the issue for itself, but to act on that admission or concession in making its decision. The Tribunal in those circumstances was quite entitled to proceed upon the basis that those matters were not contentious. It did not err in failing to address them. Consequently, the applicant is not now entitled to assert or cannot succeed in asserting that the Tribunal erred in law by failing to do so. 34 In addition, there are a few matters in respect of which it is not at all clear that, had the issues been raised by the applicant for consideration, the evidence would have remained as it was before the Tribunal. As discussed in more detail below, in the course of considering the several matters raised by the applicant, the matters now raised under (1), (2) and (5) above and possibly in (3) above may have led to there being more evidence before the Tribunal pertaining to them. For example, there may have been evidence from Dr Macris as to the significance, if any, of the additional medical history to him issuing the CMF to the respondent. There may have been evidence from Dr Bauze and Dr Brooks, and perhaps other evidence, as to the relationship between the diseased condition of the respondent's right knee and the aggravation of the diseased condition of his left knee. There may have been further evidence from the applicant about his state of mind at the time he was examined by Dr Macris concerning his capacity to do the proposed work on the Iron Chieftain. There may have been other relevant communications between the applicant and the respondent, or between the applicant and others such as medical practitioners. That is not of course intended to be exhaustive, or necessarily correct. It is really speculative as to how the hearing before the Tribunal would have proceeded if those issues had been properly signalled. Such considerations, however, do indicate that it would not be appropriate now to permit those matters to be raised: see. eg. Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 at 7-8; University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 483. I shall nevertheless consider each of the matters sought to be raised by the applicant, even though in some instances the material available may not be the full material which would have been available had the applicant raised those issues before the Tribunal. It submitted that the respondent was not lawfully employed as a seafarer, and therefore was not entitled to compensation under the Seafarers Act. That is because, so the argument ran, he did not have a valid certificate of medical fitness (CMF) under Pt 9 of the Marine Orders (Health --- Medical Fitness) (the Marine Orders) made under s 425(1AA) of the Navigation Act 1912 (Cth) (the Navigation Act ), as in force at the material time. 36 The applicant contends, based upon the findings of the Tribunal (made in relation to the issue as to whether the respondent had engaged in serious and wilful misconduct) and upon the respondent's own evidence, that the respondent's CMF was procured by the respondent misleading the examining doctor who issued the CMF about his fitness for work and his existing medical condition, and in doing so committed an offence under s 389 of the Navigation Act . Section 389 of that Act makes it an offence to make a false declaration, false statement or false representation in connection with an application or a proceeding under that Act. It is issued by a Medical Inspector of Seamen (MIS), after appropriate inquiries, if the MIS is able to attest to the true state of the health of the person seeking a CMF and can determine that that person is medically fit to perform the proposed duties: see cl 7.4.1. The CMF is to be in the specified form. Clause 7.3.1 requires an MIS to have regard to "Guidelines for the medical examination of seafarers and coastal pilots" in Appendix 2 to the Marine Orders. 39 A CMF was issued to the respondent on 17 January 2004. 40 The material before the Tribunal indicates that the MIS may have relied in part on a questionnaire about the respondent's medical history. [A: Yes. [A: No]. As noted above, the respondent was absent from work for about two months in 2003 because of a right knee injury; he did not disclose the arthroscopy he had undergone on that knee; and he had also previously had some back pain with associated sciatica and was taking anti-inflammatory medication for that. 42 However, even if this contention were available to the applicant on this appeal, I do not consider it would succeed. 43 The consequence of the issue of the CMF following the respondent having so misled the MIS is a matter to be determined according to the terms of the relevant legislation. The applicant's contention requires that consequence to be visited in two steps, namely to show that the CMF was not a valid certificate under the Marine Orders, and secondly to show that employment under the Seafarers Act based upon or in reliance upon a CMF which has been issued after the holder has provided misleading information to the MIS or an "invalid" CMF disentitles that person from being eligible for compensation under the Seafarers Act. 44 I do not think either of those propositions is correct. As to the first step, while it can readily be accepted that one of the purposes of the Marine Orders is to ensure that persons are not employed on ships in circumstances where they may put at risk the safety of the ship, that is but one consideration. The prescribed form of the CMF indicates that the MIS must address a range of issues, which may be relevant depending upon the particular proposed duties of the seafarer, including any restrictions on duties which the Master of the ship should be aware of. However, it would have been easy to have provided, if that was the legislative intention of the Marine Orders, that the provision of inaccurate or incomplete medical information to an MIS would invalidate the CMF. The Marine Orders do not say that. What is provided in s 389 of the Navigation Act is that, in certain circumstances, a criminal offence may have been committed. I have not received full submissions as to whether the application for a CMF is an "application or proceeding" under the Navigation Act , and I do not need finally to determine that question. What is apparent from the applicant's own submission is that the applicant asserts that the criminal sanctions specified by s 389 are available in the circumstances. More importantly, the terms of the Marine Orders do not support the contention. That indicates, to my mind, that the drafter of the Marine Orders chose to select that focus rather than to focus upon the quality of the information provided by the person who has applied for the CMF. It does not support the proposition that the issue of a CMF by an MIS in accordance with the Marine Orders may not have the character of being a CMF because it has been issued in circumstances where the applicant has mislead the MIS. The word "valid" is also defined in cl 1.1 of the Marine Orders. 45 The applicant submitted that Australian Meat Holdings Pty Ltd v Kazi [2004] 2 Qd R 458 supported its contention. In that case it was held that a contract of employment was void, so the injured person was not a worker within the meaning of s 12(1) of the WorkCover Queensland Act 1996 (Qld) and could not claim compensation against his employer. The definition of "worker" in s 12(1) was "an individual who works under a contract of service". It was found that the contract of employment was void, so that the injured person was not working under a contract of service and so was not a worker. The contract was found to be void because the claimant in that case was an unlawful non-citizen in Australia. Section 235 of the Migration Act 1958 (Cth) made it an offence for an unlawful non-citizen in Australia to perform work in Australia in the circumstances then applicable. Hence, the Court found that the claimant in that case could not enter into a contract of service: see especially at [12] --- [13]. A similar result was reached in WorkCover Corporation (San Remo Macaroni Co Pty Ltd) v Da Ping (1994) 175 LSJS 469. In deciding this question the court will take into account the scope and purpose of the statute and the consequences of the suggested implication with a view to ascertaining whether it would conduce to, or frustrate, the object of the statute. The Marine Orders, as I have said, may also be interpreted in that context. However, I do not think that it follows that a contract of employment procured by a person with a CMF which has been issued despite (or because of) misleading or incomplete information provided to the doctor concerned necessarily would frustrate that objective. The Marine Orders, and in particular the CMF, aims to ensure that the crew on a ship are physically fit for the duties which they are to undertake so that they are not a danger to themselves or to others or to the ship. Dr Macris undertook his own examination of the respondent. As a result of that examination, he observed that the respondent had normal use of the arms and legs, normal gait, and did not have any apparent defect of the bones or joints, enjoyed movements of the joints in the normal range and without pain, and did not have any restriction or pain in the movement of the spine. 48 It would follow from the applicant's contention that a misleading or inaccurate or incomplete disclosure on a medical information form, even one irrelevant to the particular person's fitness to undertake work proposed to be undertaken on a ship, would lead to the invalidity of the CMF. For example, through oversight, an applicant for a CMF may simply not disclose a previous medical condition (such as an appendix removed), and be visited with the consequence that the CMF itself is invalid, and (as the applicant contends) that there is therefore no valid employment subsequently undertaken on the basis of the CMF which has been issued. I do not think such a construction is necessary to fulfil the object of the Marine Orders as part of the service of the purposes of the Navigation Act . Nor does that construction provide the certainty which the CMF is intended to provide, as a foundation for employment; it would be ... a provisional foundation vulnerable to identifying at some later time --- and perhaps at a much later time --- that all along the employment has been invalid. Such an outcome does not lie easily with the definitions in the marine Orders to which I have referred. 49 In my view, the second step is equally problematical for the applicant. In addition, there is nothing in the Seafarers Act itself to support the contention for the reasons just discussed. An employee is defined in s 4 to include a seafarer, and a seafarer is defined in s 3 to include a person employed in any capacity on a prescribed ship. As a matter of fact, the respondent was employed on the Iron Chieftain operated by the applicant. On the clear wording of s 26 of the Seafarers Act, if the respondent as an employee suffered an injury which resulted in his incapacity for work, compensation was payable to him for that injury under the Seafarers Act. It would be a wholly disproportionate consequence of the applicant's contention that he would be ineligible for compensation, even if the non-disclosure or incomplete disclosure of his medical condition was accidental or through oversight, or if it related to a condition which had no relevance to his capacity to perform his duties. It is difficult to accept that outcome would have been intended in legislation which has a significant social objective. The analysis of the relative significance of the information which has been either not disclosed or inaccurately reported regarding the past medical history, and its relationship to the injury, or of the reasons for its non-disclosure or inaccurate disclosure, is not one upon which, in my view, the entitlement to compensation under the Seafarers Act are predicated. That may be one of the situations which, subject to considering the applicant's further contentions, ss 26(3) or 10(7) of the Seafarers Act is designed to cover. The disproportionality to which I have referred is a relevant consideration to the construction for which the applicant contends: cf Nonferral (NSW) Pty Ltd v Taufia (1998) 43 NSWLR 312 at 316. Indeed, the point was made in Visscher 147 FCR at 542 that a medical certificate is not conclusive of the question of fitness to undertake particular duties. It does not, either expressly or impliedly, deal with the contractual relationship between employers and employees. Moreover, it was contended, the respondent's evidence was that his left knee condition was brought about by reason of his right knee condition and how he had reacted to it whilst endeavouring to maintain his duties. 52 This, too, for the reasons I have given is a matter which I do not consider is open to the applicant to raise on this appeal as it was not raised as an issue before the Tribunal, and was not a matter which the Tribunal was in the circumstances therefore required to address. I shall therefore only briefly explain my reasons why, in any event, I consider that the contention does not succeed. The respondent, in the claim, indicated that his claim related to knee pain affecting both his left and right knees. He provided two medical certificates in support of his claim, apparently in accordance with the requirement of s 63(2)(b). The first was from his general practitioner, stating that he was suffering from a medial meniscal tear in the left knee, and the second from his orthopaedic surgeon said that he was suffering from a cartilage injury to his left knee. The applicant's contention would have the consequence of restricting the Tribunal to considering whether the torn cartilage in the respondent's left knee was a compensable injury, but precluding it from considering (as it did) whether there was some pre-existing condition in his left knee which had been aggravated by his employment activities. 54 In my judgment, ss 63(2)(a) and (b) are not intended to so restrict a claimant for compensation under the Seafarers Act. At the time a claim for compensation is made, it will often be the case that the precise nature of the injury or its aetiology (as ultimately found) will not be apparent either to the claimant or to his medical advisers: see e.g. Lees v Comcare (1999) 56 ALD 84 at 91. I consider that the nature of the injury as expressed in the claim was sufficient to put the applicant on notice as to the general nature of the injury or injuries which the respondent claimed to have suffered, so that the applicant could exercise its right to require a medical examination under s 66 of the Seafarers Act and to seek information about and from the respondent under s 67 of the Seafarers Act. It is not suggested in the submissions that the notification contained in the claim in any way impeded the applicant from undertaking those inquiries. In addition, as the course of hearing before the Tribunal illustrates, there was medical evidence adduced from both Dr Brook and Dr Bauze that the applicant had suffered an aggravation of his left knee disease unrelated to, or only marginally related to the medial meniscal condition in his left knee. The applicant permitted the proceeding to be conducted on that basis, including testing the medical evidence. It did not object to that evidence as being irrelevant to the claim, nor indeed could it sensibly have done so. 56 As senior counsel for the applicant pointed out, the distinction between "injury" and "disease" has had a long history under workers compensation legislation, deriving originally from the fact that disease was not in early such legislation compensable, as the compensation entitlement was limited to "injury by accident": see e.g. the discussion in Zickar v MGH Plastic Industries Pty Limited [1996] HCA 31 ; (1996) 187 CLR 310 at 315 --- 316; Kennedy Cleaning Services Pty Limited v Petkoska [2000] HCA 45 ; (2000) 200 CLR 286. 57 That distinction has been preserved, in a practical sense, by the definition of "disease" (incorporated into the definition of "injury") but with the additional element of causation contained in the definition of "disease", namely that the disease or its aggravation must have been contributed to in a material degree by the employment. Whether that causative relationship has been made out is a question of fact in the particular circumstances. 58 It is clear that the Tribunal proceeded on the basis that the respondent had a pre-existing degenerative condition of his left knee which constituted a "disease", and that his injury arose because that pre-existing degenerative condition had been aggravated. The Tribunal addressed the issue of causation incorporated into the definition of "disease" by finding expressly that the aggravation had been materially contributed to by the particular employment activities undertaken by the respondent. It also found expressly that that aggravation had caused incapacity for work. Those findings, in my judgment, were reasonably open to the Tribunal. It accepted the respondent's evidence that, prior to his commencement of employment on the Iron Chieftain, he did not have ongoing symptoms of pain in his left knee, and that after performing his duties for some time, he developed quite significant symptoms in his left knee which he found to be disabling. Pain brought on by work activity may constitute an aggravation of a pre-existing injury, even though no pathological change takes place: see Commonwealth v Beattie (1981) 53 FLR 191 at 197; Federal Broom Company Pty Limited v Semlitch [1964] HCA 34 ; (1964) 110 CLR 626. It made findings of fact on those issues. It did not invoke the assistance of s 10(3) of the Seafarers Act in reaching its factual conclusions, and indeed was not apparently invited to do so by the respondent. 60 In my judgment, the applicant's contentions on these two matters amount to no more than an attempt to relitigate the facts addressed by the Tribunal and do not demonstrate legal error on its part. The Tribunal has explained why it reached the conclusion which it did, based largely upon its acceptance of the respondent's description of his symptoms from time to time, together with his description of his activities at the time those symptoms commenced, and the medical evidence as to the existence of an underlying degenerative pathological condition in his left knee which, for the reasons it explained, it distinguished from the medial meniscus condition which he apparently also suffered in the left knee. Moreover, as the Tribunal indicated by its recital of the medical evidence, it was the significant onset of symptoms during the respondent's employment on the Iron Chieftain which led to him seeking medical advice, and in turn which led to the arthroscopic and associated operative treatment on his left knee. 61 I have discussed above that the applicant did not, as I understand the Tribunal's reasons, separately argue that the incapacity for work which the respondent asserted was unrelated to his compensable injury, namely the aggravation of his pre-existing degenerative left knee condition. That is a matter which, had it been identified as an issue before the Tribunal, may have led to further evidence being given. Although I have addressed these two issues together, strictly speaking it is only in respect of that part of the attack upon the Tribunal's reasons which asserts legal error on its part in finding the existence of a compensable injury producing incapacity for work that was ventilated before the Tribunal and may be ventilated on this appeal. 62 The applicant principally challenged the respondent's claim in that regard based upon its attack upon his credibility. The Tribunal did not accept that, in significant respects relating to those issues, the respondent was an unreliable witness and made findings of fact based largely upon his evidence. The applicant acknowledged that it could not directly challenge the Tribunal's assessment of his reliability as a witness on those matters or consequentially those findings of fact based upon his evidence. In my view, its findings on those matters were reasonably available to the Tribunal and there was no error of law in the way it reached those findings or in the findings themselves. The application of s 10(7) of the Seafarers Act to the circumstances was not raised by the applicant before the Tribunal, and was not therefore a matter which it had to address. It was entitled to assume, as it obviously did, that no issue arose under that section. 64 As in the case of certain of the other contentions sought to be advanced by the applicant on this appeal which I have found are not properly raised, I nevertheless briefly consider the merits of the applicant's contentions. 65 Section 10(7) relevantly provides that the aggravation of the respondent's left knee condition, namely the disease of pre-existing degeneration in his left knee, should not be taken to be an injury to the respondent if the respondent at any time, for the purposes of his proposed employment on the Iron Chieftain, made a wilful and false representation that he did not suffer, or had not previously suffered, from that disease. 66 It is important to pay proper attention to the precise wording of s 10(7). It deems a certain form of injury not to be an injury in the circumstances to which it refers. Its particular focus is upon a disease or an aggravation of a disease where there has been a wilful and false representation that the claimant did not, or had not previously suffered, from that disease. It is too general a proposition to say, as the applicant did at one point, that an employer's liability to compensate a worker under the Seafarers Act is removed if the employee has made a misrepresentation as to the employee's fitness for work. 67 The applicant has identified in its submissions a number of matters which, as accepted by the respondent, the respondent did not accurately and comprehensively report to the MIS. Specifically, it identified his representations that he had not been absent from work due to sickness or injury for more than 14 consecutive days over the preceding two years; that he had not received any surgical or chiropractic treatment; that he was not presently taking any medications; that he did not have, and had not previously had, "lumbago, sciatica or other back trouble", "any form of arthritis or stiff joints", "slipped discs or back or neck pain", "joint injuries", "injury of the neck or back", or "broken bones"; and further that he had said that he was not aware of any circumstances regarding his health which may interfere with the satisfactory discharge of his proposed duties. The Tribunal found that the answers to those questions in the form provided in support of his application for a CMF were inaccurate and incomplete. 68 The Tribunal, in the circumstances to which I have referred, did not address whether the applicant had made a false and wilful misrepresentation to the effect that he did not suffer, and had not previously suffered from, a degenerative condition in his right knee. The applicant sought to associate the non-disclosure of a degenerative condition in the right knee with the disease which the Tribunal found to have been aggravated, by treating the disease as pre-existing degeneration of both knees. 69 The applicant acknowledges that there is no false and wilful misrepresentation to the effect that he did not suffer, and had not previously suffered from, a degenerative condition in his left knee. That is the disease specifically which the Tribunal found had been aggravated by the respondent's employment with the applicant. The respondent's evidence was that he had previously had trouble with his left knee in 2002 when he had been learning to drive a truck with a heavy clutch, but that the problem had resolved following physiotherapy. It was not contended by the applicant that that circumstance was sufficient to have obliged the respondent by reason of s 10(7) to have disclosed specifically the previously degenerative condition of his left knee because it is now shown that he was aware of it. It is not a circumstance where the respondent failed to disclose a symptom of a disease in the left knee in circumstances where it ought to have been disclosed, as distinct from the suffering of a particular and temporary injury: cf Re Schofield and Comcare (1995) 38 ALD 124. 70 The medical evidence indicated that the respondent had an underlying degenerative condition of both his knees, but does not firmly indicate that those degenerative conditions were related, or that the incapacity caused by aggravation of the degenerative condition in the left knee was related to the degenerative condition in the right knee. Reference need only be made to the report of Dr Bauze of 12 September 2005 and of the respondent's general practitioner, Dr Chambers, in his report of 19 October 2005 discussed in the Tribunal's reasons. 71 The applicant submitted that "the relationship between degenerative conditions in knees is hardly controversial". That may or may not be correct as a matter of general medical science, but it does not address the particular findings of fact, or the particular evidence in this case. As its contentions indicate, there was some medical evidence considering the relationship between the degenerative conditions of the respondent's right knee and his left knee. The issue was not fully explored because, in the particular circumstances, it was not a matter upon which the Tribunal was required to make, or made, a finding favourable to the contention of the applicant. It merely found that the respondent had a degenerative condition of his left knee which had been aggravated by his employment with the applicant, leading to incapacity for work. That state of the evidence does not enable me to make any finding on the issue, as potentially authorised by s 44(7) of the Administrative Appeals Tribunal Act 1975 (Cth). 72 In those circumstances, in my judgment, the applicant has not shown in any event that the respondent made a wilful and false representation that he did not suffer, or had not previously suffered, from a degenerative condition in his left knee or had not suffered and did not suffer from the aggravation of that condition when he applied for his CMF or subsequently. In this particular case, the Tribunal did not make the finding upon which the applicant's contention is premised and in fact did not find that the degenerative conditions in the applicant's right and left knees were a single ailment, and should therefore be treated as a single disease. It made a different finding. The finding was open to it. 73 Consequently, the condition upon which s 10(7) would operate as a matter of fact to disentitle the applicant from compensation under the Seafarers Act has not been shown by the applicant to have been made out, and indeed its premise is inconsistent with the finding which the Tribunal in fact made. In my judgment, the Tribunal did not make that error. It was referred to authorities addressing whether a contract of employment could be terminated by an employer because of misconduct on the part of an employee. As the Tribunal pointed out, those cases required consideration of the particular contracts of employment, and whether there was a right to repudiate such contracts for breach of contractual conditions. The Tribunal then observed that its function was to interpret the words used in s 26(3) of the Seafarers Act. In approaching the matter in that way, I do not think the Tribunal is shown to have fallen into legal error. Nor did it do so in treating the authorities to which it was also referred, discussing when termination of employment was harsh, unjust or unreasonable within the meaning of legislation regulating workplace relations, as helpful but not directive as to the proper meaning of s 26(3) of the Seafarers Act. 75 The Tribunal adopted the view that it was necessary to consider the facts of the particular case to determine whether the conduct in question amounted to serious and wilful misconduct. That is consistent with the approach with the courts have taken to such expressions in the Seafarers Act and in its ancestors and analogues, including under the Workmen's Compensation Act 1897 (UK). See, e.g. Johnson v Marshall Sons & Co Ltd [1906] AC 409. Such an approach has been taken in Australian cases dealing with that expression: see Ismakovich v Broken Hill Pty Company Limited (1982) 49(2) SAIR 209; Comcare v Calipari [2001] FCA 1534 ; Richards v Faulls Pty Ltd [1971] WAR 129; Hills v Brambles Holdings Ltd (1987) 4 ANZ Ins Cas 60-785. That does not suggest, as the applicant contends, that the concept of "serious and wilful misconduct" is ambulatory. It simply indicates that the assessment of whether, in particular circumstances, serious and wilful misconduct has been established, is a question of fact to be decided in all the circumstances of the particular case. In my judgment, the Tribunal did not err in law in approaching the matter in that way. 76 The applicant then contended, assertively, that a misrepresentation as to a pre-existing injury in an application for employment would constitute serious and wilful misconduct. In its written submissions, it said that that was not a contentious proposition. However, it was clearly contentious in the proceedings before the Tribunal. In fact, the Tribunal rejected that proposition in the particular circumstances because it concluded that the respondent's conduct leading up to and including the time when he joined the Iron Chieftain did not amount to serious and wilful misconduct. 77 It is then necessary to address the applicant's contention of legal error on the part of the Tribunal on the facts as found by the Tribunal, subject to the applicant establishing that certain facts were found as a result of legal error on the part of the Tribunal or that the Tribunal did not make findings of fact which as a matter of law it was required to find. 78 Before addressing that contention, there is one additional observation I would make. It may be doubted whether a wilful and false representation made in seeking employment could constitute serious and wilful misconduct within the scope of s 26(3) of the Seafarers Act, in the light of the statute itself which provides separately for such conduct and the consequences of such conduct in s 10(7). 79 A similar statutory scheme and factual circumstances to those now under consideration were considered by Judge Stanley in Ismakovich 49(2) SAIR 209. It seems to me implicit from the inclusion of that provision in that section that the legislature did not regard the wilful making by a worker of a false statement concerning any prior injury as amounting to "serious and wilful misconduct": within the meaning of section 9(5), for, if such a statement was already embraced by that term, there was no necessity to enact that portion of the provision of section 90(1). However, I do not need to decide that question. 80 Even assuming that a wilful and false misrepresentation made in seeking employment could be brought within the serious and wilful misconduct exclusion of s 26(3), it is necessary for the applicant to have shown in the particular circumstances that there was in fact serious and wilful misconduct on the part of the respondent and that the misconduct caused the injury. 81 Misconduct is serious if it significantly increases the likelihood of serious injury: see Johnson [1906] AC 409; Calipari [2001] FCA 1534 ; Richards [1971] WAR 129. It found that he expected he would be able to fulfil his duties on the Iron Chieftain. Consequently, the Tribunal did not regard his conduct as serious and wilful misconduct because it did not regard that conduct, that is the misrepresentations relating to his previous medical condition, as the respondent exposing him or others to any significant and immediate risk of serious injury. That conclusion generally reflects the outcome of the medical examination conducted by the MIS. In addition, as the Tribunal observed, there was no misrepresentation regarding the respondent's left knee condition and no reason for him to think that his duties on the Iron Chieftain would cause any injury or disability in his left knee, that is the condition which led to his entitlement to compensation, subject to s 26(3) of the Seafarers Act. 83 The applicant accepts that the disentitling provisions of s 26(3) are applicable only if there is a causative link between the compensable injury and the asserted serious and wilful misconduct. It contends that the Tribunal failed to pay sufficient regard to the nature of the conduct, and that the Tribunal should have concluded that the failure of the respondent to provide his full medical history precluded the applicant from the opportunity to take any step to avoid the injury which did occur. The Tribunal did not accept those contentions. It found that there was no causal connection between the conduct of the respondent (which he accepted) and the particular injury which it found to have been compensable. It is not shown to have erred in that conclusion. Indeed, the Tribunal remarked upon the fact that there was no evidence, if the respondent had correctly filled in the medical examination report form, that the applicant would not have taken the respondent on as an employee. I accordingly order that the appeal be dismissed. The applicant should pay to the respondent his costs of the application. I certify that the preceding eighty-four (84) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

appeal from administrative appeals tribunal whether employee entitled to compensation for injury under seafarers rehabilitation and compensation act 1992 (cth) (the seafarers act) whether certificate of medical fitness invalid when procured by misleading information whether invalid certificate of medical fitness means employee not a "seafarer" under s 3 of the seafarers act whether content of notice given under s 63 of the seafarers act limits claim for compensation whether aggravation of pre-existing degenerative condition whether aggravation caused incapacity for work whether incapacity materially contributed to by employment whether employee made wilful and false representation about pre-existing disease whether injury cause by serious and wilful misconduct see above appeal from administrative appeals tribunal whether issues can be raised for the first time on appeal whether tribunal erred in not addressing certain questions not raised at hearing seafarers compensation workers compensation administrative law

The appeal is brought pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). The existence of a question of law is not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178 per Gummow J). The appealable error of law must arise on the facts as found by the Tribunal or must vitiate the findings made or must have led the Tribunal to omit to make a finding it was legally required to make. A wrong finding of fact is not sufficient to demonstrate error of law: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77-78. Where the decision of the Tribunal involves matters of fact and degree, then provided it applies correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365. Only in exceptional circumstances should the decision of the Tribunal not be the final decision: Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 145 (Fisher J); Commissioner of Taxation (Cth) v Cainero (1988) 88 ATC 4,427 (Foster J) . It is to leave to the tribunal of fact decisions as to the facts and to interfere only when the identified error is one of law. The Court will not be concerned with looseness in the language of the Tribunal nor with unhappy phrasing of the Tribunal's thoughts: Lennell v Repatriation Commission (1982) 4 ALN N 54 (Northrop and Sheppard JJ); Freeman v Defence Force Retirement and Death Benefits Authority (1985) 5 AAR 156 at 164 (Sheppard J); Repatriation Commissioner v Bushell (1991) 13 AAR 176 at 183 (Morling and Neaves JJ). The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error: Politis v Commissioner of Taxation (Cth) (1988) 16 ALD 707 at 708 (Lockhart J). In Tax Agents' Board v Bray (2004) 58 ATR 118 at [22], Hely J said that "Although careful consideration of the AAT's reasons is required, they must be read as a whole and considered fairly". 5 Adopting the approach of the Full Court and Hely J, the Tribunal's reasons in this appeal must be read sensibly, not seeking to perceive error, but concentrating on the task of the Court which is to interfere only when the identified error is one of law. It is permissible to analyse both the language and structure of the reasons of the Tribunal to determine whether a legally erroneous approach has been adopted, or whether the Tribunal has failed to properly appreciate the matter it was bound to consider (see Sinclair v Maryborough Mining Warden [1975] HCA 17 ; (1975) 132 CLR 473 at 479 (Barwick CJ) and Wu Shan Liang at 291 (Kirby J). 9 Therefore, the Board is required, in essence, to consider and determine whether the applicant is the prescribed fit and proper person. In determining the matter, the Board is directed by the legislature that a disqualifying factor for a person not being the prescribed fit and proper person is, relevantly, if the person is not of 'good fame, integrity and character': s 251BC(1)(d). This appeal does not require a consideration of the elements of whether or not a person is the prescribed fit and proper person, although the generality of the phrase 'good fame, integrity and character' is not to be limited by reference to whether the applicant has certain disqualifying convictions or is under sentence of imprisonment (see s 251BC(2) of the Act). The enquiry is whether the applicant is the prescribed fit and proper person, and the disqualifying factors set out in s 251BC(1) do not limit the generality of that enquiry (see s 251JC(1)), although it may well inform that inquiry. The fact that a person is not of good fame, integrity and character means that that person cannot be regarded as the prescribed fit and proper person. However, even if this or other disqualifying factors do not apply, the applicant may still not satisfy the Board that he or she is the prescribed fit and proper person. If not satisfied, the Board 'shall refuse' to re-register the applicant: s 251JC(2). 10 The provisions of s 251BC(3) do not detract from this ultimate issue of whether the applicant is the prescribed fit and proper person, and should not be confused with it. Once disregarded, those matters are no longer considered in the enquiry, and then a decision as to whether the applicant is the prescribed fit and proper person is made by the Board. If a conviction, act or omission of the applicant is not disregarded, it will need to be assessed, along with other factors, in order to determine whether the applicant is a fit and proper person if that inquiry can still be made where the disqualifying factors do not apply. It may well be that a particular conviction (other than a disqualifying conviction) is to be taken into account and not 'disregarded', but that, for one reason or another, taking into account all the circumstances, the Board may still be satisfied that the applicant is the prescribed fit and proper person. Again, of course, it is clear that if there is a disqualifying factor, there cannot be a finding in favour of the applicant allowing re-registration. 12 The other matter to observe is that the relevant time for the assessment of whether a person is the prescribed fit and proper person, is at the time of the relevant determination. This is made clear by the Act itself, for it is in considering the application that the Board needs to be satisfied that the applicant is the prescribed fit and proper person. I note the Act specifically uses the present tense. There is no express or implied legislative indication which provides for the assessment of the facts at any other particular date. I refer also to A Solicitor v Council of the Law Society (NSW) [2004] HCA 1 ; (2004) 216 CLR 253 at 268. 13 In view of s 43(1) of the AAT Act, where the matter comes before the Tribunal, the Tribunal must be satisfied that the applicant is the prescribed fit and proper person at the time of the Tribunal's determination. In reaching its decision, the Tribunal should consider for itself, as though it was performing the function of the relevant decision-maker, whether the applicant has satisfied the Tribunal he or she was the prescribed fit and proper person. 15 Upon an analysis of the structure and reasons of the Tribunal, in my view the Tribunal did not address the ultimate issue for its consideration and determination, but in reality only considered the question of the operation of s 251BC(3). 16 After setting out the relevant provisions of the legislation, the Tribunal then set out aspects of the applicant's circumstances, including 'Applicant's Practice Circumstances', 'The Applicant's Health', 'Delay in Lodgement' of Income Tax Returns', and 'Failure to Respond to Letters of the Board'. Under the heading 'Summary of Tribunal and Federal Court Decisions', the Tribunal then considered a number of cases on the content of the phrase 'fit and proper person' and the discretion under s 251BC(3). The Tribunal kept returning throughout its reasons to the phrase 'special circumstances', which could only be referrable to its consideration of the operation of s 251BC(3). Such references are made throughout the reasons of the Tribunal at [59], [65], [74], [77], [78], which precede or follow analysis of various matters pertaining to the applicant. 18 In my view, although there are also references to the phrase 'fit and proper person' and 'good fame, integrity and character', these matters were not considered in the context of the ultimate issue of whether the applicant was the prescribed fit and proper person, but in the context only of whether 'special circumstances' existed for the purposes of s 251BC(3). 19 Significantly, nowhere in its reasons does the Tribunal conduct the enquiry itself as to whether the applicant was the prescribed fit and proper person either at the time of its determination or at all. But on the evidence of the applicant's doctors, and himself at the hearing, all medication ceased at February 2003 and he was regarded then as enjoying improved health. I would have thought that there would have been greater diligence on his part to immediately set about preparing returns and having them lodged. It is noted from other evidence that at or about this time the applicant's accountancy practice stabilized and another employee accountant of considerable expertise was engaged. However the applicant's outstanding personal returns were not lodged until October 2003 and the returns for other entities were not lodged until April, May or June of the following year. That is, some eight months after the applicant's health had been restored and medication had ceased and after his practice had stabilized he first lodged his outstanding personal returns but the other returns were not lodged until a period of between 14 and 16 months later. Set against a background of two prior Magistrates' Court appearances and a suspension from practice it would have been incumbent on the applicant to show a degree of "good fame, integrity and character" if his prior omissions should in the special circumstances that he asserted, be disregarded . It was also submitted that if special circumstances are found not to exist, the only decision open to the Board, upon an application for re-registration is refusal to register. No other option exists, for example, to suspend, or admonish. I agree with those submissions. The Tribunal is required to consider, in the circumstance of the case under review, to determine whether if special circumstances do exist whether to disregard the "omission" of an applicant. If the decision to refuse re-registration is affirmed, it is open to an applicant to apply, without any period of prohibition, to the Board for registration. If that course is followed, the applicant, at the time of such an application will have the opportunity to demonstrate that he is fit and proper. Section 251K appears to apply only where an agent has been suspended or where his registration has been cancelled. In the present case it was the applicant's application for re-registration that was declined. 24 In my view, the Tribunal failed to appreciate the matter it was bound to consider and failed to address the ultimate issue for consideration, and in so doing made an error of law. 25 The above conclusion would lead to the appeal being allowed. As other matters have been raised in this appeal, it is appropriate to make the following observations. 26 Complaint was made by the applicant that the Tribunal erred in its consideration of the existence of 'special circumstances' as referred to in s 251BC(3) of the Act. In my view this complaint does not raise any question of law, and the Tribunal applied the correct construction of the term 'special circumstances'. 27 The term 'special circumstances' is not defined in the Act. It is used according to its ordinary meaning. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special. The Tribunal's conclusion that there were no special circumstances was a conclusion on a question of fact. It was a conclusion open to it on the facts as found. 29 Another complaint made by the applicant was that the Tribunal incorrectly took into account the charges against the applicant before the Magistrates' Court in 1990 for failing to lodge his 1989 return. I do not accept the Tribunal fell into error in this regard. There was nothing in the Act that bound the Tribunal to not take account of the applicant's appearance in the Magistrates' Court in 1990. At the hearing of that charge before the Magistrates' Court at Ballarat I pleaded guilty and was fined $500.00. Enquiries of the Magistrates' Court confirmed no recording of any conviction in regard to that charge and the imposition of that fine. This is consistent with no conviction being entered in the Court record notwithstanding the plea of guilty and the imposition of a fine. I believe I disclosed a conviction in relation to this matter in error when completing applications for re-registration as a Tax Agent in 1992 and 1995 lodged with the Respondent on 12 February 1992 and 16 March 1995 respectively ( T42 ) ( T45 ). 30 The applicant also contended that the Tribunal, by virtue of ss 85ZV and 85ZW of the Crimes Act 1914 (Cth) ('the Crimes Act '), was bound in the circumstances of this case, to not take account of the fact that the applicant appeared before the Magistrates' Court or the fact that he pleaded guilty to the charge. The operation of those two provisions under Div 3 of Pt VIIC of the Crimes Act --- ss 85ZV and 85ZW --- are, in express terms, made subject to Div 6 of Pt VIIC. Section 85ZZH relevantly says that Div 3 does not apply in relation to the taking into account of information by a tribunal established under a Commonwealth law for the purposes of making a decision. In my view, that provision is of general import, and does not just apply where a Tribunal is making a determination specifically referred to it in relation to a conviction, or where it is otherwise bound to take in to account a conviction. Accordingly, in my view, ss 85VZ and 85ZW have no application to the circumstances of this case. 31 Finally, other matters were raised by the applicant as to the Tribunal's failure to take into account certain matters, or reach various conclusions, which in my view involve no question or error of law. Each of the remaining grounds of the further amended notice of appeal and contentions went to the factual merits of the findings of the Tribunal, although as I have concluded, the Tribunal did not deal with the ultimate issue that needed consideration and determination, but considered the existence of 'special circumstances' for the purposes of applying s 251BC(3) of the Act. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Middleton .

appeal from decision of administrative appeals tribunal where applicant's application for re-registration as a registered tax agent refused under s 251jc of the income tax assessment act 1936 (cth) where tribunal failed to correctly apply test under s 251jc administrative law

Ms Paras commenced employment with the Department of Infrastructure of the State of Victoria in May 2003. From October 2003 she became a permanent non-executive employee of the Victorian Public Service. Ms Paras has specialised qualifications in the field of intellectual property law. Within the Department of Infrastructure she was employed in the Public Transport Division, advising on commercial and intellectual property matters. 2 The proceedings arise from the termination or purported termination of Ms Paras' employment on Friday 12 May 2006. The termination was effected by written notice from the Secretary of the Department of Infrastructure. The letter from the Secretary stated that it was the decision of the Department to end Ms Paras' employment with immediate effect on the grounds of serious misconduct. She was required to leave the premises immediately. The grounds that were said to constitute the serious misconduct were set out in a letter of 21 April 2006 from the solicitors of the Department of Infrastructure, Phillips Fox, to the solicitor acting for Ms Paras. 3 By notice of motion dated 16 May 2006, the applicant seeks, inter alia, an order that until the hearing and determination of this matter, or until further order, the Department of Infrastructure and the State of Victoria be restrained from treating as valid or acting upon the purported notice of termination of employment dated 11 May 2006 or her purported dismissal from her employment. There is another order sought in wider terms ('the second order') which it is unnecessary to refer to at this stage. 4 The applicant contends that there are a number of serious questions to be tried. That is to say, the respondents contended that it was not clear to them whether the applicant disputes that her conduct amounted to serious misconduct. In my opinion, this issue is put in contest, although not with great particularity, by the statement of claim. In any event, it was made clear by Ms O'Brien, senior counsel for the applicant, that it was in dispute and was relied upon as one of the serious questions raised by the proceedings. I will proceed on that basis. 6 Dr Jessup QC, senior counsel for the respondents, accepted that it is seriously arguable that the combined effect of ss 33, 20 and 8 of the Act is to require the head of the relevant public service body (ie the Secretary of the Department) to afford fair and reasonable treatment to an employee who is to be, or is being, dismissed. 7 Dr Jessup went on to submit that those sections operated to impose positive obligations on the public service head merely as a matter of good administration and not so as to affect the legal incidents of the employment relationship. The conclusion I have reached is that the contrary proposition is seriously arguable, namely, that Act and the Regulations impose legal requirements that precondition the exercise of a power of dismissal of an employee. 9 The applicant's employment is governed, inter alia, by the Victorian Public Service Agreement 2006 ('the 2006 Agreement'), which was made under the WRA and which came into force upon its certification. The 2006 Agreement continues in force notwithstanding the amendments affected by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). That provision defines serious misconduct for the purposes of the WRA in a manner which is, broadly speaking, consistent with its definition at common law. 12 The claim for interlocutory relief is not based, and could not be based, on the 2006 Agreement: see CFMEU v Gordonstone Coal Management Pty Ltd (1997) 78 FCR 437. The effect of s 20(3) is that a public service head exercising a right of termination of employment must do so in conformity with, amongst other things, the public sector employment principles as defined in s 8. Those principles include the establishment of employment processes to ensure that public sector employees are treated fairly and reasonably and that public sector employees have a reasonable avenue of redress against unfair or unreasonable treatment: see s 8(b) and (d). 15 Section 22 of the Act provides that the Regulations may establish procedures for dealing with any allegation of misconduct on the part of the employee and empower the imposition of penalties for misconduct. Section 22(2) defines 'misconduct'. Aside from regs 6 to 10 of the Regulations, no such regulations have been promulgated. However, reg 6 is less comprehensive and definitive than the regulations contemplated by s 64(3) of the Act. It does not stipulate or provide for the powers that may be exercised upon a review under reg 6: cf s 64(3)(d). In the ordinary course, the powers of a reviewing body would include the power to affirm, set aside or vary the decision or action which is under review. Although neither counsel suggested that 'review' should carry some lesser connotation in the context of reg 6, account must be taken of s 65 of the Act. 22 The respondents have filed an affidavit by Ms Frances Anne Boyd, the Director of Human Resources Management for the Department of Infrastructure, stating that no review process has been established by the Department of the kind described in reg 6, notwithstanding the fact that the Regulations came into operation on 1 January 2006 and reg 6 is expressed in peremptory terms. The respondents' failure to establish a review process cannot defeat the applicant's legal rights under s 64 and reg 6 to have the action taken against her reviewed in accordance with reg 6 and the requirements of ss 8 , 20 (3) and 33 (2)(a) of the Act. 23 It is possible that, even in these circumstances, reg 8 may operate as something of a default process. It provides for the provision of documents to the Commissioner, confers power to interview employees, and directs that the review is to be conducted quickly and informally in accordance with the rules of natural justice, but generally without legal representation. These provisions may be of little comfort to the applicant because the review by the Public Sector Standards Commissioner is limited to a review of the failure to commence the initial review and, by virtue of s 65(1) of the Act, the Public Standards Commissioner does not have power to make a binding decision as a result of the review. I have reached the conclusion that this contention is seriously arguable. 26 The threshold for a serious question to be tried is not particularly onerous. It is not a phrase that contemplates some kind of prediction of the probability of the outcome of the trial; it simply obliges the Court, as a first step in considering the grant of interlocutory relief, to be satisfied that there is a serious question to be tried in the principal proceeding and that the interim relief sought will go in aid of the vindication of some legal right asserted by the action. Thus, the serious question must relate to the grant of relief that is sought in the action: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 (' Lenah Game Meats' ). 27 In addition to being satisfied that there is a serious question to be tried, the Court must also be satisfied that the balance of justice and convenience favours the grant of interim relief. The two questions are not considered in isolation from each other. The strength or weakness of the claim will have a bearing on what is required by way of balance of convenience: see Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. 28 The purpose of an injunction pending trial is sometimes described in terms of preserving the status quo. 29 It is also relevant for the Court to consider whether damages are an adequate remedy. The summary dismissal without notice of an employee solicitor is a very grave matter. Necessarily, it will have a detrimental effect on her reputation, and may impose a stigma that adversely affects her future career prospects: see Rankin v Marine Power International Pty Ltd (2001) 107 IR 117 (' Rankin' ) at 142 [247]-[252] per Gillard J. For this reason, the applicant contends that damages will not be an adequate remedy. 30 As both counsel have accepted and as some of my questions have made clear, the Court does not embark on anything resembling a trial of the action when it deals with an application for interlocutory relief. The Court will not ordinarily attempt to reach any conclusion as to the facts or matters in dispute, beyond satisfying itself that there is a serious question to be tried, and possibly making other preliminary findings that may bear upon the balance of convenience or the exercise of discretion. That is the course which I will adopt here. 31 Although a number of serious questions were relied on, the case was most strongly put by reference to the rights that were said to arise for the benefit of the applicant under both the Act and the Regulations. The applicant did not lead evidence going to the various facts and events that were said to give rise to the allegations of misconduct. Nonetheless, she submitted that, on the evidence as it stood at the moment, there was a serious question whether it was capable of constituting serious misconduct warranting the summary termination of the applicant's employment. Isolated conduct usually would not suffice. Each case must be considered in the light of its particular circumstances, but nevertheless, the seriousness of the act of termination and the effect of summary dismissal are factors which place a heavy burden on the employer to justify dismissal without notice. The circumstances do not have to be exceptional, but nevertheless, must establish that the breach was of a serious nature. However, in the absence of detailed responding evidence from the applicant, I would describe the serious question as a weak one. 33 The applicant's claim for interim relief based on her statutory rights is stronger. On the material and arguments before me, I consider that it is seriously arguable that the provisions of the Act and Regulations, particularly ss 8, 20(3), 33 and 64 and reg 6, are intended to give an employee a right of internal review before being excluded from employment. 34 Dr Jessup submitted that even though the applicant had been summarily dismissed from her employment, it was still open to her to access the review process provided by the Regulations. I seriously doubt that this is so. Both s 64 and reg 6 confer rights upon an 'employee'; not a former employee. I doubt that Parliament intended that the review process should be accessible by someone who has ceased to be an employee. In view of ss 8(b) and (d), 20(3) and 64, it is much more likely that Parliament intended that employees should have the right to have any actions and decisions taken against them reviewed by a fair internal process before any such action or decision has the consequence of terminating their employment. At the very least, I think the doubts I have expressed exist as a matter of serious argument on the material before me. 35 It is unnecessary to deal with the applicant's argument that she has a cause of action for breach of statutory duty. The respondents accepted that it was seriously arguable that the applicant had standing to sue to enforce her statutory rights. The issue that has occupied my attention most deeply is the well-known principle that an injunction will not ordinarily be granted to continue an employment relationship where one party has acted to terminate it. That is the ordinary, but not the invariable, rule: see Concut Pty Ltd v Worrell (2000) 176 ALR 693 at 705-707 [51]. 37 In the present case, the applicant contended that the employer has repudiated her employment contract, but she has not accepted that repudiation as bringing her employment contract to an end. Indeed, the applicant submited that her employment cannot be terminated without first affording her the statutory right of review to which she is entitled. The consequence is said to be that the purported repudiation has not automatically discharged the applicant's contract of employment: see Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25 ; (1946) 72 CLR 435 at 459, 469-472, 473 and 478. I am satisfied that the applicant's employment agreement has not necessarily been brought to an end, and that declarations of invalid termination could be made in due course if that were appropriate: see Automatic Fire Sprinklers v Watson , supra; Vine v National Dock Labour Board [1957] AC 488. 38 While courts are generally reluctant to grant an injunction to continue an employment relationship where it has been terminated, in a number of cases the courts have, in view of the special circumstances of those cases, granted an interim injunction to restrain an employer from treating a notice of termination as having terminated an employment relationship. One notable case is Hill v CA Parsons Ltd [1972] 1 Ch 305 (' Hill' ), especially at 314 and 320. 39 The same course was taken by Smith J in the Supreme Court of Victoria in Reilly v State of Victoria (1991) 5 VIR 1 (' Reilly' ), especially at 11 to 12. There, his Honour granted an injunction restraining the State of Victoria from acting on a notice of termination of a casual public servant. Other cases to similar effect include: Irani v Southampton & South West Hampshire Health Authority [1985] ICR 590 and Dietman v Brent London Borough Council (1988) IRLR 299; [1987] ICR 737 (' Dietman' ). In Dietman at 754, Hodgson J reviewed several cases where injunctions were granted on an interim basis to restrain a termination of employment: see Crisp v Holden (1910) 54 S.J. 784; Smith v Mcnally [1912] 1 Ch 816; Hill ; Chappell v Times Newspapers Ltd [1975] ICR 145; Jones v Lee [1980] ICR 310 and R v British Broadcasting Corporation; Ex parte Lavelle [1983] ICR 99 at 113. These cases recognise that an interim injunction can be granted to restrain an employer treating a dismissal as valid or effective in circumstances where fair processes or natural justice have not been afforded to the employee in accordance with the contract of employment. In Dietman, the employer had dismissed the employee without adhering to contractual processes that needed to be followed in connection with the dismissal. Hodgson J concluded that the Court can intervene by injunction to prevent the implementation of the dismissal until the proper procedures laid down in the contract have been followed: at 755[B]. 40 Having regard to these authorities, I have concluded that the review processes enshrined in the Act and the Regulations make this case an exceptional one in which interim injunctive relief might be granted. 41 Dr Jessup referred me to the policy considerations that underlie the law's traditional reluctance to grant injunctions that will perpetuate an employment relationship. In particular, he submitted that the law recognises that it would be problematical to enforce the continuation of the relationship if the employer and employee have lost faith and confidence in each other. These policy considerations are discussed by Smith J in Reilly at 22-23. 42 If the employer and employee have lost faith and confidence in each other, that fact would be very relevant, but not necessarily fatal, to the grant of an injunction. Even where that is the case, injunctions have been granted where the employee's contract of employment requires a particular procedure to be followed as a precondition of dismissal, and that procedure has not been followed: see Robb v Hammersmith and Fulham London Borough Council [1991] IRLR 72; Jones v Lee [1980] ICR 310; and D Bean, Injunctions , 8 th edn, Sweet & Maxwell, 2004, pp 41-42 at [4.10]-[4.11]. 43 In this case, the allegations canvassed in the notice of termination and earlier correspondence provide some basis for thinking that difficulties might arise in future between the applicant and others in the legal section of the Public Transport Division. However, the principal legal officer with whom Ms Paras has been working does not express in his affidavit any inability to work with the applicant. None of the other affidavit material filed on behalf of the respondents establishes that it would be impracticable or unworkable for Ms Paras to continue her employment. 44 Until the termination notice was served, and despite the long-standing investigation and canvassing of various employment-related issues concerning the applicant and others in the Public Transport Division, Ms Paras had continued to work with the other legal officers without any breakdown in their working relationship. Further, the applicant has in the past worked on secondment in other areas of the public service. In all the circumstances, I am not persuaded that an injunction would give rise to real difficulties in the employment situation within the Department of Infrastructure. 45 If any difficulties were to arise, a range of solutions could be found within the public service. The decision of the High Court in Jarratt v Commissioner of Police for New South Wales [2005] HCA 50 ; (2005) 221 ALR 95 indicates that the right of an employee to procedural fairness under his or her contract of employment is not easily displaced. 46 In short, while the sort of difficulty identified by Dr Jessup is a real consideration, it does not arise in this case in such a way as to warrant the refusal of relief. 47 The respondents did not dispute that the summary dismissal of the applicant would be likely to inflict reputational damage on the applicant. The summary dismissal has been imposed on the applicant before she has had any opportunity of exercising her rights of review under the Act and the Regulations. It is at least reasonably arguable that the review processes and other protective mechanisms in the Act and the Regulations proceed on the footing that irreparable harm, such as reputational damage, should not be inflicted on an employee until that employee has had the chance of exercising his or her rights of review. It also seems to me that the efficacy of the review process will be enhanced if at the time of any review there is an order in force which prevents the employer from treating the notice of termination as an operative one. 48 In my opinion, the balance of convenience strongly favours the grant of interim relief. Without it, the applicant will be deprived in a legal or practical sense of the full measure of her rights to have her termination notice reviewed and potentially reconsidered. She will also have lost the opportunities to continue in employment pending an internal review, and to avoid the reputational and other irreparable harm that is likely to follow from summary dismissal. Success at final trial, and an award of damages for wrongful dismissal, would not be an adequate remedy in these circumstances. On the other hand, the grant of the injunction will not inflict any significant hardship on the respondents. They will be required to make appropriate and workable arrangements to continue the applicant's employment and to carry out the review process that is mandated by legislation. 49 For the above reasons, I consider that there are serious questions to be tried, and that an evaluation of the balance of convenience and discretionary considerations support the grant of interim relief. The applicant has proffered two undertakings, the first being the usual undertaking as to damages, and the second being an undertaking that she will forthwith institute the review process available to her under regs 6 and/or 8 of the Regulations. I will require that these undertakings be given to the Court. 50 As I mentioned at par [3] above, the applicant sought a second order to the effect that the respondents be restrained from acting to terminate the employment of the applicant otherwise than in accordance with the Act and the Regulations. In my view, an injunction in those terms is not sufficiently precise or understandable. Moreover, it does little more than reflect what would be the legal obligations of the respondents in any event. There is clear authority that an order with these deficiencies should not be made: see eg World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 at 191; Trade Practices Commission v Walplan Pty Ltd (1985) 7 FCR 495 at 496. I therefore decline to make the second order. 51 The first order sought corresponds with the form of injunction that was granted in Hill and by Smith J in Reilly . I am satisfied that an injunction in this form is appropriate. I propose to order that the costs of this application be reserved. I certify that the preceding fifty-two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Young.

victorian public service agreement under workplace relations act 1996 (cth) employment governed by public administration act 2004 (vic) summary dismissal for serious misconduct application for interlocutory injunction restraining employer from acting on purported dismissal principles of grant of injunctive relief in context of employment relationship whether serious question to be tried whether balance of convenience and discretionary factors favour grant of injunction workplace relations

The application is also made by way of an appeal under s 39B of the Judiciary Act 1903 (Cth). The applicant was said to have been a commander of a special unit of Serbian forces. On 12 December 2005 the Sibenik County Court accepted the prosecutor's claim that there was a 'well-founded suspicion' that the applicant had committed the alleged offences. On 10 January 2006 the Sibenik County Court ordered that a warrant for the applicant's arrest be issued. On 19 January 2006, in response to a request from the Republic of Croatia, the applicant was arrested in Sydney pursuant to a provisional arrest warrant issued under s 12(1) of the Extradition Act . On 20 January 2006 the applicant was remanded in custody pursuant to s 15 of the Extradition Act . The applicant made three unsuccessful applications for bail on 27 January 2006, 3 March 2006 and 12 December 2007. The applicant remains in detention in a New South Wales correctional centre. On 17 February 2006 Australia received an 'extradition request' to extradite the applicant to the Republic of Croatia. An 'extradition request' is defined in s 5 of the Extradition Act as 'a request in writing by an extradition country for the surrender of a person to the country' . The Extradition (Croatia) Regulations 2004 (Cth) ('the Extradition Regulations') made pursuant to s 55 of the Extradition Act declares the Republic of Croatia to be an 'extradition country' . An 'extradition country' is defined in s 5 of the Extradition Act to include a country that is declared by the Extradition Regulations to be an extradition country. On 18 March 2006 the extant Minister of Justice and Customs issued a notice of receipt of the extradition request pursuant to s 16 of the Extradition Act . The extradition request was made in respect of two alleged war crimes against prisoners of war, contrary to Article 122 of the Basic Criminal Code of the Republic of Croatia, and one alleged war crime against the civilian population, contrary to Article 120 of that same Code ('the extradition offences'). The request contained particulars of the extradition offences which allegedly took place in Knin in June and July 1991; in the village of Bruska near Benkovac in February 1993; and in Glina in July 1991. The request enclosed a copy of the Sibenik County Court decision and order. An 'extradition offence' is defined in s 5 of the Extradition Act to include, in relation to a country other than Australia, an offence against the law of the country for which the maximum penalty is death or imprisonment or other deprivation of liberty for a period of not less than 12 months, or if the offence does not carry a penalty under the law of that country, conduct which, under an extradition treaty in relation to that country, is required to be treated as an offence for which the surrender of a person is permitted by the country and Australia. In December 2006 the Magistrate conducted the inquiry pursuant to s 19(1) of the Extradition Act to determine whether the applicant was eligible for surrender to the Republic of Croatia in relation to the extradition offences for which his surrender was sought. The Magistrate determined that the applicant was a person who was eligible for surrender to the Republic of Croatia pursuant to s 19(9) of the Extradition Act . Section 21(1) of the Extradition Act provides, inter alia, that where an order has been made by a magistrate of a State or Territory under s 19(9) of the Extradition Act in relation to a person whose surrender is sought by an extradition country, that person may apply to the Federal Court for a review of such order. The applicant seeks a review of the Magistrate's decision in this Court pursuant to such subsection. The applicant submits that there are substantial grounds for believing that there is an 'extradition objection in relation to the offence' , as provided by s 19(2)(d) of the Extradition Act , and accordingly claims that he is not eligible for surrender to the Republic of Croatia. It must be applied having regard to the legislative purpose. In relation to the political objections in s 7(b) and (c) material which demonstrates a real or substantial risk that the circumstances described in those paragraphs exist or will exist may be sufficient to satisfy the condition in s 19(2)(d). The proponent of the extradition objection bears the onus of establishing the existence of such objection: see Cabal (2001) at [126]. As a threshold question, the Court must determine the evidence which the Court may take into consideration. The Court observes that both the Magistrate and this Court are not entitled to receive evidence which contradicts an allegation that the applicant has engaged in conduct constituting an extradition offence: see s 19(5) of the Extradition Act . The applicant submits that under s 21(6)(d) of the Extradition Act the Court is not limited to consider only the evidence which was accepted as exhibits before the Magistrate. Rather, since the function of the hearing before the Magistrate under s 19(1) of the Extradition Act was administrative, not judicial, this Court is entitled to consider all material provided to the Magistrate. The applicant submits that such material comprises 'material that was before the magistrate' regardless of whether or not such material was admitted into evidence. It would follow from the applicant's submission that any document contained in the Magistrate's file should be taken into consideration by the Court including material which was rejected by the Magistrate in the course of his inquiry conducted under s 19(1) of the Extradition Act . The applicant also seeks to tender all material which was accepted into evidence by the Magistrate but in respect of which the respondent takes objection in this Court. So too, in my opinion, is material that was proffered to the magistrate and was rejected by her. (2) The court upon review is not limited to consideration of material received by the magistrate in evidence but may have regard to other material tendered to the magistrate but not received in evidence. Accordingly, this question was not determined by the Full Court. Likewise the parties agreed that when s 21(6)(d) referred to the material "that was before the magistrate" that included not only material which the magistrate had admitted into evidence, but also material tendered by either the extradition country or the person in respect of whom the extradition application was made, which, for whatever reasons, was rejected by the magistrate and accordingly not taken into account by her. At least the latter of these propositions is not self-evident, if only because it would permit the judge conducting the review to consider material not capable of being tested by cross-examination or which might, had it been admitted, have led to the calling of other evidence. Clearly s 21(6)(d) would not permit any cross-examination on that evidence to take place or further evidence to be considered. However, as the parties proceeded on that basis before us we are content to accept for the purposes of the appeal the correctness of this construction of s 21(6)(d). Though finding the "excluded" material not to have utility in the resolution of the question before her, the magistrate nonetheless engaged in "an active intellectual process" in relation to that material (cf Tickner v Chapman (1995) 57 FCR 451 at 462; Tobacco Institute of Australia v National Health and Medical Research Council (1996) 71 FCR 265 at 277ff; 142 ALR 1 at 13) in and for the purposes of the s 19 determination. In light of her rulings, the magistrate may not have regarded the material as "admissible evidence" on the issue she had to determine. However, those rulings did not rob that material of the character of "material that was before the magistrate" for s 21(6)(d) purposes. They merely made it material that was disregarded. A review under s 21 of the Extradition Act is in essence a rehearing subject to the limitation posed by s 21(6)(d) of the Extradition Act : see Cabal (2001) at [100]; Dutton v O'Shane at [148]. However, if a magistrate and the reviewing court are subject to different legislative regimes governing admissibility, and in particular if the reviewing court is subject to the regime of the Evidence Act , the ability of that court to consider material that was before a magistrate may be significantly restricted. An extradition objection framed under s 7(c) of the Extradition Act requires an applicant to demonstrate, inter alia, that there are substantial grounds for believing that the extradition country's judiciary may be prejudiced against that applicant. Given the nature of such a task, it is possible that the evidence available to an applicant would be scarce. It seems incongruous that sections of that applicant's evidence should be excised in a court that is ostensibly conducting a rehearing based on the material that was before the magistrate. As discussed above, the Full Court decisions in Cabal (2001) and Dutton v O'Shane have established that this Court is bound to apply the provisions of the Evidence Act when conducting the review. 17 on Croatia's Progress in Meeting International Commitments since July 2005', the OSCE paper entitled 'News in Brief 22 February --- 7 March 2006', and the respondent's further material including its amended submissions. Such reports were contained in a bundle of material contained in a lever arch folder provided to the Magistrate. The folder was admitted by the Magistrate without objection as exhibit 17, the parties having requested that the folder which included the Amnesty Report and the EC Report be admitted without the necessity for the Magistrate to rule upon the admissibility of each document. The respondent submits that such material was not material that was 'before the magistrate' . The applicant submits that since the Amnesty Report and the EC Report were contained within exhibit 17 such reports comprised 'material that was before the magistrate' even though the Magistrate was not directed to such reports nor was any submission made in respect thereof. French J in Cabal (2000) held that material that was accepted by the magistrate constituted material that was before the magistrate. As the Magistrate did not reject the reports it is accordingly not necessary to consider whether he engaged in an 'active intellectual process' in relation to such reports: see Dutton v O'Shane at [162]. In these circumstances, the Court accepts the submission of the applicant that such reports constituted material which was 'before the magistrate' . The respondent also objects to the tender of the Amnesty Report on the basis that such report contains remote hearsay. Such report is relied upon by the applicant as 'background' to the Serbian and Croatian dispute. The Court finds that the Amnesty Report contains hearsay and anecdotal material and therefore does not comply with the requirements of the Evidence Act . Accordingly the Amnesty Report is not admitted. The respondent also objects to the tender of the EC Report on the grounds of relevance. The EC Report contains statistics which refer to the decrease in the Serbian population in the Republic of Croatia. Although the applicant claims to only rely upon such statistics by way of factual background to the application, the respondent submits that such data is relied upon by the applicant to prove general prejudice in the Republic of Croatia against Serbians. The Court considers that the applicant seeks to rely upon the statistics contained in the EC Report to prove prejudice against Serbians in the Republic of Croatia. The Court however considers that such data is irrelevant to whether the applicant would be prejudiced at his trial in the Republic of Croatia, and accordingly rejects the EC Report. " In memory of and as a warning, this plaque is erected by the Croatian Society of Prisoners of Serbian concentration camps in Knin. 5 August 2006. It is not suggested that such plaque emanated from the Croatian government or that it was displayed by the Croatian government. The plaque was affixed by a society of Croatians who were apparently incarcerated in concentration camps. Even if the Croatian authorities acquiesced in the presence of the plaque, it is irrelevant to the question whether the applicant would be prejudiced at a trial in the Republic of Croatia. The Court considers that such evidence is too remote to be considered relevant to the issue of whether the applicant would suffer prejudice at his trial. The Court does not admit the text of the plaque. The particular passage relied upon relates to an incident wherein a Croatian policeman allegedly showed Mr Van Lynden a skull on a desk inside the police headquarters in Glina. Upon the skull was written the name 'Captain Dragan' and a bounty. The respondent claims that such item is irrelevant to the question whether the applicant may be prejudiced at his trial and could not constitute any indication of bias by the Croatian judiciary. The Court accepts the submission of the respondent and accordingly does not admit such transcript. The respondent has objected to portions of the applicant's statement relating to the applicant's personal political beliefs; the applicant's belief concerning the purpose of the extradition; and the applicant's apprehension that he would not be afforded a fair trial if he were extradited to the Republic of Croatia. Although the evidence essentially relates to the applicant's apprehension rather than to any facts, the Court is mindful of the observations of French J in Cabal (2000) at 749. The Court considers that such evidence should be admitted given the nature of the application before the Court. The Court admits those portions of paragraphs 1, 3, 4, 5 and 18 which were before the Magistrate subject to the deletion from paragraph 4 of the section commencing 'Gotovina has been indicted...' and concluding '...in the Milosevic trial' which is not relied upon by the applicant. Mr Strbac is a former Magistrate in the Local Court in Benkovac and a former Judge of the District Court in Zadar. In 1993 Mr Strbac founded Veritas, a non-government organisation which monitors the treatment of Serbians by Croatian authorities in the territory of the Republic of Croatia and the former Republic of Serbian Krajina. The respondent objects to the admission of the above paragraphs on the grounds of opinion and relevance. The Court admits paragraphs 1 to 4 as they are relevant to the applicant's claims. As to paragraph 5, such paragraph will also be admitted subject to the deletion of the witness's personal opinion contained in the words commencing 'I do not believe...' and concluding '... the Croatian authorities' . As to paragraph 13, the sentence commencing 'I fear...' is not read. The balance of paragraph 13 is almost entirely hearsay and does not identify its sources. Such paragraph is of no probative value and is not admitted. Although the respondent does not object to the admission of paragraphs 1, 2 and 15, the respondent objects to the remainder of the paragraphs on the ground of relevance. The last sentence of paragraph 16 is also objected to on the ground of remote hearsay, being Mr Schneider's assessment that ' [f] rom my association with Croatian solders [sic] I know that many Croatians have a deep hatred of Captain Dragan from him capturing the Krajina in June July 1991' . The Court admits the passages relied upon except paragraph 16, the first two sentences of which are irrelevant and the observations in the last sentence being predicated solely on hearsay. The respondent has objected to the tender of portions of such statement on the grounds that they contain opinion evidence and contain evidence which is inadmissible under s 19(5) of the Extradition Act . The Court admits such statement on the same basis as the applicant's statement, except paragraph 10 and the first sentence of paragraph 15 which are inadmissible under s 19(5) of the Extradition Act . The remainder of paragraph 15 is irrelevant and is accordingly not admitted. The applicant claims that there is a risk that he will be prejudiced at any trial of the charges brought against him if he were extradited to the Republic of Croatia and tried before a Croatian court. The claim is based upon the involvement of the applicant as a prominent Serbian political and military figure in the conflict with Croatian forces in the disputed territory of the Krajina and Croatian animosity towards the applicant. The applicant also claims that the language of the extradition request prejudges the legality of the Serbian action; prejudges the constitutional status of the parties; prejudges the war status; and indicates bias against the actions of the Serbian forces. The applicant submits that witness evidence may have been corrupted during the investigative process, and that certain witnesses who could provide exculpatory evidence would be unwilling or unable to travel to the Republic of Croatia to testify because of their apprehension that action would be taken against them by Croatian authorities. The applicant also contends that, as a Serbian, the Croatian judiciary will be biased against him. In support of such submission, the applicant relies upon the disproportionate number of Serbians who have been charged and convicted of war crimes in the Republic of Croatia. Further, the applicant refers to the substantial number of Serbians whose convictions in the Republic of Croatia have been set aside in the appellate process. The Court will consider each of the claims hereunder. He is a national of Serbia and, by naturalisation, an Australian citizen. He is a strong political supporter of an independent self-governing home for the Krajina Serbians, many of whom were expelled from the Krajina by Croatian military forces in Operation Storm in 1995. The applicant claims to have played a significant military role in preventing Croatian military domination of the Krajina. He claims that his extradition is sought in retaliation for such activity. The applicant claims that 'Croatian hatred of me from the war has not abated and is on Croatian internet forums' . He asserts that ' [t] here are hardly any Serbs left in the Krajina after 1995 and they have no influence or role in the Croatian justice system' . The admitted evidence of Mr Strbac establishes that the applicant was a military commander who was responsible for capturing the Croatian military command centre at the police station in Glena in June-July 1991. Mr Strbac's evidence also establishes that the applicant formed a charity in Serbia that provides financial relief for war victims. The relevant portions of the statement of Ms Karadjordjevic state that she believes that the applicant will not receive a fair trial and that it would be of 'political benefit to the Croatian state generally and in particular to their claims concerning the Krajina' if the applicant were convicted. The Court has considered the above evidence. The Court finds that the applicant's alleged repute in Serbia resulting from his military and charitable activities does not lead to the conclusion that the judicial system in the Republic of Croatia would not provide him with a fair trial. Nor does the applicant's belief or the belief of the other witnesses that he is hated by Croatians and that his extradition is sought in retaliation for his military successes against the Croatians constitute sufficient grounds to establish that he would not receive a fair trial in that country. The applicant relies especially upon the evidence of Mr Strbac to support this assertion. Mr Strbac gave evidence by telephone before the Magistrate that he was not prepared to give evidence in the Republic of Croatia in the absence of 'special permissions and guarantees' for his entry into and return from the Republic of Croatia. In answer to this assertion, the Court has evidence before it that recent amendments have been made to the Croatian Criminal Procedure Act which permit evidence to be provided by means of audio/video conference. Accordingly, by use of such facilities Mr Strbac would be able to provide evidence in a Croatian court without physically entering the Republic of Croatia. The concern of Mr Strbac, and of other potential witnesses who share such concern, may be addressed by such means. Mr Bajic gave evidence to the Magistrate in which he alleged that four police officers in the Republic of Croatia had questioned him on 8 August 2006 concerning his involvement with the training centre known as 'Alfa' in Bruska in 1993. He testified that the police officers offered him incentives to say that he saw the applicant mistreating prisoners in the Alfa training centre. However Mr Bajic's testimony is disputed by the statement of Mirko Lukic, one of the police officers who interviewed Mr Bajic. Such statement was prepared from an official note of the interview. The statement materially contradicts Mr Bajic's account of the interview. Mr Lukic also gave evidence to the Magistrate and refuted the claim that incentives were offered to Mr Bajic to give false testimony against the applicant. The Court observes that the evidence of Professor Josipovic establishes that Article 9 of the Croatian Criminal Procedure Act does not permit illegally obtained evidence to be used in criminal proceedings. Such evidence also establishes that procedures exist by which a Croatian court may determine whether evidence was illegally obtained. If evidence is found to have been illegally obtained it is to be removed from the relevant file. The Court is not satisfied that the evidence of Mr Bajic establishes that there is a real or substantial risk that the applicant may be prejudiced at any trial by reason of corrupted evidence. The terms of the extradition request are generalised in relation to the Serbian forces. Further, the text of such request was not prepared by the Croatian judiciary. The Court cannot infer that the terminology used in the extradition request suggests that the applicant would not receive a fair trial. The cross examination of Mr Strbac refers to the disparity between the prosecutions and convictions of Serbians compared to that of Croatians in respect of war crimes. Mr Strbac claimed that of the total number of 1993 people 'in Croatian courts' for war crimes, only 40 were Croatians, being members of the Croatian army. As to convictions, Mr Strbac testified that of the 586 people indicted or charged with war crimes in Croatian courts, 577 had been found guilty as at 1 September 2004. Mr Strbac claims that of that number only three were Croatian and the remainder were Serbians. The Human Rights Watch report refers to arrests for war crimes in the Republic of Croatia. Of the total of forty-one arrests in 1999, 2000, and the first half of 2001, thirty-one persons were released. Of fifty-nine Serbs arrested in 2001, only twenty were in prison as of December 2002, according to the Serb refugee organization Veritas. That many of the charges against Serbs are eventually dropped, might reflect a measure of judicial integrity... The number of war crimes arrests of Croatian Serbs increased substantially in 2000-2001 and has been a major deterrent to return for Serb male refugees, most of whom at some stage of the war fought against government forces. One source of this ethnic disparity may be the extent to which evidence is available, including the availability or willingness of witnesses to testify. The Full Court held at [56] that the question whether persons of a different ethnic background would have a better chance of avoiding trial is not a relevant consideration, as ' [t] he question is what will happen at trial or on sentence' . The Court also notes the decision of the High Court of Justice in Damir Travica v The Government of Croatia [2004] EWHC 2747 (Admin) in which Lord Justice Laws considered an issue under s 6(1)(d) of the Extradition Act 1989 (UK), which is in substantially the same terms as s 7(c) of the Extradition Act. In such decision Laws LJ observed at [38] that the Extradition Act 1989 (UK) could not be construed as conferring such a wide power of judgment over the practices of a foreign state as to warrant refusal of an extradition where an applicant will face a fair trial but complains that members of other groups would not have to face trial at all. Accordingly, any discrepancy between the number of Croatians and Serbians prosecuted in the Republic of Croatia is irrelevant in this Court's consideration of whether the applicant would suffer prejudice at his trial by virtue of his race, nationality or political opinion. The applicant's contention does not lead to the conclusion that he would not be afforded a fair trial in the Republic of Croatia. As to the alleged disparity in convictions between Serbians and Croatians, the Court observes that such alleged disparity may be a consequence of the disproportionate number of prosecutions against Serbians compared to Croatians. It is not possible to infer prejudice by the Croatian judiciary based upon the conviction data provided by Mr Strbac since the judiciary has not been involved in the prosecution process which has resulted in the disproportionate number of Serbian convictions. As considered above, discrepancy in the number of prosecutions is irrelevant to the review before the Court. Similarly, any discrepancy in convictions which results from discrepancy in prosecutions is also irrelevant. The Court would need to have before it evidence that the disproportionate number of convictions arose independently of the number of prosecutions before it could be satisfied that there might be a basis for finding prejudice by the judiciary. The report states that the reasons for such reversals were procedural errors, such as failures to properly establish facts and failures to apply the law to the facts. The report does not suggest that the reversals were in any way predicated upon a finding of bias against the nationality of those who were convicted. Such reversals accordingly do not support the claim that the applicant would be prejudiced at his trial before the Croatian judiciary as a result of his nationality. This has entailed repudiating a past policy of politicized prosecution largely determined by the ethnic origin of victims and military affiliation of defendants in favour or even-handed prosecution. The September 2006 OSCE Report also refers to co-operation in war crimes trials between the Republic of Croatia with regional States including Serbia, and with the ICTY. The report cites a matter in which the ICTY referred a war crimes matter to the Republic of Croatia, it having been satisfied that 'there are appropriate measures now in place to ensure a fair trial' . Other reforms have been made in the Republic of Croatia. For example, as referred to in the September 2006 OSCE Report, the county courts of Osijek, Rijeka, Split and Zagreb have been granted extra-territorial jurisdiction to adjudicate upon war crimes, thereby removing proceedings from local courts in areas most directly affected by the conflict. The Chief State Attorney may initiate proceedings at these courts with the consent of the President of the Supreme Court of the Republic of Croatia. The Court has before it evidence that the Attorney General of the Republic of Croatia has assured the Attorney General of Australia that he will make a request to the President of the Supreme Court of the Republic of Croatia that the trial of the applicant be held before one of the above four courts having extra-territorial jurisdiction. The assurances so given give rise to the presumption that the Republic of Croatia is acting in good faith: see Ahmad et al v The Government of the United States of America [2006] EWHC 2927 (Admin) per Laws LJ at [74], [76]. In Travica Laws LJ observed at [34] that the conflict between Serbia and the Republic of Croatia and its after-effects have been 'especially acute In the Krajina region' . However, Laws LJ also observed at [35] that such circumstance did not by itself constitute a claim of prejudice 'not least when set against the signs of improvement in the conduct of prosecutions which I have surveyed, and which cannot have failed altogether to touch the Krajina region' . At [30] Laws LJ also made comment of the 'signal progress made in Croatia towards a justice system which meets international standards' . His Lordship's observations are consistent with the evidence contained in the reports referred to above. Further, the evidence before the Court establishes that the Croatian judiciary is capable of providing a fair trial to the applicant. The Court is not satisfied that the evidence establishes that there are substantial grounds for believing that the applicant may be prejudiced at his trial or otherwise prejudiced as provided by s 7(c) of the Extradition Act. The applicant relies upon the facts that the alleged offences occurred in June and July 1991 and in February 1993 and that they were not made the subject of any investigation request until 28 November 2005. A warrant for his arrest was not issued until 10 January 2006 and the extradition request was not made until 20 January 2006. There was no evidence before the Magistrate that the applicant had been the subject of any investigation until 28 November 2005. The applicant relies upon the judgment of Mason CJ in Jago v The District Court of New South Wales and Others [1989] HCA 46 ; (1989) 168 CLR 23. In those proceedings the question arose whether a permanent stay should be granted in view of a delay in the prosecution of six years after the defendant had been charged with certain offences. The High Court of Australia held that the Court's power to prevent abuse of process in criminal proceedings extends to a power to prevent unfairness to the accused. The inherent jurisdiction of a superior court to stay its proceedings on the grounds of abuse of process was traditionally exercised to prevent its jurisdiction being used 'for a purpose other than that for which the proceedings are properly designed and exist' : see Spautz v Williams [1983] 2 NSWLR 506 at 539 per Hunt J. It is the illegitimacy of the purpose that makes the abuse. For him to do so would constitute a complaint in respect of a process which he has initiated in this Court. The applicant's claim of delay could only be predicated upon delay by the Sibenik County Public Prosecutor's Office in submitting a request for investigation. Accordingly, any abuse occasioned by such delay was of the process of the Sibenik County Court in the Republic of Croatia, not of this Court. No claim of an abuse of process can be sustained under Chapter III of the Commonwealth of Australia Constitution Act 1901 (Cth) ('the Constitution ') since at no earlier stage prior to the institution of these proceedings has the judicial power of the Commonwealth been invoked: see Pasini v United Mexican States and Others [2002] HCA 3 ; (2002) 209 CLR 246 at 253 per Gleeson CJ, Gaudron, McHugh and Gummow JJ. The Court observes that even if a stay of proceedings could have been warranted of the present proceedings before this Court on the ground of delay, it would not affect the determination of the Magistrate that the applicant was eligible for surrender pursuant to s 19(1) of the Extradition Act, nor would it affect the order under s 19(9) that the applicant be committed to prison to await surrender: see Pasini at 279 per Kirby J. Finally, it should be observed that the applicant's reliance upon Jago is misplaced as the current proceedings do not relate to a criminal trial: see Vasiljkovic v The Commonwealth of Australia and Others [2006] HCA 40 ; (2006) 227 CLR 614 at 629. Jago was concerned with the power of the High Court to prevent abuses of process in criminal proceedings. This Court is only concerned to determine whether the order of the Magistrate that the applicant is eligible for surrender to the Republic of Croatia in relation to the extradition offences should be upheld. In light of the above the Court rejects the second ground of the application. At the time of the alleged offences, s 7 of the Geneva Conventions Act provided that a person (in Australia or elsewhere) who committed, or aided, abetted or procured the commission of a 'grave breach' of the 1949 Geneva Conventions was guilty of an indictable offence. Such breaches included wilful killing; torture or inhuman treatment of prisoners of war; and wilful causing of great suffering or serious injury to the body or health of prisoners of war and civilians. Section 10 of the Geneva Conventions Act invested federal jurisdiction in the relevant State and Territory Supreme Courts in respect of offences committed against s 7 of the Extradition Act. The flaw in the applicant's submission is readily apparent. Had the Australian authorities sought to prosecute the applicant for offences arising from his alleged conduct in the Republic of Croatia in 1991 and 1993, the above statutory procedure would have been available to them by virtue of s 7 of the Geneva Conventions Act . However, the Australian authorities have not done so and the applicant has not been prosecuted under the laws of this country. Rather, he has been charged with offences under Articles 120 and 122 of the Basic Criminal Code of the Republic of Croatia. The extradition offences with which the applicant is charged cannot be characterised as offences against a Commonwealth law since the offences do not arise under a law made by the Commonwealth Parliament. In Sankey v Whitlam and Others [1978] HCA 43 ; (1978) 142 CLR 1 , the High Court confirmed the need for an exercise of power by the Commonwealth Parliament in enacting legislation before a law can be said to be a Commonwealth law: see Gibbs ACJ at 30-1, Stephen J at 73, Aickin J at 104. Any similarity between the offences with which the applicant is charged in the Republic of Croatia and the possibility of the existence of an equivalent criminal offence in Australia is irrelevant. Section 80 of the Constitution does not apply because the applicant has not been charged with a Commonwealth criminal offence. It follows from the above finding, namely that s 80 of the Constitution does not apply, that there is no requirement under Australian law that the applicant be tried by jury. Accordingly the submission that the applicant has the right to be tried by jury, and that such right will be lost to him if he is tried in the Republic of Croatia, is rejected. It follows that the submission of the applicant that there is no evidence that the Republic of Croatia has the facilities to accommodate a jury trial is irrelevant. As a second basis for the applicant's claim that the extradition offences should be tried by jury, the applicant alleges that the Geneva Conventions Act had extra-territorial application in accordance with Australia's Geneva Convention Treaty obligations. The submission proceeds on the basis that an Australian court is competent to try, and should try, the applicant for the alleged offences. However, the Republic of Croatia is the State which is seeking to try the applicant, not Australia. In view of the above finding such submission is rejected. The applicant's application also claims that the Extradition Regulations are invalid. Insofar as their effect is to remove the applicant's right to a trial by jury, no submissions were made in favour of this ground. The Court observes that such Regulations merely declare the Republic of Croatia to be an extradition country. The right to a jury trial by a person for indictment of any offence against a Commonwealth law is not affected by the Extradition Regulations. The orders of the Magistrate are confirmed. I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.

extradition proceedings before magistrate review of magistrate's decision extradition objection substantial grounds for believing that there are extradition objections extradition act 1988 (cth) s 21 extradition proceedings before magistrate identification of material before the magistrate extradition act 1988 (cth) s 21 abuse of process whether proceeding should be stayed in the federal court of australia because of delay in the prosecution of extradition offences in extradition country whether applicant entitled to be tried before a jury by reason of his being charged with offences 'in connection with' commonwealth indictable offences commonwealth of australia constitution act 1901 (cth) s 80 extradition extradition extradition constitutional law

It has its origins in October 1999 when an order was made sequestrating the estate of Dr Wenkart. Mr Pantzer was appointed as the trustee of the estate. Since that time there have been a number of decisions of various judges of this Court, both at first instance and on appeal. The dispute has also occasioned an application for special leave to appeal to the High Court. The present proceeding arises out of an order made by Branson J in September 2008 that an inquiry be held pursuant to O 39 r 2 of the Federal Court Rules : Wenkart v Pantzer [2008] FCA 1387. An inquiry was held and a Certificate subsequently issued by a Deputy District Registrar on 28 May 2009. An " objection " has been taken to this Certificate and the present proceeding before the Court is a " hearing " pursuant to O 39 r 10(3) of the Federal Court Rules . Warren Pantzer as Trustee of the estate of Thomas Richard Wenkart may recover his remuneration, costs, charges and expenses to which he is lawfully entitled or may become lawfully entitled from Thomas Richard Wenkart and Thomas Richard Wenkart agrees to pay the same within 28 days of determination of the quantum of the same or at such other time as the parties may agree. Thomas Richard Wenkart consents to Warren Pantzer lodging a Caveat over the property in paragraph 2 for the purpose of securing the charge in paragraph 2 and Warren Pantzer will upon payment of the remuneration, costs, charges and expenses in paragraph 1 provide a Withdrawal of Caveat forthwith. The correct construction of these orders has been considered by the Full Court: Pantzer v Wenkart [2006] FCAFC 140 , 153 FCR 466. It is also sufficient for present purposes to further note that on 31 October 2002, Mr Pantzer filed in this Court what was later deemed to be a cross-claim whereby he sought " an order in aid of [the Court's] order made 11 March 2002 by appointing Warren Pantzer as Trustee for Sale of [the Paddington property] ". There had been no agreement as to the " remuneration, costs, charges and expenses to which " Mr Pantzer was entitled in excess of that which had been then authorised. No occasion had thus arisen as at 31 October 2002, the date the deemed cross-claim was filed, for him to seek to exercise his rights as against the Paddington property. Mr Pantzer has therefore failed to demonstrate that, as at the date of the filing of his cross-claim, he was entitled to "orders in aid" of the consent orders made on 11 March 2002. Were this course adopted Mr Pantzer could simply institute a fresh application seeking to enforce the charge over the Paddington property. The regrettably long and complex history of this matter renders such an outcome even more undesirable than might ordinarily be the case. The appropriate way to deal with the premature filing of Mr Pantzer's cross-claim is, in my view, by the making of appropriate costs orders. This will require, as a first step, the identification of the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 (ie the total amount received by Mr Pantzer as trustee of Dr Wenkart's estate). If the parties are unable to reach agreement on this question, I propose to make an order for the making of an inquiry by a Registrar (O 39 r 2 and r 9 of the Federal Court Rules ). Subsequent to the publication of those reasons for decision, two Notices of Motion were filed on behalf of Dr Wenkart seeking that further consideration be given by the Court to some of the conclusions then reached. One Notice of Motion was filed on 2 June and another on 5 June 2008. Her Honour dismissed both Motions in September 2008: [2008] FCA 1387. On the approach that I have considered, and continue to consider, it appropriate to adopt, before final orders can be made on Mr Pantzer's cross-claim it is necessary to know when, if at all, Mr Pantzer became entitled to enforce the charge over Dr Wenkart's Paddington property reflected in order 2 of the consent orders made by Beaumont J on 11 March 2002. It will therefore be ordered that a Registrar conduct an inquiry to determine that date. When that date has been identified it will be necessary for the parties to have the opportunity of making further submissions as to orders, including orders for costs, appropriate to be made on Mr Pantzer's cross-claim. The applications made pursuant to the notices of motion filed on 2 June 2008 and 5 June 2008 respectively be dismissed. 2. A Registrar conduct an inquiry to determine the date, if any, on which 28 days had passed from the determination of the quantum of an amount by way of remuneration, costs, charges and expenses to which Mr Pantzer is lawfully entitled from Dr Wenkart that resulted in the aggregate of such determinations exceeding $769,191.66. 3. The proceeding be otherwise stood over to a date to be fixed. The functions and manner of appointment of Registrars are addressed in Part IIA , Div 1 and 2 of the Federal Court of Australia Act 1976 (Cth). Rule 1 permits an order to be made " that an account be taken " and rule 2 provides that an order may be made " at any stage of a proceeding ... for the taking of any account or the making of any inquiry ". Rule 3 provides for the making of directions as to " the manner of taking or vouching the account ". Rule 5 provides for the filing of an " account and a verifying affidavit ", unless the Court otherwise orders. Rule 8 preserves unto the Court a power to " make such orders as it thinks fit " where there has been " delay in the prosecution of any account, inquiry or other matter ". Rule 9 permits an order to be made that an account or inquiry is to be held by a Registrar. Although many of these rules are more directed to the role of the Court where an " account " has been ordered (e.g. rr 3, 4 and 5), there can be little doubt that the Court would retain a general power to give directions which facilitate the manner in which an " inquiry " is to be undertaken. There can equally be little doubt that an " inquiry " should be undertaken in a manner which is procedurally fair. Order 39 does not permit, however, an order to be made referring the whole of a case to a Registrar; it only permits a " subsidiary " part of the case to be the subject of a referral: Sharpe v Goodhew (unreported, FCA, Drummond J, Q I6 of 1989, 11 December 1992). Rule 10 of the Federal Court Rules thereafter provides for the manner in which the " results of the account or inquiry " are to be conveyed back to the Court and for the manner in which any " objection " is to be resolved. (2) Upon an order being made pursuant to subrule (1), the Registrar shall deliver a copy of the order to each party. (3) Where an objection is made under subrule (1), the Registrar shall give notice of the objection to the other party and list the matter for hearing before the Court and deliver his certificate to the Court. (4) Upon a hearing pursuant to subrule (3) it shall be a matter for the Court as to what weight should, in the circumstances of the case, be given to the certificate of the Registrar. Presumably r 10 has been drafted with a view to ensuring that the procedure whereby effect can be given to a Certificate does not contravene Ch III of the Constitution . There would appear to be little scope for any challenge to the validity of O 39. But it is considered imperative that the Court retain a power to properly review the result of any such " account " or " inquiry " that may be ordered. It is that role which gives guidance to the nature of the " hearing " which it is to undertake where an " objection " is taken. And it is presumably for this reason that r 10 does not appear to have a counterpart in the rules of procedure applicable in State Supreme Courts. Some assistance as to the nature of the " hearing " to be given when an " objection " is taken may be gleaned from both the terms employed in O 39 r 10 and from authority. The use of the terms " hearing ", " weight " and " objection " support an inference that what the Court is doing upon such a " hearing " is giving consideration to something akin to a piece of evidence. It is resolving the " weight " to be given to a piece of evidence (namely the Certificate ) to which an " objection " has been taken. The Rules, perhaps not surprisingly, do not purport to give a Certificate any conclusive or determinative status. Indeed, to purport to give to a Certificate such a status would be Constitutionally impermissible: cf Harris v Caladine (1991) 172 CLR 84. Section 37A(1) of the Family Law Act 1975 (Cth) allowed the judges of the Family Court to make rules delegating to Registrars all or any of the powers of the Court. An order had been made delegating to Registrars certain powers. A Registrar of the Family Court had there made consent orders for the settlement of property. By a majority it was held that the order was valid. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that the delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. The reason for this is clear; a right of full review is a constitutional precondition to the vesting of the court's powers in a non-judicial officer. It may be understood to mean a hearing conducted as if there never had been a hearing before the judicial registrar, everything concerning that hearing being completely ignored. Alternatively, it may be understood to mean no more than a hearing at which the parties are not bound by the course they took before the judicial registrar, where they have the right to adduce such further evidence as they wish, perhaps to adopt positions and put contentions different from those adopted before, and put to, the judicial registrar; and, of course, where the judge is not bound by the judicial registrar's findings of fact. Like Moore J, I think a review hearing is a "hearing de novo" in the latter sense. A hearing conducted in that way answers the constitutional requirement described by Mason CJ and Deane J, "a hearing and a determination by a judge", without forcing on the parties, as a matter of necessity in all cases, the burden of relitigating all issues. But ordinarily this will not be so. Where parties make a conscientious effort to adduce the relevant evidence at a properly conducted first hearing, by the end of that hearing they will ordinarily have found considerable common ground. It will have become apparent that some issues, on which they initially had inconsistent positions, are irrelevant or peripheral. They will have dropped out of the case. Differences of evidence on other issues will have been reconciled or explained; it may have become apparent to everyone that one particular version of events is more likely to be correct than its competitor. It would be unfortunate indeed if constitutional necessity compelled the court to ignore this narrowing of the dispute. I do not think it does. The relevant constitutional principle means no more than that, on review, the parties are entitled to have the case reviewed by the judge, without any limitation imposed by the conduct of the case before the judicial registrar or the judicial registrar's findings. The parties have the right to call such additional evidence as they wish, subject to relevance and other usual canons of admissibility. The judge must decide the relevant facts for himself or herself, and not simply adopt the findings of the judicial registrar. But the principle does not require the parties to ignore the evidence tendered to the judicial registrar; on the contrary it will ordinarily be sensible for that evidence to be tendered to the judge conducting the review. The course most conducive to the proper conduct of the review will be for the judge, in conjunction with the parties, to identify and concentrate upon those issues. Although nobody is bound by the judicial registrar's findings of fact, and it is important that everybody concerned with the case understands that, the judicial registrar's reasons for decision will usually assist to identify the issues to be determined on the review. Order 39 r 10 ensures that the Court retains " effective supervision and control " over the results of an inquiry conducted pursuant to the terms of that Order and as ultimately expressed in the Certificate as issued. THE HEARING --- AN OPPORTUNITY TO REVISIT ORDERS MADE? Accordingly, this is not the occasion to attempt any more detailed analysis of what may be required. Distinctions as between a " re-hearing " or a " hearing de novo " were not the subject of submissions. There seemed, however, to be concurrence with the proposition that the " hearing " was a complete " re-hearing " in the sense that the parties were neither confined to the evidence adduced before the Deputy District Registrar nor the manner in which any factual or legal issues were there sought to be advanced for resolution. It was assumed to be what Davies J has referred to as a " rehearing on the merits ": Jageev Pty Limited v Deane (1997) 72 FCR 398 at 399. For present purposes it is sufficient to note the procedural course that was in fact pursued. Directions were made for the filing of such evidence as was considered by the parties to be appropriate and for that material to be the subject of written submissions filed in advance of a hearing in Court. The materials filed included extensive extracts of the transcript of the proceedings before Branson J and copies of the submissions previously filed. Copies of the affidavits filed in support of the 2 and 5 June 2008 Notices of Motion were also included. A two volume Judge's Bundle of documents was also provided. It was not considered appropriate at the outset to constrain Counsel on behalf of either Dr Wenkart or Mr Pantzer to the manner in which the inquiry before the Deputy District Registrar was conducted. Rather, the more appropriate course was to allow Counsel to identify those factual or legal matters which they wished to have resolved by this Court relevant to the " inquiry " which had been ordered. A " hearing " was then held to determine the " objection " to the Certificate . Written outlines of submissions filed on behalf of Dr Wenkart and Mr Pantzer in advance of the " hearing " disclosed a fundamental divergence of approach. The course plotted by Counsel on behalf of Dr Wenkart not surprisingly took as its starting point the order made by Branson J and the Certificate of the Deputy District Registrar. The written submissions filed in respect to the " objection " to the Certificate of the Deputy District Registrar essentially fell into two categories, namely: submissions seeking to contend that the order for inquiry should now be set aside. It was further contended on behalf of Dr Wenkart that the Deputy District Registrar failed to give any reasons for her conclusion that she was " satisfied " that an amount of $105,000 had not been " double counted " and that she had included in her process of calculation " amounts which were never part of the proceedings ". These two essential elements of the submissions were advanced in various ways on behalf of Dr Wenkart. If successful in his contention that the Certificate should be given no " weight ", the consequence according to Dr Wenkart was that the Court should itself " determine all outstanding issues in the Proceedings ". Counsel on behalf of Mr Pantzer took a more confined view as to the task presently confronting the Court. She maintained that the Certificate should be given such weight that the Court should conclude that the date calculated by the Deputy District Registrar (namely 10 January 2005) was the date on which the 28 day period referred to in the order of Beaumont J as made on 11 March 2002 expired. Counsel on behalf of Mr Pantzer further maintained that the only task confronting the Court when conducting the " hearing " provided for in O 39 r 10 was the task of determining the " weight " to be given to the Certificate . Excluded from consideration, on this approach, was any task of revisiting the orders as made by Branson J or the constraints imposed by Her Honour upon those who were to carry out the " inquiry ". Indeed, on this approach, and given the findings as made by Branson J, the task performed by the Deputy District Registrar was a simple mathematical calculation of amounts and the correlation of expenditure with dates. The confined nature of the current " hearing ", it was contended, was not only dictated by the terms of O 39 r 10 but also by the fact that Branson J had herself been previously asked to revisit the findings she had made and declined to do so in her September 2008 judgment: [2008] FCA 1387. The utility of ordering such an inquiry to be undertaken was queried. But the inquiry having been undertaken and the date identified, the outstanding task according to Counsel for Mr Pantzer was now for this Court to conduct a " hearing " confined to the resolution of such " objections " as were now properly sought to be raised for consideration. Dr Wenkart had sought such a " hearing ", as is his entitlement under O 39 r 10(3) of the Federal Court Rules . That " hearing " and that " hearing " alone, it was contended, should now proceed. Whatever subsequent appeals may be filed or other applications made all remained matters for another day. The fundamental divergence of approach exposed by the exchange of written submissions thus focussed upon those matters which could be canvassed and resolved in a " hearing " conducted for the purposes of O 39 r 10(3). It is considered that the more wide-ranging " hearing " envisaged by Counsel on behalf of Dr Wenkart is to be rejected. Rejected therefore is the submission on behalf of Dr Wenkart that " the Court should revisit the order for the inquiry and set it aside ". Whether Her Honour was right or wrong in making the orders that she did pursuant to O 39 may be ventilated in the event that there is either an appeal from such orders as may ultimately be made or in the event that there is a belated application for leave to appeal from Her Honour's decision. To refrain from revisiting " the order for the inquiry ", it is considered, is not to deny Dr Wenkart the " hearing " to which he is presently entitled. That " hearing ", it is considered, is one confined to those matters the subject of the order for referral; it does not extend to a yet further opportunity to contend that the order itself should not have been made. Indeed, the June 2008 Motions sought to revisit the orders previously made --- albeit unsuccessfully. Also rejected is any suggestion that the " weight " to be given to a Certificate may be resolved simply by reference to the adequacy of any such reasons as may be provided together with a Certificate . The " hearing " to be conducted is such that the Court retains " effective supervision and control " over the " inquiry " process. And the parties who participated in the " inquiry " are not necessarily to be confined to either the evidence relied upon during the course of that " inquiry " or the manner in which they conducted their respective cases. The Certificate and any reasons provided together with a Certificate may, however, provide a very useful starting point. Reasons provided in support of a Certificate may prove to be of invaluable assistance both to the parties in identifying the legal and factual issues which they now wish to have resolved and to the Court itself in the resolution of those issues. The reasons in particular may provide a useful means whereby some factual matters are resolved and more confined factual disputes identified. Such was the case in the present proceeding. The reasons provided by the Deputy District Registrar exposed a course of reasoning whereby she ( inter alia ) set forth in tabular form the amounts received and thereafter proceeded to identify the dates the subject of the " inquiry " ordered by Branson J. It was that table which provided a useful focus for submissions, at least for Counsel for Mr Pantzer. The submissions on behalf of Dr Wenkart ranged more widely. It is not considered that any inflexible formula can be provided as to the standard of reasons which may be desirable in support of any Certificate as to the " results of an inquiry ". A common touchstone as to that which should be provided where there is a statutory obligation to provide " reasons " is that a statement setting forth such reasons should " also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based ": Acts Interpretation Act 1901 (Cth), s 25D. The task of the Court when conducting a " hearing " of the present nature, however, is not a task of determining whether or not such reasons as have been provided may be adequate if judicial review were being sought of the Deputy District Registrar's decision. Such reasons as may be provided in support of a Certificate issued pursuant to O 39 simply go to assist the parties and the Court as to the " weight " to be given to a Certificate . Order 39 does not expressly require such a detailed statement to be provided. And, in the absence of any such requirement being imposed, it is considered that such reasons as are provided together with a Certificate should be such as are appropriate to the subject matter of the inquiry. Where the subject matter of an inquiry is detailed, a more detailed explanation which is provided together with a Certificate may enable the Court to give greater " weight " to the Certificate than it otherwise might. Most --- if not all --- of the facts to be relied upon, however, were accepted on behalf of both Dr Wenkart and Mr Pantzer to be those contained within one or other of the judgments of Branson J. And, notwithstanding the considerable volume of material which had been filed for the purposes of the present " hearing ", the only two documents sought to be relied upon were: the Minutes of a Bankruptcy Creditors Meeting held on 15 March 2002; and a letter from Dr Wenkart to Mr Pantzer dated 18 January 2001. In calculating the date of 10 January 2005 the Deputy District Registrar compiled a " table of receipts and payments ". A certificate shall issue pursuant to Order 39 rule 10 certifying the relevant date as being 10 January 2005. This table, it is considered, correctly sets forth as the starting point the sum of $769,191.66. Reference had been made by Branson J to an alternative figure of $797,000: [2008] FCA 478 at [6] . But this alternative figure was apparently an error attributable to submissions by Senior Counsel previously appearing for Dr Wenkart. Nothing turns on this error, it being accepted by both Counsel that the correct sum is that identified in the Certificate . The sum of $769,191.66 was the sum identified by Her Honour when making the order that an " inquiry " be undertaken. And, other than a slight variation as to the dates upon which payments had been made in March 2000, there was also no disagreement on the part of Dr Wenkart as to the payments of $60,744.30, $80,000.00, $11,811.40 or $68,188.60 as identified in the table. One " objection " taken on behalf of Dr Wenkart, however, focussed upon the two sums of $105,000 paid on 15 March 2002. One sum of $105,000 was identified as " trustee remuneration " and the other sum was identified as the payment of legal fees to Cutler Hughes and Harris. It is considered that the Deputy District Registrar made no error in separately identifying and taking into account both figures. It was to support this conclusion that Mr Pantzer sought to rely upon the Minutes of the Bankruptcy Creditors Meeting on 15 March 2002. Given the conclusion expressed by Her Honour, however, reliance upon those Minutes takes the matter no further. Insofar as the second sum of $105,000 is concerned, namely the sum paid to Cutler Hughes and Harris, the table prepared by the Deputy District Registrar and a competing table prepared on behalf of Dr Wenkart --- when properly understood --- disclose no relevant variance. Before the Deputy District Registrar Dr Wenkart had prepared his own table as to the expenditure incurred by Mr Pantzer. That competing table did not disclose any expenditure for legal fees on 15 March 2002. The competing table, however, accepted expenditure on 17 February 2003 in the sum of $268,477.64. Indeed that was the very sum also identified by Branson J in her April 2008 decision. Ms Sexton's evidence, as given before Beaumont J and accepted before me to reflect the truth, was that she was appointed to tax the solicitor-client bills of costs of Cutler Hughes & Harris but that she did not receive bills of costs; rather she received computer print-outs of the work done on a daily basis by various members of the firm. She understood that bills of costs had not been drawn because funding was not available to pay someone to draw proper bills of costs. As I understand Ms Sexton's evidence, she had access to Cutler Hughes & Harris' files and she checked each item on the computer print out against the files and allowed the item only if she could find material on the files that supported the item. The Deputy District Registrar apparently pursued an alternative course. The date of 13 December 2004 is unaffected and the date of 10 January 2005 identified in the Certificate is equally unaffected. There is thus no " double counting " as suggested on behalf of Dr Wenkart. The sum of $98,095.16 in respect of " outstanding remuneration " was again a sum common to both the table of the Deputy District Registrar and the competing table of Dr Wenkart. The April 2008 reasons for decision of Branson J record that approval was sought for remuneration in the sum of $115,406.07. That approval was not forthcoming and Her Honour noted that the Minutes for that meeting record that " the Trustee would therefore claim 85% of the IPAA Guide to Hourly Rates pursuant to Section 162(4) and Reg 8.08 of the Bankruptcy Act ". Eighty-five percent of $115,406.07 is the sum of $98,095.16 as set forth in the Deputy District Registrar's table. " Objection " was also taken on behalf of Dr Wenkart to the two sums of $83,219.82 and $86,736.12 paid on 13 December 2004. Again, the competing table relied upon by Dr Wenkart in his submissions before the Deputy District Registrar seemed to accept the quantum of the amount but sought to ascribe a different date to those payments. The competing table acknowledges a sum of $169,955.94 in respect to a certificate on 11 January 2005. By a certificate dated 13 December 2004 the taxing officer certified that she had taxed and allowed the remuneration, disbursements and expenses claimed by Mr Pantzer for the period 15 March 2002 to 21 October 2003 in the amount of $169,955.54. The amount allowed for Mr Pantzer's remuneration was $83,219.82. Dr Wenkart's challenge to this certificate of taxation, and to a further certificate issued by the taxing officer on 12 January 2005, was dismissed by the Full Court (see [8]---[12] above). As I have observed above (see [23]), Dr Wenkart conceded that upon completion of taxation of the claims for costs and remuneration referred to in orders 1 and 2 of the orders made on 21 October 2003 the amounts taxed would be amounts to which Mr Pantzer is lawfully entitled. I conclude that Mr Pantzer is lawfully entitled to the sum of $83,219.82 for remuneration for the period 15 March 2002 to 21 October 2003. As concurrence is expressed with the date as certified by the Deputy District Registrar, the expenditure after 13 December 2004 assumes no present relevance. A further " objection " was taken on behalf of Dr Wenkart to the table as prepared by the Deputy District Registrar upon the basis that interest was claimed to be payable to Dr Wenkart by Mr Pantzer but that no account had been given by the Deputy District Registrar of such interest as may be payable. There is no doubt that the Deputy District Registrar did not take into account any quantification of such interest as may be payable to Dr Wenkart. She expressly said so. This is not an issue to which a simple answer can be given. In respect of any particular amount the issue of whether interest is payable, and if so, at what rate and over what period of time, will depend on considerations such as the basis of the entitlement and the period of time, if any, that Mr Pantzer has been out of pocket in respect of the amount. It is thus considered that the Deputy District Registrar discharged the task entrusted to her. It was no part of her function when undertaking the " inquiry " ordered by Branson J to take into account interest. It should further be noted, however, that any consideration of interest may not in any event have led to any different conclusion. The competing table prepared on behalf of Dr Wenkart and relied upon in submissions before that inquiry included a sum of $43,914.06 as at 17 February 2003. That was the figure being then advanced on behalf of Dr Wenkart. But the inclusion of that sum as at that date would have made no difference to the conclusion that payments had exceeded receipts as at 13 December 2004. Even had the sum of $43,914.06 been included, payments would still have exceeded receipts as at that date --- albeit obviously by not as large a sum as otherwise was the case. Although Counsel on behalf of Mr Pantzer sought to confine Dr Wenkart to the quantification of interest and the date upon which such interest was said to be payable as set forth in his earlier prepared competing table, such a course may not have been appropriate. As the present " hearing " is not necessarily constrained by the manner in which the parties advanced their competing arguments before the Deputy District Registrar, it perhaps matters not how the case on behalf of Dr Wenkart had previously been advanced. But there was no evidence as to how any different manner of computing interest would have led to any different conclusion. A further competing submission addressed by both Counsel on behalf of Dr Wenkart and Mr Pantzer should be noted. This further submission invoked " the rule in Cherry v Boultbee ". Assisted by --- but not dictated by --- the reasons provided by the Deputy District Registrar, it is considered that the same findings should now be made as were made by the Deputy District Registrar. For the purposes of O 39 rule 10(4) of the Federal Court Rules , it is thus concluded that the " weight " to be given to the Certificate of the Deputy Registrar dated 28 May 2009 is such that a finding should be made, consistent with the terms of the order for referral, that the date on which 28 days has passed from the determination of the quantum of an amount by way of remuneration, costs and charges and expenses to which Mr Pantzer is lawfully entitled that resulted in the aggregate of such determinations exceeding $769,191.66 is 10 January 2005. That is the finding that is now made. Orders should now be made (if necessary) which give effect to the prior decisions of Her Honour Justice Branson, the Certificate as issued by the Deputy District Registrar on 28 May 2009 and the present reasons for decision. As previously contemplated by Her Honour in her reasons for decision as published in September 2008, it is appropriate that the parties have a further opportunity to make submissions as to the appropriate orders to be made --- should that be necessary. It is to be hoped that no further hearing will be necessary and that the parties will be able by agreement to draft appropriate orders disposing of the proceeding. It is a hope, however, which it is expected will remain unfulfilled. Liberty to apply on three days' notice in writing. Costs reserved. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

order that an inquiry be conducted objection to certificate nature of the hearing to be undertaken by the court practice and procedure

A criterion for the grant of a protection visa is that the relevant decision-maker is satisfied that Australia has protection obligations in respect of the applicant under the Convention Relating to the Status of Refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 (together 'the Convention'). 3 A delegate of the then Minister for Immigration and Multicultural Affairs refused to grant the appellant a protection visa. By a decision dated 13 April 1999 the Refugee Review Tribunal affirmed the delegate's decision. However, that decision of the Tribunal was set aside by a consent order of the Federal Magistrates Court which remitted the matter to the Tribunal to be determined according to law. A differently constituted Tribunal handed down its decision on 12 July 2005, again affirming the decision of the delegate. 4 On 17 January 2007 the appellant's application for judicial review of the decision of the Tribunal of 12 July 2005 was dismissed with costs by the Federal Magistrates Court. 5 The appellant, who was unrepresented at the hearing of his appeal from the judgment of the Federal Magistrates Court, apparently received assistance from a legal practitioner in drawing his notice of appeal and preparing written submissions. His notice of appeal identifies two grounds of appeal. The first of these grounds may be understood to raise for the Court's consideration whether the learned Federal Magistrate should have concluded that the Tribunal failed to comply with its obligations under s 424A of the Act. It is unclear what is intended to be raised by the second ground of appeal (see [19] below). I interpolate that if the Tribunal considered that information in the appellant's protection visa application would be the reason, or a part of the reason, for affirming the decision that it was reviewing, it was obliged to give him particulars of that information and assure, as far as reasonably practicable, that he understood why it was relevant to the review ( SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 ; (2006) 230 ALR 1). The statement does not in context imply complete acceptance of the appellant's oral evidence. However, although the [appellant] could only say that an unknown amount of ammunition was hidden in a corner of his home by BK and despite police searches it wasn't found, the Tribunal is prepared to accept that BK hid some ammunition at the [appellant's] home during the violent separatist campaign in the Punjab in the 1980s and early 1990s, that the [appellant] gave food to BK persons on occasions during those years, as Sikh civilian commonly did, but that the [appellant] did nothing else in relation to BK or any other militant group. The Tribunal also accepts that BK removed the ammunition in 1994 and he had no further contact with them. Also the [appellant's] claim about this has been consistently presented. The Tribunal has much more difficulty with his claim to have been detained and tortured in October 1996 in relation to the Beant Singh assassination, because his evidence about this is inconsistent; in written evidence he said he was detained for four days and interrogated but he does not claim to have been mistreated or tortured, in oral evidence to the first Tribunal he said the last time he was detained was in 1995, but in oral evidence to this Tribunal he said that on 10 October 1996 he was detained and beaten. Also, the Tribunal finds the claim difficult to accept given that the Beant Singh assassination had occurred well over a year earlier. However, for the present purpose, the Tribunal also accepts that the [appellant] was detained in October 1996 for a few days and tortured or at least seriously mistreated. The Tribunal accepts that in being tortured or beaten, the [appellant] suffered a broken wrist, broken leg and lower back injury, and that such harm was so serious as to amount to persecution within the meaning of the Convention, and that it occurred for reason of his actual or imputed political opinion in support of militants. The Tribunal also accepts that on a couple of other occasions, in 1992 and 1994, the [appellant] was detained for a few days, interrogated and verbally abused but not physically mistreated, and that this too was for reasons of his actual or imputed political opinion. Despite the unsatisfactory nature of the [appellant's] evidence the Tribunal has accepted these claims because they are generally consistent with independent country information about the treatment of ordinary Sikhs (as well as Hindus in the Punjab at the time), by the Punjab police during the violence of the 1980s and early 1990s. It found that Sikh militancy is no longer active in the Punjab and that '[e] ven militants who have served their sentences, live a normal life there now'. It did not accept that the appellant was of adverse interest to the authorities before he left India or is presently of interest to them. Therefore the [appellant] does not satisfy the criterion set out in s.36(2) of the Act for a protection visa. His Honour took the view at [10] of his reasons for judgment that the Tribunal's credibility findings 'formed no part of the Tribunal's decision' . Where the Tribunal came to a view that the [appellant's] credibility was an issue and it did not accept certain evidence it came to that conclusion on the basis of the evidence given to it and the Tribunal's views of that evidence. The Tribunal dealt with each of these although its phraseology might indicate that it was dealing with only one claim. However it is clear enough that the first ground is intended to invoke s 424A of the Act, albeit that it does not identify the section. 91R about whether there would be a 'real chance' that the [appellant] could face "serious harm" in the event he was asked to return to India. As the Tribunal failed to carry out this jurisdictional commitment which was mandatory, then, there was a 'jurisdictional error' that was made by the Tribunal and the learned Federal Magistrate misdirected by making the above conclusion which was contrary to the law. 21 As mentioned above, the Tribunal did not give the appellant particulars of any information pursuant to s 424A of the Act. Yet its reasons for decision reveal that it compared the information provided in the appellant's visa application with the oral evidence given by him to the Tribunal. It attributed significance to both consistencies and inconsistencies in the presentation of the appellant's claims. It is therefore necessary to determine whether any inconsistency between the information contained in the appellant's visa application and later oral evidence given by him at either or both of his Tribunal hearings was the reason or a part of the reason for the decision of the Tribunal to affirm the decision of the delegate. 22 Whether particular information was a reason or a part of the reason for a decision of a Tribunal to affirm a decision of a delegate is generally to be determined by reference to the reasons for decision of the Tribunal which may need to be 'unbundled' to reveal that reason, or the parts of that reason ( SZEEU 230 ALR per Allsop J, with whom Weinberg J agreed, at [208]-[213]). While the reasoning process may advert to, and express views on, such issues, all will not necessarily constitute part of the reason for the Tribunal's decision. Tribunals, no less than courts, engage in their own species of dicta often enough for reasons related to haste and pressure in composition. When a Tribunal's reasons are to be evaluated for s 424A(1) purposes, the Court as a matter of judgment is required to isolate what were the integral parts of the reasons for the Tribunal's decision. That task, necessarily, is an interpretative one. In some instances the differentiation of the integral and the inessential may be by no means easy -- and made the more so by less than explicit indications in the reasons themselves as to what the Tribunal itself considered to be integral. However, I do not understand the authority of the above passage from VAF to have been generally undermined. Nonetheless, their Honours' reference to the 'integral' and the 'inessential' must be understood more strictly than may originally have been intended. The critical question is whether the information in question was a part (that is, any part) of the reason for affirming the decision ( SZEEU 230 ALR per Allsop J at [215]). 25 The task of ascertaining what was the Tribunal's reason, or the constituent parts of the Tribunal's reason, for affirming the decision under review may not be an easy one. It will require the reasons for decision of the Tribunal to be analysed with care. Ordinarily any statement made by the Tribunal in its written reasons for decision concerning its reason for affirming the decision will carry considerable weight. However, a statement of this kind will not necessarily be determinative. On an application for judicial review of the decision of the Tribunal it is for the court itself to determine what was the Tribunal's reason, or as appropriate the constituent parts of the reason, for affirming the decision under review. In doing so the court must remember that in SAAP [2005] HCA 24 ; 215 ALR 162 the majority made clear that it was not appropriate to engage in an evaluative analysis of the triviality, or alternatively the seriousness, of the failure to observe the requirements of s 424A (see per McHugh J at [83], Kirby J at [173] and Hayne J at [208]). 26 Information will, it seems to me, have been a part of the reason for affirming the decision under review if it provided the basis, or part of the basis, for any finding that formed an essential link in the chain of reasoning that led the Tribunal to affirm the decision under review (cf Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-221 per Black CJ). In particular it is not easy to ascertain whether the information provided in the appellant's visa application provided the basis for any finding that formed an essential link in the chain of reasoning that led the Tribunal to affirm the decision of the delegate. 28 The final link in the Tribunal's chain of reasoning was that it was not satisfied that the appellant's fear of persecution by the Indian authorities was well-founded. The Tribunal gave two immediate reasons for its lack of satisfaction in this regard. First, that there have been significant changes in the Punjab with the consequence that Sikh militancy is no longer active and even militants who have served their sentences live a normal life. Secondly, that the Tribunal did not accept that the police or the authorities generally were looking for the appellant when he left India or subsequently. There is no reason to think that the information provided in the appellant's visa application provided the basis for the Tribunal's findings concerning changes in the Punjab or the authorities' apparent lack of interest in the appellant. 29 However, it is necessary to 'unbundle' the Tribunal's reasons for decision to determine which of the grounds upon which the appellant claimed to fear persecution the Tribunal had in contemplation when it concluded that it was not satisfied that his fear was well-founded. It seems clear enough that the Tribunal had in contemplation the appellant's claim that BK hid ammunition on his property and his claim that he had fed BK members because it stated that it was prepared to accept those claims (see [12] above). However, it is far from clear that the Tribunal had in contemplation his claim to have been a member of BK. 30 The preferable view, in my opinion, is that the Tribunal did not have in contemplation the appellant's claim to have been a member of BK when it concluded that it was not satisfied that his fear of persecution was well-founded. I have formed this view on two bases. First, the Tribunal had earlier explicitly rejected his claim to have been a member of BK. By contrast, it was prepared to accept 'for the present purpose' other aspects of the appellant's claims notwithstanding that it found them difficult to accept. Secondly, the Tribunal referred to militants 'who have served their sentences' living a normal life in the Punjab now. The inference arises that the Tribunal did not turn its mind to whether it was satisfied that BK members or former members, or militants generally, who had not been charged or sentenced were living a normal life in the Punjab now. This is because link (d) above was critical to the decision actually made by the Tribunal to affirm the decision of the delegate. As I understand the authorities, it is not to the point that the Tribunal may well have made the same decision had it accepted, even provisionally, the appellant's claim that he was, or had been, a member of BK. 33 The reasons for decision of the Tribunal identify the appellant's other oral evidence to the Tribunal as the reason for its failure to be satisfied that the appellant was a member of BK. However, the reasons do not make explicit whether the Tribunal additionally placed weight on its adverse view of the appellant's credibility generally and his failure to present his claim consistently. Even if they had indicated to the contrary, for the reasons identified in [22] and [25] above, this would not compel a finding that the appellant's other oral evidence provided the only reason for the Tribunal's failure to be satisfied about the truth of this claim. However, the failure to indicate to the contrary assumes significance in the context of the factors identified below. 34 The information contained in the appellant's visa application was plainly part of the reason that the Tribunal formed an adverse view of the appellant's credibility. The Tribunal took into account in this regard its view that information in the appellant's visa application concerning his involvement with BK was inconsistent with his oral evidence at his first Tribunal hearing. So much is made clear by the Tribunal in the passage set out in [9] above. 35 Additionally, as mentioned above, it can be seen that, generally speaking, the Tribunal regarded consistency in evidence as an indicator of veracity. The Tribunal considered that the consistent presentation of the appellant's claim to have been detained and tortured in 1984 was a reason for accepting his evidence on this topic (see [12] above). Conversely, the Tribunal had 'much more difficulty' with his claim to have been detained and tortured in 1996 as a result of the inconsistencies between the information provided in the appellant's visa application and his oral evidence to the Tribunal at his two hearings --- albeit that the Tribunal was prepared to proceed on the basis that he was detained and tortured in 1996. 36 In all of the circumstances it seems to me to be more likely than not that at least a part of the reason why the Tribunal rejected the appellant's claim to be a member of BK was its adverse view of his credibility generally and his failure to present this claim consistently. This conclusion seems to me to find support in the following features of the Tribunal's reasons for decision. 37 First, the reasons for decision of the Tribunal do not elaborate on what it was about the appellant's oral evidence to the Tribunal concerning his BK activities that failed to support his claim of membership. The appellant's oral evidence to the Tribunal about his BK activities was that he had stored ammunition for BK at his home and gave BK members food when they came to his home but that he did nothing else for the group. This evidence by itself does not seem to provide any compelling reason to reject the claim of BK membership. 38 Secondly, the material upon which the Tribunal relied in forming an adverse view of the appellant's credibility related directly to his claim to be a member of BK. He denied his written claims about such memberships but did not explain why those false statements had been made. 39 Thirdly, the Tribunal noted that its lack of satisfaction that the appellant is a person to whom Australia has protection obligations was based on a consideration of 'the evidence as a whole' (see [14] above). A feature of the whole of the evidence before the Tribunal that the Tribunal emphasised in its reasons for decision was the apparent inconsistency between the information in the appellant's visa application and his subsequent oral evidence. 40 The conclusion that at least a part of the reason why the Tribunal rejected the appellant's claim to be a member of BK was its adverse view of his credibility generally and his failure to present his claim consistently, leads necessarily to the conclusion that the Tribunal placed weight in this regard on the information in the appellant's protection visa application. 41 For the above reasons I find that the information contained in the appellant's visa application was information that the Tribunal considered would be part of the reason for affirming the decision that it was reviewing. I conclude that the learned Federal Magistrate erred in concluding otherwise. Prior to he being arrested for this count, the [appellant] fled India. However, on this issue what the Tribunal decided was --- "the Tribunal does not accept that Police or the authorities generally were looking for the [appellant] at the time he left India....." . This was failure on the part of the Tribunal to act under sec, 91R of the Act. Whether the [appellant's] 'civil liberties' could be jeopardized? [Appellant's] main fear was whether charges would be laid against him if returns back to India. 414 , 415 and 420 of the Migration Act 1958 . At the same time the Tribunal breached sec. 424A when refusing the [appellant's] claims for refugee, in addition causing a further failure to uphold the 'jurisdictional commitment' under sec. 91R of the Act. Hence The Appellant seek that he should be granted justice by the Full Court by over-ruling both the decisions made by the Tribunal and the learned Federal Magistrate and issuing the appropriate Writs in favor of the [appellant] . If he had, the Tribunal would presumably have pointed out to him that being arrested on a charge of contravening a law of general application would not, of itself, constitute persecution (see Applicant A & Anor v Minister for Immigration and Ethnic Affairs & Anor [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2003) 217 CLR 387). 45 The appellant did not seek judicial review in the Federal Magistrates Court on the ground that the Tribunal breached any or all of ss 414, 415 and 420 of the Act. Nor has he particularised the way or ways in which he now alleges that the Tribunal breached those sections. As I can see no apparent merit in the submission that the Tribunal breached those sections I do not consider it expedient in the interests of justice to grant the appellant leave to rely in this Court on a ground not raised before the Federal Magistrates Court ( Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2006] FCAFC 48 at [53] ). 46 To the extent that the appellant continues to submit that the Tribunal overlooked his claim to fear persecution in India on the specific ground that he had stored ammunition for the BK, I see no error in the way in which the Federal Magistrate dealt with this submission. 47 I am unable to identify any substance in the second ground of appeal. In my view s 424A obliged the Tribunal to give the appellant particulars of the information contained in his visa application concerning his involvement with KLF and his association with BK. An order in the nature of mandamus will issue to the Tribunal requiring it to determine the appellant's application for review of the decision of the delegate according to law. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

tribunal did not give appellant particulars of any information in accordance with s 424a of the migration act tribunal's written reasons for decision summarise information provided by appellant in his protection visa application inconsistencies between that information and information given at two tribunal hearings tribunal formed adverse view of appellant's credibility due to inconsistencies tribunal did not consider one of appellant's claims as not satisfied of truth of that claim whether information in protection visa application was part of the reason for forming an adverse view and not considering one of the claims, and therefore part of the reason for affirming the decision under review held: s 424a obliged the tribunal to give the appellant particulars of the relevant information in his protection visa application migration

The appellants were represented by a counsel before her Honour, but, unfortunately, appeared before me unrepresented with the husband, in effect, making submissions for his wife and their young child. The husband and wife are citizens of the People's Republic of China. Their son was born here on 1 May 2001. He claimed to be stateless. The delegate refused that application in March 2001 and the tribunal affirmed that decision in July 2002. In March 2006, a judge of the Court, by consent, allowed an appeal from the Federal Magistrates Court, quashed the tribunal's decision and remitted the wife's claim to the tribunal. This was in consequence of a concession by the Minister that the provisions of s 424A(1) of the Migration Act 1958 (Cth) had not been complied with by the tribunal in arriving at its original decision as explained in the decision of the Full Court in SZEEU v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214. 3 The husband arrived in Australia on 11 August 2002. He claimed protection visas on behalf of all three appellants in September 2002. The delegate refused that application in November 2002 and he sought that the tribunal review the decision. The tribunal affirmed the delegate's decision. The Federal Magistrates Court set that decision aside in June 2006. 4 Earlier, in March 2002, S had applied for a visa, by his mother. That was refused and the tribunal affirmed the delegate's decision in April 2004. Again, the Federal Magistrates Court set that decision aside by consent in June 2006. Ultimately, the tribunal, reconstituted, heard all three claims for protection visas together. S based his claim to fear persecution in China by reason of his membership of a particular social group namely, "black children". This claim was that a "black child" in China is treated differently in consequence of that country's one child policy. This is claimed to be because black children are the victims of systematic and serious persecution as citizens of China by being denied household registration, access to food, education and health care beyond a very basic level: Chen Shi Hai v Minister for Immigration & Multicultural Affairs [2000] HCA 19 ; (2000) 201 CLR 293 at 303-304 [30] - [32] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 6 The husband and wife also claimed that they had had a third child while in China, so that S was their fourth child, but the tribunal rejected that claim. It found that S was the couple's third child. The tribunal rejected the husband's claim to be a Christian. It concluded that he had fabricated that claim. It disregarded his practice of Christianity in Australia pursuant to s 91R(3). It also found that he had lied in attempting to explain his ability to leave China without difficulty and that he was not a credible witness. The tribunal concluded that it was not satisfied that he had a well-founded fear of persecution for a Convention reason. The tribunal found that the wife had lied to the department and an earlier tribunal hearing concerning her identity and was not credible. While it accepted that the wife was a Christian and a member of an underground church in China, it concluded, on the basis of independent country information, that she did not have a well-founded fear of harm for the latter reason. Those considerations may now be put to one side as not relevant to her Honour's decision or the issues which arise on this appeal. The crux of the appeal focuses on the tribunal's consideration of the appellants' claims concerning the one child policy as it affected each of them. The tribunal accepted that the husband and wife were in breach of that policy because they had had three children, including S, who had been conceived in China. Their position of breach of the policy is not affected by the tribunal's rejection of their claim that they had a fourth child. THE FIRST GROUND: DID THE TRIBUNAL ERR IN ITS APPROACH TO THE APPLICATION OF THE ONE CHILD POLICY TO EACH APPELLANT? It extracted a great deal of material, sometimes repetitiously. The critical reasoning in its consideration of the one child policy was attacked on five bases below, which were repeated in the notice of appeal. The tribunal erred because it did not have regard to the most recent country information currently available to it. 2. The tribunal erred in finding that if the appellants had to pay a social compensation fee under applicable Chinese law, that would not amount to persecution within the meaning of s 91R(1). 3. The tribunal failed to enquire as to whether the social compensation fee was appropriate and adapted to a legitimate end so as to be a law of general application. (The appellants relied on the decision of Merkel J in VTAO v Minister for Immigration and Multicultural Indigenous Affairs (2004) 81 ALD 332 ; [2004] FCA 927 at [38] - [39] . The tribunal erred because it relied on the practice of authorities in Shandong Province as to payment of the social compensation fee identified in a Department of Foreign Affairs and Trade (DFAT) Report 404. That report said that this practice accorded with the position that DFAT had found the previous year, 2004, in Fujian Province, whence the husband and wife came. 5. The tribunal did not make findings in relation to the amount of the social compensation fee which was likely to be imposed on the parent appellants for their breaches of the one child policy, or the time that S would be a "black child" while any fee was unpaid. However, it reasoned, on the basis of country information, that the status of a "black child" could be removed once the father paid a social compensation fee which would allow the child's registration. It accepted country information that all registered children were entitled to access to health and educational facilities, although a first child is given preference. 11 The tribunal concluded that it was satisfied that, like the general population in China, the parent appellants may suffer financial consequences for their breaches of the one child policy. However, it concluded that "this may indicate that the level of the penalty to which they may be exposed on return to China would not be applied on a differential or discriminatory basis" (emphasis added). 12 The tribunal then went on to say that it was satisfied that it may not be unreasonable for the husband and wife to take steps to pay that social compensation fee that might be imposed in retrospect of their Australian born son, S, and any other children they had had in breach of the policy. The detail of that report appears later in these reasons. 14 The tribunal went on to reason that it accepted other country information that it had put to the appellants in August 2006 in its letter under s 424A, written before the last hearing. That information was that families with more than one child, for whatever reason, are common in China and that the objective of Chinese policies and regulations was to deter the high birth rate. It accepted a DFAT assessment that once births had occurred "... our impression is that pragmatism would take precedence". Although fines, to offset the social costs of extra "out of plan" children are high, extracting such fines from villages was difficult. It follows from the abovementioned country information put to the Applicants in its submission [sic] of 10 August 2006 and accepted by the Tribunal that it does not accept that there is a real chance that [S] would be subjected to serious harm amounting to persecution for this or any other reason (including because he belongs to the particular social group called 'black child' or 'black children') if he goes to China or would not be able to be registered; would be denied access to a national identity card and therefore he would not have access to a wide range of government and other jobs; or he would be denied basis [sic] human rights, social service, demotion and access to free education and medical services sufficient to be serious harm amounting to persecution for a Convention related reason. The report was succinct, covering little more than one A4 page. The department reported there, that the Shandong Province family planning regulations provided penalties for urban and rural residents who breached the one child policy. The penalty was a "compensation fee" of either between half to ten times the previous year's average per capita disposal income for respectively urban or rural residents in the province or of the person's actual income in the previous year, whichever was higher (par A). The size of the penalty depended on the nature of the case and the severity of the violation of the regulations. But if the families are under a certain income threshold, the compensation fee can be postponed or paid by instalment. We have not been able to find any evidence or authorities waiving these penalties , but this does not rule out the possibility of waiver or reduction. The Shandong Family Planning Commission told us that all births must be registered with the local public security authorities. F The regulations do not prescribe any penalty against children born out-of-plan. G China does not have a national medical health insurance system, thus registration is not relevant to accessing health care. We understand unregistered children can attend school in most cases, but may face restrictions on which schools they can attend and must pay higher tuition fees. The tribunal was actually aware of that report since it referred to material in it for other purposes on the same page of its reasons. Her Honour held that the tribunal's finding of a "considerable relaxation" was consistent with the 2002 Home Office Country Report: SZJTQ [2008] FMCA 1188 at [51] . The trial judge said that the tribunal was entitled to form its own views as to the accuracy and weight of country information, relying on NBKT v Minister for Immigration and Multicultural Affairs [2006] FCAFC 195 ; (2006) 156 FCR 419 at 440 [81] per Young J with whom Gyles and Stone JJ agreed. Young J had said that it was not for the Court to reconsider the tribunal's factual findings as to an applicant's claims and what country information was relevant to the tribunal in determining whether those claims gave rise to a well-founded fear of persecution. 21 Her Honour said that no authority had been cited to her in support of the proposition that the tribunal was under an obligation to make its decision on the basis of the most country information reasonably available to it. She said that in VAO v Minister for Immigration and Multicultural Affairs [2002] FCAFC 31 Sundberg, Marshall and Weinberg JJ had held that the tribunal had no obligation "to seek out or act upon more recent information" at [25]. The trial judge said that it was open to the tribunal to prefer particular country information in arriving at findings of fact and that no jurisdictional error would be established if it did so or gave different weight to various items, relying on NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 and VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 among other authorities. 22 Her Honour also noted that the tribunal also had information before it from an April 2005 UK Home Office Report on China: SZJTQ [2008] FMCA 1188 at [58] . That report stated that actual implementation of China's population control policy varied considerably throughout the country and "that some people in southern Fujian and Guangdong provinces had reported no problems in returning after having children abroad". The tribunal had also referred to information from DFAT, given in November 2000, that it was unaware of any difficulties for people who returned to China from overseas with more than one child and that "[o]nce births have occurred, our impression is that pragmatism would take precedence". Her Honour found that the contents of the 2002 and 2005 Home Office reports concerning the Fujian regulations were not necessarily inconsistent with the conclusion that the tribunal reached: SZJTQ [2008] FMCA 1188 at [60] . She noted that the 2005 Home Office report dealt with the position of a second or later child born out of China. 23 The tribunal also referred to a 2001 study produced for the US Immigration and Naturalisation Service by Susan Greenhalgh, a United States expert on Chinese family policies, and Edwin Winkler. However, if the woman became pregnant while abroad for ordinary reasons, the couple is not fined. She pointed to the other evidence before the tribunal, to which I have referred, which pre-dated and post-dated the 2002 Home Office Report. The trial judge followed what she understood to have been the reasoning in VWFW v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 29 at [64] - [73] per Lander J with whom Kiefel J at [8] and, on this issue, Grey J at [7] agreed. Lander J said that it was not possible to contend that the tribunal had failed to have regard to two pieces of country information when it sought and obtained that information and made direct reference to it in its reasons. 25 Lander J held that, in expressing conclusions, the tribunal did not need to identify which of the particular pieces of information it had relied upon for any particular conclusion, and thus rejected a submission that the tribunal had failed to have regard to the information ( VWFW [2006] FCAFC 29 at [72] ). He distinguished the facts of that case from that of a decision-maker who failed to take into account a relevant consideration which the decision-maker was bound to take into account, referring to Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24. He then concluded that the appellant's argument was, in truth, one that the tribunal had failed to give sufficient weight to the information contained in the two documents and that that submission had to fail: VWFW [2006] FCAFC 29 at [73] . 26 The trial judge concluded that, here, the tribunal had comprehensively reviewed all of the evidence before it and had not simply relied on an out of date or less current piece of information. Her Honour rejected the appellants' argument characterising it as being that the tribunal had failed to give sufficient weight to information contained in other documents. She concluded that that did not amount to jurisdictional error. CONSIDERATION: DOES THE TRIBUNAL HAVE TO MAKE ITS DECISION ON THE MOST CURRENT INFORMATION AVAILABLE TO IT? 28 Mason J observed that considerable time might elapse between completion of the earlier report of a Commissioner and the time at which the Minister had to make a decision, which in that case was well over a year and a half. He said that the change of circumstances may mean that the previous comments were no longer an accurate guide. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. This conclusion is all the more compelling when the decision in question is one which may adversely affect a party's interests or legitimate expectations by exposing him to a new hazard or new jeopardy. 30 Recently, Buchanan J referred to the need for a decision maker to make his or her decision on the basis of the most current material available to him or her at the time the decision is made. He described this as an "expected practice", but in the circumstances of the matter he was deciding, he said that it was not necessary for him to consider the "expected practice ... as one in the nature of a jurisdictional imperative": SZIGH v Minister for Immigration & Citizenship [2008] FCA 1885 at [34] . This was because the tribunal had disbelieved the applicant for review in that case on matters completely unrelated to the more recent country information, which could not possibly have been relevant to events claimed to have occurred many years before. 31 Buchanan J was thus dealing with a factual context in which the recent material had no bearing on the outcome, and so the tribunal's error in failing to have regard to it did not affect its exercise of power in determining the review. I do not understand that his Honour was seeking to qualify the principle; rather he was explaining why it had no bearing on the ultimate exercise of power by the tribunal on the facts before him. 32 I consider that in Peko-Wallsend 162 CLR at 45, Mason J stated a principle of law generally applicable to administrative decision making, not a mere practice. Legislation may exclude the applicability of the principles of administrative law, as s 422B of the Act does in reducing the scope of the operation of the principles of procedural fairness or the rules of natural justice. But, the fundamental importance of these principles, as applied by the relevant statutory scheme in which they operate, is to ensure that a decision is arrived at lawfully; i.e. in the manner authorised by the Parliament: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at 160-161 [25] - [26] per Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ. A departure from the procedure mandated by law, ordinarily will lead to the Court setting aside the decision because the decision-maker acts outside the power and authority conferred by the legislation. However, the Court retains a discretion to withhold constitutional writ relief if the departure from the proper procedure would make no difference to the result, or some other recognised ground for exercising the discretion is present: SZBYR v Minister for Immigration & Citizenship [2007] FCA 26 ; (2007) 235 ALR 609 at 618 [28] - [29] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ. They are to be applied to the processes by which a decision will be reached. 35 The Minister argued that the appellants' complaint on this ground amounted to, in effect, a failure to give sufficient weight to the information contained in DFAT report 404. He relied on the reasoning on VWFW [2006] FCAFC 29 at [73] . He contended that the mere failure of the tribunal to refer to a piece of evidence which the Court thinks relevant does not, of itself, lead to the conclusion that the tribunal failed to take into account the relevant consideration: see Singh v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 1113 at [27] - [29] per Jacobson J. 36 However, those cases did not apply or qualify the principle identified by Mason J in Peko-Wallsend 162 CLR 44-45 that "... an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made" and that should be the most current material available to the decision-maker. Indeed, in VWFW [2006] FCAFC 29 at [68] - [69] , Lander J noted there that the first item of country information relied on suggested that the previous information was still current, and the second item of country information relied on was consistent with the tribunal's findings. 37 More importantly, the principle in the passage from Peko-Wallsend 162 CLR at 45 that I have set out above is distinct from the requirement considered earlier by Mason J in that judgment, namely that a decision-maker must take into account relevant considerations and not take into account irrelevant ones: Peko-Wallsend 162 CLR at 39-42. In other words, the issue which arises here is whether the decision-maker, the tribunal, was obliged to make its decision "on the basis of the most current material available to [it]": Peko-Wallsend 162 CLR at 45. 38 In my opinion, the critical question for the tribunal to decide under s 36(2)(a) of the Act is whether, at the date of its decision, the applicant for a visa is a person to whom Australia has protection obligations under the Refugees Convention. An adverse conclusion can result in an applicant for review being returned to his or her country of origin, despite his or her claim to have a well-founded fear of persecution were he or she to return there. And, if that occurs, he or she might be exposed to the possibility that the fear was in fact well-founded. 39 Often, circumstances can change radically in the applicant for review's country of origin between the time he or she arrived in Australia and when the decision-maker makes a decision under s 36(2) of the Act. In this time period, repressive governments may be toppled, democracies may suffer coups d'état and continuing governments may change their domestic policies to become more or less oppressive. 40 If the decision-maker has actual notice of a recent and significant matter affecting the question whether the applicant for a protection visa has a well-founded fear of persecution in his or her country of origin, the subject-matter, scope and purpose of s 36(2)(a) require the decision-maker to base his or her decision, as to whether the fear claimed is well-founded, on that information: Peko-Wallsend 162 CLR at 45. This is not to say that the decision-maker is obliged to find that the applicant in fact has satisfied him or her that the applicant, for example, has a religious belief as claimed simply because the latest information actually available to the decision-maker (i.e. before him or her) supports a conclusion of persecution of adherents of that religion in the applicant's country of origin. Rather, it is to say that in evaluating the claimed fear, the most recent information is relevant and must be considered. 41 The claim of a black person that he or she would suffer persecution for reasons of his or her race, by being subjected to slavery if he or she returned to one of the Confederate States in North America, would be viewed through very different eyes in 1861 and today. And the aphorism that a week is a long time in politics is not a merely local observation. The trend of events throughout the world is one of constant charge. A decision-maker charged with the important function of assessing whether Australia owes protection obligations to an applicant for a protection visa cannot ignore recent, up to date information actually before him or her and make a decision on earlier material which may be out of date. 42 Again, the decision-maker must not simply defer to the recent material because it is recent, for that would be to abjure the statutory function of arriving at his or her own state of satisfaction. The tribunal must be able to assess and weigh country information in forming its own ultimate conclusion on that information. And, there is no unqualified obligation for the tribunal to search out country information which it does not already have before it. The potential sources of such information are vast and of varying degrees of relevance, reliability, (im)partiality and utility. The recent material may not be cogent, full, accurate or satisfactory. But those characterisations could only be arrived at as part of the decision-maker evaluating the recent material in the performance of his or her function of basing the decision on the most recent and accurate material that the decision-maker has at hand: Peko Wallsend 162 CLR at 45. 43 Of course, the Court cannot turn a review of the administrative decision into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. Their Honours said that proceedings for judicial review should not over-zealously scrutinise the reasons of the decision-maker. Those reasons are meant to inform. 44 The tribunal was obliged to identify the evidence on which its finding of "considerable relaxation of the one child policy" was based pursuant to s 430(1)(d) of the Act. It did not make a jurisdictional error merely by failing to identify the evidence on which that finding was based. However, a decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; see also Telstra Corporation Ltd v ACCC [2008] FCA 1758 at [106] where I collected the authorities. 45 Here, the tribunal was actually aware of DFAT report 404 and used it to conclude that postponement of the compensation fee and payment of it by instalments was possible. Thus, it relied on the report in assessing the position of the appellants, were they returned to Fujian Province, as the basis for its conclusion that the family planning laws would be enforced in a way which permitted S's parents to pay the social compensation fee over time. Yet, the very same report stated, in the same paragraph from which the information relied on by the tribunal was taken, that the Shandong authorities strictly enforced the family planning laws. And the report stated that this accorded with DFAT's 2004 information regarding family planning regulations in Fujian province. 46 When the tribunal said that it accepted that "independent information shows that there is a considerable relaxation of the one child policy in Fujian Province", it provided no source for that assertion. Its attribution of relaxation appears to derive from what it said next, namely that one-third of families in the four counties of Fujian province had three children or more. The tribunal gave no reason for putting to one side the recent contrary information in DFAT report 404 that the laws were strictly enforced in both Shadong and Fujian provinces. And, the tribunal used part of that report itself, so it obviously regarded it as providing some reliable information. Of course, a decision-maker is entitled to accept some and not accept other parts of evidence from the same source, be it a witness or a document. 47 The material supporting "a considerable relaxation" identified by counsel and accepted by her Honour below was out of date compared to DFAT report 404. The latter contained information from 2004 in relation to Fujian Province. That was more recent than the 2002 UK information which the Minister argued the tribunal appeared to have accepted. 48 The tribunal used its finding of "considerable relaxation" to reject the husband's submission to it of 4 September 2006 about the population and birth control law of Fujian. There he wrote that that law had been published on 30 July 2002. The tribunal gave no reasons for rejecting the submission's references to the Fujian law dated July 2002 as the law that applied in that province. The tribunal did not give any consideration in its reasons to that law. If it existed, as claimed, it could not have been the Fujian law considered in the April 2002 UK Home Office report because that ante-dated July 2002. 49 The tribunal was so impressed by its "submission" in its s 424A letter of 10 August 2006 that its reasons do not reveal that it gave, any, let alone, proper, genuine and realistic consideration to the merits of the appellants' claims on the one child policy. It did not even refer in its reasons to whether it had considered the law which the appellants expressly put to it before rejecting their claim on the unsourced basis that there had been "considerable relaxation" of the application of some unidentified Chinese laws. Moreover, the appellants' claims of strict enforcement were supported by up to date, as at 2004, material on the Fujian position in DFAT report 404. 50 The tribunal failed to have regard to or give any reason for rejecting the recent country information in DFAT report 404 that the one child was strictly enforced in Fujian Province, contrary to its assertion that there was a "considerable relaxation" of that policy. Yet it used the up to date information from the same source for the purposes of finding that the social compensation fee could be paid in instalments. It did not give genuine, proper and realistic consideration to the merits of the appellants' claims as to enforcement of family planning law in China. Although the Minister argued that this was a matter either of weight or selection of evidence, I am satisfied that the tribunal ignored the most up to date and recent material available to it in DFAT report 404: Peko-Wallsend 162 CLR at 45. Accordingly, I am of opinion that the tribunal made a jurisdictional error and her Honour erred in failing so to find. For the reasons I have given, the tribunal was entitled to use this up to date information to the extent it did. While it did not have to accept the information, it had to base its decision on it: Peko-Wallsend 162 CLR at 45. I reject this argument. 52 The appellants also argued that the tribunal erred in failing to find that imposition of the fee would be persecutory of them. I am of opinion that this ground is without substance. The tribunal concluded that the fee was imposed by a law of general application. Her Honour concluded that this argument was an attack on the merits of the tribunal's decision. I agree. DID THE TRIBUNAL MAKE ANY FINDINGS ON WHEN THE SOCIAL COMPENSATION FEE WOULD BE PAID FOR "S"? 54 The tribunal accepted country information in many reports that stated that the Chinese authorities, first, applied the regulations dealing with the one child policy and, secondly, required payment of the social compensation fee (with the possible exception that the authorities might not apply the regulations and impose a social compensation fee in the case of a child conceived or, possibly, born out of China). The tribunal found that such a fee would be likely to be imposed on the parents in respect of S, were they to return to China. The Shandong regulations permitted a fee up to ten times the parents' income to be imposed. This may have required payment by instalments. The tribunal did not make any assessment of the real chance of a fee of a particular amount being imposed, nor did it address the capacity of the parents to pay any social compensation fee, even by instalments, within any particular period of time. As noted above, the tribunal discussed, at a high level of generality and speculation, the possible fee that may be imposed and possible scenarios as to how long it might take the appellant parents to pay it. This process, however, did not result in the tribunal making any finding about these issues. 55 There was nothing in the material before the tribunal or in its reasons to justify any conclusion that there was such a considerable relaxation of the enforcement of the Chinese family planning laws that the fee would not be required to be paid in full before S could be given household registration. But, the tribunal did not address the question of what fee would be likely to be imposed and when the appellant parents would be likely to have paid it, so that S's status as a "black child" would cease. The function of the tribunal was to assess the real chance whether the fee would be so large and the time for payment of any fee imposed would be of such a lengthy period that S would suffer persecution, were he to return to China. Until it addressed that question, it could not determine whether there was a real chance that S had a well-founded fear that he would be subjected to persecution as a "black child" because he would not be registered, were he to return to China: Chen Shi Hai [2000] HCA 19 ; 201 CLR 293 at 303-304 [29] - [33] per Gleeson CJ, Gaudron, Gummow and Hayne JJ. 56 Instead, the tribunal constructed a syllogism in its reasoning for rejecting S's claim entirely. First, it said that the status of a "black child" could be removed once the social compensation fee was paid. Secondly, the authorities may impose a fee which the husband and wife may not be able to pay immediately, but they may be able to pay it by instalments. Therefore, the tribunal asserted, there was no real chance that S would be treated as a "black child" because he would be able to be registered. 57 The critical question which the tribunal avoided by its syllogism was whether there was a real chance that S's household registration would not occur for a period of time sufficiently long, during which he would be denied access to State services ordinarily provided to children and citizens, so that he would suffer serious and systemic discrimination as a "black child". The tribunal made no finding at all about what the parents might be required to pay, let alone how long it would take them to pay that sum. The tribunal did not make any finding that the family planning laws were not enforced in relation to the payment of the social compensation fee. If there were a real chance that S would not be able to be registered for some substantial period due to the size of the fee and the time it would take for his parents to pay it in full, then it is difficult to understand how the tribunal could have come to the conclusion that S faced no real chance of being subjected to serious harm amounting to persecution. This was because he would be a "black child" unless and until the fee was paid in full. 58 All the tribunal did was to conclude that it was hypothetically possible that S might be registered, once the fee was paid. That was not the issue for the tribunal. It failed to consider the clearly articulated claim made by the appellants, in particular by the parents on behalf of S, that there was a real chance that S would not be registered at all or for some time because the parents had breached the one child policy with the consequence that S had a well-founded fear of persecution as a "black child" amounting to serious harm for a Convention reason. 59 I am of opinion that her Honour erred in concluding that the tribunal did address the real chance test. She accepted the Minister's concession that the tribunal's reasons suffered from verbal infelicity and looseness of language. However, the tribunal's reasons did not deal with the fundamental question which the tribunal was required to consider, namely whether S would be subjected to serious and systematic mistreatment amounting to persecution within the meaning of s 91R(1) of the Act because he would remain a "black child" whilever the fee was unpaid. Such a conclusion was consistent with the country information the Tribunal cited and no jurisdictional error is established on the basis contended for in relation to this aspect of the Tribunal [sic] reasons for decision. The tribunal said that it accepted country information in its "submission of 10 August 2006" about liability to penalties in respect of a child born abroad. One of the specific statements quoted by the tribunal in its 10 August 2006 letter was that, "... the couple must pay the out-of-plan birth fine" for a child who had been conceived in China (my emphasis, see [23] above). S was such a child. 62 Her Honour also appears to have accepted that the tribunal made a finding "as to the ability of the [appellant] parents to pay the social compensation fee" (at [98]). However, the tribunal made no such finding, nor could it have done so on its reasoning process. This was because it only speculated by postulating the possibility that some unspecified fee may be payable, that that may be at a level which the parent appellants may not be able to afford immediately, and that it may be that they would then be given an instalment plan. That non-sequitur did not justify the tribunal finding that there was no real chance that S would not be registered at all or within a reasonable time, having regard to whatever the fee or instalment period may be. To say that the consequences that are likely to befall him in China will result from his parents' financial situation is simply to say that neither he nor his parents have the means to mitigate the consequences of his adverse treatment. It may be that, if they had, the treatment in question could be viewed as appropriate and adapted to the implementation of China's "one-child policy" and not as persecution. However, that question is entirely hypothetical and need not be pursued in this case. It therefore failed to pose or answer the correct question and committed a jurisdictional error: C raig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ. Addressing that question may well have involved the tribunal dealing with the third basis on which the appellants argued it had erred. That was that the tribunal had not enquired whether the fee was appropriate and adapted to a legitimate end so as to be a law of general application. Her Honour rejected this argument finding that the tribunal had addressed the correct question in its speculation about what fee might be imposed. It is not necessary to decide this issue. THE SECOND GROUND: DID THE TRIBUNAL ERR BY FAILING TO DEAL WITH THE FATHER'S CLAIM THAT HE WOULD CONTINUE TO BREACH THE ONE CHILD POLICY? The tribunal recorded that he had made such a claim during an earlier tribunal hearing. Her Honour rejected this argument. The tribunal did not expressly give separate attention to this claim but made a general finding that it was satisfied that the husband had manufactured his claims in order to make a claim for a protection visa and found that he was not a credible witness. The trial judge held that, whether or not the tribunal addressed this matter as a separate claim, the tribunal dealt sufficiently with the possibility that the father might have further children in breach of the one child policy when it considered his other claims. Ultimately, it concluded that it did not accept his claims and was satisfied that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason or that he would be persecuted for any Convention related reason if he returned to China now or in the reasonably foreseeable future. 65 The trial judge noted that the tribunal had rejected the husband's claim that he was of interest to the authorities in China, prior to his departure, by reason of his breaches of the one child policy and that it had found that the imposition of a social compensation fee, in accordance with the law generally applicable in China for breach of the one child policy, did not amount to mistreatment so serious and systematic as to satisfy the requirements of s 91R(1) of the Act. Her Honour concluded that the tribunal's findings sufficiently addressed the possibility that the appellant parents may have more children and that they would then suffer difficulties by reason of the application of the one child policy. This ground was also advanced in the notice of appeal from her Honour. I reject it for the reasons her Honour gave. 66 Moreover, this claim was tied to the father's claims of Christian beliefs which the tribunal rejected. The mere fact that the husband might continue to breach the one child policy was not capable of making him a member of a particular social group: Applicant A v Minister for Immigration and Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225. Thus, in my opinion, this claim could not have succeeded. The only factual basis for the claim was that the father intended to continue to breach the one child policy and his Christian beliefs would not permit him or his wife to have abortions. Once the father's claim to be a Christian was rejected, his mere claim that he would have more children would not have been capable of making him a member of any particular social group identified by him in his claim. For these additional reasons, I reject this claim. I certify that the preceding sixty-seven (67) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

migration judicial review whether tribunal erred because it did not base its decision on a consideration of most recent country information available to it general principle that, in absence of legislation to contrary, administrative decision-maker is required to make decision on basis of most current material available to him or her at time decision is made requirement that tribunal give proper, genuine and realistic consideration to merits of case refugee and humanitarian visas husband, wife and child applied for protection visas on grounds that, among other things, parents in contravention of china's one-child policy child conceived in china, born in australia, claimed to fear of persecution in china by reason of his membership of particular social group, namely, "black children" migration judicial review refugee and humanitarian visas whether tribunal erred because it did not make findings in relation to amount of social compensation fee likely to be imposed on parents for breaches of one-child policy, or time that child would be a "black child" while fee remained unpaid tribunal speculated about possibility that fee that may be imposed and possible scenarios as to how long it might take parents to pay it tribunal did not make any finding regarding whether or not there was a real chance that any particular fee would be imposed or that a fee would be so large or time for payment of any fee would be so long that child had well-founded fear of persecution as "black child", if returned to china, because he would remain unregistered until fee was paid administrative law migration administrative law

The present application is for an interlocutory injunction to restrain the respondents from engaging in further unlawful industrial action. The application is supported by the affidavit of Paul William Day sworn 26 June 2009. Mr Day is the Project Manager for Diploma. On 2 July 2009 reliance was also placed on the affidavits of Ian Fraser sworn 25 June and 2 July 2009. The respondents rely upon the affidavits by the second respondent (McDonald) and the third respondent (Buchan) affirmed on 2 and 9 July 2009 respectively. Mr McDonald is the Branch Assistant Secretary of the Western Australian Branch of the first respondent (CFMEU) which is a registered organisation registered in accordance with the Workplace Relations Act 1966 (Cth). Mr Buchan is employed by the CFMEU and for the last two years he has been the organiser responsible for safety issues. He holds a certificate in Occupational Health and Safety from the University of Ballarat. Following argument, paras 13 and 14 of Mr McDonald's affidavit were struck out. The date in the first line of para 52 of Mr Buchan's affidavit was amended by him from 21 to 22 June 2009. After the hearing, counsel for the applicant and respondents resolved, by consent, that paras 19, 20, 22 and 41 be struck out of Mr Buchan's affidavit. Counsel also agreed that para 18 be amended to delete the words "it became clear that" in the first line, and delete the words "attempting to cut costs across all its sites. In particular, this was being achieved by" in the second line. All other objections were withdrawn. It is in these altered circumstances that I will consider whether or not interlocutory relief ought be granted. The ABCC's written closing submissions, quite understandably, proceed on the footing that the principal issue before the Court was whether the strike action taken was "building industrial action" under s 36 which was unlawful under s 38 of the BCII Act. The argument as to whether it was building industrial action focussed on whether the strike action, by the employees, or any of them was excluded from the definition of building industrial action under s 36(1)(g)(i) of the BCII Act in that this action over the relevant days was based on a reasonable concern by the employees or any of them about an imminent risk to their health or safety. The respondents' written opening submissions filed 16 July 2009 also proceed, implicitly, on this basis. The respondents' central submission was that they did not engage in unlawful industrial action contrary to s 38 of the BCII Act, because the actions of the employees in leaving the Site on the dates mentioned arose squarely from reasonable concerns over imminent risks to their health or safety. The position taken by the respondents was no different during the course of the hearing. However, in their written closing submissions delivered to the Court registry late on 31 July 2009 the respondents now also put in issue whether building industrial action occurred, as defined in s 36(1)(c) and (d) and whether the respondents engaged in that building industrial action. Also prior to that day, CFMEU officials did in fact access the Site regularly. Mr Buchan held a valid permit under s 740 of the WR Act, but it contained a condition that he not attend, or remain on a site in company with or in concert with Mr McDonald: Order of Australian Industrial Relations Commission dated 18 November 2008. Mr McDonald held no permit under s 740 of the WR Act and hence had no greater authority to enter a site than a member of the public. The CFMEU had been notified by the Diploma Guidelines that Mr McDonald's entry would not be permitted at all. The lawfulness of entry by either Mr McDonald or Mr Buchan is not essential to the ABCC's application. In the period from December 2008 through to June 2009, no industrial action had been taken for health or safety reasons. This was despite the frequent attendance by Mr Buchan, the CFMEU organiser with responsibility for safety issues, and his view that certain difficulties had emerged at the beginning of 2009. On 21 April 2009, Diploma wrote to the CFMEU advising that Mr McDonald would no longer be allowed access to the Site, or to any Diploma sites. The letter also confirmed that Diploma would thereafter adhere to a procedure that it called the "Rights of Entry to Comply with Federal Guidelines". The action by Diploma was in furtherance of Diploma's application for Federal Accreditation. The Implementation Guidelines for the National Code of Practice for the Construction Industry June 2006 require an employer to allow union access only in accordance with the governing procedures. On the next day, 22 April 2009, a CFMEU official attended the Site, and recorded the visit as relating to health and safety. This was the first visit that was expressly recorded as related to safety, but thereafter six were. CFMEU officials subsequently made other Site visits, but nothing was of note until 5 June 2009 when Mr Buchan attended the Site and spoke to the employees. The police were called, a Diploma representative told Mr Buchan to leave but he declined. The police arrived, as did Mr McDonald. The police took Mr Buchan and Mr McDonald to the boundary of the Site. Shortly thereafter, employees other than Diploma's employees and those working for Global Electrotech Pty Ltd left the Site and a three-day strike began. There was a return to work on 9 June 2009. Mr McDonald again attended the Site on 24 June 2009. Mr McDonald met with and spoke to the employees. A number of employees then went on strike for another two days on 24 and 25 June 2009, returning on 26 June 2009. All of the stoppages, the respondents say, were for health and safety concerns on the part of the employees. It is trite that responsible union involvement in health and safety matters is in the interests of employees and in the public interest. However, it has been recognised that the building and construction industry has in the past been afflicted by this use of purported health and safety issue to advance other causes. This artifice seeks to portray unlawful conduct as lawful. One legislative counter to this serious problem is that the onus of proof is reversed when health or safety is said to be the cause of building employees taking industrial action. Section 36(1) of the BCII Act defines "building industrial action". Under s 36(1)(g)(i) action by an employee is not "building industrial action" if it is based on a reasonable concern by the employee about an imminent risk to his or her health or safety. Section 36(2) of the BCII Act provides that whenever a person seeks to rely on paragraph (g) that person has the burden of proving that paragraph (g) applies. This is explained in the Revised Explanatory Memorandum to the Building and Construction Industry Improvement Bill 2005 (Cth) at para 5.134, which stated that the provision was included to prevent persons engaging in industrial action from avoiding responsibility for their actions by relying on spurious health and safety risks. Yet these are the traditional requirements for equitable injunctive relief. . . . In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. . . . This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions. Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include the ABCC. Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38. Section 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52]. The power to grant an injunction, including an interim injunction, under s 49 is additional to the Court's power under s 39 and, unlike the power in s 39, is not predicated on the Court's satisfaction that unlawful industrial action is occurring or is threatened, impending or probable. Rather, the Court may make any order "that it considers appropriate". The Court is required to make two main inquiries. The first is whether the applicant has made out a prima facie case in the sense that if the evidence remains as it is there is a probability that at the trial of the action the applicant will be held to be entitled to relief. The second is whether the inconvenience or injury to the applicant if an injunction were refused outweighs or is outweighed by the injury the respondent would suffer if the injunction were granted: Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 ; Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57. These expressions may be used interchangeably so long as their meaning is understood. A more dubious claim, which nevertheless raises a serious question to be tried, may still attract interlocutory relief if there is a marked balance of convenience in favour of that claim: Mobileworld Operating Pty Ltd v Telstra Corporation Ltd [2005] FCA 1365 at [20] per Weinberg J, citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464 at 472. The threshold for a serious question to be tried is not particularly onerous: Cahill v Construction, Forestry, Mining and Energy Union (2006) 151 IR 41, at [22]. The evidence discloses that building work was being performed at the Site but that many employees failed or refused to attend for and perform building work on 5, 6, 8, 24 and 25 June 2009 and no employer authorised or agreed in advance and in writing to this industrial action. The ABCC requires, against this factual background, to demonstrate a prima facie case that "building industrial action" has occurred under s 36 and is unlawful under s 37 of the BCII Act, and that each of the respondents engaged in the unlawful industrial action for the purposes of s 38. Whether there has been "building industrial action" depends, in part, upon whether the exception to action having that character is made out to the requisite degree by the respondents under s 36(1)(g)(i). The respondents point to the fact that they are not the employees in question and did not fail or refuse to attend for building work and are therefore not capable of engaging in building industrial action. They rely on Leighton Contractors Ltd v Construction, Forestry, Mining and Energy Union [2006] WASC 317 ; (2006) 164 IR 375 at [26] . It follows, they submit, that there is no cause of action against the respondents for engaging in building industrial action and, therefore, unlawful industrial action, in the manner alleged in paragraphs 1(a) and (b) of the Details of Claim in the application, and therefore no serious question to be tried in relation to those allegations. The respondents further contend that the application does not contain any reference to the accessorial provisions found in s 48(2) which treats persons involved in a contravention of a civil penalty provision as having contravened the provision. There is no merit in these submissions. The interlocutory relief sought is expressed as a restraint upon the respondents "being (first) engaged in or (second) involved in ..." action by Diploma workers. This language plainly enough exposes the ABCC's characterisation of the bases of liability of the respondents. The first is direct liability under s 38. The second is accessorial liability under s 48(2). The expression "Diploma workers" was defined in the application to include both employees of contractors together with employees of Diploma. It seems, however, that no Diploma employees went on strike. The interim injunctive relief was couched using the same language. The ABCC's written submissions filed on 29 June 2009 at paras 35-38 disclose the alternative statutory bases for the relief sought. Le Miere J in Leighton Contractors Ltd 164 IR 375 at [26] correctly stated that a defendant who was not a relevant employee and who did not fail or refuse to attend for building work is not capable of engaging in building industrial action with the definition in s 36(1)(d). However, his Honour was not there considering accessorial liability under s 48(2). This case does not assist the respondents. Section 38 of the BCII Act covers acts by persons other than employees. In Cahill v Construction, Forestry Mining and Energy Union (No 2) [2008] FCA 1292 ; (2008) 170 FCR 357 at [49] - [57] , Kenny J held that the words "a ban, limitation or restriction on the performance of building work" in paras (b) and (c) of the definition of "building industrial action" in the BCII Act covered the imposition of bans, limitations or restrictions by unions. Arguably s 38 extends to union officers in a case such as this. In any event the interlocutory injunction as against the CFMEU would, practically, be directed also at its employees, officers or agents. Further or alternatively, Mr McDonald and Mr Buchan and the CFMEU, are amenable to interlocutory injunctive orders under s 49 of the BCII Act by reason of the accessorial liability provisions of s 48(2) if a prima facie case is demonstrated that each aided, abetted, counselled or procured the contraventions by employees; or in the case of Mr McDonald and Mr Buchan that they were also directly or indirectly knowingly concerned in or a party to those contraventions. It will be sufficient for present purposes in relation to Mr McDonald and Mr Buchan, as respondents, if in due course, I consider only the question of accessorial liability under s 48, which of course depends on primary liability, upon a prima facie basis, being established against the CFMEU. The countervailing factual issues raised by the respondents who by reason of s 36(2) carry the evidentiary burden of whether, for the purposes of s 36(1)(g)(i) of the BCII Act, the industrial action was based on a reasonable concern by the employee(s) about an imminent risk to his or her health or safety. If the exception does not apply then the next question is whether, for the purposes of s 37, the building industrial action in each case was unlawful industrial action. I do not apprehend there to be any issue taken by the respondents on this question in the event that a prima facie case is made out that the action was building industrial action. The stoppage commenced at approximately 10.15 am when those employees left the site. The employees did not return to work that day. It seems to me very likely that at trial it will be established that the stoppage was initially instigated by Mr Buchan, who first addressed the employees at a "tool-box" meeting on the Site about safety on all Diploma sites although he did not mention specific safety concerns. Mr Buchan says that, as he addressed them about "issues" on other Diploma sites, Wes Francis, the Diploma site manager suggested that the employees get a petition up. This, says the respondents, amounts to a denial of the evidence of Mr Day that he heard Mr Buchan say "I am going to raise a petition for all of the Diploma sites with regards to general safety concerns and send it to John Norrup (a Diploma Director) ...". I do not consider it to be a denial. Mr Buchan does not expressly deny what he is alleged to have said but only that it was Francis who (first) raised it. At this meeting only one safety related matter was raised by some employees. It concerned the failure in the static pump line elbow which was part of equipment through which fluid concrete was pumped during concrete pours at the Site. Mr Buchan described this as a serious safety incident. It seems that there was a failure in the pump line elbow as a result of which a large piece of stone aggregate, approximately 50mm in diameter, shot out of the pump like a bullet and ended up 50 metres away hitting and damaging a window on the adjacent Woodside building. This incident occurred on 26 May 2009. Mr Buchan went to investigate the equipment with Wes Francis because he said concerns had been raised about signs of leakage of slurry on two other locations on the static pump line. Leaks were noticed and Francis said he would make arrangements to check out the leaks. Prior to this time, Mr Buchan said that he had a good rapport with Diploma management and that safety issues he had raised were addressed quickly. Mr Day says that Mr Francis informed him that Mr Buchan, as he was leaving the Site, told the employees to come outside the gate for another meeting to vote on taking action to leave the Site for a three day period. Mr Day's recollection as to this matter was rather vague when cross-examined. According to Mr Buchan, however, the employees had already left the Site by the time he got to the ground floor in the company of Mr McDonald, the police and Mr Francis. There is a conflict in the evidence. The mere fact that Mr Buchan was not cross-examined on his version is not determinative: Sullman v Sullman [2002] NSWSC 169 ; Kadian v Richards [2004] NSWSC 382 at [127] . Nonetheless I will, for present purposes, accept Mr McDonald's evidence on this point, with some reluctance. I say this because, according to Mr Buchan, at the end of the toolbox meeting, he went to the Site entrance. He gave no evidence that any decision was taken at the toolbox meeting by the employees to walk off the Site nor does he say that he saw them do so when he was at the entrance. If the employees had determined at the toolbox meeting to walk off the Site then Mr Buchan would have been able to testify to this and as to why such a decision had been made. He did neither. He would also have seen them leave the Site but he says nothing about that. I infer that the walk off by most of the employees was likely, in part, as a result of what Mr Buchan had earlier said to them at the toolbox meeting and that he, then and later, together with Mr McDonald were the catalysts for the employees' decision on 5 June 2009 to strike. It is most unlikely that there was a spontaneous walk out and subsequent strike action by the employees without that course first being discussed. Mr Buchan's silence on this matter is telling. So also is Mr Buchan and Mr McDonald's extraordinarily vague evidence as to what occurred at the off-site meeting. Whether it was said at the toolbox meeting or at the off-Site meeting or both of these, it seems to me very probable that it will be established that Mr Buchan and Mr McDonald counselled or procured the employees to stop work for three days on 5, 6 and 8 June 2009. None of the employees who stopped work returned on 6 or 8 June 2009. That they did not do so is very likely because Mr Buchan and Mr McDonald had exhorted them, and they had agreed, to strike over those three days. Were this not the case it is likely that the employees or at least some of them would have returned to work on 6 or 8 June but this did not occur. Mr McDonald, on his evidence, addressed the employees outside the Site gate. Mr Buchan says that he also spoke to them. According to Mr Buchan, he "saw McDonald talking to these workers". I infer that he also heard what Mr McDonald said but he gave no evidence as to what he heard. He said that, for his part, he told the employees that the police had been called but that he was concerned with raising issues that had been raised at the toolbox meeting. This evidence is not only vague, it is also ambiguous. Was he saying that whilst on-Site, although the police were there, he was dealing with the static pump line elbow issue or that he again discussed this matter with the employees at the off-Site meeting. I consider, in the context of his written evidence that it is probably the former. He then gave evidence that the employees "concerned about the safety issues" decided to stop work. What occurred immediately prior to this was eventful. Mr McDonald said that he attended the Site because he had been advised by a union member, whose name he could not recall, that Mr Buchan was being arrested at the Site. He met some employees on the footpath outside the Site and was taken by one of them, whose name, again, Mr McDonald did not know, on to the Site. They went eventually by the Alimak lift to the 8 th floor where he saw Mr Buchan with police officers and Diploma staff. He then left the Site. There was a brief discussion among these workers which I addressed. He was fully aware, no doubt, from his solicitors and counsel that the case sought to be made against him by the ABCC is that he had engaged in or was involved in unlawful industrial action by employees failing or refusing to attend work. At the very least I would have expected him to say why he addressed the employees, what he said to them, what he heard Mr Buchan say to them, what any employees said whether a vote was taken and what was its result. He did not do so. I infer that the reason for this is that it would not have assisted his case or that of the other respondents. This is particularly so when they each carried the evidentiary onus in respect to the s 36(1)(g)(i) exception and could otherwise have given evidence that they were not engaged or involved in the action. The same criticism may be levelled against Mr Buchan. The history of the industrial relations between employees at the Site and Diploma management underlines the significance of the involvement of Mr Buchan and Mr McDonald on and after 5 June 2009. Employees on the Site had not stopped work for safety or other reasons prior to 5 June 2009. The history in relation to safety concerns as I have identified discloses a co-operative and reasonable exchange between the workforce and Diploma management. Safety issues were dealt with quickly. There is no evidence of any particular employee(s) complaining to Diploma that safety issues were being ignored or flouted. No employee was called by any of the respondents to give evidence that the employees or any of them had safety grievances either historically or on 5-8 June 2009 or later. There is no evidence that any particular employee subjectively held a concern about imminent risk to his or her health or safety. The concerns of Mr Buchan about the faulty static pump line, if they be attributed to the employees, are, on the evidence, spurious. Diploma arranged to have the faulty static pump line inspected by Professional Concrete Pumping Services ("PCPS"). The faulty pipe was replaced on 27 May 2009 the day following the incident concerned. The remaining pipes were inspected to make sure none were faulty. They were all in good working order. The faulty pipe was returned to the manufacturers for investigation and report. PCPS provided a report dated 8 June 2009 which confirmed what had been done. There is no evidence from Mr Buchan or Mr McDonald of any particular concern advanced by any employee on 5 June 2009 constituting any reasonable concern of any imminent risk to any employees' health or safety. Mr Buchan took numerous photographs at the Site on 5 June 2009. They were adduced as objective evidence of imminent risks to the health or safety of employees. He was cross-examined extensively as to these. At approximately 10.15 am on 5 June 2009, and after the employees had left the Site, Mr Day telephoned Mr Andy Watson, a safety consultant at Millenium Safetynet Services and instructed him to carry out a safety audit of the Site to ensure that there were no safety breaches. Mr Watson attended the Site shortly after this to conduct an audit. The Millenium Audit Review Report has a rating scale for the matters the subject of the report. It is in this column that the rating figure is found. There were 109 separate observations contained in the report. None of these achieved a rating of less than 2. Ten observations had a rating of 2. All of the others achieved a rating of 4. Accordingly, the vast majority of observations were in the category where no action was required and ten were in the category where attention was required within the next two days. That would be within two days of 5 June 2009. There is no evidence of any safety concern held by employees on that day. The striking employees simply failed to attend for and perform building work. Mr Buchan and Mr McDonald did not attend the Site on 6 June 2009 and their respective affidavits do not refer to 6 June 2009. Mr Buchan took no photographs of the Site on 6 June 2009. The striking employees did not attend for work. Mr Buchan returned to the Site on Monday 8 June 2009. He says that he noticed mess and slurry which in his experience would be left by concrete cutters. He said that on that morning one of the employees whose name he could not remember handed him a note with the heading "Issues for Monday's Meeting". Mr Buchan says that on 8 June 2009, following an inspection by him at the Site in company with Mr Francis and Lisa Sherrell, the Diploma Occupational Health and Safety Representative, he gave a list of his site safety concerns to Ms Sherrell and completed a number of site safety improvement notices. He did not specify what was on the list. The first two notices were dated 5 June and the second two were dated 8 June 2009 although all of them were written by him on 8 June 2009. I cannot accept that Mr Buchan considered that any of the matters, even if correct, constituted an imminent risk to the health or safety of the employees. Had he thought this to be so he would not have waited till 8 June to call on Diploma to attend to these matters. He would also have deposed in his evidence that the alleged safety issues had this serious and urgent character, but he did not do so. spotters controlling public during crane lifts; Failure of static concrete pump. Leaking on 2 bends incident earlier which narrowly missed worker and aggregate from concrete striking Woodside tower window; Poor cleanliness and hygiene of toilets, washrooms and lunchrooms; increase risk from falls when working on ladder next to lift shaft opening when not fully covered over. All bins full on all levels. It became apparent in his cross-examination that he was confused about the actual dates. Eventually he conceded the correct dates were Saturday 20 th and Monday 22 nd June. He does not depose to when he was told this but I infer that it was probably on 23 June. Certainly when Mr McDonald attended at the Site on 24 June it was a matter which he raised with Mr Day. He said that there were employees gathered outside the Site and that he began a discussion with them about safety issues on the Site. He spoke later to Mr Day who, he says, asked him what the issues were. Mr McDonald says that he told Mr Day that employees had legitimate safety concerns regarding Diploma's management of the site and these concerns were not being addressed. He says that he told him about the Alimak being unsafe, problems with the cranes and safety concerns arising as a result of Diploma requiring the employees to pour concrete when it was dark. The crane and the Alimak and you have had the concrete pourers working to 7.30pm on the concrete pour. With regards to the concrete pour, I have had no complaints and I will look into it. It was used to take employees and others as well as materials to the different floors of the building. The safety issue involved a crane load coming within two meters of the Alimak while it was in operation. This occurred on 20 and 22 June 2009. Work stopped immediately and the issue was resolved on Monday, 22 June 2009 following a meeting between Diploma and the CFMEU. The outcome of the meeting was to revise the applicable JSA (Job Safety Analysis) in consultation with Mr Buchan and with advice from Millenium and to re-induct all the applicable employees. The Alimak was closed until this process had taken place. Mr Buchan did not object to the new JSA. Mr Day said that following his discussion with Mr McDonald, he spoke to Telfer Bowman of D & Z Constructions Pty Ltd by phone and asked him about the concrete pour. Mr Bowman told him that he knew nothing about it, but would ring him back. Shortly after, Mr Bowman rang him back and advised him that he had spoken to the concreters who had said that they were not unhappy working the duration of the pour, but said that when they had finished the pour someone had turned off the temporary lights in the temporary stairwell. In response to this concern, Diploma put secondary lights on the temporary stairwell so that if the temporary lights were turned off, the secondary lights would still remain on for employees leaving the Site. Mr McDonald says that he recalled Mr Day saying the safety issues were being dealt with and that he would look into any other safety issues the employees raised. Despite this, after being addressed by Mr McDonald certain of the employees again took strike action. The employees were all standing outside the gate and he says that he recommended to them that they should go back to work and give Diploma another chance to improve safety on the Site as senior management made a commitment to improve site conditions. He said however that the employees voted to remain off the job except for anyone who was required to make the area safer. He said the entry to the Site was still under water although much had been done which, in his view, went a long way to making the Site safer. He went for a walk around 2.00 pm through the Site and was satisfied that the Site was ready for the following morning. Mr Buchan was not cross-examined as to this evidence and I will, for present purposes, accept it as correct. However I do so again reluctantly given what occurred the following day. It is no mere coincidence that the work stoppages on 5, 6, 8 and 24 June were immediately associated with, and in my view, it is highly probable that they were the result of the attendance at the Site and what was said to the employees variously across those days by Mr Buchan and Mr McDonald. No photographs were taken on 24 or 25 June 2009. There is no evidence of any subjective concern by any employee or any objective evidence about any imminent risk to their health or safety being present on either 24 or 25 June 2009. He said it was agreed, although not between whom, that several areas were identified which required additional lighting but apart from this issue and one or two other minor matters the safety issues had been adequately addressed by Diploma. He said that there was a short Site meeting off-site and the employees returned to work. It merely defines "building industrial action". Liability is under s 38 of the BCII Act. It provides that a person must not "engage" in unlawful industrial action. . . . It is not necessary to identify which is the apposite limb under s 36(1)(d) in the case of each day. Nor do I think there to be a serious issue that there was a ban on the performance of building work on those days. The sufficient enquiry for present purposes in the cases of Mr Buchan and Mr McDonald, as I earlier observed, is whether there is a prima facie case that by their conduct, they attract accessorial liability under s 48(2). Mr McDonald addressed them on 24 June and Mr Buchan on 25 June 2009. I find that in respect to the strike action taken on 5, 6 and 8 June 2009 there is a prima facie case that Mr Buchan aided and abetted, counselled or procured a ban, limitation or restriction on the performance of building work: (ss 48(2)(a) and 36(1)(c)) and/or a failure or refusal by the employees to attend for building work or a failure or refusal to perform any work at all by the employees who had attended for building work (s 36(1)(d)). By s 69(1)(b) and (3), the conduct of each of Mr Buchan and Mr McDonald is taken to be the conduct of the CFMEU for all purposes of the BCII Act, unless a committee of management or a person authorised by the committee or an officer of the CFMEU took reasonable steps to prevent Mr Buchan's and Mr McDonald's actions: s 69(2). There is no evidence that such reasonable steps were taken. Mr McDonald was in company with Mr Buchan on 5 June 2009 immediately before the three day stoppage, yet that stoppage occurred. Mr McDonald is an Assistant Secretary of the CFMEU, and superior to Mr Buchan in the CFMEU. Each of them addressed the employees. I infer that Mr McDonald took no steps to prevent Mr Buchan's action on that day. Indeed, to the contrary, I consider there to be a prima facie case established in the case of Mr McDonald to the same effect as in relation to Mr Buchan in respect to the 5, 6, 8 and additionally, in respect to 24 June 2009. There is no evidence that any steps, reasonable or otherwise, for the purposes of s 69(2) were taken to prevent Mr Buchan or Mr McDonald's actions. Accordingly, I find that a prima facie case has been established that the CFMEU, by the actions of Mr Buchan and Mr McDonald, contravened s 38 of the BCII Act on 5, 6, 8 and 24 June 2009 but not on 25 June 2009. These findings depends on the related finding, which I make, that the ABCC has made out a prima facie case that the industrial action taken by the employees was building industrial action under s 36(1). In so finding I reject the respondents' submissions that it has established a prima facie case that the health and safety exception under s 36(1)(g)(i) has been established. I do so for the following reasons. Section 36(1)(g)(i) requires that the action taken was based on reasonable concern about imminent risk to health or safety. There is accordingly a necessary direct relationship between the concern and the action taken. Ranger had sued for alleged economic torts. The union said its conduct was justified because its motivating purpose was the protection and promotion of the safety of the workers. Munro J in AMWU v Rheem Australia Pty Ltd (PR929970, AIRC, 9 April 2003) at [45] thought it to be so in respect to a predecessor provision namely s 124 of the Industrial Relations Act 1988 (Cth) . In Labor Council of New South Wales v Axis Metal Roofing (2004) 131 IR 272 , Vice President Justice Walton considered whether, under s 143(5) of the Industrial Relations Act 1996 (NSW), a strike was based on a reasonable concern for health and safety of employees. There was no requirement for the concern for health and safety to be an imminent risk. The applicant accepts, correctly in my view, that an employee may have a concern even though his or her concern arose only from something communicated by a union official. However, such a concern must still be objectively reasonable. It will not be reasonable merely because it was raised by a union official. The concept of imminence describes the risk to the employees' health or safety. Accordingly, the probability of risk eventuating such that the employee is likely to be harmed or placed in an unsafe position requires to be considered. Even where a building site conforms to legislative or industry standards , there will always exist risks to health or safety. The question however is whether there exists an "imminent risk" to health or safety for the purposes of s 36 of the BCII Act. The ABCC submits that none of the alleged risks was higher than a bare possibility of harm and that none qualifies as "imminent" at the time the industrial action occurred on the Site. The ABCC argues that only two risks in evidence could have arguably constituted an "imminent risk" for the purposes of industrial action: the static line elbow rupture on 26 May 2009; and the crane load proximity to the Alimak hoist on 20 and 22 June 2009. As I set out in some detail above the concrete pumping was stopped when the static line elbow rupture was noticed. The elbow was replaced and the problem was investigated. In the case of the Alimak work was stopped immediately when the incident concerning the crane load proximity to the Alimak occurred and the issue was resolved on 22 June 2009. Accordingly, these two incidents were resolved by Diploma and thereafter did not constitute any continuing imminent risks to any employee's health or safety. On the days that these separate incidents occurred, there was no general stoppage of all work on the Site. Rather, both reasonably and responsibly, there was an immediate and focussed response by Diploma to the particular risks which had been raised. The allegations in respect of 5 June 2009 in my opinion, even if established at trial, do not constitute evidence of any "imminent risk" to any employee's health or safety. In relation to these issues, there is, as I have noted, no evidence of a complaint being made by any employee to Diploma or to an occupational, health and safety representative about the matters raised by the respondents. If there was in fact a bona fide safety concern about these issues, it would, it seems to me, have been reported as appears to have been what occurred historically. The respondents have not made out a prima facie case that the actions taken on that day were based on a reasonable concern on the part of any of the employees as to an imminent risk to their or any employees, health or safety. There was no concrete pour on 5, 6 or 8 June 2009 for which any replacement static pump line elbow could present an imminent risk to an employee's health or safety. None of the employees nor any of the respondents attended the Site on 6 June to check as to whether any "risks" existed. All the issues identified by Millenium were, on the evidence of Mr Day, fixed within 24 hours. None of these in any event constituted an imminent risk to any employee's health or safety. The evidence does not disclose that any employee had even arguably a reasonable concern as to any imminent risk to their health or safety on 6 June 2009. The photographs taken by Mr Buchan on 5 and 8 June do not, in my view, raise a prima facie case that there was any reasonable concern as to an imminent risk to the health or safety of any employee. I set out more fully my reasons for so concluding below. Any safety issues that were present on the Site on 8 June 2009, that were not on the Site on the morning of 5 June 2009, are incapable of constituting a basis for the industrial action that commenced on 5 June 2009 and continued on to 6 June 2009. Any safety issues that were present on the Site on 8 June 2009, that were not present on the Site on the morning of 5 June 2009, are also incapable of constituting a basis for industrial action on 8 June 2009. The employees in question were still on strike. Despite the content of Mr Buchan's list which he completed following his site inspection and which he gave to Ms Sherrell on 8 June and the content of the Site Safety Improvement Advices dated 5 and 8 June 2009 prepared on 8 June by him he, nonetheless according to Mr Day, told Mr Day that the employees would return on Tuesday being 9 June 2009. This was not contradicted by Mr Buchan or challenged during cross-examination of Mr Day. Mr Buchan said this to Mr Day before any remedial action had taken place in respect of the list of safety concerns or the Site Safety Improvement Advice. Indeed, on the following day, 9 June 2009, the employees returned to work and only then, after the employees returned to work on 9 June 2009, did Mr Buchan address the employees. Despite the content of the Improvement Advices and what was depicted in the photographs which Mr Buchan had taken the day before no such strike action occurred on 9 June. I infer that it is likely Mr Buchan knew that the employees would return to work on 9 June because this is what had been discussed and agreed to at the meetings with the employees on 5 June. There is a great deal of evidence, particularly from Mr Day, refuting what was said to be represented in some 38 photographs taken by Mr Buchan on 5 June 2009 and 8 June 2009 and grouped under sheets described as "Safety Observations". These were the subject of lengthy and detailed closing written submissions by the ABCC which contends that whatever the photographs depict they do not individually or in combination constitute evidence of imminent risks to the employees' health or safety at the Site on those days. The respondents, in light of what they characterise as the acceptance by the ABCC that it is open for the Court to conclude that there is a serious question to be tried about whether the action taken by the employees falls within the exception to building industrial action contained in s 36(1)(g) of the Act, expressly declined to make submissions to address the evidence of Mr Day regarding his interpretation of the photographs taken by Mr Buchan, or to address the ABCC's closing submissions in respect to these. In fact the ABCC has variously submitted that the issue under s 36(1)(g)(i) as to the alleged reasonable concerns as to health and safety ought now be determined. The ABCC submits that there is extensive evidence by affidavits, photographs and the parole evidence of Mr Day, who was cross-examined on this aspect of his evidence, to justify this course. The evidentiary onus is upon the respondents in this respect. They introduced the photographs and placed central reliance upon s 36(1)(g)(i). Mr Day's explanation in his evidence-in-chief concerning the photographs persuades me that none of them constitute evidence of any imminent risk to health or safety. The respondents have not made out a prima facie case in this respect. The Improvement Advices issued by the CFMEU to Diploma on 8 June 2009 are all in the form "You are advised to address the following matters...". None are in the form of "work must cease until the following matters are addressed...". Accordingly, these Improvement Advices do not show that employees had a reasonable concern for an imminent risk to their health or safety. Nor do they show that the industrial action was based on such concerns. They tend to show the opposite. Two of these Improvement Advices were issued on 8 June 2009 but backdated to 5 June 2009. This calls into question why the respondents did not issue Improvement Advices to Diploma on 5 June 2009. The appropriate inference is that there was no concern, reasonable or otherwise, as to any imminent risk to the health or safety of any employee. I am satisfied that the respondents have not made out a prima facie case that there was any concern by any employee about an imminent risk to their health or safety on 8 June 2009. The evidence is that the Alimak incidents on 20 and 22 June 2009 were raised by employees both with Diploma and with the CFMEU. However, there is no evidence that any employee held any concern about the incidents of 20 and 22 June 2009 on the days of the industrial action which occurred on 24 and 25 June 2009. The only evidence is that the problem was resolved immediately, and that Mr Buchan was involved in that resolution. Mr Buchan had access to Mr Day's affidavit, but has not contradicted this evidence. Mr Day was not cross-examined on this evidence and his evidence for present purposes should be accepted. Mr McDonald said that he told Mr Day on 24 June that the Alimak was unsafe. He does not say why he considered it unsafe. He did not, for example, say that the Alimak was by design or mechanical failure or otherwise inherently unsafe. I note that this is the same Alimak lift which Mr McDonald used on 5 June to take him to the 8 th floor of the building at the Site. The issue of the lighting on the Site was also resolved by Diploma. This issue did not form part of Mr McDonald's reasons for attending the Site on 24 June 2009. In any event, there was no concrete pour on 24 June 2009. It could not have constituted an imminent risk to the health or safety of any employee. Again I find that the respondents have failed to establish a prima facie case in relation to the exception in s 36(1)(g)(i) as to any reasonable concern by any employee about an imminent risk to their health or safety on 24 and 25 June 2009. I am also satisfied, for the following reasons, that a prima facie case has been established that the building industrial action was unlawful industrial action for the purposes of s 37. It is very probable that the industrial action was for the purposes of s 36 of the BCII Act "industrially motivated", such purposes including the disruption of the performance of work. It was arguably also to advance the industrial objectives of the CFMEU. Diploma is a constitutional corporation in that it is a trading corporation carrying out the construction of buildings for profit under commercial contracts with landowners. The industrial action taken has, without question, adversely affected it. Thus this industrial action is "constitutionally connected action" under s 36 of the BCII Act. It is not suggested that the industrial action was "excluded action" pursuant to s 36 of the BCII Act and I find that it was not such action. These reasons may well have been the motivation behind the strikes. It is unnecessary that I form a view as to this even on a prima facie basis. It is enough that I have concluded that there is a prima facie case established by the ABCC that the respondents engaged in unlawful industrial action. Whatever the real reasons I am satisfied to the necessary degree that they had nothing to do with any reasonable concern as to any imminent danger to the health or safety of any employee on the Site. It is of particular concern that the CFMEU, Mr McDonald and Mr Buchan have, as I have found on a prima facie basis, hidden behind spurious concerns as to the health and safety of employees to advance, as I infer, their own unspecified industrial aims. It is the very behaviour which the Commonwealth Parliament has made clear should be eradicated from the building industry in this country. It is conduct that directly undermines the main object of the BCII Act (s 3(1)) which 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. In particular it undermines the legislations expressed means of achieving this object which include promoting respect for the rule of law; ensuring respect for the rights of building industry participants; and improving occupational health and safety in building work: s 3(2). I am satisfied for the above reasons not only that the ABCC has established a prima facie case for the relief sought but that it has a very strong case, on the evidence before me, for that relief. The question of repetition is nonetheless of relevance to the exercise of the discretion, but the relevance is set in the particular context of public interest injunctions, as distinct from those related to private proprietary interests: ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 at 256/7 per Lockhart J; 267 per Gummow J; 268 per French J. That deterrence is effected by attaching to the repetition of the contravention the range of sanctions available for contempt of court. In any event this application for an interlocutory injunction does not engage the adequacy of damages test set out in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 at 408. That test applies where the injunction is to restrain interference with a legal right of the plaintiff. The ABCC's application is made in the public interest of improving the building and construction industry under a statutory capacity to so apply. It is not in respect of any interference with any legal right of the ABCC. The legislature plainly conferred on the ABCC powers to obtain interlocutory injunctions, damages and penalties as instruments for effecting that improvement: ICI Operations [1992] FCA 474 ; 38 FCR 248 per French J at [268]. Each is free to take industrial action if reasonably concerned about an imminent risk to his or her health or safety. Only the CFMEU and its officers are to be enjoined. Even then the conduct to be enjoined is unlawful conduct. There is, accordingly, no prejudice to the respondents. For these reasons the balance of convenience strongly leans toward the grant of the interlocutory relief sought. I am satisfied that interlocutory injunctive relief ought be made against each of the respondents. Section 49(1) and (3) of the BCII Act are a sufficient source of power in this case. I do not consider that the potential pecuniary penalties under s 49(1)(a) or payment of compensation for damage under s 49(1)(b) ought stand in the way of this relief. There are important public policy considerations involved which extend beyond relief of that kind. The sanctions available for contempt provide a strong disincentive to the repetition of such further conduct. I will defer the making of actual orders as the respondents have indicated that they wished to be heard on the form of these should the Court be minded to grant interlocutory injunctive relief. I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.

application for interlocutory injunction to restrain unlawful industrial action s 38 of the building construction industry improvement act 2005 (cth) whether action taken was building industrial action whether action was based on a reasonable concern by employees about an imminent risk to health or safety application of accessorial liability to union officers whether prima facie case no evidence of any imminent risk to any employee's health or safety injunction granted industrial law

These reasons for judgment relate to an interlocutory application made by Beautree in each proceeding for the appointment of liquidators provisionally under s 472(2) of the Corporations Act 2001 (Cth) (the Act). I made that order on 8 July 2009 for the reasons that appear below. On the preceding day I made orders which, like those of 8 July, appear at the front of these reasons and to which these reasons also relate. Beautree holds 50% of the issued shares in each of Willow Glade and Pazoluca, the other 50% being held by Feldcorp Pty Limited (Feldcorp). The directors of each company are Richard Davies Bamford and Simon Ari Feldman. Mr Bamford is the sole director of Beautree and is its sole shareholder. Mr Feldman is the sole director of Feldcorp and he and his wife Camilla Feldman are its only shareholders. There has been a breakdown in relations between Mr Bamford and Mr Feldman and, through them, between Beautree and Feldcorp. In the result there is a deadlock within both Willow Glade and Pazoluca. In each case the ground on which Beautree, a contributory (see s 462(2)(c) of the Act), seeks a winding up is that it is "just and equitable that the company be wound up": see s 461(1)(k) of the Act. On 6 July 2009 I ordered that the proceedings be heard together and that the evidence in each be evidence in the other, subject to all just exceptions on grounds of admissibility. On 7 July 2009 I granted leave to Speciality Fashion Group Limited (SFG) to be heard. The role of SFG will appear below. Michael John Morris Smith and Peter Hillig, official liquidators, of Smith Hancock Chartered Accountants have signed in each case a consent to act as liquidators provisionally. Feldcorp, through Mr Feldman, was served with copies of the originating process and interlocutory process and the supporting affidavits. I am satisfied that Mr Feldman was aware that the interlocutory application had been made in each proceeding and was being heard by the Court. Neither Feldcorp nor Mr Feldman sought to be heard. The plaintiff in the Supreme Court proceeding is SFG. There are 19 defendants in the Supreme Court proceeding. I need not identify all of them. The first defendant is Muirhead Nominees Pty Ltd (Muirhead) of which Mr Marks, a relative of Mr Feldman, is the sole director. The shares in Muirhead are held by Mr Marks and there is evidence that he holds them in trust for Pazoluca. The eleventh defendant is Mr Marks. The eighteenth defendant is Camilla Feldman, the wife of Mr Feldman. At material times, Mr Feldman was a senior employee of SFG. SFG claims in the Supreme Court proceeding that over the last few years Mr Feldman has misappropriated approximately $16 million of the funds of SFG. According to the allegation his modus operandi was to create "false invoices" from various companies with which he was associated addressed to SFG, as a result of which SFG paid the amounts of the invoices to those companies. Of course, the invoices were real enough, but the allegation is that the goods or services or other consideration referred to in them had not been supplied to SFG. The companies that issued the invoices and others that benefited from the payments are defendants in the Supreme Court proceeding. They include the companies mentioned in these reasons for judgment. On 12 May 2009 the Supreme Court made freezing orders which, on 15 May 2009, were continued until further order. Other orders made by the Supreme Court required, relevantly, Mr Feldman, Ms Feldman, Beautree, Willow Glade, Pazoluca, Feldcorp, Mr Bamford and Ms Yonon to swear and serve affidavits by certain dates. Relevantly, Willow Glade and Pazoluca were required to do so by 29 May 2009, but have not complied with this order. I was most anxious to ensure that these proceedings have not been brought in order to obtain a result that would in any way impinge upon any contempt of court proceeding that might be brought in respect of Willow Glade's and Pazoluca's non-compliance with the order of the Supreme Court. I explored this question with counsel who appeared for Beautree and senior counsel who appeared for SFG. I was satisfied that the proceedings were not brought for any untoward purpose and that orders for the appointment of liquidators provisionally would not prejudice the imposition of any sanction for contempt of court. Senior counsel for SFG informed the Court that SFG hopes that the appointment of provisional liquidators may facilitate the provision of the affidavits and therefore compliance, albeit out of time, with the Supreme Court's order. The matter of giving leave for SFG to proceed with the Supreme Court proceeding against Willow Glade and Pazoluca (see s 471B of the Act) will be able to be dealt with by that Court. It is necessary to say something further about the dramatis personae . Beautree and Feldcorp own in equal shares the issued share capital in Revived Rubber and Mr Bamford and Mr Feldman are the directors of that company. It is a trading company that operates a tyre recycling plant out of premises at Fairfield which it leases from Willow Glade. It leases manufacturing equipment from Motive Finance and Equipment Leasing Pty Ltd (Motive) which on 2 June 2009 gave notices of default and of termination of contract to Revived Rubber through its directors, Messrs Feldman and Bamford. Willow Glade owns premises at Fairfield and at Alexandria. As noted earlier, the shares in Willow Glade are held equally by Feldcorp and Beautree but the shares that Beautree holds, it holds as trustee for the Bamford Family Trust. A similar observation applies in relation to the equal ownership of the share capital of Pazoluca by Feldcorp and Beautree. On 2 June 2009 Motive also gave a notice of default and termination in respect of leased equipment to Willow Glade. As well, a notice of default under s 57 of the Real Property Act 1900 (NSW) was served on 25 May 2009 to Willow Glade as mortgagor of the Alexandria property. Pazoluca has three subsidiaries. The first subsidiary is Secure Archives, whose sole director is Ms Yonon (also known as Ms Bamford). Secure Archives is a trading company that provides document storage services in premises at Fairfield that it leases from Willow Glade. Its clients include planning firms and law firms. Some three weeks ago, Mr Bamford terminated the services of all three of its employees. On 2 June 2009 Motive gave a notice of default and termination to Secure Archives in respect of leased equipment. The second subsidiary is Renaza whose directors are Mr Feldman and Mr Bamford. Renaza is a trading company which leases premises at Alexandria from Willow Glade. It uses recycled tyre crumb and granulated rubber generated from the operations of Revived Rubber to manufacture various products. On 2 June 2009 Motive gave Renaza notices of default and termination in respect of equipment that it leased. Muirhead, to which I referred earlier, is not a trading company and does not employ anyone. It is a wholly owned subsidiary of Pazoluca only in the special sense that all the shares in it are held by Mr Marks as trustee for Pazoluca. First, it must appear likely that on the final hearing the company will be ordered to be wound up. Second, there must be circumstances of urgency, such as a threat of dissipation of assets, that require the appointment of a liquidator provisionally. The affidavit evidence of Mr Bamford shows relevantly that over a period from 13 May 2009 to 23 June 2009 he has been in discussions with Mr Feldman regarding the appropriate course of action to take in response to the Supreme Court proceeding. These discussions have included unsuccessful attempts by Mr Bamford to convince Mr Feldman to agree to put the four operating companies, Revived Rubber, Willow Glade, Renaza and Secure Archives into liquidation. On 28 May 2009 Mr Feldman sent Mr Bamford an email stating that he was reluctant to place any business into liquidation. Mr Bamford has made several approaches to Mr Feldman to come up with a concrete proposal but none has been forthcoming. Mr Bamford has expressed to Mr Feldman his (Mr Bamford's) concern about the companies trading while insolvent. Mr Feldman has at times expressed to Mr Bamford a desire to move with his family away from Sydney to live in order to mitigate the ramifications of his problems for his family. Mr Feldman has also told Mr Bamford that he (Mr Feldman) wants to "do a deal", apparently in order to bring the Supreme Court proceeding to an end. Nothing has come of this. Mr Feldman's central concern appears to have been to cooperate with SFG, or at least to seem to be doing so. In more recent times, Mr Feldman has not been responding, or not responding constructively, to messages left for him by Mr Bamford. Mr Bamford states in his affidavit that he feels he is unable to have any effective communication with Mr Feldman in relation to the companies of which they are the directors. In particular, he states that he cannot obtain Mr Feldman's agreement to taking the action that a board of directors should normally take in circumstances such as those presently existing. SFG asked for an order that it be at liberty to use Mr Bamford's affidavit in the Supreme Court proceeding and I made an order to that effect on 7 July 2009. I am satisfied that it is likely that on a final hearing, orders will be made for the winding up of Willow Glade and Pazoluca on the just and equitable ground. There seems to be an irretrievable breakdown in the relationship between Mr Feldman and Mr Bamford. In relation to the exercise of discretion the circumstances are unusual in that the freezing order made by the Supreme Court itself prevents the dissipation of assets. The circumstances of urgency, however, are of a different kind. First, in the Supreme Court proceeding, SFG has filed a notice of motion seeking summary judgment and the motion was to be before the Court this coming Friday 10 July. Accordingly, it was urgent that Willow Glade and Pazoluca be in a position by then to inform the Supreme Court of the position that they respectively take. As Mr Beech-Jones SC, who appeared for SFG observed, it may be that provisional liquidators will not be able to resolve their position finally by this coming Friday, but at least matters will be advanced further than they would if left in the hands of Messrs Bamford and Feldman. The second consideration showing urgency is the possible insolvency of companies in the group. In addition to the circumstances previously mentioned is the fact that for the year ended 30 June 2008, the following companies made losses: Secure Archives, Willow Glade and Renaza, as did the Willow Glade Unit Trust. Of all the companies mentioned only Revived Rubber made a profit --- and that was a modest profit of $87,038.79. It is desirable as a matter of urgency that an independent person investigate the financial position of Willow Glade, Pazoluca and the subsidiaries. For the above reasons I was persuaded that liquidators should be appointed provisionally. It was debatable whether an undertaking as to damages should be required because there was a question whether, in the unusual circumstances, the companies could be caused loss by the appointment of a provisional liquidator if on the final hearing (which should occur at an early date) a winding up order should be refused. I need say no more: Beautree through its counsel proffered the usual undertaking as to damages which the Court accepted. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

liquidation appointment of liquidators provisionally under s 472(2) of corporations act 2001 (cth) application for winding up on "just and equitable" ground breakdown in relations between the two directors of company supreme court proceeding against company on foot motion for summary judgment to be before supreme court in two days' time because of deadlock within company, impossible for company to defend supreme court proceeding or take any other step in it company in breach of asset disclosure order made in supreme court proceeding whether prejudicial to a proceeding for contempt of supreme court's order for provisional liquidator to be appointed discretionary considerations possible insolvency of companies in group. held : provisional liquidators appointed. corporations

The allegations made arise from the use in Australia by the respondents of titles and logos using the term 'Body Logic' and 'Body Logic Resources' . An amended statement of claim was filed on 28 April 2008. 2 The respondents have filed both a defence comprehensively challenging the pleaded assertions in the amended statement of claim and also a cross-claim against the applicant. The cross-claim seeks an order for rectification of the Register of Trademarks pursuant to s 88 of the Trade Marks Act 1995 either by cancelling the registration of registered trademarks relied upon by the applicant or by recording the third respondent/third cross-claimant as the registered owner of those trademarks. The applicant has filed a reply to the defence to the amended statement of claim and a defence to the cross-claim and the respondents/cross-claimants have filed a reply to the defence to the cross-claim. The pleadings are accordingly closed. 3 By notice of motion filed on 20 June 2008 the respondents sought an order for security for costs in the sum of $104,500 ($94,700 rounded up to $95,000, plus GST) to the end of pre-trial preparation. Initially the notice of motion was opposed in its entirety. However, by the time the notice of motion was argued today both the applicant and the respondents had modified their positions. First, the applicant accepted that some order for security for costs was not able to be resisted. Nevertheless, I will indicate the reasons for my own view that an order for security for costs is appropriate. (2) The Court shall not order an applicant to give security by reason only of paragraph (1)(c) if it appears to the Court that the failure to state his address or the mis-statement of his address was made without intention to deceive. That means that the court exercising the discretion must weigh all the circumstances of the case. The weight to be given to any circumstance depends not only upon its own intrinsic persuasiveness but upon the impact of the other circumstances which have to be weighed. A circumstance which may have very great weight when only two or three circumstances have to be weighed may be of minor significance when many circumstances have to be weighed. However, for over 200 years, 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. Indeed, for many years the practice has been to order such a party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction. 7 It was uncontested that the applicant is ordinarily resident outside Australia within the meaning of O 28 r 3(1)(a) of the Federal Court Rules . His amended statement of claim pleads that he is a citizen of the United States of America. His defence to the cross-claim admits that a business visa was terminated on or about November 2004 and that he has not resided, or obtained a working visa to work, in Australia since about February 2005. Correspondence from the applicant's solicitors in the present proceedings, dated 24 April 2008, which is annexed to an affidavit of Peter Andrew Campbell filed on 20 June 2008 records their instructions that the applicant 'does not have any fixed assets within Australia' . Mr Kortian, who appeared today for the applicant, confirmed that position orally. 8 The same letter asserted that 'the Federal Court has generally held that an order for security for costs against an individual applicant (as opposed to a body corporate) should only be made in rare circumstances' . That assertion is not able to be reconciled with the authorities to which I have already referred and it was not pressed in the hearing before me. The respondents have accordingly made out a case for an order for security for costs, subject to appropriate quantification. 9 The applicant's acceptance that some order for security for costs was not able to be resisted effectively reduced the field of real debate to one about quantum. The quantified claim for an order for security for costs in the sum of $104,500 was supported by the affidavit of Peter Andrew Campbell, a partner of the law firm Kelly & Co, solicitors for the respondents/cross-claimants. Mr Campbell's affidavit explained the basis for the calculation leading to the quantification, said to be on a conservative basis, of anticipated costs to the end of pre-trial preparation. I accept that the assumptions and estimates are responsible ones. However, there was some debate before me about the extent to which all his estimates were relevant and whether it was necessary or appropriate that a single payment only be ordered. Mr Campbell estimated that conservative costs on a party/party basis which would be necessarily incurred by the respondents would include: for 'pleadings and particulars' ($6,800 + GST); for 'discovery and inspection' ($9,800 + GST, including $3,000 travel); and for interlocutory attendances ($9,100 + GST, including $3,000 travel). He also provided an estimate for other 'trial preparation (including evidence)' ($69,000 + GST, including $3,000 travel). 10 I gave Mr Kortian, who appeared for the applicant, leave to file in court an affidavit sworn by him today. I am informed by the Applicant and believe that the requirement for an up-front, lump sum, payment of AU$104,500 as security would present a seriously adverse financial obstacle to the Applicant and would frustrate the pursuit of his claims in these proceedings. 'I otherwise do not propose to address the evidence filed in support of the Security Application other than observing that the amount of security claimed in the Security Application is clearly excessive based on my experience of over 14 years in such intellectual property litigation before the Federal Court of Australia. The only other basis offered initially for disputing reliance on Mr Campbell's evidence was that contained in para 4, but this statement, made on information and belief cannot displace either the basis for an order for security for costs which, as I have explained, the facts establish or proper quantification of such an order. 12 In oral submissions, Mr Kortian directed his energies to a challenge to any allowance for travel and the need to make provision now for the whole of the pre-trial period. His affidavit referred to an offer made five days ago to provide security up to discovery and inspection ($15,000) to be paid within 14 days, a further $5,000 for 'interim appearances' and steps up to the close of the applicant's evidence and then $30,000 for preparation of the respondents' evidence to be paid when the applicant's evidence was filed. 13 Mr Dimitriadis, who appeared for the respondents, accepted that the Court may prefer to provide for security in stages and sought, in that event, that $45,000 (+ GST) be ordered at once to cover the first three matters identified by Mr Campbell, as well as some allowance for preparation of evidence relating to the issues disclosed by the pleadings, with the balance to be paid later or, if necessary, to be the subject of a further application. I think the suggestion is, in principle, a practical one and, subject to further discussion of the amount to be allowed, I will give effect to it. 14 The respondents have chosen to instruct solicitors in Adelaide, although the proceedings were commenced in Sydney and the third respondent, I was told, is resident in Queensland. The respondents may, of course, instruct who they wish but I am not satisfied that I should include any allowance at the present time for travel. Otherwise, however, I am satisfied that I should accept Mr Campbell's estimates about the first three matters he identified. Mr Campbell's estimate for these matters provides a figure of $19,700 (+ GST) which I will round up to $20,000. 15 I also think it is reasonable to make some, but not full, allowance for preparation of the respondents' evidentiary case now that the pleadings are closed and the factual issues have been identified. The amount suggested by Mr Dimitriadis for this element was effectively about $20,000 (+ GST). I think that is a reasonable allowance to make against Mr Campbell's estimate of $66,000 (+ GST) once travel is excluded. 16 Accordingly, I am satisfied that security for costs of $40,000 (+ GST) should be provided at this stage. I am not prepared to stage it over the various periods suggested by Mr Kortian as there is no reason why preparation of evidence may not commence now that the pleadings are closed. 17 When the applicant has filed his evidence and the likely scope of the evidentiary, as well as the pleaded, contest is clearer the respondents may seek further orders in relation to security, supported by appropriate estimates and calculations. If the fact that the third respondent is resident in Queensland then appears to generate specific, and allowable, expenses relating to travel that may also be raised if it is necessary. 18 The remaining issue concerns the question of the costs associated with the notice of motion. 19 In accordance with ordinary principle and practice, it is clearly appropriate to order some security for costs and the applicant finally accepted that. The applicant initially resisted the notice of motion altogether. That fact provides some support for the respondents' claim for costs of the notice of motion. However, ultimately both sides presented modified positions when the notice of motion was argued. Neither side has been wholly, although both have been partially, successful. The claim for a separate costs order regardless of the final outcome of the proceedings raises the odd prospect that if the order for security for costs ultimately serves no real purpose (because the applicant succeeds) the respondents should nevertheless now have their costs of obtaining such an order. In my view the matter should be assessed, if necessary, in the light of the result of the proceedings as a whole. The costs of the present interlocutory proceedings will themselves be protected by the order for security for costs which I will make. In the circumstances costs of the notice of motion should be reserved. Within 28 days of the date of this Order, the applicant provide security for the respondents' costs of these proceedings to the end of pre-trial preparation in the sum of $44,000, in a form acceptable to the Registrar or as directed by the Court. 2. Liberty be granted to the respondents to apply to increase the amount of such security, after the applicant's evidence in chief is filed. 3. The costs of, and associated with, the notice of motion filed on 20 June 2008 be reserved. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

security for costs applicant resident outside australia with no fixed assets in australia pleadings closed security for costs ordered for pre-trial procedures including some preparation of evidence liberty to apply for further orders. costs

In that decision the Tribunal affirmed a decision of a delegate of the Minister to refuse to grant an Established Business (Residence) (Class BH) (Subclass 845 (Established Business in Australia)) visa to the first appellant. 2 The first appellant is a citizen of Lebanon who arrived in Australia in September 1998. The first appellant, Mr Romeo Ibrahim, was the main visa applicant and will be referred to in these reasons as the appellant. The other appellants are his wife and three children. 3 On 8 October 2004 the appellant applied for an Established Business in Australia (Subclass 845) visa. On 31 May 2005 a delegate of the first respondent refused that application. On 7 June 2005 the appellant applied to the Tribunal for a review of that decision. 4 The criteria which must be established to satisfy the grant of a Subclass 845 visa is contained in cl 845 of Schedule 2 of the Migration Regulations 1994 (Cth) (the Regulations). 6 The applicant claimed that on 28 March 2001 he had commenced the business of providing access and scaffolding to the construction industry trading under a business name REI Construction. He provided evidence of the registration of that business name in the Australian Business Register. He claimed that REI Construction Pty Ltd was incorporated on 13 September 2004 and he was the sole shareholder of that company. He provided evidence of the incorporation of the company and that he was the sole shareholder. He claimed that the company acquired the assets owned by the business some time prior to 30 September 2004. 7 In support of his application, he provided a profit and loss statement for the financial year ended 30 June 2004 of REI Construction which showed a profit of $115,012.48 out of gross receipts of $1,332,204.30. The profit and loss statement shows expenditure for materials and supplies $123,598.23, salaries $196,157.15 and subcontractors $685,386.40 He also provided a balance sheet for the business as at 30 June 2004 which disclosed net assets of $469,535.51. 8 The assets comprised receivables of $285,000, cash of $11,000 and property, plant and equipment (including motor vehicles) of $317,035.91 after allowance for depreciation. 9 The liabilities included $24,807 said to be unsecured cash at bank (an overdraft), a liability for GST payments of $138,700 against which was offset $87,251.66 for an input tax credit control account and amounts withheld from salary and wages of $67,243.46. 10 No trade creditors or any moneys owing to subcontractors are disclosed which might be thought to be odd, especially having regard to the profit and loss statement. 11 The figures were unaudited but were prepared by a public accountant. Note 1 to the Notes to the Financial Statements includes a Statement of Accounting Policies which asserted that the report had been prepared in accordance with two particular Australian Accounting Standards; AAS 5 --- Materiality and AAS 8 --- Events Occurring After Reporting Date. The accounts also included a Compilaton Report which disclosed that the report had been compiled in accordance with APS 9 "Statement of Compilation of Financial Reports". The Compilation Report discloses that the appellant was solely responsible for the information contained in the report. No person should rely on the special purpose financial report without having an audit or review conducted. The special purpose financial report was prepared for the benefit of the proprietor and the purpose identified above. We do not accept responsibility to any other person for the contents of the special purpose financial report. A Statement of Significant Accounting Policies in the same terms as the previous statement was a note to those financial statements. The profit and loss statement showed a net profit before tax of $230,299.92. This was achieved on a turnover of $1,339,364.05. The profit and loss statement disclosed salaries of $181,371.15 and payments to subcontractors of $701,351.85. A sum of $41,511 was applied to depreciation. 13 The balance sheet compared the business's assets and liabilities as at 1 October 2003 and the company's assets and liabilities as at 30 September 2004. There are obviously some difficulties in comparing the balance sheet of a business which the appellant owned as at 1 October 2003 and the balance sheet of a company of which the appellant was the sole shareholder as at 30 September 2004. An attempt had been made, however, in the balance sheet to do so. 14 The net assets of the business as at 1 October 2003 are disclosed at $234,607.28. The net assets of the company as at 30 September 2004 are given as $471,529.10. 15 In both cases, the balance sheet discloses "Owner's Equity". That owner's equity would appear to reflect an opening balance, the profit for the year less the drawings. I think, however, that may be explained by the way in which the owner's equity is described. 18 These financial statements were prepared by HM & Associates for REI Construction. The principal of HM & Associates is Harry Mavrolefterou. 19 If the financial statements accurately record the net assets at the respective dates indicated, then the company's net assets increased by in excess of $230,000 over the relevant period. As the appellant is said to be the sole shareholder in the company, the value of the shareholdings was, as at 30 September 2004, $471,529.10 which is significantly greater than the criteria required under cl 845.215. This submission has shown up a number of anomalies which require clarification and/or further documentation. The applicant claims to have been given money indirectly by his father, Elias Ibrahim, via two persons to whom his father lent money in 1996, Joseph Nassif and Malek Jarjo, who subsequently settled the loans with the applicant. Please submit documentation evidencing (a) the existence of these loans from Mr Ibrahim snr to Messrs Nassif and Jarjo; (2) Mr Elias Ibrahim's foregoing of the repayment of the debts in favour of his son; and (c) movement of funds. Appropriate documentation would be legal contracts (to evidence loans and gift of money) and bank account statements and transactions to show the movement of funds. The onus is on the applicant to demonstrate the source and legal ownership of windfall assets. You state that the business, REI Construction, was established, rather than purchased, by Mr Ibrahim. However REI Construction's Company Profile indicates it has been in existence for over 10 years, while the applicant did not arrive in Australia until September 1998. 3. Romeo Ibrahim's initial entry visa had a "no work" provision, and the subsequent visas granted him to date specified "work limitation" due to employer sponsorship provisions. Please give full details of the applicant's employment by Holdmark Australia P/L, and how this was combined with establishing and running REI Construction since 27 March 2001. 4. The business address given for REI Construction is the same as the applicant's home. There is an expense item for "rent on land and buildings" in the financial statements, what is this rent for? What are the arrangements for employees of REI Construction in terms of accommodation? 5. Original Republic of Lebanon police certificate for applicant which is less than 12 months old. (The one provided was issued on 22 June 1999. Completed form 80 for both applicant and spouse. (See attachment. The delegate was advised that the applicant's father lent the sum of AUD$42,500 to Mr Malek Jarjo and the sum equivalent to AUD$130,000 to Mr Joseph Nassif in 1996. The applicant's adviser said that in 2003 both amounts were "fulfilled" by Messrs Jarjo and Nassif paying the above sums to the applicant which the applicant injected into his business. 22 The reply enclosed statutory declarations from Mr Nassif, Mr Jarjo and the applicant confirming the assertions made in the applicant's adviser's letter. Other issues were also addressed. 23 The delegate refused the application on the basis that insufficient evidence had been provided to support the applicant's claimed ownership of the existence of assets in the sum of $100,000. 24 The delegate was not satisfied by the explanation which had been given by the applicant's adviser and by the contents of the statutory declarations. Not one, of the three parties involved, presented anything other than statutory declarations, for a total sum amounting to over AUD $170,000.00 which was apparently repaid in cash (some two months after the request to do so). Leaving no trace where these funds were derived from, how they were acquired, nor their ability to collect such an amount, in cash form, within the short timeframe. Irrespective of the fact, that it may well be customary in some cultures, to provide loans from one individual to another, it seems implausible that no record of such a debt would have existed, and no conditions and time set for its repayment. In that this would not warrant any claim to, or timeframe, on the repayment of the same. No mention was made on the depreciative value, currency fluctuations, or the like, all of which may have had an impact on loans provided some 8 years earlier. In summary, and in accordance with policy guidelines, I find that insufficient evidence has been provided to support the applicants claimed ownership or existence of the claimed assets. I can not be satisfied that the applicant has legal title to the assets, nor that any such assets were legally acquired. As such I am unable to determine that Mr Ibrahim meets the AUD $100,000.00 net business asset requirement. 26 On 18 April 2006 the Tribunal sought further information from the applicant in relation to the same matters raised by the delegate. 27 The Tribunal, however, was given different advice from that given to the delegate. The Tribunal was advised by the appellant's solicitor that the loans to Mr Nassif and Mr Jarjo were not repaid in cash as the relevant statutory declarations claimed. 28 It was said they were repaid in kind by both Mr Nassif and Mr Jarjo supplying product to the applicant's business to the value of the amount loaned by the applicant's father. Ms Domburga stated to Mr Ibrahim that she had made a submissions (sic) to the DIMIA to the effect that the loans had been repaid by means of a cash payment. This statement was made without reference to our client and certainly without his instruction or permission. She then stated that the Applicant was obliged to obtain statutory declarations supporting the incorrect statement which she had already put to the Department. Our client then acted on that advice. It should be noted that Ms Domburga has subsequently been de-registered as a migration agent and has fled Australia. Mr Ibrahim has always felt concerned about the mis-statements. However, he felt that he had been placed in an extremely difficult position with no clear choice. It is not necessary to discuss their evidence in detail except to observe that both Mr Nassif and Mr Jarjo gave evidence that they repaid the loans in money. Mr Nassif also said that he repaid his loan by providing $90,000 worth of materials. The Tribunal was clearly not satisfied by the explanations given as to the payment of the loans. Subsequent to the hearing held on 12 September 2006, on 13 September 2006 the Tribunal wrote to the applicant advising that it required further information, in particular, in relation to discrepancies between the evidence given by Mr Jarjo and Mr Nassif, and the appellant. In that letter to the appellant, the Tribunal pointed out the differences between that evidence and the claim in the appellant's solicitor's letter that both Mr Nassif and Mr Jarjo had repaid the loans "not in cash but in kind". The appellant's solicitor responded. In the Tribunal's view, their actions in providing obviously deceitful material to the Department simply to support the application demonstrates a disregard for the truth and a willingness to make any assertion which would assist the application. There has been an attempt to blame the former adviser of the applicant for these issues, however in the Tribunal's view the applicant and those making declarations on his behalf equally set out to deceive the Department. 32 The Tribunal was not satisfied that the applicant or his spouse owned assets of at least $100,000 in REI Construction Pty Ltd or its predecessor business for the period 7 October 2003 to 7 October 2004. For those reasons, it was not satisfied that the criteria prescribed in cl 845.215 were met. For those reasons, it affirmed the decision of the delegate. 33 The applicant applied to the Federal Magistrates Court for judicial review of that decision. 34 An amended application was filed on 17 July 2007. The Tribunal asked the wrong question in failing to apply the statutory criteria for the grant of the visa applied for. 2. The Federal Magistrate concluded that the Tribunal simply placed no credence on any of the information provided by or on behalf of the applicant. 36 The Federal Magistrate found that the applicant had been put on notice as to the issue which needed to be addressed both at the hearing and in the Tribunal's letter dated 13 September 2006 where the Tribunal sought further clarification in the light of the evidence given to the Tribunal at the hearing. 37 He found that there had been no jurisdictional error and, in those circumstances, the decision amounted to a privative clause decision which meant that the application had to be dismissed. His Honour, Federal Magistrate Driver, erred in finding that the Tribunal did not ask the wrong question, and/or erred in law, that error going to jurisdiction. 1.1 His Honour should have found that the Tribunal failed to apply the statutory criteria for the grant of the visa applied for because it asked whether it could be satisfied that Mr Ibrahim was the beneficial (as well as legal) owner of certain assets owned by REI Construction P/L ("the Company"), rather than whether or not Mr Ibrahim had a legal ownership interest in the Company, being his sole shareholding in the Company (section 134 of the Migration Act 1958 (Cth), Migration Regulations 845.215). His Honour erred in finding that the Tribunal complied with its obligation under section 425 , which required it to give the Applicant an opportunity "to give evidence and present arguments arising in relation to the decision under review". 2.1 His Honour should have found that the Tribunal was obliged, pursuant to section 425 , to warn the Applicant that it proposed to find that it could not or would not rely on the accounts, prepared by the accountant, and provided by the Applicant as representing the net asset position of the Company. 2.2 His Honour should have found that this was not an issue arising "out of the review", because it was not an approach relied upon by the delegate, who rejected the claim because the delegate was not satisfied that the applicant had legal title to the assets, nor that they were legally acquired. 2.3 In the alternative to 2.2, His Honour should have found that the delegate's decision did not sufficiently disclose the issue such that it was an issue arising out of the decision under review, and the Tribunal did not sufficiently disclose the issue on review. The evidence was put forward to show the evidence that would have been available if the appellant had been warned that the Tribunal might not rely upon the financial statements which had been provided the Tribunal at the instigation of the appellant and in response to the request of the Tribunal. I allowed the tender of the evidence. I adjourned the appeal so that the first respondent could consider whether counsel wished to cross-examine the deponent. In due course, I was advised that the first respondent did not wish to cross-examine the deponent. 40 The evidence, therefore, is only relevant to show that if there was an obligation on the Tribunal to give the warning which the appellant contends needed to be given, that there was evidence which might have addressed the Tribunal's concern. I will therefore consider that evidence only if the appellant satisfies me that the threshold question is to be answered in the appellant's favour. 41 It was contended by the appellant that the inquiry that the Tribunal needed to undertake was into whether the appellant was able to satisfy the criteria in cl 845.215, which I have set out above: [4]. As s 134(10) shows, the definitions in that subsection are only relevant for the purpose of that section itself. In any event, cl 845.214 does not refer to any "ownership interest". 44 Because of the wording of paragraph (b) of cl 845.214, the inquiry to be carried out by the Tribunal needed to address these matters. First, whether the applicant alone or together with his spouse, owned assets in a business in Australia. Secondly, whether at the date of the application the applicant alone or together with his spouse owned net assets of a value of at least AUD$100,000. Thirdly, whether the applicant alone, or the applicant together with his spouse had owned assets of that value in businesses in Australia throughout the period 12 months immediately preceding the making of the application. 45 In this case, there was only one business into which an inquiry needed be made. That was the business which had been carried on under the business name, REI Construction from 7 October 2003 until some time prior to 30 September 2004 and the business carried on by REI Construction Pty Ltd after that time until 7 October 2004. 46 The evidence adduced by the appellant was the appellant was the sole owner of the business and the sole shareholder in the company. In those circumstances, no inquiry needed to be made of the applicant's spouse's holding in the business. There was no suggestion the appellant or his spouse owned any assets in any other business. 47 The appellant contended that the Tribunal distracted itself from its inquiry by its consideration into the veracity of the explanations of the source of funds used in the business and did not answer the questions which it was bound to answer in the exercise of its jurisdiction. 48 That submission must be accepted. Whilst the Tribunal was entitled to take the view that it was not satisfied as to the quality of the evidence adduced by the appellant, there was no suggestion in any of the evidence that anyone else apart from the appellant was the owner of the business or later the sole shareholder in the company. The evidence in relation to the injection of funds was contradictory but the first question to be addressed was whether the appellant was the owner of the business and later the sole shareholder in the company. That evidence was all to the same effect. Once that question was addressed the inquiry which needed to be made was as to whether the net assets of the business, and later the company, was throughout the period of 12 months in excess of AUD$100,000. 49 The balance sheet which was presented by the appellant for the period 1 October 2003 to 30 September 2004 supported a finding that the net assets exceeded $100,000 throughout the whole period. That would have been so whether or not there were debts owing by the business, if in fact there were, to either Mr Nassif or Mr Jarjo during the relevant period. That follows, it seems to me, because of the net assets which the business' balance sheet disclosed as at 1 October 2003 and the net assets disclosed in the company's balance sheet as at 30 September 2004. 50 In my opinion, the appellant was right to contend that the Tribunal did not address the question which was posed and therefore fell into jurisdictional error. The Tribunal did not address the first question whether the appellant owned assets in a business in Australia. 51 In my opinion, the Federal Magistrate fell into the same error. The appeal should be allowed. 52 Notwithstanding that I think the first ground has been made out, I will address the other ground. Ground 2 complains of a failure by the Tribunal to comply with s 425 of the Act. Of course, s 425 had no part to play in the review before the Tribunal. That section applies only to protection visas and imposes obligations upon the Refugee Review Tribunal. 53 The Tribunal's conduct of a review was regulated by Division 5 of Part 5 of the Act which is in similar terms to Division 4 of Part 7 , which regulates the conduct of the Refugee Review Tribunal. In particular, the Tribunal had to comply with ss 359A and 360 of the Act. The Tribunal was apparently not prepared to rely upon the accuracy of the financial statements which had been prepared by a public accountant apparently in accordance with the accounting standards to which reference has been made. So much can be inferred from the absence of any reference to those financial statements in the Tribunal's reasons. The Tribunal did not advise the appellant that it was not prepared to have regard to those financial statements. The appellant claimed that failure meant that s 360 had not been complied with. 54 The appellant contended that the Tribunal had failed to identify as an issue arising in relation to the decision under review. It was contended that the Tribunal should have particularly brought to the appellant's attention that it might not rely upon the accuracy of the financial statements which had been prepared by a public accountant. 55 In SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 231 ALR 592 , the Court said that an applicant for review before a Refugee Review Tribunal could ordinarily expect that the issues under review were those which had been issues before the original decision maker which were determinative against the applicant unless the Tribunal raised for consideration some other additional issues. In those circumstances, it was incumbent upon the Tribunal, if it intended to rely upon some other issues to reject the applicant's review, to give notice of those issues to comply with s 425. 56 In this case, the issues which were raised by the Tribunal related to the circumstances in which the appellant had received either money or value from Mr Nassif and Mr Jarjo. 57 That issue raised squarely for determination the question of the accuracy of the financial statements. If, for example, Mr Nassif and Mr Jarjo were lenders to the business or to the company then the sum lent would be shown as an asset and the amount owing would be shown as a liability. The financial statements which were presented did not show liabilities owing to Mr Nassif and Mr Jarjo. 58 As the Tribunal had notified the appellant that the source of funds was an issue under review, then the appellant should have understood that the accuracy of the financial statements which he had presented in support of his claim to be entitled to a visa was also an issue. This is not the type of case that the High Court considered in SZBEL [2006] HCA 63 ; 231 ALR 592 . The Tribunal was not under any obligation to provide some sort of running commentary as to the view that it takes on the evidence as it unfolds before it. If this were a rule of natural justice, only the most talkative of judges would satisfy it and trial by jury would have to be abolished. On the contrary, to adopt such a course would be likely to run a serious risk of conveying an impression of prejudgment. Ground 2 has not been made out. 60 In those circumstances, it is not necessary for me to have further regard to the affidavit of Harry Mavrelefterou. The appeal be allowed. 2. The orders of the Federal Magistrate made on 10 August 2007 be set aside. 3. The decision of the Migration Review Tribunal made on 22 November 2006 and handed down on 4 December 2006 be quashed. 4. The appellants' application for review of the delegate's decision to refuse to grant the appellants a visa be remitted to the Migration Review Tribunal for determination according to law. 5. The first respondent should pay the appellants' costs before the Federal Magistrate and on appeal. 62 The appeal must be allowed. 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.

where appellant conducted business in australia where balance sheet showed that the net assets throughout the period of 12 months prior to the appellant making the application was in excess of aud$100,000 whether tribunal answered the questions it was bound to answer in the exercise of its jurisdiction and in the consideration of cl 845.215 appeal allowed. migration

The proceeding consists of two parts. In the first part of the proceeding, the Commission alleged that Skins, by making various representations, engaged in conduct, in trade or commerce, that was misleading or deceptive, or was likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth). In the second part of the proceeding, the Commission alleged that Skins engaged in the practice of resale price maintenance in contravention of s 48 of the Act, and that Mr Warhurst was, directly or indirectly, knowingly concerned in, or party to, the contraventions by Skins. There were detailed discussions between the parties and, as a result of those discussions, they were able to agree a number of matters. In relation to the misleading or deceptive conduct allegations, I was given draft consent orders and I admitted in evidence a statement of agreed facts. In relation to the resale price maintenance allegations, I was given draft consent orders and I admitted in evidence joint submissions of the applicant and respondents and a statement of agreed facts. The statements of agreed facts were in the form required by s 191 of the Evidence Act 1995 (Cth) and they were admitted in evidence pursuant to that section. These are my reasons for the orders I made on 2 December 2008. Skins is a body incorporated pursuant to the provisions of the Corporations Act 2001 (Cth), is liable to sue and be sued in its corporate name and is a trading corporation within the definition of that term in s 4 of the Trade Practices Act 1974 (Cth) ("the Act"). At all material times, Mr Royston was the sole director of Skins. The company carried on a business, in trade or commerce, as the supplier of compression sports performance garments ("Skins products") to a distributor and retailers across Australia, and as a retailer of Skins products to the general public in Australia via telephone and internet sales. Mr Warhurst was the sole director and shareholder of Artipena Springs Pty Ltd, which was incorporated in or about September 2002. Mr Warhurst was an employee, servant or agent of the company. The company traded as Warhurst Agencies, and I will refer to it in that way. At all material times, Mr Warhurst acted within the scope of his actual or apparent authority as an employee or agent of Warhurst Agencies. Warhurst Agencies carried on a business whereby it acted as agent for suppliers of sports goods including sports clothing, footwear and equipment. In that role, Warhurst Agencies was involved in the promotion of the products of the suppliers to sports retail stores in South Australia and the obtaining of orders for the suppliers' products. In performing those tasks, employees and representatives of Warhurst Agencies, including Mr Warhurst, regularly visited retailers or potential retailers of products supplied by suppliers for whom Warhurst Agencies acted as agent. In October 2004, Warhurst Agencies acted as agent for various suppliers of sports goods. On 30 October 2004, Skins and Warhurst Agencies entered into an agreement whereby the latter agreed to act as Skins' agent in respect of the sale of Skins products in consideration whereof Skins agreed to pay a commission on all payments received on orders placed by Warhurst Agencies. In addition, the first and second respondents each gave an undertaking to the Court. In the ordinary case, a Court will not make a declaration by consent unless it is satisfied by evidence that it should do so. In this case, I have the statement of agreed facts under s 191 of the Evidence Act 1995 (Cth) and, by reason of that section, evidence is not required to prove the existence of the agreed facts. In addition to being satisfied by evidence that it is appropriate to make the declarations sought, I must be satisfied that I have the power to make the declarations and that they are appropriate: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 ; (1999) 161 ALR 79 (" Real Estate Institute "). The power to make orders for corrective advertising is contained in s 86C of the Act and the power to accept undertakings of the nature proffered is part of the power to grant injunctions in s 80 of the Act. Again, as with the declarations, the Court must be satisfied that it has the power to accept the undertakings and that they are appropriate, although the Court will not substitute its own view for that of the parties if the undertakings fall within an appropriate disposition of the case: Real Estate Institute at 87, 89 [21], [26] per French J. Skins admits that, on a number of occasions, it engaged in conduct, in trade and commerce, that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 52 of the Act. At the heart of the contravening conduct were three representations. The first representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for the sports stars to wear Skins products. The parties referred to this as the "no payment to wear" representation, and it is convenient to adopt that shorthand way of referring to the representation. The second representation was that Skins did not provide Skins products to sports stars, or their representatives, clubs, teams or governing bodies, unless the Skins products were paid for with money. The parties referred to this representation as the "always paid for" representation and again it is convenient for me to do likewise. The third representation was that Skins did not pay money to sports stars, or their representatives, clubs, teams or governing bodies, for sports stars to endorse Skins products. The parties referred to this representation as the "no payment to endorse" representation, and again it is convenient for me to do likewise. From about June 2005, Skins undertook a significant and award-winning advertising campaign in relation to Skins products. The campaign consisted of print advertising, radio advertising, television advertising and the marketing of Skins products on its website. I will deal with each form of advertising in turn. It is not necessary for me to outline the names of the print media in which the advertisements appeared or when that happened. Three versions of the print advertisements were published. By making the statement referred to in paragraph (1) in the print advertisements in the context described in paragraphs (2) and (3) above, Skins made the "no payment to wear" representation and the "always paid for" representation. Skins Bioacceleration Technology Sportswear. Find out more at skins.com.au. There were three versions of the television advertisements which were broadcast. The versions differed in duration and content. Skins Bioacceleration Technology. We ain't going to pay you a cent to wear our product, you can carry on paying us. Skins Bioacceleration Technology. We ain't going to pay you a cent to wear our product, you can carry on paying us. Skins Bioacceleration Technology. By making the statement in the first version of the television advertisement, in the context described, Skins made the "no payment to wear" representation and the "no payment to endorse" representation. By making the statements in the second and third versions of the television advertisements in the context described in each case, Skins made the "no payment to wear" representation and the "always paid for" representation. I will refer to this as the first website. The advertising occurred from at least 26 September 2005 to 28 August 2007. (2) The radio advertisements with the content set out in [22] above. (3) The third version of the television advertisement with the content set out in [27] above. None. Skins™ are NOT provided to top sports stars in the hope that wearing the brand will aid advertising. This is another thing that makes Skins™ completely different to other sporting brands around the world. All Skins™ are sold even to international athletes. In the development stages some athletes helped by wearing Skins™ to give feedback, but now all are sold. Sports stars pay the company to wear Skins™ and this is because of the performance and recovery benefits they get from wearing them. Check out the website for some testimonials about why sports stars wear Skins™. The products have become a vital part of training, playing and recovery for elite athletes, and although many are paid to wear products from the large global apparel companies, these same elite teams and individuals still purchase Skins. By displaying the print advertisements on the first website with the content set out in [20] above, Skins made the "no payment to wear" representation and the "always paid for" representation. By displaying the radio advertisements on the website with the content set out in [22] above, Skins made the "no payment to endorse" representation and the "always paid for" representation. By displaying the third version of the television advertisement on the first website with the content set out in [27] above, Skins made the "no payment to wear" representation and the "always paid for" representation. By making the statement in paragraph (4)(a) of [30] above, Skins made the "no payment to wear" representation and the "always paid for" representation. By making the statement in paragraph (4)(b) of [30] above, Skins made the "no payment to wear" representation and the "always paid for" representation. By displaying the photographs referred to in [31] above in the context of the display on the first website of the printed advertisements, the radio advertisements, the third television advertisement and the statements set out in paragraph (4)(a) and (b) of [30] above, Skins made representations that it does not pay money to the sports stars, or their representatives, clubs, teams, or governing bodies, for the sports stars to wear or endorse Skins products and it does not provide Skins products to the sports stars or their representatives, clubs, teams or governing bodies, unless the Skins products are paid for with money. (3) The third television advertisement with the content set out in [27] above. By making the statement referred to in paragraph (4)(b) of [30] above, Skins made the "no payment to wear" representation and the "always paid for" representation. By displaying the photographs referred to in paragraph (2) of [34] above in the context of the display on the second website of the statement set out in paragraph (4)(b) of [30] above and the third television advertisement, Skins made representations that it does not pay money to the sports stars, or their representatives, clubs, teams or governing bodies, for the sports stars, to wear or endorse Skins products, and it does not provide Skins products to the sports stars, or their representatives, clubs, teams or governing bodies, unless the Skins products are paid for with money. By displaying the third television advertisement on the second website with the content set out in [27] above, Skins made the "no payment to wear" representation and the "always paid for" representation. The other parties to the agreements were as follows: The agreements were variously titled "Official Supplier Agreement", "Sponsorship Agreement", "Marketing and Promotion Agreement", "Partnership Agreement" or "Strategic Partner Agreement". The agreements were tendered in evidence, as was a summary in the case of each agreement setting out the type of agreement, its date, its duration and the non-cash benefits included in the agreement. Skins agreed to make cash payments under the agreements to the following: In addition, Skins agreed to supply, without cash payment, either an agreed number of Skins products or Skins products to an agreed value or Skins products for training and competition purposes, pursuant to each of the Skins agreements, except for the agreements with Insite Organisation Pty Ltd, as agent for Brett Lee and Jason Gillespie respectively. I will not set out the details of the numbers of Skins products that Skins agreed to provide pursuant to the Skins agreements. In return for these payments and giving of benefits, Skins agreed to receive certain non-cash benefits, pursuant to the Skins agreements. The agreement with North Queensland Cowboys Rugby League Club provided for an advertorial in the club's newsletter, including an endorsement of Skins products by the strength and conditioning coach. For example, the agreement with Cricket Australia provided for the use of photographs of players associated with Cricket Australia in promotion and advertising activities. The other Skins agreements which provided for such use of athletes or players were the agreements of Basketball Australia, Hockey Australia, Rowing Australia, Sydney Roosters and Wests Tigers Rugby League Clubs, Western Force Rugby Union Club and Waratahs Rugby Union Team, Richmond and Western Bulldogs Football Clubs, Newcastle Jets, Perth Glory and Queensland Roar Soccer Clubs, Melbourne Football Club, Wollongong Hawks and Perth Wildcats Basketball Teams and Dandenong Rangers Women's Basketball Team. Skins also agreed to receive, pursuant to the Skins agreements, written testimonials from members of the coaching staff of Cricket Australia, Rowing Australia, Hockey Australia, Sydney Kings, Wollongong Hawks and Perth Wildcats Basketball Teams, Dandenong Rangers Women's Basketball team, ARL Kangaroos, St Kilda, Richmond and Western Bulldogs Football Clubs, Western Force Rugby Union Club, Waratahs Rugby Union Team, Wests Tigers Rugby League Club, and Newcastle Jets, Perth Glory and Queensland Roar Soccer Clubs. The total amount of cash payments Skins agreed to make pursuant to the Skins agreements is at least $751,250 plus GST over the years 2005 to 2010, and the total value of Skins products that Skins agreed to supply pursuant to the Skins agreements is at least $835,210 plus GST over the years 2005 to 2010. Between 26 September 2005 and 28 August 2007, Skins had an obligation under the Skins agreements to make the cash payments referred to in the Skins agreements and it fulfilled those obligations. In return, it received the non-cash benefits identified in [41] above. From 1 July 2005 to 28 August 2007, Skins had an obligation to supply Skins products as set out in [40] above. Skins fulfilled that obligation and received the non-cash benefits set out in [41] above. Skins admits that: In light of these facts, I was satisfied that each of the proposed declarations and the undertakings given to the Court by the first and second respondents respectively were within power and appropriate. Section 96 defines the acts which constitute resale price maintenance. They include a supplier inducing, or attempting to induce, a second person not to advertise, at a price less than a price specified by the supplier, goods supplied to the second person by the supplier (s 96(3)(b) and (7)(a)). Under the Act, a supplier may act through an agent (s 84(2)(a)). Under the Act, engaging in resale price maintenance may attract a pecuniary penalty, not only for the contravener, but also for any person who has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person (s 76(1)(a) and (e)). The agreed facts and the joint submissions proceeded on the basis that there was no reason to distinguish between Warhurst Agencies and Mr Warhurst. Between July 2005 and May 2006, The Sports Locker Pty Ltd ("Sports Locker") carried on business as a retailer of sporting goods, including sports clothing and accessories and sports equipment. It specialised in selling high performance products. Mr Donald Shipway and Mrs Kaylene Shipway were the directors and shareholders of the company. Sports Locker conducted its business from a store located at 270 Main North Road, Prospect, South Australia, which was on a very busy main road. Prior to October 2004, Sports Locker had a business relationship with Warhurst Agencies, and Mr Shipway and Mr Warhurst had a business relationship going back many years. Sports Locker had a business practice, which was known to Mr Warhurst, of advertising and selling its products at 20 per cent off the recommended retail price of sports clothing and 25 per cent off the recommended retail price of sports footwear. The company regularly advertised sports goods for sale by way of A-frame signs placed on the footpath immediately outside its store, and some of the signs advertised sporting goods for sale at a discount of 20 per cent or 25 per cent. Since about 2003, Mr Warhurst was aware that Sports Locker advertised in this way. In May 2005, Warhurst Agencies provided a Skins brochure to Mr Shipway and the brochure contained recommended retail prices for various Skins products. I will refer to these prices as "the specified prices". On 10 May 2005, Sports Locker placed its first order for Skins products with Warhurst Agencies. At various times between May 2005 and May 2006, Sports Locker advertised Skins products for sale on an A-frame sign ("the sign") outside its store. The sign read "Skins Bioacceleration 20% off", and customers who purchased Skins products from Sports Locker received a 20 per cent discount off the recommended retail prices of Skins products. Mr Warhurst came to know of the sign in about May 2005. The sign was outside the store in July 2005. We have got a TV promotion going to launch the brand. We've been getting complaints. Can you bring the sign in for four weeks? It's been causing us problems. Shipway: I understand. I'll bring it in for four weeks. But this is a personal favour. I'm only doing one of them. I'll be putting it back out afterwards. Mr Warhurst became aware that the sign had been taken in. Skins admits that, by reason of s 84(2)(a) of the Act, the conduct of Mr Warhurst is deemed to be conduct engaged in by Skins and it admits that, by the aforesaid conduct, it induced Sports Locker not to advertise Skins products supplied to it by Skins for sale at prices less than prices specified by Skins, namely, the specified prices, and that it thereby engaged in the practice of resale price maintenance in contravention of s 48 of the Act. Mr Warhurst admits that he was, directly or indirectly, knowingly concerned in, or party to, the contravention of s 48 by Skins. The sign was outside the store in September 2005. It's costing us money. I have to ask you to take it in. Shipway: No. I'm not taking it in. I can't even believe you are concerned about it. Skins admits that, by this conduct, it attempted to induce Sports Locker not to advertise Skins products supplied to it by Skins for sale at prices less than prices specified by Skins, namely, the specified prices, and that it thereby engaged in the practice of resale price maintenance in contravention of s 48 of the Act. Mr Warhurst admits he was, directly or indirectly, knowingly concerned in, or party to, the contravention of s 48 by Skins. The sign was outside the store in May 2006. I've got to ask you to take it in. Other retailers are complaining and it's costing us money. Shipway: Well, I'm not taking the sign in. That's it. Skins admits that, by this conduct, it attempted to induce Sports Locker not to advertise Skins products supplied to it by Skins for sale at prices less than prices specified by Skins, namely, the specified prices, and that it thereby engaged in the practice of resale price maintenance in contravention of s 48 of the Act. Mr Warhurst admits he was, directly or indirectly, knowingly concerned in, or party to, the contravention of s 48 by Skins. The Court was also asked to make a declaration that on each occasion Mr Warhurst was, directly or indirectly, knowingly concerned in, or party to, the contravention. Clearly there was power to make the declarations and, having regard to the agreed facts and submissions, I considered that it was appropriate to make the declarations. The declarations I made sufficiently described the conduct which contravened s 48 (cf Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75 ; (2003) 216 CLR 53 at 91 [89] - [90] per Gummow, Hayne and Heydon JJ). Although the undertaking is expressed in somewhat general terms, I considered that I had both the power to accept it and that it was appropriate for me to do so. In reaching that conclusion, I had regard to the decisions of the Full Court of this Court in ICI Australia Operations Pty Ltd v Trade Practices Commission [1992] FCA 474 ; (1992) 38 FCR 248 and Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liquidation) [2007] FCAFC 146 ; (2007) 161 FCR 513 (" Dataline "). The Commission sought an order that Skins provide a letter on its letterhead to each of its current retailers, agents and/or distributors. The terms and size of the letter were to be in accordance with a document annexed to the draft consent orders. The letter advises the addressee of the results of this proceeding, including the pecuniary penalties imposed, and of the fact that Skins may only recommend a retail price, and is not allowed to specify to retailers a minimum price below which goods or services are not to be resold or advertised for sale. Skins consented to such an order. I considered that it was appropriate to make such an order (see s 86C(2); Australian Competition and Consumer Commission v Hobie Cat Australasia Pty Ltd [2008] ATPR 42-225). The Commission proposed that Skins pay to the Commonwealth of Australia a pecuniary penalty of $120,000 and that Mr Warhurst pay to the Commonwealth of Australia a pecuniary penalty of $14,000. Under s 76 of the Act, it is for the Court to determine the appropriate pecuniary penalty. At the same time, the Court can place weight on the pecuniary penalties proposed by the parties. But effects upon the functioning of markets, and other economic effects, will generally be among the most significant matters to be considered as relevant, so that the Court is likely to be assisted greatly by views put forward by the Australian Competition and Consumer Commission, or by economists called on behalf of the parties. Since the decision in Trade Practices Commission v Allied Mills Industries Pty Ltd [(1981) [1981] FCA 142 ; 60 FLR 38 ; 37 ALR 256] , it has been accepted that both the facts, and also views about their effect, may be presented to the Court in agreed statements, together with joint submissions by both the Commission and a respondent as to the appropriate level of penalty. Because the fixing of the quantum of a penalty cannot be an exact science, the Court, in such a case, does not ask whether it would without the aid of the parties have arrived at the precise figure they have proposed, but rather whether their proposal can be accepted as fixing an appropriate amount. There is an important public policy involved. 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 the circumstances. The Court will not depart from an agreed figure merely because it might otherwise have been disposed to select some other figure, or except in a clear case. In NW Frozen Foods , Burchett and Kiefel JJ referred (at 292) to these matters as "elaborations of the statutory requirement to consider 'the circumstances in which the act or omission took place'". In addition to the above matters, the trial judge (Heerey J; see Australian Competition and Consumer Commission v NW Frozen Foods Pty Ltd [1996] ATPR 41-515) considered (at 42,444-42,445) the financial position of the respondents and the deterrent effect of the proposed penalty. It will be seen that, in the passage quoted from NW Frozen Foods and set out in [64] above, Burchett and Kiefel JJ emphasised the importance of the effects of the conduct on the functioning of the market, and other economic effects. The principal object of the penalties imposed by s 76 of the Act is deterrence, and, in particular, general deterrence: Trade Practices Commission v CSR at 52,152 per French J; NW Frozen Foods at 292 per Burchett and Kiefel JJ ; Dataline at 527-528 [60], [62]; Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] ATPR 42-031 per Selway J. The nature and extent of the contravening conduct is three separate contraventions during the period from July 2005 to May 2006. One act was successful in inducing Sports Locker not to advertise Skins products for sale at prices less than the prices specified by Skins and there were two acts, each constituting an attempt to induce Sports Locker to act in that way. There is no evidence of the precise loss and damage caused by the conduct of Skins and Mr Warhurst. Sports Locker removed the sign advertising Skins products at a discount for approximately four weeks. It is an agreed fact that Sports Locker purchased Skins products to a wholesale value of approximately $8,000 between May and October 2005 and that it stopped purchasing Skins products in October 2005 because it did not want to purchase Skins products if it was going to be subject to the type of conduct which constituted the contraventions. The contravening conduct was as follows. It was conduct by Mr Warhurst, who was the agent of Skins in South Australia. Skins products were, and remain, premium-priced sports compression garments with recommended retail prices of $109.99 for Sports Skins Long Sleeve Tops and $139.99 for Sports Skins Long Tights. Prior to October 2004, Skins products had been sold primarily on the internet and by telephone. Skins appointed various agents to obtain orders from retailers and in May 2005 approximately 100 retailers across Australia were selling Skins products. By May 2006, the number of retailers selling Skins products had increased to approximately 400 and the number continued to increase thereafter. Shortly prior to July 2005, Skins, in order to increase awareness and sales of its brand, commenced a significant nationwide advertising campaign for Skins products, including television advertising, radio advertising, print advertising and the promotion of Skins products on the internet. Neither Skins nor Mr Warhurst have been found by a Court to have engaged in similar conduct in the past. Evidence of the sizes of the businesses of Skins and of Warhurst Agencies respectively was put before the Court by way of the tender of Skins' financial statements and taxation returns for the financial years ended 30 June 2006 and 30 June 2007 respectively, and the financial statements and taxation returns of Artipena Springs Pty Ltd and Mr Warhurst for the financial years ended 30 June 2006 and 30 June 2007. For the reasons I gave at the hearing, I made an order pursuant to s 50 of the Federal Court of Australia Act 1976 (Cth) forbidding publication of these documents and the figures as to the financial performance of those entities set out in paragraphs 55, 56 and 58 of the joint submissions of the applicant and respondents. It is sufficient for me to say that in the 2005/2006 financial year Skins was a small to medium size company which was thereafter to grow rapidly. Warhurst Agencies is a small business. Submissions were made as to the degree of power Skins has, as evidenced by its market share, and ease of entry into the market. No submissions were made as to these matters as far as Warhurst Agencies is concerned. At the relevant times, Skins specialised in the manufacture and supply of compression sports performance garments under the Skins brand, whereas its competitors, including such well-known brands as Nike, Adidas, Reebok and Canterbury, sold a range of other products as well as compression sports performance garments. Skins has grown rapidly. It was incorporated in mid-2004 and it acquired the business and assets of a company that had manufactured and sold compression sports performance garments primarily to professional athletes. There were only relatively few sales by that company to retail outlets. Skins began supplying to a large number of retail outlets and over time it began supplying its products to purchasers in a number of overseas countries. An indicator of the company's growth over this time is that in mid-2005 it had six full-time employees and one casual employee. In May 2008, Skins had approximately 25 full-time employees, one part-time employee and six casual employees. Skins is now a leading Australian apparel manufacturer and distributor and is the dominant manufacturer and supplier of compression sports performance garments in Australia. The Skins brand is extremely well known. In May 2008, Skins supplied its products to over 820 retailers in Australia. Of course, I must remember that the relevant time for the purpose of the present proceeding is between July 2005 and May 2006. The three contraventions by Skins and Mr Warhurst were deliberate and they were committed over the period from July 2005 to May 2006. Of the three contraventions, one was successful and two were not. The contravening conduct was carried out by a Skins agent and not a Skins employee, and Skins and the Commission submitted that this was a mitigating factor. The contraventions arose out of conduct by Mr Warhurst and at the time he was the sole director and shareholder of Warhurst Agencies. At the time of the contravening conduct, neither Skins nor Warhurst Agencies had in place a trade practices training or compliance program for its agents or employees. Mr Warhurst has offered, and the Commission has accepted, an undertaking pursuant to s 87B of the Act not to engage in similar conduct, and to participate in trade practices compliance training with regard to Part IV of the Act. The Commission commenced its investigations into the alleged contraventions in 2006 and it commenced this proceeding on 28 August 2007. Skins and Mr Warhurst provided documents and information voluntarily during the course of the investigation. Skins and Mr Warhurst did not make admissions prior to the institution of the proceeding. A mediation was held on 5 August 2008 upon the application of Skins and Mr Fuller, and supported by Mr Warhurst. Shortly after the mediation, the contraventions were agreed. Skins and Mr Warhurst thereafter cooperated with the Commission in seeking resolution of the proceeding on a joint basis. The pecuniary penalties proposed by the parties are said to involve a 20 per cent discount for the cooperation afforded by Skins and Mr Warhurst. It is an agreed fact that Skins and Mr Warhurst are able to pay the pecuniary penalties proposed by the parties. The joint submission of the Commission and Skins is that the contravening conduct was limited to a specific agent in relation to one retailer and that there is little risk of Skins knowingly contravening s 48 of the Act in the future. It is submitted that specific deterrence is not an "aggravating" factor. However, general deterrence remains relevant. The joint submission of the Commission and Mr Warhurst is that the latter's conduct was deliberate, and specific deterrence as well as general deterrence is relevant. It was not necessary for me to determine whether, unaided by the agreement of the parties, I would have arrived at the very figures the parties proposed. It was sufficient for me to conclude that, having regard to the matters I have identified, the proposed pecuniary penalties of $120,000 in the case of Skins and $14,000 in the case of Mr Warhurst were appropriate. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko.

misleading and deceptive conduct penalty where first respondent admitted engaging in misleading or deceptive conduct or conduct likely to mislead or deceive where parties submitted draft consent orders and statement of agreed facts trade practices

It appears from the evidence of the receiver, Mr McMaster, that certain of the relevant insurances are about to expire at close of business today, if they haven't already expired, and that there may be an expectation on the part of the various commercial property owners, to whom I have referred, that the insurance will have been renewed by the sixth defendant. 2 The renewal of the insurance in its full sense by the sixth defendant would involve it entering into a loan agreement with Pacific Premium Funding (PPF), which provides the finance for the premiums necessary to be paid for the relevant insurance. Mr McMaster has indicated not only that he is not satisfied that Westpoint Realty is solvent but that, in the light of recent advices of which he has been informed, it is insolvent. This plainly raises a difficulty in relation to any step under which Westpoint Realty would incur any further liability. The motion before me today proceeded on the basis that what was necessary was a variation of the orders which I made on 20 April 2006, as subsequently amended and extended, to enable the corporate receivers to enter into the relevant commercial loan facility, notwithstanding their want of satisfaction of the solvency of Westpoint Realty. 3 However, as I pointed out in the course of argument, variations of this kind previously made have not involved the incurring of liabilities but the payment out of funds, for example, to meet legal fees, notwithstanding that the corporate receivers may not be satisfied of the relevant company's solvency. The incurring of an additional liability, when the receivers are positively satisfied of insolvency, is another matter entirely. I am concerned, however, that there is a real possibility that the commercial property holders, a number of which are related to each other, may be prejudiced if the sixth defendant were to allow the insurance to lapse without prior notice to them, or to their administrators, so that appropriate action could be taken. 4 It appears that the matter has acquired this degree of urgency because of the very short notice upon which Mr McMaster was informed through Mr Carey, the director of Westpoint Realty, of this expiry of the insurance. In the circumstances, what I am prepared to do is to authorise a payment, rather than the incurring of a liability, and a payment sufficient to provide for short-term insurance so that the relevant property owners, or their administrators, can assess their positions and look to their own interests and arrangements. I understand that short-term insurance, to the extent of 30 days, can be covered. If Westpoint Realty were to enter into a commercial loan facility of the kind proposed I understand that the liability it would be incurring would be in the order of $150,000 or more. Notwithstanding anything contained in the Orders made on 20 April 2006, as amended on 30 June 2006 and extended on 22 December 2006, the Corporate Receivers (as defined in paragraph 2 of those orders) shall be empowered and entitled in their discretion to effect, as agent of the Sixth Defendant, such short-term insurances, including property damage and business interruption insurances, as the Corporate Receivers consider are reasonably necessary, having regard to pre-existing arrangements, on behalf of the owners and operators of commercial properties which the Sixth Defendant manages. 2. The Corporate Receivers shall be entitled to immediately reimburse themselves, without the authorisation of the signatories required for the operation of the Sixth Defendant's bank accounts, from the Sixth Defendant's bank account for so much of the cost of such insurance as is incurred by the Corporate Receivers and the Sixth Defendant's bankers shall be permitted to allow such reimbursement. 3. The Corporate Receivers shall immediately provide to any person for whom they have effected short-term insurances notice of the time when the short-term insurances shall expire. 4. Liberty to apply for further orders at short notice.

court appointed receivers restrictions on disposition of corporate assets payment necessary to provide insurance cover for property held by other members of corporate group urgency imminent expiry of insurance cover short term insurance cover authorised notice to corporate property owners directed corporations

The evidence included certain evidence which was "male gender restricted evidence", that is evidence relating to Aboriginal law which under Aboriginal law may not be disseminated by men to women, uninitiated men, non-Aboriginal men, or to children. 2 Before the preservation of evidence hearing, on 9 November 2004, the Court made an Order under O 78 r 4 and O 78 r 31(3)(a) and (f) of the Federal Court Rules dealing with how the proposed male gender restricted evidence should be managed. I need not address that further. It makes clearer that which was implicit in any event. 5 The parties disagree about the proposed Order 11. 6 When the proposed Order 11 was first put forward, the word "withdraw" was included instead of the words "not adduce". Any suggestion that the applicants were thereby seeking to have recognised an entitlement to, in effect, take the male gender restricted evidence from the record was removed by the substitution of the words "not adduce". The objection of the other parties to the proposed Order 11 in its current form was that it was unnecessary and was not ostensibly even handed, and that it was potentially misleading by allowing for the uninformed inference to be drawn that no other party might adduce such evidence. As to the objection that the proposed Order 11 was not necessary, the applicants submitted that without such an Order the Order made on 9 November 2004 might have the unintended consequence of inhibiting the giving of "preservation evidence". 7 "Preservation evidence" under s 46 of the FCA Act does not automatically become evidence in the hearing of the proceeding: s 46(d). Consequently, the male gender restricted evidence given by Mr Doolan in November 2004 will not become evidence at the hearing unless, in the first place, the applicants seek to adduce it. If they do not do so, for whatever reason, then it would be most unlikely to become evidence. The proposed Order 11 is therefore merely declaratory of the operation of s 46(d). 8 I do not think it is necessary or, generally speaking, desirable for the Court to make orders which are merely declaratory of the uncontested operation of a provision of the FCA Act: Re Clay [1919] 1 Ch 66; Leverington v State Planning Authority [1970] SASR 387; Commonwealth v Sterling Nicholas Duty Free Pty Ltd [1972] HCA 19 ; (1972) 126 CLR 297 per Barwick CJ. There is presently no contested factual circumstance between the parties which might call for the exercise of the discretion, nor any dispute as to the meaning or operation of s 46(d). How the discretion in s 46(d) is exercised will depend upon the circumstances at the time of its exercise. 9 No doubt, in a case such as the present, the exercise of the discretion under s 46(d) will be guided by the direction in s 82 of the Native Title Act 1993 (Cth). 10 The position at present is plain. 11 Mr Doolan has given "preservation evidence". Part of it was identified as male gender restricted evidence and has been treated as confidential. There is no order restricting persons to whom it may be published. Mr Doolan has given his evidence, knowing that his evidence or parts of it may be, but need not be, adduced at the hearing of the application for determination of native title (if it proceeds to hearing and is not otherwise resolved) at the option of the applicants. In deciding whether to rely on his evidence, the applicants and their advisers may take into account a variety of matters, including whether it is desirable to reveal the male gender restricted evidence to the particular judge conducting the hearing. 12 The respondent parties may also apply to rely on Mr Doolan's evidence, or parts of it, at the hearing, in the event that the applicants do not do so. Mr Doolan will no doubt be advised that they would seek to do so only if it were perceived that it would help resist the claim, and will no doubt be advised as to whether his evidence might in any circumstances be seen by the respondents as having that character. There may also arise certain circumstances which lead to the respondents seeking to have his evidence received for a particular purpose, e.g. to show he has made inconsistent statements. Again, Mr Doolan will no doubt be advised about the chances of that happening. In the event that the respondent parties do seek to have Mr Doolan's evidence, or parts of it, received at the hearing under s 46(d) and the application is opposed, as noted above, the decision of the Court about whether to receive that evidence may be guided by s 82(2) of the Native Title Act 1993 (Cth) and O 78 r 4 of the Federal Court Rules . 13 As Order 4(b) of the present Order says, once evidence is received at the hearing of the application for determination of native title and the matter proceeds to judgment, the evidence at the hearing will be material to which the Court will have regard on any appeal, if it is relevant to a ground of appeal. And the Full Court of this Court may be constituted of one or more female judges. 14 I do not think in the circumstances that it is necessary to include the proposed Order 11. Nor do I think it is desirable. Firstly, to do so may give the wrong impression by focusing only on the rights of the applicants without recognising the rights of the respondents under s 46(d). Secondly, it merely provides an abbreviated and incomplete statement of the position that the adducing of any preservation evidence by any party, if it is sought to be adduced, is subject to the judicial discretion to which I have referred above. The factors which may be relevant to the exercise of that discretion need to be identified and weighed at the relevant time. Those matters are better explained by the legal representatives of Mr Doolan to him in some detail. Finally, in the particular circumstances of this matter, Mr Doolan's preservation evidence has already been given and at least in the first place it will be up to the applicants whether it is sought to be adduced at any hearing of the application for native title. His decision about what preservation evidence he might have given has already been made, and could not therefore have been influenced by the proposed Order 11. 15 Almost invariably (although not necessarily) preservation evidence in a claim under the Native Title Act 1993 (Cth) will be given by an indigenous person whose evidence is sought to be preserved to be available to the applicants if the claim proceeds to hearing. It is therefore a consensual process. The person being examined is generally available for cross-examination. That process enables a Court to see that the evidence has been able to be tested, and so to give the evidence appropriate weight. Such evidence may include, in the case of a male, male gender restricted evidence, and in the case of a female, female gender restricted evidence. The Court has, and has exercised, its powers to ensure such evidence is duly confined to those entitled to see it. The same powers have been exercised at the hearings of claims for the determination of native title, whether the judge hearing the claim has been male or female. These powers have been exercised also in cases other than under the Native Title Act 1993 (Cth): see e.g. Chapman v Luminis Pty Ltd (No 5) [2001] FCA 1106 ; (2001) 123 FCR 62. 16 In Western Australia v Ward (1997) 76 FCR 492 at 496-499, Hill and Sundberg JJ explained that the judge hearing a matter has a role and presence which is an inevitable part of the exercise of judicial power under Chapter III of the Constitution . That is so whether the judge is male or female. It is to be hoped that, in claims under the Native Title Act 1993 (Cth), the parties can appreciate that significant point. They have done so in the past, e.g. in Chapman v Luminis Pty Ltd [2001] FCA 1106 ; 123 FCR 62 when the judge (who was male) heard certain female gender restricted evidence. There are other illustrations. However, that is a matter for the parties in each case. 17 The point of those comments is to indicate disagreement with the contentions that the present form of Order 4, without the proposed Order 11, or that the proposed amended form of Order 4 without the proposed Order 11, might operate as a disincentive to a person from providing preservation evidence where it is otherwise appropriate to do so and where the proposed preservation evidence includes some gender restricted evidence. In addition to the powers of the Court to protect gender restricted evidence from inappropriate publication, in the case of preservation evidence there will also generally be the further step in the process of the applicants, at whose behest the evidence is to be preserved, having the opportunity to decide later whether to seek to have the preserved evidence or parts of it (including any gender restricted evidence) adduced at the hearing of the principal claim when and if the claim proceeds to hearing. Order 4 makes a potential witness aware that the Court may be constituted by a judge or judges who are male or female. But the matters to which I have referred, if properly explained, should enable a person proposing to give gender restricted evidence to be aware of the steps to be taken before that evidence may become evidence at a hearing of the claim for determination of native title, and of the powers available to the Court to ensure gender restricted evidence is properly restricted from publication. 18 The parties were agreed about orders I should make with respect to certain photographs taken or presented during the course of Mr Doolan's evidence. I will make those orders. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

preservation of evidence gender restricted evidence native title

The allegations relate to the imposition of fuel and other surcharges on air cargo into and out of Australia. 2 On 12 October 2007, a senior lawyer in the employ of the ACCC telephoned a partner in the firm of Clayton Utz, the solicitors for KAL. The terms of the conversation are disputed. The ACCC contends that the conversation was with "without prejudice" but KAL contends that the ACCC lawyer put a proposal to the Clayton Utz partner of a settlement of proceedings which would be brought against KAL seeking pecuniary penalties under s 76 of the Trade Practices Act 1974 (Cth) (" the TPA ") for price fixing. 3 On or about 31 October 2007, the Clayton Utz partner, Mr Bruce Lloyd, informed the ACCC lawyer, Mr Glenn Owbridge, that KAL had rejected the proposal and did not wish to advance a counter-offer. 4 On 31 October 2007 the ACCC issued a notice under s 155(1)(a) of the TPA requiring KAL to provide information in writing relating inter alia to the tonnage of air cargo carried into Australia between 2001 and 2007, including revenue derived from fuel surcharges. 5 KAL challenges the validity of the s 155 notice. It contends that the notice was issued for the improper purpose of depriving KAL of the protection of the Court's processes which would otherwise be available to it upon the commencement of proceedings for the recovery of pecuniary penalties. 6 The final hearing of KAL's application is listed for hearing on 20 March 2008. However, a dispute has arisen between the parties about the production of documents sought by KAL from the ACCC under a notice to produce. 7 The dispute is limited to [5] of the notice which seeks production of documents created by four very senior officers of the ACCC who have been involved in various aspects of the investigation. • An application by KAL under O 15 r 11 to produce, in un-redacted form, two documents which I will describe in more detail later. 9 The s 155 notice was signed by the Chairman of the ACCC. However, it is central to KAL's attack upon the validity of the s 155 notice that, prior to the date on which it was issued, the ACCC, through various committees or relevant officers or employees, had already decided either formally or informally, that it would commence the penalty proceedings against KAL. I will set out the precise terms of this contention later. 10 In order to explain the documents sought by KAL it will be necessary to refer to the ACCC's organisational structure in relation to its investigation of air cargo price fixing. 11 The bifurcation came about because, commencing in or about August 2007, the ACCC considered the establishment of a settlement regime. A "settlement strategy" was developed over a period of some weeks by ACCC staff working on the Commission's investigation, in consultation with Mr Owbridge. • the reasons for recommending that the Chairman of the ACCC issue the s 155 notice. 13 The ACCC contends that there is no legitimate forensic purpose to support the production of these documents. The essential reason for this is that the ACCC submits that the only relevant decision in relation to the attack upon the s 155 notice is the decision of the ACCC itself; decisions of officers or staff cannot be decisions of the ACCC to issue the notice. The ACCC relies upon a decision of a Full Court in Kotan Holdings Pty Limited v Trade Practices Commission (1991) 30 FCR 511. 14 The ACCC also contends that even if there is a legitimate forensic purpose in the production of the documents, certain redacted portions of them are subject to a claim for legal professional privilege. One portion is also said, in the alternative, to be the subject of a claim for public interest immunity. 15 KAL contends that even if the relevant portions of the document are properly the subject of the claim for legal professional privilege, that privilege has been waived in accordance with the principle stated by the High Court in Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1. 16 The evidence before me on the hearing was an affidavit of Mr Scott Gregson, the General Manager of the Enforcement Branch of the ACCC. His affidavit deals with the claims of legal professional privilege and public interest immunity. 17 The parties agreed that I should follow the course adopted in Hudson v Branir Pty Limited (2005) 148 NTR 1 by having regard to the context of evidence proposed to be adduced at the final hearing so as to be able to determine the context in which the dispute over the Notice to Produce arises. Some of that material, though not yet formally in evidence, was read out and referred to in open Court and I will refer to the salient parts in my reasons for judgment. At all times since about July 2006, Mr Pearson has been the most senior staff member of the ACCC with overall responsibility for the investigation of air cargo price fixing. 19 Mr Paul Taylor, Director, Coordination Branch, has been responsible for conducting the investigation on a day-to-day basis since about July 2006. 20 Mr Mark Quinane has been involved in the air cargo investigation since August 2007. He has led the settlement team since the time of its formation in about October 2007. 21 Mr Lee Hollis is a Senior Branch Manager within the ACCC. He ranks above Mr Taylor and Mr Quinane and supported their recommendation of a proposed settlement strategy and a suggested penalty matrix, both of which were put before a meeting of the Enforcement Committee of the ACCC on 25 October 2007. The settlement team was established to develop a proposed settlement regime for consideration by the Enforcement Committee (EC). I envisaged that the proposed settlement regime, where agreement was reached, would involve the Commission and cartel members making joint submissions to the Court in relation to appropriate orders including penalty following the institution of proceedings by the Commission. Any possible settlement with any suspected cartel participant was, to my mind, at all times predicated on that participant making admissions with respect to various matters which would otherwise require further investigation by the Commission. 24 Four reasons for the establishment of the settlement team and the division of the investigation into separate teams are set out in Mr Pearson's affidavit. There is no need to repeat them. 25 Mr Pearson states in [14] that the "settlement strategy" was developed over several weeks by ACCC staff working on the investigation, in consultation with Mr Owbridge. He says that a proposed settlement framework was largely completed by early October. He refers to this framework as "the Settlement Strategy", although, as at early October 2007 it had not been considered by the Commission or its Enforcement Committee. 26 According to Mr Pearson's affidavit, in August 2007, KAL was considered by staff of the ACCC to be a candidate for inclusion in the proposed settlement framework. As I said above, the initial telephone conversation between Mr Owbridge and Mr Lloyd took place on 12 October 2007. This was a week prior to the date of the paper of 19 October 2007 from Mr Taylor and Mr Quinane to the Enforcement Committee, attaching the Settlement Strategy and the suggested penalty matrix. In particular, it endorses the Settlement Strategy, which is attachment 1 to the paper. It also endorses the proposal for settlement discussions with airlines willing to settle, based on the proposed penalty matrix contained in attachment 2. It states that a further round of s 155 notices is soon to be prepared directed at identifying affected revenues and cargo tonnage of relevant carriers. " Mr Pearson's affidavit contains a redacted version of the document. The various subheadings or topics dealt with in the attachment are not redacted but the content of the material under those subheadings has been redacted. The subheadings include "Form of settlement proposed" and "Strategic advantages to the Commission or the respondents in settling in this way. The names of the airlines, other than KAL, are redacted but the headings are shown in the version attached to the affidavit of Mr Pearson. The headings include "Market Share (%); See Note (1) " and "Headline penalties (Before Discount); See Note (8) . " There are nine notes referred to in the headings. The notes are redacted. The persons who are recorded as providers or senders of the minute include Mr Taylor and Mr Quinane. 33 The purposes of the minute are said to be to provide Mr Samuel with sufficient information to consider whether he had the requisite reason to believe, in order to issue the s 155 notice to KAL and to ask him to issue the notice. The s 155 notice was sent to KAL under cover of a letter from the ACCC dated 1 November 2007. The letter was signed by Mr Quinane, "Director, Enforcement and Coordination Branch". 39 Crucial to the decision of the Court, and to the ACCC's argument in the present case, were the terms of [16] of the statement of claim. It pleaded that on a date unknown to the applicants: (i) the Commission; (ii) the officers of the Commission having the conduct of the matter; (iii) the solicitor acting for the Commission; had decided that proceedings should be instituted. 40 Davies and Foster JJ said at 516 that they accepted that it may be arguable that the power to issue a s 155 Notice ceases when the Commission has formally resolved that legal proceedings be instituted. However, they said that this was not pleaded in [16] of the statement of claim. Lockhart J observed at 522 that the only relevant decision could be that of the Commission itself, so that the allegations that officers of the Commission and the solicitor had decided to institute proceedings could not stand. 41 These were statements of a Full Court and, of course, I accept them as binding, authoritative and correct. But they were made in relation to the pleading that was in issue before their Honours. In my view, their Honours' remarks on this topic, though no doubt central to the question at the final hearing, do not assist the ACCC on the question of the Notice to Produce. 42 What [8] of KAL's statement of issues leaves open for determination on the final hearing, is who, in the present case, comprised the Commission. In this respect, [8] of the statement is in different terms from [16] of the statement of claim in Kotan where the pleading specifically referred to persons who could not have constituted the Commission for the purpose of the decision to issue the s 155 notice. 43 Mr Gageler SC referred me to the line of authorities commencing with Carltona Ltd v Commissioners of Works [1943] 2 All ER 560 , referred to by Gibbs CJ in O'Reilly v Commissioners of the State Bank of Victoria [1983] HCA 47 ; (1983) 153 CLR 1 at 11. Gibbs CJ there said that the authorities establish that when a Minister is entrusted with administrative functions he or she may in general act through a duly authorised officer of the department. 44 Whether these authorities are applicable to the present proceeding is a matter to be determined at the final hearing. 45 This approach is consistent with that which was adopted by Mansfield J in Australian Competition and Consumer Commission v Rural Press Limited [2000] FCA 66 ; (2000) 96 FCR 389 at [37] --- [38]. His Honour accepted that the effect of the decision by the judges in Kotan is that the question of whether the exercise of the power is for an improper purpose is to be determined by a consideration of all the circumstances. 46 The precise limits of the power to issue a s 155 notice were left open in Kotan. Davies and Foster JJ accepted that it was arguable that the power ceases when the Commission has formally resolved that legal proceedings be instituted (at 516). Lockhart J at 521 was of the view that the Commission's power to issue a s 155 notice does not cease and is not abused merely because the Commission has made a decision to commence proceedings. 47 The documents required by [5] of the Notice to Produce are documents created by senior officers of the ACCC. They go to the questions raised in [8] of the Statement of Issues and to the questions of purpose raised by the other paragraphs set out above. 48 I reject the submission that they lack a legitimate forensic purpose. ) MP4 of Mr Pearson's affidavit and, in particular to certain redacted parts of attachments 1 and 2. I have referred to them above. 54 The principles applicable to legal professional privilege as a rule of substantive law were comprehensively reviewed by McColl JA in Workcover Authority (NSW) v Law Society of New South Wales (2006) 65 NSWLR 502 at [72]ff. • Legal advice is not confined to telling the client the law; it may include advice as to what should prudently and sensibly be done in the relevant legal context. • What matters is whether the lawyers are being asked qua lawyers to provide legal advice. • The presence of other matter may raise a question of the purpose for which the document was brought into existence but this will be a question of fact. • The privilege should not be undermined by an overly narrow or technical approach to the identification of the relevant advice. As Lord Scott emphasised in Three Rivers District Council v Governor and Company of the Bank of England (No 6) (at 651 [38]) in order for privilege to apply advice must be given in "the relevant legal context. 58 It is well-established that the Court may inspect the documents in question to ascertain whether any doubts about the validity of the claim are made good by an inspection of the documents: see eg Zarro v Australian Securities Commission (1992) 36 FCR 40 at 61. 59 The parties agreed that I may inspect the documents. I have done so and am satisfied that the claim for the redacted portion of attachment 1 is supported. 60 In my view, the claim for legal professional privilege for attachment 2 is not supported, either by the principles to which I have referred or by an inspection of the document. 61 In short, attachment 2 was not prepared by a legal practitioner and there is no relevant legal context. Accordingly, it does not attract client legal privilege or litigation privilege: see AWB Ltd v Cole [2006] FCA 571 ; (2005) 152 FCR 382 at [144] - [145] . 63 The existence of public interest immunity is to be determined by balancing two competing aspects of the public interest. First, whether harm would be done to the public interest by production of the document; second, whether the administration of justice would be impaired if the document were withheld. The balancing exercise can only be undertaken when both aspects of the public interest require consideration. Inspection may be permitted by the Court, though there may be cases where this is not appropriate. 64 As I have said, a claim for public interest immunity was made for the redacted portion of attachment 2. Mr Gageler seeks the redacted material against the line referring to KAL. He argues that the claim for public interest immunity over the material cannot be supported. The disclosure of this information may compromise the Commissioner's ability to properly conduct the investigation. Such disclosure entails a serious risk of adversely affecting the Commission's ongoing investigation into conduct suspected to have been carried out by the applicant and other carriers, and thereby impeding the Commission's fulfilment of its statutory functions in the public interest. Where the information in question has been supplied to the Commission on a confidential basis, such disclosure may also adversely affect the Commission's ability to investigate other past and future suspected cartel activity (ie unrelated to air cargo). However, it seems to me that the opinion must be considered in the context of other matters referred to in the affidavit. 68 Mr Gregson refers elsewhere in his affidavit to the difficulties of cartel investigation, the possibility of other suspected participants drawing inferences from the material and the willingness of other parties to supply material voluntarily to the ACCC. 69 I have come to the view that the claim for public interest immunity in respect of the redacted portion of attachment 2 is made out. Where the privilege holder has put the contents of the otherwise privileged communication in issue, such an act can be regarded as inconsistent with the confidentiality that would otherwise pertain to the communication. His Honour there referred to waiver coming about when a party entitled to the privilege makes an assertion which is either about the contents of the confidential communication or which necessarily lays it open to scrutiny. Privilege is lost because an inconsistency arises between the act and the maintenance of the confidence, informed partly by forensic unfairness. 73 It is true that Mr Pearson has deployed the existence of the separate settlement team and the fact that the team developed a proposed settlement regime for consideration by the Enforcement Committee. However, I do not consider that the assertions in Mr Pearson's affidavit at [8] and [10] --- [15] fall within the principles referred to above. 74 In particular, I do not consider that the assertions in the affidavit are about the contents of the redacted portions of attachment 1. 75 Nor do I consider that Mr Pearson's affidavit, necessarily lays open the contents of the redacted material to scrutiny. 76 In short, any waiver is limited to documents going to the existence of the settlement strategy, not to every detail of the content of that strategy. Indeed, in my view, those details are irrelevant to the issues raised in these proceedings. 77 Nor do I consider that privilege in attachment 1 is waived by anything in Mr Owbridge's version of his conversation with Mr Lloyd. I was provided with a bundle of un-redacted confidential exhibits. I do not understand that I have been asked to rule on each of those documents. My reasons set out above may enable the parties to resolve any differences about those documents. If not, I will reserve liberty to apply on short notice. I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

application to be excused from compliance with notice to produce notice to produce had a legitimate forensic purpose claim for legal professional privilege upheld in part claim for public interest immunity upheld waiver of legal professional privilege procedure

It also seeks the extension of orders for the preservation of the assets of certain other defendants. The orders were, for the most part, originally made on 20 April 2006. They have been varied and added to since that time. Additional corporate defendants associated with the Westpoint Group have been joined in the proceedings and further orders made against them. 2 ASIC sought the orders under s 1323 of the Corporations Act 2001 (Cth) (the Corporations Act ) to protect the position of potential claimants against the property of the defendants pending the outcome of its investigations into the conduct of individuals and companies within the Westpoint Group. The investigations have been long and complex. As the evidence now before the Court indicates, much remains to be done. ASIC seeks an extension of the orders. Some extensions have already been made by consent. Others are contested to the extent that the continued appointment of receivers to the property of the defendants is opposed. 3 For the reasons that follow, I am of the opinion that the Receiver Orders and Asset Preservation Orders, where applicable, should be extended to 30 June 2007. I will extend the existing orders which expire tonight, for seven days in order to allow ASIC to bring in appropriate minutes to give effect to these reasons. I will also make a new Receiver Order in relation to Silkchime Pty Ltd (Silkchime) and an Asset Preservation Order in relation to Healthcare Properties Pty Ltd (Receiver and Manager appointed) (Healthcare). The application in respect of Rold Corporation Pty Ltd (Rold) is to be heard on Wednesday, 31 January 2007. The costs of the extension application are reserved and may be the subject of further submissions. The application was brought in respect of the first to eighth defendants. The individuals against whom the orders were made were officers or former officers of companies in the Westpoint Group. Each of the individuals and companies in respect of whom receivers were appointed was required to produce affidavits setting out, inter alia, their assets and liabilities and the detail of property held by them. Travel restraint orders were made against the individual defendants. The Receiver Orders were not made against the seventh defendant, Bowesco Pty Ltd (Bowesco), as it had privately appointed receivers in place under a debenture. It was however the subject of an asset Preservation Order preventing disposition of its assets and requiring a detailed inventory of its assets and liabilities and of all its property in the same terms as required of the other defendants. 5 The orders of 20 April 2006 were expressed to be effective "until 20 October 2006 or further order". They have subsequently been varied and extended in time. Receiver Orders were made in relation to the ninth defendant, Keypoint Developments Pty Ltd (Keypoint) on 10 May 2006. The tenth and eleventh defendants, Silkchime and Rold were joined on 7 August 2006 and interim asset preservation orders made against them. Interim orders were also made in relation to Healthcare to take effect upon termination of its private receivership. Those orders were extended to 29 January 2007 in line with other orders subject to the extension application by ASIC. The bulk of the orders made in relation to the various defendants, as extended, expire at midnight tonight. 6 The originating application was filed by ASIC on 29 March 2006 and sought orders under s 1323 of the Corporations Act . ASIC had made determinations in 2005 and early 2006 pursuant to s 13 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) to investigate suspected contraventions of the Corporations Act , the ASIC Act and the Criminal Code of Western Australia by companies and individuals associated with the Westpoint Group. The corporate entities in respect of which the determinations were made comprised three groups which ASIC referred to as "the companies", "the Mezzanine companies" and 'the wider Westpoint Group". At the time of the application the Westpoint Group had undertaken property development including the construction of apartment blocks in various parts of Australia. It obtained funding for its undertakings from banks and other institutions subject to first ranking securities and, in the case of a number of the developments, from individual investors through so called "Mezzanine Companies" which issued promissory notes. Finance raised through the Mezzanine Companies was supported by securities offered by companies in the Group. Those securities ranked after the first ranking securities held by lending institutions. The funds raised by the Mezzanine Companies were projects specific. Each mezzanine company related to a particular project. 7 Mr Norman Carey is and was the principal officer of the Westpoint Group. He was the only director and shareholder of the Westpoint Corporation Pty Ltd. He was a director or the sole director of many of the companies in the Group. He was also directly or indirectly their owner. Graeme John Rundle was the chief financial officer of the Group and the secretary of many of the companies in it. Cedric Richard Palmer Beck and John Norman Dixon were directors of the Mezzanine Companies. 8 At the time of its application to the Court ASIC had conducted examinations under s 19 of the ASIC Act of a number of persons associated with the Group. They were Messrs Rundle, Carey, Beck and Dixon and a former director, Ms Schiftan. Many documents were produced to ASIC in the course of its investigation. It also undertook searches of property registered in the names of the various defendants. 9 Siopis J made interim orders on 30 March 2006 restraining the defendants from removing any of their property from Australia or otherwise dealing with it except to the extent set out in the order. The individual defendants were also directed to surrender their passports: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd (ACN 099 071 968) v Carey [2006] FCA 366. The interim injunctions granted by Siopis J were extended on 7 April 2006 until judgment on the substantive application brought by ASIC which was delivered on 20 April 2006. 10 In delivering judgment on 20 April 2006 I referred to affidavits filed by ASIC and by certain of the defendants. The affidavits relied upon by ASIC were those of Oran Zohar sworn 29 March 2006, 6 April 2006, 12 April 2006 (two affidavits on that date), Richard Warren Gomm sworn 29 March 2006 (two affidavits), the affidavits of Kevin Chin sworn 30 March 2006, 6 April 2006 and 11 April 2006 and the affidavit of Marcus Essex Claridge sworn on 30 March 2006. The defendants variously relied upon the affidavits of Calogero Tindaro Triscari sworn 11 April 2006, Glenn Anthony Tully sworn 11 April 2006, Cedric Richard Palmer Beck sworn 11 April 2006, John Norman Dixon sworn 11 April 2006 and Wayne John Carl Zappia sworn 11 April 2006. 11 The reasons for judgment delivered on 20 April 2006 set out in broad terms, based on the affidavit evidence, the composition and modus operandi of the Westpoint Group. The treatment of "mezzanine finance" raised by the Mezzanine Companies from retail investors was also set out. It is not necessary to repeat those matters in these reasons. The evidence more recently filed on behalf of the defendants does not lead me to a different view of the operation of the Group. 12 The reasons also described particular transactions and practices within the Westpoint Group were questionable. The formation of contractual arrangements between development companies within the Group and its construction company, Westpoint Construction Pty Ltd (Westpoint Construction), under which the construction company was entitled to bill the development company for an amount up to 65 per cent of the value of the contract before undertaking any work on it. 2. The failure to allocate money raised by Mezzanine Companies from retail investors to the specific projects for which the funds had been raised. Relevant to that factor was the mixing of Mezzanine Company funds with other Group funds under the "treasury function" carried on for the Group by Westpoint Corporation. 3. The "rollover" of promissory notes or debentures from one Westpoint Group project into another at or about the time of their expiry date. 4. The Intra-group transactions which were said by ASIC to have the effect of reducing the assets of Westpoint Group entities available to meet the claims of third party creditors and of benefiting persons formally in control of the Westpoint Group. A description of those transactions was set out in the reasons for judgment given on 20 April 2006. The Renaissance Mezzanine payment was on-paid to Rold. Bowesco received its payment as trustee of the Dyson Family Trust, the beneficiaries of which are Mr Carey's children. Richstar received its payment as trustee for the Richstar Enterprises Trust. Mr Zohar also referred to inter-company loan transfers recorded in a document located at the offices of Westpoint Corporation and entitled "The $2 million run around". This was a reference to payments made by Westpoint Corporation to Bowesco between 11 July 2005 and 15 December 2005 totalling $2,160,932.99. According to Mr Zohar it represented loan repayments for funds allegedly advanced by Bowesco to Westpoint Corporation. It is sufficient however, in my opinion, to indicate that those who had the control of the affairs of the Westpoint Group may have been involved in serious contravention of their statutory duties as directors and officers of various companies. They may also have incurred liabilities under the general law. The range and complexity of questionable transactions is great and the potential losses to investors in the Group and other creditors are substantial. In my opinion each of the defendants is potentially liable in respect of all or some of the matters to which reference has already been made in the evidence. In so saying I express no concluded view as to whether any particular contraventions have occurred or any particular liability has been incurred. Information Memoranda issued by Mezzanine Companies in order to attract retail investors to the Westpoint Group were arguably misleading or deceptive in various important respects. They arguably misrepresented the total funds to be used as mezzanine finance for the respective developments to which they related. For example, the Information Memoranda issued by York Street Mezzanine may have falsely represented that moneys raised would be applied specifically by way of a cash loan to Scots Church Development Pty Ltd, the relevant development company responsible for the Scots Church Apartment development. 14 The defendants did not make any substantive or detailed response to the ASIC evidence. Mr Carey himself put on no affidavit evidence at the original hearing. Mr Rundle said, through his solicitor, that he was a person of limited means and had not travelled overseas since August 2000. Mr Beck denied the allegation that as a director of the Mezzanine Companies he had acted in accordance with instructions from Messrs Carey and Rundle. Mr Dixon also denied that he acted under instructions from Messrs Carey and Rundle. Mr Carey says, in responding to the extension application, that the voluminous materials provided in support of the original ASIC application and the difficulties he had in accessing documents seized by ASIC, together with the short notice on which the application was brought, meant that his capacity to respond to the evidence against him and the corporation was severely limited. 15 In my reasons for decision I concluded that ASIC had demonstrated that it was necessary and desirable, within the meaning of s 1323(i) of the Corporations Act , that the Court make orders to protect potential claimants against the defendants in respect of liabilities for contraventions of the Corporations Act and other statutes and for breach of common law and fiduciary duties. I accepted that the appointment of receivers was a drastic step but was satisfied that in the serious circumstances of the case it was justified. I did not consider that the necessary protection could be achieved simply by way of freezing orders or by the acceptance of undertakings. Further, the administration of freezing orders in such a complex corporate group would have required frequent interventions by the Court. The appointment of receivers with appropriate discretions to allow the corporations to continue operating, subject to solvency issues, was intended to allow for a degree of administrative flexibility that would not have been possible through comprehensive freezing orders. As it is, there have been a significant number of applications about the administration of the orders. I am satisfied, however, that applications in relation to freezing orders would in all likelihood have been more numerous and involved considerably more expense than under the receivership regime. 16 The orders made on 20 April 2006 related to the first to eighth defendants respectively. On 26 May 2006 similar orders were made in respect of Keypoint, which was added as ninth defendant. Additional affidavit evidence was adduced by ASIC in support of those orders, they being the affidavits of Brian Keith McMaster sworn 4 May 2006, Nicholas Gvozdin sworn 5 and 18 May 2006 and Rodney James Edgell sworn 9 May 2006. ASIC relied upon five matters warranting the appointment of receivers to Keypoint. The assignment to Lanepoint Enterprises Pty Ltd (Lanepoint) by Westpoint Corporation on 10 January 2006 of a debt of $429,105.14 owed to Westpoint by Keypoint. The effect of the assignment was to take an amount available to the creditors of Westpoint Corporation and put it in the hands of another company in the Group controlled by Mr Norman Carey's brother, Allan. 2. Payments from Westpoint Corporation to Bowesco, Renaissance Mezzaine and Richstar on 24 and 25 November 2005. The payments to Bowesco were the subject of the two "round robin" transactions referred to in the earlier judgment. $200,000 of the original $1.15 million paid to Bowesco was applied by Keypoint for making payments to a number of its creditors and creditors of other companies within the Westpoint Group controlled by Mr Carey and his relatives. 3. The electronic transfer on 31 March 2006 of $875,000 from Richstar to Keypoint despite the ASIC preservation orders made by Siopis J on 30 March 2006. 4. The attempt by Mr Carey to withdraw $600,000 from the Keypoint account, including a sum of $875,000 referred to earlier, and to pay that sum to Gemspark Pty Ltd whose sole director and shareholder was Mr Carey's sister, Karen Carey-Hazell. 5. The loan by Richstar of the sum of $917,739 to Keypoint on an unsecured basis which included the sum of $875,000 paid on 31 March 2006. The term "control" used in Order 4 is to be interpreted according to its ordinary meaning and not limited to property in which he has a legal or beneficial interest. 19 On 5 September 2006 I made orders directing Mr Carey to produce various documents to ASIC relating to offshore banking arrangements and to authorise and request a Channel Island company, Mercator Trust Company Ltd (Mercator) to forward to the Registrar of the Federal Court in Perth copies of documents concerning the engagement of Mercator by another Channel Island company, Halter Ltd, and by a trust known as the Hilton Trust and by Mr Carey. The orders followed a motion by ASIC arising out of Mr Carey's examination before a Registrar of the Court. An adverse inference would be that he has been involved in so many companies and transactions that he has no real command of the detail of those involvements. Whichever inference is to be preferred, does not matter for present purposes. Whether Mr Carey has a bad memory or was lying to the Registrar, the process of investigating his assets will, it seems to me, be materially assisted by orders for the production of documents of the kind now sought by ASIC in its amended motion. The option had been assigned for a consideration of $100. An offer of $1 million to acquire the option was made by a third party: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 9) [2006] FCA 1242 ; 58 ACSR 721. 21 Other orders varying the Receiver Orders to meet particular contingencies were made on 23 November 2006 and 12 January 2007: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 10) [2006] FCA 1617 and Australian Securities and Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 11) [2007] FCA 21. At the time that the extension application was heard, on 18 December 2006, ASIC had almost completed negotiating with the representatives for Messrs Beck and Dixon, a final form of orders and undertakings. Orders were made by consent on 22 December 2006 effective to 30 April 2007. In respect of the second defendant, Mr Rundle, orders had been made by consent effective to 15 June 2007. Mr Carey be restrained from leaving Australia unless with the prior approval, in writing, of ASIC or this Court. 2. Mr Carey to be restrained from removing any asset from Australia or dealing with any of his assets. 3. The preceding order to be subject to Mr Carey being permitted to receive and expend $4,000 per week by way of living expenses and to expend moneys for legal advice and services. 4. Each of the corporate defendants to be restrained from removing assets from Australia or otherwise dealing with assets. 5. Nothing in the preceding orders would prevent the ordinary course of a private receivership in respect of any of the corporate defendants or the expenditure of moneys for the purpose of carrying on the corporate defendants' ordinary course of business, the augmentation of its assets by way of investment or the provision to it of legal advice and services. 6. The appointment of an independent accountant agreed between ASIC and the corporate defendants to, in effect, vet expenditure in excess of $25,000 in any given week by each of the corporate defendants. 7. An independent property expert to be appointed to vet proposed investments or property developments by any of the corporate defendants. The affidavits of Jonathon Hilton Jacobson sworn 7 August 2006, 29 August 2006, 5 September 2006 and 14 December 2006 (two affidavits). 2. The affidavits of Brian Keith McMaster sworn 24 November 2006 and 18 December 2006. 3. The affidavit of David Lawrence McEvoy sworn 8 November 2006. 4. The affidavit of Allen James Turton, a Deputy Director Enforcement of ASIC, sworn 16 November 2006. It also exhibited records of properties of which Silkchime is shown as registered proprietor. The affidavit was used to support an application for the orders which I made on 5 September 2006 requiring Mr Carey to, in effect, give discovery of documents relating to those dealings and to instruct both ING and Mercator to send relevant documents to the Registrar of the Court: Australian Securities and Investments Commission, In the Matter of Richstar Enterprises Pty Ltd v Carey (No 8) [2006] FCA 1208. The effect of Mr Jacobson's evidence and associated affidavits is set out in those reasons and need not be repeated here. The documents were received on 4 September 2006. They were relevant to the off-shore dealings with which the judgment of 5 September 2006 was concerned and included written instructions given by Dosius Pty Ltd, a company of which Mr Carey was managing director, for the transfer of funds from the Challenge Bank in Perth to Citibank NA Singapore. It exhibited documents relating to the off-shore Channel Island dealings and in particular a letter from Mercator dated 20 October 2006, as well as documents constituting the Hilton Trust and Hilton Trust financial statements for the years ended 31 December 2003 to 31 December 2005. Correspondence between Mercator and Mr Carey in connection with Halter was also exhibited. A large number of documents relevant to Halter were also exhibited. 30 The first Jacobson affidavit also exhibited a transcript of Mr Carey's further examination before a Registrar of this Court on 7 and 8 December 2006. That examination related to the Mercator documents. One of the letters exhibited was from Mr Carey dated January 1989 to Balchan Trustee Limited as trustee of the Hilton Trust. The Hilton Trust is a discretionary trust. He also requested that all money received by the trust be deposited in the non-resident bank account of the trust opened at the Hill Samuel Merchant Bank Asia Ltd in Singapore under the name of its nominee company. These responses were exhibited to his affidavit. He adverted also to the possibility that Westpoint Management may be found to have claims against Mr Rundle and Bowesco. At the time of writing he had not identified any claims by Westpoint Management against the other corporate defendants. (ii) Mr Mark Conlan as liquidator of Bayview Port Melbourne Pty Ltd, said that he had not made claims against any of the first to ninth defendants. Future claims would be dependent upon the outcome of his investigations. (iii) Mr Brian McMaster, as receiver and manager of Kingdream Pty Ltd (Kingdream), said that his investigations in respect of any claims or other potential assets available to Kingdream were currently ongoing and he expected that they would be finalised in the first half of 2007. (iv) Mr McMaster as receiver and manager of Lanepoint Enterprises Pty Ltd was appointed after Messrs Cronin and Fraser who took their appointment from a security holder with priority over Mr McMaster's appointor. Mr McMaster had not taken possession of any of the books and records and his investigations and that of his co-appointee were yet to commence. (v) As Court appointed receiver with Messrs Korda and Zohar of Keypoint, Redchime, Richstar and Westpoint Realty, Mr McMaster was not empowered to pursue any claims but was undertaking ongoing investigations about the asset position of those companies including any claims they might have against some other party. (vi) Mr Craig Shepard, receiver and manager of Bayshore Port Melbourne Pty Ltd also responded indicating that lack of resources and the in depth knowledge required to appreciate the operation of that company had limited his ability to investigate and consider any potential action against the named defendants in these proceedings. 33 The receivers considered that overall their receiverships had been an effective method of achieving the identification, preservation and securing of property for the benefit of potential creditors. However the extent of the effectiveness of the receiverships varied from entity to entity and in some instances their full effectiveness had not been able to be realised. They identified access to books and records as one of the key difficulties in their receiverships. The orders made on 20 April 2006 required the various defendants to immediately deliver up all books and records in their respective possession. They did not do so. In previous affidavits sworn by Mr McMaster evidence was given of delays in the delivery of books and records which required applications to the Federal Court for directions to compel compliance with the Court order. Their staff did not gain access to some of the books and records of Richstar and Redchime until 22 May 2006. 34 According to the receivers' Report Mr Carey and other Westpoint Group directors had maintained that they had provided access to all relevant documents. In several instances, however, the receivers became aware of material transactions or liabilities, and documents relating to those matters, from alternative sources. They did not consider it possible to say that they had been given access to all the relevant books and records. The problem had been exacerbated by the fact that ASIC is in possession of a substantial portion of Group records. 35 The Report then went on to deal with problems associated with access to the Redchime computer system which contains many of the books and records of the corporate defendants. Records relating to other defendants are also contained on that system. There have been claims for legal professional privilege in relation to some of the data and the process of identifying and excluding potentially privileged documents has proven difficult. The large quantity of data and steps taken to protect privileged documents and those that might belong to other entities has significantly hindered the receivers' ability to utilise the data on the system to conduct their investigations. Appropriate procedures were recently agreed and implemented to streamline the process. 36 The Report referred to apparent deletions from the Redchime computer system of some 27,055 files. In excess of 97 per cent of the deleted files were erased late the night before and on the morning of the imaging process. 4,148 of the deleted files contained references to Mr Carey; 599 to Mr Ray Ellis; 49 to Mr Glen Tully; 53 to Ms Karen Carey-Hazell; 6,488 to Mr Graeme Rundle; 63 to Redchime; 171 to Richstar; 219 to Keypoint and 866 to Westpoint Realty. The receivers' Information Technology Division set about reconstructing and analysing the electronic transactions within the Redchime computer system including the 27,000 deleted files. This resulted in significant delay in attempts to interrogate the Redchime computer system. 37 ASIC has taken possession of a large amount of hard copy books and, according to the receivers, has approximately 1,500,000 documents in its possession. It has been scanning the documents and creating a database to enable electronic searches to be done. At the time of the Report ASIC had informed the receivers that the processes would shortly be completed. The records in ASIC's possession were likely to assist the receivers in their investigations. 38 The receivers also complained that Mr Carey and his companies had failed to cooperate with them and with their staff and that this had resulted in the receiverships being unnecessarily difficult and cumbersome. They were concerned that there had been insufficient disclosure for them to accurately and completely report on the current asset and liability position of each of the entities. They referred, as examples of this behaviour, to the difficulties they had faced in obtaining access to books and records and the apparent deletion of computer data immediately prior to the image taking process. They complained also that they and their staff had been subjected, inter alia, to threats of litigation, allegations of wrong-doing and other accusations. 39 The receivers reviewed the operation of their receivership in respect of Mr Carey and each of the corporate defendants in respect of which they had been appointed. It is not necessary for present purposes to set out in detail the receivers' Report so far as it related to each of the defendants. General factors affecting the conduct of the receivership have already been referred to. 40 In relation to Mr Carey, the receivers reported on his lack of cooperation and their serious doubts about the completeness of the disclosures made by him. I agree, having regard to the way in which the proceedings have progressed thus far and the evidence that has been put before me from time to time in the course of these proceedings, that the receivers' concern that they have not been able to form a complete picture of Mr Carey's asset situation is well-founded. Part of that outcome is attributable to Mr Carey's defensive and uncooperative approach to disclosure. In so saying, I have regard to Mr Carey's defence of his own position in his affidavit to which I will refer later. Part of the difficulty is attributable to the sheer volume of documents and information which it may yet be necessary for the receivers to consider and which are either held by ASIC or are to be found in the Redchime computer system. 41 The receivers consider the Richstar receivership to have been "mostly effective" in achieving the objective of the orders made in relation to that company. The company's assets have been identified and substantially secured and preserved. Richstar has continued to carry out property development activities. A sum of $875,000 which was transferred by Richstar to Keypoint on 31 March 2006, notwithstanding the orders made by Siopis J on 30 March 2006, was refunded to Richstar on 15 May 2006 by order of this Court made on 10 May 2006. 42 According to the receivers' Report, shortly after their appointment to Richstar, Mr Carey asked that they authorise a transaction by which Richstar would transfer its remaining cash at bank to Keypoint to enable it to buy and develop land at Ascot. They declined the request. They say they were threatened by Mr Carey and his sister who is the sole director of the company, with an action for damages on behalf of Keypoint. Neither Richstar nor Keypoint applied to the Court for any variation to the orders made on 20 April 2006 to authorise the proposed transaction. Keypoint and a related company, Keyworld Pty Ltd, have commenced proceedings in the Supreme Court of Western Australia against Richstar. Ms Karen Carey-Hazell is the sole director of all three companies. According to the receivers, Richstar has threatened third party proceedings against them. 43 The receivers' view of Richstar's financial position is that it has assets with an estimated recovery value of $2,861,250 and no liabilities. The assets are represented by cash at bank. Loans receivable from Bowesco, Keypoint and Lanepoint are estimated to have a recovery value of nil. 44 The receivers complain that without their prior consent Ms Carey-Hazell engaged employees in the name of Richstar. There was a question whether this was a breach of the Court's orders. However, it seems to have been agreed that Richstar staff were involved in work for other entities in the Westpoint Group. The receivers requested that the other entities undertake to reimburse Richstar on a pro rata basis. Two of the entities are subject to privately appointed receivers. Any cost reimbursement regime would require their authorisation. Ms Carey-Hazell has been asked to confirm their authorisation but no response had been forthcoming at the date of the Report. From 4 July 2006 Richstar requested that Ms Carey-Hazell be paid director's fees. In the event the receivers agreed to authorise payments of $2,000 per fortnight to her. 45 The receivers recommend the continuation of the present orders relating to Richstar without any amendment to their powers. 46 The receivers consider that their receivership of Westpoint Realty has been effective in achieving the objectives of the orders in terms of identification, preservation and securing of assets and the continuation of the business in the ordinary course. Mr Carey swore an affidavit on 5 May 2006 identifying assets to a value of $1,467,990 and liabilities to a value of $212,367. The receivers however formed the view that his affidavit did not adequately disclose the assets and liabilities of Westpoint Realty. The receivers' concerns had been set out in an affidavit sworn by Mr McMaster on 23 May 2006. They expressed their concern that Realty might be insolvent. 47 In recent proceedings relating to the payment of insurance premiums by Realty in respect of property owned by other entities, Mr McMaster gave oral evidence before the Court that Westpoint Realty was not solvent. Westpoint Realty was not represented on that occasion but has subsequently appointed a voluntary administrator. As to the short reasons for judgment authorising payment by Westpoint Realty of a premium for short term insurance in relation to property belonging to other owners see: Australian Securities and Investments Commission, In the matter of Richstar Enterprises Pty Ltd v Carey (No 11) [2007] FCA 21. The receivers were of the view prior to the appointment of the administrator that the current orders represent an appropriate regime to preserve the company's assets. 48 In relation to Redchime the receivers say that the receivership has been effective in achieving the objectives of the orders so far as they related to identification, preservation and securing of assets. Their summary of Redchime's current financial position based on their assessment of the estimated realisable value of its assets and liabilities shows total assets of an estimated recoverable value of $132,355 and total liabilities of $659,813. They discount to nil the recoverable value of loans receivable from Keypoint and from Westpoint Finance. They also discount trade debtors from $924,581 to $129,404. That amount includes $795,177 outstanding for property developments which may be subject to a commission dispute with Westpoint Realty. The receivers were of the view, at the time of writing the Report, that Redchime was insolvent. They observe that it is not actively involved in any business activities other than the litigation concerning the commission dispute. They recommend that the current regime remain in place pending the determination of that commission dispute. 49 So far as Keypoint is concerned, the receivers' report that they have achieved the objectives of identification, preservation and securing of its assets. Their assessment of Keypoint's financial position at the time of the report indicates total assets with an estimated recovery value of $134,588 against total liabilities of $2,052,402. On this basis it appears that Keypoint is insolvent. The receivers' report that they consider the most appropriate regime going forward would be an extension of the existing order until their investigations were completed. Some of the material was argumentative by way of response to argumentative material in Ms Carey-Hazell's affidavit. 51 Mr McMaster dealt with the delivery up of books and records responding to Ms Carey-Hazell's contention that the corporate defendants had tried to comply with the receiver orders regarding the delivery of books and records and that she had tried to respond to requests for information as quickly as possible. He referred to the history of attempts to obtain books and records as indicating that Ms Carey-Hazell's characterisation of the corporate defendants' response to their obligations was not correct. 52 Responding to Ms Carey-Hazell's contention that the conduct of the receivers had hindered the ability of the corporate defendants to operate their businesses, Mr McMaster noted that Keypoint was dormant at the time of his appointment and Redchime ceased its business activities shortly after, save for asserting an entitlement to commissions. Healthcare was not the subject of the Receiver Orders and its dormancy could not be in any way attributable to the Receiver Orders or the Court receivers. Westpoint Realty was the subject of significant claims from third parties. 53 In relation to Ms Carey-Hazell's alleged difficulties in communicating with the corporate receivers, Mr McMaster said that his practice was to personally respond to her inquiries or to have a senior member of his staff or one of his lawyers respond as quickly as reasonably possible. He and his staff diligently responded to correspondence they received from the Carey entities. Mr McMaster went on to deal with the detailed allegations relating to alleged lack of communication which he rebutted on a factual basis. I do not accept the claim that he failed to communicate with Ms Carey-Hazell or the Westpoint Group companies. Late payment of wages. 2. Richstar employees. 3. Ms Carey-Hazell's salary. 4. The authorisation of Westpoint Realty expenditure. 5. The Keypoint/Richstar transaction. 6. The deletion of computer records. 7. Claims of legal professional privilege. 8. The alleged failure by the corporate defendants to cooperate with the receivers. 9. The allegations relating to Richstar. 10. Richstar wages. 12. Allegations relating to Westpoint Realty. 13. Impact of the receiverships. 55 Mr McMaster's affidavit contains persuasive responses to the various allegations made by Ms Carey-Hazell. In the course of the affidavit he said that investigations had been undertaken into the 27,000 documents said to have been deleted from the Redchime computer system. He had been informed, by Mr Wills from the Information Technology Division of KordaMentha, that approximately 24,500 documents had been removed from the Redchime server and moved to an external location then relocated to another area in the Redchime server between one and three hours later. Approximately 2,500 documents removed from the Redchime server were not replaced. Mr Wills had, however, managed to restore those documents. The deletion and transfer of data took place eight hours earlier than previously thought. The majority of movements took place between 2 pm and 5 pm on 8 June and 7.45 am and 10 am on 9 June. He operates from its New South Wales regional office. In his affidavit Mr Turton described ASIC's investigation into Westpoint as one of national significance and of high priority. It is nationally resourced and extends to criminal, civil and administrative investigations and actions. 57 According to Mr Turton ASIC established a dedicated team of people in April 2006 to investigate the affairs of the Westpoint Group, including the conduct of its directors and officers. This necessitated recruitment, induction and training of internal and external investigators, lawyers, analysts, electronic forensic officers, document control officers and administrative staff. So much of the Westpoint investigation team as is based in Perth currently comprises about 30 people, a number of whom have been transferred from interstate ASIC offices. Some external service providers have also been engaged. 58 The size of the investigation has required ASIC to lease additional premises to accommodate the Investigation Team as well as documents associated with the Westpoint Group. It is one of ASIC's largest investigations to date. 59 Mr Turton set out in his affidavit the chronology of orders made against the various defendants. He said that ASIC has identified possible contraventions of the Corporations Act , the ASIC Act and relevant State criminal legislation by defendants in respect of transactions designed to strip assets or transfer liabilities to the detriment of creditors and/or retail investors of the Westpoint Group. Analysis of numerous transactions has taken place by reviewing available documentary evidence, accounting records and electronic data. 60 Mr Turton set out various areas of investigation being undertaken by ASIC including a fund raising investigation relating to the raising of funds by Mezzanine Companies, an asset stripping investigation which focuses on a number of transactions in and associated with the Westpoint Group, a document destruction investigation and other investigations arising from the collapse of the Group. There are ongoing investigations into the alleged commission of serious criminal offences, however Mr Turton believes that disclosure of those investigations will jeopardise them. The factual complexity of the investigations given the size and structure of the Westpoint Group which comprised over 190 entities, approximately 290 staff and $386 million of funds raised to 4 January 2006. 2. The intricacies of the accounting systems used by the Westpoint Group. 3. The national operations of the Group, the geographic spread of witnesses and the need to conduct investigations on a national basis. 4. The need to take into account the interests and obligations of third parties, including external controllers, the Commissioner of Taxation, the Australian Federal Police and creditors. 5. Logistical issues associated with the large volume of electronic and hard copy documents. 6. The necessity of ensuring that the integrity of documents seized is maintained. According to Mr Turton, as at 14 November 2006, ASIC's database contained 1,608,538 scanned hard copy documents and approximately 4,825,614 pages relevant to the Westpoint investigations. He also dealt in detail with the recovery of electronic records. Since 23 May 2006, ASIC has had to deal with approximately 43 requests from various entities or persons for the release or inspection of documents. 63 The affidavit then set out in a detailed chronology civil actions initiated by ASIC. 64 In support of the application to extend the orders made against the various defendants, Mr Turton said that ASIC seeks to ensure that the property the subject of the orders continues to be preserved for the benefit of creditors and investors. He is concerned that if the subject assets are not protected there is a continuing risk that the interests of creditors and investors will be negatively affected as the assets may be transferred away or used or dissipated for the benefit of others. ASIC requires more time to complete the investigations which it is currently undertaking, particularly having regard to the logistical issues which it faces. 65 External controllers of various of the companies in the Westpoint Group have indicated that they are likely to commence proceedings against some or all of the corporate defendants for the ultimate benefit of creditors of the Westpoint Group. Evidence of these indications was then set out, including evidence of the intentions of Mr McEvoy of PriceWaterhouseCoopers who are the liquidators of several of the Mezzanine Companies, the intention of the ING receivers of Westpoint Corporation to pursue assigned loans as charged assets, and the liquidators of Westpoint Corporation who have identified various claims against each of the defendants. 66 At par 91 of his affidavit, Mr Turton said that ASIC's investigations may give rise to civil compensation claims. Depending upon the position taken by external controllers, ASIC will consider whether it should undertake a representative action under s 50 of the ASIC Act. 67 Mr Turton then proceeded to deal with each of the defendants and to set out the basis upon which orders should be maintained in relation to each of them for a further six month period, subject to review at the end of that time. In so doing he identified ongoing investigations and potential claims against each of the defendants. 68 The McEvoy affidavit which was referred to by Mr Turton in his affidavit does not require separate summary here. It is supportive of the proposition that there may be claims brought against various of the corporate defendants by the liquidators of the Mezzanine Companies. Affidavit of Norman Phillip Carey sworn 14 December 2006. 2. Affidavits of Karen Sandra Carey sworn 13 December 2006 and 17 December 2006. 3. Affidavit of Gregory John Nairn sworn 14 December 2006. 4. Affidavit of Anthony Hayes Douglas-Brown sworn 18 December 2006. Counsel for ASIC took objection to the material contained in some of these affidavits to the extent that it was argumentative. However, as indicated in the course of argument, I will disregard such material. The volume of documents then put before the Court and the limited time within which counsel had to prepare for the hearing meant that it was impossible for him to respond to the allegations presented by ASIC. He has maintained at all times that he is not guilty of any wrong doing. 71 Mr Carey's affidavit sought to set out the framework within which the Westpoint Group operated and its relevant history. That history included reference to the Westpoint Group's successful development of properties throughout Australia for 20 years between 1985 and November 2005. Until 2000 the Group funded its developments by investing its own funds and by using conventional bank debt. Between 1985 and November 2005 it completed projects to a total value of $895 million and achieved approximately $182.4 million in project profit. According to Mr Carey the Group also had "an unblemished record of repayment of approximately $451 million in senior debt". 72 The total value of current projects using mezzanine funding was set out in a table exhibited to his affidavit. The table did not identify individual projects but asserted total sales value for current projects with mezzanine funding at $1.329 billion against total project costs of $1.0605 billion. A projected profit of $220.5 million was asserted. The projects were funded by "Senior Lender Funding" in the amount of $640.3 million and mezzanine financing in the amount of $373.6 million. Other current projects without mezzanine funding were said to have a total sales value of $962.9 million and projected profits of $345.4 million. 73 Mr Carey claimed that Westpoint was a sophisticated organisation built on a business model similar to the very successful "LendLease" business. He asserted that the operating structure, organisational capability, management and leadership systems were soundly based on tried and tested management methods. The Group essentially comprised three distinct businesses and a technical service group. Each business had a head responsible for that business. He was the head of the property group at all times. Mr Rundle was head of the financial services group from 1997. Mr Carey also asserted that the Westpoint Group had a "rigorous strategic planning process". 74 At all times Westpoint Corporation was the lead company in the Westpoint Group providing a shared services function and acting as a central treasury to the Group. The central treasury function was not set up by Mr Carey. It had, however, operated successfully in the Group for more than 15 years. Its design, development, structure and operation was carried out by former chief financial officers of the Group who were always experienced senior chartered accountants. It was initially set up by David Hewitt who was chief financial officer from 1992 to 1997. Mr Carey also referred to KPMG who were the Group's auditors. He said they audited the Group each year and signed off on the accounts on an unqualified basis until 30 June 2004. 75 Mr Carey rejected the proposition reflected in the ASIC affidavits that the only funding model used by the Westpoint Group involved the use of mezzanine finance. He said the only debt carried by the Westpoint Group was debt funding property projects or property investments. He referred also to the marketing and sales function of the Westpoint Group and its focus on compliance. 76 Mr Carey said he relied on senior management. This reliance was part of what he described as the internal environment of the Group. As at 2005 the Westpoint Group had approximately 350 full time employees and 1,000 contractors with a monthly payroll of about $1.6 million. More than 70 per cent of the employees had tertiary qualifications and experience. He relied upon information provided to him by the senior managers. It was impossible for the Westpoint Group to operate without that kind of reliance. He also placed "total reliance" on a comprehensive range of external specialists including solicitors, accountants and auditors and a strategic management firm. 77 Mr Carey described how in 1995 at his direction the Boston Consulting Group was engaged by the Westpoint Group to provide it with a ten year strategic plan. This was the first major step in a deliberate move by the Group to change from a private group using a traditional funding structure to a group with a funding structure which would support a larger scale of operation and be acceptable for a major publicly listed company. Between 2000 and 2005 the Group took active steps to commence what he called a "Public Company Transition". 78 Mr Carey's affidavit described the evolution of the Group's funds management business. He formed the view, based on legal advice from Freehills in about 2000, that what he called the Funds Management Objective could be achieved by the creation of a funds management business based on unregulated product in the form of promissory notes. He said that ASIC had undertaken an early investigation into the use of promissory notes and advised in 2000 that it would take no enforcement action in relation to them. He also relied upon advice from Freehills and from counsel that the use of the promissory notes as an unregulated product was lawful. He said that the Westpoint Group did not itself issue or distribute them. They were distributed by Mr Beck and Kebbel Pty Ltd and the Kebbel Group of companies. They were distributed to licensed dealer groups and licensed independent financial advisors. 79 Mr Carey said market reaction to the promissory notes was substantial. Over a period of only four years between 2000 and 2004 approximately $280 million was raised using them He said that $190 million of these funds were raised between the date of what he called "ASIC's Endorsement" and the date of the reinstitution of its investigations in July 2003. Mr Carey went on to refer to the Information Memoranda which were said to be based on a template, being the Information Memoranda prepared for the Bayview Port Melbourne development which commenced in late 1999. He spoke of commission arrangements in relation to the funds raised using the promissory notes. It is not necessary for present purposes to refer in any detail to these arrangements. 80 Mr Carey claimed that advice that he had received from Freehills in relation to the notes was "fundamentally flawed". If he had his time again he would never enter into the arena of unregulated product. He claimed never to have been warned of the likely consequences of that decision nor to have been aware of the distinction between regulated and unregulated product and its effect on the market of licensed advisors nor of the commercial impact that high commissions would have on the future establishment of a funds management business dependent on regulated product. He referred to ASIC's early investigations and what he called "ASIC's investigations re-ignited" in July 2003. 81 In 2004 Bayshore Mezzanine Pty Ltd, a member of the Westpoint Group, instituted proceedings in the Supreme Court against ASIC seeking declarations about the legitimacy of the use of the promissory notes. ASIC responded with Supreme Court proceedings of its own against Emu Brewery Mezzanine Ltd also seeking declarations. Judgment was given by Simmonds J in consolidated proceedings on 19 November 2004. Although, according to Mr Carey, 10 out of 11 issues were determined in favour of the Westpoint Group the Court determined that the promissory notes form part of a managed investment scheme. This, he said, was contrary to the advice that the Westpoint Group had received from its solicitors. An appeal was lodged against the declaration that was adverse to the Westpoint Group. Subsequently, however, the appeal was discontinued. 82 Mr Carey's affidavit turned to the collapse of the Westpoint Group which he argumentatively attributed to ASIC. It had commenced what he called "a series of aggressive moves against the Westpoint Group" in June 2005. He accused ASIC of using its investigative powers to undertake a massive general inquiry in relation to the Westpoint Group. He said it took its action without warning. It was solvent and profitable and undergoing what he called the "Public Company Transition". ASIC's action in bringing the winding up application caused the calling up of guarantees against seven guarantor companies. This in turn caused 40 other Westpoint companies to become insolvent as a result of demands made on loans to them. Further Westpoint companies which owed those companies loans in turn became insolvent. This caused technical defaults to all lending facilities within the Westpoint Group allowing receivers to be appointed to complete property projects and to sell finished properties. 84 Much of what followed was argumentative in character. There was specific reference to the fact that the Mezzanine Companies did not form part of the Group. They were described by Mr Carey as completely separate special purpose vehicles for the sole purpose of lending funds to a development company to finance the project. Each of them was managed by a board of directors who had "systematic and well documented board meetings" which included a comprehensive set of bound board papers prepared by Mr Rundle for the meeting and formal minutes from those meetings. 85 Mr Carey referred to what he called "the asset stripping investigation". He described variations to the Mezzanine Companies' loan agreements. He said that the maturity dates of the promissory notes were designed to coincide with the expected completion dates of the projects to which they referred. However "for various reasons" completion dates were extended so that the maturity dates of the promissory notes fell prior to the completion of the project. He negotiated as director of the development companies which were the borrowers, with the directors of the Mezzanine Companies, which were the lenders, to extend repayment dates to coincide with the settlement of the apartments required to repay the Mezzanine Companies. This was entirely consistent with the original agreement with the directors of the Mezzanine Companies. He denied that the variations were made with any ulterior or improper purpose. 86 Mr Carey referred to the creation of security interests in favour of entities controlled by him or his brother or sister. These things had been referred to in affidavit evidence from Mr Zohar. He asserted generally that it was in the normal course of business for funds to be loaned between entities. 87 Mr Carey also dealt with the question of the Westpoint Corporation's solvency and responded to allegations made by Mr Zohar about the condition of the Corporation at the time of the appointment of the Court receivers. According to Mr Carey Westpoint Corporation had external creditors of approximately $15 million covered by assets of approximately $26 million providing a surplus of approximately $7 million. This excluded related party loans as they were not due and payable and were internal to the Group. The analysis did not include the contingent liability of the mezzanine guarantees. 88 By way of conclusion Mr Carey said that it was apparent that the advice relied upon by the Westpoint Group and ASIC's actions had had massive and detrimental effects on investors. He "vehemently" refuted allegations that he had acted improperly. He said he had acted at all times on the best advice available to him and to the Westpoint Group. 89 Much of Mr Carey's affidavit amounted to an elaborate argument for the proposition that the present parlous state of the Westpoint Group was attributable to the actions of ASIC and the Westpoint Group's advisors. It did not allay concerns about the apparently misleading character of Information Memoranda relevant to the mezzanine funds, the rollover of the mezzanine funds into projects other than those for which they had been raised, the pre-invoicing arrangements by Westpoint Construction in relation to contracts it was engaged to carry out for the development companies and issues generally germane to the current protection of the assets of the defendants, including Mr Carey, for the purpose of creditor and other claims against them. Mr Carey is the sole director of Westpoint Realty, Silkchime and Healthcare. Ms Carey-Hazell says she is authorised by Mr Carey to swear her affidavit on behalf of those companies of which he is a director and also on behalf of Mr Carey himself. Ms Carey-Hazell confirmed the statements made by Mr Carey in his affidavit of 14 December 2006 in relation to the ASIC investigations. She then set out the nature of the business which she said was operated by each of the corporate defendants. A table embodied in her affidavit set out the current status of the corporate defendants. Richstar, Westpoint Realty, Redchime and Keypoint all have Court appointed receivers. Bowesco has a privately appointed receiver as does Healthcare. Silkchime had no Court appointed receiver at the time of swearing of her affidavit. Since then Westpoint Realty has appointed an administrator. 91 Ms Carey-Hazell referred to the orders made in relation to the companies and then proffered an explanation of delays that may have occurred in fulfilling the obligations of the corporate defendants. She said that the corporate defendants delivered their books and records to the corporate receivers. She also said that since the end of May 2006 the corporate receivers have had an electronic copy of the Triumph Accounting System which stores all of the financial books and records for each of the corporate defendants. 92 Ms Carey-Hazell reflected on the conduct of the receivers. She accused them of exceeding their function which was limited to identifying, preserving and securing the assets of the corporate defendants. Rather, she said, they had in effect operated and run the businesses of the corporate defendants. Their conduct had obscured, slowed, and at times, prevented the corporate defendants from operating in the ordinary course of business. She said that Keypoint, Redchime and Healthcare are now dormant in their activities and that Westpoint Realty is subject to insolvency accusations. It is worth pointing out in this context that Healthcare does not have a Court appointed receiver. Its receiver is privately appointed. Westpoint Realty, as noted earlier, has subsequently appointed an administrator. 93 Ms Carey-Hazell claimed to have experienced difficulties in communicating with the corporate receivers. She accused them of adopting an aggressive and overpowering manner towards her efforts to build a reasonable working relationship with them. She pointed to what she called decisions or delays in making decisions by the corporate receivers that had caused loss to, or hampered the corporate defendants in the conduct of their business. She set out a list of examples of losses which she said had made dealings with the corporate receivers difficult and costly. There were delays in the payment of wages for employees of Westpoint Realty, Keypoint and Richstar. The corporate receivers had refused to honour a loan agreement between Keypoint and Richstar. She exhibited Keypoint's writ issued in the Supreme Court of Western Australia against Richstar claiming approximately $9 million by way of damages. Some of Ms Carey-Hazell's complaints related to the conduct of the private receivers of Bowesco and Healthcare. 94 Her affidavit then turned to the Receivers' Report which was exhibited to Mr McMaster's affidavit and which has already been outlined. In relation to the delivery of books and records she repeated what she had said earlier in her affidavit. She also took issue with the contention that there had been a deletion of the computer records. Because of difficulties with a computer server files were transferred under her instructions to a stand alone computer so that the pre-existing network which was crashing could be restored. When the transfer occurred the relevant server, presumably the Redchime server, recorded the files transferred as deleted. Ms Carey-Hazell denied that they had been deleted. They had merely been transferred and stored on another device. She said that Mr McMaster had at no time raised with her the issue of the transferred files. The first time she became aware that there was an issue was when he raised it in these proceedings. Had he simply asked her about the files she could have provided him with a CD Rom with the files on them. This could have been done within a matter of hours. She asserted that the reconstruction of the allegedly deleted files by the corporate receivers was unnecessary. 95 Ms Carey-Hazell dealt with claims of legal professional privilege. In that context she asserted that the Court appointed receivers had a conflict of interest because in several instances they were also the receivers and managers of entities with competing claims. 96 On her alleged failure to cooperate, Ms Carey-Hazell repeated what she had said in relation to the delivery up of documents. She denied that there had been any attempts to try to coerce the receivers to adopt certain courses of action. She said that the allegation that there had been no cooperation and that the corporate defendants had been confrontational with a disregard for the orders and the authority of the receivers, was surprising and concerning. 97 Ms Carey-Hazell offered responses to particular allegations relating to the transactions involving Richstar, including the employment of staff by it allegedly without the prior approval of the receivers. She dealt separately with allegations relating to Westpoint Realty and Redchime. She referred to a loan from Westpoint Corporation to pay for her legal fees in relation to a tort claim she brought in the Federal Court arising out of a heart operation. She said that she had provided security to Westpoint Corporation by way of mortgages over her personal properties. At the conclusion of the proceedings which were unsuccessful, she sold the properties and repaid the loan to Mr Carey. In or around 2004 she reached an agreement with Mr Carey under which Westpoint Corporation would forego the balance owing by her under the loan and she would transfer the right of Westpoint Corporation to tax the costs of the various solicitors and retain her funds received. 98 Ms Carey-Hazell dealt with allegations relating to Bowesco and the transfer of $1.15 million to it. She said that there were actually nine transactions from 1 July 2005 to 15 December 2005. Bowesco lent Westpoint Corporation $2,850,000 and Westpoint Corporation repaid Bowesco $2,106,932.99 pursuant to a charge. This demonstrated, she said, that Bowesco lent Westpoint Corporation $744,067.01 in excess of the funds repaid. This, she said, refuted the allegations of Messrs Turton, Gomm and Zohar that the transactions were done to deprive Westpoint Corporation of assets at a time when it was expected to go into external administration. She also denied that the repayment was made from funds belonging to the Mezzanine Companies. This relied on the assumption that the only source of funds into the Westpoint Corporation bank account were mezzanine funds. She said this was not supported when the cash deposits from Bowesco to Westpoint Corporation were considered. 99 Ms Carey-Hazell dealt with allegations concerning Richstar and in particular the transfer by Westpoint Corporation of $1,370,000 to Richstar and its loan of $1,891,268. The former transfer, she said, was pursuant to a loan agreement under security to facilitate a property development by Richstar's subsidiary, Lanepoint. The $1,891,268 loan to Richstar was made in order to enable it to purchase a property at Point Piper. Ms Carey-Hazell referred to the company Renaissance Mezzanine. She said that Rold Corporation had entered into a debenture with Renaissance Mezzanine for $1.5 million in around September 2005. It was a condition that funds would be repaid on demand. Rold Corporation demanded repayment of the $1.5 million in December 2005 and that amount was repaid ".. using the Westpoint Corporation central treasury function". 100 Ms Carey-Hazell made some general contentions about the effect of the involvement of the receivers. She said that it had resulted in a curtailment of the businesses of the corporate defendants and had impacted on the profitability and sustainability of those businesses. She said that the corporate defendants had suffered loss and damage and that their assets had been diminished. She set out a table which she said illustrated the position of the corporate defendants before the Receiver Orders as against their current position. 101 Ms Carey-Hazell set out figures relating to the costs of receiverships or external administration of some 33 entities within the Group. She observed that KordaMentha had been appointed to 15 of them. The relevance of this material was not clear. Presumably it meant to support a proposition that there are uneconomic costs associated with the use of Court appointed receivers. After the collapse of the Westpoint Group on 23 January 2006 he was retained for a short period by KordaMetha to assist them with their inquiries. He had been released by KordaMentha on 10 March 2006 and since then had worked for Mr Carey for a total of five days. 103 Mr Nairn referred to recording arrangements within the Group. He talked about the difficulties of getting access to books and records seized by ASIC and gave general responses to allegations contained in the ASIC affidavits. He asserted that to his knowledge there was never any attempt to dissipate assets or transfer assets outside the reach of creditors or to defraud creditors. He was not aware of any transactions that related to the acquisition of private assets in the name of any of the corporate defendants nor of any transfers to offshore or unrelated bank accounts. He gave responses to a number of issues raised in ASIC affidavits including the assignment of loans, the so-called "$2 million run around", the "Central Treasury Issue" and the Lanepoint/Kingdream transfer. He mentioned in the course of his affidavit that Mr Anthony Douglas-Brown had been engaged in September or October 2005 to review the Westpoint Group and make recommendations. 104 In relation to the loan assignment issue Mr Nairn referred to Mr Zohar's evidence that Tracey Fox, an accountant who worked under Mr Nairn's supervision, said that Mr Nairn and Mr Carey had instructed her to effect the assignment of loans in anticipation of Westpoint Corporation being placed into voluntary administration. Mr Nairn rejected the suggestion that he had advised Ms Fox to effect the assignment of loans in anticipation of Westpoint Corporation being placed into voluntary administration. He referred to answers that Ms Fox had given in her s 19 examination on 13 February 2006. As to that I make no finding. He asserted that the $11 million odd alleged to have been transferred to the benefit of Carey controlled entities had a nil effect on the net asset position of Westpoint Corporation as at 30 June 2006. He recreated a balance sheet which he exhibited to his affidavit to show that the net asset position after the loan assignments was exactly the same as the net asset position before then. Nothing had been transferred out of Westpoint Corporation from a net asset perspective. The intention of the loan assignments was never to enhance the asset position of specific entities to the detriment or exclusion of others. He denied that there had been any loan assignments in respect of amounts owing by Keypoint and Keyworld. He said, however, that there was an accounting error which required reversal. 105 Mr Nairn defended what he called the "central treasury issue". He said it was mischievous to infer that development companies lent funds to the Westpoint Corporation. Funds transferred from Mezzanine Companies to Westpoint Corporation on behalf of development companies were to repay amounts already expended by Westpoint Corporation and owing by the development company to Westpoint Corporation. At no time did Westpoint Corporation receive loans from, or owe money to, the development companies. He also dealt with the Lanepoint/Kingdream transfer of funds. 106 Mr Nairn attributed the collapse of the Westpoint Group to ASIC for being "bloody minded" and "working against the Group" rather than "with the Group". He was associated with the Westpoint Group when asked to advise on the preparation of Deeds of Company Arrangement for York Street Mezzanine Pty Ltd and later for Westpoint Corporation. He was also engaged by Richstar, Silkchime and Healthcare to advise with respect to a workable, commercial alternative to having receivers appointed to supervise their operations. 108 Mr Douglas-Brown described the appointment of receivers as "an option of last resort for most lenders". He referred to the negative effects of the appointment of a receiver on a company's business. Receivers, while having financial skills, would not necessarily have the detailed knowledge or skills to make all decisions for operating businesses on a long term basis unless they could work effectively with management. Even then, they might never reach a position where they would operate the business as effectively as management staff. In the current commercial environment, according to Mr Douglas-Brown, many lenders use the voluntary administration process, restructuring or refinancing to resolve issues regarding their debts. This is particularly so where there is a trading business involved. 109 While Mr Douglas-Brown did not know all the details of the business operations of the corporate defendants and had not been involved in any management or business decisions, he was provided with an overview. He referred also to the affidavits of Mr McMaster sworn 24 November 2006 and that of Ms Carey-Hazell sworn 13 December 2006. On the basis of those affidavits he expressed his opinion that the current Receiver Orders appear to be stifling the commencement of any new projects as the receivers have not and will not authorise new ventures without considerable due diligence. He said that the receivers seem to have been effectively undermining the businesses of the corporate defendants. 110 Much of what appears in Mr Douglas-Brown's affidavit was by way of argument which does not seem to fall readily within any area of expertise. Indeed, I think it better to be treated as submission than as expert opinion. In that vein Mr Douglas-Brown proposed the alternative form of order reflected in the minutes submitted on behalf of Mr Carey and the corporate defendants. 111 In my opinion there is, with respect to Mr Douglas-Brown, as air of unreality about the premise upon which his opinions are based. That premise seems to be that there are substantial on-going businesses which would continue to operate if it were not for the ham fisted intervention of the receivers. This stands in contrast to Mr Carey's own theories about the cause of the Westpoint collapse in which he pointed out that ASIC's action in bringing winding up applications in relation to the Mezzanine Companies caused the calling up of guarantees which in turn forced 40 other Westpoint companies to become insolvent as a result of demands made on loans to them. There were flow-on technical defaults to all lending facilities within the Westpoint Group allowing receivers to be appointed to complete property projects and to sell finished properties. 112 In my opinion and with all due respect to Mr Douglas-Brown, his contentions, based in part upon the commercial impact of privately appointed receivers, do not establish a reliable foundation upon which to base the orders proposed on behalf of the defendants. It is not necessary to repeat them here. 114 In substance ASIC submits that, having regard to the complexity and scale of its investigations and the less than fulsome level of cooperation which it has so far received from Mr Carey, the Receiver Orders ought to be extended for six months and be subject to review at that time. There is evidence of potential claims that may be brought against Mr Carey and the possibility of claims against the corporate defendants. 115 The evidence of the receivers is to the general effect that their receiverships have met their object of identifying and securing the assets of the corporations and individuals to whom they apply. The receivers' inquiries are on-going having regard to the volume of documents relevant to each of the corporations to which they seek access. They support the extension of the Receiver Orders. 116 Mr Carey and the corporate defendants rely upon the extraordinary character of the discretion conferred by s 1323 of the Corporations Act . They contend that the discretion should only be exercised in extreme circumstances. They argue that there must be uncertainty about the existence and location of assets and the number and identity of potential claimants. There must be continuing activity in the business operations of the relevant entity and allegations of serious fraud. None of these requirements appear in terms of s 1323 as a necessary condition of the power to make orders under it albeit they may be relevant factors to be taken into account: Australian Securities and Investments Commission v Burke [2000] NSWSC 694 at [8] . But the power cannot be read down for all cases by reference to factors which may be appropriate for one subset of case. In the present proceedings the Court is dealing with the collapse of a major national property development group and potential claims of many small and not so small investors and other creditors against the members of the Group. 117 I accept the evidence given on behalf of ASIC, through Mr Turton, as to the state of the investigations it is undertaking. I also accept that there may be claims against one or more of the defendants. I accept that the Receiver Orders were appropriate means, in the circumstances of this case, of identifying, securing and preserving the assets of the defendants to whom they applied. Counsel for the defendants argued that I should accept, on a prima facie basis, the matters deposed to by Mr Carey, Ms Carey-Hazell and Mr Nairn. It is acknowledged, however, that the Court cannot, in the time available, reach any firm conclusion regarding issued such as the assignment of loans. 118 The Court cannot, on the basis of conflicting, and otherwise untested affidavit evidence, arrive at definitive findings of fact on the many disputed issues. It is sufficient to say that I continue to apprehend a risk to potential claimants in relation to the assets of Mr Carey and of the corporate defendants. In my opinion, absent appropriate restraints, the assets may be dissipated to the disadvantage of creditors. The defendants do not in fact contend that preservation or control orders of some sort should not be made. Their objection is to the ongoing appointment of the receivers. As noted above, they rely upon the evidence of Mr Douglas-Brown in that respect. I have already indicated that I do not accept the critique offered by Mr Douglas-Brown as a foundation for the proposed alternative orders. 119 There is sufficient reason, given the ongoing ASIC investigations and their scope and complexity, to support the continuance of the Receiver Orders. The alternative proposed by the defendants does not, in my view, constitute a sufficient protection of the assets. I do not accept that the ongoing difficulties of the corporate defendants can be laid at the door of the receivers or at the door of ASIC. The events surrounding the collapse of the Westpoint Group are suggestive of significant financial vulnerability and internal organisational weakness that cannot simply be sheeted home to ASIC and poor legal advice. 120 The Court was presented with separate submissions relating to Silkchime and Healthcare. The making of orders in the form proposed by the defendants effectively concedes, and counsel did not dispute, the appropriateness of some form of protective order under s 1323 of the Corporations Act and s 232 of the Federal Court of Australia Act 1976 (Cth). I do not propose to canvass the evidence relied upon to support the orders sought by ASIC. The justification for making Receiver Orders in relation to Silkchime is the same as the justification for continuing the Receiver Orders in relation to the other corporate defendants to which they apply. Healthcare has receivers and managers appointed. I am inclined to make Asset Preservation Orders in respect of Healthcare along the lines of the orders made in respect of Bowesco. 121 The question of the costs of the receivership is still open. It is not an obvious proposition that the fees of receivers appointed to carry out a public statutory function of identifying and protecting the assets of individuals and corporations for creditor and other claims should be taken out of the assets to be protected. The appointment of the receivers is inextricably linked to the discharge by ASIC of its statutory and regulatory functions in the public interest. 122 The other question that was agitated although not at great depth, was the question of possible conflict of interest where the receivers have also been appointed as private receivers in respect of other entities which are associated with the defendants or may have claims against them. I accept that a conflict of interest or duties is not necessarily going to arise given the limited cope of their duties as Court appointed receivers. Clearly, however, it is a possibility. In one case where a conflict did arise there was an application to the Court by the receivers for directions relating to the expenditure of legal fees in connection with the QBE litigation. In my opinion it would be prudent to establish in each of the Receiver Orders a mechanism for ensuring that any occasion of possible conflict is identified and is the subject of advice from counsel so that any necessary application can be made to the Court. Other asset preservation orders will be extended. I will make orders allowing ASIC to bring in minutes of orders in respect of each of the defendants to give effect to these reasons. The extension of the orders will be until 30 June 2007. The position of Rold has been stood over for separate argument to Wednesday, 31 January 2007. The costs of the interlocutory application are reserved for further submission. I certify that the preceding one hundred and twenty-three (123) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French J.

appointment of receivers to property of directors and officers of corporate group asset preservation orders pending investigation by australian securities and investments commission possible liabilities of defendants to third parties extension of appointment of receivers and of associated orders whether extension warranted whether lesser form of orders not involving court appointed receivers should be made orders for continuation of appointment of receivers made corporations