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Such decision affirmed a decision of a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister') to refuse the appellant's application for a grant of Australian Citizenship pursuant to the Australian Citizenship Act 1948 (Cth) ('the Act'). He returned to Australia on 16 February 1999, having been issued with a student visa and remained in Australia for 11 months. Thereafter, on 4 December 2002 the appellant was granted permanent residency and on 16 December 2002 he came to Australia as a permanent resident. He remained in Australia for a period of 11 days and returned to Jordan on or about 27 December 2002. With the exception of these three periods, the appellant has not resided in Australia. 3 The appellant applied to the Migration Agents Registration Authority on 14 February 2003 for registration as a migration agent. On 3 November 2003 such application was refused and the Tribunal affirmed the decision on 27 November 2004. 4 On 17 March 2005 the appellant applied for Australian Citizenship. Such application was refused on 3 January 2006 and that decision was appealed to the Tribunal. The Tribunal's decision delivered on 15 May 2006 is the subject of this appeal. Secondly, the Tribunal found that the time spent by the appellant in Australia after he was awarded permanent residency was insufficient to entitle him to citizenship. He wishes to continue his business without disruption, which is understandable. These subsections require permanent residency in Australia for periods amounting in the aggregate to not less than 1 year in the 2 years immediately preceding the date of the furnishing of the application (see s 13(1)(d)); or for a period amounting in the aggregate to not less than 2 years in the preceding 5 years immediately preceding the date of furnishing the application (see s 13(1)(e)). It had before it evidence that the appellant had undertaken activities for the benefit of Australia, which included letters provided in support of the application from the Jordanian Australian Friendship Association, Mr Greg Hall, the Australian Trade Commissioner of Iraq, Jordan and Palestinian Territories and from The Oval Office for Studies and Research in Jordan. However, the Tribunal considered that satisfaction of such criteria was not sufficient to enable the exercise of the discretion contained in s 13(4)(b) in favour of the appellant. The Tribunal considered that the period during which the appellant had been resident in Australia was not sufficient to qualify him for citizenship when considered against the mandatory requirements of s 13(1)(d) and of s 13(1)(e) of the Act. 10 The appellant was not present in Australia when he lodged his citizenship application. However, in all the circumstances of this case including the very short periods of time Mr Alotoom has spent in Australia, particularly since he has had permanent resident status, I do not consider that this is a case where the mandatory requirements of section 13(1)(d) and (e) should be set aside on the basis of the discretion conferred by 13(4)(b). First the appellant submits that the Tribunal erred in determining that he remained outside Australia for economic rather than legal reasons. He says that he could not legally work in Australia as a migration agent, and that this constituted a legal reason which prevented him from residing here. 14 The appellant's written submissions refer to the fact that he provides, on a daily basis, assistance to persons wishing to migrate to Australia or who are involved with Australian business. He applied for Australian citizenship whilst out of Australia on the basis that he was undertaking activities which were for the benefit of Australia. Such work included assisting more than 100 students to study in Australia, advising and assisting business people to migrate to Australia and relocate their businesses here, providing free information for migrants and students who wish to become more acquainted with Australia, assisting skilled persons to migrate to Australia, performing educational services and business services (with and without financial reward) as well as voluntary services. 15 The appellant says that his claim for registration as a migration agent in Australia was refused because he was not usually resident in Australia and in consequence of such refusal he was not eligible to apply again for registration for a period of 12 months from that date, as provided by s 291 of the Migration Act 1958 (Cth). The appellant had registered a business name in Australia and as an alternative to working as a migration agent. He also attempted to register with the Legal Practitioner's Admission Board to enable him to work and applied for 50 jobs but was unsuccessful in obtaining employment. 16 As a second ground of appeal, which relates to the time he spent in Australia, the appellant submits that the Act does not stipulate a minimum period of residence in Australia to satisfy the discretion, and submits that it could be exercised even if he remained only one day in Australia. The appellant submits that he has lived in Australia for a considerable period of time and that his absence from Australia was always temporary. 17 The appellant refers to a Ministerial policy known as the Australian Citizenship Instructions ('the Policy') and particularly to para 3.8.3 thereof which provides that where an applicant for citizenship is overseas when such application is made, the discretion to award citizenship will not normally be exercised. 18 The appellant claims that it was not reasonable to apply the Policy, for to do so did not give recognition to the fact that he could not conduct his business in Australia. The appellant relies upon the decision in Minister for Immigration, Local Government and Ethnic Affairs v Roberts (1993) 41 FCR 82 wherein the Court found that the Tribunal was not bound to apply a practice or policy adopted by a decision-maker. The appellant also refers to the decision of the Tribunal in Re Sadawut Taechaubol v Minister for Immigration and Multicultural Affairs [2001] AATA 425. 19 Accordingly, the appellant submits that the Tribunal's discretion should not have been confined by the Policy and that the Court should determine the boundaries of the discretion provided by s 13(4) of the Act. The appellant says that if the requirements contained s 13(4)(b)(i) are satisfied, the discretion ought to be exercised in favour of the grant of citizenship, and the decision to refuse his application was unreasonable in the sense considered in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223. On the appeal from the decision of the Minister, the Tribunal was entitled to exercise all of the powers and discretions conferred by the Act upon the Minister: see s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('AAT Act'). Such function included the power to review matters of fact and of law. Pursuant to s 44 of the AAT Act, an appeal from the Tribunal to this Court can only be made on a question of law. Further, pursuant to s 44(7) of the AAT Act this Court may make findings of fact provided they are not inconsistent with findings of fact made by the Tribunal. It is not the function of a Court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned: Wednesbury Corporation [41]. However, having been granted permanent residency he chose to continue to carry on that business outside Australia in preference to residing here. As a consequence he spent less than a fortnight in Australia between having been granted permanent residency on 4 December 2002 until his application for citizenship on 17 March 2005. 22 The fact that the appellant may not have been able to conduct his business in this country is not a legal reason which prevented him from residing here. The appellant's choice of employment is a separate consideration to the question of his legal entitlement to reside in Australia. There was no legal impediment to him residing in Australia and in these circumstances the Tribunal was entitled to conclude that the appellant remained away from Australia because of economic reasons rather than legal reasons. I am unable to find any error of law in the finding of the Tribunal, and its decision was not unreasonable in the Wednesbury sense. Accordingly I reject the appellant's first ground of appeal. However the Tribunal observed that the discretion provided by s 13(4)(b)(i) of the Act was one which was ' not normally exercised where the person is overseas '. Although not expressly referred to, the Tribunal member was presumably referring to the terms of the Policy. 24 The satisfaction of the requirements of s 13(1A) do not automatically entitle an applicant to be awarded citizenship. Further the discretion provided by s 13(4)(b) is unconfined save and except for any implied limitation to which the decision-maker should have regard; see Peko-Wallsend at 40 (per Mason J). 25 The appellant relied upon Minister for Immigration, Local Government and Ethnic Affairs v Roberts in which the Court held that the Policy need not be applied inflexibly. However in that decision the party seeking citizenship had been schooled in Australia and had permanently resided here for more than twenty years but had failed to take out Australian citizenship. In the present case the appellant, while having completed a degree at university in Australia in a period of 11 months, only resided in Australia for 11 days after being granted permanent resident status. 26 The appellant also relied upon a decision referred to in Roberts namely Re Dainty and Minister for Immigration and Ethnic Affairs (1987) 6 AAR 259. That decision is also distinguishable since the applicant in that case had a residence in Australia and had conducted a business in Australia for more than a decade. In that case the Court found that ' significant hardship or disadvantage would result if citizenship were not awarded '. In my opinion, this requires attention to be given to the nature or the character of the presence in Australia, that is to say, to the family, social and business connections which gave rise to the presence in Australia. The closer the analogy between the periods of presence in Australia and permanent residence therein, the more readily the discretion may be exercised. This is simply another example demonstrating that each application for citizenship will depend upon its merits. 28 Australian citizenship represents formal membership of the community of the Commonwealth of Australia which involves reciprocal rights and obligations, uniting all Australians: see the preamble to the Act. Section 13(1) of the Act contains the criteria which would assist the Minister in determining whether the applicant for citizenship satisfies the objectives of the Act. The Tribunal did not treat the Policy as actually determining in a prescriptive way that the discretion should not be exercised in favour of the appellant. Rather, the Tribunal had regard to the requirements of s 13(1) and was not satisfied that those requirements should be disregarded. 30 Since the period of time spent in Australia as a permanent resident is an important consideration in an application for citizenship, the Court is satisfied that there is no Wednesbury unreasonableness in the Tribunal's decision. Having so concluded, the appellant's claim that the decision of the Tribunal on this issue was unreasonable has no legal consequence: see Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 626 [40] . For this reason, the second ground of appeal is rejected. 31 Before proceeding to deal with the orders, the Court notes that consistent with the decision of the High Court of Australia in SAAP v Minister for Immigration and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 at 173 [43] , the Tribunal should be joined as a party. For this reason the Court will make an order reserving liberty for an application to be made for the joinder of the Tribunal as a second respondent. 32 During the hearing the Court heard submissions from the appellant by telephone link from Jordan where he is currently residing. Since the appellant is not within Australia, the Court orders that this judgment be sent to the appellant via email to ensure that he is granted the opportunity to appeal this decision if he so desires within the requisite 21 day time period under Order 52 rule 5 of the Federal Court Rules .

applicant outside of australia refusal of grant of citizenship based on discretion in australian citizenship act 1948 (cth) time spent in australia since grant of permanent residency not sufficient to exercise discretion in favour of applicant application of policy to discretion inflexible application of policy consideration of irrelevant considerations unreasonableness. citizenship

The first applicant (Cape) is the parent company of the second applicant (PCH). The first applicant acquired control of PCH in a hostile takeover in about December 2007. In early 2008, the first respondent established a related company, Modern Access Services Pty Ltd (MAS), the twelfth respondent, as a subsidiary of the first respondent to carry on the business of hiring out scaffolding and providing labour for scaffolding to the mining and resources industries. Another company, Modern Industries Holdings Pty Ltd, which is also related to the first respondent, is the eleventh respondent. The takeover of PCH by Cape created discontent among some of the employees of PCH and a number of employees of PCH left its employment shortly after the takeover had been completed. Each of the second to tenth respondents is a former employee of PCH. Each became an employee of MAS shortly after the termination of his employment with PCH. The second respondent, Mr James Anderson, is the director and general manager of MAS. He resigned from PCH in December 2007 because he disagreed with the way in which the new management at Cape were running the business of PCH. Before his resignation, he was employed by PCH in the position of major projects director. In 2008, each of PCH and MAS submitted competing tenders for the hire of scaffolding and the provision of scaffolding services to a company, MCC Mining WA Pty Ltd (MCC Mining) in respect of a project in Western Australia, known as the Sino Iron Ore project. On 8 August 2008, Mr Stephen Murdoch, the executive director of Cape, learned that the tender submitted by MAS was accepted by MCC Mining and that submitted by PCH was rejected. Each of MAS and PCH has also submitted tenders to Woodside Energy Ltd (Woodside) for the provision of scaffolding services to the Pluto project to be conducted by Woodside. I have assumed that it was PCH and not Cape that submitted the tenders, but the evidence on this issue is far from clear. I note that the letter from MCC Mining advising that the tender was unsuccessful was addressed to Cape and not PCH. On 19 November 2008, the applicants commenced this proceeding for preliminary discovery of a number of documents. (f) all documents owned by the first and second applicants. By the date of the hearing of this application, the outcome of the tender for the Pluto project was unknown. Mr Murdoch has held that position since 1 May 2008. Two affidavits sworn by Mr Andrew White, the managing director of the first respondent were read on behalf of the first, eleventh and twelfth respondents. Each of the second to tenth respondents swore an affidavit which was relied upon. Each project data sheet is a document which describes work carried out on an engineering project. There are also one or more photographs of the engineering works comprising the project. There were two categories of project data sheets which comprised "SM-2". The first category comprised five project data sheets which contained the logo, "MAS modern access services" and are headed "MAS Management Track Record". Each project data sheet contained a photograph of an engineering structure and was poorly presented. These project data sheets were at pp 18-22 of the affidavit. The second category comprised two project data sheets which contained the logo, "MW-Modern Industries". They are well presented and contained more than one photograph of engineering structures. These project data sheets were at p 17 and p 23 of the affidavit. There is a very significant difference in the appearance of the two categories of project data sheets. There was also annexed to Mr Murdoch's affidavit, marked "SM-3", six of PCH's project data sheets. They were all in the same format which bears some resemblance to the format of the MAS project data sheets referred to above. Mr Murdoch also deposed that in July 2008, he became aware that the first respondent had been handing out the project data sheets contained on its website to third parties. On 21 July 2008, Mr Murdoch caused Mr Terry O'Connor, the regional sales and marketing director of Cape, to send a letter addressed to Mr Andrew White, managing director of the first respondent. In many instances, the text used is taken verbatim from PCH marketing material. Furthermore, many of the pictures you have used are identical to those owned and used by PCH (Cape). For your reference I have attached five examples of the material which I am referring to. The letter went on to request that all material that had a "direct relationship with PCH or any other Cape company" be removed from the first respondent's website and that the first respondent destroy any marketing material containing the same information. For the avoidance of doubt, there will be no further issues of these sheets in this form and the existing material in our possession has been destroyed. The style has been developed by an independent marketing and graphic design company and has been in use for some time. This caused Mr Murdoch some concern. Mr Murdoch said that he caused the applicants' solicitors, Blake Dawson to send a letter to each of the respondents. On the instructions of Mr Murdoch, Blake Dawson sent a letter dated 19 August 2008 to the first respondent. This letter also stated that PCH was concerned that its confidential information may have been used as part of Modern Industries' tender for the Sino Iron Ore project (mistakenly referred to in the letter as "the Sinosteel project"). The letter went on to say that PCH wished to verify this by reviewing the first respondent's tender documents for the Sino Iron Ore project. A letter dated 19 August 2008, was sent by Blake Dawson to each of the second to tenth respondents. Each letter was in very similar terms. Each letter alleged that each employee was previously employed by PCH and had access to confidential information relating to the operation and business of PCH including information relating to pricing and pricing policy. The letter also said that each employee was under an obligation not to disclose any of PCH's confidential information. The letter went on to state that each employee was now employed by Modern Industries and that Modern Industries had recently submitted a successful tender for a contract in respect of the Sino Iron Ore project (mistakenly referred to in the letter as "the Sinosteel project") and that PCH had also submitted a tender for that contract. The letter then stated that PCH had grave concerns that its confidential information was likely to have been used by Modern Industries in preparing its tender and "that you were the conduit". Blake Dawson's letter went on to say: PCH has instructed us to investigate potential braches of confidentiality obligations by several of its ex-employees. If you do have PCH's confidential information, PCH requires you to immediately cease and desist all use of that information, and to deliver up all intellectual property and any other property of our client to Blake Dawson at Level 32, Exchange Plaza, 2 The Esplanade, Perth by close of business on 20 August 2008. Furthermore, if any of our client's confidential information has been used in preparing a tender for a contract to provide services relating to Woodside's Pluto LNG project, the use of that information must cease immediately, Woodside should be informed that our client's information has been used in preparing the tender in breach of contract and any materials derived from our client's information must be withdrawn. Minter Ellison, acting on behalf of the first respondent, replied by a letter dated 21 August 2008. Minter Ellison denied that the first respondent's website contained photographs and other confidential information alleged to be owned by PCH. The letter also denied that the project data sheets on the first respondent's website implied that the first respondent had undertaken works that PCH had actually performed. Minter Ellison went on to request that Blake Dawson write outlining specifically what material PCH alleged that it owned and which was being used by the first respondent. The letter also stated that the first respondent was unaware of any confidential information of PCH having been used in the preparation of its tenders. The tenders had been prepared using first principles. We are instructed that in early July 2008, representatives of your client distributed marketing information to prospective customers in Asia that used photographs and other information that is owned by PCH, which related to projects that PCH undertook. This was because it was PCH's intention to investigate whether to commence proceedings against the Modern Industries group of companies, or former employees of PCH; and that PCH might utilise the rights available under O 26A of the Rules of the Supreme Court of Western Australia (the Supreme Court Rules ) to enable a decision to be made whether to commence or take proceedings. There then ensued an exchange of correspondence and emails between Minter Ellison and Blake Dawson. The correspondence is mainly characterised by Minter Ellison complaining that PCH had failed to particularise information on the first respondent's website which PCH said that it owned and Blake Dawson's counter-assertion that it was unnecessary for its client to identify the information; and that its inability to do so did not preclude its client from making an application under O 26A of the Supreme Court Rules . By a letter dated 21 October 2008, Blake Dawson stated for the first time that their client had instructed them to commence a preliminary discovery application under O 15A of the Federal Court Rules (the Rules), in this Court. The letter, however, did not identify the potential claim within Federal jurisdiction which the applicants were contemplating bringing. I also infer from the evidence of Mr Murdoch that the applicants are also contemplating bringing a claim against the respondents for breach of contract, breach of the duty of confidence and breach of fiduciary duty based on the misuse by them of the applicants' confidential information. Of particular concern to the applicants in this regard is the fact that MAS has made two competitive tenders in respect of projects for which one or both of the applicants has also tendered, and that MAS has beaten one or both of the applicants in one of the tenders. The first issue is whether the applicants have demonstrated, on the evidence before the Court, that there is reasonable cause to believe that one or both of the applicants have, or may have the right to obtain relief in the Court against the first respondent in respect of the infringement of PCH's copyright. However, the requirement to be established is a reasonable cause to believe that the applicant has or may have a right to relief, not a conclusion that a prima facie case in fact exists (see Hely J in St George Bank Ltd [2004] FCA 1360 ; 211 ALR 147 at [26] ; George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104). Of course, this is not to say that it is not necessary to examine the various elements of the potential cause of action that is sought to be relied upon to determine whether there is a reasonable cause to believe that each of the necessary elements exist (see Austrac Operations Pty Ltd v New South Wales [2003] ATPR 41-960 at [11]; Leighton Contractors Pty Ltd v Page Kirkland Management Pty Ltd [2006] FCA 288 at [5] ; Dartberg Pty Ltd v Wealthcare Financial Planning Pty Ltd [2007] FCA 1216 ; (2007) 164 FCR 450 at [44] ). Nor can an application for preliminary discovery be sustained without evidence that must incline the mind towards the matter of fact in question (see Austrac [2003] ATPR 41-960 at [37]; John Holland Services Pty Ltd v Terranora Group Management Pty Ltd [2004] FCA 679 at [13]-[14], [17], [73]; Dartberg [2007] FCA 1216 ; 164 FCR 450 at [44] ). (Original emphasis. The applicants rely upon s 36(1) of the Copyright Act . This complaint appears to reflect the complaint made by Mr O'Connor in his letter of 21 July 2008, which annexed the five impugned MAS project data sheets. Mr Murdoch said that each of the PCH project data sheets had been created by the employees of the applicants and was unique as each was a "specific record which reflects details of work done by the applicants on individual projects around the world". Mr White of Modern Industries deposed that he had inspected the MAS project data sheets which were attached to Mr O'Connor's letter of 21 July 2008, and ascertained that there were some similarities between the material and at least one of the project data sheets of PCH. However, he said that none of these documents was ever published on the first respondent's website. Further, he said that there had never been any publication of the MAS project data sheets on an MAS website because that website had at all material times been under construction, and at the time of swearing the affidavit it was still under construction. After some initial equivocation, Mr Murdoch subsequently accepted that he was confused as to what project data sheets had been published on the first respondent's website. I accept the evidence of Mr White that the five MAS project data sheets were never published on the website of either the first respondent or MAS. As to the two project data sheets which comprise "SM-2" of Mr Murdoch's affidavit which on Mr White's evidence were published on the first respondent's website, there was no arguable similarity between those two project data sheets and the PCH project data sheets. Insofar as there are photographs which were common to the project data sheets published by both groups, there was no probative evidence to support any claim that the copyright in the photographs belonged to PCH. I, accordingly, find that there is no reasonable cause to believe that the applicants have, or may have, a right to relief in this Court from the first respondent based on the allegation that the first (or indeed the twelfth) respondent has published material on a website, which infringes PCH's copyright in its project data sheets. As to the second aspect of the first respondent's conduct complained of, namely, copying of parts of the PCH project data sheets by MAS, and the distribution of those MAS project data sheets, Mr White deposed that the MAS project data sheets were produced by an employee of MAS in Thailand. The MAS project data sheets were produced without the knowledge of Mr White and he had issued instructions to MAS employees in Thailand that any document that had been produced in that format be immediately destroyed and not otherwise reproduced. Mr White went on to say that the documents had not been made available in Australia. He also said that he believed that they were probably provided to Mr Murdoch by someone who had access to those documents in Thailand. I accept the evidence of Mr White and find that the impugned MAS project data sheets were produced and distributed in Thailand and not in Australia. My reasons for so finding are the following. Mr Murdoch did not describe in his affidavits the circumstances in which he came to obtain possession of the MAS project data sheets, nor did he contradict the evidence of Mr White that the impugned project data sheets were only distributed in Thailand. In addition, Mr White's evidence is consistent with the statements made in Blake Dawson's letter of 25 August 2008 (see [29] above), that it had been instructed that marketing information had been distributed to "prospective customers in Asia". Accordingly, I find on the evidence before the Court, that any potential infringement of PCH's copyright in the project data sheets by the production and distribution of the impugned MAS project data sheets occurred outside of Australia and would not fall within the ambit of s 36(1) of the Copyright Act . Accordingly, I find that the applicants have not satisfied the requirement under O 15A r 6 that there is reasonable cause to believe that one or both of the applicants have, or may have, a claim for relief for the infringement of PCH's copyright in the PCH project data sheets. Further, there are the following discretionary reasons why I would, in any event, not grant relief to the applicants in respect of this potential claim. First, the applicants have not deposed to the nature of the harm that either or both the applicants have suffered, or may suffer, by reason of the alleged infringement of the copyright in the PCH project data sheets. Secondly, the applicants have not led evidence as to the nature of the documents that they require in order to decide whether to commence an application against the first respondent for infringement of PCH's copyright, nor how the obtaining of access to those documents would assist them in deciding to commence a proceeding against the first respondent. In fact, none of the letters from Blake Dawson written prior to the commencement of this proceeding, claimed that the applicants required documents from the first respondent because the applicants were contemplating the commencement of a proceeding against the first respondent founded on an infringement of the Copyright Act . The letter from Blake Dawson of 19 August 2008 (see [22] above), asserted that the first respondent's website continued to "contain photos and other confidential information owned by PCH" and also contained "several project datasheets that imply that Modern undertook the works described, when in fact PCH undertook those works". The letter referred to misuse of information belonging to the applicants. The letter went on to state that "any implication" by the first respondent that it had undertaken the project works which were in fact undertaken by PCH, was potentially misleading or deceptive conduct under the Trade Practices Act 1974 (Cth). There was no mention made of the Copyright Act . I now deal with that contention. In support of this contention, Mr Murdoch deposed that each of the second to tenth respondents had in the course of his employment with PCH been exposed to information which Mr Murdoch regarded as "confidential". There was annexed to his affidavit of 19 November 2008, as annexure "SM-1", a list of a number of categories of such information. There is also annexed to that affidavit, as annexure "SM-15", a chart stating the categories of information which, it is asserted, each of the second to tenth respondents was exposed to during his employment with PCH. Thus, for example, it was said that Mr Stephen Broughen, the third respondent, who had been the purchasing officer of PCH, had been exposed to documents containing the following categories of confidential information: Customers and Trade, Policies and Procedures, Labour Pricing and Scaftrack. Mr Anderson, the second respondent, had been exposed to documents containing a greater number of categories of information, including: Customers and Trade, Financial Details and Tenders. The evidence is stated in a conclusionary form. Mr Murdoch went on to depose that he became concerned, after learning that MAS had been the successful tenderer for the Sino Iron Ore project, that "the first respondent may have used the applicants' confidential information as part of the tender for the project and that the second to tenth respondents had been the conduit of the applicants' confidential information". In his affidavit of 23 January 2009, Mr White said that the tender had been derived from first principles. He referred to the cost items that constitute a tender for the provision of scaffolding and related services and said that the input costs of the tender components change frequently. Mr White went on to depose that to the best of his knowledge and belief none of the second to tenth respondents had provided the first respondent with any confidential information belonging to either the first or the second applicant. Each of the second to tenth respondents relied on an affidavit. Each of these respondents deposed that when he resigned he had handed back all documents that he had in his possession during his employment with PCH, and did not have any documents containing any confidential information belonging to the applicants. In his second affidavit of 26 February 2009, Mr Murdoch referred to the colour of the scaffolding which was being used by the first respondent. He said that the first respondent had painted its scaffolding in a colour which was deceptively similar to the colour used by PCH for its scaffolding. The relevance of this evidence was unclear when considered in the context of the class of documents in respect of which discovery was sought by the applicants. Further, there was no evidence from Mr Murdoch that the applicants were contemplating bringing a claim based on the colour of the scaffolding, nor that any inquiries had been made of the first respondent that may have assisted in making a decision on whether to commence such a proceeding. Mr Murdoch said that the costs of component items of a scaffolding tender referred to by Mr White in his affidavit, did not change significantly between the time the second to tenth respondents resigned from PCH and August 2008. Mr Murdoch also deposed that the line between winning and losing a tender was very thin and small differences, for example, charge out rates and other cost parameters as well as profit margins were likely to be critical determinants in a successful bid. He said that if a company knew the profit margins used by a competitor company in their tenders it would be possible for the company to undercut the competitor company. Mr Murdoch also deposed that none of the companies in the Modern Industries Group had previously been successful in winning a scaffolding tender such as the Sino Iron Ore project which was a major tender. As to the Woodside Pluto project, Mr Murdoch deposed that he had been informed by Mr David McHutchison, the business development manager of the first applicant, that the applicants were repeatedly asked to clarify details of their tender and to provide additional information. In particular, the applicants were requested to provide company financial statements. Mr Murdoch deposed that, in his experience, this does not usually happen after successfully pre-qualifying for a tender. The applicants were also advised on more than one occasion that their tender was not sufficiently competitive. Mr Murdoch went on to depose that his concerns regarding the real risk that the applicant's confidential information may have been utilised in some unauthorised way by the first respondent through the involvement of one or more of the second to tenth respondents was the basis on which he caused the applicant's solicitors to write the various letters of demand to the respondents and each of them. Mr White in his affidavit of 4 March 2009, disputed Mr Murdoch's claims about the costs of items comprising the tender. He also said that MAS had been asked by Woodside to provide the same information as Woodside had asked of the applicants. I deal first with the issue of whether there is reasonable cause to believe that the applicants have, or may have, a right to obtain relief against each of the respondents. Counsel for the applicants contended that the following circumstances taken in combination are sufficient to show that there is reasonable cause to believe that the applicants have, or may have, a claim for relief against each of the respondents in relation to the misuse of confidential information in relation to the Sino Iron Ore and Woodside tenders. First, MAS only recently entered into the business of hiring scaffolding and providing services for scaffolding. Secondly, within a relatively short period of time in early 2008, the second to tenth respondents left the services of PCH and commenced employment with MAS. Further, one of the former employees of PCH is a director of MAS. The second to tenth respondents had access to confidential information during the course of their employment with PCH. Thirdly, during 2008, within a short period of the second to tenth respondents joining MAS, MAS submitted a tender for scaffolding work and services for the Sino Iron Ore and Woodside tenders. The applicants also contended that the facts in this case are similar to the facts in Paxus Services Ltd v People Bank Pty Ltd [1990] FCA 500 ; (1990) 99 ALR 728 ( Paxus ). In that case, a number of employees left the employment of Paxus and set up a company, People Bank Pty Ltd, which competed against Paxus. Paxus contended that the respondents in that case had appropriated, and were using its confidential information in the conduct of their competing business. The Court ordered that the respondents provide preliminary discovery under O 15A of the Rules. In the case of Cape Australia Holdings Pty Ltd v Iannello [2009] FCA 709 ( Iannello ), I referred to the observations of Gleeson CJ (as he then was) in dissent in the case of Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 ( Wright ) in relation to the tension between two policy considerations, namely, permitting a former employee to compete against his former employer, on the one hand, and the protection of the confidential information of the former employer, on the other. An employer is not entitled to protect himself against mere competition by a former employee, and the corollary of that is that the employee is entitled to use skill, experience and know-how acquired in the service of the former employer in legitimate competition. It is in the public interest that this should be so: Stenhouse Australia Ltd v Phillips [1973] UKPC 1 ; [1974] AC 391 at 400. At the same time the law will protect trade secrets and confidential information, and will intervene to prevent their misuse. The decision of the Court of Appeal in England in Faccenda Chicken Ltd v Fowler [1987] Ch 117 illustrates the importance, when there is a conflict between these two principles, of a close examination and accurate categorisation of the nature of the alleged trade secret or confidential information. Nevertheless, in my view, the considerations referred to by Gleeson CJ inform the assessment to be made of the evidence proffered by an applicant in support of satisfying the criterion of "reasonable cause to believe" in O 15A r 6(a) in cases of that nature. In my view, the applicants have failed to satisfy the requirement that there is reasonable cause to believe that the applicants may have a cause of action against each of the respondents arising from the misuse by each of the respondents of the applicants' confidential information. There is no evidence of any appropriation or misuse of any confidential information by the second to tenth respondents in the preparation of the tenders by MAS, nor is there evidence that gives rise to an inference that there was, or may have been, any such appropriation or misuse. On that basis, the facts in this case are distinguishable from the facts in the Paxus case. In Paxus , there was evidence which was capable of giving rise to the inference that the former employees of Paxus had appropriated computer files comprising the database of Paxus and were using that database in the conduct of their new business. The same is true in relation to the Optiver case, where there was evidence that the former employees, who had established a competing business, without authority, obtained source code used in their former employer's computer program and may have used that source code in developing a computer program which they were using in their competitive business. The circumstances relied on by the applicants and the generalised evidence of Mr Murdoch on the tendering process referred to above, does not comprise evidence of the nature that was before the Court in those two cases. Nor does the principle in the case of Jones v Dunkel [1959] HCA 8 ; (1959) 101 CLR 298 assist the applicants in this case because the respondents gave evidence and were not cross-examined. The evidence does not incline the mind to believe that such of the unspecified second to tenth respondents as were involved in the making of the MAS tenders, may have used PCH's confidential information, as opposed to using their industry "know how". The applicants' case reflects no more than a suspicion on the part of Mr Murdoch that the respondents may have used the applicants' confidential information in preparing the MAS tenders. However, the holding of a suspicion is not a sufficient basis to demonstrate that there is reasonable cause to believe that an applicant under O 15A r 6 has, or may have, a right to relief in this Court. In any event, I would as a matter of discretion not make any order for the preliminary discovery in relation to the proposed claim founded on the postulated misuse of confidential information. This is because of the high level of generality at which the applicants' claim has been made. This is particularly evidenced by the indiscriminate way in which the applicants have joined the second to tenth respondents to this application, without deposing to whether the respondent in question had, whilst employed by PCH, been involved in the tendering process of PCH; or the basis on which it is believed that the respondent was likely to have been involved in the tendering process undertaken by MAS. Thus, for example, Mr Murdoch deposed that the eighth respondent, Mr McKenzie was employed by PCH as the yard manager. Mr Murdoch did not depose to any circumstance which might cause him to believe that Mr McKenzie may have been involved in the preparation by MAS of the tender for the Sino Iron Ore project or the Pluto project, nor the basis on which he believed Mr McKenzie may have documents in his possession which may cast light on that process. An approach at this level of generality is at odds with the abovementioned observations of Gleeson CJ in Wright of the need for specificity when allegations are made which bring into conflict the two principles to which his Honour refers. Further, there was also a failure to clearly differentiate the interests of the two applicants. Whilst there was evidence of an employment contract between each of the second to tenth respondents and PCH which included a confidentiality clause, the interest of Cape in the proceeding was not clear. In particular, as I have said, it is not clear which of the applicants made the tenders for each of the Sino Iron Ore project and the Pluto project. As I have already mentioned, the letter from MCC Mining is addressed to Cape and not PCH. Further, Mr Murdoch deposed to matters regarding the Woodside tender on the basis of information and belief derived from an officer of Cape. There is no evidence that the second to tenth respondents owed any duty of confidence to Cape and, therefore, if it was Cape that made the tenders, the basis of a potential cause of action against any of the respondents on the grounds of breach of such a duty by the second to tenth respondents, is unclear. If, on the other hand, it was PCH that made the tenders, then the presence of Cape in the proceeding would appear, without more, to be superfluous. The respondents have all complained that the applicants have commenced this proceeding as a means of exerting pressure upon them because they are now in competition. Whilst I am not prepared to find positively this to be the case, the applicants' conduct referred to in the preceding two paragraphs and the applicants' lack of care in making their allegations regarding the content of the materials which were on the first respondent's website, have weighed with me in any decision to withhold relief also on discretionary grounds. I note that during the course of oral submissions, counsel for the applicants also submitted that the applicants may also have a potential claim founded on misleading or deceptive conduct in contravention of s 52 of the Trade Practices Act . As I understood counsel's submission, the misleading or deceptive conduct would comprise MAS providing to each of MCC Mining and Woodside a tender which contained confidential information belonging to the applicants, whilst impliedly representing that the tenders did not contain that information. However, there was no evidence which demonstrated that the applicants were contemplating bringing a claim of that nature. Further, even if there had been evidence of such a nature, for the reasons already given at [78], [79] and [80] above, there is no reasonable cause to believe that the applicants have, or may have, a right to obtain relief on the basis of that claim. The evidence in support of this application is at a very high level of generality. Accordingly, the application under O 15A r 3 of the Rules is dismissed. The application is dismissed with costs. I certify that the preceding eighty-eight (88) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.

preliminary discovery under o 15a of the federal court rules whether there was reasonable cause to believe that the applicants have, or may have, a right to obtain relief against the respondents. practice and procedure

The RRT affirmed a decision of a delegate of the Minister not to grant the appellant a protection visa. 2 The appellant's application for review by the RRT was lodged in March 2004. Shortly afterward the RRT invited the appellant to give additional information about his claims pursuant to s 424(2) of the Migration Act 1958 (Cth) ("the Act "). The date by which the appellant was requested to respond was beyond the 14 day "prescribed period" fixed by s 424B(2) of the Act and Reg 4.35(3) of the Migration Regulations 1994 (Cth). 3 Notwithstanding that the additional time provided to the appellant might be thought to have been for his benefit, the Minister concedes that, upon the proper construction of s 424B(2), the RRT's invitation was in breach of that section. However, the Minister submits that the decision of the RRT, made after the breach, did not involve jurisdictional error. 4 The only issue which arises on the appeal is whether, in the circumstances, the breach of s 424B(2) involved jurisdictional error on the part of the RRT and, if so, whether the Court ought to exercise its discretion to refuse relief. He entered Australia on 30 December 2003 on a visitor's visa. Shortly afterward he applied for a Protection Visa, claiming to have a well founded fear of persecution on the ground of religion and ethnicity as a Sikh and on political grounds because of his affiliation with the Bharatiya Janata Party ('the BJP'). 6 He applied to the RRT on 22 March 2004 for a review of the delegate's decision. The RRT's invitation under s 424 of the Act was sent to the appellant by prepaid post on 5 April 2004. Pursuant to s 441C(4) of the Act , the appellant was taken to have received the invitation on 16 April 2004. 7 The effect of s 424B(2) and Reg 4.35(3) is that the invitation ought to have specified 30 April 2004 as the date for the provision of the information. However the date specified was 21 May 2004, that is to say 21 days after the date required by law. 8 By a separate letter of 5 April 2004, issued pursuant to s 424A of the Act , the RRT invited the appellant to comment on information that might be the reason or part of the reason for affirming the delegate's decision. The specified date for response to this letter was 30 April 2004, which was in accordance with s 424B(2). 9 The appellant responded to both of the invitations in an undated letter received by the RRT on 28 April 2004. The letter provided minimal further detail in response to the RRT's s 424 and s 424A letters. No point was taken that additional time had been accorded to respond to the s 424 invitation or that the appellant was prejudiced by this. 10 On 21 May 2004, the appellant attended a hearing before the RRT and gave oral evidence. Again, there is no suggestion that the appellant made any protest at the hearing of prejudice by reason of the time granted to him to respond to the s 424 invitation. 11 The RRT made its decision on 31 May 2004. The decision was handed down on 23 June 2004. I do not propose to repeat them all but I will set out in full the provisions of s 424B and the relevant provisions of Reg 4.35. 16 The prescribed period for that purpose, for a person not in detention, starts when the person receives the invitation and ends 28 days after the day on which the invitation is received; see Reg 4.35A(3). 17 Regulation 4.35B specifies the prescribed period for the purpose of s 424B(4) of the Act , that is to say where the RRT extends the prescribed period for a further period. The prescribed period is 28 days after receipt of the notice of extension; see Reg 4.35B(2). 18 The further prescribed period for s 424B(5) is also fixed as 28 days by Reg 4.35C. He claimed that in 1984 he and his family left the state of Haryana after Hindus looted their house and set fire to it. He said they went to live in the Punjab. 20 The appellant claimed that in the Punjab he and his family were beaten by the police after they were forced to provide food to armed Sikh militants. He claimed that he and his father were imprisoned and, although subsequently released, they were subject to further detention on later occasions. 21 As a result of this, the appellant states that he and his family relocated to Haryana in about 1989 or 1990. He said that he and his family were supporters of the BJP and that in 1992 his father was elevated to an office within the BJP at the district level. 22 Due to his support for the BJP, the appellant said that he was considered to be an enemy of the Congress Party and he received threats from it. He said that when the Congress Party came to power in 1995 false charges were laid against him. He claimed that he was released on bail but that members of the Congress Party then tried to kidnap him. He said he was later stabbed by Congress Party members and that the police refused to assist. 23 The appellant claimed that the police then started harassing him and he went into hiding, staying with relatives in Uttar Pradesh. 24 The appellant said that he left for South Africa in 1999 and he then went to Botswana. He returned to India for a short while, where he lived in the Punjab, but he found the situation had not improved and so returned to Botswana for approximately 8-10 months before travelling to Australia. 25 The RRT found that the appellant was not a credible witness and it rejected all of his claims. It did so upon the basis of what it considered to be material inconsistencies in his evidence. In view of the issues raised on the appeal it is unnecessary to set out the RRT's reasons in any further detail. 27 The learned Federal Magistrate carefully considered and ultimately rejected each of the grounds. The only ground he considered to be of any substance was the possible failure to comply with s 424B(2). 28 Federal Magistrate Lloyd-Jones considered at some length the effect of the decision of the High Court in SAAP v Minister for Immigration and Multicultural & Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "). His Honour came to the view that the purpose and legislative context of s 424B was to be contrasted with that of s 424A , such that the legislative intention was not to be that a breach of the time provision in s 424B(2) would lead to the invalidation of a decision made following a breach of the section. It may seem curious that what would appear to be an indulgence extended to an applicant could nonetheless constitute a breach. However, I do not suggest that the concession was wrongly made. 30 The question of whether a breach of s 424B(2) gives rise to jurisdictional error is to be answered by having regard to the language of the section and the scope and object of the whole statute; the question is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid; Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 ; (1989) 194 CLR 355 at [91] , [93]; see also SAAP at [73], [205]. 31 In SAAP , a majority of the Court held that a breach of s 424A was jurisdictional in nature so that a decision handed down after the breach was rendered invalid by it. 32 Their Honours pointed to the mandatory language of s 424A and to the purpose of the provision which McHugh J described at [77] as "one of the centrepieces of... (the) regime of statutory procedural fairness. "; see also at [165]-[166], [173] per Kirby J, and at [205]-[208] per Hayne J. 33 The question of whether a breach of s 424B(3)(b) of the Act resulted in jurisdictional error was raised in SZDQL v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 769 (" SZDQL") . However, Sackville J found that the provision was not breached. It was therefore unnecessary to decide whether a contravention of s 424B(3) constituted jurisdictional error. His Honour said that the issue should be left to a case in which the court had the benefit of full argument; see at [50], [53]. 34 I have been much assisted by the written and oral submissions of both Counsel. I am indebted to Mr Zipser for accepting the brief for the appellant pro bono pursuant to an order I made under Order 80 of the Federal Court Rules . 35 Mr Zipser submitted that the language of s 424B(2), though not using the imperative "must" was nonetheless mandatory in nature. He also pointed to the object of the section as a part of the statutory procedural fairness regime which is codified in Div 4 of Part 7 of the Act . 36 Mr Potts, for the Minister, contended that the language of the section was neutral rather than imperative. He submitted that the time provision in s 424B(2) was not at the heart of the decision making process and that this was to be contrasted with the requirement of written particulars in s 424A. He also provided me with a helpful analysis of the place and function of s 424B(2) in the statutory scheme. 37 Although it is not one of the centrepieces of the statutory scheme, s 424B(2) plays an important part in carrying out the statutory requirement of procedural fairness. It applies to invitations under both s 424 and s 424A. Its object, or at least one of them, is apparently to ensure that after the invitation is issued, the applicant has a reasonable, albeit relatively short, period of time in which to provide the information or comments to the RRT. 38 Support for the view I have expressed as to the object of the provision may be found in Sackville J's observation in SZDQL at [50] as to the statutory purpose of s 424B(3)(b). His Honour said that its object is to ensure that the required interview takes place within a reasonably short period of the invitation. 39 Section 424B(3)(b) operates in a slightly different way from s 424B(2). The effect of s 424B(3)(b) is that the RRT may stipulate a time for the interview at any time within the prescribed period. There is an outer time limit within which the interview may take place but the RRT may appoint any date within the period, indeed, at the very hearing at which the invitation is extended; SZDQL at [50]. 40 By contrast, s 424B(2) is directed to the provision of information and comments by an applicant and when read with Reg 4.35(3), it sets an opening and closing period of 14 days after receipt of the invitation. It would be open to the invitee to provide the information or comments within that 14 day period but it is not open to the RRT to specify a date before the closing of that period by which the information or comments must be provided. 41 I do not consider that this difference in the operation of the two subsections leads to a different view of their objects. It seems to me that what Sackville J said in SZDQL as to the object of s 424B(3)(b) applies equally to s 424B(2). 42 However, it seems to me that there is a further aspect of the statutory purpose of those subsections which must be borne in mind when answering the question of whether a breach is jurisdictional in nature. This appears from a consideration of the part which those subsections play in the codified regime of procedural fairness contained in Div 4 of Part 7 of the Act . 43 A failure to give the additional information requested under s 424 , or to give the comments pursuant to an invitation given under s 424A , before the time specified, or any extended period, authorises the RRT to make a decision on the review without taking any further action; see s 424C and s 425(2)(C) ; see also NACI v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 154. 44 Moreover, a failure to give the information or the comments before the specified time relieves the RRT of its obligation to invite an applicant to give evidence and present arguments at an oral hearing; see s 425(2)(c). Indeed, failure to give the information or to provide the comments removes any entitlement of an applicant to appear before the RRT; see s 425(3). 45 It might be thought therefore that the time limits fixed by the Act and the Regulations must be adhered to strictly. Further support for this view is to be found in the observation of Sackville J in NAWR v Minister for Immigration and Multicultural & Indigenous Affairs [2003] FCA 1520 at [33] and [35], that no period other than the period of 14 days for the initial prescribed period or 28 days for the further prescribed period can be specified. 46 Against this, s 424B(2) and s 424B(3)(b) each provide that where no period is prescribed, the information or comments are to be given within a reasonable period. Mr Potts drew attention to the power of the RRT to extend the period to respond to an invitation contained in s 424B(4). It may well be that this power can be exercised after the initial prescribed period has expired; see Minister for Immigration and Multicultural & Indigenous Affairs v Sun [2005] FCAFC 201 at [51] . 48 However, I am relieved from answering that question because of the circumstances in which the apparent breach of s 424B(2) occurred in the present case. What I have to determine is whether the breach complained of gave rise to jurisdictional error. That cannot be answered by simply posing the question of breach or no breach; it is necessary to consider whether in the particular circumstances the breach had that result. 49 I do not see how, having regard to the language of s 424B(2) or the scope of Div 4, a breach which consisted of giving an applicant more time than he or she was entitled to, could be thought to render invalid a decision given after the breach. This must be especially so where the information was provided and a hearing took place in accordance with s 425. 50 It follows that the appeal must be dismissed. 52 Relief may be refused inter alia, where there has been waiver or acquiescence in the invalidity of the decision or where an applicant has suffered no injustice; see Re Refugee Review Tribunal ; ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 at [57] - [58] ; see also SAAP at [80]. 53 Here, I am satisfied that the appellant has suffered no injustice. As I have said he was granted an indulgence by the additional period to respond and he responded without complaint. He also attended the hearing and, as one would expect, made no apparent complaint about the additional time period granted to him to provide the information. I certify that the preceding fifty four (54) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson.

invitation by refugee review tribunal to give additional information 'prescribed period' in which information to be supplied whether breach constitutes jurisdictional error s424b(2) migration regulations 1994 (cth) reg 4.35(3) migration migration act 1958 (cth)

The Federal Magistrate dismissed the applicant's application for judicial review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. 2 The applicant, who is a citizen of the People's Republic of China, arrived in Australia on 11 October 2005. He applied for a protection visa on 1 November 2005. A delegate of the Minister refused that application on 18 November 2005. The applicant sought a review of that decision. On 14 February 2006, the Tribunal handed down and sent to the applicant a copy of its decision dated 23 January 2006, affirming the delegate's decision not to grant a protection visa. An application for an order to show cause why relief should not be granted in relation to Tribunal's decision was made to the Federal Magistrates Court on 20 March 2006. The Federal Magistrate dismissed the application pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), with costs fixed in the sum of $2000. 3 The applicant did not attend the Tribunal hearing. In his visa application, he claimed to be a Falun Gong practitioner who had been instructed in Falun Gong practices by his uncle in 1995. The applicant stated he became a leader of Falun Gong in his district and in March 2005 police had come to his home to arrest him. He claimed he was able to leave China because his wife paid a lot of money to get his passport. He said he cannot return to China because he would face persecution. The Tribunal was not satisfied the applicant had a "well-founded fear of persecution for a Convention reason". It said that due to his non-attendance it did not have the opportunity to "explore the veracity of his claims". 4 The Federal Magistrates Court allowed the applicant to file an amended application and evidence due to concerns about the "generality of the grounds of review in the application". The amended application asserted a breach of s 424A of the Migration Act 1958 (Cth). The applicant claimed the Tribunal did not disclose to him the information on which it relied to reject his application. The Federal Magistrate held that the Tribunal's decision was based on a simple insufficiency of information and there was no obligation to provide notice of adverse material under s 424A. No particulars or evidence of the bias alleged in the applicant's first application to the Court below were presented to the Federal Magistrate. This allegation was found to be baseless and no jurisdictional error was found. 5 In this Court, the applicant claimed that the Tribunal "failed to carry out its statutory duty", "did not provide particulars of the information that was the reason, or part of the reason for affirming the decision according to s 424A" and referred to the decision in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 (" SAAP "). Those submissions are misplaced. The learned Federal Magistrate correctly determined in accordance with SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 that the Tribunal based its decision on an insufficiency of information rather than on any particular information (see also SZCIA v Minister for Immigration and Multicultural Affairs [2006] FCA 238 at [9] to [12] per Allsop J, where the Tribunal's decision was also based on an absence of information rather than any particular information). Accordingly, the judgment below is not attended by sufficient doubt such that its reconsideration is warranted on appeal. Further, no substantial injustice arises from a refusal to grant leave given that the Tribunal's reasons for decision do not disclose any jurisdictional error. 6 In the original application for leave to appeal, the applicant named a single respondent. In accordance with the judgment of the High Court of Australia in SAAP , the Court will order that the Tribunal will be added as a respondent. 7 The application for leave to appeal is refused with costs.

application for protection visa refused application for review by refugee review tribunal refused appeal to federal magistrate's court dismissed leave to appeal required judgment below not attended with sufficient doubt no substantial injustice leave refused migration

The present reasons should be understood in the light of and as an extension of those reasons. On 20 December 2006, I gave directions for the parties to make submissions on the appropriate penalty for contempt. I have now received written submissions on behalf of the Australian Securities & Investments Commission (the Commission) and the defendant and have heard oral submissions on behalf of both parties on that question. 2 Ordinarily, subject to satisfaction of certain procedural requirements, the Court has power to impose a term of imprisonment, to impose a fine and to make costs orders as punishment for contempt. 3 However, the defendant points to a failure to comply with the Rules of the Federal Court concerning enforcement of orders of the Court by committal. He says that, having regard to failure to comply with the Rules in connection with the Court's order of 16 September 2005, the punishment, at least in relation to the first two charges, should not include imprisonment. It is, therefore, desirable to say something about the relevant provisions of the Rules. 4 Order 37 Rule 2(1) of the Federal Court Rules relevantly provides that, subject to the Rules, an order of the Court shall not be enforced by committal unless the order, or a certified or office copy of the order, is served personally on the person bound by it. Rule 2(3) relevantly provides that an order, or a certified or office copy of an order, served under Rule 2 must bear a notice that names the person concerned and states that the person is liable to imprisonment if , where the order requires the person bound to do an act within a specified time , the person bound refuses or neglects to do the act within that time . Under rule 2(6) the Court may dispense with service under Rule 2(1). 5 On 16 September 2005 the Court ordered that the defendant appear before named officers of the Commission on 28 September 2005 at the Commission's Sydney office for examination on oath and provide the Commission all reasonable assistance with its investigation, pursuant to notices given by the Commission under s 19(2) of the Australian Securities and Investment Commission Act 2001 (Cth) (the ASIC Act). While a copy of that order was served on the defendant, the copy of the order that was served did not contain a notice that complied with rule 2(3). The defendant says that, therefore, the order of 16 September 2005 should not be enforced by committal to prison. 6 The Commission answers that contention by asking the Court to waive compliance with rule 2(3). In addition, the Commission contends that, in relation to the second charge, Rule 2(3) has no application. The second charge is that the defendant failed to provide the Commission all reasonable assistance with its investigation. The Commission points out that Rule 2(3) relates only to an order that requires the person bound to do an act within a specified time and that there was no temporal limitation to that requirement for the defendant to provide assistance. Accordingly, it says, there was no requirement for a notice that the defendant was liable to imprisonment if he neglected to provide reasonable assistance. The Commission's contention concerning the second charge raises questions concerning the effect of s 70 of the ASIC Act and the Court's order of 16 September 2005. A fortiori , he gave the Commission no assistance on that day in connection with its investigation. Accordingly, there can be no doubt that the defendant failed to comply with the order of 16 September 2005. 9 The Commission's contention, however, is that the order continued to be operative such that, notwithstanding the failure to attend on 28 September 2005, the order continued to require the defendant to provide the Commission all reasonable assistance with its investigation, pursuant to the requirement that had previously been made by the Commission under s 19 of the ASIC Act. Notwithstanding that, in my reasons of 20 December 2006, I concluded that the defendant should be found guilty of a charge of contempt for failing to provide all reasonable assistance to the Commission at a hearing on 3 February 2006, I do not consider, on reflection, that the defendant should be punished separately for any failure to provide reasonable assistance on that occasion. 10 When the defendant appeared before the Court on 9 December 2005, to answer the charge of having failed to comply with the order of 16 September 2005, I informed the defendant that he must realise that he was in very serious trouble and that he must take the matter seriously in future. The Commission indicated at that stage that it was amenable to conducting an examination of the defendant at a mutually convenient time in January 2006. I therefore fixed the contempt charge for directions on 3 March 2006 and informed the defendant that, if, in the meantime, he had attended an examination at a time that was suitable, that may have a very significant bearing on what would happen with the contempt charge. 11 That was the context in which the defendant, in fact, attended at the Commission's Sydney office on 3 February 2006, where he was examined by three officers of the Commission. I do not regard the attendance at such an examination as a further requirement of the order of 16 September 2005. Rather, it should fairly be treated as an attempt on the part of the defendant to assuage the affront to the Court constituted by his failure to comply with the order of 16 September 2005 in the first place. In effect, the defendant was belatedly attempting to do what he should have done on 28 September 2005. In those circumstances, the defendant's failure to provide the Commission with reasonable assistance on 3 February 2006 should not fairly be treated as a second contempt. Rather, it was an ineffective purging of the contempt that had previously been committed. The failure to provide assistance on 3 February 2006 should be taken into account for the purposes of assessing the penalty for the first charge but should not be separately penalised. 12 It follows, therefore, that I should consider the penalty for the first charge on the basis that the copy of the Court's order served on the defendant did not comply with Order 37 rule 2(3). The Commission has not adduced any evidence as to the circumstances that led to the omission of the statement required by rule 2(3). Nevertheless, the Commission seeks a waiver of compliance with that rule under either Order 37 rule 2(6) or Order 1 rule 8. 13 In response to the request for a waiver, the defendant points to the fact that, apart from his failure to attend the examination on 28 September 2005, on every other occasion since the commencement of the proceeding he has attended Court or examinations by officers of the Commission. While he gave no evidence that he did not know that failure to comply with the Court's order of 16 September 2005 could lead to committal, I do not consider that that is relevant. I am not persuaded that any basis has been advanced on behalf of the Commission for waiver of the requirement to comply with Order 37 rule 2(3). It follows that committal is not an appropriate penalty in relation to the first charge or, in so far as it can be supported, the second charge. 14 The position is different in relation to the conclusion that I have reached concerning a third charge. By the time that the defendant gave undertakings to the Court on 25 May 2006, it is clear enough that he was aware that one of the possible consequences of contempt of Court was committal. I also informed him on that occasion that if he did not comply with his undertaking, the Commission may bring another charge of contempt against him. 15 Clearly, failure to comply with an order of the Court and failure to comply with an undertaking given to the Court are serious matters and must be dealt with on that basis. I have found that both failures were contumacious in the circumstances that I described in my reasons of 20 December 2006. In ordinary circumstances, a knowing and contumacious failure to comply with an order of the Court may well attract punishment by way of imprisonment. However, I have concluded that that punishment is not open in relation to the first and second charges. In relation to the third charge, it is relevant to have regard to the examination that in fact took place pursuant to the undertaking given to the Court. 16 The defendant undertook on 25 May 2006 that he would appear before named officers of the Commission on 6 June 2006 at the Commission's Sydney office, for examination on oath on enumerated topics and that he would provide the Commission with all reasonable assistance with its investigation of those topics. As I indicated in my reasons of 20 December 2006, there were eight topics enumerated. The defendant did in fact attend the examination on 6 June 2006 and was examined over some period of time. The transcript of the examination runs to some 113 pages. The third charge relates to a failure to provide reasonable assistance in connection with the investigation of only two of the enumerated topics. 17 In support of the original charge of contempt, the Commission relied on an affidavit of Mr Paul Raymond Rowland, sworn 10 November 2005. Mr Rowland is an investigator with the Commission. He said that the relevant investigation is into suspected contravention of provisions of the Corporations Act in relation to dealings by the defendant in securities of Computershare Limited and Ten Network Holdings Limited and of provisions of the Crimes Act 1900 (NSW) in relation to credit obtained by the defendant for the purposes of funding those dealings. The Commission commenced the investigation on 15 April 2005 and subsequently decided to examine the defendant on oath pursuant to s 19 of the ASIC Act. Mr Rowland said that the defendant is an integral part of the investigation. In any event, however, the defendant points to the fact that no complaint was made in relation to six of the eight enumerated topics. 19 Thus, in relation to the examination on 3 February 2006, it seems to follow that the failure to provide responsive and useful answers on that occasion was overcome, to some extent, by the answers given in the examination on 6 June 2006. That is to say, by the end of that examination, there were only the two enumerated topics in respect of which the Commission made any complaint. 20 The undertaking given to the Court on 25 May 2006 to attend a further examination was given by the defendant at a time when he was not represented. In effect, the undertaking was given as a condition of the adjournment that he sought on 25 May 2006. I consider that the undertaking should be treated in much the same way as the indication given by the defendant on 9 December 2005 that he would attend a further examination in January 2006. That is to say, it was by way of further endeavour to assuage the affront to the Court for his failure to comply with the Court's order of 16 September 2005. 21 I consider that, in assessing penalty, there should be a single penalty fixed in relation to the whole of the defendant's conduct. To the extent that he failed to provide the Commission reasonable assistance in connection with its investigation on 3 February 2006 and 6 June 2006, that has relevance as indicative of the extent to which the defendant was genuinely contrite in respect of his failure to comply with the Court's order of 16 September 2005. While it has taken several attempts and the Commission is still not entirely satisfied with the defendant's responses, he has to the extent, limited though it may be, that he has cooperated in attending further examinations, demonstrated some contrition. 22 Certainly, the defendant pleaded not guilty to the first charge. That is a factor that I consider to be relevant in assessing the degree of any contrition that he genuinely demonstrates. On the other hand, in the course of cross-examination of the defendant during the hearing of the contempt charges, the defendant apologised to the Court on three separate occasions. In addition, the defendant, at one of the times when he was represented, undertook to attend a further examination if required by the Commission. The Commission has not taken up that offer. Nevertheless, I consider the offer is indicative of a degree of contrition on the part of the defendant. 23 In considering penalty, it is necessary to have regard to the question of deterrence. As I have said, failure to comply with an order of the Court is a very serious matter. Any penalty that is imposed should reflect the seriousness of the matter and should be sufficient to deter not only the defendant from repeating a contempt but also to deter others. The Commission is furnished with very significant powers to examine individuals in the interests of the community. Members of the public should understand that failure to comply with orders of the Court requiring compliance with the Commission's requirements in connection with investigation will not be treated lightly. 24 However, in the present case, given that imprisonment is not an available penalty for failing to comply with the Court's order of 16 September 2005, a further complication arises from the fact the defendant is quite impecunious. The defendant is a bankrupt. It seems likely that he has no assets of any moment whatsoever. The only evidence of employment is that of casual unskilled employment in a café producing no more than several hundreds of dollars per week. There must be considerable doubt, therefore, as to whether any monetary penalty would be paid by the defendant. Nevertheless, that appears to be the only course open. 25 In all the circumstances, I consider that the appropriate penalty is a fine of $8,000. In addition, the defendant should pay all reasonable costs of the Commission reasonably incurred in connection with the charges of contempt. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

contempt of court penalty to reflect seriousness of the matter penalty to deter defendant from repeating a contempt and deter others penalty

The First Respondent, Mr John Rickus, is a former chairman and director of the Trustee. The board of directors of the Trustee resolved to remove Mr Rickus as Chairman with effect as from 10 October 2006 and to remove him as a director as from 10 December 2006. 2 The facts which give rise to the present proceeding, and to a related proceeding, start with the issue by the Australian Prudential Regulation Authority (" the Authority ") of a notice, dated 19 September 2006, pursuant to s 255(1) of the Superannuation Industry (Supervision) Act 1993 (Cth). The notice was issued as part of a review of the Trustee being undertaken by the Authority. Documents were produced by Mr Rickus to the Authority on 27 September 2006. Prior to giving those documents to the Authority, Mr Rickus obtained, with the concurrence of the board of the Trustee, independent legal advice. 3 A schedule of the documents provided to the Authority was given to the Trustee at a board meeting held on 10 October 2006, but not the documents themselves or a copy of the documents. It is the non---production by Mr Rickus of a copy of the documents provided by him to the Authority which has occasioned the litigation commencing in September 2006 to the present. 4 The Trustee sought to be provided with a copy of the documents so that it could respond to the Authority. You will recall that you indicated that you would do so in discussion of, and approval of, the fees you incurred in seeking legal advice. The reason advanced by Mr Rickus for not providing the board with a copy of the documents that he had produced to the Authority was founded in his belief that the documents were confidential and he did not want those documents being made available to those directors of the board whom he considered had a conflict of interest. 5 The concern of the Trustee was also made clear at a meeting of the board held on 22 November 2006, a meeting which Mr Rickus attended. At that meeting, the retention of Senior Counsel to advise the Trustee was discussed. The Minutes of the meeting record discussion of the documents provided by Mr Rickus to the Authority and further record that " Counsel would not be in a position to give definitive advice without seeing those documents as APRA had them and Counsel did not ". 6 There does not appear to have been any direct response to the 24 October 2006 letter. There is, however, a letter dated 19 January 2007 from the solicitors acting for Mr Rickus responding to an earlier letter from the Trustee's solicitors. The 19 January 2007 letter suggests that the schedule of documents was not provided to the board on 10 October but rather in November 2006. That discrepancy may be left to one side. 3.2 Our client did, in fact, table a list of such documents at the following board meeting on 23 November 2006. At that meeting, our client explained that many of the documents were in the possession of the Trustee secretariat and that many of the documents were our client's own personal documents, notes and correspondence which he did not believe he was under an obligation to provide to the Trustee. 3.3 Our client's understanding following that meeting was that he might expect to receive a proposal from the Trustee's lawyers in relation to how his personal documents might be disclosed to the Trustee or the Trustee's lawyers whilst preserving their confidentiality and any privilege. The claim for privilege was apparently misplaced. That claim emerged later on but was not seriously pursued. There followed exchanges of correspondence. 7 Early attempts by the Trustee to obtain access to the documents, including requests made of the Authority, proved unsuccessful. Requests made after October 2006 proved equally unsuccessful. An undertaking proffered by the Trustee to the Court in September 2006 to use the documents only for the purpose of dealing with the Authority also proved unsuccessful in securing the production of a copy of the documents. 8 The Principal Executive Officer of the Trustee, Mr Michael Delaney, believed that a report issued by the Authority in November 2006 relied on documents supplied by Mr Rickus in reaching conclusions regarding the Trustee's operations. Examples of apparent reliance or reference to those documents were provided. There was uncertainty surrounding precisely what material the Authority had taken into account in reaching its conclusions. It was a concern to Mr Delaney that the Authority had reached, or may have reached, a number of adverse conclusions about the operations, functioning and governance policies of the Trustee based at least in part upon the documents provided by Mr Rickus. 9 The present proceeding seeking production of the documents or a copy of the documents was commenced by way of an Application and Statement of Claim filed on 3 September 2007. Thereafter there was an Amended Application and an Amended Statement of Claim filed on 8 October 2007. A Defence was filed in respect to the Amended Statement of Claim on 29 October 2007. At that stage the only Respondent to the proceeding was Mr Rickus. A Cross-Claim was filed on 1 February 2008. A Second Further Amended Application and a Third Further Amended Statement of Claim were filed on 23 April 2008. A Defence to the Third Further Amended Statement of Claim was filed on 16 May 2008. 10 Even as at May 2007, Mr Rickus was still concerned as to the basis upon which copies of the documents could be made available. In a letter to the then Chairman dated 16 May 2007, Mr Rickus maintained that he " might come to an arrangement whereby I could provide the documents directly to senior counsel for the Trustee (for the purpose of counsel providing the Trustee with further advice in relation to the APRA Prudential Review Report dated 10 November 2006) ". 11 Over time, copies of some -- but not all -- of the documents produced to the Authority were obtained by the Trustee. As at the date of the present hearing, only four documents have not been recovered. 12 Two previous decisions have been given in the present proceeding. The first was on 7 November 2007 when ( inter alia ) orders previously made for the determination of separate questions were vacated and leave was granted to amend the then state of the pleadings: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 2117. The Authority was also then joined as the Second Respondent. A second decision was given on 26 November 2007 when ( inter alia ) the Trustee was ordered to pay the costs of Mr Rickus on an indemnity basis: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878. 13 A related proceeding was also commenced by the Trustee. The Respondents to that proceeding were the Authority and Mr Rickus. In that proceeding, judicial review was sought of the Authority's decision to refuse to return the documents produced by Mr Rickus to the Trustee. That application was dismissed: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 , 169 FCR 483. 14 Leave was given to the Applicants on 28 July 2008 for the discontinuance of the present proceeding. The question of costs was reserved. CROSS-CLAIM : AN INDEMNITY FOR LEGAL COSTS? 17 For the purposes of resolving the Cross-Claim , it may be accepted that indemnities protecting directors against liabilities incurred whilst performing their duties, including indemnities protecting directors of public companies, are of importance in ensuring that highly qualified and experienced people are attracted to assume the responsibility: cf Whitlam v National Roads and Motorists' Assoc Ltd [2006] NSWSC 766 at [82] , 202 FLR 153 at 176 per Bergin J. Noted: 'Young P W, Corporations: Director's Indemnity Rights ' (2006) 80 ALJ 720. 18 The source of the right to claim an indemnity being advanced by the First Respondent may be traced back to the Constitution of the Trustee. 19 That Constitution provides in cl 88(5) that " the Company may enter into an agreement or deed " to indemnify an officer of the company. 20 Such a Deed was in fact executed on 15 February 2006. 24 Although these provisions are not drafted in a manner which avoids limited ambiguity, it is not considered that the Deed confers a right to the indemnity claimed by Mr Rickus. INDEMNITY: A CLAIM MADE BY THE TRUSTEE? 27 The term " claim " is defined as meaning ( inter alia ) " any demand made by a third party upon the Officer ". 28 The contrary construction of the Deed urged by Mr Rickus, however, is not without substance. His construction seizes upon the fact that the indemnity which he seeks to invoke is not confined to an indemnity in relations to " claims " that may be made; his construction seizes upon the language of clause 2.2, which confers an indemnity " against any liability for legal costs ". And, in support of that wider construction, he relies upon the fact that the definition of the term " liability " is not confined -- for example -- to an " action " or " suit " or " proceeding " initiated or made by a third party. 29 Such ambiguity as may have otherwise arisen, however, is resolved by cl 2.5. In order to " obtain the benefit of the indemnity under Clause 2 ", cl 2.5 provides that the officer must (for example) give notice to the Trustee and must " give assistance to the Company with respect to the conduct of the claim ". Those obligations imposed upon an officer seeking to invoke the benefit of the indemnity only sit comfortably with a construction of the Deed such that it does not confer an indemnity in respect to claims made by the Trustee itself. An obligation to give notice to the very entity making the claim, and an obligation to give assistance to the company making the claim, which Mr Rickus seeks to resist, provide a sufficient basis for confining the width of meaning which could otherwise have been ascribed to the term " liability ". 30 The same conclusion is only further assisted by cl 7.2.3. Clause 7 provides for an officer obtaining legal advice and cl 7.2.3 provides that " where the advice is that the Officer is or may be subject to a claim... the Officer must disclose in writing to the Company the nature, extent and likelihood of the Claim and such other information as the Company requests ". If the Deed extended to the making of a claim by the Trustee against Mr Rickus, cl 7.2.3 would have the consequence that all of the legal advice he obtained for the purposes of the present proceeding should be disclosed to the Trustee. LIABILITY INCURRED BY VIRTUE OF HOLDING OFFICE & ACTING IN THE CAPACITY OF AN OFFICER? 32 This alternative argument focuses attention upon the phrase in cl 2.2 that the indemnity is confined to a " Liability incurred by the Officer as or by virtue of holding office as and acting in the capacity of an officer of the Company ". 33 That phrase, the Trustee contends, imposes a requirement to satisfy each of the two requirements, namely that the liability must be incurred by reason of Mr Rickus holding office, and also the requirement that the liability must be incurred whilst he was acting in the capacity as an officer of the Trustee. The construction of any individual deed must obviously depend upon the terms of the deed under consideration. But the construction now being advanced on behalf of the Trustee is consistent with a conclusion expressed in respect to a comparable provision in Craddock v Sweeney [2005] QSC 037 at [18]. 34 In the present proceeding, the Trustee contends that Mr Rickus cannot bring himself within this phrase because he ceased to be a director of the Trustee on 10 December 2006 and the present proceeding was not commenced until September 2007. At the time the liability to costs was incurred it is contended that Mr Rickus was not a director and was not " acting in the capacity of an officer of the Company ". 35 It is not considered that this argument should prevail. Clause 2.2 confers an indemnity in respect to a " liability for legal costs ". The indemnity extends to the payment of such costs " in respect of a Liability incurred ... by virtue of holding office as and acting in the capacity of an officer of the Company ". The " Liability " there referred to is the " Liability " to accede to the claim for the return of the documents. At the time the documents were produced by Mr Rickus to the Authority, and at the time the first demand was made for the return of those documents, and that demand was resisted, Mr Rickus remained a director of the Trustee. Indeed, it was because he was a director that the Trustee maintains that he was under a duty to return the documents or a copy of the documents. 36 The " Liability " to accede to the demand of the Trustee is considered to be a " Liability " incurred at a time when Mr Rickus was " holding office as ... an officer of " the Trustee. If an officer is sued for a liability he or she is alleged to owe by reason of his or her actions in the role of an officer, it is within the scope of the indemnity. It is because any such liability is within the scope of the indemnity that reasonable costs incurred in defending any such assertion of liability are themselves also within the scope of the indemnity. Beazley JA and Handley AJA there agreed with Campbell JA. Special leave to appeal was refused: Whitlam v National Roads and Motorists Assoc Ltd [2007] HCATrans 484. The fact that Mr Rickus thereafter ceased to occupy that office is not considered to be a reason to reach any contrary conclusion. 37 In resisting the claim for production of the documents, it is further considered that at the time the demand was first made for the production of those documents, and whilst Mr Rickus remained a director, he was acting bona fide and in a manner which he reasonably considered was in the best interests of the Trustee. It was the genuineness of his belief which enabled his conduct to remain properly characterised as " acting in the capacity of an officer ". A director may be opposed to the views of his company but still act in the due performance of his office: Talbot v NRMA Ltd [2000] NSWSC 887 , 50 NSWLR 300. That is the position in relation to trustees: Re Knox's Trust [1895] 2 Ch 483; McGregor v McGregor (No 2) [1919] NZLR 286. [25] In my opinion, in cases like these, before taking the extreme step of bringing legal proceedings against the company, a director must take into account not only the director's own view of what is in the company's interests, but also the views of others; and in that regard the director should not be too ready to attribute dishonesty or unreasonableness to other persons, and the director should take into account his or her own fallibility. The director should also take into account all the consequences of bringing proceedings against the company, including the consequences of the court decision going either way, and the costs of litigation. However, if, having done all these things, the director believes that it would be in the interests of the company that the company be subject to litigation, and that he or she would be in breach of his or her own duties as a director if the proceedings were not taken, and if those beliefs are both honest and reasonable, then it seems to me that the bringing of the proceedings should be regarded as due performance of the director's office, so that the director would be entitled to expenses and an indemnity from the company. 38 If this construction of cl 2.2 is not correct, it would be open to the Trustee to make the demand upon Mr Rickus by reason of him occupying the position of director and thereafter deny him the benefit of the indemnity by simply removing him from his position. In resisting the demand for the return of the documents, it is thus concluded that Mr Rickus was acting bona fide and that the legal costs he incurred were costs " incurred in respect of " that " Liability ". 39 Also rejected is an argument advanced by the Trustee that there was a failure on the part of Mr Rickus to give such notice as is required by cl 2.5. Notice of an intention to invoke the right to indemnity was provided by way of an exchange of correspondence from the solicitors acting for Mr Rickus to the solicitors acting for the Trustee, first by way of a letter dated 16 May 2007, and again by way of a letter dated 3 October 2007. 40 The more substantial difficulty confronting Mr Rickus is not whether cl 2.2 confers an indemnity in respect only to a claim made by a third party (and not by the company) or whether he can bring himself within the phrase, " a Liability incurred by the Officer as or by virtue of holding office as and acting in the capacity of an officer " -- the more substantial difficulty is the introductory words of cl 2.2. Those introductory words confine the indemnity to " the maximum extent permitted by law ". CLAUSE 88: AN INDEPENDENT SOURCE OF AN INDEMNITY? Rather than that provision merely being an enabling provision which conferred authority to enter into the Deed, it was his contention that cl 88 was itself an agreement to provide an indemnity. 42 By virtue of s 140(1)(b) of the Corporations Act 2001 (Cth) a company's constitution has effect as a contract between the company and each director of the company. See: New Cap Reinsurance Corp Ltd v Daya [2008] NSWSC 64 at [20] , 216 FLR 126 at 130 per Barrett J. (1) In this Article:- (a) "Legal Costs" of a person means legal costs incurred by that person in defending an action for Liability of that person. (b) "Liability" of a person means any liability incurred by that person as an officer of the Company or a subsidiary of the Company. (c) "Relevant Officer" means a person who is, or has been, a Director or Secretary. (2) To the extent permitted by law, the Company must indemnify each Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. (3) To the extent permitted by law, the Company may make a payment (whether by way of advance, loan or otherwise) to a Relevant Officer in respect of Legal Costs of that person. (4) To the extent permitted by law, the Company may pay, or agree to pay, a premium for a contract insuring a Relevant Officer against:- (a) a Liability of that person; and (b) Legal Costs of that person. 44 The advantage to Mr Rickus should cl 88, and in particular cl 88(2), be an independent source of the indemnity sought to be invoked is that the indemnity thereby conferred would be free of the textual constraints imposed by cl 2.2 of the Deed . Clause 88(4), upon which some reliance was placed, does not assist. It is simply a provision which permits the payment of a premium. 45 Left to one side is the question as to whether the Constitution could confer any greater entitlement to indemnification than the Deed. 47 Whether the source of the indemnity sought to be invoked by Mr Rickus is the Deed or the Constitution , no greater indemnity can be conferred than that " permitted by law ". " PERMITTED BY LAW ": A DUTY TO DISCLOSE A COPY OF THE DOCUMENTS? 49 If there was such an obligation, the Trustee contended that Mr Rickus was under " a liability owed to the company " within the meaning of s 199A(2)(a) of the Corporations Act . If there was such a " liability ", s 199A(3)(a) of that Act would preclude any indemnity extending to the recovery of legal costs incurred in respect to defending a proceeding seeking to enforce that " liability ". Mr Rickus put in issue the proposition that, if he was required to produce to the Trustee a copy of the documents, such a requirement was a " liability " for the purposes of s 199A ; he further put in issue whether or not he was under a requirement to produce the documents at all. 50 Both the breach of the asserted obligation or duty and the source of any such obligation or duty were matters which Senior Counsel for Mr Rickus quite properly sought to have clarified. The Trustee " left its options open " as to the source of the duty or obligation. 51 No authority was cited that specifically addressed the duty owed by a director (or chairman) of a company when served with a notice such as that served upon Mr Rickus under s 255 of Superannuation Industry (Supervision) Act . 52 The very existence of any such duty and -- if any such duty existed -- the content of the duty had thus to be addressed as a matter of general principle. Reference should also be made to ss 180 to 184 of the Corporations Act and to Ford's Principles of Corporations Law at [8-010] and [8-065]---[8-090] (13 th ed, 2007). The statutory duties imposed by ss 181 and 182 reflect, and to some extent refine, corresponding obligations on directors under the general law: Australian Securities and Investments Commission v Maxwell [2006] NSWSC 1052 at [99] , [2006] NSWSC 1052 ; 59 ACSR 373 at 397. See also: Austin R, Ford H and Ramsay I, Company Directors: Principles of Law and Corporate Governance (2005) at [7.4]. Beyond recognition of these general principles, the potential existed in the present proceeding for submissions to descend to a level of unnecessary abstraction. 53 In some circumstances, for example, it has been said that it is " the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration ": Dover v Cory [1901] AC 477. There being addressed was the responsibility of a director to inform himself as to the records of the company as opposed to the reliance he could place upon a chairman or a general manager in identifying those matters requiring his consideration. I do not think that it is made out that either of the two latter questions should be answered in the affirmative. I think the respondent was bound to give his attention to and exercise his judgment as a man of business on the matters which were brought before the board at the meetings which he attended, and it is not proved that he did not do so. But I think he was entitled to rely upon the judgment, information, and advice of the chairman and general manager, as to whose integrity, skill, and competence he had no reason for suspicion. I agree with what was said by Sir George Jessel in Hallmark's Case [(1878) 9 Ch D 329] , and by Chitty J. in In re Denham & Co. [(1883) 25 Ch D 752] , that directors are not bound to examine entries in the company's books. It was the duty of the general manager and (possibly) of the chairman to go carefully through the returns from the branches, and to bring before the board any matter requiring their consideration; but the respondent was not, in my opinion, guilty of negligence in not examining them for himself, notwithstanding that they were laid on the table of the board for reference. ... In other circumstances it has been said that a " chairman has the primary responsibility of selecting matters and documents to be brought to the board's attention ": AWA Ltd v Daniels (1992) 7 ACSR 759 at 867. More recently, in Australian Securities and Investments Commission v Rich [2003] NSWSC 85 at [51] ---[72], 174 FLR 128 at 141---7, Austin J has reviewed the authorities and considered the duties owed by a chairman of a listed company. See also: Australian Securities and Investments Commission v Vines [2003] NSWSC 1116 , 182 FLR 405. 55 The contention that s 199A of the Corporations Act denied any entitlement to an indemnity was expressly raised by the Defence to the Cross-Claim . Notwithstanding the express reliance upon s 199A(2) and (3) in that Defence , the submissions advanced on behalf of the Trustee as to the source of the duty to produce a copy of the documents caused some procedural difficulties. 56 One difficulty was that the Authority sought an opportunity to itself make submissions. The Authority had previously been joined as the Second Respondent, in November 2007. But it had taken no real part in the present proceeding thereafter. Its participation was substantially confined to the related proceeding: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828. The Authority's renewed interest in the present proceeding occurred during the course of submissions in reply being advanced on behalf of Mr Rickus. The Authority, it was said, had an interest in being heard as to whether a person upon whom a notice had been served under s 255 of the 1993 Act thereafter came under a duty such as that now sought to be espoused by the Trustee. Notwithstanding the lateness of its expressed interest, the opportunity for the Authority to file written submissions confined to that issue was not opposed by Senior Counsel on behalf of the Trustee. Directions were made for the filing of written submissions and for submissions in reply by both Mr Rickus and the Trustee. 57 Any contention that, by seeking leave to discontinue its claims as against Mr Rickus, the Trustee was thereby precluded from resisting the Cross-Claim is to be rejected. The abandonment of a claim pursued as an applicant is not considered to be the abandonment of any defence that an applicant may otherwise have to a cross-claim. By seeking leave to discontinue, the Trustee was simply contending that it no longer wished to pursue its own claim for relief -- for whatever reason. The Trustee's decision to seek leave to discontinue the Application in July 2008 may well have been influenced by the fact that it had already obtained copies of most of the documents previously produced to the Authority by Mr Rickus, or by the stage reached in relation to the inquiries being pursued by the Authority. But, whatever the reason which motivated the Trustee, leave was given to discontinue. It thereafter remained a matter for Mr Rickus to decide whether he wished to pursue his Cross-Claim or whether he too would seek to discontinue that action. If the Cross-Claim was to be pursued, the Cross Respondent was entitled to rely upon whatever issues had been legitimately raised in the Defence as filed. A discontinuance of an application is not to be construed in some way as some implied amendment of a defence as filed to a cross-claim. 58 But it was the further contention of Mr Rickus as to prejudice that had the potential to occasion greater procedural difficulty. It was his contention that, had the source of the duty been more fully articulated at the outset of the hearing of the Cross-Claim , there would have been cross-examination of a number of witnesses in order to establish facts that were not otherwise considered to be relevant. A number of such outstanding facts were immediately articulated by Senior Counsel during the course of oral submissions. None of those facts then expressed were seen by Senior Counsel on behalf of the Trustee to be contentious and such as could not be the subject of agreement. A short adjournment was thus granted to enable Senior Counsel for Mr Rickus to more fully consider his position and to determine whether additional facts were also considered to be necessary. That short adjournment, however, provided insufficient time in which to properly consider the matter and the proceeding was adjourned to the following morning. 59 Of concern were two considerations, namely the paramount importance of ensuring that Mr Rickus was extended a proper opportunity in which to advance his case and also the importance of ensuring that the proceeding was brought to conclusion as expeditiously as was consistent with a proper determination of all issues presented for resolution. If there was to be agreement as to the outstanding facts, that was to be encouraged; if there was to be no agreement, the adjournment of the proceeding to the following morning accommodated the prospect that Senior Counsel for Mr Rickus could then apply even at that stage to cross-examine such witnesses as he saw fit. 60 Whether or not Senior Counsel for Mr Rickus should have cross-examined witnesses at the outset may be left to one side. The fact that the Trustee had " left its options open " as to the source of the duty imposed upon Mr Rickus may possibly have left his Senior Counsel in a state of uncertainty as to the case he had to meet. The importance of the Cross-Claim to Mr Rickus' position however was obvious; and the importance of the duty upon persons in his position when served with a notice by a regulator was also considered to be of more wide-ranging importance than the personal interests being propounded by Mr Rickus and the Trustee. The presentation of all facts relevant to a resolution of those issues, no matter how late they may have been raised, was obviously desirable -- if not essential. 61 This difficulty potentially confronting Mr Rickus, however, resolved itself. Senior Counsel on his behalf, after he had been given an opportunity to consider his position, advised that he did not wish to cross-examine further witnesses or reach any further agreement beyond that reached during the course of submissions. 62 The position was thus reached that it was open to the Trustee to place reliance upon both s 199A of the Corporations Act and upon the manner in which it was said that Mr Rickus owed " a liability to the company ". If he did, the Trustee was not " permitted by law " to confer an indemnity in respect to the legal costs incurred by Mr Rickus in resisting the claim made for a copy of the documents to be produced. When indemnity for liability (other than for legal costs) not allowed (2) A company or a related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against any of the following liabilities incurred as an officer or auditor of the company: (a) a liability owed to the company or a related body corporate; (b) a liability for a pecuniary penalty order under section 1317G or a compensation order under section 1317H or 1317HA ; (c) a liability that is owed to someone other than the company or a related body corporate and did not arise out of conduct in good faith. This subsection does not apply to a liability for legal costs. When indemnity for legal costs not allowed (3) A company or related body corporate must not indemnify a person (whether by agreement or by making a payment and whether directly or through an interposed entity) against legal costs incurred in defending an action for a liability incurred as an officer or auditor of the company if the costs are incurred: (a) in defending or resisting proceedings in which the person is found to have a liability for which they could not be indemnified under subsection (2); or (b) in defending or resisting criminal proceedings in which the person is found guilty; or (c) in defending or resisting proceedings brought by ASIC or a liquidator for a court order if the grounds for making the order are found by the court to have been established; or (d) in connection with proceedings for relief to the person under this Act in which the Court denies the relief. Paragraph (c) does not apply to costs incurred in responding to actions taken by ASIC or a liquidator as part of an investigation before commencing proceedings for the court order. (4) For the purposes of subsection (3), the outcome of proceedings is the outcome of the proceedings and any appeal in relation to the proceedings. This section is effective as from 1 July 2005. The evolution of s 199A , it may be noted, has been helpfully traced by Her Honour Justice Bergin in Whitlam v National Roads and Motorists' Association Ltd [2006] NSWSC 766 at [40] ---[56], 202 FLR 153 at 165---71. 64 In the absence of any constraint sought to be imposed upon Mr Rickus by the Authority in respect to the disclosure to the Trustee of those documents embraced by the s 255 notice, the contention advanced on behalf of the Trustee was that it was incumbent upon Mr Rickus to make available to the Trustee copies of those documents provided by Mr Rickus to the regulator -- at least upon a request being made. It was contended that a duty to act in the best interests of the company was a duty which embraced the obligation to keep the Trustee informed as to those matters which may be of relevance to the position of the regulator. In the absence of any statutorily imposed obligation of confidence, or perhaps an obligation of confidence sought by the regulator by agreement, the contention of the Trustee was that Mr Rickus was to keep the board fully informed as to those matters which had been placed before the regulator so that the board could properly respond to such concerns as may be raised by the regulator and even modify its own practices -- even in the absence of any concern being raised by the regulator. 65 Indeed, in the absence of further explanation, it would seem surprising if a director was not obliged to bring to the attention of his board a request (for example) made of him by the present Authority to produce documents of immediate relevance to the affairs of his company; a request made of him by the Commissioner of Taxation for access to books pursuant to s 263 of the Income Tax Assessment Act 1936 (Cth); or a request made of him by the Australian Competition and Consumer Commission pursuant to s 155 of the Trade Practices Act 1974 (Cth) for the production of documents. An exercise of such statutory powers may be the precursor to a regulator imposing upon a company a variety of sanctions perceived by the regulator to be warranted. A company may wish to challenge the validity of a statutory demand made upon one of its directors. Even if no challenge is to be made, a company may wish to consider whether any further documents should also be provided to a regulator to assist it in the discharge of its responsibilities or to make submissions in respect to that material already in the possession of a regulator. In the absence of knowing the terms of any notice requiring the production of documents and having a copy of documents produced, it is difficult to see how a company could properly address such concerns as a regulator may have. 66 All of these statutory provisions confer an authority which is a serious intrusion into the affairs of a company. If a director or other officer of a company is to yield to a lawful statutory demand, it would seem surprising that the fact of a demand should not be made known to the company and the company fully informed as to the demand and that which had been produced. Unless fully disclosed, the decision as to the response to be made to the exercise of statutory power (or further response) may be transferred from the company to an individual director. Although the obligation to respond to a statutory demand may fall upon an individual director, a decision as to whether the lawfulness of the demand should be reviewed may in some cases be made more appropriately by the company than its director. 67 But no such generally expressed conclusion need be made in the present case. 68 In the circumstances of the present case it is considered that Mr Rickus was under a duty to fully inform the Trustee as to his response to the s 255 notice -- and that included a duty to provide to the Trustee a copy of that which had been given to the Authority. His position has been considered upon the basis that he was a director. The circumstance giving rise to the duty include the very request made for the production of the documents, the manner in which the notice was addressed and the documents sought to be produced. The circumstances also include the review being undertaken by the Authority, the stage which that review had reached, the legal advice obtained by the Trustee and the need for the Trustee to be informed as to the documents provided to the regulator so that it could properly respond to the regulator. The circumstances also include the commitment of the Trustee to use the documents, if produced, only for the purposes of the Trustee's dealings with the Authority. Given the constraint upon the use to which it would put the documents, it is not considered that there remained any good reason why a copy of the documents could not have been produced by Mr Rickus when the request was made. No claim (for example) for legal professional privilege was sought to be made out on behalf of Mr Rickus. 69 The source of Mr Rickus' duty to produce to the Trustee a copy of the documents provided to the regulator was his duty to act in the best interests of the Trustee. As was made apparent to Mr Rickus, both in correspondence and at the board meeting in November 2006, the Trustee needed to be put in the position of having those copies so that the Trustee could properly address the matters being pursued by the Authority. That was what the Trustee told him and Senior Counsel to his knowledge had observed that he could not provide " definitive advice " without himself being given copies. Whatever may be the subtleties involved in other cases as to identifying that which is in the bests interests of the company (see: Sealy L S, ' Directors' "Wider" Responsibilities -- Problems Conceptual, Practical and Procedural ' (1987) 13 Mon Univ L Rev 164), in the present proceeding no submission (not surprisingly) was advanced that it was not in the interests of the Trustee to properly address the matters being pursued by the Australian Prudential Regulation Authority. 70 A more generally expressed submission advanced by the Trustee that it was a part of the fiduciary duty owed by a director to make full disclosure is rejected. " The strong weight of judicial authority is that fiduciary duties are proscriptive rather than prescriptive; accordingly, a fiduciary does not have a positive duty to disclose information ": Australian Securities and Investments Commission v Citigroup Global Markets Australia Pty Ltd (No 4) [2007] FCA 963 at [375] , [2007] FCA 963 ; 160 FCR 35 at 88 per Jacobson J. Reference may also be made to one of the authorities there referred to by His Honour, namely Breen v Williams [1995] HCA 63 , 186 CLR 71. As a result, equity imposes on the fiduciary proscriptive obligations -- not to obtain any unauthorised benefit from the relationship and not to be in a position of conflict. If these obligations are breached, the fiduciary must account for any profits and make good any losses arising from the breach. But the law of this country does not otherwise impose positive legal duties on the fiduciary to act in the interests of the person to whom the duty is owed. If there was a general fiduciary duty to act in the best interests of the patient, it would necessarily follow that a doctor has a duty to inform the patient that he or she has breached their contract or has been guilty of negligence in dealings with the patient. That is not the law of this country. Equitable remedies are available where the fiduciary places interest in conflict with duty or derives an unauthorised profit from abuse of duty. It would be to stand established principle on its head to reason that because equity considers the defendant to be a fiduciary, therefore the defendant has a legal obligation to act in the interests of the plaintiff so that failure to fulfil that positive obligation represents a breach of fiduciary duty. See also: Pilmer v Duke Group Ltd [2001] HCA 31 at [74] (per McHugh, Gummow, Hayne and Callinan JJ) and [127] (per Kirby J), [2001] HCA 31 ; 207 CLR 165 at 197---8 and 214; P & V Industries Pty Ltd v Porto [2006] VSC 131 at [12] ---[25], 14 VR 1 at 4---6 per Hollingworth J; Dempsey G and Greinke A, ' Proscriptive fiduciary duties in Australia ' (2004) 25 Aust Bar Rev 1. 71 The rejection of such a generally expressed duty, however, does not preclude a conclusion that in the circumstances of the present proceeding Mr Rickus was under a duty to produce a copy of the documents to the Trustee -- at least when a request to do so was made of him by the Trustee. The Trustee was aware that a statutory demand for the production of documents had been given to Mr Rickus and, indeed, had paid for the independent legal advice provided to Mr Rickus in respect to that demand. The Trustee had also reasonably formed the view that the regulator had most probably used at least some of the information provided by Mr Rickus in forming conclusions reached. There was a legitimate basis upon which the Trustee could make a request that it be provided with a copy of that which had been provided to its regulator. The duty imposed upon Mr Rickus in such circumstances is not considered to be some generally expressed duty to disclose that which was previously not known or the imposition of some " positive obligation "; rather it is a duty to place the board in the position whereby it can respond to an investigation being pursued by a statutory regulator and respond to that information provided by Mr Rickus. Having complied with a statutory demand and produced documents relevant to the matters being pursued by the regulator, it is not considered that Mr Rickus could thereafter withhold and thereby deny to the Trustee information potentially relevant to a meaningful response by the Trustee to the findings as were being made contrary to (or potentially contrary to) the Trustee's interests. 72 Rather than the obligation being the imposition of a " positive obligation ", it was his obligation not to withhold information from the board. The " obligation " was to accede to the request made of him to provide the documents. It would not be " in the best interests of the corporation " ( Corporations Act , s 181(1)(a)) to not produce to it a copy of that which had been provided to its regulator. Replying to a request properly made of him cannot properly be characterised as the imposition of any " positive obligation ". DEFENDING OR RESISTING PROCEEDINGS: SECTION 199A(3)(A)? 74 Central to the resolution of this contention was the distinction between the Statement of Claim (as amended) and the Cross-Claim . 75 Section 199A(3)(a) , Mr Rickus relevantly pointed out, precludes an indemnity for legal costs being provided if those costs were incurred " in defending or resisting proceedings in which the person is found to have a liability ". On Mr Rickus' behalf it was contended that he only defended or resisted the relief claimed in the Statement of Claim (as amended). And the claim for that relief was abandoned. Even if he was " defending or resisting " the claim for relief, he contends there was no finding as to " liability ". And, in his Cross-Claim he was not " defending or resisting " anything; he was the one seeking relief. 76 On this approach, the indemnity in respect of legal costs incurred in the present " proceeding " was not denied by s 199A(3)(a) and (2)(a). Emphasis was placed upon an accepted difference between a Statement of Claim as an originating process and a Cross-Claim . Indeed, it could also have been advanced on behalf of Mr Rickus that a Cross-Claim has been accepted as itself constituting a " proceeding " in its own right such that in the present matter before the Court there may have been two " proceedings ": cf Aussie Home Security Pty Ltd v Sales Systems Australia Pty Ltd [2000] FCA 498 at [5] , [2000] FCA 498 ; 172 ALR 141 at 143 per Katz J. On such an approach, the " proceeding " in which the liability of Mr Rickus was established was a different " proceeding " to the one commenced by the Applicants; and, in his own " proceeding ", Mr Rickus was neither " defending " nor " resisting " any liability. 77 Whether there be one " proceeding " before the Court or two " proceedings ", it is not considered that the legislative objective set forth in s 199A(3)(a) is to be resolved by such subtleties. The legislative objective is reasonably clear -- an officer or auditor of a company is not to be indemnified in respect to such legal costs as he incurs in defending or resisting proceedings seeking to establish the existence of the liability in issue. At all material times the Trustee was asserting a right to have a copy of the documents produced. At all materials times Mr Rickus was resisting or denying any such right on the part of the Trustee and any duty on his part to produce a copy. A " proceeding " was instituted seeking to establish the liability denied. A further " proceeding " in the form of the Cross-Claim , it may be accepted, was also instituted. The very forensic purpose of the Cross-Claim was to resist the demand for the production of a copy of the documents. Such conduct, it is considered, falls within s 199A(3)(a). The duty or obligation to produce a copy of the documents can properly be characterised as a " liability " owed to the company. 78 It is also separately considered that the fact that that finding has been made in resolution of the Cross-Claim does not lead to any different conclusion as to the application of s 199A(3)(a). The Cross-Claim was but the vehicle whereby it was found that Mr Rickus was under a " liability owed to the company ". It may be considered to be a curious result if a director of a company could otherwise escape the application of s 199A(3)(a) by simply filing a Cross-Claim in any " proceeding " in which a " liability " is sought to be established and inviting the Court to enter judgment -- either for or against him -- in the Cross-Claim and not the originating application. The object or purpose of s 199A(3) could, by such a means, potentially be thwarted. 79 It is thus considered that s 199A(3)(a) precludes an indemnity being given in respect to the legal costs presently in issue. Whether or not either the Deed or the Constitution are otherwise to be construed as conferring an indemnity, both the Deed and the Constitution are expressed to be subject to that which is " permitted by law ". Section 199A(3)(a) and s 199A(2)(a) preclude the indemnity now claimed. Mr Rickus was under a " liability owed to the company " to produce a copy of the documents when requested. 80 This conclusion, it should be noted, is not dependent upon the solution proffered on behalf of the Trustee during the course of oral submissions -- namely that the order as made on 28 July 2008 (that leave be given to the Trustee to discontinue its claim for relief) was an order that had not formally been entered. The resolution as to whether s 199A(3)(a) precludes the indemnity sought to be relied upon by Mr Rickus should not depend upon an accident or inadvertence as to whether or not an order has or has not been entered. 81 Whether a chairman is under any different duty need not be resolved. Whether or not there is a duty upon a director (or a chairman) in other circumstances to disclose the steps being taken by a regulator or the information provided to a regulator in relation to a company pursuant to a statutory demand, let alone a duty to produce a copy of those documents provided to a regulator, will depend upon the facts and circumstances of individual cases. But they should be briefly mentioned -- only to be rejected. 83 One further basis upon which the duty was sought to be founded was the contention that Mr Rickus was an agent of the Trustee. But when responding to the s 255 notice given to him in September 2006, Mr Rickus was not acting as the agent of the Trustee. The notice had been served upon him and it was his obligation to respond. 84 The other basis relied upon by the Trustee was that the documents provided by Mr Rickus were the property of the Trustee. As previously observed, it was not previously considered that an assertion as to property had been made out by the Trustee: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulation Authority [2008] FCA 828 at [45] , [2008] FCA 828 ; 169 FCR 483 at 494. No reason has been advanced during the course of the present hearing to reach any contrary conclusion. Although this provision received scant attention during the course of oral submissions, and was not adverted to at all in the Reply to the Defence to the Cross-Claim , it was a provision to which reference was made in written submissions and leave was sought (if necessary) to amend to enable reliance to be placed upon it. 86 It is also an argument which can be shortly dealt with. " Liability " is not a term defined by s 10 of the 1993 Act. 88 By its terms, s 299 provides that no " liability " is incurred by Mr Rickus by reason of his compliance with the s 255 notice and the provision by him of books and documents. So construed, it is simply a provision which provides that a person who complies with a requirement imposed by the Act is not thereby exposed to any " liability to any other person ". Had compliance with the statutory demand exposed Mr Rickus to a claim (for example) of breach of duty, s 255 would have prevented him being liable for that breach. 89 But s 299 is not a provision which absolves a person upon whom a s 255 notice has been served from all other duties or requirements otherwise imposed upon him. Whatever other obligations or duties are imposed upon Mr Rickus, they remain. 90 It is thus not considered that s 299 is of present application and is not considered as a reason for denying the existence of the " liability " relied upon by the Trustee, namely the " liability " to provide to the Trustee a copy of the documents given by him to the Authority. Had leave been required to amend the Reply to expressly raise reliance upon s 299, leave would have been granted, but reliance upon s 299 was in any event misplaced. DISCONTINUANCE: COSTS TO BE PAID? To Mr Rickus it may not have mattered whether he recovered his costs by reason of his indemnity or by reason of any order that he be paid his costs. Indeed, it was understood to be Mr Rickus' submission that it mattered not whether he won or lost the argument as to whether he was under any duty to provide a copy of the documents to the Trustee -- if he won, he would most probably have been entitled to an order for costs; if he lost, his legal costs incurred in losing the argument would nevertheless have remained embraced by the indemnity . 93 All parties accepted that the Court has a discretion as to the making of an order for costs where an application is discontinued. The costs in issue are those incurred subsequent to November 2007. 95 Such amendments by the Applicants to their Application and Statement of Claim as occurred prior to November 2007 may, for present purposes, be disregarded. Such costs as were incurred prior to that date will be incorporated within the costs order as made on 26 November 2007. Even after that date, however, there were further amendments by way of either Amended Applications or Amended Statements of Claim being those filed in October, November and December 2007 and April and May 2008. 96 One common claim, however, remained constant throughout the evolution of the Applicants' pleadings -- namely the claim for the production of a copy of the documents produced by Mr Rickus to the Authority. And Senior Counsel on behalf of Mr Rickus accepted that the bulk of the legal costs were incurred in respect to that claim for relief. 97 The contention of Mr Rickus, however, remains one of substance. The constant amendment of the Applicants' Statement of Claim, and the varying bases upon which it was contended that Mr Rickus should return the documents, exposed him to legal costs. 98 Contrary to the submission of Mr Rickus, there is no " general rule " that a party who discontinues a proceeding with the leave of the Court pursuant to O 22 r 2(1)(d) of the Federal Court Rules should normally pay the costs occasioned by the discontinuance. It may be accepted that a Court will normally allow a party to discontinue a proceeding if he wants to, provided no injustice will be caused to his opponent. " It is not desirable that a plaintiff should be compelled to litigate against his will ": O'Neill v Mann [2000] FCA 1680 at [11] per Finn J. But there is no " general rule ", such as suggested on behalf of Mr Rickus, and the order as to costs remains in the discretion of the Court: Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where there has been no hearing on the merits and where both parties have acted reasonably, a proper exercise of the discretion may be to make no order as to costs: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 625 per McHugh J. The approach there pursued by McHugh J has been accepted as an appropriate test to apply when proceedings are discontinued under O 22 r 2(1)(d): Mineralogy Pty Ltd v National Native Title Tribunal [1998] FCA 1700. It is no part of the function of the Court when a proceeding is discontinued " to make a prediction as to the outcome of a hypothetical case ": Clark v ING Life Ltd [2007] FCA 1960 at [16] per Rares J. 99 Had the entirety of the proceeding been concluded in July 2008 by the discontinuance by the Applicants of their claim for relief, it may well have been that an order for costs, or some part of the costs that had been incurred, would have been made in favour of Mr Rickus. This " underlying policy ", according to Her Honour, had not " hardened into a usual rule ": [2005] FCA 997 at [44] . But the " underlying policy " may well have indicated that Mr Rickus may have obtained a favourable costs order. Whether or not he was exposed to a duty or obligation to produce to the Trustee the documents or a copy of the documents he had been required to produce to the Authority, would have been an issue not requiring resolution. 100 The pursuit by Mr Rickus of his Cross-Claim , however, has required resolution of the principal issue otherwise left unresolved by the discontinuance of the claim previously advanced against him by the Trustee. Unlike other proceedings in which the Court may not be able to form an assessment -- or should not be called upon to make an assessment -- as to the prospects of success of an applicant who discontinues a proceeding, in the present proceeding that assessment can now be made. Had the Application been heard and resolved, the Trustee would have been entitled to the relief it sought. 101 On one view, it may thus be appropriate for an order to be made that Mr Rickus pay the entirety of the costs incurred since November 2007. That view would only be supported by the " open offer " made on behalf of the Trustee at the commencement of the present hearing of the Cross-Claim that the Trustee was prepared to seek no order as to costs if the proceeding was brought to finality on that day. A short adjournment was allowed to permit that offer to be considered. But the offer was rejected. An earlier like offer of compromise had been made in July 2008. Such an order admittedly does some disservice to the Trustee now that the liability of Mr Rickus to have produced the documents has been resolved, and also does some further disservice to the Trustee by reason of its open offers having been rejected. But the constantly changing basis upon which the Trustee asserted that Mr Rickus was under a duty to provide to it a copy of the documents, it is considered, requires being given some significance when making an order. No order should be made for the payment of costs on an indemnity basis. 103 No order is sought either that the Authority should pay costs or that it should be entitled to an order for costs in its favour. No order would have been made, even if sought. It was appropriate for the Authority to have sought an opportunity to make submissions and to have made the written submissions it later advanced. No additional costs were incurred by reason of those submissions having been filed. Up to 28 July 2008, each party is to bear its own costs of and incidental to leave being granted on that date to the Applicants to discontinue their proceeding. 2. The Cross-Claim as filed on 1 February 2008 is dismissed. 3. The Cross-Claimant is to pay the costs of the Cross Respondent of and incidental to the dismissal of the Cross-Claim . I certify that the preceding one hundred and five (105) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick.

statutory demand upon director for production of documents request by company for copy of documents provided to regulator non production duty of director to provide copy fiduciary duty proscriptive or prescriptive request for production indemnity for costs liability owed by director to company costs discontinuance with leave of court no general rule that discontinuing party should pay costs occasioned by discontinuance corporations practice and procedure

The applicant claims declaratory relief and orders that the decisions of the Review Board that the publication 'Defence of the Muslim Lands' and the publication 'Join the Caravan' be each classified as 'RC (Refused Classification)' be set aside and that the Review Board reconsider the Attorney-General's application for review of the classification of those publications in accordance with law. It is accepted, implicitly if not expressly, by the applicant that this would usually be sufficient to qualify the documents as privileged. However, the applicant submits that having regard to the identity of the recipient of the legal advice, namely, the Review Board, no privilege in the relevant documents came into existence. 5 That privilege in the documents did not arise is at the forefront of the applicant's submissions. If it did arise, the applicant concedes that while the legal person which would be entitled to the privilege in this case is the Commonwealth, the scope and content of governmental legal professional privilege is determined by reference to the particular government agency which is engaged in the communications. It follows, it submits, that the client for the purposes of the privilege is the Review Board, not the Commonwealth. The consequence, it is said, is that while the privilege is a privilege of the Commonwealth, it is limited to the emanation of the Commonwealth '... being the Review Board, the Classification Board and the statutory agency ...' constituted by subs 54(2) of the Act '... and that it could not be a privilege enjoyed by any other emanation of the Commonwealth'. 6 Finally, the applicant submits that if privilege in the documents did arise when received by officers of the Office of Film and Literature Classification, that privilege was impliedly waived when the Review Board 'used' the documents in disposing of the Attorney-General's applications or because the documents have been disclosed to the solicitor in the office of the Australian Government Solicitor ('AGS') who acts for the Attorney-General in these proceedings. The Review Board was obliged to disclose the advice to the applicant as a matter of procedural fairness. This submission is developed in the following way. It is submitted that in proceedings of a statutory board or tribunal in which there is an applicant and a contradictor, the perfect administration of justice is advanced and the operation of the rule of law broadened by the tribunal or board inviting and considering submissions on the questions of law it must address. In the event that the tribunal or board considers it desirable to obtain legal advice on the matter, the perfect administration of justice is advanced and the operation of the rule of law broadened by the tribunal or board disclosing that advice to the parties and asking for submissions on it. 9 The consequence, the applicant submits, is that the public interests which support legal professional privilege when the communications are with officers of government are served by denying the privilege to communications with a statutory tribunal or board where there is an applicant and contradictor. 10 Summarily, the applicant submits that, where the subject matter concerns the disposition of an application to a statutory tribunal or board, in this case applications by the Attorney-General, the client is that statutory tribunal or board and the client is obliged to operate autonomously from ministerial government and to accord natural justice, the denial of privilege in communications accords with first principle. In support of this submission, it is pointed out that there is no mechanism of accountability for error by such a body other than judicial review. It follows, so the applicant submits, that privilege should not be extended where that extension may have the effect of diminishing the scope for supervision of such a body by the courts. 11 Counsel for the applicant referred me to the decision of a Full Court of this Court in Carlos v Minister for Immigration & Multicultural Affairs [2001] FCA 1087 ; (2001) 113 FCR 456 at [37] --- [39] in support of the contention that there cannot be privilege of the type asserted where the body involved is obliged to accord natural justice. However, I have not found this reference to be of any real assistance, presumably because in dealing with the question of disclosure of a particular document, the Court in Carlos was not concerned with broad principles of natural justice, nor was it concerned with issues of privilege. The focus of the passage relied on by the applicant is not a distinction between the provision of information to a decision-maker from an internal or external source, but rather a distinction between the provision of factual material that is relevant to the decision, and the provision of information which is not related to the facts of the matter. 12 The Attorney-General's response to the applicant's primary submission is relatively simple. The documents that are the subject of the applicant's motion were clearly brought into existence for the dominant purpose of providing legal advice to the Review Board. The fact that the advice was sought in the context of the Review Board's exercise of its statutory powers does not in any way impact upon the dominant purpose for which the documents were created, nor does it preclude a claim of privilege being made in respect of them. Support for this, he submits, can be found in the majority judgments in Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54, especially Mason CJ and Wilson J at 63 --- 64 and Brennan J at 74 --- 75. 13 The Attorney-General submits the fact that Waterford was decided at a time when the sole purpose test was the accepted test for determining legal professional privilege claims, does not impact upon the principles expressed on this issue. I was referred to Webb v Commissioner of Taxation (1993) 44 FCR 312 where Cooper J considered the comments of Mason CJ and Wilson J, and Brennan J in Waterford to support the conclusion that 'the fact that advice relates to the exercise of a statutory power or the performance of a statutory duty or function does not preclude legal professional privilege attaching to it' (at 317). Reference was also made to Rio Tinto , in particular [67] from which the quotation in [7] supra was extracted. 14 In response to the weight which the applicant placed on the fact that the Review Board had before it a 'contradictor', the Attorney-General observes that other than applying for review of the decision, the Attorney-General did not take an active role in the review process. In any event, it is submitted that many areas of government administration involve the making of statutory decisions that affect persons with competing interests but that is no reason to deny to the decision-makers concerned the right to acquire legal advice that is privileged. 15 He also submits that, contrary to the applicant's submissions, there is no significance in the fact that the Review Board has review functions. For example, an authorised review officer in Centrelink has statutory review functions but may wish to obtain legal advice about her or his powers. There is no reason that the nature of the powers being of review preclude the possibility for privilege arising. 16 The Attorney-General further submits that the privilege which he says arises in relation to these documents is the privilege of the Commonwealth. The Classification Board and the Review Board are authorities that exercise their respective statutory powers independently of the government. Notwithstanding the independence these bodies have in terms of their decision-making functions, neither the Classification Board nor the Review Board has a legal or juristic status that is independent of the Commonwealth. Accordingly, where advice has been sought and obtained by the Review Board, the Attorney-General submits that the Commonwealth is the body that holds the privilege in respect of the advice and that he is entitled to make the claim of privilege on its behalf. 18 In relation to its contention of implied waiver through the voluntary disclosure of the relevant communications to the AGS solicitor acting for the Attorney-General in these proceedings, the applicant submits that the interests of the Attorney-General in the proceedings before the Review Board were adversarial to those of the applicant in these proceedings. Moreover, the provisions of s 55ZH of the Judiciary Act 1903 (Cth), in particular subs (4) thereof, do not prevent such waiver. There would be no issue waiver because the decision-maker would not have done anything inconsistent with the maintenance of the privilege. First, that the Review Board is but an emanation of the Commonwealth. This is not a case of common interest, it is a case of single interest and disclosure only within one body politic. Second, the disclosure was not inconsistent with the maintenance of the privilege. Third, the disclosure is, in any event, protected from waiver by subs 55ZH(4) of the Judiciary Act 1903 (Cth). The applicant's submissions were framed on the basis that it would be wrong to extend the principle of privilege to communications brought into existence for the dominant purpose of seeking or providing legal advice by or to a statutory board or tribunal required by its statute to operate autonomously from the rest of the executive government. However, I see this issue not so much as an extension of the principle enunciated in Waterford but an attempt to carve out of the reasoning processes of the members of the High Court in that case, an exception which is not there; in other words, to read what their Honours said as containing some implied exception so that it is not to be read as applying to staff involved with statutory boards or tribunals, such as staff of the OFLC, the statutory agency which provides secretariat support to the Review Board. I am unable to read into Waterford any such exception. 22 It follows, in my view, that the documents are privileged. 23 It further follows, in my view, that the privilege holder is the Commonwealth. As indicated above, the applicant concedes as much but submits that because the client is the Review Board, the privilege is confined or limited to an emanation of the Commonwealth and does not extend for the benefit of any other emanation of the Commonwealth. The applicant seeks to find support for the submission in the provisions of s 55ZH of the Judiciary Act 1903 (Cth) and cl 10 of the Legal Services Directions 2005 made pursuant to s 55ZH of that Act. Those provisions, it submits, would be rendered otiose if the Commonwealth's privilege was not confined or limited to the Review Board but extended to all its emanations. I do not agree. While cl 10 of the Legal Services Directions 2005 is confined to sharing of legal advice within government, subs 55ZH(1) of the Judiciary Act 1903 (Cth) is not confined to cl 10 of the Legal Services Directions 2005 but extends to any requirement of a Legal Services Direction of the kind described whether the person to whom the information is being provided or the document is being produced is within government or not. Moreover, having regard to the definition of 'Commonwealth legal work' in subs 55ZF(3), in particular sub-par (b)(iii), subs 55ZH(2) is clearly not confined to the provision of information or the production of a document to the Attorney-General, or to a person authorised by him, in which Commonwealth privilege already subsists. So understood, a provision such as a subs 55ZH(4) is necessary to prevent waiver of privilege where the privilege holder is not the Commonwealth. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect ... What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large. Accordingly, other cases in which implied waiver has been considered 'provide limited guidance unless they arise out of similar facts'. 26 In applying Mann v Carnell, the starting point must be, in the words of Young J in AWB Ltd v The Honourable Terence Rhoderic Hudson Cole (No. 5) [2006] FCA 1234 (at [134]), 'an analysis of the disclosures or other acts or omissions of the party claiming privilege that are said to be inconsistent with the maintenance of confidentiality in the privileged material'. The conduct of the Review Board in relation to the documents in question has in no way been inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. The existence of the documents was properly disclosed in the course of discovery in these proceedings, pursuant to a request for 'all documents considered by the [Review Board] in making their decision subject of the Application'. The reference by the solicitor for the Attorney-General to the advice in this context is not sufficient to constitute a waiver of privilege in respect of the documents. 27 Inherent in the passage quoted from the Full Court's judgment in Rio Tinto at [19] supra, is the conclusion that the act of using legal advice in a way that contributes to a statutory decision does not itself constitute a waiver of privilege. This conclusion was also at least implicit in Waterford : there would have been no point in allowing legal privilege in respect of communications to persons exercising statutory powers if consideration of the advice in the course of exercising those powers would effect a waiver of the advice. 28 The applicant advanced an argument based upon the judgment of Lee J in Candacal Pty Ltd v Industry Research and Development Board (2005) 223 ALR 284 at [85] --- [87]. If his Honour is to be understood as saying that the act of considering legal advice in the course of exercising statutory power necessarily effects a waiver because the advice is taken to be 'incorporated' into the decision, it is inconsistent with the above authorities and cannot be accepted. There may be cases where a statutory decision-maker does some positive act to rely upon advice to support its decision (which is one possible construction of Candacal ) . Whether or not this would constitute a waiver is not material to the present case because nothing done by the Review Board reveals that it has done any positive act of reliance upon the legal advice it received making it inconsistent for it to maintain the confidentiality in the communications. 30 I cannot agree, and for the following reasons. 31 First, there is no 'disclosure' outside the Commonwealth. The very concept of 'disclosure' in this context is fundamentally at odds with the nature of the Review Board as an emanation of the Commonwealth, the Attorney-General's Department as an emanation of the Commonwealth and the Attorney-General as a Minister of the Commonwealth. This is not a case of common interest; it is a case of single interest and disclosure only within one body politic. 32 Secondly, even if the delivery of the documents by the Attorney-General's Department to the AGS solicitor for the Attorney-General could be characterised as a 'disclosure', any such disclosure was not conduct that was inconsistent with the maintenance of the privilege. The privilege was that of the body politic, the Australian Capital Territory. The head of the Territory's Executive, the Chief Minister, in response to a question raised by a member of the Territory's Legislative Assembly as to the reasonableness of the conduct of the Territory in relation to certain litigation, gave the member, confidentially, access to legal advice that had been given to the Territory, and on the basis of which it had acted. Although "disclosure to a third party" may be a convenient rubric under which to discuss many problems of this nature, it represents, at the least, an over-simplification of the circumstances of the present case. (Emphasis added. For one thing, the Attorney-General (or the Department for that matter) did not obtain a copy of the advice prior to the Review Board making its decision. 34 Further, and significantly for present purposes, references to forensic advantage place a gloss on the nature of the Attorney-General's role in applying for review of these decisions. The Attorney-General was not a 'contradictor' in these applications, in the sense in which that word is traditionally used. Other than the power to request a review of the decisions, the Attorney-General took no active part in the proceedings before the Review Board. Further, it is clear from subs 42(2) of the Act, pursuant to which the Attorney 'must' apply for review where a 'Participating Minister' asks him to do so, that on some occasions the Attorney-General does not even have a discretion as to whether or not to trigger the review process. 35 The motion must be dismissed. The parties agree that the costs of the motion should be reserved.

discovery and inspection of documents legal professional privilege where review board obtained and used legal advice whether duty to accord procedural fairness precludes the creation of privilege which would otherwise attach whether privilege waived by use of the advice in decision-making process whether privilege waived by disclosure of advice within the commonwealth or to attorney-general procedure

Evidence in one has been treated as evidence in the other. The central question in controversy is whether work done by employees of John Holland Pty Ltd ("John Holland") at the Abbot Point Coal Terminal ("the Terminal") located at Abbot Point approximately 30 kilometres north of Bowen, and generally described as the marine or off-shore expansion works undertaken by the Terminal owner, Ports Corporation Queensland ("PCQ"), by contract with John Holland, as part of works to expand the annual throughput capacity of the Terminal to 50 million tonnes per annum ("50mtpa") falls, as a matter of construction, within the terms of a greenfields workplace agreement made between John Holland and the Australian Workers' Union (the "AWU"), described as the John Holland Pty Ltd --- Abbots Point Coal Terminal Expansion Workplace Agreement 2008 (referred to in these reasons, alternatively, as the "Workplace Expansion Agreement" or "the Agreement"). If so, the Agreement covers the work carried out on the relevant premises and is binding upon the AWU for the purposes of s 760 of the Workplace Relations Act 1996 (Cth) ("the Act") to the exclusion of other Unions with the result that officials of other Unions or Organisations are not entitled to rely upon s 760 of the Act as the source of a right to enter the premises for the purpose of holding discussions with employees performing work under the Workplace Expansion Agreement, although those employees may be eligible to become members of the Union or organisation represented by the relevant officials. Industrial engagement in relation to the relevant work on site is thus a function of the relationship between the employer, the employees and the AWU for the term of the Agreement according to its terms. The Workplace Expansion Agreement was entered into between 14 and 17 April 2008 and commenced operation on 17 April 2008. The Automotive, Food, Metals Engineering, Printing and Kindred Industries Union (the "AMWU"); the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the "CEPU'); the Electrical Trade Union of Employees Queensland Branch Union (the "ETU"); and the Construction, Forestry, Mining and Energy Union (the "CFMEU") (collectively described as "the Unions") contend that the work undertaken by John Holland employees on an area of Terminal land on the eastern side of the Terminal described as the X50 site (where X signifies expansion) are differentiated from other Terminal expansion works by separate signage, a dividing boundary fence and a separate secure access gate. The Unions contend that the Workplace Expansion Agreement does not apply so as to regulate the terms and conditions of work of John Holland employees at the X50 site for the purposes of s 760 of the Workplace Relations Act 1996 (Cth), because, by the express terms of the Agreement, it is limited in its application to a single expansion project " at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion" (cl 4.1 of the Agreement). The Unions give particular emphasis to the word "at" in that phrase as signifying the geographical limitation in the application of the Agreement to a specific site or project which, in the Agreement, was collectively described as the X25 and X30 Expansion. The "X25 and X30 Expansion" is therefore said to signify a site specific project other than the differentiated X50 project. The Unions contend that the "X25 and X30 Expansion" contemplated by the Workplace Expansion Agreement when entered into in April 2008 comprehended, by the language of the Agreement, an expansion project which, it is said, is undertaken on the western on-shore side of the Terminal separated from the X50 site by the dividing boundary fence, separate signage and a separate secure point of access. John Holland contends that it undertakes works at the Terminal under two contracts. One, not relevant to these proceedings, concerns construction work undertaken on the western side of the Terminal to expand throughput capacity from 21mtpa to 25mtpa. The works comprehended by that contract are understood, it is said, as the "X25 Expansion". The second contract was awarded to John Holland on 29 July 2008 and is described in PCQ's letter of acceptance as "Contract No. Q08-004 for the construction of X50 Marine Works". John Holland says, put simply, that there is symmetry in the description of the scope of works to be undertaken, between the invitation to tender issued by PCQ on 21 December 2007; Contract Q08-004 ("the Contract") by reference to the technical specification defining the works; and the Workplace Expansion Agreement. John Holland says the question of whether the Agreement covers the work carried out by its employees on site is to be determined by examining the content of Appendix 1 to the Workplace Expansion Agreement. Although cl 4.1 contains the phrase given emphasis by the Unions, the term "X25 and X30" in that phrase is immediately followed by the phrase "as outlined in Appendix A". Although there is no "Appendix A" to the Agreement, John Holland says "Appendix 1" to the Agreement outlines a scope of works which is consistent with the tender description and the Contract, and accurately describes the work its employees are actually performing on site under the Contract. John Holland says the Appendix 1 tasks were to form part of a staged expansion of the Terminal to 30mtpa, which explains the reference to X30 in cl 4.1 of the Agreement. However, John Holland contends that PCQ in response to market demand abandoned a staged approach to expansion of the Terminal through phases X30, X35 and X50 and elected to expand the throughput capacity of the Terminal directly from 25mtpa to 50mtpa with the result, it is said, that the off-shore marine works described in the tender letter and Appendix 1 to the Agreement came to be described by PCQ as works forming part of its "X50 Expansion". That description of the expansion project was subsequently adopted in the Contract. The Unions contend that there is work undertaken on the X50 site that is not within the description contained in Appendix 1 (assuming that Appendix 1 is treated as Appendix A for the purposes of cl 4.1) which suggests that the Contract scope of works finally negotiated after the making of the Workplace Expansion Agreement, goes beyond the scope of works in the Agreement. Moreover, they say that since there is no reference to a separate X50 project or "X50 Expansion" in the Agreement, the parties when describing the expansion project as an X25 and X30 Expansion must be taken, in a practical sense, to have expressed their clear intention that their greenfields workplace engagement was limited to a defined expansion project then contemplated as an expansion to achieve a Terminal throughput capacity of 25mtpa and 30mtpa. They say the PCQ project description "X50 Expansion" was not a descriptive project term used outside PCQ at 17 April 2008 and therefore not a common term of reference used by the parties to the Agreement at April 2008, which informs the proper construction of the Agreement. The Unions also contend that John Holland has failed to adduce the necessary evidence to support the factual foundations for the relief claimed by it and has failed to demonstrate that the work carried out at the X50 site is covered by the Contract, forms part of PCQ's X50 Expansion project and is comprehensively covered by the Workplace Expansion Agreement. The Unions also contend that on 3 November 2008, approximately seven months after the Agreement was entered into, John Holland put a proposal to their employees at the X25 and X50 work sites to vary the Agreement so as to, among other things, delete the existing Appendix 1 described as "Definition of Project" and bearing the subheading "The Scope of Works for X30 includes", and substitute a new Appendix 1 defining the project under a subheading "The Scope of Works for X50 includes the following" with a new textual description of the project works. The proposed amendment was rejected by the employees. The Unions contend that the conduct of proposing the amendment is inconsistent with John Holland's notion that Appendix 1 of the Agreement as struck on 17 April 2008 clearly describes and thus covers work said to be carried out under the Contract on the X50 site. The Unions further say that the attempt to amend Appendix 1 informed their belief that the Agreement did not cover work carried out on the X50 work site. The Unions accept that if the proper construction of the Workplace Expansion Agreement is that it applies to work undertaken by John Holland employees at the X50 site under the Contract as part of PCQ's X50 Expansion program, officials of the Unions are not entitled to enter the site in reliance upon s 760 of the Act for the purpose of holding discussions with John Holland employees carrying out that work, as the Agreement, binding upon the AWU, is not binding upon the AMWU, CEPU, ETU or CFMEU and thus there are no "eligible employees" of John Holland on site for the purposes of s 760 of the Act. The relevant awards are the National Metal and Engineering On-site Construction Award 2002 (the "Metals Award"), the Electrical Contracting Industry Award 2003 ("the NAPSA") and the National Building and Construction Industry Award 2000 ("the Construction Award"). John Holland concedes that some of its employees are eligible to become members of the AMWU and the CFMEU, although there are no "eligible employees" in the definitional sense of s 760 of the Act. It says that it has no employees eligible to become members of the CEPU or ETU, and that the NAPSA, as a matter of construction of the Award, has no application to it in any event. A subsidiary question arises in relation to contractors to John Holland whose employees may be undertaking electrical work on the X50 site within the Contract scope of works. On 19 November 2008, Mr Bradley and Mr Lowth, officials of the AMWU; Mr Ong, an official of the CEPU and ETU; and Mr Robinson, an official of the CFMEU entered the X50 work site. Mr Bradley and Mr Lowth had sent by facsimile an entry notice to John Holland in reliance upon ss 738 and 760 of the Act. On 13 February 2009, Mr Robinson, Mr Lowth, Mr Ong and Mr Bradley entered the site and held discussions with employees of John Holland. They purported to do so under s 760 of the Act having issued notices to John Holland in reliance upon s 738 of the Act. On 5 March 2009, Mr Robinson and Mr Bradley entered the X50 work site and held discussions with John Holland employees having issued notices to John Holland in reliance upon s 738 of the Act so as to exercise a contended right of entry under s 760 of the Act. John Holland contends that each official, acting for and on behalf of the relevant Union, engaged in conduct in contravention of ss 767(1) and 768(1) of the Act. The Unions contend that each official exercised a valid right of entry and in the course of doing so and seeking to conduct discussions with John Holland employees, John Holland by its employees and in particular by Mr Ingham, contravened s 767(3) and s 767(7) of the Act. Section 760 falls within Division 6 of Part 15. Sections 767(1), 767(3), 767(7) and 768(1) are civil remedy provisions of the Act. John Holland accepts that by Mr Ingham and other employees, although not by reason of any conduct on the part of security officers employed by a third party or PCQ employees, it sought to prevent the Union officials from entering the X50 site to conduct discussions with its employees and directed the officials to leave the site on the footing that they had no right of entry and their conduct constituted trespass. The Unions assert that their officials entered the X50 site on the footing that they reasonably believed that the Agreement did not cover the work carried out on site by John Holland employees. The basis for these beliefs, the conduct of the parties and whether a person was actuated by an exculpatory honest and reasonable belief, is a further aspect of the controversy. Finally, a question arises as to whether industrial action was threatened, impending or probable for the purposes of s 39(1) of the Building and Construction Industry Improvement Act 2005 (Cth) (the "BCII Act"). The Workplace Relations Act 1996 (Cth) continues to apply to conduct that occurred prior to the repeal of the Act, by reason of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (Cth). The two proceedings heard together are these. In QUD63 of 2009, John Holland by its Further Amended Application filed on 28 April 2009 seeks declarations binding upon the CFMEU, CEPU, AMWU and AWU that the Workplace Expansion Agreement applies to work performed by its employees at PCQ's Abbot Point site in connection with PCQ's "X50 Expansion" project; the Workplace Expansion Agreement covers exhaustively all work performed by its employees at PCQ's Abbot Point site in connection with PCQ's X50 Expansion project under the Contract to the exclusion of any work which might be performed by members of the CFMEU, CEPU and AMWU; the Workplace Expansion Agreement is not binding on the CFMEU, CEPU and AMWU; and the CFMEU, CEPU and AMWU may not, by their servants, agents or officials enter the Abbot Point site under s 760 of the Act for the purpose of holding discussions with any employee of John Holland performing work under the Agreement. John Holland also seeks a declaration that Notices issued by the CFMEU and AMWU respectively on 20 November 2008 purporting to initiate a bargaining period in relation to John Holland's operations at PCQ's Abbot Point Terminal, pursuant to the X50 Expansion project, are invalid and of no effect; and an injunction restraining the CFMEU, CEPU and AMWU from engaging in industrial action in connection with John Holland's operations at the Abbot Point Terminal pursuant to the X50 Expansion project. John Holland seeks an order imposing a pecuniary penalty upon the CFMEU, CEPU and AMWU pursuant to s 769 of the Act in respect of contraventions of ss 767(1) and 768(1) of the Act. In proceeding QUD63 of 2009, John Holland had initially joined and sought relief against the Union officials, Robinson, Ong, Bradley and Lowth. Since each Union has accepted that its official acted within the scope of his authority in relation to all relevant conduct and the Union is thus vicariously liable for any contravention of ss 767(1) or 768(1) of the Act, John Holland by its Further Amended Application discontinued the proceeding against the individuals. By QUD66 of 2009, the AMWU, ETU and CFMEU and Messrs Bradley, Lowth, Ong and Robinson by their Amended Application filed on 5 May 2009 seek declarations that John Holland has contravened ss 767(3) and 767(7) in respect of conduct on the part of its employees in connection with the exercise by the officials of the Union of their contended right of entry to the site of the X50 Expansion works, on 19 November 2008, 13 February 2009 and 5 March 2009. The applicants in that proceeding seek an order pursuant to s 769 of the Act for the imposition of a pecuniary penalty upon John Holland in respect of each contravention and an order that John Holland pay Messrs Bradley, Lowth, Ong and Robinson compensation as the Court may determine. The applicants in QUD66 of 2009 had joined and sought relief against a second respondent, Mr Stephen Sasse, in the form of declarations that Mr Sasse had engaged in contraventions of ss 767(3) and 767(7) of the Act in respect of conduct on his part 19 November 2008, 13 February 2009 and 5 March 2009; and related relief. By their Amended Application the applicants have discontinued claims for relief against Mr Sasse. Having regard to the reformulation of the relief sought in each proceeding, the applicant John Holland in QUD63 of 2009 and the applicants in QUD66 of 2009 agreed to file amended applications identifying the specific relief pressed in each proceeding. Rather than amend the Statement of Claim in each proceeding, the parties in each proceeding elected to frame an agreed list of issues for determination in the proceedings, heard together. The agreed list of issues adopts definitional terms at cl 1, most of which are reflected in these reasons, and to the extent that there are other specific definitions, they are set out below. Can the NAPSA in any event apply to [John Holland]? With respect to those Relevant Employees who were employed by [John Holland] at the time of Mr Ong's entry on 18 November 2008 [19 November 2008] and 13 February 2009, were any of those persons a member of, or eligible to become a member of the ETU? Having regard to the answers to Questions 4, 5 and 6, did Mr Bradley, Mr Lowth, Mr Ong and/or Mr Robinson have a valid right of entry to the X50 work site on 18 November 2008, 13 February 2009, and/or 5 March 2009 pursuant to s.760 of the WR Act? However, issues will arise as to whether other persons (such as the unnamed security guard) were [John Holland's]agent. If yes, should the Court grant an injunction? The reference at point 9 of the Agreed Issues to ss 767(1) and 768(1) of the Act should be a reference to ss 767(3) and 767(7) of the Act. The Australian Building and Construction Commissioner (the "ABCC") has intervened in both proceedings pursuant to s 71 of the Building and Construction Industry Improvement Act 2005 (Cth) (the "BCII Act") and has made submissions on questions of law and some factual questions. The agreed issues are to be resolved separately from any question of the imposition of a pecuniary penalty arising out of any contravention of ss 767 or 768 of the Act that might be found to have occurred. Mr Stokoe is engaged by PCQ in the role of General Manager Construction. He has been engaged by PCQ since 4 July 2005 and is responsible for all works required to be undertaken to provide the Terminal with throughput capacity of 50mtpa. His responsibilities include the overview of all design phases of the expansion, the advertising and assessment of tenders, the letting of tenders and the overseeing of all construction work to deliver the works involved in the expansion. The Terminal is owned by PCQ and operated by "Abbot Point Bulk Coal". Over the years, PCQ has undertaken a number of construction projects to increase the capacity of the Terminal. In or around July 2006 when PCQ was originally planning the expansion of the Terminal, those expansions were intended to have several phases. Each phase was intended to represent an expansion of the capacity of the Terminal to facilitate the export of a particular number of million tonnes of coal per annum and the phase of the expansion was designated by an X. Accordingly, there were initial plans for an X21 Project, an X25 Project, an X30 Project and an X35 Project, with the balance of work required to complete the expansion described as the X50 Project. It became apparent during the construction of the X21 Project in or about January 2008 and shortly after the expansion works for the X25 Project were contracted to John Holland, that there was sufficient capacity demand from users to move directly to the expansion of the Terminal to 50mtpa. Accordingly, PCQ dispensed with the phased intervening expansions of the Terminal between X25 and X50. The work undertaken to expand the capacity of the Terminal beyond 25mtpa became described by reference to two categories of expansion work, namely, the X50 "on-shore" works and the X50 "off-shore" works. Mr Stokoe says that the reference to the "X50 off-shore" works was a reference to work to be carried out under Contract Q08-004. The tender process for the letting of a contract for these works was overseen by Mr Stokoe. It fell within his responsibility as General Manager Construction. On 21 December 2007, PCQ issued, by letter, an invitation to short-listed pre-qualified companies including John Holland to tender for construction of the off-shore works described in the invitation letter as the "Marine Works" (the "Invitation to Tender"). Mr Stokoe says the Invitation to Tender refers to the intended X30 expansion and includes within the scope of works to be constructed, the intended X30 and X35 works. The letter enclosed tender documents including a technical specification relating to structural, mechanical and electrical works (Appendix D). The letter provides that the Marine Works comprise the scope of works to be the subject of the proposed contract Q08-004. Accordingly, the scope of Contract No. Export of first coal over Berth 2 is required by 31 March 2010. At this stage, the shiploader is not included in this Tender but PCQ may later include the supply and installation of the shiploader within the scope of the Contract. The estimated quantity of fabricated steelwork is 1,050 tonnes. The diverter chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1. Mr Stokoe says that by March 2008 the expansion project was known and commonly referred to as the "X50 Expansion Project". On 29 July 2008, PCQ issued a Letter of Acceptance of John Holland's lump sum tender for the Contract. The letter notes that on 28 May 2008, PCQ had issued a "Letter of Intent" to contract with John Holland to enable it to commence early works prior to finalisation of the Contract in order to ensure PCQ's delivery schedule for the works was maintained. The letter of 29 July 2008 describes 10 categories of documents comprising the "Contract Documents" including a Technical Specification (Revision 3) dated 4 June 2008, Standard Specifications listed in an appendix to the Technical Specification and particular Drawings. Revision 3 of the Technical Specification is actually dated 3 June 2008 and is Exhibit MD-2 to the affidavit of Malcolm Davis sworn 5 March 2009. An earlier version of the Technical Specification, Revision 1, dated 30 April 2008, one month prior to the Letter of Intent of 28 May 2008, is Exhibit MD-3 to Mr Davis's affidavit of 5 March 2009. The site of the proposed works is within the boundaries of the existing operating terminal. The scope of Contract No. It will have an independent dolphin system and will be connected to the existing transfer tower platform via a new wharf bridge and widening to the transfer tower platform. The conveyor will be supported upon the existing jetty structure, which was originally constructed to support two conveyors. The Technical Specification then sets out specific requirements in relation to tubular pile fabrication (2.1.1), hammer and driving system performance (2.1.2), pile testing (2.1.3), pile tension anchors (2.1.4), marine fender systems (including such matters as the Berthing Dolphin Fender Systems and working load tension specifications for chain systems used in association with the Berthing Dolphins) (2.1.5) and quick release mooring hooks (2.2). Offshore conveyor galleries along the typical jetty, mounted upon new stainless steel plates welded to the existing headstock shoes, including conveyor cross-over ladders and platforms at approximately 264 metre centres. Offshore trestles and conveyor galleries with fully seated flooring at the offshore end of the conveyor where it rises to the existing C324 / C334 drive tower (the offshore transfer tower), including brake platform, and gravity take-up unit with fall arrester assembly. Modifications to the existing C324 / C334 drive tower to accept the new conveyor installation, and head end conveyor support, conveyor access, and chutework support structure within the tower. Trestles and clad truss conveyor galleries with fully sealed flooring from the tail end structure to the western-most tripper travel extent adjacent to the Berth 2 strongpoint. Continuously welded beam-type open conveyor galleries for the length of Berth 2, which support the conveyor and provide the running beams for the Shiploader SL2 tripper. Break platform, and gravity take-up unit with fall arrest assembly near the head end. Elevated, clad drive tower at the eastern end of Berth 2. This includes connection of new water services into existing pipework. Compressed air services for belt scraper air tensioners for C334 and C335. This includes connection of new air services into existing pipework. The scope of work for the relevant services is then further defined in detail in the specification. The Technical Specification of 30 April 2008 (Revision 1) is in precisely the same terms as those sections of Revision 3 of the Technical Specification of 3 June 2008 quoted at para [35] to para [41]. The electrical works are defined exhaustively at cl 2.5 of the Technical Specification. It is neither useful nor necessary to recite in these reasons the extensive and detailed requirements of the Technical Specification in relation to the electrical works. The works however involve the development and installation of a wharf substation fire suppression system. Clause 2.5.2 sets out the content of the electrical requirements for the wharf substation. Clause 2.5.3 sets out the content of communications network upgrades within the off-shore and on-shore substations. Clause 2.5.4 sets out the requirements in relation to the Conveyors including C334 --- Jetty Conveyor 2 and C335 --- Wharf Conveyor 2. Clause 2.5.5 sets out the requirements for the "Wharf and Berth 2 electrical services". Clause 2.5.6 describes the switchgear and motor control centre requirements under the heading "Installation of HV switchgear and 415V motor control centre". Clause 2.5.7 deals with the installation, testing and commissioning of transformers in accordance with the specifications and drawings, and cl 2.5.8 addresses the requirements for classes of PLC cabinets. Clause 2.5.9 addresses the requirements for communications network equipment. The remaining subsections of cl 2.5 address the content of specific electrical requirements all related to the X50 Expansion works. The description of the electrical works in Revision 3 is in precisely the same terms as Revision 1 of the Technical Specification. Mr Stokoe says that PCQ is presently undertaking an expansion of the Terminal to increase throughput capacity from 21mtpa to 25mtpa known as the "X25 Expansion project" and an expansion to increase the Terminal's throughput capacity from 25mtpa to 50mtpa known as the "X50 Expansion project". Mr Stokoe says that all work which is being carried out at the Terminal in connection with the X25 Expansion project is taking place on the Terminal site in areas that are marked by signs and known as the "X25 work site". Mr Stokoe says that John Holland is engaged to carry out the work necessary to undertake the off-shore component of PCQ's X50 Expansion project and that work is taking place on the eastern side of the Terminal in areas marked by signs and collectively known as the "X50 work site". Mr Stokoe says that all work which has been performed to date by John Holland at the X50 work site forms part of PCQ's X50 Expansion project pursuant to two contracts between PCQ and John Holland, namely, Contract Q08-004 and a second contract, Contract Q08-005, described as the "X50 Expansion Shiploader SL2 Contract" ("the Shiploader Contract"). Mr Stokoe says that at present, John Holland is not performing any work at the X50 work site pursuant to the Shiploader Contract and all works undertaken by John Holland at the X50 work site are undertaken pursuant to Contract Q08-004. Mr Stokoe gives this further evidence. PCQ is the owner of the X50 work site. PCQ is the owner and occupier of the whole of that work site with the exception of three areas described as "Lay Down Area 1", "Lay Down Area 2" and a third area described as an amenity and administration area comprising buildings erected by John Holland. John Holland is the occupier of these three areas under the Contract. There is no "X30" work site at the Terminal and no "X30" signs have been erected at the Terminal. There is no "X30 Project" in the same sense that there is an X25 Project and an X50 Project. In various planning phases, PCQ did intend to undertake an X30 Expansion project. However, as things evolved, what was intended to be a separate X30 Expansion stage simply became a part of, and to that extent indivisible from, PCQ's current X50 Expansion project. There was no need to stage the works separately. Instead, PCQ elected to "roll" the intended X30 Expansion works into the off-shore aspect of the X50 Expansion project. The parties to the Agreement are the AWU, John Holland and all employees of John Holland "engaged in the classifications contained in [the] Agreement, unless excluded by Clause 4.2". The definition of "Classifications" is set out in Appendix 3. Appendix 2 describes the wages, allowances and escalations applicable to the Classifications. This Agreement is stand alone and insular in nature and has been developed by the Parties to reflect and accommodate the specific circumstances of the Project . The Parties have in drafting this document considered all relevant aspects relating to the employee entitlements. Clause 8 describes aspects of the engagement of persons on the project including weekly or casual engagement and flexibility and skill levels reflected in wage rates for each classification. Appendix 1 defines the scope of works "for X25" and "for X30". The scope of works for X25 is uncontroversial. The works consist of works in relation to a "Dump Station" which involves work in relation to "Dump Station 1 and Dump Station 2". The works also relate to an "In Loading System", a "Stockyard Upgrade" and an "Out Inloading upgrade". It is common ground that those works are undertaken on the western side of the Terminal. Two splices will be required at site per pile (i.e. (Note, no additional piling is required on the approach jetty). The estimated quantity of fabricated steelwork is 1,050 tonnes. The head chute shall be capable of feeding to either C335 on Berth 2 or existing C325 on Berth 1. Wharf Conveyor C335 complete including all pulleys, idlers, drive unit, conveyor belt, take up, chutes, scrapers, sensors, guarding, etc. PCQ issued the Invitation to Tender for work so described in the invitation on 21 December 2007. PCQ contemplated the submission of tenders to undertake those works by 22 February 2008, an oral presentation by the tenderer on 3 March 2008 and the selection of a contractor by 28 March 2008. In April 2008, John Holland and the AWU signed the Workplace Expansion Agreement which closely adopts the description of works reflected in the Invitation to Tender. By 28 May 2008 PCQ had issued a Letter of Intent to contract with John Holland for the expansion works subject to the finalisation of the formal Contract. The acceptance of John Holland's tender was awarded on 29 July 2008. The Technical Specification incorporated within the Contract recites the content of the detailed specific requirements to be met by John Holland in performing all work required to be undertaken to complete the off-shore or marine works as part of an expansion of the Terminal to 50mtpa. Unsurprisingly, the Technical Specification recites with the focused precision of construction lawyers or consulting engineers, the specific burden of the work tasks to be done or functional outcomes to be achieved in respect of each category of activity relating to marine structural works, mechanical works and electrical works concerning Berth 2, Conveyor C334 and Conveyor C335 and associated infrastructure works. John Holland and the AWU reached an agreement that was to provide comprehensively for the wages and conditions of employment of John Holland employees "to reflect and accommodate the specific circumstances of the Project" as applied to the parties at the X25 and X30 Expansion of the Terminal. Whilst it is true that the Agreement recites that it shall so apply, the content of the terms X25 and X30 are "outlined" by an appendix mis-described as Appendix A. The relevant appendix "outlining" those expansions for the purposes of the Agreement, can only be Appendix 1. Whilst it is also true that PCQ contemplated a phased expansion of the Terminal transitioning from X25 to X30 as a project distinct from other incremental phases of expansion such as X35 and ultimately X50, Appendix 1, as between the parties to the Agreement, gives qualifying meaning to the reference to "X30 Expansion" by defining the scope of the works comprising the 30mtpa expansion to be undertaken by the employees, described in the Agreement as the "X30 Expansion". Those works are treated by the Agreement as separate and distinct from the X25 Expansion located on the on-shore western side of the Terminal. The Agreement treats the works described as the X30 Expansion and defined by Appendix 1 as X30, as off-shore marine works consistent with the description of the scope of works in the Invitation to Tender. The off-shore or Marine Works are undertaken on the eastern side of the Terminal as part of the X50 Expansion. The Technical Specification recites the scope of works to be undertaken, for the purposes of that document, with the detailed and orthodox specificity that such a document requires. The parties to the Workplace Expansion Agreement chose by that document not to record that degree of specificity within the description of the scope of works defining what is meant by "X30 Expansion". That does not mean that the parties did not intend the Workplace Expansion Agreement to comprehensively cover or regulate the sanctity of their industrial relationship in the performance of the necessary actual work falling within the descriptions or categories of work identified by them by reference to the bullet points they adopted under "Scope of Works for X30" at [50]. It is true that the Agreement uses the terms "the Project" and "Definition of Project" and "other project". It is also true that the Agreement sites the project at PCQ's Terminal X25 and X30 Expansion. However, the expansion work must necessarily take place at a place and in this case, the place is PCQ's infrastructure facility of the Abbot Point Coal Terminal. Some of that work, such as the X25 Expansion work to Dump Stations, an In-loading system, Stockyard upgrades and other Upgrades occurs on the western on-shore side of the Terminal and other expansion work to the capacity of the Terminal occurs elsewhere on site. The circumstance that determines the place where work will be done is the nature of the expansion works. In this case, the work described in Appendix 1 to the Agreement under the reference X30 describes, in an inclusive way, expansion works to existing off-shore assets and the construction of new off-shore facilities involving a new Berth, a new Jetty Conveyor, an elevated Conveyor and associated works for the integration of those assets with other existing infrastructure assets or new assets to be developed as part of the off-shore expansion. That work, in fact, occurs on the eastern side of the Terminal. Mr Stokoe says that he is very familiar with the off-shore component of the X50 Expansion. He says that he has read Appendix 1 of the Workplace Expansion Agreement. He says that the scope of works for X25 accurately defines the work undertaken by John Holland at the X25 work site pursuant to PCQ's contract with John Holland for that purpose (Contract Q08-001). He also says that the scope of works for X30 described at Appendix 1 accurately defines the work which is performed and to be performed by John Holland at the X50 work site pursuant to Contract Q08-004 in undertaking the off-shore component of PCQ's X50 Expansion. Mr Stokoe says that there is no separate X30 Expansion project and no project exists by that name. He asserts in evidence that the intended X30 and X35 phased expansion was abandoned and combined to create the X50 Expansion project. Mr Steven Ingham gave evidence on behalf of John Holland. Mr Ingham is employed by John Holland in the role of Employee Relations Manager and has been employed by John Holland since 10 June 2008. Mr Ingham says that he is familiar with the layout of the Terminal and particularly the site of the X25 works carried out on the western on-shore part of the Terminal and the X50 site where the off-shore works are undertaken. He says there is no area at the Terminal designated either by PCQ or John Holland as an "X30 work site" although there are areas designated by PCQ and John Holland as the "X25 work site" and "X50 work site". Mr Ingham has provided a description of the Terminal and the method of access to the X25 and X50 work sites supported by a number of photographs and a plan marked "SI-1" to his affidavit sworn 11 March 2009. Mr Ingham says that the Terminal is approached along Abbot Point Road where an access seeker will reach a sign indicating a turnoff to the western access gate to the Terminal, marked "John Holland X25" with an arrow indicating the western direction of travel. The sign is located on the Abbot Point Road before the western access turnoff. The western access road takes an access seeker to the western on-shore side of the Terminal designated as the X25 work site and a secure access gate to the work site. The X25 work site contains a coal stockpile and a coal conveyor. Work is being undertaken on site in relation to Dump Stations and loading systems. Mr Ingham's map demonstrates the western inland site of these works. All works undertaken by John Holland in connection with PCQ's X25 Expansion project are performed within this area. If the access seeker continues along Abbot Point Road, the access seeker will reach a sign marked "John Holland X50" with an arrow pointing in an easterly direction. There is also a sign marked "Eastern Access" with a sign pointing in an easterly direction. The access seeker will, by following the signs, reach a secure access gate to the site of the off-shore expansion works forming part of the X50 Expansion. The site is known as the "X50 work site". The site consists of three distinct work areas. Work Area 1, known as Lay Down Area 1, is a large area located adjacent to the secure access gate and extending for a significant area into the site. Lay Down Area 2 is also known as the pile splice yard and is located on and close to the coastline. In this area, piles are spliced together for use in the construction of the new berth, Berth 2. Work Area 3 is the construction site for the new berth. A road approximately two to three kilometres long links the X50 work site secure access gate with Work Areas 1 and 2. Work area 3 is immediately beyond work area 2. Mr Ingham's map reveals and his evidence describes a fence adjacent to the link road that marks out one boundary of the X25 work site (that is, works undertaken west of the fence) and the X50 work site (that is, works undertaken on the eastern side of the fence). Mr Ingham says the physical arrangement of the work sites at the Terminal provides for two work sites, X25 and X50, and there are signs marked with those descriptions directing access seekers to either of the work sites. Mr Ingham says there is no area marked "X30 Expansion Project" or "X30 Work Site". Mr Ingham says that John Holland employs approximately 140 employees on wages to work at the Terminal, all of whom are paid under the terms and conditions of the Workplace Expansion Agreement. He says that approximately 71 employees work at the X50 work site engaged on the X50 Expansion works and the remainder work at the X25 work site. Mr Ingham exhibits to his affidavit sworn 17 April 2009 a document described as John Holland's "Active Verse Total Workforce Numbers" (SI-1) which forms part of a "Manning Forecast" for employees required to undertake work tasks for the X50 work site, and a document described as "Project Wages Personnel Manning Plan" for the X50 Project (SI-2) setting out all X50 wages employees employed by John Holland at the X50 work site and their positions. Mr Ingham says that these wages employees are paid the wages prescribed by the Workplace Expansion Agreement referable to the positions they hold as described in that Agreement. Mr Ingham says the work undertaken by the employees on the X50 work site is work carried out in relation to the matters described in Appendix 1 to the Agreement under the scope of works for X30. Mr Ingham also says that all of the work which John Holland is currently performing for PCQ at the Terminal pursuant to contract Q08-004 is performed within the areas designated by PCQ and John Holland as the X50 work site, located on the eastern side of the Terminal. As to the scope of work undertaken on the X50 work site, Mr Bradley (an AMWU official) accepted in cross-examination that he had looked at work being done at the X50 work site and that the work, at least that he had seen done , was included within the definition of the scope of works for X30 in Appendix 1 to the Agreement (T73, ll 37 to 42). Mr Bradley also accepted that the terms of the Workplace Expansion Agreement, subject to the reference to X30 in the Agreement, do apply to all of the work that he had seen performed at the X50 work site (T74, ll 19 and 20). Mr Bradley also accepted that the entrance signs to the X25 work site refer only to the X25 Project and there is "no reference whatsoever to X30 anywhere" (T71, l 20). Mr Bradley also seemed to place particular emphasis upon the term X50 as a critical point of differentiation in the application of the Workplace Expansion Agreement to work undertaken on the X50 site. Mr Robinson takes the view that because the Agreement refers to X25 and X30, X50 represents a separate project under a different title and that "make[s] a difference" (T105, ll 27 to 39). Similarly, Mr Ong (an official of the CEPU and ETU) accepted that the work he had seen done on the X50 work site, he guessed, fell within the "very sort of work described in the Appendix 1" (T86, ll 21 to 26). Nevertheless, Mr Ong thought that it was clear to him that X50 was a separate project from an X25/X30 project. Mr Ong also said that he thought he had seen a sign directing an access seeker to either "X30" or possibly "X25 and X30" on the one sign. First , they say that the Contract was made on 29 July 2008, 13 weeks after the making of the Agreement on 17 April 2007 and, having regard to Mr Stokoe's evidence, the final form of the Contract emerged after many meetings over seven months. Second , Mr Stokoe's evidence concerning the evolution of the references to "X30 Expansion Project" and "X50 Expansion Project" is no more than "interesting" and cannot be relied upon in construing the Agreement because the factual matters going to PCQ's abandonment of the phased approach to expansion and the adoption in March 2008 of the description X50 Expansion to describe expansion works going beyond X25, was simply not known to the AWU. The use of the description X50 Expansion or X50 Project was one essentially confined within PCQ. Third , no evidence has been adduced that either John Holland or the AWU intended the scope of work within the Agreement to be identical to the scope of work described in the Invitation to Tender and although the Unions accept that there is almost identical overlapping of terminology in the scope of work for X30 in Appendix 1, certain work identified in the Invitation to Tender is not contained within the Workplace Expansion Agreement. They say that in the absence of evidence as to a consensus in the application of the Invitation to Tender to the Agreement, the Court is not entitled to rely upon the Invitation to Tender in the construction of the Agreement. Therefore, it is said, the Agreement must be construed only by reference to the natural and ordinary meaning of the words in the Agreement. Fourth , the crucial word in clause 4.1 of the Agreement which determines the application of the Agreement, is the word "at" as it signifies a place or geographical point of occupation and thus the Agreement is to apply at a place of X25 and X30 Expansion, and only at that place. It is site-specific and the site is not the site of an X50 Expansion. Moreover, the ordinary and natural meaning of the words "the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion" and the conjunction, is necessarily a reference to one location and not two locations. The Unions say that it is common ground between all parties in these proceedings that there is no separate physical location known as "Ports Corporations of Queensland Abbot Point Coal Terminal X30 Expansion". Fifth , construction of the Workplace Expansion Agreement by reference to an analysis of the tasks to be performed as part of the relevant expansion activities is to be rejected on the footing that if that approach had been the intention of the parties, clause 4.1 of the Agreement would have adopted the application words, "as applying to all work within the description of work set out in Appendix A", rather than the words, "This Agreement shall apply to the parties at the Ports Corporation of Queensland Abbot Point Coal Terminal X25 and X30 Expansion as outlined in Appendix A ...". Consistent with this view of a site-specific application, the Agreement otherwise uses the terms "the Project" and "Project layout" and makes other references to the term "the Project". Sixth , it is not clear that the reference to Appendix A in clause 4.1 is to be taken as a reference to Appendix 1 to the Agreement. Seventh , in the alternative, because neither John Holland nor the AWU led evidence of the objective facts known to those parties at the time of making the Agreement in April 2008, the Court, it is said, is not able to form a view as to whether the Agreement covers work done on the X50 site. Eighth , the scope of work described as X30 in Appendix 1 is not consistent with the scope of work described in Contract Q08-004. There is therefore something more to be done, that is, additional work not covered by the Agreement. Secondly, Mr Stokoe gave evidence that the scope of work appearing in the Contract was wider than the scope recited in the Invitation to Tender at least in these aspects of the electrical works. First, clause 2.5.1 of the Technical Specification describes the requirements for a wharf substation fire suppression system. Second, clause 2.5.3 describes control system modifications. The Unions say that Mr Stokoe conceded that in the course of negotiations for the final contract, it was likely that additional works were added to the Technical Specification that were not in the Invitation to Tender and some work was possibly omitted. The Unions say that it follows that if the work done at the X50 site in part falls within the Contract scope of works, it is not open to conclude that all of the work performed at the X50 work site is covered by the Workplace Expansion Agreement. In other words, some work is "Agreement-free". The Unions say that although it is not admissible to construe the Workplace Expansion Agreement by reference to the conduct of John Holland in seeking in November 2008 to amend Appendix 1 by introducing a new subheading for the scope of works inserting X50 and new text under the subheading, it nevertheless remains "interesting" that the new text is more closely aligned with clause 1 of MD-2 (Technical Specification Revision 1 of 30 April 2008). Clause 1 of that document is in the same terms as Revision 3 of 3 June 2008. He is responsible for all works required to be undertaken for the expansion of the Terminal to achieve a throughput capacity of 50mtpa. He is familiar with the development of the planning for the expansion, implementation decisions, changes to the phased expansion of the Terminal, contract arrangements, the work carried out under the relevant contracts and the work done by John Holland at the X25 and X50 work sites. He is an impressive witness at arms-length from the participants to the controversy, John Holland, the Unions and the AWU. I accept all of his evidence. I accept that there are two work sites at the Terminal, an X25 work site and an X50 work site. There is no separate X30 work site. I am satisfied that the proposed incremental X30 and X35 phases of Terminal development were assimilated within an X50 expansion. I accept that there are no signs to a separate X30 project or X30 work site. I also accept the evidence of Mr Ingham. He too is familiar with the layout of the Terminal site, the configuration of the X25 and X50 work sites, access arrangements, the number of employees deployed by John Holland at each work site and their classification and payment arrangements. He is familiar with the work undertaken and to be undertaken at each work site by John Holland employees. That meaning is found by giving those words their natural and orthodox meaning while recognising that the chosen words must be viewed broadly in the context of the Agreement as a whole and not too literally, assessed in the context of the practical setting within which the Agreement was intended to operate. No agreement operates in a vacuum, especially an agreement intended to comprehensively address the wages and conditions of employment of men and women doing work. Nothing could be more adapted to the most applied and practical focus of the mind of the authors of such a document than the nature of the work to be done, the classifications that would apply to men and women doing particular work and the rates of pay and loadings applicable to such work. It follows therefore that the intention of the parties to the Agreement should be understood not only by reference to these essential considerations but also in the context of the work John Holland was seeking to win and attract for its employees by its tender in response to the Invitation to Tender and whether the scope of the Workplace Expansion Agreement has a relevant relationship with that work, in the context of the contract that was ultimately to be entered into for the performance of particular work. As to these principles see the adoption of the observations of Street J in George A. Bond & Company Limited (in Liquidation) v McKenzie (1929) AR (NSW) 498 by French J in City of Wanneroo v Holmes (1989) 30 IR 362; Kucks v CSR Limited (1996) 66 IR 182 per Madgwick J at 184; Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union v Ardmona Foods Ltd (2006) 155 IR 211 per Ryan J; Ansett Australia Limited v Australian Licensed Aircraft Engineers' Association [2003] FCAFC 209 per Wilcox, Conti and Jacobson JJ at [8]; United Firefighters' Union of Australia v Metropolitan Fire and Emergency Services Board [2006] FCAFC 84 per Nicholson, Jacobson and Lander JJ at [51]; and Amcor Limited v Construction, Forestry, Mining & Energy Union [2005] HCA 10; (2005) 214 ALR 56 [2005] HCA 10 ; , (2005) 222 CLR 241 per Kirby J at [96] and Callinan J at [129] to [131]. Clause 4.1 of the Agreement applies the Agreement at PCQ's Terminal X25 and X30 Expansion as outlined in Appendix A. Appendix 1, relevantly Appendix A, identifies, inclusively not exhaustively, work men and women are to do in undertaking the X25 Expansion. Appendix 1 also identifies, inclusively not exhaustively, work men and women are to do in undertaking the X30 Expansion. There is a very substantial correlation between the work John Holland employees would undertake as described in the Invitation to Tender for contract Q08-004 if it won the tender, and the work to be undertaken by John Holland employees as described under the subheading "Scope of Works for X30 includes the following" in Appendix 1 to the Workplace Expansion Agreement. The Invitation to Tender of 21 December 2007 explained that PCQ was then planning to expand the Terminal facilities to 50mtpa and explained the broad content of the "next stage" of the expansion. The letter sets out the scope of works described broadly as the "Marine Works" which was to be the subject of contract Q08-004. Nothing could be more plain than that the parties intended the Agreement to apply to the works the subject of the tender for contract Q08-004 described in the Agreement under the heading X30. It is true that four items in the Invitation to Tender under the heading "Electrical Works' are not replicated in Appendix 1. However, Appendix 1 otherwise closely adopts the scope of works in the Invitation to Tender which suggests the parties intended the Agreement to apply to the tendered Marine Works. By March 2008, the Marine Works had come to be described by PCQ as part of its X50 Expansion. It may be that John Holland and the AWU did not come to use that term in March 2008 to describe the scope of the Marine Works. However, it is clear that the Marine Works had become a part of the works required to be done to achieve an expansion to 50mtpa and hence an X50 Expansion. Mr Stokoe made it plain that all works beyond the X25 works required to expand the facility to 50mtpa became the X50 Expansion. Accordingly, the notion that the Agreement applies at a separate X30 Expansion site or X30 project site does not give the Agreement, conditioned by Appendix 1, the true meaning and intention of the parties. It was an Agreement to cover the work done. Moreover, the Invitation to Tender was directed to a scope of work (comprehensively adopted as the scope of work in the Agreement), which was to be the subject of contract Q08-004. A detailed Technical Specification was in evidence from 30 April 2008, and the Technical Specification the subject of the Contract was dated 3 June 2008 and is in precisely the same terms as the earlier Technical Specification. It is true that the Technical Specification is more extensive in the detail or content of the works required to be done than the content of Appendix 1 to the Agreement. However, adopting a practical approach, the Agreement which was designed to regulate industrial engagement between an employer, its employees and a Union, seeks to express the intention of the parties to bring the offshore or Marine Works set out under the 26 bullet point topics at [50] under the coverage of the Agreement, rather than express an intention to prescriptively isolate the content of each and every element of those works as if the Agreement was intended to prescriptively anchor a contractor to each and every specific technical detail required to perform the works and discharge and acquit a contract for works. The terms of the Agreement and these contextual events suggest that the Agreement was not intended to be a surrogate or analogue of a Technical Specification. Mr Stokoe recognises that some detail might have been added in formulating the final version of the Technical Specification that went beyond the Invitation to Tender. That is to be expected. Nevertheless, to the extent of its prescriptive more detailed operation, the Technical Specification prescribes subsets of work falling within the scope of the offshore or Marine Works broadly captured, and in some respects captured in detail, in the Agreement. Both the Invitation to Tender and contract Q08-004 isolate works relating to the construction of Berth 2 to the east of existing Berth 1; the construction of a second jetty Conveyor C334, including all structural, mechanical and electrical works associated with the outloading conveyor; and the construction of shipping gallery Conveyor C335 and associated C335 Drive Tower. The 26 bullet points comprising Appendix 1 at [50] are directed to the same subject matter. I am satisfied having regard to the evidence of Mr Ingham and Mr Stokoe and a consideration of the documents that the work being done on the X50 work site under contract Q08-004 is work falling within the scope of the Agreement and the work is thus covered by the Agreement. I am satisfied that when the permit holders under s 737 of the Act, Mr Bradley, Mr Lowth, Mr Robinson and Mr Ong purported to exercise rights of entry under s 760 of the Act on 19 November 2008, 13 February 2009 and 5 March 2009, the work being carried out on the X50 work site by John Holland employees was covered by the Agreement and John Holland is bound to apply the terms and conditions of the Agreement to employees performing work under it. Mr Ingham gave evidence that John Holland is paying all of its employees on the X25 and X50 work sites at the Terminal in accordance with the terms and conditions, classifications and rates of pay prescribed by the Agreement. However, on the assumption that the Agreement does not apply, John Holland accepts that some of its employees may, subject to an analysis of the particular work, be covered by the Metals Award and the Construction Award. As to the NAPSA, John Holland says and the Unions accept that NAPSA does not apply to John Holland, as a question of construction of the coverage clause, cl 1.4.1 of the Award. John Holland also says that NAPSA cannot apply to it because it has not, as at the date of the hearing, employed any person to carry out any electrical work on the X50 work site. Mr Ingham gave evidence of the Project Wages Personnel Manning Plan and the Manning Forecast for the X50 work site in relation to the predictions as to the total number of electrical trade employees to be employed at the X50 work site throughout 2009. Mr Ingham and Mr Stokoe gave evidence that electrical works had not commenced on site. Electrical work was not due to commence on site until May 2009. The Unions concede that the only application of NAPSA on the X50 work site is its application to the work carried out by electrical subcontractors to John Holland and the employees of those subcontractors. The Unions say that electrical work has been carried out by subcontractors notwithstanding the evidence of Mr Ingham and Mr Stokoe. The evidence of that work is given by Mr Ong. Mr Ong gave evidence that he went on to the X50 work site to determine whether John Holland employees were carrying out electrical work and to speak to employees of an electrical contractor, Murray Instrument & Electrical. Mr Ong entered the X50 work site on 19 November 2008 and 13 February 2009. Mr Ong said in cross-examination that he saw evidence of electrical work carried out on the X50 site consisting of "pulling cables, temporary power and switchboards", and that work had been done by either Murray Instrument & Electrical or John Holland employees. In his affidavit of 9 April 2009, Mr Ong said that in the course of walking towards the smoko huts with other officials, he stopped to inspect some switchboards. Mr Ong gave this further evidence in this affidavit. At one point he was standing apart from the other organisers and Mr Ingham said to him, "What are your concerns? " and he said, "I have had calls about construction wiring not being compliant and guys have complained about overflowing toilets and being told to go to other toilet blocks". Mr Ingham responded, "We don't have any electricians here". Mr Ong said, "I have inspected some boards already". Mr Ingham said, "The electricians are all at X25, maybe the boards they are complaining about are over there". Mr Ong said, "I need to make sure of that myself. I have had calls and they said they were here". Mr Ingham said, "X25 or X50? " Mr Ong responded, "I wasn't sure". Mr Ingham's evidence is that Mr Ong then said, "What am I doing here then, I should be at X25". This is denied by Mr Ong. Mr Ong said that he spoke to employees of the contractor and John Holland electricians on the evening of 12 February 2009. Mr Ong could not identify the John Holland employees. Mr Ong said that he went on to the X50 work site to see if there were any John Holland electricians on site. He accepted that he did not speak to any John Holland electricians on site and did not ask any John Holland employees when speaking with them whether there were any electricians on site. Mr Ingham contended that he had told Mr Ong on 19 November 2008 on site that John Holland had no electricians on site. Mr Ong, in cross-examination, said that he would not be doing his job if he accepted everything Mr Ingham told him. Mr Ong did not contend that he spoke to any electricians on site on either 19 November 2008 or 13 February 2009. However, Mr Ong gave this evidence in cross-examination. I mean, there was obviously electrical work being done there. That seems consistent with the evidence of Mr Ingham that no John Holland employees had been engaged in electrical work as reflected in the manning plans for 2009, on the X50 work site. Mr Ong's evidence does suggest that some electrical work such as the installation of temporary power and switchboards observed by him had been carried out by a contractor. The evidence does not establish that electrical work was being carried out at the date of Mr Ong's entry to the X50 work site by contractors to John Holland. There may have been some earlier work. Mr Ong in his own evidence was not sure whether the discussions he had with men about construction wiring related to the X25 or X50 work site. Mr Ong did not see or speak to any electricians on the X50 work site nor ask the employees he did speak with whether electricians were on the X50 work site. I am satisfied that no employees of John Holland had been or were conducting electrical work on the X50 work site having regard to the evidence of Mr Ingham and Mr Stokoe and the work plans and manning plans for the X50 work site managed by Mr Ingham. I am satisfied that at the time of Mr Ong's entry on 19 November 2008 and 13 February 2009 there were no employees of John Holland who were eligible to become members of the CEPU/ETU. In any event, since the Workplace Expansion Agreement covers electrical work on the X50 work site, NAPSA has no application to any of the work carried out on the X50 work site. The evidence relating to the entries to site by the permit holders demonstrates that entry was for the purpose of enabling permit holders to speak with John Holland employees rather than the employees of contractors to John Holland. None of John Holland's employees can be said to have been carrying out work on the X50 work site covered by an award or collective agreement binding on the AMWU, CFMEU or CEPU/ETU whilst the Agreement applied to work carried out on the premises by those employees (s 349(1) of the Act). These provisions are civil remedy provisions for the purposes of the Act (ss 767(2) and 768(3)) and the Court may order a person who has contravened either provision to pay a pecuniary penalty. Accordingly, the contravening conduct must be established to the standard of proof required by Briginshaw v Briginshaw (1938) 60 CLR 336 and the Court is required to take into account the nature of the cause of action or defence; the nature of the subject matter of the proceeding; and the gravity of the matters alleged (s 140(2) Evidence Act 1995 (Cth)). The Briginshaw standard of proof should be applied to all questions of fact in controversy ( Pine v Doyle (2005) 143 IR 98; [2005] FCA 977, per Merkel J; Standen v Feehan (2008) 175 IR 297 per Lander J; [2008] FCA 1009). Section 767(1) is relevantly in these terms. Did a Union official hinder or obstruct any person during the events of entry on either day? Who was hindered or obstructed? Did a Union official otherwise act in an improper manner during the events of entry and if so, by what conduct? Was the conduct intentional? Section 768(1) provides, as it applies in this case, that a Union official must not in the circumstances mentioned in s 768(2) engage in conduct with the intention of giving another person the impression, or recklessly as to whether another person would get the impression, that the official (or a third person) is authorised by Pt 15 of the Act to enter the X50 work site for the purpose of holding discussions with John Holland employees carrying out work on the X50 work site under the Contract. The circumstances within which the conduct must occur are circumstances where the Union official (or third person) is not authorised to so enter for that purpose and the Union official knows or has reasonable grounds to believe that he (or the third person) is not authorised by s 760 to enter for that purpose. Therefore, what is the relevant conduct? Was it engaged in intentionally to create the relevant impression or recklessly in the relevant sense? Did the Union official know that he (or any other person from his Union or other third person) was not authorised to enter the X50 work site for the s 760 purpose? If not, did the Union official have reasonable grounds to believe that he was not authorised on 13 February 2009 and 5 March 2009 to enter the X50 work site for the s 760 purpose? John Holland relies on the following evidence of Mr Ingham and Mr Davis in seeking to make out the integers of these provisions. On 17 November 2008, Mr Bradley (AMWU) sent by facsimile a notice to John Holland of his intention to enter the John Holland Abbot Point Project on 19 November 2008. Mr Bradley purported to rely on s 760 of the Act and the notice was said to meet the requirements of s 738 of the Act. On 17 November 2008, Mr Lowth (AMWU) also sent such a notice. John Holland says those notices failed to identify the actual premises to be entered and did not comply with the Act. At approximately 9.00am on 19 November 2008, Mr Ingham was advised by a security guard at the eastern gate, by telephone, that four Union officials were waiting at the gate and wanted to see a representative of John Holland. At the time Mr Ingham received the guard's telephone call, he was working at an office next to the X25 work site offices, near the western gate. The distance from the western gate to the eastern gate is approximately five kilometres. It takes approximately five to 10 minutes to drive the distance. When Mr Ingham received the call, he sought out Mr Brad Whitbourne, John Holland's Area Manager, and asked Mr Whitbourne to drive him to the eastern gate. They arrived at the security gate at approximately 9.15am. On arrival, Mr Ingham asked the four Union officials to tell him the basis on which they were seeking entry to the X50 work site. Mr Bradley and Mr Lowth said they sought entry to the X50 work site in reliance on the notices of 17 November 2008 and a contended right of entry under s 760 of the Act. Mr Ingham responded by saying that Mr Patten, John Holland's Employee Relationship Manager, Northern Region, had advised the AMWU that the Union did not have a lawful right of entry to the X50 work site under s 760 of the Act. Mr Ong (CEPU/ETU) said he sought entry under the Workplace Health and Safety Act 1995 (Qld) ("the Qld Act") to investigate contended safety breaches related to construction wiring. Mr Robinson (CFMEU) said he sought entry under the Qld Act to investigate amenities. Mr Ingham says he told Mr Ong and Mr Robinson that the Qld Act had no application to the X50 work site as John Holland was covered by Commonwealth Occupational Health and Safety legislation. Mr Ingham gave evidence that on 31 October 2006 John Holland was declared a corporation for the purposes of the Safety Rehabilitation and Compensation Act 1988 (Cth). John Holland became a licence holder under that Act and a non-Commonwealth licensee within s 5 of the Occupational Health and Safety Act 1991 (Cth) and was thus subject to Commonwealth law. Mr Ingham says that he told Mr Ong and Mr Robinson that John Holland was not subject to the Qld Act and they did not have a right of entry under the Qld Act. Mr Ingham says he again told the four officials that they had no right of entry and asked them to leave. Mr Ingham telephoned Mr Elder, John Holland's Human Resources Manager, Northern Region, and was told that the officials had no right of entry. After receiving that advice, Mr Ingham again told the four men that they had no right of entry to the X50 work site. The four officials nevertheless walked through the access gate and down the road towards the work areas. Mr Ingham telephoned a PCQ employee, Mr Lonsdale. Mr Lonsdale went to the eastern gate, drove along the road leading to the X50 work site areas, intercepted the four officials on the road and spoke to them. Mr Lonsdale returned to the gate. Mr Martin, another PCQ employee, also arrived at the eastern gate. Mr Ingham, Mr Martin and Mr Lonsdale then drove along the road and intercepted the four officials. Mr Ingham says he again told the officials that they had no right of entry to the X50 work site and asked them to leave. Each Union official refused to leave and said they had a right to enter the site and talk to their members. By approximately 10.15am, the four officials had walked the distance of two to three kilometres to reach the work site areas (Work Areas 2 and 3). Mr Ingham, Mr Whitbourne and Mr Cameron Green, John Holland's Area Manager Offshore, had driven to the work areas to wait for the Union officials to arrive. Mr Ingham says he spoke to the officials again at the work site and told each of them they had no right of entry and ordered them to leave the site immediately. They refused and said they wanted to speak to their members. Mr Ingham said that would not happen. These exchanges took place outside the huts or rooms where the employees take lunch and morning tea breaks. Mr Ingham says he had an exchange with Mr Ong in these terms. Mr Ong asked, "Where are the electrical works? I want to inspect them? " Mr Ingham said, "We don't have any electrical work. There are no electricians engaged on X50. There are electricians employed on X25". Mr Ong said, "What am I doing here then? I should be at X25" PCQ employees called the police. The four officials left the site through the eastern security gate at approximately 11.15am. On 20 November 2008, the CFMEU sent by facsimile to John Holland a "Notice to Initiate a Bargaining Period (s 423)" by which CFMEU intended "to try to make a collective agreement" under the Act concerning John Holland's "operation located at Abbot Point X50 Project" governing the employment of "persons who are eligible to be members of the CFMEU". On 20 November 2008, the AMWU sent John Holland a facsimile of a notice in the same terms except that the collective agreement was to apply to employees "who are eligible to be members of the AMWU". On 21 November 2008, the CEPU sent John Holland a facsimile of a notice in the same terms except that the collective agreement was to apply to all employees "who are members or eligible to be members of the CEPU electrical division". On 24 November 2008, Mr Stephen Sasse, the Group General Manager Human Resources & Organisational Strategy for John Holland, wrote to the CFMEU, AMWU and CEPU to set out the basis on which John Holland contended that the Unions and their officials had no right of entry to premises described as the Abbot Point Construction Project Site for occupational health and safety purposes pursuant to the Workplace Relations Act 1996 or the Qld Act. Mr Sasse contended in the letter that the officials had been told on at least four occasions to leave the premises and that their conduct was hindering or obstructing John Holland officers in the conduct of the building and construction works at the premises. On 26 November 2008, the State Secretary of the AMWU, Mr Andrew Dettmer, responded to Mr Sasse's letter in relation to Mr Bradley and Mr Lowth's entry on 19 November 2008. This entry is authorised by section 760 of the [Act], as the employees are AMWU members, and as there is no collective agreement in place, they are carrying out work covered by the [Metals Award]. I trust that John Holland will not obstruct AMWU officials from holding discussions with members at the project to obtain their input and feedback into these negotiations. We advise that such entry is unavailable. In order to rely on s.760 you will know that there must be "eligible employees", as there defined. You have incorrectly stated that the [Metals Award] applies. In fact, it is the [Workplace Expansion Agreement] which applies. [This] Agreement regulates the employment of all persons on the project to the exclusion of any award or agreement. The AMWU is not bound by the Agreement. The employees in these circumstances cannot be "eligible employees", regardless of whether they are members of the AMWU. In the face of that advice, their entry was trespass as stated in our letter of 24 November 2008. Given what is stated above, you will understand that that meeting has been scheduled as a courtesy to the AMWU. As we are advised, during the currency of the Agreement the initiation of a bargaining period is moot in respect of employees whose employment is covered by the Agreement. On 10 February 2009, Mr Ong served an Entry Notice in respect of premises described as "Abbot Point, Bowen" pursuant to ss 738 and 760 for entry on 13 February 2009 to hold discussions with employees. Mr Robinson served a similar notice on 11 February 2009 describing the premises as "John Holland Abbot Point Coal Terminal Project" and Mr Bradley served a similar notice on 10 February 2009 in the same terms. Each notice relied upon ss 738 and 760 of the Act. On 12 February 2009, the solicitors for John Holland, Herbert Geer, wrote to Mr Dettmer (Secretary AMWU) and the Secretary of the CFMEU and the Secretary of the CEPU in response to the Entry Notices issued by the officials of each Union. The Agreement comprehensively prescribes the wages and conditions of employment for the employees covered by the Agreement and further the Agreement expressly provides that it is "stand alone". Your union is not a party to the Agreement and as such the Agreement is not binding on your union as is required by the provisions of s.760 of the Act. We note that in the past you have sought to rely upon the [Metals Award]. Given the "stand alone" nature of the Agreement, the provisions of that Award do not have application to our client's employees on the Project. Paragraph 2 of each letter addresses the central contention that the Workplace Expansion Agreement expressly covers the work performed and neither Union is a party to the Agreement. On 12 February 2009, the CEPU/ETU responded and said that the Workplace Expansion Agreement applies to the parties at PCQ's Terminal X25 and X30 Expansion and does not apply to the X50 Project. The letter contended that Mr Ong was entitled to enter the premises under s 760 of the Act. On 12 February 2009, Herbert Geer responded reasserting John Holland's position. On 13 February 2009, Mr Dettmer responded and made the same point made in the CEPU/ETU letter that the Agreement applied at PCQ's Terminal X25 and X30 Expansion but did not apply to "the X50 project". Mr Dettmer contended that employees working on the site were working pursuant to the Metals Award and that Mr Bradley and Mr Lowth were entitled pursuant to s 760 of the Act to enter "premises at Abbot Point at the X50 project". Upon Mr Ingham's arrival at the eastern gate at approximately 9.40am on 13 February 2009, Mr Ingham saw Mr Bradley, Mr Lowth, Mr Ong and Mr Robinson standing at the security gate next to the entrance to that part of the Terminal. I have received advice that you've got no legitimate basis to enter the site. I'd like you to leave the site now. The security guard walked in front of Mr Ong and stood about two metres in front of him with arms upward. As Mr Ong went to walk around the security guard, the guard sought to prevent Mr Ong from further entering the premises. Mr Lonsdale was present and asked the officials whether they wished to go to the PCQ offices "and discuss it", that is, their entry to the X50 work site. The officials did not respond and continued walking towards the work site areas about two kilometres further along the road. By approximately 10am the officials had reached the work site areas. They sat down outside facilities called the crib huts or crib rooms. Mr Ingham had driven to the work area. Mr Cameron Green was again present. Mr Brad Whitbourne was present. Mr Evan Morgan, John Holland's Construction Manager, was also present. One of the Union officials said, "We will wait here to talk to the employees". Mr Ingham approached each Union official individually and said directly to each man, "You are not authorised to be on the site. Please leave immediately". One of the officials, although Mr Ingham cannot recall which, said, "We are not leaving until we speak to the employees". The officials remained at the crib huts and did not leave the site. At approximately 12.05pm Mr Bradley said, "If you give us 15 minutes with the employees we'll leave the site straightaway". Mr Ingham told Mr Bradley that the men were not due to have their break until 1.30pm. The officials remained at the crib huts until the employees arrived to have their lunch. Mr Ingham and Mr Green waited with the officials. Mr Ong took a photograph of the pile splice laydown yards. The employees broke into two groups occupying each of the two crib huts. They are not authorised to be here as we have refused their right of entry to the Site. We will be reporting the matter to the ABCC. The union officials are going to speak with you. This meeting is not authorised by John Holland and we will be taking the matter further. Mr Ingham sat in the crib room with Mr Bradley and Mr Robinson. Mr Morgan, Mr Smith and Mr Whitbourne sat in the crib room with Mr Lowth and Mr Ong. Mr Bradley asked Mr Ingham to leave the crib room. He refused. Mr Bradley and Mr Robinson addressed the employees. John Holland tried to vary the existing agreement to include X50 last year but they weren't successful. Last year we initiated a bargaining period but John Holland ignored us. We are now going to fight for an agreement that contains proper rosters, and paid travel time to and from the project. One of the officials said, "Let's stick together. We'll be back". The Union officials were then transported to the security gate by car and left the site at 1.50pm. On 27 February 2009, Herbert Geer sent a letter by facsimile to the Secretary of the CFMEU, AMWU and CEPU. The letter referred to Herbert Geer's earlier letter of 12 February 2009 and the Notices of Entry issued by each Union official in reliance upon ss 738 and 760 of the Act, in relation to the entry on 13 February 2009. The letter is 20 pages in length and sets out the background to the expansion program at the Terminal from 21mtpa to 25mtpa, the further expansion to 50mtpa and the contended relationship between the Invitation to Tender, the Agreement and contract Q08-004. The letter also addresses the shiploader contract Q08-005. The letter identified the basis upon which John Holland contended that work undertaken by its employees on the X50 work site under contract Q08-004 was covered by the Workplace Expansion Agreement. On 4 March 2009, Mr Bradley served a document on John Holland giving notice of an intention to enter the John Holland Abbot Point X50 Coal Terminal Project on 5 March 2009 in reliance upon ss 738 and 760 of the Act. On 4 March 2009, Mr Robinson served a document on John Holland giving notice of his intention to enter "X50 project Abbot Point --- John Hollands" on 5 March 2009 in reliance on ss 738 and 760. John Holland contends that at all material times it was not the occupier of the X50 work site. On 4 March 2009, Herbert Geer sent a letter to the CFMEU in response to Mr Robinson's Entry Notice. On 5 March 2009, Mr Ingham was advised that an official from the AMWU and an official from the CFMEU had arrived at the eastern access gate. Mr Ingham, Mr Green and another John Holland representative, Mr Smith, drove over to the eastern access gate. Upon arrival, Mr Ingham told Mr Robinson and Mr Bradley that they did not have any authority to enter the X50 work site. The officials said that they had given 24 hours' notice of their intention to enter as required by the Act. Mr Ingham said to Mr Robinson, "Have you seen the letter sent to your Union on 27 February? " Mr Robinson said, "Yes". Mr Ingham asked Mr Bradley, "Have you seen the letter sent to your Union on 27 February? " Mr Bradley said, "No". Mr Ingham handed Mr Bradley a copy of the letter. When he saw the letter, Mr Bradley agreed that he had seen the letter. Mr Ingham asked Mr Robinson whether Mr Robinson had seen a copy of the facsimile of Herbert Geer's letter to the Secretary of the CFMEU sent on 4 March 2009. Mr Robinson said he had seen that letter. Mr Bradley said, "We have a right of entry and we are entitled to enter the site". Mr Robinson and Mr Bradley walked past security onto the site and began walking along the road to the work areas. You have been advised that you are not authorised to enter these premises and have been provided with a copy of correspondence from John Holland legal advisers which identifies the basis for that position. You have nevertheless entered the Company's premises. The Company intends to initiate proceedings against you, the AMWU and the CFMEU for unlawful trespass. You are acting unlawfully and you should immediately remove yourself from the premises. Mr Ingham, Mr Green and Mr Smith went by car to the crib rooms in the work areas. At approximately 1.00pm, Mr Robinson and Mr Bradley arrived at the crib room at the X50 work site area at the end of the road. Mr Ingham again said to the officials the words set out at [124]. Mr Ingham directed the officials to leave the premises. Mr Ingham then asked the officials, "Have you read the letter from Herbert Geer to your Unions dated 27 February? " They said words to the effect, "Yes we have. The Union's position is that there is no agreement covering X50 so we are here to talk to our members". At approximately 1.30pm, employees entered the crib room. Mr Robinson and Mr Bradley then entered the crib room. Mr Ingham followed them into the room. Mr Ingham told the employees that the officials were not authorised to be on site, that entry had been refused and the proposed meeting was not authorised by John Holland. Mr Robinson and Mr Bradley spoke to the employees and said this. John Holland is attempting to intimidate and threaten people. We'll be back. They entered another crib room approximately 300 metres from the eastern gate in another work area. Mr Ingham also entered the second crib room. He heard Mr Bradley say to the employees words to the same effect as the statements made earlier in the other crib room at [125]. At approximately 1.50pm, Mr Robinson and Mr Bradley left the second crib room and walked towards the eastern gate. They left the Terminal at about 1.55pm. Apart from a contest surrounding the interaction between Mr Ong and the security guard in seeking to discourage the officials from entering the X50 work site, and a conversation between Mr Ong and Mr Ingham concerning whether electricians were engaged in work on the X50 work site or X25 work site, the evidence of each Union official is substantially similar to that of the John Holland witnesses, in relation to the events of entry. Mr Robinson in his affidavits of 14 April 2009 and 22 April 2009 says that Mr Bradley asserted at the gate a right of entry to speak to members; Mr Ingham refused entry to the officials twice at the gate; Mr Robinson asserted a right of entry under Workplace Health and Safety legislation; a security guard attempted to stop the officials entering the site; Mr Ingham intercepted the men on the road, told them they had no right of entry and asked them to leave; the men were later again told to leave the site; and, at the crib rooms at the end of the access road, the men were again told to leave the site by Mr Ingham. Mr Bradley by his affidavit of 9 April 2009 says he asserted a right of entry and was denied entry at the gate; the men entered the site; a security guard attempted to stop them further entering the site; Mr Ingham intercepted the men on the road and again told them they had no right of entry and were trespassing; Mr Ingham told the men to leave the site at the crib huts; and Mr Bradley continued to assert a right of entry to hold discussions with CFMEU members. Mr Lowth by his affidavit of 9 April 2009, gives evidence in substantially the same terms as the other officials although Mr Lowth says one of the officials said the organisers only wanted to have access to their members to "discuss the log of claims for an agreement at the X50 project". Mr Ong also says in his affidavit that he told the workers assembled in the crib hut that the officials were on site because they believed there was no agreement for the X50 work site and they wanted to pursue one. Mr Ong told the workers that the officials were within their rights to enter the site and told the workers not to say anything because it was likely that they might get the sack. Mr Robinson says that the officials were told at the gate that they were not entitled to enter the site; Mr Bradley and Mr Ong asserted a right of entry; Mr Ingham again said that the men were not entitled to enter the site; the officials entered the site; a security guard attempted to stop further entry; Mr Ingham intercepted the officials and again told them to leave the site; the officials kept walking; at the crib huts, Mr Ingham addressed the organisers as a group; Mr Bradley said the officials would hold discussions with the workers at their next break; at 1.00pm the workers entered the huts for lunch and Mr Ong and Mr Lowth went to one hut while Mr Bradley and Mr Robinson went into another; Mr Ingham told the workers that the presence of the officials on site was unauthorised; Mr Bradley told the workers that the officials were trying to negotiate an agreement with John Holland and in particular to secure a fly-in/fly-out clause. Mr Bradley says that the organisers at the gate told Mr Ingham they would enter the site to speak with their members; Mr Ingham told the officials that there was already an Agreement in place in relation to the site and that John Holland did not recognise their right of entry; the men entered the site; a security guard attempted to stop them; John Holland representatives intercepted the men on the road and told them that they had no right to be on site and should leave; when the officials reached the crib huts at approximately 10.10am, Mr Ingham again told them they could not enter the huts; Mr Bradley told Mr Ingham that the officials would leave the site if they could have 15 minutes with the workers; Mr Ingham refused; at 1.30pm the workers entered the huts; Mr Ong and Mr Lowth went to one hut and Mr Bradley and Mr Robinson went into another; Mr Ingham told the workers that the officials were on site illegally; Mr Bradley told the workers that the Unions believed there was no current agreement in place for the X50 work site, they had initiated a bargaining period, John Holland was refusing to negotiate an agreement to cover the site, the Unions were aware of health and safety issues and the dismissal of some members; Mr Bradley said that the Union was going to negotiate rather than fight for an agreement. Mr Lowth says that the officials were refused entry by Mr Ingham at the gate; Mr Ingham did not recognise the right of entry of the officials; the officials entered the site; a security guard attempted to prevent further entry; as the officials walked towards the crib huts about one kilometre along the road, they were intercepted and told to turn around and go back; the officials continued walking; Mr Ong and Mr Lowth entered one of the crib rooms at about 1.30pm; 12 workers were present; Mr Ingham told them that the meeting was illegal and that the organisers were on site illegally; Mr Ong explained the process by which the Unions planned to secure an agreement for the X50 work site; Mr Ong and Mr Lowth told the workers not to speak up. The officials left after about 10 minutes. The organisers entered the crib rooms at 1.30pm; Mr Ingham told the workers that the officials were acting unlawfully and had been asked to leave but had refused to do so; Mr Bradley told the workers that they were not on site unlawfully; Mr Bradley told the workers that they did not necessarily want anyone to ask questions or make comments but they should feel free to, that the officials knew of threatening and intimidating behaviour and health and safety problems, that the Unions were open to negotiation but John Holland had refused, that the Unions had been involved in negotiations but John Holland had decided to sign an agreement with the AWU and had not contacted the ETU or the AMWU, that John Holland had commenced proceedings against the AMWU and CFMEU, that the officials did not want bosses in on Union meetings but they were refusing to leave, and that the officials would be back for another report. Mr Robinson says that he and Mr Bradley entered another crib hut at approximately 1.45pm and told 12 employees that John Holland had chosen not to negotiate with them and had taken action against them, that no worker should talk or ask questions because they might suffer reprisals from John Holland Management and that workers did not have to answer questions from the ABCC without two weeks' written notice. Mr Bradley agrees with Mr Robinson's account. Mr Bradley says that in the second crib hut at approximately 1.45pm he told the employees that the Unions were still open to negotiation with John Holland. Leaving aside the contest between the parties as to the conduct of the security guard and a conversation between Mr Ingham and Mr Ong concerning Mr Ong's contended remark that he should be at the X25 work site, I find that the events described at [98] to [127] occurred. And when you say X25/X30 site, on what basis do you characterise it as the X25/X30 site? And the entrance signs refer to the X25 project, don't they? We're not signatory to the agreement. Is that the case? If there is no agreement and those employees come under the terms of our rules of coverage, then they would be covered by the award and we would have right of entry under the award. And the first thing you do is look at the work they're performing? So there were only two bases upon which you assert a right of entry? ... Mr Ong, you did have a draft document that had an appendix 1, such as the appendix 1 which appears in the agreement? ... We mainly concentrated on ... the main body of the agreement. You've told us that? I was given a copy of the ... actual agreement. What work did you see being done? That was our understanding, that there was no coverage for X50. That was the whole reason for making entry to the site. ... I had a brief conversation with Mr Ingham about work being done on X25 and X30. ... The response was he pointed to X25 and --- well, I can only truthfully say X25 over there. Fairly detailed provision for work that had to be done under X30, wasn't it? There's an agreement covering it"? X25 --- the scope of works covered X25 and X30. I determine whether an agreement applies to my members by its coverage and whether I'm a party to that agreement. We were negotiating an agreement to cover X25, X30. Is that right? It's a project, but I guess it's just what we saw as this agreement would designate those areas that this agreement was covering. Do you agree with that? So we still had access to try and enter into an agreement for X50. ... Our belief the whole way through was that there was an agreement in place with the AWU for X25 and X30 which still allowed us an avenue to pursue an agreement for X50. ... If it [work within the description of the scope of works of X30] wasn't performed in X25 or X30, in those areas, then I believe that there was no agreement in place. They would have one agreement that covered Abbot Point, but our belief all the way along was that they had done an agreement for X25 and X30 and then the job had expanded out to start another project on the Ports Corp of X25-X50, I apologise. So our belief all along was, we don't have an agreement for X25 and X30, but there's no agreement in place for X50 so we believe we have a right of entry. The Agreement covers work; it doesn't cover a piece of land; isn't that right? That was my understanding and has always been my understanding. On the second entry I had a look at the agreement to see whether the scope covered X25, X30, X50 and it only said X25 and X30. ... I didn't see any sign for X30. He has been an organiser with the CFMEU for approximately eight months. He had the carriage of coverage at Abbot Point on behalf of the CFMEU and was the responsible officer for the CFMEU. Notwithstanding that, Mr Robinson agreed that he did not take any steps to satisfy himself independently of speaking to Mr Bradley, Mr Lowth or Mr Ong as to the coverage of the work that was being done at Abbot Point. Mr Robinson said he told his superiors that the X50 project was commencing and that it involved an expansion of the Coal Port Terminal and to his knowledge, the construction of a new conveyor and associated works relating to a new berth. Mr Robinson said that when he went on site he knew that there was an agreement with another Union in relation to X25 and X30 and that, "X50 was separate to X25, X30, with no coverage from any unions to our knowledge". Mr Robinson said that X50 was not included within X25, X30 and was a separate construction site to X25, X30. Mr Robinson said that the project was under a different title and that makes a difference to the workers. Mr Robinson accepted that the work done by a worker is the important thing in determining coverage. You saw the work that was being done when you went on the X50 site, didn't you? Mr Lowth agreed that all of his Union members at Abbot Point were being paid in accordance with the terms and conditions of the Agreement wherever they were working at Abbot Point whether behind the X25 fence or the X50 fence. Mr Lowth agreed that he knew in early November that the agreement with the AWU was being so applied to all employees. Let's then go to your first visit. ... So after November 2008 you were aware that your members were being paid under the AWU agreement and that John Holland said the AWU agreement applied to the work? So you formed no independent judgement yourself based on any assessment of the agreement and what it actually said? I'm talking about the agreement under which your members are paid. Because you never saw it you never formed any independent view about what it meant, you relied on Mr Bradley? ... I did rely on Mr Bradley's advice on the X25, X30, yes. My understanding was previously that it was the X25 and X30 agreements, and it was then explained in Mr Stokoe's affidavit, and not before, I might add, to me that the X21 and X25 agreements were projects --- were what was covered by it. I must say that I haven't read this part of the agreement. A contravention of s 768(1) involves intentional conduct in circumstances where a person has relevant knowledge or alternatively reasonable grounds to believe a certain state of affairs. The Unions contend that the Union officials did not have the requisite intention because they engaged in conduct with an honest and reasonable belief that their conduct did not involve a contravention of either provision. That is said to follow because no Union official intended to hinder Mr Ingham in the performance of his duties. They say that their intention was to enter the site to hold discussions with employees on the footing that they were entitled to do so under s 760 of the Act. As to s 768(1), there is no doubt on all the evidence that the Union officials on 13 February 2009 and 5 March 2009 entered the site with the intention of meeting with John Holland employees and giving them the impression that the officials were authorised by Part 15 of the Act to enter the X50 work site for the purpose of holding discussions with those employees carrying out work on the site. The officials say that they believed they were authorised to do so and did not know that no such authority existed, and that they did not have reasonable grounds on either day when entering the site to believe that they were not authorised for that purpose. The Unions say that the evidence supporting those conclusions is this. Mr Bradley and Mr Ong had been involved in negotiations with John Holland in early 2008 with a view to reaching a certified agreement in respect of the X25 and X30 site. I am satisfied that they were involved in such negotiations which did not result in an agreement. I also accept that there is no evidence that during the course of those negotiations any statement was made that the work arrangements then under negotiation concerning the X25 and X30 expansion were intended to become part of an X50 expansion with a designation of a work site called the X50 work site. The Unions say that to the extent that Mr Ong turned his attention to the scope of the draft document given to him by John Holland in the course of those negotiations, the document mentioned only the terms X25 and X30 expansion. They say that consistent with their view of the limited operation of the Agreement ultimately made with the AWU, John Holland on 3 November 2008 put a proposal to its employees to amend Appendix 1 to the Agreement to insert the words "X50". The proposal was rejected. Mr Ong and Mr Bradley say that this information available to them reinforced their belief arising out of their earlier negotiations that the Agreement did not cover the X50 work site. I accept that there was a proposal put by John Holland on 3 November 2008 to amend Appendix 1 to insert a reference to X50 and delete the reference to X30. I also accept that the document made textual changes to the description of the scope of works to be inserted under the proposed new subheading "The Scope of Works for X50 includes the following ...". I also accept the evidence of Mr Ingham that there were other aspects of the proposed amendment which influenced the decision to put a proposal for an amendment to Appendix 1 to the employees. Nevertheless, as to the description of the Scope of Works for X30, the amendment proposed a new description of X50 and some textual change. A close comparison of the text of Appendix 1 and the proposed new Appendix 1 shows that there are some dissimilarities but the essential text is faithful to the content of the marine or offshore works of Appendix 1 as it stood. Nevertheless, I accept that the realisation by Mr Ong and Mr Bradley and through them by Mr Lowth and Mr Robinson that John Holland had proposed an amendment to the title of the expansion work to change "X30" to "X50", would have reinforced in their minds a differentiation between the description X25 and X30 and activities comprising work to be done under the banner or label X50, whether that distinction was real or not. The Union officials gave evidence in cross-examination that they believed the Agreement did not apply to the X50 work site. Mr Ong was pressed about that matter, as the quoted transcript reflects. Mr Robinson and Mr Lowth relied upon the views formed by Mr Bradley and Mr Ong about whether the Agreement applied to work carried out on the X50 work site. The officials emphasised in their evidence that they could see a physical differentiation between the X50 work site and the X25 work site, with each work site isolated by a physical fence. Moreover, the Union officials say they accepted that the Agreement applied to the X25 site. Therefore in their minds they proceeded, they say, in the belief that the X50 work site was necessarily different and apart from the X25 work site and thus the Agreement applied differentially. The Unions further say that the exchanges of correspondence between Mr Sasse and Mr Dettmer and the other Unions did not make plain the contended basis upon which the Agreement was said to cover work carried out on the X50 work site. The Unions also say that the officials believed there were employees who were either members or eligible to become members of the relevant Unions, and since, in their view, the Agreement did not apply to the X50 work site, they enjoyed a right under s 760 of the Act to enter premises and conduct discussions with those employees. In effect, the Unions say that such conduct is the core orthodox business of each Union, and the officials contend that they honestly and reasonably believed they had a right under the Act to do what they did. The position seems to me to be this. By the end of the events that took place on 19 November 2008, each Union official understood that John Holland contended that none of the Union officials had a right to enter the X50 work site. That contention was put to the officials on many occasions by Mr Ingham at different points along the continuum of the conduct on that day. The evidence of the officials and of John Holland makes it plain that John Holland did not accept that the officials had a right of entry. John Holland said their conduct was unlawful with the result that they were trespassing. When each official left the site that day they could not have been in any doubt that their contended right of entry was more than controversial, disputed and opposed. What they then knew was that John Holland contended that they had no right of entry. They also knew that to the extent that each official relied upon s 760 of the Act, John Holland contended that no right of entry arose under that section. It is true that Mr Ingham did not spell out the precise basis upon which John Holland contended that work falling within the Agreement with the AWU was work being undertaken on the X50 work site and that that work had been subsumed within PCQ's planned X50 Expansion rather than any separate, incremental or phased expansion project. I accept that when the Union officials entered the site on 19 November 2008 each of them believed that work undertaken on the X50 work site was something other than an X25 and X30 expansion, notwithstanding that none of the officials had considered precisely why that might be so. Each of them made an assumption that because the sign directing access seekers to an X50 site was signage for a site other than the X25 (and possibly, in their mind, X30) site and the location of that site was at a different geographical area of the Terminal, the X50 work site was physically something other than an X25/X30 expansion. Thus, they reasoned, activities on the X50 work site, so distinguished, must be a different project at a different place and thus the Agreement with the AWU had no role to play. By the end of 19 November 2008, however, each Union official knew that there was a real issue about their right to enter the site. At that point, a Union official acting for and on behalf of his or her Union could not reasonably simply continue to assert a contrary position without seeking to understand whether that position was well placed or not. On 24 November 2008, Mr Sasse wrote to the CFMEU, the AMWU and the CEPU seeking to deal with the notion that any Union official might be entitled to enter the site in reliance upon particular workplace health and safety legislation. Mr Dettmer responded to that letter, dealt with that issue and asserted the right of entry under s 760 of the Act as there was no collective agreement in place. On 3 December 2008, Mr Sasse responded to Mr Dettmer's notion about s 760 and told him that entry was unavailable on that footing because there were no "eligible employees" for the purposes of s 760 because the Workplace Expansion Agreement applied so as to regulate the "employment of all persons on the project" to the exclusion of any award or agreement. Mr Sasse pointed out that the Agreement was not binding on the AMWU. Notwithstanding that response, Mr Bradley and Mr Lowth on behalf of the AMWU served notices in reliance upon ss 738 and 760 of the Act for entry to the site on 13 February 2009. Mr Ong and Mr Robinson also served notices in reliance on those provisions for entry on 13 February 2009. On 12 February 2009, the solicitors for John Holland wrote to Mr Dettmer referring to the earlier letter of 3 December 2008. The letter describes the entry notices of Mr Bradley and Mr Lowth as "purported notices" and makes the point that the Agreement comprehensively prescribes conditions of employment of work performed by John Holland's employees at the Abbot Point Coal Terminal. The letter of 12 February 2009 is addressed to a "skilled addressee". Mr Dettmer is very experienced and an impressive Union official. Mr Sasse's letter would, in the ordinary course, have put Mr Dettmer on reasonable enquiry about whether the Agreement had the effect of covering work undertaken by John Holland at the Abbot Point Coal Terminal, as contended by Mr Sasse and John Holland. Mr Dettmer could only reasonably determine that question by looking at and considering the description of the work covered by the Agreement itself as set out in Appendix 1 and asking himself whether that work was the work being done on site at the moment of entry. That was the analytical leadership that was required by the permit holders and officers of the Unions demanding to enter the premises and therefore rejecting John Holland's objections. Had enquiry been made, those enquiries would most likely have revealed PCQ's abandonment by March 2008 of the phased X30 and X35 expansions in favour of an X50 expansion, the subsuming of the Appendix 1 work within an X50 expansion and the carrying out of that work on a site described as the X50 work site. A similar letter was written by Mr Sasse to the CFMEU and the CEPU. The CEPU responded by asserting that the Agreement applied at PCQ's Terminal X25 and X30 expansion but did not apply to the X50 project. Mr Dettmer took the same position in his letter of 13 February 2009. The four officials entered the site on 13 February 2009. Mr Ingham maintained the position that the officials had no right of entry and made that position plain to them again. Mr Ingham asserted that position to the employees at the meeting that day. Mr Ingham notes the content of what was said to the employees in the meetings. The officials told the employees that there was no agreement in place for the site, they had a right of entry and the Unions would fight for an agreement and pursue John Holland industrially and legally. When Mr Bradley entered the site on 13 February 2009, he placed particular emphasis upon the consideration that X50 was a label or term not used in the Agreement. Mr Bradley accepted that in general terms in determining whether employees fall within the rules of coverage of the Union, the first thing to do is to look at the work the men or women are performing and compare that work or those duties with an award which covers members of Mr Bradley's Union. Mr Bradley believed that the Agreement did not apply because there was separate signage to a separate area and John Holland had attempted to amend Appendix 1 to the Agreement. Mr Bradley placed particular emphasis upon the separate signage as a differentiating factor. Mr Bradley accepted that he elected to enter the X50 work site in knowing defiance of John Holland's position simply on the basis of the sign at the front of the work site and the proposed variation. He had no evidence before him that any work other than Appendix 1 work was being carried out at the X50 work site. Mr Ong believed that X25 and X30 was a different site or a different place and although John Holland asserted that the officials had no right of entry, the officials disagreed with that position. Mr Hatcher asked Mr Ong whether he had a look at the scope of works in the Agreement to determine whether that work was being done on the X50 work site. Mr Ong said that he looked at the title of the Agreement which showed that the scope of works covered X25 and X30 (see clause 4.1). Mr Hatcher put to Mr Ong that it was not Mr Ong's usual practice to determine whether an industrial instrument applies to members of the CEPU by just looking at the title. Mr Ong agreed that the proper course was to determine whether an agreement applies to CEPU members by its coverage and whether the CEPU is a party to the Agreement. Mr Ong in cross-examination with Mr Herbert pressed his position that he assumed that the site was divided up and that an agreement had been reached with the AWU as to X25 and X30 and that the CEPU had an opportunity to enter into an agreement with respect to X50. Mr Robinson did not look at the Agreement at all. Nor did Mr Lowth. Mr Dettmer gave evidence of good or best industrial practice and agreed that when a party contends that an agreement applies and the claim is seriously pressed with the threat of legal action, the basis for that claim is something that needs to be enquired into and ought not to just be ignored, for the reason that the claim may be good or bad and the merits of the position should be determined. Mr Dettmer said that he looked at the Agreement but he did not read Appendix 1, which sets out the scope of work the employees would be undertaking on the site to be entered. In the absence of any careful examination of the content of the Agreement, including Appendix 1, and a proper assessment of the work covered by the Agreement so as to inform a person's judgement as to whether the work being undertaken on the X50 work site was within the field of that work, the conduct of entering the X50 work site in purported reliance upon s 760 of the Act to conduct discussions with employees of John Holland was not reasonable. On 13 February 2009, the Union officials had reasonable grounds before them for believing that entry to the site was not authorised. The Abbot Point Coal Terminal is a significant coal loading facility for the export of coal. There is a Workplace Expansion Agreement between the employer, its employees and the AWU which provides for terms and conditions of employment in the performance of work. Entry to such a site by Union officials, who assert a right to engage with employees in the context of encouraging them to the view that the relevant officials might seek to establish another agreement, fly-in/fly-out terms or the formulation of a new log of claims, with the resultant potential for dislocation of a settled industrial situation, ought reasonably to only occur in circumstances where those officials and their Unions have reached a considered view about the right of entry after having carefully assessed the claim by the employer that the officials have no right of entry. The election to rely upon a descriptive label or a separate sign or a proposed amendment to Appendix 1, without looking carefully at the Agreement and Appendix 1 to understand clearly the scope of work it covered, is plainly unreasonable conduct. On 27 February 2009, Herbert Geer sent a lengthy letter to the CFMEU, AMWU and CEPU setting out in 20 pages a detailed analysis of the view that work undertaken by John Holland employees at the X50 work site is covered by the Agreement. Notwithstanding that letter, Mr Bradley and Mr Robinson served further notices of entry for 5 March 2009. Mr Robinson and Mr Bradley agreed that they had seen the letter. The inference is that Mr Robinson and Mr Bradley elected to enter the site on the footing that they disagreed with that letter. However, Mr Robinson agreed that he did not look at the Agreement. He could not have carefully considered the letter in the context of the Agreement. Mr Lowth agreed that although he knew from November 2008 that all of his members were being paid under the Agreement, he did not look at the Agreement either. Mr Dettmer did not read Appendix 1 to the Agreement. There was simply no focused analysis by the Unions or their officials as to whether the objection made by John Holland might be correct. The clear inference is that the Unions and their officials had already determined that the reference in the Agreement to X25 and X30 necessarily meant that the Agreement could not apply to work done on the X50 work site. Whether a person has reasonable grounds to believe that entry is not authorised involves an objective assessment of whether facts were before that person sufficient to induce a reasonable person to believe that grounds existed for denying authority to enter. That view is consistent with the approach to the notion of "reasonable grounds" in George v Rockett (1990) 93 ALR 483 and Rema Industries and Services Pty Ltd v Coad & Ors (1992) 107 ALR 374. In determining whether reasonable grounds for a belief exist, there is a relationship between the objective facts that must engender such a belief and the role, standards and duties of the person confronting the relevant facts. In this case, the officials are permit holders under the Act and Mr Dettmer is an experienced State Secretary of the AMWU. In the face of an employer's objection to entry in the manner of 19 November 2008 and correspondence from the employer pressing that objection, a permit holder and the Unions as organisations, must necessarily give consideration to the merits of the employer's claims and form a view as to whether the claims are well placed or not. If the Unions and the permit holders are satisfied that the claims are misplaced , the demonstrated consideration of the claims is very likely to suggest that the relevant person when seeking to enter the site had reasonable grounds for believing that entry was authorised even though events may subsequently demonstrate that entry was not authorised. Persons in the position of permit holders or officers of Unions cannot be said to have acted reasonably in the absence of reasonable investigation and enquiry into objections made and strongly pressed denying the very right of entry relied upon by those seeking entry. That follows because statutory rights of entry to premises carry with the exercise of those rights corresponding duties of enquiry to be reasonably satisfied that entry is authorised in the context of the facts and circumstances before the entry seeker. That corresponding duty is not only a function of a balance between rights and obligations but derives from Part 15 of the Act, the objects recited in s 736 of the Act and the regime established for granting permits to enter. As to s 768(1), I am satisfied that the four Union officials entered the site on 13 February 2009 and engaged in the conduct of holding meetings with John Holland employees with the intention of giving those employees the impression that the officials were authorised by Part 15 of the Act to enter the site for that purpose. I am satisfied that the circumstances prevailing at that time were that the Union officials were not authorised by Part 15 of the Act to enter the site for the purpose of holding those meetings and I am further satisfied that the Union officials had on 13 February 2009 reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so. I am further satisfied that Mr Robinson and Mr Bradley entered the site on 5 March 2009 and engaged in such conduct again with the intention of giving the relevant employees the impression that the officials were authorised by Part 15 of the Act to do so for the relevant purpose. I am further satisfied that entry occurred in circumstances where Mr Robinson and Mr Bradley had reasonable grounds to believe that they were not authorised by Part 15 of the Act to do so. Accordingly, I am satisfied the contraventions of s 768(1) of the Act have been made out. As to s 767(1), I am satisfied that Mr Bradley, Mr Robinson and Mr Lowth on 13 February 2009 and Mr Bradley and Mr Robinson on 5 March 2009, purported to exercise rights under s 760 of the Act notwithstanding that no such rights subsisted. I am satisfied that each Union official entered the site for the purpose of and with the intention of seeking to convene a meeting with John Holland's employees consistently with the notices they had given under ss 738 and 760 of the Act. John Holland accepts that some of its employees were eligible to become members of the CFMEU and the AMWU although there were not "eligible employees" on site for the purposes of s 760. John Holland contends that it has no employees who were eligible to become members of the CEPU/ETU. The position in relation to Mr Ong is a little less clear. As a result of the entry to the site on 19 November 2008 and the conversation he deposes to with Mr Ingham, it seems that it was unclear to Mr Ong whether workers were engaged in electrical work at the X25 work site or the X50 work site. Mr Ingham had made it plain to Mr Ong that John Holland had no employees engaged in electrical work at all on the X50 work site. Mr Ong's notice of entry seems to be confined to entry for the purpose of holding discussions with employees of John Holland. Nevertheless, for the purposes of s 767(1), I accept that Mr Ong was purporting to exercise rights under s 760 although it may not have been clear to him that there were, in fact, employees of John Holland on site who may have been eligible to become members of the CEPU. The question of whether a person is seeking or purporting to enter premises in reliance on s 760 of the Act is itself a question of fact. There are three remaining questions. The first is whether Mr Ingham was hindered or obstructed by the Union officials (that is, a permit holder) on 13 February 2009 or 5 March 2009 as a question of fact ( Pine v Doyle ; Standen v Feehan ; O'Reilly v State Bank of Victoria Commissioners (1982) 153 CLR 1). The second is whether the officials engaged in that conduct intentionally. The third is whether the conduct of the officials offended the prohibition upon a permit holder otherwise acting in "an improper manner" and whether that conduct must be engaged in intentionally. There is no doubt that Mr Ingham on both days was diverted from discharging his normal duties. He was called to the entry gate and was compelled to deal with the events of entry that the officials knew was the subject of John Holland's objections. He also sought to manage the events of entry by discouraging the officials from continuing to enter the site as they walked along the road towards the smoko or crib huts and by engaging the officials and requesting and/or ordering them to leave the site. Mr Ingham chose to wait with the officials until the employees had their break and chose to be present when the officials spoke to employees in the huts. His election to wait and be present was a function of managing the consequences of unauthorised entry. I accept that the Union officials did not enter the X50 work site on 19 November 2008 with the intention of hindering or obstructing Mr Ingham or other employees of John Holland. At that time, the officials thought that X25 and X30 meant something different from X50 and they believed John Holland had attempted to change Appendix 1 to introduce a reference to X50. I accept that in a practical sense the understanding of each permit holder that John Holland had taken steps on 3 November 2008 to propose a change to Appendix 1 to introduce a reference to X50 must have suggested to them and reinforced in their mind that John Holland thought the Agreement did not apply to the expansion work on the X50 site. They still thought that when they entered the site on 13 February 2009 because they continued to act on assumptions they had made. However, by 13 February 2009, John Holland had repeatedly made its strong objections clear on 19 November 2008 and correspondence asserting its position had ensued. The officials had not considered the content of the work described in Appendix 1 to the Agreement. Nevertheless and notwithstanding Mr Dettmer's acceptance that good practice required an examination of John Holland's claims, the officials entered the site on 13 February 2009 and 5 March 2009 without making enquiries that would have been likely to reveal the subsuming of the Appendix 1 work within the X50 Expansion adopted by PCQ. The question then is whether the officials are to be taken to intend the natural consequences of their conduct. It must have been plain to the officials that a senior officer of John Holland would be compelled to respond to the events of entry on those days by dealing with the men at the gate, engaging with the men as they continued to walk towards the crib huts and by engaging with them at the crib huts. The officials may not have intended to substantially impede Mr Ingham from performing any of his duties in the ordinary way but equally, they must have been aware that what they were doing by entering the site, progressing along the road and seeking to convene meetings with the employees, was likely to impede Mr Ingham in the course of his normal duties due to the chronology of events. Yet, the officials nevertheless decided to enter the site and continue to maintain a presence on the site until they had completed the things they perceived they were entitled to do. It is unrealistic to think that Mr Ingham in the context of John Holland's claims, objections and correspondence would simply leave the site to the officials and not engage with them on their right of entry in circumstances where John Holland viewed the matter sufficiently seriously that it would take proceedings about it. Accordingly, it seems to me that the officials must be taken to have intended the natural consequences of their conduct of entry in circumstances where they had not investigated carefully the merits of John Holland's position and they knew John Holland held strong objections. Although it is true that Mr Ingham was free to leave the gate and free to choose not to intercept the officials on the road and free to choose not to engage with the officials at the crib huts or be present during the course of their address to the employees, it is unrealistic to think that Mr Ingham would not maintain that degree of engagement on the act and consequences of entry, on behalf of John Holland. The permit holders must be taken to have been aware that entry on 13 February 2009 and 5 March 2009 would impede either Mr Ingham or others in a similar position to Mr Ingham within John Holland and in that knowledge they elected to enter the site. Accordingly, I find that the acts of entry by the permit holders on 13 February 2009 and 5 March 2009 in the manner found at [98] to [127] amount to a hindrance and obstruction of Mr Ingham in the conduct of his duties to John Holland. I find that the conduct was intentional in the sense that the conduct was unreasonable as the permit holders must be taken to have been aware that their conduct in entering the premises in all the circumstances described in these reasons was likely to impede Mr Ingham and nevertheless the permit holders elected to enter the site, progress to the crib huts and conduct meetings with employees of John Holland in the circumstances previously described ( Pine v Doyle (supra); Leonard v Morris (1975) 10 SASR 528). Accordingly, I am satisfied that contraventions of s 767(1) occurred on 13 February 2009 and 5 March 2009. As to the third question, s 767(1) may contemplate that in circumstances where a permit holder acts unreasonably by purporting to exercise a right of entry to premises under s 760, the act of entry is not only unauthorised but may constitute acting in an improper manner. The act of entry may be improper because it is unreasonable as the permit holder has failed to investigate, either alone or in conjunction with his or her Union, whether strongly held and articulated grounds of objection to entry have any merit. Ignoring an obligation to subject those objections to any reasoned assessment before seeking to exercise a contended right of entry seems to suggest that in seeking to exercise a contended right of entry, the permit holder is acting "in an improper manner". The conduct satisfying the second limb must be conduct or an act other than the Act of hindering or obstructing a person. Mr Ingham was hindered in the performance of his duties by being required in any practical sense, to deal with the events of unauthorised entry and the determination of the permit holders to meet with and address the employees on site. The section however engages conduct in the course of seeking to exercise a right of entry. The quality of the conduct engaged, is hindering and obstructing any person and the second limb engaging the notion of otherwise acting in an improper manner, takes its character from intentional acts of hindrance and obstruction. In other words, the question asked by the section is what manner of act did the permit holder do or fail to do in the course of seeking to exercise a right of entry? The act of entry itself is not engaged by s 767(1) of the Act. I am not satisfied that any contravention of s 767(1) of the Act has occurred by reason of the second limb of that section. In the course of evidence it became plain that none of the permit holders nor any of the Unions had sought to enter the X25 work site, on the footing that they accepted that the Agreement plainly enough applied to those premises. It necessarily follows that upon a determination that the Agreement applies to the X50 work site, there is no basis for concluding that either the permit holders or their Unions are or would threaten unlawful industrial action or that such action is impending or probable. The question of the pecuniary penalty to be imposed in respect of the contraventions of s 767(1) and 768(1) is to be the subject of a separate determination. On 1 July 2009 the following Commonwealth Acts commenced operation, the Fair Work Act 2009, the Fair Work (Registered Organisations) Act 2009 and the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009. Having regard to the findings, it seems to me that declarations ought to be made in terms of paras 1, 3, 4, 5 and 6 of the Further Amended Application filed by John Holland on 28 April 2009 in proceeding QUD63 of 2009. Paragraph 7 of the Further Amended Application seeks an order for a permanent injunction restraining the CFMEU, AMWU and CEPU from engaging in any industrial action at or in connection with the operation of John Holland at Abbot Point pursuant to PCQ's X50 Expansion project until further order. It seems to me that I should entertain further submissions in relation to the scope of relief to be the subject of further orders in proceeding QUD63 of 2009 having regard to whether any of the legislation of the Commonwealth mentioned at [182] has particular application or implications for remedies arising out of conduct that occurred prior to the commencement of the new legislation. The formal orders in QUD63 of 2009 for present purposes will simply be that the proceeding is to be listed for further argument on the question of the scope of the relief to be the subject of final orders in that proceeding, at a date to be nominated by the Court suitable to counsel for the parties. The appropriate order in proceeding QUD66 of 2009 is that the Application is dismissed. Although it seems to follow that the costs of that proceeding ought to be ordered against the first to seventh applicants, the question of costs has not been addressed. Accordingly, I am willing to hear the applicants in QUD66 of 2009 on the question of costs. Proceeding QUD66 of 2009 ought to be listed together with QUD63 of 2009 in order that the question of costs might be determined. I will hear the parties in relation to the question of costs in proceeding QUD63 of 2009. I certify that the preceding one hundred and eighty-eight (188) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.

consideration of an application for declarations and related relief in connection with a greenfield workplace agreement made between an employer and the australian workers' union under the workplace relations act 1996 (cth) consideration of whether the agreement covers work undertaken as part of an expansion of the abbot point coal terminal consideration of whether permit holders under the act had a right of entry to premises under s 760 of the act consideration of the elements of civil penalty provisions s 767(1) and 768 (1) of the act consideration of the circumstances in which a permit holder may be taken to act intentionally for the purposes of s 767(1) consideration of hindering and obstructing for the purposes of s 767(1) consideration of whether "reasonable grounds" subsisted for a relevant belief for the purposes of s 768(1) of the act industrial law industrial law

The basis of the application, although not explicitly stated in the document filed in the court, would seem to be the Administrative Decisions (Judicial Review) Act 1977 . For reasons that will transpire it matters not whether it is that statute or the Judiciary Act 1903 , which is called in aid in some way to ground the relief sought, or at least a declaration in respect of the validity of that warrant. It is necessary to observe "then alleged", because much has happened since 6 May 2001. 2 A convenient recitation of the events that are a background to this proceeding is to be found in the head note of the decision of the High Court in Nudd v R [2006] HCA 9 ; (2006) 225 ALR 161. On board they found 89 kilograms of cocaine. There were two men on the yacht when it was boarded, a citizen of the United States, Peter Jackson and his son, Gareth Jackson. They left Mexico in May 2000 on the yacht and sailed to Noumea. From there they flew to Australia on 7 December 2000, where they remained until their visas expired in March 2001. On 7 March 2001, Peter Jackson fled to the United States where he obtained a false United States passport. On 28 March 2001, he flew from the United States to Noumea on the false passport. He then sailed the yacht from Noumea to Moreton Bay where the boat was intercepted. The part of the period of three months, in which the two men were in Australia, they lived in a motel in Sydney. A listening device had been installed in their room to intercept telephone conversations. Eleven of those conversations were between Peter Jackson and the appellant, - (whom I interpolate is the applicant presently before me) - , who was an Australian citizen and then living in Los Angeles. The appellant was charged --- (in other words, the present applicant was charged) --- with being 'knowingly concerned' in the importation of cocaine into Australia contrary to section 233B of the Customs Act 1901 . The intercepted conversations between the appellant and Jackson, the prosecution contended, showed clearly that the former was assisting, or attempting to assist in the resolution of the problems of making arrangements for the importation. The appellant was convicted by the Supreme Court of Queensland of the offence, charged and sentenced to 22 years imprisonment. An appeal to the Court of Appeal was dismissed. The appellant appealed to the High Court contending there was a miscarriage of justice because of the incompetence of counsel who: failed to understand and properly advise on the elements of the offence charge; failed to take appropriate instructions; failed to appreciate or advance two lines of defence reasonably open; made submissions of fact in error and/or without instructions to do so; failed to object to inadmissible and highly prejudicial material contained in the telephone intercepted tapes, being admitted. Notwithstanding that, the Court further concluded that he had not been deprived of a chance of an acquittal because the case against him was a strong one and effectively unanswerable. 4 It is necessary to say something further about the chronology of events that led up to that High Court appeal. As I have mentioned, on 6 May 2001 an arrest warrant sought to be impeached in these proceedings was issued. On 28 February 2002, an extradition occurred with the result that Mr Nudd was returned to Australia and then remanded in custody. He was convicted on 22 July 2003, before a Supreme Court Judge and a jury. It was then that the sentence of 22 years imprisonment was imposed with a non-parole period of 11 years. On 14 May 2004, his appeal against conviction, a sentence appeal having been abandoned, was dismissed. The High Court proceeding that I have mentioned concluded with the dismissal of the appeal, following an earlier grant of special leave on 9 March 2006. 5 Since then, in a number of ways, in the Courts of the State of Queensland, Mr Nudd has sought to ventilate whether the original arrest warrant was valid. It suffices to note that none of those proceedings has been successful. The Respondents to the application have today sought its dismissal on the basis that it is an abuse of process. They particularly point to s 9A of the Administrative Decisions (Judicial Review) Act and its deprivation where it applies on this Court's jurisdiction. 6 One may note that the position ought not be any different were it the case that, in some way, it was the Judiciary Act 1903 that was called in aid in respect of the application. That is because there is in both the Judiciary Act 1903 in s 39B (3) and in the Administrative Decisions (Judicial Review) Act , s 9A , a coincidence of reference and definition. That coincidence is in the term "Related criminal justice process decision". For that reason I consider only s 9A of the Administrative Decisions (Judicial Review) Act . Related criminal process decision in relation to an offence is defined to mean relevantly. Arguably, the effect of s 9A is that having regard to the pending appeal and the nature of the proceeding before Byrne J, this Court has no jurisdiction under the Administrative Decisions (Judicial Review) Act to entertain the present application. 9 Further, a like conclusion would necessarily follow for the reason I have given in respect of any reliance on the Judiciary Act 1903 . There is though, even assuming that s 9A does not apply to deprive this Court of jurisdiction, an underlying reason why it is that the Court ought not to entertain it. Before enlarging on that, I should out of deference to the precise argument given by Mr Nudd today, detail the bases of the substantive challenge that he seeks to make to the arrest warrant. 10 The essence of the challenge is to be found in his view as to the effect of s 57 of the Justices Act 1886 (Qld) in relation to the power of the acting magistrate to issue the arrest warrant. Firstly, he says that at the time when the warrant was issued he was not in Australia and, therefore, not within the jurisdiction to which reference is made in s 57 of the Justices Act . Secondly and in any event, in respect of s 57 , he submits that the alleged offence is not one which occurred within the jurisdiction described in s 57. He is encouraged in the making of that submission by an opinion that his then solicitors received from a member of the Bar in Queensland in November 2001, in which the opinion is expressed that the first instance warrant issued on 6 May 2001 was issued improperly. 12 It is a noteworthy feature of that opinion that it contains no reference to the operation of Federal law in the application of State provisions to procedures for the arrest, committal, trial and appeal of Federal offenders. Tempting though it is in those circumstances to express a concluded view as to whether there is any merit whatsoever in the challenge made to the warrant, that is something I must not do, even apart from the operation of s 9A. A fundamental reason, and that to which I have earlier adverted, is that it would be subversive of the orderly operation of the Australian criminal justice system for this Court at this stage to express any opinion whatsoever in a concluded way as to the validity of that arrest warrant. 13 The reason for that was, with respect, precisely put by Byrne J in dismissing the application to the Supreme Court of Queensland on 30 July 2007. It applies with equal force in respect of the relief sought by Mr Nudd in the application filed in this Court. It is to be remembered that a challenge of the kind which is now sought to be brought is one which, at the very latest at the trial in the Supreme Court could have been ventilated, if not at earlier points in time. For those reasons then the application made by the respondents for the dismissal of Mr Nudd's application should be granted. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan.

search warrants application for judicial review under administrative decisions (judicial review) act 1977 (cth) of a decision to obtain a search warrant application of s 9a administrative decisions (judicial review) act where s 9a administrative decisions (judicial review) act excludes review of this decision from the jurisdiction of the federal court due to the pending appeal and nature of the proceeding before another court. administrative law

The parties are both Australian importers and wholesalers of electrical appliances. The applicant was the first to import the vacuum cleaner from China, and secured design registration under the Designs Act 2003 (Cth) ("the Designs Act ") in relation to the product. It also claims to have a contract with the Chinese manufacturer for the exclusive distribution rights for the product in Australia. But the Chinese manufacturer has also supplied the respondent with large quantities of the same vacuum cleaner, knowing that the respondent's purpose was their wholesale distribution in Australia. Within this broad context, the case raises issues of the validity of the applicant's registered design, whether a letter of demand sent on behalf of the applicant constituted an unjustified threat of design infringement, whether the respondent induced the manufacturer to breach a contract which it had with the applicant, and associated questions to which I shall turn in due course. Many of these goods are sourced from China and are sold by wholesale in Australia under the applicant's brand "Genius". Although the applicant imports only seven products, it lists many more --- possibly up to about 100 it would seem --- on its web site on the basis that it would be able to obtain those products should a retailer show an interest in them. The applicant does not import goods in the hope or expectation of finding an Australian buyer for them. Rather, its modus operandi is to secure firm orders for particular goods from Australian retailers, and then to fill those orders by ordering the goods in question from the overseas supplier. If the arrangements made by the applicant as disclosed in the evidence in the present case are typical, the applicant needs first to identify a product from an overseas source, then to reach some kind of understanding with the supplier about price and other commercial details, and finally to procure a retailer in Australia to place orders for the product. The orders are filled, it seems, by the overseas supplier sending the goods direct to the retailer. Physically, the goods do not pass through the custody of the applicant. Neither does the applicant carry the risk of unsold goods in the Australian market. 3 Mr Peter Jabbour describes himself as the managing director of the applicant, although he is not a director. The only director and shareholder of the applicant is Mr Jabbour's wife who, according to Mr Jabbour, stays at home and is not involved in the business much. Mr Jabbour is manifestly the directing mind and will of the applicant --- in his words, he is "looking after the company". He was the only representative of the applicant who gave evidence. 4 Neither Mr Jabbour nor his daughter (Tania Varela, who works for the applicant) speaks Chinese. For this reason, and also because of the particular way the Chinese do business, and the importance of establishing a relationship of trust with the Chinese, the applicant uses the services of an agent based in Singapore, Mr Giyoke Tseng, who is fluent in Chinese and English. Mr Tseng's role, it seems, is (or at least includes) making contact with Chinese suppliers and functioning as the applicant's representative in the establishment of the terms upon which it would do business with those suppliers. 5 The respondent, Tempo (Aust) Pty Ltd, is an importer and wholesaler of household consumer items, including vacuum cleaners. Mr Nicholas Stergiotis is its sole director and shareholder. The business conducted by the respondent was originally conducted (by another company) under the name "Onix". That business appears to operate along similar lines to those of the applicant's business. Like the applicant, the respondent sources household goods from overseas suppliers and, if what is disclosed by the evidence is typical, places orders with those suppliers only upon receipt of an order from an Australian retailer. Also like the applicant, the respondent conducts its business through agents or representatives in Asia. Its arrangements in that regard appear to be a little more developed than those of the applicant. Mr Stergiotis is also the sole director and shareholder of Global Asia Pacific (HK) Ltd ("GAP"), a company based in Hong Kong. When the respondent sources products from China, it does so through GAP. When such products are sourced from Shanghai or northern China (such as Suzhou), GAP in turn engages an agent to deal with the Chinese factory. The agent concerned in the transactions which became relevant in the present case was Cuori International (HK) Co Ltd ("Cuori"). 6 On the retail side, for the purposes of this case it will be sufficient to note that there are two categories of major retailers which have an involvement in vacuum cleaners. The first is made up of stores which specialise in the product and carry a wide range of different makes and models. The retailer in this category which was the subject of particular attention in this case is Electrical Home Aids Pty Ltd, which trades as "Godfreys" in New South Wales, Queensland, South Australia, Western Australia and the mainland Territories (but not in Victoria and Tasmania, where an unrelated company trades as "Godfreys", also in the retailing of vacuum cleaners). I shall refer to Electrical Home Aids Pty Ltd as "Godfreys". 7 The second category of retailers is made up of large variety chain stores which sell many different products of which vacuum cleaners are only one. They tend to select particular vacuum cleaners for sale as promotional items from time to time. They do not stock a range of different models. They include retailers such as Woolworths, Homeart, The Warehouse, Go-Lo, Crazy Clarks, K-Mart and Target. 8 It seems that bagless vacuum cleaners appeared on the Australian homewares retail scene about five years ago. It is said that they have certain advantages over cleaners of the traditional design which use a bag for dust collection. There are about 50 different bagless vacuum cleaners presently being offered at retail in Australia. The competition is intense, particularly since manufacturers in China have commenced to supply the market. I gather from the tenor of the evidence that the principal characteristics of a particular vacuum cleaner which are thought to be attractive to the consumer are power, appearance and price. Specifically, it is common ground that, other things being equal, a consumer would almost inevitably prefer a higher-powered model over a lower-powered model. At about the end of 2004, there was no vacuum cleaner on the market with a power of 2200W or greater. He sought to interest Mr Tseng in a new cyclonic bagless vacuum cleaner manufactured by Suzhou Fak, which had the model designation MC-801. On the same day, Mr Tseng replied by email in which he said that the new model looked "not bad", and that he had a customer in Australia who bought lots of vacuum cleaners. However, he stipulated a number of conditions which would have to apply if his customer were to take the MC-801: a very attractive price, very good quality, very good performance and "exclusive distribution support to succeed". He said, in effect, that these conditions were necessary because of the competitive nature of the market. 10 On 16 December 2004, Mr Tseng received an email from the owner of Suzhou Fak, Mr Terry Ding. His response to Mr Tseng's conditions was encouraging. In relation to the requirement of exclusive distribution, Mr Ding mentioned another company of which he had been the marketing manager, and added "your success means my achievement". Mr Tseng replied the same day, indicating that he would introduce the MC-801 to his "Australia / New Zealand customer". He said that, if they were going to proceed, they would have to do so immediately. 11 On 20 December 2004, Mr Tseng sent an email to Mr Jabbour, in which he said that he had a friend who had recently set up his own vacuum cleaner factory, and that their first model was a very powerful one, the MC-801. Mr Tseng said that he would contact Mr Jabbour later to explain further, and "if OK, I will go back to discuss further detail with them to get exclusive to secure our effort so that we can add this new model into our 2005 new product line". 12 On 24 December 2004, Mr Tseng sent Mr Jabbour a further email, which was tendered by the respondent. But because as said earlier, it is their new and first product, in the meantime they have confidence that many customers will definitely like and willing to distribute this model but in the meantime they also hope to move and confirm asap and therefore they would like to keep us as first priority to decide whether and when we will start moving this model then can authorize the Exclusive Certificate to us and let us apply the design registration. Which means they said in case our buyer has no interest to go with this model, then they will sell to other Australia company. Therefore they want us to confirm more further asap and let them know whether we want it or not seriously, if we want it, then they can sign the Exclusive to us. Could you please evaluate serious first and let me know your thought and decision, if positive to go, I will then go to discuss with them again to settle this matter. Mr Jabbour thought that Godfreys would be interested in the product. He sent a copy of the specifications to the Managing Director of Godfreys, Mr John Hardy. In discussions about the proposal with Mr Jabbour, Mr Hardy said that he would consider stocking and promoting the vacuum cleaner only if the applicant guaranteed "exclusivity", that is to say, promised a situation in which Godfreys would be the only retailer stocking the product. If that were done, Mr Hardy said that he would place an initial order for at least 5,000 units, and thereafter place orders according to demand. He asked Mr Jabbour for samples for testing, and for development of the artwork (for the outside of the box in which the product would be sold). 14 On about 5 January 2005, Mr Jabbour telephoned Mr Tseng and told him that the applicant would be interested in importing the vacuum cleaner, providing that Suzhou Fak could guarantee exclusive supply into Australia. On 7 January 2005, Mr Tseng emailed Mr Jabbour in the following terms. We, Vendor hereby authorize the Distributor as our Exclusive Distributor in the territories of Australia and New Zealand for the Vacuum Cleaner Model MC-801 series, with effective from the date this Certificate is signed. • Port of Loading: Shanghai, China. • Port of Destination: Assigned by Distributor Order by Order. • The Vendor will provide 1% Free Spare Parts on every container order. 16 It appeared from evidence of the way in which transactions between the applicant and Suzhou Fak later proceeded that the reference to "1% free spare parts" did not mean spare parts at all; rather, it signified that, with every order of vacuum cleaners, Suzhou Fak would include a further number of units free of charge, amounting to 1% of the number of paid for. That is to say, with every 100 units purchased and paid for, Suzhou Fak would include one more unit. 17 It will be seen that the authorisation referred to in the second paragraph of the exclusive distribution certificate was to be effective from the date the certificate was "signed". Below the text, there was an execution line, introduced by the word "Authorizer" and under which appeared Mr Ding's name and position with Suzhou Fak. There was no signature on the line. Instead, there was the impression of a circular stamp, in the centre of which was a 5-pointed star, and around the inside circumference of which were Chinese characters. There was no evidence as to the meaning or significance of this stamp. 18 After the issue of the exclusive distribution certificate on 10 January 2005, there is no evidence of any relevant event for the next 10 weeks or so. It is a fair inference that Mr Ding was starting to become concerned, since on 22 March 2005 Mr Tseng wrote to Mr Jabbour by email, in which he referred to a conversation which he had just had with "2200W Bagless supplier". 19 In late March 2005, the applicant supplied Godfreys with a sample of the MC-801 vacuum cleaner for testing. 20 Over the period 16-20 April 2005, the Chinese Export Commodities Fair ("the Canton Fair") was held in Guangzhou. Manufacturers from all over China had their products on display. Mr Stergiotis went to that fair, in company with Mr Vinay Mahtani, Manager of GAP, and Mr Simon Woodward, Senior Buyer for Discount Variety Group ("DVG"), a division of Miller Retail Ltd (the company which operated Crazy Clarks, Makro Warehouse and Go-Lo variety chain stores). One of the Chinese manufacturers with products on display was Suzhou Fak. The MC-801 was on display. On the first day that they attended the fair, Mr Stergiotis and Mr Mahtani (unaccompanied then by Mr Woodward) looked over many products on display, and encountered the MC-801 at the Suzhou Fak booth. They spoke to Mr Ding, who gave them a brochure for the product. Mr Stergiotis liked what he saw, and thought that the vacuum cleaner would sell well in Australia. On the following day, he and Mr Mahtani returned to the Suzhou Fak booth in company with Mr Woodward. Mr Woodward was very impressed with the MC-801. Mr Stergiotis took photographs of the product. Mr Ding asked Mr Stergiotis how big a company the respondent was, and how successful it would be in retailing his product. 21 There is a question whether Mr Stergiotis was told by Mr Ding, at the Canton Fair in April, that another wholesaler had already secured the exclusive right to distribute the MC-801 into the Australian market. In chief, Mr Stergiotis said that Mr Ding then told him that, if the respondent placed an order for the product for delivery to Australia, Suzhou Fak would accept and fill that order. No evidence that he gave under cross examination was inconsistent with what he said in chief --- indeed, he was cross examined from a standpoint which appeared to accept what he said in chief. Mr Woodward gave evidence that he asked Mr Ding whether the MC-801 was available for sale to Australia, and he received a response in the affirmative. He was not cross examined on that evidence. Mr Mahtani did not say anything specifically about the matter in chief, but he was cross examined as though he had come away from the fair with the impression that the product was available for sale to Australia. When it was put to him that he thought that Mr Ding had offered to supply the product, he responded, "he was confirmed". It was then put to him that he was surprised when Mr Ding later refused to supply, and Mr Mahtani responded, "just disappointed". Notwithstanding the apparent consistency of the evidence of all three witnesses, at a point in the cross examination of Mr Mahtani, he said that it was in April 2005 that he became aware that Suzhou Fak had an arrangement with another Australian company for the supply of the MC-801. Whether this awareness arose from something that Mr Ding had said at the fair, and/or in the presence of Mr Stergiotis, was not explored. In the circumstances, including the record of Mr Stergiotis's reaction in his email of 16 May 2005 to which I refer below, I think it most probable that Mr Ding said nothing at the fair, or until his email of 6 May 2005 to which I also refer below, to qualify what I find to be a statement by him, made at the fair, to the general effect that the MC-801 was available for sale to Australia. 22 A number of things happened in May 2005 involving, quite separately, the applicant and the respondent. After returning to Australia from the Canton Fair, Mr Stergiotis gave the MC-801 brochure that he had obtained from Mr Ding to Phillip Tin, the respondent's product manager. Mr Tin scanned the images of the MC-801 on to his computer, and used that to create electronic files which he subsequently used to create representations of the vacuum cleaner on the respondent's web site. He created the electronic files on 25 May 2005. 23 On 6 May 2005 Mr Stergiotis sent an email to Mr Ding in which he referred to their conversation at the Canton Fair. He sought further information about, and samples of, the MC-801. He asked Mr Ding to keep in mind that he represented large Australian retailers, and that his prices should reflect large quantities. Mr Ding responded by email immediately, saying that "one customer has ... the exclusive rights in Australia market" so he could not supply samples. WHY HAVE YOU NOT HONOURED YOUR AGREEMENT WE MADE? Our company sells many vacuum cleaners in Australia and our orders are always very big each time. Which company has received it on a exclusive basis? In par 18 above I referred to a test report and certificate sent to the applicant. It seems that these related to the need to obtain a certificate of approval for the sale of a new electrical article required by Australian law. Mr Jabbour explained in evidence that he sought a certificate in Queensland because that involved a process for approval which was quicker than elsewhere. On 16 May 2005, the Director --- Equipment Safety of the Electrical Safety Office within the Queensland Department of Industrial Relations signed a "Certificate of Approval for an Electrical Article" under the Electrical Safety Act 2002 (Qld) ("the Electrical Safety Act ") in relation to the MC-801, showing a date of registration of 11 May 2005. The registration was for a period expiring on 11 May 2010. The applicant sent a copy of that certificate to Godfreys on 19 May 2005. 25 The applicant received its first order for MC-801 vacuum cleaners from Godfreys on 18 May 2005. It was for 1,000 units. They were to be sold under the applicant's brand "Genius". On the same day, the applicant placed that order with Suzhou Fak. By comparison with orders later made by the respondent for the same product (to which I refer below), it is probable that Mr Ding regarded this as a rather modest order. However, the applicant subsequently placed fairly regular orders with Suzhou Fak for the MC-801 vacuum cleaner. It appears that about 26,000 units had been ordered to the end of December 2005. 26 On 27 May 2005, Mr Ding dispatched two emails, although it appears that they were sent many hours apart on that day. First, he wrote to Mr Stergiotis. I have been talking about the business with them from the beginning. At last, I didn't give them the exclusivity due to their order qty annually. In order to avoid any confusion in Australia, I still suggest you to try this item in New Zealand market. Now, we have developed one new filter system for MC-801. That is, we can set one filter frame to cover the central HEPA filter ("model B"). Which one are your favourite? 27 Mr Ding's second email on 27 May 2005 was to Mr Tseng. He said he was very worried about "the marketing development in Australia". Considering that you have not had good order by now (near half year), as a new factory, I am worry about it and need to consider our own production quantity in order to survive and therefore I am considering may be need to have a back up buyer in case WOT is not selling well as we expected, then at least we still have other buyer to sell to and to keep our line. And therefore I'm considering to agree with him if no further good orders from your side soon. Only to do like this, I can keep Australia market in case you fail in the market developing. If after a certain period we still not doing good as we promised, then of course we can not keep stopping you to sell to other Australia customer, but at the moment, as we just starting, we need your fully trust and support and please kindly keep me informed all the time if there is any further enquiry to you from Australia so that we can discuss each others and know what to do next step. Ltd. With its principal address at 25 Hub Arcade, 15-23 Langhorne Street, Dandenong, Victoria --- 3175, Australia, to proceed the Design Registration of our Model Number MC-801 Bagless Vacuum Cleaner in Australia. However, the ownership of the Design and the Copyright are the property of Suzhou Fak Electric Co., Ltd. This Authorization is valid only for the purpose of Design Registration in Australia and not for any purpose other than this. Based on the authorization, we are pleased to issue this letter to World Of Technologies (Australia) Pty Ltd. With its effective date of this Authorization is signed below. 29 On 16 June 2005, the applicant applied for registration of the design of the MC-801, described in the application as a "bagless vacuum cleaner". On 11 November 2005, the design of the vacuum cleaner was registered under the Designs Act in the applicant's name. 30 On 13 July 2005, Mr Mahtani sent an email to Mr Ding, asking to be offered the MC-801 (and the MC-802, a more recent model of bagless vacuum cleaner which was, it seems, soon to be released by Suzhou Fak), and saying that the information was needed urgently to secure an order. Mr Ding replied the following day, saying that "MC-801 has whole closed for Australia and NZ". Under cross examination, Mr Stergiotis denied that he understood that statement as conveying that some other company had "exclusivity" for the countries mentioned. He suggested that he was somewhat confused by the position taken by Mr Ding, adding, "as dealings with China, things change on a daily basis". Ultimately, he said that he "didn't think much of it at all and just forgot about it". Although nothing turns on it, I can understand that Mr Stergiotis might have been confused by the communications he had received from Mr Ding. On 27 May 2005, Mr Ding had said that "at last" he did not give the applicant exclusivity, while suggesting that the respondent try New Zealand "in order to avoid any confusion". Then on 14 July 2005, Mr Ding said that the MC-801 had "whole closed" for Australia and New Zealand . 31 There is no direct evidence that the respondent sought to respond to Mr Ding's "whole closed" email by pressing him to supply it with the MC-801 vacuum cleaner. However, pursuant to s 69(2)(b) of the Evidence Act 1995 (Cth) ("the Evidence Act "), and over the objection of the respondent, I admitted into evidence an email from Mr Tseng to Mr Jabbour dated 12 August 2005. Mr Mahtani said that, after receiving Mr Ding's email of 14 July 2005, his Ningbo office (Cuori) "perhaps" contacted Mr Ding and tried to have him supply the product. He agreed that there would not have been an inquiry about 5 container-loads of the product without the respondent having a definite purchaser in Australia. Mr Mahtani could not recall whether Cuori told him that Suzhou Fak would not supply at that time. For his part, Mr Stergiotis could not recall any attempt by or on behalf of the respondent to order the MC-801 in August 2005. 32 In October 2005 Mr Stergiotis and Mr Mahtani again went to the Canton Fair, and again spoke to Mr Ding at the Suzhou Fak booth. Mr Stergiotis had been given an opportunity to submit a new vacuum cleaner for a December promotion at Woolworths by Mr Ray Marten, a buyer with that retailer. Mr Stergiotis noticed the MC-801 on display, together with what he described as a "new model" (which was in fact the MC-802). Mr Ding said that he would like to supply the new model to the respondent. Mr Stergiotis said that he preferred the MC-801, and asked Mr Ding: "Will you sell me the MC-801? " Mr Ding said: "I will think about it and let you know". 33 That evening, Mr Ding telephoned Mr Mahtani on his Chinese mobile number and informed him, "I have good news to you. I can supply the product. Come on tomorrow morning and we will talk about it. " Mr Stergiotis then rang Mr Marten, who said that he was interested in the MC-801, and gave Mr Stergiotis a verbal commitment to order at least 10,000 units. The following day, Mr Stergiotis and Mr Mahtani returned to the Suzhou Fak booth at the fair. Mr Stergiotis told Mr Ding that he had a customer interested in the MC-801, and they proceeded to discuss the details of an order, including price, quantities, production schedule, delivery dates and product colours. 34 Following further discussions with Mr Marten on Mr Stergiotis's return to Australia, on 21 October 2005 the respondent issued a purchase order with GAP for 11,500 units of the MC-801, to which the respondent had given its own designation, "SL-500". GAP passed the order on to Cuori, and Cuori placed a corresponding order with Suzhou Fak. Woolworths confirmed its order for 11,500 units on 23 October 2005. The order was subsequently filled, and the vacuum cleaners were delivered to Woolworths, where they were sold as "Onix SL-500". By the week ending 1 January 2006, Woolworths had sold slightly more than 9,000 of these vacuum cleaners, which Mr Marten described (in an email to Mr Stergiotis of 5 January 2006) as "an exceptional result". 35 Homeart is one of the respondent's long standing customers. It normally places its orders orally. Following discussions between Mr Stergiotis and the Managing Director of Homeart, Homeart ordered 15,000 units of the SL-500. The date of those discussions was not disclosed, but may be inferred from a written order for 15,000 units placed by the respondent on GAP on 9 December 2005, and which, according to Mr Stergiotis, represented the Homeart order. There was no evidence that GAP did anything further about that order at that stage. 36 On 5 January 2006, it came to Mr Jabbour's attention that a bagless vacuum cleaner, very similar (in his view) to the MC-801 was being advertised on an internet auction site known as "eBay". Latest bagless cyclone technology with HEPA filtration. Family size vacuum with 4L dust cup. No bags, no loss of suction, easy to clean and maintain. However, what was advertised was an Onix SL-500 product, which was the MC-801 as marketed by the respondent. 37 Mr Jabbour immediately wrote to Mr Tseng by email. He referred to his discovery that the bagless vacuum cleaner was being sold in Australia by someone else, and said that his "buyer" (by which he meant Godfreys) knew of the matter and had threatened to stop selling the vacuum cleaner and to cancel all their orders. He asked Mr Tseng to warn Suzhou Fak that if they did not stop selling the vacuum cleaner to someone else, he would "take legal action not only on the buyer Onix". 38 It seems that Mr Tseng promptly contacted Mr Ding by email. Although that email is not in evidence, Mr Ding's reply, dated 5 January 2006, is. Now, I would like to tell you the full information in details. For another customer from Australia named Temp (AUST) Pty Limited , I met them in Apr 2005 on the Canton Fair. They were interesting in the model MC-801 then. As I said to you, I rejected their samples asking directly. Please see my email enclosed. 2. Yes, we have made goods in ONIX brand. The goods are, 240V/50Hz/2000Wnom, 2200Wmax; without speed control on the handle, injection purple colour, 5m cord length , washable HEPA filter, chromed telescopic tube, matel-plate floor brush. 3. This order came from one trading company named CUORI INTERNATIONAL (H.K) CO., LTD, Ningbo Office. The order qty is 11500pcs, price is FOB USD28.60/PC. The shipper is also CUORI INTERNATIONAL. I have informed them not to sell in Australia but only other market. I have to stop the business co-operation with them at once. Now, they have issued another order for this model. I have to give up asap. Sorry for this issue. This is not my mind. You know, in order to support you, I didn't agree to set up business with GODFREYS. The staff member was not called. It was not stated that the staff member had actually seen the product (or a box containing the product), and there is evidence from which it may be inferred that he or she did not. In an email of 12 January 2006 complaining to the applicant about this circumstance, Mr John Hardy said that the staff member had visited the store where the cheaper product was sold, and had been told that the store was out of stock, but would provide a "rain check". The respondent led evidence that it had not sold the SL-500 to Homeart at that stage. There appears to be little possibility that the staff member was confused, and in fact visited a Woolworths store, since it appears that Woolworths do not provide rain checks, while Homeart does. The respondent suggested that the staff member was most probably confusing the SL-500 with another, less powerful, vacuum cleaner also distributed under the "Onix" brand, the SL-217. The latter was sold by Homeart. The state of the evidence in these respects is most unsatisfactory. By reason of findings which I shall make later in these reasons, I do not need to resolve the question whether the product which came to the attention of Godfreys at Hornsby was the SL-500 or the SL-217. It is sufficient to find, as I do, that by January 2006 Godfreys suspected that some other retailer was selling the MC-801, and that (perhaps unbeknownst in point of detail to Godfreys) Woolworths was in fact doing so, or at least had recently done so. In his email to the applicant of 12 January 2006, Mr Hardy said that, while another retailer offered the same product at a substantially lower price, his company could not support the product. He said that, unless he had the applicant's assurance that the product would remain exclusive to Godfreys, he would have to consider cancelling all orders. 40 Possibly prompted by the events to which I have just referred, on 13 January 2006 the applicant applied for an expedited examination of its registered design under Ch 5 of the Designs Act . 41 There is no evidence that the respondent was, at about mid-January 2006, aware of the applicant's discovery that the MC-801 was being sold otherwise than by Godfreys. As I have mentioned, Mr Marten, of Woolworths, was impressed with the sales result achieved by the respondent's Onix SL-500 product, and on 19 January 2006 ordered a further 10,000 units for the Woolworths April promotion. The respondent proceeded to order a further 10,350 units from GAP, which placed a corresponding order with Cuori. On 20 January 2006, Cuori placed an order for these vacuum cleaners with Suzhou Fak. However, by reason of the intervention of the applicant as I describe below, this order was never filled. 42 On 20 January 2006, Mr Ding wrote by email to the respondent. He said that the applicant had found the "SL-500" being sold in Australia. Because, they had the Design Registration for MC-801. As I shown you on the Canton Fair, I ever issued two relevant documents to WOT to apply for their certificate in May 2005. Please see the file enclosed. That is why I dissuade you from selling this model in Australia/New Zealand. Now, WOT claim that they don't agree with this model into Australia/New Zealan. Of course, they ask me to stop any new contract, signed or not. They said they will contact you in Australia. I'll wait for their comment these days. In the meantime as you have aware of that we have the Design registration of this MC-801 owned on hand, except us, no one can sell the same model in the territory as it is protected by the law. Recently we regret to find another Australia company is selling the same model in our territories which has serious injured our market and our investment which is straightly prohibited and thus we will and have started our necessary reaction to stop this issue to this Australia company. In the meantime, after consult and suggested by our lawyer, we have actually planned to do also same legal action against you to compensate our investment, the loss and the image, but after long consideration in the past days for our close relationship in the past, current and future, plus your reconfirm and guarantee again to us that you will immed stop and will not sell to any other customer in the territory again, we decided to hold this legal action temporary and hope everything can back to normal immed. At the same time, with mutual and honor trust, we have planned the new year media campaigns and millions of budget again to promote the MC-801. We sincerely hope this letter is serious pay attention by you so that our legal action against you can be hold forever. In case, any dishonour happen again, then we will be forced to restart the legal action without any further warning, when this is happened, I don't think you will be able to afford the loss, not only the financial loss but your image in this industry, it is not worth to you and to us. In a covering email, he said that his customer (the applicant) was very angry, and that he could not accept any new order from the respondent. We too know the Australian law very well and have fought many times with companies 10 times larger than WOT. All we have seen so far is allot of talk from your client. We already have spent allot of money in promoting your product and have even worked with you to improve it. Now our customer has re-ordered the SL-500 with another 10,000 pieces and you accepted this because you offered us the new price and delivery. If you did not want to offer this product to us then you would not have emailed the new price and delivery time. Because you did this we have committed to our customer already. We do not care about WOT! Tempo (AUST) Pty Limited is very big in Australia and we have allot more power to promote your Vacuum and sell it in the retail market. We envisage over 60,000 pieces just for this year. WOT cannot come even close to this figure. Anyway we have to honor our order for 10,000 pieces to our customer and then we can discuss the future. We to have already consulted our legal department and your emails show that you have committed to our order by offering the price and delivery. If we do not supply this model to our customer we will be sued for lost of sales and profit. Even under Australian law they have nothing to show. Just allot of Talk! I know you will understand our position and will deliver the 10,000 pieces as it has already been agreed upon. For any other future orders it is up to you. He said that, although he did not know Australian law well, he preferred to take it as a serious matter. He said he would rather give up the respondent's order than have further troubles. The balance 50% must be here before shipment. He told him that the applicant had not contacted the respondent, that the respondent had committed to its customer and that it needed Suzhou Fak to fulfil the order. For this order, 50% payment before massive production, 50% balance before shipment. If agree on it, I go ahead! Thanks for your support. He said that the respondent had a contract with its customer which must be honoured. He said that they had to go on with the order as it had already been confirmed, and it was very hard to change at that stage. Pls! " If the times displayed on Mr Ding's various emails are to be believed, it seems that this email was sent a little more than an hour after his second email to Mr Stergiotis on 24 January 2006. 46 On the following day, 25 January 2006, Mr Mahtani wrote again to Mr Ding. He said that he was very disappointed with the way Mr Ding was "treating this order". He said that the respondent had already confirmed the order with the biggest retailer in Australia, "... so there is no way of backing out now! However we still request you to follow the original plan as Up to this day, we haven't received any documentation or Legal letter from WOT, We are even now in discussion with our lawyers and have seeked legal advise on this Project and they have given us positive news to proceed Order as there is REALLY nothing to worry about!!!! Therefore we have given you two options above, Please let us know which option you prefer. However, it seems that there were continuing negotiations between Cuori and Suzhou Fak about the payment terms which Mr Ding would be prepared to accept to proceed with the order. There is an email from Cuori to Mr Stergiotis sent in the evening of 26 January 2006 in which the writer refers to discussions with Mr Ding in which Mr Ding eventually indicated a readiness to supply upon immediate payment of a 35% deposit, and subject to certain other terms. Cuori sought Mr Stergiotis's instructions on this proposal. Then, early in the morning of 27 January 2006, Cuori sent GAP and the respondent an email setting out the final terms which it had agreed with Suzhou Fak. There was to be an immediate deposit of 30% (10% of which had already been paid), a further payment of 50% before shipment and a final payment of 20% upon receipt of the bill of lading. In an affidavit read by the respondent, Mr Stergiotis said that these were the terms that were "ultimately agreed". 48 At this point, it seems, the respondent received a letter of demand from the applicant's solicitors. The letter was dated 23 January 2006, but Mr Stergiotis thinks he received it on about 27 January 2006. He thought that the letter may have been delayed as a result of the respondent's change of address. The letter referred to the applicant's registered design, and to the appearance on the respondent's internet web site of a promotion for the Onix vacuum cleaner. It alleged that this product, to which it referred as "the infringing product" was identical in appearance to the applicant's "Genius" product, "for which our client has been granted a monopoly". It alleged infringement of the applicant's registered design in breach of s 71 of the Designs Act , and misleading conduct contrary to s 52 of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act "). It sought a series of undertakings from the respondent by 27 January 2006. 49 After receiving the applicant's solicitors' letter, Mr Stergiotis told Homeart that the respondent would not be able to supply the SL-500 product. Homeart did not place an alternative order. Also as a result of that letter, the respondent cancelled the order it had placed with Suzhou Fak. The vacuum cleaners were intended for Woolworths, and that retailer ultimately took a corresponding delivery of the less powerful bagless vacuum cleaner, the SL-217. Subsequently, Mr Ding told Mr Stergiotis that he was still interested in doing business with the respondent. The two men discussed the possible re-design of the MC-801 vacuum cleaner so as to avoid infringement by the respondent of what Mr Stergiotis then believed were the applicant's design rights. It appears that nothing further came of such a proposal. 50 On 21 March 2006 the Registrar of Designs certified that the examination of the applicant's registered design had been completed. 51 On 18 April 2006 the present proceeding was commenced in the Federal Magistrates Court. It was transferred into this court on 23 June 2006. 52 In June 2006, Mr Stergiotis and Mr Mahtani visited a number of vacuum cleaner factories in the Suzhou area in China. They met with Mr Ding, who showed them details of the Suzhou Fak range of vacuum cleaners, including the MC-801. Mr Ding said that he was not happy with the volume he was achieving from the applicant, and said that if the respondent wanted to order the MC-801 again, Suzhou Fak would supply it. Mr Stergiotis responded that he could not sell the product in Australia while the design was still registered by the applicant. 53 Mr Stergiotis and Mr Mahtani met Mr Ding again at the Canton Fair in October 2006. Mr Ding again offered to supply the MC-801 vacuum cleaner to the respondent, but again Mr Stergiotis said that he could not order it at that time. First, it alleges that, by displaying an image of the MC-801 bagless vacuum cleaner on its internet web site, by offering the vacuum cleaner for sale, and by selling the vacuum cleaner, the respondent infringed its registered design. Secondly, it says that there was, on and since 10 January 2005, a contract between itself and Suzhou Fak by which it, the applicant, would be the exclusive distributor of the MC-801 vacuum cleaner in Australia. It says that the respondent prevailed upon Suzhou Fak to provide the vacuum cleaner for resale in Australia, and thereby induced a breach, or interfered with the performance, of that contract. Thirdly, it says that, by promoting the vacuum cleaner for sale in Australia, the respondent has engaged in conduct, in trade and commerce, which is in contravention of ss 52 and 53 of the Trade Practices Act . 55 Although it admits the fact of the registration of the applicant's design, the respondent otherwise joins issue with the applicant's case. Further, it cross-claims for a revocation of the registration of the design, upon the ground that the design was not new or original and distinctive at the priority date as registered by s 15(1) of the Designs Act . In this respect, the respondent relies upon the display of the MC-801 vacuum cleaner at the Canton Fair in April 2005, upon the subsequent publication of certain brochures in which the vacuum cleaner was displayed, and upon the publication of a representation of the vacuum cleaner on the respondent's internet web site in May 2005. Alternatively, it says that the applicant was not entitled to procure the registration of the design, as it was not "an entitled person" within the meaning of the Designs Act . The respondent says that the letter of demand from the applicant's solicitors dated 23 January 2006 was an unjustified threat of infringement proceedings, both by reason that the design was not properly registered, and by reason of the absence of any certificate of examination in relation to the design at the time when that letter was written (as to which the respondent relies upon s 77(3) of the Designs Act ). It denies any infringement of the applicant's design. It does not admit the making of any agreement between the applicant and Suzhou Fak in January 2005, and says that it knew of the "exclusive certification" document dated 10 January 2005 only in October 2006 when provided with a copy of it by the applicant. It refers to the Canton Fair in April 2005, and to the statement on behalf of Suzhou Fak at that time that it would fulfil any order placed for the MC-801 bagless vacuum cleaner for delivery to Australia. It says that, in May 2005, Suzhou Fak told it (the respondent) that the applicant had requested exclusivity in Australia, but that that had been refused. It refers also to the Canton Fair in October 2005, and to the statement on behalf of Suzhou Fak at that time that any order for delivery in Australia would be fulfilled. It denies that it purchased MC-801 vacuum cleaners for the purposes of resale in Australia, and it denies that it intended to interfere with the agreement of January 2005 between the applicant and Suzhou Fak. It denies the allegations under the Trade Practices Act . 56 On the fourth day of the trial, the applicant abandoned its claim for design infringement. At the same time, Mr Panna SC, who appeared for the applicant, indicated that he would not make any submission in opposition to the respondent's claim that the design registration was invalid. Since the applicant does not concede invalidity --- nor consent to an order for revocation --- I am required to decide those matters. On the fifth day of the trial, the applicant abandoned its claim under the Trade Practices Act . 57 In the result, I am required to determine the applicant's claim in tort, and the respondent's claims for revocation and for damages for unjustified threats. I shall commence with the claim for revocation. By subs (2) the "prior art base" consists of three items, including "designs publicly used in Australia" and "designs published in a document within or outside Australia". By s 16(1) a design is new "unless it is identical to a design that forms part of the prior art base". A design is distinctive "unless it is substantially similar in overall impression to a design that forms part of the prior art base". In considering the matter of substantial similarity, I am required, by s 19(1) of the Act, to give more weight to similarities between the subject design and the prior art base than to differences between them. In the present case, the application for design registration did not include a statement of newness and distinctiveness, in which circumstances I am required, by s 19(3) of the Designs Act , to have regard to the appearance of the design as a whole. If I am satisfied that the subject design was not a registrable design within the meaning of s 15(1) of the Designs Act at the priority date, I am empowered to revoke the registration of the design pursuant to s 93(3)(a) of the Act. 59 In the circumstances of the present case, the priority date is the date of application for registration, 16 June 2005. 60 The respondent relies first upon the publication, at the Canton Fair in April 2005, of a brochure depicting the appearance of the MC-801 vacuum cleaner, for the purposes of s 15(2)(b) of the Designs Act . The original of that brochure is before the court. I have compared the brochure with the design as registered. It is common ground that the vacuum cleaner shown in each document is one and the same product. The copy of the registered design which is before the court is a photocopy. The representations of the vacuum cleaner in it are less distinct than the corresponding printed colour photographs appearing on the Suzhou Fak brochure of April 2005. Further, in the design as registered the product is shown in side view (both sides), in bottom view, in top view, in back view, in front view, in back perspective view and in front perspective view. As represented on the brochure, the product is shown only in front perspective view. For that reason, I am unable to conclude that the design is identical to that shown in the brochure. Accordingly, I do not hold that the design is not new for the purposes of s 16(1) of the Designs Act . 61 However, I consider that the design as applied for and subsequently registered is substantially similar in overall impression to the design disclosed in the Suzhou Fak brochure of April 2005. Although shown on the brochure in front perspective view only, the impression obtained from that angle permits the viewer to make a reasonable assessment not only of the side, but also of the front, of the vacuum cleaner. Assuming, as I do, that the product is symmetrical, I take it that the other front perspective view would convey the same impression. Further, the item is displayed on the brochure in such a way as to permit the viewer to gain a reasonably good impression of the appearance of the product from the top. The only faces of the product which it is impossible to perceive from the brochure are those of the rear and of the underside. Notwithstanding these omissions, I consider that the vacuum cleaner is sufficiently represented on the Suzhou Fak brochure to give a good impression of the appearance of the design of the product as a whole, as required by s 19(3) of the Designs Act . Taking that approach, I find that the design for which the applicant applied for, and subsequently secured, registration is substantially similar in overall impression to that which appeared on the printed brochure for the MC-801 vacuum cleaner distributed at the Canton Fair in April 2005. The latter was a design published in a document outside Australia and was, accordingly, part of the prior art base for the purposes of registrability. 62 The respondent relies also upon the publication of a representation of the MC-801 vacuum cleaner on its web site on 25 May 2005. That representation consisted of a colour photograph of the product taken directly from one of the representations set out on the Suzhou Fak brochure distributed at the Canton Fair. A paper copy of the photograph as it appeared on the web site is in evidence. I have compared that with the design contained in the applicant's registration under the Designs Act , and I find, for the same reasons as expressed above, that the design as applied for was substantially similar in overall impression, having regard to the appearance of the design as a whole, to the design set out on the web site. 63 In relation to this publication on the web site, the applicant pleaded that it constituted a publication without the consent of the registered owner (the applicant), by another person (the respondent) who derived or obtained the design from the registered owner's predecessor in title, and must therefore be disregarded by reason of s 17(1)(b) of the Designs Act . Since the design was obtained from Suzhou Fak, the questions which arise are whether the applicant was relevantly the registered owner, and if so, whether Suzhou Fak was its predecessor in title for the purposes of s 17(1)(b) of the Designs Act . I consider that both of these questions should be answered in the negative. By s 14(1)(a) of the Act, the registered owner of a "registered design at a particular time" is the person who, "at that time", is entered in the register as the registered owner of the design. The "particular time" to which s 17(1)(b) of the Designs Act refers is, I consider, the time when the design in question was published on the respondent's web site (25 May 2005). At that time, there was no registered owner of the design. Necessarily, the applicant was not in the position of someone who, qua registered owner, could give consent. I do not consider that the respondent should be regarded as doing something "without the consent of the registered owner" when there was no such person in existence. As to the second question, I was not assisted by any submissions on the subject of what constituted a "predecessor in title". In the circumstances, I would think that the "title" to which s 17(1)(b) refers is the title arising from ownership of a design which is registered. A predecessor in title, in my opinion, is a person who was previously registered as the owner of the design in question. Manifestly, Suzhou Fak did not, in May 2005, qualify as a predecessor in title for the purposes of s 17(1)(b). 64 The respondent relies also upon Mr Jabbour having sent to Mr John Hardy (of Godfreys) the specifications for the MC-801 vacuum cleaner in late December 2004. Those specifications comprised a list of physical and technical characteristics, capacities etc of the vacuum cleaner, but included, adjacent to the list, a very small representation of the cleaner itself. The cleaner appears to be shown in front perspective view, although, because of the size of the representation, and the quality of the photocopy produced as an exhibit to Mr Jabbour's affidavit, it is more difficult to discern the detail of the design there represented than in the case of the other representations with which I have dealt. However, applying the standard of a person who is familiar with the product to which the design relates, as I am instructed to do by s 19(4) of the Designs Act , I likewise conclude that the registered design is substantially similar in overall impression, having regard to the appearance of the design as a whole, to that which is shown, in a small representation, on the specifications sent by the applicant to Godfreys in December 2004. The design was, accordingly, published in a document within Australia, which forms part of the prior art base under s 15(2)(b) of the Designs Act . 65 The respondent relies also on a 'jpeg' file sent by the applicant to an advertising company on 31 May 2005. The file contained the artwork for the packaging in which the MC-101 was to be sold by Godfreys --- as the 'Genius 2200 bagless' vacuum cleaner. The file, as represented in an exhibit tendered in court, shows the vacuum cleaner very clearly in front perspective view. Save for the colour and the attachment of a hose, it justifies the same conclusion as that which I reached above with respect to the Suzhou Fak brochure distributed at the Canton Fair in April 2005. I consider that, by the sending of this file to the advertising company, the applicant published the design in a document within Australia for the purposes of s 15(2)(b) of the Designs Act . The registered design is, I consider, substantially similar in overall impression, having regard to the appearance of the design as a whole, to that published on 31 May 2005 when the applicant sent the artwork to the advertising company. 66 The respondent relies also upon a Godfreys "mid year clearance" brochure in which the new 'Genius 2200 bagless' product was advertised. That brochure contains a representation which is very similar to those to which I have already referred, in front perspective view. I would express the same conclusion about this publication as I have in the case of the other publications of the design in documents in Australia. However, the only evidence as to when this brochure was printed was that stated on the foot of the brochure itself, i.e. "June 2005". I cannot, therefore, be satisfied that the publication occurred before the priority date for the applicant's design as registered, 16 June 2005. 67 The respondent relies also upon the receipt of samples of the MC-801 vacuum cleaner by Godfreys in March 2004, and upon the subsequent examination and testing of those samples for the purpose of determining their commercial suitability. I take it that the respondent proposes that this constituted the "public use" of the design in Australia for the purposes of s 15(2)(a) of the Designs Act . I was not addressed on what constituted "public use" in this context, and I am not disposed to hold that the sending of samples for these purposes to Godfreys constituted such use. Furthermore, no example of the samples was put in evidence. Although it is implicit in the respondent's case that I should regard it as self-evident that these samples were at least substantially similar in overall impression to the design that was later sought to be registered, the respondent made no attempt to make good that proposition by putting the actual item upon which it relied before the court. In the circumstances, I make no finding that these samples constituted part of the prior art for the purposes of s 15(2)(a) of the Designs Act . 68 The respondent relied also upon the fact that a sample of the MC-801 vacuum cleaner had been sent to the Queensland Department of Industrial Relations, for the purposes of obtaining a certificate of approval for an electrical article under the Electrical Safety Act . The certificate was issued in May 2005, and Mr Jabbour said that the process of approval would have taken about ten weeks. The respondent's point is that the provision of a sample of the product constituted a public use of the design in Australia for the purposes of s 15(2)(a) of the Designs Act . As with the dispatch of samples to Godfreys, I am not persuaded that the provision of a single sample to a government department for the purposes of electrical safety certification constituted public use in the relevant sense. I would not, in the circumstances, hold that such a dispatch was part of the prior art base apropos the applicant's application for registration of the relevant design. 69 However, there are several respects in which I have held that the registered design was not distinctive when compared with the prior art base as it existed before the priority date. For that reason, I find that the design was not a registrable design within the meaning of Division 1 of Part 4 of the Designs Act . The respondent has applied for revocation on that ground, and the applicant, while not consenting to revocation, has not resisted it. I can think of no reason why I should not exercise the court's jurisdiction under s 93(3)(a) of the Designs Act and order that the registration of the design be revoked. 70 The respondent also submits that the applicant was not an "entitled person" when the design was first registered, and that the design should be revoked on that ground also, pursuant to s 93(3)(b) of the Designs Act . Although this was a submission made in the alternative, it was persisted in by the respondent, and I shall deal with it. The respondent's point is that the applicant did not come within any of the categories of person entitled to be registered as the owner of the design under s 13(1) of the Designs Act . Because of the position which the applicant ultimately took on the matter of revocation, I have not had the assistance of submissions on its behalf with respect to its entitlement to be registered as the owner of the design. It is clear from the evidence that neither the applicant nor any person employed by, or contracted to, the applicant was the actual designer. That leaves, effectively, two possibilities under s 13(1) of the Designs Act : is the applicant a person who derived title to the design from the original designer, or from someone who employed, or contracted with, that designer, within the meaning of par (c); and was the applicant a person who would, on registration of the design, be entitled to have the exclusive rights in the design assigned to it, within the meaning of par (d)? 71 The respondent placed into evidence, but otherwise did not explain the significance of, a printed document on the letterhead of Suzhou Fak dated 8 June 2005. That document was headed "MC-801 inventor certification". It seems, however, to be common ground that the original designer of the MC-801 was a person in the employ of Suzhou Fak. That being so, Suzhou Fak would have been entitled to apply for registration under s 13(1)(b) of the Designs Act . 72 Did the applicant derive title to the design from Suzhou Fak? The only evidence which would, even arguably, sustain an affirmative answer to that question is the "design registration authorisation" sent by Suzhou Fak to the applicant on about 30 May 2005 (set out in par 28 above). That certificate authorised the applicant to "proceed" the registration of the MC-801 design, but made it clear that ownership of the design was to remain the property of Suzhou Fak. Whatever else may be said about that document, in my opinion it does not constitute any basis from which the applicant might have derived title to the design within the meaning of s 13(1)(c) of the Designs Act . At most, the document constitutes an authority to the applicant to register the design in the name of Suzhou Fak. 73 As to par (d) of s 13(1) of the Designs Act , had the design been registered in the name of the true owner (the designer or Suzhou Fak), I can see no basis upon which the applicant would have been entitled to insist upon an assignment of those design rights to itself. There was certainly no contractual or like obligation imposed upon the designer or Suzhou Fak to make any such assignment. 74 In the circumstances, had it not been for my decision to revoke the design under par (a) of s 93(3) of the Designs Act , I would also have held the ground of revocation with which par (b) is concerned to have been made out, namely, that the original registered owner was not an entitled person in relation to the design when the design was first registered. The respondent denies that there was any such contract. It contends that the certificate was merely an appointment --- the unilateral act of Suzhou Fak, for which the applicant provided no consideration. 76 There is a question whether Australian law or Chinese law should be applied in the determination of whether the events of 10 January 2005 gave rise to a contract at all. Whether such a determination should be made under the lex fori , under the proper law of the putative contract or under the law of the place where the putative contract would come into existence (if there were one) appears to be the subject of some uncertainty: see Nygh, PE, and Davies, M, Conflict of Laws in Australia , 7 th ed, 2002, pp 372-374. As Nygh and Davies point out, in Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197, Brennan J (at 225) and Gaudron J (at 260-261) expressed the view that the determination should be made under the lex fori . Deane J, however, considered that it should be made under the lex loci contractus (at 255). Wilson and Toohey JJ did not refer to the matter as such, but proceeded to determine the question whether there was a contract, a course which was open to them either on the basis that the lex fori applied or on the basis that the lex loci contractus applied. 77 In the present case, there was no evidence of Chinese law. The applicant approached the problem by making two propositions: first, that the determination of whether the events of 10 January 2005 gave rise to a contract should proceed under the proper law of the putative contract, and secondly, that, in the absence of evidence of foreign law, there is a presumption that that law is the same as the law of the forum (Nygh and Davies, pp 325-327). The applicant thus approached the question of whether a contract came into existence on or about 10 January 2005 as though the only relevant law were that of Australia. The respondent did likewise: indeed, the respondent made no point of the potentially difficult issues of private international law to which I have referred. 78 In the circumstances, the safest course for me to adopt is to fall into line with the explicit or silent propositions upon which both parties have conducted their cases, namely, that the question whether there was a contract between the applicant and Suzhou Fak is to be decided by a conventional application of Australian contract law. 79 The applicant's case is that the contract on which it relies was made on or about 10 January 2005, and that it was partly in writing and partly to be implied. The written part is said to be the exclusive distribution certificate. The implied part is said to arise in order to give business efficacy to the written part. Neither as pleaded nor as proved in evidence is any conversation said to constitute part of, or evidence of an oral term in, the contract alleged. In this respect it is important to note that Mr Jabbour, the only representative of the applicant who gave evidence, had never spoken to Mr Ding before 10 January 2005. There was, therefore, no admissible evidence (save for the emails to which I have referred earlier in these reasons and which were admitted as business records) of anything which Mr Ding had said, to that date, about his company's intended relations with the applicant. Neither was there any such evidence (save also for those emails) of anything that Mr Tseng said to Mr Ding. The result --- which is consistent with the applicant's pleading --- is that the central question is whether the exclusive distribution certificate itself constitutes, or evidences, a contract between the applicant and Suzhou Fak. 80 Mr Panna argued that the exclusive distribution certificate involved both a positive promise by Suzhou Fak that the applicant would be its only distributor of the MC-801 vacuum cleaner in Australia and New Zealand, and a negative promise by that company not to sell the cleaner to any other person for resale in either such country. As a matter of construction, I agree that the positive --- which appears expressly in the certificate --- necessarily implies the negative. I also agree that the certificate should be read as conveying a promise by Suzhou Fak in those terms. I am not dissuaded from that conclusion by the mere use of the word "authorize" in place of some more conventional contractual term, such as "agree". 81 Insofar as the certificate sets out what it describes as "terms and conditions", it would constitute evidence of the terms of subsequent contracts under which vacuum cleaners were supplied in accordance with confirmed orders from time to time. Those contracts would be contracts for the sale of goods. However, no such contract existed on 10 January 2005. 82 The question is whether, as at 10 January 2005, the applicant had done anything, or had made any promise, which amounted to consideration for Suzhou Fak's promise contained in the exclusive distribution certificate. As to the former, there is no suggestion that anything relevant had been done by that date. As to the latter, Mr Panna submitted that the applicant's implied promise was "to accept the responsibility to place orders", but he accepted that such a promise lacked "content in terms of a quantity". In other words, it was put that the applicant's promise was to place orders for the MC-801 at times, and in quantities, as to which there was neither a mutual consensus nor a commitment on the part of the applicant. When seen in this way, it appears to me impossible, however much one strives to give commercial efficacy to the arrangements between the applicant and Suzhou Fak, to give content to any promise by the applicant, such that one could identify some subsequent act or omission of the applicant which would amount to a breach of such a promise: see, analogously, British Empire Films Pty Ltd v Oxford Theatres Pty Ltd [1943] VLR 163. 83 Mr Panna also submitted that, in order for the vacuum cleaner to be distributable in Australia, it had to go through various tests and secure various approvals. He said that the applicant did these things, and incurred expense in doing to. He submitted that this was part of the consideration provided by the applicant for Suzhou Fak's promise of exclusivity in the matter of distribution. None of this had been done by 10 January 2005, however. To put Mr Panna's case in this respect at its highest, I suppose that it involves the proposition that the events of that date or thereabouts included an implicit promise by the applicant to take these steps and to do anything else that was necessary to bring the vacuum cleaner on to the market in Australia. There was, of course, no such promise expressly. I do not consider that there was any need to imply such a promise moving from the applicant to Suzhou Fak. The latter was interested only in purchases made by the applicant. As the proposed terms and conditions made clear, Suzhou Fak would be paid in full for its vacuum cleaners before delivery on board at Shanghai. Since no promise by the applicant to sell the vacuum cleaners in Australia may be implied, neither should any promise be implied that the applicant would obtain the necessary approvals for such sales. If there were regulatory or other matters that had to be attended to in order to make the cleaners marketable in Australia, that was, it seems to me, entirely the applicant's concern, and should not be regarded as consideration for Suzhou Fak's promise. 84 In the course of argument, I suggested to Mr Panna that the exclusive distribution certificate might be regarded as an agreed record of terms and conditions which would apply to future dealings in the course of trade between the applicant and Suzhou Fak, but which may not be a contract in itself. He said that, if so, Suzhou Fak's promise about exclusivity would be meaningless. It would mean nothing, he submitted, in the context of a single order only, to say that Suzhou Fak would not supply to some other Australian wholesaler. I agree with the latter way of putting it, but I do not accept that, in those circumstances, the promise would be meaningless. Undoubtedly the promise was calculated to attract the applicant into doing business with Suzhou Fak. I am prepared to infer that, had the promise not been made, the applicant would have proceeded no further with negotiations to purchase vacuum cleaners from Suzhou Fak. However, the stepwise giving of indications, even forming promises which might eventually be enforceable, as to benefits which one party might accord to the other is not uncommon in commercial negotiations: it does not mean that, at every point at which such an indication is given, the maker is immediately bound by a contractual term to the effect indicated. 85 I would also reject the submission that the exclusivity promise was meaningless unless it formed the basis of a contract formed on 10 January 2005 or thereabouts, for the reason that subsequent events may well then (i.e. subsequently) have given the promise contractual significance. It may be that, in the immediate aftermath of the applicant having taken delivery of a substantial shipment of vacuum cleaners, for Suzhou Fak to have supplied someone else would have been regarded by the law as depriving the applicant of the benefit of the contract constituted by the order in question (in which, I take it, the terms of 10 January 2005 would be incorporated). There might be implied a term that Suzhou Fak's promise of exclusivity would operate contractually for a reasonable period after the purchase of each particular shipment. However, none of these possibilities represented the way the contract was pleaded or argued on behalf of the applicant. It was consistently put that the contract came into existence on 10 January 2005, and was constituted by the exclusive distribution certificate as such. 86 That there was, on or about 10 January 2005, a contract containing the exclusivity term was an element of the applicant's case. For the reasons set out above, I am not persuaded that there was. 87 I should add only two things on this subject. First, I have been obliged to determine this point without the assistance of representation on behalf of the other party to the putative contract, Suzhou Fak. Although courts will strive to give effective legal definition to something which manifestly has a real commercial purpose and is based in consensus, the context in which such issues are commonly decided is that in which one of the parties directly involved is attempting to deny the existence of a claimed contractual obligation towards the other party directly involved. The present is not such a case. It is a case in which one party has obtained a commitment of sorts from a third party not involved in the litigation, and seeks to give that commitment contractual status so as to restrict what would otherwise be the legitimate commercial efforts of the other party to the litigation. And it does so without either joining the third party or calling any evidence from the third party. Whatever I decided on the matter of a contract between the applicant and Suzhou Fak would not be binding on the latter; nor, it seems to me, on the applicant in later proceedings involving only Suzhou Fak. In these circumstances, I find the case for striving to give contractual efficacy to Suzhou Fak's certificate of 10 January 2005 somewhat less compelling than it otherwise might have been. 88 Secondly, lest it is not already clear, I should state that this is not a case in which Suzhou Fak had a branded product which it wished to market in Australia. The MC-801 vacuum cleaner was a generic item which was sold ex-works, as it were, and was branded by the distributor, retailer, etc. In the present case, the MC-801 was sold as "Genius" by Godfreys as supplied by the applicant, and as "Onix" by Woolworths as supplied by the respondent. The applicant was not required to do, and did not do, anything to establish the name or brand of Suzhou Fak in Australia. I mention this in case it might be thought that part of the contemplated consideration moving from the applicant was the initial establishment of a market presence in Australia for a branded product. 89 Ms Gatford (who appeared for the respondent) also argued on behalf of the respondent that, even if the exclusive distribution certificate dated 10 January 2005 did constitute a contract as contended for by the applicant, that contract never came into effect, because the certificate was not signed. It will be recalled that the certificate was expressed to be "effective from the date this certificate is signed". Mr Panna submitted that the certificate was "stamped with the stamp of the company" and that that was sufficient. He submitted that the placement of a corporate stamp would be sufficient under Australian law as evidence of the agreement of the company to the commencement of the certificate. If by that submission Mr Panna intended to contend that a document would be sufficiently executed by a company registered in Australia if the common seal appeared thereon, but without the fixing of the seal having been witnessed by a director or other officer of the company, I would have to say that the contention derives no support from s 127 of the Corporations Act 2001 (Cth). That section is, of course, facultative: if Suzhou Fak had been an Australian registered company, the question would still remain whether the impression of a stamp on the exclusive distribution certificate would be regarded as a signing by the company under the general law. Since it is not an Australian registered company, it is to the general principles of the law that I must turn in any event for the resolution of this question. 90 In the case of an individual, a document will be "signed" if he or she either writes his or her name thereon, or makes an appropriate personal mark: R v Moore (1884) 10 VLR 322. Unless the provision in question requires the document to be signed "personally" or "in person", or the like (as to which see Motel Marine Pty Ltd v IAC (Finance) Pty Ltd [1964] HCA 7 ; (1964) 110 CLR 9), signing by an agent (with authority) will be treated as a sufficient signing by the person required to sign: Muirhead v Commonwealth Bank of Australia (1996) 139 ALR 561, 565-567. The same applies where the person required to sign is a company: McRae v Coulton (1986) 7 NSWLR 644, 663-664. 91 However, in the present case, there is no evidence about the placement of the stamp on the exclusive distribution certificate. Assuming for the moment that the Chinese characters on the stamp state the name of Suzhou Fak, the court does not know whether the stamp was placed on the document by an officer, employee or agent of Suzhou Fak having authority in such matters. That omission, which may appear pedantic to some, looks to be rather less so in the light of the circumstance that the original of the document was not in evidence, and that there were two photocopies (or perhaps facsimiles) of the document tendered in evidence, on each of which the stamp appeared in a slightly different place. On neither representation of the document was there any signature, printed name or initials within proximity of the impression of the stamp. 92 The question whether a document should be regarded as having been "signed" by or with the authority of a company where all that appears is the impression of a stamp thereon indicating the name of the company appears not to have been considered by an Australian court. The statutory forms require the documents to be "signed" by the landlord, but the only signature on these documents (if such it can be called) was a rubber stamp "Lazarus Estates Ltd." without anything to verify it. There was no signature of a secretary or of any person at all on behalf of the company. There was nothing to indicate who affixed the rubber stamp. It has been held in this court that a private person can sign a document by impressing a rubber stamp with his own facsimile signature on it: see Goodman v J. Eban Ltd ., but it has not yet been held that a company can sign by its printed name affixed with a rubber stamp. Lazarus Estates was, at least in the view of Denning LJ, in a different category. So, in my opinion, is the present matter. 94 The observations of Denning LJ in Lazarus Estates , while acknowledged to be obiter , were treated as of "great persuasive weight" by Sansoni J, giving the judgment of the Supreme Court of Ceylon, in Meyappan v Manchanayake (1961) 62 NLR 529, 532. There, save that the body concerned was a partnership rather than a company, the court was concerned with the very point which is before me. The question was whether a cheque, upon the reverse of which had been placed a stamp of the name of the firm, had been signed by the firm. No case has gone so far as to hold that the mere stamping of the name of a firm, be it a company or a partnership, on a document is a valid signature by that firm. Like his Honour, I have neither been referred to, nor found by my own research, any decided case in which it has been held that the mere stamp of the name of a company, without any accompanying notation of witnessing or the like, and without any evidence as to the authority with which the stamp was used, amounts to the signature of the company or that a document so stamped should be regarded as having been signed by the company. 95 Meyappan was referred to by McPherson JA in the Queensland Court of Appeal in Muirhead . His Honour expressed the opinion that the Ceylonese court had declined to follow the majority in Goodman , an opinion in which, with respect, I am unable to join. However that may be, McPherson J recognised that the critical point in Meyappan was the absence of verification (139 ALR at 566). He distinguished the case from the facts with which he was concerned in Muirhead on that basis. His Honour did not decide "whether...the decision should be followed in Australia. " For my own part, I cannot see why it should not be, at least (as here) where the only question is the simple one whether a document having the characteristics to which I referred in the last sentence of the previous paragraph of these reasons should be regarded as having been "signed" by the company in question. I accept, of course, that a particular statutory context might, in an appropriate case, point to a different conclusion. 96 What I have said above is based on the assumption that the Chinese stamp which appears on the exclusive distribution certificate of 10 January 2005 is the stamp of Suzhou Fak stating the name of that company. As a matter of evidence that assumption has not been made good. As I said, the court knows nothing about the meaning or significance of the characters on the stamp. 97 For the foregoing reasons, I cannot find as a fact that the exclusive distribution certificate was signed by Suzhou Fak. It follows that the applicant has not established that the authorisation to which it refers ever came into effect, and that, if there were a contract of the kind for which the applicant contends, it ever commenced to operate. 98 Finally with regard to the contract, Ms Gatford argued that, if there were a contract and it had effective operation, it was validly terminated by Suzhou Fak stating its willingness to do business with the respondent. She relied particularly on Mr Ding's email of 27 May 2005 to Mr Stergiotis stating that the applicant had asked for the exclusive rights to the MC-801, but "at last, I didn't give them the exclusivity due to their order qty annually. " However, no amount of communication between Mr Ding and Mr Stergiotis would be effective lawfully to terminate a contract between Suzhou Fak and the applicant. At most, such communication might be evidence --- although it is hard to see how it could be the complete evidence --- of Suzhou Fak breaching such a contract or terminating it unlawfully. As Mr Panna submitted, there was no evidence that any contract existing as between Suzhou Fak and the applicant was ever lawfully terminated. 99 For a number of reasons --- not the least of which is the unsatisfactory nature of having to decide on the existence and terms of a contract (or of an effective contract) without the assistance of one of the contracting parties --- I do not propose to rest my judgment regarding the applicant's common law cause of action on the absence of a contract alone. I shall now consider the case on the assumption that there was a contract of the kind for which the applicant contended. Relevantly, the applicant's proposition was that such a contract provided that Suzhou Fak would not supply the MC-801 vacuum cleaner to any other wholesaler in Australia or New Zealand for resale there, and that such a contract was terminable by notice given at any time by Suzhou Fak. Mr Panna accepted that such notice did not have to be of any particular length --- the termination might, at the option of Suzhou Fak, operate instanter upon the giving of the notice. However, he submitted, until such notice was given (and none had been given on the facts of the case), Suzhou Fak remained bound by the negative covenant in the contract. 100 This brings me to the question whether the respondent induced Suzhou Fak to break its assumed contract with the applicant; that is, whether it induced Suzhou Fak to supply the MC-801 vacuum cleaner to the respondent for sale in Australia, contrary to that assumed contract. Whether described --- as traditionally --- as inducement to breach of contract or --- as more recently --- as interference in the performance of a contract, the tort on which the applicant sues has three elements --- the act, the intent, and the resulting damage: Emerald Construction Co Ltd v Lowthian [1966] 1 WLR 691, 703 per Diplock LJ. In the present case, the conduct of the respondent of which the applicant complains took place over the period from April 2005 until January 2006. However, the evidence shows that, over that period, the respondent's conduct did not constitute a continuous engagement of, or dealing with, Suzhou Fak in the manner of a single protracted transaction standing as the "act" to which Diplock LJ referred. Rather, there were three discrete occasions (and a possible fourth), upon which the respondent either had or sought to have dealings with Suzhou Fak and which need to be considered in the context of this tort. I shall consider each in turn. 101 First, at the Canton Fair in April 2006 the respondent was given to understand that the MC-801 was available for sale to Australia. At that time, the respondent had no knowledge of any exclusivity arrangement (much less contract) between Suzhou Fak and some other party. Mr Stergiotis's request for information and samples in early May cannot, therefore, be seen as an attempt to induce a breach of contract. It was only in response to that request that Mr Ding first informed Mr Stergiotis that another company had the exclusive rights to the Australian market. I would regard Mr Stergiotis's email of 16 May 2005 as an attempt to procure Mr Ding to supply the vacuum cleaner to the respondent notwithstanding whatever other exclusive arrangement he had. However, since Suzhou Fak held its line, nothing came of that attempt. It is unnecessary at this point to investigate whether Mr Stergiotis's attempt had the character of an attempt to induce a breach of contract, or whether there was the necessary intent, since no damage was suffered by the applicant. Mr Ding's email of 27 May 2005 was the final communication in what I perceive to be the first round of transactions which may be relevant to the establishment of the tort, the respondent apparently deciding not to press the matter further at that stage. 102 Secondly, in July 2005, Mr Mahtani, acting on behalf of the respondent, sought quotations for, and samples of, the MC-801. Again, Suzhou Fak refused. Mr Ding said that the Australian market was "whole closed". Although there is indirect, and fairly unsatisfactory, evidence that Cuori (presumably on behalf of the respondent) attempted to place an order for five containers of the product in August 2005, once again this approach was rejected by Suzhou Fak. To this point, therefore, there had been no effective inducement of Suzhou Fak to breach its assumed contract with the applicant. Indeed, the proof of both the acts and the intentions of the respondent apropos this series of transactions has been equivocal, to say the least. I do not think it has been shown that the transactions had any of the characteristics of the tort on which the applicant sues. For this reason I would describe this as the "possible fourth" occasion which may be relevant. 103 Thirdly, the subject arose again when Mr Stergiotis and Mr Mahtani visited the Suzhou Fak booth at the Canton Fair in October 2005. At the fair itself, Mr Stergiotis indicated to Mr Ding his preference for the MC-801 over the MC-802. He asked Mr Ding whether he would sell the MC-801 to the respondent. I do not consider that I should regard this as an inducement or procurement of Suzhou Fak to act in contravention of whatever exclusivity arrangement it had with the applicant. Mr Stergiotis asked a question --- he did not seek to persuade. Although I accept that he then knew that the applicant did have the exclusive rights for Australia, his question should not be construed as going any further than enquiring whether that position still obtained. For all he knew, Suzhou Fak might have terminated its arrangement with the applicant or had some other change in its arrangements. Mr Stergiotis did not, at the fair, seek to persuade Mr Ding from the position which he had previously taken on more than one occasion, namely, that the MC-801 would not be supplied to the respondent. 104 Without further persuasion by Mr Stergiotis or Mr Mahtani, Mr Ding changed his mind, and offered the MC-801 to the respondent. On the assumptions upon which I am now working, Suzhou Fak thereupon breached its contract with the applicant. Without further inquiry, Mr Stergiotis did business with Suzhou Fak. The respondent placed a substantial order for vacuum cleaners to be sold into Australia. However, Suzhou Fak's involvement in that transaction was not the result of any persuasion by the respondent. The respondent was, at the highest, in the position of a willing participant in a transaction which, of itself, caused Suzhou Fak to be in breach of its assumed contract with the applicant. This gives rise, I consider, to the following questions: (1) does such participation qualify as an "act" of inducement in the sense of the first of the three elements outlined by Diplock LJ; and (2) by so participating, did the respondent have the necessary intent in the sense of the second of those elements? 105 It seems that an affirmative answer should be given to the first question, at least by a Judge of this court sitting at first instance. There the defendants operated a scheme, using dummy buyers, consciously designed to undermine the plaintiffs' policy of requiring those who bought motor cars from them not to re-sell them within 12 months. The whole point of the scheme was that the dummy buyers would breach their contracts with the plaintiffs by re-selling to the defendants. The other authority to which Jenkins LJ referred was British Industrial Plastics Ltd v Ferguson [1940] 1 All ER 479. As his Lordship pointed out, that case was decided on the factual point that the defendant did not have actual or constructive knowledge that the disclosure to them of a particular process by a former employee of the plaintiffs was wrongful as being in breach of contract. Lord Russell, who made the main speech in the case, treated the plaintiffs' claim as "based on an allegation that [the defendants] wrongfully and maliciously induced and procured the defendant ... to commit breaches of his agreement of service ..." (at 481) and his Lordship said that that allegation, if established, would disclose a good cause of action. It is, with respect, difficult to see how this judgment of the House of Lords is authority for the proposition that mere inconsistent dealings constitutes an act sufficient (together with intent and damages) to make good the cause of action with which I am concerned. 106 Stronger support for the "inconsistent dealings" proposition, I consider, derives from De Francesco v Barnum (1890) 63 LT 514 (which is a different judgment from De Francesco v Barnum (1890) 45 Ch D 430). There the defendant engaged two girls as dancers, unaware at that time that they were contracted to perform for the plaintiff. Because of the latter circumstance, the defendant was not liable for inducement to breach at the point of engagement. However, he was later informed of the contracts between the girls and the plaintiff, but continued to engage them nonetheless. I think therefore that the action lies. If De Francesco v Barnum is good law, it would seem to follow that the tort may be complete, given always the elements of intent and damage, where the putative wrongdoer does not take any positive act or initiative, but merely carries on some course of dealing known by him to be inconsistent with a contract by which the other party with whom he or she is dealing is bound. 107 I mention, finally in this respect, the judgment of the Full Court in Allstate Life Insurance Co v Australian and New Zealand Banking Group Ltd (1995) 58 FCR 26. Giving a judgment with which the other members of the court agreed, Lindgren J set out the passage from the judgment of Jenkins LJ in Thomson v Deakin as though it stated the law: 58 FCR at 44. It is true that his Honour was not dealing with the point as to "inconsistent dealings" with which I am concerned, but, where the Full Court relies upon a statement of the law in the course of deciding a case before it, I should, sitting as a single Judge, treat that statement as correct. 108 Turning to the intent of the respondent apropos the events of October 2005, manifestly the respondent intended that Suzhou Fak should supply it with vacuum cleaners for re-sale in Australia. Mr Panna submitted that, against the respondent's knowledge --- obtained in May 2005 --- that the applicant had the exclusive distribution rights for Australia, the respondent must be taken as having intended a breach of whatever contract existed under which those rights arose, or at least as having been "recklessly indifferent" to the existence and terms of any such contract. 109 As to "reckless indifference", the authorities, in my view, go no further than to say that a third party who, with knowledge of a contract which is binding upon the other party with whom he or she does business, induces that other party to do an act which is known to be inconsistent with that contract (or knowingly interferes with the performance of the contract by that party), will have acted unlawfully if he or she intended that the contract be brought to an end by breach if it could not be brought to an end in accordance with its terms. Like the man who turns a blind eye. So here, if the officers deliberately sought to get this contract terminated, heedless of its terms, regardless whether it was terminated by breach or not, they would do wrong. For it is unlawful for a third person to procure a breach of contract knowingly, or recklessly, indifferent whether it is a breach or not. The element of intent needed to constitute the tort of unlawful procurement of a breach of contract is, in my view, sufficiently established if it be proved that the defendants intended the party procured to bring the contract to an end by breach of it if there were no way of bringing it to an end lawfully. A defendant who acts with such intent runs the risk that if the contract is broken as a result of the party acting in the manner in which he is procured to act by the defendant, the defendant will be liable in damages to the other party to the contract. His Honour did not, therefore, need to resolve the difference. In my view, crucial to the comments of both members of the Court of Appeal in Emerald Construction was the fact in that case that the defendants did not merely seek to induce the party to the contract to do an act without any thought as to whether that act would constitute a breach of contract: their primary purpose was to have the contract terminated. This is reflected in each of the passages set out above. I do not think the same line of reasoning inevitably applies to a situation where the focus of the defendant is not upon the contract as such, but where his or her dealings with the party to the contract have the effect, even the incidental effect, of bringing that party into breach of the contract. In that context, to equate indifference, even "reckless" indifference, with intention would, I consider, be to denude the latter concept of any meaningful connotation. 111 In the present case, on the assumed contract between the applicant and Suzhou Fak, there was a means by which the contract could lawfully be terminated in circumstances which would be no less efficacious commercially for the respondent than termination by breach. Suzhou Fak could have terminated the contract by notice, operating instanter . Although Mr Stergiotis did not know of such a means of termination, neither did he have any reason to assume a contrary contractual state of affairs. He may well have been indifferent --- even "recklessly" so --- about the means by which the contract could be terminated, but it seems to me to be unreal to impute on him --- contrary to the fact --- an intention that Suzhou Fak should breach its contract with the applicant on no basis other than that indifference when in fact Suzhou Fak did have at its disposal means by which it could do business with the respondent which did not involve a breach of contract. 112 The approach which I have taken is, I consider, in line with Sanders v Snell [1998] HCA 64 ; (1998) 196 CLR 329. There, the Minister for Tourism of Norfolk Island had directed the Tourist Bureau to take steps to terminate the employment of its Executive Officer "at the earliest practicable date". The Bureau did terminate the employment of the Executive Officer and did so in circumstances which amounted to a breach of contact. It was held, however, that the Minister had not induced the breach: the employment might well have been terminated lawfully (i.e. on proper notice), and the Minister should not have imputed to him an intention that his direction should be carried out by unlawful means. Even in the light of the fate of the former members of the Bureau, the second direction given by the appellant could not be read or understood by its members as requiring or suggesting the breaking of the respondent's contract. The appellant not having asked or suggested that it should act in that way, the Full Court was right to conclude that the appellant did not procure or induce the breach of contract that was committed when the Bureau terminated the contract summarily rather than by giving notice. It would, after all, have been open to the Bureau to give notice in accordance with the contract. The appellant did not procure or induce the summary termination. That was the Bureau's choice. Mr Stergiotis regarded the arrangements as between Suzhou Fak and the applicant as their business, not his. He would have preferred that those arrangements did not prevent Suzhou Fak from dealing with the respondent. He told Mr Ding so. But he did not turn his mind to the legal nature --- or the terms --- of whatever existed between Suzhou Fak and the applicant. When Mr Ding, having had a change of heart, offered to do business with Mr Stergiotis, the latter readily embraced the idea, as Mr Ding knew he would. But he did not thereby intend a breach of contract on the part of Suzhou Fak. And, there being (under the assumed contract) a perfectly lawful way for Suzhou Fak to have brought the contract to an end summarily, Mr Stergiotis should not, merely by what might be described as his indifference, be fixed with such an intention. 114 Fourthly, there are the events of January 2006. After the respondent placed its substantial order in October 2005, Suzhou Fak filled that order, and the vacuum cleaners in question sold very well. The respondent had every reason to believe that business would continue along those lines, and no reason to suspect that Suzhou Fak had breached a contract with the applicant by accepting the first order. 115 It was only in January 2006 that, prompted by the applicant, Mr Ding changed his mind again. He then refused to fill a second substantial order which Cuori, on behalf of the respondent, had placed. There is no doubt but that, on this occasion, the respondent made every effort to induce Suzhou Fak to fill that order, and if it had done so, it would have been a breach of the contract between Suzhou Fak and the applicant, the existence of which I assume for present purposes. It seems that the respondent had agreed terms with Mr Ding under which Suzhou Fak would supply the respondent with a further shipment of MC-801 vacuum cleaners, but the arrival of the applicant's letter of demand caused the respondent to withdraw. The position ultimately reached was that it did not induce Suzhou Fak to breach its assumed contract with the applicant. 116 Although it seems as though the battle lines were well and truly drawn in January 2006, even then there was no explicit statement by the applicant, or by Suzhou Fak, to the respondent that there was a contract between the two former parties which would be breached if Suzhou Fak supplied the respondent. It was not until 20 January that the respondent was informed of the difficulty involving the applicant's exclusive rights. In his email of that day, Mr Ding referred to the applicant applying for "their certificate in May 2005". That, I infer from the date, was some kind of reference to the then proposed design registration. Mr Tseng's email to Mr Ding of 23 January, which was sent to the respondent, did not refer to a contract. Neither did Mr Ding's covering email. Mr Stergiotis's reply is perhaps indicative of his then state of understanding: he said that he had seen no evidence of a "certified patent under Australian law". 117 When the applicant's solicitors wrote their letter of demand on 23 January 2006, they referred therein to the design registration, and to the Trade Practices Act , but made no reference to the common law cause of action on which the applicant now relies. Even when the lawyers became involved, therefore, the proposition that the respondent's conduct was such as to induce Suzhou Fak to breach a contract which it had with the applicant was not, apparently, obvious. Indeed, when this proceeding was commenced (in the Federal Magistrates Court) on 18 April 2006, the common law cause of action was not relied on. It was introduced by amendment only on 6 November 2006. None of these considerations would, of course, be conclusive against the applicant if the respondent's intent to induce Suzhou Fak to breach its contract with the applicant in January 2006 was otherwise established. However, it has not been. Even when put on notice of the applicant's rights, the respondent was not squarely told that those rights arose under contract. Neither should I find that it ought to have been obvious to someone in the position of the respondent in January 2006 that, if there were any such rights, they would necessarily have been the creature of a contract of some kind. They need not have been. Had the design registration been valid, that might well, in the reasonable eyes of the respondent at the time, have provided a legal basis for the rights which the applicant asserted. It is in this context that I refer to the applicant's solicitors' letter of demand, and to the subsequent progress of the pleadings in the case: the exertions of the applicant's own legal advisers do not provide support for the proposition that the inducement to breach of contract thesis ought to have been obvious to the respondent in January 2006. 118 As at January 2006, the respondent had been doing business with Suzhou Fak which it had no reason to suspect might involve Suzhou Fak in a breach of contract. Within the course of about a week in that month, it was presented with a volte face by Mr Ding, based upon assertions by the applicant which, while clear enough in their commercial purpose, were less than wholly unambiguous in their jurisprudential basis. Unsurprisingly, the respondent protested. It had an important customer whose order it had accepted. When, at the end of the week, it received the applicant's letter of demand, it desisted from all further attempts to do business with Suzhou Fak. I cannot find, in these events, any intention on the part of the respondent to induce a breach of contract by Suzhou Fak. Moreover, since no business was (at that time) in fact done with Suzhou Fak, no breach of contract was in fact induced. No damage was done to the applicant. The tort of inducement was not committed at that time. 119 I shall not leave this part of my reasons without reference to Delphic Wholesalers Pty Ltd v Elco Food Co Pty Ltd (1987) 8 IPR 545. Mr Panna relied particularly on the judgment of McGarvie J in that matter, involving as it did facts which have a degree of resemblance to those of the present case. The case concerned olive oil manufactured in Greece and imported into Australia, and sold there, under the brand "Diana". The Greek manufacturer had an agreement with the plaintiff, Delphic, for the exclusive distribution of the oil in Australia. That agreement, which was in writing, could be terminated by the manufacturer only if Delphic failed to abide by any of the conditions of the agreement or ceased to carry on business. Not only did the defendant, Elco, seek to have the manufacturer supply the oil to it for sale in Australia: it pressed the manufacturer to appoint it the exclusive distributor for that market in place of Delphic. He knew that if the contract remained in existence, the supply of the olive oil would be in breach of it. He intended that if there was no way in which the Calogeropoulos company could terminate the contract, it should supply him in breach of the contract. He was indifferent as to which of those courses the Calogeropoulos company took, so long as he obtained the supply of olive oil. That intention is sufficient to support the cause of action. In the case of a branded product, it is, I consider, more obvious that the distribution of the product into the Australian retail market should be handled by a single importer. However that may be, the fact was, in Delphic , that the manufacturer had a written agreement for the exclusive distribution of the olive oil by Delphic, which agreement could not be terminated at the whim of the manufacturer if, for example, the manufacturer were persuaded to change his distribution arrangements. The defendant Elco knew of that contract, and consciously set about persuading the manufacturer not only to supply olive oil to itself, but also to substitute itself for Delphic as "the" importer and distributor of the olive oil. With respect to almost every significant factual ingredient relevant to the tort, the findings which I have stated above place the present case apart from Delphic . Indeed, it might be said that Delphic is a clear demonstration of the kind of case which the present is not. 120 For the above reasons I shall dismiss the applicant's claim in tort. The letter contains an assertion of the applicant's supposed rights under the Designs Act , and a threat to institute proceedings for infringement in the event that the respondent did not immediately (amongst other things) desist from promoting, advertising, offering for sale, selling, supplying or otherwise procuring the importation, sale, advertisement, promotion, manufacture or supply of the MC-801 vacuum cleaner which it marketed as "Onix SL-500". Assuming those threats to be unjustified (a matter to which I shall next turn), it was not submitted on behalf of the applicant that its solicitors' letter did not involve threats of the kind referred to in s 77(1) of the Designs Act . 122 By the operation of s 77(3) of the Designs Act , since a certificate of examination had not been issued in respect of the applicant's registered design at the time of its solicitors' letter of 23 January 2006, the threats contained in that letter, to which I have referred in the previous paragraph, must be treated as unjustified. 123 The remaining --- and highly contentious --- issue is whether the respondent has sustained damages as a result of those threats, and if so in what amount. As is apparent from my recital of the relevant facts earlier in these reasons, in January 2006 the respondent was anxious, to say the least, to purchase more units of the MC-801 vacuum cleaner to fill its order from Woolworths. It did not accept Mr Ding's rather generalised proposition that he was unable to accept an order because of the existence of an exclusive arrangement with the applicant. The position had been reached whereby, after certain adjustments in the timing of payments to be made by the respondent were agreed, Mr Ding was prepared to put his concerns about the applicant to one side and to fill the respondent's order. I can think of no reason why business would not have been transacted upon the terms thus proposed. It was only upon receipt of the applicant's solicitors' letter that the respondent withdrew from the order in question. It is clear from the evidence, and I find, that the immediate and substantial cause of the respondent discontinuing its dealing with Suzhou Fak in relation to the MC-801 vacuum cleaner was the receipt of that letter. Indeed, I do not believe that the contrary was seriously proposed on behalf of the applicant. 124 Further, on at least two subsequent occasions in 2006, Mr Ding told Mr Stergiotis that he was ready to supply the MC-801 vacuum cleaner. Mr Stergiotis replied that he could not purchase the product in the face of the applicant's registered design. Thus the applicant's threat had an effect upon the respondent which continued well into 2006. Indeed, I can think of no reason why I should not treat that threat as having a continuing impact upon the respondent's readiness to do business with Suzhou Fak down to the date when Mr Panna announced in court that the applicant would not prosecute its claim for infringement, and would not oppose the respondent's case for revocation. 125 Mr Panna made a general submission in response to the respondent's case for damages under s 77(1) of the Designs Act . It was based upon the court accepting the applicant's common law case in inducement to breach of contract. He submitted that, if, by procuring Suzhou Fak to supply vacuum cleaners to it, the respondent was unlawfully inducing that company to act in breach of its contract with the applicant, the respondent could not be heard to say that it would, even absent the applicant's threats of infringement, have purchased those vacuum cleaners from Suzhou Fak. Put another way, Mr Panna's submission amounts to saying that the respondent cannot claim damages for being prevented by the threats from dealing with Suzhou Fak, when that dealing would have been unlawful in any event and, notionally at least, subject to restraint by a court of equity. 126 Since I have found that there was not any such contract between Suzhou Fak and the applicant as the applicant alleges, this general submission cannot succeed. Even if there were a contract of the kind proposed by Mr Panna, however, it was terminable at any time without notice by Suzhou Fak. Had Suzhou Fak desired to do business with the respondent (which appears to have been the case), and assuming (as I think I must) that Suzhou Fak was competently advised as to its rights under the supposed contract, that company might have readily extricated itself from that contract at very short notice. In other words, I cannot see how such a supposed contract could have constituted any kind of practical impediment to the respondent doing business with Suzhou Fak. 127 That brings me to the question of the damages which the respondent in fact sustained by reason of its withdrawal from the trade in the MC-801 vacuum cleaner between about the end of January 2006 and about the third week of December in that year. 128 As a result of complying (in part) with the demands in the applicant's solicitors' letter of 23 January 2006, the respondent was obliged to give up an order from Homeart for 15,000 units of the Onix SL-500. Mr Joel Green, who was the respondent's accountant at the time, calculated that the gross profit which the respondent would have derived from fulfilling the Homeart order was $126,231.38. Mr Green was cross examined on that calculation, and on the assumptions which underlay it. I am satisfied that the calculation is substantially sound, and that the sum to which Mr Green referred represents damages occasioned by the respondent as a result of the applicant's unjustified threat. 129 The other order which the respondent was holding on 27 January 2006 was the order from Woolworths to which I referred in par 41 above. Although the respondent did not fill that order, it supplied an equivalent number of SL-217 vacuum cleaners as substitutes for sale in the Woolworths promotion. The respondent did not claim any loss of gross profit as a result of that substitution. 130 That leaves the question of the loss suffered by the respondent over the 11 months that it held itself out of the market for the MC-801 vacuum cleaners. Here the court enters the field of estimation: in what numbers would the respondent most probably have received orders from retailers for its SL-500 product? To the extent that it would have received such orders, it seems tolerably clear that Suzhou Fak would have been able and prepared to supply the required number of the MC-801 product. 131 The respondent attempted to establish its lost sales of SL-500 vacuum cleaners by leading evidence of its sales of SL-217 vacuum cleaners over the period September 2005 --- November 2006. I was invited to infer that the SL-500 would have sold in at least the same numbers as the SL-217: indeed, it was suggested that, as the SL-500 was a more powerful cleaner than the SL-217, it would most likely have outsold the latter product by a ratio of 1.5:1.0. Further, it was submitted on behalf of the respondent that these sales of the SL-500 would have been delivered without any offsetting diminution in the sales of the SL-217 which in fact occurred. 132 The first issue which arose at trial with respect to the respondent's attempts to rely upon sales of the SL-217 product was the unsatisfactory nature of the respondent's material. Neither Mr Stergiotis nor any person employed by the respondent provided a statement of SL-217 sales by way of affidavit filed in a timely way. Neither were any business records as to such sales discovered in a timely way. I have used this information to calculate the average number of SL-217 units sold by Tempo each month. He did not seek to relate that table to any business record of the respondent. The applicant objected to the admission into evidence of the passage to which I have referred, and to Exhibit JG-3. However, in his viva voce evidence, Mr Green said that he prepared a report from the accounting software used by the respondent --- MYOB --- of the sales of the SL-217 product, he "exported" that report to a spreadsheet, he filtered it per month and per customer and finally "put it in an easily readable format". From this evidence, I would be prepared to hold that, by reason of the operation of s 69 of the Evidence Act , Exhibit JG-3 should not be excluded by the hearsay rule. 133 However, the underlying data, or records, of which Exhibit JG-3 is a "report" were not discovered. They were provided to the applicant only as an exhibit to an affidavit sworn by Mr Stergiotis on the day before the trial commenced, and served on the applicant late on that day. Further, the exhibit was marked as confidential, which, according to the protocol for such matters which until then had been followed by both sides, had the result, I was told, that the applicant's legal advisers could not take instructions on the document from their client. Ms Gatford informed me that the respondent had earlier indicated to the applicant that there would be no objection to the exhibit being perused by an accountant engaged by the applicant, subject always to the same confidentiality undertakings. I was not, however, persuaded that the applicant would have had any practical opportunity to engage such an accountant in the very short time which elapsed between the service of the relevant affidavit and the commencement of the trial. The respondent's position seemed to be based on assumptions about the capacity of the applicant to analyse the data in the exhibit which I did not consider to be either realistic or fair. In the circumstances, I took the view that the probative value of the exhibit was substantially outweighed by the danger that the admission of the exhibit into evidence might be unfairly prejudicial to the applicant, and ruled that the exhibit not be admitted pursuant to s 135 of the Evidence Act . Necessarily, I made the same ruling, and for the same reasons, about the substantive content of Exhibit JG-3 to Mr Green's affidavit, although I excluded that exhibit only to the extent that it purported to state facts as to the sales of the SL-217. To the extent that Mr Green gave the evidence which I have set out in par 132 above, I admitted that evidence as no more than a bare statement that he did in fact prepare a spreadsheet purporting to contain these sales. 134 In making the rulings under the Evidence Act to which I have referred, I did of course take into account more than the unsatisfactory way in which --- and the lateness of the hour at which --- the respondent sought to place the evidence concerned before the court. Section 135 involves a balancing exercise in which the probative value of the proposed evidence must also be placed on the scales. The "value" of evidence of the respondent's sales of SL-217 vacuum cleaners over the period in question was --- arguably --- that it would serve as an indicator of the sales of the SL-500 which the respondent would have achieved in the way I have described. For reasons which follow, I am bound to say that I consider that such a proposition raises more questions than it answers, and that sales data for the SL-217 would, in the result, have been of little assistance to the court. Of the vacuum cleaners in Tempo's range, the SL-217 bagless vacuum cleaner most closely approximates the SL-500 in design and pricing. They are both barrel rather than upright vacuum cleaners, and are both bagless. I have seen Tempo's SL-217 product in Tempo's customers' catalogues and I know that they sell the SL-217 at retail prices of between $79-$99, which is the same price range that the SL-500 would have sold in Woolworths and Homeart. As set out above, when there was a problem with the SL-500 Tempo was able to offer the SL-217 in place of the SL-500. The sales achieved by Tempo for the SL-217 product therefore provide an accurate guide to the likely sales of the SL-500. However, the SL-217 is only available in a maximum of 1600Watts, and for that reason is an inferior performance product to the SL-500. It had also been on the market for some time. I therefore believe that during 2006 if Tempo had been able to offer both the SL-217 and the SL-500 products the sales of the SL-500 would have exceeded the sales actually achieved by the SL-217 during that period, because the SL-500 was a new and more powerful product for Tempo's customers. I estimate that sales of the SL-500 would have been approximately 1.5 times the sales of the SL-217. Finally, I do not believe that having both the SL-217 and the SL-500 in Tempo's range would have substantially detracted from the level of sales of the SL-217. The products were sufficiently different in design and performance for them each to achieve high levels of sales. Ms Gatford accepted that, if the sentence were to be admitted, it would only be as an exception to the opinion rule for which s 79 of the Evidence Act provides. She submitted that Mr Stergiotis had specialised knowledge based on his experience, and that the opinion contained in the sentence in question was wholly or substantially based on that knowledge. She pointed out that Mr Stergiotis had had (since 2002) considerable experience in the wholesaling of vacuum cleaners and understood the critical elements of the retail market into which he sold such products. 136 The questions which arise under s 79 of the Evidence Act , in relation to Mr Stergiotis, are, first, what is his relevant experience, and, secondly, does he have specialised knowledge based on that experience? The evidence discloses that the respondent was established by Mr Stergiotis in 2002, prior to which he worked for about ten years in the consumer electronics industry, in which he established, and subsequently sold, two successful mobile phone retail chains, Mercury Phone Stores and the Fone Factory. In conducting those businesses, Mr Stergiotis had to find retail locations in shopping centres, had to find staff, and had to set up "the whole spectrum" (as he put it) of those retail stores. At about the same time, Mr Stergiotis was also involved in wholesaling mobile phone accessories to retailers. 137 It would appear to be since about 2002, with the establishment of the respondent, that Mr Stergiotis has been involved in the wholesaling of vacuum cleaners. In that time, the respondent has sold between about 400,000 and about 500,000 individual "floor care vacuum cleaners". We also look on the catalogue activity, what is happening in the catalogue, what they are promoting....We also subscribe to a trade magazine that gives us up-to-date information of what is happening inside those companies as well, and if there is any new developments on product, or new releases, so that is what we do on a continual basis to find out where the markets are. He said that, over the last two years, Woolworths and Coles had purchased vacuum cleaners from the respondent, but not from other companies. He added: "So you would say we are the preferred supplier of vacuum cleaners in those two areas, in those two retailers. On the other hand, he has had extensive experience as a wholesaler of imported household electrical appliances, including vacuum cleaners, since 2002, but has had no direct experience in the retailing of vacuum cleaners. He has made many observations of the way in which retailers promote and sell vacuum cleaners, but the observation of the activities or behaviour of others does not, I consider, amount to the same thing as experience for the purposes of s 79: see Australian Securities and Investments Commission v Vines ( 2003) 48 ACSR 291, 295 I do not suggest that Mr Stergiotis's experience as a wholesaler may not provide a sufficient basis for such specialised knowledge as he had: I suggest only that that experience should not be regarded as qualitatively the same as the experience of a retailer. 139 Turning to the question of Mr Stergiotis's "specialised knowledge" as such, I must say that this question was rather glossed over in the submissions of the respondent. Ms Gatford said that Mr Stergiotis's opinion as to the SL-217 sales being an accurate guide to the SL-500 sales "is based on his knowledge of his customers' behaviour, which he makes it his business to find out". She submitted also that Mr Stergiotis's evidence was that "his knowledge, by direct observation, covers the whole supply chain, from factories in China to retail stores in Australia". Each of these submissions, manifestly, makes a statement about a characteristic of the supposed body of knowledge which is held by Mr Stergiotis. What that knowledge was, however, was never satisfactorily explained. Insofar as it was said to be a knowledge of "his customers' behaviour", the respondent's customers are retailers, predominantly the larger variety and discount stores. Relevantly to the opinion expressed in the final sentence of par 37 of his affidavit, the only evidence which Mr Stergiotis gave as to his knowledge of the behaviour of retailers came in response to a series of questions in chief, the first of which invited him to state how a hypothetical retailer, having both the SL-217 and the SL-500 in its range, would have offered those products to the market. So, obviously, the bagless vacuum is a sought after item and retailers like that product because they like something that they can put in their catalogues and bring people in. So if you had two offerings it would be even more appealing to a retailer because now he can offer - he can't offer a bagless vacuum every month of - every month, the bagless vacuum, bagless vacuum, but with two vacuums on offer he can offer the SL500 2000 watt and the following month, at a separate retail price, he can offer the SL217 at a 1600 watt. So he is taking advantage of a popular product in the market but not, I would say, tiring the - or making something look boring by having it on every month. You can change the colour. We have done that with a few retailers. For instance, Woolworths have change the colour often on the same product or you can offer extra accessories like a turbo brush, or an extra filter or things like that, just to change it slightly and make it like a new - like re-invented, as it were, every moth. So, having two products, you have got more scope to re-invent and continue to promote the product. That far exceeds what he sold in the first week for the SL217 and they were the same price, so you see, the power - the more powerful unit and the SL500 sells more just in that example than the SL217. So, I would think, at least one and a half times more would be the sales of the SL500. 140 Mr Stergiotis was asked again to comment on the suggestion (made on behalf of the applicant) that, if both the SL-217 and the SL-500 were available for sale side by side, at the same price, the sales of the former would fall. So, a customer buying a product at a certain price point brings in a certain category of people. As soon as you go up 10 or $15 it affects people's purchasing decisions. So, a person that had $60 in his pocket and went to the retailer would think twice about spending that extra 10 or $15, where a person who has $80, won't think twice. So, for instance, we would have the 217 at a lower price point where there would be a difference. So there would be one group of customer with that portion of money to spend, and because we deal in the discount variety end, people are very conscious of how much they spend. So, there would be still more sales of the SL217 because the price would still be competitive and the different market would look at - or different customer would look at the SL500 at that price. He says that retailers place the bagless vacuum cleaner in their catalogues as a promotion item in order to attract customers. He says that, with two similar bagless vacuum cleaners available, a retailer "can offer" one product one month and the other product the following month. He says, in effect, that sequential promotions would "make it interesting" for the consumer. Save for these matters, most of the evidence to which I have referred above is concerned with the behaviour of consumers, rather than with that of retailers. To the extent that the practice of the larger variety and discount retailers to sell vacuum cleaners by way of promotions is said to constitute an item of "specialised knowledge" held by Mr Stergiotis, it does not, in my view, provide a proper basis for the opinion which he expressed in the final sentence of par 37 of his affidavit. He provided no rational explanation for why that behaviour would necessarily, or even probably, produce the result that sales of the SL-500 product would be 1.5 times greater than sales achieved by the SL-217 product (in the absence of the SL-500), if both were available on the market at the same time. 142 Realistically, the last sentence in par 37 of Mr Stergiotis's affidavit is an opinion about consumer, not about retailer, behaviour. Implicitly, Mr Stergiotis accepted as much in the direction and drift of the answers which he gave in chief which I have set out above. But those answers, I consider, were based not so much on any specialised knowledge which Mr Stergiotis had as a result of his experience as a wholesaler of vacuum cleaners, as upon everyday intuitive reasoning with respect to unremarkable, and entirely natural, aspects of assumed consumer behaviour. I do not suggest that there is anything inherently wrong with Mr Stergiotis's reasoning (although, as the evidence to which I shall presently turn shows, there is ample scope for a difference of view upon the matters with which he dealt), but I find nothing in that reasoning, or elsewhere in the evidence of Mr Stergiotis, to constitute a proper basis in such knowledge as he has for the opinion expressed in the final sentence of par 37 of his affidavit. 143 For the above reasons, I ruled that Mr Stergiotis's estimate of the relationship between the actual sales of the SL-217 and the hypothetical sales of the SL-500 should not be admitted. As it happened, there was evidence from two very experienced retailers with respect to such matters, and neither of them was prepared to go further than to indicate to the court a range of considerations and circumstances that would bear upon the likely sales of the SL-500, given an environment in which the SL-217 was also being sold. Neither of them offered an opinion of the kind to which s 79 of the Evidence Act might apply. But each of them identified various characteristics of the retail market for vacuum cleaners that would permit the court to make its own estimate of what is, at base, essentially a non-technical matter. 144 Mr Matthew Hardy is the national retail manager of Godfreys. He has been employed by Godfreys for more than 18 years, for about the last five of which he was in his present position. Before that, he was Queensland state manager for about nine years. In his present role, he constantly monitors the Australian market for vacuum cleaners, and makes assessment of that market, such as by way of assessing the likely sales to be made for various models. Godfreys has 114 stores in the states and territories in which it operates. Mr Hardy said that there are about 50 different models of bagless vacuum cleaners available at retail stores throughout Australia at any one time (a figure which was common ground between the parties). Mr Hardy expressed the view (without objection) that, at the same price, it was unlikely that a consumer would purchase the less powerful SL-217 vacuum cleaner if the more powerful SL-500 model were available at the same time. Under cross examination, Mr Hardy accepted that his view was not based upon any knowledge of the actual sales achieved by the variety and discount chain stores, but made it clear that the view was not confined to a situation in which the two products were on sale side by side. He said that, generally, a consumer who was aware of a more powerful product being on sale (even elsewhere) at the same price as that for which a less powerful product was selling, would tend to purchase the former. 145 Mr Hardy's evidence was limited. Unlike Mr Stergiotis, he did not purport to make a statement about the likely relationship between the actual sales of the SL-217, in an environment in which the SL-500 was not on the market, and the likely sales of the SL-500 in a hypothetical environment in which both products were on the market. Rather, he expressed the view that, other things being equal, a consumer who was aware of a more powerful product being sold at the same price as a less powerful, but otherwise similar, product, would buy the former in preference to the latter. This strikes me as a rather unremarkable conclusion which is intuitively sound, but, if it is a conclusion which the court would be inclined to draw in any event, the fact that it is expressed by a retailer with Mr Hardy's experience provides some confirmation. 146 Mr Woodward, who visited the Canton Fair in April 2005 in company with Mr Stergiotis, also gave evidence on this subject. In his time with DVG, Mr Woodward observed that products retailing at less than $100 achieved their best sales when they were new to the market, and that after a few years the volume of sales often deceased to a level where the product was not re-ordered. Demographics were low socio-economic and therefore products that we brought to market in this sort of instance needed to be of a high desirable value at a very discounted price. A vacuum cleaner is an example of that. A DVD player is an example of that. The promotional periods that these were run - these weren't in the Discount Variety Group. These weren't a ranged item. These were used purely for a promotional basis. Generally used as, what is considered to be a loss leader in the fact that we would lose our normal margin at a - and sell the product at a lower margin to increase the traffic flow through our stores so that the higher margin merchandise would be able to be bought as well, so it was used as a promotional tool and not as an everyday line. Those promotions were run throughout the promotional calendar of the year, the example of Easter, Mothers Day, spring clean, Fathers Day, Christmas time, so on the promotional calendar, they were run in those periods, but not in that period. My understanding of the Godfreys business, as a merchant, I can see that they range vacuum cleaners and they are a vacuum cleaner specialist and they have products for sale every day of the year and that is a stark contrast to DVG, where vacuum cleaners weren't ranged and they were used for promotional purposes only. He said that DVG was one of the first retailers to sell bagless vacuum cleaners at a discount price. China had developed a lot more bagless vacuum cleaners with different designs and different features and it was a decision that we would continue with the bagless vacuum cleaner program because it was returning us a great amount of traffic driving through the business. A million catalogues would go out, the vacuum cleaner would be either on the front page or the back page and it was providing to be a great traffic flow for us. With vacuum of this instance you have run them once, twice, maybe three times in the method I described previously, you tend to get saturation in the market and then it is time to bring a new one on board. If you have two or three different types then it allows you to spread that promotional period out and still run them three times but maybe across three products. So that the return - the net return would be increased sales across those product ranges. He said that he would run promotions six to eight times in the "promotional calendar". He said that, in the peak promotional periods of Mother's Day and Christmas time, it would not be unusual for DVG to have ordered quantities of 15,000 to 20,000 pieces. In the smaller promotional periods, such as at the time of spring cleaning, DVG might order approximately 10,000 pieces. 147 Under cross examination, Mr Woodward said that, if two vacuum cleaners were on sale side by side, one of 2200W and the other of 1500W, he would expect a consumer to prefer the higher wattage vacuum cleaner. He said that he would not sell the SL-217 within the same promotional period as the SL-500, and expect to get twice the sales. The turnover figures in the various promotional periods to which he referred were based, he said, on total sales of a single vacuum cleaner. He said that you would not expect to double those sales by introducing a second, less powerful, product. He agreed that the higher wattage product would bleed off sales from the lower wattage product. For the hypothetical circumstances put to him (comparing the SL-217 with the SL-500) he thought that a retail price differential of $20 would be required to cancel out the effect of the SL-500 being a more powerful product. 148 Relevantly to the matter with which I am presently concerned, there is little difference between the evidence of Mr Hardy and that of Mr Woodward. They each concur in the proposition that the less powerful SL-217 would not maintain the same level of sales which it might have achieved in isolation if it were sold alongside the more powerful SL-500. Mr Woodward goes so far as to say that, in the particular retail setting with which DVG was concerned, he would not include the two products within the same promotional effort. Mr Hardy was prepared to go to the extent of saying that an informed consumer would buy the SL-500 in preference to the SL-217, where the two were being offered at the same price even in different locations. Manifestly, there is nothing even approximating exactitude in this area of the evidence before the court. However, in the light of that evidence, I am not prepared to find that the respondent's sales of the SL-217 product provide some kind of guide or indication with respect to the likely sales which it would have made of the SL-500 product, in the hypothetical situation in which both products were on the market at broadly the same time, even if promoted sequentially, rather than contemporaneously, by particular retailers. 149 I accept, of course, the force in Ms Gatford's submission that, there being about 50 bagless vacuum cleaners on the market in Australia, it cannot be assumed that the introduction of a further product into the respondent's range would necessarily have a direct, and measurable, impact upon the sales by the respondent of some other product. Likewise, however, as much as anything because there are so many different products on the market, I am not prepared to conclude that the sales of one existing product would necessarily provide, of themselves, even an approximate indication as to the likely sales of an introduced product. 150 Absent the evidence which I rejected, what evidence was there which might bear on the question of the sales which the respondent would have made of the SL-500 vacuum cleaner in the period January --- December 2006 (in addition to the lost Homeart order to which I have referred in par 128 above)? I was told of the various discount retail chains which the respondent would regard as constituting the cohort of its regular customers. No representative of any of those chains gave evidence. Mr Marten from Woolworths was responsible for the order placed in October 2005, and for the later order which was cancelled in late January 2006. He was not called. Mr Woodward --- who was called --- was senior buyer for DVG, but he left that organisation in January 2006. The respondent sought to lead evidence of an intention by him to place an order for the SL-500 product for the Christmas 2006 promotional period. I disallowed that evidence because I considered it irrelevant in the light of Mr Woodward's departure from DVG. In the period October 2005 --- January 2006, the respondent was in the business of selling the SL-500 by wholesale --- without any legal impediment of which it was then aware. It led no evidence from Mr Woodward as to why he did not then place an order for the SL-500, notwithstanding that it was he who had seen the product first-hand in April 2005 and had been impressed by it. No witness presently employed by DVG was called. No witness representing the Coles group was called, notwithstanding that the respondent claims to be the preferred supplier of vacuum cleaners for that group. 151 In the circumstances to which I have referred in the previous paragraph, I do not see why I should give the respondent the benefit of generous, or even generally favourable, estimates as to the probable sales by it of the SL-500 vacuum cleaner. This appears not to have been a case in which some kind of predictive accuracy on that subject was practically unachievable. The respondent's business is selling things. It will not do that unless there are retailers willing to buy. There was no explanation as to why such retailers were not called to explain what they would or might have done apropos the SL-500 had the respondent been in a position to sell. 152 As I have said, the respondent attempted to establish the proposition that its sales of SL-217 vacuum cleaners might be taken as an approximate indicator of the sales which it would have made of the SL-500 product in the corresponding period. For reasons I have stated, I rejected the respondent's evidence of SL-217 sales. However, I admitted Exhibit JG-3 for the purpose only of demonstrating the Mr Green prepared a spreadsheet which contained certain figures. The respondent relied on evidence given viva voce by Mr Stergiotis in chief that the respondent's sales of the SL-217 product were in the order of 8,000 --- 10,000 units per month. If this was intended to stand as the extent of the respondent's evidence on a subject on which, presumably, it could have given greater precision (after timely discovery), I must say that I found it most unsatisfactory. As it happens, of the 15 monthly figures on Ex JG-3 purporting to show the respondent's sales of the SL-217, only one fell between 8,000 and 10,000. The figures ranged from a high of 14,392 to a low of 1,370. The average for January --- November 2006 was 7,804 --- outside the range of 8,000 --- 10,000. 153 Comparison with sales of the SL-217 is further complicated by the demonstration in January 2006 that Woolworths, having been denied its order of the SL-500, took the SL-217 instead. The result was, I was told, a gross profit for the respondent no less than would have been derived from the original order. That demonstration justifies the inference as a matter of probability that, over the course of 2006, Woolworths would have regarded the SL-217 as a fair substitute for the SL-500, although perhaps one should give some weight to the very positive experience which Woolworths had had with its first order of the latter product. However, in the absence of evidence from Mr Marten, I am reluctant to make assumptions or estimations favourable to the respondent. 154 Ms Gatford submitted that the respondent was unable to "adduce precise evidence of what it has lost because it has been out of the market". She added that, therefore, "a level of guesswork is essential". In the former kind of case it may be that estimation, if not guesswork, may be necessary in assessing the damages to be allowed. References to mere difficulty in estimating damages not relieving a court from the responsibility of estimating them as best it can may find their most apt application in cases of the former rather than the latter kind. She referred also to the judgments of Wilcox J in Amalgamated Mining Services Pty Ltd v Warman International Ltd (1992) 24 IPR 461, 478 and of Finkelstein J in Axe Australasia Pty Ltd v Australume Pty Ltd (2006) 69 IPR 45, 52. 155 In Placer , Hayne J was not, I consider, concerned to propose that there were only two kinds of cases apropos the assessment of damages: those in which precise evidence was available and those in which no evidence was available. His Honour's expression "estimation, if not guesswork" conveys a meaning that, where evidence on which an estimation may be made is available, the court should not indulge in guesswork. It is also implicit in his Honour's statement that, where estimation must be resorted to, a better estimate will always, where possible, be preferable to a worse estimate. That is to say, a party who carries the onus of proof should not be heard to submit that guesswork, or even a loose kind of estimate, may be resorted to where evidence which might have been, but has not been, called might have permitted the making of an estimate with greater confidence of proximity to the actual loss suffered by that party. This is the approach which I have brought to the assessment of the respondent's damages in the present case. 156 I allow that it would manifestly be unrealistic to suppose that the respondent would have made no sales of the SL-500 beyond those ordered by Homeart and beyond any offsetting effect of SL-217 sales. I do recognise that the two vacuum cleaners were different, albeit similar, products, and probably would have sold over the same period and in the same market. I accept what Mr Woodward said, that a practice adopted by the larger variety chains was to conduct promotions of different products at different times, and to concentrate on the periods leading up to Mother's Day and to Christmas. For its promotion in the period leading to Mother's Day 2006, Woolworths took the SL-217 in substitution for the SL-500, with no loss to the respondent. I am prepared to find that Woolworths would probably have ordered a further 10,000 units in about October 2006. Despite the evidentiary shortcomings in the respondent's case, and for that reason taking a conservative approach, I think it probable that the respondent would have sold to other retailers at least as many units as I am prepared to hold it would probably have sold to Woolworths within the period in question. Thus I would add a further 10,000 units to my estimate of the respondent's lost sales. In making these estimates, I take into account the evidence that, after about a year, the consumer market for new products such as the SL-500 would tend to approach saturation point. However, I do not believe that the respondent should be given the full credit for these 20,000 units of assumed sales, since I am not persuaded that it would not have suffered some kind of reactive diminution in its sales of the SL-217. Thus I would discount the figure of 20,000 by 25%. In the result I am prepared to go no further than to hold, on the probabilities, that the respondent has suffered as a loss the gross profit equivalent of 15,000 units of SL-500 sales in the period January --- December 2006. 157 Using the gross profit margin which the respondent claimed for its sales to Woolworths, I would assess its damages with respect to the 15,000 units referred to above at $86,828.58.

exclusive distribution certificate issued by overseas manufacturer to australian importer whether consideration provided by importer whether importer promised to place orders whether certificate constituted contract. inducement to breach of contract whether contract existed respondent's knowledge of contract intention of respondent "reckless indifference" whether inconsistent dealing amounted to inducement to breach. "signed" whether rubber stamp of company name on document constituted signature of company. validity of registration novelty whether design published in document design applied to new product sent for testing and certification whether design publicly used in australia designs act 2003 (cth), s 15. invalid registration of design threats of proceedings based on registration whether threats unjustified whether addressee of threats suffered damage thereby designs act 2003 (cth), s 77. owner of design derivation of "title" to design authority of design owner to register design in owner's name whether gave rise to "title" to design whether gave rise to right to call for assignment of design designs act 2003 (cth), s 13. unjustified threat of proceedings for infringement of registered design addressee holding itself out of market as a result of threat whether addressee sufficiently proved foregone sales designs act 2003 (cth), s 77. contract tort words and phrases designs designs designs damages

The first relates to whether, though business records, the documents contain representations which are rendered inadmissible under s 69 of the Evidence Act 1995 (Cth) because of the exception prescribed in s 69(3). The second is whether, if the documents are otherwise admissible notwithstanding that they are inadmissible under s 69 , they should nonetheless be excluded from evidence under s 135 of the Evidence Act . The third concerns whether, if otherwise admissible, their permitted use should be limited under s 136 of the Act. 1. The documents all relate to an investigation instituted by Dr Kenneth Keung, the executive director of AMC, into alleged parallel importing into Hong Kong of products manufactured by the respondent, Hamilton Pharmaceutical Pty Ltd. AMC had an exclusive distributorship from Hamilton in respect of the products said to be the subject of parallel importation. The documents to which I have referred cover a period from 5 August 2002 to 10 October 2002 and purport individually to contain the tabulated results of investigations made by employees of AMC as to whether dispensaries and retailers in Hong Kong were selling packages of "Fuyunhon 10% urea cream 50g" which were not provided by AMC. This cream was the principal product the subject of the exclusive distributorship. I directed AMC's employees to purchase samples of Fuyunhon 10% urea cream 50g from a range of dispensaries and retailers and note whether the boxes of the samples purchased contained AMC's advertising leaflets, referred to above. Casebook 385-400 is a bundle of notes and records of their investigations provided to me by AMC employees. 4 The detailed supervision of the investigation was conducted by a Dr Calvin Lam who had been previously engaged by AMC for a "success fee". From October 2001, at Dr Lam's suggestion, AMC inserted a small leaflet into the box of each unit of the 10% urea cream which it received from Hamilton before that unit was despatched to AMC customers. The purpose of this strategy was to permit AMC to distinguish those products in the market which were supplied by AMC from those which were not, hence the reference in the quotation above to boxes containing AMC's advertising leaflets. 5 In the period from August 2002 to at least September 2002, Dr Keung and Dr Lam engaged in increasingly tense communications with Hamilton complaining both that it was the supplier of the parallel imports being brought into Hong Kong and of Hamilton's apparent lack of intent to cooperate with AMC to bring a halt to the selling of those parallel imports. Correspondence relied upon by Hamilton does suggest that by at least early September 2002 Dr Keung was representing to Richard Blake, Hamilton's Managing Director, that law suits were pending in Hong Kong against local distributors and/or retailers: see eg the facsimile from Dr Keung to Mr Blake of 6 September 2002. 6 On the material before me it is clear that by 16 October 2002 legal proceedings had been initiated against a company in Hong Kong which traded under the name "Forward Company" in respect both of alleged infringements of AMC's trademark used on packaging of the 10% urea cream and of its involvement in the distribution of the alleged parallel imports in Hong Kong and elsewhere. While correspondence that has been relied upon for present purposes between AMC and Hamilton does allude to the potential for litigation between the two companies, I am not satisfied that by this time such "threats" as were being made particularly by Dr Keung and Dr Lam were intended otherwise than to obtain leverage with Hamilton in bringing the parallel importation to an end. I will return to this matter below. 7 The tender of the 16 documents has been objected to by Hamilton. First, and faintly, it was alleged that they did not constitute business records for the purposes of s 69 of the Evidence Act 1995 (Cth). I considered that objection untenable in the circumstances and have already ruled upon it. Secondly, and more substantially, they have contended that those documents are rendered inadmissible by the provisions of s 69(3) of the Evidence Act . The first matter to emphasise about the exception in subs (3) is that it applies not to a document as such but to a representation or representations contained in a document. It is well accepted that the hearsay rule contained in s 69(2) is founded on the "rationale of reliability" of business records generally. The exception to that subsection is founded on a "rationale of unreliability" of representations made in the circumstances envisaged by subs (3): see generally Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 1357 ; (2005) 147 FCR 235 at [27] . 9 His Honour went on to note that the contemplation or existence of any proceedings might lead even persons of good intent to make purely self-serving statements which would otherwise be admissible through the scheme of s 69 and that it was the tendency for such self serving statements to be made which led to their exclusion from the ambit of s 69(2). 10 The focus of the contemplation referred to in subs (3)(a) is, as Lindgren J indicated in the Advanced Medical Institute case, upon the contemplation of the person who "prepared" or "obtained" the relevant representation. ... In order for s 69(3)(a) to apply, a person must have "prepared" or "obtained" the representation (not the document) in contemplation of a proceeding. It is an unusual use of language to refer to the "preparing" of a representation, but I think that the intention is clear enough; the reference is to the person who prepared, formulated, shaped or framed the terms in which the representation is made. This will typically, perhaps always, be or include the maker of the representation. 26. The person who "obtains" a representation is a person who seeks the representation or procures it to be made. This person is not the maker of the representation, but may be a person who "prepared" it. 27. By referring to persons who prepared or obtained the representation, the legislature was attempting to encompass all those who might cause a representation to be made in the form which it takes. The two questions which need to be determined for present purposes are, first, can it be said that legal proceedings were in contemplation and, second, if so, were they in the contemplation of the person or persons who prepared or obtained the relevant representations? For present purposes I am satisfied that representations contained in the documents which indicate that there were products purchased from retailers which did not contain AMC's insert in the packaging (ie products which were parallel imports) are at least presently relevant representations. As to the question whether legal proceedings were in contemplation at that time between AMC and Hamilton, I am not satisfied on the material before me such was the case. As I indicated above, the evidence does not suggest there was a likelihood or reasonable probability of legal proceedings at the relevant time. While the relationship of the parties at this time was undoubtedly tense, they had by then been in a long term relationship spanning 14 years. Such references as were made in correspondence to Hamilton's alleged responsibility to compensate AMC either for Dr Lam's success fee or for loss sustained by AMC from parallel importing could at best only be properly treated as reflecting a negotiating process between the parties at this stage. 12 When one turns to the contemplation of legal proceedings in Hong Kong, the situation is quite different. It is clear that from August 2002, as the investigation into parallel importing appeared to bear fruit in AMC's eyes, the prospect of taking proceedings against distributors and retailers was a very real one. Notwithstanding that AMC obviously was wishing to resolve disputes without resort to legal proceedings --- and the correspondence reflects this --- it also makes it perfectly plain that litigation was contemplated. It suggests that, by early September, proceedings were pending and on the evidence before me a writ had been issued by mid-October which, coincidentally, was the time at which the last group of documents in the bundle were referrable. For this reason I am prepared to infer that so far as Dr Keung and Dr Lam were concerned, legal proceedings throughout the time period covered by the business records in question were likely or reasonably probable against Hong Kong distributors and/or retailers involved in alleged parallel importing. 13 Those proceedings of course would not have involved Hamilton, ie it could not be said that the representations were made in contemplation of proceedings involving Hamilton and in which proceedings it was subsequently sought to have them tendered. In Kang v Kwan [2002] NSWSC 1187 Santow J, in a very brief passage in his judgment, held that the relevant misrepresentation must have been prepared or obtained in contemplation of the very proceedings in which the document is sought to be used. No reference was made by his Honour to authorities dealing with this question under either the Evidence Act or earlier similar provisions. 14 For my own part, I am satisfied that the decision of Santow J places an undue limitation upon the clear wording of s 69(3) and is inconsistent with the underlying purpose of the provision itself. Section 69(3) refers only to a proceeding without any limitation as to parties: see the observations of Hamilton J in Lewis v Nortex Pty Ltd (in liq) [2002] NSWSC 1083 at [4] (4). 15 The unreliability of evidence of representations made or prepared in a context which might cause the representation to be self serving is, in my view, as likely to exist whether or not the proceedings in contemplation was the one in which the representation was sought to be tendered. It is, in my view, unsurprising that the decision of Santow J has in this respect attracted criticism: see Odgers, Uniform Evidence Law (7 th ed) at [1.3.2880]. For my own part I am not prepared to follow the Kang v Kwan decision. I am satisfied that the legal proceedings in contemplation referred to in s 69(3) relate to any legal proceedings in which the representation might become admissible and is not confined to the proceedings in which the statement is sought to be tendered: cf Feltafield Pty Limited v Heidelberg Graphic Equipment (1995) 56 FCR 481 at [487A]. 16 The remaining question is whether it can properly be said that either or both of Drs Keung or Lam, but particularly Dr Keung, prepared or obtained the representations to which I have referred. In light of Dr Keung's own evidence and of the function being performed by Dr Lam in the parallel importing investigation, I am satisfied that each can properly be said to be so involved in obtaining or procuring the making of the representations as to satisfy that requirement of s 69(3). I equally am satisfied from the communications and documents relied upon by the respondent that they had the contemplation envisaged by the subsection. 17 Accordingly, I rule representations contained in pp 385-400 of the applicant's court book not to be admissible under s 69(2) of the Evidence Act . 2. & 3. The notes they contain are partly in Chinese, though Dr Keung in evidence-in-chief gave some indication of how most of them should properly be read. Though Dr Keung's second affidavit at [47] identifies the persons who participated in the parallel importing investigation and the person who was responsible for the actual preparation of the business records, it is not obvious whether they together constitute the totality of the notes made in the investigation Dr Keung commissioned, or are merely a selection of them. What is clear, in my view, is that the number of retail outlets visited to which reference is made in the documents represent only a small proportion of such outlets in Hong Kong. 19 Hamilton contends that the inadequacies of the documents are such that, absent any capacity to cross-examine Dr Lam on them, it would be unfairly prejudiced by their reception into evidence and that I should exclude them under s 135 of the Evidence Act . 20 I have already indicated that the representations contained in the documents are not admissible as hearsay exceptions under s 69 of the Act. AMC, as a fall back position, seeks to have them tendered simply as part of the evidentiary matrix of materials which informed Dr Keung's, hence AMC's, beliefs about the incidence and provenance of parallel importing of 10% urea cream in Hong Kong. 21 In his first and second affidavits, Dr Keung indicated how (inter alia) the investigation informed both his views about parallel importing and AMC's subsequent actions in relation to it. Notwithstanding the deficiencies in the documentary evidence sought to be tendered of which Dr Keung took account, I am satisfied it ought be admitted into evidence as evidence of the fact of the investigation and as part of the matrix of materials which informed his --- and AMC's --- belief and actions in relation to the alleged parallel importing. To this extent I am unwilling to rule it inadmissible under s 135 of the Evidence Act notwithstanding the questions that can be raised about the documents themselves which I have noted above. 22 However, while I will admit the documents for the above purposes, I will under s 136 of the Evidence Act limit the use that can be made of them to those purposes as I am satisfied that to admit them for all purposes would be unfairly prejudicial to Hamilton and, given their deficiencies, would be likely to mislead. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

hearsay rule s 69 evidence act 1995 (cth) business records exception s 69(3) qualification where documents prepared or obtained in contemplation of australian or overseas proceedings application of s 69(3) to documents prepared or obtained in the context of distinct proceedings against a third party evidence

It was not in dispute that the applicant failed to pass the "character test" because he had a "substantial criminal record": s 501(6)(a) ,(7)(c). The Minister nevertheless had a discretion to refuse to cancel the visa and the delegate was subject to ministerial directions under s 499. He was sentenced to imprisonment for a period of four and a half years with parol eligibility after two years three months. 3 At the trial Mrs Flowers gave evidence that on the evening of 9 May 2003 she returned to the matrimonial home at about 7.55 pm and found her husband waiting inside. He appeared to have been drinking heavily. She went to the bedroom and lay on the bed reading a magazine. He discharged the gun, shooting her in the stomach. She attempted to wrest the gun from him. He said he intended to "blow her brains out" and then to "blow his own brains out". She managed to get hold of the gun. He followed her from the bedroom and then returned saying "I'll get the other gun and finish what I started". She escaped from the house. She underwent surgery and eventually recovered. 5 The applicant's case at the trial was that he followed his wife to the bedroom for the purpose of killing himself in her presence. He said he had no intention to harm her. He denied threatening her in the manner alleged. He said that his wife tried to take the gun from him and was shot accidentally in the ensuing struggle. 6 In the context of decisions under s 501 it was not open to the applicant to challenge his conviction or the essential facts giving rise thereto: Luu v Minister for Immigration and Multicultural and Indigenous Affairs [1998] FCA 1021 , Bridges v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCAFC 1647. The purpose of the report was to advise of the possibility of an insanity defence for the applicant under s 16 of the Criminal Code 1924 (Tas). 8 Dr Sale noted that the applicant, who was born in 1942, had a "number of significant health problems". 10 Dr Sale noted that there had been something of an "escalation of health related issues" in the final few weeks prior to the wounding of his wife. Abnormal chest x-rays had led to concerns that he had developed a lymphoma. He was scheduled to have a biopsy but was too fearful to take this step. He appeared to have given up, believing there was nothing further that could possibly happen to him, and was harbouring thoughts of suicide. Since being in custody he had undergone further investigations, including a biopsy, and the diagnosis was not of lymphoma but, as previously mentioned, sarcoidosis which is a connective tissue disease, not malignant and generally not lethal. 11 Under the heading "Comment" Dr Sale noted that there were discrepancies between the accounts given by the applicant and his wife. Given the applicant had been drinking, and probably substantially, the wife's account was likely to be the more reliable. Fitness to stand trial was not an issue. Those issues listed above make this a likely scenario. This is a version he may now genuinely believe. As outlined earlier, his memory of what happened is likely to be flawed and patchy. His current version of events, now that he is more composed and no longer facing death by lymphoma, is one which he will be better able to live with. The Tribunal found that even if it were competent for it to find facts inconsistent with the jury verdict it certainly would not do so. It found Mrs Flowers to be a "frank and impressive witness". I am in no doubt that the applicant attempted to murder his wife, but obdurately refuses to concede that he did so. This obviously has ramifications when considering the exercise of a discretion which may have the effect of allowing him to remain in Australia. The latter posed three primary considerations, two of which were relevant: (a) the protection of the Australian community and members of the community, (b) the expectations of the Australian community. 14 The assessment involved three elements (par 2.5) namely the serious nature of the conduct, the likelihood of the conduct being repeated and the likelihood of cancellation providing discouragement for other like-minded offenders. 15 The Tribunal considered the criminal offence "very serious indeed" and the applicant's conduct was at a "very high level of culpability". His intention to turn a gun on himself once he had despatched his wife did not diminish his blameworthiness. No provocation by Mrs Flowers was alleged. At no time did he deviate from his claim that the shooting was accidental. There was no acknowledgement of an attempt to kill or "a meaningful expression of remorse for his criminal conduct". The Tribunal noted the comment of the trial judge when sentencing that the likelihood of re-offending was "slight" but the Tribunal could see no evidentiary support for that observation in the evidence of Dr Sale. While the applicant said that on release from prison he had no intention of making contact with his wife, Mrs Flowers was obviously genuinely fearful that unless he was forced to leave Australia he may well seek her out and try once more to kill her or do her serious harm. The evidence, in the Tribunal's view, tended to establish a determined and violent disposition on the part of the applicant. It was plain from Mrs Flowers' evidence that he was usually particularly aggressive after consuming whisky. He was a person who held grudges. While the applicant had no doubt been sober in prison and there was no evidence that he was alcohol dependent, it was plain that he had consumed large amounts of liquor on a regular basis for many years and the Tribunal had little confidence that he would moderate his drinking when released. The Tribunal thought it significant that there was no obvious motive for the applicant deciding to kill his wife. His conduct suggested that he had become "self absorbed, emotive and vengeful". The Tribunal was quite unable to conclude that the risk of his attempting to inflict further harm upon Mrs Flowers when discharged from prison was slight or non-existent. On the contrary, the Tribunal thought that such a risk was real and substantial. A pre-parole report suggested the applicant was "in the high range in relation to high risk of re-offending". 16 The applicant had been unable to show any realistic support mechanism which would be available to him in the Australian community when discharged. His plans appeared vague. These factors tended to accentuate the possibility of the applicant resuming his over indulgence in alcohol and brooding upon his hatred or resentment of his wife. 17 The second primary consideration required an assessment of the expectations of the Australian community. The applicant's Australian visa was granted in 1984 and he has been living in Australia since 1977. However, he had spent the first half of his life in the United Kingdom. Although in poor health, he was a British citizen and would be able to access all appropriate services and facilities upon return to that country. There was no reason to think he will have any particular difficulty in re-establishing in Britain and wherever he went after prison he would have to make a fresh start. The Tribunal concluded that a fair-minded reasonable member of the Australian community would expect that the applicant's visa should be cancelled. 18 The Tribunal then went on to consider matters required by the Direction. He still denies the events and I have assessed his risk of re-offending as substantial. I agree with Mr Livermore's [counsel for the respondent] submission that there is no persuasive evidence of rehabilitation. This consideration does not support a favourable exercise of discretion. The applicant has committed a very serious crime. Upon his release from prison he will have to make a fresh start. His long term residency in Australia is a factor in his favour, but he has no support network among relatives or friends and having regard to his evidence it is unlikely that such a network will be developed. He may have relatives in the UK who would provide some assistance, but there is no guarantee of this. The determinative factor in my determining not to exercise my discretion to save his visa from cancellation is my perception of his substantial risk of re-offending if he remains in Australia and decides to pursue his wife. Removal to Britain will effectively prevent any temptation to do so as she intends to continue residing in Australia. In my opinion the decision under review should be affirmed. I so order. 21 This ground was said to arise because, as expressed in its conclusion quoted above, the Tribunal had formed a "perception" without logically reasoning to it. The decision was arbitrary without a logical course of reasoning. 22 This argument is without foundation. Plainly in par 24 of its reasons the Tribunal was using "perception" in the sense of a conclusion or finding, not some idiosyncratic or capricious impression. It was entirely open to the Tribunal to conclude on the evidence, and particularly that relating to the offence itself, that the applicant was a man who was, in the language of the Tribunal, "self-absorbed, emotive and vengeful". There was every reason to think that if released and at large in Australia he might continue to pursue Mrs Flowers. This was a case where even if the risk of re-offending could be assessed as slight, the possible outcome if the risk eventuated would be catastrophic, involving the death of or serious injury to a particular person. 24 This was not a relevant consideration in the Peko-Wallsend sense, that is to say it was not a consideration the Tribunal was bound to take into account, having regard to the text of the Migration Act or by implication from its subject-matter, scope and purpose: Minister for Aboriginal Affairs v Peko-Wallsend Limited [1986] HCA 40 ; (1986) 162 CLR 24 at 39-41. At best it was evidence. Even if it had been ignored there would have been no legal error by the Tribunal, still less jurisdictional error. 25 But in any event there is no reason to conclude that the Tribunal did not pay regard to Dr Sale's report. Moreover, the character and medical problems detailed by Dr Sale are by no means confined to the lymphoma question. It is a considerable distortion to impute to Dr Sale the view that (i) all the applicant's criminal behaviour was due to his fear of lymphoma, (ii) it is now established he does not have lymphoma, (iii) ergo there is now no risk of further criminal behaviour, and in particular, towards his wife.

appeal from administrative appeals tribunal applicant convicted of attempted murder visa cancelled whether the tribunal's "perception" was unreasonable and constituted jurisdictional error on grounds of "character test" whether the tribunal's failure to take account of the applicant's improved mental condition was a factor that the tribunal was bound to consider whether findings open to tribunal "unreasonableness", "relevant consideration" migration words and phrases

His claim is based upon breach of contract. He also seeks relief against Anthony Brady who is, and was at all material times, the moving force behind the companies in that group. 2 In substance Mr Quinlan claims that in or about February 1998 he entered into a partnership agreement with the then members of the Brady Group, Mr Brady and Bernard John O'Sullivan who was also in the construction industry. He alleges that the partnership agreement entitled him to share in the profits made by members of the Brady Group on existing and future property developments and construction work. 3 The respondents say that there was no partnership agreement of the kind alleged, and deny that Mr Quinlan is entitled to any damages or other relief. In particular, the terms referred to at (a)---(f) were said to be oral. The Amended Statement of claim refers to a number of meetings at which the alleged agreement was said to have been made. Two of those meetings were critical. The first was alleged to have taken place at the Radisson Hotel in or around mid-January 1998 and the second at the Hudson apartments in La Trobe Street, on or about 2 February 1998. The Amended Statement of Claim further alleges that on or about 5 February 1998 Mr O'Sullivan, on both his own and Mr Quinlan's behalf, and Mr Brady finalised the percentage of profit share that Mr Quinlan and Mr O'Sullivan would be paid from the Empire apartments project and the building contract at Fairfield Views (that is, the term referred to at (d)). 6 The remaining terms were said to be implied. The Amended Statement of Claim alleged that the terms referred to at (g) and (i) were to be implied from the need to give business efficacy to the partnership agreement, and that the term referred to at (h) was to be implied by law. It is therefore necessary to set out in some detail the evidence given by each of the three key witnesses, Messrs Quinlan and O'Sullivan for the applicant and Mr Brady for the respondents. 8 Mr Quinlan's evidence-in-chief was set out in two affidavits sworn on 5 December 2005 and 27 February 2007 respectively. Mr O'Sullivan's evidence-in-chief was also set out in two affidavits. These were sworn on 23 December 2005 and 27 February 2007 respectively. Mr Brady's evidence-in-chief was set out in an affidavit sworn on 17 March 2006. At that time he had been working as a site manager for Civil and Civic Pty Ltd in relation to an extension and refurbishment of the Knox Shopping Centre. Mr Brady was, at that stage, one of the bricklaying contractors on that project. 11 Mr Quinlan stated that he first met Mr O'Sullivan in connection with the same Knox Shopping Centre project. He said that he had employed Mr O'Sullivan on a recommendation, and that they had worked together for about three years in connection with that project. Afterwards, the two continued to stay in contact. 12 After spending some time working in Canberra, Mr Quinlan returned to Melbourne in 1994 and joined Concrete Constructions Group Limited ("Concrete Constructions"). He worked on a number of projects as a project manager and in 1997 he became the company's construction manager in relation to the Commonwealth Law Courts project. He said that his salary as construction manager was $186,190 per annum plus allowances, the provision of a company car, and bonuses. Based on his previous bonuses of up to $30,000 per annum, he estimated that his total gross package for the year ending 30 June 1998 would have been in excess of $245,000. 13 In 1997 Mr Quinlan recruited Mr O'Sullivan to work as a project manager on the Commonwealth Law Courts project. In that role Mr O'Sullivan was required to report to Mr Quinlan. 14 Mr Quinlan said that in or around November 1997 he had a number of conversations with Mr O'Sullivan regarding the possibility of establishing an essential services management company. He said that those discussions led to a number of meetings between Mr O'Sullivan, Robert Murdoch (who was at that time working for the Brady Group as a salesman) and later Mr Brady himself. 15 Mr Quinlan said that the first meeting that he could recall was between himself, Mr O'Sullivan and Mr Murdoch at Mr Murdoch's office on the ground floor of the Empire building in La Trobe Street. Although Mr Quinlan could not recall the precise words spoken during that meeting he said that Mr Murdoch agreed to set up a meeting with Mr Brady so that the essential services management company proposal could be put to him. 16 Mr Quinlan said that a few days, or perhaps a week, after that meeting, he attended another meeting at the Empire building this time with Messrs O'Sullivan, Murdoch, and Brady. Again, Mr Quinlan could not remember the precise words of the conversations that took place during that meeting. However, he said that he and Mr O'Sullivan gave a description of the essential services business. Mr Brady said very little. However, he did say that he wanted to meet with Mr O'Sullivan and Mr Quinlan again. 17 Also in or about November and December 1997, Mr Quinlan said that he had a number of conversations with Mr O'Sullivan, during which Mr O'Sullivan told him that Mr Brady was endeavouring to persuade Mr O'Sullivan to go and work with him. Mr O'Sullivan had told Mr Brady that he would not accept a position with Mr Brady unless Mr Quinlan came as well. Mr O'Sullivan had told Mr Quinlan that Mr Brady was keen to have both of them involved. 18 Mr Quinlan said, however, that although he and Mr O'Sullivan had been discussing the possibility of Mr Quinlan working on the Brady Group's projects, he was not involved in any discussion with Mr Brady about that possibility until a meeting was held at the Radisson Hotel in January 1998. They had some dealings over the years and managed to keep in touch. 20 In about February or March 1997 Mr O'Sullivan was living in Brisbane. He came to Melbourne to be interviewed in relation to a position with Concrete Constructions. He said that while he was in Melbourne, Mr Brady telephoned him and suggested that before he committed to Concrete Constructions he should speak to Mr Brady. 21 Mr O'Sullivan said that he went to see Mr Brady a day or two later. Mr Brady told him that he would be looking for a general manager. Mr O'Sullivan said that he was unsure at that stage whether he was going to move to Melbourne full time and, accordingly, told Mr Brady that it would not be fair for him to take on a role with the Brady Group. 22 Mr O'Sullivan commenced work with Concrete Constructions in about March or April 1997. He worked for that company for a period of about 11 months. 23 Mr O'Sullivan said that he also knew Mr Quinlan from the Knox City Shopping Centre project. It had been Mr Quinlan who had invited him to work for Concrete Constructions on the Commonwealth Law Courts project. As project manager Mr Quinlan was Mr O'Sullivan's immediate supervisor on that project. 24 Mr O'Sullivan said that he tendered his resignation at about the end of November 1997 because of his frustration with the way the project was progressing. As he was required to give three months notice that meant that he would finish work at about the end of February 1998. 25 Mr O'Sullivan said that in or about November 1997 he had a number of conversations with Mr Quinlan regarding the possibility of them establishing a new company together. Mr Quinlan had outlined his idea of creating a facility management company in response to new legislation that had just come into force. Mr O'Sullivan had in turn indicated that he would be interested in looking into such a company. However, he had added that he would need to understand more about the proposal before he committed. 26 While he was working for Concrete Constructions, Mr O'Sullivan said that he also kept in contact with Mr Brady. During one of the conversations he had with Mr Quinlan in about November or December 1997, Mr O'Sullivan suggested that they talk to Mr Brady about the proposal. Mr O'Sullivan considered that Mr Brady might be interested in using one of his projects as a prototype. 27 Mr Quinlan had suggested that Mr O'Sullivan set up a meeting with Mr Brady. Shortly thereafter Mr O'Sullivan telephoned Mr Brady and conveyed their idea. In reply Mr Brady said words to the effect of "We'll talk about it next time I see you. Mr Brady suggested that Mr O'Sullivan talk to Mr Murdoch, who was looking after the body corporate arrangements. Mr O'Sullivan said that as a result he telephoned Mr Murdoch and organised for himself and Mr Quinlan to meet with him. Messrs Quinlan, O'Sullivan and Murdoch then had a number of conversations and meetings about the proposal. Some of their discussions related to a company called Inscor that Mr Murdoch said was going to be used as the body corporate manager for all of the Brady Group developments. 29 Mr O'Sullivan said that he met with Messrs Quinlan, Brady and Murdoch on or about 17 December 1997, and that they discussed some of the details relating to the facility management company proposal. 30 A few days later Mr O'Sullivan flew to Brisbane for Christmas. Before he did so, however, he said that he had a discussion with Mr Brady about his need to find alternative living arrangements. In that discussion Mr Brady suggested that he move into one of the vacant apartments in the Hudson building. Mr O'Sullivan said that he took up that offer on his return to Melbourne. As a consequence he said he saw Messrs Brady and Murdoch more frequently than he had before. 31 Mr O'Sullivan also said that in January 1998 he attended a number of "meetings" with Messrs Quinlan, Murdoch and, on occasion, Brady. However, he said that the meetings were often merely informal get togethers. At one of the meetings Mr Murdoch raised the possibility of Mr Quinlan and Mr O'Sullivan joining himself and Mr Brady (who was not present) as partners in a development and building company. ", and Mr Murdoch responded "Yes". 33 Soon after this meeting, Mr O'Sullivan said he telephoned Mr Brady about Mr Murdoch's suggestion regarding a "joint venture development company". Mr O'Sullivan said that he expressed interest in such a venture "but not as an employee". They agreed that they should discuss the matter further, and Mr O'Sullivan said he would drop down to talk to Mr Brady about it. 34 Mr O'Sullivan said that shortly after that conversation he called in to see Mr Brady at the old Empire building. I'm impressed at the way he has put the law courts deal together. Do you want Robert to come along? Why don't you, me and Chris get together? It should be noted, however, that in the latter part of 1997 there were really only two companies through which he conducted his affairs. These were A & J Brady, and Brady Constructions Pty Ltd ("Brady Constructions"). 36 Mr Brady said that he had first met Mr O'Sullivan in or around 1990 in relation to the Knox Shopping Centre project. 37 In early 1997, Mr Brady said that he met with Mr O'Sullivan at his Melbourne office, and asked him if he would be interested in working as the construction manager with Brady Constructions. Mr O'Sullivan replied that he would think about the idea, but subsequently took up employment with Concrete Constructions. 38 In late 1997, however, Mr Brady said that Mr O'Sullivan visited him again at his Melbourne office and asked whether his previous offer of employment was still on the table. Mr Brady replied with words to the effect of, "Yes, probably". Mr Brady said that Mr O'Sullivan had said he was "fed up" with Concrete Constructions. However, Mr Brady said that he found out some 12 months after Mr O'Sullivan had begun working for him that by late 1997 Mr O'Sullivan had been given three months' notice by Concrete Constructions. 39 Mr Brady said that he and Mr O'Sullivan then met "four or five times" between December 1997 and February 1998. The main topic of discussion was Mr O'Sullivan's possible move to Brady Constructions as its construction or operations manager. During the course of these meetings, however, Mr O'Sullivan also raised the possibility of them "working as a team" along with Mr Quinlan. In Mr O'Sullivan's opinion, Mr Brady could benefit from Mr Quinlan's contacts and experience. Mr Brady said that he knew of Mr Quinlan, had met him once, and would think about involving him. 40 Mr Brady also said that in late 1997, Mr Murdoch mentioned to him the idea of setting up a services company, which had arisen out of discussions Mr Murdoch had had with Messrs Quinlan and O'Sullivan. Mr Brady recalled attending a meeting with Messrs Murdoch, Quinlan and O'Sullivan where they discussed the possibility of establishing such a company. 42 At around the same time, Mr Brady said that he also had discussions with Mr Quinlan about joining Brady Constructions as a project manager. He said that he explained to Mr Quinlan that Brady Constructions was not doing as well as it should because it could not get construction contracts. Mr Brady said he told Mr Quinlan that he would want him to focus on getting new work and doing it well. He said that Mr Quinlan replied with words to the effect of "No worries". Mr Quinlan said that he had plenty of contacts and would get them onto the tender lists. 43 Mr Brady was cross-examined by Mr Squirrell, counsel for Mr Quinlan, about the position of A & J Brady and Brady Constructions in 1997, but denied that the companies had been "strapped for cash". Mr Brady also said that Mr O'Sullivan had been well aware of the business structure of the Brady companies. You call it Brady Constructions?---Yes. The same on this project. And many other projects. He was quite well aware who A and J Brady were. Top of the tree?---Yes. It still is today. I say it for the reason we are trying to establish ourself in the Melbourne market as a builder. We advertise Brady Constructions heavily, in banners, and whatever possible. It was the prime motive. "There are problems at Fairfield Views" (which Mr Quinlan said he knew to be a construction contract for a third party). (I should interpolate that both Mr O'Sullivan and Mr Brady say that there was only ever one meeting at the Radisson, Mr O'Sullivan said the meeting took place on Friday 30 January 1998, while Mr Brady said it took place in mid-January. ) Mr Quinlan said that shortly before this second meeting Mr O'Sullivan told him that its purpose was to discuss with Mr Brady the possibility of them joining Mr Brady, and if so on what terms. 46 Mr Quinlan said that he went to this meeting at the Radisson with no preconceived idea. However, he maintained that he was adamant that he would not join Mr Brady as simply an employee. He said he did not want to end up working for someone else again. Accordingly, at or near the start of the meeting, he said words to the effect of: "If we join forces with you, what's the basis of the deal?". Mr Brady replied "I am proposing a three way split". Mr Quinlan said that he was interested in what he regarded as a partnership proposal and sought further information. But for future projects I am interested in us combining our resources for all our construction and development projects. The most I could probably raise to put in would be $500,000. It's probably not required anyway. We've got sufficient cash flow out of Empire and Fairfield Views. Your motivation is high and that is all that is required. I have been an employee, been there, done that. Not again. I want to see the rewards for my efforts. They are now retired. What we did with Parsifal is equal shareholding and we left the profits in the company so that the business would grow. Tony arrived, we went and sat at a table in the restaurant. A short chit chat we had at the start. But I knew I was there with respect to joining Tony. So I put to Tony, well, look, if we join forces, then on what terms? What are the terms? And Tony then was reasonably quick to say, well, on the basis of a three way split. So at the time, I thought, right, I would seek more information in a bit more idle chatter, I suppose. Tony said that the Hudson had finish[ed] and that, for future projects, he was very interested in us combining our resources for future building and development projects. Tony went on to say, well, you understand that, you know, I would be looking for capital from both myself and Bernie. And I said, well, I have probably got limited resources. As much as I could raise would be about 500,000. Bernie said he was in a similar situation. Tony said, well, I understand that. I have got the difficulties with Fairfield. If we can get that back on track, we will have sufficient cash flow just out of Fairfield and Empire to move forward in our business venture. And he said, look, as long as you are motivated and we get on with it, and we get Fairfield and Empire back on track, then we will, you know, we will sort of make something of it. I said, I have been an employee. Been there, done that, not doing it again. So Tony said, well, I see it a bit like what I did with my partners in Parcival - which Tony had with George McDonald and Heinz Bermeister, who had since retired - where Tony said that they had equal shareholding, and they were going to leave the money in the business so it would grow. Well, I think, Bernie then arced up and said, well, we have got to have something to live on, we need to draw something. And Tony went on to sort of say, yes, he understood that was the case. And then I said, well, what I will do is, I will put something down in writing and how this structure might work. I understood I was there on the basis of what - how I had joined the Brady Group. I raised it with Tony and said, look, if we join forces, what is the basis of the deal. And as I said before - and I am just going through what is stated in my affidavit, and do you won't me to continue, I am happy to continue? So then Tony said, well, look I am looking at proposing a three way split. So, there was a bit of a pause and then - Tony then went on to, sort of, say that Hudson is finished for future projects and I understand that we would like to join - join forces in building and development of future projects. Tony went on to, sort of, say that we would need to contribute capital if required. I then went on to say, well, the most I could raise was 500,000. Bernie, sort of, said along the lines that he was in the same boat. Tony said well, I understand that, but we will probably have sufficient cash flow out of Fairfield and Empire and as long as, you know, you guys are motivated, then I would be happy with that. And I said, well, I am prepared to join as a partner. I am very interested in that but I am not going to be employed. I have been there; done that - been there since I had graduated. So, how that was going to work, Tony, sort of, then floated the - his arrangement that he had with his partners in Parcival with George McDonald and Heinz Bermeister which basically was that they be equal shareholders. They left the money in and let the business grow. So the profits they made were - went into the next project. So, look, I was okay with that. Bernie, sort of, said, well, we have go[t] to have something to live on and Tony said, well, look, I understand that. And then I put to Tony, well, look, I will try to put something down on paper and obviously we will meet again. You two have the sort of expertise I'm looking for. Would you be interested in some sort of partnership arrangement? I would be keen to come back to Melbourne for a business partnership of that nature. Well, let's do it. Obviously, the partnership would not include the bricklaying company or any of my factory stuff. I do a lot of that separate anyway. I also do a bit with a couple of retired brickie mates that I have known for years. That's basically a superfund for me. We could set up a new entity with three directors and have commercial arrangements between any other entities. A & J Bricklaying would be like a nominated subcontractor. Robert has been trying to do something for a while, but he is not the sort to stick around. He's got the opportunity to set himself up with the sales side of things. I believe his wife may even have a real estate agent's licence. He has the opportunity to make a lot of money from commissions, particularly overseas if he sets his mind to it. So we'll see how it goes. Tony would also need to be reimbursed for the cost of capital and other items like the Brady office. Jenny and I draw a modest wage each week and everything basically remains in the business. Once we get things rolling, you'll be surprised at how fast assets can be accumulated and you can then borrow against that. Those factories in Braeside are what got me started. Hudson has got to be finalised, but Empire needs to get happening. " (Mathieson was Victoria branch manager of Concrete Constructions). He has got distracted with a saleswoman with Hocking Stuart who in turn has done her best to break up his marriage. His work has suffered as a result. Mr O'Sullivan rejected that suggestion. He stated that the Brady Group was in great difficulty at the time and needed some assistance. Right?---Mm. So, you are saying to this Court that, by reason of the statement that Brady says, I've got the financial backing to do some reasonably sized projects together, was Brady saying, I will put up all the capital and provide all the security for all future developments?---That and subsequent discussions, yes. Now, I'm saying to you that's simply false, Mr O'Sullivan?---And I'm saying that that's what happened. What do you say to that?---I'm saying that Brady Constructions didn't come into that conversation. He also acknowledged that the mechanism for determining whether money should be pulled out of the new entity was not discussed. 54 Mr O'Sullivan said that it was his belief that at the conclusion of the dinner meeting at the Radisson Hotel there was a "firm and binding agreement". Three of us go forward in a partnership and we would do building development and properties. Other than the fact that Tony was going to put the collateral up and we were going to put the expertise up. That, in broad terms, there was a three-way partnership, correct?---Yes. I would have thought it was an agreement. You, yourself, didn't distinguish between those two states of affairs?---No, I just took it as a gentleman's agreement between the three of us to go forward. Can we just go then to the - - -?---I was thinking more of a - of a -the set-up rather than a legal document, per se. He said that it took place over dinner in or about mid-January 1998. According to him, however, the main topic of discussion was the business of Brady Constructions. Mr Brady said that by that stage he was interested in getting Mr O'Sullivan and Mr Quinlan to work for Brady Constructions, and, as an incentive, he had decided to offer them a third of the profits from that company's future construction contracts. According to Mr Brady, his rationale was that if they could procure building contracts and make Brady Constructions profitable, he would be happy for them to receive a share of those profits. That was because at that stage Brady Constructions was not making any profit. I said to O'Sullivan and Quinlan words to the effect of: " If you come to work for me and you can each have a one third share of the profits from the future building contracts of Brady Constructions. You won't get a share of the profits from the current jobs for Papadoupoulos and the Empire, because you did not get them for Brady Constructions. You can have a share of the new construction work you get. How does that sound? " Both O'Sullivan and Quinlan said words to the effect that they were interested in this proposal, and one of them said something like " Is there anything else? ". I said words to the following effect: "I am going to keep control, and I will stay the boss. I want you to grow the Brady Constructions business and get it new contracts. If you do, I am happy for you to have a share of the profits from the new contracts. You can be shareholders, and directors as well. Brady Constructions will still do work for A&J Brady at cost, and its got to employ my bricklaying business on the usual basis in all its projects. They raised no objection to my proposal. I am not sure which of them mentioned it, but it may have been Quinlan. I suggest we be paid a monthly advance. How much do you need? ". ". At the time of these discussions, I was not drawing, and never had drawn, a wage or consultancy fee from Brady Constructions, and I never did so thereafter. Mr Brady said that he indicated that he thought that was fair, and that he would give them a small share of the profits in those projects as well. 60 Mr Brady said that later in January or early February 1998 Messrs Quinlan and O'Sullivan signalled that they would also "like a piece of the action in any future developments". 61 Mr Brady stated that this subject came up again at a later meeting. He said that he could not recall precisely how it arose, but that he then asked Messrs Quinlan and O'Sullivan what money they would be prepared to put up. They each indicated that they could raise about $500,000. Mr Brady said that he responded with words to the effect of "Then we'll see. It's a big decision for me I want to think about it". He said that he was sceptical about them ever making a cash contribution, but was prepared to entertain the issue if it meant he got them "on board". He said that he was prepared to consider the question of a profit share in future developments provided that Messrs Quinlan and O'Sullivan each "put themselves on the line" in terms of guarantees and securities, and that they each contributed real money to any particular development. 62 In cross-examination Mr Brady stated that the meeting at the Radisson was the first meeting between himself and Mr Quinlan at which they discussed Mr Quinlan joining the Brady Group. He could not, however, recall either when or where the issue of Messrs Quinlan and O'Sullivan each putting up $500,000 had been raised. And I said yes, I didn't see why not, as long as I put some money in under guarantees and whatever it takes. And so I think again, like the 10,000, I said, in parrot fashion, well, I could afford to raise 500,000, and Quinlan said, I could do the same. So I thought, well, okay, that is fine, I will listen to them. This $500,000 related to other future developments?---Absolutely not. He said that he had been the one to offer a one third partnership in Brady Constructions, and Mr Quinlan had assured him that he had "all the contacts necessary to get contracts". Mr Brady said that Mr O'Sullivan and other developers had previously expressed a positive opinion of Mr Quinlan to him. Brady Constructions was at that stage unable to "break into the big league", and Mr Quinlan was said to be a person who could "bring the company forward". He said that he had offered Messrs O'Sullivan and Quinlan each a "one third partnership" in Brady Constructions in response to their assurances that they could "get the company going". 64 Mr Brady said that he had no doubt at all that he had been talking about Brady Constructions, and not any wider developments, because at that stage there were no such wider developments. He consistently denied any suggestion that he had in fact been talking about the Brady Group as a whole, and said that Messrs Quinlan and O'Sullivan were mistaken about that being the case. 65 He maintained that any references to the "Brady Group" in his witness statement, prepared for the Supreme Court proceedings which had been instituted by Mr O'Sullivan, were merely drafting errors. He said that throughout the Radisson meeting he had used the term "Brady Constructions", and not the "Brady Group". 66 Mr Brady did, however, acknowledge that there may have been discussion about "a piece of the action" at the meeting at the Radisson. He further acknowledged that no notes were taken at, nor was any form of "agenda" prepared for, that meeting. Mr Quinlan said that in preparation for that meeting he drew up two documents. The first was a note of his thoughts as to how to administer any three-way split arrangement. Mr Quinlan said that he had started to prepare that diagram prior to Mr O'Sullivan's call, and completed it after that conversation ("the first diagram"). He said that he then prepared a further diagram ("the second diagram"). After examining the diagrams, both of which were exhibited to his affidavit sworn on 5 December 2005, Mr Quinlan said that he was assisted in recalling that the date on which he prepared those documents was Monday, 2 February 1998. 68 Mr Quinlan explained that the first diagram included a draft flowchart of how he thought that the arrangement between himself, Mr O'Sullivan and Mr Brady would work. He said that he did not give a copy of it to Mr Brady at any stage, and only gave a copy of it to Mr O'Sullivan several years later. 69 The second diagram was also a draft flowchart. Mr Quinlan said it was prepared with the intention of discussing it with Messrs O'Sullivan and Brady at the meeting that was to take place later that afternoon. 70 Mr Quinlan said that he met with Mr O'Sullivan and Mr Brady around a table in apartment two at the Hudson Building. He said that he put the second diagram on the table, and although he could not recall the exact words which were spoken during the meeting, the substance of the discussion was as follows. 71 First, he explained the second diagram to Messrs O'Sullivan and Brady. The new entity will do all of the future projects. " At that point in the explanation I pointed to the top of the diagram where the word 'future' appears and to the projects referred to there as being part of the 'future', namely Empire, Fairfield Views, Port Melbourne, Brunswick Street and 'future opportunities', the last being a reference to opportunities not yet identified. That is what is referred to by the lines going between 'new entity' in the centre of the diagram and 'Tony Brady' at the left hand side of the diagram, with the words 'loan' and 'interest'. " (At this point in the explanation I pointed to the right hand side of the [second diagram] and a circle with the words 'management TB, CQ & BOS' inside the circle). "Tony, Bernie and myself would be paid a retainer or fees in return for providing management services. " I cannot recall if it was Bernie or myself who put forward the amount of $10,000 per month for the retainer, however in [the first diagram] I had written "Need to draw $10k/month for each director" so I may have suggested this amount or this amount may have been put forward [at the Radisson meeting]. I said words to the effect that: "This circle refers to industrial properties that Tony owns with his other friends in the bricklaying industry (Parsifal). If there was any need for work to be performed in relation to those properties, and the new entity was going to perform that work, there would be a service agreement and fees paid in relation to that work. I said words to the effect that: "The Brady Group already has control of the section at the bottom of the page called 'Past'. " (That section included the Hudson project and 'other projects' which was a reference to projects which were already completed and which were therefore not going to be part of the arrangement between Tony, Bernie and I). "The Brady Group would then rent an office to the new entity and would be paid rent. I said words to the effect that: "Brady Bricklaying is a separate entity wholly owned by the Brady Group, and would therefore not be part of any split. If we did any work for Brady Bricklaying we would have a service agreement with it and we would be paid service fees. He said that Mr Brady said words to the effect that they should keep the Brady name because it was known in the construction industry, and that the new entity should therefore be called Brady something. Mr Quinlan said he and Mr O'Sullivan said words to the effect that they were happy with that, and at that point in the meeting he inserted the word "Brady" above the words "New Entity" in the second diagram. 73 Mr Quinlan said that after he had finished explaining the second diagram they had a discussion about the part of the diagram under the word 'future', in which a number of projects are listed. I already have those projects. It's too difficult to transfer them into the new entity anyway. There would be an issue in relation to stamp duty if Empire was going to be transferred into the new entity. Fairfield Views is also not a future project, it's already started. What we could do is agree on a smaller percentage (to you two) for Empire and Fairfield Views. In particular, he said that a heavy line between "Fairfield Views" and "Port Melbourne" was added which he said reflected "drawing a line in the sand" between those projects and those which they agreed formed part of the future (that is, part of the three-way partnership). 75 Mr Quinlan stated that they also had discussions about Mr Murdoch's position. Those discussions focused on dealing with Mr Murdoch on a commission basis rather than having him involved as a partner. 76 Mr Quinlan said that as he explained each of his proposals Mr Brady and Mr O'Sullivan said words to the effect that they agreed with what he was suggesting. Mr Quinlan responded that he could start almost as soon as the percentages on Empire and Fairfield Views were resolved. He said he then looked to Mr O'Sullivan and said words to the effect of "I'm happy for you to resolve with Tony the percentage on Empire and Fairfield Views. " Mr O'Sullivan responded with "Ok" or words to that effect. 78 Mr Quinlan said that he severed his ties with Concrete Constructions on or about 3 or 4 February 1998. 79 In cross-examination Mr Quinlan stated that after the meeting a photocopy was made of the second diagram. He said that Mr Brady had wanted a copy, so he photocopied it and gave him a copy directly after the meeting. He said that they agreed to meet in his apartment at the Hudson building at about 3.30pm. Mr O'Sullivan told Mr Brady that he would let Mr Quinlan know and subsequently did so. 81 Mr O'Sullivan said that, as arranged, they met that afternoon in his apartment. He said that they sat around a small dining table and had a conversation which lasted for about two hours. That conversation was to the following effect. I may be able to convince him to pay me a package to walk. I would be prepared to consider a percentage to give you guys some incentive since you will have to work on those two projects, but you wouldn't be getting a third of them. Hudson is almost finished so it doesn't come into the calculation at all. A & J Brady Bricklaying is separate and wouldn't come into the partnership. They could be our nominated sub-contractor. Any other entities could have separate agreements in place on a user pays basis, eg. rent for the office, sharing of overheads, et cetera. Probably the maximum that I would be able to borrow would be about $500,000 against my house. At least I know that you will be committed to the max, then we are all committed to the max. This could be done by a management agreement between each of us and the new entity. I don't know about Chris, but I would probably need about $10,000 a month. That's considerably less than I'm getting at the moment, but that's what I could survive on. The profit share would be adjusted accordingly for both. I don't believe he needs to know what the arrangement is, but I believe we should all share in the building management company and, given that Robert has the contact with the body corporate managers and he did do his share of work on this, we should include him in that. Mr Brady indicated that he would think about it and get back to Mr O'Sullivan. Mr O'Sullivan said he then shook hands with Mr Brady and Mr Quinlan. 83 In cross-examination Mr O'Sullivan was asked about Mr Brady's request for a financial commitment. Mr O'Sullivan acknowledged that it was a departure from the "agreement" which he said had been made at the Radisson Hotel, however, he said that he did not see it as an issue. He said that Mr Brady's idea had been to ensure that he and Mr Quinlan were fully committed, so that they all had something to work towards. 84 Mr O'Sullivan admitted that at the time he had not thought through how he would raise the $500,000 if required. He acknowledged that he would have to raise the money either through a second mortgage on his marital home (which was also in his wife's name) or through selling that house. He said that at a later meeting, he asked Messrs Quinlan and O'Sullivan what money they were prepared to put up if they wanted a "piece of the action". When they each indicated about $500,000 he said he would think about it, as it was "a big decision" for him. He said that at the time he was sceptical about either Mr Quinlan or Mr O'Sullivan making a cash contribution for profit share, although he was prepared to entertain the idea if it got them "on board". 87 Mr Brady agreed that a meeting was held between himself, Mr Quinlan and Mr O'Sullivan at the Hudson building. He said that it took place in late January or early February 1998. Mr Brady also acknowledged that Mr Quinlan produced a diagram at that meeting. However, he said that he did not fully understand it and could not properly see it. His recollection was that the document produced by Mr Quinlan at the meeting was simpler than the second diagram. " As a team, we could put together developments, and, if they are successful, then it's not unreasonable for us to share in the profits". Your share would be in proportion to the money you put up for it, and the risks you take". He said that Mr Quinlan had been "writing...and scribbling away" on a piece of paper during the meeting, but Mr Brady had not seen the second diagram until he was shown it in the Supreme Court proceedings. While he said he did not remember the actual contents of the diagram, Mr Brady did confirm that the second diagram resembled part of the diagram that Mr Quinlan was writing on during the meeting. 94 Mr Brady again insisted that he had not referred to one or both of his companies as "the Brady Group" at the Hudson apartment meeting. He maintained it was clear at all times that he was offering Mr O'Sullivan and Mr Quinlan a share in Brady Constructions, and not the Brady Group. 95 Mr Brady agreed that at the meeting at the Hudson there was a discussion about setting up a new entity, with three directors, to run various companies or various parts of the Brady business empire. He could not recall however, whether there was any discussion about whether the new entity should have the name "Brady". Mr Brady said that he did not think that he had been the one to suggest using the "Brady" name. Mr O'Sullivan told him that he had just finished a discussion with Mr Brady about the percentage of profits to be paid to them from the Fairfield Views and Empire projects. Tony's first offer was 1%. Are you happy with that? The main thing is it's a third, a third, a third for the future. He said that Mr Quinlan had suggested that they try for somewhere between five and ten percent each for the profits in Empire and Fairfield Views. What were you thinking? What if we were to say let's call it 3% each? So you would be happy with 3% each? He has basically left it up to me to finalise this detail with you. That's good. As Mr Brady was walking back to the Hudson building Mr O'Sullivan told him that he would give Mr Quinlan a call and let him know. He said he would also see when he could start. Mr Brady indicated that they could get his accountant, Graham Goldenberg "to set this up for us". 102 Mr O'Sullivan stated that immediately after this conversation he rang Mr Quinlan and told him about the agreement he had reached with Mr Brady regarding the percentage of profits in Fairfield Views and Empire. Mr Quinlan indicated that he was happy with what had been agreed. I'm sure it will be OK". He had also indicated that he was going to try to get the sack so that he did not have to work out the notice period. 105 According to Mr Brady, Mr Quinlan commenced working with Brady Constructions shortly after that discussion took place in early February 1998. Bernie and I would each receive 3% of the profits earned by the Brady Group from the Fairfield Views project and Empire apartments project. Tony, Bernie and I would each be entitled to a one third share of the profits from future projects. Each of Tony, Bernie and I would work exclusively as partners. I would hold the position of development manager, Bernie that of operations manager and Tony that of sales and administration manager. Tony, Bernie and I would each draw a monthly advance of $10,000 to be deducted from the profit share when profit was realised. Bernie and I would provide an amount of $500,000 as a loan to the Brady Group if and when requested by the Brady Group. Tony, Bernie and I would provide guarantees and other security to secure finance for future Brady Group developments if and when requested by the [Brady] Group. He also agreed that he had not at any stage lodged a tax return as a partner. Tony had said, well, I've already got A&J Brady already own Empire. Brady Constructions already exists, it's got the licenses forever, whatever so we were basically the partnership. We were sitting above these corporate entities. He maintained that the issue had been discussed at the Radisson Hotel meeting despite the fact that there was no reference to it in either the first or second diagram. However, in later cross-examination he agreed that there had been no agreement on that issue at the Radisson Hotel meeting. In addition, he stated that the issue was never talked about at the meeting at the Hudson apartments. You accept that at the Radisson dinner no agreement about $500,000. You accept that?---At that point we would have another meeting. I wasn't sort of saying, well we've agreed this, this and this, until we sorted the whole thing in a whole. You accept that at the conclusion of the Radisson meeting there was no agreement about you contributing $500,000 as and when called on?---Yes. Where did the term that you would contribute $500,000 as and when called upon, when was that agreed?---I cannot recall whether it was between those meetings or when it was agreed. You didn't have an agreement with Mr Brady whereby you, that Mr Brady said: I can call on you to contribute $500,000 as and when I wish, to the Brady Group. Tell his Honour how you say that was agreed?---I can't recall. I wish - if I could recall I - I would certainly be telling your Honour but I cannot recall. I - I can't recall. Was it discussed at the 2 February meeting that you would provide security for the new venture?---I can't recall what it would be but it would be probable that that would be the case. Mr Quinlan also acknowledged that his half interest in the principal joint asset, being the matrimonial home, was transferred to his wife in March or April 1998. He said he did this, however, on the advice of his accountant, because he was going into partnership with Mr Brady and Mr O'Sullivan and he wanted to make himself "litigation proof". 113 It is worth noting that the transfer of Mr Quinlan's half interest in the matrimonial home to his wife actually occurred on 22 March 1999. 114 Mr Quinlan agreed that his ability to contribute any money to the "partnership" therefore depended on his wife providing her consent. Sorry. What about the loan and - - -?---The $500,000 contribution. It's a curious thing to imply, that you would each provide guarantees and security, but you accept, don't you, that to the extent that each of you would provide guarantees and securities yours would be - I don't say this pejoratively - worthless because you had no assets?---True. It was a worthless term?---At 2 February it was, but as the business grew there was a substantial amount of money that I'd still be risking. It's still in the business. As the venture grew, the greater the risk became, and hence, you know, you're providing guarantees and security in that respect. We're talking millions and millions, aren't we?---We are talking millions and millions today if we paint the scenario back in February 1998. For the future developments we're talking millions of dollars?---That's right. Where is that pleaded?---It's not. That was never the agreement?---Well, I believe it was the agreement. The lawyers have taken your instruction and drawn it and amended it and have never thought fit to plead that there was an obligation on the part of Mr Brady to do anything other than provide security along with you and Mr O'Sullivan. No-one has ever pleaded that Mr Brady was required to lend money to this venture. Do you agree?---Well, it's not pleaded. It wouldn't work. It definitely needed the capital contribution. I can't recall. I can only recall what I recall. What degree of interest, what percentage of interest? Payable when?---I can't remember, I can't recall that. It may have been discussed but you can't recall what was said in that discussion?---Well, it was discussed because as I said before, I've circled loan and then put capital injection, so we discussed - we discussed something with respect to that relationship. I don't know what the detail again of that was. It makes - it's logical that that would be the case. Yet there was no agreement whether the loan by the Brady interests to the venture would be ranking equally with the bank finance or behind the bank finance or whether it would be a debenture charge second ranking or a mortgage security. None of that discussion happened?---I don't - that discussion didn't happen. He said it was also not discussed in relation to the three percent of profits that they would each be taking from the Fairfield Views and Empire projects. There was an ongoing - we couldn't afford to do on the Empire because of funding and then Fairfield came along and we had no choice but to get involved in the development of that. What was your state of mind - your appreciation or your belief as to whether you had reached a concluded agreement about future share - piece of the action, if you like, in relation to future developments?---Well, O'Sullivan and Quinlan would want - said they would put a half million dollars in each for a share in a future development and I accept that, if it happened. If there was an agreement in relation - - -?---There was - half a million dollars worth of equity would buy them - buy half a million dollars worth of equity. A development project?---Well, we did - we came up with some future projects down the track with Graham Goldenberg. We analysed it in his office and we - I think from memory, I looked at it recently, actually. There was a $3.2 million required equity in three projects, Toorak Road, Wills Street and, I think, Morgan Place, and there was $3.2 million worth of equity required and half a million dollars would buy them 20 per cent in that - in those three projects. If you had then gone on to want to develop something else for 5 million or $10 million?---Well, that was a different scenario. There was three - there was three possible projects on the drawing board at that time and there was - we were roughly - figures, 3.2 would be required by the banks and their half a million dollars each would have bought them $20 per cent, or just under - just over 20 per cent. Definitely not. Mr Quinlan said that the purpose of the meeting was to discuss the most effective arrangement for the distribution of profits from the partnership. 124 Mr Goldenberg subsequently sent a fax addressed to Messrs Brady, Quinlan and O'Sullivan that was dated 5 June 1998. Profit share Fairfield Views development and Empire development. Units in this trust will be held equally by Tony, Chris and Bernie. At that time an initial draft agreement was circulated between the parties. It had been prepared by Scanlan Carroll solicitors apparently pursuant to Mr Brady's instructions and was titled "Partnership Agreement". 126 An amended version of the draft was issued several weeks later. 127 The most significant aspect of these two drafts is that they envisage Mr Quinlan and Mr O'Sullivan receiving 20 percent of the profits each, and the Brady Trust receiving 60 percent. 128 In cross-examination Mr Quinlan acknowledged that he had done nothing to protect his interests when he saw the Scanlan Carroll draft agreements. I was involved in all the projects. It - it - and we were getting somewhere with these negotiations and if I started legal proceedings on a third a third a third, I may as well throw all this in the rubbish bin. That letter, however, entered into negotiation with Mr Brady and suggested 25 percent on future projects, rather than the 20 percent proposed. And I discussed it with him and I said, "Well, is that negotiable"? I spoke to Mortimer about it, Tony's fairly strong-headed. I obviously thought, well, maybe 25 per cent might be an option. In hindsight, it probably wasn't the smartest thing to do. The critical evidence concerns the meetings at the Radisson Hotel and the Hudson apartments, and the subsequent discussion between Mr O'Sullivan and Mr Brady regarding the percentage of profits from Fairfield Views and Empire. He said, however, that Mr Brady refused the offer saying that it would not make a difference anyway. 134 In cross-examination Mr Quinlan stated that he had made this offer because Fairfield Views was under extreme pressure. I certainly needed to have my wife's consent to raise that money. You say that you told Mr Brady in about May 1998, you offered to put your $500,000 into the company?---Yes. So, did you ever offer it again, the 500,000?---Later on, Mortimer came to me when I sold my house and I started to put the money in as he asked for it. Did you ever offer to Mr Brady to put in the 500,000?---No, I don't - I don't think that I did other than discussions I had at the time when Mortimer came to see me. Mr O'Sullivan said that he considered that to have been part of the $500,000 he had agreed to contribute. However, he also acknowledged that a separate loan agreement had been drawn up and executed in relation to the $175,000. He said that by mid-1998 the financial position of both A & J Brady and Brady Constructions was precarious. A & J Brady was struggling financially and it would have "benefited hugely" from the injection of capital funds of an amount like $1 million. 138 In cross-examination Mr Brady acknowledged that there had been "ongoing problems" in relation to the Fairfield Views project but denied that it was such a large problem that it "put a stop on everything". Thirteen and a half or thereabouts was borrowed from Macquarie. Correct?---About $13 million, yes. I had --- I had to sell my assets for 600,000 to prop that up as well. " Do you agree with that?---No, not true. Each of the key witnesses went into some detail about the events surrounding the termination of the business arrangement, although for reasons that will become apparent it is not necessary to set that evidence out at any great length. 140 However, the most notable aspect of those events is that, initially at least, Mr Brady offered to give Mr Quinlan two units at Morgan Place. Mr Quinlan said that this offer was made by Mr Brady "as a settlement" of the partnership agreement, and as a "pay out". Mr Brady, however, said that he offered the units to Mr Quinlan to thank him for the contributions he had made to "some developments" so that he "wouldn't walk away with nothing". Mr Brady said he withdrew the offer when he found out that Mr Quinlan had passed on pricing information in relation to a tender to a competitor. Although Mr Quinlan denied having ever done such a thing, he confirmed that that was Mr Brady's stated reason for withdrawing the offer. 141 In relation to his own situation, Mr O'Sullivan gave evidence that Mr Brady offered to pay him $1.65 million as a "profit share". It was Mr Brady's case, however, that this was a bonus that he was giving to his key employees to reward them for the considerably larger than expected profits that the Brady Group had enjoyed. For example, Mr Quinlan was asked how he had come to prepare his affidavit in this proceeding. He said that he had given instructions to his lawyers, and that they had prepared a draft, based on those instructions. He said that he had corrected the draft. He was then taken to task about the fact that the affidavit that he had filed in this proceeding was word for word, virtually identical to a witness statement which he had made, and which had been filed in the Supreme Court proceedings brought by Mr O'Sullivan. 143 It was also put to Mr Quinlan that Mr Brady, a hard-headed businessman and virtual stranger, would hardly enter into a partnership agreement potentially worth millions of dollars, without insisting on that agreement being reduced to writing. 144 Mr Brady was also cross-examined extensively. In particular, he was challenged to explain why, if there was no partnership agreement of the type alleged, he had offered Mr Quinlan two units in the Morgan Place development which were obviously worth a great deal of money. 145 The starting point in evaluating the oral evidence in this case is the fact that the events recounted go back almost ten years. It goes without saying that memories fade, particularly when what is sought to be recalled are conversations which were not recorded, and as to which there are no contemporaneous notes. The only records that might conceivably be described as contemporaneous are the two diagrams drawn by Mr Quinlan. However, in my view, they are equivocal, and do not resolve the issues between the parties. 146 Mr Quinlan struck me as basically honest, but somewhat out of his depth. He had surprisingly little grasp of the complexity of the matters that would need to be resolved in order to enter into a partnership agreement of the type alleged. For example, he seemed to have given little thought to the question whether personal guarantees would have to be provided as security for any future funding arrangements. He acknowledged that he could not have secured the $500,000 that he claimed to have offered Mr Brady without his wife's consent. He also acknowledged that his wife would not have encumbered the family home without a written agreement having been prepared, and approved by her own lawyers. At the same time, he seemed somewhat unperturbed about his ability to meet his commitment to provide that money, if called upon to do so. 147 In that regard, I note that Mr Quinlan's now ex-wife was not called to give evidence, despite the fact that an affidavit from her had been filed with the Court, and had been included in the Court Book. At one point, Mr Glick sought to tender that affidavit pursuant to s 87 of the Evidence Act 1995 (Cth). He argued that it contained an "admission made with authority". However, I rejected the tender of the affidavit on that basis. In any event, the "admission" upon which Mr Glick was seeking to rely had effectively already been elicited from Mr Quinlan in cross-examination. 148 It strikes me as implausible that Mr Quinlan would have offered to pay $500,000 to bail Mr Brady's companies out of their difficulties in mid-1998 in circumstances where he had not discussed the matter with his wife (whose consent was indispensable). It is also difficult to understand why anyone in Mr Quinlan's position would make such an offer without having obtained legal advice, and without having ensured that a written agreement was in place. After all Mr Quinlan, by reason of his background and experience, understood the importance of written contracts. He was, according to his evidence, exposing his entire life savings to a new and potentially risky venture with a virtual stranger. 149 Equally odd is Mr Quinlan's assertion that Mr Brady rejected his offer of $500,000 in May 1998. This was at a time when the Brady Group was in dire financial straits. Mr Brady, of course, denied that Mr Quinlan made any such offer. Had there been a partnership agreement along the lines of the type alleged, there would have been no reason for Mr Brady not to accept Mr Quinlan's offer in the hope of fobbing off his creditors, at least temporarily. Mr Quinlan's explanation, that Mr Brady told him not to put in the money because it would not make any difference, seems improbable. 150 There were two additional aspects of Mr Quinlan's evidence that I found troubling. His explanation for not following up on the documentation required to implement the "partnership agreement", namely that he was too busy, is hardly compelling. In addition, he seemed reluctant, at least initially, to accept what was painfully obvious, namely that he had transferred his half share in the family home to his wife in order to put it beyond the reach of any creditors. He was either evasive on this subject, or so lacking in basic business skill as to render it possible that he simply misunderstood the nature of the complex arrangements that were being negotiated with Mr Brady. 151 Mr O'Sullivan was also in my view an honest witness. He seemed more astute than Mr Quinlan. In some respects, his memory was also better than that of Mr Quinlan. On balance, he was more likely than Mr Quinlan to be correct where their memories differed. Nonetheless, and not surprisingly, he was vague on some matters of detail. 152 Mr Brady struck me as a clever, and tough, businessman. He gave a plausible account of his dealings with Messrs Quinlan and O'Sullivan. He explained that his discussions with them in early 1998 had centred on Brady Constructions, which was not operating profitably, and which he was hoping might be able to be turned around. He said that any discussions regarding more general profit share arrangements were all premised upon Messrs Quinlan and O'Sullivan assuming some of the risk associated with new ventures. 153 He explained why he had offered Mr Quinlan two units at Morgan Place, but then retracted that offer when he discovered that Mr Quinlan had passed on confidential information to a competitor. That explanation seemed to me to be reasonable. 154 If pressed, I would conclude that Mr Brady's account of the events of January/February 1998 was more likely to be accurate than that of Messrs Quinlan and O'Sullivan. Mr Brady did not strike me as the sort of person who would enter into an arrangement with others which allowed them, potentially, to reap enormous benefits without putting up a significant amount of capital themselves. 155 It must be remembered that Mr Brady had encumbered both his own, and his then wife's, assets in support of his business. He was hardly likely to enter into an open-ended partnership agreement of the type alleged, namely equal shares in future profits with a man who had no money to speak of, and little experience in major property development. Mr Quinlan could be useful, through his contacts, in relation to the Brady Constructions business. However, he had no track record as a developer. In short, Mr Brady stood to gain little from Mr Quinlan's involvement in any such activity. 156 It must be remembered that this case is not about small commercial or residential projects. It concerns what subsequently became huge developments, involving many millions of dollars. 157 In the end, however, any preference that I have for Mr Brady's recollection of events is hardly dispositive. Even if I were satisfied that the events that took place at the Radisson Hotel and the Hudson apartments in January and February 1998 were broadly as described by Mr Quinlan, his claim in this proceeding would still face major hurdles. The reason is simple. On Mr Quinlan's own version of what took place, it would be hard to spell out any concluded agreement of the type alleged. Indeed, in one sense Mr Quinlan faces an even greater difficulty. As will be seen, his evidence simply does not accord with the case that he has pleaded. If the evidence supports a different case an application should be made to amend the pleadings to bring them into line with the facts as proved. See, for example, Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 at 664; Banque Commerciale SA (in liq) v Akhil Holdings Limited [1990] HCA 11 ; (1990) 169 CLR 279 at 286---287; and Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 236 ALR 209 at [132]. 159 I have earlier set out the alleged agreement as contained in the Amended Statement of Claim. It is a curious feature of this case that the affidavits filed on behalf of Mr Quinlan, even if accepted, do not establish the central allegations made. 160 As pleaded, Mr Quinlan claims that in about February 1998 he, together with Messrs Brady and O'Sullivan, entered into a partnership agreement with "the then members of the Brady Group". The pleading identifies the members of the Brady Group as including a series of companies that, for the most part, did not come into existence until long after 1998. As indicated earlier, the only true "members" of the Brady Group in 1998 were A & J Brady and Brady Constructions. 161 The pleading claims that the partnership agreement involved a sharing of profits made by members of the Brady Group on future property developments and construction work. It claims that there were terms of the agreement that each of Messrs Quinlan and O'Sullivan would provide loan funds of $500,000 to the Brady Group if requested to do so, and otherwise the partnership's expenses would be funded out of cash flow from the Fairfield Views and Empire apartments projects. However, neither Mr Quinlan nor Mr O'Sullivan, in their evidence, characterised the $500,000 to which each was committed as a "loan". They described it rather as their share of risk capital. 162 It is instructive to note that Mr Quinlan claimed that it was an implied term of the agreement that each of Messrs Brady, O'Sullivan and himself would provide guarantees and other security to procure financing for future developments. One would have thought that this was a matter of such central importance to any partnership agreement that it would have been discussed in detail, and agreed, expressly and in terms. Instead, Mr Quinlan simply said that there was mention of this subject at one or other of the meetings, and drew attention to a cryptic note to that effect in one of his diagrams. 163 In Mr Glick's final submissions he pointed out just some of the disconformities between Mr Quinlan's case as pleaded, and the evidence led in support of it. After he had completed his submissions, Mr Squirrell sought, belatedly, to amend his client's Amended Statement of Claim. That application was opposed. 164 Mr Glick submitted that it had been obvious throughout the trial that this issue of disconformity between the pleading and the evidence would be central to his attack upon the applicant's case. Yet Mr Squirrell had not sought to amend his client's pleading until literally the very last moment. Mr Glick further submitted that he had proceeded upon the footing that the case that the respondents had to meet was the case that Mr Quinlan had pleaded. He submitted that it would be both contrary to principle, and unjust to the respondents, to permit the applicant to change his case after all of the evidence had been led, and after Mr Glick had completed his final submissions. 165 I rejected Mr Squirrell's application to amend his client's pleading. I did so largely because I was satisfied that Mr Glick had given the applicant ample notice to seek to amend at a much earlier stage in the proceeding. That invitation had been ignored, and the case had been run on the basis of the pleadings as they stood. The authorities make it tolerably clear that even on his version of events (which, I reiterate, I do not accept in preference to that of Mr Brady) there was no concluded agreement of the type alleged. 167 A particularly helpful statement of the relevant legal principles is to be found in Toyota Motor Corporation Australia Ltd v Ken Morgan Motors Pty Ltd [1994] 2 VR 106. The issue in that case was whether a binding agreement had been made in December 1990 between two Toyota companies, and the respondent, for a rescue package, the respondent having been in financial difficulties for some months. The negotiations resulted in a letter dated 19 December 1990 which, together with a one page enclosure referred to the "now agreed to conditions". The respondent claimed that Mr Morgan had telephoned a senior Toyota official shortly after receipt of the letter, and accepted the offer contained in it. 168 It was important to note that the enclosure, which contained the details of the rescue package, set out various conditions relating to the offer, a timetable under which those conditions had to be met, and a statement to the effect that if the financial position indicated that the Ken Morgan group could not be viable even after the current offer was concluded, Toyota would not proceed with that offer. 169 The trial judge held that a binding agreement was made in December 1990, the terms of which were set out in the letter and the enclosure. On appeal, the Full Court of the Supreme Court of Victoria overturned that finding. 170 Brooking J (with whom Tadgell and JD Phillips JJ agreed through separate judgments) concluded that at the time the letter and enclosure came into existence the parties did not intend to make an immediately binding contract. His Honour referred to the fact that these documents had been drafted by business men, and not by lawyers, and contained loose language. He regarded the documents to be no more than a statement of the intentions or expectations of the Toyota companies. Making due allowance for the trial judge's view that the Toyota companies were anxious to keep the Ken Morgan group afloat, it was still striking that they should be taken to have agreed to provide that group with an additional $7 million in circumstances where the terms were so uncertain as those supposedly contained in this correspondence. Otherwise the supposed contract is bad for uncertainty. It is convenient to distinguish between two varieties of uncertainty in this wide sense and to call the first uncertainty and the second incompleteness. A contract is uncertain if some essential term is so vague that no definite meaning can be assigned to it. A contract is incomplete if the parties have deliberately (and whether expressly or by implication) left some essential term to be settled by their future agreement". But a suggested contract may fail for a different and more fundamental reason: that the parties did not intend that it should be a binding contract. And the presence of vagueness or incompleteness ... may lead the court to conclude ... that the necessary intention to make a binding contract was absent. Failure to reach agreement on matters which, while not essential, are none the less matters which are ordinarily agreed upon in transactions of the class in question has the same tendency . 175 There are many cases to the same effect. See for example Sinclair, Scott & Co Ltd v Naughton [1929] HCA 34 ; (1929) 43 CLR 310 at 316---317; Allen v Carbone [1975] HCA 14 ; (1975) 132 CLR 528 at 533; and Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 at 548. 176 I discussed a number of these cases in Macdonald v Australian Wool Innovation Ltd [2005] FCA 105 at [206] ---[209] and [211]---[229]. That case concerned two senior scientists who left their employ with a large public company because they were offered the opportunity to engage in a high risk, but high reward, venture with the respondent. They claimed they had entered into an agreement with the respondent which was binding and legally efficacious, but that the respondent had repudiated that agreement. The respondent denied that any such agreement had been concluded. 177 I held that the applicants had established the existence of the binding agreement pleaded. The board of the respondent, a public company, had specifically considered and approved a detailed and documented proposal for the particular venture. Not all the "i"s were dotted and not all the "t"s crossed. However, the critical elements had all been agreed, and those that were not expressly agreed would readily be the subject of implication. 178 The present case is a far cry from Macdonald . Even on Mr Quinlan's case a number of essential terms were uncertain or lacking. Alternatively, if those terms are not regarded as "essential", they were terms of the kind that would ordinarily be expected to be agreed in a complex agreement involving major property developments and potentially large amounts of money. • If they did, was it such a consensus as was capable of forming a binding contract? • And, if it was, did the parties intend that the consensus at which they arrived should constitute a binding contract? 181 Even accepting Mr Quinlan's account of the relevant conversations, he has not established that the parties arrived at a consensus. If they did, it was not a consensus that was capable of forming a binding contract. And, if it was, viewed objectively, in accordance with Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] , the parties did not intend that the consensus at which they arrived should constitute a binding contract. 182 In arriving at that conclusion, I have given weight to the fact that the discussions between the parties concerned major property developments. It would have been plain to Mr Quinlan that any venture of the type he contemplated would have required millions of dollars in finance. The arrangement that he asserts could never have gotten off the ground without the Brady interests being prepared to contribute large amounts of money. Mr Quinlan had no significant assets, and no capacity to borrow even relatively modest amounts of money. 183 I have also given weight to the fact that, at the relevant time, Mr Quinlan and Mr Brady were barely acquaintances. This was not a handshake deal done between longstanding business associates, where perhaps some latitude in relation to formality might be accorded. 184 According to Mr Quinlan, the key to the entire agreement was that there would be a new entity established which would control both the construction side of the business, and all future developments. That of course never occurred. Mr Quinlan was compelled to say that there must have been a variation to the original agreement whereby the existing entity, A & J Brady, continued to run all aspects of the business, apart from Brady Constructions, and new companies were established in relation to each new venture, though under the auspices of the one parent. Mr Quinlan never sought, nor obtained, any shares in any of the Brady companies. Nor did he ever become a director of any of those companies. This is so far at odds from the terms of the agreement supposedly struck as to make it highly unlikely that it was ever actually concluded. 185 If, as Mr Quinlan suggested, the parties contemplated that the agreement would eventually be documented, it was extraordinary that he took no steps to ensure that that was done. A person in his position, exposing himself to the risk of losing everything he had ever worked for would be unlikely to simply allow this matter to lie in abeyance. 186 It must also be said that Mr Quinlan's conduct after Mr Brady supposedly breached the "agreement" is hardly consistent with his central allegation. According to Mr Quinlan he was promised, and agreed to accept, a one third share in all future profits. In the Scanlan Carroll draft agreements, however, Mr Brady appears to have unilaterally changed the arrangement and offered him no more than 20 percent. Rather than contacting his solicitors at once, with a view to protecting his position, Mr Quinlan, on his own account, did nothing. He provided no satisfactory explanation for his failure to act. 187 I should add that Mr Quinlan's willingness even to entertain Mr Brady's offer of two units at Morgan Place, instead of the $20 million or so to which he now says he is entitled as a one third share of the Brady Group's development profits, seems to belie his assertion that he at all times believed he had a binding agreement of the type alleged. 188 Accordingly, I find that there was never any concluded agreement of the type pleaded. In addition, there was mention of a claim based on unjust enrichment, though no such claim was expressly articulated in either the original Statement of Claim, or the amended version. In any event, all claims other than the claim for breach of contract were expressly abandoned by Mr Squirrell during the course of the trial. Nothing further need be said about them. It follows that this application must be dismissed. I will hear the parties as to costs. I certify that the preceding one hundred and ninety (190) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

applicant alleged partnership agreement which provided for equal three-way split of profits from future property developments whether evidence supported case as pleaded whether parties had reached concluded agreement contractual uncertainty and incompleteness whether agreement reached on all essential terms whether agreement reached on matters ordinarily agreed upon in transactions of the class in question contract

He first entered Australia in 1975 under the entry provisions then relating to New Zealand citizens. The applicant left Australia in November 1995, but returned on 19 February 1997. Upon his return, the applicant was issued with a Subclass 444 Special Category (Class TY) visa (available to New Zealand citizens). This is his sole authority to remain in Australia. 2 The applicant has an extensive criminal record in Australia. There is no dispute that he has a ' substantial criminal record ' within the meaning of that expression in s 501(7) of the Migration Act 1958 (Cth) (' Migration Act '). 3 On 20 September 2007, the then Minister for Immigration and Citizenship cancelled the applicant's visa. The applicant relies on the single ground that the decision was vitiated by a denial of natural justice. The basis for this contention is that the applicant never received any of the three letters sent to him by the Department of Immigration and Citizenship (' Department ') notifying him of the Minister's intention to consider cancellation of his visa pursuant to s 501(2) of the Migration Act . In consequence, so the applicant contends, he was denied the opportunity to put submissions to the Minister and the cancellation decision was affected by jurisdictional error. 5 The respondent (' the Minister ') does not dispute that the applicant did not receive the notice, but argues that the Department took reasonable steps to give the applicant actual notice of the Minister's intention. In these circumstances, the Minister submits that the applicant was not denied natural justice and that the proceedings should be dismissed. ... Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or ... Otherwise, the person passes the character test. Section 504(3) states that regulations may be made under s 504(1)(e) providing that a document given to, or served on, a person in a specified way shall be taken to have been received by the person at a specified or ascertainable time. 8 Regulation 2.55 of the Migration Regulations was made pursuant to the powers conferred by s 504(1)(e) and (3) of the Migration Act : Minister for Immigration and Multicultural and Indigenous Affairs v George [2004] FCAFC 276 ; (2004) 139 FCR 127 , at 140 [33], per curiam . Regulation 2.55 applies, among other cases to ' the giving of a document to a holder ... of a visa relating to the proposed cancellation ... of a visa ': reg 2.55(1)(a). Counsel for the Minister, Mr Kennett, did not object to any portion of the affidavits read on behalf of the applicant. Nor did Mr Kennett cross-examine any of the deponents. There is therefore no dispute about the underlying facts. 11 On 4 December 2001, the Department notified the applicant, who was then in Junee Correctional Centre, that the Minister or a delegate intended to consider cancellation of his visa. The applicant responded in writing to the notification on 27 December 2001. On 14 February 2002 the Minister decided not to exercise his discretion under s 501(2) of the Migration Act to cancel the visa. However, the Minister warned the applicant that a conviction for any further offence would result in a fresh assessment of whether cancellation of his visa should be considered. 12 The Minister's interest in the applicant appears to have been revived by his conviction in the Court of Petty Sessions of Western Australia on 4 March 2005 for breaking into the house of a 92 year old lady, for which he was sentenced to nine months' imprisonment. On 5 January 2006, the Department wrote to the applicant by registered mail notifying him of the intention to consider cancellation of his visa. The letter was sent to an address in Gosnells in Western Australia. The applicant had lived at that address with his family after his release from prison on or about 18 July 2005. However, in late 2005 the applicant left that address and stayed in a series of men's refuges. At the time the Department sent the notice, the applicant was living alone in a unit provided by Mission Australia, although two of his children visited him there from time to time. 13 On 6 January 2006, one of the applicant's daughters signed a ' Delivery Confirmation Advice Receipt ' for the registered letter addressed to the applicant, using her usual signature. There was uncontradicted evidence that the daughter did not give the letter to the applicant or tell anyone about it. The applicant's uncontradicted evidence was that he first saw the letter after the visa cancellation decision had been made. 14 The Department duly received the delivery confirmation signed by the applicant's daughter. On 21 February 2006, an officer endorsed a file copy of the letter of 5 January 2006 with a notation: ' Please confirm the accuracy of this [Gosnells] address '. No further action was taken at this time in relation to cancellation of the applicant's visa. 15 In October 2006, a Departmental case officer made several attempts to ascertain whether the applicant would be making any written response to the notice of 5 January 2006. In fact, at about this time the applicant was staying in a number of places offering short-term accommodation. Members of his family apparently continued to live at the Gosnells address, but the applicant was not able to reside there because one of his daughters had taken out an apprehended violence order against him. 17 On 10 January 2007, the Department sent a second notice of intention to consider cancellation of the applicant's visa by registered mail to the Gosnells address. A signed delivery confirmation was returned to the Department. The evidence suggests that an acquaintance of the applicant, a Mr Bazely, signed the delivery confirmation, apparently in the applicant's name. In any event the signature was not that of the applicant. The applicant also did not see this notice until after his visa had been cancelled. 18 The Department sent copies of the letter of 10 January 2007 to the applicant at two other addresses, including the Huntingdale address. Both were returned to sender, the latter with the annotation that the applicant had ' left address '. Once again, the Department did not give any further consideration at this time to cancellation of the applicant's visa. 19 On 15 June 2007, the Department requested Centrelink to provide ' any updated address information for the applicant '. 20 On 28 June 2007, the Department sent a third notice of intention to consider cancellation of the applicant's visa. This notice was sent to the applicant at the Colour City Caravan Park, but was returned to the Department on 9 July 2007 marked ' Left address/Unknown '. He went to Centrelink during this period to arrange payment of a benefit. Centrelink helped him obtain accommodation at the Colour City Caravan Park, where he stayed for only a week. The applicant then travelled to Sydney and apparently commenced work there. Although the applicant had been advised by a case officer to notify Centrelink when he had a new address, he did not do so. 23 On 21 June 2007, very shortly after arriving in Sydney, the applicant was taken into custody by the New South Wales Police. On that day, he appeared in a Local Court and was refused bail. It is not entirely clear whether he was convicted of further offences or was returned to prison for breach of parole conditions or for some other reason. In any event, he remained in custody from 21 June 2007 until 20 March 2008. He was released on the latter date, but was immediately taken into immigration detention. 24 In the meantime, on 21 August 2007, a Departmental officer submitted to the Minister an Issues Paper seeking a decision on whether to cancel the applicant's visa. The Issues Paper recorded the history of the attempts to contact the applicant. The cancellation grounds were set out in the Notice and he was invited to submit any comment that he believed relevant to the consideration of the issue of visa cancellation. On 9 July 2007 the Notice was returned to the Department marked "Left address/Unknown". On 9 July 2007, Centrelink confirmed once again that Mr HORNE's current address was Colour Caravan Park Orange NSW 2800. Given these circumstances, Mr HORNE is deemed to have received the Notice dated 28 June 2007. Of course, at the time the Issues Paper was submitted to the Minister, the applicant had been in custody for two months. He remained in custody at all times until the Minister made the cancellation decision on 20 September 2007. 26 On 19 November 2007, the applicant was notified in writing that his visa had been cancelled. At that time he was in custody at Parklea Correctional Centre. There was no evidence as to how the notice came to the applicant's attention or whether the Department had learned that the applicant was in custody and, if so, how it came by that information. On this basis, the applicant submits that, in the absence of any statutory constraints on the requirements of natural justice, the question is simply what is procedurally fair. Fairness requires that a person faced with cancellation of his visa and deportation be informed of the possibility of an adverse decision and have the opportunity to make representations to the decision-maker. In this case the applicant, by reason of his peripatetic lifestyle and the failure of the Department to ensure he was actually notified of the intention to consider cancellation of his visa, was denied that opportunity. 28 The Minister relies on the decisions of French J in Osborne v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1113 ; (2002) 124 FCR 416 and of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v Ball [2004] FCAFC 91 ; (2004) 138 FCR 450. These authorities are said to stand for the principle that the requirements of procedural fairness are satisfied if the Department or Minister has made reasonable efforts to notify the visa holder that cancellation of the visa is under active consideration. In this case, the Department had made such efforts over a period of time, including the inquiry made of Centrelink after the notice of intention to consider cancellation of the applicant's visa, sent on 28 June 2007 had been returned undelivered. The Minister submits, therefore, that the present case falls within the principle established by Osborne v Minister and Minister v Ball and that the applicant was not denied procedural fairness despite not receiving any of the three notices sent to him. 29 In his oral submissions, Mr Karp, who appeared for the applicant, contended that the Department had not made reasonable efforts to ensure that the notice of intention to consider cancellation of the visa actually came to the attention of the applicant. He argued that there were obvious steps that the Department could and should have taken once the notice of 28 June 2006 was returned undelivered. In the absence of evidence that the Department had made additional inquiries, the present case could not be said to be governed by the principle applied in Osborne v Minister and Minister v Ball . There is also no dispute that if the Minister failed to afford the applicant procedural fairness, the cancellation decision would be affected by jurisdictional error. In these circumstances, relief in the nature of certiorari would be available to quash the decision: Re Refugee Tribunal; Ex part Aala [2000] FCA 57 ; (2000) 204 CLR 82 ; Plaintiff S157 v Commonwealth (2003) 211 CLR 476 ; Bodruddaza v Minister for Immigration and Multicultural Affairs [2007] HCA 14 ; (2007) 228 CLR 651. There can be few decisions of greater importance to the liberty and security of an individual than a decision by the Executive branch of government to cancel his or her visa. Such a decision renders the individual liable to immediate detention and removal from Australia: Migration Act , ss 189 , 192 , 198 . Procedural fairness would seem to require, therefore, that the visa holder be afforded ample opportunity to put to the decision-maker reasons why the power to cancel the visa should not be exercised. 32 On the other hand, those responsible for administering the Migration Act will often encounter difficulties in contacting a visa holder in order to notify him or her that consideration is to be given to cancellation of the visa. This may be so even where the Department goes to considerable lengths to ensure that the visa holder is notified of the process and receives an adequate opportunity to present his or her case. If it is impossible for the Minister to cancel a visa validly unless actual notice is given to the visa holder in advance, the process might be frustrated, to the detriment of the public interest. (I note, however, that s 192 of the Migration Act empowers an officer to detain a non-citizen if the officer reasonably suspects that the non-citizen holds a visa that may be cancelled and that the non-citizen will not co-operate with officers in their inquiries. In that case, the visa holder, a New Zealand citizen, had committed a number of offences. While in prison he told a Departmental officer that, upon his release, he intended to reside with his mother at a particular address. Following the visa holder's release in September 2000, he lived with his mother for three months but then moved to another address. In July and September 2001, letters were sent to the visa holder at the mother's address, but he received neither of them (although friends told him in September 2001 that a registered letter had been sent to him). The Minister cancelled the visa in February 2002 on character grounds, without having received any representations from the visa holder. 34 French J pointed out (at 423) that there is no express provision in the Migration Act requiring notice to be given to a visa holder as a condition of the exercise of the Minister's power to cancel the visa under s 501. " It is not to be supposed that the Parliament intended that condition to be met by the silence of the visa holder in the absence of any notice of the Minister's intention to cancel. Some process of notification is therefore contemplated even though the Act does not set it out. Indeed the regulations seem to assume as much. The implied condition requires only that reasonable steps be taken to notify the visa holder. To send a notice of intended cancellation to his last known address is a reasonable step. When that last known address is the address of a close relative of the visa holder, in this case his mother, and with whom he had expressed an intention to resume living, then it is plainly a reasonable process. In the latter case, the notice was sent by the Department to an address in Kalgoorlie supplied by the visa holder when she had appeared in court charged with an offence in January 2003. It was also the address she had supplied to the Australian Taxation Office in March 2002. The Department sent the notice on 29 January 2003, but the visa holder had moved to Melbourne a few days earlier. The notice was returned to the Department ' unclaimed ' on 11 March 2003. 38 The Minister cancelled the visa holder's visa on 13 March 2003. The Issues Paper was presented to the Minister some time before the notice was returned to the Department. The Paper stated that the visa holder had been notified by mail of the intention to cancel her visa, but that she had not responded. 39 All members of the Full Court (Dowsett, Jacobson and Bennett JJ) held that the Department had taken reasonable steps to notify the visa holder. Dowsett J considered (at 457 [22]) that, in the absence of submissions from the visa holder, the Minister should have considered whether adequate steps had been taken to notify her. However, the only step that the visa holder's counsel could suggest was a newspaper advertisement, which Dowsett J thought would have been unlikely to produce any result. In his view, there was nothing more that the Department could reasonably have done. Even if it is accepted that, by the time the Minister made the decision, she was aware that the Notice had been returned unclaimed, the taking of those reasonable steps in circumstances where no alternative address for the respondent was known was sufficient. Otherwise, a person deliberately evading service could deprive the Minister of the power to cancel the visa. In the present case, the respondent continued to give the Kalgoorlie address after the Notice was returned unclaimed and the decision was made. In Minister v George , the Department sent two letters to the visa holder. The first was sent to an address held by the Department, but it was returned undelivered. The second was sent to an address supplied by the Western Australian Police. The visa holder was not living at this address at the time, although he commenced living there later. The second letter was not returned to the Department, but the visa holder received neither letter. The Minister subsequently cancelled her visa. The Minister believed at the time he made the decision that the visa holder had been notified of the cancellation process and had not taken up the invitation to make submissions. 42 The trial Judge held that the limited and unsuccessful attempts to contact the visa holder constituted a denial of procedural fairness. On appeal, the Full Court followed (at 139 [27]) Osborne v Minister , holding that the requirement in s 501(2) that the visa holder ' does not satisfy the Minister that the [visa holder] passes the character test ' implied that some prior notice had to be given of the Minister's intention to cancel the visa. The Court also held (at 139 [29]) that procedural fairness required the visa holder to be given an opportunity, assuming that the Minister was not satisfied that the visa holder passed the character test, to persuade the Minister not to exercise the discretion to cancel the visa. 43 Their Honours observed (at 139 [30]) that, notwithstanding the principles of procedural fairness, it is open to Parliament to specify circumstances in which notification of a cancellation process is deemed to be given to a person. Parliament can also confer on the Executive power to achieve the same result by regulation. 44 The Minister had relied on reg 2.55(7) to support the conclusion that, since the notice was sent to the visa holder at the address supplied by the Police, he was deemed to have received it. The Court held (at 141 [35]) that reg 2.55, in terms, only applies where the notice is sent to the actual address of the visa holder. The addresses to which the Department dispatched the letters were not and never had been addresses of the visa holder. Their Honours were of the view that reg 2.55(7) had no application to letters sent to an address with which a visa holder never had any connection. 45 The Minister's alternative contention in Minister v George was that procedural fairness had been satisfied because reasonable steps had been taken to notify the visa holder. The question is whether that error is a jurisdictional error. In order to determine whether a particular order is jurisdictional, it is essential to consider the relevant statutory context. ... In circumstances where a visa entitles the holder to permanent residence in Australia and cancellation will render that person liable to detention and removal from Australia, a mistake as to whether the person has been notified of the intention to consider cancelling the visa is a very significant one. Such a mistake will be even more significant if the consequences of the cancellation of a visa entitling the holder to permanent residence in Australia may include separation from his family and removal to a country with which he no longer has any social connection. Such a mistake acted upon as it was here, must be regarded as going to the jurisdiction of the decision-maker to cancel the visa where procedural fairness is required before doing so. Failure to do so will normally involve jurisdictional error, notwithstanding that what occurred was subjectively fair from the point of view of the decision-maker, because, on the material and information available to the decision-maker, it was reasonable to conclude that a right to be heard had been afforded. Of course, this general statement is subject to any contrary indications within the relevant statutory scheme including, in this case, the deeming provisions within the Act. However, for the reasons already given, they do not assist in this case. Their Honours gave the example of a person who avoids communicating with the Minister because of a fear that the communication may be detrimental. In each case, so it would seem, the Minister erroneously believed on reasonable grounds that the visa holder had been notified of the intention to consider cancellation of the visa. In George such a finding was express. In Minister v Ball it is to be inferred from the finding that the Departmental Issues Paper informed the Minister that the visa holder had been notified and had not responded, but did not inform the Minister that the notice sent to the visa holder had been returned undelivered. The precise holding in Minister v George was that the Minister committed a jurisdictional error by acting on his erroneous belief that the visa holder had received actual notice that cancellation of the visa was under active consideration. • In any event, procedural fairness, to which the statutory power is subject, requires the visa holder to be given an opportunity to persuade the Minister not to exercise the discretionary power of cancellation. • Parliament may specify that a visa holder is deemed to have been notified of the cancellation process even if he or she has not actually been notified. Parliament may do so in terms that dispense with any further requirements of procedural fairness. • Subject to the previous paragraph, if the visa holder does not receive actual notice that the cancellation process is under way, he or she will be denied procedural fairness unless the Minister or Department has taken reasonable steps to notify him or her that cancellation of the visa is under consideration and provide an opportunity to make representations as to why the visa should not be cancelled This proposition may not hold good in exceptional circumstances, for example where the visa holder has deliberately evaded attempts to notify him or her of the cancellation process. • The fact that the Minister has taken reasonable steps to notify the visa holder will not necessarily mean that the requirements of procedural fairness have been satisfied. It appears that the requirements will not be satisfied where the Minister acts in the mistaken belief that the visa holder has in fact been notified, even if reasonable steps have been taken. It was obvious from the Issues Paper that the applicant had not received the third notice of 28 June 2007. However, the Issues Paper recorded that ' Receipt of one of the Notices [of 10 January 2000] was confirmed by Australia Post on 15 January 2007 '. This may have supported an inference that the Minister took the Issues Paper to imply that the applicant had received the second notice of 10 January 2007, particularly as a person not familiar with the applicant's signature could well have read the signature as that of the applicant. But Mr Karp made no such submission. 51 Mr Kennett appreciated the potential difficulty for the Minister's case if the applicant submitted that the Court should find that the Minister erroneously believed that the applicant had received the second notice. At the conclusion of his oral submissions, Mr Kennett expressly noted that the applicant had made no suggestion to this effect and that it was therefore not necessary for him to deal with the decision in Minister v George . The Minister's submissions, like those of the applicant, proceeded on the basis that the Minister had not formed a belief that the applicant had actually received a notice warning him that consideration was to be given to cancelling his visa. Mr Kennett pointed out that the Minister's acceptance of this proposition potentially left room for reg 2.55 to operate by deeming service of the notice to have been effected. However, as will be seen, Mr Kennett placed no reliance on reg 2.55 in the circumstances of this case. 53 The question of whether the Minister or the Department has taken reasonable steps is a question of fact, dependent upon the particular circumstances of the case. In Osborne v Minister , French J thought that sending the notice to the last address provided by the visa holder, which in fact had been his address for three months after his release, was reasonable. His Honour was fortified in that conclusion by the fact that the address was that of the visa holder's mother and the further fact that the registered letter sent to that address had not been returned. In Minister v Ball , the Court was influenced by the absence of any alternative address for the visa holder and the failure of the visa holder's counsel to identify any further step that the Department could reasonably and practically take to notify the visa holder that cancellation was under consideration. 54 In assessing the reasonableness of the Minister's actions, it is appropriate, in my view, to take account of the serious consequences to the visa holder of a cancellation of his or her visa. Although perhaps the point is self-evident, the Full Court in Minister v George (at 145 [53]) emphasised the potentially devastating consequences of a decision to cancel the visa of a permanent resident of Australia. A useful analogy is the principle that in applying the standard of proof on the balance of probabilities, a court takes account of the seriousness of the factual issue and of the gravity of the consequences flowing from a particular adverse finding: Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 , at 343-344, per Latham CJ; at 362-363, per Dixon J. By parity of reasoning, the circumstances relevant to the reasonableness of the Department's attempts to notify a visa holder include the gravity of the consequences for that person of a decision to cancel his or her visa. 55 In the present case, the Department made a number of attempts to notify the applicant that the Minister intended to consider cancellation of his visa, including sending the three letters to him by registered post. However, none of the three letters (5 January 2006, 10 January 2007 and 28 June 2007) was sent to an address at which the applicant was then currently residing. 56 Receipt of the first letter was acknowledged in writing, but the signature did not purport to be that of the applicant, as a cursory examination of the receipt would have shown. The second receipt bore a signature that was not the applicant's, but could have been read by someone unfamiliar with his signature as indicating that he had signed the document. The Issues Paper presented to the Minister did not expressly state that the applicant had acknowledged receipt: it merely recorded that Australia Post had confirmed receipt of one of the notices. As I have explained, the case was conducted on the basis that the Minister had not formed an affirmative belief that the applicant had actually received any of the notices. 57 The Department took no action in relation to the applicant's visa on the basis of the second notice of 10 January 2007. The reason for the inaction was not explained in the evidence. In any event, the Department decided that a further letter should be dispatched to the applicant before any cancellation action was taken. Accordingly, the third letter was sent to the Colour Caravan Park nearly six months later, but it was returned with a notation that the applicant had left the address. The Department made a further enquiry of Centrelink, but that was limited to asking whether the applicant had updated his address. The Issues Paper was prepared on the basis that the Colour Caravan Park was the applicant's last known address and that he was deemed to have received the third notice of 28 June 2007. The document recorded that Centrelink had ' confirmed once again [the applicant's] current address '; it did not claim that the applicant was in fact living at the Colour Caravan Park. 58 In these circumstances, one can readily understand the desire of the Department to proceed to a decision rapidly. But to recognise this is not necessarily to conclude that the Department had taken reasonable steps to notify the applicant of the intention to give consideration to cancellation of his visa. Mr Kennett accepted that the relevant enquiry is whether the Department had taken reasonable steps to give the applicant actual notice of the intention to consider cancelling his visa. 59 The Department cannot be expected to make endless enquiries or to pursue avenues that are unlikely to yield any worthwhile results (such as a newspaper advertisement directed to a person living an itinerant lifestyle). Care must also be taken not to use hindsight to impose undue burdens on the Department. Nor do reasonable efforts to notify a visa holder that cancellation is being considered imply that the Department must exercise special ingenuity or expend disproportionate resources in an attempt to locate the visa holder. 60 In this case, however, armed with the knowledge the Department had and assuming no special foresight on its part, there were simple enquiries it could have made that would have revealed the applicant's whereabouts. A telephone call to the Colour Caravan Park doubtless would have confirmed the applicant's departure from that location. Of course, the enquiry would not have revealed his destination, but it would have removed any doubt as to whether the applicant was still at the Caravan Park. 61 In view of the applicant's criminal record and his apparent failure to update his address with Centrelink (presumably making it more difficult to claim benefits), it must have been obvious to the Department that there was at least a realistic chance that he had been taken into custody by the police. After all, the Minister was asked to give consideration to cancelling the applicant's visa by reason of the latter's extensive criminal record, going back many years. In the absence of evidence to the contrary from the Minister, I would infer that it was a simple matter to enquire of the New South Wales Police (or, for that matter, the Western Australian Police) whether the applicant had been taken into custody. He did not suggest that it would have been a difficult enquiry to make. 62 It would be surprising if the Department did not have in place a straightforward mechanism for ascertaining whether a visa holder with a substantial criminal record is in police custody or prison at any given time. Be that as it may, where there have been difficulties in making contact with a visa holder who leads a peripatetic lifestyle, an enquiry of the relevant police or prison authorities would seem to be both a simple and inexpensive step to take. There was no evidence before me to suggest otherwise. Had this procedure been adopted, it would have avoided the unfortunate situation in which the Minister cancelled the applicant's visa without him ever having had an opportunity to put his case to the contrary. 63 In my view, the evidence supports the conclusion that, in the circumstances, the Department did not take reasonable steps to notify the applicant that the Minister would consider whether to cancel his visa. Subject to the operation of reg 2.55, it follows that the applicant was denied procedural fairness and that the cancellation decision was affected by jurisdictional error. 64 In reaching this conclusion, I have not assumed that the Department could have readily made additional enquiries of Centrelink, for example as to whether the applicant was continuing to receive benefits and, if not, why they had stopped. The evidence did not address the nature of the additional enquiries that the Department could easily have made: cf Social Security (Administration) Act 1999 (Cth), s 208. If, however, such enquiries could have been made easily, that would add force to the conclusion I have reached. The Minister accepted that reg 2.55 applies, by its terms, to circumstances in which the Migration Act or the Migration Regulations require a ' document ' to be given to a visa holder. The submissions gave s 107 of the Migration Act as an illustration of a provision to which reg 2.55 applies. Section 107 authorises the Minister to give visa holders notice of any alleged non-compliance with certain statutory provisions. 66 Although the Minister's written submissions asserted that ' the mechanism ' in reg 2.55 had been complied with, the Minister did not contend that the applicant's claims of a denial of procedural fairness could be met by establishing that the terms of reg 2.55 had been satisfied. When the issue was referred to in oral argument, Mr Kennett confirmed that the Minister's position was that French J had held that reg 2.55 could not apply to a notice relating to the possible exercise of the power of cancellation conferred by s 501 of the Migration Act . Accordingly, the Minister did not dispute that reg 2.55 did not apply and thus did not condition the exercise of the power of cancellation. 67 In the absence of any submission that the Minister is entitled to rely on reg 2.55, at least in this Court, I do not need to consider it further. These orders will not prevent the Minister, if so advised, from reconsidering the question of cancellation of the applicant's visa with the benefit of any submissions the applicant may care to make. The Minister must pay the applicant's costs of the proceedings. I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville.

visa holder's visa cancelled by reason of his substantial criminal record and consequent failure to pass 'character test' visa holder did not receive notices advising him that cancellation was being considered whether there was a denial of procedural fairness whether minister took reasonable steps to notify the visa holder of the cancellation migration

The Australian Crime Commission (the ACC) is established under the Australian Crime Commission Act 2002 (Cth) (the ACC Act). The Board of the ACC is empowered under s 7C of the ACC Act, inter alia, to authorise in writing the ACC to undertake investigations into federally relevant criminal activity (as defined in the ACC Act) and to determine in writing that such an investigation is a special investigation. On 27 July 2005, the Board of the ACC signed the Special Investigation Authorisation and Determination (High Risk Crime Groups) 2005. It authorised the ACC to undertake a special investigation. On 1 May 2009, the Board of the ACC signed the Special Investigation Authorisation and Determination (High Risk Crime Groups No 2) 2009. By the terms of those two instruments, the ACC is authorised to conduct a special investigation in respect of the federally relevant criminal activity as described in them. There is no issue in this proceeding about the validity of the special investigation. It enlivened the investigative powers of the examiner, appointed under s 46B of the ACC Act. On 5 May 2009, a summons was issued by an examiner of the ACC to the applicant (the summons), pursuant to s 28(1) of ACC Act. It required the applicant to attend before an examiner of the ACC for examination on the subject of the special investigation. The applicant duly attended for examination on 12 May 2009. The applicant's then counsel was in attendance. The examination commenced, and the applicant was examined, apparently in relation to matters relevant to the special investigation. The examiner made an interim non-publication order on that occasion under s 25A(9) of the ACC Act, preventing any communication in relation to any of the matters that had arisen relating to the examination, other than to persons present at the examination, and to any legal practitioner acting for the applicant. The examination was adjourned to 19 May 2009. The applicant was arrested by the South Australian Police on 13 May 2009. He (and two other persons) were separately charged that, on 27 April 2009 at an Adelaide suburb, he manufactured a controlled drug, and intended to sell to another person any of that controlled drug, contrary to s 33(3) of the Controlled Substances Act 1984 (SA) (the CS Act) (the charge). That is a major indictable offence. Certain officers of the ACC (but not necessarily the examiner) were aware of the intention of the South Australian Police to arrest the applicant for taking part in the manufacture of a controlled drug through a "clandestine laboratory" at that suburb. The Operations Manager of the Adelaide office of the ACC took steps to ensure the members of the South Australian Police involved in that potential arrest or the investigation or prosecution of the charge were excluded from the ACC examination process. No information concerning the examination, or information obtained thus far by the examiner, has been made available to the South Australian Police. On 19 May 2009 the examination resumed. On that occasion the applicant's then counsel withdrew. It is not necessary to refer to the circumstances in which that occurred. The examination was further adjourned to 9 June 2009. On 9 June 2009, the applicant attended the adjourned examination. He was represented by different counsel. The applicant was further examined in relation to matters relevant to the special investigation. During the course of the examination, the applicant was asked certain questions in relation to matters concerning the charge under the CS Act. He declined to answer them, as (according to the application) those questions derogated from the applicant's rights at law generally as a charged person and more specifically to his right to a fair trial and conduct of his own defence, and thereby the inquisition was liable to amount to a contempt of court. He took that position on the advice of his counsel. The examiner directed the applicant to answer those questions notwithstanding his objection. The applicant maintained his objection. The examination was further adjourned, to allow the applicant to apply to this Court to determine whether the examiner could require the applicant to answer such questions, over his objection. Hence, these proceedings. The questions to which objection was taken concerned particular features of the applicant's knowledge of drugs and contact with persons in relation to the production of amphetamines. The applicant had previously been asked questions on those topics and had apparently answered them in some manner. I have not reviewed the transcript of the examination on 12 May 2009 to know how they were answered. The objection giving rise to this application was prompted by a question about the applicant's dealings with his co-accused. The particular question asked on 9 June 2009 to which attention was drawn in the course of submissions did not specifically focus on the events giving rise to the charge. The question, and related questions, were capable of applying to a much wider time frame. However, a full answer to those questions may have directly provided information concerning facts and matters relating to the charge. To that extent the applicant objected to answering that question. The examiner nevertheless ruled that the question must be answered in full. There was no suggestion that the widely expressed question should be taken as referring to matters other than those directly relating to the charge. Nor, in the course of submissions, did senior counsel for the ACC suggest that the question, and other questions, would or should be so confined. It was the position of the ACC that the examiner was entitled to ask, and the applicant obliged to answer, questions which directly related to the matters the subject of the charge. That may be contrasted with the attitude of the examiner in CC v Australian Crime Commission [2005] FCA 754 at [10] . The issue is not whether the ACC Act has, by s 30, abrogated the privilege against self-incrimination. That has been decided by cases such as A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ; Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ; Loprete v Australian Crime Commission [2004] FCA 1476 ; X v Australian Crime Commission [2004] FCA 1475 ; (2004) 139 FCR 413 ; CC v Australian Crime Commission [2005] FCA 754. The issue is whether the applicant was entitled not to answer questions asked by the examiner to the extent that they directly related to matters the subject of the charge. Indeed, one way the applicant put his contention was that the examiner was not entitled to ask questions directly related to matters the subject of the charge. The contention of the applicant is that he is not obliged to answer such questions, and that the examiner is not entitled to ask such questions, because that would involve a real risk that the administration of justice would be interfered with. The ACC does not dispute the principle that, unless the ACC Act by necessary implication has provided to the contrary, once the charge was laid, the examiner was not entitled to ask questions which directly related to matters the subject of the charge provided there is a real risk that the questioning may interfere with the administration of justice. Its functions are set out in s 7A of the ACC Act, and include to investigate, when authorised by the ACC Board, matters relating to federally relevant criminal activity. Section 28 of the ACC Act provides that an examiner may summon a person to appear before the examiner at an examination to give evidence and produce documents or things referred to in a summons. The conduct of such an examination is governed by s 25A of the ACC Act. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence. The Chief Executive Officer of the ACC is responsible for the management and administration of the ACC. Under s 46A(2), the CEO must also manage and co-ordinate and control a special investigation or operation of the ACC. That requires the CEO under s 46A(2A) to determine in writing the head of such an operation or investigation, and under s 46A(3) to specify the examiner or examiners to exercise the powers in relation to it. The examiner is obliged at the conclusion of an examination to give the head of the special ACC investigation or operation a record of the proceedings of the examination and any documents relating to it: s 25A(15). That is an obligation which, as a matter of construction, appears unqualified so that any order under s 25A(9) made by the examiner protecting the confidentiality of the examination would not and could not apply to it. By that avenue, the CEO through the nominated head of the investigation or operation would be in receipt of the material which would enable the CEO to comply with s 12(1) of the ACC Act itself. Senior counsel for the ACC did not contend that the obligation in s 12(1), if it is enlivened, need not be carried out. It is convenient, at this point, to note a suggestion by senior counsel for the ACC that the applicability of s 12(1) might somehow be qualified by the power of the examiner or the CEO of the ACC under s 25A to make an order restricting the publication of certain material received in the course of an examination. Section 25A(9) is set out in [23] above. That discretion is clearly directed to a different purpose. Its terms indicate that. Section 12(1) is directed to procuring the possible prosecution of offences which an ACC special investigation or operation may have exposed. Section 25A(9), as its terms reveal, is not to frustrate such a prosecution, but broadly to ensure the fair trial of a person who may be charged, or to secure the safety or reputation of a person who has provided information to the ACC. The general directions in s 25A(9) and (10) do not diminish the obligation imposed on the CEO under s 12(1). Simply for the sake of completeness, it should also be noted that the circumstances in which the Minister must decide whether to disclose information under s 59(6C) also do not qualify the obligation of the CEO under s 12(1). There are several decisions of this Court which support that proposition, referred to in [18] above. Section 30(2)(b), when read in combination with ss 30(4) and (5), is a clear indication of the parliamentary intent to abrogate the privilege against self-incrimination. Section 30(5) provides for a "use immunity", whereby a person being examined may, before answering a question or producing a document or thing, claim that the answer or production of such document or thing might tend to incriminate that person, in the circumstances of s 30(4), and then the answer (or document or thing) is not admissible in evidence against that person in a criminal proceeding (other than in the circumstances set out in s 30(5)). Counsel for the applicant relied upon the right of the applicant, as an accused person, not to be examined by an executive arm of government on matters directly related to a pending criminal charge, at least unless that power to be so examined is clearly granted by legislation. For the purposes of this application, I do not know if it is necessary to accept that proposition in such expansive terms. In Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188 ( Hammond ), the issue arose as to the obligation of a witness before a Royal Commission to answer questions about a matter in relation to which he had been charged. Section 16(b) of the Evidence Act 1958 (Vic) made it an offence to refuse to answer any question on the subject matter of the inquiry. Section 29 of that Act removed the privilege against self-incrimination, but (like s 30(5) of the ACC Act) s 30 of that Act then prohibited the use of such answers in any civil or criminal proceedings against the person. Sections 6 and 6DD of the Royal Commissions Act 1902 (Cth) also apparently contained terms to much the same effect, as was later decided in Sorby v Commonwealth [1983] HCA 10 ; (1983) 152 CLR 281. ... [T]he fact that the plaintiff has been examined, in detail, as to the circumstances of the alleged offence, is very likely to prejudice him in his defence. Both their Honours expressed their conclusion as following from the fact that the answers may tend to prejudice an accused in the defence of the criminal charge. Brennan J reached the same conclusion, but on a somewhat wider basis. Having reached that view, his Honour at 207 addressed a contention on behalf of the Commonwealth that it had not been shown that the questions asked by the Royal Commission as to the plaintiff's involvement in the matters the subject of the criminal proceedings involved any substantial risk of serious injustice or serious prejudice to the plaintiff. His Honour rejected that contention because, he said, the fact that the proceedings were conducted in parallel with the criminal proceedings, that the Commonwealth was the prosecuting authority, that the answers were compulsory, and that the plaintiff would commit an offence by not answering such questions, were such as to "constitute injustice and prejudice to the plaintiff". The only point of clear distinction is that, in the present instance, the criminal prosecution is being conducted by the State of South Australia or one of its officers. I do not regard that as a relevant distinction because s 12(1) of the ACC Act contemplates the provision of certain information to the South Australia Police for the purposes of a prosecution. Senior counsel for the ACC submitted that the decision in Hammond is distinguishable from the present circumstances, and secondly and alternatively, that the ACC Act has by necessary implication qualified the principle established in that case, so that the applicant was obliged to answer questions directly relevant to the charge in any event. She also put the contention that, by reason of the remarks of Dawson J in Hamilton v Oades [1989] HCA 21 ; (1989) 166 CLR 486 ( Hamilton ) at 509, Hammond should be taken as an authority confined as narrowly as possible to its particular facts. The last mentioned submission was put, appropriately, cautiously. It is correct that, in Hamilton , Dawson J at 508-9 gave reasons why the decision in Hammond should not apply in respect of an examination of a director of a company under s 541(3) of the Companies Code (NSW) (with similar provisions now in s 596B of the Corporations Act 2001 (Cth)). However, the High Court did not there indicate that Hammond should not be followed. It is necessary that I should do so. Toohey J in Hamilton at 515 referred to the circumstance in Hammond that the questions were designed to establish that the plaintiff was guilty of the offence charged. See also the remarks of Toohey J in Huston v Costigan (1982) 45 ALR 559 at 563. The decision in Hammond has been considered in other decisions of this Court where there has been an examination conducted under the ACC Act which has been sought to be constrained. A v Boulton [2004] FCA 56 ; (2004) 204 ALR 598 ( Boulton ) concerned a challenge similar to the present one, but where no criminal charge had in fact been laid. Weinberg J regarded that as a significant point of difference from the facts considered in Hammond . His Honour was not satisfied that the applicant in that case was either charged with, or about to be charged with, a criminal offence. Nevertheless, his Honour agreed with the observations of Carr J in Mansfield v Australian Crime Commission [2003] FCA 1059 ; (2003) 132 FCR 251 ( Mansfield ) at 263, [65] that the ACC Act, by s 30 and in particular s 30(5), did not by necessary implication authorise the conducting of an examination in contempt of court. That decision was upheld by the Full Court: A v Boulton [2004] FCAFC 101 ; (2004) 136 FCR 420 (Beaumont, Dowsett and Kenny JJ), but it appears that the principal issue on the appeal was whether the privilege against self-incrimination had been abrogated by s 30 of the ACC Act: see at 430. The issue also arose in a slightly different guise in Hak Song Ra v Australian Crime Commission [2004] FCA 416 ; (2004) 138 FCR 51 ( Hak Song Ra ). The applicants, and others, had been charged with importing heroin, in contravention of provisions of the Criminal Code Act 1995 (Cth) and the Customs Act 1901 (Cth). At a committal hearing, on 5 March 2004, the applicants were discharged on the ground of insufficiency of evidence against them. An ACC special investigation had meanwhile commenced by resolution of the ACC Board. On the same day that the applicants were discharged, namely 5 March 2004, an examiner of the ACC issued summonses under s 28 of the ACC Act requiring the applicants to be examined. The Commonwealth Director of Public Prosecutions later informed the ACC and the applicants that there was no intention to institute further proceedings against the applicants. As the applicants were not the subject of concurrent criminal charges, Merkel J held that the principle explained in Hammond did not apply. The facts of the charges remaining against persons other than the applicants, or that the charges had been brought against the applicants, did not, as a matter of statutory construction, bring to an end the compulsive investigatory power. Commissioner of Taxation v De Vonk (1995) 61 FCR 564 ( De Vonk ) concerned an examination under s 264 of the Income Tax Assessment Act 1936 (Cth). The examination was to encompass matters in respect of which the respondent was facing criminal charges. The Full Court (Foster, Hill and Lindgren JJ) held that the legislature should not be taken by s 264 of the Income Tax Assessment Act 1936 (Cth), as fortified by ss 8C and 8D of the Taxation Administration Act 1953 (Cth), to have authorised the compulsory interrogation of persons in circumstances where that might interfere with the administration of justice. The submission of the Commissioner of Taxation on that issue is echoed to some degree by the submission on behalf of the ACC in this matter. It was there said the legislation, by necessary implication, required the respondent to answer questions directly related to the criminal charges because he could not rely on the "doctrine of contempt of court" (per Foster J at 569). Hill and Lindgren JJ at 588 expressed the question, as I prefer to do, as whether by the relevant legislative provisions the legislature intended the examination power to be used in circumstances where, so to do, might tend to constitute a real risk of interference with the administration of justice. That contention was rejected. It was also said that, although information obtained in the proposed examination could be provided to the prosecutor, the answers could not be used in evidence because they were given under compulsion. Nevertheless, it was conceded that there was a risk that the answers given to questions directly concerning the criminal charges would tend to incriminate the respondent and in so doing could interfere with the course of justice: see at 584 (per Hill and Lindgren JJ). Foster J at 569 emphasised that a Court has a right and an obligation to "protect the integrity of its operations and to prevent interference with its administration of justice". His Honour then considered the decision in Hammond . As to the reasons of Deane J in Hammond , Foster J at 571 made the same point as noted above at [39]. His Honour then agreed with the joint judgment of Hill and Lindgren JJ that the examination should not be permitted to inquire into matters directly the subject of the criminal charges (at 576). No question there arose as to whether, in fact, the proposed questioning would expose the respondent to a risk of self-incrimination and, in so doing, could interfere with the administration of justice. The existence of that risk was conceded: see per Hill and Lindgren JJ at 584. Furthermore, as noted by Foster J at 568, there was no undertaking proffered that the material obtained in the investigation would not be made available to the prosecution. In other words, the second matter raised by the ACC set out in [20] above did not arise in that case. Mansfield concerned the extent to which that applicant could be examined under ss 28 and 30 of the ACC Act on matters directly relevant to "confiscation" proceedings against him under the Criminal Property Confiscation Act 2000 (WA). (The examiner had ruled that questions directly relevant to certain criminal charges also laid against the applicant would not be the subject of questions at the examination. That position is clearly different from that now taken by the examiner in this matter. ) The "use immunity" available under ss 30(4) and (5) of the ACC Act, once the privilege against self-incrimination was invoked, expressly did not extend to "confiscation proceedings": see s 30(5)(c). Carr J concluded at 264, [73] that the examiner was not entitled to question the applicant on matters directly relevant to the confiscation proceedings where such questions might constitute a real or substantial risk of interference with the course of justice, in that case, the confiscation proceedings. However, his Honour declined to grant an injunction because he anticipated that the examiner, having had his ruling corrected, would comply with the Court's decision. He preserved liberty to apply in the event that the examiner's further questions might interfere with the administration of justice in the confiscation proceedings. In reaching that conclusion, Carr J at 262-3, [59]-[65] held that the ACC Act and, in particular s 30, did not by necessary implication authorise interference with the administration of justice. I respectfully agree with and adopt his Honour's reasons. It does not appear that the second issue now raised by the ACC as described at [20] above was considered in any detail in that case. Counsel for the ACC in that case argued that evidence given at the examination could be used in the confiscation proceedings, but is not noted as arguing that such evidence might not impair the administration of justice. The purpose of referring that matter for further consideration is not necessarily to preclude the applicant being required to answer such questions, but to ensure that the applicant's rights to legal professional privilege are protected and also to ensure that there is no interference with the administration of justice in the Confiscation proceedings. His Honour thereby appears deliberately to have left open that issue. ABC v Sage [2009] FCA 170 ( Sage ) concerned an attack, inter alia, on the legality of an examination summons under s 28 of the ACC Act. The summons contained a note that the applicant "will not be examined in relation to charges currently before the courts". At one point in the examination, that applicant objected to answering a question because it would reveal an element of his intended defence to the serious criminal charges laid against him. The examiner ruled that he must answer the question. The challenge relevant to the present matter was that, by obliging that applicant to answer the question objected to, the examination to that extent would tend to interfere in the administration of justice and was in contempt of court. That case clearly confronted the question whether, on the facts, there was a real risk that requiring answers to the question objected to would interfere with the administration of justice. The principle recognised in Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (No 2) [1982] HCA 57 ; (1982) 152 CLR 179 and applied in De Vonk was not in issue. In my view, the outcome in Sage turned upon its particular facts. Jessup J said at [21] that the applicant thereby supposed, or premised, that either or both of the prosecuting authorities in the criminal proceeding and the putative witness would become aware of the evidence before the examiner. In response, counsel for the examiner firstly relied upon the fact that the applicant had invoked the privilege against self-incrimination under s 30(4)(c) so that the use immunity under s 30(5) was enlivened, and secondly, relied upon the several confidentiality orders made by the examiner under s 25A(9), as well as the examiner having confined the persons present at the examination under s 25A(3). One direction made by the examiner under s 25A(9) was to the effect that the evidence given not be made available to the prosecuting authorities responsible for presenting the serious criminal charges against the applicant before the completion and final determination of those charges. The examiner also adduced evidence that the ACC had imposed tight administrative restrictions on those having access to the evidence, to give effect to the examiner's direction. Jessup J at [29] accepted that the effect of the directions made by the examiner under s 25A(9) and their implementation was, as a matter of fact, to eliminate any risk of interference with the administration of justice by the applicant being required to answer the question objected to. His Honour regarded s 25A(12) (set out at paragraph [24] above) as existing to serve the administration of justice, rather than to impede it by a Court prejudicing a fair trial by giving such a direction. In my judgment, the first contention of senior counsel for the ACC should be rejected. That is the basis of the decision in Mansfield . That case applied the well accepted principles discussed by the High Court in Sage and in Hammond , and applied by the Full Court of this Court in another context in De Vonk . There are considered dicta of Weinberg J in Boulton and of Merkel J in Hak Song Ra , consistent with the conclusion of Carr J in Mansfield . As Carr J said in that case, the issue is one of statutory construction. I have indicated that I respectfully agree with his Honour's reasons. It was not contended that it is expressly provided that an examination pursuant to an ACC special investigation or operation may interfere with the administration of justice. Clearly, the public interest in the due administration of justice, including the right to a fair trial, is balanced in the ACC Act by the public interest in the investigation of federally relevant criminal activity, defined to include serious organised crime, by the ACC. The ACC, by the composition of its Board and its functions, has a significant role to perform in the public interest. Section 25A(3) ensures that an examination is held in private, and s 25A(9) is intended to ensure --- subject to other relevant provisions of the ACC Act (a matter considered below) --- the safety or reputation of a person (not apparently confined to the witness) and the fair trial of a person (again, apparently not confined to the witness) who has been, or may be, charged with an offence. The balancing of interests is also apparent in ss 28 and 29A of the ACC Act. Section 28(1A) requires the examiner to be satisfied that it is reasonable in all the circumstances to issue an examination summons, and s 28(3) reflects a balancing of the interests of the public in the ACC appropriately investigating the federally relevant criminal activity with the interests of the proposed witness in being informed about the purpose of the examination. Section 29A also reflects an awareness that the disclosure of the summons may be detrimental to the special investigation or operation, but confines the circumstances in which non-disclosure may be imposed; section 29A(2) requires consideration of the safety or reputation of a person, the fair trial of a person, or the effectiveness of the operation or investigation. The only express qualification upon a witness' obligation to answer questions in an examination is in s 30 of the ACC Act, which abrogates the privilege against self-incrimination. It strikes a balance, by clear legislative intention, by the "use immunity" preserved in the circumstances catered for by subsections (4) and (5). It does not expressly cover the circumstance in which the witness, at the time of the examination, is charged with a criminal offence and where the examination relates directly to that offence so that there is a real risk that the administration of justice may be impaired because the witness may not secure, or the court hearing the charge may not provide, a fair trial. As was explained in Hammond , the public interest in the administration of justice is a central feature of our society. It is not a principle to be lightly qualified. Other provisions of the ACC Act, as noted, recognise that principle: ss 25A(9) and 29A(2). I do not consider that the obligation of a person to answer questions at an examination under s 30(2)(b), in the overall context of the ACC Act, impliedly qualifies that principle. There is an abrogation of the privilege against self-incrimination in s 30(4) and (5), which is described by Hill and Lindgren JJ in De Vonk at 579 as one of the "fundamental rights and freedoms". It is limited to its terms. It does not impliedly extend to the wider principle recognised, inter alia, in Hammond . Indeed, the careful expression of its terms indicates to the contrary. In Mansfield , at 262-3 [61]-[64], Carr J remarked on the curiosity that s 30(5)(c) carves out confiscation proceedings from the "use immunity", even though such proceedings may not be covered by the use immunity under s 30(5)(a) or (b). I agree with his Honour that that does not evidence a legislative intention to compel the answering of questions under s 30(2) where there is a real risk that such questions, or the answers, would interfere with the administration of justice. Section 30(5) generally explains or limits the use of certain answers given during an examination, predicated upon the making of a claim under s 30(4)(c) that the answers may tend to incriminate the person being examined. Its scope of operation is determined in that light. That is confirmed by the other carve out in s 30(5)(d)(i) which provides that use immunity is not available if the questions are answered falsely. Nor does s 25A(9), in the context of the ACC Act, including s 30, necessarily imply that the principle recognised in Hammond has been abrogated. Its function, as evidenced by its terms, is directed generally to preventing injustice in a range of circumstances. It is, moreover, not an absolute power to prohibit or restrict the publication of evidence. If it were, that may frustrate, in respect of evidence subject to such an order, the purposes of the special investigation or operation because information relevant to it would not be available to the head of the investigation or operation, or be subject to the CEO's overall responsibilities under the ACC Act, including s 12(1). I turn to the alternative proposition of the ACC referred to in [20] above. The question whether there is a real risk of interfering with the administration of justice is one of fact. In the present case it was not shown that the person who gave the notice had any intention to interfere with the course of justice, or that there was a real risk that the exercise of the powers under s 155 would in the circumstances have that effect. As noted above, that question of fact did not need to be the subject of a separate determination in De Vonk or in Mansfield . Sage appears to have been determined on that question of fact. In Hammond , the risk was apparent from the fact that it was proposed that the investigating officers in relation to the criminal prosecution would be present during the examination, and have access to the information it provided, directly relevant to the then outstanding criminal charges. CC v Australian Crime Commission [2005] FCA 754 involved an application for an interlocutory injunction seeking to restrain an examination because the person being examined was the subject of two criminal charges. That application was refused. It was not an application to restrain the examination limited to questions directly relating to the two criminal charges, but to restrain the examination itself whilst those charges were outstanding. Alternatively, it was an application to restrain the examination until the person being examined had access to the prosecution brief in relation to one of the charges, so that he could exercise his privilege against self-incrimination effectively (to the extent that it is not abrogated by s 30 of the ACC Act). As was noted at [10] in that case, there was an undertaking from the examiner that the person being examined would not be questioned on matters directly relating to either of the criminal charges. In addition, steps were proposed to be taken to inhibit or prevent access to any information obtained (that is, information not directly relating to the outstanding criminal charges) from the prosecuting authorities. In those circumstances, the application for interlocutory injunctive relief, which would have prevented incidentally the examination in its entirety, was refused. I do not consider that decision advances the position of the ACC in this matter. I have come to the view that there is, in the present circumstances, a real risk that questioning the applicant on matters directly relating to the charge may interfere with the administration of justice. There are two routes by which information arising from the examination, which is information directly relevant to the charge, may be made available to the prosecuting authorities. The first is by report of the CEO pursuant to s 12(1) of the ACC Act. It is unclear, and probably inappropriate for the Court to know, whether the special investigation involves examination of persons other than the applicant. Whilst it may be assumed that the applicant will claim pursuant to s 30(4)(c) that answers in response to questions directly relevant to the charge might tend to incriminate him, so that his own answers would not be admissible in relation to the charge, other evidence procured during the investigation may be admissible and be conveyed to the prosecuting authority pursuant to s 12(1). However, that is not the limit of the information flow to the prosecuting authorities. That is a provision which directs the CEO specifically to refer certain material to a relevant law enforcement agency or prosecuting authority. In conjunction with that power, the results of the special investigation, including the particular examination and other examinations, are assembled for the ACC to fulfil its functions. The Board of the ACC established under s 7B of the Act includes the head of the police force of each State. Ultimately, federally relevant criminal activity is to be investigated and considered by the Board not for its own sake, but for the sake of identifying such conduct and determining how it is to be combated, including under s 7C(1)(g) by the dissemination of law enforcement agencies' strategic criminal intelligence assessments. The secrecy provision in s 51 of the ACC Act operates upon each member of the Board and each member of the staff of the ACC "except for the purposes of a relevant Act or otherwise in connection with the performance of his or her duties under a relevant Act": see s 50(1)(ii). A member of the staff of the ACC is widely defined in s 4(1). A "relevant Act" is defined in s 51(4) to include a law of a State under which the ACC performs a duty or function or exercises a power in accordance with s 55A. It relevantly includes the ACC investigating a matter relating to a relevant criminal activity included in, or part of, serious and organised crime. It is apparent from the position taken by the examiner in this matter, namely a determination to pursue questions directly related to the charge, and to pursue those questions from the applicant who is the person charged, that the inquiry includes the subject of the charge. More widely, in other matters, as noted, the ACC through an examiner sometimes has indicated that it does not propose to ask questions of a person charged with a criminal offence which are directly relevant to that offence. Sometimes an undertaking not to do so has been proffered. Such indications or undertakings recognise that information obtained during an examination, if relevant to an existing criminal prosecution, may otherwise find its way to the prosecuting authorities. However, no such indication or undertaking has been proffered in this matter. The contrary is the case. Answers directly relevant to the charge, once procured and even if they are not admissible in evidence against the applicant by reason of the "use immunity" provided by s 30(5), may nevertheless provide information which may adversely affect the opportunity of the applicant to have a fair trial in relation to that charge. They may disclose details of the defence to the charge, so that the prosecutor may be able to anticipate and adduce evidence which would not otherwise have been available and procured to assist in establishing guilt. They may disclose other avenues of investigation to assist in proving guilt that would not otherwise have been available to the prosecution. They may disclose a source of evidence which can contradict the foreshadowed defence. They may disclose material, or lead to the identification of material, to cross-examine the applicant, in the event that he gives evidence. In my view, it is appropriate to apply the description of Deane J in Hammond referred to in [39] above to the present circumstances. The answers are given under compulsion, with the threat of a significant criminal sanction for failing to answer them. They are given on matters which directly relate to the charge. And they may find their way to the prosecuting authority for use in a way which may adversely affect the defence to the charge. Whilst it is true, as Finn J said in Barnes v Boulton [2004] FCA 1219 ; (2004) 139 FCR 356 at [47] , that the use immunity in s 30(5) puts an accused person in much the same position as if that person had not been compelled to answer the questions, his Honour also said, that outcome applies to a considerable degree and not absolutely. There is no assurance offered by the examiner that questions directly relevant to the charge would not be asked. The contrary is the case. Such questions are proposed to be put. There are no assurances by the examiner (even if such could be given, as to which I make no comment) that any non-publication orders made under s 25A(9) would continue notwithstanding the nature of the information procured, and notwithstanding its significance to the special investigation, either in the short term or in the longer term, or its significance to the head of the special investigation or to the CEO, and the use to which they respectively put such information, according to their respective responsibilities or powers under the ACC Act. Senior counsel for the ACC finally submitted that there are competing public interests, namely the administration of justice and the public interest in the continuation of the special investigation, and that there should be a balancing of these competing interests before granting the relief sought. That is a matter relevant to whether the ACC Act by necessary implication authorises questions, and obliges answers, in respect of which there is a real risk of interfering with the administration of justice. I have determined that matter adversely to the ACC's contention for the reasons expressed above. I do not consider that, having rejected the primary contention of the ACC, that there is a further discretion to be exercised along the lines contended for by the ACC, but in any event, in the present circumstances, I would not exercise any such discretion in favour of declining to grant the injunctive relief proposed. Unlike the circumstances in De Vonk and Mansfield , the factual material indicates clearly the intention of the examiner to ask questions directly relevant to the charge whilst the charge is outstanding against the applicant. No undertaking not to do so has been proffered. Whilst there is some risk of further debate as to whether a particular question or questions may be directly relevant to the charge, it is to be noted that the present application arose only where a question which required, in answer, material directly relevant to the charge was raised. An injunction restraining the examiner from asking questions directly relevant to the charge does not generally impede the special investigation. Nor does it, on the evidence, impede the examination except to a limited extent. There is nothing to indicate that it would significantly impair the special investigation. The time of the hearing of the charge is not disclosed in the material. If the charge is heard, either by plea or trial, the applicant may be further examined in the course of the special investigation to answer questions directly relating to the charge. The ACC should pay the applicant's costs of the application. I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

summons issued under australian crime commission act 2002 (cth) (the acc act) applicant attended for examination examiner asked questions directly relevant to charges laid against applicant in state court whether examiner can require applicant to answer questions that directly relate to subject matter of charges whether would involve a real risk of interference with the administration of justice whether the acc act, by necessary implication, has provided that there should be no constraint on the examiner's questions administrative law

The application before the Federal Magistrate sought judicial review of a decision of the Refugee Review Tribunal ("the Tribunal") of 5 November 2004, handed down on 2 December 2004. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant. 2 The applicant is a citizen of India who arrived in Australia on 16 May 2004. Before the Tribunal, he claimed to fear persecution because of his political opinion. His claims of persecution were mainly founded on his involvement in a political party, the Puthiya Tamilagam ("PT"). He claimed the PT sought equal rights regardless of caste, and the he belonged to the Parayan caste which was one of the lower castes. Due to his involvement in the PT, he claimed to have been attacked by members of rival parties and to have been detained and mistreated by state authorities. He claimed also to have been mistreated at school due to his caste. 3 The Tribunal was not satisfied that the harassment the applicant suffered at school amounted to persecution. The Tribunal did accept that he had had some involvement in the PT, and that there was more than a remote chance of persecution if he returned. However, having regard to the applicant's education and language abilities, it found that it would be reasonable for him to relocate within India. Further, it was not satisfied that the applicant was of such interest to those in his home town that he would be traced to elsewhere in India, nor that his convictions were so strongly held that he might come to the adverse attention of authorities elsewhere. 4 The applicant filed an application for review on 13 December 2004, and an amended application was filed on 22 March 2005. That application claimed that the Tribunal failed to comply with s 424A(1) and s 418 of the Migration Act 1958 (Cth), failed to consider whether the Indian government could provide protection, and failed to provide the applicant natural justice. On the day of the hearing, 27 October 2005, the Federal Magistrate dismissed the application on the ground of non-appearance by the applicant, pursuant to Rule 13.03A(c) of the Federal Magistrates Court Rules . On 14 November 2005, the applicant applied pursuant to Rule 16.05 to set aside the order of dismissal, and that application was heard and decided on 2 December 2005. 5 Nicholls FM refused his application to set aside the order dismissing the application because his Honour considered that the applicant's explanation for his non-attendance at the hearing was unsatisfactory. The applicant had explained that he was sick, but had apparently not attempted to notify the Court, and had provided no documentary evidence to support his explanation. 6 Nicholls FM also considered each ground raised by the applicant in his amended application, finding that none had been made out. His Honour indicated that it would be futile to set aside his earlier order of dismissal. For present purposes, it does not matter whether the application should be to extend time to apply for leave to appeal. 7 The application for an extension of time to appeal was filed in this Court on 9 February 2006. The draft notice of appeal, filed together with the application, merely stated: "I said the problems in Federal Magistrates Court of Australia but they did not consider and reject my application so I kindly request you to consider in the Federal Court of Australia. " An affidavit filed by the applicant on the same day apparently sought to explain the applicant's delay in filing a notice of appeal by stating that the applicant did not receive the Federal Magistrate's decision until 25 January 2006. 8 On the day of the hearing in this Court, there was no appearance for the applicant. An affidavit has been filed on behalf of the Minister indicating that the applicant has in fact left Australia, having departed on or about 4 March 2006. In the circumstances, it is appropriate that the application be dismissed for want of prosecution, as proposed by the Minister. The application for an extension of time is dismissed, and the applicant is to pay the first respondent's costs which are fixed in the sum of $500. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

no point of principle migration

2 Considerable correspondence has passed between the solicitors for the parties in relation to discovery and aspects of the answers to interrogatories with the result that no order is now sought for further discovery. On 19 September 2006 the Applicants' solicitors provided the Respondents' solicitors with further answers to interrogatories sworn by each of the Applicants. The Respondents, however, press for an order that each Applicant provide a further answer to interrogatory no 9 and that the First Applicant provide further answers to interrogatories numbered 38 to 41. 9, I say that the first time that I learned that the footage of me talking about my sexual relationships and/or sexual activities had been included in the documentary was after the release of the documentary. In or about December 2000 I saw the documentary on a copy of the video that was sent to my mother by O'Rourke. 9, I say that I first learned that the footage of me talking about sexual relationships and/or sexual activities had been included in the documentary when I watched a video of the documentary that had been sent to me whilst I was living in Brisbane by my father in or around January 2001. 7 As to Taccara Hearn, the contention is that Dennis O'Rourke represented that he wished to feature her in the documentary as an entrant in the 'Miss Maid Contest', document her involvement in the contest, would not canvass other matters, and would not publish any interview about any other matter without first seeking her consent or that of her guardian. 8 Taccara Hearn was 13 years of age at the time. 9 As to Kellie Allardice, the contention is that Dennis O'Rourke represented that; he wished to interview her for the documentary concerning her views about racism in the township of Cunnamulla as an aspect of engagement between black and white communities; he wished to do so without the presence of any other adult; he would not canvass other matters; and he would not publish in the documentary any interview with her concerning any other matter without first seeking her consent or that of her guardian. 10 In October 1998, Kellie Allardice was 15 years of age. 11 The Applicants further contend that Dennis O'Rourke represented to them that he would not publish in the documentary information given by them concerning their sexual relationships and activities. In particular, the Applicants contend that the First Applicant asked Dennis O'Rourke in the course of an interview of both Applicants whether questions concerning the involvement of the Applicants with boys would form part of the documentary. The Applicants contend that Dennis O'Rourke said that responses to such questions would not form part of the documentary. 12 The Applicants further contend that in reliance upon the various representations, Margaret Hearn and Bruce Allardice respectively gave permission for each child to be interviewed and each Applicant responded to questions asked of them concerning the nature and extent of their sexual conduct in Cunnamulla, and continued to answer such questions. 13 The Applicants contend that the representations were false and constitute contraventions of the Trade Practices Act 1974 (Cth). The Applicants further contend that the conduct on the part of the Respondents constitutes breaches of an obligation of confidence owed to each Applicant and an invasion of each Applicant's privacy. 14 The Respondents deny the scope of the representations. The Respondents contend that representations were made to Margaret Hearn and her family that filming for the documentary would cover many aspects of their family life, challenges and difficulties over an extended period, and that the First Respondent was interested in filming the First Applicant because she had dropped out of school and was leading life 'on the wild side'. The contention concerning limitations on questions about other matters, seeking prior approval, etcetera, are denied. Similarly, the Respondents deny any limitations upon the scope of the interview with the Second Applicant and deny any representations other than that Dennis O'Rourke was a filmmaker and was making a documentary about the township of Cunnamulla. 15 The Respondents deny that any representation was made to the Applicants that the Second Respondent would not publish information given to Dennis O'Rourke concerning the sexual relationships and sexual activities of either Applicant, and, in consequence, the Respondents deny that responses to questions concerning that topic were given by each Applicant in reliance upon such a representation. 16 Although the Respondents concede that Dennis O'Rourke did not 'specifically tell' Taccara Hearn or Margaret Hearn that he intended to interview Taccara Hearn about her sexual activity and sexual conduct, nor Kellie Allardice or Bruce Allardice of his intention to ask Kellie Allardice about such matters, the Respondents contend that the subject of the sexual activity and sexual conduct of these two girls in the Cunnamulla community fell within the 'broad spectrum of issues' Dennis O'Rourke indicated that he was interested in talking about. By para 17(b) of the Defence of the Respondents filed 23 August 2005, the Respondents admit that ' the First Respondent spoke to the Applicants about sexual matters on some three or four occasions towards the end of 1998 but did so following the Applicants volunteering to talk about those matters, which they proceeded to do willingly '. 17 The trial of the action has been set down for five days commencing on 27 November 2006. Because the issues in controversy between the parties involve questions of credit, no order has been made that the trial proceed on affidavit. 18 In the context of these issues raised on the pleadings, an order was made that the Applicants provide answers to particular interrogatories. On 28 April 2006, Taccara Hearn was ordered to file answers to interrogatories by 5 May 2006 and Kellie Allardice was ordered to file answers by 12 May 2006. On 6 July 2006, the Respondents raised at a directions hearing, questions as to the adequacy of answers on the part of both Applicants to particular interrogatories. The Applicants agreed that they would file further answers. 19 On 9 August 2006, the Respondents filed the present Motion. In the period between 9 August and the hearing of the Motion on 20 September 2006, various exchanges took place between the parties. The Applicants contend that interrogatory no 9 has been answered correctly by each of them. The First Applicant contends that her answers to interrogatories 38, 39, 40, and 41 are properly answered. 20 The Respondents say that interrogatory no. 9 has not been properly answered because the answer is not responsive to the question. The question seeks to elicit as a matter relevant to the issue concerning the topics to be addressed by Dennis O'Rourke in the course of the interview of the Applicants for the documentary, when did each Applicant 'first learn' that footage of Dennis O'Rourke asking questions about sexual conduct on the part of the respective Applicant 'would be' included in the documentary. Each response is said to be unresponsive because the answer identifies the moment in time when each Applicant first knew (in December 2000 after the release of the documentary in the case of Taccara Hearn, and in January 2001 in the case of Kellie Allardice) that the documentary actually included footage of each Applicant talking about sexual conduct. 21 The Respondents seek an answer to an earlier point on the continuum. The solicitor for the Applicants, Mr Black, says that the question has been answered, because the answer also reflects the point at which each Applicant first knew that the documentary 'would contain' such information. Mr Black says the Applicants had 'no knowledge' that these matters would be in the documentary because they first learnt of the fact of the subject matter within the documentary when they first saw the footage. 23 It seems to me that the answer is not, in terms, responsive to the question although the explanation of the answer seems to convey the position adopted by each Applicant. Nevertheless, since each Applicant contends that she did not know that the documentary 'would contain' material concerning her sexual conduct (that is, an understanding as to the future content of the documentary, at least as to that topic), each applicant ought to file and serve a further answer to interrogatory no 9 expressly dealing with that contention. 24 A further contention is this. All media inquiries before and after any legal action against the producer and distributor of the film "Cunnamulla" are to go through Stephen Hagan. In other words, the Respondents contend that by force of the authority, Mr Hagan speaks for the claimants as agent and with their authority. 26 The conduct of Mr Hagan is also said to go to damages. Accordingly, the Respondents seek to elicit an admission as to the authority of Mr Hagan by compelling a responsive answer to interrogatories 38-41 from the First Applicant, Taccara Hearn. It should be remembered that the role of a proper interrogatory is to facilitate proof of the adversary's case and to save expense, but the Court will not allow interrogatories of an oppressive nature. Did you, or anyone acting on your behalf, give permission for media inquiries before and after the commencement of any legal action against anyone associated with the documentary "Cunnamulla" to go through a particular person? In answer to interrogatory no. 38, I say that neither myself nor anyone acting on my behalf engaged any person other than a lawyer to represent me in relation to the taking of legal action against any person. What did occur was that my mother, Margaret Hearn at some point took the video of the documentary to the Aboriginal Legal Service and sought advices about its contents. A representative of the Aboriginal Legal Service apparently forwarded the video on seeking advices in relation to it. Not hearing back from the Aboriginal Legal Service for some time, when my mother came upon Stephen Hagan who was an old friend from Cunnamulla and a local ATSIC Regional Councillor she told him about the documentary and the delay by the Aboriginal Legal Service and he agreed to assist in finding legal representation. In light of my answer to interrogatory no. 38, I say it is not necessary for me to answer this interrogatory. In answer to interrogatory no. 40, I say that my mother and I did give permission for media inquiries to go through a particular person. In answer to interrogatory no. (c) The person who received the permission to deal with the media was Stephen Hagan. Notwithstanding the matters referred to in the Respondent's interrogatories dated 5 July 2006, I say that any answer to interrogatories no 40 and 41 do not require further clarification. The answer to the question posed by interrogatory no 38 is that neither Taccara Hearn or anyone acting on her behalf engaged any non-lawyer to represent her in relation to taking legal action against any person although Margaret Hearn (supported by the signature of Taccara Hearn) on 13 February 2001 did engage Stephen Hagan, a non-lawyer, to assist her and Taccara Hearn to secure the services of a lawyer with the result that the services of Drakopoulos Black were secured. 31 The answer to the question posed by interrogatory 40 is that Margaret Hearn (supported by Taccara Hearn) authorised on 13 February 2001 media inquiries to 'go through Stephen Hagan' and the scope of the permission is recited at para [24] (answer no 41(b), 3 April 2006). It seems to me that the conjunction of the answers to interrogatories of 3 April 2006 and 25 August 2006 provide responsive answers to the interrogatories. It may be that those answers will be the subject of contradiction by direct evidence, or alternatively, by reference to inferences drawn from secondary facts, or perhaps the subject of controversy in terms of the construction of particular documents. However, the answers given by the First Applicant are responsive to the questions put. 32 Accordingly, I do not propose to make any further orders in relation to the answers given to interrogatories no 38 to 41 of the answers to interrogatories. The first concerned matters of discovery which were to be taken up in correspondence between the solicitors for the parties and the second concerned objections to the adequacy of answers by each Applicant to particular interrogatories (interrogatories 38-41 in the case of Taccara Hearn and interrogatories 51, 52, and 53 in the case of Kellie Allardice). 34 Counsel for the Respondents also discussed with Mr Black on behalf of the Applicants the adequacy of the answer by each Applicant to interrogatory no 9. 35 Those matters seem to have been resolved on the basis that the Applicants would provide further answers to interrogatories. 36 The discovery issue concerned the question of whether Mr Stephen Hagan held documents relevant to the issues in the proceeding, and, if so, whether Taccara Hearn had an obligation to disclose those documents as documents in her possession or control on the footing that any such documents were held by Stephen Hagan as Taccara Hearn's agent. 37 By 9 August 2006, the solicitors for the Respondents had not received any further answers to interrogatories nor a response to a letter dated 10 July 2006 to the solicitors for the Applicants. On 9 August 2006, the Notice of Motion was filed by which orders were sought for further discovery on the part of the Applicants and further answers by the Applicants to particular interrogatories. 38 On 21 August 2006, the solicitors for the Applicants provided the solicitors for the Respondents with draft unsworn versions of the further interrogatories. A sworn version of the further answers by each Applicant was provided on 19 September 2006. Ultimately, the discovery matter was not pressed. Further answers to interrogatories were provided by the Second Applicant on the day prior to the hearing of the Motion. 39 The Respondents have not persuaded me of any inadequacy in the answers to interrogatories 38-41 on the part of the First Applicant, although I am satisfied that the answer on the part of each Applicant to interrogatory no 9 requires a further answer. I accept that the application has been made necessary by the failure on the part of the Applicants to provide further answers to interrogatories consistent with the commitment the Applicants made at the directions hearing. 40 However, because the Respondents abandoned that part of the Motion dealing with discovery and were unsuccessful in respect of the challenge to the answers by the First Applicant to interrogatories 38-41, I propose to order that the Applicants in the proceeding pay 40 per cent of the costs of and incidental to the Notice of Motion filed on 9 August 2006 by the Respondents in the proceeding.

consideration of an application for an order for the provision of further answers to interrogatories practice and procedure

The notice requires Optus to produce '[a]ny documents containing or recording the legal advice referred to in [the Project Alchemy Board Paper]'. The notice to produce was issued in the course of the trial, which has thus far consumed some seventy-three hearing days. 2 The Project Alchemy Board Paper ('Alchemy Paper') was placed before the board of the twenty-second respondent ('SingTel Optus') at its meeting on 21 February 2002. Prior to that meeting, Optus and the applicants had agreed, on two separate occasions, to vary the terms of the Optus Channel Supply Agreement ('OCSA'), which the parties had entered into on 30 June 1998. Under the OCSA, the applicants had agreed to supply the sixteenth respondent ('Optus Vision'), a retail pay television provider, with sports programming. The OCSA was expressed to be for a term expiring on 31 December 2008, subject to early termination in certain circumstances. 3 The variations to the OCSA agreed to between the parties included the insertion of cl 8A. This clause, as further amended, provided for an 'exclusivity period' from 27 September 2001 to 28 February 2002, during which Optus was not to participate in discussions or negotiations on certain matters with any party other than the applicants. 4 The Alchemy Paper includes a section headed 'Legal Risks'. C7 might immediately terminate those arrangements (therefore leaving Optus without sport content for up to 6 weeks) and/or seek damages. Optus will defend vigorously any claims brought by C7. Our legal advice is that the risk of damages being awarded against Optus is low. ' (Emphasis added. 6 Optus discovered the Alchemy Paper to all parties in the proceedings on 19 March 2004. Unmasked copies of the document in electronic form were provided to the other parties, including the applicants. The motion has been addressed on the basis that Optus made no claim for privilege in respect of any part of the Alchemy Paper. 7 Optus subsequently discovered a document which apparently contains the legal advice referred to in the Alchemy Paper. However, this document is subject to a claim for privilege. 8 At the time the Alchemy Paper was provided to the applicants, the Statement of Claim filed in the proceedings did not include any claim based on cl 8A of the OCSA or on any related misleading or deceptive conduct. The applicants added these causes of action to the pleadings by amendments made in the second half of 2004. 10 Optus accepts that its disclosure of the Alchemy Paper in unmasked form to the applicants waived any client legal privilege that otherwise would have existed in respect of the communication contained in the Alchemy Paper itself. 11 Mr Bannon argued energetically that the common law test of waiver applies in the circumstances of this case, notwithstanding the provisions of s 122 of the Evidence Act 1995 (Cth). I am content to deal with the application to set aside the notice to produce on the basis that, as Optus contends, common law principles apply. 12 On that basis, however, it seems to me that Optus has waived privilege in the legal advice referred to in the Alchemy Paper. The waiver has come about because Optus has voluntarily disclosed the gist or conclusion of the legal advice recorded in the document identified in the Alchemy Paper. 13 In Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237 ; (2004) 140 FCR 101, legal representatives of the Australian Customs Service ('Customs') stated that they had given advice to Customs that a particular regulation did not prohibit all public comment by an officer on matters of public administration. Gyles J, with whom Tamberlin J agreed, considered that the primary Judge had erred in drawing a distinction between the conclusion expressed in legal advice, on the one hand, and the reasons for that conclusion, on the other. This distinction had led the primary judge to the incorrect holding that disclosure of the conclusion did not involve disclosure of the reasons (at [62]). 14 Gyles J referred to a number of authorities supporting the proposition that a party who expresses a particular legal conclusion and asserts that it has received legal advice endorsing that view, will be taken to have waived privilege in the legal advice. The primary judge was in error in drawing a distinction between conclusion and reasoning in the context of such a disclosure. However, Gyles J considered that the test had been misunderstood, at least in part. It is not a matter simply of applying general notions of fairness as assessed by the individual judge. The authorities to which I have referred show that it is well established that for a client to deploy the substance or effect of legal advice for forensic or commercial purposes is inconsistent with the maintenance of the confidentiality that attracts legal professional privilege. Tamberlin J pointed out that in these circumstances, the substance of the advice is not disclosed, but only the fact that some advice had been given and had been considered. The whole point of an advice is the final conclusion. However, if the conclusions and reasoning are so interconnected that they cannot be separated or isolated, then it may be that the whole of the advice on which all those conclusions are based, must be considered to have been waived. However, Gyles J specifically stated that Mann v Carnell had not implicitly overruled the line of authority upon which he relied in reaching the conclusion expressed in [65] of his judgment (see par 14, above). His Honour pointed out that the question in Mann v Carnell was whether a particular kind of limited disclosure had waived client legal privilege. He considered that the reasoning in that case cast no doubt on the principles to be applied where disclosure is made by one party to a dispute to the other party, in the absence of any special arrangements as to confidence (at [66]). 18 The principle stated in Bennett v CEO, was applied by Sundberg J in Rio Tinto Ltd v Commissioner of Taxation (2005) 224 ALR 299. In that case, the Commissioner produced, in response to an application under the Freedom of Information Act 1982 (Cth), an audit report. The audit report stated that the Commissioner would be relying upon certain specific grounds 'supported by ... opinions obtained from counsel. Mr Sheahan SC, on behalf of the applicants, accepted that if Optus claims that privilege in parts of the legal advice has not been waived because those parts relate to discrete issues, it may be appropriate for Optus to have an opportunity to test that claim. However, in that event, given my role in the substantive proceedings, it will be necessary for another Judge to inspect the legal advice in order to rule on Optus' claims. 20 For the reasons I have given , subject to what is said in the previous paragraph, I consider that any privilege in the legal advice referred to in the Alchemy Paper has been waived by Optus. The waiver, in my view, extends to legal advice on any of the issues identified in par 5, above. Accordingly, Optus' motion must be dismissed.

whether discovery of a document recording conclusion stated in legal advice waives privilege in the advice practice and procedure