Annual report 1998-1999 chapter 2 the work of the court

Chapter 2
The Court's jurisdiction is broad, covering almost all civil matters arising under Australian federal law and somesummary criminal matters. Cases arising under Part IV (restrictive trade practices) and Part V (consumer protection)of the Trade Practices Act 1974 constitute a significant part of the workload of the Court. These cases may raiseimportant public interest issues involving such matters as mergers, misuse of market power, exclusive dealing orfalse advertising. Other cases may only concern the immediate parties. See Figure 6.6 on page 113 for comparativestatistics regarding Trade Practices matters.
Administrative law is an important area of jurisdiction. Many cases arise under the Administrative Decisions(Judicial Review) Act 1977. This Act provides for judicial review of most administrative decisions made underCommonwealth enactments on grounds relating to the legality, rather than the merits, of the decision (see Table 6.4on page 120 for a list of some of the enactments under which decisions have been made). Many cases also ariseunder the Administrative Appeals Tribunal Act 1975 which provides for a review on the merits by theAdministrative Appeals Tribunal of many Commonwealth administrative decisions, and which also provides for aright of appeal from the Tribunal to the Court on questions of law. The Court has jurisdiction under the MigrationAct 1958 to hear appeals for judicial review of decisions of the Immigration Review Tribunal (up to its abolition on31 May 1999) and the Refugee Review Tribunal. See Figure 6.7a on page 116 for comparative statistics regardingMigration Act matters.The Federal Parliament is considering legislation which will give the Court jurisdiction tohear appeals for judicial review of decisions of the Migration Review Tribunal (which replaced the ImmigrationReview Tribunal).
The Court hears taxation matters on appeal from the Administrative Appeals Tribunal, mostly concerning incometax and sales tax. It exercises a first instance jurisdiction to hear objections to decisions made by the Commissionerof Taxation.
The Court shares first instance jurisdiction with the Supreme Courts of the States and Territories in the complex areaof intellectual property (copyright, patents, trade marks and designs). All appeals in these cases, including appealsfrom the Supreme Courts, are to a Full Federal Court.
Part of the Court’s jurisdiction derives from the Native Title Act 1993. In September 1998 this Act was amendedto provide that new applications for determination of native title or compensation be made to, and determinedby, the Court, and for existing applications filed with the National Native Title Tribunal to be transferred to theCourt. Under s 81 of the Act, the Court has jurisdiction to hear and determine applications lodged with the Courtunder ss 61 and 69, namely native title determination applications, revised native title determinationapplications, compensation applications, claim registration applications, applications to remove agreementsfrom the Register of Indigenous Land Use Agreements and applications about the transfer of records. The Actprovides for the Court’s way of dealing with native title matters. In particular, the Act provides that the Court isbound by the rules of evidence, except to the extent that it otherwise orders (s 82(1)), and that the Court maytake account of the cultural and customary concerns of indigenous people, but not so as to prejudice unduly anyother party to the proceedings (s 82(2)). The Court also hears matters filed under the Administrative Decisions(Judicial Review) Act involving native title, and appeals from the Tribunal.
Another important part of the Court's jurisdiction derives from the Admiralty Act 1988. The Court has concurrentjurisdiction with the Supreme Courts of the States and Territories under this Act to hear maritime claims. Shipscoming into Australian waters may be arrested for the purpose of providing security for money claimed from shipowners and operators. If security is not provided, a judge may order the sale of the ship to provide funds to pay theclaims. During the reporting year the Court ordered the judicial sale of the deep sea fishing vessel “Aliza Glacial”subsequent to its arrest by the Admiralty Marshal. After Court ordered payments to some of the parties and thepayment of costs associated with the arrest and sale of the vessel, the Marshal paid the balance of the proceeds of thesale to a creditor of the vessel. See Figure 6.8 on page 117 for a comparison of Admiralty matters filed in the pastfive years.
The Court's jurisdiction under the Corporations Law covers a diversity of matters ranging from the appointment ofprovisional liquidators and the winding up of companies, to applications for the orders available in relation tofundraising, corporate management and misconduct by company officers. This jurisdiction is exercised concurrentlywith the Supreme Courts of the States and Territories. Amendments to the Federal Court of Australia Regulations,changing fees and introducing a number of new fees have resulted in a reduction in the number of Corporations Lawmatters commenced in the Court, and in particular, matters relating to the winding up of companies. See Figure 6.5on page 111 for a comparison of current Corporations Law matters filed in the last five years.
The Court exercises jurisdiction under the Bankruptcy Act. It has power to make sequestration (bankruptcy) ordersagainst persons who have committed acts of bankruptcy and to grant bankruptcy discharges and annulments. TheCourt's jurisdiction extends to matters arising from the administration of bankrupt estates. The BankruptcyLegislation Amendment Act 1996, which amended the Bankruptcy Act, commenced on 16 December 1996. Theeffect of the amendment was to transfer many of the administrative functions performed by the Registrars inBankruptcy to the Insolvency and Trustee Service, Australia. The functions transferred included the acceptance ofdebtors’ petitions and the issuing of bankruptcy notices. The office of Registrar in Bankruptcy was abolished uponthe commencement of the Bankruptcy Legislation Amendment Act.
The Court has a substantial and diverse appellate jurisdiction. It hears appeals from decisions of single judges of theCourt and also exercises general appellate jurisdiction in criminal and civil matters on appeal from the SupremeCourt of the Australian Capital Territory and the Supreme Court of Norfolk Island. Appeals on points of law fromthe Administrative Appeals Tribunal are within the original jurisdiction of the Court. Figure 6.9 on page 118provides statistical information concerning the number of Full Court appeals .
This summary refers only to some of the principal sources of the Court's work. Other matters heard by the Courtrange from cases involving anti-dumping notices, tariff concession orders, to cases arising under Commonwealthanti-discrimination legislation. Statutes under which the Court exercises jurisdiction are listed in Appendix 5 on page100.
New jurisdiction
The Court's jurisdiction during the year was enlarged or otherwise affected by several statutes including: Australian Radiation Protection and Nuclear Safety Act 1998 National Environment Protection Measures (Implementation) Act 1998 National Transmission Network Sale Act 1998 Financial Sector (Transfer of Business) Act 1999 Wool International Privatisation Act 1999. Federal Court Rules and Practice Notes
The judges are responsible for making the Rules of Court under the Federal Court of Australia Act. The Rulesprovide the procedural framework within which matters are commenced and conducted in the Court. The Rules ofCourt are made as Commonwealth Statutory Rules. The Rules are drafted by the Judges' Rules Committee with theassistance of a Deputy Registrar. An officer of the Office of Legislative Drafting within the Attorney-General'sDepartment assists with the form and publication of the new Rules.
The Rules are kept under review. New and amending rules are made when needed to ensure that the Court'sprocedures are up to date and responsive to the needs of modern litigation. They also provide the framework for newjurisdiction conferred upon the Court. A review of the Rules will be undertaken as a consequence of the changes tothe Court's practice and procedure described elsewhere in this report.
During the reporting year, new rules to coincide with the changes to the Court’s jurisdiction under the Native TitleAct were made. New rules were also introduced in relation to expert witnesses, and Court appointed referrals forlegal assistance. Minor amendments were made to a number of other rules.
Practice Notes supplement the procedures established in the Rules of Court. During the reporting year the ChiefJustice issued a revised Practice Note on the ‘usual undertaking as to damages’ given to the Court. He also issued anew Practice Note setting out the Court’s approach to orders for discovery.
Practice Notes are available without charge through District Registries. They have been reproduced in looseleafservices by law publishers. The Court has also published a guide to instituting an appeal in the Federal Court andvarious notices to practitioners issued by the District Registries. These are also available from the District Registriesand in looseleaf legal services.
Rules Revision Project
In September 1998 the Judges’ Meeting established a project to revise the Court’sRules. The goals of the project are that the Court have Rules which: promote efficiency in the administration of the law; complement and reflect the Court’s case management philosophy and systems; take into account current and future advances in information technology (eg facsimile The revised Rules will contain a preamble in the nature of a statement of overriding objectives, and will, wherepracticable, not use legal jargon or Latin terms. Work on the project is continuing.
During the year the judges published over 1,800 decisions. To give some illustration of the Court’s work, a fewof these decisions are summarised below. The range of decisions highlights the varied jurisdiction of the Court.
Native title – Recognition of native title in the sea and sea-bed
Yarmirr & Ors v Northern Territory & Ors (the Croker Island Case)
(6 July 1998, Justice Olney)
This case involved a determination whether native title was capable of recognition in the sea and sea-bed incertain offshore areas in the vicinity of Croker Island in the Northern Territory.
The applicants, who were members of the Mandilarri-Ilduglara, Murran, Gadura, Minaga and Ngaynjaharrpeoples, applied under s13(1)(a) of the Native Title Act (“the Act”) for a determination that they held native titlerights and interests in the seas in the Croker Island region of the Northern Territory. The claimant group assertedthat, by their traditional laws and customs, they had the right to exclusive possession, occupation and use andenjoyment of the sea and sea bed in the claimed area.
Justice Olney determined that native title existed in the sea and sea bed in the claimed area and that native titlewas held by the Aboriginal peoples who are the yumummuru members of the Mandilarri-Ildugij, Mangalara,Murran, Gadura-Minaga and Ngaynjaharr clans. In so doing, his Honour rejected the Commonwealth’scontention that native title was not capable of being recognised and protected under the Act in respect of the sea,sea-bed, subsoil and airspace above the seas and reefs beyond the limits of the Northern Territory. Justice Olneystated that in confirming the application of the Act to the coastal sea and extending its effects to all waters overwhich Australia asserts sovereign rights, Parliament had indicated a specific intention to provide a statutorybasis for native title offshore.
Justice Olney concluded that although the claimant group fished, hunted for and caught dugong and collectedoysters and various crustacea in the claimed area, there was not evidence to support any traditional claim to the use and control of any of the resources of that area. Similarly, there was held to be no evidence that anytraditional law or custom of the claimant group related to the acquisition or use of, or trading in, minerals foundon or in the sea bed or subsoil of the waters of the claimed area.
His Honour rejected the claim of exclusive possession in respect of the claimed area but determined that theclaimant group was entitled, in accordance with traditional laws and customs to fish, hunt and gather within theclaimed area to satisfy personal and communal needs and to have access to and travel within the claimed areafor those purposes of observing or protecting cultural, ritual and spiritual laws and customs. The claim forexclusive possession was also held to fail as it was said to infringe the right of innocent passage of ships whichAustralia was obliged to recognise and enforce under international law. Exclusive possession was also held to beinconsistent with the public right of navigation and the public right to fish each of which was held to be a‘skeletal’ principle of the legal system to which native title was subordinated.
His Honour held that the native title rights that had been established were capable of coexistence with theNorthern Territory and Commonwealth fisheries legislation as such regulations were not indicative of anintention to extinguish non-exclusive non-commercial native title which had been established. Nor did thefishing legislation create third party rights that were inconsistent with that title. Thus, the native title rights hadbeen regulated, but not extinguished, by prior legislative enactments or administrative action.
This matter is the subject of an appeal to the Full Court of the Federal Court.
Patents – Naturally occurring drug with well-known anti-cancer properties – whether

Bristol-Myers Squibb Company V FH Faulding & Co Ltd
(22 July 1998, Justice Heerey)
This case concerned two petty patents in respect of the administration of the drug Taxol, a naturally occurringcompound sourced from the bark of the western or Pacific yew tree. A petty patent confers protection for 12months from the date of grant (extendable to a total of 6 years) and is designed to provide a rapid, enforceablemonopoly right in respect of inventions predicted to have a relatively short commercial life. In this matter thepatents claimed a method of administration of Taxol which allows administration in a short time frame, withresultant advantages for patient care. Taxol had been known, since at least the late 1960s, to be effective in thetreatment of cancer.
Bristol-Myers, the applicant, was the registered proprietor of the petty patents. It commenced proceedingsagainst the respondent alleging infringement. The Respondent cross-claimed, seeking revocation of the pettypatents on a number of grounds.
The Court held that the patents should be revoked on the following grounds.
The patents were not an “invention” within the meaning of the Patents Act 1990. Taxol itself was anaturally occurring substance and was, therefore, unpatentable. In addition, the patents were sought forthe administration of a substance which was already well-known as an effective anti-cancer agent. Inthese circumstances the necessary quality of inventiveness was absent.
The patents were not sought for a method of manufacture within the meaning of the Patents Act. While amajority of the Full Court in Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 had expressedthe view that a method of medical treatment of the human body was not necessarily unpatentable,observations in a number of High Court decisions tended to the contrary view. In addition, the NewZealand Court of Appeal had decided against the grant of patents for methods of treating the humanbody. Given the views of the High Court, and the policy interest of maintaining consistency in thecommercial laws of Australia and New Zealand, the Court held that a method of medical treatment of thehuman body is not patentable.
The patents were invalid as they lacked novelty and an inventive step. Evidence was presented to theCourt of a number of publications each of which was an anticipation of the patent sought and each ofwhich conveyed the essential information. The anticipations set out in the publications were such that, ifthe patent were valid, they constitute an infringement. In addition, the administration of Taxol as an anti- cancer agent was a routine procedure. In these circumstances, the Court found that there was no noveltyabout the procedures described in the patents, and that there had been no inventive step.
The petty patents were not fairly based within the meaning of the Patents Act. The Court held that theterms of the petty patents meant they effectively constituted a claim of monopoly for the use of Taxol inany dosage in a specified range in combination with any other drug in the treatment of any cancer in anyoutpatient treatment.
Although finding that the petty patents were invalid, the Court also considered the issue of infringement. It heldthat, even if the patents were valid, there had been no infringement as the respondent had not exploited or usedthe inventions disclosed in the patents, and had not authorised any other person to exploit the invention.
The application was dismissed and the petty patents revoked. The decision is the subject of an appeal to the FullCourt of the Federal Court.
Constitutional law - Validity of mining lease
Yvonne Margarula v Minister for Resources and Energy & Ors
(21 August 1998, Justices Beaumont, Lindgren and Emmett)
This was an appeal from Justice Sackville, a Judge of the Court, upholding the validity of a mining lease grantedin 1982 by the Northern Territory to the predecessor in title of Energy Resources Australia Ltd. The leasepermitted the exploitation of deposits of uranium ore in lands at Jabiluka.
The appellant was the principal custodian of those lands by Aboriginal tradition. She challenged the power ofthe Northern Territory's Minister for Mines and Energy to grant the lease. The essence of the appellant's casewas that neither the Northern Territory, nor the Territory's Minister, had any valid authority under anyCommonwealth law to execute the lease, or to grant to any person any entitlement to mine uranium from theland in question.
The Full Court dismissed the appeal. It made the following findings in relation to the appellant’s arguments.
The Atomic Energy Act 1953 (Cth) permits the Mining Act 1980, a law of the Northern Territory, to granta right in relation to uranium, and the Mining Act authorised the grant of a lease which was binding onthe Commonwealth in relation to uranium.
The Northern Territory's Legislative Assembly had the power to deal with uranium, which wasCommonwealth property; and the Mining Act does not interfere with the Commonwealth's right tomaintain and enjoy its property in uranium.
The change in status of the Northern Territory following self-government did not alter the way in whichCommonwealth laws applied to the Territory. In particular, the Mining Act did not become inconsistentwith the Lands Acquisition Act 1955 (Cth), with the consequence that the Mining Act remained availableto allow a Northern Territory Minister to grant the lease. In addition, the relevant provisions of theAtomic Energy Act 1980 still applied notwithstanding the introduction of the Northern Territory (Self-Government) Act 1978 (Cth).
The land containing the uranium was not, at the time the lease was granted, a "place" acquired by theCommonwealth for public purposes under s 52(i) of the Constitution as part of it belonged to the JabilukaAboriginal Land Trust and the remainder was owned by the Northern Territory. Nor could the acquisitionor retention by the Commonwealth of an ‘interest’ in ‘land’ which is otherwise owned by another becharacterised as a “Commonwealth place” for the purposes of s 52(i).
The execution of the lease was a valid exercise of executive authority by the Northern Territory Ministerpursuant to the Northern Territory (Self Government) Regulations.
Intellectual Property – Aboriginal artwork and communal title in copyright
Bulun Bulun & Anor v R & T Textiles Pty Ltd; Minister for Aboriginal and Torres Strait
Islander Affairs, intervening
(3 September 1998, Justice von Doussa)
This case concerned the protection of the interests of indigenous peoples in their culturalheritage. It represented another step forward in having communal title in traditional ritualknowledge, and in particular in artwork, recognised and protected by the law. In addition, itfurther highlighted the inadequacies of statutory remedies as a means of protecting communalownership. The codification of copyright law by statute prevents communal title beingsuccessfully asserted as part of the common law.
The case concerned the unauthorised reproduction of a painting by a leading aboriginal artist,Mr John Bulun Bulun entitled “Magpie Geese and Water Lillies at the Waterhole” (“theartistic work”), which was painted in 1978 with the permission of senior members of theGanalbingu people – the traditional Aboriginal owners of Ganalbingu country. The paintingdepicts material of importance and sacred significance to the Ganalbingu people. It representsthe place of creation of the Ganalbingu people and their law and customs - described as thecorpus of ritual knowledge.
The respondent, R & T Textiles Pty Ltd, imported and sold in Australia fabric that infringed the copyright in theartistic work.
Mr Bulun Bulun sued as the legal owner of the copyright pursuant to the Copyright Act 1968 (Cth) for remediesfor infringement. A second Aboriginal artist, Mr George Milpurrurru, claimed, in his own right and on behalf ofthe Ganalbingu people, equitable ownership of copyright in the artistic work arising as an incident of theGanalbingu peoples’ ownership of, and relationship to, the land.
The respondent admitted infringement and the offending fabric was withdrawn from sale. However, the questionof equitable ownership of the copyright in the artistic work proceeded to trial where Mr Milpurrurru argued thatbecause the Ganalbingu people had the power under customary law to control the reproduction of manifestationsof the corpus of ritual knowledge, Mr Bulun Bulun held the copyright in the artistic work on trust for theGanalbingu people or as a fiduciary.
Justice von Doussa held that the relationship of Mr Bulun Bulun, the artist and owner of the copyright in thepainting, with the Ganalbingu people gave rise to a fiduciary relationship between them because permission touse the ritual knowledge had been given to the artist in accordance with the customs of the Ganalbingu peopleand was predicated on the trust and confidence which the Elders of the community had in the artist.
Accordingly, equity imposed obligations on the artist as a fiduciary not to exploit the work inappropriately. Thatincluded the obligation to pursue copyright infringement.
In this case the artist took action in respect of the infringement, but had he not done so the Ganalbingu peoplewould have a right in personam (that is, a right of action against a specific person) to invoke equitable remediessuch as the imposition of a remedial constructive trust to compel the artist to perform his fiduciary obligations.
Elections - Whether "Langer-style" votes are informal under the current Commonwealth electoral

Joseph Richard Bryant v Commonwealth of Australia
(30 September 1998, Justice Wilcox)
In this matter the Court considered an application to restrain the Australian Electoral Commission (“the AEC”)from printing, distributing and publishing allegedly incorrect information in respect of a particular method ofvoting. The application raised the issue of whether or not, under the legislation governing Commonwealthelections, a “Langer-style” vote is informal. “Langer-style” voting occurs where voters express preferences asfar as they wish and then put the same number in every square In 1998 the Commonwealth Electoral Act 1918 was amended in light of the 1996 decisions by the High Courtand the Federal Court in Langer v Commonwealth of Australia and Langer v Australian Electoral Commissionrespectively. The amendments were intended to make a “Langer-style” vote informal. The Act required a voterto mark his or her ballot by writing the number one in the square opposite the name of the candidate for whomthe person votes as his or her first preference and then to write the numbers 2, 3, 4 and so on, as the caserequired, in the squares opposite the names of all the remaining candidates so as to indicate the order of thevoter's preference for them. The amendment provided that the numbers must be consecutive and withoutrepetition of any number.
On 9 September 1998 Mr Bryant instituted a proceeding in the High Court of Australia against theCommonwealth of Australia which involved questions as to the constitutional validity of the legislation. Hesubsequently sought urgent interlocutory relief in the High Court restraining the AEC from publishing materialfor the information of voters leading up to the 1998 general federal election which included a reference to“Langer-style” voting, and indicated that a vote cast in such a manner would not be regarded as being formaland would therefore be wasted. The High Court remitted the application to the Federal Court. The centralconstitutional issue remained in the High Court for determination.
Justice Wilcox held that a “Langer-style” vote was informal. His Honour found that the legislation required avoter to express an order of preference for all candidates, not just some of them. It followed that the advicegiven to the voters by the Electoral Commission about the effect of a “Langer-style” vote was correct.
The application for interlocutory relief was dismissed.
Intellectual Property - Definition of “sell”
Sun World International Inc (Formerly Sun World Inc) v Registrar, Plant Breeder’s
Rights (Formerly Registrar, Plant Variety Rights) and Murray Valley Grape Growers
(2 October 1998, Justices Burchett, Carr and Mansfield)
In this appeal the Full Court considered whether the word “sale” in s 14 of the now repealedPlant Varieties Act 1987 (“the Act”) should be understood according to its narrow technicalmeaning at common law.
The Act was based upon the International Convention for the Protection of New Varieties ofPlants 1961 (as revised), and created various exclusive rights in relation to new varieties ofplants known as Plant Variety Rights. Section 14 of the Act provided that Plant VarietyRights were not to be granted if there had been “a sale of a plant, or reproductive material ofa plant, of that variety” in Australia before the making of the application, or in anothercountry earlier than six years before the making of the application.
The appellant applied to the first respondent for a grant of Plant Variety Rights under the Actin respect of a variety of grapevine known as “Sugarone”. The first respondent decided thatthe appellant could not be granted Plant Variety Rights because grapevines of that variety had been sold by the breeder in the United States in 1972. Five other agreements made by theappellant were also characterised as disqualifying sales.
Justice Carr, with whom Justices Burchett and Mansfield agreed, considered whetherParliament intended the word “sell” in the Act to be construed in accordance with thecommon law as being confined to a transfer of the general absolute property in the plant orreproductive material for a consideration limited to money.
His Honour decided there were sufficient contextual indicators to find that Parliament did notintend the words “sale” and “sell” to be interpreted in the technical common law sense. Thewords should be interpreted in a very wide sense, and be used with their ordinary Englishmeaning. The fact that the Act referred to transactions in a country other than Australiasuggests that the transactions do not need to be characterised strictly as “sales” in the primarysense of that term under Australian law. A broad interpretation was also supported by s 3 ofthe Act, which provided that “sell” in relation to a plant or reproductive material of a plant,includes let on hire and exchange by way of barter.
Justice Carr concluded that each transaction involved a sale of the plant or reproductivematerial for a consideration which included money. Neither the fact that the price was low ornominal, nor that the sale was part of larger transactions, nor that restrictive covenants wereimposed, removed the legal characteristic of a relevant sale from the transactions.
Consequently, “sell” encompassed the sales which were made as part of the five transactions.
Native Title - The meaning and extinguishment of native title
Ben Ward & Ors (on Behalf of the Miriuwung and Gagerrong People) & Ors v State of
Western Australia & Ors
(24 November 1998, Justice Lee)
This was the first contested application for determination of native title to be dealt with by the Federal Court.
The hearing occupied 83 days with much of the applicants’ primary evidence being taken at various sites withinthe claim area.
Three applicant groups applied for a determination of native title over some 7900km2 of land in the EasternKimberley area of Western Australia and part of the Northern Territory. The area claimed consisted mainly ofvacant and reserved Crown land, pastoral leases and land granted to the Aboriginal Lands Trust. The firstapplicants, the Miriuwung and Gagerrong People, claimed the entire area, while the second applicants, as sub-groups of the Miriuwung and Gagerrong group, claimed the part of the claim area that was within the NorthernTerritory. The Balangarra People, the third applicants, sought a determination that they shared native title toLacrosse Island with the first applicants.
Justice Lee found that, in any proceeding in which native title is in issue, rules of evidence must recognise theevidentiary difficulties faced by Aboriginal people. The exclusion of histories and accounts, often localised innature, may work substantial injustice. His Honour therefore applied the rules of evidence in a way which wouldavoid prejudice to the Aboriginal applicants. He also held that the Court was entitled to rely upon its ownhistorical knowledge and research, in addition to taking judicial notice of the facts of history.
To help reduce the amount of hearing time, at the conclusion of the applicants’ primary evidence the Courtadjourned the proceedings and directed the respondents to produce notices to admit facts as appropriate.
Justice Lee held that native title is the means by which the common law recognises the rights enjoyed byindigenous inhabitants of land by reason of their occupation of that land, and reconciles the rights of thoseinhabitants with rights obtained by the Crown upon claiming sovereignty over the land. Native title is a burdenon the radical title acquired by the Crown upon its acquisition of sovereignty. It is not necessary for proof of theexistence of native title to show that it has been asserted against the Crown.
Native title will ordinarily be a communal interest held by the indigenous community that had an entitlement touse or occupy the land at the date of sovereignty. In determining whether a community’s use and occupation ofthe land is sufficient to constitute native title, the demands of the land and the community’s needs, traditionalpractices, habits, customs and usages must be considered. Occupancy of land for native title does not equatewith possession at common law, but arises from an acknowledged connection between an indigenouscommunity and the land.
Native title will continue to be held by an indigenous community provided that the Crownhas not extinguished it and the connection with the land has been substantially maintained bythe community that acknowledges and observes the laws and customs of its predecessors. TheCourt held that it was not necessary for the community’s laws and customs to have remainedfrozen in time, only that the general nature of the connection between the indigenous peopleand the land has continued. Nor was it necessary for the applicants to prove that each memberof their group was a direct descendant of a person in occupation of the land when the Crownacquired sovereignty. It was sufficient for the applicants’ to show that a reasonable number oftheir ancestors were present on the land at that time.
The Court accepted that the special nature of a native title interest makes it difficult to precisely identify theboundaries of native title land, and that it was possible for several indigenous communities to have native titleinterest in the same land. However, the question of how an organised indigenous community’s traditional laws,customs and practices are distributed, or allocated within subgroups is irrelevant to a determination that nativetitle exists. Native title is held by the entire community, and not by subgroups of the community.
Justice Lee held that the onus of proving extinguishment of native title lies on the party seeking to assertextinguishment. He also held that, under the common law, native title cannot be partially extinguished byextinguishing some native title rights. Further, the suspension or regulation of these rights does not mean thatthe native title itself has been extinguished.
Justice Lee confirmed that native title may be extinguished by act of the Crown, but only if a clear and plainintention to extinguish native title is apparent from the public record either by an act of the legislature or anExecutive act authorised by the legislature. Native title may also be extinguished by “adverse dominion”, wherethere is a grant of tenure to a third party that permits the land to be used in a way that is permanentlyinconsistent with the exercise of native title rights. It must, however, be shown that the Crown intended that theexercise of the rights granted to a third party would remove all connection of the indigenous community withthe land. It is not sufficient if the exercise of rights granted to a third party simply regulates or modifies therights exercisable by native title holders.
His Honour held that the grant of a pastoral lease is not the creation of a permanent interest in respect of theland, and it is unlikely that an act by a pastoral lessee will amount to actual use of land in a manner permanentlyinconsistent with the continued existence of native title. The construction of dwelling houses, reservoirs anddams by a lessee may extinguish native title by adverse dominion, but the erection of fences could not.
Justice Lee held that the creation and vesting of a Crown reserve does not extinguish native title. Furthermore, areserve created for a purpose or use will not impact on native title until the purpose or use has commenced, andwill only extinguish native title if the purpose or use is permanently inconsistent with native title and amounts toadverse dominion. For example, native title will be extinguished where reserves are created and used asshowgrounds, race courses, telecommunications sites, power stations or dams. Extinguishment will not occur when reserves are used for national parks, landscape and conservation protection, as Aboriginal reserves, orstock watering points.
Where leases or licences are granted in respect of reserved land, extinguishment will depend upon the purpose,term, conditions and nature of the lease or licence. None of the leases or licences over the land the subject of thedetermination had the effect of extinguishing native title. In a similar manner, the declaration of a townsite andthe proclamation of the Ord River District did not extinguish native title; that could only occur whereappropriate land was used for the appropriated purpose and this was inconsistent with native title. Even inrespect of the areas flooded to create Lake Kununurra and Lake Argyle, native title continued because theapplicants’ connection with the land continued despite the fact that the area was under water.
Justice Lee rejected a submission by the Government party that the Limitations Act 1935 (WA) prevented anative title claim being brought if the period between the acquisition of native title and the bringing of adetermination application exceeded the period set out in the legislation. He also rejected its argument that theprovisions of the Fauna Protection Act 1950 (WA) and its predecessors extinguished native title by deprivingthe indigenous inhabitants of their right to take sustenance from the land. In his view this legislation wasdirected at conservation not extinguishment of native title, and whilst it regulated the rights of native titleholders it did not extinguish the underlying native title. Similarly, legislation prohibiting Aborigines from anarea ‘in the interest of Aborigines’ and for the purpose of quarantining an area to prevent the spread of a weeddid not have the effect of extinguishing native title. The respondents’ submissions that the validation of past actprovisions in the State and Territory Titles Validation legislation extinguished native title was rejected, JusticeLee holding that the legislation only applied to acts that had extinguished native title at common law.
Justice Lee held that native title was proven to exist and be held by the first applicants over most of the areaclaimed, the only extinguishment occasioned by roads, permanent public works, freehold grants and somereserves. Native title was held concurrently with the third applicants over Lacrosse Island. The claim of thesecond applicants on behalf of sub-groups of the first applicants was rejected.
The judgment is the subject of an appeal to the Full Court of the Federal Court.
Corporations Law – Manipulating the market
Australian Securities Commission v Nomura International Plc
(10 December 1998, Justice Sackville)
In this case the Court had to consider whether Nomura International ("Nomura") contravened the CorporationsLaw and the Trade Practices Act by, in effect, manipulating the market for securities on the Australian StockExchange (“ASX”). At the relevant times, Nomura was a company incorporated in the United Kingdom and didnot have any permanent presence in Australia.
Nomura was a stock index arbitrageur. It would purchase or sell securities on a stock market together with anoffsetting sale or purchase of those securities at approximately the same time on another stock market for thepurpose of obtaining a profit from the difference between the prices of those securities in the two stock markets.
Towards the end of March 1996, Nomura had established an arbitrage position in index futures traded on theSydney Futures Exchange (“SFE”), known as SPI Contracts, and in securities traded on the ASX. Its holdingswere very large. Nomura held 10,912 sold March 1996 SPI Contracts due to expire on 29 March 1996. It held a"matching" basket of securities, as part of its arbitrage position, worth about A$600,000,000.
Nomura adopted strategies which, according to it, were designed to capture the profit from the arbitrage positionit had built up by 29 March 1996. The strategies adopted by it were complex. The two key strategies, however,were the "March Sale Orders" and the "Bid Basket".
The March Sale Orders comprised instructions given by Nomura to ten separate brokers. These required thebrokers to sell Nomura's basket of securities very aggressively near to the close of trading on 29 March 1996.
The brokers were instructed, in substance, to sell without being concerned about the extent of any drop in pricethat extremely aggressive selling would produce.
The second key aspect of Nomura's strategy on 29 March 1996 was the placement of the Bid Basket. Thisconsisted of buy orders for the same securities and in the same quantities as the March Sale Orders. However,the broker responsible for placing the Bid Basket was instructed to record bids at prices substantially below thelast traded price of each security.
For a variety of reasons, most of the brokers entrusted with the March Sale Orders did not fully comply withtheir instructions. Even so, in the case of two securities, Nomura's aggressive selling at the close of trading onthe ASX produced the result that it "hit" its own Bid Basket. That is, in two cases brokers implementing theMarch Sale Orders "hit" bids placed on Nomura's behalf in the Bid Basket. Since the Bid Basket recorded bidswell below the previous sales, the effect was that Nomura "bought" its own securities at depressed prices.
Nomura's position was that, in implementing these and other strategies, it was merely acting as an indexarbitrageur. However, the Court found that Nomura was not merely a price-insensitive seller of securities on theASX. Nomura wished to realise a profit from its arbitrage position. But the strategies devised on its behalf wereintended to lower the price of securities included in the All Ords at the close of trading on 29 March 1996. Inparticular, Nomura intended that the combined effect of the Bid Basket and the March Sale Orders would be tolower the price of the securities at the close of trading. Nomura's motivation was to obtain "speculative" profitsby entering into arrangements whereby it would benefit from the expected fall in the price of securities and theconsequential fall in the closing level of the All Ords and the expiry price of SPI Contracts.
The Court’s findings included the following.
• In two instances, by the combined operation of the March Sale Orders and the Bid Basket, Nomura both sold and purchased securities in a manner that involved no change of beneficial ownership. It therebycontravened s 998(1) and (3) of the Corporations Law.
• Nomura, in placing the Bid Basket and giving instructions for the March Sale Orders, engaged in conduct intended to create a false and misleading appearance of active trading on the ASX in the securities heldby it on 29 March 1996. It also engaged in conduct intended to create a false or misleading appearancewith respect to the price of the securities held by it on the same day. Nomura's conduct in this respectcontravened s 998(1) of the Corporations Law.
• Nomura intended to determine unilaterally the closing price on 29 March 1996 for some securities within the All Ords. It knew and intended that this would have an impact on the closing level of the All Ordsand, consequently, the cash settlement price of SPI Contracts going to expiry on 29 March 1996. Nomuraintended to create a false and misleading appearance with respect to the price for dealings in contracts inthe futures market. It thereby contravened s 1260(1)(b) of the Corporations Law.
Native Title –Obligation on Government party to negotiate in good faith
Kevin Peter Walley on Behalf of the Ngoonooru Wadjari People v The State of Western
Australia & Ors
(6 January 1999, Justice Carr)
The issue in this case was whether the State of Western Australia (“the Government party”) had negotiated ingood faith with the applicant and the second respondent, WMC Resources Ltd, with a view to obtaining theapplicant’s agreement of the doing of an act (in this case the granting of two mining leases) either with orwithout conditions.
In June 1995 the Government party gave notice of its intention to grant applications for two mining leases toWMC Resources Ltd (“the Mining Leases”). In August 1995 the applicant applied to the National Native TitleTribunal (“the Tribunal”) for a determination of native title over an area of land that coincided precisely with thearea which was the subject of the Mining Leases, excluding any freehold land which might be within that area.
In November 1997 the Government party applied to the Tribunal for a determination on whether it could grantthe Mining Leases. The applicant submitted to the Tribunal that this application for determination could notproceed because the Government party had not negotiated in good faith in accordance with s 31(1)(b) of the Native Title Act. The Tribunal found in favour of the Government party, and the applicant applied for judicialreview by the Federal Court.
The applicant claimed that there was a possibility that the granting of the Mining Leases may lead to productivemining, and that this should be given proper consideration when determining whether there had beennegotiations in good faith.
Justice Carr considered that the appropriate way to assess whether the Government party had negotiated in goodfaith was to judge its conduct in the context of matters related to, or connected with, the doing of the particularfuture act in question. While there was no limitation on what the parties may include in their discussions andany agreement, the obligation on the Government party to negotiate in good faith is to do so by way of makingor considering proposals which are related to or connected with the doing of the future act and its potentialconsequences. The subject of the negotiation is to have the native title parties agree on one basis or another totheir native title rights or claimed native title rights being affected by the act upon which the Government partyhas resolved to embark.
Whether the Government party negotiated in good faith is a question of fact. In some cases the reasonablenessor unreasonableness of the Government party’s proposals or offers may be relevant to this question. In othercases there may be a difference between making reasonable offers and being reasonable in negotiating in goodfaith.
The Court concluded that, in the circumstances of this case, the Tribunal had not erred in finding that theGovernment party had negotiated in good faith. The application was accordingly dismissed.
Migration – Indiscriminate abuse of authority and cruelty
Perampalam v Minister For Immigration And Multicultural Affairs
(1 March 1999, Justices Burchett, Lee and Moore)
In this case the Full Court considered whether an elderly Tamil widow from Sri Lanka, who had been abused bymembers of a government authority, was a refugee within the meaning of the Convention Relating to the Statusof Refugees (“the Convention”).
The applicant came from the Amparai district, a scene of conflict for many years between Tamil Tigers(“LTTE”), the Sri Lankan army and police, the Sri Lankan Special Task Force (STF) and the Muslim HomeGuard. While living there, the applicant found herself in a situation where, for various reasons, she was seen tobe aligned with the LTTE by the STF on the one hand, while being accused by the LTTE of acting as aninformant for the STF on the other. She had been beaten by the STF during interrogations as well as beingthreatened and assaulted in her own home. The LTTE had also attempted to extort money from the applicant.
On one occasion, while an STF detachment were ransacking her house, the applicant suffered a painful hipinjury and lost a tooth after being pushed and kicked by soldiers. One soldier forced her into a room and tore offher clothing until she was exposed. He stopped when other soldiers entered, who then, however, continued todestroy valuables in her home. The applicant left Sri Lanka for Australia immediately after this event.
Although the Refugee Review Tribunal had considered the applicant a credible witness and accepted heraccount of these events, it found that she did not suffer “persecution” within the meaning of the Convention, forthe reason that the mistreatment she had suffered in her home and during interrogation by the authoritiesexhibited an “indiscriminate abuse of authority and an act of inhuman cruelty” and not a course of “systematicconduct” directed at the applicant for a Convention reason.
Allowing the appeal, the Full Court affirmed the principles in Paramananthan, a Full Court decision in which itwas held that any maltreatment during detention and interrogation should not necessarily be considered asindiscriminate cruelty short of persecution simply because the detention had begun in an action taken for alegitimate end of government policy. The correct approach is to determine whether there is a causal connectionbetween the abuse of authority and any perceived political opinion, race or social group. Where this is the case,it is then necessary to consider whether the authorities are willing or able to provide protection. The Full Courtalso rejected any requirement, in order to establish persecution, that conduct directed at the applicant for aConvention reason be also “systematic”.
Workplace relations – Effect of certified agreement on the AIRC jurisdiction
Gordonstone Coal Management Pty Ltd v Australian Industrial Relations Commission &
(25 March 1999, Chief Justice Black, Justices Heerey and Goldberg)
In this case the Full Federal Court considered whether the Australian Industrial Relations Commission (AIRC)had jurisdiction to deal with an industrial dispute between Gordonstone Coal Management Pty Ltd(Gordonstone) and the Construction, Forestry, Mining and Energy Union (the Union).
Gordonstone operated a mine in which most of the workforce were members of the Union. In October 1996 theAIRC certified an agreement between Gordonstone and the Union under the Industrial Relations Act 1988(Cth). The agreement included two clauses setting out problem resolution procedures.
In February 1997 the Union notified the AIRC of an alleged industrial dispute between it and Gordonstoneconcerning a number of industrial matters. The notification stated that the matters had been the subject of theproblem resolution procedures under the agreement, but that Gordonstone was intending unilaterally to changethe arrangements made in relation to the matters. In March 1997 the Union notified the Commission of a furtherdispute regarding access by union officials to the Gordonstone site.
The two dispute notifications were referred to the Full Bench of the AIRC, which rejected Gordonstone’ssubmissions that it had no jurisdiction to deal with the disputes, and that in any event its jurisdiction wasconstrained by s 89A of the Workplace Relations Act (“the Act”). Section 89A limits the matters that the AIRCmay deal with when it is dealing with an industrial dispute by arbitration, preventing or settling an industrialdispute by making an award or order, or maintaining the settlement of an industrial dispute by varying an awardor order.
Gordonstone then applied to the High Court for an order nisi for writs of certiorari and prohibition which wouldprevent the AIRC from dealing with the disputes. The High Court remitted the matter to the Federal Court.
The Full Court was asked to examine whether: the certification of the agreement in October 1996 was sustained by an industrial situation within themeaning of the Act; the problem resolution procedures were invalid on the basis that they were inserted in the agreement forthe purpose of determining local or interstate disputes and an award establishing such a procedure wasnot within the jurisdiction of the AIRC; and any assumption of jurisdiction by the AIRC under the problem resolution procedures was subject to andrestricted by s 89A of the Act.
The Full Court held that the AIRC did have jurisdiction to certify the agreement because the industrial situationgiving rise to it possessed an interstate element. In particular, there were a number of outstanding disputesbetween Gordonstone and the Union at the time the agreement was certified, including an interstate industrialdispute found by the AIRC in October 1995 with respect to the service and rejection of a log of claims in August1995.
The argument that the problem resolution procedures in the agreement were invalid was also rejected by the FullCourt. It found that the intention of the parties was to empower the AIRC to settle disputes which are “disputesover the application of the agreement”. The agreement provided for a “staged process” for resolving suchdisputes - a process which ended with resolution by a decision of the AIRC. The Full Court did not think itnecessary to determine whether the dispute resolution procedure might have a wider operation that would notinvolve the exercise of any power by the AIRC.
The Full Court accepted Gordonstone’s final submission that any assumption of jurisdiction by the AIRC underthe dispute resolution procedures would be subject to and restricted bys 89A of the Act. It held that, when the AIRC exercises arbitral powers conferred on it by parties to a certifiedagreement, those powers are necessarily limited to the matters specified in s 89A(2) and (3). The Full Courtconsequently ordered that a writ of prohibition be issued to the AIRC prohibiting it from proceeding further in relation to notifications by the Union otherwise than on the basis that s 89A of the Act applies to thedetermination of those disputes.
Migration – Well-founded fear of persecution in cases of civil war
Minister for Immigration & Multicultural Affairs v Abdi
(26 March 1999, Justices O’Connor, Tamberlin and Mansfield)
In this appeal the Full Court examined how the definition of “refugee” in the Convention Relating to the Statusof Refugees (“the Convention”) should be applied in cases arising from civil or clan warfare. In particular, theFull Court had to consider the approach of the House of Lords in Adan v Secretary of State for the HomeDepartment [1998] 2 WLR 702, which held that something over and above the risk of harm inherent in the civilor clan war must be shown in order to satisfy the Convention.
The respondent in the appeal was a Somali national and a member of a sub-clan of the Darod clan in Somalia. Ithad been accepted that his father was involved in a leadership and land struggle involving Darod sub-clans, asthe result of which his father was killed and the applicant injured. The Refugee Review Tribunal (“the RRT”),having adopted the approach in Adan, found that Mr Abdi did not satisfy the Convention. The trial judge setaside the RRT’s decision.
The Full Court accepted that, to establish persecution for a Convention reason, it is not enough that there be afear of being involved in incidental violence as a result of civil or communal disturbances. However, it held thatthe approach in Adan went beyond the requirements of the Convention by imposing additional or differentialrequirements even where the civil war in question is based on racial or clan grounds.
The Full Court found that, where a war is properly characterised as being clan based, the Convention requiresthat consideration must be given to the question whether the reasons for the war are to selectively harm on thebasis of race or clan, or whether the struggle is in substance directed to control of resources or the assertion ofdominance over territory. To demand something “over and above” the existence of a state of war is a source oferror because it eliminates a critical step in the process, namely analysis of the objectives and the conduct of thewar.
The Full Court held that the RRT had fallen into error by applying the gloss on the Convention set out in Adan’scase. It dismissed the appeal and referred the matter to the RRT for further reconsideration in accordance withlaw.
This Full Court’s decision is the subject of an appeal to the High Court.
Human rights – Stolen generation
Lorna Cubillo and Peter Gunner v Commonwealth of Australia
(30 April 1999, Justice O’Loughlin)
In this case the Court had to consider whether proceedings commenced by two people claiming to be membersof "the Stolen Generation" (being the term that has become well known in its application to part Aboriginalchildren who were taken from their families and placed in homes and institutions) should be summarilydismissed. The applicants claimed that the Commonwealth, through its servants and agents, was the partyresponsible for their removal and detention. It was their case that the removal and detention was unlawful, andthat the Commonwealth had breached its fiduciary and other duties to the applicants.
The Commonwealth denied all responsibility. However, despite its claims that it had defences on the merits, theCommonwealth submitted that these matters should not go to trial. It made two preliminary claims.
First, it argued, as a matter of law, that the applicants did not have any causes of action against theCommonwealth. Secondly, it raised a question of hardship on the basis that the proceedings should have beeninstituted, in the case of Mrs Cubillo, thirty seven years ago, and, in the case of Mr Gunner, twenty six yearsago. The Commonwealth argued that so much time had elapsed, so many witnesses had died and the memoriesof those living were so impaired that it would be manifestly unfair to the Commonwealth if the Court were togrant the applicants an extension of time in which to bring their proceedings.
Justice O’Loughlin found that there were some deficiencies in the statements of claim. However, in his viewthey were not sufficient to justify summary dismissals, and could be remedied by giving the applicants leave tofile and serve fresh statements of claim. Subject to those comments, His Honour rejected the Commonwealth'ssubmissions that, as a matter of law, the pleaded causes of action were not available to the applicants.
As to the issue of hardship, the Court concluded that the Commonwealth's claim had been made prematurely.
While the Commonwealth had advanced a strong case, Justice O’Loughlin considered it would not be fair tomake a decision on it without first giving Mrs Cubillo and Mr Gunner the opportunity to be heard in theirapplications for extensions of time. After all, it was the applicants who would suffer hardship if the Courtdecided not to grant them their extensions.
The Court was not prepared to order that the applications by Mrs Cubillo and Mr Gunner for extensions of timebe heard and determined prior to the substantive trial. As this would amount to a mini-trial, the Court consideredit would be more effective and more cost-efficient, in the long run, to hear their applications for extensions oftime during the course of the main trial. That would also be the occasion when the issue of the Commonwealth'shardship could be raised and evaluated.
Justice O’Loughlin made it clear that his decision in relation to the Commonwealth’s application did not meanhe had formed a final opinion on any aspect of the applicants’ respective cases; it only meant that he wassatisfied that they should be allowed to argue their respective causes. In his view, the cases were of suchimportance - not only to the individual applicants and to the larger Aboriginal community, but also to the Nationas a whole - that nothing short of a determination on the merits with respect to the competing issues of hardshipwas warranted. That could not be achieved until the applicants had placed before the Court all the material thatthey would wish the Court to receive before it ruled on their applications for extensions of time.
Patents – Pharmaceutical formulation – whether patentable
Aktiebolaget Hässle & Anor v Alphapharm Pty Ltd
(12 May 1999, Justice Lehane)
In this case the Court considered whether a patent for an oral dosage form of the drug omeprazole was valid and,if so, whether it would be infringed by the respondent marketing a competing formulation of the same drug.
The first applicant, a Swedish corporation, held a patent in omeprazole, a drug which inhibits gastric acidsecretion once it has been absorbed into the bloodstream; that patent was due to expire. It also held a patent in aformulation which allowed the drug to be taken orally (“the patent in suit”). The respondent proposed to marketand sell a competing formulation upon the expiry of the applicant’s patent for omeprazole.
The applicants alleged that the respondent’s proposed product infringed the patent in suit and sought injunctionsrestraining its marketing and sale. The respondent disputed that allegation and made a cross-claim for revocationof the patent. Invalidity was claimed on a large number of grounds, the most substantial of which was that theformulation claimed involved no inventive step.
The combination of integers claimed in the patent in suit was, in summary, a tablet or pellet consisting of a“core” containing omeprazole and certain other compounds; a water-soluble “sub-coat” displaying certainproperties; and an “enteric coat”. That formulation was said to constitute an inventive solution to problemsassociated with omeprazole, in particular its instability and the difficulty of ensuring its absorption into thebloodstream.
The Court held that the patented formulation involved no inventive step. The evidence of the respondentdemonstrated that the hypothetical non-inventive skilled worker, faced with the task of formulating a dosageform of omeprazole at the priority date, would, by taking routine steps and armed with the relevant commongeneral knowledge, have arrived at the combination claimed in the patent. In this regard the Court had thebenefit of evidence given for the respondent by an expert who had been instructed to undertake the hypotheticalformulation task and had been quarantined from any knowledge about the actual invention the subject of thepatent in suit.
The Court also found that the information contained in certain documents, although it might not have formedpart of the common general knowledge in the field in Australia at the priority date, would have been found andused by the skilled worker during the routine steps taken in the hypothetical formulation.
Evidence was given about the hypotheses formed (during and after the development of the formulation) by thefirst applicant as to the causes of various difficulties encountered in the process of formulation, and the reasonswhy the result achieved by the final combination of features was a surprising one. The Court considered that thehypotheses were less relevant to the question of lack of inventive step than evidence about the steps which theskilled addressee would actually have taken during the hypothetical formulation.
The Court rejected the respondent’s claims that the patent in suit was invalid on other bases, such as lack ofnovelty, lack of invention on the face of the specification, fraud, false suggestion or misrepresentation, lack offair basis, insufficiency and inutility.
On the question of infringement, the Court held in confidential reasons, which were later published in editedform, that the patent, if it had been held to be valid, would have been infringed by the sale of the respondent’sproduct.
The Court declared the patent in suit to be invalid and ordered that it be revoked. The order for revocation wasstayed pending the determination of any appeal or until earlier further order.
The decision is the subject of an appeal to the Full Court of the Federal Court.
Social Security – Sole Parent Pension where parental responsibility is shared
Secretary, Department Of Social Security v Lowe
(28 May 1999, Justices Burchett, Kiefel and Hely)
In this case the Full Court had to consider which parent should receive the Sole Parent Pension where themother and father have separated but equally share parental responsibility for their child.
Following their divorce, the parents of a young child came to a mutual arrangement to share her upbringing. Itwas agreed that she live with each parent on alternate weeks. All major decisions concerning her were to bemade jointly.
Section 251(1) of the Social Security Act 1991 (“the Act”), as it stood when this case arose, provided that onlyone person “at a time” could be the recipient of the Sole Parent Pension (“the Pension”). Where two or morepersons shared parental responsibility, s 251(2) allowed the Secretary of the Department of Social Security tomake a determination specifying who was to be the recipient of the Pension. In this case the Secretarydetermined that the Pension be paid to the mother. The Social Security Appeals Tribunal and the AdministrativeAppeals Tribunal (“the AAT”) subsequently affirmed the Secretary’s determination, and the father thenappealed to the Federal Court.
The judge at first instance rejected the father’s argument that the pension should be shared to reflect the sharedparenting. He construed the words “at a time” in s 251(1) with reference to the standard fortnightly period inwhich a pension is paid under the Act, and held that, on a strict construction, because the child was never ineither parent’s care for a full fortnight, neither became entitled to the pension.
On appeal, the Full Court held that “at a time” in s 251 should be interpreted broadly to refer to “a period duringwhich particular arrangements with respect to the care of the child endure”. It also found that it is possible for aparent to participate actively in raising a child, even without having immediate physical proximity, bydelegating responsibility to the other parent or carer. The Full Court concluded that the particular arrangementsin this case fell within the requirements of s 251(2), and that this provision enabled the AAT to select forpayment of the pension the needier of the two parents who shared responsibility for their child on an equal basis.
Corporations Law – Takeovers
Australian Securities and Investments Commission v Yandal Gold Pty Ltd & Ors
(16 June 1999, Justice Merkel)
In this matter the Court had to determine whether two companies, which owned shares in a third company,could combine through a bidding vehicle to acquire that company in a manner which did not breach s 615 of theCorporations Law. Section 615 prohibits an acquisition of more than 20 per cent of the shares in a listedcompany otherwise than pursuant to a takeover scheme.
Normandy Mining Holdings, a part of the Normandy group of companies, and Edensor Nominees owned 27.81per cent and 12.56 per cent respectively in Great Central Mines Ltd. In January 1999, the Normandy group andEdensor Nominees combined through a bidding vehicle, Yandal Gold Pty Ltd, to acquire Great Central Mines.
Yandal Gold is a wholly owned subsidiary of Yandal Gold Holdings which is owned by Edensor and NormandyConsolidated Gold, which is part of the Normandy group of companies. The Court held that the agreement touse Yandal Gold as a bidding vehicle breached s 615 in two respects.
First, the Court found that there had been agreements between Normandy Mining Holdings and EdensorNominees that neither would accept the takeover offers in respect of their respective holdings of shares in GreatCentral Mines and would retain the shares. It was held that, as a result of these agreements, each of the partieshad acquired a “relevant interest” in the shares of Great Central Mines held by any of the other parties. Theacquisition of relevant interests in this way contravened s 615.
Second, it was held that Yandal Gold Holdings' ownership of Yandal Gold, and the shareholdings of Edensorand Normandy Consolidated Gold in Yandal Gold Holdings, resulted in each of them being deemed, by reasonof s 33 of the Corporations Law, to have power to vote and to dispose of the shares held by Edensor andNormandy Mining Holdings in Great Central Mines and, therefore, to have a relevant interest in those shares.
Section 33 operates to regulate indirect holdings of shares and provides that where a company has power to votein respect of a share or power to dispose of a share, a person shall be deemed to have in relation to the share thesame power as the associate company. Justice Merkel concluded that it was consistent with the legislativescheme and policy for no distinction to be drawn between acquisitions of an actual or deemed relevant interest.
This meant each company had acquired the relevant interest that it was deemed to have under s 33. His Honourheld that this acquisition contravened s 615.
The Court also found that, as a consequence of the breaches of s 615, certain statements made in Yandal Gold’sstatement and offer to purchase shares were misleading to the shareholders in Great Central Mines, therebybreaching the relevant provisions of the Trade Practices Act, Australian Securities and Investments CommissionAct 1989 and the Corporations Law.
The question of the appropriate relief to be granted in this case posed some difficulty. By the time the mattercame before the Court, 94.37 per cent of the shares in Great Central Mines (including the 40.37 per cent held byNormandy and Edensor) had been acquired by the bid vehicle but the market value of the shares had droppedsignificantly due to the falling price of gold. As a consequence, forfeiture of the shares and their resale on themarket was unlikely to have resulted in any benefit to shareholders and therefore would have been of littleutility.
However, the Court concluded that the agreement had allowed Yandal Gold to offer a lower share price than itwould have otherwise had to offer for the bid to succeed. The benefit of utilising the bid vehicle with Edensor’ssupport was found to be the benefit provided by Normandy to Edensor to secure its support for the bid, whichwas valued at $28.5 million. The Court, in exercising its discretion to provide ‘just’ relief, ordered Edensor todisgorge that benefit to shareholders who had accepted the takeover offer. The Court also ordered thatshareholders who had accepted the offer were entitled to avoid their contracts.
The judgment is the subject of an appeal by Edensor to the Full Court of the Federal Court.
Caseflow Management
One of the key caseflow management principles is the establishment of a time goal within which cases will bedisposed. A related principle is the implementation of practice and procedure designed to dispose of caseswithin the time goal.
The Court has previously reported that it has set the period of eighteen months from commencement as the goalwithin which it should dispose of at least 98 per cent of its cases. The Court recognises, however, that themajority of cases will be disposed of well within the eighteen month period, while some particularly largeand/or difficult legal and/or factual cases will require more time. Indeed, many cases need to be disposedquickly after commencement and the Court’s practice and procedure facilitates this. During the year, 68 per centof cases were disposed of in less than six months.
During the five year period from 1 July 1994 to 30 June 1999, 87.5 per cent of matters were completed in less
that eighteen months, 80.1 per cent in less that twelve months and 64.3 per cent in less that six months (see
Figure 6.4 in Appendix 6 on page 109). By focussing upon achievement of its time goals, the Court has
increased the percentage of cases disposed of in less than eighteen months. Figure 6.4a at page 110 shows the
percentage of matters completed within eighteen months over the last four reporting years. The figure shows a
steady rise leading to 90.6 per cent of matters in 1998-99 completed within eighteen months.
Figure 6.4a also shows that in 1995-96, 3,879 matters were completed compared to 4,883 matters in 1996-97, anincrease in the completion rate of 26 per cent. In 1997-98, 7,357 matters were completed, an increase of 51 percent over the previous reporting year. For the current reporting year, 7,546 were completed which was anincrease of 2.6 per cent over the 1997-98 reporting year.
As is mentioned elsewhere in the report, bankruptcy and related cases are included in the total completed figurefrom 16 December 1996. These cases have contributed to a proportion of the increase.
A key factor in the ability of the Court to maintain its disposal rate is the mix of cases. If the number ofbankruptcy cases were to increase substantially then it could be expected, if the rest of the case mix remainedunchanged, for the disposal rate to continue to increase. This is because bankruptcy matters, the majority ofwhich are dealt with by Registrars in sequestration proceedings, are usually completed in less than six months.
However, working against such a trend may be another major change in the case mix, such as a large increase inNative Title actions. Native Title matters are usually complex, protracted, and resource intensive. Many maytake between two and three years to complete, particularly as a result of the need to conduct long and remotelocality hearings.
The mix of cases will therefore affect the Court’s ability to meet its goal of disposing 98 per cent of matterswithin 18 months. The Court may need to revise its goal in the light of the incoming workload and the resourcesavailable to dispose of that workload.
The Court believes that the increased disposal rates for reporting years 1996-97 onwards is in a large measureattributable to the introduction of the individual docket system and associated practice and procedural reforms.
The key elements of the individual docket system are as follows.
• A case will ordinarily stay with the same judge from commencement until disposition. The benefits to the legal profession, the parties and the Court include the familiarity the judge will have with the facts andcircumstances of the case.
• The adoption of a time standard of no more than eighteen months for the disposal of most cases.
• Most cases are allocated to judges shortly after they have commenced.
• Cases are managed from commencement to disposition, including the monitoring of compliance with directions by parties and maintaining regular contact with parties regarding the progress of a case.
• Fewer formal directions and events requiring appearance in the case management process.
• Better identification of cases suitable for assisted dispute resolution.
Combined with an ability to provide greater efficiency and flexibility in setting dates for interlocutoryapplications, short hearings and trials, the application of these key elements appears to be contributing to the increase in the number of matters completed by the Court and thereby narrowing the gap between the currentdisposal rate (90.6 per cent) and the Court’s goal of disposing of 98 per cent of matters within eighteen monthsof commencement (see Figure 6.4a at 110).
Appellate jurisdiction
The Court has a substantial and increasing appellate workload. In 1997-98, 330 appeals to the Full Court were filed,while in the reporting year, 419 appeals were filed, an increase of 27 per cent between the two reporting periods.
(See Figure 6.9 on page 118 for comparative filings.) Towards the end of each calendar year, the Court publishes itsprogram of Full Court sittings for the following year. In the 1999 calendar year, four Full Court sittings have beenprogrammed for Sydney, Melbourne, Brisbane, Perth, Adelaide and Canberra, two for Hobart and one for Darwin.
Once appeal books are prepared by the parties, an appeal can usually be listed for the next scheduled Full Courtsitting in the capital city where the matter was heard at first instance. During the reporting year, 37 special Full Courthearings were held to enable the early disposition of urgent appeals. On occasions when matters have beensufficiently urgent, it has been necessary to either convene an urgent sitting of a Full Court in a capital city otherthan that in which the case was originally heard or use video-conferencing facilities.
Delivery of judgments
In the reporting period, 1,838 Full Court and single judge judgments were delivered. This figure includes bothwritten judgments and judgments delivered ‘ex tempore’ on the day of the hearing. When decisions arepublished, they are immediately made available to the parties and the media.
The Court provides electronic copies of judgments for legal publishers. This service was provided via a dial-inBulletin Board. However, as the Bulletin Board software was not Year 2000 compliant it was replaced in earlyJune 1999 by an e-mail service. Judgments are now e-mailed to the subscribers several times a day as they areindexed. At the end of the reporting year, the e-mail service had 13 external users.
Judgments are also available on the Internet at the Australasian Legal Information Institute (AustLII) site. Thesejudgments are accessible directly from the Federal Court’s Home Page at Theavailability of judgments electronically assists the speedy dissemination of the Court's judgments to the legaland wider community.
The nature of the Court's workload means that a substantial proportion of the matters coming before the Courtwill go to trial and that the decision of the trial judge will be reserved at the conclusion of the trial. The nature ofthe Court's appellate work also means that a substantial proportion of appeals require reserved judgments.
For the reporting period, the median time between reserving and delivery of judgments, in single judge mattersand Full Court appeals together, was less than 36 days. Some 50 per cent of reserved judgments in single judgematters were delivered within 30 days. In Full Court matters, 65 per cent of reserved judgments were deliveredwithin 60 days. It is important to note that these figures do not take into account the significant number of singlejudge and Full Court judgments delivered on the day of the hearing. Judgments involving judicial registrars,registrars and Industrial Relations Court of Australia matters were excluded in the above calculations.
Any party having a concern about delay in delivery of a reserved judgment may direct an inquiry to thePresident of the appropriate Bar Association or Law Society. The President then refers the inquiry to the ChiefJustice for attention without disclosing which of the parties has raised the matter.
General trends
In previous Annual Reports the Court reported upon a number of factors which affected its workload. Some ofthose factors continued in the reporting year and are set out below.
• Matters which would have been filed in the Industrial Relations Court of Australia (“IRCA”) prior to 26 May 1997 are now filed, on account of legislative changes, in the Court since that day. In the reportingyear 212 Workplace Relations matters were filed in the Court. In addition, of the 381 matters transferredfrom the IRCA on 26 May 1997, 20 were still current.
• Amendments to the Federal Court of Australia Regulations changing fees and introducing a number of new fees, which took effect in September and December 1996, contributed to a decline in Corporations Lawmatters and, in particular, winding-up applications (usually uncontested and dealt with very quickly byRegistrars). In the reporting years ending 30 June 1996, 30 June 1997 and 30 June 1998, 1,946, 1,096and 832 Corporations Law matters were filed. The decline in Corporations Law matters has continuedinto the reporting year with 668 matters filed (see Figure 6.5 on page 111).
• The Bankruptcy Legislation Amendment Act, which commenced on 16 December 1996, transferred certain bankruptcy administration functions previously undertaken by officers of the Court to the Insolvency andTrustee Service, Australia. One of the consequences of the changes in administrative functions is thatbankruptcy statistics, formally recorded in their own database, are now recorded in the Court’s generalapplications database FEDCAMS (Federal Court Case Management System). Court statistics since 1997-98 therefore need to be considered in that context when comparison are made to earlier reporting years.
In addition, the following factors in the reporting year impacted upon the Court’s workload and will continue todo so in future.
• On 17 June 1999 the High Court of Australia delivered judgments in Re Wakim Ex parte McNally & Anor and three other related cases. In brief, the High Court held that the Corporations Act 1989 (Cth) and theCorporations (NSW) Act 1990 (NSW) were invalid in so far as they purported to give the Federal Courtjurisdiction to exercise State judicial power. Likewise, the Jurisdiction of Courts (Cross-Vesting) Act1987 (Cth) and the Jurisdiction of Courts (Cross-Vesting) Act 1987 of each of the States were alsoinvalid with regards to the Federal Court and its purported exercise of State judicial power. The decisionsmean that the Court can no longer hear Corporations Law matters unless they relate to a TerritoryCorporation or fall within the pendent or associated jurisdiction of the Court.
The conferral on the Court of jurisdiction to determine a particular issue normallycarries with it authority to decide the whole of any single justiciable controversy ofwhich the issue forms an integral part. This added jurisdiction has been described as“pendent”, “accruded” or “attached”. The “associated” jurisdiction of the Court is setout in s 32 of the Federal Court of Australia Act and provides that, to the extent that theConstitution permits, jurisdiction is conferred on the Court in respect of matters nototherwise within its jurisdiction that are associated with matters in which thejurisdiction of the Court is invoked.
• The Native Title Act was amended by the Native Title Amendment Act 1998. One of the amendments to the Act was to provide, from 30 September 1998, for new applications for a determination of native title(including a revised determination) or compensation, to be made to and determined by the Court, and forexisting applications to be transferred from the National Native Title Tribunal (the Tribunal) to the Court.
At 30 June 1999, 65 new Native Title matters had been commenced in the Court, and 726 of the 794matters transferred from the Tribunal remained current.
Incoming work
Table 6.1 on page 105 is a summary of workload statistics for the reporting years 1994-95 to date. The tableshows that 4,523 cases were commenced in 1998-99, an increase of 1,026 compared to 1997-98, when 3,497cases were commenced.
By comparison, the decline in incoming matters in 1996-97 and 1997-98 was due to the decline in CorporationsLaw matters from 1,946 in 1995-96 to 1,096 in 1996-97 and 832 in 1997-98. In the same periods the incomingmatters, (excluding Corporations Law matters), were 2,361, 2,759 and 2,665. As noted above, 381 matters weretransferred to the Court from the Industrial Relations Court of Australia in 1997. These matters were included inthe 1996-97 statistics. In addition, 794 Native Title matters were transferred to the Court on 30 September 1998.
The trend, therefore, with the exception of 1995-96, is for the Court’s incoming workload (excludingCorporations Law matters) to increase in every year since 1994-95, including the reporting year.
Matters completed
Table 6.1 also allows for a comparison between the number of matters commenced and the number completed.
The number of matters (including Corporations Law matters) completed during the report year was 3,999, asagainst 4,085 in the previous reporting year. This slight decline in completed matters was against the trend,commencing in 1994-95, of the number of matters completed increasing in every reporting year. However, ifcompleted Corporations Law matters are excluded there was a slight increase in the number of matterscompleted in the reporting year compared to 1997-98.
Matters on hand
The number of matters on hand in the reporting year was 3,651 (Table 6.1, page 105), which is 583 more thanthe previous reporting year. Prior to the reporting year 1996-97, the number of current matters continued toincrease for the reporting years 1994-95 onwards. As mentioned in last year’s report, the decline in currentmatters in 1996-97 and 1997-98 can, in some respects, be attributable to the decline in Corporations Law filings.
This decline continued in the reporting year. If the 726 Native Title matters current at 30 June 1999 are notincluded in the current workload then the trend of a decline in current matters is continued in the reporting year.
Appellate workload
Figure 6.9 on page 118 shows that there were 419 appeals to the Full Court in the reporting year. This was anincrease of 89 matters or 27 per cent above the filings for 1997-98. The trend since 1994-95 has been for FullCourt appeals to increase in every reporting year. In 1994-95 there were 254 appeals, with the increase betweenthat year and the current reporting year being 165 matters or 65 per cent. If the number of appeals were tocontinue to increase by the average percentage over the last five reporting years (12 per cent), there will be 470appeals lodged in 1999-2000. However, if the rate of increase in 1998-99 compared to 1997-98 continues (27per cent), then more than 530 appeals could be lodged in 1999-2000. This will be a 110 per cent increase in thelast five years.
The increase in the number of appeals is not surprising given the increase in the number of first instance mattersdisposed of in the reporting year. Increases in the number of Full Court hearings, which are usually constitutedby three and sometimes five Judges, increases the workload of the Court and its ability to dispose of its firstinstance work, as there are fewer Judges available for first instance work.
The Court is concerned at the possible effects of the increase in the number of appeals, including its impact onthe Court’s ability to continue to hear its appellate workload efficiently, effectively and in a timely manner.
Age of pending caseload
The comparative age of matters pending as at 30 June for each of the previous five years is set out in Table 2abelow.
The Table shows that the trend (reported upon last year) for the number of cases over 18 months old to decreasehas continued in the reporting year. For example, at 30 June 1997 the number of pending matters over 18months old was 1,081. This figure has reduced to 754 in the reporting year.
Although the number of pending matters at 30 June 1999 (3,651) is higher than for 30 June 1998 (3,068), thiscan be explained by the 794 Native Title matters transferred to the Court on 20 September 1998, of which 726were current as at 30 June 1999. If these Native Title matters are not included, then the trend towards areduction in the number of pending matters, commencing in the reporting year ending 30 June 1997, ismaintained into this reporting year. The Court will continue to focus upon avoiding delay and reducing existingdelays.
Current matters (including Corporations Law matters) - historical
Age of matters current as at current as at current as at current as at current as at A collection of graphs and statistics concerning the workload of the Court is contained in Appendix 6 to thisreport commencing on page 104.
Native title matters
The role of the Court in native title matters was significantly changed when amendments tothe Native Title Act commenced on 30 September 1998. The amendments established a newregime where the Court has responsibility for the mediation and determination of native titleapplications. To perform its new functions the Court has been given a wide range of powersin relation to the management and resolution of native title applications.
Under the new regime, applications are filed in the Court and not the National Native TitleTribunal (“the Tribunal”). Applications which satisfy the Court’s requirements are referred tothe Tribunal which applies a registration test to determine whether the native title applicanthas the right to negotiate. The Tribunal will also mediate applications referred to it by theCourt.
When the amendments commenced, 794 native title determination applications before theTribunal were taken to be filed with the Court. In addition, some 58 matters were alreadybefore the Court having been referred by the Tribunal under s 74 of the old Native Title Act.
As at 30 June 1999, the Court had before it 830 native title determination applications.
To ensure that the Court’s enhanced native title jurisdiction is dealt with efficiently, thefollowing key management initiatives were implemented during the reporting year.
The Court has introduced a national allocation protocol for the case management and listing of nativetitle matters. Under the protocol, each case is allocated provisionally to a judge (“the Provisional DocketJudge”) who, with the assistance of a Deputy Registrar for Native Title, is responsible for managing the case initially. The provisional allocation usually continues while the matter is being considered forregistration by the Native Title Registrar, and, where relevant, while it is in active mediation with theTribunal. When the matter requires substantive action (such as the hearing of a contentious interlocutoryapplication), or is ready for a main hearing, the matter is referred to the Court’s Native Title Secretariatfor substantive allocation to a trial judge.
The Court has recruited experienced staff in the positions of Deputy Registrar forNative Title and native title case managers. These officers assist the Provisional DocketJudge in the review hearing process, and help applicants and parties to a native titleproceeding in the practice and procedure of the Court.
Order 78 of the Federal Court Rules was significantly amended in light of the Court’s enhancedjurisdiction. The amended rules came into operation on 30 September 1998. Further amendments toOrder 78 were also made during the reporting year.
Under the auspices of the Court's Native Title Coordination Committee, notes havebeen prepared for the assistance of practitioners, unrepresented applicants and otherinterested persons to explain the practices adopted by the Court in native title cases.
The Provisional Docket Judges in each State or Territory have convened user groupsfor native title cases. This approach has been adopted primarily because the native titlecases have features which make them different from many other cases for the purposeof management and determination, for instance, the number of parties involved, and thenature of the evidence called. In general terms the aim of each native title user group isto allow the Court to explain its procedures to the people who use the Court; and toallow the users to explain to the Court their requirements and the extent to which theprocedures can be modified to work better.
The number of native title matters, and the impact of the amendments to the Native Title Act,present a number of challenges for the Court. The case management and determination ofmany native title matters will be resource intensive, and hearings will often involve the takingof evidence on site. For example, the Yorta Yorta case involved 147 hearing days. To meetthis challenge the Court will monitor the allocation process to ensure that the native title workdoes not become too burdensome, and that the native title cases will be managed, heard anddetermined in a timely and appropriate manner.
Matters may be remitted or transferred to the Court under: Judiciary Act 1903, s 44Cross-vesting Scheme ActsCorporations Law. During 1998-99, 39 matters were remitted or transferred to the Court: 21 from the High Court of Australia18 from State or Territory Supreme Courts Matters may be transferred from the Court under: Federal Court of Australia Act 1976Jurisdiction of Courts (Cross-vesting) Act 1987Administrative Decisions (Judicial Review) Act 1977 Bankruptcy Act 1966Trade Practices Act 1974Corporations Act 1989.
During 1998-99, 43 matters were transferred from the Court: 2 to the Family Court of Australia;32 to State or Territory Supreme Courts; and 9 to District or County Courts.
The Chief Justice of the Federal Court is the Convenor of a body known as the Cross-Vesting MonitoringCommittee. The other members of the committee, usually judges, are the nominees of the Chief Justices of theFamily Court of Australia and the Supreme Courts of the States and Territories.
The purposes of the Cross-Vesting Monitoring Committee are: to monitor and compile statistics on the operation of the cross-vesting scheme; to identify problems in the operation of the scheme and to consider how they may be resolved; and to consider, in the light of the experience of the operation of the scheme, possible improvements to it.
The Cross-Vesting Monitoring Committee prepares a report each year for the Council of Chief Justices.
The Court’s program of Assisted Dispute Resolution (ADR), which commenced in 1987, is of the typedescribed as a court-annexed mediation program. The only matters dealt with in the program arise out ofproceedings in the Court. Mediations are normally conducted by the Court’s registrars who have been trained asmediators however, when parties wish to use the services of appropriately qualified external mediators, theCourt facilitates their doing so. Figure 2a on page 53 sets out the number of matters referred to mediators duringthe period 1994-95 to 1998-99. The program has proved popular, with a total of 1098 matters referred tomediation during the period 1994-95 to 1998-99, or an average of 220 referrals per reporting year.
Prior to 17 April 1997, the program was based upon parties consenting to mediation. However, from that date, s53A of the Federal Court of Australia Act was amended to provide for non-consensual mediation.
With the introduction of individual docketing, greater emphasis has been put on the identification, at an earlystage, of cases suitable for assisted dispute resolution. In the reporting year 347 matters were referred comparedwith 240 in 1997-98.
The settlement rates of cases referred to mediation since the commencement of the program in 1987 hasaveraged 55 per cent. Settlement rates at mediation should not, however, be the sole criteria by which theprogram is evaluated. Many matters which do not settle proceed to trial with issues better defined, or on thebasis of agreed facts, the facts being settled in cooperation with the mediator. In some instances the parties alsoagree that the Court should only be asked to determine liability or quantum. These types of results mean savingsin costs to the parties and court time.
Figure 2a shows the number of matters referred to mediation since 1994-95.
Figure 2a
Assisted Dispute Resolution (ADR) 1994-95 to 1998-99
(matters referred for mediation)
It should be noted that the figures reported are different from the figures reported in previous years. Thesevariations have occurred through the incorporation into previously published statistics of mediations conductedby external mediators, through refinements or enhancements to the Court’s FEDCAMS database whichnecessitated the checking or verification and possible variation of data previously entered, and from randomaudits of earlier data.
External mediation
Enhancements to the FEDCAMS ADR database have made it possible to report on matters referred to externalmediators. Eight referrals occurred in 1995-96, 70 in 1996-97, 28 in 1997-98 and 76 in the reporting year. Thesefigures are included in Figure 2a.


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