Summaries of Judgments of Interest
Decisions from the 2015-16 year; Ordered by National Practice Area (NPA).
The Court’s decisions of interest are ordered by National Practice Area (NPA).
Commercial and Corporations NPA | Commercial Contracts, Banking, Finance and Insurance Sub-area
Chubb Insurance Company Limited v Robinson  FCAFC 17
(26 February 2016, Foster, Robertson and Davies JJ)
In 2010, 470 St Kilda Road Pty Ltd (St Kilda) entered into a design and construct contract with Reed Constructions Australia Pty Ltd (Reed). Under that contract, Reed verified its progress claims by statutory declaration. Glenn Roy Robinson, an officer of Reed, swore one of these statutory declarations. St Kilda commenced a proceeding against Robinson, claiming damages for misleading and deceptive conduct and negligence. As, at the relevant times, Chubb Insurance Company of Australia Limited (Chubb) insured Reed for various losses incurred by its directors and officers, Robinson filed a cross claim claiming indemnity from Chubb in respect of any liability he may have been found to have. Chubb in turn claimed that Robinson’s actions were not indemnified as they would fall under the policy’s ‘professional services’ exclusion, which excluded from the cover any action that constituted the rendering of professional services.
In February 2013, the trial judge tried the question of whether the professional services exclusion applied. Her Honour found that Chubb would be liable to indemnify Robinson, as making a statutory declaration did not constitute rendering professional services.
The Full Court granted leave to appeal because, although the trial judge’s decision was interlocutory in form, it had the practical effect of finally determining the issues between Robinson and Chubb.
The appeal focussed on the construction of the insurance policy, specifically the professional services exclusion clause. Chubb argued that the trial judge had construed the clause too narrowly, incorrectly defined professional services and misapplied the contra proferentem rule.
The Full Court held that the trial judge had correctly construed the exclusion clause, referring to Chemetics, Fitzpatrick v Job, Vero and the recent Full Court decision in Todd. The Full Court agreed that, at the relevant times, project management was not a ‘profession’. The Full Court held that the provision of the statutory declaration in the circumstances of the case was not the rendering of a professional service by Robinson or Reed to St Kilda, nor was it conduct which took place in the course of rendering such services. The Full Court further found that the trial judge had appropriately applied the contra proferentem rule as a last resort in interpreting the exclusion clause.
The appeal was dismissed with costs.
Commercial and Corporations NPA | Corporations and Corporate Insolvency Sub-area
Caason Investments Pty Ltd v Cao  FCAFC 94
(3 September 2015, Gilmour, Foster and Edelman JJ)
Caason involved an application for leave to appeal following a refusal of the primary judge to grant leave to amend the statement of claim so as to include pleadings of ‘market-based’ causation, as distinct from ‘reliance-based’ causation. The appeal was focused on whether market-based causation is arguable as a pleading point. It was not a determination as to whether it would ultimately be vindicated as a correct application of principle in the case.
The substantive proceeding was a class action brought by the applicants on behalf of themselves and group members who acquired shares in Arasor International Ltd between 11 October 2006 and 12 May 2008.
The applicants pleaded that they, in dealing on-market, acted differently, in that they acquired Arasor Shares at a price higher than the price that would have prevailed but for the contraventions and/ or retained the Arasor Shares in the circumstances of an inflated market. The applicants further contended that a range of persons, being the market, acted differently. Thus, their causation case relied on the market of investors operating efficiently in that there are sufficient participants making decisions which cause the market to reflect information which was or ought to have been disclosed to the market.
The Court by majority (Gilmour and Foster JJ) held that the primary judge was in error as a matter of principle in concluding that a claim based on s 729 of the Corporations Act 2001 (Cth) which does not plead reliance is not viable. The majority held that whilst reliance is a sufficient condition for establishing causation, it is not a necessary one. There was also persuasive support in the superior court decision, the majority held, for the arguability of a market-based causation case in the relevant context.
Jones v Treasury Wine Estates Ltd  FCAFC 59
(13 April 2016, Gilmour, Foster and Beach JJ)
The decision in Jones is an example of the application of modern judicial case management principles, particularly in relation to discovery, which is no longer a matter of course or of right.
The applicant, without notice to the docket judge or the respondent, upon ex parte applications, obtained orders in two proceedings in the United States (US Proceedings) under 28 USC §1782 of the Federal Rules of Civil Procedure. These orders related to the obtaining of oral discovery, commonly referred to in the US as ‘depositions’, from present and former senior executives of the respondent, Treasury Wine Estates Ltd, (TWE) going to issues raised in the litigation on foot in Australia.
TWE sought, by interlocutory application, orders in the nature of anti-suit injunctions in relation to the US Proceedings, restraining the applicant from any such oral depositions.
The Court was critical of the actions of the applicant, which were ‘patently made in order to obtain the benefit of processes not available in this Court’. Interrogatories in Australia are conceptually different to oral discovery of the kind permitted under the US procedure, and whilst 28 USC §1782 orders are not forbidden to Australian proceedings, they must be obtained with the consent of the Court.
The matter had been the subject of case management conferences and detailed directions had been given for the specific, proper and efficient management of the case for a trial, the date of which had been fixed. The 28 USC §1782 orders were obtained without the prior knowledge of both the Court and the respondent.
There was no finding that Australian litigants are in any way barred from employing the US proceedings in question. Rather, the important outcome of Jones is that any such process must be framed within the context of the Court’s case management proceedings.
Australasian Centre for Corporate Responsibility v Commonwealth Bank of Australia  FCAFC 80
(10 June 2016, Allsop CJ, Foster and Gleeson JJ)
This appeal concerned the power of shareholders in general meeting to pass resolutions about the management of the company.
The appellant proposed to move one of three alternative resolutions at the Bank’s 2014 Annual General Meeting (AGM). The Bank included the appellant’s third proposed resolution in the AGM notice, but declined to include the others on the basis that they regarded matters within the powers of the Board.
In the first instance, the appellant sought a declaration that the disputed resolutions ‘could validly be moved’ at an AGM. The primary judge found that those resolutions were not referable to a power vested in the shareholders at the general meeting, and were referable to the power of management vested exclusively in the Bank’s directors, and therefore were not required to be included in the notice.
On appeal, the appellant contended, inter alia, that the primary judge erred in concluding that it was necessary to identify a source of power in the shareholders at general meeting to pass resolutions, or alternatively, that the shareholders had the requisite power by reason of their plenary or implied power to express opinions concerning the management of the company.
In its reasons, the Full Court considered the statutory context, the nature of resolutions and the business of AGMs, referring to well-established principles of company law. The Full Court held Clifton v Mount Morgan is authority for the proposition that shareholders in general meeting have no authority to speak or act on behalf of the company except to the extent and in the manner authorised by and consistent with the company’s constitution or any relevant statute.
The Full Court dismissed the appellant’s suggestions as to the source of shareholders’ power to pass resolutions regarding the company’s management. The Full Court found that Parker v NRMA was a correct statement of the law in relation to the power required to express an opinion about company management; a power that shareholders generally do not have.
Despite the appellant’s argument that the Court should not make a costs order where the proceedings had been brought in the public interest, the Court found that the case did not warrant a departure from the usual rule of costs following the event and so dismissed the appeal with costs.
Commercial and Corporations NPA | Economic Regulator, Competition and Access Sub-area
Investa Properties Pty Ltd v Nankervis (No 7)  FCA 1004
(10 September 2015, Collier J)
Two development sites in the western suburbs of Brisbane were owned by the applicants. Mr Nankervis (the first respondent) was a senior development manager employed by the first applicant. The applicants decided to sell both sites in the aftermath of the global financial crisis of 2008. They engaged the fourth respondent, Oliver Hume South East Queensland Pty Ltd, to effect a sale of these properties on their behalf. The second respondent, Mr Barclay, was a director of, and an individual real estate agent employed by, the fourth respondent.
It was not disputed that the first parcel of land (Lot 191) was sold to a company controlled by the wife of Mr Barclay. The second parcel of land (Lot 170) was sold to a company controlled by a third party, Mr Tonuri. The applicants claimed that Mr Tonuri had secretly entered an agreement with Mr Nankervis and Mr Barclay by which they would participate and derive profits from the development of Lot 170.
At the time of the sales, the applicants were unaware of the relationship between Mr Nankervis, Mr Barclay and the respective purchasers of the sites.
A key issue affecting the relationship between the applicants and the second and fourth respondents was the fact that no formal appointment of the fourth respondent as real estate agent had been made by the applicants pursuant to the Property Agents and Motor Dealers Act 2000 (Qld).
The applicants claimed breach of fiduciary duty by all three respondents. There were also five cross claims between the respondents and against the insurer of the fourth respondent. Of the cross claims only one succeeded.
The Court found that Mr Nankervis owed fiduciary obligations to the applicants in respect of both Lot 191 and Lot 170 and that he breached those fiduciary obligations.
The Court also found that the fiduciary obligations, if any, owed to the applicants by Mr Barclay and the fourth respondent would be the same because of the employment and corporate relationship between Mr Barclay and the fourth respondent. The Court was satisfied that there was a fiduciary relationship between the applicants and the fourth respondent in respect of Lot 191 but not in respect of Lot 170, and that both respondents had acted in breach of that relationship.
ACCC v Australia and New Zealand Banking Group Ltd  FCAFC 103
(31 July 2015, Allsop CJ, Davies and Wigney JJ)
The ACCC alleged that the Australia and New Zealand Banking Group Ltd (ANZ) had engaged in anti-competitive practices, by entering into a price- fixing agreement with a mortgage broker which had the purpose or effect of substantially lessening competition in the market (within the meaning of s 45A of the Trade Practices Act 1974 (Cth)). The focus of the case, at trial and on appeal, was as to the proper characterisation, for the purposes of competition law, of the concepts of ‘market’ and ‘competition’, and of whether bank branches and mortgage brokers could be said to be providing services in the same market and in competition with one another. In approaching that task the Court was also required to consider and characterise the nature of the interactions between the various participants in the market for mortgage loans, and of the services provided by those participants.
The Full Court of the Federal Court dismissed the appeal, holding that it was reasonably open on the evidence for the primary judge to conclude that the bank did not participate in the same market as the mortgage brokers, and was therefore not, in any relevant sense, in competition with the broker. In dismissing the appellant’s challenge to the primary judge’s factual findings, the Full Court emphasised that:
1. The process of market identification or definition must be conducted in a generally purposive manner and be directed to the specific problem or issue at hand.
2. The question of whether persons are supplying products in competition with each other in the same market must be answered by reference to economic and commercial reality, not by reference to an artificial construct of the market and services provided.
3. The essence of competition is substitutability, in a real-world commercial sense. The courts must assess whether the participants are offering similar and competing services.
The Full Court also allowed a cross appeal by ANZ, holding that the refund arrangement was appropriately characterised as a payment made to induce customers to use the services provided by the mortgage broker, and was not a payment made to offset or reduce the cost to the consumer of using the services. It therefore could not be properly characterised as a rebate, discount, allowance, or credit.
ACCC v P T Garuda Indonesia Ltd  FCAFC 42
(21 March 2016, Dowsett, Yates and Edelman JJ)
The ACCC appealed from a decision in relation to proceedings against P T Garuda Indonesia Ltd, and Air New Zealand Ltd (the airlines) for price fixing contraventions under s 45 of the Trade Practices Act 1974 (Cth) (the Act) with respect to freight and cargo surcharges. The primary judge found that there was no contravention because the airlines were not in competition with each other in ‘a market in Australia’ as defined by ss 45A and 4E of the Act.
The appeal centred on whether or not a market for carriage of cargo by air from specified ports of origin in Asia, to specified ports in Australia, was ‘a market in Australia’ for the purposes of the Act. Justices Dowsett and Edelman (Yates J dissenting), in a joint judgment found that the relevant market to include a suite of air cargo services between foreign ports and Australian ports. Their Honours held that the relevant market was ‘a market in Australia’ for several reasons including:
(1) that a market could be in Australia even if it were also in another country;
(2) the legislation allows for consideration of the location of Australian customers;
(3) a significant part of the suite of services occurred in Australia;
(4) the suite of services involved barriers to entry in Australia;
(5) the services were marketed, and the airlines competed for business, in Australia;
(6) the legislative purpose of the Act to promote competition was consistent with the conclusion that there is a market in Australia; and
(7) the finding would be consistent with comparable foreign cases in Europe and New Zealand.
Another issue was whether ss 45 and 45A of the Act were inconsistent with terms or the practical effect of the Air Navigation Act 1920 (Cth) (the Air Navigation Act). Dowsett and Edelman JJ held that the provisions of the Act were not inconsistent with the terms of s 13(b) of the Air Navigation Act because s 13(b) gave the Minister a power to suspend or cancel an international airline licence but did not create new legislative duties. Their Honours also held that the provisions of the Act were not inconsistent with the practical effect of s 13(b) of the Air Navigation Act, when read with an Australia- Indonesia Air Services Agreement or the terms of Garuda’s airline licence because (i) the Minister had a discretion whether or not to cancel an airline licence; and (ii) the Air Services Agreement and the airline licence did not require Garuda to enter into price fixing arrangements. In any event, their Honours concluded that Part IV of the Act could not be read down to exclude international commercial aviation.
Commercial and Corporations NPA | Regulator and Consumer Protection
Australian Competition and Consumer Commission v Jetstar Airways Pty Limited  FCA 1263
(17 November 2015, Foster J)
This case determined the Australian Competition and Consumer Commission (ACCC) complaints against two low cost airlines – Jetstar Airways and Virgin Australia Airlines.
The ACCC complained that, between 2013 and 2014, Jetstar and Virgin advertised and promoted airfares for sale on their websites, their mobile websites and via promotional email without adequate disclosure of the requirement to pay a fee for purchases made using commonly used payment methods. The ACCC alleged that, by this conduct, the airlines made false representations regarding the price and conditions of sale of flights, which were misleading and deceptive or likely to mislead or deceive, in contravention of the Australian Consumer Law (ACL).
The ACCC relied on the contention that the airlines had used a ‘carefully constructed staged booking process throughout which information was disclosed on a progressive basis’, which seduced consumers into the sellers’ ‘web of negotiation’ or ‘marketing web’. The airlines argued that they had not made the impugned representations as they had sufficiently disclosed the booking fee before the transaction was completed.
These allegations were significant because they raised for the Court’s consideration the limits of advertising techniques which use the internet and mobile phone networks to promote and sell products and services.
In these proceedings, the ACCC used video capture evidence to demonstrate the booking process on each of the airlines’ websites and mobile sites. The Court found this evidence useful and reliable.
In relation to the website contraventions by Jetstar, the Court found that Jetstar only contravened the ACL in September 2013, and that subsequent changes to how the fee was disclosed avoided further contraventions. The Court found that there were no contraventions by Virgin in relation to its website, as prices were advertised as ‘from’ a certain price and the existence of the booking fee was disclosed early enough in the booking process as to negate the effect of any representation. The Court further found that in relation to the mobile websites, both airlines had contravened the ACL by not adequately disclosing the booking fee, but in relation to the emails there was no contravention by either airline.
The question of penalty and costs was reserved.
Administrative and Constitutional Law and Human Rights NPA
Esposito v Commonwealth of Australia  FCAFC 160
(17 November 2015, Allsop CJ, Flick and Perram JJ)
In 2007, Shoalhaven Council sought to rezone certain allotments on the NSW South Coast as residential, and to provide necessary supporting infrastructure. Because the land was home to threatened species, the Council sought approval for the rezoning and infrastructure works from the federal Environment Minister under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the EPBC Act), which was refused. In 2012, the Commonwealth and NSW agreed to voluntarily acquire the land, using Commonwealth funds, to add it to the National Park. Some but not all landowners took up the offer.
In 2013, current and former landowners brought a class action against the Commonwealth, NSW and others seeking compensation and declaratory relief on two main grounds: first, that the Commonwealth had acquired the land without providing just terms contrary to s 51(xxxi) of the Constitution; and secondly, that the Minister’s decision to refuse the Council’s proposal was liable to administrative review. Other minor points were also pursued.
The Constitutional argument failed chiefly because neither the prohibitions imposed by the EPBC Act nor the Minister’s decision constituted an acquisition of property. The applicants lost a mere hope (or spes) that their land might be rezoned, which is not property; and the benefits that the Commonwealth received, if any, were not proprietary either. An allegation that the agreement between the Commonwealth and NSW was a device to avoid s 51(xxxi) was not made out.
The administrative argument, on the other hand, succeeded in part. The EPBC Act did not require authorisation of the Council’s zoning decision (cf. the Council’s infrastructure works proposal), and the Minister’s decision was therefore ultra vires to the extent that it dealt with the rezoning proposal. However, the Court rejected the submission that the decision should be set aside in its entirety (the error was plainly severable), and refused declaratory relief because in the circumstances it would not have been consistent with good administration to declare the decision partially invalid.
Other arguments, including those based on unjust enrichment, various interlocutory decisions, and the fact that the primary judge produced two sets of reasons with trivial and less trivial differences, failed.
Minister for Immigration and Border Protection v Stretton  FCAFC 11
(15 February 2016, Allsop CJ, Griffiths and Wigney JJ)
The respondent, a British citizen, arrived in Australia as a child in 1961 and had resided in the country since that time. In 2009, Mr Stretton committed sexual offences in relation to his granddaughter and was sentenced to a period of imprisonment of two years. Prior to his release from prison the Minister gave notification of an intention to consider cancelling his visa under s 501(2) of the Migration Act 1958 (Cth), and subsequently the Minister personally determined to cancel the visa, on the basis that Mr Stretton had failed the character test. The primary judge allowed Mr Stretton’s application for judicial review, finding that the decision was unreasonable and that the Minister’s exercise of his direction was ‘in excess of what, on any view, was necessary for the purpose it served’.
The central question for the Full Court was whether the primary judge had correctly applied the principles concerning judicial review for unreasonableness in the legal sense, as expressed in authorities such as Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437. In addressing that question, the Full Court stated that the Court’s task was not definitional, but one of characterisation, and emphasised that the statements relating to legal unreasonableness provided in the case law were designed to be explanations or explications, rather than exhaustive descriptions or definitions.
The Full Court held that the Court’s task is not to make an assessment of what it thought was reasonable and to thereby conclude that any other view displayed error. Rather, its task is to assess whether a decision-maker could reasonably come to the conclusion reached or whether the decision should instead be characterised as one which was not a reasonable and rational exercise of a power made in furtherance of the protection of the Australian community.
The Full Court allowed the appeal, finding that it was reasonably open for the Minister to reach the ultimate conclusion which he did, and that he had properly evaluated the countervailing considerations. It further held that the primary judge had erred by introducing an extraneous concept (what was ‘necessary’) in considering the Minister’s decision.
Tasmanian Aboriginal Centre v Secretary, Department of PIPWE (No 2)  FCA 168
(1 March 2016, Mortimer J)
In this proceeding, the Tasmanian Aboriginal Centre sought orders preventing the Tasmanian Government from opening three tracks in the Western Tasmania Aboriginal Cultural Landscape (WTACL) to recreational vehicles. The WTACL contains a number of indigenous heritage sites, including middens and hut depressions that provide a record of the way of life of indigenous people who lived in the area over thousands of years.
In 2013, the Federal Minister for the Environment designated the WTACL as a ‘National Heritage place’ under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (the Act) by reason of its ‘indigenous heritage values’. Under the Act, ‘indigenous heritage value’ means a heritage value of a place that is of ‘significance to Indigenous persons in accordance with their practices, observances, customs, traditions, beliefs or history’.
The Court held that the proposed opening of the tracks was an ‘action’ for the purposes of the Act and was not a ‘governmental authorisation’ for another person to take an ‘action’. Therefore, the Act applied to the proposed opening of the tracks.
Next, the Court held that the ‘indigenous heritage values’ of a place include its significance to Aboriginal people in accordance with their practices, observances, customs, traditions, beliefs or history. Thus, the ‘indigenous heritage values’ of a National Heritage place are not limited to the text of the Ministerial declaration for the place, nor are they limited to the values mentioned in the assessment prepared by the Australian Heritage Council that precedes a Ministerial declaration.
Finally, the Court held that, on the evidence, the opening of the tracks was likely to have a ‘significant impact’ on the National Heritage values of the WTACL, being its Indigenous heritage values, contrary to s 15B(4) of the Act. The Court made a declaration to that effect.
Plaintiff S99 of 2016 v MIABP  FCA 483
(6 May 2016, Bromberg J)
The applicant was a young African woman who arrived in Australia by boat and was removed to Nauru. She was there detained and, upon being accepted as a refugee, was released into the Nauruan community. Throughout, the respondent Minister and the Commonwealth provided her with food, accommodation, security, and health services. The applicant suffered, inter alia, from seizures and psychiatric illness. Whilst on Nauru, experiencing a seizure and unconscious, she was raped and fell pregnant. The applicant requested that the Commonwealth provide for the termination of her pregnancy. For that purpose, she was taken to Papua New Guinea (PNG). In a proceeding commenced in the High Court and transferred to the Federal Court, the applicant contended that the respondents owed her a duty of care requiring that she be provided a safe and lawful termination. She argued that a termination in PNG may expose her to criminal prosecution, and that it would not be safe because the nature of her ailments required specialist medical expertise and facilities unavailable in PNG.
Justice Bromberg considered whether the respondents owed a duty of care to exercise reasonable care in procuring a safe and lawful abortion for the applicant. It was determined that the proper law of the alleged tort was Australia and not PNG. In applying the Stavar multi-factorial approach to the determination of the existence of a novel duty of care, Bromberg J considered the relationship of the applicant with the respondents, including the circumstances of her removal to Nauru, her detention and continued presence there, and the respondents’ provision of settlement and health services to her. Consideration was also given to the consistency of the putative duty with the statutory scheme and with policy, to the applicant’s vulnerability, and to the respondents’ assumption of responsibility for her. Justice Bromberg determined that the applicant was owed a duty of care. Applying the Shirt formula, Bromberg J determined that procuring an abortion for the applicant in PNG would not discharge the duty of care. The Court made orders requiring the respondents to cease failing to discharge their duty, in effect by procuring an abortion without risk of breaching criminal law, and where necessary specialist medical expertise and facilities were available. Justice Bromberg rejected the respondents’ contention that the Court lacked jurisdiction to make the orders sought because s 474 of the Migration Act 1958 (Cth) precluded the issue of injunctive relief in the subject proceeding.
Native Title NPA
Wyman on behalf of the Bidjara People v State of Queensland  FCAFC 108
(13 August 2015, North, Barker and White JJ)
The appellants, the Brown River people and the Bidjara people, separately appealed determinations made by the primary judge that native title did not exist in the claim area overlapped by their claims under the Native Title Act 1993 (Cth) (the Act). The Court dismissed each of the grounds of appeal.
The key question raised for the Full Court’s consideration was whether, in focusing on those of the laws and customs of each of the appellants which were acknowledged by them at sovereignty but had since been discontinued, the primary judge erred by failing sufficiently to appreciate the ‘continuities’ that suggested the maintenance by each of a traditional normative system, as required by Members of the Yorta Yorta Aboriginal Community v State of Victoria and Others (2002) 214 CLR 422. In considering this question, the Court noted that a society may continue to exist even though traditional laws and customs may cease. The first step in the inquiry is to ascertain what the traditional laws and customs were. Then, the laws and customs of the contemporary society can be compared. Some laws and customs may have been lost, while other aspects of the contemporary society may be a continuation, albeit in altered form, of traditional law and customs. The Court held that if, despite the discontinuities, there is nonetheless a ‘normative system’ out of which rights and interests arise, which is rooted in the sovereignty system, then those rights and interests may be recognised under the Act.
In the circumstances, the Full Court placed particular emphasis on the ‘important’ discontinuity of the ‘tenure system’. The primary judge found the contemporary ‘rule’ that the whole of the claim area belonged equally to all respective claimants, stood in ‘stark contrast’ to the traditional, sovereignty rule under which each of the appellants had differential rights and responsibilities in land based on familial/ environmental clusters. The Full Court considered that, because there was no evidence to explain the rule’s evolution, it was difficult to second-guess the primary judge’s finding that the contemporary rule was a new rule, following a complete break in the continuity of the old rule.
The Full Court also upheld the appropriateness of a negative determination of native title, as recently confirmed by another Full Court (North, Mansfield, Reeves, Jagot and Mortimer JJ) in CG (Deceased)on behalf of the Badimia People v State of Western Australia  FCAFC 67.
Tech Mahindra Limited v Commissioner of Taxation  FCA 1082
(7 October 2015, Perry J)
The applicant taxpayer was resident in India and registered in Australia. It provided IT services to Australian customers through offices in Australia constituting a permanent establishment for the purposes of the agreement between Australia and India for the avoidance of double taxation (the Indian Agreement). The IT services were performed partly by employees located in India (the Indian Services). The taxpayer argued it was not liable to taxation under the Income Tax Assessment Act 1997 of income earned from the Indian services because Australia had no right to tax that income under Article 7(1) of the Indian Agreement. Article 7(1) established the general rule that the profits of an enterprise of one contracting State (relevantly India) were liable to tax only in that State subject to exceptions including where the profits were attributable to business activities of the same or a similar kind as those carried out through a permanent establishment located in the other contracting State (Australia). Nor, in the applicant’s submission, could the payments be taxed as royalties under Article 12 of the Indian Agreement as Article 12(4) gave priority to Article 7 even if, contrary to the applicant’s submission, they could be characterised as royalties.
Justice Perry held that, in line with Parliament’s intention to fulfil its intentional obligations by enacting the treaty text, the treaty as enacted should be construed by reference to principles of international law governing treaty interpretation. Applying those principles, her Honour held that certain categories of payments in Australia for the Indian services constituted royalties within Article 12(3)(g) of the Indian Agreement and were thereby deemed income derived from Australian sources. In so holding, her Honour held that Article 12(4) was not engaged and the case fell to be decided under Article 12. In the alternative, Perry J considered that Australia would not be entitled to tax the payments under Article 7. The contrary construction urged by the Commissioner would, in her Honour’s view, run counter to the State parties’ apparent intention to encapsulate in Article 7(1) the ‘limited force of attraction’ rule as established in international practice, namely, to permit a country to tax in addition to profits attributable to the foreign resident’s permanent establishment, other income attributed to other business activities carried on within that country otherwise than through the permanent establishment.
Cable & Wireless Australia & Pacific Holding BV (in liquidatie) v Commissioner of Taxation  FCA 78
(11 February 2016, Pagone J)
The issue in this proceeding was whether the non- resident applicant was entitled to a refund of $452M in dividend withholding tax following Optus’ buy-back of its shares from the applicant. Optus and SingTel had entered into an implementation agreement for SingTel to acquire Optus. Optus debited the consideration to an account labelled ‘buy-back reserve account’. The payment was treated by all concerned as part of a dividend on which withholding tax was to be paid.
In Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, the High Court found that an account labelled ‘share buy-back reserve account’ was an account which a company had kept of its share capital, against which the purchase price was debited, within the definition of s 6D for the purposes of s 159GZZZP of the Income Tax Assessment Act 1936. An objective of ss 6D and 159GZZZP is to ensure that a shareholder is not taken to receive a taxable dividend in an off market buy-back of shares for the return of the capital contributed to the company for the issue of the shares. The applicant contended that the buy-back reserve account was a share capital account and, therefore, the amount debited to the account for the shares was not taken to be a dividend paid by Optus.
Finding against the applicant, Pagone J held that the decision in Consolidated Media did not mean that all accounts with such labels are share capital accounts. The fact that an outgoing has an impact upon a company’s equity does not mean the outgoing is a reduction in capital. The source of Optus’ funding was from loans from SingTel required to be provided under the implementation agreement. The buy-back in Consolidated Media had involved a return of excess capital from a company to its shareholder whereas Optus’ buy-back did not return capital to its shareholders in excess of the needs of Optus but was, in an economic sense, a substitution of the capital which had previously been contributed by its previous shareholder with that funded by its subsequent shareholder.
Intellectual Property NPA - Trade Marks Sub-area
Veda Advantage Pty Ltd v Malouf Group  FCA 255
(21 March 2016, Katzmann J)
Veda Advantage is a member of the Veda group of companies, which operate a credit reporting business. It is also the registered owner of a number of trade marks, consisting of or incorporating the word ‘VEDA’. Malouf runs a ‘credit repair’ business, assisting consumers with poor credit ratings to rectify errors in credit reports, predominantly those issued by Veda. Malouf advertises its business on the internet. For that purpose it uses the Google AdWords program. Google AdWords involves advertisers specifying to Google ‘keywords’ which generate sponsored link advertisements when the advertiser’s chosen ‘keyword’ is used as a search term by an internet user. Malouf’s campaign used keywords that included the names of Veda trade marks, such as ‘veda advantage’, ‘contact veda’ and ‘veda credit check free’. Malouf also used the name ‘Veda’ in the display text of sponsored links advertisements such as ‘Get Your Veda File Now’ and ‘Fix Your Veda Report’.
Veda alleged that by using its various trade marks both as keywords and in its sponsored link advertisements Malouf had infringed the Veda trade marks within the meaning of s 120 of the Trade Marks Act 1995 (Cth) and made false or misleading representations that Malouf’s business or services were those of Veda, in contravention of s 18 and other provisions of the Australian Consumer Law. Veda also claimed that Malouf’s keywords falsely represented that Malouf provided free Veda credit reports. A critical issue in the trade mark infringement case was whether Malouf had used the sign ‘Veda’ and the other Veda marks as trade marks.
The Court held that the use of the Veda marks as keywords was neither use as a trade mark nor misleading or deceptive. As the keywords were not visible to the public, the Court considered that they did not serve as a badge of origin or indicate a connection in the course of trade between Malouf’s services and those provided by Veda. For the same reason, the Court concluded that Malouf did not make any representations to customers by its use of the trade marks in its keywords.
Veda’s claims in relation to the display text of the sponsored links enjoyed only modest success. The Court found that in all but one case, the references to Veda were descriptive uses only and were not apt to mislead. The exception was an advertisement headed ‘The Veda Report Centre’. The Court found that this had an authoritative air and represented that the services the searcher would receive if she or he clicked on the links were services provided by Veda.
Employment and Industrial Relations NPA
Esso Australia Pty Ltd v The Australian Workers’ Union  FCAFC 72
(25 May 2016, Siopis, Buchanan and Bromberg JJ)
During bargaining for enterprise agreements at certain Esso Australia Pty Ltd (Esso) facilities, the Australian Workers’ Union (AWU) organised industrial action by its members. Esso alleged that the industrial action taken was not ‘protected action’ under the Fair Work Act 2009 (Cth) (the Act), and sought injunctions and damages. Justice Jessup, the trial judge, determined that the industrial action taken was unprotected and therefore not immune from suit. Both parties appealed.
On appeal before Justices Siopis, Buchanan and Bromberg, most challenges to Justice Jessup’s judgment failed. In determining the appeal, the Full Court addressed a number of important questions relating to the interpretation of provisions of the Act regulating the taking of industrial action. Section 418 of the Act was considered and it was held that certain orders made by the Fair Work Commission (FWC) requiring that industrial action stop lacked specificity and were invalid, in whole or in part. Section 413(5) of the Act was held not to operate to deny protection to industrial action otherwise than in conditions of current non-compliance with an FWC order. Sections 343 and 348, dealing with coercion, were also considered. It was held that it was not necessary to establish that a contravener intended to act unlawfully, and that it was not a defence that the contravener believed its action to be lawful. The Full Court further considered s 414 and the requirement for a notice of industrial action to be given, in circumstances where the nature of the industrial action notified by the AWU was open to both a wide and a narrow meaning. By majority, the Full Court held that the notice given by the AWU was to be construed as having its narrow meaning and, as a result, that the industrial action organised by the AWU was not covered by the notice given and was unprotected.