High Court of Australia Judgment Summary Notes

MRR v GR [2010] HCA 4 (3 March 2010)

On 3 December 2009 the High Court allowed the applicant’s appeal from a decision of the Full Court of the Family Court dismissing her appeal against orders of a Federal Magistrate. The Full Court should have held that it was not open to the Federal Magistrate, on the evidence before him, to find that it was reasonably practicable for the daughter of MRR and GR to spend equal time or substantial and significant time with each of her parents; and therefore it was not open to the Federal Magistrate to consider making the order described in s 65DAA(1)(c) of the Family Law Act 1975 (Cth). The High Court has published its reasons for decision.

The parents lived together in Sydney from 1993 until 2007. Their daughter was born in August 2002. In January 2007 the family moved to Mount Isa to allow the husband to gain work experience. The parents separated in August 2007. Following the separation the wife and her daughter lived in Sydney. However, they returned to Mount Isa in October 2007 in accordance with interim orders sought by the father and made by the Federal Magistrates Court. On 1 April 2008 the Federal Magistrates Court made final parenting orders, which provided that the parents have equal shared responsibility for their daughter and that she spend equal time with each of them. The orders were made on the basis that both parents would live in Mount Isa. The Full Court of the Family Court dismissed the wife’s appeal and the High Court granted her special leave to appeal from that decision

The Family Court and the Federal Magistrates Court (the Court) may make parenting orders under s 65D of the Family Law Act. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration in making parenting orders. Under s 61DA the Court must apply a presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility, though the presumption may be rebutted. If the Court is considering making an equal shared parental responsibility order then it must, under s 65DAA(1), consider whether it is in the child’s best interests, and whether it is reasonably practicable, for the child to spend equal time with each parent. If both of those things are so, the Court may consider making an order for the child to spend equal time with each parent.

When the parents separated, the husband made it very clear that even if his daughter were living in Sydney with her mother he would not consider leaving his employment in Mount Isa to find alternative work in Sydney. He was determined to stay in Mount Isa. When the orders were made the wife was living in a caravan park in Mount Isa, and relying on welfare payments and income from casual employment to support herself. She was also suffering depression arising out of her poor living conditions, lack of employment opportunities and isolation from her family in Sydney.

The High Court noted that the Federal Magistrate had applied the presumption that equal shared parental responsibility was in the child’s best interests. However, in considering whether he should therefore make an order under s 65DAA(1) for the child to spend equal time with each of her parents, the Federal Magistrate addressed only the question whether it was in the child’s best interests for her to spend equal time with each of her parents. He made no assessment of whether spending equal time with each parent was actually feasible. That is, he failed to make a finding about a statutory condition which was mandatory in determining whether an order for the child to spend equal time with her parents could be made. The High Court held that if the Federal Magistrate had undertaken that assessment, the evidence before him would not have permitted him to find that it was ‘reasonably practicable’ for the child to spend equal time with each parent. Thus he had no power to make orders for equal time parenting.

The High Court allowed the wife’s appeal and ordered that the orders of the Federal Magistrates Court be set aside. The matter was remitted to the Federal Magistrates Court to be reheard.

Amaca Pty Ltd v Ellis; The State of South Australia v Ellis; Millennium Inorganic Chemicals Ltd v Ellis [2010] HCA 5 (3 March 2010)

The High Court has held that the death of a long-term and heavy smoker from lung cancer had not been shown on the evidence to have been caused or materially contributed to by his exposure to asbestos fibres at particular times during his working life. Paul Cotton died from lung cancer in 2002. During his working life he had been exposed to respirable asbestos fibres with two separate employers. Between 1975 and 1978 Mr Cotton worked for the South Australian Engineering and Water Supply Department where he worked with asbestos cement pipes manufactured by Amaca Pty Ltd (formerly James Hardie & Coy Pty Ltd). Between 1990 and his death in 2002 he worked for Millennium Inorganic Chemicals Ltd, where he was also exposed to asbestos. Mr Cotton had also smoked on average between 15 and 20 cigarettes a day for slightly more than 26 years before he was diagnosed with lung cancer.   Following Mr Cotton’s death, the executor of his estate, Teresa Ellis, pursued actions in negligence originally brought by Mr Cotton against the State of South Australia, Amaca and Millennium in the Supreme Court of Western Australia. The trial judge found that all three defendants had been negligent and that breaches of the duties each of them owed to Mr Cotton had resulted in his being exposed to respirable asbestos fibre which caused, or materially contributed to, his contraction of lung cancer. A majority of the Court of Appeal of the Supreme Court of Western Australia dismissed the defendants’ appeals. The High Court granted special leave to each of the defendants to appeal the Court of Appeal’s decision.   The central question was whether it had been shown that it was more probable than not that exposure to asbestos was a cause of Mr Cotton’s lung cancer. The executor of his estate submitted that epidemiological evidence supported an inference that exposure to respirable asbestos fibres, operating interdependently with tobacco smoke, had caused Mr Cotton’s lung cancer. However, the High Court held that the evidence established only that exposure to asbestos may have been a cause of Mr Cotton’s lung cancer, not that it was a probable cause. Indeed the statistical evidence pointed away from an inference that exposure to asbestos in combination with smoking tobacco was a probable cause of Mr Cotton’s lung cancer. The High Court allowed the appeals of each of Amaca, Millennium and the State of South Australia.

European Bank Limited v Robb Evans of Robb Evans & Associates [2010] HCA 6 (10 March 2010)

After its success before the Court of Appeal of the Supreme Court of New South Wales, European Bank Ltd was unable to enjoy the funds owed to it. They had been paid into Court pending the outcome of Mr Evans’ application for special leave to appeal against a separate decision of the Court of Appeal. Mr Evans gave the usual undertaking as to damages. The High Court has held that, pursuant to that undertaking, Mr Evans was liable to compensate European Bank for the losses suffered from its inability to convert those funds from United States dollars to euros.   Mr Evans unsuccessfully sued European Bank for US$7.5 million in the Equity Division of the Supreme Court of New South Wales. The Court of Appeal dismissed Mr Evans’ appeal.   Mr Evans determined to seek special leave to appeal against that decision to the High Court. He gave the “usual undertaking as to damages” (that is, an undertaking to submit to any order the Court may consider to be just for the payment of compensation, such compensation to be assessed by the Court) and the Court of Appeal ordered that an amount of US$8,731,023.73 be paid into Court, pending the outcome of the High Court application. (That amount would otherwise have been paid to European Bank in accordance with the judgment the Court of Appeal had entered in its favour in a separate but related appeal.) A court officer invested the amount in an interest- bearing account with the Westpac Banking Corporation.   On 11 March 2005 the High Court dismissed Mr Evans’ application for special leave to appeal and thereafter the Court of Appeal ordered that the amount in the Westpac investment account be paid to European Bank. In May 2005 European Bank instituted proceedings in the Supreme Court for an assessment of the compensation payable pursuant to the undertaking as to damages Mr Evans had given to the Court of Appeal.   The primary judge made findings including the following:

b. but for the Court of Appeal order for the funds to be paid into court, European Bank would have converted the funds from United States dollars into euros in July 2004; and

c. European Bank would thereby have earned, in addition to the interest earned in the Westpac investment account, US$800,000.

The primary judge ordered Mr Evans to pay to European Bank the sum of A$1,251,008.33 as compensation. The Court of Appeal, however, set aside the orders made by the primary judge, finding that the loss suffered by European Bank was too remote and not a natural consequence of the orders made for the funds to be paid into court. The High Court granted European Bank special leave to appeal that decision.   The High Court unanimously held that the appeal should be allowed. The relevant questions for the primary judge were:

1. what was the alleged loss;

2. did the loss flow directly from the court’s order for funds to be paid into court; and

3. could the loss have been foreseen at the time the order was made?

The third question required an inquiry as to whether a loss of the kind actually sustained could have been foreseen, not whether the actual loss suffered was foreseen at the time the undertaking was given. The primary judge had found that European Bank’s loss had flown directly from the order and that the loss could have been foreseen. Those findings had not been disturbed by the Court of Appeal, and the primary judge’s decision should not have been set aside.

Muslimin v The Queen [2010] HCA 7 (10 March 2010)

A provision of the Fisheries Management Act 1991 (Cth) (the FMA) which prohibits a person having in his or her possession a foreign boat equipped with nets, traps or other equipment for fishing in a place in the Australian Fishing Zone (AFZ) is not a provision in relation to “fishing” as defined in s 4 of the FMA. Thus s 12(2) of the FMA does not apply to extend the operation of the provision to what happens above the Australian continental shelf but outside the AFZ, the High Court has held.   The appellant, Mr Muslimin, was charged with an offence under s 101(2) of the FMA. The indictment alleged that, in April 2008, at a place in the waters above the Australian continental shelf but outside the AFZ, the appellant had in his possession a foreign boat equipped with nets, traps or other equipment for fishing for sedentary organisms. Mr Muslimin was tried and convicted in the Supreme Court of the Northern Territory and a majority of the Court of Criminal Appeal of the Northern Territory dismissed his appeal. The High Court granted the appellant special leave to appeal.   Section 101(1) of the FMA prohibits a person having in his or her possession a foreign boat equipped with nets, traps or other equipment for fishing in a place in the AFZ, except in certain defined circumstances. Section 12(2) of the FMA extends provisions “made in relation to fishing in the AFZ … to the extent that [they are] capable of doing so” to “fishing for sedentary organisms, in or on any part of the Australian continental shelf not within the AFZ … as if [the sedentary organisms] were within the AFZ …”.   The High Court concluded that each of the paragraphs which defined “fishing” in s 4 of the FMA referred to an activity. Thus, provisions made “in relation to fishing” in the AFZ, whose application was extended by s 12(2) of the FMA to the Australian continental shelf, must refer to provisions concerning the activity of fishing. Section 101 was directed not to the activity of fishing, but rather to a state of affairs — having possession or charge of a particular kind of boat, that is, a foreign boat equipped for fishing. The Court held that s 101 was not a provision made in relation to fishing and thus its coverage was not extended beyond the AFZ to the Australian continental shelf by the operation of s 12(2). The High Court determined that the original indictment did not disclose any offence and set aside the orders made by the Court of Criminal Appeal. In their place the Court ordered that the appeal to the Court of Criminal Appeal be allowed, the appellant’s conviction be quashed and a verdict of acquittal be entered.

Wallaby Grip Limited v QBE Insurance (Australia) Limited; Stewart v QBE Insurance (Australia) Limited [2010] HCA 9 (30 March 2010)

An indemnity insurance contract is a promise by an insurer to indemnify the insured person for a liability arising in the circumstances set out in the contract. If the insured person establishes that those circumstances exist, then the onus is on the insurer to prove any limitation on its liability to indemnify the insured person for the whole amount of damages that a court may determine it is required to pay, the High Court has held.   Angus Stewart died in 2007 from the effects of mesothelioma. Between 1964 and 1967 Mr Stewart was employed by Pilkington Bros (Australia) Ltd, where he was exposed to asbestos dust given off by products he used in his work. The products were supplied by Wallaby Grip Ltd. Prior to his death Mr Stewart commenced proceedings in the Dust Diseases Tribunal of New South Wales against Pilkington’s workers’ compensation insurer, QBE Insurance (Australia) Ltd, and Wallaby Grip. Both Pilkington and Wallaby Grip were found to have been negligent. Those findings led to a judgment in the sum of $356,510 in favour of Irene Stewart, in her capacity as the personal legal representative of the estate of her late husband, and were not disputed in these appeals.   At the relevant time s 18(1) of the Workers’ Compensation Act 1926 (NSW) (the Act) required employers to obtain a policy of insurance from a licensed insurer and the indemnity had to be for an amount of at least $40,000. Pilkington had obtained a policy of insurance from Eagle Star Insurance Ltd. QBE acknowledged that it was responsible to meet Eagle Star’s liability to indemnify Pilkington in respect of the judgment against it, but only up to the statutory minimum of $40,000 referred to in s 18(1) of the Act. QBE did not produce a copy of the insurance contract in the proceedings before the Dust Diseases Tribunal, and an issue arose as to whether QBE or Mrs Stewart bore the onus of establishing the limit, if any, of QBE’s liability under the policy. The primary judge determined that QBE bore an evidentiary onus to prove its assertion that its liability was limited to the statutory minimum.   QBE appealed to the Court of Appeal of the Supreme Court of New South Wales which, by majority, held that the amount of QBE’s liability was an essential term of the insurance contract upon which Mrs Stewart relied, and therefore the onus lay with her to establish that QBE’s liability was greater than the statutory minimum referred to in s 18(1) of the Act. The High Court granted Mrs Stewart and Wallaby Grip special leave to appeal against the decision of the Court of Appeal.   The High Court unanimously allowed the appeals. Under a contract of insurance an insurer promises to pay money to the insured if the circumstances stated in the policy exist. The insured person must prove the facts which bring the claim within the insurer’s promise. In this case Mrs Stewart had to establish that Pilkington was liable for the injuries suffered by her husband and that Pilkington had entered into a contract of insurance, as it was obliged to do under s 18(1) of the Act. The evidence established Pilkington’s liability for Mr Stewart’s injuries and QBE acknowledged that it had indemnified Pilkington to pay any damages for which Pilkington might be liable. Mrs Stewart had also to prove the extent of her loss, in order to give a value to it, but not to establish that the loss was within the cover of the contract of insurance. The indemnity given by QBE to Pilkington extended to payment of the amount for which Pilkington was found liable by the primary judge. If QBE sought to argue that the contract provided for a limit on the extent of its liability, the onus of proving the limitation lay on QBE. QBE failed to prove any limitation and thus was liable to indemnify Pilkington for the whole amount of the judgment against it.   The High Court ordered that the orders of the Court of Appeal be set aside, and that QBE’s appeal to the Court of Appeal be dismissed with costs.

Commissioner of Taxation v Bamford; Bamford v Commissioner of Taxation [2010] HCA 10 (30 March 2010)

The High Court has dismissed an appeal by the Commissioner of Taxation and an appeal by two taxpayers from a decision of the Full Court of the Federal Court which concerned construction of the phrases “the income of the trust estate” and “that share of the net income of the trust estate”, both found in s 97(1) of the Income Tax Assessment Act 1936 (Cth) (the 1936 Act).   In the 2000 and 2002 tax years, Mr Phillip Bamford and Mrs Davina Bamford were directors of P&D Bamford Enterprises Pty Ltd.  At the time P&D Bamford Enterprises (the Trustee) acted as trustee of the Bamford Trust. Under the terms of the trust deed it was within the Trustee’s absolute discretion to determine whether receipts were to be treated as income or capital of the trust, and to determine the distribution of the trust income to beneficiaries.   In the 2000 tax year, the net income of the Bamford Trust was recorded in its accounts as $187,530. The Trustee determined to distribute the income thus: $643 to each of Mr and Mrs Bamford’s two children; $12,500 to Narconon Anzo Inc; $106,000 to Church of Scientology Inc; $68,000 to Mr and Mrs Bamford to be shared between them equally; and the balance to Church of Scientology Inc. In the event, there was insufficient income to distribute $68,000 to Mr and Mrs Bamford. They each received $33,872 and there was no remaining balance to distribute to the Church of Scientology.   In accounting for the net income of the Bamford Trust, the Trustee had claimed certain deductions totalling $191,701 which the Commissioner of Taxation disallowed. Although Mr and Mrs Bamford did not dispute the disallowance of the deductions in the Federal Court or before the High Court, they did dispute the Commissioner’s decision to assess, pursuant to s 97(1) of the 1936 Act, an extra $34,624 against each of them, on the basis that this amount represented a proportion of the $191,701 of disallowed deductions equivalent to the proportion (18.062%) they had each received of the trust’s distributable income of $187,530. Mr and Mrs Bamford argued that they were required to pay tax only on the actual amount of $33,872 which the Trustee had distributed to them.   In the 2002 tax year, the Trustee treated a net capital gain of $29,227 arising from the sale of certain trust property as income available for distribution. The capital gain was divided equally and distributed to Mr and Mrs Bamford. They each lodged tax returns for the 2002 tax year which reflected that distribution. The Commissioner, however, considered the capital gain should not be included in the “income of the trust estate”, with the result that there was no “income of the trust estate” to which s 97(1) of the 1936 Act could apply for that income year. Therefore, the Trustee itself was assessed under s 99A of the 1936 Act.   Mr and Mrs Bamford lodged objections to the Commissioner’s decisions concerning their 2000 tax year income, and the Trustee lodged an objection against the Commissioner’s decision concerning the 2002 tax year net capital gain. The Commissioner disallowed all objections and the Administrative Appeals Tribunal affirmed the Commissioner’s decisions in all appeals. The Full Federal Court dismissed Mr and Mrs Bamford’s appeals, and allowed the Trustee’s appeal, against the decision of the Administrative Appeals Tribunal, having held that the Trustee was entitled, according to the trust deed, to treat the capital receipts as income and to distribute it to Mr and Mrs Bamford, with the result that it was assessable under s 97(1) of the 1936 Act against them. The High Court granted special leave to Mr and Mrs Bamford and to the Commissioner to appeal the Full Court’s decision.   The High Court unanimously dismissed both the Bamfords’ and the Commissioner’s appeals.   In relation to the 2000 year of income, the High Court held that reference to “a share of the income of the trust estate” in the opening sentence of s 97(1) refers to a beneficiary’s share of distributable income. The assessable income of a beneficiary who is entitled to a share of distributable income includes “that share of the net income of the trust estate” which is attributable to a period when a beneficiary was a resident. “[N]et income” is defined in s 95(1) of the 1936 Act to mean, essentially, taxable income, that is, income after all allowable deductions have been subtracted. “[T]hat share” refers back to the first reference to “share” and indicates that the same share, meaning proportion, is to be applied to the net income of the trust estate (that is, the notional taxable income of the trust estate) as was applied to the income of the trust estate (that is, the actual distributable income) to determine a beneficiary’s assessable income. In the 2000 year of income, the net income of the Bamford Trust included the amount of $191,701 which had been wrongly claimed as a deduction. Thus, the assessable income of Mr and Mrs Bamford included a share of $191,701 equivalent to the share they each received of the distributable income, an amount of $34,624.   In relation to the 2002 year of income, the High Court noted that “net income” (as part of the phrase occurring in s 97(1) — “net income of the trust estate”) is defined in s 95(1) of the 1936 Act, whereas “income of the trust estate” was undefined. This suggested that the content of the latter phrase was to be found in the general law of trusts.  The language of s 97(1) of the 1936 Act also invoked concepts intimately related to the general law of trusts. Thus the word “income” was to be understood as income of the trust estate as understood in trust law. The Trustee had an absolute discretion to treat the net capital gain as income of the Trust, in accordance with the terms of the trust deed. There was no basis upon which the Commissioner should treat it any differently.

Lehman Brothers Holdings Inc v City of Swan & Ors; Lehman Brothers Asia Holdings Limited (In Liquidation) v City of Swan & Ors [2010] HCA 11 (14 April 2010)

On 30 March 2010 the High Court pronounced orders dismissing appeals against a decision of the Full Court of the Federal Court which had held that a deed of company arrangement (“DOCA”) for Lehman Brothers Australia Limited (“Lehman Australia”) was void and of no effect. Today the High Court published its reasons for dismissing the appeals.   On 26 September 2008 administrators were appointed to Lehman Australia. Following the recommendation of the administrators, a majority of creditors in both number and value (which included other companies in the Lehman Group) passed a resolution that Lehman Australia execute a DOCA. On 12 June 2009 such a deed was executed by Lehman Australia, its administrators, and Lehman Brothers Asia Holdings Ltd (“Lehman Asia”).   In proceedings before the Federal Court of Australia, several creditors of Lehman Australia (the first to third respondents in the High Court) claimed that the DOCA purported to provide a moratorium on and release of their claims against other companies in the Lehman Group. They submitted that such a release was not within the scope of Pt 5.3A of the Corporations Act 2001 (Cth) (“the Act”) and that they were therefore not bound by the DOCA. Section 444D(1) of the Act, which is in Pt 5.3A, provides that a DOCA “binds all creditors of the company, so far as concerns claims arising on or before the day specified in the deed”. The creditors submitted that the word “claims” in s 444D(1) referred only to claims against the company the subject of the DOCA — here, Lehman Australia.   Justice Rares reserved the issue for the consideration of the Full Court of the Federal Court and on 25 September 2009 the Full Court held that the DOCA was void and of no effect. Justice Rares subsequently made a declaration that the DOCA was void and ordered that Lehman Australia be wound up by the Court.   Lehman Asia and Lehman Brothers Holdings Inc (“Lehman Holdings”) were granted special leave to appeal to the High Court and on 30 March 2010 the Court pronounced orders dismissing both appeals. In its reasons delivered today, the Court held that there was no textual footing for reading the word “claims” in s 444D(1) as including claims against persons other than the company the subject of the DOCA. Lehman Holdings had submitted that the words “so far as concerns claims” required “the existence of a causal connection or association between the claim in question and a claim against the insolvent company” and that, because claims against it and other companies in the Lehman Group arose out of the same transactions as were the subject of the claims against Lehman Australia, the claims fell within the terms of s 444D(1). Lehman Asia focused on the interlocking nature of the claims and submitted that the impugned provisions in the DOCA should be seen as part of the “give and take” of a compromise arrangement of claims.

The Court held that even if it were accepted that it would be sensible to recognise that a creditor of one group of companies may have interlocking or dependent claims against one or more companies in the group, Pt 5.3A directs attention only to the particular subject company and does not deal with groups of companies. Section 444D(1) alone makes a DOCA binding on creditors. Since creditors are bound under s 444D(1) only to the limited extent identified in that provision, the fact that some creditors (even a majority in number and value) assented to giving up claims against another does not bind other creditors to do so. In making its decision, the Court said that nothing in the reasons  should be understood as endorsing the criticisms made in this matter in the Full Court of the Federal Court of the earlier decision of the Full Federal Court in Fowler v Lindholm (2009) 178 FCR 563.

Tabet v Gett [2010] HCA 12 (21 April 2010)

The law of negligence does not provide for compensation where negligence causes a plaintiff to lose only a less than 50 per cent chance of a better medical outcome, the High Court  has held.   At six years old the appellant was suffering from headaches, nausea and vomiting and was admitted to hospital under the care of the respondent.  At trial, the respondent was found negligent in not ordering a CT scan after a particular incident.  The day after the incident, the appellant suffered a seizure.  A CT scan on that day revealed that the appellant had a brain tumour.  The appellant suffered irreversible brain damage, 25 per cent of which was caused by the increased intracranial pressure between the time the scan should have been ordered and it being undertaken.  Due to the appellant’s age, she brought an action in negligence against the respondent through her tutor, her uncle, in the Supreme Court of New South Wales.   The trial judge was not satisfied that the respondent’s negligence caused, on the balance of probabilities, any part of the appellant’s brain damage; rather, if a scan had been administered when it should have been, there was only a 40 per cent chance that she would have avoided some of the brain damage she suffered.  Finding that such a loss of chance constituted “damage” for the purposes of the law of negligence, the trial judge awarded the appellant compensation proportional to that lost chance.     The Court of Appeal of the Supreme Court of New South Wales upheld the respondent’s appeal, finding that the loss of a 40 per cent chance of a better medical outcome did not constitute the required “damage” for a cause of action in negligence.  Accordingly, the appellant had not proved on the balance of probabilities that the negligence of the respondent caused her damage and the respondent, therefore, was not liable.   On appeal to the High Court, the appellant argued that a loss of a chance of a better medical outcome should be considered as “damage” giving rise to a cause of action in negligence.  The High Court held that to allow a plaintiff to recover compensation in negligence actions for only the loss of a chance of a better medical outcome would diminish the requirement for a plaintiff to prove on the balance of probabilities that his or her damage was caused by the negligence of the defendant and extend liability too far in medical negligence cases. The appeal was dismissed with costs.

Health World Ltd v Shin-Sun Australia Pty Ltd [2010] HCA 13 (21 April 2010)

In 2006 Health World Ltd (“Health World”) initiated proceedings against Shin-Sun Australia Pty Ltd (“Shin-Sun”) seeking either to cancel the registration of Shin-Sun’s trade mark “HEALTHPLUS” under s 88 of the Trade Marks Act 1995 (Cth) (“the Act”) or to remove the mark from the Register under s 92 of the Act. To have standing to do so, Health World had to demonstrate that it was “aggrieved” within the meaning of ss 88(1) and 92(1). Today the High Court held that, for an applicant to be “aggrieved”, it is not necessary to show that the applicant intends to use the trade mark or that it will be appreciably disadvantaged in a legal or practical sense by its continuing registration. It is sufficient that the applicant and the proprietor of the mark are rivals in relation to the goods to which the mark applies.   Health World is the manufacturer and supplier of a probiotic powder, marketed under the name “Inner Health”, and of probiotic capsules, marketed under the name “Inner Health Plus”. Shin-Sun is the manufacturer and supplier of health supplements, marketed under the name “HealthPlus”. On 7 May 2001 Shin-Sun applied for registration of “HEALTHPLUS” as a trade mark and on 12 September 2001 Health World applied for registration of “INNER HEALTH PLUS”. Each opposed the registration of the other’s trade mark. Health World’s opposition failed, Shin-Sun later withdrew its opposition, and both marks were entered on the Register in February 2005.   Health World commenced three separate proceedings against Shin-Sun in the Federal Court of Australia. Only the first two were relevant to today’s decision. In the first proceeding, Health World claimed to be an “aggrieved person” under s 88(1) of the Act and sought cancellation of the registration of “HEALTHPLUS” pursuant to that provision. It did so on the ground, among others, that Shin-Sun did not intend to use the mark “HEALTHPLUS” in Australia. In the second proceeding, Health World contended that it was a “person aggrieved” under s 92(1) of the Act and sought removal of the “HEALTHPLUS” mark from the Register pursuant to that provision. It claimed that when Shin-Sun filed its application for registration it lacked an intention in good faith to use the mark in Australia (s 92(4)(a)(i)), and that the mark had not been used in the three years preceding Health World’s application for removal (s 92(4)(b)).   The primary judge found that Health World was not an “aggrieved person” under s 88(1) of the Act and was not a “person aggrieved” under s 92(1) of the Act. In both proceedings, Health World appealed to the Full Court of the Federal Court, contending that it did have standing under ss 88(1) and 92(1) of the Act. The Full Court dismissed both appeals.   On 31 July 2009 Health World was granted special leave to appeal to the High Court in both proceedings. Having considered the subject, scope and purpose of the Act, the Court held that the word “aggrieved” was to be liberally construed. The Full Federal Court had held that, for an applicant to be “aggrieved”, there must be a reasonable possibility of the applicant being “appreciably disadvantaged in a legal or practical sense” by the trade mark remaining on the Register. The High Court held that the Full Court had erred in treating this as an exhaustive test. For an applicant to be “aggrieved” it is not necessary to show that the applicant desires or intends to use the mark or could use the mark. It is sufficient to demonstrate that the proprietor of the mark and the applicant are rivals in relation to the goods to which the mark applies. In this case, Health World and Shin-Sun were rivals in selling the health products in question. They were in the same trade, and they each traded in the class of goods in respect of which the challenged mark was registered. The High Court allowed both appeals and remitted the matter to the Full Court for determination of the remaining issues.