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federal_court_australia · 63.7k rows

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federal_court_of_australia:fca/single/2007/2007fca0733	decision	commonwealth	federal_court_of_australia	text/html	2007-05-17 00:00:00	NADI v Minister for Immigration and Citizenship [2007] FCA 733	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2007/2007fca0733	2024-09-13T22:51:59.220751+10:00	FEDERAL COURT OF AUSTRALIA NADI v Minister for Immigration and Citizenship [2007] FCA 733 Migration Act 1958 (Cth) s 424A NADI & NADJ v MINISTER FOR IMMIGRATION AND CITIZENSHIP & REFUGEE REVIEW TRIBUNAL NSD 441 OF 2007 DOWNES J 17 MAY 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 441 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADI & NADJ Appellants AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE OF ORDER: 17 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Appeal dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 441 OF 2007 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: NADI & NADJ Appellants AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE: 17 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellants are a mother and son. They are citizens of the Philippines. They arrived in Australia in April 2000. They arrived with the first appellant's husband, who is a Bangladeshi Muslim. The husband applied for a protection visa, claiming a well-founded fear of persecution within the Refugees Convention on two grounds. First, he claimed that in Bangladesh, he and his family would be punished under Islamic law and discriminated against because the son was a pre-marital child. Secondly, in the Philippines, the family would be persecuted by the first appellant's relatives and other religious groups because of their inter-religious marriage. The first appellant is a Christian. The appellants were included in the visa application as part of the husband's family unit. The visa application was refused on 15 June 2000. 2 The husband, wife and son lodged an appeal in the Refugee Review Tribunal on 10 July 2000. There have been two Tribunal decisions affirming the decision to refuse a protection visa. The first decision was made on 16 September 2002. It was affirmed by the Federal Magistrates Court and the Federal Court of Australia. Special leave to appeal was granted by the High Court of Australia on 27 May 2005 and the matter was thereafter remitted by consent to the Tribunal for reconsideration. The second Tribunal decision was made on 8 August 2005. At that stage, the husband had returned to Bangladesh. The Tribunal therefore considered the appellants' claims regarding potential persecution in the Philippines only. The appellants appealed to the Federal Magistrates Court. Their application was dismissed on 27 February 2007. They appeal to this court against that decision. 3 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 4 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law amounting to jurisdictional error. 5 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellants claimed to fear persecution by their relatives and others who were "very religious practitioners" of the Seventh Day Adventist faith and by Christian and Muslim groups. 6 The Refugee Review Tribunal, constituted by Mr S Norman, accepted that while the appellant wife may have a subjective fear of harm, it was not satisfied on the basis of her claims or country information that persons in a mixed Christian/Muslim marriage and their children, both legitimate and illegitimate, would have a real chance of persecution in the Philippines. The Tribunal was not satisfied that the husband would not be able to secure employment or legally reside in the Philippines, enabling him to support his family. Further, it was satisfied that the appellants could safely relocate within the Philippines and it was reasonable, in all the circumstances, to expect them to do so. 7 The reality of this case is that the appellants have lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellants. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. 8 The notice of appeal contains three grounds. They are expanded in the appellants' written submissions. The first ground is that the Tribunal made findings on the basis of independent country information, namely, three US Department of State reports, without providing that information to the appellants and inviting them to make written comment. The appellants might raise this ground under either the common law rules of natural justice or the provisions of s 424A of the Migration Act. So far as the requirements of s 424A are concerned, country information is excluded pursuant to the provisions of para (3)(a). So far as the common law rules are concerned, I note that it appears from the decision of the Tribunal that on at least two occasions the Tribunal drew attention to the country information and put the first appellant on notice of the inferences that might be drawn from the information. It seems to me that the Tribunal sufficiently complied with the common law rules of natural justice. Accordingly, the first ground of appeal must fail. 9 The second ground is that the Tribunal failed to consider the reality of the chance of the appellants being persecuted and made its decision on the basis of assumptions. The reality is that the Tribunal did not accept the appellants' claims and in those circumstances it had no obligation to address the academic question of whether there was a real chance of persecution if the appellants returned to the Philippines. This ground is really a ground which seeks to challenge the Tribunal's findings of fact and it is not open to me to review those findings. 10 The third ground relied upon is denial of procedural fairness. Reference is made to s 424A. No particulars are given. I can see no basis for such a claim in addition to the one I have already dealt with. Accordingly, this ground must also fail. 11 In the result, the appeal fails generally and must be dismissed. The appeal will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes Associate: Dated: 23 May 2007 Counsel for the Appellants: The Appellants appeared in person with the assistance of a Filipino interpreter Counsel for the First Respondent: R Pepper Solicitor for the First Respondent: Blake Dawson Waldron Date of Hearing: 17 May 2007 Date of Judgment: 17 May 2007	1,703
federal_court_of_australia:fca/single/2000/2000fca1109	decision	commonwealth	federal_court_of_australia	text/html	2000-08-14 00:00:00	Tin v Minister for Immigration & Multicutural Affairs [2000] FCA 1109	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2000/2000fca1109	2024-09-13T22:51:59.346255+10:00	FEDERAL COURT OF AUSTRALIA Tin v Minister for Immigration & Multicultural Affairs [2000] FCA 1109 IMMIGRATION – refugees – whether Tribunal failed to inform applicant of doubts about credibility – whether any such failure constitutes breach of s 424A(1) or s 425(1) of the Migration Act 1958 (Cth) – whether failure to refer to evidence constitutes breach of s 430(1)(c). Migration Act 1958 (Cth), ss 424A, 425, 430, 441A, 475, 476. Migration Legislation Amendment Act (No 1) 1998 (Cth). Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, followed. Minister for Immigration & Multicultural Affairs v Cho (1999) 92 FCR 315, cited. Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 845, applied. Islam v Secretary of State for the Home Department [1999] 2 AC 629, cited. Khawar v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 190, cited. Abebe v Commonwealth (1999) 197 CLR 510, cited. De Silva v Minister for Immigration & Multicultural Affairs [2000] FCA 765, applied. WIN WIN TIN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 489 of 2000 SACKVILLE J 14 AUGUST 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 489 OF 2000 BETWEEN: WIN WIN TIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 14 AUGUST 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 489 OF 2000 BETWEEN: WIN WIN TIN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: SACKVILLE J DATE: 14 AUGUST 2000 PLACE: SYDNEY REASONS FOR JUDGMENT THE PROCEEDINGS 1 This is an application pursuant to s 476 of the Migration Act 1958 (Cth) ("Migration Act") to review a decision of the Refugee Review Tribunal ("the Tribunal") made on 10 April 2000. The Tribunal affirmed a decision by a delegate of the respondent ("the Minister") not to grant the applicant a protection visa. 2 The only ground of review relied on by the applicant is that specified in s 476(1)(a) of the Migration Act 1958 (Cth) ("Migration Act"). Section 476(1)(a) provides that an application may be made for review by the Federal Court of a "judicially-reviewable decision" on the ground: "(a) that procedures that were required by this Act or the Regulations to be observed in connection with the making of the decision were not observed." The Tribunal's decision is a "judicially-reviewable decision": s 475(1)(b). 3 The applicant's case that the Tribunal failed to observe the statutorily required procedures has been put on two alternative bases: · first, the Tribunal failed to advise the applicant before or at the hearing that the credibility of her claim to have suffered domestic violence in Myanmar (Burma) was in dispute, thereby breaching ss 424A and 425 of the Migration Act; and · secondly, the Tribunal failed to comply with s 430(1)(c) of the Migration Act, in that it did not set out its finding on a material question of fact, namely a claim by the applicant that a Burmese friend had warned her by telephone, after her arrival in Australia, that the Burmese authorities were looking for her. It is not in dispute that a breach of any of ss 424A, 425 or 430 would give rise to a ground of review under s 476(1)(a) of the Migration Act: Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908 (Hill J), at [58] (s 424A); Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315, at 323, per Tamberlin and Katz JJ; at 330, per Sackville J (s 425 in its earlier form); Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 845 (FC) (s 430(1)). The Legislation 4 Section 424A and 425 of the Migration Act were introduced, in their present form, by the Migration Legislation Amendment Act (No 1) 1998 (Cth), the relevant parts of which came into force on 1 June 1999. The provisions apply to the Tribunal's review of the delegate's decision: Sch 3, Pt 2, Item 20(2). 5 Section 424A provides as follows: "(1) Subject to subsection (3), the Tribunal must (a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason or a part of the reason, for affirming the decision that is under review; and (b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and (c) invite the applicant to comment on it. (2) The invitation must be given to the applicant by one of the methods specified in section 441A. However, this subsection does not apply if the applicant is in immigration detention. (3) This section does not apply to information: (a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or (b) that the applicant gave for the purpose of the application; or (c) …". 6 Subsections 441A(1) and (2) provides that a document specified in s 441A(3) is taken to be duly given to an applicant for review if the document is sent or given in a specified manner. Section 441A(3) specifies certain documents for the purposes of subsections (1) and (2). The documents so specified include an invitation under s 424A. 7 Section 425 of the Migration Act is as follows: "(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and to present arguments relating to the issues arising in relation to the decision under review." (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) …". Section 425A provides that if the applicant is invited to appear before the Tribunal, the Tribunal must give notice of the time and place for the appearance. 8 Section 430(1) of the Migration Act is in the following terms: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepared a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." BACKGROUND 9 The applicant was born in Burma in 1958. Her parents were both born in China and migrated to Burma in 1917. The applicant became a naturalised Burmese citizen in 1979. In 1986, she married a Captain in the Burmese Army. 10 The applicant has a variety of tertiary qualifications. She completed a degree in Chemistry in 1978. She has a Bachelor's degree in Education completed in 1982, and a Master's degree in Education completed in 1989. She also holds Diplomas in Accounting (completed part-time from 1980 to 1982) and in Computer Science (also completed part-time, from 1994 to 1996). The applicant worked as a teacher from 1979 to 1987. From 1989 to 1992 she was a high school teacher in Rangoon and in 1992 she was promoted to University lecturer at the Rangoon Institute of Education. She was promoted to assistant lecturer in September 1996 and resigned from that position in March 1997. 11 The applicant claimed that she separated from her husband in 1992, although she said there had been difficulties for some years prior to that. Her husband resigned from the Burmese Military in January 1997, after having attained the rank of Major. According to the applicant, her husband (from whom she was then separated) was forced to resign because of her anti-government activities. 12 The applicant arrived in Australia on 22 June 1997, holding a visitor's visa. On 6 August 1997, she lodged an application for a protection visa. That application was rejected by the delegate on 23 December 1997 and the delegate's decision was subsequently affirmed by the Tribunal. 13 The applicant prepared a detailed written statement in support of her application for a protection visa. At that stage, she was represented by a migration agent who, according to her evidence to the Tribunal, drafted the statement. (In a statement to the Tribunal she described the author of the earlier document as "a lawyer", but I was told that her representative was in fact a non-legally qualified migration agent.) The applicant later prepared a further lengthy written statement to the Tribunal. This document was prepared in English, apparently without the assistance of a migration agent or a solicitor. 14 On 30 September 1999, the Tribunal advised the applicant in writing that it was not prepared to make a favourable decision on the papers alone. The letter invited the applicant to come to a hearing of the Tribunal to give oral evidence and present arguments in support of her claims. In the event she appeared unrepresented at a hearing of the Tribunal held on 19 November 1999. THE APPLICANT'S CLAIMS 15 The applicant's statement to the Department and her written submissions to the Tribunal covered similar ground, although there were some differences. In her first statement, the applicant claimed to fear that if she were returned to Burma she would be arrested, tortured and possibly raped by reason of her political opposition to the military regime. She also expressed a fear that she would be persecuted on the ground of race, that is by reason of her Chinese ethnicity. 16 Among other claims, the applicant's statement to the Department recounted at considerable length violent demonstrations and other events that occurred in 1988 in Burma and in which the applicant allegedly participated. The statement also claimed that the applicant's marriage had deteriorated because she had refused her husband's request to make speeches in favour of the State Law and Order Restoration Council (SLORC). Indeed, the applicant claimed that her husband had been forced to resign from the army due to her political activities "resulting in our marriage breakdown and separation". No suggestion appears to have been made in the first statement that the applicant feared persecution by reason of membership of a particular social group. 17 The second statement repeated and to some extent developed the claims made in the first. The second statement also contained a heading "claims based on the grounds of particular social group". Under this heading, the applicant stated that she feared persecution because of her membership of a particular social group "namely Chinese women who get married [sic] a Burmese military officer." 18 It is difficult to follow what the applicant may have had in mind in making the last claim, although the claim appears to assume, without elaboration, that a Chinese woman who is married to a Burmese army officer and who is a victim of "spousal domestic violence" can be said to fear persecution because she belongs to a particular social group. It is possible that the applicant was prompted to make the claim because the delegate had interpreted her first statement as making a claim that she feared that she would suffer persecution simply because she was a woman. The delegate drew this inference from the applicant's expressed fear that she would be a victim of domestic violence or would be sexually assaulted in prison. The delegate noted that, although there had been reports of some women being raped in detention, independent reports suggested that there was no violence directed against women as such in Burma and that the authorities generally treated women in detention better than men. The delegate found that women in Burma do not constitute a "cognisable group" subject, by reason of their gender, to discrimination of such seriousness as to amount to persecution. 19 Reading the two statements together, the applicant seems to have put forward three grounds for her claim to have a well-founded fear of persecution for Convention reasons. 20 First, she claimed that she had been politically active in Burma and that she feared persecution by reason of those political activities. In particular, the applicant claimed to have taken part in demonstrations against the Military Government of Burma on several occasions in 1988 (including a violent demonstration in which a student called Phone Maw was killed) and to have organised a hunger strike by students in September 1988. The applicant claimed to have made an anti-government speech during a one month teacher training course held in 1992 at an Army Training College. 21 According to the applicant, she was reprimanded in both 1992 and 1993 because she had publicly expressed her political opinions. The second warning related to her criticism of government loyalty tests and to answers she gave in one such test which were critical of the government. The applicant also claimed that, in December 1996, she had participated in a student anti-government demonstration at the campus of Rangoon University. This resulted in a third warning and a requirement that the applicant sign a document acknowledging her participation in the demonstration. She was forced to resign from her position as assistant lecturer. 22 The applicant further claimed that, after her arrival in Australia, she had participated in demonstrations outside the Burmese Embassy. She had also participated in a small group under the name of the "Free Burma Action Committee". As the applicant explained to the Tribunal, her political activities in Australia had been limited, because she feared that the Burmese authorities might detain members of her family in Burma by reason of her anti-government stance. Nonetheless, she said that she feared persecution by reason of her activities in Australia. 23 Secondly, the applicant claimed that she had been a victim of violence at the hands of her husband since her participation in the 1988 demonstrations. The applicant did not specify in detail the nature of the domestic violence she had experienced, although she said that her husband had threatened to place her in the hands of the military because of her political activities. 24 The applicant said that she and her husband had separated in 1992, but that she had been required to visit her husband after that date because the separation was not recognised under Burmese law. In 1994, she had attempted to obtain a divorce on the ground of spousal violence. Her claim did not succeed because (according to the applicant), no one was prepared to testify on her behalf. The applicant claimed that she lived with a student for a short time, but that her husband had traced her and "dragged [her] back into his hands". She also claimed to have entered religious life as a Buddhist nun in February 1997, but she was refused permission to continue in that life because her husband objected. The applicant said that, at about that time, her husband had threatened her with a pistol, giving as a reason her anti-government activities. She said that her husband had been forced to resign from the military in early 1997 because of her political activities. 25 The Tribunal did not explain the significance of the applicant's claims to have suffered and to fear domestic violence. Mr Lowe, who appeared on behalf of the applicant, said that the primary significance was to reinforce the applicant's claimed fear of persecution for reasons of political opinion. He said that the claims of domestic violence were also relevant to the applicant's contention that she feared persecution by reason of her membership of a particular social group. Mr Lowe was not able to explain, however, how Chinese women who marry Burmese military officers could constitute a "particular social group" for the purposes of the Convention nor how it was open to the Tribunal to find that they did: cf Islam v Secretary of State for the Home Department [1999] 2 AC 629; Khawar v Minister for Immigration & Multicultural Affairs (1999) 168 ALR 190 (Branson J). 26 Thirdly, the applicant claimed to fear persecution on the ground of her ethnicity. Her written submissions referred to anti-Chinese communal violence directed against her parents. She also claimed that she had suffered discrimination in education and employment because of her Chinese background. Her citizenship status was said to be that of a "Guest Citizen", with limited citizenship rights, by reason of her Chinese background. TRIBUNAL'S REASONING 27 The Tribunal said that it could not be satisfied with the applicant's credibility. It regarded her claims as implausible, internally inconsistent and inconsistent with the independent evidence outlined in the reasons. The Tribunal was not satisfied that the applicant had been truthful about her claims, nor that she had any fear of Convention-related harm in Burma. In particular, the Tribunal was not satisfied that the applicant: · had ever been involved in any political activities; · had ever been a victim of spousal/domestic violence; or · had ever been discriminated against in education or employment, or harmed or discriminated against by reason of her ethnicity. 28 The Tribunal rejected the applicant's claims to fear harm for reasons of her political opinion as "completely lacking credibility". The Tribunal found that the substantial sections of the applicant's written claims to the Department had been plagiarised from a book by Bertil Litner, entitled "Outrage: Burma's Struggle for Democracy" (1990). The Tribunal found the applicant's explanations for the plagiarism to be unacceptable. Moreover, the applicant's evidence about her own alleged involvement and demonstrations had been vague. That evidence, according to the Tribunal, undermined her claim to have been an active political dissident. 29 The Tribunal noted the applicant's claim to have been politically active and outspoken during the time 1988 to 1992. Having regard to the independent evidence as to the repressive nature of the Burmese regime, the Tribunal found that, had the applicant engaged in the political activities as she had claimed, she would have been treated much more harshly than simply being given warnings. She would also have been dismissed from her employment, rather than given the option of resigning. Furthermore, the evidence had indicated that the reason given by the applicant for her resignation was her mother's ill-health. The Tribunal regarded this as the true reason for her resignation. 30 The Tribunal also rejected the applicant's claim to have given a speech in 1992 critical of the government. In particular, the Tribunal found it implausible that the applicant could have been an outspoken critic of the government and yet receive only a warning. Indeed, after the incident she had continued to work at a tertiary institution and had been promoted in 1996. The Tribunal found that she had fabricated her claims of political involvement and speech making after 1988. The Tribunal concluded that the applicant's claims to have been politically active in Burma completely lacked credibility and were to be given no weight. 31 The Tribunal rejected the applicant's claim to have a well-founded fear of persecution by reason of her participation in political activities in Australia. The Tribunal found that, although the Burmese authorities monitored opposition activities outside Burma, they were not generally interested in Burmese citizens involved in demonstrations in Australia. There were exceptions, such as repeat demonstrators, active and high profile members of particular groups and ringleaders responsible for a violent attack on the Burmese Embassy in Canberra in September 1999. The applicant did not fall within any of these groups. The Tribunal therefore could not be satisfied that the applicant had a well-founded fear of persecution arising from her extremely limited activities in Australia. 32 The Tribunal also rejected the applicant's claims regarding her husband's alleged domestic violence. The Tribunal considered that, as the applicant had fabricated her claims to have been politically active in Burma, it could not accept her claim that her political activities had led to domestic violence. Furthermore, the applicant's evidence relating to the claims of her husband and domestic violence were "contradictory and implausible". The Tribunal gave a number of examples supporting this conclusion: · The applicant had claimed in evidence that she and her husband had separated in 1992 and did not have any contact after that date. She later gave inconsistent evidence to the effect that the domestic violence had continued until her departure for Australia in 1997. · The applicant had claimed that she was able to stay in Rangoon only because of her husband's influence. The Tribunal pointed out that, according to her evidence, they had separated in 1992 and yet she had continued to work in Rangoon until 1997. The Tribunal considered it implausible that the applicant's husband would continue to use his influence to keep her in Rangoon while at the same time (as the applicant had claimed) being angry and vengeful towards her. · The Tribunal considered that the applicant's claim that she had separated voluntarily from her husband in 1992 was inconsistent with her claim that she continued to visit him thereafter. · The applicant had claimed that her husband's career in the army had been affected by her political activities, yet her evidence was that he had been promoted from Captain to Major in 1994. · The applicant had linked the commencement of the domestic violence to her own expression of political opinion. Yet, on her evidence, she had known her husband since childhood. The Tribunal considered that he would therefore have been well aware of any political leanings on her part. It rejected as "unreasonable" her explanation that she did not have a chance to voice her opinions and that she held strong views only after 1988. 33 The Tribunal reached the following conclusion: "There are numerous aspects of the applicant's claim in relation to her husband and her claims of being a victim of domestic violence that are implausible and inconsistent. In light of these many implausibilities and inconsistencies and the applicant's inability to explain them in any meaningful manner, the Tribunal cannot be satisfied that the applicant's claims regarding her husband and being [a] victim of domestic violence are credible." 34 Finally, the Tribunal rejected the applicant's claim that she had been discriminated against in education and employment because of her Chinese ethnicity. The Tribunal found that her tertiary qualifications told against this claim. Moreover, her employment history suggested that she had enjoyed continuous employment almost until the time she had left Burma and had risen through the ranks in her chosen field. THE APPLICANT'S SUBMISSIONS THE CREDIT ISSUE 35 The applicant contended that the transcript of the Tribunal hearing demonstrated that the credibility of the applicant's claim to be a victim of domestic violence was never in dispute. According to Mr Lowe, the finding that the applicant's claim lacked credibility was "sprung on the applicant" for the first time when the Tribunal handed down its decision. 36 Mr Lowe submitted that the failure of the Tribunal to alert the applicant to the possibility that her claims to have suffered domestic violence would not be accepted constituted a breach of the Tribunal's obligation under s 425(1) of the Migration Act to "invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review". Mr Lowe argued that s 425(1) should be construed as requiring the Tribunal to identify the issues arising in relation to the decision, at least where the Tribunal had formed the view that the applicant's account of events was not necessarily to be believed. 37 Alternatively, Mr Lowe submitted that the Tribunal's failure to alert the applicant to its doubts about her claim to have suffered domestic violence involved a contravention of s 424A(1). He contended that the Tribunal had "information" that it considered would be the reason or a part of the reason for affirming the Tribunal's decision. The expression "information" was broad enough to include any knowledge of some fact or circumstance possessed by the Tribunal and not the applicant. In the present case the knowledge was the Tribunal's belief that the applicant had fabricated her claims to have been a victim of domestic violence. FAILURE TO SET OUT FINDINGS 38 Mr Lowe submitted that the Tribunal had failed to set out its findings on a material question of fact and had therefore contravened s 430(1)(c) of the Migration Act. The material question of fact was said to be the claim made by the applicant, in her written statement to the Tribunal, that she had been telephoned by a friend in Burma who had warned that the Burmese authorities were actively seeking her. According to Mr Lowe, the existence of the telephone call was a material fact because it provided the only evidence of a specific threat made against the applicant by the Burmese authorities. THE CREDIT ISSUE: REASONING the factual question 39 The applicant must overcome a number of hurdles before she can establish a contravention of either ss 424A(1) or 425(1) of the Migration Act such that a ground of review is available to her under s 476(1)(a). The first is that she must make good the proposition that the Tribunal failed to alert her to the fact that it did not necessarily accept her claim that she had been a victim of domestic violence. In my opinion, the applicant cannot surmount the first hurdle. 40 The starting point is the decision of the delegate of the Minister. The delegate found that certain key claims made by the applicant lacked credibility. The claims rejected by the delegate included the following: · the applicant's claim that she participated in the so-called "Phone Maw" events of March 1988, which was rejected in large measure because the applicant had plagiarised her account of these events from a published source; · the applicant's claim that she had come to the adverse attention of the Burmese authorities by reason of her political activities; and · the applicant's claim that her husband had been forced to resign by reason of her political activities. 41 It is true that the delegate did not reject all the applicant's claims. In particular, the delegate considered it possible (without making a finding in her favour) that the applicant may have had some involvement in political activities in Burma. However, the delegate found that, if the applicant's plausible claims were taken at their highest, her involvement in political activities was minor and was not such as to give rise to a well-founded fear of persecution in Burma. 42 It must be remembered that the applicant's claim to have suffered domestic violence was inextricably linked to her assertion that she had engaged in political activities and had clashed with the Burmese authorities. In view of the delegate's rejection of the key elements of the applicant's claims, it could hardly be in doubt that the Tribunal would not necessarily accept her account of events insofar as they were said to give rise to a well-founded fear of persecution. In this respect the case is similar to Abebe v Commonwealth (1999) 197 CLR 510: see at 576-577, per Gummow and Hayne JJ. 43 The transcript of the proceedings before the Tribunal was in evidence, although there were gaps in the record because of difficulties with the quality of the recording. An examination of the transcript makes it clear that the Tribunal was exploring and, in important respects, challenging the accuracy of the applicant's claims, including her assertion that her husband had abused her by reason of her political beliefs and activities. 44 The Tribunal put to the applicant that she had plagiarised substantial sections of her original application. The applicant attempted to overcome this obvious difficulty by asserting that she had signed the document without reading it (notwithstanding that she said she had prepared a later detailed submission herself with assistance from her brother, an Australian resident). That the Tribunal was concerned about the reliability of the claims made in the statement is shown by this passage: "[Delegate]: So it was more important to you to get the work permit than to…an application that was true and correct. [Applicant]: At that time, I was newly arrived here and did know anything. I was advised by my solicitor at that time to lodge it within 45 days. I did not write this statement, he wrote it. [Delegate]: So you are saying that everything in that statement is not correct? Maybe I'll put it another way. Is anything in that statement correct? [Applicant]: There are some facts that I did not tell him to state at all which have been written in there, so I don't know if that is regarded as true or untrue. [Delegate]: But you signed this statement? [Applicant]: Yes I did because that was my last day, the 45th day in fact, and it was a Wednesday, the day that the Immigration Office is closed early. And at that time I really trusted and believed my solicitor." (Emphasis added.) 45 After challenging the applicant's claim to have participated in the events of March 1988, the Tribunal member asked a series of questions plainly designed to test the applicant's knowledge of other events in which she said she had participated. The applicant was also asked why she had not mentioned to the Department her claim to have participated in a hunger strike in August 1988. Moreover, the Tribunal specifically advised the applicant that it found implausible her claim that she had publicly criticised the regime at a training seminar, bearing in mind that (on her account) she had merely received a warning for what in Burma would have been regarded as a serious transgression. The Tribunal's questioning can only be understood as a test of the credibility of the applicant's account. 46 The Tribunal's detailed questioning of the applicant continued in relation to the circumstances of her separation from her husband. The Tribunal drew to the applicant's attention what it considered to be contradictory statements made by her as to whether the separation had been amicable. It asked her why, if she had known her husband for years prior to the marriage, he would not have been aware of her political opinions. The Tribunal also put to the applicant that, if her husband had been forced to resign because of her political activities (as she claimed) he would have found it difficult to obtain employment outside the Army, let alone contracting work with the Government (as the applicant also claimed). The Tribunal asked the applicant why the authorities did not simply dismiss her husband instead of making him resign. 47 It is impossible to read the transcript without concluding that any reasonable observer must have realised that the applicant's account of events, including her account of the circumstances in which her husband inflicted domestic violence on her, would not necessarily be accepted by the Tribunal. There was no evidence in these proceedings as to what the applicant believed at the end of the Tribunal hearing (an assertion was made from the bar table, but that is not evidence). Whatever the applicant's subjective belief, it is simply not the case that the first time the Tribunal challenged the applicant's account of the circumstances in which she suffered domestic violence was in the Tribunal's reasons. 48 Mr Lowe argued that the Tribunal had never specifically warned the applicant that it might find that she had never been subject to domestic violence. In my view, the Tribunal's questioning was such as to demonstrate to the applicant and to any reasonable observer that it did not necessarily accept any of the key elements of the applicant's claims. In any event, the applicant's claim before the Tribunal was that she had suffered domestic violence in consequence of her political beliefs and activities. It was this claim that the Tribunal probed and ultimately rejected. the questions of construction 49 Since the factual foundation for this aspect of the applicant's case is lacking, there is no need to consider the construction of s 424A(1) or s 425(1) of the Migration Act. I should indicate, however, that even if the applicant had established that the Tribunal had not indicated that it wished to probe her account of events, she would face further formidable hurdles. 50 So far as s 425(1) is concerned, the applicant's submissions contradict observations of the Full Court in De Silva v Minister for Immigration and Multicultural Affairs [2000] FCA 765. In that case, a submission was made that s 425(1) is not restricted to inviting the applicant, prior to the date of the hearing, to attend the hearing in order that he or she may give evidence and present arguments. It was contended that s 425(1) has a continuing operation during the hearing obliging the Tribunal to identify issues and draw them to the applicant's attention. The Full Court rejected the argument (at [8]–[9]): We do not accept this construction of the provision. The governing word in s 425(1) is "invite". The purpose of the invitation is to enable an applicant to attend the hearing so that he or she can give evidence and present arguments relating to the issues in the case. On the plain words of the sub‑section the obligation is to invite the applicant to appear. It does not impose on the Tribunal an obligation to identify issues and draw them to an applicant's attention. That s 425 does not bear the construction placed upon it by the appellant is confirmed by s 424A, which was inserted into the Act at the same time as s 425 was amended. … The existence of an express provision imposing obligations on the Tribunal to assist an applicant in relation to matters that may be important to the outcome of the case shows that s 425(1) does not impose obligations of the type asserted by the appellant. … [The] purpose [of s 425(1)]is to ensure that the applicant has an opportunity to appear before the Tribunal to give evidence and present arguments in cases where the Tribunal cannot decide in favour of the applicant "on the papers". The section is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear and give evidence and present arguments." In the light of this analysis, any failure by the Tribunal at the hearing to alert the applicant to the possibility that her account might not be accepted would not constitute an infringement of s 425(1) of the Migration Act. 51 Section 424A(1) obliges the Tribunal to give an applicant particulars of "information" it considers to be the reason, or a part of the reason, for affirming the decision under review. As I followed Mr Lowe's argument, he contended that the word "information" encompasses the Tribunal's own view that the applicant's claims are not, or might not be, credible. Accordingly, the Tribunal is bound to give the applicant particulars of its concerns about her credit. If this argument is correct, it would give s 424A a wider operation than the general law requirements of natural justice or procedural fairness: Abebe v Commonwealth, at 576, per Gummow and Hayne JJ; at 608, per Callinan J. The question is whether Parliament intended the provision to have such a broad scope. 52 In Nader v Minister for Immigration & Multicultural Affairs [2000] FCA 908, Hill J said (at [58]-[59]) that s 424A: "is enlivened when the Tribunal forms the view that there is information that is relevant to the review and the information is or may be adverse to the applicant…. One can infer that the legislative purpose of the enactment of s 424A (particularly where the failure to give natural justice is not a ground of judicial review in an application to this Court) was to ensure that an applicant could be apprised of such particulars of the information which the Tribunal has become aware of so that the applicant can have the opportunity of meeting whatever adverse consequence the information might have on the outcome of the review, whether by calling, if that course is desired, evidence to rebut it, or by commenting on it. Thus, the question of what is required by way of particulars will fall to be resolved by reference to the nature of the information the Tribunal has received. See also Naing v Minister for Immigration & Multicultural Affairs [2000] FCA 344 (Hill J), at [31]. 53 Hill J's observations suggest that s 424A(1) applies when the Tribunal becomes aware of some fact or circumstance that appears to be adverse to the applicant on an issue relevant to the applicant's case. It is not concerned with the subjective thought processes of a Tribunal member. This view of s 424A(1) is reinforced by the dictionary definition of "information". The Macquarie Dictionary gives as the first definition: "knowledge communicated or received concerning some fact or circumstance". That s 424A(1) is concerned with knowledge of a fact or circumstance communicated to or received by the Tribunal receives further support from the statutory context. Section 424(1), for example, empowers the Tribunal to "get any information that it considers relevant". The word "information" in s 424(1) is used, clearly enough, to refer to knowledge of relevant facts or circumstances communicated to or received by the Tribunal. In my opinion, the same word is used in the same sense in s 424A(1). 54 It follows that a subjective determination by the Tribunal that the applicant's account is or may not be credible does not enliven the obligation imposed by s 424A(1). Thus, even if the Tribunal had not alerted the applicant to the possibility that her evidence might not be accepted at face value, its failure to do so would not have contravened s 424A(1). SECTION 430: REASONING 55 According to the applicant, the material question of fact upon which the Tribunal failed to make a finding was her claim that she had received a telephone call from a friend in Burma warning her that the authorities were looking for her. There was no independent evidence corroborating the telephone call. 56 In Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845, the majority judgment pointed out (at [46]) that: "[t]here is no specific requirement in s 430 for the [Tribunal] to give reasons for rejecting, or attaching no weight to evidence or other material which would tend to undermine any finding it made." Their Honours noted the important qualification that if one of the reasons which actually induced the Tribunal to come to its decision was that it decided to reject or place no weight on particular material, s 430(1)(b) would require disclosure of that element of the actual reasoning process. Mr Lowe placed no reliance on s 430(1)(b) and did not suggest that the Tribunal had actually been induced to come to its decision by deciding to reject the applicant's account of the telephone conversation. 57 The majority judgment in Singh also addressed the question of what constitutes a "material fact" for the purposes of s 430(1)(c) (at [55]-[56]): "The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them. As Burchett J said in Dodds v Comcare Australia (1993) 31 ALD 690 at 691, in the context of s 43 of the AAT Act: "Section 43 is not to be construed in a pedantic spirit, but sensibly. If the Tribunal's reasons expose the logic of its decision, and contain findings on matters of fact which are essential to that logic, it will not be easy to demonstrate a failure of compliance with a requirement to include 'findings on material questions of fact'." Accordingly if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with." 58 The existence of the alleged conversation was not a material fact. It was merely an uncorroborated piece of evidence put forward by the applicant to support her claim to fear persecution by reason of her political opinions. The probative force of the evidence depended on the Tribunal's assessment of the applicant's credibility. The Tribunal gave its reasons for rejecting the applicant's claims to have engaged in political activities and to have suffered domestic violence in consequence. It was not incumbent on it to state explicitly that it did not accept the applicant's account of the telephone call. There was no contravention of the requirements of s 430(1)(c) of the Migration Act. conclusion 59 The application must be dismissed. The applicant must pay the Minister's costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice SACKVILLE. Associate: Dated: 14 August 2000 Counsel for the Applicant: Mr D Lowe Solicitor for the Applicant: David J. Lowe Counsel for the Respondent: Mr J Smith Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 31 July 2000 Date of Judgment: 14 August 2000	9,011
federal_court_of_australia:fca/single/2019/2019fca1403	decision	commonwealth	federal_court_of_australia	text/html	2019-08-20 00:00:00	DCC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1403	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1403	2024-09-13T22:51:59.498094+10:00	FEDERAL COURT OF AUSTRALIA DCC17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1403 Appeal from: Application for an extension of time: DCC17 v Minister for Home Affairs & Anor [2019] FCCA 621 File number: SAD 57 of 2019 Judge: WHITE J Date of judgment: 20 August 2019 Catchwords: MIGRATION – application for an extension of time in which to appeal from the Federal Circuit Court judgment dismissing an application for judicial review of a decision of the Administrative Appeals Tribunal concerning the Applicant's application for a Protection visa – whether the Applicant's proposed appeal had a reasonable prospect of success – application dismissed. Legislation: Federal Court Rules 2011 (Cth) Cases cited: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 Date of hearing: 20 August 2017 Date of last submissions: 20 August 2017 Registry: South Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 23 Counsel for the Applicant: The Applicant appeared in person Counsel for the First Respondent: Mr A Chan Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice and did not appear ORDERS SAD 57 of 2019 BETWEEN: DCC17 Applicant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: WHITE J DATE OF ORDER: 20 AUGUST 2019 THE COURT ORDERS THAT: 1. The name of the First Respondent be amended to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs. 2. The application for the extension of time is dismissed. 3. The Applicant is to pay the First Respondent's costs of and incidental to the application for the extension of time fixed in the sum of $3,500. 4. When the transcript of this morning's hearing is prepared, the designation given to the Applicant, DCC17, is to be used in each case in which his own name was used. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. EX TEMPORE REASONS FOR JUDGMENT WHITE J: Introduction 1 This judgment concerns an application for an extension of time in which to appeal from the judgment of the Federal Circuit Court (the FCC) delivered on 22 February 2019: DCC17 v Minister for Home Affairs & Anor [2019] FCCA 621. By that judgment, the FCC dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal (the Tribunal) concerning the applicant's application for a Protection visa. 2 The 21-day period for the commencement of an appeal against the FCC judgment fixed by r 36.03 of the Federal Court Rules 2011 (Cth) (the FCR), as then in force, expired on 15 March 2019. The applicant did not commence an appeal within that period, but filed the present application four days later on 19 March 2019. Since March 2019, r 36.03 of the FCR has been amended to provide that the period within which an appeal must be commenced is 28 days, but that amendment did not apply in the applicant's case. Factual background 3 The applicant was unrepresented in this Court, as he was in the FCC proceedings. The applicant is a 24 year old citizen of Malaysia who arrived in Australia on 11 March 2016 on an Electronic Travel Authority 601 visa. On 9 September 2016, a delegate of the Minister refused to grant the applicant a Protection visa. 4 In support of his application for a Protection visa, the applicant had claimed that he was part of an activist anti-government group when he was a student in Malaysia; that he had been banned from studying by the former government of Malaysia; that he feared prosecution under the Malaysian Sedition Act; that he was concerned about the political, economic and social development of Malaysia; and that if returned to Malaysia, he will be imprisoned and unable to hide from the authorities. 5 On 3 July 2017, the Tribunal affirmed the delegate's refusal of the visa. The Tribunal had several concerns about the applicant's evidence and found that he was not a credible witness. It was not satisfied that the applicant met the refugee or complementary protection criteria. 6 With respect to the applicant's credibility, the Tribunal said: [47] The Tribunal has a number of concerns about the applicant's evidence, which cause the Tribunal to find that the applicant is not a credible witness and has not been truthful in relation to his experiences in Malaysia, his reasons for leaving Malaysia and his fears about returning to Malaysia in the future. 7 The Tribunal did accept that the applicant was dissatisfied with the economic situation in Malaysia and that this had motivated him to travel to Australia for work. It was not satisfied that the applicant was an anti-government political activist who was of interest to the Malaysian authorities. The Tribunal accepted the applicant's account that he had been involved in a criminal assault in Malaysia and had been arrested by police. However, it found that the applicant was no longer of interest to the Malaysian authorities on that account, given that the proceedings in connection with the assault have since been concluded. Further, the Tribunal considered that the applicant's ability to obtain lawfully a passport in February 2016 and travel from Malaysia to Australia without issue supported the conclusion that he was no longer of interest to Malaysian authorities. 8 The Tribunal concluded that there was not a real risk that the applicant would suffer significant harm if he was returned to Malaysia and therefore was not satisfied that he was a person to whom Australia owes protection obligations. 9 In many respects, these findings seem to have been inevitable, having regard to certain passages in the Tribunal's reasons, including: [26] The Tribunal asked the applicant why he came to Australia. The applicant said he came to Australia to sightsee or to escape persecution. The applicant said he did not have trouble leaving Malaysia. [27] The Tribunal asked the applicant why he lodged an application for a protection visa. The applicant said when he was in Australia he ran out of money and he heard from people he could apply for a protection visa. [28] The Tribunal again asked the applicant to tell the Tribunal why he does not want to go back to Malaysia. The applicant said he is working and the salary in Australia is much better than in Malaysia. The Tribunal asked the applicant if he fears the government in Malaysia. The applicants said he fears the economy. … [31] After further questioning the applicant said he did not have any trouble in Malaysia because of his political activity. … [34] When invited to expand on his claims the applicant said he did not want to go back to Malaysia because he likes working in Australia and has a good salary compared to Sabah. He said he is a political activist but the real reason he travelled to Australia was to get a better salary so that he could support his family in Malaysia. … [58] The Tribunal finds that the applicant was motivated to travel to Australia to secure a better salary so that he could support his family in Malaysia. In this regard, the Tribunal accepts the applicant is dissatisfied with the economic situation in Malaysia. The Tribunal accepts the applicant may take part in protests in Malaysia to voice these concerns in the future. However having regard to the applicant's profile and the country information the Tribunal does not accept the applicant will face a real chance of serious harm if he does take part in registered protest activity in Malaysia in the future. [59] The applicant has worked on his family's farm and as a gas pipe welder / cutter. The Tribunal finds that the applicant's skills and past work experience will place him in a strong position to obtain employment in Malaysia in the reasonably foreseeable future. [60] In conclusion, the Tribunal has had regard to the applicant's evidence and country information and is not satisfied that there is a real chance that the applicant will face serious harm if he returns to Malaysia in the foreseeable future because he is a political activist who took part in anti-government protests or because he was a follower of the SSKM. The Tribunal finds that the applicant's fear of persecution because of his actual or imputed political opinion is not well-founded. Application to the FCC 10 In his application to the FCC, the applicant advanced a single ground which commenced with the quotation of [58]-[60] in the Tribunal's decision, set out above, and then continued (verbatim): Tribunal agree with the fact that I take part in the anti government protest but they say that the fear of prosecution is not well founded. Tribunal come to conclusion based on country information and newspaper reading. All cases are different to one another. If government take action on someone they do not do publicly. If I am harmed then it will not come in newspaper or police will say government did it. They get us in trouble through people and make it look street fight or robbers kill. Govement control everything so they know how to fix anti government people like me. Tribunal ade error as it only follow general country information this is very different to all people. lt has to be case by case. So Tribunal make jurisdictional error in decision. 11 The FCC Judge dismissed the application for judicial review saying: [6] … In short, the applicant's application failed because he was not believed. Having regard to the Tribunal's discussion, it appears to me that that was an inexorable result of what the applicant himself had said to the Tribunal. [7] In other words, there appears to me to be a proper basis for the Tribunal's adverse credibility finding. In relation to the actual grounds of review set out in the application, essentially they take issue with the Tribunal's conclusion but without attempting to point to jurisdictional error but, rather, disagreement with the conclusions. As I have already observed, I am satisfied that the conclusions that the Tribunal reached were open to it and possibly even unavoidable. The application does not, in its own terms, describe any recognised ground of jurisdictional error. [8] I invited the applicant to make oral submissions about these matters but, while he was assisted by an interpreter, he did not appear to be able to formulate any relevant submissions. Accordingly, I dismiss the application. Principles and approach 12 A number of matters may bear upon the exercise of the discretion to grant an extension of time. Principal among them are the length of the extension sought; the explanation for the appeal not having been commenced in time; the prejudice to the respondent if the extension of time is granted; the prejudice to the applicant if the extension of time is refused; and the interests of justice generally. 13 In the present case, the period of extension sought is short, being only four days. The applicant's explanation for the delay is that he had been under the impression that he had had 28 days in which to lodge a Notice of Appeal, whereas r 36.03, as in force at the time, required the appeal to be commenced within 21 days. Counsel for the Minister did not contest the factual accuracy of that explanation but did dispute its adequacy. The Minister did not contend that he would suffer any material prejudice if the extension of time is allowed. 14 The critical matter therefore is the prejudice to the applicant if the extension is not allowed. This turns very much on the merit of the applicant's proposed appeal. 15 The grounds of appeal in the applicant's draft Notice of Appeal are as follows: 1. On 11 March 2016, I came to Australia holding Subclass 601visa and applied for Protection visa on 13 May 2016, which was later, refused by the delegate because he found that I did not have a political profile in Malaysia so as to attract adverse attention. 2. I then applied to the Tribunal for review unsuccessfully and later had success with Federal Circuit Court. 3. I have expressed concern over the political, economic and social development of Malaysia. Malaysia is corrupt, has a very bad image today and is undemocratic. 4. I was a student of a public institution, an active student activist and protestor. I attended protests against corrupt government and when it was interrupted, protestors were locked. I was banned from studying and was blackmailed because of my struggle to dismantle cases of IMBD and corruption. 5. It was then I decided to leave the country to save myself came to Australia before something worse happened. But the Tribunal and the Court did not accept that I would face a real chance of serious harm from any involvement in such activity because I have low profile and country information that suggested only high-profile activists were ever arrested. Now if returned to Malaysia I would be imprisoned. The authorities would find me anywhere as they are powerful and have thousands of agencies working for them to find people like me. 6. They either kidnap people never to be found again or create an accidental scene to pose natural death or any other scenario to keep themselves safe. And if you are on their target list, they will hunt you from anywhere in Malaysia to be killed. It is then their prestige issue. All these factors have never been highlighted in any reports or articles written in regard to the matter. 7. But these kind of killings and cases never get documented anywhere and hence the tribunal and the Court missed such information from the country information sources and hence made an error in judging the case accurately. I am not disagreeing with the Tribunal's factual findings about country information but here by making an attempt to draw the courts attention through appeal on the missing or ignored facts of my case. 8. All these factors have never been highlighted in any reports or articles written in regards to the matter. 9. Therefore, to save my life, this is my humble request to the court to accept my appeal application against the decision made in court on 22/02/2019. 16 As is apparent, these are not grounds of appeal of a conventional kind. Paragraphs [1]-[3] state matters of background only. Paragraphs [4], [5] and [6] contain assertions as to the basis for the applicant's underlying claim for protection but do not identify any error by the FCC Judge. It is pertinent that in [6] the applicant accepted that the matters on which he relied for his claim for protection "have never been highlighted in any reports or articles written in regard to the matter". This was confirmed in paragraph [8]. That is, the applicant relied on matters which he acknowledged have never been publicly reported. 17 By [7], the applicant does assert error, namely, that both the Tribunal and the FCC Judge had "missed" information. However, he also said that he did not disagree with the Tribunal's factual findings based on the country information. 18 In these circumstances, the applicant's complaint seems to be that the Tribunal and the FCC Judge failed to have regard to information which has not been documented anywhere and, apart from the applicant's own assertions, had not been placed before the Tribunal. 19 The assessment of the evidence and the weight to be attached to the matters advanced by the applicant was a matter for the Tribunal: NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [11]. As the applicant had been found not to be a credible witness, it is hardly surprising that the Tribunal determined not to attach any weight to his unsupported and unverified claims. 20 In his oral submissions today, the applicant repeated many of the same matters on which he had relied in the Tribunal. I explained to the applicant that it was not the function of the FCC, and it is not the function of this Court, to determine whether he should be granted a Protection visa. Instead, it was necessary for him to point to arguable error in the judgment of the FCC. The applicant's submissions did not identify any such matter. 21 The applicant also submitted that he wished to have the extra time in order to be able to stay in Australia to earn money with which to support his family, referring to the personal circumstances of his father and brother, and in order to raise money to pay legal fees. Even taking those purposes at face value, they are not proper reasons for the Court to grant the extension of time, which the applicant seeks. 22 In the circumstances, it cannot be said that the applicant's proposed grounds of appeal have any merit or that there is any reasonable prospect of his proposed appeal being allowed. On the basis of the material reviewed earlier, the dismissal of the application for judicial review appears to have been inevitable. Conclusion 23 In these circumstances, the applicant will not suffer prejudice if the extension of time is refused. It would not be appropriate for the Court to grant an extension of time for an appeal which does not have any reasonable prospect of success. In short, the applicant has not shown a proper basis for the grant of an extension of time. Accordingly, his application is dismissed. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice White. Associate: Dated: 28 August 2019	3,651
federal_court_of_australia:fca/single/1997/1997fca1352	decision	commonwealth	federal_court_of_australia	text/html	1997-11-24 00:00:00	Kimura, Joji v Minister for Immigration & Multicultural Affairs [1997] FCA 1352	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1352	2024-09-13T22:52:01.911547+10:00	IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG763 of 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOJI KIMURA Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE(S): wilcox, foster and emmett jj DATE: 24 november 1997 PLACE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG763 of 1997 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: JOJI KIMURA Appellant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE(S): wilcox, foster and emmett jj DATE: 24 november 1997 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT WILCOX J: This is an appeal against a decision of Tamberlin J, dismissing an application by the appellant, Joji Kimura, for review of a decision made by the Refugee Review Tribunal. The Tribunal determined Mr Kimura did not have a well-founded fear of persecution, for reasons referred to in the Convention Relating to the Status of Refugees, if returned to his native Japan; and was therefore not a refugee within the meaning of that Convention. Mr Kimura appeared in person before us today. He does not speak English and we appreciate this makes his task difficult. However, Mr Kimura was assisted by an interpreter, Dr C. Naylor. We are most grateful to her for that. As a result, I think we fully understand the points Mr Kimura takes. These points differ, to some extent, from the points put to Tamberlin J. As I follow Mr Kimura's address, he puts four separate arguments. First, he says he was unable properly to present his case to the Tribunal because of his mental condition. I asked Mr Kimura if he could refer us to some expert evidence regarding his mental condition, or whether he could make good his complaint by reference to the transcript of the hearing by the Tribunal. Despite the question being put more than once, Mr Kimura was unable to do this. As it seems to me, there is no basis upon which the Court can say the hearing before the Tribunal denied Mr Kimura substantial fairness by reason of his mental condition. A somewhat similar matter was raised with Tamberlin J; he also felt there was nothing in it. Second, Mr Kimura says he possesses secret information regarding the AUM sect and arising out of his former membership of it. He says this is a reason for having a well-founded fear of persecution. I note, however, that the Tribunal was not satisfied Mr Kimura was ever a member of the AUM sect. This was a finding of fact and I see no basis upon which the Court can interfere with it. Third, Mr Kimura says the Japanese Embassy has become aware of the fact that he applied for a protection visa on the ground that he was a refugee. Tamberlin J dealt with a similar submission and pointed out that a file memorandum indicates the Japanese authorities were not told the type of application Mr Kimura was making. Even if it were otherwise, I note Mr Kimura merely says he would be "condemned" for criticising the Japanese Government. He does not suggest he would be persecuted on political grounds. Finally, Mr Kimura complains that the member of the Tribunal who conducted the hearing did not adequately explain to him the substance of the Convention. The transcript before the Tribunal shows this complaint is wrong. At pages 9 to 11 of the transcript, the member explained the substance of the Convention in simple, accurate and comprehensive terms. I see no basis for any ground of review under s 476 of the Migration Act. I should add that, at the end of his submission, Mr Kimura sought an adjournment of the appeal. He said he needed more time to investigate matters and get information but he did not detail the matters or information or explain how this would help him successfully challenge the Tribunal's decision. I see no justification for an adjournment. It is important that refugee matters be dealt with as expeditiously as possible. In my view the appeal should be dismissed. FOSTER J: Yes, I agree. I have nothing to add. EMMETT J: I agree with everything that has been said by Wilcox J and I have nothing to add. [There was discussion about costs.] WILCOX J: The order of the Court will be that the appeal be dismissed with costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 24 November 1997 Appellant in person Counsel for the Respondent: R Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 November 1997	1,128
federal_court_of_australia:fca/single/2019/2019fca0674	decision	commonwealth	federal_court_of_australia	text/html	2019-05-15 00:00:00	CDN16 v Minister for Immigration and Border Protection [2019] FCA 674	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca0674	2024-09-13T22:52:02.679744+10:00	FEDERAL COURT OF AUSTRALIA CDN16 v Minister for Immigration and Border Protection [2019] FCA 674 File number: VID 946 of 2018 Judge: KENNY J Date of judgment: 15 May 2019 Catchwords: PRACTICE AND PROCEDURE – application under r 9.63 of the Federal Court Rules 2011 (Cth) for appointment of litigation representative Legislation: Migration Act 1958 (Cth) s 91X Federal Court Rules 2011 (Cth) rr 9.61, 9.63, 9.64 Date of hearing: Determined on the papers Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 11 Solicitor for the Appellant: Da Gama Pereira & Associates Solicitor for the Respondents: Clayton Utz ORDERS VID 946 of 2018 BETWEEN: CDN16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: KENNY J DATE OF ORDER: 15 May 2019 THE COURT ORDERS THAT: 1. The former second appellant be identified in any documents filed or published in this appeal as "CDS16". 2. The former third appellant be identified in any documents filed or published in this appeal as "CDT16". 3. CDS16 be appointed as litigation representative for CDT16. 4. Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with. 5. Any further compliance with rr 9.63 or 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with. 6. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT KENNY J: 1 This is an interlocutory application made by a mother, who seeks to be appointed the litigation representative of her child in an appeal proceeding in this Court. There are also other consequential orders sought. 2 The substantive appeal is from the judgment of the Federal Circuit Court of Australia delivered on 20 July 2018, dismissing an application for judicial review of a decision of the Immigration Assessment Authority (IAA) dated 25 July 2016. The IAA had affirmed a decision of a delegate of the respondent Minister to refuse to grant the appellant, his wife and their child, Safe Haven Enterprise (Subclass 790) visas. The appellant, his wife and their child were applicants in Federal Circuit Court proceeding in which they unsuccessfully sought judicial review of the IAA's decision. This appeal proceeding was instituted by them all as the first, second and third appellants respectively. On 17 December 2018, however, Erskine Roden, as the lawyer for the wife and the child (the second and third appellants, identified in the appeal proceeding pursuant to s 91X of the Migration Act 1958 (Cth) as "CDS16" and "CDT16") filed a notice of discontinuance on their behalf in the appeal. 3 When the appeal came on for hearing before me on 12 March 2019, only the husband appeared to pursue the appeal. For reasons that need not be set out here, the hearing was adjourned on that day. A case management hearing was held on 26 March 2019, following which the application with which I am presently concerned was filed. This interlocutory application was filed on behalf of the mother (the former second appellant) and her child (the former third appellant) seeking orders that: (1) the former second appellant (previously CDS16) be appointed as litigation representative for the former third appellant (previously CDT16); (2) the former second appellant and the former third appellant be reinstated as appellants in the appeal proceeding; and (3) that they be granted leave to advance a new ground of appeal not raised in the proceeding before the Federal Circuit Court. 4 The application for the appointment of the former second appellant as the litigation representative for the former third appellant has not been opposed. This aspect of the interlocutory application is to be dealt with on the papers pursuant to an order of the Court made on 26 March 2019. The balance of the interlocutory application will be addressed after an oral hearing. 5 The Federal Court Rules 2011 (Cth) provide that a person under a legal incapacity may start a proceeding only by the person's litigation representative: see r 9.61. (It is convenient at this point to note that the interlocutory application contains an immaterial error, in so far as it seeks an order for the appointment of the former second appellant as the litigation representative for the former third appellant under r 9.61, instead of r 9.63.) 6 Rule 9.63 of the Federal Court Rules provides: r 9.63 Appointment of litigation representative by the Court (1) A party or an interested person may apply to the Court for an order appointing a person as a litigation representative. Note: Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary. (2) A copy of the application must be served on the person under a legal incapacity. (3) The application must be accompanied by an affidavit stating: (a) that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and (b) that the proposed litigation representative: (i) has consented, in writing, to the appointment; and (ii) is a person who, under rule 9.62, may be appointed as a litigation representative. Note: For service on a person under a legal incapacity, see rule 10.09. 7 The interlocutory application is supported by an affidavit affirmed by the former second appellant, in which she deposes that she consents to being appointed the litigation representative for her son, the former third appellant, who is a child and, as such, a person under a legal incapacity. 8 On 10 May 2019, the solicitor for the former second appellant sent a letter to the Court enclosing a statutory declaration dated 4 May 2019 signed by the former second appellant stating, among other things, that she has no interest in the proceedings that is adverse to the interests of her son. 9 I am satisfied that there has been substantial compliance with the requirements of rr 9.63 and 9.64. It is also appropriate in all the circumstances to dispense with the need to comply with the requirements of these rules any further. In the circumstances of the case, I would also dispense with conformity with r 9.63(2). 10 Having regard to the above, I am satisfied that an order should be made that the former second appellant be appointed as litigation representative for her son, the former third appellant. 11 In the circumstances, the following orders should be made: (1) The former second appellant be identified in any documents filed or published in this appeal as "CDS16". (2) The former third appellant be identified in any documents filed or published in this appeal as "CDT16". (3) CDS16 be appointed as litigation representative for CDT16. (4) Compliance with r 9.63(2) of the Federal Court Rules 2011 (Cth) be dispensed with. (5) Any further compliance with rr 9.63 or 9.64 of the Federal Court Rules 2011 (Cth) be dispensed with. (6) There be no order as to costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 15 May 2019	1,740
federal_court_of_australia:fca/full/2003/2003fcafc0087	decision	commonwealth	federal_court_of_australia	text/html	2003-05-09 00:00:00	VKAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 87	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2003/2003fcafc0087	2024-09-13T22:52:02.770429+10:00	FEDERAL COURT OF AUSTRALIA VKAV v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 87 MIGRATION – whether appellant's protection visa application was invalid, for non-compliance with requirement that an applicant make "specific claims under the Refugees Convention" Migration Act 1958 (Cth) ss 45, 41, 47, 65 Migration Regulations r 2.07 Item 866.211 in Schedule 2 Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347 considered Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273 considered Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566 considered APPLICANT VKAV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS No V 824 of 2002 SPENDER, TAMBERLIN, KENNY JJ MELBOURNE 9 MAY 2003 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 824 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT VKAV APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, TAMBERLIN, KENNY JJ DATE OF ORDER: 9 MAY 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs, to be taxed if not agreed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 824 OF 2002 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: APPLICANT VKAV APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGES: SPENDER, TAMBERLIN, KENNY JJ DATE: 9 MAY 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT THE COURT: 1 On 7 May 2003, the Court dismissed an appeal from orders made by Weinberg J on 8 November 2002, dismissing with costs an application for review of a decision of the Refugee Review Tribunal given on 8 August 2001, and advised it would give its reasons later. These are those reasons. 2 The sole ground of review relied upon before Weinberg J and the sole ground of the appeal before the Court on 7 May 2003 is whether the protection visa application lodged by the appellant on 31 December 1999 was a valid application for the purposes of ss 45, 46, 47 and 65 of the Migration Act 1958 (Cth) ("the Act"), as in force at the relevant time, being a time prior to the amendments which commenced in October 2001. 3 Weinberg J held that the protection visa application was a valid application. We agree with that conclusion, for the reasons given by his Honour. 4 Regulation 2.07(3) required that: "[A]n appellant must complete an approved form in accordance with any directions on it." 5 The questions in the application form and the answers given by the appellant were as follows: "I am seeking protection in Australia so that I do not have to go back to: (Give name of country or countries) A: Sri Lanka Why did you leave that country? If you need more space to answer, insert extra pages as required. A: I left as I was unwilling to continue living in the conditions to which I was subjected and over the fear of the harm that would come to me. What do you fear may happen to you if you go back to that country? If you need more space to answer, insert extra pages as required. A: I fear the harm that would be done to me as a young Tamil girl and this became increasingly fearful with my having to locate to employment in a predominantly Sinhala town – Homagama. There was no protection to a young girl like me in such situation. I have discussed my fears with the adviser. In view of the time limits of the Visa and the regulations, he has advised that the application be lodged forthwith and details of the claim be submitted later once they are completed. I will do so soon. Who do you think may harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required. A: The Sri Lankan forces. Why do you think they will harm/mistreat you if you go back? If you need more space to answer, insert extra pages as required. A: Due to ethnicity and political attitudes. Do you think the authorities of that country can protect you if you go back? If not, why not? A: I have no faith that the Sri Lankan forces or authorities would protect me." 6 Contrary to the appellant's statement on 31 December 1999 that "details of the claim" would be submitted "soon", no further details of the appellant's claim to the Department of the respondent were provided before 22 March 2000, when a delegate of the respondent made a decision to refuse the grant of a protection visa to the appellant. 7 Item 866.211 in Schedule 2 of the Act provided that a criterion to be satisfied at the time of application was: "The applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and: (a) makes specific claims under the Refugees Convention …" 8 The case for the appellant, both before Weinberg J and on this appeal, was that her answers in her application form do not amount to substantial compliance with the requirements of the legislative scheme, to make specific claims under the Refugees Convention. The contention before Weinberg J and on the appeal was that: "To make specific claims [under] the Convention there must be a claim which is specific as to the nature of the persecution period, the reason the applicant fears persecution may be suffered, the agents of persecution, the reasons why protection is not available in the country of nationality, and details of any past persecution or other treatment which is the basis of the claim. In the present case there is no detail about past experiences, no detail about the nature of persecution to be feared, no detail of political opinions imputed, and no detail of the agents of persecution. On a fair reading not only of the material presented to the delegate of the respondent, but also on the structure and purpose of the Act and the Regulations, it cannot be said that there were specific claims made sufficient to amount to substantial compliance with the requirements of the Act and the Regulations for a valid application." [Emphasis added] 9 Weinberg J found: "In my opinion, the information contained in the application made it sufficiently clear to the delegate that the applicant's claim related to her status as a Tamil, and that it had to do with her political opinions, actual or imputed. That is sufficient, according to the authorities set out above, to render the application valid." 10 It is unnecessary for us to repeat the detailed analysis by the primary judge of Minister for Immigration & Multicultural Affairs v Li (2000) 103 FCR 486, Yilmaz v Minister for Immigration & Multicultural Affairs (2000) 100 FCR 495, Nie v Minister for Immigration & Multicultural Affairs [2000] FCA 347, Shahabuddin v Minister for Immigration & Multicultural Affairs [2001] FCA 273, Bal v Minister for Immigration & Multicultural Affairs [2001] FCA 1191, and on appeal Bal v Minister for Immigration & Multicultural Affairs (2002) 189 ALR 566, being "the authorities set out above" referred to in the preceding paragraph. 11 We agree with Weinberg J where his Honour said: "It seems to me that the level of information provided by the applicant in the present case exceeded by a considerable margin that which was provided by the applicant in Nie, which was held, nonetheless, sufficient to constitute a valid application. I would regard the level of specificity of the claims made in the present case as being broadly similar to that in Shahabuddin where the application was also held to be valid. In Bal the Full Court expressly approved the reasoning in both those cases, and did not express any dissent from the result arrived at in either case." 12 We dismissed the appeal for the above reasons. The appellant must pay the respondent's costs of the appeal, to be taxed if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Tamberlin, Kenny JJ. Associate: Dated: 9 May 2003 Counsel for the Appellant: Mr Anthony Krohn Solicitor for the Appellant: Ravi James & Associates Counsel for the Respondent: Mr Christopher Horan Solicitor for the Respondent: Clayton Utz Date of Hearing: 7 May 2003 Date of Judgment: 9 May 2003	2,035
federal_court_of_australia:fca/single/2018/2018fca1540	decision	commonwealth	federal_court_of_australia	text/html	2018-10-15 00:00:00	Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1540	2024-09-13T22:52:04.051762+10:00	FEDERAL COURT OF AUSTRALIA Fastbet Investments Pty Ltd v Deputy Commissioner of Taxation (No 3) [2018] FCA 1540 File number: QUD 547 of 2017 Judge: DERRINGTON J Date of judgment: 15 October 2018 Catchwords: PRACTICE – discovery – in Judicial Review proceedings – relevance – where discovery application is a "fishing" exercise Legislation: Administrative Decisions (Judicial Review) Act 1977 (Cth), s 13 Freedom of Information Act 1982 (Cth) Judiciary Act 1903 (Cth), s 78B Tax Administration Act 1953 (Cth), sch 1 ss 255-100 – 255-110 Federal Court Rules 2011, r 20.11 Cases cited: Carmody v MacKellar (1996) 68 FCR 265 Jilani v Wilhelm (2005) 148 FCR 255 Keris Pty Ltd v Deputy Commissioner of Taxation (2017) 253 FCR 233 Date of hearing: 11 September 2018 Registry: Queensland Division: General Division National Practice Area: Taxation Category: Catchwords Number of paragraphs: 42 Counsel for the Applicant: Mr J Fickling Solicitor for the Applicant: Robson Legal Counsel for the Respondent: Dr R Schulte Solicitor for the Respondent: Australian Government Solicitor Table of Corrections 31 October 2018 In Order 1 the words "sub-paragraphs 1(b) and (c)" have been replaced with "sub-paragraphs 1(d) and (e)". 31 October 2018 In the last sentence of paragraph 2 the word "and" has been replaced with "which". 31 October 2018 In the last sentence of paragraph 7 the word "this" has been deleted. 31 October 2018 In paragraph 8 the letter "s" before "255-100" has been deleted. 31 October 2018 In the first sentence of paragraph 11 "s 255-100 1(b)" has been replaced with "s 255-100(1)(b)". 31 October 2018 In the first sentence of paragraph 21 the word "the" between "by" and "Fastbet" has been deleted. ORDERS QUD 547 of 2017 BETWEEN: FASTBET INVESTMENTS PTY LTD ACN 124 463 770 Applicant AND: DEPUTY COMMISSIONER OF TAXATION OF THE COMMONWEALTH OF AUSTRALIA Respondent JUDGE: DERRINGTON J DATE OF ORDER: 15 October 2018 THE COURT ORDERS THAT: 1. The relief sought in sub-paragraphs 1(d) and (e) of the application filed on 16 August 2018 be dismissed. 2. The remainder of the application is adjourned to 10.15am on 31 October 2018 for further hearing. 3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT DERRINGTON J: Introduction 1 This is an application by Fastbet Investments Pty Ltd (Fastbet) for discovery against the Commissioner of Taxation in judicial review proceedings which it has commenced. These reasons relate only to what has become the first contentious issue in the application. Fastbet's interlocutory application was listed for hearing on 11 September 2018, however, the time allocated for it expired and argument on the remaining issues has been adjourned to a later date. History 2 It is not necessary to set out at any length the history of this matter but it is appropriate to recognise the not insignificant history of non-compliance by Fastbet with various directions made by this Court. There is no need to specify all of those delinquencies but they are identified in the Chronology of Events which is annexed to the Commissioner's outline. In light of that history the Commissioner submits that the present application is a tactical one by which Fastbet seeks to further delay the proceedings. There is some force in that submission which Fastbet's conduct in these proceedings to date has nothing to dispel. 3 By the Originating Application Fastbet seeks to review the decision of a delegate of the Commissioner of Taxation to issue to it a Notice under s 255-100 of Schedule 1 of the Tax Administration Act 1953 (Cth). Such a notice requires the recipient to provide security to the Commissioner for the due payment of, inter alia, "future tax-related liabilities" and is sometimes referred to as a "Security Bond Demand" (SBD). 4 Ms Tina Bazzo (Ms Bazzo) is the current sole director of Fastbet and she and companies associated with her have numerous extant disputes with the Commissioner. This is one of them. 5 As is set out in the Originating Application some of the circumstances relied upon by the Commissioner for the issue of the SBD to Fastbet were identified as being: (a) That Ms Bazzo had been non-compliant in respect of her personal tax obligations, owing more than $13,869,620 in personal taxation to the Commissioner. (b) Ms Bazzo is currently being prosecuted in respect of two alleged taxation offences. (c) Ms Bazzo is a director of several other companies which have failed to comply with various tax obligations. (d) That in relation to one of those companies, GH1 Pty Ltd (GH1), Ms Bazzo caused the company to sell its property to a third party and permitted approximately $3.35 million of the proceeds to be paid to a third entity controlled by Ms Bazzo. (e) That there were a number of financial dealings in the operation of GH1 by Ms Bazzo which gave rise to significant concern. (f) That GH1 was placed in liquidation on 22 May 2017, and the Commissioner lodged a proof of debt in the amount of $73,669,171.09 for unpaid tax liabilities. (g) Ms Bazzo is a director of more than a dozen other companies which collectively have more than 20 outstanding income tax returns or business activity statements. 6 None of the above factual matters relied upon by the Commissioner's delegate are disputed by Fastbet in these proceedings. 7 The Commissioner issued the notice under s 255-100 of Sch 1 of the Tax Administration Act. The s 255-100 Notice specified the Commissioner required the giving of mortgages over 18 parcels of land which were listed in the notice by their real property description. One of the many issues raised by Fastbet in these proceedings is that, although the titles to the parcels of land were checked by the Australian Tax Office (ATO) on the day the notice was issued, by the time of issue some dealings were lodged on two of the titles. It claims that the issue of the notice became invalid because it required the provision of security over property which it no longer owned. 8 Section 255-100 provides as follows: SECTION 255-100 COMMISSIONER MAY REQUIRE SECURITY DEPOSIT (1) The Commissioner may require you to give security for the due payment of an existing or future tax-related liability of yours if: (a) the Commissioner has reason to believe that: (i) you are establishing or carrying on an enterprise in Australia and (ii) you intend to carry on that enterprise for a limited time only; or (b) the Commissioner reasonably believes that the requirement is otherwise appropriate, having regard to all relevant circumstances. Note: A requirement to give security under this section is not a tax-related liability. As such, the collection and recovery provisions in this Part do not apply to it. (2) The Commissioner may require you to give security: (a) by way of a bond or deposit (including by way of payments in instalments); or (b) by any other means that the Commissioner reasonably believes is appropriate. (3) The Commissioner may require you to give security under this section: (a) at any time the Commissioner reasonably believes is appropriate; and (b) as often as the Commissioner reasonably believes is appropriate. Example: The Commissioner may require additional security if he or she reasonably believes that the original security requirement underestimated the amount of the likely tax-related liability. 9 It is also necessary to consider other complementary sections which provide: SECTION 255-105 NOTICE OF REQUIREMENT TO GIVE SECURITY Commissioner must give notice of requirement to give security (1) If the Commissioner requires you to give security under section 255-100, he or she must give you written notice of the requirement. Content of notice (2) The notice must: (a) state that you are required to give the security to the Commissioner; and (b) explain why the Commissioner requires the security; and (c) set out the amount of the security; and (d) describe the means by which you are required to give the security under subsection 255-100(2); and (e) specify the time by which you are required to give the security; and (f) explain how you may have the Commissioner's decision to require you to give the security reviewed. … SECTION 255-110 OFFENCE You commit an offence if: (a) the Commissioner requires you to give security under section 255-100; and (b) you fail to give that security as required. Penalty: 100 penalty units. 10 The operation of s 255-100 was recently considered by the Full Court of this Court in Keris Pty Ltd v Deputy Commissioner of Taxation (2017) 253 FCR 233 (Greenwood, McKerracher and Moshinsky JJ) (Keris). That decision concerned the issuing of a notice to the company, Keris Pty Ltd, which, coincidently, is another of Ms Bazzo's companies. The Full Court essayed the operation of the section at [90]–[94]. It is worth setting out that portion of the reasons in full: [90] However, s 255-100(1) confers a discretionary power upon the Commissioner to require the addressee to give security for the due payment of a tax-related liability which the Parliament, by the use of the defined phrase "tax-related liability", must, as a matter of construction, be taken to have intended to be capable of exercise, in the relevant circumstances, in a way which engages each tax-related liability falling within the scope of the defined term subject to the role and effect of the qualifying descriptive language "existing" and "future". [91] Section 255-100 contemplates two states. The first is an existing tax-related liability of yours and the second is a future tax-related liability of yours. An existing tax-related liability is that state in which, at the time of the exercise of the power, a presently existing pecuniary liability to the Commonwealth arises directly under a taxation law including a liability the amount of which is not yet due and payable to the Commonwealth (Commissioner). A presently existing pecuniary liability to the Commonwealth arises, although the amount of it may not be due and payable, once the Commissioner has made an assessment or is taken to have made an assessment and notice of it has been given to the addressee or notice is taken to have been given to the addressee. [92] A future tax-related liability is that state in which, at the time of the exercise of the power, a tax-related liability does not presently exist. The statutory term looks to future events and postulates the possibility (at the time of the exercise of the power by the Commissioner, standing in the present), of a pecuniary liability to the Commonwealth arising directly, in the future, under a taxation law. [93] There is nothing in the text of the term "future *tax-related liability of yours" which suggests that the discretionary power conferred on the Commissioner to require the addressee to give security for the due payment of a future tax-related liability is conditioned upon facts (taxable facts) having occurred at the time of the exercise of the power upon which the Commissioner could then act to make and notify an objectively correct quantification of the amount of the future tax-related liability. [94] The statutory factors upon which the exercise of the conferred power rests, suggest no such requirement. The Commissioner may exercise the power if he or she has reason to believe the addressee is "establishing" an enterprise or, having regard to the definition of "carrying on" an enterprise (in s 995-1 of the 1997 Act for the purposes of s 255-100(1)(a)(i)), he or she has reason to believe the addressee is doing "anything in the course of commencement of an enterprise" (s 9-20, GST Act); and the Commissioner has reason to believe the addressee intends to carry on the enterprise for a "limited time only". These terms "establishing" and doing "anything in the course of commencement" of an enterprise are inconsistent with a discretionary power to require security for the due payment of a future tax-related liability construed in such a way as to limit the subject matter of the exercise of the power to those future tax-related liabilities where the Commissioner can presently isolate, at the time of the exercise of the power, existing taxable facts having occurred (such as an existing sale of any one or more of 28 subdivisional lots) which, if then assessed, would give rise to a presently objectively correct amount of a future tax-related liability. 11 In the present case the decision maker apparently relied upon s 255-100(1)(b) in concluding it was appropriate to require the security in all the circumstances. In that respect, it is relevant that in Keris it was made clear that in ascertaining whether there was a future tax liability, the decision maker was not required to determine whether there would be an expected or anticipated liability. All that is required is the identification of facts which might occur in the future to give rise to pecuniary liability to the Commonwealth under the taxation laws. The relevant grounds of review 12 Fastbet has set out a number of grounds of review in its Amended Originating Application. Ground three asserts that the Commissioner's decision was not authorised by the enactment because, inter alia, the decision maker, Mr Burns, did not reasonably believe that the security was appropriate in the circumstances as he did not believe that Fastbet was the registered proprietor of each of the 18 lots listed in the notice. It was alternatively alleged that Mr Burns did not have regard to all the relevant circumstances being that the lots were not all registered in the name of the applicant. It is also alleged that Mr Burns did not have regard to the relevant circumstances that the applicant had carry forward tax losses which might negate any future tax liability. The claim is also put in the inverse by an allegation that the decision was an improper exercise of power because irrelevant considerations were taken into account. 13 Mr Burns made the determination on 19 September 2017 that the s 255-100 Notice ought to be issued to Fastbet. Subsequently, reasons were requested for the making of the decision and they were provided. The essence of Mr Burns' deliberations' relevant to the present matter are as follows: In making my decision, I relied on the notification from the audit team that the net future tax liabilities of Fastbet Investments Pty Ltd as a result of the development and sale of approximately 570 blocks of land was expected to be $6,895,222. In my experience, the audit team's calculations of likely net future tax liabilities tend to be a reliable, but conservative, estimate of net future tax liabilities. Given the number of anticipated lots, the expected net future tax liability equated to approximately $12,000 per lot, which appeared reasonable to me. In making my decision to issue the Notice, I held the belief that there was a significant risk that Fastbet Investments Pty Ltd would not pay the $6,895,222 of tax-related liabilities which ATO auditors had estimated that Fastbet Investments Pty Ltd would incur from its property development activity. This belief was based on my consideration of the non-compliance behaviour of Ms Bazzo and more than fifteen companies of which Ms Bazzo currently is (or previously had been) a director, evidence of which was outlined in the submission of Cong Nguyen, dated 19 September 2017. Based on my belief that there was a significant risk that Fastbet Investments Pty Ltd would fail to pay the anticipated $6,895,222 of tax-related liabilities, I concluded that it was appropriate that I should seek to mitigate that risk by issuing the Notice to require the provision of $6,500,000 of security. The grounds of the application 14 Fastbet's submissions in support of the discovery application were somewhat diffuse. Eventually, it abandoned its application in relation to the documents identified in paragraphs 1(b) and (c) of its interlocutory application. Those documents related to the assessment of future tax liabilities. Mr Fickling for the applicant had asserted that these documents were relevant because they went to the assessment by Mr Burns of Fastbet's future tax-related liability. However, it was clear that Mr Burns did not assess any such liability. It was assessed by officers in the audit team. As appears above, Mr Burns accepted that which had been identified being an assessment by the audit team of the likely tax liability and he gave reasons for why he did so. There is no suggestion Mr Burns delegated his decision making authority to any member of the audit team to calculate the amount. That being so the documents in paragraphs 1(b) and (c) in question were irrelevant. 15 In addition, as the decision in Keris discloses, there is no need for the Commissioner to make an assessment of any liability. All that is required is that there be facts which might give rise to a taxation liability. Here, Fastbet was in the process of developing land by the construction of apartments and selling them. In the ordinary course of events, that is an activity which is likely to give rise to a taxation liability. In the very least, it is likely to give rise to an obligation to pay GST on the supply of the units. Documents concerning ownership of land 16 The second category of documents sought by Fastbet concerned those in the possession of the Commissioner relating to Fastbet's interests in the parcels of land specified in the notice. 17 The documents Fastbet seeks under this heading are: d. Ownership of land on 19 September 2017 – documents. With reference to the titles to land held by the Applicant on 19 September 2017, all Documents (including any emails, letters, notes, file notes, SMS messages and documents) constituting, recording, evidencing or otherwise relating to the ascertainment of the land owned legally or beneficially, and or transferred to or from, the Applicant by the Respondent on or around 19 September 2017. e. Ownership of land on 19 September 2017 – communication documents. With reference communications as to the titles to land held by the Applicant between Mr Ross Burns, Mr Cong Nguyen, Mr Timothy Hughes, Mr Peter Irvin, Mr Michael Crawshaw and any other relevant officer in the office of the Respondent, all written communications (including emails, SMS messages and MOC messages and logs of such messages) howsoever relating to the titles to land held by the Applicant on 19 September 2017, all Documents constituting, recording, evidencing or otherwise relating to the ascertainment of the land owned legally or beneficially, and or transferred to or from, the Applicant by the Respondent on or around 19 September 2017. General principles relating to discovery in judicial review proceedings 18 The general principles applicable to the granting of discovery in actions for judicial review were referred to the decision of the Full Court in Jilani v Wilhelm (2005) 148 FCR 255 where it was held that "it is not open to an applicant to make a bare allegation that a decision was made without any basis and then use the process of discovery to find out if the allegation has foundation" (at [111]). Their Honours said (at [112]): There must be sufficient definition of the issues to enable the Court to see that the documents sought on discovery relate to a live issue; there must at least be something from which the Court can see that there is a real issue the proof of which would be assisted by discovery; Nestle at 83; Murchison v Keating at 344-345. 19 Earlier in their reasons their Honours cited with approval the principles summarised by Merkel J in Carmody v MacKellar (1996) 68 FCR 265 at 280, which are as follows: The following principles may now be taken to be well established by the decisions of the Court in Melbourne Home of Ford v Trade Practices Commission (1979) 36 FLR 450, W.A. Pines Pty Ltd v Bannerman (1980) 41 FLR 175 and Australian Securities Commission v Somerville (1994) 51 FCR 38. • the Court has a discretionary power to order discovery in proceedings for the review of an administrative decision; • the proper exercise of the power depends upon the nature of the case and the stage of the proceedings at which discovery is sought; • if a proceeding or claims in it are essentially speculative in nature the Court will not order discovery in order to assist the applicant in a fishing exercise; • the evidence or material which will be required to establish that the proceeding or particular claims in it are not essentially speculative will vary with the nature and circumstances of the particular case; • if there is not the slightest evidence or there is no other material to support the bare allegations made in the proceeding, then as a general rule, an order for discovery ought not to be made. Nature of case and state of the proceedings 20 The action is, as identified above, an application for judicial review. It is brought pursuant to the Administrative Decisions (Judicial Review) Act 1977 (Cth) and the Judiciary Act 1903 (Cth), although there is a degree of commonality with respect to the grounds advanced under each. It must be kept in mind that judicial review does not entail a merits review. The delegate, Mr Burns, has given written reasons for his decision pursuant to a request made under s 13 of the ADJR Act. In the ordinary course, the validity of his decision would stand or fall on the legality of the decision making process as evidenced by those reasons. 21 The relevant grounds relied upon by Fastbet concerns Mr Burns' consideration of the ownership of the allotments in respect of which security was required. The gravamen of the complaint is that the SBD required Fastbet to provide mortgage security over real property, the title to which had passed from it by the time the notice was issued. The notice to give security which was sent on 19 September 2017, required the applicant to execute a mortgage over "all real estate registered in the name of the company and set out above". The reference to "set out above" is a reference to the 18 parcels of land identified in the notice by their real property descriptions. 22 Fastbet has already secured from the Commissioner the production of a substantial amount of material by making applications under the Freedom of Information Act 1982 (Cth). Some of what has been obtained to date, has been placed before the Court for the purposes of this application. That material discloses that on 19 September 2017, and between the time in which the submission to Mr Burns to issue the s 255-100 Notice (the SBD Submission) was delivered to him and the time of the issuing of the SBD, some dealings occurred with respect to two of the parcels of land which were referred to in the SBD Submission and subsequently specified in the s 255-100 Notice. The person preparing the SBD Submission had searched the Land Titles Register earlier that day and ascertained the titles to the 18 parcels revealed Fastbet was the owner. The dealings were apparently entered on the register after the search occurred. The result was that the s 255-100 Notice required the giving of security to the Commissioner by way of a mortgage over the 18 parcels of land even though dealings had been lodged on two of the titles. 23 Although it is not necessary to decide, it may well be that, properly construed, all that the s 255-100 Notice required was that Fastbet give mortgages over its interests in the identified parcels of land. If, at the time the notice issued, one of those parcels had been sold and the purchase price paid such that Fastbet held the title as bare trustee, the obligation would be to grant the mortgage over whatever interest was held. It may be a slightly unusual construction of the SBD for it to require the giving of security over an interest in land which Fastbet did not have. That may or may not be an issue which needs to be considered later in the proceedings and can only be decided when, and if, it arises. 24 More specifically Fastbet's real complaint is that, in determining to issue the s 255-100 Notice, Mr Burns did not take into account the fact that there were dealings entered on the titles to the land when the decision to issue it was made or, alternatively, the decision maker did not reasonably believe that there were none: see grounds 3.2 and 4.2. The difficulty for the applicant here is that the SBD submissions to Mr Burns and Mr Burns' reasons show that he had taken steps to ascertain the ownership of land held by Fastbet. He had caused a search to be undertaken on the morning on which the notice was issued and he was informed of the results by the terms of the SBD submission. That submission was in evidence on the application and shows that Mr Burns was informed that Fastbet "currently holds land titles for the following lots" and the 18 lots were included in those listed. 25 It may be that the thrust of the applicant's argument is that somehow Mr Burns was aware that, in the period between when the searches were done in the morning of 19 September 2017 and the time of the issuing of the notice later that day, dealings were entered on the titles of some of the lots but he issued the notice anyway. Certainly, during the course of submissions, this was the general nature of the complaint which was seemingly advanced by Mr Fickling for Fastbet. Apart from anything else, there is not a skerrick of evidence which would suggest that allegation is true. Those documents obtained under the Freedom of Information Act include emails between Mr Burns and various other ATO officers in relation to the circumstances arising prior to the issuing of the notice and, in particular, in relation to the identification of assets owned by Fastbet. There is nothing to suggest that Mr Burns was in any way aware of the intervening dealings on the land. Indeed, the emails which have been disclosed suggest that knowledge of the transfers lodged on the titles to the two parcels of land were only discovered some three days after the notice was issued. 26 The allegations in the Originating Application on this topic are no more than mere assertions and, on the basis of the large amount of material presently available, they have no foundation in fact. The suggestion that Mr Burns exercised his power to issue the SBD over the two parcels of land in respect of which he knew transfers had been lodged is nothing more than fevered speculation by those representing Fastbet. That is insufficient in judicial review proceedings to warrant the making of orders for discovery. In addition, the material which has been identified above tends towards the conclusion that Mr Burns relied upon what he was told in the SBD Submission about Fastbet's ownership of the parcels of land and that information about the transfers which were lodged on 19 September only came to light a few days afterwards. Not only is the allegation about Mr Burns speculation, it is seemingly contrary to the information presently in the hands of Fastbet's legal advisers. 27 These proceedings have been on foot since 17 October 2017. It is axiomatic that judicial review proceedings ought be dealt with expeditiously, but here Fastbet has failed to pursue the matter with any degree of expedition. Indeed, much of its litigious activity appears to be directed towards delaying a final determination. It has issued s 78B Notices under the Judiciary Act 1903 (Cth), issued at least four Notices to Admit directed to the Commissioner and made three requests for subpoenas duces ticum to be issued to the Commissioner as well as this application for discovery. Putting aside these actions by Fastbet, the matter is otherwise generally ready to be set down for hearing with the parties having filed their affidavits for the purposes of the main hearing and objections to evidence have been notified. 28 Given the fact that this is an application for judicial review and that the matter is otherwise all but ready for a hearing, one would expect good reasons to be advanced as to why discovery ought to be made at this stage. None have been provided. Whether the claims are speculative or not? 29 In seeking the documents relating to what Mr Burns may or may not have known about dealings on the title of land owned by Fastbet on 19 September 2017, Fastbet, by its Counsel, all but admitted it did not know what had happened. Mr Fickling submitted (at TS-86): And so the question in – clearly something did go very wrong in issuing a security bond demand over property that had already been sold. But the question is – and their discovery as sought is to understand what really did the respondent know at the time because this ought not to have happened if real time alerts were being received and appropriately forwarded on to Mr Burns. 30 He subsequently acknowledged that it was mere speculation on his part that such information was being forwarded to Mr Burns. Later he said (at TS-89): So we cannot particularise what the actual knowledge inside the office of the respondent or indeed Mr Burns at the time of issuing the security bond demand, but what we can say is that that property was subject to dealing. 31 These submissions disclose the application for discovery is truly a "fishing" exercise. There is nothing in the vast amount of material filed to suggest that Mr Burns was aware of the fact that in the period between 9.30am on the morning of 19 September 2017 and several hours later when he made the decision, dealings with respect to the parcels had taken place and had been notified on the title. Moreover, there is nothing in the reasons provided for the decision that suggests Mr Burns knew that such events existed. The fishing nature of the application, of itself, warrants the rejection of discovery in this respect. 32 The characterisation of the application for discovery by the Commissioner as a "fishing expedition", is given greater veracity by the submission made on behalf of Fastbet that, once discovery is complete, it is likely to seek to amend the Originating Application. The nature of the proposed amendments were not identified and it can only be assumed that Fastbet is seeking to find some new ground in the material which it might receive if an order for discovery is made. No evidence to support claims 33 As mentioned, the applicant has had the benefit of receiving a large amount of material from the Commissioner's office through Freedom of Information Act applications. Those documents include emails between the various persons who were active in the preparation of the submission to Mr Burns and Mr Burns himself. There is not the slightest scintilla of a suggestion that, prior to the making of the decision, Mr Burns was aware of the intervening dealings. Indeed, the evidence is entirely to the contrary as it reveals that after the decision was made, the officers of the ATO discovered the existence of dealings on the title and undertook action to ascertain what had occurred. 34 The fact that the evidence tends to disprove any suggestion that Mr Burns, or anyone in his office, was aware of the intervening transactions shows there is no support for the bare allegations made in the application. Discovery should not be ordered 35 The above considerations all weigh heavily against the exercise of the Court's discretion to make an order for discovery in relation to the documents pertaining to Mr Burns' knowledge of the dealings which took place with respect to the parcels of land of which Fastbet was the registered proprietor. A consideration of the criteria referred to by Merkel J in Carmody v MacKellar leads inexorably to the conclusion that Fastbet has failed to establish any basis to warrant the exercise of discretion in its favour. Additional reason for refusing discovery 36 In opposition to the application the Commissioner relied upon Fastbet's failure to comply with r 20.11 of the Federal Court Rules which provides that, "a party must not apply for an order for discovery unless the making of the order sought will facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible". Counsel for the Commissioner submitted that much has occurred in the course of this action before Fastbet made its discovery application, including the amendment of the Originating Application on two occasions and the request has come at a late stage. There is much force in that submission and, particularly so, given Fastbet's indication that it hopes to further amend the Originating Application on the completion of discovery. The Commissioner's submission that Fastbet has made no attempt to establish how the application for the order for discovery might meet the objectives set out in r 20.11, is also not unfair or inaccurate. 37 The Commissioner further submitted that in making the discovery application, Fastbet ignored cl 10.5 of the Central Practice Note pertaining to discovery. In particular, reference was made to the expectation of the Court that an applicant will have discussed the issue of discovery with the other party and, if possible, have agreed upon a protocol. Here, no attempt was made to discuss the issue of discovery with the Commissioner's legal advisers. The first time they became aware of Fastbet's desire for discovery was when the application for discovery was served and the first time Fastbet articulated why it claimed discovery was needed or what the relevant issues in dispute were, was when it provided its submissions for the purposes of the application. 38 At first blush it might be thought that reliance on the failure to comply with the Central Practice Note was somewhat technical. However, on reflection, the point is not without substance. The Practice Note exists for a very good reason, being to ameliorate the cost and wasted time involved in applications of this nature. It has been prepared with a view to ensuring applications of this type do not occur needlessly, or that, if they proceed, they will be dealt with efficiently. No explanation was provided by Fastbet for its failure to comply with the Practice Note. 39 Even if there were some merit in the application for discovery, it would undermine the purpose and effect of the Practice Note were Fastbet to be permitted to avoid compliance with it in this case where its prosecution of its action has been dilatory to say the least. Its failure to comply with these requirements is another reason why an order for discovery should be refused in relation to the documents identified in paragraph 1(d) and (e) of the application. 40 The respondent makes the further submission that this application cannot expeditiously advance this matter. Again, there is some force in that submission. The documents sought by Fastbet are the unredacted versions of the documents provided under the Freedom of Information Act. However, it would have been pellucidly clear to any reasonable practitioner that the redactions made by the Commissioner related to claims for public interest immunity or legal professional privilege. Even if an order for discovery were made, those claims would still need to be resolved. The failure of the applicant to attempt to advance this issue with the Commissioner prior to making the application is, in the circumstances, a serious error which would warrant the refusal of the application. Conclusion 41 It follows that the application for discovery in respect of the documents identified in paragraphs 1(d) and (e) is refused. Further hearing 42 The hearing of the application had to be adjourned as a result of the expiration of time. Counsel was not available on the following day. The remainder of the application has been set down for further hearing on 31 October 2018 at 10.15am. I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Derrington. Associate: Dated: 15 October 2018	7,634
federal_court_of_australia:fca/single/2017/2017fca0931	decision	commonwealth	federal_court_of_australia	text/html	2017-08-14 00:00:00	CXZ16 v Minister for Immigration and Border Protection [2017] FCA 931	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2017/2017fca0931	2024-09-13T22:52:05.174327+10:00	FEDERAL COURT OF AUSTRALIA CXZ16 v Minister for Immigration and Border Protection [2017] FCA 931 Appeal from: CXZ16 v Minister for Immigration & Anor [2017] FCCA 264 File number: WAD 141 of 2017 Judge: BARKER J Date of judgment: 14 August 2017 Catchwords: MIGRATION – application for Safe Haven Enterprise visa – appeal from Federal Circuit Court of Australia – whether primary judge erred in failing to find jurisdictional error in decision of Immigration Assessment Authority – where appellant seeks to raise new grounds on appeal – whether appellant denied procedural fairness – whether primary judged failed to consider integer of claim Legislation: Migration Act 1958 (Cth) ss 5H, 5H(1), 5J(1)(a), 5J(4)(a), 5J(4)(b), 5J(4)(c), 36(2)(a), 36(2)(aa), 91WA(1), 189(3), 473CA, 473DC(1) Cases cited: CXZ16 v Minister for Immigration & Anor [2017] FCCA 264 Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588; [2004] FCAFC 158 Date of hearing: 14 August 2017 Registry: Western Australia Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 72 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: Mr P Macliver Solicitor for the First Respondent: Sparke Helmore Lawyers ORDERS WAD 141 of 2017 BETWEEN: CXZ16 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: BARKER J DATE OF ORDER: 14 AUGUST 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the first respondent, to be assessed if not agreed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BARKER J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia dismissing an application for judicial review of a decision of the Immigration Assessment Authority, affirming a decision of a delegate of the Minister for Immigration and Border Protection not to grant the appellant a Safe Haven Enterprise (subclass 790) visa (SHEV). 2 The appellant, born on 2 March 1987, is a male citizen of Bangladesh and of Bengali ethnicity. He arrived in Australia on 21 February 2013 without a visa and was subsequently detained in an immigration centre pursuant to s 189(3) of the Migration Act 1958 (Cth). 3 The appellant applied for a SHEV on 23 April 2016. In his application, he claimed to fear harm from supporters of the Awami League party and the Awami-led government as a result of his political opinion as an active member of the Bangladesh National Party (BNP) in the Titash district. The appellant claimed he was involved in organising BNP political activities and election campaigns for a local Member of Parliament for the Comilla District. 4 The appellant said that during the time of the caretaker government, BNP supporters were threatened and harassed by Awami supporters, and he had been beaten by Awami League supporters on five or six occasions. The appellant claimed the abuse and harassment worsened after the Awami League came into power in 2008. 5 The appellant said that he moved to Homna for his safety, but continued to be beaten and harassed by members and supporters of the Awami League. He claimed the Awami League regularly harassed BNP supporters in all areas of Bangladesh because they wanted to establish a one party system in the country and control power. He said he then moved to Dhaka in 2010 to avoid the mistreatment he received in Homna, but continued to be threatened as he was involved with the BNP in Dhaka. 6 The appellant claimed he had been falsely accused and charged with being involved in a bombing incident that occurred during a BNP meeting on 10 October 2012. He said after the bombing incident, the government filed a police case against many BNP supporters, even though they were the victims of these attacks. He said he believed that the Awami League were behind the false accusations. 7 After this incident, the appellant said, he fled and went into hiding. He claimed Awami League thugs threatened and harassed his family, and damaged their property when they could not find him. 8 The appellant added that, since coming to Australia, the Awami League has come to his house and threatened his mother, repeating that they would kill him if they found him. 9 The appellant claimed to fear harm from the Awami League government and supporters on the basis that he has experienced torture, false accusations and death threats from the Awami League. He also claimed to fear harm from the police on the basis of the false case against him, stating the police will torture him for a false confession and he will be sentenced to death. He said the Awami government, Awami supporters and police are present and powerful throughout Bangladesh and there is nowhere he could go to be safe from them. 10 The appellant's application for a protection visa was refused by a delegate of the Minister on 15 July 2016. As the delegate's decision was a fast track reviewable decision within the meaning of s 473BB of the Act, the decision was referred to the Authority pursuant to s 473CA of the Act. On 2 September 2016, the Authority affirmed the delegate's decision not to grant the appellant a SHEV. 11 The appellant applied to the Federal Circuit Court for judicial review of the Tribunal's decision. On 22 February 2017, the primary judge held that the Tribunal's decision was not affected by jurisdictional error and dismissed the appellant's application. See CXZ16 v Minister for Immigration & Anor [2017] FCCA 264. 12 The appellant now appeals from the decision of the Federal Circuit Court by a notice of appeal filed 22 March 2017. delegate's decision 13 In addition to the appellant's written claims in support of his SHEV application, the delegate noted the appellant also feared being harmed because of a departmental data breach in February 2014 (2014 data breach). 14 The delegate also considered that it was necessary to determine the risk of harm facing the appellant upon returning to Bangladesh, even though the appellant did not raise the claim of being mistreated as a failed asylum seeker in his application or protection visa interview. 15 The appellant attended an interview with the delegate on 28 April 2016. At the interview, the delegate put to the appellant that he had provided inconsistent information to the Department of Immigration and Border Protection. The delegate explained that none of the protection claims presented in his protection visa application or discussed in the interview was raised at his entry interview on 2 March 2013, including his claimed involvement in politics, and the delegate did not accept that he was involved with the BNP. 16 The appellant responded that his journey to Australia was difficult, that he was required to attend an interview as soon as he arrived, that his mind was not functioning properly as a result of not eating during his boat journey and being detained for a long period, and that he had difficulty understanding the interpreter during the entry interview. The appellant's representative, in post-interview submissions, submitted that the interpreter was of Rohingya ethnicity and spoke a different Bengali dialect. 17 The delegate put to the appellant that he did not consider him to be a credible witness as there was difficulty obtaining information and detail from him. The appellant's representative said consideration should be given to the effect that the appellant's detention has had on his mental health, ability to recall details and sequences of events, and the logic of events presented in his claims. 18 The delegate additionally put to the appellant that he had declared in his entry interview that he came to Australia for employment, rather than for any need of protection. The appellant explained that he was a member of the BNP and came to Australia because of his problems in Bangladesh, and that after his long boat journey he could not remember what to say. 19 As to the documentary evidence supplied by the appellant in support of his SHEV application, the delegate considered country information about document fraud in Bangladesh and found that the evidence produced was satisfactory, and s 91WA(1) of the Act did not apply. The delegate noted discrepancies in the appellant's documents, but formed the view that he had been able to provide plausible explanations for the inconsistencies and, on the balance, accepted that his identity was as claimed. 20 As to the appellant's claim that he was falsely accused and charged with the bombing of a BNP meeting, the delegate did not accept the alleged charge against the appellant, nor that he was ever involved with the BNP. The delegate stated that the appellant did not raise the criminal charges or any protection claims in his entry interview, and considered the claims were created after the appellant arrived in Australia. 21 The delegate did not accept that the appellant was physically and mentally impaired during his entry interview to the extent that he could not understand the questions asked or recall information. The delegate ultimately did not consider the appellant to be a credible witness and did not accept that the appellant was involved in politics in Bangladesh; was a person of interest to the Awami League; faced any criminal charges in Bangladesh or had been facing any subsequent interest from the Bangladeshi police; or travelled to Australia for protection. 22 The delegate was satisfied that the appellant feared persecution for the reasons of his imputed political opinion of being opposed to the Government of Bangladesh as a result of the 2014 data breach and the Government being present at his entry interview on 8 May 2013. The delegate was further satisfied that the appellant feared persecution on the basis of his membership of a particular social group, being failed asylum seekers returning to Bangladesh. 23 The delegate found these reasons were the essential and significant reasons for the feared persecution, and the feared persecution involved serious harm and systematic and discriminatory conduct, as required under s 5J(4)(a)-(c) of the Act. 24 However, the delegate found that the appellant did not have a real chance of being persecuted in Bangladesh in relation to the 2014 data breach. The delegate noted that the 2014 data breach was explained to the appellant at his protection visa interview. The appellant, by his representative, said that if the data breach information was accessed by the Awami League, the Government of Bangladesh or the police, he may face an increased risk of harm if he returned to Bangladesh, as these organisations would be aware that he applied for asylum in Australia. 25 The delegate considered the likelihood of the Government of Bangladesh locating information about the appellant from the 2014 data breach was very remote and referred to country information about the lack of internet access in Bangladesh and that the Government was concerned with the profiles of other internet users at the time of the data breach. 26 The delegate further said that the reasons for the appellant's protection visa application had not been made public, and the information from the 2014 data breach was online for a short period of time and was not easily accessible. The delegate concluded that it was highly improbable that the appellant would be imputed with a political opinion in opposition to the Government of Bangladesh because of the 2014 data breach, and so found that he did not have a real chance of being persecuted on this basis. 27 In relation to the appellant's fear of persecution arising from the Government of Bangladesh being present at his interview with the Department in 2013, the delegate found that there had been no interest in the appellant since he departed Bangladesh and the interview was conducted over three years ago. Consequently, the delegate found there was no real chance that the interview would result in any mistreatment for the appellant upon returning to Bangladesh. 28 As to the appellant's fear of persecution as a failed asylum seeker returning to Bangladesh, the delegate noted no country information indicating that there was a risk of harm for returnees to Bangladesh. The delegate found the appellant did not have a real chance of being persecuted for the reason of his status as a failed asylum seeker returning to Bangladesh. 29 For these reasons, the delegate was not satisfied there was a real chance of persecution for one or more of the reasons mentioned in s 5J(1)(a) of the Act and concluded that the appellant was not a refugee as defined in s 5H of the Act. 30 The delegate was therefore not satisfied that Australia had protection obligations to the appellant and found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(a) of the Act. 31 The delegate was also not satisfied there were substantial grounds for believing there was a real risk the appellant would suffer significant harm as a necessary and foreseeable consequence of being removed to Bangladesh. Consequently, the delegate found the appellant did not meet the criteria for the grant of a protection visa under s 36(2)(aa) of the Act. Authority's decision 32 On 20 July 2016, the Minister referred the delegate's decision to the Authority pursuant to s 473CA of the Act. By a letter dated 20 July 2016, the Authority advised the appellant that he could provide new information in support of his case, but the Authority could only consider such information in limited circumstances. 33 The Authority stated that, on 29 July 2016, it received a submission from the appellant outlining his reasons for disagreeing with the delegate's decision and inferred that he claimed aspects of his claims had been overlooked. The submission in this regard, it said, did not constitute "new information" as defined in s 473DC(1) of the Act and so the Authority had no regard to it. 34 The Authority noted the appellant, during his interview with the Department, made no mention of his or his family's involvement with the BNP, that he ever had problems with Awami League members, that he had relocated to other areas in Bangladesh to avoid these problems while continuing his political work, or that he faced fabricated criminal charges that led him to live in hiding and eventually leave Bangladesh. 35 The Authority said the appellant explained in his SHEV application why details had been omitted from his entry interview, including that he was affected by the boat journey, starved and unable to think straight, and that he had not properly understood the Rohingyan interpreter at the interview. The Authority stated that it took these explanations into consideration and also took into account that the appellant's length of detention may have negatively impacted, to some extent, his memory and ability to provide detail. 36 However, the Authority was satisfied that the appellant was provided with sufficient opportunities to clarify or provide relevant detail during his interview. The Authority did not accept that language barriers prevented meaningful communication, or that the boat journey affected his ability to answer questions, or that he was otherwise too confused to mention his problems arising from his BNP involvement. 37 The Authority further considered that given the appellant's claimed duration of involvement of 11 years with the BNP, his history of family support and his claims of being personally harmed and threatened in different areas in Bangladesh because he was a recognisable BNP supporter, the information he provided in relation to his role in the BNP was vague and lacking in detail, and was not satisfied that these concerns were abated by his claimed mental challenges. 38 For these reasons, the Authority said, it was willing to accept the appellant held a political opinion in favour of the BNP, but did not accept he was an active supporter or had any level of involvement with the party. 39 The Authority was satisfied that the appellant had not been politically active with the BNP before or since arriving in Australia and there was no evidence to indicate that he would be politically active upon return. Consequently, the Authority did not accept that he would be imputed as an active BNP member or even be identified as holding a pro-BNP opinion upon return to Bangladesh. 40 The Authority also noted inconsistencies between the appellant's claims of being accused of bombing a BNP meeting in October 2012 and the documentary evidence he provided to support the claims. The Authority noted that the First Information Sheet and Charge Sheet accused him of rioting, looting and using deadly weapons and bombs against intervening police officers, which contrasted with the appellant's claims of being accused of throwing a bomb and attacking the BNP meeting itself. 41 The Authority stated that it had regard to the appellant's mental health difficulties, but considered it significant that he was unable to accurately recall the claimed charges against him and that he would not have sought to find out the status or outcome of the claimed case against him. It was also significant, the Authority said, that he made no mention of these charges in his entry interview. 42 The Authority found it implausible that he would be charged with attacking a BNP meeting and was not satisfied that the appellant's mental health status provided an explanation for these issues. The Authority further did not place any weight on his documentary evidence and did not accept he had been accused of the crimes claimed, or that any charges had been filed against him. 43 The Authority additionally did not accept the appellant was ever wanted by the Bangladesh authorities or faced a real chance of harm from the authorities or the Awami League in relation to the criminal charges. 44 As to any other risks that the appellant would face if he were to return to Bangladesh, the Authority stated that it was not satisfied the appellant would be prevented from obtaining employment or would not be able to subsist for any reason upon return. 45 The Authority accepted that the appellant's unlawful departure from Bangladesh, his detention in Australia and his claim for asylum were known to the Bangladeshi authorities. The Authority further noted that he was questioned by Bangladesh government officials at his identity interview in May 2013 and that his details were among those temporarily released online during the 2014 data breach. However, the Authority was satisfied that no protection claims were discussed at the identity interview, and no asylum claims were published in the data breach. The Authority was therefore satisfied that the Bangladeshi authorities would not know the reasons the appellant put forward in his application and found that the appellant did not face a real chance of being harmed upon returning to Bangladesh as a failed asylum seeker. 46 The Authority was not satisfied that when considered as a whole, the appellant's circumstances gave rise to a real chance of persecution from the Awami League, the Bangladeshi authorities or others on account of his claimed political involvement, the fabricated criminal charges against him, his poor financial situation, his illegal departure, or his immigration detention or asylum application in Australia. 47 For these reasons, the Authority found that the appellant did not meet the definition of a refugee in s 5H(1) of the Act. 48 The Authority was further not satisfied there were substantial grounds to believe that, as a necessary and foreseeable consequence of the appellant being removed from to Bangladesh, there was a real risk that he would suffer significant harm. 49 The Authority concluded that the appellant was not a person in respect of whom Australia had protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act, and so affirmed the delegate's decision not to grant the appellant a protection visa. Judicial review in the federal circuit court 50 In a show cause application filed 7 October 2016, the appellant sought judicial review of the Authority's decision on the following grounds, which were unparticularised: 1. The assessor has made jurisdictional errors in making decision. 2. The assessor failed to properly comply consider all of my claims. 3. The assessor has made wrong conclusions in identifying genuine documents. 51 The Minister filed a response on 21 October 2016, opposing the orders sought by the appellant, on the following grounds: 1. The application invites the Court to undertake a review of the merits of the Immigration Assessment Authority's decision. To engage in fact finding about the merits of the applicant's case is no part of the function of the Court; MIEA v Wu Shan Liang (1996) 185 CLR 259 at 272; NAHI v MIMIA [2004] FCAFC at [10]. 2. The application for judicial review does not establish any jurisdictional error in the decision of the Immigration Assessment Authority dated 2 September 2016. 52 The primary judge noted that both the appellant and the Minister prepared pre-hearing submissions. The appellant's oral and written submissions, the primary judge said, sought to engage the court with the merits of his protection claims, which were beyond the scope of the proceeding. 53 As to ground 1 of the appellant's application for review, the primary judge found the ground was no more than an unparticularised assertion that the Authority made a mistake and, of itself, could not constitute jurisdictional error. 54 As to the contention in ground 2 that the Authority failed to properly consider all of the appellant's claims, the primary judge said: (1) the Authority had no obligation to refer to every piece of evidence and contention made by an appellant in its decision; and (2) in any event, the Authority considered each of the claims raised by the appellant and made findings in relation to those claims that were open to it. 55 As to ground 3, the primary judge said the ground appeared to be a complaint in relation to the weight placed on the documentary evidence submitted by the appellant. The primary judge noted that the Authority considered but did not place weight on such documents because it had significant concerns about the appellant's evidence in circumstances where they were inconsistent with the appellant's claims in relation to the bombing accusation, they were inconsistent with the appellant's claimed political involvement, they post-dated the appellant's departure from Bangladesh, and the appellant made no mention of the claims at his entry interview. 56 The primary judge stated that the weight to be given to the evidence was a matter for the Authority and could not be challenged in judicial review. 57 For these reasons, the primary judge concluded that the appellant failed to establish that the Authority's decision was affected by jurisdictional error and, therefore, ordered that the review application be dismissed. Appeal to this court 58 By a notice of appeal filed on 16 March 2017, the appellant relies on the following grounds of appeal: 1. At para 30 a, b, c, d page 5 of the Federal Circuit Court (F.C.C.) decision annexed 'KB 3':- 30 a. they were inconsistent with the applicant's claims in relation to the bombing accusation. b. they were inconsistent with the applicant's claimed political involvement. c. they post-dated the applicant's departure from Bangladesh. d. the applicant had made no mention of the claims at his entry interview. There was no fairness in the interview, it was more about getting information on boat smuggler operators and what route did I use to come to Australia in the Part C (page 10 – 15) of the entry interview annexed 'KB 4'. As explained annexed 'KB 1' Protection Visa Assessment (PVA) decision (pages highlighted) and annexed 'KB 2' Immigration Assessment Authority (IAA) decision (pages highlighted) were the Delegate and the IAA Authority have written and admitted that the decision was based on the entry interview and became inconsistent with their interviews. The Officer from the Department of Immigration at the entry interview did not explained to me the meaning of protection and that this was a proper protection interview nor did the Officer said whatever it has been said will be used against me in the near future interviews as I at that time entered Australian waters illegally and resided in Christmas Island Immigration Detention Centre for sometime before transferred to onshore detention centres. I was scared of this entry interview as I thought that they were police and thought that I will be reported to the officials in Bangladesh. That's the reason because of my sacredness, my story became inconsistent and the Delegate and the Authority has been using this to go against me. The Officer cannot take advantage of the situation without properly or without giving full information what the entry interview was about as already I was in a very new to the whole range of laws and policies in a very new land and have used against me at the later interviews. And the interpreter was a Rohingya with a different dialect and dialogue compared to Bangladesh language were many things were misunderstood and misinterpreted. The purpose of the interpreter was only to make me understand the Officer questions and translate what I said to the Officer. Not to help me regarding about protection application. Overall I was denied Procedural Fairness which became inconsistent and led to Jurisdictional Errors. 2. The decisions makers have relied totally on DFAT information gathered from data of arrival records of returned asylum seekers and others who have departed Bangladesh illegally. This does not take into account the real chance of those returnees being detained and imprisoned at a subsequent date, thus resulting in loss of freedom and loss of livelihood. I am aware anecdotally of this happening to people deported recently to Bangladesh by Australia thus leading to a real fear that this will happen to me. I fear of possibility or threat of a penalty being imposed against me upon return for my illegal departure from Bangladesh was implicitly claimed in my fear of harm generally for that reason. I contend that the delegate and the Authority's failure to consider this claim or integer of this claim constituted jurisdictional error and the Judge has also not fully considered this integer of this claim. 59 The Minister filed an outline of submissions responding to and rejecting those propositions on 7 August 2017. 60 In my view, the appeal should be dismissed, for the following reasons. 61 The first thing to note is that neither of these grounds of appeal were raised in the Court below and so leave is now required to rely on them. 62 By proposed ground 1 in his notice of appeal, the appellant refers to the Authority's concerns with his evidence, as set out by the primary judge at [30] of his Honour's reasons, and asserts that there was unfairness in his entry interview as it was "more about getting information on boat smuggler operators and the route to come to Australia". He also states that he was scared at his entry interview because he thought he would be reported to officials in Bangladesh, that the interpreter had a different dialect and dialogue compared to his language and so there were many things he misunderstood and misinterpreted, and overall, he was denied procedural fairness. This, the appellant says, resulted in his evidence becoming inconsistent and led to jurisdictional errors. 63 However, as the Minister notes in his submissions, in his initial interview the appellant was specifically asked why he left Bangladesh, and he stated that he came to Australia to stay and work. When asked whether these were the only reasons he left, he responded again that he came to Australia to work. The appellant also answered "No" to questions about his and his family's political involvement in Bangladesh and whether he or any of his family members had been involved in any activities or protests against the government. 64 I accept the proposition that there can be no breach of procedural fairness by the appellant being asked such questions at his initial interview. He was also advised at the commencement of his interview that it was his opportunity to provide any reasons why he should not be removed from Australia; that he was expected to give true and correct answers to the questions asked; and that if the information he gave at any future interview was different from what he was to say now, that could raise doubts about the reliability of what he had said. 65 In these circumstances, it is not necessary for me to rule on a submission by the Minister that, in any event, it is difficult to conclude that any unfairness in the initial interview process automatically bespeaks jurisdictional error on the part of the Authority when it made its decision. 66 As I have noted, proposed ground 1 of denial of procedural fairness was not a claim which the appellant made in his application for review to the Federal Circuit Court. Accordingly, leave is required to raise it. The appellant has not provided any explanation for the failure to raise it in the court below. Additionally, it lacks merit. While he contends that he was prejudiced by not having an adequate interpreter or understanding of questions put to him the record of interview does not sit easily with that contention. Having regard to the apparent lack of merit in the proposed ground and the failure to explain adequately why it was not advanced in the Court below, I would refuse leave to raise it now. See Hossam v Minister for Immigration and Border Protection [2016] FCA 1161 at [39]-[44] and [46]; VUAX v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 238 FCR 588 at [48]; [2004] FCAFC 158. 67 The appellant's second ground of appeal alleges a failure by the delegate and the Authority to consider his claim that, as a returnee, there was a real chance of his being detained and imprisoned in Bangladesh, resulting in a loss of freedom and a loss of livelihood; and that his fear of the possibility or threat of a penalty being posed against him upon return for reason of his illegal departure from Bangladesh was implicitly claimed in his fear of harm generally for that reason. 68 The appellant complains that the delegate and the Authority relied completely on DFAT information, and that this did not take into account the real chance of those returnees being detained and imprisoned at a later date. He states in ground 2 that he is aware anecdotally of this happening to people recently deported to Bangladesh, thus leading to a real fear that it will happen to him; and that his fear of the possibility or threat of a penalty being imposed against him on his return for his illegal departure was impliedly claimed in his fear of harm generally for that reason. He contends that the failure of the delegate and Authority to consider this claim constituted jurisdictional error, and that the primary judge had also not fully considered this integer of his claims. 69 This is also not a ground upon which the appellant relied in his judicial review application in the court below, and so he requires the leave of the Court to raise it now on appeal. 70 No explanation has been provided as to why this claim was not raised in the Court below. In my view, it also has no prospects of success. Leave to argue the second ground should be refused. 71 As it transpires, The Authority did consider whether the appellant would face adverse attention and penalties by reason of his illegal departure. At [48] of its reasons, the Authority stated it accepted that the appellant was already known to Bangladesh authorities as an immigration detainee in Australia who departed illegally. However, the Authority was not satisfied that the appellant would be of adverse interest to the authorities for any reason, and DFAT reported that most returnees do not face adverse attention upon arrival and there is no evidence that penalties for illegal departure are enforced. The Authority therefore concluded that it was not satisfied that the appellant faced a real risk of significant harm on the basis of returning as a failed asylum seeker who departed illegally. Those conclusions were reasonably open to the Authority. Orders 72 For these reasons, the appeal should be refused with costs. I certify that the preceding seventy-one (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Barker. Associate: Dated: 14 August 2017	6,600
federal_court_of_australia:fca/single/2020/2020fca1871	decision	commonwealth	federal_court_of_australia	text/html	2020-12-01 00:00:00	Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 2) [2020] FCA 1871	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1871	2024-09-13T22:52:05.810468+10:00	Federal Court of Australia Australian Securities and Investments Commission v Union Standard International Group Pty Ltd (No 2) [2020] FCA 1871 File number: NSD 2064 of 2019 Judgment of: WIGNEY J Date of judgment: 1 December 2020 Catchwords: CORPORATIONS – application for leave to proceed against companies in liquidation – application granted Legislation: Australian Securities and Investments Commission Act 2001 (Cth) Corporations Act 2001 (Cth) ss 471B, 500(2), 1323 Cases cited: Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 Australian Securities and Investments Commission v Union Standard International Group Pty Ltd [2020] FCA 60 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 13 Date of hearing: 1 December 2020 Counsel for the Applicant: Mr D Thomas SC with Mr D Birch Solicitor for the Applicant: Clayton Utz Counsel for the First Defendant: The First Respondent did not appear Counsel for the Second Defendant: Ms M Painter SC with Mr F Tao Solicitor for the Second Defendant: Piper Alderman Solicitor for the Third Defendant: Mr E Sasson of Quinn Emanuel Urquhart & Sullivan ORDERS NSD 2064 of 2019 BETWEEN: AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION Applicant AND: UNION STANDARD INTERNATIONAL GROUP PTY LTD ACN 117 658 349 First Defendant MAXI EFX GLOBAL AU PTY LTD ACN 625 283 785 Second Defendant BRIGHTAU CAPITAL PTY LTD (IN LIQ) ACN 619 685 120 Third Defendant order made by: WIGNEY J DATE OF ORDER: 1 DECEMBER 2020 THE COURT ORDERS THAT: On the plaintiff undertaking to the Court not to take any step to enforce against the first or the third defendants, any order for the payment of any amount of money, whether by way of penalty, costs or otherwise, without the further leave of the Court, the Court orders that: 1. The plaintiff is granted leave to file an amended originating process pursuant to r 8.21 of the Federal Court Rules 2011 (Cth) (Federal Court Rules). 2. By 22 December 2020, the plaintiff is to provide the second defendant with a complete schedule of particulars setting out the individual instances of the alleged contravening conduct set out in the draft concise statement at pages 6 to 13 of the Affidavit of Lucy Groenewegen dated 30 November 2020 (Draft Concise Statement). 3. By 1 February 2021, the plaintiff is to provide the second defendant with copies of all documents referred to in those particulars. 4. By 1 March 2021, the second defendant is to inform the plaintiff whether it consents to the filing of the Draft Concise Statement. 5. The plaintiff is granted leave to proceed as against the first defendant pursuant to s 471B of the Corporations Act 2001 (Cth) (Corporations Act). 6. The plaintiff is granted leave to proceed as against the third defendant pursuant to s 500(2) of the Corporations Act. 7. The liquidators of Union Standard International Group Pty Ltd (in liq), as the first defendant, and the liquidators of BrightAU Capital Pty Ltd (in liq), as the third defendant, have liberty to apply to the Court, including liberty to apply concerning the costs and expenses of the litigation. 8. The first and the third defendants be permitted to file a submitting notice under r 12.01(1) of the Federal Court Rules stating that each party submits to any order that the Court may make, except as to the question of relief, in respect of which the first and the third defendants reserve their rights to be heard. 9. The first and the third defendants are granted leave of the Court to withdraw any submitting notice filed pursuant to paragraph 8 of these orders under r 12.01(3) of the Federal Court Rules so as to be heard on the question of relief. 10. The matter be listed for a further case management conference at 9.00 am on 8 March 2021. 11. Costs otherwise reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Delivered ex tempore, revised from transcript) WIGNEY J: 1 The plaintiff in this matter, the Australian Securities and Investments Commission (ASIC), seeks leave to proceed against the first and third defendants, Union Standard International Group Pty Ltd (USG) and BrightAU Capital Pty Ltd (Bright), both companies in liquidation, pursuant to s 471B and s 500(2) of the Corporations Act 2001 (Cth). For the reasons which follow, I have concluded that leave to proceed should be granted. Relevant background 2 The background to this application may be found in an earlier judgment of this Court: see Australian Securities and Investments Commission v Union Standard International Group Pty Ltd [2020] FCA 603. 3 In brief, ASIC commenced proceedings against USG, Bright and the second defendant, Maxi EFX Global AU Pty Ltd, along with various other persons in December 2019. The relief sought by ASIC in those proceedings was relief pursuant to s 1323 of the Corporations Act, the general nature of which was to freeze or preserve the assets of the defendants while ASIC conducted its investigation into suspected contraventions of that Act. Orders were made pursuant to s 1323 on an interim basis on 12 December 2019. Those orders have been varied on a number of occasions since. 4 ASIC has now progressed its investigation to the point where it wishes to amend its originating application to seek relief in respect of the alleged contraventions of the Corporations Act by the defendants which were the subject of its investigation. ASIC's amendment application was initially opposed by Maxi, essentially on the basis that ASIC proposed to proceed by way of concise statement rather than pleadings. Ultimately, however, the parties agreed that ASIC should be given leave to file an amended originating application, but that a regime of orders requiring ASIC to provide particulars and documents should also be made. The question of whether the matter should proceed by way of concise statement with particulars as opposed to pleadings will be considered after the service of the relevant particulars and documents. 5 Both USG and Bright have entered into liquidation since ASIC commenced these proceedings: USG as a winding up by the Court; Bright as a voluntary winding up. ASIC is therefore required to obtain leave to proceed against USG and Bright pursuant to s 471B and s 500(2) of the Corporations Act respectively. Leave to proceed 6 Neither USG nor Bright ultimately opposed leave being granted to ASIC to proceed against them on the terms proposed by the regulator. It is nevertheless necessary for the Court to be satisfied that the grant of leave to proceed is appropriate in all the circumstances. 7 A critical consideration in considering whether leave to proceed is appropriate in this proceeding is that ASIC is bringing the proceeding as an independent regulator seeking to enforce the standards prescribed by the Corporations Act and the Australian Securities and Investments Commission Act 2001 (Cth). There is a clear public interest in permitting a regulator such as ASIC to pursue proceedings of that type, even against a company in liquidation: see Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) [2017] FCA 521 at [26]. 8 Other considerations also suggest that a grant of leave is appropriate in this case. 9 First, as has already been noted, the liquidators of both USG and Bright have advised that they do not oppose ASIC being granted leave to proceed. They have also indicated that they intend to file submitting appearances save as to the question of relief. It should be noted, in that regard, that ASIC has undertaken not to enforce any pecuniary penalty, non-party compensation order or costs order against USG and/or Bright without further leave of the Court. The liquidators are therefore unlikely to be burdened or distracted from their duties in winding up the companies by the grant of leave to ASIC to pursue these proceedings. 10 Second, there is evidence to suggest there is a serious issue or question to be tried against both USG and Bright. It is unnecessary for present purposes to detail that evidence. 11 Third, ASIC will, in any event, be pursuing the proceeding against Maxi. The factual and legal issues that are likely to arise in the proceeding against Maxi are likely to overlap to a considerable extent with the issues that arise in ASIC's case against both USG and Bright. The grant of leave to proceed against those parties will not increase the length or complexity of the proceedings, particularly since, as adverted to, USG and Bright intend to file submitting appearances save as to relief. 12 Fourth, ASIC would not be able to obtain either declaratory relief or pecuniary penalties against USG or Bright if leave to proceed is not granted and ASIC were simply left to prove in the winding up of those companies. Declaratory relief and pecuniary penalties are important remedies in a regulator's armoury in enforcing compliance with statutory standards and norms. Disposition and conclusion 13 In all the circumstances, I consider that it is appropriate to grant ASIC leave to proceed against both USG and Bright. As noted earlier, the other issue as to the amendment of the originating application has been resolved as between the parties, and I propose to make the relevant case management orders in that regard. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wigney. Associate: Dated: 1 December 2020	2,122
federal_court_of_australia:fca/single/1999/1999fca1735	decision	commonwealth	federal_court_of_australia	text/html	1999-12-15 00:00:00	Secretary of the Department of Family & Community Services v Sammut [1999] FCA 1735	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1999/1999fca1735	2024-09-13T22:52:05.976253+10:00	FEDERAL COURT OF AUSTRALIA Secretary of the Department of Family & Community Services v Sammut [1999] FCA 1735 ADMINISTRATIVE LAW – discretionary powers – loss of benefit entitlement for preclusion period where lump sum compensation received – discretion to reduce preclusion period – whether adequate reasons provided – whether error in identification of amount repayable SOCIAL WELFARE AND SECURITY – job search and sickness allowance – loss of benefit entitlement for preclusion period where lump sum compensation received – discretion to reduce preclusion period – ethical duty of solicitors concerning compensation settlements Administrative Appeals Tribunal Act 1975 (Cth) Social Security Act 1991 (Cth) ss 17, 23, 1165(2AA), 1166, 1184 Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64, followed Secretary, Department of Social Security v Ellis (1997) 46 ALD 1, followed Haidar v Secretary, Department of Social Security (1998) 157 ALR 359, followed SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES v ANNETTE SAMMUT N 683 of 1999 BRANSON J SYDNEY 15 DECEMBER 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 683 of 1999 BETWEEN: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant AND: ANNETTE SAMMUT Respondent JUDGE: BRANSON J DATE OF ORDER: 15 DECEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Administrative Appeals Tribunal ("the Tribunal") be set aside. 2. The matter be remitted to the Tribunal to be heard and decided according to law. 3. The Tribunal to be at liberty to hear further evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 683 of 1999 BETWEEN: SECRETARY OF THE DEPARTMENT OF FAMILY AND COMMUNITY SERVICES Applicant AND: ANNETTE SAMMUT Respondent JUDGE: BRANSON J DATE: 15 DECEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 This is an "appeal" pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ("the Tribunal") given on 16 June 1999. 2 The Tribunal set aside a decision of the Social Security Appeals Tribunal which had affirmed a decision of an authorised review officer. The authorised review officer had affirmed a decision of a delegate of the Chief Executive Officer of Centrelink dated 3 September 1997 to recover from a lump sum compensation settlement paid to the respondent an amount of $7,965.83 reflecting job search allowance and sickness allowance benefits paid to the respondent in the period 24 November 1993 to 28 March 1995. FACTS 3 The respondent ("Ms Sammut") was injured in a two-car accident on 24 November 1993. Legal proceedings were instituted on her behalf against the driver of the other car. In such proceedings it was claimed that: "The Plaintiff has suffered a loss of earnings and a loss of earning capacity particulars of which will be provided." The defendant did not admit the truth of the above claim. 4 The legal proceedings instituted by Ms Sammut were settled on 14 August 1997 on the basis that an amount of $56,500 be paid to Ms Sammut. The solicitor acting for Ms Sammut advised Centrelink that the settlement sum had been agreed to by her client on the basis that it did not include any amount as compensation for economic loss. The solicitors for the insurers of the defendant in the proceedings took the view that the settlement sum reflected an allowance of $1,300 for economic loss and they so advised Centrelink. Centrelink accepted this advice. 5 It is not in dispute that Ms Sammut received payments of job search allowance and sickness allowance during the period 24 November 1993 to 28 March 1995 in a total amount of $7,965.83. Her husband received no relevant social security payments. The applicant did not seek to argue before me that the amount of $56,500 paid to her was not a compensation payment within the meaning of the Act. 6 Ms Sammut and her husband own a home with an approximate value of $300,000. A mortgage on the home secures repayment of a debt of $30,000. At the time of the hearing before the Tribunal, Ms Sammut had outstanding credit card debts and other expenses of approximately $4,000 and she had approximately $2,000 in her bank account. 7 The Tribunal accepted that Ms Sammut suffers from panic attacks, anxiety and agoraphobia and remains under psychiatric care. It also noted that she complains of chronic neck/back and leg pain. LEGISLATION 8 Sections 17 and 23 of the Social Security Act 1991 (Cth) ("the Act") have the effect that the job search allowance and the sickness allowance paid to Ms Sammut during the period 24 November 1993 to 28 March 1995 were "compensation affected payments" within the meaning of s 1165(2AA) of the Act (see paras (c) and (k) of the definition of "compensation affected payment" (s 17(1)), para (ha) of the definition of "former payment type" (s 17(1)), and para (c) of the definition of "social security benefit" (s 23(1)). 9 Section 17(2) of the Act provides, so far as it here relevant, that compensation means: "(a) a payment of damages; or (b) …. (c) a payment (with or without admission of liability) in settlement of a claim for damages …; or (d) …. (whether the payment is in the form of a lump sum or in the form of a series of periodic payments) that is: (e) made wholly or partly in respect of lost earnings or lost capacity to earn; and (f) made either within or outside Australia." 10 Section 1165(2AA) of the Act relevantly provides: "… if: (a) a person receives or claims a compensation affected payment; and (b) the person is a member of a couple; and (c) the person receives a lump sum compensation payment (whether before or after the person receives or claims the compensation affected payment) on or after 20 March 1997; no compensation affected payment is payable to the person for the new lump sum preclusion period." 11 It is not in dispute that the new lump sum preclusion period in Ms Sammut's case commenced on the day of her accident, namely 24 November 1993, and ended on 28 March 1995. 12 Section 1166(1) and (2) of the Act provides: "1166(1) If: (a) a person receives a lump sum compensation payment; and (b) the person receives payments of a compensation affected payment for the lump sum preclusion period; the Secretary may, by written notice to the person, determine that the person is liable to pay the Commonwealth the amount specified in the notice. 1166(2) Subject to subsection (5), the amount specified in the notice is the recoverable amount and is worked out under subsections 5(3), (4), (4A), (4B) and (4C)." 13 It is not in dispute that the recoverable amount in Ms Sammut's case has been properly calculated in accordance with s 1166(4) in the sum of $7,965.83, being the sum of the payment of the compensation affected payments made to her for the new lump sum preclusion period. 14 The crucial provision of the Act for present purposes is s 1184(1) which provides: "For the purposes of this Part, the Secretary may treat the whole or part of a compensation payment as: (a) not having been made; or (b) not liable to be made; if the Secretary thinks it appropriate to do so in the special circumstances of the case." REASONS OF THE TRIBUNAL 15 The Tribunal determined that "compensation affected payments" had been made to Ms Sammut during the "new lump sum preclusion period" in an aggregate amount of $7,965.83. As is mentioned above, this determination is not now challenged by Ms Sammut. 16 The Tribunal concluded: "that the legal process surrounding [Ms Sammut's] consent compensation settlement has not served [her] interest; that the processes undertaken by her solicitor in this process may have been insufficient; that [Ms Sammut] may have course (sic) to a legal redress against her solicitor; that to access this redress [Ms Sammut] would assume both financial cost and stress; that further imposition of stress is not conducive to resolution of [Ms Sammut's] psychiatric condition; that cost is something that she can only afford by sale or further mortgage of her house, with a consequential deterioration in her financial affairs, which, in turn, would cause increasing stress upon [her] and that particular litigation by [Ms Sammut] in such circumstances may not necessarily be successful." 17 The Tribunal found that: "in the particular circumstances of this matter, special circumstances exist and arise from the failure of [Ms Sammut's] solicitor to negotiate a settlement in which 'economic loss' as a component was clearly excluded." 18 The Tribunal dealt with the consequences of its finding that "special circumstances" existed in Ms Sammut's case in the following paragraph from its written reasons for decision: "63. The Tribunal, having concluded that special circumstances exist, believes that the part of the compensation payment relating to 'economic loss' as (sic) not having been made and/or is not liable to be made. As a consequence [Ms Sammut] is entitled to a return of $7,965.83, an amount already paid to the Respondent." CONSIDERATION 19 I consider that there is a real possibility that some words have accidentally been omitted from para 63 of the Tribunal's written reasons for decision. However, the written reasons for decision have been certified as a true copy of the reasons for decision of the member who constituted the Tribunal and no corrigendum has apparently been issued. Neither party suggested that it would be appropriate for me to do other than act on the basis that para 63 is expressed in the terms intended by the Tribunal. 20 On that basis alone, it seems to me, it is necessary for this matter to be remitted to the Tribunal for further consideration. Paragraph 63 of the Tribunal's written reasons for decision are crucial to the determination of the Tribunal. Yet the paragraph does not make grammatical or logical sense. 21 Section 1184(1) of the Act plainly calls for a two stage decision-making process. First, does the case have "special circumstances" within the meaning of the subsection. Secondly, if it does, should the Secretary (or other relevant decision maker) in the exercise of his or her discretion, treat either the whole or some part of the compensation payment as not having been made or as not liable to be made (Trimboli v Secretary, Department of Social Security (1989) 86 ALR 64 per Hill J at 74, with whom in this regard Woodward and Beaumont JJ agreed; Secretary, Department of Social Security v Ellis (1997) 46 ALD 1 at 6; Haidar v Secretary, Department of Social Security (1998) 157 ALR 359 at 362). 22 Nothing in the written reasons for decision of the Tribunal as certified suggest that the Tribunal engaged in the two stage decision making process called for by s 1184(1) of the Act. Further, it is not clear from such reasons whether the Tribunal gave consideration to whether, assuming that the case was one which it found called for the exercise of its discretion, it would be appropriate to treat either the whole, or merely some part, of the compensation payment as not having been made. 23 In addition, to the extent that any process of reasoning can be extracted from para 63 of the Tribunal's written reasons for decision, it appears that the Tribunal assumed that if that part of the compensation payment which related to economic loss (ie presumably, $1,300) were treated as not having been paid, Ms Sammut would be entitled to the return of the amount of $7,965.83 which she has repaid to the respondent. However, for the amount of $7,965.83 to be repayable to Ms Sammut under the Act the whole of the settlement sum of $56,500 would have to be treated as not having been paid to her (ss 1165(2AA) and 1165(7)). 24 The decision of the Tribunal must for the above reasons be set aside and the matter remitted to be heard and decided again according to law. The discretionary nature of the decision required to be made by the Tribunal makes it appropriate for the Tribunal to be free to hear further evidence should it consider it appropriate to do so. 25 In conclusion, I note that the applicant directed strong criticism to the approach taken by the Tribunal in considering whether the case was one in which there were special circumstances. The matter will now have to be heard and decided again. Detailed examination of the Tribunal's consideration of the issue of special circumstances is therefore unnecessary. 26 Nonetheless, I consider it appropriate to observe that it would be inconsistent with a solicitor's ethical responsibilities to seek to clothe a compensation payment made to his or her client with a false character for the purpose of evading the operation of the Act. That is, if to a solicitor's knowledge a compensation payment was made wholly or in part in respect of lost earnings or lost capacity to earn (s 17(2) of the Act), it would not be ethical for him or her to seek to obtain from the paying party a written statement that the payment did not include any economic loss component for the purpose of assisting his or her client to avoid the operation of Part 3.14 of the Act (which is concerned with compensation recovery). 27 Moreover, in the circumstances of this case, it was not open to the Tribunal to assume, as it appears that it did, that the amount of compensation that Ms Sammut would have been offered had her solicitor explicitly abandoned her claim for damages for loss of earnings and loss of earning capacity would have been $56,500 (ie the amount actually received by her). Conversely, it was not open to the Tribunal to assume that Ms Sammut would not have settled her legal proceeding for the sum of $56,500 had she been advised by her solicitor that the settlement sum would be treated by the respondent as including an economic loss component. The above issues could have been, but apparently were not, the subject of evidence before the Tribunal. In the circumstances, the Tribunal was not in a position to make findings concerning them. I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 15 December 1999 Counsel for the Applicant: Mr T. Reilly Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr D. Ash Date of Hearing: 21 October 1999 Date of Judgment: 15 December 1999	3,400
federal_court_of_australia:fca/single/2004/2004fca1253	decision	commonwealth	federal_court_of_australia	text/html	2004-09-23 00:00:00	Cheviot Bridge Pty Ltd v Tyrrells' Vineyards Pty Ltd [2004] FCA 1253	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca1253	2024-09-13T22:52:09.258872+10:00	FEDERAL COURT OF AUSTRALIA Cheviot Bridge Pty Ltd v Tyrrells' Vineyards Pty Ltd [2004] FCA 1253 CHEVIOT BRIDGE PTY LIMITED v TYRRELL'S VINEYARDS PTY LIMITED V 618 of 2004 JACOBSON J 23 SEPTEMBER 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY V 618 of 2004 BETWEEN: CHEVIOT BRIDGE PTY LTD APPLICANT AND: TYRRELL'S VINEYARDS PTY LTD RESPONDENT JUDGE: JACOBSON J DATE OF ORDER: 23 SEPTEMBER 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties have leave to issue within 7 days notices for discovery in accordance with Order 15 Rule 1, but not relating to representations alleged (as made in Statement of Claim). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY V 618 of 2004 BETWEEN: CHEVIOT BRIDGE PTY LTD APPLICANT AND: TYRRELL'S VINEYARDS PTY LTD RESPONDENT JUDGE: JACOBSON J DATE: 23 SEPTEMBER 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This matter comes before me for directions today. It has been transferred to the New South Wales Registry from the Victorian Registry and is in my list for the first time. 2 There was a debate about directions and Mr Muddle, who appears for the applicant, sought an order for discovery which would embrace discovery of documents relating to a breach of the restraint of trade clause contained in clause 9.1 of the Asset Sale Agreement. This clause of the agreement is pleaded in [31] of the statement of claim. 3 Mr Angyal, who appears for the respondent, resists discovery. He says that [31] to [33] of the statement of claim do not disclose a reasonable cause of action. He has tendered a copy of the Asset Sale Agreement, contained in the 'Transaction Bible' which is exhibit SB-3 referred to in the Affidavit of Ms Bennett dated 8 July 2004. Mr Angyal has drawn attention to the whole of the provisions of clause 9 which provides as follows: - "9 Restraint of Trade 9.1 Restraint of Trade The Seller agrees with and represents and undertakes to the Buyer that, subject to clause 93, the Seller will not (and will ensure that no person corporation, trust, estate, association, partnership, firm or other body or individual controlled by or on behalf of the Seller will) directly or indirectly within Australia for a period of 18 months from the Completion Date: (a) undertake, carry on or beengaged in or concerned with or in any way economically interested in any Competing Business; (b) canvass or solicit any person who or which at any time during the 12 months immediately preceding the Completion Date is or was a client or customer of the Seller, with respect to any Competing Business; (c) be a lender to or guarantor for any person, firm or company which is engaged in any Competing Business; or (d) counsel, procure or otherwise assist any person to do any of the acts referred to in any of the above sub-paragraphs of this clause. 9.2 No Share Entitlements The Seller agrees with and represents and undertakes to the Purchaser that, subject to clause 93, it will not for a period of 18 months have a relevant interest (within the meaning of sections 608 and 609 of the Corporations Act) in securities in any body corporate going any of the things referred to in clause 8.1 within Australia. 9.3 Exceptions to Restraint Notwithstanding anything to the contrary in clauses 9.1 and 9.2, the Seller will not be in breach of clauses 9.1 or 9.2 by reason of: (a) The sale of no more than 20,000 cases per annum of Red or White wine in total under and by reference to the brand "Twin Wells"; (b) The sale of wines to the on premise market under and by reference to the brands "Glenbawn", "Moors Creek" and Tyrrell's Premium Brut"; (c) The sale by any retailer of the Seller's wine below $9.95, where that price is solely attributable to the retailer's independent pricing strategy and not to any conduct of the Seller; (d) The bottling, production and distribution by the Seller of wines in circumstances where the Seller acts as a contractor on behalf of a third party which is not a Related Entity of the Seller, (e) The ownership by the Seller of shares in any listed public entity which may engage in a Competing Business provided that the Seller must have not more than 10% of the Voting Power in that entity; and The production of wine by the Seller for sale in the export market. 9.4 Severance If any part or any provision or part of a provision of clauses 9.1 and 9.2 shall be held or found to be void, invalid or otherwise unenforceable, it shall be deemed to be severed to the extent that it is void or to the extent of voidability, invalidity or unenforceability but the remainder of the clause concerned shall remain in full force and effect. 9.5 Receipt of legal advice The Seller warrants that it has received independent legal advice with respect to the provisions of this clause and considers them to go no further than reasonably necessary to protect the goodwill associated with the Business and the Assets." 4 The respondent has pleaded in its defence the terms of clause 9.3(c) of the Asset Sale Agreement, which I have set out above. Mr Angyal submits that clause 9 must be read as a whole and that it is necessary to read clause 9.1 with clause 9.3(c). 5 He draws attention in particular to the opening words of clause 9.3 and contends that the applicant is bound to plead in terms of clause 9.3(c) that the sales, which constitute the alleged breach pleaded in [33] of the statement of claim were not solely attributable to the retailers independent pricing strategy. He says that it is incumbent upon the applicant to plead the negative in order to make out a cause of action for breach of clause 9. 6 There was no formal motion before me today but the parties have been content to argue this question which Mr Angyal says is purely a pleading point. 7 However, Mr Muddle submits that the effect of Mr Angyal's argument is really to seek summary judgment on the cause of action pleaded in [31] to [33]. He says that it is well established by the authorities that the court would not entertain summary judgment on such an issue where the claim cannot be said to be hopeless and in particular where the issue depends upon the knowledge of the respondent. 8 He says that upon the basis of what has been pleaded in [31] to [33], it would have been open to him to seek preliminary discovery on that issue. It does seem to me that as a matter of construction, the exception contained in clause 9.3(c) must be read with clause 9.1. That is to say, clearly enough, the clause must be read as a whole. 9 However, that is an issue to be dealt with on the final hearing. I accept Mr Muddle's submission that at this stage of the proceeding, I ought not entertain an application to either strike out [31] to [33] or give summary judgment against the applicant on those paragraphs of the pleading without giving the applicant an opportunity to obtain discovery which would embrace documents relevant to the issue raised by clause 9.3(c). It follows that I will make an order for discovery in terms of paragraph 1 of the draft short minutes of order submitted by Mr Muddle. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 28 September 2004 Counsel for the Applicant: Mr W Muddle Solicitor for the Applicant: Deacons Counsel for the Respondent: Mr R Angyal Solicitor for the Respondent: Sparke Helmore Date of Hearing: 23 September 2004 Date of Judgment: 23 September 2004	1,862
federal_court_of_australia:fca/full/2013/2013fcafc0056	decision	commonwealth	federal_court_of_australia	text/html	2013-06-03 00:00:00	Lewis v Nortex Pty Limited (in liquidation) [2013] FCAFC 56	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0056	2024-09-13T22:52:09.451544+10:00	FEDERAL COURT OF AUSTRALIA Lewis v Nortex Pty Limited (in liquidation) [2013] FCAFC 56 Citation: Lewis v Nortex Pty Limited (in liquidation) [2013] FCAFC 56 Appeal from: Lewis v Nortex Pty Limited (in liq) [2012] FCA 621 Parties: PETER LAWRENCE LEWIS v NORTEX PTY LIMITED (IN LIQUIDATION) (ACN 002 903 362) and BRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION) File number: NSD 954 of 2012 Judges: DOWSETT, JAGOT AND YATES JJ Date of judgment: 3 June 2013 Catchwords: BANKRUPTCY AND INSOLVENCY – validity of a bankruptcy notice which identified a company and its liquidator as the "creditor" – whether each of the judgments or orders relied on to found a bankruptcy notice must be "on the same account" – whether the relevant orders involved payment on different accounts – capacity in which the liquidator was to receive money payable under the relevant orders Legislation: Acts Interpretation Act 1901 (Cth) ss 2, 23 Bankruptcy Act 1924 (Cth) Bankruptcy Act 1966 (Cth) ss 30, 40, 41, 44 Bankruptcy Legislation Amendment Act 2002 (Cth) Bankruptcy Legislation Amendment Bill 2002 Bankruptcy Act 1869 (Imp) ss 6, 7 Bankruptcy Act 1914 (Imp) Corporations Act 2001 (Cth) s 477 Cases cited: Adams v Lambert (2006) 228 CLR 409 cited DJ Sweeney Holdings Pty Ltd v McLeod (2011) 253 FLR 1 cited Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 cited Ex parte Chinery (1884) 12 QBD 342 cited Ex parte Jones [1913] WN 263 cited Ex parte Kibble; In re Onslow (1875) 10 LR Ch App 373 cited Ex parte Muirhead (1876) 2 ChD 22 considered GPW Aussie Exports v Latin & Anor (1998) 85 FCR 324 cited Illawarra Credit Union Ltd v Objniczak (unreported, Federal Court NG 7300 of 1998, 26 May 1998) cited In re a Debtor [1929] 2 Ch 146 considered In re a Debtor [1952] 1 Ch 192 cited In re Andrew [1875] 1 Ch D 358 cited In re Low; Ex parte Argentine Goldfields Ltd (1891) 1 QB 147 considered James v Abrahams (1981) 34 ALR 657 cited Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (in liq) (No 5) [2010] NSWCA 294 cited Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 cited Klewer v Walton (2004) 2 ABC(NS) 344 cited Lewis v Lamru Pty Ltd (2012) 207 FCR 1 Mason v Mason [1933] P 199 considered Re Anderson; Ex parte Alexander (1927) 27 SR(NSW) 296 cited Re Arkell; Ex parte Arkell (1889) 61 LT 90 cited Re Bond; Ex parte HongKongBank of Australia Ltd (1991) 33 FCR 426 cited Re Monckton; Ex parte Robinson (1951) 15 ABC 193 cited Re Williams; Ex parte Englefield [1919] VLR 566 considered Secretary of State for Trade and Industry v Frid [2004] 2 AC 506 cited Shelley v Shelley (No 1) [1952] P 107 cited Vogwell v Vogwell (1939) 11 ABC 83 cited Halsbury's Laws of England (3rd ed) vol 2 McDonald, Henry and Meek, Australian Bankruptcy Law and Practice (Law Book Company of Australia Ltd, 1940) Date of hearing: 16 November 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 102 Counsel for the Appellant: Mr JT Johnson Solicitor for the Appellant: Toomey Pegg Counsel for the Respondents: Mr VRW Gray Solicitor for the Respondents: Somerset Ryckmans IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 954 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER LAWRENCE LEWIS Appellant AND: NORTEX PTY LIMITED (IN LIQUIDATION) (ACN 002 903 362) First Respondent BRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION) Second Respondent JUDGES: DOWSETT, JAGOT AND YATES JJ DATE OF ORDER: 3 JUNE 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondents' costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 954 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER LAWRENCE LEWIS Appellant AND: NORTEX PTY LIMITED (IN LIQUIDATION) (ACN 002 903 362) First Respondent BRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION) Second Respondent JUDGES: DOWSETT, JAGOT AND YATES JJ DATE: 3 JUNE 2013 PLACE: SYDNEY REASONS FOR JUDGMENT DOWSETT J: 1 I have read the reasons prepared by Jagot and Yates JJ. Their Honours have set out the central facts of the case. The matters in dispute arise out of proceedings in the Supreme Court of New South Wales (the "Supreme Court proceedings"). I should say a little about those proceedings. THE SUPREME COURT PROCEEDINGS 2 The Supreme Court proceedings involved numerous claims and counter-claims. Nortex Pty Ltd ("Nortex") had been the trustee of the Nortex Unit Trust (the "Trust") pursuant to a deed of trust (the "Trust Deed"). Pursuant to the terms of the Trust Deed, Nortex ceased to be trustee upon its going into liquidation. By the time of the trial in the Supreme Court, Nortex had been in liquidation for some time. The beneficiaries of the Trust were Kation Pty Ltd ("Kation") and Lamru Pty Ltd ("Lamru"). Kation was controlled by the appellant ("Mr Lewis"). Lamru was controlled by a man called Lamb. Kation had a 60% interest in the trust and Lamru, 40%. Lamru alleged that Nortex, Mr Lewis and Kation had breached the terms of the Trust Deed and/or had been parties to such breaches. One relevant category of breach involved the unauthorized payment of moneys to Mr Lewis's son, Mark, who was employed by Nortex. The other relevant category of breach involved the sale of Trust stock by Mr Lewis, without payment to the Trust, and his retention of the proceeds. In respect of both categories Lamru sought equitable compensation payable to itself. 3 As I have said, pursuant to the Trust Deed, Nortex had ceased to be trustee when it went into liquidation. However no new trustee had been appointed. It was accepted that Nortex continued to hold the Trust property as bare trustee, and that the liquidator effectively performed that role after the commencement of the liquidation. Both Nortex and the liquidator were parties to the proceedings in the Supreme Court. In the Court of Appeal Basten JA said at [96]: The present issue highlights an underlying tension in the two sets of proceedings: one was concerned with the proper administration of a company in liquidation; the other with claims for breach of trust by the company in its own role as trustee. Pursuant to the trust deed (clause 30) the office of a trustee "shall be ipso facto determined and vacated" if the trustee enters into either compulsory or voluntary liquidation. That may have had consequences for steps taken by the liquidator on behalf of the company, but no point appears to have been taken in that regard in the proceedings. 4 The orders made at first instance (by Hamilton J) were amended on appeal. In their final form, those orders were relevantly as follows: (3) In relation to the issue concerning the payments made by Nortex of the disputed bonuses for Mark Lewis of: (i) $58,070 in respect of the 1995 financial year to Kation, (ii) $101,626 in respect of the 1996 financial year to Mark Lewis, and (iii) $138,733.30 in respect of the 1997 financial year to Mark Lewis. (a) DECLARE that each of such payments was made in breach of trust; (b) DECLARE that Peter Lawrence Lewis ("Lewis") participated in each of the breaches of trust; (c) DECLARE that Kation participated in the breach of trust that occurred in respect of the 1995 financial year; (d) ORDER that Lewis and Kation pay to Lamru (i) in respect of the 1995 financial year $23,228 together with interest calculated from 30 June 1995; (ii) in respect of the 1996 financial year $40,650 together with interest calculated from 30 June 1996; (iii) in respect of the 1997 financial year $55,493 together with interest calculated from 30 June 1997; (e) ORDER that Lewis and Kation reconstitute the Nortex Unit Trust by paying into the Trust Fund: (i) in respect of the 1996 financial year an amount of $60,976 together with interest calculated from 30 June 1996; (ii) in respect of the 1997 financial year an amount of $83,240 together with interest calculated from 30 June 1997; (f) IN RESPECT of the calculations of interest the amount is calculated on the sum to which it relates at the rate specified in schedule 5 to the Uniform Civil Procedure Rules 2005 and compounded on annual rests until payment. (4) In relation to the issues as to the taking and selling of stock by Lewis: (a) DECLARE that Lewis with the knowledge and acquiescence of Kation during the 1997 financial year fraudulently took and sold stock of Nortex and did not pay or account to Nortex for the proceeds thereof; (b) DECLARE that the accounts of the trust were erroneous by reason of the taking and selling of stock: (i) by understating the value of stock at the end of the 1006 financial year by $210,000; (ii) by understating the profits for the 1997 financial year by a further $150,000; (c) ORDER Lewis reconstitute the Nortex Trust Fund by paying into the trust Fund sixty per cent of the amounts referred to in par (b), together with interest at the rates payable under Schedule 5 of the Uniform Civil Procedure Rules 2005, calculated on 30 June in respect of each financial year, compounded at annual rests; (d) ORDER that Lewis pay to the Liquidator to be placed in an interest bearing account (if the Liquidator and Lamru give written consent to the Court and to Lewis within seven days) or into Court (if they do not) forty per cent of the amount referred to in par (b), together with interest at the rates payable under Schedule 5 of the Uniform Civil Procedure Rules 2005, calculated from 30 June in respect of each financial year, compounded at annual rests; (e) RESERVE LIBERTY to Lamru to apply to the Court for payment of the amounts referred to in par (d) to it on the basis of evidence that it has made full disclosure to the Australian Tax office of tax evasion by Russell William Lamb ("Lamb") and Lamru in connection with Nortex stock and has made appropriate arrangements to pay any additional tax and penalties; (f) RESERVE LIBERTY to the Liquidator to apply to the Court after twelve months for release to him of the amounts in par (d), in the event that no application has been made by Lamb and Lamru in the meantime or in the event such an application has been refused. 5 Order 3 of the orders, in their final form, prescribed the relief granted in connection with the payments to Mark Lewis. Order 3(d) required Mr Lewis and Kation to pay certain amounts to Lamru. Orders 3(e) required them to "reconstitute the Nortex Unit Trust by paying into the Trust Fund" certain amounts. The amounts payable to the Trust represented 60% of the amounts paid to Mark Lewis. The amounts payable to Lamru represented 40% of those amounts. The payments to the Trust were by way of re-imbursement. The payments to Lamru were by way of equitable compensation. There were also orders as to interest. They are not presently relevant. 6 Order 4 prescribed the relief granted in connection with the misappropriation of stock. The stock was valued at $210,000, on the sale of which stock Lewis derived a profit of $150,000. Order 4(c) required Lewis to reconstitute the Nortex Unit Trust by paying 60% of $360,000 into the trust fund. Orders 4(d), (e) and (f) reflect the fact that Lamru was found to be entitled to equitable compensation, but upon condition that it and Lamb disclose to the Commissioner of Taxation, conduct associated with the circumstances giving rise to such entitlement, which circumstances would otherwise have barred its claim to equitable relief for reason of absence of clean hands. Further, they had also to make acceptable arrangements for the payment of any outstanding tax and any penalties. 7 In the orders made at first instance in the Supreme Court proceedings, there had been no award of compensation to Lamru. Mr Lewis and Kation were ordered to make payments to the Trust, but it seems to have been expected that little or nothing would be distributed to creditors or beneficiaries. On appeal Basten JA held at [129]-[130], concerning the payments to Mark Lewis, that Lamru should be awarded equitable compensation payable directly to him. Allsop P and Hodgson JA concurred. As to the misappropriation of stock, Basten JA seems to have found that on the trial Judge's findings, Lamru was entitled to equitable compensation, subject to the question of whether Lamru's case should fail because of the absence of "clean hands". Basten JA found no absence of clean hands. Allsop P and Hodgson JA found an absence of clean hands but nonetheless awarded equitable compensation to Lamru upon conditions. The conditions appear in order 4. Again, the award of equitable compensation was to be paid directly to Lamru. The Court of Appeal understood that its orders for payment of equitable compensation to Lamru would deprive the liquidator of access to similar amounts which may have been otherwise payable to reconstitute the Trust. See the reasons of Basten JA at [129]. 8 In the course of argument before this Court there was some suggestion that the question of Lamru's entitlement to the amount specified in order 4(d), as against the liquidator, had not been determined. At one level, this statement may be correct but, if so, its effect is misleading. The relevant amount was payable to Lamru by way of equitable compensation, subject only to compliance with the conditions to which I have referred. It was given a lengthy time in which to comply. In the event that it did so, there would be no basis for depriving it of the award. That award was made upon the same basis as that made to Lamru in connection with the payments to Mark Lewis, save that the latter award was not subject to any condition. APPLICATIONS TO VARY THE ORDERS 9 Subsequent to the publication of the reasons for judgment of the Court of Appeal, Lamru, Nortex and the liquidator sought to vary the orders made pursuant to those reasons. Lamru's application concerned the orders as to interest and is not presently relevant. Nortex and the liquidator sought amendments to orders 3(e) and 4(c) so that each order would provide that payment was to be "to the liquidator for payment to the Trust Fund". The proposal to amend seems to have arisen out of a conversation between counsel for the liquidator and counsel for Mr Lewis and Kation. The former asked whether Mr Lewis and Kation accepted that the liquidator "is entitled to enforce payment of moneys which Peter Lewis and Kation had been ordered to pay to reconstitute the Nortex Unit Trust". Counsel for Lewis and Kation "reserved his position". At some later stage he said: As neither the liquidator nor Nortex was the trustee of Nortex Unit Trust they would not be entitled to enforce the court's orders against Mr Lewis or Kation. 10 I note that the conversation concerned payments to reconstitute the Trust, and not other payments to be made pursuant to the orders, such as the payment pursuant to order 4(d). However, at [15] the Court of Appeal said: It is true that order 4(d) required that "Lewis pay to the liquidator" as the trustee of the Nortex trust fund, specified amounts. Whilst the language differs, the effect of each provision is the same. There is no need to vary the language of order 3(e). 11 I note that the words "as the trustee of the Nortex trust" do not appear in order 4(d) itself. At [17]-[18] the Court continued, referring to the conversations between counsel: There is no indication in the earlier conversation that the semantic distinction between orders 3(e), 4(c) and 4(d) was likely to be relied on to justify not reconstituting the trust fund. The later conversation does however raise that question. As the trustee of the fund is Nortex and Nortex is under the control of the liquidator, the effect of the order proposed and the order as made is one and the same. The plain intent of the orders was that they be enforceable by Nortex and the liquidator. This makes it unnecessary to consider the operation of the slip rule. Any party seeking to resist payment on the basis foreshadowed by Mr Ryckmans would be at serious risk of breaching his or its obligations under s 56 of the Civil Procedure Act 2005 (NSW). Any counsel who gave advice to that effect would be at serious risk of reaching his or her obligations under s 56(4). 12 The matter in dispute was whether the liquidator could enforce the orders which provided for payments to the Trust. The dispute arose because counsel for Mr Lewis and Kation had suggested that the liquidator could not do so. The Court of Appeal appears to have identified the wording of order 4(d) as being a possible basis for doubting the liquidator's position with respect to orders 3(e) and 4(c). It considered that any payment to the liquidator pursuant to order 4(d), was to him in his capacity as trustee. He had certainly participated in the proceedings in his capacity as liquidator of Nortex which was the bare trustee of the Trust. However I do not understand the Court of Appeal to have indicated that any amount paid pursuant to order 4(d) was to be held upon the terms of the Trust or for the purposes of the liquidation. Such a view would be plainly inconsistent with orders 4(d) and 4(e) which anticipate Lamru becoming entitled to the amount in question. Lamru was not entitled to receive the payment unless the Court so ordered. Any entitlement in the liquidator was also dependent upon a further order of the Court. As I have observed, the Court of Appeal was clearly aware of the consequences of its orders as between the liquidator and Lamru. 13 The payment pursuant to order 4(d) was only to be made to the liquidator if he and Lamru agreed to that course. Otherwise the payment was to be made into court. There is no evidence as to such consent, or as to any application by Lamru or the liquidator for an order that any moneys be paid out to either of them. However counsel for Lamru invited us to proceed on the basis that Lamru had agreed that the funds be paid to the liquidator to hold upon the terms set out in the order. In my view, any amount so paid would not be held for the benefit of the Trust or for the purposes of the liquidation, absent any further order. I consider that the liquidator would effectively be in the position of a stakeholder, albeit a stakeholder who might eventually have an interest in the stake. At a later stage I shall return to the question of the liquidator's status as a creditor pursuant to order 4. 14 I should add that I do not accept that the Court of Appeal meant to address the possible effects of order 4(d) for the purposes of the Bankruptcy Act 1966 (Cth) (the "Bankruptcy Act"). THE BANKRUPTCY NOTICE 15 Mr Lewis was served with a bankruptcy notice which alleged that he was indebted to "Nortex Pty Ltd (in liquidation) … and Brian Raymond Silva in his capacity as liquidator of Nortex Pty Ltd (in liquidation)". The amount claimed represented all amounts ordered to be paid to Nortex or the liquidator (including that payable pursuant to order 4(d)) and interest. The bankruptcy notice included a schedule demonstrating the calculation of interest by reference to the relevant individual orders. A copy of the amended orders was attached. The bankruptcy notice does not assert that the liquidator and Lamru had agreed that the payment pursuant to order 4(d) be made to the liquidator and not into Court. Mr Lewis applied to have the bankruptcy notice set aside. His application was dismissed. This is an appeal against that decision. THE APPEAL 16 The grounds set out in the notice of appeal are as follows: 1. His Honour erred in law in determining as he did in paragraph [14] of the Judgment, that each of Orders 3(e), 3(f)[sic], 4(c) and 4(d) made by Justice Hamilton in the Supreme Court of New South Wales, as amended by the Court of Appeal and reflected in the document annexed to Bankruptcy Notice number BN 763 issued on 8 February 2012 (the "Bankruptcy Notice"), all require payments to be made to or through the Second Respondent acting in his capacity as liquidator of the First Respondent. 2. His Honour erred in law in determining that each of orders 3(e), 3(f)[sic] and 4(c), on the one hand, and order 4(d) on the other hand were each enforceable by the First Respondent and the Second respondent in the same capacity and interest. 3. His Honour erred in law in failing to determine that, on the one hand, orders 3(d), 3(e) and 4(c) required payment to the First Respondent as bare trustee for the Nortex Unit Trust whereas order 4(d) required payment to the Second Respondent as trustee for Lamru Pty Limited and himself. 4. His Honour erred in law in determining that the claim represented by the Bankruptcy Notice is a claim by the same interest in all relevant respects. 5. His Honour erred in law in determining that the document attached to Bankruptcy Notice was a "final judgment or final order" as required by section 41 of the Bankruptcy Act 1966. 6. His Honour erred in law in failing to determine that the Bankruptcy Notice was invalid by reason of section 41(2) of the Bankruptcy Act 1966 in that the Bankruptcy Notice failed to distinguish between the principal debt and post-judgment interest in accordance with the form prescribed under regulation 4.02 of the Bankruptcy Regulations 1966. 7. His Honour erred in law in applying the reasons given by Justice Foster in Lewis v Lamru Pty Limited; In the matter of Lewis [2011] FCA 768 at [37] to [41] in relation to the appellant's submission in relation to the non-compliance with section 41(2) of the Bankruptcy Act. 8. His Honour erred in law in failing to determine that the Bankruptcy Notice was objectively misleading or confusing as to the requirements for compliance with the Bankruptcy Notice, in that the attachment to the Bankruptcy Notice, under the heading "Note to Debtor", required the debtor to make a decision as to how much, and to whom, he was required to pay in order to comply with the Bankruptcy Notice. 9. His Honour ought to have found that the Respondents had failed to satisfy a matter made essential by the Bankruptcy Act 1966 in respect of the issue of a Bankruptcy Notice in that the respective claims of the First Respondent and the Second Respondent were on separate accounts and that they could not jointly apply for and have issued by the Official Receiver a Bankruptcy Notice in the form in which it was issued. 10. His Honour ought to have set aside the Bankruptcy Notice. 17 At the commencement of the hearing of the appeal, grounds 6, 7 and 8 were abandoned. Grounds 1, 2, 3 and 4 all seem to address the capacity in which the liquidator was to receive moneys payable to him pursuant to the orders in the Supreme Court proceedings. In particular, Mr Lewis asserts that the liquidator received, or would receive any money pursuant to orders 3(e) and 4(c) in a different capacity from that in which he was to receive any payment pursuant to order 4(d). Ground 5 claims that the orders attached to the bankruptcy notice did not constitute a "final judgment or order" as required by ss 40 and 41 of the Bankruptcy Act. Ground 9 seems to relate back to grounds 1 to 4, asserting that the bankruptcy notice was not in accordance with the requirements of the Bankruptcy Act in that the "respective claims of [Nortex] and the [liquidator] were on separate accounts and that they could not jointly apply for and have issued by the Official Receiver a Bankruptcy Notice in the form in which it was issued". Order 10 asserts a conclusion said to follow from the various grounds. 18 Two primary themes emerge from the submissions on appeal. The first involves the proper construction of ss 40(1)(g) and 41(1) following an amendment to the latter subjection which came into effect on 5 May 2003 (the "Amendment"). The second theme is the nature of the liquidator's interest, if any, in any amount payable or paid to him pursuant to order 4(d). 19 In oral submissions counsel for Mr Lewis focussed on the capacity of a creditor to obtain and serve a bankruptcy notice based on two judgment debts owing to one creditor, but not in "the same interest". In DJ Sweeney Holdings Pty Ltd v McLeod (2011) 253 FLR 1, a federal magistrate held that s 41(1) authorized multiple creditors to obtain and serve a bankruptcy notice only if their claims were "in the same interest". This seems to have meant that the debt was, or the debts were owed to them jointly. Counsel did not concede that the liquidator could, in any circumstances, obtain and serve a bankruptcy notice for the amount payable pursuant to order 4(d). See paras 10 and 11 of Mr Lewis's written submissions. However he did not really articulate the basis for that position. This matter is relevant to ground 5. 20 At para 14 of their written submissions Nortex and the liquidator submit: The respondents accept that, subject to the right of separate judgment creditors to join in issuing one bankruptcy notice based upon their respective debts under section 40(1), where a creditor holds a judgment debt against the debtor in one capacity and another judgment debt against the same debtor in another capacity, the judgment creditor must either issue one bankruptcy notice making plain that he is issuing the notice in two different capacities, or the creditor must issue a separate bankruptcy notice in respect of each debt. Secretary of State v Frid [2004] 2 AC 506 at [14]-[16], [19] and [26]. This is because set off is available only between parties in the same interest and the bankrupt cannot set off a debt owed to a trustee in that capacity against a debt owed to him by the trustee personally or in some other capacity Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346. 21 I have been unable to find in Frid any support for the proposition concerning bankruptcy notices. Indeed, the case was not concerned with bankruptcy notices. It rather concerned a process of the kind contemplated by s 86 of the Bankruptcy Act, involving the offsetting of mutual obligations in order to arrive at an amount to be proven in the bankruptcy. 22 As to the second theme, Nortex and the liquidator submit that a liquidator is entitled to get in the assets of the company, regardless of how he or she may be obliged to dispose of those assets once they are recovered. Thus the liquidator might recover an amount which is distributable amongst creditors generally, and might also recover an asset which is subject to a charge, in respect of which the liquidator may have to account to the chargee. Thus it is said that the liquidator was entitled to serve a bankruptcy notice based upon the order that the fund be paid to him, regardless of how it was to be applied by him. This submission seems to assume that because the liquidator is entitled to get in Nortex's assets, he is entitled to enforce the order for payment contained in order 4(d), and that such entitlement confers a right to obtain and serve a bankruptcy notice based on that "debt". The basis for those assumptions has not been articulated. MULTIPLE CREDITORS AND MULTIPLE DEBTS 23 The question of the proper construction of ss 40(1)(g) and 41(1) addresses the following questions: whether two or more judgment creditors, having judgment debts owed to them severally, may unite in obtaining and serving a bankruptcy notice; and whether a judgment creditor may obtain and serve a bankruptcy notice based upon two or more judgment debts, owed to him or her in different capacities. 24 Section 40(1)(g) of the Bankruptcy Act provides that a debtor commits an act of bankruptcy: if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not: (i) where the notice was served in Australia – within the time specified in the notice; or (ii) where the notice was served elsewhere – within the time fixed for the purpose by the order giving leave to effect the service, comply with the requirements of the notice or satisfy the Court that he or she has a counter claim, set off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter claim, set off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained … . 25 Section 41(1) provides: An official receiver may issue a bankruptcy notice on the application of a creditor who has obtained against the debtor: (a) a final judgment or final order that: (i) is of the kind described in paragraph 40(1)(g); and (ii) is for an amount of at least $5,000; or (b) two or more final judgments or final orders that: (i) are of the kind described in paragraph 40(1)(g); and (ii) taken together are for an amount of at least $5,000. 26 Sections 40(1)(g) and 41 operate in conjunction. The former provides for the obtaining and service of a bankruptcy notice by a judgment creditor and the required response by the judgment debtor. Section 41 authorizes and regulates the issue of bankruptcy notices by the Official Receiver and also deals with the judgment debtor's response. Prior to 5 May 2003, it seems to have been accepted that a bankruptcy notice could relate to only one judgment debt. Thus, save in the case of joint creditors, there could be no question of more than one judgment creditor seeking the issue of the same bankruptcy notice. Similarly, it followed that one judgment creditor could not obtain and serve a bankruptcy notice based on two or more judgment debts, one or more owed to him or her in one capacity and one or more owed to him or her in a different capacity. Such debts would presumably be pursuant to separate judgments or orders, even if made in the same proceedings. Perhaps curiously, s 44 then provided that creditors could aggregate their debts in order to satisfy the requirement that the "creditor" be owed $2,000 or more as a pre-requisite to presenting a petition in bankruptcy. That figure has now been increased to $5,000. 27 The Amendment was effected by the Bankruptcy Legislation Amendment Act 2002 (Cth) which amended s 41(1) by adding s 41(1)(b), so that a bankruptcy notice could be issued on the application of a creditor having two or more judgment debts totalling at least $2,000.00 (now $5,000). Although s 41(1), as amended, contemplates the issue of one bankruptcy notice based on two or more judgment debts, it still refers to an application by "a creditor" and to a creditor who has obtained "two or more final judgments or orders". Nortex and the liquidator submit that s 23(b) of the Acts Interpretation Act 1901(Cth) (the "Acts Interpretation Act') operates so that the words "a creditor" in both ss 40(1)(g) and 41 should be read as including "creditors". Section 23(b) provides that words in the singular number include the plural and vice versa. The Acts Interpretation Act applies "subject to any contrary intention" (s 2(2)). 28 In Sweeney the federal magistrate referred to the decision of Goldberg J in GPW Aussie Exports v Latin & Anor (1998) 85 FCR 324. That case, which was decided prior to the Amendment, concerned the validity of a bankruptcy notice based upon three judgment debts owed to one judgment creditor. In support of the validity of the notice, the judgment creditor relied upon the decision of Beaumont J in Illawarra Credit Union Ltd v Objniczak (unreported, Federal Court NG 7300 of 1998, 26 May 1998). Beaumont J had held that s 23(b) of the Acts Interpretation Act applied to s 41(1) so as to permit the issue of a bankruptcy notice based on more than one judgment debt. Goldberg J refused to follow that decision, relying upon a line of authority which he considered to be "too well established to enable me as a single Judge to reconsider the matter". In particular, his Honour referred to a review of the authorities in the judgment of Foster J in Re Bond; Ex parte HongKongBank of Australia Ltd (1991) 33 FCR 426. Goldberg J pointed out at 325 that the line of authority had its genesis in the decision of In re Low; Ex parte Argentine Goldfields Ltd (1891) 1 QB 147. 29 In Low, the Court of Appeal held that a bankruptcy notice could not be based on two judgment debts owed to one judgment creditor. The Court gave three reasons for reaching this conclusion. The first was that the relevant section referred to only one debt. The second was that another section made specific provision for the presentation of a petition by two or more creditors, as does s 44 of the Bankruptcy Act. The Court concluded that given the express reference to two or more creditors acting together for that purpose, the absence of any express reference to two or more debts being included in a bankruptcy notice indicated that such inclusion was not authorized. Finally, it was said that the debtor had a right to pay off, or raise a counter-claim, set-off or cross demand to one debt, and so prevent its being used to support a petition in bankruptcy, and that the relevant legislation should not be construed in such a way as to deprive the debtor of that right. 30 Prior to the decision in Low there had been at least two English decisions to the effect that two or more creditors could present a debtor's summons based on separate debts. The debtor's summons seems to have been the predecessor of the bankruptcy notice. Section 6 of the Bankruptcy Act 1869 (Imp) provided that a creditor, or two or more creditors could present a petition in bankruptcy if the judgment debtor had committed an act of bankruptcy. Section 6(6) provided that one such act of bankruptcy was failure to comply with a debtor's summons. A debtor's summons was issued by the Court pursuant to s 7, provided that the creditor had satisfied it that the debt was due. The debtor could then seek to satisfy the Court that he or she was not so indebted, or that the summons should be set aside upon other grounds. The primary difference between the debtor's summons and the bankruptcy notice seems to have been that the former could be issued for a debt other than a judgment debt. 31 In Ex parte Kibble; In re Onslow (1875) 10 LR Ch App 373, James and Mellish LJJ concluded that several creditors could join in presenting a debtor's summons. However the Court considered such a course to be inconvenient. It also considered that if it were adopted, all creditors would "stand or fall together". In re Andrew [1875] 1 Ch D 358, a decision of the Court of Appeal, is to similar effect. The latter decision was applied by Cussen J in Re Williams; Ex parte Englefield [1919] VLR 566. At that time bankruptcy in this country was regulated by state legislation. The Victorian legislation provided for a debtor's summons rather than a bankruptcy notice, and was presumably in much the same form as was the English legislation at the time of the decisions in Kibble and Andrew. Cussen J considered that there were marked differences between the English legislation, as applied in Low and the Victorian legislation but did not identify the relevant differences. Apparently for reason of such differences, his Honour did not follow Low. Whilst referring to Andrew, he based his decision upon the application of the Victorian version of s 23(b) of the Acts Interpretation Act. 32 The Bankruptcy Act 1924 (Cth) (the "1924 Act") established federal jurisdiction in bankruptcy. In the second edition of McDonald Henry and Meek, Australian Bankruptcy Law and Practice (Law Book Company of Australia Ltd, 1940) at 104, Low is cited as authority for the proposition that two or more judgments could not be included in one bankruptcy notice. That position seems to have obtained until the Amendment. Section 23(b) of the Acts Interpretation Act has, in varying forms, been in existence since 1901. 33 In its present form s 41(1) clearly authorizes the issue and service of one bankruptcy notice for two or more judgment debts owed to one judgment creditor. As I have said, two questions arise for present purposes, namely: whether s 41(1) now authorizes two or more judgment creditors to obtain and serve one bankruptcy notice based on debts owed to each of them severally; and whether s 41(1) authorizes one judgment creditor to obtain and serve one bankruptcy notice based on one or more judgment debts owed to him or her in one "right", and one or more judgment debts owed to him or her in some other "right". Two or more judgment creditors 34 Whatever one may think of the third ground relied upon in the reasoning in Low, namely that a judgment debtor was entitled to pay out one of two or more judgment debts, the other grounds still have merit. Sections 40(1)(g) and 41 still speak of "a creditor". Section 44 still expressly provides for the presentation of a petition by two or more creditors. Parliament appears to have identified the need to legislate to allow for a bankruptcy notice based on two or more judgment debts. Had it also intended to allow two or more judgment creditors to join in obtaining and serving a bankruptcy notice for debts owed to them severally, one would have expected it to say so. The explanatory memorandum which accompanied the Bankruptcy Legislation Amendment Bill 2002 suggests that Parliament had no such intention. At para 4(j) the memorandum states that the proposed amendment would: … allow the amounts of final judgments or final orders obtained by a creditor to be amalgamated for the purpose of meeting the $2,000 threshold for the issue of a bankruptcy notice … . 35 At para 81 the memorandum states: It is proposed by item 19 that subsection 41(1) be repealed and replaced by a new subsection to allow 2 or more final judgments or final orders valued at $2,000 (rather than one as is currently required) to support the issue of a bankruptcy notice. Item 20 proposes a consequential drafting change. 36 Thus it seems that the specific purpose of the amendment was to permit the aggregation of judgment debts owed to one judgment creditor, primarily for the purpose of satisfying the threshold figure which was then $2,000 and is now $5,000. Clearly, the Amendment goes further in that it allows for the aggregation of all judgment debts owed to one judgment creditor, regardless of amount. However there is no reason to conclude that Parliament's intention was to allow two or more judgment creditors to obtain and serve one bankruptcy notice, based on two or more judgment debts owed to them severally. 37 As was observed in Kibble and in Andrew, the demand in one bankruptcy notice for the payment of two or more debts owed to different judgment creditors may create "inconvenience". Such inconvenience may be experienced by both the judgment creditors and the judgment debtor. The latter would be obliged to deal with each judgment creditor individually. Any counter-claim, set-off or cross demand maintainable against one judgment creditor would not generally be available against the others. That complication would not usually arise in the case of a bankruptcy notice based on two or more judgment debts owed to one judgment creditor. Arrangements for payment would generally address the debt as a whole. Any counter-claim or cross demand, if in a sufficient amount, would be an answer to all judgment debts. It is true that a set-off may, in some cases, go in reduction of one debt but not others. However such a set-off could generally be pursued by counter-claim or cross demand. 38 The judgment debtor might succeed against one creditor but not others. The Bankruptcy Act says nothing about such a possibility. In Kibble the Court suggested that the creditors would stand or fall together, hardly a satisfactory result for those whose debts are not successfully challenged. If Parliament had intended that two or more creditors should be able to join in obtaining and serving one bankruptcy notice, one would have expected provisions dealing with how this was to be done, how the debtor was to respond and the consequences of his or her satisfying such requirements as against one creditor but not others. In the absence of more detailed provisions, it is difficulty to see any advantage in two or more creditors joining together in obtaining and serving a bankruptcy notice. It is also difficult to conclude that Parliament intended so to change the law. In my view s 41 as amended should not be so construed. Judgment debts owed to one judgment creditor in different "rights" 39 In Ebert v The Union Trustee Co of Australia Ltd (1960) 104 CLR 346 at 351-2, the High Court held that a debtor could not successfully raise a counterclaim, set-off or cross demand asserted against the creditor in a "right" other than that in which the latter was entitled to the judgment debt which was the subject of the bankruptcy notice. See also Re Anderson; Ex parte Alexander (1927) 27 SR(NSW) 296, Vogwell v Vogwell (1939) 11 ABC 83 and James v Abrahams (1981) 34 ALR 657 per Fisher J (at 666-668), Deane and Lockhart JJ not deciding that point. It does not necessarily follow from that proposition that ss 40(1)(g) and 41(1) do not permit a judgment creditor to obtain and serve a bankruptcy notice based on judgment debts owed to him or her in different "rights". However, prior to the Amendment, the general prohibition on basing a bankruptcy notice upon two or more judgment debts would have prevented that course. Again, the question is whether the Amendment had the effect of changing the law in this respect. 40 One must keep in mind the purpose of ss 40 and 41. Pursuant to s 43 a court may only make a sequestration order upon a creditor's petition if the debtor has committed an act of bankruptcy. The acts of bankruptcy are prescribed in s 40. The act of bankruptcy contemplated by s 40(1)(g) is further explained in s 41(1). It is complex and, one expects, not easily understood by a judgment debtor. From the debtor's point of view the need to distinguish between the right in respect of which the relevant judgment debt is claimed and the right in respect of which the creditor may be liable to any counter-claim, set-off or cross demand may not be easy to understand. 41 There is authority for the proposition that where a judgment debt is owed to a company in liquidation, any bankruptcy notice should be in the name of the company. See In re a Debtor [1952] 1 Ch 192 at 193. That case also seems to establish that if a judgment or order directs the payment of money to a liquidator in that capacity, any bankruptcy notice concerning the debt must demand payment to the liquidator in that capacity. It must also be made clear that any arrangement as to payment must be made with the liquidator in that capacity, and that any counter-claim, set-off or cross demand must be against him or her in that capacity. It is difficult to know what a debtor would make of these distinctions. 42 One also wonders about the appropriateness of permitting a judgment creditor to obtain a bankruptcy notice for debts owed in different rights. In so doing, he or she may create a position in which there is conflict between interest and duty, particularly in negotiating arrangements for payment or dealing with alleged counter-claims, set-offs and cross demands. 43 For these reasons, and for reasons similar to those which lead me to conclude that s 41(1) as amended does not authorize the issue of a bankruptcy notice based on judgment debts owed to multiple creditors severally, I conclude that it does not authorize the issue of a bankruptcy notice based on two or more debts owed to one judgment creditor but in different rights. 44 The word "right" may seem to be somewhat uncertain in meaning. Clearly, a distinction may be drawn between a debt owed to a creditor personally and a debt owed to the same person as a trustee or personal representative. A distinction may also be drawn between a debt owed to a person as trustee of one trust and to the same person as trustee of another trust. The present case offers a further example of the need to distinguish between "rights". In his submissions, Mr Lewis speaks of amounts owing on "separate accounts". One might also speak of debts owed to a creditor in different capacities or interests. The terminology may not matter. In the present case, the distinction is between debts owed to the Trust, debts owed to the liquidator and whatever "right" the liquidator may derive from order 4(d). 45 In my view, it cannot be said in the present case, that the liquidator will hold any sum paid to him pursuant to order 4(d) in the same right, capacity or interest, or on the same account as moneys payable to reconstitute the Nortex Trust. The latter amounts will be held for the purposes of the Trust. The former amount will be held pending further order of the Court. VALIDITY OF THE BANKRUPTCY NOTICE 46 In Kleinwort Benson Australia Ltd v Crowl (1988) 165 CLR 71 at 79 the majority of the High Court held that: The authorities show that a bankruptcy notice is a nullity if it fails to meet a requirement made essential by the [Bankruptcy] Act, or if it could reasonably mislead a debtor as to what is necessary to comply with the notice … . 47 At 76 their Honours observed that: The essential requirements of a bankruptcy notice are found in s 41 of the [Bankruptcy] Act. 48 On my construction, s 41(1) permits the issue of a bankruptcy notice on the application of one creditor who has obtained against the debtor, either one final judgment or final order in an amount of at least $5,000, or two or more final judgments or final orders in amounts totalling at least $5,000. Section 41(1) does not permit the issue of a bankruptcy notice on the application of two or more creditors who are severally owed separate debts by the same debtor. Nor does s 41(1) permit the issue of a bankruptcy notice for two debts owed to one creditor in different rights. Whether the present bankruptcy notice should be read as being based upon claims by two creditors for separate debts, or by one creditor for two or more debts (they being owed to him in different rights) the same consequence follows. The bankruptcy notice does not satisfy the requirements of ss 40(1)(g) and 41(1). 49 The next question is whether the bankruptcy notice fails to satisfy an essential requirement of the Bankruptcy Act. In Adams v Lambert (2006) 228 CLR 409 the High Court considered the interaction of ss 40(1)(g) and 41, and s 306 of the Bankruptcy Act. Section 306(1) provides: Proceedings under this Act are not invalidated by a formal defect or an irregularity, unless the Court before which the objection on that ground is made is of opinion that substantial injustice has been caused by the defect or irregularity and that the injustice cannot be remedied by an order of the Court. 50 The Court sought to identify the circumstances in which a defect or irregularity was or was not a "formal defect or an irregularity" for the purposes of s 306(1). 51 At [32] their Honours said: … Gyles J accurately identified the question as whether correct completion of the form prescribed by the regulations in every respect is a requirement made essential by the Act. Bearing in mind that, in the present case, the error could not have misled the respondent as to what it was necessary to do in order to comply with the requirements of the notice, it is difficult to understand how, consistently with [Kleinworth Benson], the respondent could succeed without an affirmative answer to that question. 52 At [26] their Honours said: The question of construction raised by the words "a formal defect or an irregularity" is one to be decided by reading s 306 in the context of the whole Act, informed by the general purpose of the legislation, and the particular purpose of the provisions relating to bankruptcy notices. It is similar to the question that, in former times, would be explained by asking whether a statutory requirement was mandatory or directory. In Project Blue Sky Inc v Australian Broadcasting Authority … it was said: "A better test … is to ask whether it was a purpose of the legislation that an act done in breach of [a] provision should be invalid … . In determining the question of purpose, regard must be had to the language of the relevant provision and the scope and object of the whole statute." 53 The present question, however, is not as to compliance with the requirements of the regulations, but whether the bankruptcy notice is a notice as contemplated by ss 40(1)(g) and 41 of the Bankruptcy Act. If the notice as given is not a notice in that sense, then failure to comply with it will not be an act of bankruptcy for the purposes of s 40(1)(g). In my view, those provisions require that a bankruptcy notice specify a judgment debt or judgment debts owed to one judgment creditor, save in the case of a debt owed to two or more judgment creditors jointly. Section 40(1)(g) does not contemplate the judgment debtor having to make arrangements with more than one judgment creditor, nor does it contemplate the judgment debtor having to raise counter-claims, set-offs or cross demands in respect of debts owed to different creditors, or to one creditor in more than one right. Section 41 makes provision for a dispute as to whether the amount claimed by a creditor exceeds the amount due. It says nothing about how a debtor is to deal with the situation in which he or she denies that one debt owed to one creditor is due but admits that other debts are owed to other creditors named in the bankruptcy notice. 54 In those circumstances, I conclude that the regime established by ss 40(1)(g) and 41 is premised upon there being only one judgment creditor claiming one or more judgment debts, in the case of multiple debts, all being in the one right. The present bankruptcy notice is not a notice of the kind contemplated by the Bankruptcy Act. Non-compliance with it will not be an act of bankruptcy. In my view the bankruptcy notice is void and should be set aside. A CREDITOR WHO HAS OBTAINED A FINAL JUDGMENT OR FINAL ORDER 55 There is a line of cases which suggests that in determining whether a person is competent to obtain the issue of a bankruptcy notice one looks to the identity of "the principal in whose interest (bankruptcy proceedings) are necessary". See Halsbury's Laws of England (3rd ed) vol 2 p 273. The fourth edition of Halsbury deals with legislation which seems to differ substantially from the Bankruptcy Act. The cases have some factual similarity to the present case. In Ex parte Muirhead (1876) 2 Ch D 22 a husband, as petitioner in a divorce case, obtained a decree of dissolution of marriage. The jury also awarded him, as against the co-respondent, damages in the amount of £5,000. The Court ordered that such sum be paid into court. It was then discovered that the co-respondent was living abroad, so that the order for damages could not be enforced against him. After the decree had become absolute, the petitioner obtained a variation of the order, so that it required payment of the amount of the damages to him, he undertaking to pay it into court to abide any further order. The petitioner then presented a bankruptcy petition against the co-respondent, the act of bankruptcy being his remaining out of England with intent to defeat or delay his creditors. At 25, Cockburn LCJ observed that the order had not "created a good petitioning creditor's debt". His Lordship continued at 25-26: It is quite clear that the award of damages by a jury in an action at law, without a judgment, or an award of damages by a jury in such a proceeding as this suit in the Court of Divorce, without an order of the Court giving effect to the verdict, would not afford a ground of action, or constitute a good petitioning creditor's debt; but it is said that the order of last June has the effect of a judgment, and converts that which would not be a good petitioning creditor's debt into a good petitioning creditor's debt. Now in order to constitute a good petitioning creditor's debt, you must have that which may be the immediate subject of an action at law or suit in equity. What have we here? An order for payment of a sum to which Captain Otway had no title at law or in equity. It would be necessary for him, if the co-respondent were to pay him the amount, to pay it into the registry of the Court of Divorce, to be dealt with as the Court should direct. It was not the intention of the order, nor is it the effect of the order, that the money shall be presently paid as compensation to the Petitioner, Captain Otway. He is merely to receive the money and pay it into Court, and he can take no process for the purpose of enforcing the payment for his own benefit. The only process which the Divorce Court would award him, if it could get the defendant within its jurisdiction, would be a process to compel the latter to pay the money to him for the purpose of being paid into Court, there to be made available as the Court should direct. Under those circumstances, I think the expression used by Mr Benjamin the other day is a very good and apt one – he is simply the conduit pipe of the Court, or, to use an expression still better adapted to the circumstances of the case, and which was used yesterday by the Master of the Rolls, he is in the position of a receiver. If the Court, instead of ordering the money to be paid, in accordance with the usual practice of the Court, into the registry, has the power (upon which I must not be understood as pronouncing any opinion) of ordering payment in this way, that is, to order it to be paid to the Plaintiff in the suit, or to any other party, for the purpose of its being brought into the registry – as to which I see no difference between the position of the plaintiff in the suit and any other person whom the Court might employ for the purpose – it is clear that such a person is only a receiver, and could not apply the money to his own use, but would be bound to bring it within the power of the Court, in order that the Court might exercise its functions with respect to it. That being so, it appears to me that this is not a good petitioning creditor's debt. It certainly is not at law a good petitioning creditor's debt, nor, as far as I understand the matter, is it a good debt in equity. It is nothing more than an order to bring the money into Court, and when it is brought into Court non constat that the plaintiff, who up to the time of getting the verdict was dominus litis will get a single shilling of it. It is in the power of the Court to direct that the whole amount shall be applied to the maintenance of the wife and children. It is impossible to say under these circumstances, where a man has not a present and certain interest in the debt, that he has such a debt as can be made the foundation of bankruptcy proceedings. 56 Mellish LJ said at 27-28: It is admitted that if the second order had not been made, but only the first order, there would be no good petitioning creditor's debt, and for a very obvious reason, that although the effect of the order would be to make the sum certainly payable, it would leave it entirely uncertain for whose benefit the sum would be ultimately received, and therefore it would not be a liquidated debt due either at law or in equity to any particular person. Then, does the second order alter the case? I have great difficulty in seeing how it can. There is no real difference in this case between the right at law and the right in equity. The right is given by the statute, and the Court, whether it be a Court of Law or a Court of Equity, must determine the meaning of the statute; and after the second order was made the sum still remained in the same position as it was under the first order, that is to say, it remained the sum of which neither the whole nor any fixed portion is certain to be ultimately received by Captain Otway. Neither, in my opinion, is he a trustee. I quite agree that if a sum is due at law to a person as a trustee, and he is acting in accordance with his trust in presenting a petition, he may present that petition, and there would be in that case a good petitioning creditor's debt; but here I cannot see that any sum is due at law any more than in equity. It appears to me that the Court whether at law or in equity must look at the terms of the Divorce Act, and looking at the terms of the Divorce Act, I cannot help seeing that there is no certain sum due to Captain Otway. 57 His Lordship went on to observe that, nonetheless, the sum might well be a debt provable in any bankruptcy. 58 In Ex parte Jones [1913] WN 263, the debtor was the co-respondent in a divorce suit against whom the petitioner obtained an order for costs. The costs were taxed. The Court then ordered that the co-respondent pay the amount of the taxed costs to the solicitor for the petitioner. That amount was not paid and the solicitor took out, in his own name, a judgment summons against the debtor. Phillimore J held that the summons was fatally flawed. His Lordship's reasons do not appear in the report. 59 Muirhead and Jones were decided pursuant to legislation which referred only to final judgments and not to final orders, a distinction which was of some importance in bankruptcy proceedings. See Ex parte Chinery (1884) 12 QBD 342. The reference to final orders was introduced by the Bankruptcy Act 1914 (Imp). However, both Muirhead and Jones have been followed in cases decided after the 1914 legislation. In In re a Debtor [1929] 2 Ch 146, Lord Hanworth MR said, at 152: The principle raised seems to me to have been the basis of the judgment of Phillimore J in Ex parte Jones, where he pointed out that the right party had not been put forward as principal to initiate proceedings against the debtor. Also, in Ex parte Muirhead … I think that in the judgment of Cockburn LCJ there is the same intention to indicate that the person at whose suit proceedings are taken must be the principal, the person in whose interests those proceedings are necessary. 60 In re a Debtor itself concerned an order directing payment by a co-respondent to the solicitors for the petitioner of the costs of a divorce suit, upon the solicitor's undertaking to lodge in Court any sum so received. The amount was not paid, and the solicitors issued a bankruptcy notice and subsequently, a petition. At 151-152 Lord Hanworth said: Now looking at the order of October 24, which is the basis of the bankruptcy notice, can it be said that it is a "final order" within the meaning of the section? It directs payment to the solicitor of a certain sum on their undertaking to lodge it in Court. Why was it to be paid into Court? In order that it may be the subject of a further and future order. Mr Tindale Davis pointed out the manner in which the sum could be paid out and handed us the form of an order for payment out, from which it appears that the order is one which must be made by the registrar. It is clear, therefore, that further proceedings will be necessary to get the money out of Court, and I think it is also clear that the order of October 24, in its own terms, did not finally determine the right of the petitioner, or anyone else, in respect of the sum to be paid. In my opinion, therefore, the order is not a "final order". 61 His Lordship then turned to the "second point raised" to which I have already referred in connection with the decisions in Muirhead and Jones. 62 Lawrence LJ said at 153: The order of October 24 is neither a final judgment nor a final order. By it the debtor was ordered to pay a certain sum representing the petitioner's costs of the divorce proceedings to the petitioner's solicitors on their express undertaking to lodge the sum when received by them in Court. The order was made in that form because at that time it was not known whether the petitioner would ultimately become entitled to these costs. It might turn out that any moneys paid by the debtor under the order would ultimately have to be returned to him. The order did not purport finally to determine the rights of the parties to the sum mentioned in it, and was in substance and in form a purely interlocutory order. It was contended before us on behalf of the petitioning creditors, however, that after the decree nisi had been made absolute the title of the solicitor's costs became indefeasible and that thereupon the order ought to be treated as a final order. In my opinion this contention is fallacious. It is true that if the order had been complied with the solicitors would after decree absolute probably have had no difficulty in obtaining an order for payment out to them of the amount paid into Court, and that in the present circumstances they would probably have no difficulty in obtaining a final order for payment of the costs either to the petitioner or to themselves instead of into Court. But that fact does not, in my opinion, operate to convert the order of 24 October, from an interlocutory order into a final order. 63 Sankey LJ said: I agree, and I prefer to rest my judgment on the ground that the order of October 24 was not a final order. It was an interlocutory order, a step in proceedings; it was a necessary step, but not a final step. 64 Mason v Mason [1933] P 199 concerned an order made against a husband for payment of the wife's costs to her solicitor. The solicitor sought a garnishee order in respect of unpaid costs. At 202-203 Lord Merrivale said: As to the first objection to the garnishee order nisi, what has to be determined is whether the wife's solicitors were persons who had obtained a judgment or order against the husband for recovery or payment of money – that is, were they his creditors? The order relied on is that of March 10 1933 that the husband "do within seven days pay to Messrs White and Co, the solicitors of the wife, the sum of £366.1s.4d, being with the sum of £170 still in Court and £170 already paid out the amount of the wife's costs as taxed and certified". An affirmative answer to the question I have formulated would seem to involve a conclusion that the solicitors and the wife had each obtained a judgment or order against the alleged debtor. If so, each would be a competent applicant for the garnishee order and entitled under the terms of [the Rules] upon affidavit by himself or his solicitor "to attach the moneys due to the debtor". In the everyday practice of this Division the application by the solicitor for payment by the husband of the wife's costs is taken to be the application of the wife. If this were not so, it would seem that the wife's solicitor, with no misconduct on his part as a solicitor, might be personally condemned in the costs of an unsuccessful application. In my view the person who is entitled to take garnishee proceedings is the actual creditor. A somewhat similar question arose in the Court of Appeal in 1929: In re a Debtor. … There, upon an order in divorce for payment by the co-respondent to the solicitors of the petitioner of the petitioner's costs of the suit, the solicitors proceeded in bankruptcy against the co-respondent, and it was objected that they were not creditors. The judgment of the Court did not proceed upon this ground, but in the course of the judgment of Lord Hanworth MR these words occur: "the person at whose suit proceedings are taken must be the principal, the person in whose interest those proceedings are necessary. In my opinion the petitioning husband in this case was the person who was really the principal, for whose indemnity legal proceedings were necessary. The solicitors were merely acting as a necessary part of the machinery, under which the sum enured for the benefit of the petitioner; but they were not the principals as against the debtor." This was not a decision on the present state of facts, but it appears to me to support the contention raised on the part of the husband in the present case, and my conclusion upon this matter is that the solicitors were not entitled to become applicants as of their own right … . 65 See also Shelley v Shelley (No 1) [1952] P 107. 66 In Australia this line of cases was applied by Clyne J in Re Monckton; Ex parte Robinson (1951) 15 ABC 193. At 195 his Honour said, concerning the facts of the case: The decree nisi ordered that the respondent should pay the petitioner's costs into Court and that such costs, unless otherwise ordered, should be paid out to the petitioner or her solicitor after the decree nisi had been made absolute. 67 His Honour held that the order was not a final order until the decree nisi became absolute and that, even at that time, the wife's solicitor would not become a creditor of the husband, the order for costs being by way of indemnity to the wife and not to her solicitor. Tamberlin J also applied these cases in Klewer v Walton (2004) 2 ABC(NS) 344. That judgment was affirmed on appeal (at [2004] FCAFC 284), but this aspect of the case was apparently not raised on appeal. 68 There appears to be one, very early English decision which may be to contrary effect. It is the decision of a Divisional Court (Field and Cave JJ) in Re Arkell; Ex parte Arkell (1889) 61 LT 90. However the decision seems to have turned upon the precise wording of the order, and a failure by the judgment creditor to adopt that wording in the bankruptcy notice. In In re a Debtor (supra) Lord Hanworth MR (at 152-3) and Sankey LJ (at 154) distinguished Ex parte Arkell, largely by reference to its facts. 69 Orders 4(d), (e) and (f) have the effect that the liquidator is to hold any amount payable pursuant to order 4(d) pending final order. It is difficult to distinguish that position from the positions dealt with in these cases. They demonstrate that order 4(d) is not a final judgment or order for the purposes of the Bankruptcy Act. In my view there is nothing surprising about that conclusion. As I have previously observed, the liquidator's position seems to me to be that of stakeholder, although Lord Chief Justice Cockburn's use of the terms "conduit" and "receiver" may be more appropriate. As the cases demonstrate it follows that the liquidator is not yet a judgment creditor pursuant to order 4(d), at least for the purpose of obtaining and serving a bankruptcy notice. In those circumstances there is no person with whom Mr Lewis might make arrangements for payment as contemplated by the bankruptcy notice, and no person against whom he might seek to establish a counter-claim, set-off or cross demand. 70 This line of cases was not referred to in argument. Indeed, Nortex and the liquidator suggest in their written submissions that Mr Lewis had abandoned ground 5 which asserted that there was no final judgment. In fact, in Mr Lewis's written submissions it is said that ground 5 would be resolved by the then anticipated decision of a Full Court constituted by the same Judges as constitute the Full Court in this case. That judgment was, in fact, published prior to the hearing of this appeal. At the beginning of the hearing in this case, counsel for Mr Lewis was expressly asked if he abandoned ground 5. He replied that he did not abandon it, and that it was "tied in with the others", presumably those grounds which he was pursuing. As I have previously observed, grounds 1 to 4 deal with the different capacities in which the liquidator was acting and the consequences thereof. Although counsel for Mr Lewis may not have actually demonstrated how ground 5 related to grounds 1 to 4, it seems likely that he was referring to the outstanding issue concerning the entitlement of Lamru or the liquidator to any amount payable pursuant to order 4(d). 71 In my view order 4(d) is not a final order for the purposes of ss 40(1)(g) or 41. Further, the liquidator is not, for those purposes, a judgment creditor for the amount to be paid pursuant to that order. NOTICE OF CONTENTION 72 Nortex and the liquidator assert by notice of contention that Mr Lewis may not dispute the liquidator's entitlement to enforce the orders made in the Supreme Court of New South Wales. I do not understand Mr Lewis to challenge the liquidator's right to serve a bankruptcy notice in connection with amounts payable to the Trust, although he submits that such notice must be in the name of Nortex. In re a Debtor [1952] 1 Ch 192 at 193 is authority for that proposition. Nortex is named as a creditor in the bankruptcy notice. Had the liquidator not included in the same bankruptcy notice his claim for a debt payable to him pursuant to order 4(d), the bankruptcy notice may well have been valid. My view as to its invalidity is based upon the impermissible inclusion of that claim. Even if order 4(d) creates a judgment debt due to the liquidator, that debt is not held in the same right as amounts payable to the Trust. I do not accept that the Court of Appeal suggested otherwise. ORDERS 73 It follows that the appeal must be allowed and the decision below set aside. I would order that the bankruptcy notice issued on 8 February 2012 be set aside. Mr Lewis should have his costs of the appeal and at first instance. I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett. Associate: Dated: 3 June 2013 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 954 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: PETER LAWRENCE LEWIS Appellant AND: NORTEX PTY LIMITED (IN LIQUIDATION) (ACN 002 903 362) First Respondent BRIAN RAYMOND SILVIA IN HIS CAPACITY AS LIQUIDATOR OF NORTEX PTY LIMITED (IN LIQUIDATION) Second Respondent JUDGES: DOWSETT, JAGOT, YATES JJ DATE: 3 JUNE 2013 PLACE: SYDNEY REASONS FOR JUDGMENT JAGOT AND YATES JJ: 74 This appeal concerns the validity of a bankruptcy notice which was issued on 8 February 2012 and served on the appellant on 28 February 2012. By an application filed on 19 March 2012, the appellant moved the Court to set aside the bankruptcy notice in reliance, principally, on s 30 of the Bankruptcy Act 1966 (Cth) (the Bankruptcy Act). The primary judge dismissed the application with costs. background 75 The service of the bankruptcy notice has its origin in lengthy proceedings conducted in the Supreme Court of New South Wales (the Supreme Court). 76 The proceedings were commenced by Lamru Pty Limited (Lamru) in relation to the operation of the first respondent (Nortex) and the Nortex Unit Trust. Relief was sought and obtained against the appellant and a company controlled by him called Kation Pty Limited (Kation). Nortex was the sole trustee of the Nortex Unit Trust. Kation and Lamru were the only entities that held interests in the trust. Kation held a 60% interest and Lamru held a 40% interest. Nortex's sole function was to carry on the trading activities of the Nortex Unit Trust. 77 Nortex was placed into liquidation on 3 September 1997. The second respondent is its sole liquidator (the Liquidator). The trust deed which established the Nortex Unit Trust provided that, if the trustee was a corporation that had entered into liquidation, the office of trustee would, by reason of that fact, be "determined and vacated". No new trustee of the Nortex Unit Trust was appointed after Nortex was placed in liquidation. The appellant accepts, as he did before the primary judge, that Nortex remained at least a bare trustee of the trust fund of the Nortex Unit Trust. The primary judge held, correctly, that the Liquidator's powers and functions included such powers and functions as were necessary to deal with the ongoing obligations of Nortex as trustee of the Nortex Unit Trust. the bankruptcy notice 78 The bankruptcy notice was issued in a form that identified Nortex and the Liquidator (in his capacity as liquidator of Nortex) as the "creditor". It sought payment of a total debt of $1,938,695.68. The final orders on which it was based are those that were signed and sealed by the Registrar of the Supreme Court on 17 August 2010. A copy of the sealed orders was attached to the bankruptcy notice. The total debt comprised various sums identified in the bankruptcy notice as referable to certain paragraphs of the orders. Interest was separately calculated on those sums. 79 The following orders are of particular relevance to this appeal: (3) In relation to the issue concerning the payments made by Nortex of the disputed bonuses for Mark Lewis of: (i) $58,070 in respect of the 1995 financial year to Kation, (ii) $101,626 in respect of the 1996 financial year to Mark Lewis, and (iii) $138,733.30 in respect of the 1997 financial year to Mark Lewis: (a) DECLARE that each of such payments was made in breach of trust; (b) DECLARE that Peter Lawrence Lewis ("Lewis") participated in each of the breaches of trust; (c) DECLARE that Kation participated in the breach of trust that occurred in respect of the 1995 financial year; (d) ORDER that Lewis and Kation pay to Lamru: (i) in respect of the 1995 financial year, $23,228, together with interest calculated from 30 June 1995; (ii) in respect of the 1996 financial year, $40,650, together with interest calculated from 30 June 1996; (iii) in respect of the 1997 financial year, $55,493, together with interest calculated from 30 June 1997; (e) ORDER that Lewis and Kation reconstitute the Nortex Unit Trust by paying into the trust fund: (i) in respect of the 1996 financial year, an amount of $60,976, together with interest calculated from 30 June 1996; (ii) in respect of the 1997 financial year, an amount of $83,240, together with interest calculated from 30 June 1997; (f) IN RESPECT of the calculations of interest, the amount is calculated on the sum to which it relates at the rates specified in Schedule 5 to the Uniform Civil Procedure Rules 2005 and compounded on annual rests until payment. (4) In relation to the issues as to the taking and selling of stock by Lewis: (a) DECLARE that Lewis with the knowledge and acquiescence of Kation during the 1997 financial year fraudulently took and sold stock of Nortex and did not pay or account to Nortex for the proceeds thereof; (b) DECLARE that the accounts of the trust were erroneous by reason of the taking and selling of stock: (i) by understating the value of stock at the end of the 1996 financial year by $210,000; (ii) by understating the profits for the 1997 financial year by a further $150,000; (c) ORDER that Lewis reconstitute the Nortex Trust Fund by paying into the Trust Fund sixty per cent of the amounts referred to in paragraph (b), together with interest at the rates payable under Schedule 5 of the Uniform Civil Procedure Rules 2005, calculated on 30 June in respect of each financial year, compounded at annual rests; (d) ORDER that Lewis pay to the liquidator to be placed in an interest-bearing account (if the liquidator and Lamru give written consent to the Court and to Lewis within seven days) or into the Court (if they do not) forty per cent of the amount referred to in paragraph (b), together with interest at the rates payable under Schedule 5 of the Uniform Civil Procedure Rules 2005, calculated from 30 June in respect of each financial year, compounded at annual rests; (e) RESERVE LIBERTY to Lamru to apply to the Court for payment of the amounts referred to in paragraph (d) to it on the basis of evidence that it has made full disclosure to the Australian Tax office of tax evasion by Russell William Lamb ("Lamb") and Lamru in connection with Nortex stock and has made appropriate arrangements to pay any additional tax and penalties; (f) RESERVE LIBERTY to the liquidator to apply to the Court after twelve months for release to him of the amounts in paragraph (d), in the event that no application has been made by Mr Lamb and Lamru in the meantime or in the event that such an application has been refused. 80 These orders were based on orders made by Hamilton J in the Equity Division of the Supreme Court on 23 May 2006. The Court of Appeal of New South Wales varied orders 3 and 4, as originally made by Hamilton J, on 21 December 2009. So far as relevant for present purposes, the Court of Appeal deleted or set aside some subparagraphs of orders 3 and 4 and substituted them with other orders. The orders in paragraphs 3(d), (e) and (f) and paragraphs 4(b) to (f) quoted above are the substituted orders made by the Court of Appeal. 81 It is convenient at this juncture to compare the form of the orders made in paragraphs 3(e) and 4(c) with the form of the order in paragraph 4(d). The orders in paragraphs 3(e) and 4(c) require the appellant to "reconstitute the Nortex Unit Trust by paying into the Trust Fund" a described sum of money. On the other hand, the order in paragraph 4(d) requires the appellant to pay a described sum of money to the Liquidator. This difference was relied upon by the appellant as the primary plank of his application to set aside the bankruptcy notice. 82 Nortex and the Liquidator approached the Court of Appeal to vary the orders in paragraph 3(e) and 4(c) by inserting the words "to the liquidator for payment" after the words "reconstitute the Nortex Unit Trust by paying". The Court of Appeal declined to vary the orders in the way sought: Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (in liq) (No 5) [2010] NSWCA 294. The reasons given by the Court of Appeal for refusing to make the variation should be noted. 83 First, the Court of Appeal noted the semantic difference between the orders in paragraphs 3(e) and 4(d). However, their Honours (at [15]) held: It is true that order 4(d) required that "Lewis pay to the liquidator" as the trustee of the Nortex trust fund, specified amounts. Whilst the language differs, the effect of each provision is the same. There is no need to vary the language of order 3(e). 84 Secondly, their Honours referred to evidence before them of a conversation in which it had been asserted on behalf of the appellant and Kation that "[a]s neither the Liquidator nor Nortex was the trustee of the Nortex Unit Trust they would not be entitled to enforce the Court's orders against Mr Lewis or Kation". 85 Their Honours (at [17] and [18]) dealt with that contention in the following way: There is no indication in the earlier conversation that the semantic distinction between orders 3(e), 4(c) and 4(d) was likely to be relied on to justify not reconstituting the trust fund. The later conversation does however raise that question. As the trustee of the fund is Nortex and Nortex is under the control of the liquidator, the effect of the order proposed and the order as made is one and the same. The plain intent of the orders was that they be enforceable by Nortex and the liquidator. This makes it unnecessary to consider the operation of the slip rule. Any party seeking to resist payment on the basis foreshadowed by Mr Ryckmans would be at serious risk of breaching his or its obligations under s 56 of the Civil Procedure Act 2005 (NSW). Any counsel who gave advice to that effect would be at serious risk of breaching his or her obligations under s 56(4). 86 A further matter to note about the orders is that the payments to be made reflected the relative proportions in which Kation and Lamru held their interests in the Nortex Unit Trust. 87 Finally, the orders provided for a special regime in relation to pre-judgment and post-judgment interest. Nortex and the Liquidator attached a detailed schedule of interest calculations to the bankruptcy notice. It has not been suggested that those calculations do not reflect the orders made or are in any way inaccurate. The appeal 88 The notice of appeal contains ten grounds. At the commencement of oral argument, counsel for the appellant informed the Court that grounds 6, 7 and 8 of the notice of appeal were not pressed. In written submissions filed at an earlier time, counsel for the appellant had noted that ground 5 would be resolved in light of the decision in Lewis v Lamru Pty Ltd (2012) 207 FCR 1. That decision was delivered before the hearing of this appeal, the result being contrary to the arguments of the appellant. Counsel for the appellant, when asked during the hearing, denied that ground 5 was also abandoned, saying that it "tied in with" the other grounds and he would explain why. No explanation of how ground 5 could survive that decision became apparent. Accordingly, we proceed on the basis that the earlier decision resolves that ground against the appellant. The remaining grounds of appeal were directed to the appellant's principal contention before the primary judge which was that, although the Bankruptcy Act permits more than one final judgment order to be relied upon to found a bankruptcy notice, each of the judgments or orders must be "on the same account". 89 The appellant submitted that a bankruptcy notice issued by two named creditors breaches an essential condition of the Bankruptcy Act. He submitted that any proceeding to enforce the orders in paragraphs 3(e) and 4(c) may be brought by the Liquidator in the name of Nortex, whereas any proceeding to enforce the order in paragraph 4(d) must be brought by the Liquidator in his own name. Thus, he submitted, the claims the subject of the bankruptcy notice were claims on "separate accounts". As such, there was no "joint obligation" payable to the respondents contemplated by the provisions of ss 40(1)(g) or 41 of the Bankruptcy Act, to the extent that reliance could be placed on more than one judgment. He submitted that Nortex and the Liquidator did not constitute a "creditor" for the purposes of s 40(1)(g). They rely on different orders. Moreover, they rely on those different orders in different capacities. Having been issued by two named creditors with claims on separate accounts, the bankruptcy notice was issued in breach of an essential condition of the Bankruptcy Act. 90 The principle on which the appellant relies is one articulated in DJ Sweeney Holdings Pty Ltd v McLeod (2011) 253 FLR 1. In that case, the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) held that a bankruptcy notice was bad – and could not ground a creditor's petition – where the notice was based on separate debts owing to separate creditors. The court found the position to be otherwise in the case of several joint creditors named in the one bankruptcy notice. 91 In the present case, the primary judge was not asked to examine the correctness of that principle or the decision in Sweeney itself. Nevertheless, in his Honour's analysis, the final orders on which the bankruptcy notice was based required all payments to be made to or through the Liquidator acting in his capacity as liquidator of Nortex. At [14], his Honour said: … The fact that some payments are to be made directly into the Trust Fund and others are to be held in a separate account (at least for an interim period) makes no difference to the capacity in which the liquidator is to receive the payments and the capacity in which he is to act thereafter. The terms of the orders make that sufficiently clear. Attention to the source of the liquidator's authority confirms it. 92 In this appeal, neither the Liquidator nor Nortex challenged the correctness of the decision in Sweeney. Rather, they contended that the relevant orders did not involve payment on separate accounts. They supported the reasoning and conclusion of the primary judge on that question. Consideration 93 The primary judge was correct in the conclusion to which he came. 94 It is clear that the orders in paragraphs 3(e) and 4(c) require payments into the trust fund. At the time that the bankruptcy notice was issued, the only person to whom the payments required by these orders could have been made was the trustee of the Nortex Unit Trust. The trustee was Nortex. However, the affairs of Nortex in liquidation were controlled by the Liquidator. In his capacity as liquidator of Nortex, the Liquidator was empowered by s 477(2)(m) of the Corporations Act 2001 (Cth) to do all acts in the name of and on behalf of Nortex and to do all such other things as are necessary for winding up the affairs of the company, including distributing its property. The "affairs" and "property" to which that section refers would include the affairs of Nortex in its capacity as trustee of the Nortex Unit Trust and the property that it holds as trustee. It follows that the only person who could have required the payments to be made was the Liquidator acting in his capacity as liquidator of Nortex. 95 It is also clear that the sums to be paid under the order made in paragraph 4(d) were to be received by the Liquidator as part of the trust fund, albeit that they represented money to be applied in accordance with the orders made by the Supreme Court. The Liquidator was required to place that money into an interest-bearing account. The order provides for an alternative means of payment (namely, into court). It is not suggested that the alternative means of payment was engaged in this case. The fact that the Liquidator was required to place the money into an interest-bearing account does not alter the fact that that debt was one owed to the Liquidator in his capacity as liquidator of Nortex in its capacity as trustee, and that the money so received constituted trust funds. 96 At [19], the primary judge observed that the order made in paragraph 4(d) represented a way of addressing Lamru's entitlement as a beneficiary under the Nortex Unit Trust, with which the appellant had interfered. His Honour continued: … Orders directing or resulting in payment to Lamru are no less orders in vindication of the interests held in the Nortex Unit Trust, and a discharge of the continuing obligations of its trustee (Nortex) and of the trustee's liquidator, than are Orders 3(e), 3(f) and 4(c). 97 That observation is, with respect, a correct characterisation of the orders and of the nature of the payments required to be made under them. 98 No different conclusion is required because the orders made in paragraphs 4(e) and (f) contemplated that various applications might be made to the Supreme Court in relation to the sums required to be paid under paragraph 4(d). At the time of the bankruptcy notice, all payments required to be made by the relevant orders were to be made to and received by the Liquidator as trust funds to be applied by the Liquidator in the liquidation of Nortex. The sums required to be paid under paragraph 4(d) of the orders did not lose that identity simply because applications could be made as to how, ultimately, they might be required to be disbursed. 99 As the primary judge said (at [17]): … There was no suggestion that the liquidator could do so in any capacity other than as the liquidator of Nortex, as the continuing trustee of the Nortex Unit Trust. The liquidator also has sufficient standing to enforce the obligation to make those payments. Any such action would be taken as the liquidator of Nortex. 100 As to the bankruptcy notice generally, the primary judge concluded (at [21]): … [T]he claim represented by the bankruptcy notice is a claim by the same interest in all relevant respects. It is a claim for payment due to make good unlawful appropriations for the Nortex Unit Trust. The claim may be made by the liquidator, acting in that capacity and in the name of Nortex (in liquidation). It follows that the principal argument of the applicant should not be accepted. 101 No error has been demonstrated in his Honour's reasoning or conclusion. It follows that the appellant's principal contention must be rejected. Disposition 102 The appeal should be dismissed with costs. Nortex and the Liquidator filed, with leave, a notice of contention. Given the conclusion reached above, it is not necessary to deal with that matter. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jagot and Yates. Associate: Dated: 3 June 2013	20,051
federal_court_of_australia:fca/single/2009/2009fca1487	decision	commonwealth	federal_court_of_australia	text/html	2009-12-11 00:00:00	Repacholi Aviation Pty Ltd (ACN 009 054 022) v Civil Aviation Safety Authority [2009] FCA 1487	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2009/2009fca1487	2024-09-13T22:52:09.541216+10:00	FEDERAL COURT OF AUSTRALIA Repacholi Aviation Pty Ltd (ACN 009 054 022) v Civil Aviation Safety Authority [2009] FCA 1487 PRACTICE AND PROCEDURE – application for dismissal of proceedings under s 31A of the Federal Court of Australia Act 1976 (Cth) – alternatively for the statement of claim to be struck out – whether reasonable cause of action disclosed – whether Court has jurisdiction – whether matter 'arising under any laws made by the Parliament' – whether s 47A of the Limitation Act 1935 (WA) applies – whether causes of action statute barred TORTS – proceedings against Civil Aviation Safety Authority (CASA) and officers of CASA – alleged negligence in performance of statutory duties – existence and scope of duty of care – whether statutory duty of care owed by CASA or its officers – whether common law duty of care owed by CASA or its officers not to cause economic loss - whether misfeasance by officers of CASA – whether private right of damages available to applicants Administrative Appeals Tribunal Act 1975 (Cth) ss 41, 43(1)(c)(ii), 43(6) Administrative Decisions (Judicial Review) Act 1977 (Cth) s 9 Civil Aviation Act 1988 (Cth) ss 3A, 8, 9, 9(1), 9A(1), 27(1), 27(2), 27(7), 27(9), 28BA-28BF, 28BA(3), 28BB(1), 28BB(2), 84B Commonwealth Authorities and Companies Act 1997 (Cth) ss 23, 84C Federal Court of Australia 1976 (Cth) s 31A Judiciary Act 1903 (Cth) ss 38(e), 39B(1A)(c), 64, 79 Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth) s 4 Limitation Act 1935 (WA) s 47A Federal Court Rules O 20 Civil Aviation Regulations 1988 regs 157, 166, 268, 268(1), 268(2), 268(3), 269, 269(1), 269(1)(c), 269(1)(d), 269(3) Civil Aviation Safety Regulations 1998 regs 67.230, 67.230(1)(a), 67.230(1)(b), 67.230(1)(e), 67.240(1), 67.260 Alcoa of Australia Ltd v State Energy Commission (WA) (1995) 17 WAR 112 Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136 Bailey v Minister for Education [2000] WASC 50 British American Tobacco Australia Ltd v Western Australia v (2003) 217 CLR 30 Buck v Bavone (1975) 135 CLR 110 Calveley v Chief Constable of Merseyside [1989] 1 AC 1228 Cannon v Tahche (2002) 5 VR 317 Carioca Pty Ltd v Water Authority of WA (Supreme Court, Master Bredmeyer, 11 April 1995, Supreme Court Library Number 950168) Civil Aviation Safety Authority v Coburn (1996) 24 AAR 389 Commonwealth v Griffiths(2007) 70 NSWLR 268 Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 Gimson v Victorian WorkCover Authority [1995] 1 VR 209 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 Jones v Department of Employment [1989] QB 1 LNC Industries v BMW (Aust) Pty Ltd (1983) 151 CLR 575 Macteldir Pty Limited v Dimovski [2005] FCA 1528 Maguire v Simpson (1977) 139 CLR 362 Matheson v Commissioner of Main Roads (2001) 25 WAR 269 Minister for Education v Bailey (2000) 23 WAR 149 Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 Northern Territory v Mengel (1995) 185 CLR 307 Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637 Pedersen v Young (1964) 110 CLR 162 Posner v Roberts [1986] WAR 1 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Pyrenees Shire Council v Day (1998) 192 CLR 330 R v YZ (1999) 162 ALR 265 Renmark Hotel Inc. v Federal Commissioner of Taxation (1949) 79 CLR 10 Repacholi v Civil Aviation Safety Authority [2002] AATA 196 Scott v Pedler [2004] FCAFC 67 Scott v Secretary, Department of Social Security (2000) 65 ALD 79 Skyways Pty Ltd (In Liq) v Commonwealth (1984) 57 ALR 657 Smith v Australian National Line (unreported, Supreme Court of Western Australia, 27 August 1996) Smith v Australian National Line Ltd (1998) 159 ALR 431 State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131 Stuart v Kirkland-Veenstra (2009) 237 CLR 215 Sullivan v Moody (2001) 207 CLR 562 Sutherland Shire Council v Heyman (1985) 157 CLR 424 Thompson v Randwick Corporation (1950) 81 CLR 87 Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220 Trade Practices Commission v Manfal Pty Ltd (No 2) (1990) 27 FCR 22 Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898 Westminster Corporation v London and North Western Railway Co [1905] AC 426 X v South Australia (No 3) [2007] SASC 125 REPACHOLI AVIATION PTY LTD ACN 009 054 022 and GERALD KEITH REPACHOLI v CIVIL AVIATION SAFETY AUTHORITY and TERRY FARQUHARSON WAD 51 of 2009 MCKERRACHER J 11 DECEMBER 2009 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 51 of 2009 BETWEEN: REPACHOLI AVIATION PTY LTD (ACN 009 054 022) First Applicant GERALD KEITH REPACHOLI Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERRY FARQUHARSON Second Respondent JUDGE: MCKERRACHER J DATE OF ORDER: 11 DECEMBER 2009 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The amended statement of claim be struck out. 2. The minute of proposed further amended statement of claim be disallowed. 3. The applicants have six weeks to file and serve a further amended statement of claim reflecting these reasons, the filing and service of which is without prejudice to the respondents' right within 28 days to challenge that pleading. 4. The applicants are to pay the respondents' costs of the motions in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. INTRODUCTION – THE MOTIONS......................................................................... [1] RELEVANT CONSIDERATIONS FOR SUMMARY DISMISSAL........................ [12] THE HISTORY.............................................................................................................. [15] STATUTORY FRAMEWORK..................................................................................... [32] Suspension and Cancellation of Pilot Licences......................................................... [38] ORIGINAL PROCEEDINGS....................................................................................... [43] EVIDENCE IN SUPPORT OF THE PROPOSED PLEADING................................. [46] THE CLAIMS – IN DETAIL........................................................................................ [51] The First Notice.......................................................................................................... [77] Relevance of the AAT proceedings........................................................................... [85] Approval of Chief Pilot............................................................................................... [91] Refusal to Reinstate Charter Operations – and Bad Faith Generally.................... [94] Other Alleged Breaches............................................................................................. [98] Suspension of Mr Repacholi's Medical Certificates................................................ [99] JURISDICTION............................................................................................................ [108] LIMITATION ISSUES.................................................................................................. [117] DUTY OF CARE – PURE ECONOMIC LOSS........................................................... [143] BREACH OF STATUTORY DUTY.............................................................................. [153] MISFEASANCE IN PUBLIC OFFICE........................................................................ [163] CONCLUSION............................................................................................................... [169] IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 51 of 2009 BETWEEN: REPACHOLI AVIATION PTY LTD (ACN 009 054 022) First Applicant GERALD KEITH REPACHOLI Second Applicant AND: CIVIL AVIATION SAFETY AUTHORITY First Respondent TERRY FARQUHARSON Second Respondent JUDGE: MCKERRACHER J DATE: 11 DECEMBER 2009 PLACE: PERTH REASONS FOR JUDGMENT INTRODUCTION – THE MOTIONS 1 For several years, relationships between the applicants and the respondents have been strained. For a variety of reasons, the first respondent (CASA) has taken a significant number of disciplinary measures against the applicants. The applicants in turn have challenged those decisions on several occasions - and with some success. As a result, the applicants wish to pursue somewhat novel claims in damages against CASA and certain of its officers seemingly for loss sustained in the applicants' business activities, that is, economic loss. 2 The applicants move to amend their statement of claim. At present, the applicants rely upon an amended statement of claim against CASA and the second respondent (Mr Farquharson). They wish to join four individuals as respondents. Mr Farquharson and the other four individuals identified in the minute of the proposed further amended statement of claim were (at relevant times) officers of CASA. 3 The applicants seek to pursue against the respondents and/or the proposed respondents claims in damages in a variety of proposed causes of action. The applicants contend that CASA has breached the Civil Aviation Act 1988 (Cth) (CAA) and the Civil Aviation Regulations 1988 (CAR) in several ways. The consequence of those breaches has been, it is argued, that the respondents are liable in damages to the applicants for breach of statutory duty, breach of a duty of care and in the case of the individual or proposed individual respondents, for misfeasance in office. 4 Leave to amend is opposed. Further, CASA and Mr Farquharson move for orders pursuant to O 20 of the Federal Court Rules (FCR) and s 31A of the Federal Court of Australia 1976 (Cth) (FCA) for judgment in relation to all or any of the applicants' claims, alternatively, the striking out of the existing amended statement of claim. 5 On numerous bases, the respondents contend that the existing and proposed causes of action which the applicants seek to pursue are so untenable that the proceeding should be dismissed forthwith. 6 Broadly speaking, the applicants plead that in exercising its powers and functions CASA has a common law duty of care which requires that it comply with the legislative and regulatory scheme so as to ensure its actions do not cause economic harm to entities whose conduct it regulates (including the applicants). The applicants argue that CASA has breached that duty in consequence of which the applicants have sustained actionable loss and damage. 7 Secondly, the applicants argue that CASA owed them a statutory duty to exercise its powers only in accordance with the provisions of the civil aviation legislation. It is argued that CASA breached that duty in consequence of which the applicants have sustained recoverable damage. 8 Thirdly, it is asserted in a manner which will require some examination that there has been misfeasance in office by the present and proposed individual respondents against whom the applicants seek to advance such a claim. 9 CASA contends that each one of the claims sought to be made by the applicants is dependent upon a determination that particular administrative decisions made under the civil aviation legislation (such as granting or refusing to grant or cancelling or suspending a licence, authorisation or certificate) was invalid and/or ultra vires. The applicants accept that this is the nature of the claim which is pursued. However they contend that even if the breaches were not established, but a failure to act in good faith was established, that they would be entitled to relief. 10 In either event, CASA rejects any assertion that there was any statutory breach and, in particular, denies any suggestion of having misconstrued or misapplied relevant provisions. 11 As a general observation in relation to this litigation, despite a significant number of attempts to formulate a statement of claim and much activity opposing any claim, both the claim and the opposition to it are not sufficiently crystallised to enable any sound conclusions to be formed as to the survival of any part of it. The claim as presently proposed can not survive but equally it can not be said, at present, that the entirety of the claim should be dismissed. Accordingly a limited opportunity to re-plead will be allowed but unless and until adequate and proper material facts can be pleaded, substantial parts of the claim will not be permitted. RELEVANT CONSIDERATIONS FOR SUMMARY DISMISSAL 12 The primary basis for pursuit of the motion for dismissal of the proceeding is pursuant to s 31A FCA. 13 That section relevantly provides as follows: 31A Summary judgment … (2) The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. 14 There have been numerous decisions dealing with the proper approach on a motion of this nature. A convenient collection of the relevant principles is set out by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [5]-[6] where his Honour said: 5 Section 31A lowers the bar for obtaining summary judgment: White Industries Australia Ltd v Commissioner of Taxation (2007) 160 FCR 298. The second reading speech of the Migration Litigation Reform Bill 2005 which introduced s 31A stated that its purpose was to strengthen "the power of the courts to deal with unmeritorious matters by broadening the grounds on which federal courts can summarily dispose of unsustainable cases": Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [45]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 at [124]. 6 Success under s 31A does not require a demonstration that the case is hopeless or bound to fail. The following principles are of general application to an application under s 31A: (a) the Court must be very cautious not to do a party an injustice by summarily dismissing proceedings; (b) the Court ought not dismiss a claim based on a predictive assessment of prospects, where it is possible that if the claim went to trial, it may succeed; (c) in a case where evidence can give colour and content to allegations, and where questions of fact and degree are important, the Court should be more reluctant to dismiss a proceeding on the face of a pleading; (d) it is not Parliament's intention to require the Court to engage in lengthy and elaborate trials on an interlocutory basis for the purposes of determining whether or not a proceeding has no reasonable prospects of success. It may be necessary for the opposing party to provide no more than an outline of evidence, sufficient to show that there is a genuine dispute, to prevent the summary application becoming a trial; (e) if there is a real issue of fact or law to be decided, and the rights of the parties depend upon it, it is obviously appropriate that the matter goes to trial. It cannot be said that where there is a real factual dispute and that factual dispute must be resolved to determine whether the claim succeeds that there is 'no reasonable prospect of success'; (g) it ought not be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an inquiry as to their merit should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial; (h) evidence of an ambivalent character will usually be sufficient to amount to reasonable prospects; (i) in determining if there are real issues of fact in issue so as to preclude summary judgment the courts must draw all reasonable inferences in favour of the non-moving party. See Genovese v BGC Construction Pty Ltd [2007] FCA 923 at [5]; Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (2006) 70 IPR 146 at [42]-[48]; Hicks v Ruddock (2007) 156 FCR 574 at [13]; Bond v Barry (2007) 73 IPR 490 at [46]; Commonwealth Bank of Australia v ACN 000 247 601 Pty Ltd (in Liq) (formerly Stanley Thompson Valuers Pty Ltd) [2006] FCA 1416 at [30]; Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [21]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60. THE HISTORY 15 The facts which follow emerge from affidavit evidence relied upon by the parties as well as the proposed amended pleading. 16 The second applicant (Mr Repacholi) is a Director of the first applicant (Repacholi Aviation). Mr Repacholi held a commercial and private pilot licence and prior to March 2002 was the Chief Pilot of Repacholi Aviation. Repacholi Aviation prior to 2002 held an Air Operator's Certificate (AOC) which authorised it to conduct charter operations throughout Australia. 17 On 5 March 2002, CASA served a notice in writing pursuant to CAR 268(1) suspending the pilot's licences held by Mr Repacholi, pending investigation. On the following day, Mr Repacholi applied to the Administrative Appeals Tribunal (the AAT) for a stay of CASA's decision. On 14 and 15 March 2002, that application was heard and refused (Repacholi v Civil Aviation Safety Authority [2002] AATA 196). 18 Shortly after, in March 2002, Repacholi Aviation submitted to CASA an 'Application for approval of Appointment' of Mr Frederick Darrel Hampton as Chief Pilot of Repacholi Aviation. Mr Hampton, however, was assessed by CASA as being 'unsatisfactory for charter ops'. Nevertheless, he was assessed as being suitable as a Chief Pilot in relation to agricultural operations. An AOC was issued to Repacholi Aviation authorising aerial work operations only with the approval of Mr Hampton as Chief Pilot of Repacholi Aviation. This occurred on 3 April 2002. 19 In the meantime, on 28 March 2002, CASA issued a notice to Mr Repacholi allowing him 28 days within which 'to show cause' why his licences should not be varied, suspended or cancelled on the basis of the facts and circumstances set out in the notice. It is unnecessary for present purposes to recite the content of that notice. By it, CASA's General Manager, General Aviation Operations (Mr Ogilvie) (a proposed third respondent) also notified Mr Repacholi of the operation of CAR 268(3). He advised that the effect of that provision was that the licences held by Mr Repacholi remain suspended during the 'show cause' period. 20 There is a debate about whether or not at this time objection was taken or voiced by Mr Repacholi to the terms of the 'show cause' notice. What is common ground, however, is that on 6 May 2002, Mr Repacholi through his solicitor responded to the notice and requested CASA to 'lift the suspension'. 21 By a further notice of 19 June 2002, however, CASA notified Mr Repacholi that grounds existed which justified cancellation of his pilot licences in accordance with CAR 269. In doing so, CASA asserted that it had carefully considered all the evidence in the matter including Mr Repacholi's written response to the show cause notice. 22 There is a dispute as to whether or not there was such careful consideration. 23 Mr Repacholi then sought review of that decision to cancel his licences. Over a five day period in September and November 2002 the AAT heard evidence and argument on the review and delivered a decision on 18 June 2003. 24 The AAT concluded that notwithstanding contravention of reg 157 and reg 166 of the CAR in January 2002, Mr Repacholi's pilot licences should not be cancelled pursuant to CAR 269. 25 There were then communications between the applicants and CASA. On 14 November 2003, Repacholi Aviation sought CASA's approval of the appointment of Mr Repacholi as its Chief Pilot. The parties agreed that an assessment of Mr Repacholi should be undertaken by the Vic/Tas office of CASA at Moorabbin in Victoria. On 4 February 2004, CASA wrote to Repacholi Aviation advising of its refusal to approve Mr Repacholi as the appointed Chief Pilot of Repacholi Aviation. 26 Repacholi Aviation then pursued a further application for review of CASA's latest decision. This application was heard before the AAT over four days in December 2005. The AAT delivered its decision on 30 June 2006 setting aside CASA's decision and remitting the matter to CASA for reconsideration in accordance with s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). 27 That application before the AAT was filed on 10 February 2004. Well before it was heard, on 23 September 2004, CASA by its Principal Medical Officer gave a direction to Mr Repacholi under reg 67.230 of the Civil Aviation Safety Regulations 1998 (CASR) to authorise disclosure of medical information to CASA. 28 Mr Repacholi refused to comply with the direction. Correspondence ensued. CASA suspended Mr Repacholi's medical certificates pursuant to the power contained in CASR 67.240(1) by a notice dated 27 October 2004. Two days later, by letter dated 29 October 2004, Mr Repacholi through his solicitors informed CASA that an application for an injunction was being pursued in the Victoria Registry of this Court. Negotiations ensued between the solicitors for the respective parties on that day. 29 CASA then temporarily withdrew the suspension of Mr Repacholi's medical certificates until 4 November 2004 so as to enable him to complete some urgent crop spaying in rural Western Australia. In the interim, the motion for an injunction came before North J. His Honour granted an interim restraining order adjourning the application until 5 November 2004 'for the purpose of the respondent providing … evidence as to the serious affect (sic-effect) on aviation safety resulting from the psychiatric treatment' of Mr Repacholi. 30 On the following day (4 November 2004) CASA revoked the suspension of Mr Repacholi's medical certificates. The Court, by consent, made orders setting aside the interim injunction and dismissing the proceedings. 31 Subsequently, there were several requests made by or on behalf of Mr Repacholi for Repacholi Aviation's AOC to be reinstated 'back to the original status'. Precisely what happened in relation to each such request is not presently clear but ultimately, in any event, there was no complete reinstatement. The only application expressly or formally sought on behalf of Repacholi Aviation was to add a Flying School authorisation (for agricultural operations only) to the AOC of Repacholi Aviation. STATUTORY FRAMEWORK 32 There is pursuant to the CAA a statutory scheme focusing on the safety of civil aviation. By s 3A of the CAA the main object of the Act is described as being that of establishing a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents. CASA has the function of conducting the safety regulation of the CAA and the means by which it does so include the issuing of certificates, licences, registrations and permits (s 9(1)). It is also empowered to issue various authorisations under the CAA. Those include various kinds of pilot licences issued under Pt 5 of the CAR. It also issues various kinds of AOCs. These are provided for under Pt III Div 2 of the CAA. 33 There is little doubt that the safety of air navigation is the most important consideration under the CAA (see s 9A(1)). This is also reflected under subsidiary provisions. 34 The applicants were involved in flying for commercial purposes. By s 27(1) of the CAA, CASA is entitled to issue AOCs for the purpose of its functions under the Act. An AOC is required to fly or operate for prescribed commercial purposes (s 27(2) and (9)). It is for CASA to determine the term of an AOC (s 27(7)). 35 Section 28BA to s 28BF CAA at materials times provided: 28BA General conditions (1) An AOC has effect subject to the following conditions: (a) the condition that sections 28BD, 28BE, 28BF, 28BG and 28BH are complied with; (aa) the conditions subject to which the AOC has effect because of section 28BAA; (b) any conditions specified in the regulations or Civil Aviation Orders; (c) any conditions imposed by CASA under section 28BB. (2) If a condition of an AOC referred to in paragraph (1)(a) or (aa) is breached, the AOC continues, despite the breach, to authorise flights or operations to which the condition relates. (2A) If a condition of an AOC referred to in paragraph (1)(b) or (1)(c) is breached, the AOC does not authorise any flight or operation to which the condition relates while the breach continues. (3) If a condition of an AOC is breached, CASA may, by written notice given to its holder, suspend or cancel: (a) the AOC; or (b) any specified authorisation contained in the AOC; whether or not the breach is continuing. (4) Before making a decision under subsection (3), CASA must: (a) give the holder of the AOC a notice setting out the reasons why CASA is considering making the decision; and (b) allow the holder of the AOC to show cause, within such reasonable time as CASA specifies in the notice, why CASA should not make the decision. (5) If CASA makes a decision under subsection (3), the notice of its decision must include a summary of section 31A. However, a failure to include such a summary does not affect the validity of the notice. 28BAA Certain conditions for grant of AOC also have effect as ongoing conditions on the AOC An AOC has effect subject to the condition that CASA remains satisfied as mentioned in paragraphs 28(1)(a) and (b) in relation to the operations that are covered by the AOC. 28BB CASA may impose and vary AOC conditions (1) CASA may: (a) at the time of issuing an AOC, impose conditions by specifying them in the AOC; and (b) at any time after the issue of an AOC, give a written notice to the holder of the AOC, imposing conditions, or further conditions, on the AOC. (2) CASA may at any time give a written notice to the holder of an AOC, varying any of the conditions of the AOC that were imposed by CASA. A variation may be made: (a) on the application of the holder of an AOC; or (b) on CASA's own initiative. (3) An application for variation must: (a) be in writing; and (b) set out the variation sought and the reasons why it is sought. (4) Section 27AD applies to an application under this section in the same way that section 27AD applies to an application for an AOC. 28BC Limits on CASA's powers in relation to suspension, cancellation and AOC conditions (1) CASA must not: (a) impose or vary a condition of an AOC that: (i) is not a mixed authority AOC; and (ii) authorises the operation of a foreign registered aircraft on regulated domestic flights; or (b) impose or vary a condition relating to the authorisation of the operation of a foreign registered aircraft on regulated domestic flights that is contained in a mixed authority AOC; except to ensure that the aircraft's operation, maintenance and airworthiness are of a standard that CASA considers necessary in the interests of the safety of air navigation. (1A) CASA must not suspend or cancel an AOC of the kind to which paragraph (1)(a) applies or an authorisation of the kind to which paragraph (1)(b) applies except: (a) to ensure that the aircraft's operation, maintenance and airworthiness are of a standard that CASA considers necessary in the interests of the safety of air navigation; or (b) as provided by subsection (1B). (1B) Subject to subsection (1C), CASA may suspend or cancel an AOC of the kind to which paragraph (1)(a) applies or an authorisation to which paragraph (1)(b) applies if the condition of the AOC or the condition relating to the authorisation, as the case may be, that section 28BI is complied with has been breached. (1C) To the extent that an AOC, or an authorisation contained in a mixed authority AOC, authorises carriage by air that is not covered by Part II, III or IV of the Civil Aviation (Carriers' Liability) Act 1959, CASA does not have power to suspend or cancel the AOC or authorisation because of a breach of the condition that section 28BI is complied with unless the holder of the AOC is: (a) a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (b) a foreign corporation within the meaning of that paragraph; or (c) a corporation formed in a Territory. (2) CASA must not: (a) impose or vary a condition of an AOC that does not authorise the operation of a foreign registered aircraft on regulated domestic flights; or (b) impose or vary a condition of a mixed authority AOC relating to any authorisation of an operation (other than the operation of a foreign registered aircraft on regulated domestic flights) that is contained in a mixed authority AOC; except to ensure compliance with the provisions of this Act, the regulations and the Civil Aviation Orders, relating to safety. (2A) CASA must not suspend or cancel an AOC of the kind to which paragraph (2)(a) applies or an authorisation of the kind to which paragraph (2)(b) applies except: (a) to ensure compliance with the provisions of this Act, the regulations, and the Civil Aviation Orders, relating to safety; or (b) as provided by subsection (2B). (2B) Subject to subsection (2C), CASA may suspend or cancel an AOC of the kind to which paragraph (2)(a) applies or an authorisation to which paragraph (2)(b) applies if the condition of the AOC or the condition relating to the authorisation, as the case may be, that section 28BI is complied with has been breached. (2C) To the extent that an AOC, or an authorisation contained in a mixed authority AOC, authorises carriage by air that is not covered by Part II, III or IV of the Civil Aviation (Carriers' Liability) Act 1959, CASA does not have power to suspend or cancel the AOC or authorisation because of a breach of the condition that section 28BI is complied with unless the holder of the AOC is: (a) a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or (b) a foreign corporation within the meaning of that paragraph; or (c) a corporation formed in a Territory. (3) The financial position of the holder of the AOC is one of the matters that CASA may take into account in forming a view for the purposes of subsection (1), paragraph (1A)(a), subsection (2) and paragraph (2A)(a). (4) In this section: mixed authority AOC means an AOC authorising: (a) the operation of a foreign registered aircraft on regulated domestic flights; and (b) other operations. 28BD Compliance with civil aviation law The holder of an AOC must comply with all requirements of this Act, the regulations and the Civil Aviation Orders that apply to the holder. 28BE Duty to exercise care and diligence (1) The holder of an AOC must at all times take all reasonable steps to ensure that every activity covered by the AOC, and everything done in connection with such an activity, is done with a reasonable degree of care and diligence. (2) If the holder is a body having legal personality, each of its directors must also take the steps specified in subsection (1). (3) It is evidence of a failure by a body and its directors to comply with this section if an act covered by this section is done without a reasonable degree of care and diligence mainly because of: (a) inadequate corporate management, control or supervision of the conduct of any of the body's directors, servants or agents; or (b) failure to provide adequate systems for communicating relevant information to relevant people in the body. (4) No action lies, for damages or compensation, in respect of a contravention of this section. (5) This section does not affect any duty imposed by, or under, any other law of the Commonwealth, or of a State or Territory, or under the common law. 28BF Organisation, personnel etc. (1) The holder of an AOC must at all times maintain an appropriate organisation, with a sufficient number of appropriately qualified personnel and a sound and effective management structure, having regard to the nature of the operations covered by the AOC. (2) The holder must establish and maintain any supervisory positions in the organisation, or in any training and checking organisation established as part of it, that CASA directs, having regard to the nature of the operations covered by the AOC. 36 A position known as Chief Pilot is required to be established under the CAA and Civil Aviation Order 82.0 (CAO 82.0) by the holder of an AOC. The AOC holder must comply with the provisions of Appendix 1 to CAO 82.0, the effect of which is that before a person is appointed as a Chief Pilot the appointment must be approved in writing by CASA 'after application in writing by the operator'. 37 As indicated by these provisions, CASA has wide powers including the power to vary the conditions of an AOC at any time (s 28BB(1) and (2)). Further, and pertinently to the facts described below, CASA may by written notice given to the holder of the AOC suspend or cancel the AOC if a condition of that AOC has been breached (s 28BA(3) of the CAA). Suspension and Cancellation of Pilot Licences 38 In addition to those statutory powers, CASA may by notice in writing vary, suspend or cancel a licence, certificate or authority issued under the legislation if it is satisfied that one or more of the prescribed grounds exists (CAR 269(1)). Included amongst those grounds is the ground that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft (CAR 269(1)(c)). Similarly, if the holder 'is not a fit and proper person' to hold the licence, certificate or authority, the power under CAR 269(1) may be exercised (CAR 269(1)(d)). However (and relevantly to the present situation), before any action is taken by CASA under those provisions, it must issue a notice to the holder of the relevant licence, certificate or authority permitting the person time within which to 'show cause' why regulatory action as foreshadowed should not be taken (CAR 269(3)). 39 One of the provisions falling for consideration in these proceedings is the preceding regulation, CAR 268 which as at 2002 permitted CASA by notice in writing served on the holder of the licence, certificate or authority to suspend that licence, certificate or authority where CASA had reason to believe that facts or circumstances existed which would justify regulatory action and where 'there may be a serious risk to air safety if the licence, certificate or authority were not suspended'. CAR 268 deals with suspension rather than the possibility of cancellation. However, at the same time, it does not contain the requirement in CAR 269(3), to first issue a 'show cause' notice. CAR 268 appears to be directed to the taking of prompt action in appropriate circumstances when it has 'reason to believe' there may be risk to air navigation safety. CAR 269 appears to apply when it is 'satisfied' (from whatever source of knowledge) that problems exist. 40 For an appreciation of the arguments in relation to this topic, it is necessary to set out the provisions of CAR 268 and CAR 269 as at March-June 2002. Those provisions were as follows: CAR 268: Suspension of licence, certificate or authority pending investigation (1) Where CASA has reason to believe: (a) that there may exist facts or circumstances that would justify the variation, suspension or cancellation of a licence or certificate or an authority on a ground specified in regulation 269; and (b) that there may be a serious risk to air safety if the licence, certificate or authority were not suspended; CASA may, by notice in writing served on the holder of the licence, certificate or authority, suspend the licence, certificate or authority. (2) Where CASA suspends a licence or certificate or an authority in pursuance of subregulation (1), CASA shall forthwith investigate the matter, and the suspension shall cease upon the completion of the investigation or at the expiration of 28 days from and including the date on which the suspension took effect, whichever is the earlier, but without prejudice to the powers of CASA under regulation 269. (3) Where: (a) CASA, upon the completion of an investigation under this regulation, gives to the holder of the licence, certificate or authority a notice under subregulation 269(3); and (b) the suspension of the licence, certificate or authority under this regulation had not ceased before the completion of the investigation; the licence, certificate or authority shall remain suspended during the time specified by CASA in that notice as the time within which the holder of the licence, certificate or authority may show cause why the licence, certificate or authority should not be varied, suspended or cancelled under regulation 269. (emphasis added) CAR 269: Variation, suspension or cancellation of licence, certificate or authority (1) Subject to this regulation, CASA may, by notice in writing served on the holder of a licence or certificate or an authority, vary, suspend or cancel the licence, certificate or authority where CASA is satisfied that one or more of the following grounds exists, namely: (a) that the holder of the licence, certificate or authority has contravened, a provision of the Act or these regulations, including these regulations as in force by virtue of a law of a State; (b) that the holder of the licence, certificate or authority fails to satisfy, or to continue to satisfy, any requirement prescribed by, or specified under, these regulations in relation to the obtaining or holding of such a licence or certificate or an authority; (c) that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft; (d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or (e) that the holder of the licence, certificate or authority has contravened, a direction or instruction with respect to a matter affecting the safe navigation and operation of an aircraft, being a direction or instruction that is contained in Civil Aviation Orders. (2) A notice under subregulation (1) shall set out the grounds for the decision. (3) Before taking action under this regulation to vary, suspend or cancel a licence or certificate or an authority, CASA shall: (a) give notice, in writing, to the holder of the licence, certificate or authority of the facts and circumstances that, in the opinion of CASA, warrant consideration being given to the variation, suspension or cancellation of the licence, certificate or authority under this regulation; and (b) allow the holder of the licence, certificate or authority to show cause, within such time as CASA specifies in that notice, why the licence, certificate or authority should not be varied, suspended or cancelled under this regulation. (4) The time specified by CASA in the notice under subregulation (3) as the time within which the holder of the licence, certificate or authority may show cause why the licence, certificate or authority should not be varied, suspended or cancelled under this regulation shall be a time that is reasonable in all of the circumstances of the particular case. (emphasis added) 41 Regulation 67.230 of the CASR provides: 67.230CASA may require medical examination of certificate holders (1) If it is necessary, in the interests of the safety of air navigation, for the holder of a medical certificate to demonstrate: (a) that he or she continues to meet the relevant medical standard; or (b) that holding the certificate does not adversely affect the safety of air navigation; CASA may direct the holder to do any 1 or more of the following: (c) submit to an examination carried out by a medical practitioner, specialist psychiatrist, clinical psychologist, audiologist, optometrist, orthoptist, orthotist, occupational therapist, specialist prosthetist or a practitioner of another kind specified in the direction; (d) submit to an examination or test by a person (not necessarily a medical practitioner) expert in the safe performance of the particular activity to which the medical certificate relates; (e) authorise the disclosure to CASA of any information about the holder, held by a person, organisation, body or authority referred to in subregulation (4), that may help CASA to decide whether: (i) the holder continues to meet that medical standard; or (ii) the holder's holding the certificate may adversely affect the safety of air navigation. (2) For paragraph (1) (c), CASA may nominate a particular practitioner, of a kind mentioned or referred to in that paragraph, who is to carry out the examination. (3) For paragraph (1) (d), CASA may nominate a particular person who is expert in the performance of the activity concerned to carry out the examination. (4) For paragraph (1) (e), the persons, organisations, bodies and authorities are as follows: (a) a medical practitioner, specialist psychiatrist, clinical psychologist, audiologist, optometrist, orthoptist, orthotist, occupational therapist, specialist prosthetist or similar practitioner who has examined or treated the holder; (b) any other person or organisation (including a hospital) that has made a physical, psychological or psychiatric examination of the holder; (c) any other person or organisation (including a hospital) that has treated the holder for a medically significant condition; (d) an employer (including a former employer) of the holder; (e) any other person, organisation, body or authority (including a police force or police service and, subject to Part VIIC of the Crimes Act 1914, a court) that holds information relevant to deciding whether the person's holding the certificate may adversely affect the safety of air navigation. 42 Finally, as a crucial balance to the exercise of these powers, many decisions taken by CASA in relation to an AOC will be reviewable on their merits on application to the AAT. As with other decisions of the AAT, it conducts a full merits review, standing in the shoes of the decision-maker to make 'the correct or preferable' administrative decision on the evidence before the AAT. An additional power conferred on the AAT under s 41 of the AAT Actis to stay the operation of a reviewable CASA decision or otherwise to make a positive order in favour of an applicant before the AAT. ORIGINAL PROCEEDINGS 43 Actions against CASA were originally commenced in the Supreme Court of Western Australia in negligence. By writ of summons dated 17 June 2008, the applicants initiated proceedings in that Court against CASA and its then Area Manager, Western Region, Mr Farquharson. Damages were sought for losses allegedly suffered by reason of acts and omissions of CASA and/or Mr Farquharson in the exercise of powers under the relevant legislation. The causes of action were related to alleged breaches by CASA occurring through the period from 2002-2007. There were exchanges of correspondence between the solicitors for the parties. These exchanges gave rise to various revised versions of the statement of claim. The proposed amended statement of claim which is now before this Court is the culmination of those amendments and appears to be the seventh version of the pleading. 44 The current proposed pleading, however, was preceded by a summary judgment application brought before Master Sanderson in the Supreme Court of Western Australia on 9 March 2009. In those proceedings, the respondents contended that the applicants were in substance seeking judicial declarations as to the validity or otherwise of decisions or instruments made by CASA in circumstances in which s 9 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act) may apply to preclude such a review by State Supreme Courts. The submissions for the respondents also pursued the argument which is presently raised that the applicants were seeking common law damages based on impermissible de‑facto claims for judicial review of administrative action. 45 The learned Master indicated that he was disposed to transfer the proceeding or the action to this Court pursuant the Jurisdiction of Courts (Cross-Vesting) Act 1987 (WA). Accordingly, the applicants formally so applied for such transfer. The respondents inform the Court (and the applicants do not suggest otherwise) that the respondents did not oppose the transfer nor concede that any version of the applicants' variously amended drafts of the statement of claim at that stage raised a federal 'matter' enlivening the jurisdiction of this Court. It is contended now for the respondents (amongst other arguments), that this Court does not have jurisdiction to determine the claims advanced by the applicants. I will deal with that argument in due course. EVIDENCE IN SUPPORT OF THE PROPOSED PLEADING 46 In addition to a minute of proposed further amended statement of claim, the parties have invited the Court to consider many pages of documentary and affidavit material. 47 In large measure the material from the respondents is intended to show that CASA and its officers at all times acted reasonably and within the letter and spirit of the laws which the applicants contend were breached. 48 For the applicants the material is designed to convey not only the contrary impression but also that there is a reasonable basis for their claim in light of evidence before the AAT, the conclusions of the AAT and the continual opposition by CASA to Repacholi Aviation's AOC status being restored. These factors, it is said, suffice to form a reasonable basis from which to infer that the alleged breaches and bad faith will be established after discovery. 49 Each party accepts that factual material may be considered on an application of this nature. However, if the legal submissions of the respondents are correct then the content of this material is largely, if not wholly, irrelevant. That is, the respondents' current arguments do not depend on the determination of a factual contest. 50 If the legal submissions are not correct, then in the circumstances of this case, expression of views at this very early stage in relation to what may be inferred from a complex and lengthy history of disputation would not be possible and would, in any event, be unhelpful and inappropriate. THE CLAIMS – IN DETAIL 51 The proposed pleading is essentially in chronological format. Having established the formalities, the applicants first raise a 5 March 2002 notice of CASA issued by it under s 268(1) (the first notice) to suspend Mr Repacholi's pilot licences pending investigation after a takeoff executed by him at Jandakot Airport in Western Australia, on 10 January 2002. The complaint in relation to the notice which was served on Mr Repacholi is a failure on the part of CASA to comply with its statutory obligation under CAR 268(2) to conduct 'an investigation' into the facts and circumstances associated with the takeoff and to complete the investigation promptly. 52 The next matter raised is a second notice on 28 March 2002 (the second notice) pursuant to which CASA purported (pursuant to CAR 268(3)) to further suspend the pilot licences held by Mr Repacholi and to require him to show cause why his pilot licences should not be varied, cancelled or suspended. Again, it is alleged that there was a failure to conduct a proper investigation as required by CAR 268(2) such that the second notice was void and ineffective. 53 In addition to the invalidity, it is asserted that the second notice was contrary to the provisions of the statutory regime governing the operations of CASA and took place in circumstances where the signatory to the notice, Mr Ogilvie acting on instruction from Mr Farquharson, knew or ought to have known that its service was not authorised by law and was beyond each of their respective powers and beyond power of CASA. 54 The next matter raised is a third notice of 19 June 2002 (the third notice) by which CASA purported (pursuant to CAR 269) to cancel the pilot licences including the commercial pilot's licence held by Mr Repacholi. That notice was signed by Mr Frew. The applicants complain that in respect of that notice, there was no power 'or jurisdiction' on the part of CASA to cancel the pilot licences until Mr Repacholi had first been served with and given an opportunity to answer a valid 'show cause' notice (CAR 269(3). The complaint is that at no time was Mr Repacholi served a valid show cause notice such that the cancellation under the third notice was void and ineffective. 55 Certain conduct of officers of CASA is also raised in relation to the third notice. Each of the three notices was allegedly made without conducting an investigation or without proper inquiry or without knowledge of the planning and preparation undertaken by Mr Repacholi for the purpose of conducting a takeoff. It is said that CASA and the relevant officers should have been aware of the fact that 'similar takeoff operations were commonly conducted in the United States of America' and had insufficient information regarding the takeoff operation as a whole. It is said that the notices were, in the case of the second and third notices, made 'without jurisdiction'; made in excess of authority of individual persons; were knowingly made in excess of authority; were made in breach of CASA's duty of good faith; or, alternatively, made negligently. 56 It is next pleaded that on 18 June 2003 in proceeding W2002/217 between Mr Repacholi and CASA, the AAT set aside the decision to cancel Mr Repacholi's pilot licences and in substitution, therefore, decided that the licences not be cancelled and held that the cancellation of his pilot licences could 'only be regarded as grossly excessive and unreasonable and, therefore, highly inappropriate'. 57 On the basis of those matters, it is asserted that the cancellation of Mr Repacholi's licences constituted a breach by CASA of its statutory duty to him; and a breach of its duty of good faith to him. It was also allegedly negligent in that CASA ought to have been aware but was not aware of the overseas practice relating to takeoffs of the kind the subject of the suspension and cancellation. Allegedly, the decision to cancel was taken after insufficient research, on insufficient information and without proper inquiry as to 'existing and accepted practice' in relation to such takeoffs. The decision to cancel was also allegedly taken with insufficient information and without proper inquiries as to the details of and preparation for the takeoff by Mr Repacholi and others. 58 The applicants then embrace language similar to that used in the AAT contending that the decision to cancel Mr Repacholi's pilot licences was in the circumstances, grossly excessive and unreasonable. They say, further, it was made without jurisdiction and contrary to provisions of the statutory regime governing the operations of CASA. They say it was in excess of the authority of the individuals who served the notices and made in circumstances where they knew the decision was not authorised by law and was one that they had no power to make; or alternatively, was made by each of them recklessly, not caring whether the decision was authorised by law or was within power. 59 The applicants go on to plead that by reason of the wrongful suspension of Mr Repacholi's pilot licences by the first and second notices, Repacholi Aviation sought approval of CASA for appointment of Mr Fred Hampton as its Chief Pilot. On 3 April 2003, Mr Repacholi (whose appointment as Chief Pilot of Repacholi Aviation had been approved by CASA on 10 February 1994) and who had acted in that capacity since that date 'stepped back' as Chief Pilot on Repacholi Aviation. 60 On the same date, CASA approved Mr Hampton as Chief Pilot of Repacholi Aviation but assessed him as suitable only for 'aerial work - initially Ag Ops' and as not suitable for charter operations. 61 The applicants complain that by reason of the limited form of this approval of Mr Hampton, CASA renewed Repacholi Aviation's AOC in terms excluding charter operations even though, as at the date of his approval, Mr Hampton had the qualifications required for appointment as Chief Pilot of a company carrying out charter operations. It is complained that in those circumstances, CASA was under a statutory duty to Repacholi Aviation to approve the appointment of Mr Hampton as Chief Pilot without in any way amending Repacholi Aviation's AOC. 62 It is then pleaded that on 25 June 2003, following the decision of the AAT to set aside the cancellation of Mr Repacholi's pilot licences, the solicitors for the applicants wrote to CASA requesting reinstatement of Mr Repacholi as Chief Pilot of Repacholi Aviation and the reinstatement of the charter operations on Repacholi Aviation's AOC. 63 On 1 September 2003, Repacholi Aviation made a written application to CASA for approval of the appointment of Mr Repacholi as Chief Pilot of the company. That application was sent by facsimile transmission and by a facsimile of the same date, the Flying Operations Inspector of CASA requested a formal application for approval of Mr Repacholi's appointment be filed so that his suitability could be assessed. Following this, on 14 November 2003, Mr Repacholi and the company made a further and formal application to CASA for approval of the appointment of Mr Repacholi as Chief Pilot of the company. That application was signed by Mr Repacholi and forwarded under cover of a letter from Mr Dennis Repacholi on behalf of Repacholi Aviation. The applicants plead that in those circumstances CASA was under a duty to consider the application for approval of Mr Repacholi as Chief Pilot of the company on its merits and to assess and examine him in accordance with par (b)-(d) of cl 1.3 in Appendix 1 of CAO 82.0. 64 Clause 1 in Appendix 1 of CAO 82.0 (as at 8 September 2005) provides as follows: Appendix 1 1 Approval of Chief Pilot by CASA 1.1 A person must not be appointed as, or act as, a Chief Pilot unless the person's appointment has been approved in writing by CASA after application in writing by the operator. 1.2 The application must include the following details in relation to the person: (a) current licences, ratings and endorsements held; (b) total flight time, total time as pilot in command and, where applicable, total instrument flight time and multi-engine aircraft experience; (c) a comprehensive outline of flying history, including experience in commercial operations. 1.3 The appointment may be approved only if the person has: (a) in the opinion of CASA, maintained a satisfactory record in the conduct or management of flying operations; and (b) been assessed, by an examiner appointed by CASA, as suitable to carry out the responsibilities of a Chief Pilot; and (c) passed an oral examination, conducted by an examiner appointed by CASA, covering the regulatory requirements for the safe conduct of commercial operations; and (d) passed a flight planning, loading and performance examination, conducted by an examiner appointed by CASA, based on the operator's most complex aircraft; and (emphasis added) (e) if required by CASA — flown with a person nominated by CASA to demonstrate his or her suitability for appointment. 1.4 CASA must: (a) give written notice of the approval, or refusal of approval, to the operator and to the person; and (b) if CASA refuses to approve the appointment — include in the notice the reasons for the refusal. 1.5 An approval: (a) relates only to the operator mentioned in the notice of approval; and (b) may be subject to conditions mentioned in the notice of approval; and (c) remains in force: (i) for the period mentioned in the notice of approval; or (ii) if no period is mentioned — while the person maintains a satisfactory standard of performance. 65 The applicants then raise a complaint in respect of the fourth notice, this being a notice from CASA dated 4 February 2004. The applicants say that by the fourth notice CASA wrongfully, in breach of its common law duty to Mr Repacholi and the company and in breach of its statutory duty to Mr Repacholi and the company, in breach of its duty of good faith and without assessing and examining Mr Repacholi in accordance with par (b)-(d) of cl 1.3 in Appendix 1 of CAO 82.0, refused to approve the appointment of Mr Repacholi as Chief Pilot of Repacholi Aviation. 66 Complaints are made against the individuals involved on the basis that the request was made without giving any true consideration to the application; without making any proper assessment of Mr Repacholi's qualifications to be appointed as Chief Pilot; made in breach of CASA's duty of good faith and the duty of good faith of Mr Farquharson and one of the other individuals it is proposed to join in the amended pleading which the applicants seek to have leave to file. It is said that the fourth notice was made without assessing and examining Mr Repacholi in accordance with the requirements of cl 1.3 and without jurisdiction in circumstances where the two individuals knew the decision was beyond power; or alternatively, was made recklessly, not caring whether it was a decision within power. 67 There is then pleaded a further proceeding in the AAT on 30 June 2006 (proceeding number W2004/44) in which the AAT delivered its decision and ordered that Mr Repacholi be assessed and examined by an examiner appointed by CASA based in a regional office of CASA other than the Perth Regional Aviation Field Office (formerly known as the West Office Area). As a result of assessments carried out pursuant to the AAT's determination, Mr Repacholi's appointment as Chief Pilot of Repacholi Aviation was approved by CASA on or about 19 December 2006. It is pleaded that in breach of its duty of good faith and in breach of its statutory duty to the company, the appointment of Mr Repacholi as Chief Pilot of the company and despite 'numerous requests' CASA failed or refused to reinstate 'charter operations' on the AOC held by Repacholi Aviation. 68 The fifth action of which complaint is raised is a direction contained in a letter of 23 September 2004 by CASA to Mr Repacholi to authorise the disclosure to CASA of certain information, namely: to authorise the disclosure to CASA of any Information about you, held by a person, organisation, body or authority (including but not limited to a hospital, medical practitioner, specialist psychiatrist, clinical psychologist) who has examined or treated you and made a psychological or psychiatric examination of you. Mr Repacholi was also directed to authorise the heath insurance commission 'to release your Medicare claiming history and pharmaceutical benefits scheme history including prescribing doctors' names and pharmacy details'. 69 Conspicuously, this direction was wholly unlimited in point of time. 70 A new individual officer signed this document and it is also sought to join that individual as a respondent. 71 The applicants complain that the direction which purported to be made pursuant to CASR reg 67.230(1)(e) was made in circumstances which did not satisfy the requirements of reg 67.230(1)(a) or (b) and was therefore not authorised by par (e). Further, it related to information the disclosure of which did not satisfy the requirements of that paragraph and was not authorised by or under any other legislative provision. It is said, therefore, that the direction was void and ineffective and made without jurisdiction. 72 The next notice (the fifth notice but the sixth matter of which complaint is made) was issued on 29 October 2004 when CASA issued a notice of suspension of the class 1 and class 2 medical certificates held by Mr Repacholi based on his failure to comply with the direction. That notice, it is said, was signed by the same individual who signed the direction and appears to have been issued on the advice and recommendation of a further individual whom it is not sought to join as an additional respondent. Once again, it is contended that the decision to suspend the medical certificates was made in breach of CASA's statutory duty; was made without 'jurisdiction'; was made without reasonable grounds; was known by the author to be made without 'jurisdiction'; or alternatively, made recklessly, not caring whether it was or was not a decision within the power and was made negligently in that Mr Repacholi had failed to comply with a direction which was invalid and in which CASA and the individual concerned ought to have known was invalid and in circumstances where there were no grounds or reasonable grounds for the suspension of the medical certificates. 73 It is said, therefore, that CASA and all the various individuals involved in serving the various notices acted beyond power in circumstances where they knew that they did not have the power to suspend the pilot licences pursuant to CAR 268(3) on 28 March 2002 in the absence of an investigation; cancel the pilot licences; refuse to approve the appointment of Mr Repacholi as Chief Pilot after 10 February 2004; refuse or fail to consider in early 2007 the application by the company to reinstate 'charter operations' on its AOC; and to issue a notice of suspension of the class 1 and class 2 medical certificates held by Mr Repacholi. It is therefore asserted that the individuals and CASA were in breach of the statutory duty and acted 'without jurisdiction' in circumstances where they knew that the acts were in excess of 'jurisdiction', or alternatively, acted recklessly, not caring whether they had the power to act and exercised such statutory powers they did have for the purpose of and with the intent of injuring Mr Repacholi and/or Repacholi Aviation by the exercise and purported exercise of the statutory powers. 74 Those matters are said to constitute, on behalf of each of the individuals, misfeasance in public office. 75 The applicants say that they have suffered damage by reason of the unlawful actions of the respondents; the negligence of the respondents; the breaches of duty of good faith; the breaches of statutory duty; and the misfeasance in office. 76 I propose now to look at some specific matters raised in the proposed pleading before addressing the broader legal principles which arise. The First Notice 77 The first notice related to an unconventional form of takeoff executed by Mr Repacholi at Jandakot Airport on 10 January 2002. 78 The applicants contend that CAR 268(2) required that CASA upon giving the first notice to Mr Repacholi 'investigate the matter' forthwith. Therefore it is contended that from the date of giving the notice CASA owed Mr Repacholi a statutory duty forthwith to conduct an investigation into the facts and circumstances associated with the takeoff and to complete that investigation promptly. This they say is because the effect of CAR 268(2) would be that the suspension of his licence would cease on completion of the investigation required under that subsection or upon the expiration of 28 days from the date on which the suspension took effect, whichever was the earlier. It is said that in breach of its statutory duty, CASA did not conduct an investigation in relation to the facts and circumstances associated with the takeoff either forthwith or at all and did not complete any investigation of the facts and circumstances associated with the takeoff. 79 Although CASA strongly denies that there was no investigation and seeks to rely upon evidentiary material to make it clear that there was an investigation, it also submits that the applicants have misconstrued the statutory effect of the provisions in CAR. 80 For CASA it is argued that in the circumstances set out in CAR 268(1), CASA may by notice in writing suspend a pilot licence. Where it does so it must forthwith investigate the matter. However, CASA argues that the fact of investigation by reason of CAR 268(2) only provides a reference point for the expiration of the suspension under CAR 268(1) on a basis that is 'without prejudice' to CASA's power under CAR 269. That power, CASA contends, can be exercised independently of any action taken pursuant to CAR 268. CAR 268(3), it is contended, provides a legal consequence or particular effect in relation to the suspension of a licence resulting from the exercise of CAR 268(1), namely, by operation of law not by operation of any further decision of CASA. 81 CASA says the undisputed facts are that CASA made a decision to suspend on 5 March 2002. Repacholi Aviation unsuccessfully sought a stay of that decision in the AAT on 6 March 2002 and a show cause notice was issued on 28 March 2002 providing Mr Repacholi with 28 days within which to show cause; Mr Repacholi responded to that notice on 6 May 2002 and CASA took action on 19 June 2002 to cancel Mr Repacholi's license. In those circumstances, CASA argues the notice of 28 March 2002 cannot be held to have been 'invalid and ineffective' and there can be no jurisdictional error attending its making. 82 CASA contends that even if one assumes a technical failure to follow the procedure under CAR 269(3) before the issue of a show cause notice, that failure could not result in 'invalidity' or unlawfulness of the regulatory action in fact taken: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355. 83 However, the applicants contend that this is the wrong construction of the relationship between CAR 268 and CAR 269. Senior counsel for the applicants contends that CASA can take one of two courses if it thinks there are circumstances that would justify suspension. It may suspend the license or certificate for the purpose of an investigation or it can direct under CAR 269 to issue a show cause notice. Senior counsel argues that if one looks at CAR 268(2), the words 'without prejudice to the power of the Authority under reg 269' only qualify the words 'shall cease upon the completion of the investigation or at the expiration of 28 days'. CAR 268 contemplates that the issue of a show cause notice under CAR 269(3) shall occur after the investigation under CAR 268(2) has been completed not prior to the completion. The reason for that, it is submitted for the applicants, is that there would be no point in giving CASA an obligation to investigate while at the same time permitting it to suspend or cancel. CASA chose to proceed under CAR 268 therefore it had an obligation to complete the investigation. Until the investigation was completed, the power to give a show cause notice did not exist. 84 At this preliminary stage I have doubts about the applicants' argument. On the face of the statute it seems to me that CASA can go straight to CAR 269 in an appropriate case. However, I would not be prepared to conclude at this summary stage that this argument as to the interaction of the two regulations is sufficiently lacking in merit so as to warrant a dismissal of so much of the proceeding as depends upon it. As observed in Dandaven, s 31A FCA ought not be used to shut out proceedings where there may be room for doubt on a proposition of law. By declining to strike out this aspect of the pleading, alternatively permitting the argument to be ventilated by allowing this portion of the amended pleading, I should not be taken to be endorsing the argument. I express no view at this stage as to its strengths other than to say I could not conclude that it was unarguable. Whether it grounds a cause of action, however, is a separate question which I address below. Relevance of the AAT proceedings 85 The respondents take objection not only to evidence of the observations of the AAT (and of evidence given in the hearing) but also to the reliance in the pleading of conclusions or remarks of the AAT in its determination. It would appear that the main purpose of referring to the AAT proceedings by the applicants is to show that on a merits review of the decisions taken by CASA, the AAT disagreed with CASA's decision, in one instance, it seems, particularly strongly. 86 The fact that there is in existence a provision for review of administrative decisions taken by CASA, illustrates the availability of an adequate (and arguably sufficient) remedy for an aggrieved person affected by an adverse regulatory decision made by CASA. 87 For the respondents it is argued that because s 43(6) of the AAT Act has the effect that the substituted decision made by the AAT replaces the decision of CASA, there is no decision of CASA in existence capable of causing any relevant loss or damage to the applicants. 88 I do not find this argument compelling but I will not resolve it at this stage. But, in any event, the observations, comments and findings of the AAT, as distinct from its decision, are not relevant to and cannot be afforded any weight in determining whether there is sufficient evidence of any invalid act for the purpose of mounting a claim based on allegations of misfeasance, breach of statutory duty or even negligence. 89 The applicants have conceded in argument that the AAT did not consider the lawfulness of the decisions made by CASA but was rather considering the merits of the decisions. It is difficult to see how any observation made by the AAT is capable of being relied upon for the purposes of some separate pleaded cause of action for unlawful conduct of CASA. 90 Given the considerable body of evidence the parties have sought to adduce, I can take this material to be no more than part of the history that the applicants wish to set out. Observations made by the AAT cannot have any binding effect on this Court or constitute a necessary fact to be proven in a proposed claim in damages. I would not decline to admit the affidavit evidence or the pleading on this topic provided it is for the limited basis of outlining the history. Approval of Chief Pilot 91 As to the refusal to approve the appointment of Mr Repacholi as Chief Pilot of Repacholi Aviation on 4 February 2004, it is contended that this refusal was done without assessing him in accordance with the pars (b)-(d) of cl 1.3 in Appendix 1 to CAO 82.0. 92 In relation to this aspect of the matter, CASA complains that the pleading is embarrassing because the provisions alleged were not the provisions in force as at 4 February 2004. Rather, cl 5.1 of Appendix 1 to CAO 82.0 applied. Secondly, no material facts are pleaded to support the conclusions asserted in the pleading. Rather, such evidence as there is, discloses that the assessment of the suitability of Mr Repacholi to be approved as Chief Pilot of Repacholi Aviation was made by CASA under the applicable CAOs as in force as at February 2004. CASA argues that the criteria identified in cl 5.1 are conjunctive, that is, a nominee chief pilot must satisfy all of the four identified criteria. On the face of cl 5.3, it was open to CASA to terminate the assessment process if the nominee failed to meet any one of the criteria listed in cl 5.3 without proceeding to consider other criteria. On the evidence, CASA argues that it applied the prescribed criteria to form the view that Mr Repacholi did not have a satisfactory record in the conduct or management of flying operations and was considered not suitable to carry out the responsibilities of a chief pilot. 93 Once again, I do not consider that it is possible to determine the correctness or otherwise of CASA's detailed submissions in the absence of a determined factual framework established from appropriately tested evidence. Whether the applicants' complaints, even if correct, would ground a cause of action, is another question. Refusal to Reinstate Charter Operations – and Bad Faith Generally 94 CASA complains that the bold assertion that it has wrongfully refused and failed to reinstate charter operations on Repacholi Aviation's AOC is defective. CASA complains that as with certain other paragraphs, it simply pleads a conclusion rather than any material facts which might sustain some duty to 'reinstate' charter operations. In any event, CASA relies upon an application for variation of Repacholi Aviation's AOC made on or about 12 July 2007 in which Mr Repacholi expressly stated that he was not proposing to add charter operations to the company's AOC. 95 In relation to the allegation that CASA 'specifically intended' to harm Mr Repacholi, it is submitted by CASA that no material facts have been pleaded from which such an intention can be inferred and the pleading should be struck out as being vexatious and defective. Nor is it evident that it gives rise to any civil remedy for a breach. 96 In relation to this topic generally, the applicants say that they anticipate, with the benefit of discovery, they will be in a better position to prove the bad faith which they now assert. 97 I cannot accept that this approach is permissible. There are no material facts identified to support any of the bad faith pleas. Those pleas will not be permitted. Other Alleged Breaches 98 A very general alleged breach is then pleaded to the effect that because Mr Hampton had the qualifications required for appointment as Chief Pilot of a company carrying out charter operations, CASA was in breach of its statutory duty to appoint Mr Hampton as Chief Pilot in a general sense as being suitable only for 'aerial work - initially ag ops only' as distinct from charter operations. No material facts at all are pleaded to supplement these bald assertions. Suspension of Mr Repacholi's Medical Certificates 99 The applicants plead that on 29 October 2004, CASA issued a Notice of Suspension of the class 1 and class 2 medical certificates held by Mr Repacholi ('the fifth notice') after he failed to comply with an earlier direction. That direction was contained in a letter dated 23 September 2004 from CASA by which it directed him to authorise the disclosure to CASA of certain information. 100 It is conspicuous that the direction was totally unlimited in point of time. 101 The applicants claim that the direction which is purportedly made pursuant to CASR 67.230 did not satisfy the requirements in CASR 67.230(1)(a) or (b) and was therefore not authorised by subpar (e) and related to information, disclosure of which did not satisfy the requirements of CASR 67.230(1)(e) or was otherwise unauthorised. 102 The applicants contend that the direction was void and ineffective. As a consequence the fifth notice was in breach of CASA's statutory duty, made without jurisdiction, made without reasonable grounds and was made knowingly without jurisdiction or, alternatively, recklessly. 103 A claim in negligence is also made. It is contended that all of the officers of CASA to whom reference is made knew that they never had the power in the relevant circumstances to suspend the pilot licences of Mr Repacholi, to cancel the licences, to refuse to approve the appointment of him as Chief Pilot after 10 February 2004, to refuse or fail to consider in early 2007 Repacholi Aviation's application to reinstate charter operations and to issue a notice of suspension of the medical certificates. There is no foundation for the bad faith plea. 104 In relation to the allegation that the direction given to Mr Repacholi was not authorised by legislation and was knowingly made without 'jurisdiction', CASA complains that no material facts have been pleaded by reference to which it may be said that a particular common law duty to the applicants or either of them was owed by the respondents or any of the proposed respondents. To that extent, CASA complains that the pleadings are embarrassing in that the scope and content of any particular duty is not identified or particularised. It is not known whether an allegation of breach of duty is made against CASA or Mr Farquharson or both. 105 The relevant correspondence between CASA and Mr Repacholi on the issue indicates that Mr Repacholi considered the notices to be unreasonable and unjustified because they were not required 'in the interests of air safety'. That correspondence contains CASA's explanation as to why it considered it to be in the interests of air safety to issue the notices, namely, because CASA had received information that Mr Repacholi was receiving psychiatric treatment. 106 CASA also submits that the evidence that is presently before the Court explains why CASA considered the basis for the notice to have supported the exercise of the power in CASR 67.230 and CASR 67.260 whereas the proposed amended statement of claim pleads no material facts to support the conclusion which it expresses. CASA is accordingly unable to determine whether it has any case to meet and any pleading against any proposed individual in relation to the allegations raised by the applicants is said to be wholly vexatious. 107 On this topic, CASA contends that the ambiguity of the allegations indicates the assertion is at best an attempt to raise merits issues of a kind that the applicants could have agitated in the AAT. Specifically, in relation to the refusal to reinstate the charter operations, CASA says this is no more than a pleading of a conclusion without any material facts supporting it. There may be force in this submission by CASA but, again, I am not prepared to resolve these issues at a time when there is not even a suitable pleading let alone evidence. JURISDICTION 108 The jurisdictional argument advanced by CASA in the Supreme Court of Western Australia was put on a different basis from that advanced in this Court. Nevertheless the argument is still advanced that as every complaint depends upon an alleged breach of civil aviation legislation, the appropriate avenue for pursuing such a complaint was an appeal from the various decisions of the AAT. 109 On the topic of federal jurisdiction, the respondents had originally submitted in the Supreme Court that s 9 of the ADJR Act forbids Supreme Court judicial review of certain federal actions. Section 9 of the ADJR Act is directed to State courts, providing as follows: 9 Limitation of jurisdiction of State courts (1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review: (a) a decision to which this section applies that is made after the commencement of this Act; (b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies; (c) a failure to make a decision to which this section applies; or (d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power. Note: This subsection has effect subject to the Jurisdiction of Courts (Cross‑vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001. (2) In this section: decision to which this section applies means: (a) a decision that is a decision to which this Act applies; or (b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1. review means review by way of: (a) the grant of an injunction; (b) the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or (c) the making of a declaratory order. (4) This section does not affect: (b) the jurisdiction conferred on the Supreme Court of a State by section 32A of the Federal Court of Australia Act 1976; or (c) the jurisdiction of a court of a State in respect of any matter that is pending before it at the commencement of this Act. 110 That submission does not now need to be addressed as the claim has been brought in this Court. 111 However, the respondents also contend that every claim sought to be agitated by the applicants is dependent upon a determination that particular administrative decisions made under the CAA, that is, to grant or refuse to grant or to cancel, suspend or revoke a license, approval, authorisation or certificate were 'invalid' and/or ultra vires. The respondents reject the assertion that they misconstrued or misapplied relevant provisions of the civil aviation legislation. In any event, and more importantly for present purposes, they contend that an order for damages is not an appropriate remedy for an administrative action: Park Oh Ho v Minister for Immigration and Ethnic Affairs (1989) 167 CLR 637. (While this may be correct, that does not mean a claim for damages for negligence is necessarily unavailable). 112 The applicants' argument is that the proceeding is a proceeding 'arising under an Act of the Commonwealth Parliament' and is thereby by virtue of s 39B(3A)(c) (sic s 39B(1A)(c)) of the Judiciary Act a matter in which the Federal Court has jurisdiction. Little argument was advanced on this contention from either party. The argument appears to be that because the complaints of the applicants turn on alleged contraventions of Federal Acts, that the complaints satisfy the requirements of the jurisdictional provision on which reliance has been placed. However, a mere colourable connection is insufficient. There is a distinction between the notion of a Federal statute 'lurking in the background' on the one hand and the right or duty in question owing its existence to a Federal statute. 113 However, I would not be prepared to conclude at this stage that none of the claims advanced could arise '… under any laws made by the Parliament'. I am mindful that there are cases in which there are claims for damages for breach of contract or relief for breaches of trust when the property concerned owes its existence due to Federal law. Put on a broad basis, the applicants claim on this issue is that the licences which should have been granted or should not have been withheld are licences which owe their existence to the legislation which CASA is obliged to administer. As aviation operating licences can be created by no means other than application of Federal written law, it is at least arguable that this proceeding arises under an Act of the Commonwealth Parliament and that this Court has jurisdiction. 114 In Macteldir Pty Limited v Dimovski [2005] FCA 1528, Allsop J considered an application for costs orders against a solicitor and barrister based on alleged incompetence by those practitioners in propounding a notice of motion on behalf of the company in an earlier proceeding to enforce an agreement between the parties which resolved claims by the company of breach of copyright. His Honour found that the enforcement of a contract to settle a case (at least between the parties to the suit) concerning rights owing their existence to Commonwealth law fell within s 39B(1A)(c) of the Judiciary Act. Allsop J said (in describing LNC Industries v BMW (Aust) Pty Ltd (1983) 151 CLR 575): There was no provision investing federal jurisdiction. There was no issue for decision under Commonwealth law. The matter, however, was one of federal jurisdiction, as arising under a law of the Parliament. This was so because the subject matter of the contract and of the trust was property owing its existence to Commonwealth law – a quota for the importation of cars under the Customs Act 1903 and Customs Regulations. Gibbs CJ Mason, Wilson, Brennan, Deane and Dawson JJ said the following at 581 (Murphy J agreeing at 582-83): …A claim for damages for breach or for specific performance of a contract, or a claim for relief for breach of trust, is a claim for relief of a kind which is available under State law, but if the contract or trust is in respect of a right or property which is the creation of federal law, the claim arises under federal law. The subject matter of the contract or trust in such a case exists as a result of the federal law. … 115 In a clear case, jurisdiction can and arguably should be determined at an early stage. This case is anything but clear. 116 As to the remaining aspects of the proposed claim (after these rulings) I consider this Court has jurisdiction as the claims, or at least part of them, are in respect of the licences which owe their existence to laws of the Commonwealth Parliament. LIMITATION ISSUES 117 When this matter was before the Supreme Court of Western Australia, CASA raised s 47A of the Limitation Act 1935 (WA). That Act was replaced by the Limitation Act 2005 (WA). However, most of the causes of action pleaded accrued prior to 15 November 2005 when s 47A of the Limitation Act 1935 (WA) was in operation. 118 Arguably, the only claim that has arisen after 15 November 2005 is the broad assertion that CASA and the named respondents in early 2007 refused or failed to consider an application by Repacholi Aviation to reinstate 'charter applications' on its AOC. 119 Section 47A relevantly provides as follows: 47A. Protection of persons acting in execution of statutory or other public duty (1) Notwithstanding the foregoing provisions of this Act but subject to the provisions of subsection (2) and (3), no action shall be brought against any person (excluding the Crown) for any act done in pursuance or execution or intended execution of any Act, or of any public duty or authority, or in respect of any neglect or default in the execution of the Act, duty or authority, unless — (a) the prospective plaintiff gives to the prospective defendant, as soon as practicable after the cause of action accrues, notice in writing giving reasonable information of the circumstances upon which the proposed action will be based and his name and address and that of his solicitor or agent, if any; and (b) the action is commenced before the expiration of one year from the date on which the cause of action accrued, and for the purposes of this section, where the act, neglect, or default is a continuing one, no cause of action in respect of the act, neglect, or default accrues until the act, neglect or default ceases but the notice required by paragraph (a) may be given and an action may thereafter be brought while the act, neglect or default continues. (2) A person may consent in writing to the bringing of an action against him at any time before the expiration of 6 years from the date on which the cause of action accrued whether or not the notice as required by subsection (1) has been given. (3) (a) Notwithstanding the foregoing provisions of this section application may be made to the Court which would but for the provisions of this section have jurisdiction to hear the action, for leave to bring an action at any time before the expiration of 6 years from the date on which the cause of action accrued, whether or not notice as required by subsection (1) has been given to the prospective defendant. (b) Where the Court considers that the failure to give the required notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the prospective defendant is not materially prejudiced in his defence or otherwise by the failure or delay, the Court may if it thinks it is just to do so, grant leave to bring the action, subject to such conditions as it thinks it is just to impose. (c) Before an application is made under the provisions of paragraph (a), the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the prospective defendant, at least 14 days before the application is made. (4) (a) In this section person includes a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown. (emphasis added) (b) This section is to be construed so as not to affect the provisions of the Crown Suits Act 1947. … 120 CASA contends that at its highest the applicants' permissible claims are based on an allegation that CASA was under a duty of care in exercising its statutory powers and in performing its statutory function pursuant to the CAA. I tend to agree. CASA contends that s 47A extends to agencies and instrumentalities created by Commonwealth legislation: Smith v Australian National Line Ltd (1998) 159 ALR 431. (The Full Court's decision in Smith was the subject of appeal to the High Court but was overturned only in relation to constitutional issues unrelated to s 47A). CASA contends that the provision is in wide terms which extend to cover the acts or omission complained of by the applicants. Those acts or omissions did not arise from the exercise of a power that was only incidental to the public duties of CASA. No notice has been given by the applicants as required by s 47A and no application has been sought for an extension of time within in which to give a notice. As such, CASA contends that the applicants' claims are statute barred. 121 For the applicants it is argued that when s 47A speaks of 'an Act' it is referring to an Act of the West Australian Parliament: Interpretation Act 1984 (WA), s 5. 122 The applicants contend that the causes of action pleaded by the applicants are brought in respect of acts which if done pursuant to any Act are done in pursuance or in execution or intended execution of a Commonwealth Act or in respect of a neglect or default in the execution of duties and authorities stemming from a Commonwealth Act. 123 The applicants also contend that even if s 47A could by its terms apply to the present proceeding, its operation would be prevented by reason of conflict with s 64 of the Judiciary Act. 124 Section 64 and s 79 of the Judiciary Act respectively provide as follows: 64 Rights of parties In any suit to which the Commonwealth or a State is a party, the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject. 79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. (2) A provision of this Act does not prevent a law of a State or Territory covered by subsection (3) from binding a court under this section in connection with a suit relating to the recovery of an amount paid in connection with a tax that a law of a State or Territory invalidly purported to impose. (3) This subsection covers a law of a State or Territory that would be applicable to the suit if it did not involve federal jurisdiction, including, for example, a law doing any of the following: (a) limiting the period for bringing the suit to recover the amount; (b) requiring prior notice to be given to the person against whom the suit is brought; (c) barring the suit on the grounds that the person bringing the suit has charged someone else for the amount. (4) For the purposes of subsection (2), some examples of an amount paid in connection with a tax are as follows: (a) an amount paid as the tax; (b) an amount of penalty for failure to pay the tax on time; (c) an amount of penalty for failure to pay enough of the tax; (d) an amount that is paid to a taxpayer by a customer of the taxpayer and is directly referable to the taxpayer's liability to the tax in connection with the taxpayer's dealings with the customer. 125 It is contended for the applicants that the Limitation Act has no application as s 64 of the Judiciary Act precludes CASA from receiving any special rights not afforded to ordinary citizens. CASA argues that the practical effect of s 64 and s 79 of the Judiciary Act on State limitation Acts is to require courts to apply without any altered meaning any relevant limitations Acts to the Commonwealth instrumentality as though they were a subject (Maguire v Simpson (1997) 139 CLR 362 at 376-377). (See also Smith 159 ALR 431 at 453). 126 The applicants contend that CASA is an emanation of the Commonwealth of Australia. CASA is a body effectively performing what is a governmental function as: (a) CASA is a body corporate which may be sued in its corporate name (s 8) but it is also a body to which the Commonwealth Authorities and Companies Act 1997 (Cth) (the CAC Act) applies: s 84C; (b) the director of CASA is to be appointed by the Minister after receiving a report from the secretary. (c) the Minister may give CASA written directions as to the performance of its functions or the exercise of its powers. CASA must comply with such directions: s 12; (d) CASA must report to the Minister or to the secretary of the department in accordance with arrangements specified by the Minister: s 12D; (e) the director is under the Minister to manage CASA: s 84A; (f) the director holds office during the Minister's pleasure: s 89; and (g) the Minister is the employing body for the director for the purposes of the Remuneration Tribunal Act 1973 (Cth) (s 84(3)). 127 The applicants argue that s 79 of the Judiciary Act provides that the laws of each State or Territory including the laws relating to procedure, evidence and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. However, by s 64 of the Judiciary Act in any suit to which the Commonwealth or a State is a party, the rights of the parties shall as near as possible be the same and judgment may be given and costs awarded on either side, as in a suit between subject and subject. 128 The applicants contend that by reason of the fact that it is an emanation of the Commonwealth, effectively performing what is a governmental function, CASA, is for the purposes of s 64 of the Judiciary Act, 'the Commonwealth'. See Maguire and Austral Pacific Group Ltd v Airservices Australia (2000) 203 CLR 136 at 153. By virtue of that section CASA's rights in litigation are equated to those of the ordinary citizen not to the rights of 'a very particular kind of defendant': see British American Tobacco Australia Ltd v Western Australia v (2003) 217 CLR 30 at [25] per Gleeson CJ. 129 At first instance in Smith v Australian National Line (unreported, Supreme Court of Western Australia, 27 August 1996), Ipp J considering the limitation point as a preliminary issue in an action for damages for personal injuries brought against the defendant, ANL accepted that it was well established that State legislation cannot bind the Commonwealth. But followed what was said by the Full Court of this Court in Trade Practices Commission v Manfal Pty Ltd (No 2) (1990) 27 FCR 22 by Wilcox J (with whom Northrop J agreed) observing at 31 that to the extent 'that there is no interference with the property, revenue or prerogatives of the Commonwealth or with the performance of Commonwealth statutory functions, Commonwealth instrumentalities are bound by relevant State laws'. Section 47A properly understood, confers benefits. It does not therefore 'bind' the Commonwealth in that sense. Further, arguably, as the section does not in any way interfere with 'property, revenue or prerogatives of the Commonwealth or with the performance of Commonwealth statutory functions' there is no inconsistency between s 47A and any Commonwealth legislation. Accordingly, CASA was entitled to the benefit of s 47A of the Limitation Act which it has not received. 130 At first instance in Smith v Australian National Line, Ipp J, having considered Georgiadis v Australian and Overseas Telecommunications Corporation (1994) 179 CLR 297 at 301 and Pedersen v Young (1964) 110 CLR 162 at 165, held that s 47A is 'applied by force of Commonwealth law, and not by its own force as a State law': The purpose of s 47A(4) is plain. It is to ensure that the phrase "excluding the Crown" in s 47A(1) is not construed as having the effect of excluding the entities referred to in s 47A(4)(a) from the protection afforded by s 47A(1). In other words, the intention is that, while the Crown is excluded from the operation of s 47A(1), "a body corporate, Crown agency or instrumentality of the Crown created by an Act or an official or person nominated under an Act as a defendant on behalf of the Crown" is not excluded. Such entities are to be regarded as persons for the purposes of s 47A(1). It does not follows from this conclusion that a "person" in s 47A(1) is limited to the emanations of the Crown referred to in s 47A(4). Were that to be so, s 47A(1) would only confer protection on Crown agencies or instrumentalities for the acts described in the section. Several cases over a very lengthy period demonstrate that limitation provisions such as those contained s 47A(1) apply to entities other than Crown agencies and like bodies: see, for example, the cases cited in Webster v Lampard(1993) 177 CLR 598 at 605. 131 In British American Tobacco Australia Ltd, it was argued that s 64 of the Judiciary Act, if it applied to the proceedings, rendered s 47A of the Limitation Act applicable to defeat the appellant's claim. Gleeson CJ (at [25]) observed: Section 47A deals with a suit against a very particular kind of defendant … If s 64 were to operate in the present case, it would not do so by putting the Government of Western Australia in the place of an agent of the Government of Western Australia; it would do so by putting the Government of Western Australia in the place of an ordinary citizen. Section 64 speaks of rights in a suit between subject and subject; not rights in a suit between subject and Crown agent. 132 The Chief Justice went on to say that it was 'unnecessary to decide whether the language of s 47A otherwise covers the cause of action here asserted by the appellant; it suffices to note that it is at least arguable that it does not'. (The appeal was on a limitation act based summary judgment in favour of the State dismissing an action for monies had and received by the State in respect of an invalidly imposed 'tax'). 133 The Limitation Act stipulates that s 47A applies to any act done in pursuance or execution or intended execution of any Act, or in the line of any public duty or authority. The use of 'or' evinces a Parliamentary intention to distinguish between acts performed pursuant to a Western Australian statute (that is to say, an 'Act') and acts performed in pursuance of public duty or authority and affords equal protection to acts falling in either category. CASA further argues that the acts in question were acts performed in pursuance of public duty or authority as contemplated in s 47A Limitation Act. In terms of its scope and operation, s 47A was intended to mirror the equivalent provision contained in the English Public Authorities Protection Act 1893 (Imp) (UK): see Smith 159 ALR 431 at 435, 444 and 448. In the context of the English Act, Australian courts have recognised that these words are directed to the carrying on of 'some undertaking of a public nature for the benefit of the community or of some section or geographical division of the community': Renmark Hotel Inc. v Federal Commissioner of Taxation (1949) 79 CLR 10 at 16 and 18. It is not necessary, according to Smith 159 ALR 431, that the public duty or authority be one of or in relation to the State of Western Australia (at 447-448). 134 CASA contend that additionally, on both a literal and purposive interpretation of s 47A Limitation Act, the section is capable of applying to Commonwealth entities for the following further reasons: On a literal approach, the definition of a 'person' in the Limitation Act 'includes a body corporate' (by s 3). The use of the word 'includes' extends rather than restricts the definition of person. There is no definition of 'body corporate' in the Interpretations Act 1984 (WA). It would be reasonable though to treat CASA as a body corporate as its own legislation reflects in s 8 CAA and see also Alcoa of Australia Ltd v State Energy Commission (WA) (1995) 17 WAR 112. 135 Perhaps more importantly on a purposive approach, the term 'person' was used in the English Act on which s 47A was modeled. It would be reasonable to expect that the term person should apply to all 'persons who are in some sense public authorities': Posner v Roberts [1986] WAR 1. 136 CASA argues that acts performed in pursuance of a positive or proactive statutory duty imposed on an entity are generally considered acts performed in the exercise of a primary statutory function rather than pursuant to any incidental or ancillary power (State Energy Commission (WA) v Alcoa of Australia Ltd (1996) 17 WAR 131 at 137-138 and 157). As the conduct was conduct which occurred in the active pursuit of positive obligations imposed on CASA by s 9 of the CAA, CASA argues that s 47A Limitation Act would protect any such acts. CASA also contends that the approach taken by the Supreme Court of Western Australia to s 47A Limitation Act in misfeasance cases is that the provisions will apply equally to those provisions: Carioca Pty Ltd v Water Authority of WA (Supreme Court, Master Bredmeyer, 11 April 1995, Supreme Court Library Number 950168), Bailey v Minister for Education [2000] WASC 50 and on the Court of Appeal, Minister for Education v Bailey (2000) 23 WAR 149 (at [8]). 137 In summary, CASA's submission is that to decline to apply s 47A Limitation Act to the present case would be inconsistent with intended policy embodied in the Act. The policy is simply that after the 12 month stipulated period that: the justice of every case will be best served by not permitting a dilatory plaintiff to ventilate a cause of action against a prospective defendant, no matter what merits his case may be seen objectively to possess. It is at that point that potential injustice to a plaintiff is by the statute outweighed by the interests of the prospective defendant not to be further exposed to the expense and inconvenience of defending an action and not to be exposed to the liability which might arise. (Matheson v Commissioner of Main Roads (2001) 25 WAR 269 (at [25]). 138 The applicants contend that as CASA is an emanation of the Commonwealth effectively performing what is a governmental function, it is for the purposes of s 64 of the Judiciary Act,the Commonwealth. Accordingly, CASA's rights in litigation are equated to those of the ordinary citizen not to the rights of 'a very particular kind of defendant' as explained in British American Tobacco Australia Ltd (at [25]) per Gleeson CJ. The specific submission of the applicants is that neither the Crown in the right of the State nor the Crown in the right of the Commonwealth can have the benefit of s 47A Limitation Act. For this purpose it is said that CASA is the Crown in the right of the Commonwealth. 139 Even if this were not so, the remaining argument for the applicants is that assuming s 47A does apply in respect of the action against the individual respondents, it cannot affect the claim insofar as it relates to misfeasance in office as misfeasance in office does not involve an act falling within s 47A Limitation Act because it involves an act which is done otherwise than in pursuance of execution or intended execution of the relevant power and it involves not only a failure or neglect in the performance of a duty but the willful doing of an act outside the ambit of the execution of the duty. There are no material facts pleaded which are satisfactorily capable of supporting a claim of misfeasance in public office and accordingly, that aspect of the claim will not be allowed in any event. It follows that to the extent the limitation argument depends on the misfeasance claim, it cannot be considered. 140 On present indications I consider there is force in the submission by CASA that the pre-2005 causes of action which the applicants would seek to ventilate are statute barred. It is possible, however, that they are capable of being protected by the combined operation of s 64 and s 79 of the Judiciary Act or possible that the State Act does not apply in the first place but that depends on what is left of the pleading. Once again, it is too early to reach a conclusion because the majority of the proposed pleading will not be allowed and the present statement of claim will be struck out. What will be left after that time may or may not be a statute barred claim but I do not propose to speculate at present. 141 I have, however, set out the current state of the arguments as I understand them, both for completeness and in anticipation that their more elaborate development in oral argument may be taken into account in a future pleading, if any. In my view as will be seen, there is no basis for a claim founded on breach of a statutory duty either against CASA or the individuals and there is no basis for a claim in misfeasance. 142 As will be evident, I do consider that, at least in theory, there is available, a claim in negligence. A claim in negligence may import as a particular of the duty owed, reference to the statutory criteria by which a duty should be discharged and/or it may refer to a failure to comply with a statutory obligation as being part of the breach of the duty which is owed. That is a different concept from suing for damages on the basis of breach of a statutory duty. On the material facts pleaded to date and foreshadowed in the proposed statement of claim in the minute under consideration, there is no such claim available. DUTY OF CARE – PURE ECONOMIC LOSS 143 In Sutherland Shire Council v Heyman (1985) 157 CLR 424 at 458-459 Mason J (as his Honour then was) stated (footnotes omitted): It is now well settled that a public authority may be subject to a common law duty of care when it exercises a statutory power or performs a statutory duty. The principle that when statutory powers are conferred they must be exercised with reasonable care, so that if those who exercise them could by reasonable precaution have prevented an injury which has been occasioned, and was likely to be occasioned, by their exercise, damages for negligence may be recovered (Caledonian Collieries Ltd. v. Speirs; Benning v. Wong) has been applied mainly to private Acts. However, it has been frequently applied in Australia to public authorities, notably public utilities, exercising powers under public statutes: Sermon v. Commissioner of Railways; Essendon Corporation v. McSweeney; Metropolitan Gas Co. v. Melbourne Corporation; South Australian Railways Commissioner v. Barnes; Cox Bros. (Australia) Ltd. v. Commissioner of Waterworks; South Australian Railways Commissioner v. Riggs; Voli v. Inglewood Shire Council; Birch v. Central West County District Council. While some early statements of the principle suggest that the power given by statute is conditioned upon it being exercised without negligence so that negligent exercise amounts to an excess of authority (McSweeney; Metropolitan Gas Co.), the better view has always been that the cause of action in negligence arises under the principle by virtue of a breach of a duty of care existing at common law: Geddis v. Proprietors of Bann Reservoir; London and Brighton Railway Co. v. Truman; Fullarton v. North Melbourne Electric Tramway and Lighting Co. Ltd; East Suffolk Rivers Catchment Board v. Kent; Riggs. And at least since the decision in Fisher v. Ruislip-Northwood Urban District Council and Middlesex County Council, it has been generally accepted that, unless the statute manifests a contrary intention, a public authority which enters upon an exercise of statutory power may place itself in a relationship to members of the public which imports a common law duty to take care. 144 So, for example, see Skyways Pty Ltd (In Liq) v Commonwealth (1984) 57 ALR 657 where it was held in the Supreme Court of New South Wales (per Lusher J) that a duty of care could be owed by the Commonwealth under the Air Navigation Act 1920 (Cth) arising from the circumstances in which a mid-air collision in airspace under the supervision and control of the Commonwealth occurred. A duty of care had been held in cases such as Pyrenees Shire Council v Day (1998) 192 CLR 330. 145 In Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540, Gummow and Hayne JJ (at [149]-[154]) held (footnotes omitted): 149 An evaluation of whether a relationship between a statutory authority and a class of persons imports a common law duty of care is necessarily a multi-faceted inquiry. Each of the salient features of the relationship must be considered. The focus of analysis is the relevant legislation and the positions occupied by the parties on the facts as found at trial. It ordinarily will be necessary to consider the degree and nature of control exercised by the authority over the risk of harm that eventuated; the degree of vulnerability of those who depend on the proper exercise by the authority of its powers; and the consistency or otherwise of the asserted duty of care with the terms, scope and purpose of the relevant statute. In particular categories of cases, some features will be of increased significance. For example, in cases of negligent misstatement, such as Tepko Pty Ltd v Water Board, reasonable reliance by the plaintiff on the defendant authority ordinarily will be a significant factor in ascertaining any relevant duty of care. 150 The factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority. It assumes particular significance in this appeal. This is because a form of control over the relevant risk of harm, which, as exemplified by Agar v Hyde, is remote, in a legal and practical sense, does not suffice to found a duty of care. … 153 As Lindgren J observed in the Full Court, the relationship between the Council and the oyster consumers is indirect; it is mediated by intervening conduct on the part of others. Between the Council on the one hand and the oyster consumers on the other, there stands, in the present case, an entire oyster-growing industry comprising numerous commercial enterprises, each of which, in pursuit of profit, engages in conduct that presents an inherent threat to public safety. That threat arises from the insusceptibility of oysters to effective and reliable tests to identify contamination of the type that eventuated here. 154 In broad terms, the Council's statutory powers enabled it to monitor and, where necessary, to intervene in order to protect, the physical environment of areas under its administration. However, the conferral on a local authority of statutory powers in respect of activities occurring within its boundaries does not itself establish in that authority control over all risks of harm which may eventuate from the conduct therein of independent commercial enterprises. … And McHugh J said (at [84]-[85]) (footnotes omitted): 84 Where a plaintiff claims that a public authority owed him or her an affirmative duty of care in a situation that has not yet been recognised by the common law, the court must examine a number of matters to determine whether the duty existed. I pointed to these matters in Crimmins v Stevedoring Industry Finance Committee: . Would a reasonable public authority reasonably foresee that its act or omission, including a failure to exercise its statutory powers, might result in injury to the plaintiff or his or her interests? . Was the authority in a position of control and did it have the power to control the situation that brought about the harm to the injured person? . Was the injured person or his or her interests vulnerable in the sense that the injured person could not reasonably be expected to adequately safeguard himself or herself or those interests from harm? . Did the public authority know, or ought it to have known, of an existing risk of harm to the plaintiff or, in some cases, to a specific class of persons who included the plaintiff (rather than a risk to the general public)? . Would the imposition of the duty of care impose liability with respect to the defendant's exercise of "core policy-making" or "quasi-legislative" functions? . Is there any supervening policy reason that denies the existence of a duty of care? 85 If the first four of these questions are answered in the affirmative and the fifth and sixth questions in the negative, the court will ordinarily hold that the authority owed a duty of care to the plaintiff. Conversely, if any of the first four questions are answered in the negative or either of the fifth and sixth questions are answered in the affirmative, ordinarily no duty of care will arise. 146 The nature of the control exercised by CASA over the conduct of flight and air operations is substantial. Equally the degree of vulnerability of those conducting operations under the auspices of the air operations regime administered by CASA is significant. It is also to be noted that in Northern Territory v Mengel (1995) 185 CLR 307, Mason CJ, Toohey, Gaudron and McHugh JJ (at 348) held: If it were the case that governments and public officers were not liable in negligence, or that they were not subject to the same general principles that apply to individuals, there would be something to be said for extending misfeasance in public office to cover acts which a public officer ought to know are beyond his or her power and which involve a foreseeable risk of harm. But in this country governments and public officers are liable in negligence according to the same general principles that apply to individuals. 147 The respondents contend that no cause of action in negligence can lie against a body such as CASA because CASA does not owe a duty of care to persons in the position of the applicants. In that regard CASA relies on Commonwealth v Griffiths (2007) 70 NSWLR 268 at [125]-[131]. The applicants contend that Griffiths turns on a finding that the Australian Government Analytical Laboratories in carrying out the role of analysing a substance seized by the police and alleged to be a prohibited drug was playing an 'integral role in law enforcement' such that the statutory role and the duties of the statutory role were inconsistent with a common law duty of care owed to persons who might be affected by their actions. In one sense there may be a parallel with CASA's role in that regard. In Sullivan v Moody (2001) 207 CLR 562, the High Court said (at [60]): The circumstance that a defendant owes a duty of care to a third party, or is subject to statutory obligations which constrain the manner in which powers or discretions may be exercised, does not of itself rule out the possibility that a duty of care is owed to a plaintiff. People may be subject to a number of duties, at least provided they are not irreconcilable. A medical practitioner who examines, and reports upon the condition of, an individual, might owe a duty of care to more than one person. But if a suggested duty of care would give rise to inconsistent obligations, that would ordinarily be a reason for denying that the duty exists. Similarly, when public authorities, or their officers, are charged with the responsibility of conducting investigations, or exercising powers, in the public interest, or in the interests of a specified class of persons, the law would not ordinarily subject them to a duty to have regard to the interests of another class of persons where that would impose upon them conflicting claims or obligations. 148 In Griffiths the Court said (at [125]-[126]: Alleged duty of care of AGAL: the Sullivan v Moody issue 125 Mr Griffiths' primary argument in respect of the question whether AGAL and Mr Ballard owed a duty of care was that that question could not be determined summarily. It was submitted that the relationship and the nature of the arrangements made between AGAL and the New South Wales police needed to be examined to determine whether the work undertaken by AGAL in relation to the analyses conducted by Mr Ballard was such as to give rise to a duty of care and if so, what the scope of that duty was. As Gummow J remarked in Roads and Traffic Authority (NSW) v Dederer (2007) 81 ALJR 1773 at 1784 [43]; 238 ALR 761 at 772 [43]: "... duties of care are not owed in the abstract. Rather, they are obligations of a particular scope, and that scope may be more or less expansive depending on the relationship in question". 126 AGAL contends that it owed no duty of care to Mr Griffiths. It was submitted that the duty of care as alleged against it was, properly characterised, a duty to control Mr Ballard's exercise of the statutory power given to him under s 43 of the Drug Misuse and Trafficking Act to undertake analysis of the seized substances and to issue a certificate of analysis. It was submitted that no such duty existed: see Sullivan v Moody (especially at 580–582). 149 The applicants argue that the question as to whether the statutory duty is inconsistent with the existence of a common law duty of care requires careful analysis of the precise statutory function being performed at the relevant time and the mere fact that the defending party is subject to a statutory obligation constraining the manner in which powers or discretions may be exercised does not of itself rule out the possibility that a duty of care is owed to a claimant (see Sullivan v Moody). 150 In Stuart v Kirkland-Veenstra (2009) 237 CLR 215 the Chief Justice also pointed out that where a body has a statutory power and exercises it in a way that is inconsistent with a duty of care, any claim is really a claim for damages for negligence. His Honour observed (at [48]) (footnote omitted): That is so, and remains so, notwithstanding the considerable body of jurisprudence on the tortious liability arising out of the exercise or non-exercise of statutory powers. The Court at all times is concerned with the application of "private law notions of duty", albeit they are applied in the field of the exercise of powers under public statutes. 151 In my view, it is not possible to conclude that a claim in negligence is not open. Especially when the proposed pleading is far from complete. 152 There is nothing in principle in the pleading which would render the cause of action the applicants propose to pursue as one which should be entirely struck out. At present it is inadequately pleaded. I would not be prepared at this stage to strike out the negligence plea. BREACH OF STATUTORY DUTY 153 The general assertion of the applicants is that the respondents and prospective respondents owed a statutory duty to them to exercise statutory powers and perform statutory functions in accordance with the provision of legislation governing such exercise and performance and in accordance with good faith. 154 No statutory provision encapsulating those obligations has been identified. 155 It appears, however, to be common ground that for a claimant to succeed in an action for breach of statutory duty, he or she must establish that he or she was a member of the class of individuals that the statute was intended to protect and that the injury was of a kind which was the object of a statute to prevent. 156 But more importantly, from the respondents perspective, the dominant argument is that if the action for breach of statutory duty would have the effect of indirectly raising the correctness of an administrative decision, no action for breach of statutory duty would lie as the decision is more suitable for judicial review: Calveley v Chief Constable of Merseyside [1989] 1 AC 1228. Each of the claims in breach of statutory duty is based on an alleged breach of regulation which for the purposes of the present argument may be assumed to be a correct interpretation although as indicated elsewhere in these reasons, the interpretation is challenged by the respondents. 157 CASA submits that the statutory scheme being of essentially public character does not disclose a legislative intention to accord to the applicants or persons such as the applicants a private right to sue for any breach of 'public' statutory duty. As noted in Stuart v Kirkland-Veenstra by Crennan and Kiefel JJ (at [142]), '[t]he requirement of legislative intention concerning the availability of a cause of action has been regarded as the defining feature of the action for breach of statutory duty'. The statute, in effect, must 'oblige' the exercise of powers in the circumstances which prevail and do so in a specific or relevant way. 158 Breaches which constitute an exercise of powers in a way that was either contrary to the views of the party affected by the decision or contrary to the merits or the interests of the applicants, could never, taken alone, constitute a breach of a statutory duty to ground a private cause of action in damages: Murdesk Investments Pty Ltd v Roads Corporation [2005] VSC 39 (at [20]). 159 There is no private right for damages arising from the exercise of administrative powers when there is a statutory right of review of such exercise. As established in Jones v Department of Employment [1989] QB 1 (at 22 and 25), where an exercise of statutory power is subject to a right of review and the decision-maker exercises the power in good faith, the exercise of the power will not give rise to a common law duty of care: see also X v South Australia (No 3) [2007] SASC 125 (at [189] and [196]) and Gimson v Victorian WorkCover Authority [1995] 1 VR 209. The theory behind this principle is that even if some 'negligence' has been proven, it can be cured by an appeal process. The existence of the appeal process is sufficient to remove reliance on breach of any duty of care. 160 This Court has reached similar conclusions in Scott v Secretary, Department of Social Security (2000) 65 ALD 79, Scott v Pedler [2004] FCAFC 67 and Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898. In Scott v Secretary, in the joint judgment of Beaumont and French JJ at [19] they said: 19 We agree with the trial Judge that the Act is not to be interpreted as indicating an intention to confer a private right of action for a breach of any of its provisions now in question, given especially the existence in the legislation of particular mechanisms for the review of decisions made within the department. 161 The conclusion was cited with approval by the Full Court in Scott v Pedler (at [93]). Conti J further stated at [101]: 101 The authorities which have been cited in these reasons reveal a confined or restricted availability of any viable causes of action for damages at the instance of persons claiming to have been injured by the exercise of administrative power. So much has been exemplified by the High Court decisions in Crimmins, Sullivan, Graham Bailey Oysters and Shaddock, and by the majority judgment of the Full Federal Court in the earlier Scott litigation. ... 162 I am unable to accept that there is a valid basis established for a claim in damages for breach of statutory duty. That is because there is no indicia in the statutory regime that such a claim should lie. MISFEASANCE IN PUBLIC OFFICE 163 In Three Rivers District Council v Bank of England (No 3) [2000] 2 WLR 1220 at 1230 Lord Steyn said of misfeasance in public office that: The rationale of the tort is that in a legal system based on the rule of law, executive or administrative power "may be exercised only for the public good" and not for the ulterior and improper purposes. 164 The ingredients of the tort are that: (a) the 'defendant' must be a public officer; (b) the impugned conduct must be the exercise or the purported exercise of power as a public officer; (c) there must be malice in the exercise of the power. In other words, the power must be exercised for an ulterior purpose, with the intention of injuring the plaintiff. It is sufficient for the purpose if the public officer acts with knowledge that he has no power so to act or recklessly disregarding whether he has such power and knowing that his or her action will injure the plaintiff or a class of people which includes the plaintiff or if there is reckless indifference to the probability of causing injury to the plaintiff; (d) the plaintiff must have sufficient interest to found a legal standing to sue; (e) the wrongful act causes the plaintiff's injury; (f) the damage must not be too remote. See also Mengel at 347. 165 The applicants argue that there is misfeasance in office where a person uses the power of his or her office not for the purpose for which it was given but for a collateral purpose, namely, to cause harm to a person subject to that power. The applicants claim they were members of the public to whom the respondents owed a duty to exercise their power legitimately, namely, only in the public interest and not for an ulterior purpose (Cannon v Tahche (2002) 5 VR 317 at [28])). Similarly, the applicants argue that CASA and its officers owed the applicants a duty to exercise their statutory powers in good faith, reasonably and for a proper purpose, a duty stemming both from statute and from common law. Under statute, the provision in s 23 of the CAC Act provides: 23 Good faith—civil obligations Good faith—officers (1) An officer of a Commonwealth authority must exercise his or her powers and discharge his or her duties: (a) in good faith in the best interests of the Commonwealth authority; and (b) for a proper purpose. Note 1: This subsection is a civil penalty provision (see Schedule 2). Note 2: Section 187 of the Corporations Act 2001 deals with the position of directors of wholly owned subsidiaries of Commonwealth authorities. Note 3: Section 27A makes provision for persons who are also APS employees or Agency Heads. (2) A person who is involved in a contravention of subsection (1) contravenes this subsection. Note 1: Section 5 defines involved. Note 2: This subsection is a civil penalty provision (see Schedule 2). Note 3: Section 27A makes provision for persons who are also APS employees or Agency Heads. 166 Moreover, under s 84B of the CAA, the director of CASA has the function of ensuring that CASA performs its functions in a proper, efficient and effective manner. The applicants argue that the common law duty to exercise statutory powers in good faith, reasonably and for a proper purpose appears from the following cases: Buck v Bavone (1975) 135 CLR 110 at 118 per Gibbs J (as his Honour then was) where it was held that where a public body is invested with statutory powers it 'must act in good faith; it cannot act merely arbitrarily or capriciously.' Reliance is also placed on Westminster Corporation v London and North Western Railway Co [1905] AC 426 at 430 and Thompson v Randwick Corporation (1950) 81 CLR 87 at 105. 167 I accept the respondents' submissions that the pleading of misfeasance and/or lack of good faith should be struck out. The applicants' allegation of misconduct by individual CASA officers who have made administrative decisions or are the signatory of various instruments are totally speculative. They are allegations without foundation. There is no factual basis pleaded for the assertions and the frank concessions made in the course of argument by senior counsel for the applicants makes it clear that the applicants have no material at present on which they can properly bring a claim against officers of CASA for acting in bad faith or, alternatively, acting recklessly. These pleadings are simply accusations made which on their face are vexatious. If the pleading survives and if discovery is given and additional material comes to light, the position may theoretically change. For present purposes, however, there is no basis upon which any of the claims against the individual officers can be maintained. All of the claims against the individuals in this proceeding will be struck out and/or disallowed in terms of any existing application to amend. 168 The applicants have not sought pre-action discovery but have simply instituted the proceedings. Pre-action discovery would have facilitated not only expedition but the potential elimination of claims which without such discovery cannot properly be made. The proper course for the applicants in these proceedings was to pursue pre-action discovery to allow them, if granted, to obtain sufficient information to decide whether to commence proceedings and, if so, against whom. The High Court has recently reinforced the proposition that an application for leave to amend a pleading should not be approached on the basis that a party is, in effect, automatically entitled to raise an arguable claim subject to payment of costs by compensation. There is no such entitlement. CONCLUSION 169 The outcome of this analysis in its entirety is that the only claim capable of surviving would be a claim in negligence against CASA, not against its individual officers. An entire re-pleading is necessary – there is no point in trying to save bits and pieces of the minute. 170 I propose granting a period of six weeks within which the applicants can file an amended minute which should take into account the substance of these reasons. That minute will stand as the further amended statement of claim. Filing that amended pleading will not preclude CASA from challenging the pleading. CASA should have the costs of this motion and any costs thrown away in any event. 171 I will order that: 1. The amended statement of claim be struck out. 2. The minute of proposed further amended statement of claim be disallowed. 3. The applicants have six weeks to file and serve a further amended statement of claim reflecting these reasons, the filing and service of which is without prejudice to the respondents' right within 28 days to challenge that pleading. 4. The applicants are to pay the respondents' costs of the motions in any event. I certify that the preceding one hundred and seventy-one (171) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 11 December 2009 Counsel for the Applicants: PG Nash QC with PW Lithgow Solicitor for the Applicants: Maitland Lawyers Counsel for the Respondents: I Harvey Solicitor for the Respondents: Blake Dawson Date of Hearing: 30 July 2009 Date of Last Written Submissions: 23 September 2009 Date of Judgment: 11 December 2009	29,060
federal_court_of_australia:fca/single/1999/1999fca1341	decision	commonwealth	federal_court_of_australia	text/html	1999-09-24 00:00:00	McDade v United Kingdom [1999] FCA 1341	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1999/1999fca1341	2024-09-13T22:52:13.000295+10:00	FEDERAL COURT OF AUSTRALIA McDade v The United Kingdom [1999] FCA 1341 EXTRADITION – proceedings to determine eligibility for surrender – production of "supporting documents" – statement setting out "conduct constituting the offence" – whether statement may include acts and facts which go beyond those necessary to establish the offence – whether a separate statement is required in relation to each offence – whether statement must be self-sufficient or may be included in more than one document – whether statement may incorporate other documents by reference. Extradition Act 1988 (Cth), ss 10(2), 19(2)(a), 19(3)(c)(ii) Linhart v Elms (1988) 81 ALR 557 referred to Wiest v Director of Public Prosecutions (1988) 23 FCR 472 followed Todhunter v United States of America (1995) 57 FCR 70 referred to Zoeller v Federal Republic of Germany (1989) 23 FCR 282 followed Unkel v DPP (1990) 95 ALR 44 referred to United States of America v Holt (1994) 49 FCR 501 referred to STEPHEN GERARD McDADE v THE UNITED KINGDOM and PETER MALONE W 13 OF 1999 CARR J 24 SEPTEMBER 1999 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 13 OF 1999 BETWEEN: STEPHEN GERARD McDADE Applicant AND: THE UNITED KINGDOM First Respondent PETER MALONE Second Respondent JUDGE: CARR J DATE OF ORDER: 24 SEPTEMBER 1999 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application be dismissed. 2. The order of the second respondent, made on 5 February 1999, is confirmed. 3. The applicant pay the first respondent's costs of the application. 4. The above orders shall not take effect until 1 October 1999 at 4.30 pm. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 13 OF 1999 BETWEEN: STEPHEN GERARD McDADE Applicant AND: THE UNITED KINGDOM First Respondent PETER MALONE Second Respondent JUDGE: CARR J DATE: 24 SEPTEMBER 1999 PLACE: PERTH REASONS FOR JUDGMENT Introduction 1 This is an application under s 21(1) of the Extradition Act 1988 (Cth) ("the Act") for review of a decision made on 5 February 1999 by the second respondent, Mr Peter Malone, a Stipendiary Magistrate at the Court of Petty Sessions, Perth. The second respondent determined, pursuant to s 19(9) of the Act, that the applicant, Stephen Gerard McDade, was eligible for surrender to the United Kingdom in relation to eighteen offences contrary to ss 1 and 15 respectively of the Criminal Law Act 1977 (UK). So far as s 1 of the Criminal Law Act is concerned, the charges are of stealing, dishonestly obtaining, or attempting to obtain various items of property, banking facilities and credit facilities. The charges under s 15 of that Act allege dishonestly obtaining various items of property or cash with the intention of permanently depriving by deception. Factual and Procedural Background 2 The applicant was born on 8 March 1958 in Scotland. On 15 July 1991, the applicant, his wife and two young children, arrived in Australia having obtained the necessary immigration approval in London about one year earlier. On 9 August 1994 a warrant for the arrest of the applicant was issued by a Justice of the Peace for the Inner London Area in respect of twenty-three proposed charges. On 9 September 1994 the British High Commission in Canberra issued a Diplomatic Note, No 58, seeking the extradition of the applicant to the United Kingdom. On 20 April 1997 the Attorney-General of the Commonwealth of Australia issued a notice under s 16 of the Act reciting the fact that an extradition request had been received in respect of the applicant and that in the Attorney's opinion the applicant was an extraditable person, that his alleged conduct constituted extradition offences and that there was no extradition objection. On 9 June 1997 Mr Robert Brian Lawrence, a Stipendiary Magistrate in Perth, issued a warrant for the arrest of the applicant. The applicant first appeared before the Court of Petty Sessions on 10 June 1997. After a number of remands or adjournments, the second respondent conducted proceedings on 1 February 1999 to determine whether the applicant was eligible for surrender. He made that determination on 5 February 1999. After reviewing the documents before him, the second respondent determined, under s 19(9) of the Act, that the applicant was eligible for surrender to the United Kingdom in relation to eighteen of the twenty-three offences relied upon by the first respondent. He ordered that the applicant be committed to prison to await surrender. On 11 February 1999 the applicant lodged this application for review. There was no appearance on behalf of the second respondent. The first respondent appeared and opposed the application. On 26 March 1999, R D Nicholson J ordered that the applicant be released on bail on stringent terms and conditions. The Issue to be Decided 3 Section 19 of the Act relevantly provides that a person is only eligible for surrender in relation to an extradition offence if the supporting documents in relation to the offence have been produced to the magistrate – see s 19(2)(a). Section 19(3)(c) includes as one of the required supporting documents: "(ii) a duly authenticated statement in writing setting out the conduct constituting the offence." 4 Section 10(2) provides that a reference to conduct constituting an offence is a reference to the acts or omissions, or both, by virtue of which the offence has, or is alleged to have, been committed. 5 The only ground of review relied upon by the applicant is that the second respondent erred in ruling that a summary of evidence and allegations, produced to him at the proceedings referred to above, was a valid and sufficient statement for the purposes of s 19(3)(c)(ii) of the Act and that accordingly s 19(2)(a) had been complied with. That is the issue to be decided. The relevant document was identified in the proceedings before the second respondent as Exhibit 139. I shall, in these reasons, refer to it as "the Statement". 6 The only express requirement of a statement (so far as is relevant to this matter) in the Act is that it sets out the conduct constituting the offence. Before describing the Statement and then assessing whether it meets the requirements of the Act, I shall first refer to the purposes of such a statement, and to the form which it is required to take. In Linhart v Elms (1988) 81 ALR 557 at 575 Fox J, after considering the need for particularity in the relevant statement, said: "The object of the particularity is partly so that the aspect of double criminality (in its muted form) can be considered adequately, and partly so that s 13, the speciality provision, becomes more patently applicable." At 583 Gummow J said: "It follows that for a statement to satisfy the description in sub-para (C), it must speak with sufficient specificity to enable the magistrate to be satisfied that the fugitive in question is liable to be surrendered: s 17(6)(b). This involves consideration of the sufficiency of the statement to enable proper consideration of the application to the particular case of s 4(1A) and (1B) and s 13 [these were references to the double criminality and speciality provisions of the 1966 Act]. Again an inquiry as to whether a statement satisfies the description within sub-sub-para (C) will be a matter for practical judgment and assessment, bearing in mind the prohibition in s 17(6A) upon the production of evidence by the fugitive to controvert the commission by the fugitive of the acts or omissions in respect to which the surrender is requested." 7 In addressing the form of the statement relied upon in Linhart, Gummow J made this observation at 583: "They [the specifications of the offences] do not set out in the necessary sense "the act or omission" in respect of which the surrender of the appellants is sought. They are a bare summary of some of the elements involved. Plainly, these deficiencies are sought in each case to be remedied by what is to be drawn for each case from the general words of the introductory matter I have set out above. However, this serves only to compound the problem. The introductory matter contains within it various assertions, some of which are in themselves ambiguous and some of which are obscured alternatives to other assertions. In any given instance of charges C-X, it would require removal of the ambiguities in the general statement and a choice between alternatives before the reader would be able to put the jigsaw together and then ask what it is that "sets out" the act or omission in respect of which surrender is sought." 8 In Wiest v Director of Public Prosecutions (1988) 23 FCR 472 at 519, Gummow J (with whom Sheppard J agreed) said: "The duly authenticated statement in writing setting out all the acts or omissions in respect of which surrender is requested, serves several purposes. It assists consideration of whether extradition is sought in respect of extradition crimes which satisfy the "double criminality requirements …". It also assists in determination of whether the "speciality" provisions … are met. Further, it may assist in deciding whether an offence of a political character is involved …". 9 In Todhunter v United States of America (1995) 57 FCR 70 at 90 (another decision of a Full Court of this Court), the Court observed: "It is undoubtedly the case that the provision of a statement setting out the conduct constituting the offence, being the acts or omissions or both by virtue of which the offence has or is alleged to have been committed … is significant for the operation of s 19(2)(c)." 10 I note that the Act as substantially amended in 1988 is expressed in terms which, at first glance, might appear to be relevantly different. The Act at present requires a statement setting out "the conduct constituting the offence". Previously there was required a statement "setting out the act or omission in respect of which the surrender is sought". However, the provisions of s 10(2), which I have summarised above, result in there being no difference relevant to the present matter, between the former s 17(6)(a)(i)(C) and the current s 19(3)(c)(ii). 11 There is no suggestion that offences of a political character are involved in this matter. Accordingly the Statement needs to be assessed, in my opinion, to see whether it satisfies the purposes of identifying offences which satisfy the double criminality requirement and enables the speciality provision to operate properly. By that I mean, first, that it should be reasonably apparent from the Statement which acts are the acts upon which the first respondent relies as constituting the extradition offences for which the surrender of the applicant is sought, so that the second respondent (the Stipendiary Magistrate) can assess whether those acts would have constituted an offence in Western Australia. Secondly, it should also be reasonably apparent that if the first respondent were to seek to prosecute the applicant in England for an offence which was not the subject of the extradition request, the applicant could only be convicted on that fresh charge, on proof of the conduct which constituted the surrender offence or offences. Section 22(4)(d)(ii) which relevantly qualifies the speciality principle, does so in terms of any offence "… of which the eligible person could be convicted on proof of the conduct constituting any surrender offence". 12 There are other cases which provide guidance on the requirements of a statement. In Zoeller v Federal Republic of Germany (1989) 23 FCR 282 at 297, a Full Court of this Court referred to the form and content of the required statement and said: "What is relevantly required is a statement of what is alleged to have been actually done or omitted, not a mere restatement of the charge in respect of which extradition is sought." 13 In Wiest at 483 Sheppard J stated: "It seems to me that the Act provides for a simple and straightforward procedure. All it requires is a duly authenticated statement in writing setting out all the acts or omissions in respect of which the surrender of the person is requested. No doubt such statements may take a variety of forms, but with the assistance and advice which is apparently made available to countries seeking extradition of accused or convicted persons from Australia, I would have thought that it was not asking too much to expect a clear and unambiguous statement of the relevant acts and omissions, even if they be lifted (which it may well be appropriate to do in a given case) from another document such as the judgment here. Extradition is after all a serious affair and there should be no room for uncertainty or misunderstanding." 14 The applicant contends that the Statement is not valid, for several reasons. I shall deal with those contentions under four headings. But before doing so I shall describe, by way of summary, the contents of the Statement. I must stress that when I appear to be stating facts in this part of my reasons, I am only reciting or paraphrasing the allegations contained in the Statement. The Statement is a 19 page document, containing 126 numbered paragraphs, prepared by Detective Inspector David Cook of the Metropolitan Police Service in London. Det Insp Cook, in his affidavit, described the Statement as "… a report containing a summary of the investigation and allegations against Stephen Gerard McDade". A general idea of the contents of the Statement can be gleaned from the first four introductory paragraphs which read: "1. This report deals with the criminal activities of Stephen Gerard McDADE and his wife Louise EDDERY, between the period 1989 and 1991, whilst Stephen McDADE was employed by the travel company Bladon Lines. 2. The crimes themselves although relatively simple, are complicated by the volume of offences, the time over which they were committed and the fact that aliases were used by both parties. 3. Although there is a considerable amount of evidence within this report to support the allegations, to make sense of what has happened it will be necessary to include some valid suppositions. When however this is done they will be clearly indicated. 4. Also to enable the reader of this report to have a full understanding of what this case is all about it (sic), this report has been subdivided into the following seven sections; i. Background information on Stephen McDADE ii. Resume of the full circumstances iii. The offences committed, relevant evidence and witnesses." 15 There then follow four paragraphs of background information including the applicant's date of birth and some particulars of his employment. Next there is a section headed "Resume" comprising 24 paragraphs. That section refers to the applicant's two applications to emigrate from England to Australia. There is then a description of a method whereby the applicant is said to have obtained sufficient particulars to enable him to assume the identity of three named individuals in London. Those individuals were Christopher John Seaborn, Peter Taylor and Neil Proctor. The applicant is said to have placed an advertisement in the "Fulham Post" and "Chelsea News" newspapers of Thursday 16 March 1989 for a chauffeur's position with a salary of Ł15,000 per annum, plus accommodation. Prospective employees were asked to contact a Mr Nigel Cunningham at the Hilton Hotel in London on a given telephone number on Saturday 18 March 1989 between 12 noon and 5 pm. Each of Messrs Seaborn, Taylor and Proctor telephoned the given number and had a lengthy discussion about the job opportunity. They then, as requested, each sent a full curriculum vitae including national insurance numbers, bank account details, passport details, driving licence particulars and a current photograph. None of them heard anything further. About three weeks later Mr Seaborn went to the Hilton Hotel, but nobody knew anything about Mr Cunningham. Details are then provided in the Statement of how the applicant, using the name Christopher Seaborn, and a reference in that name, obtained employment as a residential caretaker with Bladon Lines at their building at 56-58 Putney High Street in Putney. The significance of the address appears below. Bladon Lines are, apparently, the largest ski tour operators in England having offices on three floors in that building with the caretaker's flat being on the top floor. The applicant's duties as residential caretaker included office security and the conduct of the mail room. He had access to the whole of the building at all hours. Bladon Lines provided the applicant with a reference so that he could open an account with Barclays Bank Ltd in Putney. The applicant started work on 3 July 1989. This part of the Statement concludes with a description of how the applicant and his then de facto wife (Ms Louise Eddery) departed, without notice, at some time between Monday 1 July 1991 and Tuesday 2 July 1991. Employees of Bladon Lines arrived at their offices on that Tuesday to find what appeared to have been a burglary with a number of computers, laser printers, a fax machine and a Pentax camera missing. (It subsequently transpired that there were many other items missing, to a value of approximately Ł23,000). They then found that the caretaker's flat was vacant, and that the personal possessions of the applicant and his family had been removed, as had virtually all the furnishings. 16 The next part of the Statement is headed "The Offences Committed". It is in narrative form and describes, initially, the fact that the applicant obtained employment using both false references and a false identity. This (paragraph 33 when read with earlier paragraphs) is clearly a reference to charge No 1. I pause here to note that the second respondent, at the eligibility hearing to which I have referred above, concluded that there was insufficient evidence of fraud so far as the obtaining of that employment was concerned, and determined that the applicant was not eligible for surrender in respect of that charge. He came to a similar conclusion in relation to the four conspiracy charges against the applicant and his wife. The first respondent has not sought review of those determinations. 17 The remainder of this part of the Statement comprises a detailed description, mainly in chronological order, of numerous transactions entered into by the applicant using the name Christopher Seaborn. They include obtaining a charge account with Marks & Spencer PLC and a personal loan account with that company. The unpaid balance of the charge card account with Marks & Spencer forms the basis of charge No. 7. The loan account was used to purchase some Ł5,000 worth of furniture in respect of which only one instalment of Ł257.16 was paid. That matter (obtaining the furniture) is not the subject of any charge. Then there is a description of the dealings of the applicant and Ms Eddery with the Woolwich Building Society in Putney, including the opening of accounts in the name of Christopher Seaborn and Louise Seaborn. The evidence is that Woolwich Building Society is owed in excess of Ł10,000 (charge No. 14). The narrative continues in like vein to describe transactions entered into by the applicant using the name Christopher Seaborn with numerous suppliers of goods and services. The descriptions are cross-referenced to statements from named employees of the various organisations involved. I think it is fair to say that in the last month before the applicant and Ms Eddery departed from London, there is a noticeable increase in the volume and frequency of the transactions which are described in the Statement. 18 After the applicant's departure, Bladon Lines found that ten blank cheques were missing. They informed their bankers of that fact on 10 July 1991. However, as set out in paragraph 89 of the Statement, by that date, four of the cheques had been presented beyond redemption to a total value of Ł16,140.62. The statements of four persons are incorporated by reference into that paragraph. One of those persons was Mr Paul James Cox an employee of Barclays Bank PLC. Mr Cox describes how on 21 June 1991 a man went into the Wandsworth branch of his employer and completed an application form to open a particular type of account in the name of Peter Taylor. It will be recalled that one of the respondents to the advertisement in the "Fulham Post" was a Mr Peter Taylor who sent all of his particulars to the advertiser who gave his name as Mr Nigel Cunningham. The cheque, payable to Peter Taylor, in the sum of Ł5,126.87, was one of the missing cheques drawn on Bladon Lines account. The cheque having been cleared, Ł5,000 was withdrawn on 1 July 1991, being the day before the applicant's disappearance. Mr Cox's further evidence is that on 24 June 1991 a man went into the Fulham Broadway branch of his employer and completed an application form to open an identical type of account in the name of Neil Charles Proctor. Mr Proctor, it will be recalled, was the third of the would-be chauffeurs earlier referred to. The cheque tendered to open the account at Fulham Broadway was another of the ten cheques which were stolen from Bladon Lines. It was made payable to N Proctor in the sum of Ł4,810.02. On 1 July 1991 (again) Ł4,700 was withdrawn from that account. Paragraph 89 of the Statement incorporates by reference a statement from Mr Proctor that he had no involvement with the opening of the bank account in his name and had never seen the cheque for Ł4,810.02 made payable to him. He gives evidence in relation to the issue of a duplicate licence in his name which was sent to 56 Putney High Street, Putney, (where Bladon Lines had its offices and flat). Mr Proctor says that this was not as a result of any application from him and that he did not give anyone permission to apply for a licence in his name. Mr Cox also describes how on 24 June 1991 a man went into the Barnes branch of his employer and applied to open an identical type of account in the name of Simon Bladon with a cheque for Ł5,203.93 made payable to "S. Bladon". This was another of the ten cheques stolen from Bladon Lines. Once again almost all of that amount was withdrawn on 1 July 1991. 19 The remainder of the Statement and the documents incorporated by reference into it include a narration of the following facts: · departure of the applicant and Ms Eddery from the United Kingdom on 5 July to Canada and Fiji (where they were married on 12 July 1991) and their arrival in Sydney on 15 July 1991; · the movement of their personal effects and property to various places in London and then from London to Australia, and their location at the home of the applicant and his wife in Carine in Western Australia; · that the original passport applications made by the applicant and Ms Eddery were obtained from the United Kingdom passport authorities and the passport photographs were produced to employees of Bladon Lines who identified the applicant and Ms Eddery as persons known to them as Stephen Seaborn and his common law wife; · that Det Insp Cook and Det Sgt Morrison travelled to Perth to conduct further enquiries and found about 90% of the property alleged to have been stolen, or dishonestly obtained by the applicant, at the applicant's home; · the applicant's eventual admission to being Stephen McDade, having used the name Steven Seaborn and to having obtained all the property through credit, but that he denied criminality. From statements incorporated by reference it can be seen that the applicant initially denied being Stephen McDade and said that he was Michael McDade. (According to the Statement the applicant's brother Michael McDade pleaded guilty to dishonestly handling computers which were stolen from Bladon Lines and, on 4 July 1991 remitted sterling currency to the equivalent of $19,350 to the applicant's account at the Commonwealth Bank at Whitford, a suburb of Perth). 20 I now turn to the four bases upon which the applicant contends the Statement is invalid. 1. Whether the Statement is invalid because it includes facts or conduct which go beyond what is necessary to establish the offences, or which are irrelevant to the offences? 21 The applicant submitted that the Statement is invalid because it includes facts and conduct which go beyond those necessary to establish the offences, or are not relevant to the offences. The applicant contended that to hold otherwise would render the principle of double criminality and the principle of speciality of no practical effect. In summary, the principle of double criminality requires that an extradition offence be constituted by conduct that would amount to an offence in Australia, or the relevant part of Australia. The principle of speciality requires that a person surrendered to a requesting State not be tried for any offence, committed prior to surrender, other than that for which extradition was granted, unless the requesting State has first allowed the person adequate opportunity to leave that State again, or the Attorney-General consents. 22 Mr Aughterson, counsel for the applicant, submitted that unless a statement were so confined, a requesting State could "cook the books", in two ways. First, if under its law it was not necessary for a particular ingredient (such as intention, for example) to constitute part of the offence, but it was necessary under Australian law, then that ingredient could be inserted in the statement simply to satisfy the double criminality requirement. Secondly, if the requesting State were minded to prosecute for other and different charges upon the return of the person, they could "just throw in a few more facts as well to create some other offences not charged" to get around a speciality undertaking. 23 Authorities which bind me (and with which I respectfully agree), show that a statement does not have to be confined in the manner contended for by the applicant. In Zoeller the relevant statement was found in certain German warrants. The appellant contended that those warrants contained factual matters beyond that which would be absolutely necessary to establish each of the German offences. In rejecting that submission the Full Court said (at 299-300): "But it does not follow from the adoption of this legislative scheme either that the warrants in the present case are invalid because they contain a statement of facts which goes beyond the facts necessarily constituting the offence in Germany or that the magistrate may have regard only to those facts which are absolutely necessary ingredients of the foreign crime. The magistrate is no expert in foreign law. He is not required to determine what the facts are that are the minimum facts necessary to constitute the foreign crime. That there has been a foreign crime committed is for the purpose of the proceedings before the magistrate proved by the warrant duly authenticated. What the facts relevant to that crime are is proved by the duly authenticated statement under s 19(3)(c)(ii). That the offence is an extraditable offence is proved by the s 19(3)(c)(i) document. All the magistrate is required to do is, by reference to Australian law, to determine whether the conduct referred to in the s 19(3)(c)(ii) statement is an offence under the law of a State or Territory of Australia or Commonwealth law." 24 Mr Aughterson made a formal submission that the Full Court in Zoeller stated the principle too broadly. He said that the Court had departed from earlier authority to the effect that the phrase "conduct constituting the offence" referred to conduct necessary to prove the foreign offence. As an example of such earlier authority, Mr Aughterson referred to Linhart v Elms at 582. He said that in Zoeller the Full Court had focussed on the word "alleged" in the definition of "conduct constituting the offence" in s 10(2). He submitted that the reference in that sub-section to the acts by which the offence "has or is alleged to have, been committed" was merely a reference to the fact that extradition may be sought of a person either charged with or convicted of an offence, and that the words were not intended to effect a departure from the approach adopted under earlier extradition legislation. 25 I think that there are two answers to that submission. First, although Gummow J in Linhart v Elms at p 582 refers to "the essential elements or integers of an offence", I do not think that his Honour was holding that the relevant statement had to be confined to conduct necessary to prove the foreign offence. In another Full Court decision, United States of America v Holt (1994) 49 FCR 501 at 504, the Court observed: "But that does not mean that the magistrate may only have regard to these [presumably "those"] facts which are absolutely necessary ingredients of the foreign crime: Zoeller at 299-300. Moreover, it is sufficient if part only of the conduct alleged would constitute the notional Australian offence." 26 Secondly, the Full Court in Zoeller was well aware of the two types of extradition i.e. in respect of an offence against foreign law or in respect of which a person has been convicted overseas – see the sentence immediately before the sentence at 297 which Mr Aughterson submitted represented a departure from earlier authority, and which I have set out at paragraph 12 above. 27 There is other authority to the effect that the relevant statement does not have to be so confined. In Wiest, one of the appellant's complaints was that the statement relied upon by the respondent contained additional material from which it was necessary to identify and extract the acts or omissions relied upon. It is, in my view, clear from Gummow J's reasons at 519-520 that his Honour rejected that complaint, although he did not expressly say so. It can be seen from Gummow J's reasons that his Honour accepted that the warrant of arrest (the relevant statement in that matter) could be read with the certified translation of a judgment of the Local Court at Bonn, not all of which was relied upon. His Honour accepted that there was a sufficient statement, but added (at 520): "However, it would have been a far preferable course if there had been set out, or attention otherwise plainly had been drawn to, the particular passages in the judgment upon which reliance was placed, so that it was clear that not all of the judgment was relied upon. I would seek to discourage in the future the method of presentation of materials adopted in this case." 28 From these authorities it would seem that a statement may include facts and conduct which go beyond what is necessary to establish the offences and which may be irrelevant to those offences. As Gummow J observed in the passage which I have set out at paragraph 6 above, whether a statement satisfies the statutory description is a matter for practical judgment and assessment. In a given case, it might well be that an overwhelming volume of unnecessary or irrelevant facts could result in such obscurity as to warrant an assessment that the statement did not "set out" the conduct constituting the offence, being the acts by virtue of which the offence is alleged to have been committed. Those acts might be too far buried beneath irrelevant material to meet the statutory requirement. 29 Mr Aughterson took me to various paragraphs in the Statement which he said contained allegations of acts potentially constituting criminal acts but which were not the subject of the present charges and allegations which were, on his submission, irrelevant to the present charges. I acknowledge that there are paragraphs which appear to fall within such descriptions. I say "appear" because it will be for an English court to decide whether the acts referred to are acts by virtue of which the offences have been committed. It may be that what appear to be background facts, amount to acts forming part of the fraud or deception. Many of the paragraphs identified by Mr Aughterson give background and other information which makes the Statement as a whole clearer than it would be without them. Rather than obscure the acts by virtue of which the offences are alleged to have been committed, I found that the allegedly superfluous paragraphs made the statement of those acts clearer, for example, by setting them in context. 30 In terms of double criminality, my assessment is that the second respondent would have been, if anything, assisted by the material complained of when carrying out his task of deciding whether, if the conduct had taken place in Australia, it would have constituted an offence. In relation to Mr Aughterson's "cooking the books" argument, I must acknowledge that there is room for possible abuse by a requesting State in the manner suggested, so as to establish dual criminality. The example given was the insertion in a statement of facts relevant to intent, where proof of intent was not required under the foreign law, but was required under the law of the relevant part of Australia. But there are many other ways in which the extradition system might be abused. Everything in the statement and other supporting documents might be concocted. The system depends substantially on trust – the speciality undertaking is an example of that. For a magistrate to detect the insertion of a spurious ingredient in a statement would require him either to have knowledge of the foreign law or be informed on that subject by expert evidence. The Full Court in Zoeller has made it clear that that is not required of the magistrate. 31 So far as the speciality principle is concerned, in this case the focus will be on English law. The United Kingdom will only be able to prosecute the applicant for offences, other than the 18 surrender offences, in respect of which he could be convicted on proof of the conduct constituting any of those surrender offences. In argument, counsel for the applicant suggested that the application of the speciality principle would be difficult to the extent of being impossible because of the irrelevant material said to be contained in the Statement. Several times it was submitted that a prosecutor would be able to point simply to the fact that criminal behaviour had been described in the Statement as enabling a further prosecution to be brought. It would be too difficult, so it was put, to separate the relevant from the irrelevant. I disagree. First, as I have mentioned, the task will be an English task, i.e. the application of English law in England to sort out which acts are or were required to be proved so as to constitute the 18 surrender offences according to English law. The prosecutor will only be able to rely on those facts in relation to the proposed fresh charge, unless the speciality undertaking is to be broken. An assumption or fear of deceitful abuse by the requesting State is not, in my view, a proper basis for the Statement to be declared invalid. 32 In my view, the Statement was not rendered invalid by inclusion of facts or conduct which may have gone beyond what was necessary to establish the offences or which were irrelevant to the offences. Section 19(3)(c)(ii) does not so confine such a statement. 2. Whether there needs to be a separate statement in relation to each offence? 33 The applicant next contended that the Statement is defective because it was produced to the second respondent on the basis that it extended to or encompassed all the offences. The applicant submitted that there must be a separate statement under s 19(3)(c)(ii) in relation to each offence. The applicant contended that otherwise, in cases such as the present, where the magistrate found that the applicant was eligible for surrender in relation to some but not all of the offences, it would be very difficult, if not impossible to ensure compliance with the principle of speciality. This was because, so it was put, s 22(4)(d)(ii) of the Act permits a requesting State to prosecute for any offence of which the person "could be convicted on proof of the conduct constituting any surrender offence". The applicant argued that it followed that, where there was one statement of the "conduct constituting the offence", severability would not be possible, other than in the clearest cases. It would be difficult to impugn a requesting State which relied for a prosecution on any conduct appearing in a statement accepted by an Australian court as being a valid statement of the "conduct constituting the offence". Mr Aughterson criticised the Statement as including a great deal of material which was unrelated to the "conduct constituting the offence" and which included speculation and conjecture. He submitted that it was confusing and difficult to ascertain which part of the narrative related to which offence. Further, it appeared that certain parts of the narrative referred to more than one offence or included reference to criminal conduct that was not the subject of any of the charges. In that form, so it was submitted, the Statement greatly prejudiced the rights of the applicant in relation to both double criminality and speciality. 34 Counsel for the applicant did not cite any authority for the proposition that there needs to be a separate statement in relation to each offence. In oral submissions, Mr Aughterson explained that he did not contend that there had to be more than one document. What was required, so he submitted, was a segregation of the charges. Otherwise, so he contended, it would be very difficult to establish double criminality and would confuse matters as far as speciality was concerned. 35 In view of that concession made by counsel (in my view properly) it is not necessary for me to decide whether there should have been a separate document comprising the relevant statements for each charge. The question is whether it is necessary to segregate the charges in the Statement i.e. separately to set out the acts or omissions by virtue of which each offence is alleged to have been committed. I think that to impose such a requirement would be to put a gloss on the statutory provision. However, I acknowledge that if a particular statement were so badly organised that it was not reasonably possible to discern the acts or omissions relevant to any particular charge, then the document might not constitute a statement setting out the acts or omissions constituting the offences. 36 I have examined the Statement in some detail in conjunction with a simultaneous examination of the 18 charges. I found it relatively easy to identify which paragraphs related to which charges. There is a slight degree of difficulty in this correlation exercise which I attribute largely to the fact that the Statement is broadly in chronological order, while the charges are not listed in a consistent chronological order. However, it is relatively easy to relate particular charges to particular paragraphs in the Statement. For example, charge No 1 (in respect of which, as I have explained above the magistrate has found that the applicant is not eligible for surrender), alleges that the applicant dishonestly obtained for himself a pecuniary advantage, namely the opportunity to earn remuneration in an office of employment, by falsely representing that he was Christopher Seaborn. Paragraphs 22, 23, 24 and 33 readily identify themselves as "the acts which constitute" that offence (I shall abbreviate that expression to "relate" or "relates"). Paragraphs 34-37 relate to charge No. 7. Paragraphs 42-44 relate to charge No. 14. Paragraphs 26, 27, 28, 108 and 122 relate to charge No 2. Similarly paragraphs 45-49 can be seen to relate to charge No. 3. Paragraphs 51 and 52 relate to charge No. 19; paragraph 56 relates to charge No. 16; paragraph 61 relates to charge No. 15; paragraphs 64-67 relate to charge No. 4; paragraph 72-74 relate to charge No. 10; paragraph 75-77 relate to charge No. 9. Paragraph 78-81 relate to charges Nos. 11, 12 and 13; paragraphs 82-87 relate to charge No. 5. Paragraphs 92-96 (together with paragraph 99) relate to charge No. 18. Paragraphs 97-99 relate to charge No. 17. Paragraphs 88-91 can be seen to relate to charges Nos. 6 and 9. That is because charge No. 6 involves the use of cheque number 021454 (one of the ten stolen cheques where the payee's name was N Proctor) and charge No. 9 similarly involves another of the stolen cheques. Paragraphs 104-106 relate to charge No. 8. There may be some other paragraphs in the Statement which, under English law, constitute part of the charges. Some paragraphs, or parts of paragraphs, recite evidence or incorporate evidence by reference as distinct from acts or omissions. However, the Statement can be seen to identify the acts or omissions which the first respondent relies on as constituting the 18 surrender offences. It would have enabled (and did enable) the second respondent to apply the double criminality test of assessing whether those acts or omissions amounted to offences in Western Australia. It will also, in my view, enable the English prosecuting authorities, an English court and any other interested person to assess whether the speciality principle is observed and applied. 37 In the present matter, it might have been possible to segregate each charge with a heading and then set out the facts relied upon as constituting the charge. This might have involved a considerable degree of repetition, because many facts were relevant to more than one charge. The method adopted in the Statement, namely a broadly chronological approach, provides, in my opinion, sufficient clarity for the purposes of the principles of double criminality and speciality. In that regard I refer to paragraphs 29 to 34 of these reasons. 3. Whether the statement was invalid because it was not "self-sufficient"? 38 The third broad complaint was that a statement under s 19(3)(c)(ii) should be self-sufficient. The Statement was not self-sufficient, so it was submitted, in that it was required to be read with other documents which were sought to be incorporated by reference in it. I shall accept, for the purposes of the argument but without deciding, that the Statement is not self-sufficient and has to be read with other documents which were sought to be incorporated by reference in it. The Act does not say that a statement may not incorporate the contents of other documents by reference. In my view, provided that those other documents are clearly identified and that reading them as part of the statement does not result in the obscurity referred to above, such a statement would not be invalid. In my view, that test is satisfied in this matter. Furthermore, the authorities are very much against this submission. I refer to the Full Court in Wiest at 519-520. See also Sheppard J in Zoeller v Federal Republic of Germany (1988) 19 FCR 64 at 85. In Unkel v DPP (1990) 95 ALR 44 at 45, 49 and 50 it can be seen that the relevant statement was found in more than one document. For those reasons and on the basis of those authorities, I find that the Statement is not invalid on this ground. 4. Certain further specific defects alleged in relation to the Statement 39 There were eight such specific defects They related to particular charges. I shall summarise them and deal with them individually as follows: (i) There are many allegations made in the Statement, which, in the light of certain of the offences charged, potentially constitute criminal acts and which are not the subject of the present charges. The applicant says that this has "obvious serious consequences" for him as it would enable the United Kingdom, in reliance on the Statement, to charge him with numerous offences which fall outside the extradition request, thus rendering nugatory the speciality principle. 40 In my view, this falls within the first of the complaints above. To the extent that the paragraphs in the Statement, to which the applicant refers, set out conduct which does not constitute any of the surrender offences, then the speciality principle will apply. As I have stated above, the mere mention of criminal acts does not enable a requesting State to bypass the speciality undertaking. The exception to the undertaking refers to offences of which the eligible person could be convicted on proof of the conduct constituting any surrender offence. If, as the applicant alleges, the Statement goes beyond that conduct, then the exception to the undertaking will not apply. (ii) The Statement was inadequate for the purposes of the principle of double criminality, for example by not containing in it a statement as to the required dishonesty – see charges Nos. 3 and 16. In relation to charge No. 16, the magistrate relied upon a deposition from a Mr Hutley but, so the applicant submitted, for the purposes of the principle of double criminality the Statement should have been self sufficient; 41 I have already held, consistently with the authorities, that the Statement does not have to be self-sufficient. My reasoning above in that regard is sufficient to dispose of these particular objections. (iii) There are inconsistencies between certain charges and the facts in the Statement. For example, charge No. 10 specifies four cameras, one pair of binoculars, one portable cassette/radio and one colour monitor together valued at Ł1,139.94. Paragraph 74 of the Statement refers to "two cameras and two pairs of binoculars" together valued at Ł1,139.94; 42 It is to be noted that paragraphs 72-74 of the Statement incorporate by reference the statement of Mr Simon Buckingham. I have already held that such a statement may be read as part of a statement for the purposes of s 19(3)(c)(ii) of the Act. When one has regard to the precise coincidence of the value of the goods, Ł1,139.94 as set out in paragraph 74 of the Statement, in charge No. 10, as stated in Mr Buckingham's affidavit and as shown in Exhibit 61 to that affidavit (being the invoice prepared by Mr Buckingham which he swears listed the property he handed to Christopher Seaborn) it is, in my view, sufficiently clear that the same property is described in the Statement and is the subject of the charge. When the three documents are read together there is no inconsistency. The Statement, in my opinion, adequately sets out the conduct constituting the offence. (iv) In relation to what appears to be part of the Statement relating to charge No. 9, there is no statement that the cheque was presented by the applicant. In fact, at paragraph 75 of the Statement it is stated that "No details of who presented the cheque are available as the counter assistant who took the orders has been dismissed for dishonesty and cannot now be traced". 43 As I see it, the problem with this submission is that it overlooks the paragraphs elsewhere in the Statement, to which I have referred above, relating to the stolen cheques. The cheque referred to in charge No. 9 (cheque numbered 021458) is identified in Mr Cox's affidavit as being one of the ten stolen cheques. In any event the charge is that the applicant represented that that cheque was a good and valid order for payment. Ms Brett, in her affidavit, swears that what purports to be her signature on cheques which include cheque number 021458 is not hers. When regard is had to Mr Cox's evidence, summarised above, in respect of four of the other cheques in the same series, and to the evidence that Mr Proctor's replacement driving licence, which had been forwarded to 56 Putney High Street, was used to open one of the relevant bank accounts, the facts emerging from the Statement as a whole point to the conclusion (expressed in charge No. 9) that the person who presented cheque number 021458 was the applicant. (v) In relation to charges Nos. 11 to 13, there is no direct correlation between the money amounts referred to, nothing in the Statement to suggest that the orders were improperly made, or that the goods in question were obtained by the applicant. In fact at paragraph 80 it is stated that the goods "were both signed for by C Louden at Blandon Lines"; 44 As to the improper making of the orders, Ms Brett deposes to the fact that the applicant was not given authority to order any goods other than certain stationery requirements. Her statement is incorporated by reference in paragraph 78. Mr Jonathan Anders' statement is also incorporated by reference in the same paragraph. Exhibit JVA/4 to Mr Anders' affidavit identifies the goods referred to in charge No. 11 and confirms their value as stated in that charge. The particular equipment identified in charge No. 12 is described in Exhibit JVA/6 to Mr Anders' affidavit. It would seem that the wrong value has been inserted in this charge. The correct value can be seen in Exhibit JVA/6, namely Ł920. The items described in charge No. 13 coincide precisely with the items set out in Exhibit JVA/2 to Mr Anders' affidavit . As to whether the goods were obtained by the applicant, paragraphs 119 and 120 of the Statement refer to the search made at the applicant's premises in February 1993 and the fact that about 90% of the property which the applicant is alleged either to have stolen or dishonestly obtained was found in his house. (vi) The Statement does not appear to deal with charge No. 6 at all; 45 Charge No. 6 relates to the sum of Ł4,700 obtained by opening the account at Barclay's Bank Plc, Fulham Broadway with cheque number 021454 payable to Mr N Proctor. The facts constituting this offence are to be found in paragraphs 88-89 of the Statement when read with Mr Cox's affidavit and paragraphs 15, 16, 17 and 18 of Mr Proctor's affidavit. (vii) In relation to charge No. 7, the applicant says that it is apparent from the Statement, that, at least in part, the alleged criminal conduct was not undertaken by the applicant – see paragraph 36 of the Statement; 46 Paragraph 36 of the Statement reads: "Interesting to note that out of the above total of Ł1,062.89 pence, Ł891.73 pence worth of goods were purchased and signed for by Louise EDDERY signing as L. SEABORN." If that fact is not part of the conduct constituting the offence, its irrelevance does not invalidate the Statement. (viii) In relation to charge 16, paragraph 56 of the Statement refers to certain alleged conduct on 7 May 1991 whereas charge 16 refers to an offence allegedly committed on 7 June 1991. 47 It is clear from the Statement that paragraph 56 relates to charge No. 16. What is described in that paragraph is the applicant's application for the credit facilities concerned. Mr Robert Keith Hutley, security manager for Makro (the supplier involved) swears that his company received an application bearing the stamp of Bladon Lines Travel and a signature C. Seaborn. He exhibits that to his affidavit. Mr Hutley [whose surname (but not his Christian names, job description or employer) is wrongly described as "Huddle" in paragraph 59 in the Statement] then deposes to the fact that the credit facilities were granted on 7 June 1991, being the date first referred to in charge No. 16. Mr Hutley deposes to goods being supplied under those credit facilities between 7 June 1991 and 1 July 1991. There is no inconsistency between the dates. Paragraph 59 asserts the date when credit was applied for. The dates in the charge and in Mr Hutley's affidavit are the dates when the credit facilities were granted (7 June 1991) and the dates between which they were used. Conclusion 48 For the above reasons, I do not consider that the applicant has made out its challenge to the validity of the Statement as being a duly authenticated statement in writing setting out the conduct constituting the offences alleged to have been committed. In respect of several of the charges, the Statement satisfies that description on its own. In relation to the remainder, when read with the documents which it incorporates by reference, it also so complies. The application will be dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of Justice Carr. Associate: Dated: 24 September 1999 Counsel for the Applicant: Mr E P Aughterson Solicitor for the Applicant: Ms Julie Wager Counsel for the Respondent: Mr P N Bevilacqua Solicitor for the Respondent: Commonwealth Director of Public Prosecutions Date of Hearing: 21 July 1999 Date of Judgment: 24 September 1999	11,241
federal_court_of_australia:fca/single/2000/2000fca0220	decision	commonwealth	federal_court_of_australia	text/html	2000-03-01 00:00:00	O'Neil v National Australia Bank Ltd ACN 004 044 937 [2000] FCA 220	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2000/2000fca0220	2024-09-13T22:52:13.872860+10:00	FEDERAL COURT OF AUSTRALIA O'Neil v National Australia Bank Ltd ACN 004 044 937 [2000] FCA 220 KNOX ROSS O'NEIL and MARGOT JEAN O'NEIL v NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 N 7002 of 2000 1 March 2000 Katz J Sydney IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7002 of 2000 BETWEEN: KNOX ROSS O'NEIL AND MARGOT JEAN O'NEIL APPLICANTS AND: NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 RESPONDENT JUDGE: KATZ J DATE OF ORDER: 1 MARCH 2000 WHERE MADE: SYDNEY MINUTES OF ORDER THE COURT ORDERS THAT: 1. The respondent shall not be required to give discovery of documents referred to in the following paragraphs of the notice of discovery served on it on 15 February 2000: (i) 10 (ii) 11 (iii) that part of paragraph 14 requiring discovery of documents recording the negotiations preceding the making of agreements as to the commission to be paid by the respondent to certain real estate agents. 2. the respondent give discovery as to the balance of the paragraphs of the notice of discovery by 15 March 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7002 of 2000 BETWEEN: KNOX ROSS O'NEIL AND MARGOT JEAN O'NEIL APPLICANTS AND: NATIONAL AUSTRALIA BANK LIMITED ACN 004 044 937 RESPONDENT JUDGE: KATZ J DATE: 1 MARCH 2000 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 I have before me a dispute about discovery of documents, which dispute has arisen in the course of a proceeding in which an attempt is being made to set aside a bankruptcy notice. 2 On two different dates during December 1999, National Australia Bank Limited ("the creditor") served a bankruptcy notice on Mr Knox Ross O'Neil and Ms Margaret Jean O'Neil ("the debtors") respectively. 3 Then, on 4 January 2000, the debtors applied to set aside that bankruptcy notice. The ground of the application was that the debtors had such a cross demand against the creditor as is referred to in par 40(1)(g) of the Bankruptcy Act 1966 (Cth). As is required by the Federal Court Rules ("the Rules"), the debtors each filed simultaneously with the application an affidavit in support. 4 Then, on 15 February 2000, the debtors served on the creditor a notice of discovery under O 15, r 1 of the Rules. The notice of discovery identified certain subject matters in fifteen numbered paragraphs as to which discovery was required. 5 It is accepted by the creditor that it was open to the debtors to serve a notice of discovery on them under O 15, r 1 of the Rules, because of the provisions of O 77, r 4(2) of the Rules, which generally make other Orders of the Rules than O 77 applicable in bankruptcy proceedings. 6 However, O 15, r 3 of the Rules confers on the Court a power to order that a party that has been served with a notice of discovery shall not be required to give discovery and further confers on the Court a power to order that such discovery be limited to such documents or classes of documents or to such of the matters in question in the proceeding as may be specified in the order. 7 The creditor has sought the exercise of the Court's power under O 15, r 3 of the Rules, not, I should say immediately, by seeking to avoid in its entirety the giving of discovery, but rather by cutting down those subject matters as to which it should be required to give discovery in accordance with the debtors' notice. 8 The dispute is limited presently to a few paragraphs only of the original notice of discovery which was served on the creditor by the debtors. 9 However, before I deal with those paragraphs as to which there remains a dispute, I should say that I have before me a copy of the debtors' original notice of discovery which was marked on behalf of the debtors and given to the creditor on an earlier occasion when this matter was before me. By those markings, the debtors, in effect, abandoned their attempt to obtain discovery in respect of the subject matters set out in pars 1, 6, 7, 8, 12 and 13 of their original notice of discovery. They continued to press, however, for discovery in respect of the subject matters set out in pars 2, 3, 4, 5, 9, 10, 11, 14 and 15. 10 Then, during the course of the argument before me today, the debtors agreed that the subject matters set out in pars 5 and 11 of their notice of discovery should be read as confined in certain ways which I should now record. 11 First, as to par 5, it was not, before today, limited as to time, but now the debtors are content to have it read as if the documents being referred to in it are ones bearing dates only between 12 November 1998 and 1 April 1999. 12 Secondly, as to par 11, its subject matter is now restricted to documents recording other sales by the creditor to the purchasers of the debtors' former property, those other sales having occurred between April 1994 and April 1999. 13 As to the paragraphs of the notice of discovery which were pressed by the debtors before me today, the creditor has taken the view that it is content to give discovery of documents whose subject matters are set out in pars 2, 3, 4, 5 (in its amended form), 9 and 15. Thus, the remaining areas of dispute consist only of documents whose subject matters are set out in pars 10, 11 (in its amended form) and 14. 14 As to those documents whose subject matters are set out in pars 10 and 11, as I understood the creditor's objection to discovering them, it was based on the fact that the notice of discovery served on the creditor was served under cover of a letter from the debtors' solicitors, which letter identified the occasion for the debtors seeking discovery. To put it briefly, it was said that the debtors required the documents referred to in the notice for the purpose of providing them to experts, which experts would then go on affidavit about the significance of those documents. Those affidavits were intended to be used for the purpose of the application to set aside the bankruptcy notice. It was said by the creditor, however, that documents whose subject matters are set out in pars 10 and 11 are, of their nature, not capable of being the subject of relevant evidence by experts. 15 As to those documents whose subject matters are set out in par 14, the paragraph sought documents recording agreements as to the commission to be paid by the creditor to certain real estate agents if they should effect the sale of the debtors' former property. As to that aspect of the paragraph, the creditor had no difficulty in providing discovery. However, par 14 also sought documents recording the negotiations which had preceded the striking of those agreements as to the commission and, as to that aspect of the paragraph, the creditor's objection effectively was on the basis of a lack of relevance. 16 Having regard: first, to the nature of the application which is being made by the debtors in the present proceeding and, in particular, to the fact that such an application, albeit that it requires the debtors to establish a prima facie case on their cross demand, does not require them to do so by evidence which would otherwise have been admissible in the proceedings in the court in which they might make such cross demand; and, secondly, to the fact that O 77, r 13(3)(b) of the Rules required the debtors, at the time of the making of their application, to state the full details of their cross demand; it is, in my view, unnecessary to require the creditor to give discovery of documents whose subject matters are referred to in pars 10, 11 and in that part of par 14 as to which dispute exists. 17 I do not for a moment suggest that discovery of those documents would be unnecessary in the context of the Supreme Court proceedings which the debtors presently have on foot in which they make the claim the subject of the cross demand on which they rely in the present proceeding; that issue has nothing to do with me and, for that reason, I say nothing about it. 18 However, at least having in mind the nature of the application which I am ultimately to hear, I consider it unnecessary to require the creditor to give discovery of documents relating to the disputed subject matters and, since O 15, r 3(2) of the Rules provides that the Court shall make such orders under sub-rule (1) as are necessary to prevent unnecessary discovery, I will therefore make orders excusing the creditor from the obligation to give discovery of documents whose subject matters are referred to in pars 10, 11 and in that part of par 14 as to which dispute exists. There will be no order as to the costs of the discovery dispute. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 1 March 2000 Counsel for the Applicant: Ms S Kaur-Bains Solicitor for the Applicant: Jackson Smith Solicitors Counsel for the Respondent: Mr L Einstein Solicitor for the Respondent: Dibbs Crowther & Osborne Solicitors Date of Hearing: 1 March 2000 Date of Judgment: 1 March 2000	2,213
federal_court_of_australia:fca/single/2009/2009fca0781	decision	commonwealth	federal_court_of_australia	text/html	2009-07-23 00:00:00	Martinez v Minister for Immigration and Citizenship [2009] FCA 781	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2009/2009fca0781	2024-09-13T22:52:14.076498+10:00	FEDERAL COURT OF AUSTRALIA Martinez v Minister for Immigration and Citizenship [2009] FCA 781 MIGRATION – Judicial review – new grounds of appeal – principles governing leave – privative clause – jurisdictional error – failure to make a finding in relation to a jurisdictional requirement Migration Act 1958 (Cth): ss 48, 51A, 57(3)(b), 338, 474 Migration Regulations1994: cl 136.213 of Sch 2 O'Brien v Komesaroff (1982) 150 CLR 310, followed Coulton v Holcombe (1986) 162 CLR 1, considered Vishnumolakala v Minister for Immigration and Indigenous Affairs [2007] FCA 248, followed MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635, followed Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, cited Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214, followed Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476, followed Water Board v Moustakas (1988) 180 CLR 491, followed Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, followed FERDINAND MARTINEZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP VID 1004 of 2008 GOLDBERG J 23 JULY 2009 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY general division VID 1004 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: FERDINAND MARTINEZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: GOLDBERG J DATE OF ORDER: 23 JULY 2009 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The order of the Federal Magistrates Court made on 14 November 2008 be set aside. 3. In lieu of the order of the Federal Magistrates Court made on 14 November 2008 it be ordered that a writ of certiorari be issued, directed to the respondent, removing into this Court the decision of the respondent's delegate made on 11 April 2008 refusing to grant a Skilled‑Independent (Migrant) (Class BN) Visa to the appellant and the secondary applicants included in the appellant's application for the visa for the purpose of quashing that decision. 4. The said decision of the delegate of the respondent be quashed. 5. A writ of mandamus be issued, directed to the respondent requiring him to hear and determine the appellant's application for a Skilled‑Independent Visa according to law. 6. The respondent pay the appellant's costs of the proceeding before the Federal Magistrates Court and the costs of this appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY general division VID 1004 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: FERDINAND MARTINEZ Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP Respondent JUDGE: GOLDBERG J DATE: 23 july 2009 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This is an appeal against a judgment of a Federal Magistrate on 14 November 2008 dismissing an application for judicial review of a decision of a delegate of the then Minister for Immigration and Multicultural Affairs made on 11 April 2008 to refuse to grant a Class BN subclass 136 skilled–independent visa ("the visa") to the appellant. BACKGROUND 2 The appellant is a non-citizen of Australia and a national of the Philippines. On 28 March 2006, the appellant's migration agent submitted the appellant's visa application to the Department of Immigration and Multicultural and Indigenous Affairs ("the Department"). The application, received on 30 March 2006, was for the appellant, his wife and two children to enter Australia on the basis that the appellant was in a skilled occupation and performing the duties of a cook, equivalent to the level of Australian standards for a specified period, in accordance with the requirements in cl 136.213 of Sch 2 of the Migration Regulations1994 ("the Regulations"). A third child was added to the visa application on 31 October 2006. 3 Clause 136.213 of Sch 2 of the Regulations provides that: "(1) Subject to subclause (2), the applicant has been employed in a skilled occupation: (a) if 60 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application -- for a period of, or for periods totalling, at least 12 months in the period of 18 months immediately before the day on which the application was made; or (b) if 40 or 50 points are specified by an instrument in writing for this paragraph as available for the skilled occupation nominated in the application -- for a period of, or for periods totalling, at least 24 months in the period of 36 months immediately before the day on which the application was made. (2) Subclause (1) does not apply to an applicant if: …" 4 The appellant claimed that he satisfied cl 136.213(1)(a). The appellant's visa application stated that he was employed by Woods Place Hotel ("Woods Place") as a Chef Cook from April 1998 to October 2005. This statement was supported by an undated certificate from the manager of Woods Place certifying that the appellant had been employed by the restaurant as a Chef Cook from 15 April 1998 "up to present" (presumably October 2005). 5 The appellant lodged a Notification of Changes in Circumstances with the Department on 31 October 2006 stating that the appellant was no longer employed at Woods Place, but was now employed at the Wood Nymph Restaurant ("Wood Nymph"). The appellant's Notice was supported by a certificate of employment from the manager of Wood Nymph which, dated 19 October 2006, was provided to the Department on 27 October 2006. The certificate of employment certified that the appellant had been employed by Wood Nymph with the designation as Cook from 23 February 2006 up until the date of the certificate. The appellant's personal particulars for character assessment, also lodged on 31 October 2006, further stated that the appellant had been employed by Woods Place from April 1998 until December 2005 and that he was currently employed by Wood Nymph and had been so employed since February 2006. 6 On 14 November 2006, an Officer in the Australian Embassy in Manila telephoned the Wood Nymph and spoke with the front desk clerk to investigate the appellant's claims. The Officer recorded that she was informed that the appellant did not teach or train or plan menus at the restaurant, as had been indicated in the visa application. The Officer was further informed that the Wood Nymph was previously known as Woods Place (since July 2006). For the purposes of the Officer's inquiries, the clerk advised that the Officer should contact the restaurant manager. The manager stated, inter alia, that the appellant had been employed full time as a Cook since February 2006 and that he had been previously employed by the restaurant when it was known as Woods Place. The manager stated, however, that the appellant's employment at Woods Place was not on a continuing basis and that there were gaps in the appellant's employment record. The manager was unable to provide the exact date when the appellant commenced employment at Woods Place. 7 On 27 November 2006, an Officer of the Department wrote to the appellant's migration agent. The letter stated: "I have received the following information which indicates that an applicant may have provided incorrect information or failed to advise that information has become incorrect (ie. a change in circumstances) – Staff of our Embassy in Manila, have investigated the applicant's claimed employment with Woods Place Inn. Their investigations included a telephone call to the number listed on the employment reference. As a result of that investigation, our Embassy has concerns regarding the applicant's employment. Their report includes that – ▪ The applicant is employed as a cook for Woods Place / Woodnymph Korean Restaurant. ▪ The applicant has been employed as a full time cook since February 2006. ▪ The applicant was employed as a cook prior to February 2006 on a non continuing basis. ▪ The exact dates of this non continuing employment were not available at [sic] time of investigation. As the dates of the applicant's employment could not be verified, you are requested to provide additional supporting information." (emphasis in original) The letter stated further that the appellant was being given the opportunity to comment on "these findings" and provide further verifiable evidence in support of the appellant's claims. 8 On 5 December 2006, the appellant's migration agent responded to the invitation by letter, providing an affidavit of the appellant dated 4 December 2006 which had been sent to the agent by email deposing: "That from April 15, 1998 I was employed as a Chef Cook at Woods Place Hotel… That on February 23, 2006 the management of the said establishment was transferred to the Wood Nymph Restaurant … That from the time the said Woods Place Hotel was being managed by Wood Nymph Restaurant, the undersigned being a regular employee of said hotel was retained by the Wood Nymph Restaurant management to continue my duties and functions with the said hotel and which responsibilities is being undertaken by the undersigned up to present;…" 9 On 16 December 2006 the appellant's migration agent sent to the Department the original of the appellant's email affidavit which had been sent on 5 December 2006. the original of the affidavit stated: "That from the time the said Woods Place Hotel was being managed by Wood Nymph Restaurant, the undersigned being a regular employee of said hotel was retained by the Wood Nymph Restaurant management to continue my duties and functions with the said hotel and which responsibilities is being undertaken by the undersigned up to present;…" 10 On 7 April 2008 at 2.42pm, a different delegate of the Minister sent a further letter ("the second letter") by email to the appellant's migration agent in the following terms: "I refer to your application for a Class BN, Subclass 136 Skilled – Independent visa, received on 30th March 2006. I have received the following information, which indicates that an applicant has provided incorrect information in their application or failed to advise that information previously provided is now incorrect. This Department conducted investigations into you (sic) employment claims, the outcomes were as follows · An employee advised that the applicant has been employed full time as a cook since Feb 2006. · The same employee also advised that the applicant was also employed as a cook prior to Feb 2006 when the restaurant was still under Woods Place Hotel, but that the employment was not on a continuing basis. · Specific dates of employment able to be confirmed. · It was advised that the applicant does not plan the menu; he does not teach and train staff and it is not the applicant's duty to check inventory." In accordance with departmental policy, this letter provides the applicant with the opportunity to comment on this information before a decision is made regarding the application. Timeframe for Response A full response should be made within 28 days of receiving this letter, which is by – 05 May 2008. …" (emphasis in original) 11 Nineteen minutes after sending the second letter the delegate sent a further email to the appellant's migration agent (at 3.01pm) headed "Disregard previous email please". The delegate stated: "I am the new case officer assessing this case and will be making a decision on this application. Please disregard the previous email I sent earlier today, which does not apply. I overlooked the previous case officer's note and record; providing you with a letter inviting you to comment on adverse information on behalf of your client. I have now noted that you have responded and provided information in response to the original letter, which requested a response from you by the due date of 25/12/06. I will now assess the case further and make a decision. If you have any questions please dont hesitate to email me directly: [email protected]." I apologise for any confusion the previous email may have caused." 12 On 11 April 2008, the delegate refused the appellant's application for the visa. THE DELEGATE'S DECISION 13 The delegate noted that the appellant provided an employment reference from "Woods Place Inn" describing his employment and work experience at "Woods Place Hotel" in support of his claim of working in the skilled occupation of cook, an occupation attracting 60 points on the skilled occupations list. The appellant made no claims that he satisfied the requirements of subcl 136.213(2). 14 The delegate set out the findings that the first delegate had put to the appellant in her letter of 27 November 2007 (par [7] above). 15 The delegate identified the evidence she had considered in the following terms: I have considered the following evidence before making a decision, evidence provided at lodgement and during the processing of this application, which also includes the response received by you inviting you to comment on adverse information: • An employment duty Affidavit from the applicant • A restaurant permit • A certificate of registration for the restaurant • Employment payslips and employment references • Statements made by the Owner/Manager of the Restaurant (as depicted in documentation provided by you. • Investigations conducted by Manilla Departmental Officers". I take the reference to the response received from the applicant to be a reference to the letters from the appellant's migration agent dated 5 and 16 December 2006. 16 The delegate then said: "I note that no further third party or further independently verifiable evidence that might give more substantial weight to skilled employment claims made by your client was received. The certificates of registration for the restaurant and the permit of the restaurant pertain to the evidence that the restaurant itself may have been in operation, however do not give weight to the skills performed or the skill level of the applicant himself. As I am not satisfied based on the evidence available that the applicant was employed in a skilled occupation and performing the duties of a COOK equivalent to the level of Australian Standards as per ASCO I have determined that the applicant therefore does not satisfy subclause 136.213(1). As I am not satisfied that this applicant meets the requirements of subclause 136.213(1) or subclause 136.213(2) I have determined that this application does not satisfy subclause 136.213. As the applicant has not met this criterion I have not assessed the application further." THE FEDERAL MAGISTRATES' DECISION 17 Before the Federal Magistrate the appellant relied on two grounds for review: "1. The decision was affected by jurisdictional error in that the person who made the decision failed to have regard to a relevant consideration. PARTICULARS The delegate who made the decision did not take into account the applicant's occupation as a Cook with duties and responsibilities from employer at the time of his application in the determination of the application to migrate under sub class 136 visa nor did the delegate consider new and correct information on his Affidavit executed on 4 December 2005, forwarded 5 December 2006 as described in folios 128‑130 of the Department of Immigration and Citizenship – CLF2006/038590 relating to new contract of employment or job essentially as Cook with new owner consistent to section 105 of the Migration Act (1958) ('the Act'). 2. Failure to accord procedural fairness. PARTICULARS The delegate who made the decision wrote the principal applicant on 7 April 2008 seeking his comment to what was purported as incorrect information in his application, giving him until 5 May 2008 to provide his response, however prior to giving his explanation on various issues raised the delegate made a decision refusing his application on 11 April 2008." 18 The Federal Magistrate rejected the first ground, noting that the matters relating to the appellant's occupation were taken into account. His Honour was of the view that the finding that the appellant failed to establish he was employed in a skilled occupation as a cook was open to the delegate and was not subject to review. Specifically, his Honour found at [16]: "The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits." 19 The second ground was also rejected because the second letter was withdrawn and no response was made to it. His Honour observed that the delegate was not required to delay reaching her decision to await a response to a withdrawn letter and found that a letter complying with the provisions of s 57 of the Act was not required to be sent because the appellant was offshore and review of the delegate's decision was not available pursuant to s 338 of the Migration Act 1958 (Cth) ("the Act): s 57(3)(b) of the Act. 20 His Honour concluded at [28]: "A s.57 letter was therefore not required to be sent to the applicant (s.57(3)). The question of whether it could be withdrawn once sent does not need to be answered. It is not a denial of natural justice to not consider a response to an invitation that was not required to be sent. The material in the response was not required to be obtained and was not provided. The material was not provided at all and the 2008 Delegate's decision was not made before the cut off date of 5 May 2008 (Court Book 165.1) which was the date of the Delegate's decision." 21 For these reasons his Honour found that the decision was a privative clause decision that had not been infected with jurisdictional error and that there was no jurisdiction for the Court to interfere with the delegate's decision. THE APPEAL BEFORE THIS COURT 22 The notice of appeal in this Court raised several grounds of appeal, based on the proposition that the Federal Magistrate erred in not finding that the Minister through the Minister's delegate fell into jurisdictional error. The aspects of jurisdictional error relied upon were that the delegate: (a) failed to take into account relevant material considerations namely the period or periods during which the appellant worked in a skilled occupation in the period of 18 months immediately before 30 March 2006; and (b) failed to give natural justice or procedural fairness to the appellant, acted beyond power, made a decision not open on the material and made a decision which no reasonable delegate could have made. This aspect was based on the proposition that the delegate refused the application, without the delegate having received a response from the appellant to the letter sent on 7 April 2008 which was withdrawn and that the contents of the letter (specific dates of employment able to be confirmed) were not taken into account by the delegate. 23 The natural justice or procedural fairness ground, based upon the proposition that the delegate acted beyond power, made a decision not open on the material and made an unreasonable decision, had not been raised or argued before the Federal Magistrate. 24 On the hearing of the appeal the appellant sought leave to add a further particular to the ground that the delegate had made a decision not open to her on the material before her. The particular was that there was no evidence from which it was open to the delegate to conclude that the appellant had not worked at the Woods Place Hotel for at least twelve months in the eighteen months prior to his application for a visa or to conclude that he had not worked there in a skilled occupation such as to satisfy the requirements for the grant of a visa. 25 The appellant's notice of appeal included the following particular of the ground that the delegate fell into jurisdictional error in that she had failed to take into account relevant material considerations: "In determining the appellant's application for Skilled – Independent Migrant (Class BN), subclass 136 visas ('the visas') for himself and his wife and children, the respondent's delegate was required by item 136.213(1)(a) of Schedule 2 to the Migration Regulations 1994 to consider and to determine the following matters: i. For which period or periods the appellant worked in a skilled occupation in the period of 18 months immediately before 30 March 2006, the day on which the appellant's application for a subclass 136 visa was made to the respondent; ii. whether such period or periods totalled at least 12 months. The respondent's delegate did not consider and determine these matters, even though she had a report from staff of the Australian Embassy in Manila that the appellant 'was employed as a cook prior to February 2006 on a non‑continuing basis'". 26 This particular of jurisdictional error was not raised or argued before the Federal Magistrate. The ground or jurisdictional error raised before the Federal Magistrate was particularised on the basis that the delegate did not take into account the appellant's occupation as a cook with duties and responsibilities from his employer at the time of his application in making the delegate's determination of the application. It was implicit in this particular that the delegate did not take into account the appellant's occupation as a cook at the relevant time or times required to be established pursuant to item 136.213(1)(a) of Sch 2 of the Regulations. However, this particular in the Notice of Appeal to this Court was not raised or argued before the Federal Magistrate, in the terms now particularised. Notwithstanding this, I consider that leave should be granted to the appellant to raise and argue it on this appeal. In my opinion it is expedient and in the interests of justice that such leave be granted. 27 The test to be applied in determining whether leave should be granted to advance new grounds of appeal is well known. That test is in short, whether it is expedient and in the interests of justice that such leave be granted. In the present circumstances the relevant facts underlying the decision on review are not controversial. In O'Brien v Komesaroff (1982) 150 CLR 310 Mason J (with whom the other members of the Court agreed) said at 319: "In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh(14);Suttor v. Gundowda Pty Ltd.(15);Green v. Sommerville (16))." In this appeal the relevant facts are not controversial and the particular ground now sought to be raised can be argued by both sides without the need for further factual investigation. 28 In Coulton v Holcombe (1986) 162 CLR 1, the majority of the High Court at 7‑8 following this observation of Mason J drew no distinction between its application before an intermediate court of appeal and an ultimate court of appeal. Nevertheless, the majority of the High Court recognised the limitations which should be placed on raising new arguments on appeal. In that case the majority concluded that the respondents must be bound by the conduct of their case at trial. The majority said at 11: "It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." I do not consider that the present appeal falls into the category of case identified by the majority in Coulton v Holcombe (supra). 29 The principles applicable in determining whether a new ground can be raised on appeal were reiterated by the majority of the High Court in Water Board v Moustakas (1988) 180 CLR 491 at 497: "More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken." 30 In determining whether it is expedient or in the interests of justice to grant leave to raise a new ground, it is accepted that consideration needs to be given to the merits of the ground proposed to determine whether that ground has a reasonable prospect of success: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635 at [35]–[37]; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [5]. 31 For reasons to which I shall refer, I consider this particular has reasonable prospects of success and, indeed, is determinative of the appeal. I note further, that the Minister does not contend that he is prejudiced by granting the appellant leave to raise this ground. The appellant has explained that the new particular in subparagraph (a) under paragraph 1 of the notice of appeal was not raised in the Court below because the ground was then perceived differently and that although the particulars were framed differently the question before the Federal Magistrate was whether the delegate had had regard to those matters that were required to be regarded. Nevertheless, I consider that it is expedient and in the interests of justice that the appellant be granted leave to raise this particular of ground 1 on the appeal. 32 The terms and structure of item 136.213(1)(a) of Sch 2 of the Migration Regulations required the delegate, as an exercise of jurisdiction, to make a determination of the following matters: (a) for which period or periods the appellant worked in a skilled occupation in the period of eighteen months immediately before 30 March 2006 which was the day on which the appellant's application for a subclass 136 visa was made; (b) whether such period or periods totalled at least twelve months. (c) the nature of the work or duties undertaken by the appellant during this period or these periods. The delegate did not address the matters in subpar (a) or (b). 33 It appears that the delegate did not do so because she took the view that because she was: "not satisfied on the evidence available that the applicant was employed in a skilled occupation and performing the duties of a COOK equivalent to the level of Australian Standards as per ASCO", this conclusion was determinative of the matters in respect of which she had to make a finding for the purpose of determining whether the appellant satisfied subcl 136.213(1). 34 The Minister submitted that it was unnecessary for the delegate to consider and make a finding in relation to the period or periods within which the appellant had been employed in a skilled occupation given the delegate's finding that the appellant was not employed in a skilled occupation and performing the duties of a cook equivalent to the level of Australian Standards as per ASCO. The Minister submitted that where the delegate found that the appellant was not employed as a cook equivalent to the level of the Australian Standards, then there was no need to go any further and it was open to the delegate to act on her conclusion that the appellant was not employed in a skilled occupation. 35 I do not accept these submissions. In my opinion, the delegate was obliged to determine the nature of the work which the appellant had undertaken and the duties he had undertaken in the course of his work and also the period or periods during which the appellant claimed to have undertaken that work and performed such duties. These matters were intertwined and both had to be addressed specifically in order for the delegate to determine whether the appellant satisfied subcl 136.213(1). 36 As a matter of legal analysis, in order for the delegate to determine whether she was satisfied as to the nature of the employment of the appellant in the skilled occupation and that he had performed the duties of a cook it was necessary for the delegate to examine, consider and make a finding in respect of the period or periods during which the appellant had been employed in that occupation and performing those duties. If the delegate had turned her mind to identifying, and making a finding in respect of those periods, she may well have reached a different conclusion from the conclusion she reached in respect of her level of non‑satisfaction as to the nature of the occupation undertaken by the appellant and the duties he performed as a cook. 37 This interconnection between the two matters or analyses is highlighted by the matters referred to by the first delegate in the letter dated 27 November 2006 which sought further or additional supporting information from the appellant as to the fact that he was employed as a cook prior to February 2006 on a non‑continuing basis and that the exact dates of that non‑continuing employment were not available at the time of investigation by the Embassy in Manila. The appellant responded to this letter in the manner to which I have referred earlier. 38 In the letter of 7 April 2008 which was withdrawn, the second delegate stated that the Department's investigations noted that the employment of the appellant prior to February 2006 was not on a continuing basis but that "specific dates of employment able to be confirmed". The delegate then said that: "It was advised that the applicant does not plan the menu; he does not teach and train staff and it is not the applicant's duty to check inventory". However, this letter did not state, and it is not known, whether that observation related to the time at which the Department conducted its investigations or whether it related to any and which of the periods of time prior to February 2006. 39 By undertaking this analysis, I am not seeking to review the facts as found by the delegate. Rather, I am identifying the fact that the jurisdictional issue which the delegate was required to address in relation to the period or periods in respect of which the appellant had been employed in a skilled occupation was a critical issue. 40 The decision of the delegate was a privative decision in accordance with s 474 of the Act. Nevertheless, s 474, does not preclude a court from determining that a decision does not fall within the privative provisions of s 474 if it involves a failure to exercise jurisdiction or is in excess of jurisdiction: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. In my opinion, the delegate accordingly fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82]. 41 I do not consider that there is any substance in the remaining grounds of appeal relied upon by the appellant. Ground 2 in the notice of appeal raises the submission that the delegate failed to give natural justice or procedural fairness to the appellant. That ground is based upon the sending by the delegate of the letter on 7 April 2008 and its withdrawal. In essence, the appellant's complaint is that the delegate did not give the appellant the opportunity to respond to the matters raised in the letter. There is a short answer to the appellant's complaint. The matters contained in the letter were not required to be put by the delegate to the appellant for comment, as the appellant was off shore. Section 57(3) of the Act provides: "This section does not apply in relation to an application for a visa unless: (a) the visa can be granted when the applicant is in the migration zone; and (b) this Act provides, under Part 5 or 7, for an application for review of a decision to refuse to grant the visa." Even if the complaint made by the appellant could be brought within the purview of common law principles of natural justice or procedural fairness, that is of no assistance to the appellant. Sections 57 and 58 of the Act are found in Subdiv AB of Div 3 of Part 2 of the Act. 42 Section 51A which is contained in that subdivision provides that the subdivision: "…is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with." 43 In Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 the Full Court observed that s 51A was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57. The Full Court concluded at [66] that what was intended by the introduction of s 51A and related provisions into the Act was that Subdiv AB "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule." The issues raised by the appellant in ground 2 of the notice of appeal do not identify any particular provision of Subdiv AB of Div 3 of Part 2 of the Act in respect of which there has been a contravention or a failure to comply. 44 There is a curious feature about the letter of 7 April 2008. The case officer who sent it apparently assumed that the subject matter of it had been the subject of earlier comment and response by the appellant. However, the appellant had not been put on notice that there was an issue in relation to the nature of the work undertaken by him as a cook or chef. Nevertheless, in the circumstances, there is no basis for the submission that the delegate failed to give such natural justice or procedural fairness to the appellant as gives a ground for review by this Court. 45 Ground 3 of the notice of appeal, namely that the delegate acted beyond power by sending and withdrawing the letter on 7 April 2008 and proceeding to refuse the appellant's application for a visa without having received any comment or response by the appellant to the matters contained in the 7 April 2008 letter suffers a similar fate. The delegate was not obliged to send the letter pursuant to s 57 of the Act, and to withdraw it and not give the appellant the opportunity to answer it was not beyond power. 46 Ground 4 of the notice of appeal, namely that the delegate made a decision not open on the material before her, is not made out, having regard to the delegate's identification of the evidence which she took into account 47 Ground 5, namely that the delegate made a decision which no reasonable delegate could have made is also not made out. The appellant relies upon the particulars given to the other grounds of appeal but those particulars do not demonstrate any attitude of unreasonableness. Those particulars may disclose that the delegate misunderstood what had been the subject of response in the earlier letter and may have misunderstood the information supplied by the Department. That does not mean that the delegate made a decision which no reasonable delegate could have made. 48 In the circumstances I consider that the appellant has no prospects of success in relation to the grounds raised in paragraphs 3, 4 and 5 of the notice of appeal, including the proposed amended particular to ground 4 and I refuse leave to the appellant to rely on those grounds in this appeal. 49 For the reasons to which I have already referred the appeal should be allowed, the orders of the Federal Magistrate should be set aside and in lieu thereof it should be ordered that the decision of the delegate be quashed, that a writ of certiorari be issued and a writ of mandamus be issued remitting the application for the visa by the appellant to the respondent for further consideration according to law. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 23 July 2009 Counsel for the Appellant: A Krohn Solicitor for the Appellant: Hymans Solicitors Counsel for the Respondent: S Burchell Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 February 2009 Date of Judgment: 23 July 2009	7,839
federal_court_of_australia:fca/single/2001/2001fca0742	decision	commonwealth	federal_court_of_australia	text/html	2001-06-20 00:00:00	W41/01A v Minister For Immigration & Multicultural Affairs [2001] FCA 742	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2001/2001fca0742	2024-09-13T22:52:17.038551+10:00	FEDERAL COURT OF AUSTRALIA W41/01A v Minister For Immigration & Multicultural Affairs [2001] FCA 742 MIGRATION – protection visa – whether tribunal decision affirming rejection of application in error of law – whether tribunal failed to observe proper procedures – whether tribunal failed to apply the applicable law – whether tribunal under duty to inquire – relevance of exceptional findings made by tribunal in favour of applicants Migration Act 1958 (Cth) s 476 Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 followed Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 referred to Li v Minister for Immigration & Multicultural Affairs (1999) 96 FCR 125 not followed Li v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 122 not followed Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 cited Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 cited Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 referred to Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 cited Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040 referred to Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359 referred to Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825 cited Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 cited Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 cited Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 cited Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 cited Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 cited Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 cited Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 169 cited W41/01A v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS W 41 of 2001 RD NICHOLSON J 20 JUNE 2001 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 41 of 2001 BETWEEN: W41/01A APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE OF ORDER: 20 JUNE 2001 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The application for review be dismissed. 2. The applicants pay the respondent's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W 41 of 2001 BETWEEN: W41/01A APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: RD NICHOLSON J DATE: 20 JUNE 2001 PLACE: PERTH REASONS FOR JUDGMENT 1 This is an application by a father (and also his daughter) who are citizens of Iran, for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 15 December 2000. That decision affirmed the decision of a delegate of the respondent not to grant protection visas (Class AZ) to the applicants. Relevant legislation 2 Under s 36(2) of the Migration Act 1958 (Cth) ("the Act") a non-citizen in Australia is eligible for a protection visa if that person is someone: "… to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." The Refugees Convention is the Convention Relating to the Status of Refugees 1951 and the Refugees Protocol is the Protocol Relating to the Status of Refugees 1967. The expression "Convention" will be used to mean the Convention as amended by the Protocol. 3 Article 1a(2) of the Convention defines a "refugee" to be any person who: "…owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it". Background circumstances 4 As outlined in the reasons of the Tribunal the following are the background circumstances. The applicant father is a 46 year old divorced male. He completed approximately 10 years of education in Iran. He speaks, reads and writes Farsi and also speaks some German. From 1971 to 1974 he served in the Iranian Army. From 1974 to 1978 he worked as a guard at an oil company. From 1978 to 1980 he was a guard for the then president of Iran, Mr Bani-Sadr. From 1980 to 1986 he ran his own business in Iran. In 1986 he travelled to Germany with his daughter to seek refugee status, which was granted. His most recent German UN travel document was issued in Trier, Germany on 21 November 1994 and expired on 20 November 1996. He travelled to Australia on a visitor visa which was valid until 2 April 1997. He arrived in Australia on 5 October 1996. His four brothers are permanent residents in Australia. His mother is also in Australia. His father was in Australia but has since passed away. 5 The applicant daughter is a 19 year old single woman as at the time of the decision of the Tribunal. She arrived in Australia on 10 August 1996. 6 The applicant father claimed that, partly due to his former close relationship to the former President of Iran, and partly because the former President used the applicant father as an internal contact in his dealings with the fledgling internal opposition, he became an enemy in the eyes of the Iranian regime. He claimed that numerous attempts were made on his life and he felt threatened by possible arrest and torture. He claimed to have fled Iran through the Turkish border. 7 The applicant father claimed that whilst in Germany he had observed many instances of assassination, threats to other peoples' lives and his own by what the Iranian community in Germany regarded as Iranian agents. Things came to a head when he received information and later saw that an Iranian friend's flat had been bombed. He was warned that Iranian agents were on their way to his house and he saw them getting out of a vehicle. He and his daughter escaped and stayed in hiding until they left Germany on a visit to Australia. He also claimed that he and his daughter frequently endured racial abuse and discrimination. 8 The applicant father claimed that he could not return to Iran because after his departure his whole family had become embroiled in politics as a result of his political activity. He believes he would be imprisoned and tortured or even killed. He also believes he is no longer safe in Germany where he had been involved, with others, in printing and distributing an Iranian oriented newspaper and because of a network he had established in smuggling leaflets into Iran. He claimed his fear was well-founded because he saw many people in Germany assassinated by Iranian undercover agents. 9 The applicant daughter made additional claims to those of her father. She claimed she was 3 years (later revised to 4 years) of age when she and her father had to leave Iran because of her father's political involvement. She loved Australia because all of her family lived here. She had finished high school and hoped to join the Australian Air Force if she gained permanent residency and had done work experience to that end. 10 In relation to Germany, the applicant daughter claimed that there was always dissent between her and German children because she was a foreigner. Things had got worse when she reached high school. 11 At the Tribunal hearing the applicant father indicated some of his written claims were untrue. He said he had applied for citizenship in Germany but did not wait for the result of that application. He claimed that he and his daughter did not have German citizenship. He had been told that he had to go to the Iranian Embassy to declare he was no longer a citizen of Iran and he had done this. About 1995 he had signed a document stating that he renounced his Iranian citizenship and his daughter signed the same document. However, he and his daughter were required to go back to the Iranian Embassy to continue with the process but they had not done so. 12 The applicant father said he did not want anything more to do with Germany. He wanted to stay in Australia because he and his daughter were happy here and she had achieved a lot, whereas in Germany she had suffered considerable hardships. Neither he nor his daughter held Iranian passports because they handed them over to the German authorities when granted refugee status in Germany. 13 At the hearing the applicant daughter said that she believed that if she returned to either Iran or Germany she would not be able to find a job nor would she be able to continue her education. Her father pointed to her successful progress in education, sport and in the cadets. 14 Information was also tendered to the Tribunal indicating there was still a significant problem with racism in Germany. 15 The father is presently employed in security work in Australia. He claimed that he and his daughter would be useful members of Australian society. Tribunal's findings 16 The Tribunal made the following findings: 1. As to the reasons why the applicants left Germany the Tribunal found as follows: "On the basis of the evidence presented by the applicants at the Tribunal hearing, the Tribunal finds that the reason the applicants left Germany to travel to Australia was mainly because they were lonely in Germany without their family and because they thought that Australia would present more opportunities for the applicant daughter in terms of sporting participation, education and employment. The applicant father's parents and all of his brothers, along with each of their respective families, all lived in Australia and mostly in and around Perth. The applicants travelled to Australia to be reunited with their family. The applicant daughter has formed particularly close bonds with her cousins in Australia. She has also been able to excel in sports and in her education. Although these personal reasons were the applicants' main reasons for leaving Germany, the Tribunal notes that they also expressed some fear of terrorists and Nazi groups in Germany." 2. On the question of whether or not the applicants still retained Iranian citizenship the Tribunal found as follows: "Independent evidence before the Tribunal … indicates that there is a strict procedure involved in renouncing one's Iranian citizenship. It involves the filling in of forms, various checks including a check on military service obligations, a transfer of any property held in Iran to an Iranian national, and authorisation by the Iranian Cabinet. It is clear to the Tribunal that the applicants' application involved only the very first step. The applicant father told the Tribunal that he and his daughter were invited back to the Iranian Embassy to attend to further procedures but they did not go through with this. … On the basis of the independent evidence before the Tribunal and the applicant father's oral evidence, the Tribunal is satisfied that the applicants have not completed the process of renouncing their Iranian citizenship. The Tribunal is satisfied that they still hold Iranian citizenship even though they no longer hold Iranian passports. The Tribunal is also satisfied, on the basis of the evidence before the Tribunal (in particular, the applicant father's oral evidence), that the applicants do not hold German citizenship. The applicants' country of nationality is therefore Iran." 3. As to the applicant daughter: "The applicant daughter was an infant when she departed with her father. She has no independent claims against Iran and relies on her father's claims." 4. As to the claims of the applicant father: "On the basis of the oral evidence given by the applicant father to the Tribunal, the Tribunal finds that, although the applicant father was questioned on a couple of occasions by the authorities between 1980 and 1986, and although he hated the regime, he remained safe, was able to run a transport business and was not subjected to persecution. The Tribunal finds that the applicants left Iran in 1986 because of the chaos which was evident throughout the country as a result of the eight year Iran-Iraq war which lasted until 1988. While the applicant father claims to have feared harm at the hand of the Hezbollah, no harm ever actually befell him in the five years between him ceasing to work for Bani-Sadr and his departure from Iran. The Tribunal would have expected that if he were ever to be targeted by the Hezbollah because of his links with Bani-Sadr this would have happened closer to the time that Bani-Sadr fled Iran (1981) and not later. The Tribunal is not satisfied, therefore, that the applicant father's concerns about the Hezbollah harming him in 1986 for reasons of his association with Bani-Sadr were well-founded." 5. Concerning the position which the applicants would face if they were to return to Iran: (a) "It appears that only those who have had a high opposition political profile while abroad or those wanted by the authorities for high profile opposition political activities in Iran prior to their escape and members of those political groups (especially the Mujahideen-e- Khalq (or MKO)) still engage in armed conflict against the regime's interests would face real difficulties, if returned to Iran. The applicants do not fall within this category of people. There is no evidence before the Tribunal to satisfy it that former employees or supporters of Bani-Sadr face a risk of persecution in Iran today." (b) "The Tribunal is, furthermore, not satisfied that the applicants were involved in any activities in Germany which would cause them to fear persecution upon return to Iran. The applicant father told the Tribunal that he sometimes cut out newspaper articles in Germany and sent them to a friend in Iran. However, there is no evidence before the Tribunal to satisfy it that this very low-key activity would have come to the attention of the Iranian authorities, nor that the authorities would have any interest in the applicant father because of this activity. Furthermore, the applicant father's occasional contact with Bani-Sadr in Europe was of a very personal and low-key nature. The Tribunal is not satisfied that this contact with the former president would be of any interest to the Iranian regime." (c) "Furthermore, there is no evidence before the Tribunal to suggest that a person of the applicant father's profile would be of any interest to the Hezbollah now or in the reasonably foreseeable future. The Tribunal notes, in particular, the lengthy passage of time since the applicant father worked for Bani-Sadr (around 19 years) and the lengthy period of time since the applicants departed Iran (14 years). The fact that they have been away for so long suggest to the Tribunal that very few people in Iran would have any memory of them, nor have any knowledge that the applicant father was ever a former employee of the former president, Bani-Sadr." (d) "The Tribunal accepts that life will be extremely difficult for the applicants if they were to return to Iran. This is particularly so for the applicant daughter who has grown up in western nations and knows very little of life in the Islamic Republic. While she speaks some Farsi, she reads very little. The applicant daughter has expressed concerns about not being able to find a job in Iran and being unable to continue her education. However, the applicant daughter has already received a basic education so any inability to further her education would not, in the Tribunal's view be serious enough to amount to persecution. Her claims about being unable to further her education are, in any case, speculative and there is in fact no evidence before the Tribunal to satisfy it that the applicant daughter would not be able to further her education if she returned to Iran. While the applicant daughter may have concerns about her future employment prospects in Iran, this is also just speculation as she does not at this stage have any information about her employment prospects in Iran. The Tribunal notes, however, that she is an intelligent young woman who speaks several languages. There is no evidence before the Tribunal to satisfy it that the applicant daughter will be unable to obtain employment in Iran. While life may be initially difficult for the applicant daughter in Iran, the Tribunal is not satisfied, on the basis of the evidence before the Tribunal, that these difficulties give her a well-founded fear of persecution in Iran for a Convention reason." (e) "In light of the evidence before it, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a Convention reason now or in the reasonably foreseeable future in Iran" 6. Concerning Germany: "As the Tribunal has found that the applicants are Iranian nationals and do not have a well-founded fear of persecution in Iran, the Tribunal does not need to consider whether they have effective protection in Germany. However, the applicants may have the option of returning to Germany if they do not wish to return to Iran. This is something, however, which they would have to take up themselves with the German authorities. The ability or otherwise of the applicants to return to Germany does not form part of the Tribunal's decision." 17 The Tribunal concluded that it was not satisfied the applicants were persons to whom Australia had protection obligations under the Convention so that they did not satisfy the criterion set out in s 36(2) of the Act for a protection visa. Grounds of review 18 The grounds of the application as stated in the amended application seek to invoke the provisions of s 476(1)(a) of the Act in relation to the failure to observe procedures and s 476(1)(b) of the Act in relation to what is said to have been an incorrect application of the applicable law by the Tribunal. These grounds are particularised in relation to the Tribunal's findings concerning the second applicant suffering persecution if she were to return to Iran and the Tribunal's conclusion that the first applicant was of Iranian nationality. Whether second applicant would suffer persecution in Iran 19 The first particularisation is that the Tribunal did not properly, genuinely and realistically consider the merits of the applicants' claim for refugee status in that it made no decision or finding on the question of whether the second applicant would suffer persecution if she had to return to Iran because she is a western educated woman with only limited Farsi language skills. This matter was the subject of the Tribunal's findings set out above in pars 1 and 5(d) of the findings above. 20 The submission for the applicants is that the issue was squarely raised in relation to the applicant daughter but had not been properly dealt with because the Tribunal was under an obligation to make further inquiries which it had not undertaken. 21 The case for the applicants is developed in the following way. It is accepted that any duty to inquire cannot, because of the provisions of s 476 of the Act, be based on any ground of "reasonableness" or failure to take into account relevant considerations. Likewise, it is accepted that any such duty cannot be based on s 420(2)(b) of the Act in light of the decision in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611. Further, it is accepted that the preponderance of authorities states that s 427(1)(d) of the Act is permissive and does not create any duty on the Tribunal to inquire: Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470. Nevertheless, reliance is placed on dicta of Drummond J in Li v Minister for Immigration & Multicultural Affairs (1999) 96 FCR 125 at [66] and Li v Minister for Immigration & Multicultural Affairs (No 2) [2000] FCA 122 at [8] where Drummond J said (in the latter case) "the unexplained failure by the Tribunal to seek out information as the Tribunal itself identified as of importance to its decision, in my opinion, amounts to a failure to follow the inquisitorial procedures it is required to follow. Such a failure amounts to reviewable error within s 476(1)(a)." In short the submission is that when a tribunal undertakes a review it sometimes requires it to seek out information and a failure to do so constitutes a failure to carry out its proper function. In other words the nature of the inquisitorial function may in some circumstances require something more than acting on the case presented by the party. It is said that the relevant test is whether the proper execution of the Tribunal's function requires the necessary steps to be taken. This approach of Drummond J is said to receive support from the judgment of Merkel J in Meadows v Minister for Immigration & Multicultural Affairs (1998) 90 FCR 370 at 387 – 388. Specifically it is said that in relation to the Tribunal finding set out above in par 5(e) it would have been a simple exercise for the Tribunal to obtain further information on employment, education and other matters relevant to the second applicant as a western educated woman with limited Farsi skills. Alternatively, it is argued, if that is not the case, the second applicant's position was dealt with in such a way that there was a failure to give a proper genuine and realistic consideration to it upon the merits: Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 at [12] – [14]. 22 For the respondent it is accepted that the duties of a tribunal may, if the legislature chooses, include a duty to make inquiries. However, it is said the more elaborate the provisions, the more compelling the inference that whatever was omitted was omitted so as to exclude the duty suggested. Here it is said that the length, complexity and general nature of the scheme of the Act, coupled with the omission of any express duty such as the one for which the applicants contend, militates against the appropriateness of applying such a duty. It is submitted that older authority such as Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 and Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 at 651 (decided on s 420 before the High Court's decision in Eshetu) suggested that any such duty would arise only in rare cases. In Minister for Immigration & Multicultural Affairs v Amani [1999] FCA 1040, Lee J left open the issue of whether there was such a duty, taking the view that, if there was, it arose only in the circumstances identified by Wilcox J in Prasad. Similarly, Hely J seemed to accept, in Ahmed v Minister for Immigration & Multicultural Affairs [1999] FCA 359, that there might be rare cases importing such a duty. Even accepting that such a duty may be implied in exceptional circumstances, it is said that more recent authorities have generally refused to and have spurned attempts to read duties to inquire into particular sections of the Act, in particular ss 425 and 427: Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825; Majeed v Minister for Immigration & Multicultural Affairs [2000] FCA 470 at [18] – [23]; Rahman v Minister for Immigration & Multicultural Affairs [2000] FCA 1277 at [29] – [32]; Anthonypillai v Minister for Immigration & Multicultural Affairs [2000] FCA 1368 at [13] – [15]; Candyah v Minister for Immigration & Multicultural Affairs [2000] FCA 869 at [32] – [38]; Gill v Minister for Immigration & Multicultural Affairs [2000] FCA 1057 at [12] – [14]; Mazhar v Minister for Immigration & Multicultural Affairs [2000] FCA 1759 at [42] – [44]; Kabir v Minister for Immigration & Multicultural Affairs [2001] FCA 248 at [50 – [56]. It is submitted that the decisions in Li are against the preponderance of authority and are wrongly decided. It is also said that those decisions were expressly not followed in Anthonypillai at [13]: see also Al Shamry v Minister for Immigration & Multicultural Affairs [2000] FCA 169 said to have expressly not been followed in Kibir. 23 I do not consider that this is an instance in which it can be said that the circumstances were such that a duty rose upon the Tribunal to make inquiries in the manner in which the applicants' submissions suggest. These concerns did not form part of the applicants' case in respect of the applicant daughter in terms of the basis of a well-founded fear for a Convention reason. There was no claim that the applicant daughter had any fear of the nature described in this ground. Not only was it not suggested that the applicant daughter did not have the relevant fear, but there was no claim that such a fear came from the Iranian regime. Nor was it suggested that her sex would give rise to the perceived fear or that her western education would do so. The only fear expressed was the fear of wasted potential which is not a relevant fear for Convention purposes. Absent the expression of any relevant fear, no duty to inquire could arise. 24 In my opinion neither in relation to s 476(1)(a) or s 476(1)(e) of the Act is the particularisation relating to the applicant daughter made out. Whether finding of Iranian nationality made improperly 25 For the applicants it is contended that the finding of their Iranian citizenship (seen above in finding 2), was the product of pure speculation on the part of the Tribunal and lacked any proper foundation. I am unable to accept this submission. The country information before the Tribunal emphasised that such citizenship requires formal renunciation and that the procedure for abandoning it is rarely implemented. The applicant father's claim to the Tribunal was that he and his daughter were required to go back to the Iranian Embassy to continue with the renunciation process but they did not do so. No error of law can be made out in terms of either of the two paragraphs of s 476 relied upon. 26 In further support of this ground it is particularised that the Tribunal did not consider whether, in the event that the applicants had no nationality, they would suffer persecution if they had to return to Germany. There was, however, no need for the Tribunal to consider this issue in view of its finding that the applicants were Iranian nationals. Furthermore, there was no suggestion on the evidence or in any other way that the applicants held a fear of persecution for the reason mentioned in this sub-ground. Conclusion 27 For these reasons I consider that the application for review should be dismissed. Special addendum 28 There is, however, one outstanding feature of the reasons of the Tribunal in this matter which must draw additional reference. It is the comments and findings of the Tribunal concerning the nature of the applicants made in the Tribunal's concluding observations as follows: "The Tribunal notes that the main reason why the applicants wish to remain in Australia is that all of their family lives in Australia and they have formed particularly strong bonds with their family. They have no family in Germany and are not in contact with any family members in Iran. The applicant daughter has grown up in western countries. She speaks fluent German and English and only a little Farsi. She may experience personal hardships if forced to return to Iran. Both applicants are extremely distressed at the thought of leaving their family behind in Australia and returning to either Iran or Germany. The applicant daughter has blossomed under the Australian educational system. She has worked hard and has received many good reports from her school and others who have been associated with her progress. She has achieved a great deal with the Air Force Cadets and wishes dearly to join the Australian Air Force. She has also had some outstanding achievements in her martial arts training, having won many medals at the state championship level. There is no doubt that she would make a wonderful Australian citizen. There is no doubt that the applicant father had done a wonderful job of raising his daughter under very difficult circumstances. However, the Tribunal's role is limited to determining whether the applicants satisfy the criteria for the grant of a protection visa. A consideration of their circumstances on other grounds is a matter solely within the Minister's discretion." 29 It must be rare among the vast array of Tribunal decisions that such favourable findings are made in relation to applicants even though their case for review of the decision to grant them a protection visa has not succeeded. Clearly, both in terms of their assumption of responsibilities in the Australian community and their personal growth and development (particularly that of the applicant daughter) within the Australian environment, it is open to conclusion that the applicants are potentially worthy Australian citizens, subject to their compliance with whatever migration controls are relevant in their case. While it is apparent that they do not qualify for a protection visa and hence for admission as refugees, the findings of the Tribunal bring to mind that the provisions of s 417 of the Act by which the Minister may have a discretion to further consider their case. 30 These findings of the Tribunal in relation to the applicants cannot assist this Court in the discharge of its function, which is to determine the application for review in relation to legal considerations which it is permitted to take into account by the Act. However, the Minister's function under the section would permit him to take into account the exceptional findings of the Tribunal in relation to these applicants. I therefore draw attention to those exceptional findings and make the suggestion that it would be appropriate for them to be brought to the attention of the Minister for consideration as to whether it would be appropriate for him to exercise the powers in the above section or any other provisions which may be available to him to consider whether these applicants might otherwise qualify for admission to Australia. Whether or not that occurs, of course, is entirely a matter for the Minister in the exercise of his discretion. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice RD Nicholson. Associate: Dated: 20 June 2001 Counsel for the Applicant: Mr AJ Goldfinch Solicitor for the Applicant: Messrs Goldfinch & Co Counsel for the Respondent: Mr AA Jenshel Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 May 2001 Date of Judgment: 20 June 2001	6,529
federal_court_of_australia:fca/single/1997/1997fca1225	decision	commonwealth	federal_court_of_australia	text/html	1997-10-23 00:00:00	Naidu, Damodara v Minister for Immigration & Multicultural Affairs & Anor [1997] FCA 1225	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1225	2024-09-13T22:52:18.129464+10:00	FEDERAL COURT OF AUSTRALIA Migration - no error of law disclosed. Migration (1993) Regulations - cl 812.723(6) DAMODARA NAIDU v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS VG 4 of 1997 judge: beaumont j place: melbourne date: 23 october 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 4 of 1997 BETWEEN: DAMODARA NAIDU Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BEAUMONT J DATE OF ORDER: 23 OCTOBER 1997 WHERE MADE: MELBOURNE ORDERS: 1. Application dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 4 of 1997 BETWEEN: DAMODARA NAIDU Applicant AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: BEAUMONT J DATE: 23 OCTOBER 1997 PLACE: MELBOURNE REASONS FOR JUDGMENT BEAUMONT J: This is an application for judicial review of a decision of the Immigration Review Tribunal ("the Tribunal"), given on 2 December 1996, confirming a decision of the Minister's delegate to refuse to grant the applicant a Class 812 (December 1989 (permanent)) entry permit. The applicant is a 53 year old Fijian Indian who arrived in Australia in October 1985 under a one month visitor visa. In December 1986, the applicant lodged an application for permanent residence on the basis of his marriage to an Australian citizen three months earlier. That application was finally rejected some years later. As at 19 December 1989 his status was that of an "illegal entrant" (now described as an "unlawful citizen"). On 17 December 1993, the applicant applied for a Class 812 (December 1989 (permanent)) entry permit. Before the Tribunal, it was common ground that in order to qualify for the grant of such a permit, the applicant had to satisfy, inter alia, the criteria specified in cl 812.723(6) of the Migration (1993) Regulations as follows: "(6) An applicant satisfies the requirements of this subclause if, subject to subclause (7): (a) there was, on 15 October 1990, any compassionate ground (other than the grounds mentioned in subclauses (1) to (5)) for the grant to the applicant of an entry permit, to the effect that refusal to grant the entry permit would have caused extreme hardship or irreparable prejudice to an Australian citizen or an Australian permanent resident; and (b) the compassionate ground continues to exist." Before the Tribunal, the applicant led evidence which he claimed showed that the refusal to grant the permit would have caused "extreme hardship or irreparable prejudice" to three persons, all of whom were either Australian citizens or Australian permanent residents on 15 October 1990, and that this compassionate ground continued to exist. The persons were: (1) his brother, Maslamani Naidu, who had come to Australia as a spouse in 1987; (2) his son, Patrick Naidu, now aged 20, born in New Zealand and thus a New Zealand citizen with an entitlement accordingly to reside permanently in this country; and (3) Mark Gatt, an Australian citizen, who is a friend of the applicant and his family. Having given careful and detailed consideration to the material relied upon by the applicant in support of his claim that he satisfied the requirements of subclause (6), the Tribunal went on to express its conclusion thus: "The difficulty in this case is that it has been five years since the date specified in the regulation, namely 15 October 1990. Whilst the Tribunal is sympathetic to the plight of Mark Gatt were the Naidus to leave, and is of the view that extreme hardship would ensue, the facts were not as they are now as at 15 October 1990. A similar comment in relation to irreparable prejudice applies to Maslamani Naidu now but did not apply to him on 15 October 1990. In relation to Patrick Naidu, he is now relatively independent but was not so on 15 October 1990. Given that the compassionate circumstances had to exist on 15 October 1990 and have to continue to the date of the Tribunal's decision, the Tribunal is unable to make a favourable decision in this matter. In all the circumstances, the Tribunal is unable to find that the applicant satisfies the criterion prescribed in subclause 812.723(6)." It is common ground that judicial review is available only if an error of law on the part of the Tribunal can be demonstrated. In my opinion, no such error is indicated here. Although it was suggested on behalf of the applicant that the Tribunal must have misunderstood the true nature of the prejudice and hardship contemplated by the Regulations, I am simply unable to discern any error of law in the full and clear explanation given by the Tribunal of its process of reasoning. In my view, the matters raised by the applicant before this Court involved what were purely questions of fact. It must follow that the application should be dismissed. Accordingly, I order that the application be dismissed with costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont Associate: Dated: 23 October 1997 Counsel for the Applicant: K Bell Solicitor for the Applicant: Wisewoulds Counsel for the First and Second Respondents: R Downing Solicitor for the First and Second Respondents: Australian Government Solicitor Date of Hearing: 23 October 1997 Date of Judgment: 23 October 1997	1,351
federal_court_of_australia:fca/single/2004/2004fca0567	decision	commonwealth	federal_court_of_australia	text/html	2004-05-07 00:00:00	Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca0567	2024-09-13T22:52:18.642163+10:00	FEDERAL COURT OF AUSTRALIA Applicant A227 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 567 MIGRATION – jurisdictional error – no evidence – critical findings of fact not supported by the evidence – conclusion that significant improvements in Punjab by late 1992 indicated applicant was not detained by authorities – only evidence before Tribunal was that improvements did not occur until at least 1993 – well-founded fear of persecution – perception of applicant by Punjab authorities. Migration Act 1958 (Cth) Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 cited Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 cited SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231 cited APPLICANT A227 OF 2003 v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS S 776 of 2003 LANDER J 7 MAY 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 776 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A227 OF 2003 APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE OF ORDER: 7 MAY 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is allowed. 2. The decision of the Refugee Review Tribunal of 28 August 2002 is quashed. 3. The matter be remitted to the Refugee Review Tribunal for further hearing according to law. 4. The first respondent to pay the applicant's costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 776 OF 2003 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: APPLICANT A227 OF 2003 APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LANDER J DATE: 7 MAY 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 1 November 2000 the applicant brought proceedings in the High Court of Australia when he joined the Lie class action seeking the issue of constitutional writs in relation to a decision of the Refugee Review Tribunal (RRT) given on 28 August 2002. 2 It is accepted that the proceedings were brought within the time provided for in the High Court Rules and no extension of time is required. 3 On 25 November 2002, Gaudron J remitted the application, with a number of other applications, to this Court for hearing. 4 On 3 November 2003, I ordered the applicant to file and serve: (a) A statement of contentions of relevant facts and law setting out: (i) if the applicant has previously sought judicial review of the Refugee Review Tribunal decision, the subject of this application, the reasons why the application should not be dismissed; (ii) if the applicant requires an extension of time within which to file its application, the reasons why an extension of time should be granted; and (iii) particulars of the grounds relied upon for this application for the issue of prerogative writs and orders sought. (b) Any affidavits in support of any of the contentions in paragraph 3(a) which the applicant intends to rely on at the hearing on or before 15 December 2003. 5 I extended time to comply with paragraph 3 of my order on 18 December 2003. On 16 February 2004, the Court received an amended draft order nisi for filing in the High Court of Australia. In any event, the draft order sought writs of prohibition, certiorari and mandamus. The grounds relied on were: 'The decision of the Tribunal was made in breach of an imperative duty imposed on the Tribunal or an essential pre-condition to, or an inviolable limitation or restraint upon, its power and its jurisdiction necessary for the existence of the satisfaction required by s 65 to grant or refuse the application and its powers to conduct a review under s 414 of the Act. The Tribunal exceeded its jurisdiction and/or constructively failed to exercise jurisdiction in that: Particulars (i) it reached a conclusion that the Applicant was not a person perceived to be one of those militants seeking a separate Sikh State on the basis of a finding that the Applicant had not been detained and mistreated in 1992 by reason of its reliance on country information which did not in fact support that finding and conclusion and/or (ii) the material upon which the Tribunal relied was so inadequate that the only inference open is that it applied the wrong test or was not satisfied in respect of the correct test that it was bound to apply.' 6 On the same day, the applicant also filed his contentions of fact and law. 7 The applicant is an Indian national who arrived in Australia in February 1999 on a visitor's visa. On 17 March 1999, he applied for a protection visa. On 6 April 1999, a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs decided that the applicant was not a refugee as provided for in the Migration Act 1958 (Cth) (the Act) and refused the grant of a protection visa. On 12 April 1999, the applicant applied for a review of that decision by the RRT and, on 28 August 2000, the RRT affirmed the delegate's decision not to grant a protection visa. That decision was handed down on 15 September 2000. 8 A person is entitled to a protection visa if that person can satisfy the criteria in s 36 of the Act. A person can satisfy that criteria if the person can establish that he or she is a person to whom Australia has protection obligations under the Convention relating to the Status of Refugees (opened for signature 28 July 1951, [1954] ATS 5, entered into force 22 April 1954) and the protocol to it. Article 1A(2) of the Convention provides that a protection obligation is owed to any person who: '… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country.' 9 The decision which confronted the delegate and the RRT was whether the applicant had a well-founded fear of persecution for any Convention reason. 10 Section 474 of the Act has no application to these proceedings. The RRT decision was given prior to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). That Act commenced on 2 October 2001. The Act provides for a schedule which contains transitional provisions. The applicant's application for judicial review was lodged prior to the enactment of the amending Act and s 474 has no application. 11 However, the writs which the applicant seeks would only issue if the applicant could establish jurisdictional error. The question on this application is whether the decision by the RRT is tainted by jurisdictional error. 12 A wrong finding of fact is not jurisdictional error: Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 35-36 per Brennan J. A finding which is a critical step in the Tribunal's ultimate conclusion which is not supported by any evidence may well constitute jurisdictional error: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; SFGB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 231: 13 In the second mentioned case the Full Court of this Court (Mansfield, Selway and Bennett JJ) said at [18]-[20]: '… But the essence of the argument was that there was no information before the Tribunal from which it could realistically draw the conclusion that there was a government in control of the place from which the appellant came that could or would protect the appellant from persecution for a Convention reason. This argument, if it were made out, would be sufficient to establish that the Tribunal had made a "jurisdictional error" so as to found jurisdiction in this Court to intervene. If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error: see Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-357. If the decision of the Tribunal was "Wednesbury" unreasonable or if the material on which the Tribunal relied was so inadequate that the only inference was that the Tribunal applied the wrong test or was not, in reality, satisfied in respect of the correct test, then there would also be jurisdictional error: see Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 ("S20") at 62, 67, 76, 90-91. On the other hand, if there is sufficient evidence or other information before the Tribunal on which it could reach the conclusion it did then it is for the Tribunal to determine what weight it gives to that evidence. Indeed, unless the relevant fact can be identified as a "jurisdictional fact", there is no error of law, let alone a jurisdictional error, in the Tribunal making a wrong finding of fact: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-36. It is for the Tribunal to determine the merit of the claim. The line between merit review and jurisdictional error may not be a "bright line", but it is nevertheless an essential one: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.' 14 The applicant was invited to appear before the Tribunal to give whatever oral evidence he wished. Initially, he indicated that he would appear but, subsequently, two days before the hearing, the RRT was advised that the applicant did not wish to attend. He relied upon written material before the RRT. 15 In that written material he said that he had very little involvement in politics although, like all Sikhs, he was a supporter of the move to have an independent Sikh State. He had two friends who were active in support of the establishment of a separate Sikh State who sought to enlist the applicant in their activities on behalf of the Sikh Independence Movement. 16 The applicant said that he was taken for questioning by the police some time in 1992. During the questioning, he was hit with sticks, pushed around, abused, shouted and yelled at, all of which was physically and emotionally upsetting. He was held by the police for a week. In the same year, his two friends disappeared. 17 In early 1993, he was again taken from his house by the police and taken to the police station for questioning. This time he was held for a month. The police inflicted the same punishment as before. He was concerned about his future so he took a job working on the trucks which allowed him to move about and not remain in one place for too long. 18 In February 1997, after elections in the Punjab, the Badal Government was elected. The applicant decided it was then safe for him to return home. He said that in November or December of 1997 his home was raided by the police, who threatened his parents and demanded to know the applicant's whereabouts. 19 The applicant said that he went into hiding because he was frightened that if the police did detain him again he would be beaten and maltreated, as he had been in the past. 20 He discussed his future with his parents and, in the end, they all agreed that he should seek safety in Australia. He said that he travelled to and entered Australia on a false passport. He did, however, produce a passport of his own which issued in 1998. 21 The RRT found: 'The Tribunal notes that the applicant was not himself actively involved in supporting the establishment of a Sikh State. In light of country information cited below regarding significant improvements in Punjab by 1992 the Tribunal is not satisfied that the applicant was detained or mistreated by the authorities in late 1992 or at some time in 1993. It notes that he was never charged with any offence. In his initial application for a protection visa the applicant gave the same address and occupation from 1989 until early 1999. A passport issued to him in September 1998 provides the same address. Accordingly, the Tribunal does not accept that he arranged his affairs after 1997 such that he was effectively in hiding. In view of his lack of actual involvement with Sikh groups or his overt support of a Sikh State, and bearing in mind the significance of changes in Punjab by 1992 and the lapse of time since he allegedly encountered problems from the authorities or friends disappeared, the Tribunal does not accept that he was sought in 1997 or his parents prevailed upon to present him to the authorities. While accepting that friends of the applicant have gone missing, the Tribunal is not satisfied on the evidence before it that their disappearance was at the hands of the authorities. In any event, the applicant remained in India for some seven years after his friends disappeared. Accordingly, the Tribunal finds that any disappearance of some friends of the applicant does not indicate a real chance of persecution of the applicant himself for any Convention reason.' 22 Later in its reasons, the Tribunal rejected the applicant's claim that he had travelled on someone else's passport. It found, in the alternative, that even if he did, the applicant still held a passport himself and the holding of that passport was inconsistent with the police pursuing the applicant. 23 It is the first of the findings above which is complained of by the applicant on this review. 24 The applicant's case was put concisely by his counsel, Mr Gibson. He contended that there were two errors in that paragraph. First, the applicant did not say that he was detained or mistreated by the authorities in late 1992. The applicant said he was taken for questioning by the police some time in 1992. There is no doubt that that criticism is right. The RRT proceeded upon the mistake that the applicant was first detained in late 1992. Secondly, and more importantly, the applicant contended that there was no evidence to support the finding: 'In light of country information cited below regarding significant improvements in Punjab by 1992 the Tribunal is not satisfied that the applicant was detained or mistreated by the authorities in late 1992 or at some time in 1993.' 25 Mr Gibson contended that that finding, unsupported by the evidence, was critical to the Tribunal's decision. 26 He conceded that he would have to show both that the finding was made without evidence and that the finding was critical to the RRT's ultimate conclusion to succeed on this application. 27 Ms Bean, who appeared for the respondent, contended that there was sufficient evidence for the RRT to make the finding that it did. She accepted immediately that the evidence was thin and that another decision maker may not have made the same decision, but she contended that there was some evidence upon which the finding could be made. 28 Alternatively, she contended, if the finding was unsupported by the evidence, it was not critical to the RRT's decision. 29 Both counsel took me to the country information to support their contentions. 30 The evidence clearly establishes that conditions in the Punjab have improved through the nineties. The evidence, however, is that 'significant improvements' were much later than 1992 and probably later than 1993. 31 Notwithstanding all of the references to which I was taken by Ms Bean, I am satisfied, as the applicant contends, that there was no evidence to support a finding that there were significant improvements in the Punjab by 1992. It followed that the RRT could not have made a finding that the applicant was not detained or mistreated by authorities in late 1992, or at some time in 1993, by reason of those significant improvements. There is no evidence to support that finding. 32 As I have said, Mr Gibson contended that the RRT's rejection of the applicant's claim that he had been interrogated by the police some time in 1992, and again in 1993, in the circumstances mentioned, was critical to the RRT's decision. 33 In the second and third paragraphs quoted above, the RRT rejected other aspects of the applicant's case. No complaint was made by the applicant of the RRT's rejection of those parts of his case. 34 Clearly enough, there was evidence which would have allowed the RRT to reject the applicant's case in the second paragraph. The RRT recited the circumstances in which a person was able to obtain a passport, as set out in a Department of Foreign Affairs and Trade document of 6 July 1992. It noted: 'A CBI inspector then visits the given address personally and speaks to the applicant to confirm identity and residence. He also examines the original ration card (which is used in lieu of ID). He also speaks to the referees. If the applicant is not there at the time of the inspector's visit, the applicant is expected to present himself to the CBI office.' 35 The RRT reasoned that, because the applicant had obtained a passport in September 1998 after undergoing a rigorous examination by the police, he could hardly claim that he needed to avoid the police. 36 In respect of the third paragraph, the RRT gave no reasons for its conclusion that it was not satisfied, on the evidence before it, that his friends' disappearance was at the hands of the authorities. That finding was also open to the RRT. The evidence supporting the claim that the applicant's friends disappeared at the hands of the police was, at best, tenuous. 37 After making those findings, the Tribunal said: 'The Tribunal is not satisfied on the evidence before it that the applicant travelled to Australia on a passport in a name different from his own. He has not produced that passport. He has submitted a passport issued in September 1998 his [sic] own name. Even if he were to have used a different passport to travel to Australia it is apparent that he satisfied all requirement [sic] for the issue of a passport well after the authorities allegedly pursued him. In view of the applicant's capacity to obtain that passport and considering an array of country information indicating that for several years now there has been a substantial change in the political climate and in the treatment of Sikhs in India, the Tribunal finds there is not a real chance of persecution of the applicant now or in the foreseeable future by reason of any links by certain friends with militancy.' 38 In addressing those matters after referring to the country information, the RRT said: 'In considering the evidence before it, the Tribunal finds that there has been a substantial change in circumstances in Punjab. The indiscriminate violence of both the authorities and some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being "militants" or who have "some established history of terrorist associations." The applicant does not have claims to indicate that he is at any risk of attracting the interest of the authorities and was able to obtain a passport. Any chance that he would now or in the foreseeable future be of official interest by reason of his race or political opinion is utterly remote in light of available country information and his own circumstances.' 39 The thrust of the RRT's reasoning was that the applicant was not a militant and was not a member of any movement for an independent Sikh State. In those circumstances, and because of the improved conditions and circumstances in the Punjab, he could not have a well-founded fear of persecution. 40 In my opinion, that finding was open to the RRT. It was the applicant's case that he was not a militant or a member of a movement. There was evidence to support the improved conditions in the Punjab. It was open to the RRT to reach that conclusion. In reaching that conclusion, the finding that he was not subject to the intimidation and threats and interrogation in 1992 and 1993 was not critical to the RRT's reasons. 41 However, that is not an end to the matter. The question is not only whether the applicant had a well-founded fear of persecution because of his activities, but also whether he had a well-founded fear of persecution because of the perception of the authorities concerning him. 42 The RRT concluded: 'While accepting that some militants seeking a separate Sikh State remain exposed to possible persecution, the Tribunal finds on the basis of all the evidence before it that the applicant in the present case is not such a person or so perceived by the authorities. In considering all the circumstances of this case, including cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason.' 43 The applicant's case was that he had been subject to police interrogation because of his association with his two friends. The applicant's case was that he was perceived by the authorities as being associated with militants and persons involved in the movement for an independent Sikh State. Whilst that perception was wrongly held, it existed and it manifested itself in the way in which the police treated him in 1992 and 1993. He, therefore, was a person whom the authorities perceived as a militant and who would likely be subjected to persecution because of a wrongly held perception by the authorities. In rejecting that argument, in my opinion, the rejection of the applicant's account of the interrogations in 1992 and 1993 was critical. 44 I am satisfied that the RRT made a jurisdictional error, in that it made a finding of fact with no evidence to support that finding, which finding was critical to the RRT's ultimate decision that the applicant did not have a well-founded fear of persecution. 45 I would allow the application. I would make an order quashing the decision of the RRT. 46 The matter should be remitted to the RRT for further hearing according to law. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 7 May 2004 Counsel for the Applicant: J Gibson Solicitor for the Applicant: Clothier Anderson Counsel for the Respondent: K Bean Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 April 2004 Date of Judgment: 7 May 2004	4,909
federal_court_of_australia:fca/single/1998/1998fca0884	decision	commonwealth	federal_court_of_australia	text/html	1998-07-13 00:00:00	Farrow Mortgage Services Pty Ltd (in liq) v Stone, George Barry Everett [1998] FCA 884	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1998/1998fca0884	2024-09-13T22:52:21.348678+10:00	IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 7249 of 1998 BETWEEN: FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) (ACN 006 125 757) Petitioner AND: GEORGE BARRY EVERETT STONE Debtor JUDGE: EMMETT J DATE: 13 JULY 1998 PLACE: SYDNEY the court orders that: 1. The petition be stood over for directions on 9 October 1998. 2. The Debtor pay the costs of today. the court grants: 3. Leave to the Petitioner to tax forthwith the costs orders made against the Debtor in the Bankruptcy proceedings. 4. If the payment of those costs is not satisfied within 14 days of service of the certificate of taxation, leave to the Petitioner to restore the matter for directions on any Friday. 5. Leave to the Petitioner to restore the matter for directions if it wishes to contend that the Debtor's appeal to the Court of Appeal is not being prosecuted reasonably and diligently. 6. Liberty to the Petitioner to restore the matter for the purpose of imposing a further term concerning the payment of the costs order made by Giles J on 23 October 1996. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 7249 of 1998 BETWEEN: FARROW MORTGAGE SERVICES PTY LTD (IN LIQUIDATION) (ACN 006 125 757) Petitioner AND: GEORGE BARRY EVERETT STONE Debtor JUDGE: EMMETT J DATE: 13 JULY 1998 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT HIS HONOUR: On 28 April 1998, I gave Mr Stone ("the Debtor") leave to make any further written submissions directed to demonstrating that there are prospects of success in the Court of Appeal. I said that any such written submissions must identify grounds relating to the lack of good faith in the exercise of the power of sale. On 10 June 1998, in purported pursuance of that leave, the Debtor filed a 39 page document in the form of an affidavit. That affidavit makes reference to a folder containing in excess of 290 folios of documents, some of which were not in evidence before Bainton J. In the course of the affidavit, the Debtor demonstrates what I consider to be a misapprehension of the nature of any submission which should be made to a Court of Bankruptcy in seeking an adjournment of a petition on the ground that the judgment debt on which the bankruptcy petition is founded is subject to appeal. For example, at paragraph 66 of the affidavit, the Debtor makes the following statement: I do not believe it was either ethical, logical, or prudent, for my legal counsel to have been persuaded by Farrow's counsel that the material was irrelevant, if that was the manner of its removal. Other documents which I believe were of the utmost relevance to the proper presentation of my case were also similarly put to one side, and marked, … not pressed. It is difficult to see how such a complaint, even if it were well founded, would be a ground of appeal. In any event, it does not appear to be a ground of appeal. The Debtor's affidavit does not address the issues in a way which is of assistance to me in deciding whether or not to adjourn the hearing of the bankruptcy petition pending the hearing of the appeal to the New South Wales Court of Appeal. That is clearly because of the Debtor's lack of understanding and experience in relation to the process in question. It is apparent that the Debtor has received no legal advice in relation to these matters. The essence of the Debtor's case before Bainton J is contained in paragraph 13 of the defence filed in the Supreme Court. The allegation is that Farrow Mortgage Services Pty Limited ("the Petitioner"), in exercising its power of sale in respect of the Debtor's property, failed to act reasonably and failed to act in good faith or to take reasonably adequate steps to ensure a sale at a fair price. It is alleged that the Petitioner failed to: (a) ascertain the value of the property before selling it; (b) promote and market the property for sale properly; (c) direct its agents to apply a proper and reasonable marketing period in order to promote the property for sale properly; (d) direct its agents to inform prospective purchasers properly as to the true and proper potential of the property; (e) direct, supervise and control the agent so as to ensure that a proper and fair auction of the property took place. The allegation made by the Debtor was that the sale of the property for $580,000 was a sale for less than its value. It appears that the issues thrown up by that allegation occupied by far the greater part of the hearing time before Bainton J. There was competing evidence from witnesses called by both Debtor and Petitioner as to the value of the property and as to the manner of sale. His Honour preferred the evidence given by the witnesses called by the Petitioner on questions relating to valuation and to the sale process. It may be thought that his Honour did not state in detail the basis upon which he preferred the Petitioner's evidence in that regard. His Honour did, however, say that he did not place any reliance on the Debtor's evidence on any matter in which there was controversy. His Honour formed the same view of the Debtor's brother, who also gave evidence. On the other hand, there does not appear to be anything in his Honour's reasoning on the question of alleged breach of duty by the Petitioner that depends upon the rejection of the evidence of the Debtor and his brother. The principal evidence on behalf of the Debtor was that of Mr Peter Phippen, who said that the fair market value of the property as at 31 December 1990 was $1,065,000. His Honour rejected that evidence. His Honour's reasons for rejecting Mr Phippen's evidence were said to be as follows: (a) Mr Phippen assumed the market in Balmain was stronger than elsewhere in Sydney because there were more sales there than in other areas, but it did not occur to him that that might have been because of a greater number of forced sales in that area. His Honour, however, made no finding as to the number of forced sales; (b) Mr Phippen, though he knew that the property had been listed with four real estate agencies, did not know at what price it had been offered and did not consider that the valuation of the property had anything to do with what real estate agents were asking for it. His Honour did not explain why that was an erroneous approach; (c) Mr Phippen valued the property as a development proposition in circumstances where at the time, to use his Honour's words, developers were not rushing in to invest. However, no specific finding was made on that question by reference to the evidence; (d) For the purposes of the analysis, Mr Phippen relied on construction cost figures obtained from the Debtor but there was no evidence to indicate that the Debtor had any expertise in estimating construction costs. His Honour found, however, that the Debtor was an architect by profession, having attained a Bachelor's Degree in Architecture in 1968. It may well be thought that an architect would have knowledge of those matters. Those grounds for rejecting Mr Phippen's evidence do not necessarily depend upon his Honour's assessment of the credibility of Mr Phippen. Further, it is not self evident that his Honour's reasoning is correct and it is at least arguable that they are not reasons for rejecting Mr Phippen's valuation. They are matters about which it may be open to an appellate court to take a different view. I, of course, express no view about them one way or the other. His Honour said that he preferred the evidence of Mr Geoffrey Warren Hayden, a valuer called by the Petitioner. His Honour preferred the methodology adopted by Mr Hayden which consisted of an analysis of comparable sales. His Honour observed that Mr Hayden indulged in criticism of a deal of Mr Phippen's evidence that his Honour considered as well founded. However, his Honour did not set out that criticism in his reasons. The essence of the Debtor's complaint is that inadequate marketing resulted in a sale at an undervalue. If the evidence demonstrated that the property was in fact sold at a fair value and not at an under value, such an allegation may lead nowhere because there would be no loss. However, if it be the fact that there was inadequate marketing, a higher price may have been achieved. That may then raise a question as to what is the precise content of the duty which a mortgagee owes to a mortgagor when marketing a property in the exercise of a power of sale. The Debtor's defence alleges that the five matters which I have summarised above constitute a breach of such a duty. That is a matter which the Debtor would be entitled to have determined and, notwithstanding that I have had submissions made to me on behalf of the Debtor as to the content of the duty, it is not for me to resolve that question. It is a matter of some complexity and involves questions which are not without doubt. The Debtor also called valuation evidence from Mr Malcolm Gardner. His Honour recorded that Mr Gardner expressed the opinion that the date chosen for public auction of the property "was not ideal". That evidence was apparently not challenged in cross-examination but his Honour did not accept it for reasons which are not explained. His Honour observed that he was much more impressed with the evidence "on this question" called by the Petitioner. The Debtor also adduced evidence from Mr M.J.G. Hennessey, a real estate auctioneer since 1964. Mr Hennessey's view, according to his Honour, was that the advertising did not give sufficient time for a "full listing and awareness of the market". However, Mr Hennessey also was not cross-examined. Nevertheless, his Honour said that he was much more impressed by the evidence "on the question" called by the Petitioner. Again, his Honour did not say what the evidence was. The evidence called by the Petitioner, to which his Honour appears to have been referring, was that of one Mark Douglas Coleman who had been an employee of Elders Real Estate at the time of the exercise of the power of sale by the Petitioner. Mr Coleman became involved in the endeavours of Elders to market the property. His Honour recounted the steps which had been taken both by the Debtor and subsequently by Elders to sell the property which culminated in a contract for sale in February 1991, after an abortive auction on 13 December 1990. His Honour accepted Mr Coleman's "valuations and his evidence generally", although his Honour does not actually indicate what evidence there was from Mr Coleman by way of valuation. While there is nothing in his Honour's findings concerning the steps taken to effect the sale which suggest anything untoward, Mr Coleman does not appear to have answered expressly the complaint concerning the timing of the auction and the advertising campaign which led to it. The property was in fact sold to the highest bidder, although some two months elapsed before the Petitioner entered into a contract of sale. Nevertheless, it would appear to be open to the Debtor to argue before the Court of Appeal that his Honour erred in rejecting the evidence of Messrs Gardner and Hennessey and it would appear to be open to the Court of Appeal to reach a different conclusion. That is to say, the principles outlined by the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 do not necessarily preclude a different finding in the circumstances of this case. If the Court of Appeal were to conclude that Bainton J wrongly rejected Mr Phippen's evidence of value, the sale of the mortgaged property for 55 per cent of its market value may well be a basis for scrutinising very carefully the steps taken by the mortgagee in the exercise of a power of sale. If the Court of Appeal were disposed to reach that conclusion, a careful analysis of the evidence of Messrs Gardner and Hennessey may indicate that the steps taken by Elders left something to be desired. It is not the function of this Court to attempt to predict the outcome of the appeal. However, if the grounds relied on by the Debtor are reasonable and arguable, he should be given the opportunity of prosecuting the appeal. I have said on an earlier occasion that if I were satisfied that there are reasonable and arguable grounds, then I would adjourn the hearing of the petition to enable the Debtor to prosecute the appeal. On the other hand, the fact that an appeal is current is not the only matter which should be taken into account in the exercise of a discretion such as that which I am being asked to exercise. Pincus J, in Adamopoulos v Olympic Airways SA (1986) 95 ALR 525 at 526, observed that there are a variety of factors which may have an important bearing on the exercise of the discretion. It could be influenced, for example, by evidence that the judgment debtor is in any event insolvent, or by the Court's forming an opinion that the appeal, though arguable, has little chance of success. It would indeed be unfortunate if the general principle to be found in Ahern v Deputy Commissioner of Taxation (1987) 76 ALR 137 were to be applied too rigidly, particularly where execution on a judgment has not been stayed, so that a judgment creditor may have a debtor's assets sold pending the appeal. There is certainly no general rule that a money judgment should be stayed pending an appeal (see Re Lewin v Glasson; Ex parte Milner (1986) 67 ALR 591). It seems to be accepted that the Debtor has no funds with which to employ legal advisers in the prosecution of the appeal. He proposes to conduct the appeal himself. Thus, if an order for costs is made against him following dismissal of the appeal, he would not be in a position to meet the order for costs. That, of course, is a matter for the Court of Appeal. It may be possible for the Petitioner, as respondent in the Court of Appeal, to seek an order for the provision of security for the costs of the appeal. As I understand the position, however, no such application has been made at this stage. It is not for me to speculate as to the likely outcome of any such application. On the other hand, if it is the case that the Debtor has no funds, the prosecution of the appeal would not result in any dissipation of funds which might otherwise be available to meet the judgment debt and to be available for creditors generally in the event of a sequestration order. There is in fact no evidence before me at all that there are funds available for creditors which could be dissipated by the prosecution on the appeal. Further, by making a sequestration order I could well deprive the Debtor of the opportunity of prosecuting the appeal. Even if I were to conclude that the prospects of success of the appeal were not strong - and I do not make such a conclusion at this stage - I would be reluctant to deprive the Debtor of the opportunity of prosecuting the appeal if the grounds are nonetheless reasonable and arguable. For the reasons which I have indicated, I consider that there are reasonable and arguable grounds available to the Debtor. The present pleading before the Court of Appeal formulates numerous grounds which are neither reasonable nor arguable. Nevertheless, it is possible to find in the detailed complaints made in the successive pleadings in the Court of Appeal the essence of the grounds which I have endeavoured to summarise above. Accordingly, I consider that it would be appropriate to defer the hearing of the bankruptcy petition, at least for some period of time, but only on conditions which are adequate to ensure that no injustice is done to the Petitioner. I am told that the final version of the appeal index in the Court of Appeal is to be filed and served by 21 July 1998 and that any objection to the contents of the final version are to be filed and served by the respondent to the appeal on 4 August 1998. The Debtor has been directed to confer with the Registry of the Court of Appeal regarding arrangements for the printing of the appeal books, although the printing of the appeal books has been deferred until after the status of the bankruptcy proceedings is known and, if need be, after a trustee has had an opportunity to make an election concerning the appeal if appropriate. It is, of course, unfortunate that in a case like this two courts are dealing with similar issues on the basis that one defers making orders until the other has had an opportunity of considering the matter. I propose to adjourn the hearing of the petition for a period of some weeks to enable the Debtor to satisfy me that all arrangements for the prosecution of the appeal have been put in place and that there is no reason why the appeal would not continue with diligence. In addition, in this Court, at least two orders have already been made against the Debtor for costs in favour of the Petitioner. I consider that as a term of any further adjournment, any costs ordered should be paid by the Debtor. Accordingly, I propose to give leave to the Petitioner to tax forthwith any costs ordered to be paid by the Debtor. If any such costs are not paid within 14 days of service of a certificate of taxation, the Petitioner is to have leave to restore the petition for hearing forthwith. There is also a question of an order for costs made by Giles J in the Commercial Division of the Supreme Court which has not been satisfied. I am told that that was previously the subject of a bankruptcy notice. However, Burchett J set aside that bankruptcy notice because at the time the proceedings before Bainton J had not been resolved. As I understand the position, without having seen Burchett J's reasons, the bankruptcy notice was set aside because of a contention that the Debtor had a cross-claim before Bainton J. The material before me is unclear as to the nature of any cross-claim which may have been made in the Supreme Court and which may be the subject of the appeal. I have before me the defence filed in the Commercial Division on 16 February 1995. That appears to be the only defence in the proceedings. In form it does not appear to be a cross-claim. In particular, there are no prayers for relief. I indicated in the course of argument that I would be disposed to impose as a term of any lengthy adjournment the payment of that order for costs or the obtaining of a stay. However, I will not do that until I have had the opportunity of considering Burchett J's reasons for setting aside the bankruptcy notice which was based on that order. A further question which arises is the costs of the further hearings before me in relation to the adjournment of the petition. When the matter was last before me, I directed that the Debtor file and serve any written submissions in response to submissions made on behalf of the Petitioner no later than 10 July 1998. A further document, again in the form of an affidavit, by the Debtor was filed on 10 July 1998. It contains some 154 paragraphs. Once again the affidavit went into the evidence in considerable detail. Again the Debtor made references to complaints which he may have concerning the conduct of the proceedings by his counsel. For example paragraphs 121 and 122 of that document say as follows: 121. I also add that if my application was… "not being prosecuted with precision and focus.." it more than probably is in part the result of some 42 letters being removed from my original evidence before Justice Bainton, as the result of an agreement being made between Farrow's counsel, and my counsel, without any consultation with me. 122 I refer to this issue in my Amended Affidavit filed with the Federal Court on 10th June 1998, page 11, paragraphs 64 to 71. The point I am now making is that if Farrow's own Counsel hadn't been so successful in convincing my counsel of the need to remove a large part of evidence that I thought was relevant, but they didn't, and Justice Bainton then found in favour of Farrow because of the paucity of evidence, on the grounds that "Mr Stone is unable to corroborate", this case might not have been still being contested. What I am saying, is that had all my letters been allowed to remain as evidence, Justice Bainton may have favoured my case instead of Farrow's. That sort of observation is not of any assistance. On the other hand it indicates the degree to which the Debtor may be under some misapprehension as to the issues which he would be entitled to ventilate before the Court of Appeal. My present view is that a great deal of the Court's time which has been taken is the result of the Debtor's misapprehension of the nature of the function which I am performing. It has been necessary for the Petitioner to come back on several occasions to deal with a matter which need not have taken the time and effort which has been required. In the circumstances, I consider that it is appropriate that I order the Debtor to pay the costs of today. I propose to give the Petitioner leave to tax those costs forthwith and it will be a condition of any further adjournment that the costs be paid within 14 days of service of the certificate of taxation. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett Associate: Dated: 13 July 1998 Solicitor for the Applicant: Abbott Tout Date of Hearing: 13 July 1998 Date of Judgment: 13 July 1998	4,660
federal_court_of_australia:fca/full/2016/2016fcafc0022	decision	commonwealth	federal_court_of_australia	text/html	2016-03-04 00:00:00	Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2016/2016fcafc0022	2024-09-13T22:52:21.702135+10:00	FEDERAL COURT OF AUSTRALIA Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2016] FCAFC 22 Appeal from: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2013] FCA 986 File number: NSD 2154 of 2013 Judge: NICHOLAS, YATES AND WIGNEY JJ Date of judgment: 4 March 2016 Catchwords: TRADE MARKS – infringement – whether primary judge erred in dismissing claims for trade mark infringement – whether evidence permitted finding that trade marks infringed – test of substantial identicality – need for "side by side" comparison – whether primary judge erred in holding that test incapable of application due to lack of direct evidence – trade mark use – whether trade mark used so as to indicate a connection in course of trade – whether trade mark use occurs if person applying trade mark without authority of registered owner intends to indicate connection between registered goods and the registered owner – whether use occurred in course of trade – whether infringing use INTELLECTUAL PROPERTY – common design – common design to engage in conduct that constitutes infringement of intellectual property rights – where participants acting in concert – whether necessary to establish intention to infringe – whether sufficient that participants acted in concert to engage in conduct that amounts to infringement – injunctive relief – where injunctive relief granted against individual respondent –where corporate respondent alter ego of individual respondent – whether injunctive relief should also be granted against corporate respondent behind which individual respondent stands – where risk that corporate respondent will act as a mere cloak behind which individual respondent will continue to infringe Legislation: Copyright Act 1968 (Cth) s 36, 38, 115 Trade Marks Act 1995 (Cth) s 17, 120(1) Evidence Act 1995 (Cth) s 140(2) Trade Marks Act 1955 (Cth) s 58(1), 62(1) Cases cited: Allam v Aristocrat Technologies Australia Pty Ltd (2012) 95 IPR 242, [2012] FCAFC 34 Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 102 IPR 400, [2013] FCA 986 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) 84 IPR 222, [2009] FCA 1495 Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Ltd (No 2) [2013] FCA 1253 Briginshaw v Briginshaw (1938) 60 CLR 336 Brother Industries Ltd v Dynamic Supplies Pty Ltd (2007) 163 FCR 530 Coca-Cola Company v All-Fect Distributors Ltd (1999) 96 FCR 107 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd (1967) 116 CLR 254 Gilford Motor Company v Horne [1933] 1 Ch 935 Irving's Yeast-Vite Ltd v FA Horsenail Co Ltd (1934) 51 RPC 110 Mark Foys Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190 Paul's Retail Pty Ltd v Lonsdale Australia Limited (2012) 294 ALR 72 Pioneer Kabushiki Kaisha v Registrar of Trade Marks (1977) 137 CLR 670 Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 Unilever plc v Gillette (UK) Ltd [1989] RPC 583 Unilever v Chefara Properties Ltd [1994] FSR 135 Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89 Date of hearing: 31 March and 1 April 2014 Registry: New South Wales Division: General Division National Practice Area: Intellectual Property Category: Catchwords Number of paragraphs: 191 Counsel for the Appellants: Mr JM Hennessy SC Solicitor for the Appellants: Gilbert + Tobin Counsel for the First, Second, Third and Fifth Respondents: Mr MLD Einfeld QC with Mr AC Harding Solicitor the First, Second, Third and Fifth Respondents: Paul Bard Lawyers Counsel for the Fourth and Sixth Respondents: Mr M Green Solicitor for the Fourth and Sixth Respondents: Bruce & Stewart Lawyers ORDERS NSD 2154 of 2013 BETWEEN: ARISTOCRAT TECHNOLOGIES AUSTRALIA PTY LTD (ACN 001 660 715) First Appellant ARISTOCRAT INTERNATIONAL PTY LIMITED (ACN 000 148 158) Second Appellant ARISTOCRAT TECHNOLOGIES INC Third Appellant AND: GLOBAL GAMING SUPPLIES PTY LTD (ACN 008 548 589) First Respondent ANTHONY EDWARD ANDREWS Second Respondent IMPACT GAMING PTY LTD (ACN 109 299 461) (and others named in the Schedule) Third Respondent JUDGES: NICHOLAS, YATES AND WIGNEY JJ DATE OF ORDER: 4 March 2016 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders and declarations made by the primary judge on 30 September 2013 be set aside and, in lieu thereof, make the orders and declarations set out in paragraphs 3-10 (inclusive) below. 3. Each of the respondents be restrained, whether by its or his servants, agents or otherwise, from infringing the 428 Mark or the 430 Mark by: (a) in the course of any trade using the mark, or any other mark that is substantially identical with or deceptively similar to the mark, as a trade mark, in relation to any gaming machine containing unauthorised Aristocrat game software without the licence or consent of the first appellant; or (b) procuring, authorising, or acting in concert with, any other person to engage in any such use of the mark without the licence or consent of the first appellant. 4. Each of the fourth and sixth respondents be restrained whether by its or his servants, agents or otherwise from infringing any of the Game Name Marks by: (a) in the course of any trade applying the mark, or any other mark that is substantially identical with or deceptively similar to the mark, to any EPROM containing unauthorised Aristocrat game software without the licence or consent of the first appellant; (b) procuring, authorising, or acting in concert with, any other person to engage in any such use of the mark without the licence or consent of the first appellant. 5. The fourth and sixth respondents be restrained whether by their servants, agents or otherwise from infringing the first appellant's copyright by: (a) reproducing, in a material form, without the licence or consent of the first appellant, the following works: (i) any Aristocrat game software; or (ii) the Design Specification 565875 (Revision B); (b) procuring, authorising, or acting in concert with, any other person to engage in conduct referred to in sub-para (a) hereof. 1. Within 14 days each of the fourth and sixth respondents deliver up to the first appellant for destruction, the following: (a) all EPROMs in its or his possession, custody or control, that contains a copy of any Aristocrat game software made without the licence or consent of the first appellant; and (b) all compliance plates in its or his possession, custody or control that reproduce design specification 565875 (Revision B) made without the licence or consent of the first appellant. 2. Within 14 days each of the first, second, third and fifth respondents deliver up to the first appellant for destruction all EPROMs in its or his possession, custody or control that contains a copy of any Aristocrat game software made without the licence or consent of the first appellant to which any one or more of the Game Name Marks has been affixed. THE COURT DECLARES: 1. Each of the first, second, third, fifth and sixth respondents has infringed the 428 mark and the 430 mark by, without the licence or consent of the first appellant, acting in concert to export for sale gaming machines which incorporated: (a) unauthorised compliance plates that bore the word "Aristocrat"; and (b) EPROMs containing unauthorised Aristocrat game software. 2. The sixth respondent has infringed each of the Game Name Marks by, without the licence or consent of the first appellant, applying them, in the course of trade, to EPROMs containing copies of unauthorised Aristocrat game software. 3. The sixth respondent has infringed the first appellant's copyright by reproducing, in a material form, without the licence or consent of the first appellant, the following copyright works: (a) Aristocrat game software known by the name "Queen of the Nile", "Chicken", "Cash Chameleon", "Golden Pyramids", "Flame of Olympus", "Adonis", "Jumping Joeys", "King Galah", "Reel Power", "Superbucks II" and "Thor"; and (b) the Design Specification 565875 (Revision B). In these orders and declarations: "428 mark" means Australian registered trade mark number 787428; "430 mark" means Australian registered trade mark number 787430; "Game Name marks" means Australian registered trade mark numbers 730787, 1099696, 741894, 711308, 661361, 730794, 714813, 1099842 and 727385; "compliance plates" means any compliance plate identifying the first appellant as the manufacturer of the gaming machine to which it is affixed; "unauthorised compliance plates" means any compliance plate that was made without the licence or consent of the first appellant; "Aristocrat game software" means any of the computer programs known by the name "Queen of the Nile", "Chicken", "Cash Chameleon", "Golden Pyramids", "Flame of Olympus", "Adonis", "Jumping Joeys", "King Galah", "Reel Power", "Superbucks II" and "Thor"; "unauthorised Aristocrat game software" means any electronic copy of the whole or any substantial part of any Aristocrat game software that was made without the licence or consent of the first appellant and in breach of the first appellant's copyright. "EPROMs" means Erasable Programmable Read Only Memory chips or any other device that may be used to store electronic copies of computer programs. THE COURT FURTHER ORDERS THAT: 1. The parties file and serve written submissions (limited to three pages in length) in relation to: (a) the costs of the remittal hearing; (b) the costs orders the subject of the appeal and cross-appeal; and (c) the costs of the appeal and the cross-appeal. by 4pm 11 March 2016; 2. The parties file any written submissions in reply (limited to two pages in length) by 4pm 18 March 2016. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: Introduction 1 This is an appeal and a cross-appeal against orders made by the primary judge on 30 September 2013 and 25 November 2013 in relation to two questions remitted to his Honour by order of a Full Court (Bennett, Middleton and Yates JJ) on 25 May 2012. 2 The first question remitted to the primary judge was what declaratory or injunctive relief, if any, should be granted in relation to copyright infringement arising under s 36 of the Copyright Act 1968 (Cth) ("the Copyright Act"). His Honour made some declarations in relation to copyright infringement by the sixth respondent (Mr Allam) but declined to grant any injunctive relief. The appellants (which we shall refer to collectively as the "Aristocrat parties") appeal against his Honour's refusal to grant declaratory relief in a form justified by his Honour's and the Full Court's findings or any injunctive relief in respect of copyright infringement. 3 The second question remitted to his Honour related to a case of trade mark infringement brought by the Aristocrat parties against the respondents. The Aristocrat parties' appeal against his Honour's dismissal of that case. They also appeal against the primary judge's order requiring them to pay the respondents' costs of the remittal proceedings and the costs order made in favour of the fourth respondent ("Tonita"). 4 The respondents have filed various notices of contention and Mr Allam has filed a notice of cross-appeal in relation to the costs order made against him. 5 In these reasons it will be necessary for us to refer to the following judgments of the primary judge and the Full Court: the first judgment of the primary judge: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2009) 84 IPR 222, [2009] FCA 1495 (Aristocrat 1); the second judgment of the primary judge relating to (inter alia) final relief which is the subject of this appeal: Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Ltd (No 2) [2010] FCA 277 (Aristocrat 2); the first judgment of the Full Court on appeal from Aristocrat 1 and Aristocrat 2: Allam v Aristocrat Technologies Australia Pty Ltd (2012) 95 IPR 242, [2012] FCAFC 34 (Allam 1); the second judgment of the Full Court on appeal from Aristocrat 1 and Aristocrat 2: Allam v Aristocrat Technologies Australia Pty Ltd (No 2) [2012] FCAFC 75 (Allam 2); the third judgment of the primary judge upon remittal which is the subject of this appeal: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 102 IPR 400, [2013] FCA 986 (Aristocrat 3); and the fourth judgment of the primary judge relating to costs which is the subject of the appeal and the cross-appeal: Aristocrat Technologies Australia Pty Limited v Global Gaming Supplies Pty Ltd (No 2) [2013] FCA 1253 (Aristocrat 4). Factual Background 6 The Aristocrat parties are all members of the Aristocrat group of companies which are subsidiaries of Aristocrat Leisure Limited. The Aristocrat group of companies is engaged in the business of supplying gaming technologies and services to the international gaming industry. The first appellant, Aristocrat Technologies Australia Pty Ltd ("ATA") is engaged in the design, manufacture and supply of electronic gaming machines and computer software and is also the owner of the various registered trade marks and the copyright in the computer software and artwork used in Aristocrat gaming machines. When we refer in these reasons to Aristocrat gaming machines, we refer to gaming machines manufactured by ATA. We should point out that ATA was previously known as Aristocrat Leisure Industries Pty Limited. 7 ATA and the second appellant ("AI") are parties to a written contract executed on 19 July 2006 which purports to confer on AI, with effect from 1 January 2005, an exclusive licence to intellectual property in respect of Aristocrat products worldwide, other than Australia, but including products made for export outside Australia. The third appellant ("ATI") is a wholly owned subsidiary of AI based in Nevada, United States which is engaged in the supply of Aristocrat gaming machines in North and South America. 8 There are six respondents to the Aristocrat parties' appeals. The first respondent ("Global") and the third respondent ("Impact") were found to have been participants in a joint venture ("the Joint Venture") from 1 October 2004 supplying refurbished Aristocrat gaming machines to overseas markets including the South American market. The second respondent (Mr Andrews) is the sole director and shareholder of Global and the fifth respondent (Mr Cragen) is the sole director and shareholder of Impact. Impact was incorporated on 24 May 2004. We shall refer to Global, Mr Andrews, Impact and Mr Cragen collectively as the "Global/Impact respondents". 9 The fourth respondent, Tonita, was incorporated on 14 July 2006. Mr Allam, the sixth respondent, is a director and shareholder of Tonita. We shall refer to Tonita and Mr Allam collectively as the "Tonita respondents". 10 Mr Allam is a gaming machine technician who provided services to the Joint Venture. Mr Allam's residence is situated at Georges Hall ("the Georges Hall premises"). His association with the Joint Venture dates back to about January 2004. Mr Allam continued to provide services to the Joint Venture through Tonita after that company's incorporation. Tonita, and before that, Mr Allam, carried on business at Impact's office and warehouse situated in Botany ("the Botany premises"). 11 Global's main office is situated in the Australian Capital Territory ("the Florey premises") and it also used an office at Mascot ("the Mascot premises"). However, the activities of the Joint Venture, including obtaining and storing supplies of second hand gaming machines, refurbishing such machines and packaging them for delivery, took place at the Botany premises. Mr Allam, or his company Tonita, employed an assistant ("Mr Channa") who also worked at the Botany premises. Tonita also carried on business at a warehouse it leased in Bankstown ("the Bankstown premises") which it used to store materials acquired from Behong Import & Export (Australia) Pty Ltd ("Behong"), a scrap merchant located in Sydney, which was one of ATA's authorised scrap merchants. 12 Aristocrat gaming machines include a number of components. Relevantly, they include artwork panels fixed to the exterior of the machine and Erasable Programmable Read Only Memory chips ("EPROMs") used to store the game software. Aristocrat gaming machines also include compliance plates. These are metal plates ("Aristocrat compliance plates") manufactured in accordance with a written design specification which sets out precise layout and design information. Aristocrat compliance plates are made from aluminium with a matt-anodised finish. The "Aristocrat" trade mark appears on the compliance plate together with a notice indicating that it has been affixed in compliance with relevant legislation. 13 A blank Aristocrat compliance plate includes provision for the inclusion of additional information relevant to the gaming machine to which it is or will be affixed including, in particular, the manufacture date, the machine type and a unique serial number which enables the machine to be identified and tracked. This information is engraved into the metal plate in the spaces provided for this purpose. When we refer in these reasons to "blank" compliance plates, we refer to compliance plates which do not include this additional information. 14 Aristocrat commenced their proceedings against Global and Mr Andrews in 2006. They obtained Anton Piller orders which were executed at the Florey premises and the Mascot premises. In 2007 Aristocrat commenced separate proceedings against Impact, Mr Cragen, Tonita and Mr Allam and obtained Anton Piller orders which were executed at (inter alia) the Botany premises, the Georges Hall premises, and the Bankstown premises. The two proceedings were consolidated on 22 June 2007. 15 After a lengthy trial, the primary judge found that each of the Global/Impact respondents and Mr Allam had infringed copyright and each was ordered to pay damages under s 115(2) and s 115(4) of the Copyright Act. His Honour ordered that all respondents except for Tonita pay compensatory damages to the Aristocrat parties under s 115(2) of the Copyright Act. The amounts ordered in Australian dollars were $13,963 in the case of the Global respondents and $34,907 in the case of the Global/Impact respondents and Mr Allam. His Honour also ordered that those respondents pay additional damages to the Aristocrat parties under s 115(4) of the Copyright Act in the amount of $450,000. 16 The primary judge made a number of costs orders. Relevantly, his Honour ordered the Global/Impact respondents and Mr Allam to pay 50% of the Aristocrat parties' costs incurred on and from the date that the proceedings were consolidated. His Honour also ordered the Aristocrat parties to pay Tonita's costs of the proceedings in so far as such costs were separate from, or additional to, the costs incurred by Mr Allam. 17 His Honour did not grant the Aristocrat parties any relief with respect to trade mark infringement. It appears that his Honour understood the Aristocrat parties had elected not to press their claims for trade mark infringement in the event that his Honour were to grant relief in respect of copyright infringement. Primary Judge's Decision 18 The findings of copyright infringement made by the primary judge against the Global/Impact respondents and the Tonita respondents were based upon what his Honour described as "five essential propositions" including that Mr Andrews and Mr Cragen were each aware that Mr Allam was reproducing ("burning") Aristocrat gaming software onto blank EPROMs and manufacturing counterfeit compliance plates to be affixed to machines for export to foreign markets, and that they had sent, or authorised the sending of, digital artwork to South America for the purpose of being copied there. We shall refer to those findings by the primary judge as "the knowledge findings". 19 The five essential propositions referred to by the primary judge, which reflected five key findings, were as follows: (1) The Tonita respondents (ie. Mr Allam and Tonita) burned Aristocrat game software onto blank EPROMs using Dataman software; (2) The Tonita respondents manufactured fake Aristocrat compliance plates, some of which were found at the Botany, Bankstown and Georges Hall premises; (3) Mr Andrews and Mr Cragen were aware that Mr Allam was burning Aristocrat game software onto blank EPROMs; (4) Mr Andrews and Mr Cragen were aware that Mr Allam was manufacturing compliance plates for export to foreign markets; (5) Mr Andrews and Mr Cragen sent, or were aware that the Joint Venture had sent digital and original artwork to South America for copying. 20 It is necessary at this point to explain in some detail what evidence was seized from the various premises at which the Anton Piller orders were executed and how they were received into evidence at the trial. 21 The material, seized at the Florey, Mascot and Botany premises was initially admitted against the Global/Impact respondents only. The material seized at the Bankstown and Georges Hall premises was initially admitted against the Tonita respondents only. After the close of the Aristocrat parties' case, and during the course of closing submissions, the primary judge admitted the seized material provisionally (ie. subject to relevance) against the other respondents against whom it had not already been admitted. Thus, the seized material was ultimately admitted into evidence (at least provisionally) against all respondents. 22 The material seized at the Botany, Bankstown, Georges Hall and Mascot premises included EPROMs and EPROM labels. The EPROM labels that were seized included printed information such as the game name, program number and copyright information. All of the seized EPROM labels included the word "Aristocrat" and the name of a particular Aristocrat game. 23 The material seized from the Bankstown premises included EPROM labels which bore the names "Golden Pyramids", "Queen of the Nile", "Chicken", "Jumping Joey's", "King Galah", "Reel Power", and "Super Bucks". The material seized at the Botany premises included a PDF file on a computer which included copies of EPROM labels for "Queen of the Nile" and other Aristocrat games. Each of these labels also included the word "Aristocrat". 24 Computer equipment was also seized at the Georges Hall premises including, in particular, a loose hard disk drive ("the Loose HDD") and two desktop computers. The primary judge rejected Mr Allam's evidence that the Loose HDD was planted at the Georges Hall premises by Mr Channa. One of the two desktop computers ("Desktop 2") was found by the primary judge to have been used by the Tonita respondents together with Dataman software stored on the Loose HDD to burn Aristocrat game software onto blank EPROMs. 25 The primary judge also found that the EPROMs seized at the Bankstown premises were counterfeit by which we take his Honour to mean that they constituted infringing copies of Aristocrat software. It also appears that the primary judge accepted Mr Channa's evidence that he saw Mr Allam burning EPROMs at the Botany premises. In so finding, the primary judge rejected Mr Allam's evidence that he had not used any Dataman software or any other EPROM programmer since leaving his previous employment in 2002. 26 The material seized at the Mascot premises included a motherboard containing EPROMs containing Aristocrat gaming software. The primary judge was satisfied that the labels on these EPROMs were not genuine Aristocrat labels. His Honour referred to evidence given by Mr Andrews to the effect that the motherboard had come from South Australia and was in storage at Global's Mascot premises awaiting delivery to Botany for refurbishment. Although his Honour accepted that the EPROM labels were not genuine, he was not prepared to find, on that basis alone, that the EPROMs to which they were affixed contained infringing copies of Aristocrat game software. 27 Another important piece of evidence, though not one obtained pursuant to the Anton Piller orders, was a CD-ROM (Exhibit CCC-14) that Mr Channa claimed belonged to Mr Allam that was apparently provided by Mr Channa to the Aristocrat parties. The primary judge found that the CD-ROM included Aristocrat game software including, in particular, software relating to "Dolphin Treasure", "Queen of the Nile", "Indian Dreaming", "Boot Scootin", "Chicken", "Orchid Mist", "Wild Thing" and "Wild Ways". The primary judge found that the CD-ROM had been viewed on the Loose HDD. He expressly rejected evidence given by Mr Allam that the CD-ROM was fabricated by Mr Channa with a view to falsely incriminating Mr Allam. 28 The material seized at the Botany, Bankstown and Georges Hall premises included blank Aristocrat compliance plates. The primary judge accepted evidence given by Mr Parsons, a witness for Aristocrat, that many of the compliance plates seized at those locations were not genuine and were counterfeits. There were 12 compliance plates seized from the Georges Hall premises, 67 compliance plates seized from the Bankstown premises and another 22 compliance plates seized from the Botany premises. Many of these compliance plates were blank. 29 The primary judge accepted that at least some of the counterfeit compliance plates seized at the Botany premises had been planted there by Mr Channa. However, there was no suggestion that the counterfeit compliance plates found at the Botany premises, even if planted there by Mr Channa, were produced by anyone other than Mr Allam. 30 Mr Allam was found to possess a hand engraver that was used by him for the purpose of engraving compliance plates. He gave evidence that he had only used the hand engraver to engrave compliance plates sourced from what the primary judge identified as the "Uruguay Transaction", in which the Global/Impact respondents acquired an interest in various Aristocrat gaming machines previously supplied by ATI to a Uruguayan company called Nuevestar SA. Approximately 100 of these gaming machines were delivered to the Botany premises and later re-exported. The primary judge rejected Mr Allam's evidence that his use of the hand engraver was limited to compliance plates associated with these machines. 31 As the primary judge observed, the significance of Mr Allam's evidence that he had a hand engraver was that it pointed to the existence of a piece of equipment that was capable of producing the counterfeit compliance plates found at the Botany, Bankstown and Georges Hall premises. According to the primary judge's findings, all of the counterfeit seized compliance plates, including those found at the Botany premises, were manufactured by Mr Allam. 32 The primary judge admitted into evidence a bundle of documents (most of which were found in Exhibit A1) which included email communications to which one or more of the respondents were privy. Much of this material had been originally tendered and received into evidence against particular respondents only and, according to his Honour's reasons, not as evidence of the facts stated therein. 33 The Full Court was critical of the primary judge's decision to receive these documents into evidence against all respondents (even if only on a provisional basis) so late in the trial. It will be necessary for us to refer to the Full Court's consideration of this issue in greater detail later in these reasons. 34 In support of their claim for damages for copyright infringement, the Aristocrat parties sought to establish that Global was a party to 33 transactions, and that Global and Impact were from 24 May 2004 party to another 21 transactions, whereby a total of 618 "counterfeit" gaming machines were exported from Australia to South America. When we refer to counterfeit gaming machines, we are referring to refurbished gaming machines which included infringing copies of artwork or gaming software or counterfeit compliance plates. 35 Due to difficulties with much of the evidence relied upon by the Aristocrat parties, the primary judge found that only a small number of the 54 transactions relied on by Aristocrat parties were shown to have involved counterfeit gaming machines. This is principally because a data matching exercise upon which the Aristocrat parties relied to prove that many of the relevant transactions involved counterfeit gaming machines was found by his Honour to be flawed and unreliable. 36 It is not necessary for us to explain in any detail why his Honour came to that view. Importantly, however, the Aristocrat parties were able to persuade his Honour that some of the 54 transactions were likely to have involved counterfeit gaming machines. The primary judge found that 11 of the 54 transactions concerned gaming machines that contained "infringing components" of Aristocrat gaming machines and counterfeit Aristocrat compliance plates. Four of these transactions (34, 36, 48 and 54) fell within what was referred to by his Honour as the "Machines in Clubs" ("MC") category and seven (13, 20, 28, 29, 41, 46 and 51) fell within what he referred to as the "Duplicate Number" ("DN") category. 37 The evidence included invoices issued by Global for the sale of gaming machines including invoice 1045 dated 5 October 2004 which was for a total of 84 Aristocrat gaming machines supplied to Mr Luis Miguel Novedu Cruzudo of Lima, Peru. These invoices included the serial number of each of the machines referred to in the invoice. The primary judge accepted the evidence of Ms Oldfield, a witness called by the Aristocrat parties, that showed that five of the Aristocrat gaming machines with the same serial numbers appearing in invoice 1045 were operating in hotels and clubs in New South Wales she visited on 23 October 2007. His Honour inferred that these five machines contained counterfeit compliance plates. The primary judge drew the same conclusion from other evidence given by Ms Oldfield in relation to gaming machines the subject of transactions 36, 48 and 54. 38 The seven transactions within the DN category were transactions involving Aristocrat gaming machines which are shown in Global invoices addressed to different customers in different countries (including Peru, Cyprus and Mexico) to have the same serial numbers. Mr Andrews provided a number of different explanations for the existence of the duplicate serial numbers, including that some of the invoices were interim invoices that were superseded by a later transaction. The primary judge did not accept this evidence. His Honour's rejection of Mr Andrew's evidence on this topic was plainly influenced by his Honour's unfavourable assessment of Mr Andrew's credit. 39 With respect to both the MC category and DN category, the primary judge said that it is not possible to identify which particular components of the machines were in fact counterfeit. Nevertheless, his Honour found that it was more likely than not that the gaming machines with counterfeit compliance plates in the MC category and DN category included counterfeit Aristocrat gaming software. His Honour observed that there would have been little point in having false serial numbers for gaming machines containing genuine Aristocrat software. 40 The primary judge found that Mr Andrews and Mr Cragen were both aware that Mr Allam was infringing copyright. His Honour held that the primary acts of infringement in which Mr Allam engaged were authorised by each of the Global/Impact respondents, that they were performed in furtherance of a common design, and that each of the Global/Impact respondents was guilty of copyright infringement. As previously explained, his Honour did not deal with the Aristocrat parties' trade mark case. 41 The primary judge held that the total number of what he referred to as "infringing machines" sold in the South American market was 56. Of those 56, there were 16 machines that were sold by the Global respondents prior to 1 October 2004 with the balance sold by the Joint Venture after that date. His Honour assessed compensatory damages on the basis that the Aristocrat parties would have been able to sell 50% of this number (ie. 28 machines) for a profit of US$1,600 per machine. In the result, his Honour assessed compensatory damages in Australian dollars at $13,163 as against the Global respondents and $34,907 against the Global/Impact respondents and Mr Allam. The first of the relevant transactions took place in February 2006 which was, as his Honour pointed out, before Tonita was incorporated. 42 His Honour also assessed additional damages against these respondents at $450,000. In assessing additional damages his Honour found that the infringing conduct of the Global respondents, the Impact respondents and Mr Allam was flagrant and engaged in for commercial gain. His Honour also took into account their "attitude to the litigation" which, on his Honour's findings, was reflected in their false denials. The Full court's Decision 43 The Global/Impact respondents and Mr Allam appealed against the primary judge's orders. The Aristocrat parties cross-appealed. The results of the various appeals and cross-appeals may be briefly summarised as follows. 44 First, for reasons which we will soon explain, the Global/Impact respondents' appeal against the primary judge's findings that they were guilty of copyright infringement and liable to pay damages pursuant to either s 115(2) or s 115(4) of the Copyright Act was successful and the orders made by the primary judge requiring those parties to pay such damages were set aside. 45 Secondly, the Full Court found that, even if the Global/Impact respondents were guilty of copyright infringement, the primary judge erred in his assessment of damages. 46 Thirdly, the Full Court found that the infringements of copyright in the Aristocrat compliance plates which were found to be proven by the primary judge, were not as extensive as his Honour found. This was because the primary judge assumed that each of the counterfeit compliance plates was a substantial reproduction of a relevant copyright work whereas this was true of some, but not all. 47 Fourthly, the Full Court allowed the cross-appeal in so far as concerned the primary judge's failure to make any findings, or grant any relief, with respect to the Aristocrat parties' trade mark case. 48 Fifthly, the Full Court also allowed the cross-appeal in so far as it concerned the primary judge's failure to grant any declaratory or injunctive relief in respect of the Tonita respondents' infringement of copyright. The Full Court was of the view that there was a need for this issue to be reconsidered by the primary judge in the light of the Full Court's decision to set aside the damages award made against Mr Allam. 49 The Full Court observed (Allam 1 at [90]) that the primary judge's findings concerning the burning of game software onto blank EPROMs and the manufacture of counterfeit compliance plates were based substantially on the physical evidence obtained from execution of the Anton Piller orders in 2006 and 2007. However, their Honours also observed (at [92]) that the primary judge's findings of authorisation and joint tortfeasance (which were necessarily founded upon his Honour's knowledge findings) were based substantially on facts that his Honour found to have been revealed by chains of email correspondence to which Mr Andrews and Mr Cragen were parties. These included emails relating to the provision of compliance plates for use in refurbished Aristocrat gaming machines that were to be supplied by the Joint Venture to a Mr Mendelson for sale in the Russian market. 50 The Full Court referred to the 11 transactions which the primary judge found to involve infringing conduct at [95] and [96]. Their Honour's said: [95] The "MC" (machines in clubs) category described transactions where the serial numbers on invoices for the goods supplied overseas coincided with the serial numbers of gaming machines said to be still located in various premises in New South Wales. The primary judge inferred that the gaming machines with duplicate serial numbers that had been supplied overseas contained "infringing components" of Aristocrat gaming machines (in particular, false compliance plates). The primary judge concluded that it was not possible to identify which particular components of the machines were in fact "counterfeit". However, on the basis that fake serial numbers had been used, the primary judge found that it was more likely than not that the infringing components included "counterfeit" Aristocrat game software. His Honour reasoned that there would have been little point in having fake serial numbers for gaming machines containing genuine Aristocrat software. The primary judge found that 16 gaming machines, in four transactions, involved infringing components. The transactions were: 34, 36, 48 and 54 (transaction 54 was not included in a table of relevant transactions provided by the Aristocrat parties). [96] The "DN" (duplicate numbers) category described transactions where the Global parties and Impact parties had issued invoices for machines, the serial numbers of which were a duplicate of serial numbers on machines which had already been shipped by them in earlier transactions. The primary judge rejected the explanation given by the Global parties and Impact parties for the duplicate numbers. As with the MC category, it was not possible to conclude on the evidence which components were "counterfeit". The primary judge found that 56 gaming machines, in 7 transactions, involved infringing components. The transactions were: 13, 20, 28, 29, 41, 46 and 51. (emphasis added) 51 It is important to note that the logic underpinning the primary judge's conclusion that the machines with false compliance plates included infringing components (in particular, "counterfeit" Aristocrat game software) was that the use of false serial numbers on the relevant gaming machines gave rise to what the Full Court described at [131] as the "reasonable inference" that they included counterfeit Aristocrat game software. 52 After referring to some of the other categories of transactions that the primary judge rejected because of the problems relating to the data matching exercise, their Honours said at [98]: [98] It is important to note that the findings the primary judge made with respect to the four "MC" category transactions and the seven "DN" category transactions were findings with respect to indirect infringement of copyright under s 38 of the Copyright Act (infringement by dealing). These findings were based on inference in light of the "five essential propositions" to which reference has been made. There was no direct evidence of infringement. No infringing article was produced. Indeed, the Aristocrat parties did not inspect any of the gaming machines involved in any of the transactions that were found to involve infringements of the copyright that was claimed. The Aristocrat parties did not identify which components of the gaming machines in the impugned transactions were alleged to infringe the copyright that was claimed. As noted earlier, the primary judge found that, on the evidence, it was not possible to conclude precisely which components in the machines were infringing or counterfeit. 53 The Full Court concluded that the primary judge's knowledge findings were based upon his consideration of the contents of the email chains. The effect of the Full Court's decision was that it was not open to the primary judge to rely upon the email chains as he did and therefore it was not open to his Honour to find that the Global/Impact respondents were guilty of copyright infringement. It was on the basis of that determination that the Full Court set aside the orders made by the primary judge against the Global/Impact respondents. The Full Court said at [234]-[238]: [234] The Aristocrat parties charted their own course. It may have been anticipated a variation to the usual s 136 ruling could be made after the cross-examination of opposing witnesses, but not at the time of final submissions when the course of evidence had been well completed. [235] The primary judge failed to appreciate the real nature of the application made by the Aristocrat parties on 30 April 2011 to vary the usual s 136 ruling. As we have indicated, it was to re-open the case of the Aristocrat parties. However, to allow the emails to be introduced as evidence against respondents who had not been required to respond in any way to the email evidence, even if tendered for what their contents revealed against other respondents, was to put the respondents in an unsatisfactory position. [236] This was a strongly contested proceeding, and each party was in a position to know and adhere to the rules of evidence and procedure to be applied. If the emails had been tendered against a particular respondent prior to 30 April 2009, then in a case of this complexity, a different course may well have been adopted by the respondent in question. It is important again to appreciate that by the usual s 136 ruling the evidence covered by that order was not admitted against certain respondents, even provisionally. The variation that occurred on 30 April 2009 during the course of the final addresses was to admit the evidence against all respondents, albeit provisionally subject to relevance. [237] Therefore, the position of the respondents was that on 30 April 2009 they were confronted with different evidence upon which to make submissions as to liability and relevance. [238] We do not think it was incumbent on any respondent to consider whether to re-open its or his case. The Aristocrat parties' case was completed, cross-examination undertaken and responsive evidence led by the respondents as necessary during the course of the trial. Of course, the Aristocrat parties were entitled to lead evidence as to the alleged infringing transactions and the joint venture activities, but that evidence needed to be put before the Court, subject to specific agreement by the respondents, before the case was completed. The proper course to have followed was for the evidence to be admitted provisionally at the outset against all the respondents, and then for it to have been considered in submissions. In this proceeding, it was too late to admit the evidence during closing submissions, as it was, even on a provisional basis. 54 The Full Court went on to explain why the use made by the primary judge of the chain of emails was otherwise impermissible. The Full Court said at [240]-[245]: [240] At this point, it must be reiterated that the applicants' case at trial was primarily based on circumstantial evidence which the applicants sought to relate to a number of transactions in which some or all of the respondents were said to have exported counterfeit gaming machines to Latin America. A second critical point to note is that the significant emails tendered did not relate to the alleged infringing transactions. So in themselves, these emails could have had no relevance to proving that the alleged transactions occurred. However, they could have use in discrediting witnesses or proving the existence of a joint venture. This appears to be the way in which they were used by the parties. [241] The primary judge accepted that the emails were not tendered as proof of the facts stated in them. It seems that the emails were tendered without express qualification at the time of their tender. Nevertheless, we consider that the primary judge did treat the contents of the chain of emails as supporting more than just the existence of the joint venture, or as going beyond being only relevant to credit. The primary judge necessarily had to connect the particularised infringing transactions with the joint venture. The only way that he could have made this connection was to draw the inference from the contents of the emails that the respondents had the tendency to act in a particular way, that is, engage in the alleged infringing transactions. [242] The admissibility of tendency evidence is tightly regulated by Pt 3.6 of the Evidence Act. Tendency evidence is evidence of "character, reputation or conduct of a person, or a tendency that a person has or had… to act in a particular way, or to have a particular state of mind": s 97(1) of the Evidence Act. There are specific dangers in treating evidence of tendency as being probative of the occurrence of a fact in issue. In this respect, Pt 3.6 contains a number of safeguards to limit the potential misuse of tendency evidence. [243] Under s 97(1)(a), if a party seeks to adduce tendency evidence, that party must give reasonable notice to the other party that they intend to do so. Under s 97(1)(b), the Court will only admit that evidence if it has "significant probative value". However, the threshold requirement of notice was not given at trial; the Aristocrat parties did not seek to use the emails as evidence that the respondents at trial had a tendency to engage in the infringing conduct. On appeal, it was confirmed that the parties did not seek to rely on Pt 3.6 of the Evidence Act. [244] Whilst the emails were admitted into evidence for other purposes (namely credit, and evidence of the joint venture) Pt 3.6 guards against the evidence being admitted to show a tendency even if the evidence has a dual purpose (for example, it is also relevant and admissible to proving the existence of a joint venture): see s 95. This is to be contrasted with other provisions of the Evidence Act relating to hearsay evidence, whereby if hearsay evidence has a non-hearsay purpose (for example, is also relevant to credit) it can be admitted for its hearsay purpose: s 60. The primary judge was right in saying that he should not rely on the contents of the emails for the truth of their contents, but fell into error in doing just that in relying upon evidence that did not relate to the particularised infringing transactions. Used in this way, the evidence in the emails could show nothing more than a tendency on the part of the respondents at trial to engage in infringing transactions. [245] The error the primary judge made was to treat the chain of emails as being able to prove the particularised infringing transactions, and to use the contents of the emails to demonstrate the connection with the particularised infringing transactions with the joint activity. Without the chain of emails, the primary judge could not have found such connection to the infringements as alleged. 55 It is important to read this last paragraph in its proper context. The principal case against the Global/Impact respondents was that they had supplied, or authorised the supply of, infringing gaming machines to customers in South America and had thereby infringed copyright. The Global/Impact respondents could only be liable on this basis if they knew, or ought reasonably to have known, that the making of the gaming machines in Australia constituted or, in the case of imported machines, would have constituted, if they had been made in Australia, an infringement of copyright: see s 38 of the Copyright Act. The Full Court found that the primary judge relied upon the chain of emails as evidence that the Global/Impact respondents knew that the gaming machines sold to their customers in South America had been made in Australia in breach of copyright. 56 The Full Court referred to the primary judge's five essential propositions (reproduced at [19] above) including, in particular, propositions 3, 4 and 5 or what we have referred to as his Honour's knowledge findings. The Full Court said at [246]: Therefore, the findings of the primary judge in relation to the third, fourth and fifth "essential propositions" cannot be supported, and the Aristocrat parties fail to prove the alleged infringing transactions, even accepting proof of a joint venture. Looking at the primary judge's findings in relation to these propositions they extensively relied upon the chain of emails – see [751] to [752], [754] to [756], and [757] to [762]. No attempt was made by the Aristocrat parties before the primary judge or before us to prove the "essential propositions" without reference to the emails relied upon by the primary judge. It seems to be accepted that without reliance upon the emails, the third, fourth and fifth "essential propositions" cannot be supported, and the case brought by Aristocrat must fail. 57 The position in relation to Mr Allam is slightly different. The Full Court accepted that Mr Allam had infringed ATA's copyright in Aristocrat game software and Aristocrat compliance plates but found that the quantum of damages awarded against Mr Allam could not be justified. The Full Court rejected the Aristocrat parties' submission that the Full Court should itself re-assess damages against Mr Allam on a different basis or that it should remit the matter to the primary judge so that he might do so. 58 There appears to be a minor discrepancy as to the total number of impugned gaming machines in the 11 relevant transactions in the MC and DN categories (those being 34, 36, 48 and 54 in the MC category and 13, 20, 28, 29, 41, 46 and 51 in the DN category). The number of impugned gaming machines range somewhere between 46 and 56; even accounting for the "double counting" of 4 gaming machines as identified by the Full Court in Allam 1 at [291], there are at least 48 impugned gaming machines across both the MC and DN categories. The references to 48 impugned gaming machines in these reasons should be understood against that background. The Primary Judge's Remittal Decision 59 In his reasons for judgment, the primary judge refers in some detail to his reasons in Aristocrat 1 and the Full Court's reasons in Allam 1. 60 His Honour made some specific observations in relation to the counterfeit compliance plates found at the Botany premises, the CD-ROM (Ex CCC-14) and the Loose HDD. As to the compliance plates found at the Botany premises, his Honour said at [21]-[23]: [21] The other evidentiary material which was the subject of my usual s 136 ruling consisted of seized gaming machine components including EPROMs, EPROM labels, game software, artwork and compliance plates. These items were seized from the Florey, Mascot and Botany premises of the Global/Impact respondents and the Bankstown and Georges Hall premises of the Tonita respondents: [Aristocrat 1] at [376], [377]. [22] The seized materials included 22 compliance plates that were not genuine Aristocrat compliance plates. These items were seized at the Botany premises of Impact and were therefore admitted evidence against it. [23] Mr Channa gave evidence that he had planted counterfeit compliance plates, manufactured by the Tonita respondents, at Impact's Botany premises. I accepted evidence given by him that the compliance plates were planted in a ceiling at Botany where they were seized by the Aristocrat Companies in an Anton Piller raid: [Aristocrat 1] at [370], [371]. 61 His Honour then referred to the CD-ROM, which Mr Channa claimed to have obtained from Mr Allam and the Loose HDD that had been seized from the Georges Hall premises, both of which were initially admitted against the Tonita respondents. His Honour said at [24]-[25]: [24] Mr Channa's evidence also included a CD-ROM which became Exhibit CCC-14 in the proceedings. His evidence was that he obtained the CD-ROM from one of the Tonita respondents, Mr Allam. Ex CCC-14 contained binary game files comprising Aristocrat game software and was admitted, initially, against the Tonita respondents: [Aristocrat 1] at [530], [531]. [25] Another significant item of evidence was a loose hard disk drive known as the "Loose HDD" which was seized from the Tonita respondents' Georges Hall premises. The Loose HDD contained software that was said to have been used by the Tonita respondents to burn Aristocrat game software onto EPROMS: [Aristocrat 1] at [496], [503]. 62 His Honour also referred to his adverse credit findings against Mr Andrews, Mr Cragen and Mr Allam. 63 The primary judge observed that the Full Court accepted that his acceptance of proposition 1 was open and not affected by error. His Honour also observed that his acceptance of proposition 2, was also accepted by the Full Court as open, but that the evidence demonstrated only two instances of copyright infringement involving the sale of a gaming machine with a compliance plate the making of which constituted infringement of copyright in a relevant work. 64 So far as propositions 3, 4 and 5 were concerned, the primary judge noted that the Full Court's reasons focused on the email communications the subject of the "usual s 136 ruling" at the time they were first tendered. His Honour noted that the Full Court held that he should not have admitted this material into evidence against all respondents during the course of closing submissions, and that it was admissible only against the parties in respect of whom it was originally tendered and admitted. 65 His Honour noted that it was in light of the Full Court's conclusion in [246] of its reasons that the appeals against his Honour's judgment requiring each of the respondents to pay damages were allowed. His Honour said in Aristocrat 3 (at [50]-[54]): [50] The Full Court stated in plain terms that I was in error in relying upon the emails to reach the conclusion that the infringing transactions occurred. But the emails did not provide the basis for my findings that the transactions took place. Rather, as the Full Court concluded at [246] the error which I made in admitting the emails against all respondents had the effect that the third, fourth and fifth propositions could not be supported. [51] Thus, when their Honours went on to say at [246] that "the Aristocrat parties fail to prove the alleged infringing transactions", this must be read in light of the words which precede that statement. [52] The third, fourth and fifth propositions were findings of knowledge on the part of the Global/Impact respondents of the fact that Mr Allam burned Aristocrat game software and manufactured fake compliance plates and that they were, or ought to have been, aware of other infringing activities. [53] The findings of knowledge were essential to the findings of infringement against the Global/Impact respondents by reason of their authorisation of the relevant primary acts, under s 36 of the Copyright Act and infringement by dealing under s 38 of the Copyright Act. [54] The rejection of the Full Court of my third, fourth and fifth propositions therefore had the effect that the findings made against the Global/Impact respondents of copyright infringement in relation to the 11 identified transactions were set aside. 66 His Honour noted that the Full Court said that he did not err in finding that the gaming machines in the MC category and DN category included fake compliance plates and counterfeit game software. In particular, his Honour noted that the Full Court did not overturn his findings that the impugned gaming machines contained Aristocrat game software reproduced by Mr Allam and that Mr Allam also manufactured fake compliance plates. His Honour said that it followed that the findings he made that the gaming machines which were included in the 11 transactions contained fake compliance plates and counterfeit gaming software were not affected by the Full Court's decision and that he must therefore proceed upon the basis that the Global/Impact respondents sold the gaming machines that were the subject of those 11 transactions to their customers who were principally located in South America. His Honour said at [58]-[60]: [58] It follows in my view that the findings which I made that the machines which were the subject of the 11 transactions contained "fake compliance plates" and "counterfeit gaming software" are not affected by the Full Court's decision in Allam No 1. Nor is the finding disturbed that the transactions were documented in the invoices for the 11 transactions to which I referred. [59] Those transactions were, as I have emphasised, sales made by the Global/Impact respondents of gaming machines which contained fake compliance plates and counterfeit game software, although it is not possible to otherwise identify which components of the gaming machines were not genuine Aristocrat components. [60] What is critical is, as the Full Court observed, the transactions were documented on the Global/Impact respondents records, that is to say the invoices which were the subject of the 11 identified transactions. 67 The primary judge noted that although his findings that the Global/Impact respondents were aware that Mr Allam burned the Aristocrat game software and manufactured counterfeit Aristocrat compliance plates did not survive the Full Court's decision, questions of knowledge were not relevant to the trade mark case. 68 His Honour rejected a submission by Mr Einfeld QC on behalf of the Global/Impact respondents that there was no admissible evidence against them of any dealing capable of amounting to trade mark infringement. In rejecting this submission his Honour concluded that on his analysis of the Full Court's reasons, there were 11 transactions involving the sale of gaming machines containing fake compliance plates and counterfeit game software. 69 The primary judge then referred to what he characterised as a concession made by Mr Cobden SC (then appearing for the Aristocrat parties) at the trial. His Honour said at [75]-[76]: [75] Mr Cobden [stated] that the case was put very narrowly so that the "radical alteration" of the machines by the insertion of counterfeit EPROMs and the application of false compliance plates was sufficient to amount to an infringement of Aristocrat's trade marks. [76] The following relevant statements were made: mr cobden: What we say is that if the placing of infringing parts in the machine, and then the replacing it back into trade badged with Aristocrat but containing infringing EPROMs that would be enough. If your Honour is against us on that then we don't win the trade mark case. … The compliance plate of course itself has the Aristocrat mark on it in the fancy form as it's called, I think, in the trade mark records. That's with the O and things like that. … mr cobden: And the application of a false compliance plate would we say amount to an infringement of the trade mark if, but only if, the machine had been altered in the way I've put it. 70 The primary judge then referred to various legal principles relevant to the trade mark case including, in particular, those concerned with trade mark use. His Honour also referred to s 120(1) of the Trade Marks Act 1995 (Cth) which provides that a person infringes a registered trade mark if the person uses as a trade mark a sign that is "substantially identical with" or "deceptively similar" to the registered mark. As his Honour pointed out, s 120(1) requires that the use as a trade mark be in relation to goods or services in respect of which the mark is registered. 71 As to the test of substantial identicality, the primary judge said at [88]-[89] that it involves a side by side comparison whereas the test of "deceptive similarity" involves a comparison between the impression based upon recollection of the registered mark that persons of ordinary intelligence and memory would have, and the impressions such persons would have of the impugned marks. In support of these well-known propositions the primary judge referred to the judgment of Windeyer J in Shell Co of Australia Ltd v Esso Standard Oil (Australia) Ltd (1963) 109 CLR 407 at 414-415. 72 The primary judge then referred to various authorities relied upon by the Global/Impact respondents concerned with the concept of trade mark use. These authorities included Coca-Cola Co v All-Fect Distributors Ltd (1999) 96 FCR 107 at [19] (Black CJ, Sundberg and Finkelstein JJ) and E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 at [43]. 73 His Honour noted a submission that was made to him by the Global/Impact respondents which, as summarised by his Honour at [93], was to the following effect: … a person who affixes a mark to goods so as to indicate a connection between the goods and the owner of the registered mark does not infringe the trade mark … use "as a trade mark" requires use which serves to indicate a connection between the registered mark and the infringer; that is to say in the present case to identify the Global/Impact respondents as the origin of the goods. 74 His Honour rejected this submission. His Honour said at [97] that the authorities supported the proposition that a sale of goods bearing a mark applied without the consent of the owner infringes the mark because the mark is used to indicate, contrary to the fact, a connection between the goods and the registered owner. His Honour referred to Paul's Retail Pty Ltd v Lonsdale Australia Limited (2012) 294 ALR 72 (Keane, Jagot and Yates JJ) at [68] and Brother Industries Ltd v Dynamic Supplies Pty Ltd (2007) 163 FCR 530 (Tamberlin J) in support of that proposition. His Honour also noted at [98] that "[k]nowledge by the seller of the goods that the sale of the goods bearing that mark would amount to infringement is not an element of that test". 75 This brings us to the crux of the primary judge's reasons for rejecting the Aristocrat parties' trade mark case. His Honour said that there was a short answer to the trade mark case which he explained at [101]-[107]: [101] It is true that the effect of the Full Court decision is, as I have said that the Global/Impact respondents sold machines with counterfeit compliance plates and counterfeit games. [102] However, the difficulty which arises is that this was a circumstantial case. The Aristocrat Companies have the onus of proving infringement. But the failure to produce a single machine containing a counterfeit compliance plate or a counterfeit game makes it impossible to conduct the tests stated by Windeyer J in Shell. I cannot conduct a side by side comparison. Nor can I carry out a comparison of the impression based on recollections of the person of ordinary intelligence. [103] Thus, whilst the machines which were the subject of the transactions contained signs which must be accepted to be counterfeit, the difficulty is that Aristocrat has failed to prove which of the machines contained counterfeit Aristocrat plates and which contained counterfeit Aristocrat games. Moreover, it would be necessary to demonstrate which game or games were installed on each machine. This has not been established. [104] In my opinion, it is not possible to perform either of the comparisons required under the necessary test by a process of inference. This is because I would need to be satisfied of the particular acts of infringement taking into account the matters referred to in s 140(2) of the Evidence Act 1995 (Cth). This is analogous to the requirements of the test in Briginshaw v Briginshaw (1938) 60 CLR 336 which requires exactness of proof and actual persuasion. [105] The evidence which was admissible against the Global/Impact respondents consisting of the materials seized at their premises does not assist the Aristocrat Companies. This is because they do not enable the comparison test to be carried out. [106] The counterfeit compliance plates planted by Mr Channa at the Botany premises are not admissible against the Global/Impact respondents. Even if they were, they do not assist because they cannot be linked to the transactions. [107] These difficulties seem to me to be acknowledged in Mr Cobden's concession at [76] above. What was required was evidence of an infringing machine, radically altered in the manner suggested, so that I could determine whether the machines as a whole, or some components thereof, fell within the monopoly conferred by the registered trade marks. No such evidence was admitted. 76 His Honour disposed of the trade mark case against Mr Allam by the same process of reasoning. 77 His Honour said at [109] that the evidence did not permit him to determine which of the machines contained the Aristocrat game software or the particular games that were installed in each machine. 78 It is useful at this point to examine his Honour's reasoning in greater detail. 79 First, the primary judge recognised that the effect of the Full Court's decision was that the Global/Impact respondents sold machines with counterfeit compliance plates and counterfeit games. This accords with the primary judge's previous findings which were not disturbed by the Full Court. 80 Secondly, the primary judge observed that the Aristocrat parties' case was "circumstantial". But in his Honour's view, the failure to produce any gaming machine containing either a counterfeit compliance plate or a counterfeit game made it impossible to determine the question of infringement using a "side by side" or an "impression based" comparison. 81 Thirdly, his Honour was of the view that the evidence seized at the Global/Impact respondents' premises did not enable him to carry out the necessary comparisons. His Honour said that the counterfeit compliance plates seized from the Botany premises planted by Mr Channa were not admissible against the Global/Impact respondents and, even if they were, they could not be linked to the relevant transactions. 82 Fourthly, the primary judge was of the view that the allegations made were of such seriousness, that in the absence of "a single machine containing a counterfeit compliance or a counterfeit game", it was impossible for the Aristocrat parties to satisfy him by a process of inference that any of the respondents had infringed the Aristocrat parties' trade marks on the evidence before him. We think this is apparent from his Honour's references to s 140(2) of the Evidence Act 1995 (Cth), Briginshaw v Briginshaw (1938) 60 CLR 336 and his reference to "exactness of proof and actual persuasion". 83 Fifthly, the evidence did not enable the primary judge to determine whether any particular gaming machine had been "radically altered" so that his Honour could "determine whether the machines as a whole, or some components thereof, fell within the monopoly conferred by the registered trade marks". The Appeal 84 The Aristocrat parties challenged the correctness of the primary judge's reasoning in dismissing the trade mark case and submitted that his Honour erred by failing to give effect to his own findings. They also submitted that the primary judge misunderstood and misapplied the decision in Shell. 85 The primary judge appears to have considered himself bound to dismiss the trade mark case in light of the test of infringement propounded by Windeyer J in Shell. In our respectful view, the primary judge erred in approaching the trade mark case in this way. Before explaining why his Honour erred, it is desirable that we refer in a little more detail to the High Court's decision in Shell. 86 The plaintiff in Shell was the owner of a number of registered trade marks for the caricature of a man in the shape of an oil drop with a large head and arms. One of the registered marks included the word "Esso", which was the trade name of the plaintiff's lubricating products. The defendant was alleged to have infringed the registered marks by the use in advertising of its own caricature of a man in the shape of an oil-drop in two television commercials in which the defendant's caricature engaged in various antics. The question was whether the use of these moving depictions, in which the shape and appearance of the defendant's caricature was constantly changing, infringed the registered marks. 87 In a passage of the judgment referred to by the primary judge in this case, Windeyer J said at 414-416: In considering whether marks are substantially identical they should, I think, be compared side by side, their similarities and differences noted and the importance of these assessed having regard to the essential features of the registered mark and the total impression of resemblance or dissimilarity that emerges from the comparison. "The identification of an essential feature depends", it has been said, "partly on the Court's own judgment and partly on the burden of the evidence that is placed before it" : de Cordova v. Vick Chemical Co. [(1951) 68 RPC 103 at p 106]. Whether there is substantial identity is a question of fact: see Fraser Henleins Pty Ltd v. Cody [(1945) 70 CLR 100]), per Latham C.J. [(1945) 70 CLR at pp 114, 115.], and Ex parte O'Sullivan; Re Craig [(1944) 44 SR (NSW) 291], per Jordan C.J. [(1944) 44 SR (NSW), at p 298], where the meaning of the expression was considered. Judging by the eye alone, as I think is proper for the determination of substantial identity, my opinion is that in each film there are one or more moments when the personified figure of the oil-drop appears in a form that is substantially identical with the registered mark. If the films were arrested at these moments and the image displayed in still form, I consider that use of a substantially identical mark would be established. But that is not what happens. The figure does not stand still. It does not hold its pose or expression for long enough, nor is it sufficiently isolated from its surroundings for long enough to establish infringement by the use of a substantially identical mark. That is my conclusion. But these fleeting glimpses of substantial identity are, I think, significant when one comes to consider deceptive similarity. To that I now turn. On the question of deceptive similarity a different comparison must be made from that which is necessary when substantial identity is in question. The marks are not now to be looked at side by side. The issue is not abstract similarity, but deceptive similarity. Therefore the comparison is the familiar one of trade mark law. It is between, on the one hand, the impression based on recollection of the plaintiff's mark that persons of ordinary intelligence and memory would have; and, on the other hand, the impressions that such persons would get from the defendant's television exhibitions. To quote Lord Radcliffe again: "The likelihood of confusion or deception in such cases is not disproved by placing the two marks side by side and demonstrating how small is the chance of error in any customer who places his order for goods with both the marks clearly before him … It is more useful to observe that in most persons the eye is not an accurate recorder of visual detail, and that marks are remembered rather by general impressions or by some significant detail than by any photographic recollection of the whole": de Cordova v. Vick Chemical Co [(1951) 68 RPC at p 106.]. And in Australian Woollen Mills Ltd v. F. S. Walton & Co. Ltd. [(1937) 58 CLR 641] Dixon and McTiernan JJ. said: "In deciding this question, the marks ought not, of course, to be compared side by side. An attempt should be made to estimate the effect or impression produced on the mind of potential customers by the mark or device for which the protection of an injunction is sought. The impression or recollection which is carried away and retained is necessarily the basis of any mistaken belief that the challenged mark or device is the same" [(1937) 58 CLR at p 658]). Windeyer J proceeded to make a finding of deceptive similarity and granted an injunction restraining the defendant from further infringing the registered marks. 88 The defendant's appeal against Windeyer J's judgment was allowed. The leading judgment was delivered by Kitto J (with whom Dixon CJ, McTiernan, Taylor and Owen JJ agreed) who concluded that, on the assumption that there was "for a moment or two now and then" a substantial identicality between the defendant's caricature and the registered marks, the use of the defendant's caricature did not amount to infringing use because it was not use as a trade mark. 89 Kitto J held that, as a matter of statutory construction, s 58(1) and s 62(1) of the Trade Marks Act 1955 (Cth), when referring to use of a trade mark, were to be understood as referring to use of a trade mark "as a trade mark". His Honour said at 422: The question, then, is whether such a user of the oil drop figure as takes place by the exhibition of the films on television involves infringement of the trade marks. It is a question not to be answered in favour of the appellant merely by pointing to the brevity of the occasions when substantial identity is achieved. The assumption I have made means, of course, that if the oil drop figure as appearing in some of the individual frames of the films were transferred as separate pictures to another context the use of the pictures in that context could be an infringement. But the context is all-important, because not every use of a mark which is identical with or deceptively similar to a registered trade mark infringes the right of property which the proprietor of the mark possesses in virtue of the registration. 90 In the context of this implied statutory requirement that the use of a trade mark amount to "use as a trade mark" Kitto J postulated the following question for the purpose of determining whether the defendant used either of the registered marks as a trade mark at 424-425: Was the appellant's use, that is to say its television presentation, of those particular pictures of the oil drop figure which were substantially identical with or deceptively similar to the respondent's trade marks a use of them "as a trade mark"? With the aid of the definition of "trade mark" in s. 6 of the Act, the adverbial expression may be expanded so that the question becomes whether, in the setting in which the particular pictures referred to were presented, they would have appeared to the television viewer as possessing the character of devices, or brands, which the appellant was using or proposing to use in relation to petrol for the purpose of indicating, or so as to indicate, a connexion in the course of trade between the petrol and the appellant. Did they appear to be thrown on to the screen as being marks for distinguishing Shell petrol from other petrol in the course of trade? [emphasis added] 91 We have emphasised the penultimate sentence of his passage because it assumed considerable significance in the respondents' submissions concerning the notices of contention and the concept of trade mark use. We will say more about this aspect of Kitto J's judgment later in these reasons when considering the respondents' submissions on the point. At this stage we merely observe that s 120(1) of the Trade Marks Act 1995 (Cth) expressly requires that use of a mark be use "as a trade mark" for it to amount to infringing use. 92 Although the appeal against Windeyer J's judgment in Shell was upheld, nothing was said by the Full Court that cast doubt on Windeyer J's exposition of the test of "substantial identity" or "deceptive similarity". But the context in which his Honour's exposition occurred is important. His Honour was able to view the television commercials in question and compare the caricatures depicted in them with the registered trade marks. His Honour was not concerned with the question of how the test of substantial identicality or deceptive similarity might be applied in circumstances where for one reason or another a copy of the television commercials was not in evidence and therefore not available to be viewed by the Court. In particular, his Honour was not confronted with a situation in which he could not undertake a direct visual comparison of the infringing mark and the registered mark. 93 In the present case the primary judge found that 11 transactions entered into between the Global/Impact respondents and their South American customers related to 56 gaming machines that included fake compliance plates and counterfeit gaming software. None of these findings was disturbed by the Full Court. That is not to say that the Full Court accepted that each of the fake compliance plates infringed copyright. The Full Court concluded that the evidence justified a finding that only some of the compliance plates seized infringed copyright. As the Full Court said at [165]: … Although the evidence justified the primary judge's conclusion (at [719]) that the Allam parties were manufacturing fake Aristocrat compliance plates, it did not follow necessarily that those fake compliance plates were also infringing reproductions of original artistic works in which Australian copyright subsisted. 94 But for the purpose of determining the trade mark case the first question is whether it should be inferred that the fake compliance plates included the word "Aristocrat". The primary judge's findings, which refer to the relevant plates expressly as "fake Aristocrat compliance plates", plainly indicate that his Honour was satisfied that they did. The inference is in our view irresistible that the fake compliance plates that his Honour found had been fitted to the gaming machines that formed part of the 11 transactions bore the word "Aristocrat". Once it is concluded, as it must be, that each of the fake Aristocrat compliance plates bore the word "Aristocrat" the test of "substantial identicality" was plainly satisfied. In our respectful opinion, the primary judge erred in concluding that it was "impossible to conduct the tests stated by Windeyer J in Shell". The Contentions 95 We turn now to the various arguments raised by the respondents in their notices of contention. The "usual s 136 rulings" 96 Paragraph 4 of the Global/Impact respondents' amended notice of contention asserted: Despite acknowledging (at [21]-[25], [42]) that the seized gaming machine components found at the premises of Tonita Enterprise Pty Limited and Mr Allam were not admissible against the first, second, third and fifth respondents ("the Global Respondents") by reason of the 'usual s. 136 rulings', the primary judge erred by nevertheless concluding (at [58]) that the machines the subject of the 11 transactions contained "fake compliance plates" and "counterfeit gaming software". 97 We have already referred (at [60]-[61]) above to his Honour's reasons at [21]-[25] of Aristocrat 3. His Honour said at [42]: Their Honours concluded that I was in error in varying my usual s 136 ruling in the course of closing addresses. The effect of what they said at [234]-[238] was that I ought not to have admitted the evidence which was the subject of that ruling against all of the respondents. Thus it was admissible only against the parties in respect of whom it was originally tendered and admitted. 98 We have already set out (at [53] above) paragraphs [234]-[238] of the Full Court judgment. It is apparent from a consideration of those paragraphs that they relate to what is expressly referred to in [235] as "the email evidence". It was the use made of that evidence which the Full Court concluded at [235] put the respondents against whom they were not tendered in an "unsatisfactory position". With great respect to the primary judge, we think [42] of his Honour's reasons overstates the effect of the Full Court's reasoning in [234]-[238]. 99 In Aristocrat 1 the primary judge concluded (inter alia) that the impugned gaming machines sold by the joint venture had fake compliance plates affixed and counterfeit game software installed. This conclusion was based principally upon inferences drawn from the following evidence: the existence of duplicate serial numbers on gaming machines in the MC category and the DN category; the existence of fake compliance plates found at the Bankstown, Georges Hall and Botany premises; Mr Allam's possession of engraving equipment; counterfeit EPROMs found at the Bankstown and Botany premises and blank EPROMs found at the Georges Hall premises; the existence of the CD-ROM (Ex CCC-14) which contained copies of Aristocrat game software; the Loose HDD (which included the Dataman software) and Desktop 2 found at the Georges Hall premises used by Mr Allam to burn Aristocrat game software onto blank EPROMs. 100 The primary judge's findings with respect to duplicate serial numbers depended upon an analysis of the Global/Impact respondents' business records, Ms Oldfield's evidence and a rejection of Mr Andrew's explanations as to how it was that gaming machines exported by the Global/Impact respondents to South America may have serial numbers that were identical to those appearing in business records relating to different transactions including other gaming machines previously supplied by them and gaming machines found in the licensed premises visited by Ms Oldfield. 101 The presence of fake compliance plates found at the Bankstown premises and the Georges Hall premises was evidence that was relevant to the issue of whether Mr Allam affixed fake compliance plates to the impugned machines. The fake compliance plates found at these locations were physical objects, sometimes referred to as "real evidence", that could rationally affect, directly or indirectly, the determination of whether Mr Allam was a source of fake compliance plates allegedly affixed to the impugned gaming machines. In particular, the existence of the fake compliance plates, and Mr Allam's possession of the hand engraver, was evidence from which it might rationally be inferred, that Mr Allam had the technical skills and resources necessary to produce fake compliance plates allegedly affixed to the impugned gaming machines. 102 Other physical objects obtained at the premises with which Mr Allam was connected, including the Loose HDD, Desktop 2, the EPROMs and EPROM labels were also admissible on the basis that it could rationally affect, directly or indirectly, the determination of whether Mr Allam was a source of counterfeit gaming software allegedly installed on the impugned gaming machines. 103 This same evidence was also relevant to the case against the Global/Impact respondents because it was open to infer that it was Mr Allam who determined what compliance plates and EPROMs were used in the gaming machines supplied by the Global/Impact respondents. 104 As to the fake compliance plates found at the Botany premises, it is important to note that the primary judge, while mindful that Mr Channa planted fake compliance plates at the Botany premises, found that a strong inference arose that the counterfeit compliance plates seized at the Georges Hall, Bankstown and the Botany premises were counterfeit and that they had been made with the authority of the Tonita respondents (see Aristocrat 1 at [737]-[743]). 105 It is true that the primary judge went on to observe (at [744]) that this inference was supported by the email evidence. But we take this to mean that the email evidence provided further support for an already strong inference that all of the fake compliance plates, including those found at the Botany premises, had been made with the authority of the Tonita respondents. We agree that it is not necessary to go to the email evidence to infer that all of the fake compliance plates, including those planted by Mr Channa at Botany, were made with the Tonita respondents' authority. 106 With regard to the CD-ROM (Ex CCC-14) found at the Georges Hall premises, as previously noted, the primary judge rejected Mr Allam's evidence that it was fabricated by Mr Channa. We should also note that it was not "seized" but provided by Mr Channa to the Aristocrat parties. Nor is the CD-ROM a "gaming machine component". Strictly speaking, the CD-ROM falls outside the scope of the Global/Impact respondents' contention. The same is also true of the Loose HDD and Desktop 2, none of which is a gaming machine component. 107 It was submitted by Mr Einfeld QC on behalf of the Global/Import respondents that, on a proper understanding of the Full Court's reasons, none of the evidence seized from the Bankstown and Georges Hall premises was admissible against the Global/Impact respondents and that the Full Court held that none of the evidence seized from the Bankstown or Georges Hall premises should have been admitted against his clients. We do not accept that submission. 108 The Full Court in Allam 1 did not hold that all of the evidence seized from the Bankstown and Georges Hall premises should not have been admitted against the Global/Impact respondents. The holding in Allam 1 was confined to the email evidence which raised different considerations from the physical evidence obtained from the Bankstown and Georges Hall premises. Of particular significance was the primary judge's acceptance in Aristocrat 1 at [321] that the emails were not tendered as proof of the facts stated in them; as the Full Court observed in Allam 1 at [244], the primary judge fell into error in relying upon the emails as proof of the matters asserted in them. The physical evidence admitted by the primary judge was not the subject of any such limitation as to use. 109 In the course of argument in the present appeal, the Court suggested to Mr Einfeld QC that the relevant holding in Allam 1 might not be as wide as he contended or as the primary judge may have understood it, and that it did not go any further than holding that the primary judge made impermissible use of the email evidence. However, Mr Einfeld QC did not seek to develop any alternative submission that the use of the evidence obtained from the Bankstown and Georges Hall premises should be disregarded for the purpose of the trade mark case because the circumstances in which it came to be admitted into evidence put the Global/Impact respondents into what the Full Court in Allam 1 described (when referring to the email evidence) as "an unsatisfactory position". Put another way, it was not contended that, even if the Full Court had not already determined that the evidence obtained from the Bankstown and Georges Hall premises should not have been admitted against the Global/Impact respondents, that the requirements of procedural fairness required that such evidence also be excluded. 110 We do not think the circumstances in which the physical evidence came to be admitted gave rise to any unfairness. The Global/Impact respondents made submissions to the primary judge which in effect adopted Mr Allam's explanation for his possession of the seized materials, including, for example, that fake compliance plates had been planted at the Bankstown and Georges Hall premises by Mr Channa. Clearly, it would have been preferable for the Aristocrat parties to tender the seized material earlier than they did and before the close of their case. Be that as it may, we are not satisfied that the primary judge's decision to admit such material when he did gave rise to any unfairness that would justify a reversal of his Honour's ruling in so far as it applied to the seized materials. 111 We reject the contention that the primary judge erred in Aristocrat 3 by concluding that the impugned gaming machines contained fake compliance plates and counterfeit gaming software. His Honour's conclusion is open and one that we would also draw on the basis of the physical evidence to which we have referred and the absence of any credible explanation that would account for the use of the duplicate serial numbers or the existence of fake compliance plates or counterfeit EPROMs that were seized from the Bankstown and Georges Hall premises. No use "as a trade mark" 112 The respondents contended that there could be no use of any of the registered marks "as a trade mark" in this case because none of the marks was used by the respondents to indicate a connection between the goods and any of the respondents. This is the same argument that was considered and rejected by the primary judge at [97] of his reasons (see [73]-[74] above). In support of this contention we were referred by the Global/Impact respondents to various authorities including Irving's Yeast-Vite Ltd v FA Horsenail Co Ltd (1934) 51 RPC 110 at 115-116, Mark Foys Ltd v Davies Coop & Co Ltd (1956) 95 CLR 190 at 203, Shell at 424-425 and Wingate Marketing Pty Ltd v Levi Strauss & Co (1994) 49 FCR 89 at 134-135. We have already quoted the passage in Shell relied upon by the respondents in support of this contention and emphasised the particular words which they say require that the mark be used to indicate a connection between the goods and the person applying the mark. These same words were also emphasised by the Full Court when quoting from Shell in Coca-Cola Company v All-Fect Distributors Ltd (1999) 96 FCR 107 at [20]. In that case the Full Court said at [19]: Use "as a trade mark" is use of the mark as a "badge of origin" in the sense that it indicates a connection in the course of trade between goods and the person who applies the mark to the goods: see Johnson & Johnson Australia Ply Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 341, 35l. That is the concept embodied in the definition of "trade mark" in s 17 - a sign used to distinguish goods dealt with in the course of trade by a person from goods so dealt with by someone else. 113 This statement was expressly approved by the High Court in E & J Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 at [43] by the plurality, French CJ, Gummow, Crennan and Bell JJ, and at [87] by Heydon J. Significantly, both Coca-Cola and Gallo were concerned with the provisions of the Trade Marks Act 1995. 114 The Full Court in Coca-Cola also said at [20]: The authorities provide no support for the view that in determining whether a sign is used as a trade mark one asks whether the sign indicates a connection between the alleged infringer's goods and those of the registered owner. Cases such as Mark Foy's Ltd v Davies Coop & Co Ltd (Tub Happy Case) (1956) 95 CLR 190 at 204-205; Shell at 425; Johnson & Johnson Australia Ply Ltd v Sterling Pharmaceuticals Pty Ltd (1991) 30 FCR 326 at 347-348, 351; Wingate Marketing Ply Ltd v Levi Strauss & Co (1994) 49 FCR 89 at l34-l45 and Musidor BV v Tansing (1994) 52 FCR 363 at 373-374, 376-377; 29 IPR 203 at 213, 216 show that the question is whether the sign used indicates origin of goods in the user of the sign; whether there is a connection in the course of trade between the goods and the user of the sign. (emphasis added) 115 Applying the statement of principle in Coca-Cola as approved by the High Court in Gallo at [43], the question is whether the mark was used so as to indicate a connection in the course of trade between the goods and the person who applied the mark. The persons who applied the mark to the 48 impugned gaming machines were the Global/Impact respondents or their servants or agents including, at least, Mr Allam who made some, if not all, of the fake compliance plates. 116 As Kitto J emphasised in Shell, context is all important in deciding whether or not the use of a trade mark constitutes trade mark use. In the present case we are satisfied that the Aristocrat mark was used so as to indicate a connection in the course of trade between the impugned machines and the person who affixed the mark. The fact that the Global/Impact respondents may have intended to use the mark for the purpose of conveying an association between the gaming machines and any one or more of the Aristocrat parties is irrelevant. What is important is that the Aristocrat mark was used as "a badge of origin" so as to indicate that the gaming machines had been made by or with the authority of the person who affixed the mark. 117 Once it is accepted that the gaming machines were not genuine in that they included fake compliance plates and counterfeit game software, it becomes apparent that this case is not unlike any other case involving the supply of counterfeit goods to which a trade mark owner's registered mark has been affixed without authority. It is true, of course, that the impugned gaming machines may have incorporated many genuine parts. Nevertheless, the fact that each machine included counterfeit gaming software provides a sufficient basis for concluding that the Global/Impact respondents infringed the Aristocrat trade mark by affixing fake compliance plates bearing the Aristocrat mark to the impugned gaming machines. 118 The question whether the Aristocrat trade mark would have been infringed by the Global/Impact respondents were they to have affixed fake compliance plates to genuine goods that did not include counterfeit game software is not a question that needs to be addressed in this case. Nor is it necessary for us to consider whether there is any inconsistency between what was said in Gallo and Coca-Cola and the Full Court's decision in Paul's Retail Pty Ltd v Lonsdale Australia Ltd (2012) 294 ALR 72. We do, however, point, out that the plurality in Gallo at [53], with Heydon J agreeing at [87], made clear that it was not necessary to decide in that case whether a person who had imported into Australia genuine goods bearing the registered mark thereby used the mark. Further, in a footnote to their reasons the plurality referred to the well-known judgment of Aickin J in Pioneer Kabushiki Kaisha v Registrar of Trade Marks (1977) 137 CLR 670 at 688. In that case Aickin J referred to Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd (1967) 116 CLR 254 which was said by the respondent in Pioneer to be authority for the proposition that a retailer who sold imported goods bearing an Australian registered mark did not use a mark which was already on the goods and that, therefore, a wholesale distributor of such goods also did not use the mark. In the course of rejecting that submission Aickin J said at 688: It was argued that Estex Clothing Manufacturers Pty Ltd v Ellis and Goldstein Ltd [(1967) 116 CLR 254] decided that a retailer who sold imported goods bearing an Australian registered trade mark did not use the mark, and that therefore a "distributor" did not use a mark which was already on the goods. In my opinion the Estex Case is not authority for that proposition. It is authority for the proposition that the foreign owner of an Australian mark uses it in Australia when he sells goods for delivery abroad to Australian retailers and those retailers import them into Australia for sale and there sell them. It demonstrates that such a situation does not differ from that where he sells the goods for delivery in Australia to the retailer or where he advertises the goods in Australia. It was not necessary in that case to consider whether the retailer also used the mark because the only relevant question was whether the registered proprietor himself had used the mark in Australia. There is no doubt that if the retailer had on the same basis imported goods other than those of the registered proprietor but bearing its mark, he would have used the mark by infringing it. 119 Aickin J's final observation in this passage is directly applicable to the facts of this case except that we are here concerned with the activities of an exporter rather than an importer of goods. The scope of the registration 120 The primary judge identified three registered marks (numbers 154646, 332321 and 787428) which were Aristocrat word marks. His Honour found that the first two of these did not relate to goods of the description of those which were the subject of the proceeding. This finding was not challenged in the Aristocrat parties' notice of appeal nor did any of their written or oral submissions seek to challenge the correctness of this finding. On that basis we propose to confine our consideration of the trade mark case based upon the Aristocrat word marks to trade mark number 787428 ("the 428 mark"). 121 The primary judge found that the 428 mark was registered in classes 9, 37 and 41 as follows: Class 9: Gaming machines, including poker machines, in this class; computer hardware and software used for the operation of a jackpot system; data collection and processing systems in this class associated with gaming Class 37: Installation, maintenance, servicing, repair and relocation of gaming equipment/machines for playing games of chance of all kinds; construction and installation of props, tableaux and thematic settings in gaming venues Class 41: Gaming services including such services provided by means on online electronic access or a global electronic network Classes 37 and 41 may be disregarded on the basis that they are for services rather than goods. Class 9 is most relevant because it refers to "gaming machines". 122 The respondents contended that the primary judge erred in failing to conclude that the 428 mark applied only to an entire gaming machine and did not apply to an individual component affixed to or contained within such a machine. The submission was that the manufacture of compliance plates bearing the Aristocrat mark could not give rise to any infringement of the 428 mark. 123 There is no substance to this contention. The evidence justified the inference that each of the impugned gaming machines exported for sale to South America had a counterfeit compliance plate affixed to it. The 428 mark was therefore used in relation to goods in respect of which the 428 mark was registered. The scope of the trade mark case 124 The respondents argued that the trade mark case as presented by the Aristocrat parties on appeal was either outside the pleaded and particularised case or was otherwise inconsistent with the case as presented to the primary judge. 125 The Global/Impact respondents relied upon the concession made by Mr Cobden SC (reproduced at [69] above) and submitted that the trade mark case could not succeed unless it could be established that the EPROMS in the impugned machines were made in breach of ATA's copyright. There are two things to say about this submission. 126 First, this is not a point raised by the Global/Impact respondents in their amended notice of contention. We are therefore not disposed to allow the Global/Impact respondents to rely upon it even though it was raised before the primary judge and decided against them. Their failure to make any reference to it in the notice of contention was never explained. 127 Secondly, we do not read Mr Cobden SC's concession as indicating an acceptance that the trade mark case against the Global/Impact respondents must fail if the copyright case against them failed. The context in which the relevant statements were made by Mr Cobden SC is important. The transcript of the first hearing before the primary judge shows that Mr Cobden SC was seeking to distinguish his clients' case from Wingate. 128 Wingate was a case decided under the Trade Marks Act 1955 involving reconditioned jeans that still retained the various Levi's trade marks originally applied by or with the consent of the trade mark owner at the time of manufacture. Ultimately, the trade mark case based upon the presence of the Levi's marks (including the Levi's word mark) on the reconditioned jeans was rejected by the Full Court on the basis that there was no use of those marks by Wingate as a trade mark: see, in particular, Sheppard J, 49 FCR at 111-112 (with whom Wilcox J agreed) and Gummow J at 134-135. It is important to note, however, that the Levi's marks on the reconditioned jeans were never applied by Wingate; it applied a different mark (Revise) to the reconditioned jeans albeit one which was held to be deceptively similar to the Levi's word mark. 129 When read in context, we do not take Mr Cobden SC to be saying that the trade mark case must fail if the copyright case against the Global/Impact respondents failed. It is apparent that he was using the expression "infringing EPROMS" as a synonym for "counterfeit EPROMS". This is most apparent from that part of the transcript to which the primary judge appears to be referring at [75] of Aristocrat 3 where the following exchange is recorded in the context of a discussion of what alterations would need to be made to a second hand machine if the presence of the Aristocrat mark was to give rise to liability for trade mark infringement (p 1881 lines 7-12): His Honour: Do I need to know to what extent the machines have been altered in order to determine that question. Mr Cobden: Yes, and we put it very narrowly. It would only be by the insertion of infringing EPROMS – counterfeit EPROM. So it's not a case like Levi's … 130 In the present case the primary judge found that each of the impugned machines contained counterfeit EPROMS reproduced by Mr Allam. As previously explained, the Full Court upheld this finding and the reasoning underpinning it. 131 Even if we were minded to allow the Global/Impact respondents to raise this contention, we would have rejected it on the ground that it is based upon a mischaracterisation of the concession that was made. 132 Mr Allam's notice of contention raised a number of additional arguments as to why the Aristocrat parties' trade mark case against the Tonita respondents should have been dismissed. 133 It was submitted that the primary judge should have found that the allegation of trade mark infringement based upon the supply by the Global/Impact respondents of the 56 impugned gaming machines was not pleaded or particularised against either of the Tonita respondents. 134 We do not accept this submission. Paragraph 56 of the Amended Consolidated Statement of Claim ("ACSC") includes an allegation that each of the Tonita respondents used one or more of the registered trade marks. It is further alleged in paras 61-63 of the ACSC that each of the Tonita respondents entered into a common design with the other respondents and infringed the registered marks "as a joint tortfeasor". Thus, each of the Tonita respondents was alleged to have infringed the registered trade marks by reason of their participation in a common design. 135 Paragraph 90 of the Aristocrat parties' statement of particulars ("the particulars") makes clear that the registered trade marks (including the 428 mark) were infringed by the manufacture and application of fake compliance plates to gaming machines. The transaction tables that formed part of the particulars indicate that not all of the impugned transactions were relied upon against the Tonita respondents. Nevertheless, some clearly were, including transaction 48 (entry 27 in the relevant transaction table) which involved the sale of impugned machines to Princess Entertainment in 2005. The transaction table includes a list of the participants in this alleged infringement which includes Mr Allam. 136 Mr Green, who appeared for the Tonita respondents, submitted that the evidence demonstrated that the five impugned machines included in transaction 48 were supplied to the Global/Impact respondents by IGT (Australia) Pty Ltd, trading as International Gaming Technology ("IGT") and that, therefore, Mr Allam could not have been responsible for affixing fake compliance plates to these five machines. 137 The difficulty with this submission is that it has already been addressed by the Full Court in Allam 1 at [360]. The Full Court was not persuaded that these machines were in fact supplied by IGT. In any event, as the Full Court also noted, the IGT invoice upon which this argument depends refers to only three machines with the same serial number as the five impugned machines that formed part of transaction 48. 138 Further, Mr Green's attempts to distance Mr Allam from the impugned machines that formed part of each of the 11 relevant transactions (including transaction 48) ignores the following finding by the Full Court at [133]: In our view, the totality of the circumstances justify the conclusion that, in relation to those transactions, the impugned gaming machines contained Aristocrat game software that had been reproduced by the Allam parties, specifically Mr Allam. It is apparent that the Full Court was here referring to each of the 48 impugned gaming machines that formed part of those 11 transactions. 139 There was another and closely related argument relied upon by Mr Allam. It was contended by Mr Allam that the Full Court's findings in Allam 1 precluded any further finding that he was involved in any joint venture with the other respondents for the purpose of the trade mark claims. We have interpreted "joint venture" in this context to refer to a joint enterprise or common design as would make Mr Allam liable as a joint tortfeasor for trade mark infringement notwithstanding that he was not the person who exported the impugned machines for sale to the South American purchasers. 140 We do not see anything in the Full Court's judgment in Allam 1 which precludes any further finding to this effect. Nor is there anything in Allam 2 to suggest that the Full Court considered that there could be no further finding of common design such as alleged in paras 61-63 of the ACSC. 141 There are numerous authorities which have considered the concept of common design in the context of the intellectual property rights conferred by statute. Some of these authorities are referred to in Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1. In that case, which involved allegations of copyright infringement, Tamberlin J said at [135]-[136]: [135] The authorities indicate that in order to make out a case of joint tortfeasor liability on the basis that copyright infringement is a statutory tort, it is necessary to establish that there has been a common design by the respondents to participate in or induce or procure another person to commit an act of infringement. In WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274 at 283, Gummow J points out that in circumstance where two or more persons assisted or concurred in or contributed to an act causing damage this is not of itself sufficient to found joint liability and there must also be some common design. In other words, there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient: see Unilever plc v Gillette (UK) Ltd [1989] RPC 583 at 609 per Mustill LJ; Molnlycke AB v Procter & Gamble Ltd [1992] 1 WLR 1112; [1992] RPC 21 at 29 per Dillon LJ (with whom Leggatt LJ agreed). In Intel Corp v General Instrument Corp (No 2) [1991] RPC 235 at 241, Aldous J stated that: that capacity to control will not establish a common design. It is the extent of the control actually exercised or the involvement which is relevant and, in particular, whether it amounts to a common design to do the acts complained of. [136] The relevant authorities were considered by the High Court in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580-581, where the joint judgment referred to the necessity for two or more persons to act in concert in committing the tort. At 600, Gummow J cited with approval the comment of Sargent LJ in The Koursk [1924] P 140 at 159-60 that persons are joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a "common design" so that those who aid or counsel, direct or join in the commission of the tort are joint tortfeasors. See, on appeal, Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 at [87] per Branson J and at [173] per Kenny J. 142 We respectfully agree with Tamberlin J's summary of the authorities. We would add that it is not necessary that the parties to the common design intend to infringe. As Mustill LJ (with whom Ralph Gibson and Slade LLJ agreed) observed in Unilever plc v Gillette (UK) Ltd [1989] RPC 583 at 602, it is not necessary to show "a common design to infringe … it is enough if the parties combine to secure the doing of acts which in the event prove to be infringements": see also Unilever v Chefara Properties Ltd [1994] FSR 135 at 138. 143 In the present case it is not necessary for the Aristocrat parties to show that the participants in the common design deliberately infringed the 428 mark. It was sufficient to show that the 428 mark was infringed as a result of their concerted action. The fact that the evidence did not establish that the Global/Impact respondents knew that the impugned machines included fake compliance plates and counterfeit game software provides no answer to the trade mark case against any of the respondents including, in particular, Mr Allam. 144 In our view the findings of the primary judge in Aristocrat 1 and the Full Court in Allam 1 justify the conclusion that each of the Global/Impact respondents and Mr Allam infringed the 428 mark in the course of a common design pursuant to which Mr Allam refurbished gaming machines (including each of the impugned machines) for the Global/Impact parties which were later exported for sale in overseas markets including, relevantly, South America. 145 It was also submitted on behalf of Mr Allam that the trade mark infringement case pleaded against him was solely based on s 120(1) of the Trade Marks Act 1995 and that the primary judge should have held that the scope of the relevant trade mark monopoly was confined to gaming machines. It was the submitted that the evidence could not support a finding that Mr Allam affixed the fake compliance plates which he was found to have made to the impugned gaming machines, and for that reason, the trade mark case against him based on the 428 mark could not succeed. 146 It seems to us that the inference that Mr Allam affixed the false compliance plates to the impugned gaming machines is irresistible. What was Mr Allam doing making false Aristocrat compliance plates if not to fit them to gaming machines? In any event, even if the fake compliance plates made by Mr Allam were not fitted to the impugned gaming machines by him, they were, as we have said, exported for sale pursuant to a common design in which he was an active participant. The Logo Mark 147 The primary judge's reasons in Aristocrat 3 do not make any reference to registered trade mark number 787430 which was referred to in submissions as the "Logo Mark" or the "430 mark". According to the ACSC, the Logo Mark, a stylised representation of "ARISTOCRAT", registered number 787430, is registered in respect of the same goods in classes 9, 37 and 41 as the 428 mark. It is difficult to see what additional protection, if any, the registered owner is afforded by the Logo Mark beyond that provided by the 428 mark. 148 The respondents did not suggest in either their written or oral submissions that the infringement case based upon the Logo Mark could fail in circumstances where the infringement case based upon the 428 mark succeeded. Given our conclusion with respect to the infringement of the 428 mark, we think the same conclusion must follow in relation to the Logo Mark. 149 The Aristocrat parties' grounds of appeal also complain that the primary judge erred by failing to grant any relief against the Global/Impact respondents for infringement of the Aristocrat word marks (now confined to the 428 mark) and the Logo Mark by their use on EPROMs and compliance plates found at (inter alia) the Botany premises. 150 The difficulty with this aspect of the Aristocrat parties' case is that it overlooks the scope of the trade mark registrations and the fact that the infringement case pleaded against all respondents was confined to a case based upon s 120(1) of the Trade Marks Act 1995. 151 We were not referred to any evidence that might show that the EPROMs or any counterfeit game software encoded thereon was "used for the operation of a jackpot system" or was otherwise within the scope of the class 9 goods in respect of which the 428 mark and the Logo mark are registered. In the circumstances, we cannot be satisfied that the use of either of those marks on a compliance plate or EPROM simpliciter is use in relation to the relevant goods. Nor are we satisfied that by applying the 428 mark or the Logo Mark to EPROMs and compliance plates that any of the respondents was thereby using either of the marks in relation to any service covered by the registration. The Game Name Marks 152 The Aristocrat parties do not challenge the primary judge's judgment in Aristocrat 3 in so far as it failed to grant any relief against the Global/Impact respondents for infringement of the Game Name Marks. In their written submissions the Aristocrat parties made clear that they did not press their claim for such relief before the primary judge. 153 By their notice of appeal, the Aristocrat parties challenge the primary judge's failure to grant them any declaratory or injunctive relief against the Tonita respondents based upon what they allege are proven infringements of each of the following registered marks ("the Game Name Marks"): 154 It is important to note that each of the Game Name Marks is registered in respect of (inter alia) gaming machines and parts for gaming machines. An EPROM that has been encoded (or "burned") with a program or data used to facilitate play on a gaming machine is a part for a gaming machine, and is therefore within the scope of a registration for (inter alia) gaming machines and parts for gaming machines. It is not necessary for us to express an opinion on the question of whether blank EPROMs are also within the scope of such a registration. 155 As the primary judge's findings in Aristocrat 1 make clear, there were hundreds of EPROM seized from the Bankstown premises to which printed labels were affixed that referred to the name "Golden Pyramids" and other Aristocrat game names. These other game names were not specifically identified in the reasons of the primary judge but the evidence shows that they included "Queen of the Nile", "Golden Pyramids", "Chicken", "Jumping Joey's", "King Galah", "Reel Power" and "Super Bucks". 156 Mr Polaczek gave evidence that the ERPOMs seized from the Bankstown premises were not genuine products (ie. EPROMS encoded by the Aristocrat parties). In response, Mr Allam gave evidence that the EPROMs seized from the Bankstown premises were acquired from Behong and that all such EPROMS were in the state in which he obtained them from Behong. His Honour rejected this evidence from Mr Allam at [728] of his reasons in Aristocrat 1. 157 It is apparent from the primary judge's other findings, especially at [719] of Aristocrat 1, that he was satisfied that the seized EPROMs had been burned by Mr Allam and that he had affixed to them the labels bearing the various game names. 158 It was submitted by Mr Green, on behalf of Mr Allam, that in engaging in such activities Mr Allam was not using any of the Game Name Marks "in the course of trade". This submission was developed in two ways. First it was suggested that Mr Allam was applying the marks to genuine goods (ie. EPROMS encoded by the Aristocrat parties). Secondly, it was suggested that Mr Allam's use of the marks, even if constituting trade mark use, did not occur "in the course of trade". There is no substance to either of these submissions. 159 The proposition that Mr Allam was applying the marks to genuine goods is contrary to the primary judge's findings in Aristocrat 1 and would, if it were to be accepted, require us to accept evidence given by Mr Allam that was rejected by the primary judge and to reject other evidence accepted by his Honour, including, from Mr Polaczek in circumstances where there could be no possible justification for doing so. 160 The argument that Mr Allam did not use the Game Name Marks in the course of trade assumes that s 120 of the Trade Marks Act 1995 requires that trade mark use occur "in the course of trade" if it is to constitute infringing use. In support of his argument that such a requirement was to be imported into s 120, Mr Green referred us to the judgment of Kitto J in Shell at 422. 161 It is important to note that his Honour's observations were made in the context where s 62(1) of the Trade Marks Act 1955 imposed such a requirement expressly. Whether or not the definition of "trade mark" in s 17 of the Trade Marks Act 1995 would justify the implication of such a requirement in the case of s 120 need not be decided in this case. 162 This is not a case in which a trade mark was affixed to goods for some non-commercial purpose outside the course of trade. We are satisfied that Mr Allam was applying the Game Name Marks to the EPROMs he burnt so as to indicate to purchasers of the EPROMs, or gaming machines to which these EPROMs were to be fitted, that the EPROMs were encoded by or with the consent of the person who applied the mark. Use of each of the game names to indicate such a connexion was trade mark use. We also consider that the application of the Game Name Marks in such circumstances would satisfy any additional requirement that such use occur in the course of trade. 163 The Aristocrat parties pressed a case against the Tonita respondents based upon the use of the Game Name Marks on EPROMs installed on a number of impugned gaming machines that were included in transactions 48 and 51. No such case was pressed against the Global/Impact respondents. 164 We were provided by the Aristocrat parties with a supplementary bundle of evidentiary materials relating to a selection of transactions in the MC category and the DN category including transactions 48 and 51. An analysis of that material does not allow one to determine whether any of the "Queen of the Nile", "Golden Pyramids", "Chicken", "Jumping Joey's", "King Galah", "Reel Power" or "Super Bucks" game software was installed on any of the impugned machines. None of the invoices in the supplementary bundle relating to transactions 48 and 51 includes details of the games installed, and so it is not possible to draw a link between an impugned machine and any particular game software. 165 In their written submissions the Aristocrat parties submitted that, because certain of the impugned machines in the MC category were observed by Ms Oldfield to have one of the relevant games installed, it followed that the impugned gaming machine with the duplicate serial number could also be expected to have that game installed on it, and that it might therefore be inferred that there had been an infringing use of the relevant Game Name Mark. 166 There are two things to say about this submission. First, Ms Oldfield's evidence does seek to draw a link between the impugned machines in transaction 48 and various game names, but the game names she refers to do not include any of the Game Name Marks. Secondly, it was not suggested that the counterfeit compliance plates affixed to each of the impugned machines identified the games installed on the machines to which they were affixed and so it cannot be assumed that the counterfeit compliance plates with the duplicate serial numbers were affixed to gaming machines that had the same game software installed as was installed on the machines which Ms Oldfield observed. Other issues raised in the Tonita respondents' notice of contention 167 The Tonita respondents' notice of contention asserts that the Aristocrat parties confined their claim for relief against the Tonita respondents to the use of the Aristocrat word marks in the course of trade in relation to functioning refurbished gaming machines, that no case was pressed against the Tonita respondents in relation to the counterfeit compliance plates and counterfeit EPROMs found at their premises, and that the Aristocrat parties confined their case to one based on the impugned machines alone. We do not accept this contention. 168 In the course of their closing submissions to the primary judge at the trial, the Aristocrat parties provided to his Honour a summary document entitled "Applicants' Closing Submissions – Claims Maintained". There is nothing in that document to suggest that the Aristocrat parties confined their case against the Tonita respondents as is now contended. Nor were we referred by the Tonita respondents to any other material that supports their contention that some part of the trade mark case against them was withdrawn or abandoned. 169 Photographs in evidence show EPROMs with labels upon which the words "Queen of the Nile", "Golden Pyramids", "Chicken", "Jumping Joey's", "King Galah", "Reel Power", and "Super Bucks" appear. These EPROMs were found at (inter alia) the Bankstown premises. The primary judge concluded that the EPROMs found at the Bankstown premises contained counterfeit copies of the Aristocrat games and that they had been (contrary to Mr Allam's denials) burned by Mr Allam. EPROMs encoded with game software are within the scope of the Game Name Mark registrations. We are satisfied that Mr Allam infringed each of the Game Name Marks by applying them to EPROMs in which counterfeit copies of Aristocrat game software were stored. The admissibility of the invoices 170 This brings us to another argument relied upon by the Tonita respondents which we can deal with relatively briefly. We were told by Mr Green that the invoices relating to the 11 impugned transactions were not admitted into evidence as against the Tonita respondents until closing submissions. This provided the platform for his argument that, as with the email evidence, it was by then too late for the primary judge to admit the invoices into evidence against the Tonita respondents. We do not accept this argument. 171 In the course of his submissions, Mr Green accepted, quite properly, that the invoices, if relevant, were admissible against his clients and that the Full Court's judgment had nothing to say about the fairness of the primary judge's decision to admit the invoices into evidence against the Tonita respondents after the close of the Aristocrat parties' case. 172 At no point in his written or oral submission did Mr Green explain how his clients were prejudiced by the admission of the invoices or why the primary judges' decision to admit them into evidence against the Tonita respondents when his Honour did might be considered procedurally unfair. We do not think it was. Mr Green's submission wrongly assumes, as did the related submission made by Mr Einfeld QC, that the effect of the Full Court's decision was to deprive the primary judge's so-called "s 136 reversals" of any operative effect. For reasons previously explained, this reflects a misunderstanding of the Full Court's judgment in Allam 1. Tonita 173 It was submitted on behalf of Tonita that, since it was not incorporated until July 2006, it could not be found liable for trade mark infringement arising out of the supply of any of the impugned gaming machines because, as the primary judge found, these sales occurred before then. We accept that submission. The position in relation to the Game Name Marks is slightly different. The counterfeit EPROMs obtained from the Bankstown premises were seized by the Aristocrat parties' solicitors in February 2007 more than six months after Tonita's incorporation. It is possible that the EPROMs were made by Mr Allam sometime between the date of Tonita's incorporation (14 July 2006) and the date those orders were executed (1 February 2007). But it is equally possible that they were made sometime before then. 174 However, the question whether Tonita should be enjoined from infringing any of the trade marks that Mr Allam has been found to infringe should not be decided on the basis of Tonita's date of incorporation. In circumstances where it is clear that Tonita is the alter ego of Mr Allam, that question should be decided by reference to a wider set of considerations. 175 In our view, the Court may frame injunctive relief, in an appropriate case, with a view to ensuring that the infringer is not tempted to seek to work around an injunction protecting intellectual property rights through the interposition of a corporate entity that serves as a mere cloak behind which he or she may continue to infringe. In such a case the Court may grant an injunction against the corporate entity and the person who stands behind it. A similar approach was taken by the Court of Appeal in Gilford Motor Company v Horne [1933] 1 Ch 935 in a case concerned with proceedings for the enforcement of a contractual restraint of trade: see, in particular, Lord Hanworth MR at p 961 and Lawrence LJ at p 965. We propose to take this approach in this case and grant injunctive relief against both Mr Allam and his company. Relief 176 Having decided to dismiss the trade mark case against each of the respondents, it was not necessary for the primary judge to consider whether it was appropriate to grant declaratory relief with respect to trade mark infringement and his Honour did not do so. His Honour did make declarations in relation to copyright infringement, but these are in an unorthodox form that does not specifically identify the copyright work or the copyright owner and which merely refer to paragraphs in the Full Court's reasons in Allam 1. The primary judge declined to grant the Aristocrat parties any injunctive relief against either of the Tonita respondents restraining any further copyright infringement. 177 Referring to Mr Allam's copyright infringements, his Honour said at [116] of Aristocrat 3: The breaches are now of great antiquity. The Aristocrat Companies have adduced no evidence of any current or subsisting threat posed by Mr Allam. These are powerful reasons for refusing injunctive relief. Indeed, it was for these reasons that I refused such relief three years ago; see [Aristocrat 2] at [21]-[22]. His Honour's reference to Aristocrat 2, [21]-[22] is puzzling. At [22] of that judgment his Honour, when refusing to grant any injunctive relief for copyright infringement, noted that "… the award of additional damages ought to be a sufficient disincentive to the respondents and the transactions at issue were of some antiquity". But his Honour's damages award was set aside by the Full Court, so this was not a case in which it could be suggested, by the time judgment was given in Aristocrat 3, that the damages awarded against Mr Allam provided him with any disincentive to further infringe. 178 In our respectful opinion, his Honour's discretion miscarried. The infringements of copyright in which Mr Allam was found to have engaged may have occurred long ago, but that cannot be determinative of the question whether to grant an injunction by way of final relief. With great respect to the primary judge, he appears to have overlooked some powerful reasons why injunctive relief should have been granted against Mr Allam. 179 First, the evidence established that Mr Allam engaged in copyright infringement of a flagrant kind and over a significant period of time. The infringements were also engaged in surreptitiously and for commercial gain. 180 Secondly, there was no evidence to suggest that Mr Allam had proffered any undertaking, even if only on a "without admissions" basis, to either the copyright owner or the Court. Instead, Mr Allam mounted a vigorous defence of the allegations made against him which involved him putting the copyright owner to proof of (inter alia) subsistence and ownership of copyright in the relevant game software. These are considerations relevant not only to costs but also to the question whether the requirements of justice are served by refusing injunctive relief on the basis that infringements of the kind which were proven at trial were unlikely to be repeated. 181 Thirdly, Mr Allam's defence of the case against him was in large part founded upon evidence that the primary judge found to be untruthful in significant respects. Indeed, Mr Allam's evidence was so seriously discredited, and his honesty as a witness so thoroughly impugned, there could be no reasonable basis for concluding that, in the absence of an injunction restraining him from doing so, there was anything less than a significant risk that Mr Allam would infringe the copyright owner's copyright at some time in the future. 182 In our view this is a case in which it is appropriate to grant injunctive relief aimed at preventing Mr Allam from infringing ATA's copyright in the game software and in the relevant compliance plate specification that Mr Allam was found to have infringed. We have already explained why we think it appropriate to grant injunctive relief against Tonita to restrain it from infringing ATA's registered trade marks. What we said on that issue also applies to injunctive relief with respect to copyright infringement. DISPOSITION 183 The appeal should be allowed. The orders and declarations made by the primary judge on 30 September 2013 should be set aside. 184 There should be declarations as follows: Each of the Global/Impact respondents and Mr Allam has infringed the 428 mark and the 430 mark by, without the licence or consent of ATA, acting in concert to export for sale gaming machines which incorporated: (a) unauthorised compliance plates that bore the word "Aristocrat"; and (b) EPROMs containing unauthorised Aristocrat game software. Mr Allam has infringed each of the Game Name Marks by, without the licence or consent of ATA, applying them, in the course of trade, to EPROMs containing copies of unauthorised Aristocrat game software. Mr Allam has infringed ATA's copyright by reproducing, in a material form, without the licence or consent of ATA, the following copyright works: (a) Aristocrat game software known by the name "Queen of the Nile", "Chicken", "Cash Chameleon", "Golden Pyramids", "Flame of Olympus", "Adonis", "Jumping Joeys", "King Galah", "Reel Power", "Superbucks II" and "Thor"; and (b) the Design Specification 565875 (Revision B). 185 There should also be injunctions as follows: Each of the respondents be restrained, whether by its or his servants, agents or otherwise, from infringing the 428 Mark or the 430 Mark by: (a) in the course of any trade using the mark, or any other mark that is substantially identical with or deceptively similar to the mark, as a trade mark, in relation to any gaming machine containing unauthorised Aristocrat game software without the licence or consent of ATA; or (b) procuring, authorising, or acting in concert with, any other person to engage in any such use of the mark without the licence or consent of ATA. Each of Mr Allam and Tonita be restrained whether by its or his servants, agents or otherwise from infringing any of the Game Name Marks by: (a) in the course of any trade applying the mark, or any other mark that is substantially identical with or deceptively similar to the mark, to any EPROM containing unauthorised Aristocrat game software without the licence or consent of ATA; (b) procuring, authorising, or acting in concert with, any other person to engage in any such use of the mark without the licence or consent of ATA. Mr Allam and Tonita be restrained whether by their servants, agents or otherwise from infringing ATA's copyright by: (a) reproducing, in a material form, without the licence or consent of the first appellant, the following works: (i) any Aristocrat game software; (ii) the Design Specification 565875 (Revision B); or (b) procuring, authorising, or acting in concert with, any other person to engage in conduct referred to in sub-para (a) hereof. 186 We also consider it appropriate to make orders against Mr Allam and Tonita requiring them to deliver up to ATA, the following: (a) all EPROMs in their possession, custody or control, that contain a copy of any Aristocrat game software made without the licence or consent of ATA; (b) any compliance plates that reproduce design specification 565875 (Revision B) made without the licence or consent of ATA. 187 There should also be orders for delivery up made against the Global/Impact respondents requiring them to deliver up all EPROMs in their possession, custody or control that contain a copy of any Aristocrat game software made without the licence or consent of ATA to which any one or more of the Game Name Marks has been affixed. 188 We do not consider it necessary or desirable to make the very generally expressed declarations and orders referred to in the notice of appeal. In particular, we decline to grant any injunctive relief that extends to the entire suite of ATA's game software. The form of the copyright injunction to be granted against the Tonita respondents will be confined to those particular copyright works which Mr Allam was found to have infringed. 189 The orders and declarations that we make will include appropriate definitions of the defined terms used therein. 190 In accordance with indications provided to the parties during the hearing of the appeal, we do not propose to make any orders in relation to the Aristocrat parties' appeal against the primary judge's costs orders, Mr Allam's cross-appeal against the primary judge's costs orders, or the costs of the appeal and cross-appeal until each party has been given the opportunity to file written submissions in relation to such matters. 191 There will be orders accordingly. I certify that the preceding one hundred and ninety-one (191) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas, Yates and Wigney. Associate: Dated: 4 March 2016 SCHEDULE OF PARTIES NSD 2154 of 2013 Respondents Fourth Respondent: TONITA ENTERPRISE PTY LTD (ACN 120 737 402) Fifth Respondent: FRANCIS GEORGE BERNARD CRAGEN Sixth Respondent: RIAD ALLAM	28,232
federal_court_of_australia:fca/single/2018/2018fca1039	decision	commonwealth	federal_court_of_australia	text/html	2018-07-06 00:00:00	Nasr v Dixon (Trustee), in the matter of Nasr (Bankrupt) [2018] FCA 1039	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1039	2024-09-13T22:52:22.285458+10:00	FEDERAL COURT OF AUSTRALIA Nasr v Dixon (Trustee), in the matter of Nasr (Bankrupt) [2018] FCA 1039 File number: NSD 1206 of 2018 Judge: THAWLEY J Date of judgment: 6 July 2018 Catchwords: BANKRUPTCY AND INSOLVENCY – where applicant (a bankrupt) seeks orders requiring joint trustees in bankruptcy to consent to applicant travelling overseas – where trustees refuse consent and oppose applicant leaving Australia – whether Court should direct trustees to give consent, and if so, on what terms Legislation: Bankruptcy Act 1966 (Cth) ss 77(1)(a)(ii), 178 (repealed), 272(1)(c); sch 2 ss 90-15, 90-20 Cases cited: Macchia v Nilant (2001) 110 FCR 10 Re Hicks; Ex parte Lamb (1994) 217 ALR 195 Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 Date of hearing: 6 July 2018 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 18 Solicitor for the Applicant: Mr J Arraj of Forward Legal Counsel for the Respondent: Mr R A Parsons Solicitor for the Respondent: SLF Lawyers ORDERS NSD 1206 of 2018 IN THE MATTER OF THE BANKRUPT ESTATE OF ROSTOM NASR BETWEEN: ROSTOM NASR Applicant AND: STEPHEN ROBERT DIXON AND NICK MELLOS AS JOINT AND SEVERAL TRUSTEES OF THE BANKRUPT ESTATE OF ROSTOM NASR Respondent JUDGE: THAWLEY J DATE OF ORDER: 6 JULY 2018 THE COURT NOTES THAT: 1. Upon the applicant by his solicitor undertaking to the Court that in the event the applicant travels to Lebanon pursuant to any consent given in accordance with these orders: (a) he will return to Australia by no later than 9 August 2018 and, as soon as practicable thereafter, return his passport to the respondent; (b) he will during the period in which he is absent from Australia provide to the respondent such information as the respondent may reasonably require in connection with the administration of the applicant's bankrupt estate; (c) he will attend a meeting with the trustee on his return within a reasonable period as requested by the trustee; (d) he will provide security of $20,000 before his departure, which is currently scheduled for 8:00pm this evening, such security to be paid by electronic funds transfer to the following account: HAMILTON MURPHY TRUST BSB: 063-142 Account Number: 10436007 and to be repayable within 14 days of the applicant's return to Australia; (e) he will disclose to the Court his current passport number; and 2. Upon the applicant's solicitor undertaking to the Court: (a) that he will, on the instructions he has been given, accept service on behalf of the bankrupt of examination summonses if issued whilst the bankrupt is overseas; and (b) to pay the filing fee in this matter of $1,565: THE COURT ORDERS THAT: 1. The respondent give to the applicant, by email to the applicant's sister, consent in writing to travel to Lebanon on the condition that the applicant shall return to Australia by no later than 9 August 2018. 2. Each party have liberty to apply on 24 hours' notice. 3. Costs reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THAWLEY J: 1 This proceeding was commenced orally this evening, shortly after 5 pm. The applicant is booked on a flight departing Australia at 8 pm. The application was for an order that the joint trustees in bankruptcy of the applicant's bankrupt estate give the applicant consent in writing for him to depart Australia. There was no formal evidence given on the application. There was no formal originating process. The applicant did not indicate what power this Court had to make the order or refer to any relevant authorities. The reason for this was that the matter arose urgently. 2 For convenience, I refer to the joint trustees in bankruptcy as the trustee. 3 It was said from the bar table, and I accept, that the applicant's grandfather was gravely ill. The applicant's grandfather lives in Lebanon. The applicant, together with his ex-wife and two children, attended the airport with return tickets to Lebanon yesterday evening. The applicant, as a bankrupt, was not allowed to board the flight. The applicant sought the consent of the trustee for his departure from Australia. The trustee declined to give that consent. Over the course of today there were apparently communications between the applicant and the trustee which did not result in such consent being forthcoming. 4 It was said that the applicant had a passport which had expired on 1 January 2016. He had obtained, but not informed the trustee that he had so obtained, a new passport. He had not surrendered that new passport to the trustee. That passport should probably have been given to the trustee: see ss 77(1)(a)(ii) and 272(1)(c) of the Bankruptcy Act 1966 (Cth). The flights to Lebanon were booked on 20 June 2018. 5 It was said from the trustee's side of the bar table that the applicant had been requested, but had refused, to attend interviews with the trustee. On the other hand, it was said from the other side of the bar table that the applicant had been fully cooperative. I have not found it possible to make a finding as to which of those versions is correct and I do not regard it as necessary to reach a conclusion in that regard in the context of this application. 6 It is evident from the submissions that were made that there is a significant degree of distrust on the part of the trustee. This arises from the relationship between the parties and in particular as a consequence of asserted dealings between the applicant and his ex-wife. The relationship with his ex-wife has been described as "on-again, off-again" and, as I understand what was put from the bar table, the ex-wife holds a significant amount of the financial assets which may have once belonged to the applicant. The trustee has indicated that it will shortly issue examination summonses and that those examination summonses may currently be before the Registrar with a view to being issued. 7 The background events appear to be relatively complex but were not the subject of evidence. The trustee opposed the application that it provide consent in writing for the applicant to leave Australia on a number of bases, including: (1) the historical lack of cooperation on the part of the applicant; (2) an asserted materially incomplete provision of information; (3) the fact that the applicant had obtained a new passport but had not surrendered it; (4) that the applicant had been requested to attend a meeting with the trustee but had refused; (5) that the applicant had asserted he had no interest in real estate, which was not accepted by the trustee; (6) that the circumstances of this application, in effect, "smacked of ambush". 8 There is no doubt that the application has unusual features and there is no doubt that the application will have taken the trustee by surprise. However, I am not prepared to find in the particular circumstances and the way in which the application was made, that the applicant's grandfather is not ill and that there is not a genuine reason for the applicant to wish to depart Australia. 9 Section 90-15(1) of Schedule 2 to the Bankruptcy Act provides: The Court may make such orders as it thinks fit in relation to the administration of a regulated debtor's estate. 10 Subsection (2) of s 90-15 provides: The Court may exercise the power under subsection (1): (a) on its own initiative, during proceedings before the Court; or (b) on application under section 90‑20. 11 Although no written application was made to the Court, and no reliance was placed by the applicant on any specific provision of the Bankruptcy Act or otherwise, I have treated the present application as an application made under section 90-20. 12 Previously, s 178(1) of the Bankruptcy Act provided as follows: If the bankrupt, a creditor or any other person is affected by an act, omission or decision of the trustee, he or she may apply to the Court, and the Court may make such order in the matter as it thinks just and equitable. 13 That provision has been considered in numerous cases. Time does not permit an examination of those in detail. However, I have had particular regard to the following: Macchia v Nilant (2001) 110 FCR 101 at [38], per French J; Re Tyndall; Ex parte Official Receiver (1977) 17 ALR 182 at 187, 190-191, per Deane J. 14 In Re Hicks; Ex parte Lamb (1994) 217 ALR 195, Heerey J suggested at 198 that the following three matters are at the forefront of the relevant considerations in an application such as the present: (i) Is the proposed visit genuine? (ii) Is the bankrupt likely to return to Australia as promised? (iii) Will the visit hamper the administration of the estate? 15 Having considered the submissions advanced by the parties and the facts as stated from the bar table, I have concluded as follows. 16 First, I accept that the proposed visit is genuine. 17 Secondly, it seems to me that the applicant is likely to return to Australia as promised. I have had particular regard to the fact that the applicant was prepared to make an undertaking to that effect and has further given, through his solicitor, an undertaking to pay the amount of $20,000 by electronic funds transfer to an account nominated by the trustee prior to his departure, scheduled this evening at 8 pm. 18 Thirdly, it seems to me, in all the circumstances, that the absence of the applicant from Australia until 9 August 2018 is unlikely to hamper the administration of the estate. In that regard, I have also taken into account the fact that the applicant, by his solicitor, has undertaken to attend a meeting with the trustee as soon as the applicant returns. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Thawley. Associate: Dated: 6 July 2018	2,308
federal_court_of_australia:fca/full/2005/2005fcafc0180	decision	commonwealth	federal_court_of_australia	text/html	2005-08-30 00:00:00	McCrea v Minister for Customs and Justice [2005] FCAFC 180	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2005/2005fcafc0180	2024-09-13T22:52:22.537683+10:00	FEDERAL COURT OF AUSTRALIA McCrea v Minister for Customs and Justice [2005] FCAFC 180 EXTRADITION – Request for surrender of alleged fugitive offender from foreign state – Surrender determination by Attorney-General – Where legislation requires an undertaking by virtue of which the offender will not be executed – Whether undertaking given by requesting state - Whether undertaking must be legally enforceable COSTS – Exercise of Court's discretion – Whether Court may take into account the deprivation of liberty of the appellant Acts Interpretation Act 1901 (Cth) s 18C Extradition Act 1988 (Cth) ss 19, 22, 23 Judiciary Act 1903 (Cth) s 39B Cabal v United Mexican States (No 6) [2000] FCA 651 considered McCrea v Minister for Customs and Justice [2004] FCA 1273 affirmed McCrea v Minister for Customs and Justice [2004] FCA 1401 affirmed Te v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 15 considered MICHAEL MCCREA v MINISTER FOR CUSTOMS AND JUSTICE OF THE COMMONWEALTH OF AUSTRALIA V 1323 OF 2004 BLACK CJ, FINKELSTEIN AND FINN JJ MELBOURNE 30 AUGUST 2005 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1323 OF 2004 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL McCREA APPELLANT AND: MINISTER FOR CUSTOMS AND JUSTICE OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: BLACK CJ, FINN AND FINKELSTEIN JJ DATE OF ORDER: 30 AUGUST 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The cross appeal be dismissed. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 1323 OF 2004 ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: MICHAEL McCREA APPELLANT AND: MINISTER FOR CUSTOMS AND JUSTICE OF THE COMMONWEALTH OF AUSTRALIA RESPONDENT JUDGE: BLACK CJ, FINN AND FINKELSTEIN JJ DATE: 30 AUGUST 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT bLACK CJ, FINN and Finkelstein jj: Introduction 1 This appeal is concerned with the construction of s 22 of the Extradition Act 1988 (Cth) ("the Act") in circumstances where extradition has been sought by the Republic of Singapore for crimes that include those punishable by the mandatory penalty of death. The appeal is from an order of a judge of the Court dismissing an application for judicial review of a decision by the Minister for Customs and Justice that the appellant be surrendered to the Republic of Singapore under s 22 of the Act in relation to two charges of murder and one charge of criminal intimidation. Under s 302 of the Penal Code of Singapore, the crime of murder is punishable by penalty of death. 2 Singapore alleges that on or about 2 January 2002, in Singapore, the appellant murdered his driver and his driver's girlfriend and threatened to kill a third person if she revealed his crimes. The appellant then left Singapore and flew to Australia. 3 The particular provision of the Act with which this appeal is concerned is s 22(3)(c)(iii) which provides in substance that where an offence for which extradition is sought is punishable by penalty of death the eligible person is only to be surrendered if, by virtue of an undertaking given by the extradition country to Australia, the death penalty, if imposed on the person, will not be carried out. The whole of s 22, other than the definition provisions of s 22(1), was referred to in argument and is set out later in these reasons. background facts 4 On 31 May 2002, the Government of Singapore, through its Department of the Attorney-General, made a request to Australia for the provisional arrest of the appellant pending a formal request for his extradition to Singapore on two counts of murder and one count of criminal intimidation. 5 On 11 June 2002, the Ministry of Foreign Affairs of Singapore, with the approval of the Cabinet, sought to fulfil the requirements of s 22(3)(c)(iii) of the Act by providing a diplomatic note stating: 'The Ministry wishes to state that Michael McCrea's extradition is being sought on the charge of murder, which is punishable by death under Singapore law. Nevertheless, every condemned prisoner can petition the President of Singapore for an exercise of the prerogative of mercy, who would, under Article 22P of the Constitution of the Republic of Singapore, act on such petitions on the advice of Cabinet. If Michael McCrea is convicted and sentenced to death, and he petitions the President for commutation of the death sentence, the Ministry assures the High Commission that the President will be advised to accede to the petition.' 6 This note was not acceptable to the Attorney-General's Department, which proposed forms of assurance that, in the Department's opinion, would satisfy the requirements of s 22. On 12 June 2002, Singapore sent another diplomatic note, the terms of which were drawn from the forms of assurance submitted by the Attorney-General's Department here. This note relevantly stated: 'The Ministry wishes to inform the High Commission that the Government of Singapore assures the Government of Australia that if the death penalty is imposed on Michael McCrea upon conviction of the offence(s) on which his extradition is sought, the death penalty will not be carried out.' 7 On 13 June 2002, a magistrate in Victoria issued a warrant for the provisional arrest of the appellant, who was then taken into custody. Singapore subsequently submitted its formal request for extradition. 8 On 15 November 2002, a magistrate in Victoria determined that the appellant was eligible for surrender under s 19 of the Act and on 8 September 2003 the respondent Minister, acting as the delegate of the Attorney-General (see Acts Interpretation Act 1901 (Cth), s 18C(1)), determined that the appellant was to be surrendered to Singapore pursuant to s 22(2) of the Act. Having so determined, the Minister executed a surrender warrant pursuant to s 23 of the Act. the decision at first instance 9 The appellant immediately challenged the validity of the Minister's determination and the surrender warrant in proceedings by way of judicial review brought in this Court in reliance upon s 39B(1) and (1A) of the Judiciary Act 1903 (Cth). The ground of the application was that the determination was beyond jurisdiction in that, by reason of the terms of s 22(3)(c) of the Act, the Minister's power to determine that the appellant be surrendered was conditional upon the existence of a valid and enforceable undertaking given by the Republic of Singapore by virtue of which it was objectively established that, if the death penalty was imposed on the appellant, it would not be carried out. It was said that no such undertaking had been given by the Republic of Singapore and that no such undertaking could be given. Consequently, it was said, the determination was beyond power and of no effect and the warrant, being dependent upon the validity of the determination, was a nullity. 10 The learned primary judge saw the central issue as being whether the Act, and specifically s 22(3)(c)(iii), required that, as an objective fact, the death penalty would not be carried out or, as his Honour put it, only that an undertaking be given in the required terms. His Honour found that s 22(3)(c) only required the requesting state to provide an undertaking in the terms set out in the section, and that there was no additional requirement that the undertaking be effective to prevent the execution of the fugitive offender. His Honour considered that the conferral by s 22(3)(f) of a broad overriding discretion upon the Attorney-General pointed to the conclusion that the undertaking need only be in the terms specified and that the efficacy of such an undertaking was a matter that the Attorney-General might consider in exercising the discretion conferred upon him by s 22(3)(f). 11 His Honour considered that the construction that he favoured was indicated by the language of the section, read in the context of the Act as a whole, and in particular, read in the context of Part II of the Act, which concerns extradition from Australia. The judge also took into account related contextual factors, namely that extradition involved international relations, the conduct of which was a function of the executive branch, and that it was to be expected that the Parliament would commit questions of policy and political judgment relating to the surrender of fugitive offenders to the executive branch. 12 In these circumstances the judge considered it unnecessary and undesirable to determine whether the undertaking given by Singapore was valid and enforceable according to the law of Singapore. His Honour went on to note, however, that the contention that the undertaking was not effective did not involve the suggestion that Singapore intended to renege on its promises. Rather, he observed: "The facts placed before the Court leave no doubt that Singapore intends to honour its undertaking." the appeal 13 It will be convenient at this point to set out s 22, omitting the provisions not presently relevant: … (2)The Attorney-General shall, as soon as is reasonably practicable, having regard to the circumstances, after a person becomes an eligible person, determine whether the person is to be surrendered in relation to a qualifying extradition offence or qualifying extradition offences. (3)For the purposes of subsection (2), the eligible person is only to be surrendered in relation to a qualifying extradition offence if: (a) the Attorney-General is satisfied that there is no extradition objection in relation to the offence; (b) the Attorney-General is satisfied that, on surrender to the extradition country, the person will not be subjected to torture; (c) where the offence is punishable by a penalty of death - by virtue of an undertaking given by the extradition country to Australia, one of the following is applicable: (i) the person will not be tried for the offence; (ii) if the person is tried for the offence, the death penalty will not be imposed on the person; (iii) if the death penalty is imposed on the person, it will not be carried out; (d) the extradition country concerned has given a speciality assurance in relation to the person; (e) where, because of section 11, this Act applies in relation to the extradition country subject to a limitation, condition, qualification or exception that has the effect that: (i) surrender of the person in relation to the offence shall be refused; or (ii) surrender of the person in relation to the offence may be refused; in certain circumstances - the Attorney-General is satisfied: (iii) where subparagraph (i) applies - that the circumstances do not exist; or (iv) where subparagraph (ii) applies - either that the circumstances do not exist or that they do exist but that nevertheless surrender of the person in relation to the offence should not be refused; and (f) the Attorney-General, in his or her discretion, considers that the person should be surrendered in relation to the offence. (4) For the purposes of paragraph (3) (d), the extradition country shall be taken to have given a speciality assurance in relation to the eligible person if, by virtue of: (a) a provision of the law of the country; (b) a provision of an extradition treaty in relation to the country; or (c) an undertaking given by the country to Australia; the eligible person, after being surrendered to the country, will not, unless the eligible person has left or had the opportunity of leaving the country: (d) be detained or tried in the country for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender other than: (i) any surrender offence; … (e) be detained in the country for the purpose of being surrendered to another country for trial or punishment for any offence that is alleged to have been committed, or was committed, before the eligible person's surrender to the first-mentioned country, other than any offence in respect of which the Attorney-General consents to the eligible person being so detained and surrendered. (5)Where the Attorney-General determines under subsection (2) that the eligible person is not to be surrendered to the extradition country in relation to any qualifying extradition offence, the Attorney-General shall order, in writing, the release of the person. 14 Senior counsel for the appellant did not contend that the Republic of Singapore did not presently intend to honour the assurance given to Australia, nor did he challenge the primary judge's observation about Singapore's intention to honour it. That, he said, was not the point. The assurance was not an undertaking having the characteristics required by s 22(3)(c) since, for various reasons, it was not enforceable under Singapore law. It was put that the Government of Singapore had no power to offer such an undertaking and could not, in any event, bind itself or the President of Singapore to grant a reprieve or a respite of execution. The effect of the assurance given was, in substance, no more than a promise to pardon by following the procedure provided for by Article 22P(2) of the Constitution of Singapore and, in any case, that procedure was not, or might not be, compatible with the assurance given. 15 Counsel argued that there was a substantial difference between an undertaking that a person will not be executed and an undertaking "by virtue of which" a person will not be executed. The choice of the latter expression pointed to an undertaking that will in fact be effective to prevent the penalty of death from being carried out, by reason of its legal effect. 16 Counsel also argued that the authorities did not support the proposition that the courts should not trespass into this area by examining foreign law and the validity of the acts of foreign governments. It was submitted that while legislation should be construed in conformity with the principles of international comity, this was so only to the extent that the language of the statute permitted, and that it was proper for a court in one jurisdiction to look at the effectiveness of an undertaking or assurance given by the government of another jurisdiction in determining whether a prerequisite to the exercise of the surrender power by the Minister under domestic law had been satisfied. 17 The learned Solicitor-General, appearing for the respondent, argued that there were three possible meanings of the expression "by virtue of" in s 22(3)(c), namely a document that is legally enforceable, a document that will in fact be honoured, and a document that complies with the statutory terms. He argued for the third of these meanings. The statutory terms, he said, did not require an undertaking that was enforceable. DISCUSSION 18 The appellant's contention that the assurance offered by the Government of Singapore was not an "undertaking" of the character required by s 22(3)(c) must be rejected. 19 As noted, it was no part of the appellant's case that the assurance was not in fact given by the Government of Singapore or that it would not in fact be honoured. The appellant's case ultimately comes down to the simple proposition that unless the undertaking is legally enforceable either domestically or internationally (the argument focused upon the legal effect of the undertaking under the law of Singapore) it cannot be an undertaking " by virtue of which" the penalty of death would not be carried out. Absent such a requirement the undertaking in question here can readily be seen as one "by virtue of which" the penalty would not be carried out; that is its evident purpose and the primary judge had no doubt that it would be effective for that purpose. 20 The difficulty with the appellant's argument is that the undertaking provided for by s 22(3)(c) is to be given by one country to another in the context of reciprocal international obligations. Undertakings of such a character are not ordinarily (if at all) enforceable in a domestic court or internationally. No mechanism for enforcement is provided or even suggested in the Act. Moreover, the very concept of an "undertaking" involves an obligation that is deliberate and serious but not necessarily legally enforceable. 21 The subject matter points to the same conclusion. When s 22(3)(c) speaks of an offence "punishable by a penalty of death" and of "the death penalty [being] imposed on the person" it must be taken to be referring to a penalty provided for and imposed by law. Whilst in common law countries following broadly either the Westminster or United States models of representative government, the exercise of the prerogative of mercy or executive clemency may lawfully result in a penalty imposed by law not being carried out, that is not (at least ordinarily) attributable to any legally enforceable obligation to exercise clemency. An "undertaking" by the executive government of such a country "by virtue of which" if the death penalty is imposed upon a person it will not be carried out, is a concept that can readily be understood as having practical content, notwithstanding that it involves no legally enforceable obligation. Specifically, an undertaking by Australia that a death penalty imposed under a Commonwealth law at a time when such a penalty was provided for, could readily be understood as being an undertaking "by virtue of which" the penalty would not be carried out, notwithstanding that such an undertaking to another country would not (conventionally) involve any legally enforceable obligation. Such an undertaking is no less understandable when it is given now to Australia by a country that is an extradition country for the purposes of the Act. 22 The language and scheme of the other provisions of the Act also point to a distinction between an undertaking as something that is not of its nature necessarily legally enforceable and obligations that are. By reason of s 22(3)(d) the giving of a speciality assurance is a prerequisite for extradition but in defining the circumstances in which such an assurance shall be taken to have been given, s 22(4) refers separately and sequentially to circumstances existing by virtue of "a provision of the law of a country", "a provision of an extradition treaty in relation to the country" and "an undertaking given by the country to Australia." The expression "by virtue of" introduces all three paragraphs, notwithstanding their quite different content. When the provision refers to a state of affairs existing "by virtue of…a provision in an extradition treaty" it should not be taken to refer to domestically enforceable rights since this would greatly reduce its effectiveness for, in many extradition countries, provisions of treaties do not give rise to domestically enforceable rights. There is no reason to suppose that when the same introductory expression "by virtue of" is used in relation to an undertaking it bears a meaning that embraces domestically enforceable rights or that the use of "undertaking" in that context embraces such rights. 23 It was argued that s 22(4) should be put to one side, since it is in truth a definition provision. We disagree that its character deprives it of value for present purposes, but in any event precisely the same approach is adopted in the substantive provisions of s 25(2)(a) which concern the issue of a surrender warrant after temporary surrender under s 24 (and see also s 25(2)(b) in relation to the death penalty). 24 This is sufficient to dispose of the appeal since the only ground of challenge to the Minister's decision concerned the enforceability of the undertaking: see [6] above. Given the importance of the provision considered in this appeal, however, we should nevertheless indicate that we do not presently accept as necessarily correct one aspect of the learned primary judge's decision or the submissions of the Solicitor-General in supporting that aspect. 25 It does not follow from the conclusion that a legally enforceable undertaking is not needed that the requirements of s 22(3)(c) will be satisfied merely by the giving of an undertaking that follows the language of the provision and which has been made by a person with appropriate authority. An evident object of s 22(3)(c) is to provide a safeguard against the carrying out of the death penalty upon a person extradited from Australia under the Act. Whilst the object of the provision can be variously stated, the seriousness of the subject matter suggests that it is very unlikely that nothing more than compliance with a verbal formula was intended. Consistently with the object of the provision, there is much to be said for the view that the expression "by virtue of an undertaking" requires that the decision-maker consider whether the undertaking is one that, in the context of the system of law and government of the country seeking surrender, has the character of an undertaking by virtue of which the penalty of death would not be carried out. It would seem unlikely that the object of the provision was intended to be achieved only by the favourable (to the person accused) exercise of the discretion conferred by s 22(3)(f). THE MINISTER's cross appeal against the no costs order 26 The primary judge reserved the question of costs and after hearing argument on that question declined to the make an order for costs in favour of the successful party. He ordered instead that each party bear his own costs. The Minister cross appeals against the no costs order contending that the judge's discretion miscarried and that this Court should substitute an order that the appellant pay the costs of the application. 27 The primary judge published reasons for his decision about costs. Noting that the Court had an unfettered discretion in relation to costs but that the discretion must be exercised judicially, his Honour observed that the circumstance that the proceeding was a challenge to the Minister's decision to surrender the appellant for extradition could not alone be determinative of the question of costs. He considered however that there were policy considerations attending such applications that deserved careful consideration. The policy considerations were those referred to by Goldberg J in Cabal v United Mexican States (No 6) (2000) 174 ALR 747 at [21] and [22] in the context of bail applications in an extradition case. They included the view that a person detained by authority of the State should not be deterred by a potential costs order from seeking his liberty. 28 His Honour concluded that the arguments raised by the appellant did not lack substance and were deserving of careful consideration and that both the nature of the case and the arguments raised made it appropriate to make no order as to costs. 29 The respondent contended that in approaching the matter in this way the primary judge sought to apply a supposed general principle that persons detained against their will should not have any impediment put in their way, such as would inhibit their seeking their liberty. As the Solicitor-General contended, there is no such general principle in cases of this nature. This was made clear by the observations of the Full Court in Te v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 204 ALR 497 at 515-516 where it was held that a judge had erred in the exercise of his discretion by applying the "principle" referred to by Goldberg J in Cabal as though it were a rule rather than a factor relevant to the exercise of the discretion: see too Ruddock v Vardarlis (No 2) (2001) 115 FCR 229 at 234; 188 ALR 143 at 147 per Black CJ and French J, cited in Te at 515. 30 Whilst the judge evidently placed substantial emphasis upon the considerations referred to in the costs decision in Cabal, we are not persuaded that he relied upon them otherwise than as factors to be taken into account in the exercise of his discretion. Having recognised that costs should ordinarily follow the event the judge was persuaded that there were factors in the present case that pointed to a different result. The circumstance that the penalty for two of the crimes for which extradition is sought is death, even though it is not suggested that Singapore would not honour its undertaking, was no doubt encompassed by his Honour's reference in his reasons to "the nature of the case." 31 Views may differ about whether the costs order in the present case was justified, but that is not the point. What is in question is the exercise of a judicial discretion and we are not persuaded that it miscarried. The cross appeal should be dismissed. costs OF THE APPEAL 32 The costs of the appeal should follow the event. The cross appeal added very little to the time or cost of the hearing or of the appellate proceedings generally and we would make no order for costs on the cross appeal. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Black and the Honourable Justices Finkelstein and Finn. Associate: Dated: 30 August 2005 Counsel for the Appellant: Gerard Nash Solicitor for the Appellant: Grundy Maitland & Co Counsel for the Respondent: Garry Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 24 February 2005 Date of Judgment: 30 August 2005	5,356
federal_court_of_australia:fca/single/1999/1999fca0467	decision	commonwealth	federal_court_of_australia	text/html	1999-09-03 00:00:00	Moimoi v Minister for Immigration & Multicultural Affairs [1999] FCA 467	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1999/1999fca0467	2024-09-13T22:52:23.039020+10:00	FEDERAL COURT OF AUSTRALIA Moimoi v Minister For Immigration & Multicultural Affairs [1999] FCA 467 PAULO MOIMOI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS 3 SEPTEMBER 1999 WHITLAM J IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 559 OF 1999 BETWEEN: PAULO MOIMOI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WHITLAM J DATE OF ORDER: 3 SEPTEMBER 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 559 OF 1999 BETWEEN: PAULO MOIMOI Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: WHITLAM J DATE: 3 SEPTEMBER 1999 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The respondent ("the Minister") applies for an order for dismissal pursuant to O 20 r 2 of the Federal Court Rules. His motion has been heard today in the absence of the applicant who was present in court when the hearing was fixed on 19 August 1999. The applicant's failure to appear is unexplained. 2 This proceeding was commenced on 11 June 1999. The applicant seeks review under s 476 of the Migration Act 1958 ("the Act") of a decision of the Immigration Review Tribunal ("the Tribunal") given on 18 May 1999. The Tribunal affirmed a decision of the Minister's delegate refusing to grant the applicant a visa. 3 At the first directions hearing, on 22 July 1999, the applicant appeared in person, accompanied by a Mr Fonua, who sought leave to appear for the applicant. The applicant is a Tongan national, but he speaks English and I formed the impression that he was perfectly well able to understand what I was saying to him. I did not give Mr Fonua, who is not a lawyer or a migration agent, leave to appear for the applicant. Indeed there was no material before me which indicated any basis on which Mr Fonua might be given leave to appear, such as that he was a legitimate representative of an association of individuals who might have some interest in common with the applicant, or that he was a person more able to make a case on behalf of the applicant. 4 The application for an order of review stated six grounds, only three of which can be readily fitted into the framework of s 476(1) of the Act. Ground one alleged an error of law, ground two that procedures required by the Act or regulations were not observed, and ground three that the decision was induced by fraud, bad faith or actual bias. 5 At the first directions hearing the matter was stood over for further directions on 19 August, in order to give the Minister an opportunity to consider whether he wished to apply for summary dismissal of the proceeding. A notice of motion for summary dismissal was subsequently filed by the respondent and, as I have said, fixed for hearing today. The applicant has filed no evidence in opposition to the motion. Besides the reasons for decision of the Tribunal, the only other evidence received on the hearing of the motion was an affidavit by Murray John Allatt, the solicitor with the carriage of the matter on behalf of the Minister. I shall return to the contents of that affidavit. 6 So far as the first ground alleging an error of law is concerned, I need only say that I think the analysis of the law by the Tribunal in its decision is impeccable and there is nothing stated by way of particulars that suggests any error at all. Nor, so far as the second ground is concerned, are any particulars provided of procedures that it is alleged were not observed. 7 That leaves only the third ground, that the decision was induced by fraud, bad faith or actual bias. The particulars of that allegation are set out in two numbered paragraphs which state: (1) The applicant was denied access to a scheme relating to unlawful non-citizens which the Minister and his officers had granted 2705 offshore applicants with bridging visas to remain in Australia while a resident visa application was processed overseas in breach of clause 3001 and 3002 involved fraud, bad faith or actual bias. (2) The respondent and his department failed to follow its own policy in accordance with Migration Series Instruction MSI No. 121 effective 8 September 1995 in relation to clause 3001 clause 3002 involved fraud, breach and actual bias. 8 Mr Allatt's affidavit shows that exactly the some ground was relied on in another application under the Act by a Tongan national, Hiva Faleafa. Mr Allatt annexes to his affidavit the Minister's submissions in that case. It is not necessary to set out that material. That proceeding was the subject of a contested hearing before Einfeld J on 2 August 1999. The application was dismissed: [1999] FCA 1091, and I need only say that what his Honour said in that case applies mutatis mutandis in the present case. 9 All the grounds relied on by the applicant are, in my view, entirely hopeless. No reasonable basis for the application is disclosed, and the Minister is entitled to have the proceeding summarily dismissed. The applicant's unexplained failure to appear today may also provide a basis to dismiss his application, but I emphasise that I am disposing of the proceeding by making the orders sought in the Minister's motion. 10 The application will be dismissed with costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam. Associate: Dated: 15 September 1999 There was no appearance by the applicant. Mr MJ Allatt, solicitor, of the Australian Government Solicitor appeared for the respondent. Date of hearing: 3 September 1999 Date of judgment: 3 September 1999	1,369
federal_court_of_australia:fca/single/1995/1995fca0677	decision	commonwealth	federal_court_of_australia	text/html	1995-08-23 00:00:00	J Hutchinson Pty Ltd v Contractors Inc Pty Ltd [1995] FCA 677	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1995/1995fca0677	2024-09-13T22:52:24.837942+10:00	CATCHWORDS PRACTICE AND PROCEDURE - Costs - application for indemnity costs after statutory demand set aside under s.459G of the Corporations Law. Corporations Law ss.459G, 459H Minahcroft Pty. Ltd. v. Allan Richard Taylor (Unreported, Cooper J, 11 April 1994) - Foll. J Hutchinson Pty. Ltd. v. Contractors Incorporated Pty. Ltd. No. QG3010 of 1995 Cooper J., Brisbane, 23 August 1995 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent JUDGE MAKING ORDER:Cooper J. WHERE MADE: Brisbane DATE OF ORDER: 23 August 1995 MINUTES OF ORDER THE COURT ORDERS THAT: The application for indemnity costs be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION No. QG3010 of 1995 BETWEEN: J HUTCHINSON PTY LTD ACN 009 778 330 Applicant AND: CONTRACTORS INCORPORATED PTY LTD ACN 010 908 059 Respondent CORAM: Cooper J. PLACE: Brisbane DATE: 23 August 1995 REASONS FOR JUDGMENT After I gave judgment in this matter setting aside a statutory demand issued by the respondent, an application was made for indemnity costs. I have been referred to a decision of Heerey J in Felkro Nominees Pty. Ltd. v. Autissue Pty. Ltd. (1993) 11 ACLC 1142 which confirms the jurisdiction to award costs where a notice has been successfully set aside. I have also been referred to a decision of Hoffman J in the Chancery Division (Companies Court) in Re A Company [1992] 2 All E.R. 797 which, according to the headnote, held that :- "It is an abuse of process to present a winding up petition against a solvent company as a means to putting pressure on it to pay money which is bona fide disputed, instead of applying for summary judgment ... and the court will in those circumstances issue an injunction restraining presentation of the petition and may penalise the petitioner in costs." In respect of the granting of an order for indemnity costs where a statutory demand was set aside under the Corporations Law, I was referred to an unreported decision of Shepherdson J of the Supreme Court of Queensland in Re James Markus Holdings Pty Ltd given on 16 August 1993. In that case his Honour uses the wrongful issuing and serving of a winding up petition as analogous to the wrongful issuing and serving of a statutory demand under the provisions of the Corporations Act 1989 as the basis for the granting of indemnity costs. I am not immediately persuaded that the reasoning applicable to the presentation of a petition to wind up a company as an abuse of process is necessarily transferable to the issuing of a statutory demand under the new provisions of the Corporations Law as they relate to the issuing of statutory demands. In this case the statutory demand was issued on 23 June 1995. One of the major components of the debt claimed relates to retention money. Whether or not there was a dispute in relation to the proper construction of at least the written contract became irrelevant in the circumstances of this case because of a meeting which occurred on 20 July 1995 after the issue and service of the statutory demand. At that meeting it is alleged that there was a without prejudice agreement made as to payment of retention money in exchange for a bank guarantee. It was the compromise in relation to the issue of retention money which ultimately I found to be a matter of bona fide dispute between the parties and it was on that basis that no monies became payable under the statutory demand on account of retention money. That money composed a substantial part of the demand. So far as the other items are concerned, $989.44 was admitted but notpaid and has remained payable throughout. The other item which was in issue was the balance due on the re-measurement under the Schedule of Rates of items involving a sum of around $19,000.00. On my findings, that claim was first advanced on or about 21 June 1995 immediately before the issue of the statutory demand. It had not been considered and rejected at the time of the issue of the demand. Section 459H of the Corporations Law makes provision for amendment of the statutory demand to reflect the substantiated amount of a debt or debts. It contemplates that there will be disputes as to the whole or part of the debt alleged to underlie any statutory demand and that those will be litigated in accordance with the criteria set out in the Corporations Law and the cases I referred to in my earlier reasons. In those circumstances I see nothing in this case which would take it out of the ordinary range of cases which will come up for decision before the court. There is nothing in the circumstances which would otherwise suggest that the circumstances justifying the award of indemnity costs arise. In Minahcroft Pty. Ltd. v. Allan Richard Taylor (Unreported, Cooper J, 11 April 1994) I said (at p.2 of my reasons) :- "The relevant principles for the awarding of indemnity costs are set out in the judgment of Woodward J in Fountain Selected Meats (Sales) Pty. Ltd. v. International Produce Merchants Pty. Ltd. (1988) 81 ALR 397, and in the judgment of Rogers J in Singleton v. Macquarie Broadcasting Holdings (1991) 24 NSWLR 103. In my view the mere bringing of proceedings which fail or are doomed to failure does not of itself constitute the special circumstances referred to by Woodward J at page 401 of the report. When one reads what he says there in context, it is the ignoring of proper advice that the action had no chance of success which gives rise to a presumption that the proceedings were commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts, or the clearly established law. As Woodward J says: `Such cases are fortunately rare'. Earlier in his judgment (at 400) his Honour refers to his decision in Australian Transport Insurance Pty. Ltd. v. Graeme Phillips Road Transport Insurance Pty. Ltd. (1986) 71 ALR 287 at 288, where he makes clear that before an order will be made on an indemnity basis, there has to be some special or unusual feature to justify the court in exercising its discretion in that way, and cites, for example, cases of fraud being made and not sustained." In the exercise of my discretion I do not propose to award indemnity costs. THE COURT ORDERS THAT: The application for indemnity costs be dismissed. I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Justice Cooper. Date: 23 August 1995 Associate Counsel for the Applicant: Mr. P. Freeburn Solicitors for the Applicant: Phillips Fox Counsel for the Respondent: Mr. D.R.M. Murphy Solicitors for the Respondent: Bain Gasteen Date of Hearing: 23 August 1995 Place of Hearing: Brisbane Date of Judgment: 23 August 1995	1,655
federal_court_of_australia:irc/1997/1997irca0146	decision	commonwealth	federal_court_of_australia	text/html	1997-04-16 00:00:00	CHALMERS v DEAKIN UNIVERSITY [1997] IRCA 146	https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1997/1997irca0146	2024-09-13T22:52:25.874053+10:00	DECISION NO:146/97 CATCHWORDS INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT - UNLAWFUL TERMINATION - VALID REASON - OPERATIONAL REQUIREMENTS - CONDUCT AND PERFORMANCE - employee unable to discharge duties due to PHYSICAL DISABILITY - employee seeking to exhaust sick leave entitlements before transfer to SUPERANNUATION benefit - offer to pay out entitlements refused - employer terminating employment in belief that employee would have greater benefit entitlement - COSTS - whether proceeding instituted "without reasonable cause" - relevance of offers made prior to termination of employment. Workplace Relations Act 1996 (Cwth) ss170DE, 347 State Superannuation Act 1988 (Vic.) Accident Compensation Act 1985 (Vic.) Universities and Post Compulsory Academic Conditions Award 1995 Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257. CHALMERS v DEAKIN UNIVERSITY VI96/1908 Before: MURPHY JR Place: MELBOURNE Date: 16 APRIL 1997 IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/1908 BETWEEN: ALAN DOUGLAS CHALMERS Applicant AND DEAKIN UNIVERSITY Respondent BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 16 APRIL 1997 MINUTES OF ORDERS THE COURT ORDERS THAT: [1] The application is dismissed; [2] The applicant by 15 July 1997, pay the respondent's costs fixed at $6,500. Note: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI96/1908 BETWEEN: ALAN DOUGLAS CHALMERS Applicant AND DEAKIN UNIVERSITY Respondent BEFORE: MURPHY JR PLACE: MELBOURNE DATE: 16 APRIL 1997 REASONS FOR DECISION Delivered ex tempore The applicant seeks a remedy under s170EA of the Workplace Relations Act 1996 (Cwth) ("the Act"). He alleges that when the respondent, by letter dated 8 December 1995, terminated his position effective 7 June 1996, it did not have a valid reason to do so. Background. The history of the letter of 8 December 1995 (Exhibit R14) goes back some years. The applicant was employed by a predecessor of the respondent. When in 1992 the respondent became the successor of his then employer, the applicant, due to what was accepted by WorkCover as a work related injury, was incapacitated for work. It was common ground between the applicant and the respondent that from 1992 until 1996 the applicant remained totally incapacitated for duties and was unable to assume his duties at the respondent. The applicant was paid workers compensation, including make-up pay for the first twelve months. Then ensued an exchange of correspondence between the applicant and the respondent as the respondent sought to bring the applicant's status with it to some finality. That finality was the six months notice issued in the letter dated 8 December 1995. Before that letter was issued there was a deal of correspondence between the parties in relation to the applicant's entitlements under the State Superannuation Act 1988 (Vic.) and under the Accident Compensation Act 1985 (Vic.). Various attempts to resolve matters between the parties also ensued, including offers made by the respondent to the applicant in relation to his outstanding entitlements. These offers included an offer at one stage to pay out all the applicant's sick leave entitlements in order to allow the applicant, under a rule then prevailing and administered by the Victorian Superannuation Board ("the Board"), to assume a disability benefit under the State Superannuation Act. A particular sticking point was that the Board required all sick leave entitlements to be extinguished before that disability benefit was payable. The discussions between the parties, at least from the respondent's point of view, were reiterated in a letter to the applicant dated 2 June 1995 (Exhibit R7) which confirmed that the applicant at that time was receiving sixty-five per cent of his salary under the WorkCare / WorkCover legislation. It noted that the respondent had investigated the applicant's eligibility for an ill-health pension from the Board, and that while the applicant was on WorkCover benefits he was not eligible for such a benefit. The letter further stated: "in order to resolve this issue the University offered you a lump sum payment of one year's salary which was rejected by you. This offer was made on the basis that your acceptance of the lump sum would have effectively cleared the way for an application by you for the ill-health pension benefit from the State Superannuation Board." The letter indicated that the respondent was not prepared to move from that position. On 14 July 1995 the respondent advised the applicant (Exhibit R9) that it had been advised by the Board that the applicant had been approved for retirement and a disability retirement benefit. The applicant replied to that letter (Exhibit R10) saying that it was a matter for him as to whether he accepted that benefit from the Board. On 22 August 1995 the respondent wrote to the applicant (Exhibit R11) confirming the advice it had received from the Board in relation to a grant of a disability benefit, further advising that the respondent had received advice that should the applicant accept the disability benefit he would be paid seventy per cent of his salary and that the WorkCover benefits would top up his salary by a further twenty-five per cent making a total benefit of ninety-five per cent. The letter noted that that proposal would appear to be the most advantageous to the applicant. The letter also noted that the respondent presumed that the applicant would not transfer to sick leave prior to accepting the disability benefit. The applicant did not accept the proposal at that stage and subsequently action was put in train to terminate the applicant's employment under Clause 16 of the Universities and Post Compulsory Academic Conditions Award 1995 ("the Award"). That clause provides that the Chief Executive Officer may terminate employment by giving, in circumstances where medical examination reveals that the staff member is unable to perform his or her duties, a period of six months' notice. That notice was dated 8 December 1995 (Exhibit R14). The letter was stamped at the Sorrento Post Office on 16 December 1995; it is not clear when the letter was actually delivered into the postal system. The letter also reiterates an earlier offer of an ex gratia payment equivalent to twelve months salary and further confirms the offer from the Board. The letter states that the respondent has advised the Board of its actions. The applicant wrote back to the respondent (Exhibit A2) after receiving that letter disputing the decision to terminate his employment and querying what had changed that had caused the respondent to take the action it did. On 11 January 1996 the respondent replied (Exhibit A3) that it relied on clause 16(e) of the Award which provided that it was entitled to give six months' notice. Subsequently the applicant was paid his outstanding entitlements for annual leave and long service leave. He was not paid his outstanding sick leave entitlements. Valid Reason. The respondent contends that it had a valid reason based on its operational requirements to terminate the applicant's employment. That reason was that the applicant was unable to discharge the duties of his position, the respondent believed it was in the applicant's interests that his employment be terminated, and further it would allow the respondent to fill the position that the applicant nominally held. The applicant's contention in his evidence was that as a result of the actions of the respondent he suffered substantial losses. This was because, contrary to the respondent's advice to him prior to the termination, the top up arrangement in relation to his Board pension and workers compensation did not occur. He further alleged that he lost the three hundred days accrued sick leave that he had at the time of the termination, and he had lost the right to future accrued annual, long service and sick leave. The authorities in the court indicate that the employer must show that the decision to terminate employment was a logical response to its operational requirements or was based on the employee's conduct or performance. Here the decision to terminate the applicant's employment could be said to be based on both the applicant's capacity, and on the respondent's operational requirements. The applicant's capacity was incapacity: he was unable to perform his duties. The respondent's operational requirements were that the applicant was not in a position, nor was it ever expected that he would be in a position, to be a productive member of its staff. Therefore there was no reason why he should remain a staff member and thus it was entitled under the terms of the Award to terminate his employment. On the other hand, the applicant asserts that the consequences of the respondent taking the action it did were his loss of accrued sick leave, and the failure to achieve, by the combination of the WorkCover and the Board disability benefit, ninety-five per cent of his previous salary, as envisaged in the letter of 22 August 1995 (Exhibit R11). The respondent's response to this was that the applicant's position under the WorkCover legislation and under the Board resulted from the operation and interaction of those two legislative schemes and not from its own actions: to the extent that the applicant has not achieved the advantageous benefits envisaged in the letter of 22 August, this did not deprive the respondent's decision of its validity under s170DE of the Act. It further submitted that the applicant's request to be able to access his sick leave to the full, and then revert to workers compensation, or to use the sick leave to top up the workers compensation payments, was unable to be achieved because the policy of the respondent was to either have staff on WorkCover or on sick leave. The respondent offered the applicant the option of reverting to sick leave in order to be paid, or to utilise his outstanding sick leave entitlements, but he refused. Mr Wotherspoon gave unchallenged evidence that that offer was made to the applicant and was rejected by him. The applicant gave evidence that he was never made that offer. On this conflict I accept Mr Wotherspoon's evidence. It is clear that the respondent was in somewhat of a difficult situation in that the applicant was seeking to have it both ways by remaining on its books as an employee and seeking to access the outstanding sick leave, yet maintaining his workers compensation rights. From the applicant's point of view that is a not unreasonable stance to take. The question is whether or not the decision of the respondent, following the letter of 22 August 1995, to proceed to terminate the applicant's employment under the Award was deprived of validity by the disadvantageous impact on the applicant of him no longer being employed by the respondent. I should mention that the applicant also alleges that his terms of employment were not strictly governed by the Award, but also included his original terms of employment, which were the terms and conditions of employment of academic staff employed in affiliated colleges of the Victoria Institute of Colleges (Exhibit A4). Those terms provide for three months' notice of termination of employment, but also provide for a staff member to make a submission to the college council in the event that his or her employment has been terminated. The respondent's response to the suggestion that the applicant's employment was governed by the provisions of the document was that as a result of transitional provisions associated with the amalgamation of the applicant's employer into the respondent, the applicant's employment was governed by the Award. The evidence in relation to the way that Exhibit A4 remained incorporated into the applicant's contract of employment was unsatisfactory. It is difficult to find, in any event, that the applicant has sought to invoke the appeal rights under clause 6.2. Further, the provisions of the Award providing for six months' notice of termination are in a sense more advantageous to the applicant that three months' notice of termination provided in those terms and conditions. On this issue I prefer the evidence of Mr Wotherspoon that the transitional provisions of the Award do provide that the applicant's terms and conditions of employment were governed by that Award and not by some earlier contract of employment with a predecessor organisation. In any event, if I am wrong about this, it does not alter my ultimate conclusion as to whether or not the respondent had a valid reason to terminate the applicant's employment. Conclusion. I am satisfied that the respondent has made out its onus of proof that it had a valid reason to terminate the applicant's employment. The volume of correspondence between the parties illustrates that at all times the respondent was attempting to allow the applicant to utilise various accrued entitlements, and other entitlements under the WorkCare legislation and the superannuation legislation. Further, the respondent had, given the applicant's physical condition and inability to return to his position, a legitimate interest in seeking to finalise his employment status. The respondent did not rush to judgment on that matter. The applicant had been in that predicament from 1992 to December 1995 when his employment was terminated by notice . I am not satisfied that any financial disadvantage that was suffered by the applicant as a result of the termination of his employment deprives the respondent's decision of the defensible quality that is required under the Act. Clause 16(h) of the Award specifically provides that the provisions relating to termination of employment on the grounds of ill health are not to displace or override any existing workers compensation schemes. That is a clear indication in the Award that employers are entitled to terminate employment on the grounds of ill health under clause 16, but that the provisions of the Award do not effect any statutory entitlements under a workers compensation scheme. The applicant has not satisfied me that any financial disadvantage to him has arisen as a result of the employer's action, as distinct from the operation of either the WorkCover legislation or the State Superannuation legislation. In characterising the respondent's reason for termination here, I also note the open offers that were made to the applicant in the course of the events leading up to the letter of 8 December 1995. These include the offer of one year's salary made in the letter and the earlier offer made in the letter of 2 June 1995. The applicant may have rejected those offers, but the fact that they were made is relevant to determining whether or not the respondent has satisfied the Court that it had a valid reason, based on its operational requirements, to terminate the applicant's employment. I am satisfied that the respondent did have such a valid reason and that the application must be dismissed. Costs. This Court rarely makes orders for costs against unsuccessful parties. The test under s347 of the Act is that a proceeding be instituted "without reasonable cause". In Kanan v Australian Postal and Telecommunications Union (1992) 43 IR 257, Wilcox J, as he then was, said at 264-5: "It seems to me that one way of testing whether a proceeding is instituted "without reasonable cause" is to ask whether, upon the facts apparent to the applicant at the time of instituting the proceeding, there was no substantial prospect of success. If success depends on the resolution in the applicant's favour of one or more arguable points of law, it is inappropriate to stigmatise the proceeding as being "without reasonable cause". But where, on the applicant's own version of the facts, it is clear that the proceeding must fail, it may properly be said that proceeding lacks a reasonable cause. That is a situation in the present case. The qualification of s347 applies. The Court has power to order costs against the applicant. I see no discretionary reason to withhold such an order. It is not a matter of the applicant's motives but, rather, that he has put the respondent to the expense of resisting a claim that always doomed to failure. There is no question of punishing the applicant for his unreasonable course of action. The rationale for making a costs order is that a measure of indemnity should be conferred upon the respondent for the costs it has been obliged to incur in responding to the unreasonably instituted proceeding." Here, on the applicant's own version of the facts, he was doomed to fail because it was accepted, at all times from 1992 onwards, that he was unable, for medical reasons, to discharge the duties of his office at the respondent. That was common ground between the parties. There was then extensive negotiation between the parties to attempt to bring the matter to finality. That included offers, confirmed in writing, on 2 June and 8 December 1995 of an ex gratia payment equivalent to twelve months salary. The applicant chose not to accept those offers and a further offer, in Mr Wotherspoon's evidence, of payment out of his outstanding sick leave entitlement to allow him to access the disability pension of the Board. The background of those offers, and the background of the applicant's total incapacity for work are relevant to whether or not, on the applicant's own version of the facts, he had any arguable case to impugn the validity of the reason of the respondent to terminate his employment. I am satisfied that on the facts known to the applicant when on 5 June 1996 he instituted the proceedings, his proceedings must be characterised as being without reasonable cause. Therefore the prohibition against an order of costs under s347 does not apply. I accede to the respondent's request for an order for costs against the applicant. I certify that this and the preceding eight (8) pages are a true copy of the reasons for decision of Murphy JR as recorded on transcript and revised by the Judicial Registrar. Associate: KAREN HALSE Dated: 16 April 1997 APPEARANCES Solicitor for the applicant: KEITH A ELLIOTT Counsel appearing for the respondent: MR S STUCKEY Solicitor for the respondent: RONALD HICKS Date of Hearing: 16 APRIL 1997 Date of Judgment: 16 APRIL 1997	3,791
federal_court_of_australia:fca/single/1998/1998fca0904	decision	commonwealth	federal_court_of_australia	text/html	1998-07-28 00:00:00	Muangnoi, Phacharee v Minister for Immigration & Ethnic Affairs [1998] FCA 904	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1998/1998fca0904	2024-09-13T22:52:28.963244+10:00	IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 397 of 1998 BETWEEN: PHACHAREE MUANGNOI Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGe: SACKVILLE J. DATE: 28 JULY 1998 PLACE: SYDNEY REASONS FOR JUDGMENT HIS HONOUR: In this matter, the respondent, to whom I shall refer as the Minister, proceeds by way of a notice of motion filed on 20 July 1998 seeking an order that the application be dismissed and that the applicant pay the respondent's costs of the proceedings. The application is brought pursuant to Federal Court Rules, O 10 r 3(2) which provides as follows: "3(2) If no applicant appears before the Court on a directions hearing the Court may dismiss the application or make any other order which it thinks proper. The history of this matter insofar as is relevant, is as follows. On 17 April 1998 the Refugee Review Tribunal made a decision affirming a decision of the delegate of the Minister not to grant a protection visa to the applicant. The Tribunal's reasons reveal that it wrote to the applicant at the address for service given in her application for review, advising that it had considered all the papers relating to the application but that it was unable to make a favourable decision on that information alone. The applicant was invited to give oral evidence before the Tribunal. The applicant was also advised that if she did not contact the Tribunal within a specified period, the hearing would not take place and a decision would be made on the evidence available to the Tribunal. The applicant did not attend the Tribunal hearing scheduled for 17 April 1998. The Tribunal proceeded then to deal with the applicant's application for review and made the determination to which I have already referred. The applicant sought an order reviewing the decision of the Refugee Review Tribunal in this Court. Her application was filed on 30 April 1998. The application states that the applicant's address for service is 119 John Street, Cabramatta NSW 2166. The application provides no details of the grounds upon which the applicant seeks review of the Tribunal's decision. In substance, it merely asserts that the applicant is a person to whom s 36(2) of the Migration Act 1958 (Cth) applies, in that she is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees. The matter came first before this Court on 29 May 1998, when it was listed for a directions hearing before another Judge. There was no appearance by the applicant at the directions hearing. The Judge ordered that the matter be stood over for further directions on 18 June 1998. On 2 June 1998, the solicitor for the Minister wrote to the applicant at her address for service, informing her that the matter had been stood over for directions on 18 June 1998. The letter advised that the applicant should attend in person if she did not have a legal representative. She was informed that, if no appearance was made, the Court might entertain an application by the Minister that her application be dismissed with costs. On 5 June 1998, the solicitor received a telephone call from a person who identified himself as a friend of the applicant. In that conversation, the solicitor informed the friend that the matter was listed on 18 June 1998. The friend also indicated in the conversation that the letter of 2 June 1998 had been received. The matter was again before the Court on 18 June 1998 as scheduled. Again, there was no appearance on behalf of the applicant on that occasion. The Minister made no application for the matter to be dismissed. However, the Minister subsequently caused to be served on the applicant the notice of motion seeking dismissal of the proceedings and the affidavit in support thereof. That service took place, according to the evidence of the process server, on 21 July 1998 at the applicant's address for service, namely, 119 John Street, Cabramatta. In these circumstances, it seems to me that the applicant has clearly demonstrated that she is not willing to take the steps required in order to pursue her application for review of the Tribunal's decision. This is the third occasion upon which she has failed to appear in this Court. Her non-appearance today is despite the fact that she was served with a notice of motion and an affidavit in support indicating that the Minister would seek to have the proceedings dismissed if she did not appear. Since there has been no appearance and no explanation for her failure to appear, the appropriate course in my view is for the proceedings to be dismissed. Accordingly, I make the following orders: (1) The application be dismissed. (2) The decision of the Refugee Review Tribunal made on 17 April 1998 be confirmed. (3) The applicant pay the respondent's costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville Associate: Dated: 28 July 1998 Applicant: Unrepresented Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 28 July, 1998 Date of Judgment: 28 July, 1998	1,139
federal_court_of_australia:fca/single/2019/2019fca1756	decision	commonwealth	federal_court_of_australia	text/html	2019-10-30 00:00:00	Sceghi on behalf of the Kultju Native Title Claim Group v State of Western Australia [2019] FCA 1756	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca1756	2024-09-13T22:52:31.588467+10:00	FEDERAL COURT OF AUSTRALIA Sceghi on behalf of the Kultju Native Title Claim Group v State of Western Australia [2019] FCA 1756 File number: WAD 225 of 2018 Judge: COLVIN J Date of judgment: 30 October 2019 Catchwords: NATIVE TITLE - determination of native title by consent pursuant to s 87 of the Native Title Act 1993 (Cth) - where statutory requirements satisfied - where appropriate to make orders - orders made Legislation: Native Title Act 1993 (Cth) ss 55, 56, 57, 87, 213, 225 Cases cited: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 Freddie v Northern Territory [2017] FCA 867 Lander v State of South Australia [2012] FCA 427 Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2012) 214 CLR 422 Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 Ward v State of Western Australia [2006] FCA 1848 Date of hearing: Determined on the papers Registry: Western Australia Division: General Division National Practice Area: Native Title Category: Catchwords Number of paragraphs: 15 Solicitor for the Applicant: Mr M O'Dell of the Central Desert Native Title Services Ltd Solicitor for the State of Western Australia: Ms S Begg of the State Solicitor's Office Solicitor for the Central Desert Native Title Services Ltd Ms C Araujo of the Central Desert Native Title Services Ltd Solicitor for BHP Billiton Nickel West Pty Ltd Ms S Audeyev of King & Wood Mallesons ORDERS WAD 225 of 2018 BETWEEN: KEITH SCEGHI, COLLEEN JANE BERRY, DANNY BRETT ULRICH & SANDRA WONGAWOL Applicant AND: STATE OF WESTERN AUSTRALIA, CENTRAL DESERT NATIVE TITLE SERVICES LTD & BHP BILLITON NICKEL WEST PTY LTD Respondent JUDGE: COLVIN J DATE OF ORDER: 30 OCTOBER 2019 THE COURT ORDERS THAT: 1. There be a determination of native title in terms of the attachment to these orders. 2. Kultju (Aboriginal Corporation) (ICN: 9147) shall hold in trust the rights and interests from time to time comprising the determined native title for the native title holders pursuant to s 56(2)(b) of the Native Title Act 1993 (Cth). 3. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ATTACHMENT DETERMINATION THE COURT ORDERS, DECLARES AND DETERMINES THAT: Existence of native title (s 225) 1. Native title exists in relation to the whole of the Determination Area. Native title holders (s 225(a)) 2. The native title in the Determination Area is held by the persons described in Schedule 2 (native title holders). The nature and extent of native title rights and interests (s 225(b)) 3. Subject to orders 4 to 6, the nature and extent of the native title rights and interests in relation to the Determination Area are the following rights or interests: (a) the right to access, remain in and use that area; (b) the right to access, take and use the resources of that area for any purpose; (c) the right to engage in spiritual and cultural activities in that area; and (d) the right to maintain and protect places of significance on that area. Qualifications on native title rights and interests (s 225(b); 225(e)) 4. The native title rights and interests in order 3 do not confer possession, occupation, use and enjoyment of the Determination Area on the native title holders to the exclusion of all others. 5. The native title rights and interests are subject to and exercisable in accordance with: (a) the traditional laws and customs of the native title holders; and (b) the laws of the State and the Commonwealth, including the common law. 6. Notwithstanding anything in this Determination: (a) there are no native title rights and interests in the Determination Area in or in relation to: (i) minerals as defined in the Mining Act 1904 (WA) (repealed) and the Mining Act 1978 (WA); or (ii) petroleum as defined in the Petroleum Act 1936 (WA) (repealed) and in the Petroleum and Geothermal Energy Resources Act 1967 (WA); or (iii) geothermal energy resources and geothermal energy as defined in the Petroleum and Geothermal Energy Resources Act 1967 (WA); and (b) the nature and extent of native title rights and interests in relation to water in any watercourse, wetland or underground water source as defined in the Rights in Water and Irrigation Act 1914 (WA) at the date of this Determination is the non-exclusive right to take, use and enjoy that water. The nature and extent of any other interests (s 225(c)) 7. The nature and extent of other rights and interests in relation to the Determination Area are those set out in Schedule 4 (other interests). Relationship between native title rights and other interests (s 225(d)) 8. Except as otherwise provided for by law, the relationship between the native title rights and interests described in order 3 and the other interests is as follows: (a) the Determination does not affect the validity of those other interests; (b) to the extent of any inconsistency between the other interests described in Schedule 4 and the continued existence, enjoyment or exercise of the native title rights and interests: (i) the native title rights and interests continue to exist in their entirety, but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency during the currency of the other interests; and (ii) otherwise the other interests co-exist with the native title rights and interests, and for the avoidance of doubt, the doing of an activity required or permitted under those interests prevails over the native title rights and interests and their exercise, but does not extinguish them. Definitions and interpretation 9. In this Determination, unless the contrary intention appears: Determination Area means the land and waters within the external boundary described in Part 1 of Schedule 1 and depicted on the maps at Schedule 5, but not including the Excluded Areas. Excluded Areas means the land and waters described in Part 2 of Schedule 1 and depicted as such on the maps at Schedule 5. land and waters respectively have the same meanings as in the Native Title Act. Native Title Act means the Native Title Act 1993 (Cth). State means the State of Western Australia. 10. In the event of an inconsistency between the written description of areas in the Schedules and the areas depicted on the maps in Schedule 5, the written descriptions shall prevail. SCHEDULE 1 DETERMINATION AREA Part 1 - External boundaries and areas of land and waters where native title exists The external boundary of the Determination Area, generally shown as bordered in blue on the maps at Schedule 5, is as follows: All those land and waters commencing at the northernmost northeastern corner of the northernmost severance of Pastoral Lease N050007 (Wonganoo), being a point on the southern boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004) and extending generally southerly and westerly along the boundaries of that pastoral lease to the intersection of an eastern boundary of Pastoral Lease N049559 (Barwidgee); Then southerly, generally westerly, northerly and westerly to the intersection of the easternmost southeastern corner of Reserve 30897 being a point on the boundary of Native Title Determination WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001); Then northerly and generally westerly along boundaries of that native title determination to the intersection of the easternmost southeastern corner of Native Title Determination WAD248/2007 Tarlpa (WCD2013/004); Then northerly along the eastern boundary of that determination to the intersection of the southern boundary of Native Title Determination WAD6164/1998 Wiluna (Combined) (WCD2013/004) then generally easterly along boundaries of that native title determination back to the commencement point. Note: Geographic Coordinates provided in Decimal Degrees. All referenced Deposited Plans and Diagrams are held by the Western Australian Land Information Authority, trading as Landgate. Cadastral boundaries sourced from Landgate's Spatial Cadastral Database dated 2nd September 2019. For the avoidance of doubt the determination excludes any land and waters subject to: Native Title Determination Application WAD248/2007 Tarlpa (WCD2013/004) as Determined in the Federal Court on the 29/07/2013. Native Title Determination Application WAD6164/1998 Wiluna (Combined) (WCD2013/004) as Determined in the Federal Court on the 29/07/2013. Native Title Determination Application WAD228/2011, WAD302/2015 Tjiwarl and Tjiwarl #2 (WCD2017/001) as Determined in the Federal Court on the 27/04/2017. Datum: Geocentric Datum of Australia 1994 (GDA94) Prepared By: Graphic Services (Landgate) 27th September 2019 Use of Coordinates: Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Part 2 - Excluded Areas The following areas within the external boundaries described in Part 1 of this Schedule 1, generally shaded in pink on the maps at Schedule 5, being land and waters where native title has been completely extinguished, are not included in the Determination Area: Reserves 1. Reserve 18890 for the purpose of Water, vested in the Wiluna Road Board pursuant to section 42 of the Land Act 1898 on 8 May 1925. 2. Reserve 17044 for the purpose of Common (over which leases for purpose of grazing have been granted since 1926). Public Works 3. Any areas of land or waters where a public work as defined in the Native Title Act 1993 and the Titles (Validation) and Native Title (Effect of Past Acts) Act 1995 (WA) (TVA) (including the land and waters on which a public work is constructed, established or situated as described in section 251D of the Native Title Act) and to which section 12J of the TVA or section 23C(2) of the Native Title Act applies. SCHEDULE 2 DESCRIPTION OF THE NATIVE TITLE HOLDERS 1. The persons referred to in order 2 of the Determination are those persons from time to time: (a) who in accordance with Western Desert traditional laws and customs, have a connection to all or part of the determination area through conception, birth, growing up or initiation on the area, burial of an ancestor on the area, acquisition of knowledge through long association, or through descent from a person who has had such a connection; and (b) in respect of whom that claim is recognised according to Western Desert traditional laws and customs. 2. At the date of this Determination, the persons referred to in paragraph 1 above are those who: (a) have a connection through: (i) their own birth, or long association with part or all of the application area; or (ii) the birth, or long association with part or all of the application area, of their ancestors by whom they claim country; and (b) in respect of whom that claim is recognised according to Western Desert traditional laws and customs. 3. At the date of this determination the persons referred to in paragraph 2(a)(i) above are: (a) Roxanne Anderson and descendants; (b) Harvey Scadden; (c) Marjorie Wongawol and descendants; and (d) Dudley Wongawol and descendants. 4. At the date of this determination, the persons referred to in paragraph 2(a)(ii) above are the descendants of the following ancestors as are recognised, according to Western Desert traditional laws and customs, by the other native title claimants as having rights in the application area: (a) the union of Tommy Kiiku and Minnie; (b) the union of Spider Narrier and Queenie; (c) Alfie Ashwin; (d) Lenny Ashwin; (e) Manyila/Trilby; (f) Miparl/Frank Wongawol; (g) Yarltat/Joe Finch; and (h) Trevor Jones. SCHEDULE 3 NON-EXCLUSIVE NATIVE TITLE The parts of the Determination Area where native title comprises the rights and interests set out in order 3 are as follows, as shown generally shaded yellow on the maps in Schedule 5: Reserves Reserve 12208 for the purpose of Water Reserve 12580 for the purpose of Water Reserve 12853 for the purpose of Water Reserve 12854 for the purpose of Water Reserve 17045 for the purpose of Common Pastoral Leases Pastoral Lease N049559 - Barwidgee Portion of Pastoral Lease N050007 - Wonganoo Portion of Pastoral Lease N050102 - Lake Violet Unallocated Crown land UCL 1 on the mid-western boundary of the Determination Area SCHEDULE 4 OTHER INTERESTS The nature and extent of other interests set out in relation to the Determination Area are the following as they exist as at the date of this Determination: Part 1 - Other interests which validly affect the native title rights and interests Reserves 1. The following reserves and the rights and interests of persons who have the care, control and management of the reserves: Reserve 12208 for the purpose of Water Reserve 12580 for the purpose of Water Reserve 12853 for the purpose of Water Reserve 12854 for the purpose of Water Reserve 17045 for the purpose of Common Pastoral leases 2. The following current pastoral leases and the rights and interests of the holders from time to time of those pastoral leases: Pastoral Lease N049559 - Barwidgee Portion of Pastoral Lease N050007 - Wonganoo Portion of Pastoral Lease N050102 - Lake Violet Roads 3. Road 1 (Road 867) Darlot Road marked on the the maps as "Road 1" in Schedule 5. Mining interests 4. The rights and interests of the holders from time to time of the following current mining interests under the Mining Act 1978 (WA): Exploration Licences 1. E3600578 2. E3600593 3. E3600667 4. E3600673 5. E3600698 6. E3600810 7. E3600838 8. E3600847 9. E3600854 10. E3600855 11. E3600862 12. E3600868 13. E3600869 14. E3600870 15. E3600882 16. E3600884 17. E3600890 18. E3600916 19. E3600943 20. E3600948 21. E3700847 22. E3700848 23. E3701017 24. E3701018 25. E3701146 26. E3701200 27. E3701239 28. E3701243 29. E3701262 30. E3701313 31. E5301042 32. E5301060 33. E5301061 34. E5301106 35. E5301210 36. E5301211 37. E5301218 38. E5301318 39. E5301319 40. E5301369 41. E5301373 42. E5301377 43. E5301380 44. E5301405 45. E5301407 46. E5301430 47. E5301472 48. E5301482 49. E5301611 50. E5301612 51. E5301716 52. E5301729 53. E5301742 54. E5301759 55. E5301788 56. E5301816 57. E5301836 58. E5301843 59. E5301847 60. E5301855 61. E5301858 62. E5301859 63. E5301867 64. E5301874 65. E5301880 66. E5301882 67. E5301884 68. E5301885 69. E5301886 70. E5301890 71. E5301909 72. E5301918 73. E5301929 74. E5301949 75. E5301954 76. E5301963 77. E5301964 78. E5301991 79. E5301992 80. E5301993 81. E5301994 82. E5301995 83. E5302018 84. E5302023 Prospecting Licences 85. P3601824 86. P3601839 87. P3601840 88. P3601841 89. P3601842 90. P3601843 91. P3601844 92. P3601845 93. P3601846 94. P3601847 95. P3601848 96. P3601849 97. P3601850 98. P3601851 99. P3601857 100. P3601858 101. P5301578 102. P5301586 103. P5301587 104. P5301622 105. P5301636 106. P5301638 107. P5301639 108. P5301682 109. P5301683 110. P5301684 111. P5301685 112. P5301686 113. P5301688 114. P5301689 115. P5301690 116. P5301691 117. P5301692 118. P5301693 119. P5301694 120. P5301695 121. P5301696 122. P5301697 Miscellaneous Licences 123. L3600127 124. L3600176 125. L3600183 126. L3600190 127. L3600192 128. L3600200 129. L3600204 130. L3600205 131. L3600219 132. L3700145 133. L3700218 134. L3700219 135. L3700234 136. L5300057 137. L5300126 138. L5300133 139. L5300162 140. L5300167 141. L5300203 142. L5300204 143. L5300206 Mining Leases 144. M3600202 145. M3600263 146. M3600295 147. M3701309 148. M5300009 149. M5300015 150. M5300127 151. M5300144 152. M5300145 153. M5300149 154. M5300160 155. M5300170 156. M5300175 157. M5300186 158. M5300220 159. M5300294 160. M5300295 161. M5300296 162. M5300297 163. M5300379 164. M5300393 165. M5300434 166. M5300544 167. M5300547 168. M5300555 169. M5300574 170. M5300575 171. M5300578 172. M5300579 173. M5300631 174. M5300721 175. M5301080 176. M5301089 177. M5301093 5. Subject to paragraph 6 below, any rights that may exist as at the date of this determination that are held by the holders from time to time of the tenements listed above, that permit the holder of those tenements to use or use and maintain in reasonable repair (including by servants, agents and contractors) such portions of roads and tracks in the Determination Area: (a) as may be permitted in accordance with those rights and interests; and (b) as are necessary to have access to the area the subject of the tenement for the purpose of exercising the right granted by that interest. 6. Nothing in paragraph 5 above allows any upgrade, extension, widening, realignment or other improvement to the road or track. Other 7. Rights and interests, including licences and permissions, held under valid or validated grants from the Crown in right of the State or of the Commonwealth pursuant to statute or otherwise in the exercise of its executive power of a kind not otherwise referred to in this Schedule 4. 8. Valid or validated rights or interests of a kind not otherwise referred to in this Schedule 4 held by reason of the force and operation of the laws of the State or of the Commonwealth including the force and operation of the Rights in Water and Irrigation Act 1914 (WA). 9. The right to access the Determination Area by an employee, agent or instrumentality of: (a) the State; (b) the Commonwealth; (c) any local government authority, as required in the performance of his or her statutory or common law duty where such access would be permitted to private land. SCHEDULE 5 MAPS OF THE DETERMINATION AREA REASONS FOR JUDGMENT COLVIN J: 1 The Court sits today at Turtle Creek, south-east of the township of Wiluna and near Well No 1 on the Canning Stock Route. In the context of the subject matter of this Court hearing these features are recent intrusions upon the spatial characteristics of this old and vast place. We are within the Western Desert which covers a large part of the interior of the Australian continent. The Court convenes at this place to consider an application for determination of native title to be declared by consent over an area the subject of a registered native title claim known as the Kultju Application. Resolution of native title claims by agreement is one of the objectives of the Native Title Act 1993 (Cth). 2 As I have said before, a determination of native title is a significant cultural and legal event. It recognises the existence as against all people in the whole world of the common or group rights held by identified Aboriginal people who, by reason of their traditional laws and customs, have a connection with an area of land in Australia. It recognises matters that reach back well before this Court and the institutions of the government of which it is part to before the time of British sovereignty: Street on behalf of the Giniyjawarrni Yoowaniya Riwi Native Title Claim Group v State of Western Australia [2018] FCA 2019 at [1]. 3 For the following reasons, I am satisfied that the consent determination sought in these proceedings should be made. In doing so, I recognise at the outset that my authority to make the determination is derivative in two important respects. First, I am acting on the testimony of those who are the custodians of the relevant cultural connections. It is their voice concerning the dreaming tracks, stories and songs for this place that is listened to today and given effect by the orders to be made. I have no authority to speak as to those matters. Second, native title is not brought into existence by the declaration to be made by this Court. Rather, the declaration recognises rights and interests that are already in existence and in that sense derives from matters that are entirely within the authority of the Aboriginal people past, present and future who are connected to this country. Connection to country 4 The Western Desert is a place where there have long been aspects of broad cultural connection over the wider area with many dialectal groups, hence the use of the term Western Desert cultural bloc (WDCB). However, there are ceremonies, sites and songs for particular places. There are particular people with close physical association with those particular places. Those with intimate knowledge of these particular cultural connections may be identified through common ancestors. It is not necessary that the descendants of those ancestors continue to reside in those places. However, it is necessary that the culture continues to be observed. Native title rights and interests as recognised by the Native Title Act depend for their existence upon a society, 'a body of persons united in and by its acknowledgment and observance of a body of law and customs': Members of the Yorta Yorta Aboriginal Community v Victoria [2002] HCA 58; (2012) 214 CLR 422 at [49]. The society must have been in existence since British sovereignty. The key is mutual observance of that body of law and customs as they relate to a particular place by an identified community. It may be relevant to identify groups within the society for purposes such as articulating particular rights and interests. 5 For the purposes of this application, the parties have agreed the following matters as to connection to this country for a group of people described as the Kultju Claimants, identified as the native title holders in the proposed consent orders: The Kultju Claimants have an intimate knowledge of the WDCB system of law and custom, which remains vital for the Kultju Claimants. They have extensive knowledge of WDCB dreaming tracks and associated sites, stories and songs, and their importance in the context of the broader WDCB (with associated restrictions on women, young men and children). Kultju Claimants accept the responsibility which attaches to acquisition of knowledge both in relation to land and generally and the need to transmit that knowledge to younger generations. They have a system of kinship under which roles and responsibilities are known and acknowledged (including in relation to ritual, marriage, death/burial etc). Appropriate behaviour is expected, and sanctions for breach exist under traditional laws and customs. Although none of the Kultju Claimants presently live permanently on the Kultju Application Area, their decision to live in close proximity to it means they continue to give effect to their traditional laws and customs by: (a) visiting and maintaining a physical association with country; and (b) continuing to acknowledge and observe traditional laws and customs, through the retention, performing and passing on to their children and grandchildren of their traditional songs, stories and knowledge of sites forming part of the Tjukurrpa associated with country. 6 Further, those representing the State of Western Australia have considered the identified connection material and have formed the view for the State that the material is sufficient to demonstrate that the application has a credible basis and that the Kultju Claimants and their ancestors have maintained a presence in the area the subject of the application since British sovereignty which connection has not been severed and has been maintained by those people according to their traditional laws and customs. In addition to witness statements from the claimants, the material considered by the State includes a connection report prepared in April 2019 by Mr Trinity Hadley, an anthropologist, as well as genealogies showing descendants. The connection material is not before the Court. Authority to make the application 7 I am satisfied on the material before me that is has been demonstrated that the named applicants, Mr Keith Sceghi, Ms Colleen Jane Berry, Mr Danny Brett Ulrich and Ms Sandra Wongawol, are authorised by those who according to traditional law and customs hold the rights and interests the subject of the Kultju Application and that there is authorisation to consent to the determination in the terms proposed. The requirements in s 87 of the Native Title Act 8 The relevant power of the Court to make a consent determination is subject to the conditions specified in s 87 of the Native Title Act. As to those conditions: (a) the notice period under s 66 has ended; (b) the proposed consent orders relate to the whole of the area the subject of the Kultju Application; (c) all the parties to the application join in the application for the consent determination; (d) the minute of consent has been signed by the parties' legal representatives; (e) notice has been given and there have been no objections; (f) there are no agreed facts, but there are joint submissions; (g) there are no overlapping determinations, the rights and interests are of a kind that may be recognised and the proposed orders set out the matters in s 225 as required by s 94A. For the following reasons, I am also satisfied that it is appropriate to make the declaration sought by the parties. Agreement to determination of native title 9 A determination of native title must be made in accordance with the procedures in the Native Title Act: s 213(1). As the determination, if made, will have consequences beyond the parties who give their consent, heightened scrutiny is warranted: CG (Deceased) on behalf of the Badimia People v State of Western Australia [2016] FCAFC 67; (2016) 240 FCR 466 at [48] (North, Mansfield, Jagot and Mortimer JJ). The same concern pertains when the Court is invited to make a consent determination: Freddie v Northern Territory [2017] FCA 867 at [18] (Mortimer J). In effect there is a broader public interest in the determination because it may affect third parties who do not presently have an interest in the area and may have presently unforeseen consequences well into the future. It is also an adjudication that will determine for future Aboriginal people the nature and extent of their native title interest. It has an intergenerational character that is a function of the essentially spiritual nature of the connection that provides the foundation for the acknowledgment of native title rights and interests. In appropriate cases, these matters may be reasons why, in the particular circumstances, the Court may require additional information from the parties to support a consent determination. 10 Otherwise, the Court may make a determination of native title by consent on the basis of agreement without receiving evidence or embarking upon its own inquiry: Ward v State of Western Australia [2006] FCA 1848 at [8] and s 87(2). The primary focus of the Court's consideration is upon the demonstration that there has indeed been the requisite agreement: Lander v State of South Australia [2012] FCA 427 at [11]. The Court relies upon the investigations undertaken by the parties, the process of claim registration and the steps taken by the State to identify all possible interested parties. 11 As I have noted, compliance with the requirements of s 87 of the Native Title Act has been demonstrated by the joint submissions to the Court. The State has been represented by lawyers with experience in the principles to be applied. Searches have been conducted by the State to determine the nature and extent of other interests and the proposed determination deals with interests that have been identified so as to meet the requirements of s 225 of the Native Title Act. The representative applicants in the proceedings, Mr Sceghi, Ms Berry, Mr Ulrich and Ms Wongawol, have also been legally represented by experienced lawyers. Relevant matters relating to connection to country have been considered and have been the subject of joint submissions. 12 There being no matter suggesting a lack of good faith and no matter suggesting a concern that the matters of broader public interest to which I have referred have not been brought to account, the foundation for the making of the consent determination has been established. Prescribed body corporate and holding of native title 13 By s 55 of the Native Title Act, if a determination that native title exists is made then the Court must 'at the same time as, or as soon as practicable after, it makes the determination' make the determination required by s 56. In this case, the claimants have caused to be established Kultju (Aboriginal Corporation). Steps have been taken for it to be nominated as the prescribed body corporate and the body to hold in trust any determined native title rights and interests for the purposes of s 56 of the Native Title Act. The requirements for its appointment have been established. Where, as here, there has been a nomination of a prescribed body corporate to be the trustee of the native title, the Court must determine that the prescribed body corporate is to hold the native title in trust: s 56(2)(b). Upon the making of that determination, the prescribed body corporate must perform the requirements of the registered native title body corporate: s 57(1). Therefore, I am satisfied that there should be a declaration that the native title to be declared by consent is to be held in trust by Kultju (Aboriginal Corporation). Conclusion 14 I commend the parties and their representatives for bringing this matter to a conclusion by way of agreement. 15 Being satisfied as to the statutory requirements, I make orders in terms of the proposed consent determination recognising native title rights in respect of the Kultju Application area, being the Determination Area as described in the proposed consent orders. The Court thereby recognises the enduring traditional laws and customs observed by those peoples in respect of the land the subject of the determination. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Colvin. Associate: Dated: 30 October 2019	7,617
federal_court_of_australia:fca/single/2004/2004fca1506	decision	commonwealth	federal_court_of_australia	text/html	2004-11-22 00:00:00	Australian Securities and Investments Commission v Reid [2004] FCA 1506	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca1506	2024-09-13T22:52:33.156500+10:00	FEDERAL COURT OF AUSTRALIA Australian Securities and Investments Commission v Reid [2004] FCA 1506 PRACTICE AND PROCEDURE – adjournment application – failure to comply with directions – application refused. AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION v MAXWELL JOHN REID VG 3023 of 1992 LANDER J 22 NOVEMBER 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY VG3023 OF 1992 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION APPLICANT AND: MAXWELL JOHN REID RESPONDENT JUDGE: LANDER J DATE OF ORDER: 22 NOVEMBER 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for an adjournment of the hearing is refused. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY VG3023 OF 1992 BETWEEN: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION APPLICANT AND: MAXWELL JOHN REID RESPONDENT JUDGE: LANDER J DATE: 22 NOVEMBER 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 On 18 November 2004 the respondent applied for the adjournment of the hearing of this matter which is scheduled to commence on 22 November 2004. Late in the evening of 18 November 2004 I refused the application for an adjournment. There follows my reasons for doing so. 2 The applicant commenced these proceedings by Notice of Motion on 17 November 2003 seeking the following orders: '1. that the respondent be committed to prison or otherwise punished for contempt of Court for contravening the order of the Honourable Justice Jenkinson made on 10 March 1992 that the respondent be prohibited, pursuant to section 230 of the Corporations Law, until 10 August 2036 from managing a corporation; or in the alternative 2. that the warrant ordered by the Honourable Justice Kenny on 12 February 2002 to lie on the Court file be executed; or in the alternative 3. that the respondent be committed to prison or otherwise punished for contempt of Court in respect of his breach of the undertaking provided by him to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future; 4. that the respondent pay the applicant's costs of and incidental to this motion on an indemnity basis; and 5. such further or other orders as the Court deems appropriate.' 3 Accompanying the Notice of Motion, as required under O 40 r 6 of the Federal Court Rules (the Rules), was the Statement of Charge which claimed that the contempt committed by the respondent was wilful and contumacious insofar as: '1. in breach of paragraph 1 of the order of the Honourable Justice Jenkinson of this Court, made on 10 March 1992, wherein the respondent was prohibited from managing corporations until 10 August 2003, the respondent has been involved in the management of the following corporations: 1.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 1.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003; and 2. in breach of an oral undertaking provided to the Honourable Justice Kenny on 8 October 2001 that he would not be involved in the management of a company in any form at all in the future, the respondent has been involved in the management of the following corporations: 2.1 Battstone Australia Pty Ltd between about 3 March 2003 and 3 June 2003; and 2.2 Australian Marble Pty Ltd between about 1 February 2003 and 14 July 2003.' 4 The matter first came before me on 9 December 2003 when the respondent appeared in person. 5 Mr Reid told me that he would be engaging solicitors but he had not, to that point of time, had sufficient time to procure funds and sought an adjournment until January 2004 to do so. 6 I ordered him to file any affidavits upon which he intended to rely by 30 January 2004 and adjourned the directions hearing until 17 February 2004. 7 In the meantime, the applicant began proceedings (S3009 of 2003) against the respondent and four other respondents under s 1324 of the Corporations Act 2001 (Cth) and ss 22 and 23 of the Federal Court of Australia Act 1976 (Cth) seeking orders in the following terms: '1. An order that the first defendant be restrained from engaging in conduct that contravenes a provision of section 206A of the Corporations Act 2001 and in particular that he be restrained from doing any act that forms part of the negotiations with respect to, or the purchase of, any business, company or asset by, for or on behalf of any corporation. 2. Orders that each of the second, third, fourth and fifth respondents be restrained from engaging in any conduct that amounts to aiding abetting counselling or procuring a contravention of section 206A of the Corporations Act 2001 by the first respondent within the meaning of section 11.2 of the Criminal Code and in particular that they each be restrained from doing any act or engaging in conduct that expressly or implicitly authorises or permits the first respondent to take part in or have any involvement in the negotiations with respect to, or the purchase of, any business, company or asset by, for or on behalf of any corporation of which they are a director. 3. Such further or other orders as the Court considers appropriate. 4. Costs.' 8 I will not trace the history of that matter except to say that between the date of commencement of those proceedings and now each of the respondents apart from Mr Reid have consented to orders of the kind sought in the originating proceedings. 9 The applicant, therefore, is proceeding only against Mr Reid. That matter is also listed for hearing on 22 November 2004 and was also the subject of the adjournment application. Its fate depended on the fate of the application in these proceedings. 10 The order made on 9 December 2003 requiring the respondent to file any affidavits upon which he intended to rely was not complied with. On the adjourned directions hearing on 17 February 2004 the respondent was represented by Mr Winter, solicitor, who advised the Court that he had not then been formally retained and the terms of his retainer had not been finalised but that he expected to represent Mr Reid generally. 11 I was told that Mr Reid intended to file responding material and to defend the charges brought in the Notice of Motion. 12 During the directions hearing on 17 February 2004 the following exchange took place: '[LANDER J]: I might list it to allow you one further chance to file any affidavits before the hearing. MR REID: Thank you Your Honour. [LANDER J]: The hearing will go on whether you file your affidavits or not. MR REID: I understand that. … [LANDER J]: The week of 5 April seems to be available. MR REID: I would be more than happy to commit to that.' 13 I made the following orders: '1. Extend the time within which the respondent has to file any affidavits upon which he intends to rely for a further period of 28 days. 2. Direct the parties to advise each other of those deponents to affidavits filed by the opposing parties whom they wish to cross-examine at the hearing of the matter. 3. Set the matter down for hearing on 22 and 23 April 2004. 4. Liberty to apply.' 14 The matter was called on again on 12 March 2004 when Mr Reid appeared unrepresented, although Mr Winter claimed to appear as amicus curiae. 15 At the request of Mr Reid I made the following orders: '1. Extend the time within which the respondent has to comply with the orders made by me on 9 December 2003 and 17 February 2004 for the filing of affidavits in response to the applicant's application until 29 March 2004 at 4.00pm.' 16 On 8 April 2004 this matter and Action No. S3009 of 2003 were called on yet again. The fourth and fifth defendants in Action No. S3009 of 2003 had agreed to injunctions in the terms of the orders sought in the originating process in that matter. 17 Mr Reid did not attend and I directed the applicant to advise Mr Reid that both matters would be called on again on 16 April 2004. 18 During the directions hearing on 8 April 2004, counsel for the applicant advised the Court that the applicant had obtained further material in respect of the Notice of Motion in these proceedings and in Action No. S3009 of 2003 but that, because Mr Reid had been interstate, the Australian Securities and Investments Commission (ASIC) had been unable to serve him. It was noted that it was therefore unlikely that the hearing could proceed on 22 and 23 April 2004. 19 Mr Reid appeared when the matter came on again on 16 April 2004. At that time he told me that he had spoken with Mr Terry Forrest QC, senior counsel in Melbourne, who advised him that he would be free in July. I was also told that Mr Reid would be retaining Mr Winter as his solicitor. 20 Mr Reid told me that in those circumstances he wanted the matter to be adjourned on 22 April 2004. Clearly, the matter could not proceed because the applicant had introduced new evidence. However, I was not satisfied that Mr Reid had made himself ready for trial in any event. I therefore made the following orders: '1. Direct Mr Reid to file any affidavit upon which he intends to rely to establish: a. That he has instructed a solicitor; b. That counsel has been retained; c.) The evidence which he intends to adduce in answer to ASIC's evidence by 12pm on Thursday, 22 April 2004. 2. Adjourn the further directions hearing of the matter until 23 April 2004 at 9am.' 21 As has been the case with all previous directions made by me, those directions were not complied with. 22 When the matter was called on again on 23 April 2004 Mr Christoforou, of Christoforou, Klotz & Co, appeared for Mr Reid. 23 Mr Christoforou advised the Court that Mr Reid had instructed him on 22 April 2004. His instructions were that Mr Reid expected to receive funds on 23 April when he would be formally retained. 24 I made the following orders: '1. Extend the time within which the respondent Reid has to file any affidavits in answer to the applicant's affidavits until Monday 7 June 2004. 2. Set the matter for hearing on 28 and 29 June 2004. 3. The respondent Reid to advise the applicant prior to 7 June 2004 whether he wishes to cross-examine any, and which, deponents to the affidavits relied upon by the applicant. 4. Liberty to all parties to apply. 5. Costs in the cause.' 25 On 30 April 2004 Mr Christoforou wrote to my associate in the following terms: 'We refer to the above matter and advise that Mr Maxwell [sic] has failed to place our firm in funds. Accordingly, pursuant to the intimation sought from the writer by His Honour, Justice Lander, we advise that we have informed Mr Reid that we no longer act for him, although we did indicate that we would consider acting for him if funds became available.' 26 Shortly before 22 June 2004, I became available to commence the hearing on Friday, 25 June 2004 rather than the nominated date of 28 June 2004. 27 I therefore held a further directions hearing on 22 June 2004 to enquire of the parties whether any of the parties in this action, or the parties still remaining in Action No. S3009 of 2003, would be prejudiced by my commencing the hearing of the action on Friday, 25 June 2004 rather than Monday, 28 June 2004. 28 Mr Winter again appeared for Mr Reid, who was also in court. 29 I was advised by Mr Winter that he was not retained generally in the matter but that he had been retained for the purpose of the directions hearing. 30 He advised me that Mr Reid was still endeavouring to procure funds to enable him to obtain solicitors and counsel and conduct his defence. 31 Mr Winter's instructions were that Mr Reid expected that the funds should be available within approximately two weeks. 32 In those circumstances, Mr Winter sought an adjournment of the hearing of the matter for a period of two weeks. 33 The application was opposed and it was refused. 34 Mr Reid said that if the application were refused he would not be embarrassed by being required to commence the proceedings on Friday, 25 June 2004 rather than 28 June 2004. 35 Late on 24 June 2004 the Registry received a facsimile letter from the respondent's wife, Mrs Edna Reid addressed to me in the following terms: 'I am writing to you tonight on behalf of my husband Maxwell Reid who is supposed to be at a hearing before you at 9:15am tomorrow Friday. Included with this fax are letters from our family doctor and from DR Jones & Partners (Medical Imaging Report). On behalf of my husband I am asking for an adjournment until after the 03/09/2004 because of Max's inability to concentrate on what is being said and happening around him because of his severe back pain and headaches. Professor Robert Fraser will make a judgment on what can be done with my husband's spine to relieve the pain and headaches when he sees him; the earliest appointment we could obtain was at 2.40pm on the 3rd Sept. 2004. May I suggest that our family doctor make another assessment on my husband's condition (say in one month's time) and report to you? At this stage there is a likelihood that Max could become an invalid at any time and I am sure I do not want that to happen to him. I do have the x-rays if you wish to view them?' 36 Accompanying that letter were two medical reports; the first, from Dr Balendran, a general practitioner dated 23 June 2004 to the effect that Mr Reid was having persistent lower back pain for which he was waiting to see Professor Fraser for treatment; and the second, a radiologist's report from Dr Simmons of Dr Jones & Partners dated 24 June 2004 to the effect that Mr Reid was suffering from: 'Grade 1 anterior spondylolisthesis of L5 on S1 with possible stretching/compression of the L5 nerve roots as they pass laterally around osteophytes/disc just lateral to each exit foramen. These changes are more marked on the right.' 37 The letter and medical reports were, apparently, received by the Registry staff after hours on 24 June 2004 and did not come to my notice until early on the morning of 25 June 2004. The medical reports did not suggest that Mr Reid was unable to conduct his trial. They suggested only that he had some back pain for which he was to obtain a specialist opinion. 38 At my request, my associate wrote to Mrs Reid in the following terms: 'I refer to your correspondence of 24 June 2004, received on the Court's fax machine this morning, 25 June 2004. The correspondence has been brought to Justice Lander's attention. These matters are listed for hearing at 9:15am. Mr Reid should be present. If he wishes to apply for an adjournment, he can make that application to Justice Lander at that time.' 39 The matter was called on on 25 June 2004 but Mr Reid did not appear. Mr Smith, who is a respondent in Action No. S3009 of 2003 and a friend of Mr Reid's, did appear. 40 During the course of the morning, an application was made by ASIC for the issue of a warrant for Mr Reid's arrest. 41 Later that morning I was advised by Mr Smith that he had spoken to Mr Reid and that Mr Reid was aware that a warrant was to be issued for his arrest. 42 On 25 June 2004 I issued a warrant for Mr Reid's arrest to bring him before the Court to answer the charge of contempt by detaining him in custody in the meantime, unless by paying the sum of $5,000 into Court he gave security for his appearance in person. 43 Apparently, Mr Reid has also been charged with offences for which he was arraigned in the District Court. He also did not appear at a hearing in the District Court and a warrant was issued by a judge of that Court for his arrest. On 3 August 2004 he was arrested pursuant to the District Court warrant. 44 On 4 August 2004, whilst Mr Reid was in the City Watchhouse being detained on the warrant issued out of the District Court, the warrant issued out of this Court was executed. 45 On 11 August 2004 the matter came on again before me and Mr Reid was brought from custody at the Adelaide Remand Centre. 46 He advised me that he had applied for legal aid and sought an adjournment of the matter generally. The matter was adjourned until 25 August 2004 to enable Mr Reid's legal aid application to be processed. 47 From information that was provided to me on the hearing of this application, I now know that on 11 August 2004 Mr Reid did, in fact, apply for legal aid to cover not only the proceedings in the District Court but also the charge of contempt in these proceedings. 48 On 25 August 2004 the matter was called on when Mr Amey, of counsel, appeared for Mr Reid. Mr Amey indicated that Mr Reid wished to make an application for bail and the matter was adjourned until 3 September 2004 to enable him to do so. Of course, this Court does not grant bail. This Court is empowered under O 40 r 9 of the Rules to require a party for whom a warrant has been issued to pay a sum by way of security for that party's attendance at the further hearing. 49 On 3 September 2004 the matter was further adjourned until 9 September 2004 to enable Mr Reid's application for bail in the District Court to be dealt with. The oral application made by Mr Amey in this Court was adjourned. 50 Although Mr Reid continued to seek what he and his counsel called 'bail', in fact, what was sought was an order providing for a sum for security for his attendance at further Court hearings. This was the sixth occasion that I had directed or extended time for Mr Reid to file his affidavit material. He had not complied with any of my previous directions. 51 In any event, on 9 September 2004, I dealt with the matter generally: '1. The respondent to file any affidavits in opposition to the applicant's affidavits within 28 days. 2. The respondent to notify the applicant of the applicant's deponents that he wishes to cross-examine within 42 days. 3. In the event that no notification is given, the applicant may proceed upon the affidavits. 4. Adjourn the further directions hearing to 9.30am on 26 October 2004. 5. Set the matter down for hearing in the week of 22 November 2004.' 52 This was the sixth occasion that I directed or extended time for Mr Reid to file his affidavit material. He had not complied with any of my previous directions. 53 Mr Reid has been on notice since 3 September 2004 that the charge of contempt would be heard in the week of 22 November 2004. So also, of course, has Mr Amey, although Mr Amey was only appearing on 3 September 2004 to seek an order for security. 54 During my absence on leave the matter was called on on two occasions, being 17 September 2004 and 23 September 2004 before Selway J. On both occasions, Mr Amey appeared and so also did Mr Reid. On both occasions the matter was further adjourned because Mr Reid was unable to put any material before the Court in support of an application for an order for security. 55 On 8 October 2004 Fleurieu Law, solicitors, wrote to ASIC on behalf of Mr Reid advising that Mr Reid required all deponents to be present for cross-examination in the substantive hearing. ASIC was also advised that Mr Reid did not intend to file any affidavit material but intended to give his evidence orally. The letter continued: 'I ask you to note that due to our inability to take proper instructions from Mr Reid whilst he is in custody, we may be instructed to seek to vacate the existing trial date. It has simply been impossible for us to have the time necessary to take instructions and fully investigate the matter, due to the restrictions placed on our client while in the Remand Centre. If so instructed we will seek to vacate the trial date, to a date in the future.' 56 The matter was called on again on 26 October, 27 October and 2 November 2004. Mr Reid and his counsel, Mr Amey, appeared on each occasion. 57 The adjournments on 26 and 27 October 2004 were occasioned by Mr Reid's inability to put any information before the Court which would support his application for security. On 2 November 2004 Mr Morris, who was a friend of Mr Reid, offered to guarantee Mr Reid's attendance at the Court hearing on 22 November 2004 and thereafter. Eventually, an order was made on 2 November 2004 directing that Mr Reid be released from custody on the oral undertakings given by Mr Reid and Mr Morris. I released Mr Reid to enable him to assist in the preparation of his defence. 58 Mr Reid was released on 2 November 2004. 59 On this application for an adjournment Mr Reid, Ms Pearce and Mr Amey gave evidence. I shall explain how that came about later. The findings which follow are made on their evidence. 60 There was no conflict on their evidence which required any findings on credibility. I have made no findings on credit. 61 Apparently, between 2 November 2004 and 12 November 2004 Mr Reid met with Mr Amey and he also spoke with Mr Amey on the telephone in relation to the substantive proceedings to commence on 22 November 2004. Mr Reid made no contact with his solicitors during that time. 62 On 12 November 2004 Mr Amey advised Mr Reid that he should contact his solicitors for the purpose of arranging for the interview of witnesses who Mr Reid had identified to Mr Amey as being relevant to the proceedings. 63 During this period of time, so I have been advised, the Legal Services Commission authorised Ms Pearce of Fleurieu Law and Mr Amey to read the material which had been presented by ASIC, and upon which ASIC intended to rely, for the purpose of conducting Mr Reid's defence. Both Ms Pearce and Mr Amey carried out that reading. 64 Mr Reid says that on Monday, 15 November he attempted to contact Ms Pearce but was advised by Ms Pearce's employee that she was unavailable and he should ring back. He did not ring back. He contacted the Duty Officer of the Legal Services Commission at the Adelaide Magistrates Court. Mr Reid was advised by the Duty Officer that no funding had been approved for the trial of this action. 65 He made no attempt to telephone either Ms Pearce or Mr Amey, although he had Mr Amey's mobile number which he had used before. He had also attended at Mr Amey's chambers. 66 Instead Mr Reid telephoned Mr Stephen Ey, a solicitor, seeking an appointment with him. Mr Reid saw Mr Ey on Tuesday, 16 November at about midday. Mr Ey advised him that he could not act and referred him to Mr Mancini, a principal of George Mancini & Co. Mr Reid saw Mr Mancini that afternoon. 67 Sometime during the afternoon of 16 November, Ms Pearce received a facsimile from Mr Mancini advising that he was acting and seeking her file. 68 George Mancini & Co sent a facsimile to my associate at 4.04pm on 16 November in the following terms: 'Please note that Mr. Reid has asked this firm to act in respect of the Federal Court proceedings which we understand are presently listed for trial commencing on Monday, 22 November 2004. We have only just been asked to act. We request that the matter be called on for the purposes of an application to vacate the trial date. Subject to the convenience of the Court and the prosecution, the defence request is for a listing on Thursday, 18 November 2004. We have sent a fax to Ms. D. Shelton [sic] of ASIC. Please advise. Thank you.' 69 At or about the same time, Mr Reid rang Ms Pearce's office seeking Ms Pearce's file in relation to his matter. He told Ms Pearce's employee that he was standing outside Mr Amey's office and wanted the file urgently. Ms Pearce was not in her office and her employee was unwilling to accede to Mr Reid's request without first speaking to Ms Pearce. 70 Sometime on Wednesday, 17 November 2004 Fleurieu Law's file was handed to Mr Mancini. 71 Mr Mancini then took steps to obtain the Legal Services Commission file which I think was obtained on 17 November. When he obtained the file he also received a certificate for funding for the purpose of the trial on 22 November, although that was not a request which he had made of the Legal Services Commission. 72 As requested by Mr Mancini, the matter was listed before me at 2.15pm on Thursday, 18 November 2004. Mr Mancini advised me that his instructions were limited to apply for an adjournment. He told me that if the matter were to proceed on 22 November 2004 he would not be available. However, if the matter were to be adjourned he would accept instructions from Mr Reid generally in the matter and appear on the substantive proceedings. 73 Mr Mancini advised me that his instructions were that the matter should be adjourned because the matter had not been prepared and that Mr Reid, through no fault of his own, was in the position of being unable to conduct his own defence. 74 I was not satisfied that all steps had been taken to obtain funding or that the matter was unprepared. I indicated that I wished to hear from the Legal Services Commission, Ms Pearce and Mr Amey. 75 I suggested that I would sit the next day for that purpose. Mr Mancini advised me that he could not attend on Friday. In those circumstances, I listed the matter for hearing on Thursday evening at 6.00pm. 76 When the matter was called on I made enquiries of Mr Mead, who represented the Legal Services Commission, Ms Pearce and Mr Amey in relation to the matters which had been raised with me. 77 Mr Mead advised me that funding had been approved for the preparation of the case but that no funding had been approved in relation to the hearing itself until Mr Mancini wrote to the Commission on Tuesday, 16 November 2004. 78 Ms Pearce told me that she had no contact from Mr Reid after his release. No messages had been left for her. She understood that Mr Reid was meeting with Mr Amey. She had been in contact with Mr Amey in relation to the preparation of the case. She had done a good deal of the required reading. 79 Mr Amey advised me that he had met with and spoken to Mr Reid over the telephone between 2 November and 12 November. He had read the information provided by ASIC. He had advised Ms Pearce of the persons who ought to be interviewed in relation to the defence of the matter. He had advised Mr Reid to contact Ms Pearce on Friday, 12 November. 80 Mr Amey told me that as at Tuesday, 16 November he would have been in a position to conduct the defence of the matter if the requisite work had been carried out between Tuesday, 16 November and Monday, 22 November. He would have been able to carry out that work. 81 Mr Mancini, who appeared again on behalf of Mr Reid, sought to examine Ms Pearce and Mr Amey in relation to the account they had given the Court. Both were sworn and examined by Mr Mancini. 82 I am satisfied that both Ms Pearce and Mr Amey were accurate in their account of events. I am also satisfied that if their instructions had not been terminated both, and in particular Mr Amey, would have been in a position to conduct the trial of the matter commencing on 22 November 2004. 83 It was not clear from Mr Pearce's evidence why it was that funding had not been applied for. 84 I rather suspect that the instructions to Ms Pearce were that someone else would fund the proceedings apart from the Legal Services Commission. There was vague talk about retaining silk. However, Ms Pearce was constrained, of course, by reason of legal professional privilege, from advising me of her client's instructions. Mr Reid did not waive legal professional privilege. That is no criticism of Mr Reid. In the circumstances, where I would be the trial judge and where his opponent was present, he could not be blamed for not waiving legal professional privilege. 85 However, in the end result, it means that I am not persuaded by Mr Reid that any fault lies with Ms Pearce for failing to obtain funding from the Legal Services Commission. 86 It can be seen from the history of the matter that Mr Reid has not complied with any directions I have given since 9 December 2003. He has changed his solicitors a number of times over that period of time. 87 I find that it was unreasonable for Mr Reid to withdraw his retainer from Ms Pearce and Mr Amey, and that if he had done as he was instructed by Mr Amey and made contact with Ms Pearce the matter would have been prepared and his counsel would have been in a position to conduct his defence. 88 There is no prospect Mr Reid could meet any order for costs. He is clearly indigent. 89 Mr Mancini could not advise me when he would be in a position to conduct Mr Reid's defence. The best he could tell me, and this is no criticism of him, is that I should appoint another directions hearing and give directions for the filing of affidavits. Of course, I have done that on a number of occasions and those directions have not been met. 90 ASIC is a statutory corporation which has significant resources provided by the Commonwealth Government. However, that does not mean that it is not also entitled to justice. It has been ready to proceed on two previous occasions and, through no fault of its own, the matter was adjourned. 91 It has a number of witnesses which it has organised for each of those previous hearings and for the hearing on 22 November 2004. Those witnesses are not professionals but are persons who are to give evidence about negotiations and transactions which they had with Mr Reid. They have been inconvenienced twice before and, if I had adjourned the matter, would have been inconvenienced once more. 92 It is a matter of discretion whether or not an adjournment should be granted. Usually an adjournment would be granted where the opposing party would suffer no prejudice. Also, usually an adjournment would be granted if the party seeking the adjournment would otherwise suffer, or be likely to suffer, any injustice. 93 I have pointed to the prejudice which ASIC might suffer by the adjournment. Its prejudice is the embarrassment that its witnesses would be put to by yet another adjournment. It would also incur costs which it could never recover. That prejudice is not overwhelming. I am mindful of the prejudice that Mr Reid would suffer if an adjournment were not granted. However, in the nearly 12 months that the matter has been before me, Mr Reid has not complied with any direction which I have made. I am not criticising him for that. It is a matter for him whether he adduces any affidavit evidence in opposition to ASIC's claim. Indeed, I would probably not refuse an application by him to call oral evidence without first providing affidavit evidence. 94 However, his failure to comply with any direction or ever giving any reason for that failure indicates to me that no matter how many adjournments he is given the matter will never be prepared any better than it is now. 95 On each of the occasions that the matter has been listed he has sought at the last moment to have the matter adjourned without ever really explaining why it is that he has not been ready. 96 I have reached the conclusion that if I were to adjourn the matter something of the same kind would happen on the next occasion and he would seek a further adjournment 97 There comes a time when a matter must proceed even though one of the parties will be disadvantaged. The respondent's disadvantage in this case has been brought about by his own actions. 98 In all the circumstances, I thought it was inappropriate to grant an adjournment and the application was refused. I certify that the preceding ninety-eight (98) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 22 November 2004 Counsel for the Applicant: M Hoffmann Solicitor for the Applicant: Australian Securities and Investments Commission Counsel for the Respondent: G Mancini Solicitor for the Respondent: G Mancini & Co Date of Hearing: 18 November 2004 Date of Judgment: 22 November 2004	7,472
federal_court_of_australia:fca/single/1986/1986FCA0591	decision	commonwealth	federal_court_of_australia	application/pdf	1986-12-15 00:00:00	Commissioner of Superannuation v. Hastings, R.J. [1986] FCA 591	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1986/1986FCA0591.pdf	2024-09-13T22:52:33.583949+10:00	CATCHWORDS COMMONWEALTH SUPERANNUATION - Deemed invalidity - Eligible employee terminated for reasons other than physical or mental incapacity - Employee unfit for duties actually assigned but allegedly fit for available alternative duties - Whether employee may be deemed to have retired on the ground of physical or mental incapacity - Meaning of "his duties" - Whether Commissioner for Superannuation has a discretion as to directing that employee deemed to have retired on the ground of incapacity. Superannuation Act 1976 ss.3, 7, 75, 76, 79 Administrative Appeals Tribunal Act 1975 s.44 Public Service Act (NT) ss.31, 49 Ward v Williams (1955) 92 CLR 496, Finance Facilities Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106, Re Gleeson (1907) VLR 368, Julius v Bishop of Oxford (1880) LR 5 AC 214, Water Conservation Commission v_ Browning (1947) 74 CLR 492, The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45, Defence Force Retirement and Death Benefit Authority v Britt (1984) 4 FCR 306 referred to. VG 140 of 1986 COMMISSIONER FOR SUPERANNUATION v_ ROY JAMES HASTINGS Woodward, Keely and Wilcox JJ Melbourne 15 December 1986 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIAN DISTRICT REGISTRY ) No. VG 140 of 1986 ) GENERAL DIVISION ) ON APPEAL from the Administrative Appeals Tribunal BETWEEN: COMMISSIONER FOR SUPERANNUATION Applicant AND: ROY JAMES HASTINGS Respondent CORAM: WOODWARD, KEELY and WILCOX JJ PLACE: MELBOURNE DATE: 15 DECEMBER 1986 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of the Administrative Appeals Tribunal be set aside and the matter be remitted to the Tribunal, to be heard and decided again, in accordance with the reasons for judgment herein, with such further evidence as the Tribunal may admit. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIAN DISTRICT REGISTRY ) No. VG 140 of 1986 ) ) GENERAL DIVISION ON_ APPEAL from the Administrative Appeals Tribunal BETWEEN: COMMISSIONER FOR SUPERANNUATION Applicant AND: ROY JAMES HASTINGS Respondent CORAM: WOODWARD, KEELY and WILCOX JJ PLACE: MELBOURNE DATE: 15 DECEMBER 1986 REASONS FOR JUDGMENT THE COURT: The Commissioner for Superannuation appeals to this Court from a decision of the Administrative Appeals Tribunal, constituted by a Deputy President and two other members, setting aside a decision of the Commissioner and, in lieu thereof, directing that the Commissioner deem the respondent to have been retired on 15 August 1980 on the ground of physical incapacity to perform his duties. The appeal -- which is confined to matters of law, see 3.44 of the Administrative Appeals Tribunal Act 1975 -- raises two questions as to the proper construction of s.7(2) of the Superannuation Act 1976. The respondent, Roy James Hastings, was born on 30 August 1925. He served for 12 years with the then Commonwealth Department of Excise and Customs. On 23 April 1971 he was retired from his position as a clerk with that Department on the ground of invalidity; he was then suffering from ischaemic heart disease. He was granted a pension pursuant to s.67 of the Superannuation Act 1922. On 8 April 1980 Mr Hastings was appointed a senior health inspector in the Northern Territory Department of Health. As such he became an "eligible employee" within the definition of that term contained in s.3 of the Superannuation Act 1976, the legislation which had by then superseded the 1922 Act. However, Mr Hastings' service in that Department was thought to be unsatisfactory and, on 15 August 1980, his appointment was terminated, pursuant to s.31(9) of the Public Service Act (NT). The ground ascribed for the decision to terminate was stated as "conduct, diligence and efficiency" which, it is common ground, was intended as a reference to the situation referred to in s.49 of that Act, which reads as follows: "49. If an employee appears to the Commissioner to be inefficient or incompetent, or unable to discharge or incapable of discharging his duties as such an employee, the Commissioner, as he thinks appropriate, may do one or more of the following: (a) change the duties of the employee; (b) transfer him to another part of the Public Service; (c) reduce his salary, or may retire him from the Public Service." It was not until 1 October 1981 that the Commissioner became aware of Mr Hastings' appointment in the Northern Territory, and of the termination of that appointment. The effect of that appointment had been automatically to terminate Mr Hastings' entitlement to receive a pension -- see s.76 of the Superannuation Act 1976 -- but, the facts not being known to the Commissioner, payments had continued to be made. The Commissioner told Mr Hastings that he would be required to refund those payments. Mr Hastings responded by claiming that his appointment was terminated by the Northern Territory Government because of his medical condition and by requesting that the Commissioner apply to his case the provisions of s.7(2) of the Superannuation Act 1976. Section 7 of that Act reads: "7. (1) A reference in this Act to the retirement of an eligible employee on the ground of invalidity shall be read as a reference to his having been retired, or his services having been otherwise terminated, on the ground of physical or mental incapacity to perform his duties. (2) Where a person has, before attaining his maximum retiring age, ceased to be an eligible employee otherwise than by reason of death or by reason of his having been retired, or his services having been otherwise terminated, on the ground of physical or mental incapacity to perform his duties, but the Commissioner is satisfied that, at the time he ceased to be an eligible employee, he was, by reason of physical or mental incapacity, unfit to perform his duties, the Commissioner may direct that the person shall, for the purposes of this Act, be deemed to have been retired on the ground of that physical or mental incapacity." The Commissioner made certain inquiries but he was not satisfied that Mr Hastings' appointment had been terminated by reason of his medical condition. He declined to apply s.7(2), with the result that he rejected Mr Hastings' application for a restoration of his pension entitlement as from the date of that termination, 15 August 1980. Mr Hastings appealed to the Administrative Appeals Tribunal against the decision of the Commissioner. When the matter came on for hearing the Tribunal was informed that it was common ground between the parties that, on 15 August 1980, Mr Hastings was not physically able to perform the duties of a senior health inspector. However, it was the case of the Commissioner that he was fit to perform duties in an alternative classification within the Department and that his medical condition was not the reason for his dismissal. The Tribunal was also told that there was a major issue between the parties as to Mr Hastings' capacity for work. On behalf of Mr Hastings it was submitted that it was unnecessary for the Tribunal to resolve that issue, that -- once it be conceded or established that Mr Hastings was not fit for work as a senior health inspector -- the Commissioner was obliged by s.7(2) to deem him to have been retired on the ground of Physical incapacity. Counsel for the Commissioner disputed the construction of s.7(2) necessary to yield this result and the Tribunal decided first to resolve the issues of construction, deferring in the meantime the receipt of evidence upon the disputed questions of fact. As already indicated, the Tribunal eventually accepted the submissions upon construction put on behalf of Mr Hastings, so that it became unnecessary for it to receive the evidence. "his duties" The first matter which arises under s.7(2) is the meaning to be ascribed to the words "his duties". The question is whether these words refer only to the duties of the respondent in his employment as a senior health inspector as at the time he ceased to be an eligible employee -- that is, at the time his services were terminated -- or whether they encompass the whole range of duties which the respondent could reasonably have been required by his employer to perform, through redeployment or transfer. The submission of the applicant Commissioner is that "his duties" includes the full range of available duties, so that an employee can be said to be incapacitated only ina case in which no suitable work can be found by the employer. In support of that submission counsel for the applicant draws attention to the well-known practice of Commonwealth instrumentalities -- which practice finds expression in various legislative provisions similar in terms to s.49 of the Northern Territory Act already quoted -- to attempt in the first instance to find for incapacitated employees suitable alternative work, terminating the services of the employee only when no such work is available. Counsel contends that an interpretation of "his duties" which limited the application of those words to the duties of the position occupied by the employee at the relevant time would confer an advantage upon an opportunistic employee who, being unable to cope with those duties, resigned his or her employment before new duties could be substituted. We agree that this is a possibility but, as we consider that the Commissioner has a discretion under s.7(2), it is a matter of little moment; the Commissioner would be entitled to take into account those circumstances when considering the proper exercise of that discretion. The strongest argument in favour of construing "his duties" in the manner suggested by counsel for the applicant is the contrast between the use of those words in s.7(2) and the use in s.75 of the Act of the phrase "the duties performed by him immediately before his retirement on the ground of invalidity"; the latter being a clear reference to the employee's actual duties. To put that argument in perspective we set out the whole of s.75, which deals with cancellation of pensions: "75. (1) Where the Commissioner is satisfied, after receiving the report or reports of a medical practitioner or medical practitioners with respect to the health of a person to whom invalidity pension is payable, that the health of the person has become so restored as to enable him to perform duties of a kind that are, in the opinion of the Commissioner, suitable to be performed by him (having regard to the duties performed by him immediately before his retirement on the ground of invalidity and to such other matters as the Commissioner considers relevant), the Commissioner shall so inform such person or authority as the Commissioner considers appropriate with a view to that person or authority finding suitable employment for the pensioner. (2) If-- (a) the pensioner is offered by the Commonwealth or by an approved authority employment (not being employment on a part-time basis) that involves the performance of duties that, in the opinion of the Commissioner, are suitable to be performed by him (having regard to the duties performed by him immediately before his retirement on the ground of invalidity and to such other matters as the Commissioner considers relevant); and (b) the person unreasonably refuses or fails to accept the offer within 14 days after the receipt by him of the offer, or within such further period as the Commissioner allows, the Commissioner may cancel the person's entitlement to invalidity pension." Section 75 relates to an event which occurs after the termination of the employment of a person: the restoration, in whole or in part, of the former employee's health. At that time the person has no current duties. It would not, therefore, have been appropriate to use in s.75 the term "his duties". It was necessary to use a phrase which referred back to the duties previously performed by the person. It is understandable that the legislature should have selected as significant the duties performed immediately before retirement. A phrase such as that actually used was necessary for that purpose. By contrast, the need in s.7(2) was to refer to a situation ascertainable at the date of the actual cessation of employment: retirement or termination ona ground other than incapacity "to perform his duties". As the relevant date was one at which the employee still had duties, it was natural in this context to speak of "his duties". The difference in terminology between s.7(2) and 8.75 being explained by the differing contexts, no inference of an intended different meaning should be drawn. Upon analysis, s.75 turnishes no support for the construction of s.7(2) urged on behalf of the applicant. Indeed, inasmuch as 3.75 requires a consideration of the duties performed by the employee immediately before his or her retirement - and does not require any consideration of the duties of other positions to which the employee might have been transferred immediately before retirement - it is consistent with the interpretation of s.7(2) argued on behalf of the respondent. Counsel for the respondent argues that the term "his duties" ought to be construed literally, to refer to the duties of the position held by the person at the relevant date i.e. retirement. There is no warrant, he says, for any extended meaning and, particularly, for one which would require the Commissioner to investigate the duties of some alternative position which might have been, but was not, allocated to the employee by the employer. We agree. Had it been the intention of Parliament to have the Commissioner embark upon such an inquiry, this intention could easily have been stated. Normally the words "his duties", used in reference to an employee, would be understood as referring to the duties of the position which that employee held at the relevant time. We see no warrant for interpreting them in 3.7 in any other way. In relation to the first point we agree with the view of the Administrative Appeals Tribunal that "his duties" refers to the respondent's duties as senior health inspector. "may direct" As indicated, the Administrative Appeals Tribunal held that, notwithstanding the use in s.7(2) of the word "may", once the pre-conditions specified in s.7(2) were satisfied the Commissioner had no discretion in the matter but was bound to direct that the former employee be deemed to have been retired upon the ground of incapacity. The primary reason for this conclusion was that s.7(2) was seen as being a provision designed to confer a benefit upon those who fell within its terms. The leading Australian authorities dealing with the circumstances under which the word "may", when used ina statute, should be interpreted as imposing an obligation are Ward v Williams (1955) 92 CLR 496 and Finance Facilities Pty Limited v Commissioner of Taxation of the Commonwealth of Australia (1971) 127 CLR 106. In the former case Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ said at p.505 that "it is necessary to bear steadily in mind that it is the real intention of the legislature that must be ascertained and that in ascertaining it you begin with the prima facie presumption that permissive or facultative expressions operate according to their ordinary natural meaning". Their Honours adopted a statement by Cussen J, in Re Gleeson (1907) VLR 368 at p.373, that the burden is on 10. "those who assert that the word 'may' has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning". In Finance Facilities Windeyer J, with whom Barwick CJ agreed, spoke to like effect, pointing out at p.134 that it was not a case of "may" meaning "shall": "While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it isa word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized." The question, Windeyer J went on to say, was "whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised -- so that in those events the 'may' becomes a 'must'." In support of the Tribunal's decision on this aspect of the case, counsel for the respondent refers to the situation mentioned by Lord Cairns in Julius v Bishop of Oxford (1880) LR 5 AC 214 at p.225: "where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised". This passage was quoted in Ward v Williams and the principle to which it refers was applied in Finance Facilities. Counsel argues, as the Tribunal held, that the purpose of s.7(2) li. is to provide a mechanism for extending to each member of an additional class of persons the benefit of being treated under the Act as a person who has retired on the ground of physical or mental incapacity. The matter is one of impression, not admitting of much @laboration, but we are not persuaded that it was the intention of Parliament that the Commissioner should be bound to make a direction, where the preconditions are met, that an employee be deemed to have retired on the ground of incapacity. There are two reasons for our view. First, s.7(2) may operate under a wide variety of circumstances. On the one hand there may be a case in which an employee has suffered a long-term incapacity and could readily have retired on that ground but where, through pride, embarrassment, ignorance or confusion -- possibly the product of the incapacity itself -- the employee chose simply to resign. Without the sub-section that choice might result in irrevocable prejudice to the employee. It is readily understandable that Parliament should have wished to avoid such a situation. At the other extreme there may be a case in which the employee has committed an act which would, in the usual course, have led to dismissal but, before dismissal, has become incapacitated - perhaps even as a result of the wrongful act. An example, mentioned during the argument, is the case of an employee who steals his employer's car and crashes it, suffering an incapacitating injury. It would be surprising if it were intended that, notwithstanding the conduct of the employee and 12. its result, the Commissioner was bound to admit him or her to the benefits of an employee retired on the ground of incapacity. Similarly, it would be surprising 1f Parliament intended that an employee who resigned during a temporary incapacity for work, for example because of illness, must be treated in the same way as one who retired because of an incapacitating permanent injury. In our opinion, it is too simplistic to describe s.7(2) as creating a power intended to be used for the benefit of persons who comply with its pre-conditions. Rather, we see it as a provision designed to avoid injustice in cases where an employee might be thought to be morally entitled to a pension, because effectively forced out of his or her employment for health reasons, but is not within sub-s.(1). Because the circumstances of individual cases must differ widely it is impossible to cast such a provision in a rigid form; a discretion must be vested in a suitable person, to be exercised upon the merits of the individual case. The industrial and medical history of the applicant for a pension is undoubtedly material to the decision to be made. Otherwise, as the relevant matters are unspecified in the legislation, it is for the Commissioner to determine what matters are to be taken into account and the weight to be given to them "unconfined except in so far as the subject matter and the scope and purpose" of s.7(2) enables a court to say that "given reasons are definitely extraneous to any objects the legislature could have had in view": see the words of Dixon J in Water Conservation Commission v_ Browning (1947) 74 CLR 492 at p.505 adopted in The Queen v Australian Broadcasting Tribunal; ex parte 2HD Pty Limited (1979) 144 CLR 45 at p.49. The ultimate 13. question for the Commissioner is whether it would be reasonable, having regard to the interests not only of the applicant for a pension but of other contributors to the superannuation fund, to treat the applicant as being entitled to the same benefits as if he or she had retired on the ground of invalidity. The Commissioner's decision is, of course, itself subject to review by the Administrative Appeals Tribunal. The second matter which influences us to reject the argument that s.7(2) imposes an obligation upon the Commissioner is the language used in other sections of the Act. Elsewhere, where an obligation is intended to be imposed upon the Commissioner, the word "shall" is used: see, for example, s.16(4) and compare the use of the word "may" in respect of matters clearly intended to be discretionary, for example ss.1l, 12, 13, 14, 15, 16(2). In some cases -- for example ss.9, 10, 58 -- the word "shall" has been used in connection with a deeming provision. Whilst it is important to the operation of s.7(2) that there be an overt act of the Commissioner establishing his satisfaction that the employee was incapacitated at the time of retirement, it would have been consistent with the careful use of terminology in the Act to then provide that the Commissioner "shall direct" -- not "may direct" ~~ if it had been intended to impose upon him an obligation. Counsel for the respondent submits that ss.75 and 79 of the Superannuation Act provide the answers to some of the anomalies suggested on behalf of the applicant. We do not think that they do. Section 75 applies only to a case in which the 14. health of the former employee has been restored after his retirement. It has no relevance to a case in which the former employee remains incapacitated but is a person whose employment would have been terminated in any event and regardless of incapacity. Section 79 deals only with a limited situation where incapacity flows from a wilful act of the employee done for the purpose of obtaining invalidity benefit. Both parties sought to support their argument upon the second question in the case by reference to the decision of the Full Court of this Court in Defence Force Retirement and Death Benefit Authority v Britt (1984) 4 FCR 306. That decision related to s.37 of the Defence Force Retirement and Death Benefits Act 1973 which provides that where a contributing member has been retired otherwise than on the ground of invalidity or of physical or mental incapacity to perform his duty but, after his retirement, the relevant Chief of Staff informs the Authority that, at the time of retirement, grounds existed on which he could have been retired on the ground of invalidity or incapacity "he may, for the purpose of this Act, be treated as if he had been retired on that ground". Ina judgment which set out the relevant principles and referred to both Ward v Williams and Finance Facilities the Full Court held that the section conferred a discretion upon the Authority. Although the wording of the Defence Force Retirement and Death Benefits Act differs from that of s.7(2) of the Superannuation Act, the scheme of the two provisions is similar. The submissions put on behalf of the 15. respondent in the present case are very close to those put, and rejected, in Britt. In our view the conclusion at which we have arrived is supported by that decision. In the result the applicant succeeds on one of the two matters of law argued before us. The decision of the Administrative Appeals Tribunal must, therefore, be set aside. The matter should be remitted to the Tribunal, to be heard and decided again, in accordance with these reasons for judgment, with such further evidence as the Tribunal may admit. As counsel for the applicant has informed the Court that his client does not seek an order for costs, in the event of the appeal succeeding, there will be no order for costs. I certify this and the fourteen (14) preceding pages to be a true copy of the Reasons for Judgment of herein the Court. Dated: 15 December 1996 Counsel for the Applicant: Mr J Karkar Solicitors for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr WJ N Wells Solicitors for the Respondent: Gibson and Gibson Date of hearing: 17 November 1986	5,764
federal_court_of_australia:fca/single/2010/2010fca1401	decision	commonwealth	federal_court_of_australia	text/html	2010-12-10 00:00:00	Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2010/2010fca1401	2024-09-13T22:52:33.870778+10:00	FEDERAL COURT OF AUSTRALIA Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401 Citation: Smith, in the matter of In House Management Service Pty Ltd v In House Management Service Pty Ltd [2010] FCA 1401 Parties: BRIAN SMITH and GILLIAN KENWAY v IN HOUSE MANAGEMENT SERVICE PTY LTD (ACN 127 749 277) File number: QUD 463 of 2010 Judge: COLLIER J Date of judgment: 10 December 2010 Legislation: Corporations Act 2001 (Cth) ss 459C, 459F, 467(1) Date of hearing: 10 December 2010 Place: Brisbane Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Counsel for the First and Second Plaintiffs: Mr M Bowman Solicitor for the First and Second Plaintiffs: Ponting & Co Counsel for the Defendant: The Defendant did not appear IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 463 of 2010 IN THE MATTER OF IN HOUSE MANAGEMENT SERVICE PTY LTD (ACN 127 749 277) BETWEEN: BRIAN SMITH First Plaintiff GILLIAN KENWAY Second Plaintiff AND: IN HOUSE MANAGEMENT SERVICE PTY LTD (ACN 127 749 277) Defendant JUDGE: COLLIER J DATE OF ORDER: 10 DECEMBER 2010 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. The respondent, In House Management Services Pty Ltd ACN 127 749 277 be wound up in insolvency. 2. Jason Bettles and Raj Khatri of Worrells Solvency and Forensic Accountants, Level 6, 50 Cavill Avenue, Surfers Paradise, Queensland 4217, official liquidators, be appointed by the Court to act as liquidators of In House Management Services Pty Ltd ACN 127 749 277 3. The applicants' costs (including reserved costs, if any) be taxed and reimbursed out of the property of the corporation in accordance with section 466(2) of the Corporations Act 2001 (Cth). Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 463 of 2010 IN THE MATTER OF IN HOUSE MANAGEMENT SERVICE PTY LTD (ACN 127 749 277) BETWEEN: BRIAN SMITH First Plaintiff GILLIAN KENWAY Second Plaintiff AND: IN HOUSE MANAGEMENT SERVICE PTY LTD (ACN 127 749 277) Defendant JUDGE: COLLIER J DATE: 10 DECEMBER 2010 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This matter was referred to a Judge of this Court by the District Registrar. The applicant sought orders for the winding up of the respondent in liquidation and the appointment of official liquidators. 2 The respondent did not appear in Court before me. Mr Bowman for the respondent submitted that this was the third time that the applicant's application for winding up in insolvency of the respondent had come before the Court, and at no time has the respondent entered an appearance. 3 I understand that previously the Deputy District Registrar found that all relevant documentation in relation to the winding up of the respondent had been filed by the applicant with the Federal Court Registry, and that no substantial injustice had been caused by a minor deviation in the form of statutory demand served upon the respondent. The only live issue, and the reason the matter has been referred to me, is that the applicant filed the application for winding up the respondent one day after the expiration of three months from the date on which the respondent failed (as defined by s 459F) to comply with a statutory demand. So far as relevant, s 459C of the Corporations Act 2001 (Cth) ("the Act") provides that: Presumptions to be made in certain proceedings (1) This section has effect for the purposes of: (a) an application under section 234, 459P, 462 or 464; or … (2) The Court must presume that the company is insolvent if, during or after the 3 months ending on the day when the application was made: (a) the company failed (as defined by section 459F) to comply with a statutory demand; or … 4 There is undisputed evidence before the Court that a statutory demand with supporting affidavit was served by the applicant on the respondent at its registered office on 6 July 2010, and that as at 27 July 2010 (21 days later) the respondent had failed to comply with the requirements of the statutory demand. Section 459F operates so as to deem the respondent to have failed to comply with the statutory demand 21 days after the demand was served. 5 It follows that, for the Court to be required to presume that the respondent was insolvent as a result of its failure to comply with the applicant's statutory demand, the applicant ought to have filed an application for the winding up in insolvency of the respondent within 3 months of the respondent's failure to comply with the statutory demand. Accordingly, to enliven s 459C(2)(a) of the Act, the application for winding up of the respondent ought to have been filed by 27 October 2010. 6 I note from the affidavit of Ms Xara Coassin, solicitor for the applicant, filed 9 December 2010 that an application for the winding up in insolvency of the respondent was not accepted for filing by the Federal Court Registry on 27 October 2010 because that application was in a superseded form. Ms Coassin deposed that she was notified by the courier immediately of the circumstances pertaining to the Registry's rejection of the application form, and that she then drafted a new original application using the correct form. The application for winding up in insolvency of the respondent was subsequently filed on 28 October 2010. 7 In summary, it is not in dispute that the respondent has never complied with the statutory demand served upon it on 6 July 2010. The application for winding up in insolvency of the respondent was filed only one day beyond the date by when the Court would have been required to presume the respondent's insolvency, for reasons explained by Ms Coassin in her affidavit. The respondent has not disputed the applicant's claims, either before me or in prior proceedings. It is clear that the respondent is, in fact, insolvent, and that an order should be made for it to be wound up in insolvency. In my view for the avoidance of doubt the Court should exercise its discretion to make a winding up order under s 467(1)(c) of the Act. Section 467(1) provides: Subject to subsection (2) and 467A, on hearing a winding up application the Court may: (a) dismiss the application with or without costs, even if a ground has been proved on which the Court may order the company to be wound up on the application; or (b) adjourn the hearing conditionally or unconditionally; or (c) make any interim or other order that it thinks fit. 8 Finally, at the hearing the applicant did not seek any orders as to costs. Subsequent to the hearing however Counsel for the applicant sought an order that the respondent bear the applicant's costs in these proceedings. I note that the applicant had, in the application, sought its costs. In my view it would be appropriate to order that the applicant's costs be paid by the respondent. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 15 December 2010	1,771
federal_court_of_australia:fca/single/2021/2021fca1211	decision	commonwealth	federal_court_of_australia	text/html	2021-10-06 00:00:00	5G Developments Pty Ltd (in liq) v Massie, in the matter of 5G Developments Pty Ltd (in liq) (No 3) [2021] FCA 1211	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca1211	2024-09-13T22:52:34.040195+10:00	Federal Court of Australia 5G Developments Pty Ltd (in liq) v Massie, in the matter of 5G Developments Pty Ltd (in liq) (No 3) [2021] FCA 1211 File number(s): NSD 1288 of 2019 NSD 1536 of 2019 Judgment of: stewart J Date of judgment: 6 October 2021 Catchwords: PRACTICE AND PROCEDURE – leave to act for a corporation – where the applicant is a non-lawyer – where there are multiple proceedings – where there are complex issues of law and fact in the proceedings – application dismissed Legislation: Federal Court Rules 2011 (Cth) rr 1.34, 4.01(2) Cases cited: Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 Re 5G Developments Pty Ltd (in liq) (No 2) [2021] FCA 887 Re 5G Developments Pty Ltd (in liq) [2021] FCA 791 Re 5G Developments Pty Ltd [2019] FCA 1541 Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 124 Division: General Division Registry: New South Wales National Practice Area: Commercial and Coporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 26 Date of hearing: 6 October 2021 NSD 1536 of 2019 Counsel for the First and Second Plaintiff: C Harris SC and E Keynes Solicitor for the First and Second Plaintiff: Colin Biggers & Paisley Counsel for the First Defendant: First Defendant appeared in person with leave on behalf of the Second, Fourth, Fifth and Sixth Defendant Solicitor for the Third Defendant: S Pateman of Pateman Legal Counsel for the Seventh Defendant: A Fernon SC Solicitor for the Seventh Defendant: O'Neill McDonald Lawyers Pty Ltd NSD 1288 of 2019 Counsel for the First and Second Plaintiff: C Harris SC and E Keynes Solicitor for the First and Second Plaintiff: Colin Biggers & Paisley Counsel for the First, Second and Third Defendant: H Massie appeared on behalf of the First, Second and Third Defendant with leave ORDERS NSD 1536 of 2019 BETWEEN: 5G DEVELOPMENTS PTY LTD (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LTD) (IN LIQ) (and another named in the Schedule) First Plaintiff AND: HUGH HAMON ROBERT MASSIE (and others named in the Schedule First Defendant AND BETWEEN: SPV28 PTY LTD Cross-Claimant AND: 5G DEVELOPMENTS PTY LTD (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LTD) (IN LIQ) (and others named in the Schedule) First Cross-Respondent AND BETWEEN: SAPSFORD FINANCIAL SERVICES PTY LTD (and another named in the Schedule) First Cross-Claimant AND: 5G DEVELOPMENTS PTY LTD (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LTD) (IN LIQ) (and others named in the Schedule) First Cross Respondent IN THE INTERLOCUTORY APPLICATION BETWEEN: HUGH HAMON ROBERT MASSIE Applicant AND: 5G DEVELOPMENTS PTY LIMITED (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LIMITED) (IN LIQUIDATION) ACN 114 458 061 (and another named in the Schedule) First Respondent ORDER MADE BY: STEWART J DATE OF ORDER: 6 OCTOBER 2021 THE COURT ORDERS THAT: 1. The interlocutory application filed by the first defendant on 18 August 2021 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. ORDERS NSD 1288 of 2019 BETWEEN: ALAN JOHN HAYES AS OFFICIAL LIQUIDATOR OF DENHAM CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 086 503 568 (and another named in the Schedule) First Plaintiff AND: 5G CAPITAL INVESTMENTS PTY LTD ACN 002 738 785 (and others named in the Schedule) First Defendant IN THE INTERLOCUTORY APPLICATION BETWEEN: HUGH HAMON ROBERT MASSIE Applicant AND: DENHAM CONSTRUCTIONS PTY LTD (IN LIQUIDATION) ACN 086 503 568 (and others named in the Schedule) First Respondent ORDER MADE BY: STEWART J DATE OF ORDER: 6 OCTOBER 2021 THE COURT ORDERS THAT: 1. The interlocutory application filed by Hugh Hamon Robert Massie on 18 August 2021 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from the transcript) STEWART J: 1 Before the Court for decision are applications by Hugh Hamon Robert Massie that he have leave to represent four companies, of which he is the sole director, before the Court at the combined hearing of two proceedings. I granted Mr Massie leave to represent the companies in previous interlocutory hearings and in the present interlocutory hearing for leave. The hearing of the two proceedings, along with a third proceeding (NSD316/2020), which has been listed on an estimate of seven days in April next year, is qualitatively different from the interlocutory hearings and the present hearing: it is a final hearing, it will involve adducing evidence from and cross-examining several witnesses, there will be a substantial volume of documents, and several interrelated and overlapping factual and legal issues will have to be resolved. For that reason I required formal applications to be made for leave for Mr Massie to represent the four companies. 2 Mr Massie filed interlocutory applications in each of the two proceedings on 18 August 2021 in which he seeks leave to represent the companies. He is the first defendant in proceeding NSD 1536 of 2019. 3 The need for leave arises from r 4.01(2) of the Federal Court Rules 2011 (Cth) which provides that a corporation must not proceed in the Court other than by a lawyer. Leave is sought pursuant to r 1.34 of the Rules which provides that the Court may dispense with compliance with any of the rules, either before or after the occasion for compliance arises. 4 The four companies in question are 5G Capital Investments Pty Ltd, 5G Capital SPV27 Pty Ltd, SPV28 Pty Ltd and 5G Capital Management Pty Ltd. The companies are all part of what is referred to as the 5G Group and are, in effect, Mr Massie's companies. I will refer to them as the 5G companies. On the evidence before me, Gajah Investments Pty Ltd owns all the shares in 5G Capital Management and 5G Capital Investments, and 5G Capital Investments owns all the shares in 5G Capital SPV27 and SPV28. The identity of the officers and shareholders of Gajah Investments is not apparent on the evidence. 5 In proceeding NSD 1536 of 2019, Mr Massie and the 5G companies are defendants. There are also two other defendants, Pepperfield Holdings Pty Ltd and Sapsford Financial Services Pty Ltd. The plaintiffs are 5G Developments Pty Ltd (formerly known as Denham Wyndham Pty Ltd) (in liquidation) (DW) and its liquidator, Alan Hayes. The plaintiffs make preference claims on a variety of bases in relation to a number of different transactions. They also seek a discharge or release of Denham Constructions Pty Ltd from any liability under an assignment or variation of the assignment and the discharge and release of DW from a guarantee. 5G Capital SPV27 is a party to the assignment. The plaintiffs and Sapsford oppose leave being granted whereas Pepperfield adopts a neutral position. 6 There are two cross-claims in proceeding NSD 1536 of 2019. In the first cross-claim, SPV28 claims against a number of parties for rectification of two agreements. In the second cross-claim, in which Sapsford and Pepperfield are the cross-claimants, 5G Capital Investments is the second cross-respondent. 7 In proceeding NSD 1288/2019, three of the 5G companies are defendants. Mr Massie and 5G Capital Management are not parties to that proceeding. The plaintiffs in that proceeding are Denham Constructions Pty Ltd (in liquidation) and Mr Hayes as liquidator of Denham Constructions. The plaintiffs seek to set aside an assignment deed and a deed of variation, to which 5G Capital SPV27 is a party, on the basis that they are one or more of an uncommercial transaction, an insolvent transaction, an unfair loan or a voidable transaction. Further relief is also sought. 8 From that briefest of overviews, it is apparent that the proceedings involve considerable complexity, both factual and legal. To that can be added the observation that very substantial sums of money are at stake. Mr Massie has said that the total claims against him and the 5G companies amount to more than $14 million. 9 The 5G companies rely on an affidavit of Mr Massie sworn on 17 August 2021 in support of the applications for leave. Relevantly, that affidavit establishes the following additional facts: (1) Mr Massie is also a director of Pepperfield Holdings, although he is not the sole director and that company which is separately represented in the proceedings. (2) Mr Massie has a Bachelor of Commerce degree from the University of New South Wales obtained in 1985. He previously practised as a chartered accountant for 10 years until 1996 with a large international firm. Through the 5G group he has operated a business of "providing capital solutions to early stage and distressed businesses". (3) Mr Massie intends representing himself in the proceedings. (4) Mr Massie has no assets or income in Australia. (5) The 5G companies have previously incurred approximately $690,000 in legal fees in the proceedings before they terminated their representation by solicitors and counsel and became represented by Mr Massie. (6) If the 5G companies were to again engage lawyers to represent them a similar sum of money would be required to see the proceedings through to finality. 10 Mr Massie also states the following in his affidavit: "The sole assets that the defendants would have available from PH/PIT1 to pay legal representatives are the subject of the Federal Court of Australia's restraining orders made on 16 August 2021." 11 Mr Massie relies on that statement and that he has no assets or income in Australia to make the submission that the 5G companies are not able to afford legal representation. However, there is no evidence before me dealing with Mr Massie's assets or income elsewhere in the world, in particular in the USA where he is resident. There is also no evidence of what assets the 5G companies have to pay for legal representation other than what they would have had available from "PH/PIT1" but for the restraining orders referred to by Mr Massie in his affidavit. 12 Given his training as a chartered accountant, and his experience over many years running companies, Mr Massie can be expected to know that the way to prove a company's financial position is by producing its audited financial statements and accounts. He has produced no such records in respect of the 5G companies. The Court is left not knowing what their financial position is. There is also no evidence as to the financial position of the ultimate holding company of the 5G companies, Gajah Investments. Mr Massie said that it has no assets, but there is no evidence to support that. 13 In the circumstances, I am not able to accept Mr Massie's submissions that the 5G companies are unable to afford legal representation. 14 Turning now to the law with reference to which the question of leave must be considered, the following principles can be identified from the authorities: (1) Although in some jurisdictions and under some other court rules "exceptional circumstances" are required to be shown in order for leave to be granted to a corporation to be represented by a non-lawyer, that is not the case under the Rules of this Court where the position is not as restrictive; there is no threshold requirement of special or exceptional circumstances: Termi-Mesh Australia Pty Ltd v Josu Manufacturing Pty Ltd [1999] FCA 1241 at [10]-[12] per French J; Pharm-a-Care Laboratories Pty Ltd v Commonwealth of Australia (No 12) [2012] FCA 289 at [18] per Flick J. (2) Nevertheless, the policy of the rule is clear that ordinarily a corporation will be required to be represented by a lawyer: Termi-Mesh at [13]. (3) The power to dispense with that requirement should be exercised by reference to "all relevant considerations": Molnar Engineering Pty Ltd v Burns (1984) 3 FCR 68 at 73; Pharm-a-Care at [18]. (4) Relevant factors for dispensing with that requirement include the financial capacity or lack of capacity of the corporation and those standing behind it, the effect of diverting company resources to paying legal expenses, the nature of the company's undertaking, its financial structure, its ability to retain and pay its staff and the identity and spread of its shareholders: Termi-Mesh at [13]. (5) A distinction may be drawn between the case in which the company in question is applicant and that in which it is a respondent – in the latter case it may be that a more liberal approach to the grant of leave is warranted: Termi-Mesh at [14]; Enviro Pak Pty Ltd v New Horticulture Pty Ltd [2013] FCA 306 at [17] per Griffiths J. (6) Also relevant is the complexity of the case and the difficulty that a non-lawyer will have in dealing efficiently with the legal and factual issues involved: Termi-Mesh at [14]; Pharm-a-Care at [20]-[21]. (7) The unavailability of disciplinary measures and a duty to the court by lay advocates and the importance of protecting the client and the opponent from unqualified, unaccredited and uninsured lay advocates are factors that weigh against leave being granted: Pharm-a-Care at [20]-[21]. 15 There is no dispute about the applicable principles. 16 In my view this is not an appropriate occasion to exercise the discretion in Mr Massie's favour by granting leave to the 5G companies to be represented by him rather than by a lawyer. I reach that conclusion in consideration of a number of factors. 17 First, as mentioned, I am not satisfied on the evidence that neither the 5G companies nor those who stand behind them have the means to appoint legal representation. The evidence is insufficient to support Mr Massie's submissions in that regard. 18 Secondly, also as mentioned, the proceedings are legally and factually complex and much is at stake. The Court requires, and is entitled to, proper assistance from the parties in dealing with the matter including in the conduct of the trial and reaching a judgment. While I accept, as submitted by Mr Massie, that he has shown in his appearances before me to act in a reasonable, constructive and measured way, by his own admission he is not qualified in the law. Meaning no disrespect to him at all, the truth of the matter is that he does not have the requisite learning and understanding in the substantive aspects of the law which will need to be called on in this case, including in relation to complex questions such as rectification. Neither does he have learning and experience in important adjectival aspects of the law, including the intricate skills of cross-examination and the law of evidence. 19 The truth of the matter is that these proceedings, which are to be heard together, are not run-of-the-mill or everyday proceedings. As previous judgments in them demonstrate, the relevant events span a significant period of time, there are innumerable transactions that are interrelated and have knock-on effects, there are multiple parties with overlapping and diverging interests, there are multiple witnesses and there is a very considerable volume of documentation: Re 5G Developments Pty Ltd [2019] FCA 1541; Re 5G Developments Pty Ltd (in liq) [2021] FCA 791; Re 5G Developments Pty Ltd (in liq) (No 2) [2021] FCA 887. With all the goodwill in the world, Mr Massie has not demonstrated that he has the ability to adequately represent the companies and assist the Court in such a context. 20 Thirdly, Mr Massie will be an important witness in the case and is likely to be subjected to long cross-examination. It will put him in a difficult position, and it will inevitably prejudice the 5G companies, if, as a witness, he also has to deal with objections on the companies' behalf. In giving evidence he will be responsible for multiple interests, including his own as a witness and as a party and as representative of each of the 5G companies. It may be that no conflict arises between those interests, but one cannot be confident in that regard. More particularly, he will be in an invidious position trying to protect all those interests at the same time even if they are not in conflict with each other. 21 Fourthly, while the 5G companies are for the most part defendants to claims brought against them by others, which is a factor which would weigh to some degree in favour of leave being granted, SPV28 is the moving party as cross-claimant in the second cross-claim. That is a complicated claim for rectification in which seven cross-respondents are cited. There is no good reason why those parties should face the prejudice of such a claim being conducted by a non-lawyer. The fact of the 5G companies otherwise being defendents is accordingly substantially neutralised. 22 Fifthly, I do not consider Mr Massie's reliance on the fact that neither he nor the 5G companies were contacted prior to the proceedings being commenced to be relevant. It may be, as he says, that had he been contacted in advance, settlement of the claims prior to proceedings being commenced would have been achieved. But that did not happen and there are proceedings on foot that the parties have not been able to settle despite having engaged in mediation. I am now concerned with the future progress of those proceedings and whether the companies should be permitted to be represented by a non-lawyer. What happened prior to the proceedings being commenced is of no relevance to that question. 23 Sixthly, I accept that even if Mr Massie does not represent the 5G companies he will nevertheless represent himself. Whilst that weighs to some degree in favour of leave being granted inasmuch as not granting leave will not avoid the difficulties presented by a self-represented party in proceedings such as this, it does not alter the balance against leave being granted. If leave were granted, the companies would still stand to be prejudiced, the Court would still not have the assistance of the companies being legally represented, the other parties would be prejudiced and Mr Massie would be trying to manage several different and possibly conflicting interests at once. 24 In the result, the applications for leave should be dismissed. 25 There is no apparent reason why the costs should not follow the result. Mr Massie should therefore pay the costs of the applications. 26 I accordingly make the following orders in proceeding NSD 1536 of 2019 and in proceeding NSD 1288 of 2019: the interlocutory application filed on 18 August 2021 is dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stewart. Associate: Dated: 7 October 2021 SCHEDULE NSD 1536 of 2019 Plaintiffs Second Plaintiff: ALAN JOHN HAYES Interested Person: GLENN LIVINGSTONE IN HIS CAPACITYAS SPECIAL PURPOSE LIQUIDATOR OF 5G DEVELOPMENTS PTY LTD (FORMERLY KNOWN AS DENHAM WYNDHAM PTY LTD) (IN LIQUIDATION) Defendants Second Defendant: 5G CAPITAL INVESTMENTS PTY LTD Third Defendant: PEPPERFIELD HOLDINGS PTY LTD Fourth Defendant: 5G CAPITAL SPV27 PTY LTD Fifth Defendant: SPV28 PTY LTD Sixth Defendant: 5G CAPITAL MANAGEMENT PTY LTD Seventh Defendant: SAPSFORD FINANCIAL SERVICES PTY LTD CROSS CLAIM Cross-Respondents Second Cross-Respondent: DENHAM CONSTRUCTIONS PTY LTD (IN LIQ) Third Cross-Respondent: STEVEN JAMES MCGRATH Fourth Cross-Respondent: MASTER RECEPTION PTY LTD (FORMERLY KNOWN AS DENHAM CONSTRUCTIONS PROJECT COMPANY 910 PTY LTD) (IN LIQ) Fifth Cross-Respondent: PC 940 PTY LTD (FORMERLY KNOWN AS DENHAM CONSTRUCTIONS PROJECT COMPANY 940 PTY LTD) (IN LIQ) Sixth Cross-Respondent: MHI HIRE PTY LTD (IN LIQ) Seventh Cross-Respondent: AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION CROSS CLAIM Cross-Claimants Second Cross-Claimant: PEPPERFIELD HOLDINGS PTY LTD Cross-Respondents Second Cross-Respondent: 5G CAPITAL INVESTMENTS PTY LTD INTERLOCUTORY APPLICATION Respondents Second Respondent: ALAN JOHN HAYES Third Respondent: PEPPERFIELD HOLDINGS PTY LTD Fourth Respondent: SAPSFORD FINANCIAL SERVICES PTY LTD NSD 1288 of 2019 Plaintiffs Second Plaintiff: DENHAM CONSTRUCTIONS PTY LTD (IN LIQUIDATION) Defendants Second Defendant: 5G CAPITAL SPV27 PTY LTD Third Defendant: SPV28 PTY LTD INTERLOCUTORY APPLICATION Respondents Second Respondent: ALAN JOHN HAYES	4,912
federal_court_of_australia:fca/single/2000/2000fca1196	decision	commonwealth	federal_court_of_australia	text/html	2000-08-25 00:00:00	First Lighting Flagstaff Pty Ltd v Vossloh-Schwabe Australia Pty Ltd [2000] FCA 1196	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2000/2000fca1196	2024-09-13T22:52:36.726233+10:00	FEDERAL COURT OF AUSTRALIA First Lighting Flagstaff Pty Ltd v Vossloh-Schwabe Australia Pty Ltd [2000] FCA 1196 PRACTICE AND PROCEDURE – Security for costs – applicant is Trustee – no evidence of means of beneficiaries – exercise of discretion – whether security would frustrate litigation – assessment of quantum. Federal Court of Australia Act 1976 (Cth): s 56 Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 applied Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40‑972 applied World Class Alpacas Pty Ltd v Ostrich Farms (Cook Islands) Ltd [1997] FCA 1193 followed FIRST LIGHTING FLAGSTAFF PTY LTD v VOSSLOH-SCHWABE AUSTRALIA PTY LTD & ANOR V 360 of 2000 GOLDBERG J 25 AUGUST 2000 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 360 of 2000 BETWEEN: FIRST LIGHTING FLAGSTAFF PTY LTD (ACN 055 761 316) Applicant AND: VOSSLOH-SCHWABE AUSTRALIA PTY LTD (ACN 003 835 229) First Respondent ASSOCIATED LIGHTING DISTRIBUTORS PTY LTD (ACN 085 551 695) Second Respondent JUDGE: GOLDBERG J DATE OF ORDER: 25 AUGUST 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The applicant provide security for the costs of the respondents up to the commencement of the final hearing of the proceeding: (a) in the sum of $70,000 in respect of the first respondent; (b) in the sum of $50,000 in respect of the second respondent; to the satisfaction of the District Registrar of the Court. 2. Such security is to be provided by 25 September 2000 and in default of the provision of such security the application of the applicant be stayed until further order in respect of such respondent for whose costs security has not been provided in accordance with this order. 3. The applicant pay forthwith the respondents' costs of and incidental to the motions filed 29 June 2000 and 12 July 2000. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 360 of 2000 BETWEEN: FIRST LIGHTING FLAGSTAFF PTY LTD (ACN 055 761 316) Applicant AND: VOSSLOH-SCHWABE AUSTRALIA PTY LTD (ACN 003 835 229) First Respondent ASSOCIATED LIGHTING DISTRIBUTORS PTY LTD (ACN 085 551 695) Second Respondent JUDGE: GOLDBERG J DATE: 25 AUGUST 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The first respondent and the second respondent each seek an order pursuant to s 56 of the Federal Court of Australia Act 1976 (Cth) ("the Act") that the applicant provide security for its costs of the proceeding. The first respondent seeks security in the sum of $600,000 to be provided as to $300,000 by 31 August 2000 and $300,000 by a date six weeks prior to the first date of the trial. The second respondent seeks security in the sum of $140,000. 2 The major thrust of the applicant's claims are made against the first respondent rather than the second respondent. The applicant's claim against the respondents is that the first respondent has breached an agreement entered into between the applicant and the first respondent in July 1999 whereby the first respondent agreed to supply low voltage transformers to the applicant. The applicant also claims that in or about August 1999 the second respondent intentionally induced the first respondent to breach the agreement and to supply low voltage transformers to the second respondent rather than to the applicant. The applicant claims that by refusing to supply the transformers to the applicant, and by supplying them to the second respondent, the first respondent has taken advantage of its power in what the applicant calls "the manufacturers' market" for the purpose of eliminating or substantially damaging the applicant as a competitor in the market for the distribution of the transformers and for the purpose of deterring or preventing the applicant from engaging in competitive conduct in that market in contravention of s 46 of the Trade Practices Act 1974 (Cth). There is an associated claim for contravention of s 45 of the Trade Practices Act. 3 The trading relationship between the applicant and the first respondent pre‑dated the events and conduct raised in the statement of claim. Prior to 27 November 1998 the applicant had been purchasing transformers from the first respondent and it had incurred debts to the first respondent amounting to $900,000. On 27 November 1998 the applicant sent a letter to the first respondent offering repayment of the debt by instalments on a monthly basis. On 13 April 1999 the applicant sent a letter to the first respondent in respect of its outstanding indebtedness. In the letter the applicant explained its financial situation and noted that there would be a deficiency if it was then placed in liquidation. The other issues raised in the letter are not relevant for present purposes. The letter predicted that on a liquidation, stock would realise around 40% of its book value, debtors would realise around 80% of their book value and plant and equipment would realise around 30% of their book value. On 11 May 1999 the applicant and the first respondent entered into an agreement that stipulated the terms upon which the applicant would repay its indebtedness, then $2,479,018.00. Those terms were spread over fifteen years. 4 The second respondent's solicitor has estimated that the second respondent's costs, based upon a twenty day trial, will be in excess of $140,000. His assessment is confirmed by an independent costs consultant who has estimated the second respondent's total costs and disbursements to the commencement of the trial at $62,050 and the costs of the trial at $78,750. 5 The first respondent's solicitor has estimated the first respondent's costs in three stages on the basis of a twenty day trial: · Up to setting down for trial $ 80,000 · Pre-trial $220,000 · Trial $340,000 6 As I have noted earlier the first respondent will bear the burden of responding to the majority of the allegations made in the statement of claim. As a result, the first respondent's estimate of its costs is substantially in excess of that made by the second respondent. It is not a useful exercise to analyse each item of costs identified by the first respondent but I note that there are particular matters which explain part of the substantial difference between the respondents' estimates. The first respondent's solicitor has allowed for: · Expert accountants' reports relating to the damages claim $ 25,000 · Expert economic evidence in relation to the Trade Practices Act claims $100,000 · Retainer of senior counsel $150,000 7 The applicant was incorporated on 8 April 1992 and has been trading since that date. It has a paid‑up capital of $200. It carries on the business of importing, assembling and distributing lighting and allied products. It does not carry on business on its own account but rather as trustee of the Slimline Unit Trust. There are seven registered charges over its assets, which it holds as trustee, to secure indebtedness of the order of $1.3 million. 8 The applicant has produced balance sheets as at 31 December 1999 and 31 March 2000 and profit and loss statements for the six months ended 31 December 1999 and for the three months ended 31 March 2000. Although the balance sheets show an excess of assets over liabilities of $179,703 and $242,964 respectively, it is necessary to take into account the fact that a substantial component of the current assets shown is receivables and inventory which do not necessarily realise their book value particularly on a liquidation. Although the applicant's bank has recently approved a further overdraft facility of $150,000 the applicant acquired this facility to enable it to purchase stock. It is also necessary to take into account the fact that the applicant has to fund its prosecution of the proceeding. 9 The following figures are disclosed by the applicant's income tax returns: · Year ended 30 June 1997 Income $ 8,786,478 Net profit $ 244,038 · Year ended 30 June 1998 Income $10,222,755 Net profit $ 363,975 · Year ended 30 June 1999 Income $ 7,593,513 Net profit $ 9,328 10 The Managing Director of the applicant, Mr Steven Peck, said that the weakness of the applicant's financial position has arisen as a result of the conduct of the first respondent and the second respondent set out in the statement of claim. I am not prepared to draw this inference having regard to the evidence which was placed before the Court. Although Mr Peck said that as a result of the first respondent's refusal to deliver consignments of transformers the applicant has lost a profit of the order of $60,000 per container in respect of eight containers, it is apparent that a decline in the applicant's financial position had set in well before the occurrence of the conduct alleged. 11 In a County Court proceeding brought by Osram Australia Pty Ltd against the applicant for the recovery of a debt of $41,389.84 the applicant alleged in the counterclaim it filed that in April 1999 employees of Osram defamed it by saying that it was bankrupt and unable to pay bills. In the counterclaim the applicant alleged that as a consequence, a number of businesses would only supply the applicant with goods on a cash basis as a result of which it had been injured in its credit, reputation and business. 12 The conduct complained of in this proceeding only commenced after the agreement between the applicant and the first respondent was entered into in July 1999, from which date the applicant's turnover had dropped substantially and its net profit had decreased from $363,975 in the year ended 30 June 1998 to $9,328 in the year ended 30 June 1999. Counsel for the first respondent pointed out that the ratio of profit to turnover had declined from 3.11% in the year ended 30 June 1998 to 0.12% in the year ended 30 June 1999. 13 The deterioration in the applicant's financial position before the conduct complained of is demonstrated by the 11 May 1999 agreement in which the applicant and the first respondent agreed on the terms upon which the applicant would pay the debt of $2,479,018.00. That agreement was entered into as a result of issues which had arisen between the parties as to the terms upon which the debt was payable. The applicant wrote to the first respondent on 13 April 1999 contesting that the whole of the debt was payable and suggesting that if the debt were called up it will be forced into voluntary administration or liquidation. The applicant challenged the inferences which the first respondent invited me to draw from this letter, but I am satisfied on the basis of the whole of the evidence before me that prior to July 1999 the applicant's financial position had been deteriorating for some time and had reached the stage where the applicant was encountering financial difficulties. 14 As I noted earlier the applicant is the trustee of the Slimline Unit Trust constituted by deed executed on 21 April 1992. Under cl 23 of the Trust Deed the applicant is entitled to indemnity out of the trust assets in respect of liabilities it incurs acting as trustee but it is not entitled to any indemnity from any unit holder. 15 The respondents base their application for security for costs on s 56 of the Act which provides: "(1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him or her. … (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security." There are two other provisions by reference to which applications for security for costs may be made. Order 28 r 3 of the Federal Court Rules empowers the Court to order an applicant to give security for the costs of a respondent where, inter alia, an applicant is suing, not for its own benefit but for the benefit of some other person where there is reason to believe that the applicant will be unable to pay the costs of the respondent if ordered to do so. Section 1335(1) of the Corporations Law empowers the Court to require a corporation to give security for the costs of a defendant: "if it appears by credible testimony that there is reason to believe that the corporation will be unable to pay the costs of the defendant if successful in his, her or its defence". No restrictions or preconditions to the exercise of the jurisdiction are found in s 56 and the jurisdiction to be exercised under that section is not limited to the circumstances set out in O 28 r 3 or s 1335(1). In Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1 the Full Court of the Federal Court, referring to the Federal Court Rules, said at 3: "But those rules cannot operate so as to limit the wide power conferred by s. 56 itself. The discretion to make orders under s. 56 must be exercised judicially, but that is the only relevant limitation. Moreover, it is plain from the terms from O. 28 itself that r. 3 is not intended to be an exhaustive statement of the cases in which an order for security for costs can be made." In Pegasus Gold Inc v Bateman Project Engineering Pty Ltd [1999] FCA 1734, Mathews J rejected the submission that there was a threshold test to be found in s 56(1) to the effect that it had to be shown that the applicant would be unable to pay a respondent's costs if the respondent was successful in the proceeding before an order for security for costs could be made. 16 The principles which lie behind Bell Wholesale Co Ltd v Gates Export Corporation (supra) and the statements in it have been followed in a number of subsequent cases: DJM Developments Pty Ltd v Northern Territory of Australia (1992) 110 FLR 269 at 271; Impex Pty Ltd v Crowner Products Ltd (1994) 13 ACSR 440 at 445‑446; Ariss v Express Interiors Pty Ltd (in liq) [1996] 2 VR 507. 17 In considering whether an order for security for costs should be made the authorities have established that there are a number of discretionary considerations which may be considered: see, eg, Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405. In Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40‑972, Hill J listed six matters which the cases indicated were among the matters appropriate for consideration. Those matters were: "·the chances of success of the applicant; whether the applicant's claim is bona fide or a sham; · the quantum of risk that the applicant cannot satisfy a cost order; · whether use of the power would shut out a small company from making a genuine claim against a large company, i.e. is the power being used oppressively; · whether the impecuniosity arises out of the Act [sic] in respect to which relief is sought; · whether there are aspects of public interest which weigh in the balance against the making of an order; · whether there are any particular discretionary matters peculiar to the circumstances of the case." 18 One of the discretionary considerations established by authority which I should take into account is that an order for security for costs should not be made if to do so will frustrate the litigation. However, there is no explicit evidence or statement to that effect from the applicant. The applicant has submitted that the material before the Court does not warrant an order for security for costs but that if the Court takes a contrary view, the applicant should be able to pay the security by instalments to enable it to pay the money out of the cash flow rather than the capital or loan funds. 19 I am not satisfied that an order for security for costs would frustrate the litigation but in any event I have no evidence before me as to the financial position of those entities or persons who are the beneficiaries of the trust. In particular I have no evidence as to the financial position of the corporate unit holders in the trust nor of the individuals or entities who are entitled to the beneficial interest in the units held by the unit holders. 20 In Bell Wholesale Co Ltd v Gates Export Corporation (supra) the Full Court of the Federal Court said at 4: "In our opinion a court is not justified in declining to order security on the ground that to do so will frustrate the litigation unless a company in the position of the appellant here establishes that those who stand behind it and who will benefit from the litigation if it is successful (whether they be shareholders or creditors or, as in this case, beneficiaries under a trust) are also without means. It is not for the party seeking security to raise the matter; it is an essential part of the case of a company seeking to resist an order for security on the ground that the granting of security will frustrate the litigation to raise the issue of the impecuniosity of those whom the litigation will benefit and to prove the necessary facts." This statement of principle was approved and followed by McHugh J in the High Court in PS Chellaram & Co Ltd v China Ocean Shipping Co (1991) 102 ALR 321 at 323. 21 As there is no evidence before me as to the financial position of the entities or persons entitled to the beneficial interest in the trust, I do not take into account any consideration whether any order for security for costs which I might make would frustrate the litigation. 22 Although the applicant put in issue that it should not be ordered to provide any security for the costs of the respondents, I am satisfied on the material before the Court that the evidence as to the applicant's financial position is such that it is appropriate that an order for the security of the costs of the respondents be made. On the present state of the evidence it is apparent that the applicant's financial position has been deteriorating and that the applicant will be unable to satisfy any order that it pay the costs of the respondents if they are successful in the proceeding. 23 The applicant's solicitor challenged the respondents' solicitors' assessment of their costs and challenged their estimate of a twenty day trial; he estimated a ten day trial. He pointed to a number of items he said were either duplicated or excessive. I do not propose to compare the assessments item by item, but I take into account the applicant's solicitor's criticisms of a number of the items of costs identified by the respondents' solicitors. I also consider that in some respects the applicant's solicitor has under‑estimated the extent of work which will be required, by the first respondent in particular, and that the respondents have overstated their estimates of particular items. In particular, the first respondent's solicitor has estimated costs of $640,000 as solicitor/client costs but only allowed $40,000 of that amount as the difference between solicitor/client and party/party costs. The applicant's solicitor considers the first respondent's solicitor's estimate to be excessive and not recoverable on either a party/party or a solicitor/client basis. There is merit in this observation. The first respondent's solicitor's estimate is that around 93.5% of the first respondent's costs would be recoverable as party/party costs. The usual understanding is that the proportion of solicitor/client costs recovered as party/party costs on taxation is substantially less than this proportion. 24 The applicant's solicitor's criticisms of the respondents' solicitors' estimates of costs results in the applicant's solicitor's estimate of the first respondent's costs up to and including mediation being $35,000 and the second respondent's costs up to and including mediation being $25,400. Those amounts would be increased if the costs were estimated up to the commencement of trial. 25 An order for security for costs is no more than that, namely "security". Such an order does not provide an indemnity as to those costs: Brundza v Robbie & Co (No 2) (1952) 88 CLR 171 at 175; Menhaden Pty Ltd v Citibank NA (1984) 1 FCR 542 at 547; Bryan E Fencott & Associates Pty Ltd v Eretta Pty Ltd (1987) 16 FCR 497 at 515. Security for costs is no more than that, namely "security" and not an indemnity in respect of costs. 26 Having regard to all these considerations I consider that security for costs should only be ordered up to the commencement of the trial. The applicant submitted that if I was disposed to order security for costs I should only order security up to the stage of mediation. The proceeding is at an early stage and, as yet, no defences have been delivered. I do not consider it appropriate to order security for costs only up to the stage of mediation, as substantial amounts of work would have to be carried out before the mediation which would also be available as part of the preparation of the case for trial. In those circumstances I consider it appropriate to order security for costs up to the commencement of trial and to leave any application for the provision of security to cover the costs of the trial to a point of time closer to the hearing. 27 There is a substantial divergence between the costs estimates of the parties. I have taken into account the manner in which they have assessed their costs and the criticisms of the applicant's solicitor to which I have referred. As I propose to order security for costs beyond the stage of mediation and up to the commencement of the trial, it is necessary to take into account the work necessary to prepare for trial. I propose to take a similar approach to that taken by Sundberg J in World Class Alpacas Pty Ltd v Ostrich Farms (Cook Islands) Ltd [1997] FCA 1193. At 5 his Honour said: "As to quantum, Chanesman's solicitor has sworn a detailed affidavit estimating the costs up to and including the first day of the trial at $38,000. I do not regard all the items paid or expected to be paid as likely to be recovered in full on taxation. I have regard to the answering affidavit of the applicant's solicitor, whose estimate is $18,397. Doing the best I can, I think the appropriate sum is $28,000." 28 As the first respondent has the major carriage of the proceeding I consider that I should order a greater security for the first respondent rather than the second respondent. I therefore consider that security for costs in the sum of $70,000 should be provided for the costs of the first respondent up to the commencement of trial and security in the sum of $50,000 be provided for the costs of the second respondent up to the commencement of trial. The applicant should have until 25 September 2000 to provide such security to the satisfaction of the District Registrar and in default of the provision of such security the proceeding should be stayed until further order in respect of such respondent for whose costs security has not been provided. 29 The respondents have succeeded in obtaining orders in accordance with their motions and as they have succeeded on the merits of their applications, the applicant should pay the respondents' costs of the two motions. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg. Associate: Dated: 25 August 2000 Counsel for the Applicant: D F Hyde Solicitor for the Applicant: Arnold Bloch Leibler Counsel for the First Respondent: J Searle Solicitor for the First Respondent: Vann Fisher & Associates Counsel for the Second Respondent M A Robins Solicitor for the First Respondent: Nathan Kuperholz Date of Hearing: 2 August 2000 Date of Judgment: 25 August 2000	5,292
federal_court_of_australia:fca/single/2020/2020fca1597	decision	commonwealth	federal_court_of_australia	text/html	2020-07-30 00:00:00	Australia and New Zealand Banking Group Limited v State of Queensland [2020] FCA 1597	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1597	2024-09-13T22:52:37.246459+10:00	Federal Court of Australia Australia and New Zealand Banking Group Limited v State of Queensland [2020] FCA 1597 File number: QUD 187 of 2020 Judgment of: LOGAN J Date of judgment: 30 July 2020 Catchwords: BANKRUPTCY – Bankruptcy Act 1966 (Cth) s 133 – application by mortgagee for vesting in bankrupts' property in mortgagee for the purposes of sale – effect of disclaimer by trustee in bankruptcy Legislation: Bankruptcy Act 1966 (Cth) s 133 Cases cited: Commonwealth Bank of Australia v State of Queensland, in the matter of Ginn [2016] FCA 1337 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Number of paragraphs: 9 Date of hearing: 30 July 2020 Solicitor for the Applicant: Gadens Solicitor for the Respondent: Department of Natural Resources, Mines and Energy, In-House Legal ORDERS QUD 187 of 2020 BETWEEN: AUSTRALIA AND NEW ZEALAND BANKING GROUP LIMITED ABN 11 005 357 522 Applicant AND: STATE OF QUEENSLAND Respondent order made by: LOGAN J DATE OF ORDER: 30 JULY 2020 THE COURT ORDERS THAT: 1. Pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth) the estate in fee simple in the property described as Lot 3 on Registered Plan 605605, Title Reference 30433208 being the land situated at 127 Rodboro Street, Berserker in the State of Queensland (Property), vest in the Applicant for the purpose of the Applicant exercising its powers as mortgagee under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and registered mortgage number 717310189 (Mortgage). 2. On the vesting of the Property in the Applicant pursuant to section 133(9) of the Bankruptcy Act 1966 (Cth) the Applicant: (a) may, but it is not bound to, deal with the Property as if it were exercising its powers as mortgagee in possession under the Land Title Act 1994 (Qld), the Property Law Act 1974 (Qld) and the Mortgage, including exercising the right to sell the estate in fee simple in the Property in exercise of its power of sale and all its other rights under the Mortgage; (b) for the purpose of selling the estate in fee simple of the Property in exercise of its power of sale, is not required to serve: (i) a notice of default or demand whether under section 88 of the National Credit Code, being Schedule 1 to the National Consumer Credit Protection Act 2009 (Cth) or otherwise; and (ii) a notice pursuant to section 84 of the Property Law Act 1974 (Qld); (c) is entitled to calculate the entirety of the debt secured and owing pursuant to the Mortgage as including all monies that would have been secured by the Mortgage had the trustee of the bankrupt estates of Trevor John Ritchie (Mr Ritchie) and Jennifer Louise Ritchie (Ms Ritchie) not disclaimed the Property and to deduct and retain for its own absolute use and property such amount from any proceeds of sale of the Property as if it were money secured by the Mortgage (including costs of this application and all costs properly incurred in selling, and incidental to the sale of, the Property); (d) shall apply the proceeds of sale from the Property as follows: (i) first, in payment of any statutory charges affecting the property, which the relevant statute provides are payable in priority to the Applicant; (ii) secondly, in payment of all costs, charges and expenses properly incurred by the Applicant as incidental to the sale, or any attempted sale, or otherwise; (iii) thirdly, in discharge of the debt owed to the Applicant by Mr Ritchie and Ms Ritchie as secured by the Mortgage; and (iv) fourthly, in payment of any subsequent mortgages (if any); (e) must, after sale of the Property, provide an account of its payments and receipts to: (i) Morgan Gerard James Lane of Worrells as the Trustee of the Bankrupt Estates of Mr Ritchie and Ms Ritchie; (ii) Mr Ritchie and Ms Ritchie; (iii) the Registrar of the Court; and (iv) the Respondent; and (f) must pay into Court the surplus, if any, arising from the sale of the Property. 3. There be no order as to costs against the Respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 Mr Trevor John Ritchie (Mr Ritchie) and Mrs Jennifer Louise Ritchie (Mrs Ritchie) borrowed from the Australia and New Zealand Banking Group, in 2016, a principal sum of $88,000 pursuant to a loan agreement. That borrowing was secured by a mortgage in favour of the bank, executed on 25 May 2016 and registered on the Register of Titles in Queensland on 13 June 2016. It was allocated registration number 717310189. 2 The mortgage was granted by Mr and Mrs Ritchie in respect of land at 127 Rodboro Street, Berserker in Queensland (Berserker Property), in which they held an estate in fee simple. 3 On 23 December 2019, Mr and Mrs Ritchie respectively presented a debtor's petition under the Bankruptcy Act 1966 (Cth) (the Act). At that time, they were already in arrears in respect of making payment in accordance with their loan agreement. 4 On 24 February 2020, the bank sent to Mr and Mrs Ritchie a notice of default under the loan agreement and the mortgage. The following day, the bank also sent a copy of that notice of default to the Trustee in Bankruptcy (the Trustee). 5 On or about 26 February 2020, the Trustee disclaimed the Berserker Property. That disclaimer was made pursuant to s 133(1) of the Act. In Commonwealth Bank of Australia v State of Queensland, in the matter of Ginn [2016] FCA 1337 (Commonwealth Bank v State of Queensland), Edelman J, then a member of this Court, made these observations in respect of the effect of a disclaimer: 14 One conception of s 133 is that the disclaimer operates to determine all the trustee's title and interests in relation to the bankrupt's property. However, if the trustee's title has not been registered then the only title which is determined is the equitable title of the trustee (recognised by s 58(2)). This might mean that the bankrupt remained the holder of a notional legal title and no escheat to the Crown would occur. 15 There is a second, competing, conception of the operation of s 133 where the property is not registered which I considered in Westpac Banking Corporation v State of Queensland [2016] FCA 269 [31]. This is that although the trustee had only equitable title in relation to the disclaimed property, the effect of the disclaimer was to disclaim rights which the trustee did not have. Section 133(2) of the Bankruptcy Act determines all rights and interests of the bankrupt in respect of the property disclaimed (the trustee's equitable title). This is also consistent with the provision in s 133(1) that the trustee may disclaim "the property" (which might mean all of the bankrupt's rights in relation to the property) notwithstanding that the trustee is not the registered owner. The trustee therefore disclaims all of the bankrupt's rights including those rights which arise from being the registered owner. This would seem to be what was meant in Sandhurst Trustees Ltd v 72 Seventh Street Nominees Pty Ltd (In Liq) (1998) 45 NSWLR 556, 565-566, where Bryson J explained that proof of legal ownership "has stepped outside or beyond the Torrens System; when the whole facts are seen they show that the person who, according to the register, is apparently the fee simple owner in truth is not". 16 On the assumption that the second conception is correct, the dominant view in the authorities is that the disclaimer by the trustee immediately caused all title to each of the Airlie Beach Property and the Airlie Beach Unit to escheat to the Crown (contra National Australia Bank v New South Wales [2009] FCA 1066; (2009) 182 FCR 52, 59 [21]-[23] (Rares J)). However, on any view, in this process a pre-existing charge is not extinguished. A fee simple interest remains subject to a charge even after disclaimer and escheat: Rams Mortgage Corporation Ltd v Skipworth (No 2) [2007] WASC 75; (2007) 210 FLR 11, 15 [10] (E M Heenan J, citing Sandhurst Trustees, 564 (Bryson J)); National Australia Bank Ltd v State of New South Wales [2014] FCA 298 [8] (Perram J). 6 As his Honour observes in the passage quoted, there are two schools of thought, on the authorities, as to the effect of a disclaimer in respect of land held in fee simple. It is unnecessary for the purposes of this case, as it was for that matter in Commonwealth Bank v State of Queensland and many earlier authorities in respect of this branch of the law, finally to resolve the precise effect of disclaimer in relation to the interest in the land assumed by the Crown. That is because, as Edelman J observed, and as I agree, "… on any view, … a pre-existing charge is not extinguished". Here, the pre-existing charge is the registered mortgage in favour of the bank. 7 By s 133(9) and s 133(10) of the Act, it is provided: (9) The Court may, on application by a person either claiming an interest in, or being under a liability not discharged by this Act in respect of, disclaimed property, and after hearing such persons as it thinks fit, make an order, on such terms as the Court considers just and equitable, for the vesting of the property in, or delivery of the property to, a person entitled to it or a person in whom, or to whom, it seems to the Court to be just and equitable that it should be vested or delivered, or a trustee for that person. (10) Subject to subsection (11), where an order vesting property in a person is made under subsection (9), the property to which it relates vests forthwith in the person named in the order for that purpose without any conveyance, transfer or assignment. 8 In the circumstances of this case, the bank, as mortgagee, has an interest in the title to the Berserker Property. The loan debt, which is secured by a mortgage over the Berserker Property, is in default and continues to be in default. Notice of the application has been given to the Trustee, as well as to the bankrupts. The Trustee is not disposed to appear and certainly not disposed to contest the making of the orders which the bank seeks. There has been no endeavour by the bankrupt, to seek to be joined in the proceeding. The State has, appropriately, been joined as a party by the bank. The State does not oppose the making of orders vesting the Berserker Property in the bank, subject to particular conditions, not the least of which, so far as the State is concerned, is express provision in relation to the payment of any statutory charges which may exist in relation to the Berserker Property. 9 In the circumstances, and there being no other registered mortgage security in respect of the property, the making of orders in terms of the draft lodged by the bank is appropriate. Indeed, this is a classic case in which the making of such orders is appropriate. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 3 November 2020	2,645
federal_court_of_australia:fca/single/2008/2008fca0424	decision	commonwealth	federal_court_of_australia	text/html	2008-04-24 00:00:00	Dunn v Australian Crime Commission [2008] FCA 424	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2008/2008fca0424	2024-09-13T22:52:37.994454+10:00	FEDERAL COURT OF AUSTRALIA Dunn v Australian Crime Commission [2008] FCA 424 ADMINISTRATIVE LAW – application for request for assistance in a criminal matter to be declared invalid, set aside or quashed – whether the request lawfully made – whether the request was made by the Attorney General (Cth) or the Attorney General's delegate – whether the maker of a request is under an obligation to disclose all material facts – whether alleged factual defects in the request rendered the request invalid - whether reasonable grounds to believe the preconditions for making the request were satisfied – whether inclusion of allegedly privileged material rendered the request invalid - whether the involvement of the Director of Public Prosecutionsrendered the request unlawful – whether the involvement of the Australian Crime Commission rendered the request unlawful – application dismissed WORDS & PHRASES – "investigation relating to a criminal matter" – "reasonable grounds to believe" Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 3, 6, 7(2), 7(3)(a), 12(1), 14, 16(1) Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 Reg 4(1) Director of Public Prosecutions Act 1983 (Cth) ss 5, 6(1)(n), 6(2), 6(2)(b) Director of Public Prosecutions Regulations 1984 Regs 3(1)(f), 3(1)(g) Australian Crime Commission Act 2002 (Cth) ss 4, 7(1), 51, 59(7) 59(9), 59A Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) (1999) 168 ALR 211 referred to George v Rockett (1990) 170 CLR 104 referred to Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 referred to Bollag v Attorney-General (Cth) (1997) 79 FCR 198 referred to Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 referred to Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 referred to Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 referred to Health Insurance Commission v Freeman (1998) 88 FCR 544 referred to AA Pty Ltd v Australian Crime Commission [2005] FCA 1178 referred to Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540 referred to O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 referred to GREGORY JOHN DUNN AND MISTY MOUNTAIN PTY LTD v THE AUSTRALIAN CRIME COMMISSION, ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA AND THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS WAD 125 OF 2006 TRACEY J 24 APRIL 2008 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY WAD 125 OF 2006 BETWEEN: GREGORY JOHN DUNN First Applicant MISTY MOUNTAIN PTY LTD Second Applicant AND: THE AUSTRALIAN CRIME COMMISSION First Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent JUDGE: TRACEY J DATE OF ORDER: 24 APRIL 2008 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY WAD 125 OF 2006 BETWEEN: GREGORY JOHN DUNN First Applicant MISTY MOUNTAIN PTY LTD Second Applicant AND: THE AUSTRALIAN CRIME COMMISSION First Respondent ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA Second Respondent THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Third Respondent JUDGE: TRACEY J DATE: 24 APRIL 2008 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 On 16 March 2005 a delegate of the Commonwealth Attorney-General set in train a series of events which, it was hoped, would enable certain Commonwealth authorities to obtain access to documents which were believed to be located in Switzerland. On that day the delegate made a request to Switzerland under the Mutual Assistance in Criminal Matters Act 1987 (Cth) ("the Mutual Assistance Act") and the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters done at Berne in Switzerland on 25 November 1991 ("the Treaty"). The request sought the assistance of Swiss authorities in obtaining business records from Strachans SA, an accountancy services firm based in Geneva, and from Corner Banca SA, which is a private banking institution based in Lugano. The request advised the Swiss authorities that the records were required for "the investigation into, and possible prosecution of" certain named individuals, including the first applicant ("Mr Dunn") in this proceeding, whom, it was said was suspected of tax fraud and conspiracy offences against the laws of the Commonwealth. The second applicant was also named in the document as trustee for a unit trust which was "beneficially owned by [the first applicant]". The applicants seek various forms of relief under the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") and s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"), which, if granted, would have the practical effect of rendering nugatory the Attorney-General's attempts to obtain the documents sought in the request. 2 The respondents, by notice of objection to competency, objected that much of the conduct of the respondents in respect of which relief was sought under the ADJR Act could not be impugned under that Act because the proceeding was commenced out of time and because the conduct did not involve "decisions" or "conduct" to which the ADJR Act applies. I need not rule on these objections because it was accepted that the Court had jurisdiction to entertain parts of the application under s 39B of the Judiciary Act subject to its discretionary power to refuse relief because of delay in commencing the proceeding. 3 The evidence was substantially in documentary form. Two affidavits sworn by the applicants' solicitor Mr David Shaw were read. These affidavits dealt with uncontentious matters and exhibited a large number of relevant documents. Mr Shaw was not cross-examined. The following affidavits were read and relied on by the respondents: · Mr Michael Outram, the Executive Director, Operational Strategies of the Australian Crime Commission ("the ACC"); · Ms Margaret Jackson, First Assistant Secretary, International Crime Cooperation Division of the Attorney-General's Department; · Ms Jasmin Phillips, a member of the staff of the ACC; · Ms Donna Buttsworth, also a member of the staff of the ACC; and · Mr Lloyd Woodwood, also a member of the staff of the ACC. Mr Outram and Ms Jackson were cross-examined. The other deponents were not. The Commonwealth Attorney-General's delegate who had signed the mutual assistance request, Mr Craig Harris, appeared pursuant to a subpoena and was cross-examined by senior counsel for the applicant. THE EVIDENCE 4 The request was made in the course of what has become known as Operation Wickenby, criminal investigations being undertaken by the ACC into the conduct of certain persons who are suspected of having committed serious offences against Commonwealth law. On 10 February 2005 a senior officer employed by the ACC (Mr Kevin Considine) forwarded certain information to an officer (Mr David Adsett) designated by the Commonwealth Director of Public Prosecutions ("the DPP") to deal with Operation Wickenby matters. The investigator also provided the DPP with a draft mutual assistance request. The draft request alleged that Mr Dunn may have committed offences against Commonwealth laws. 5 On 14 February 2005 an officer in the DPP's office (Ms Sara Cronan) wrote to the Attorney-General's Department. She passed on the information obtained from the ACC investigator and enclosed a draft mutual assistance request to Switzerland. It was alleged that Mr Dunn had understated his income for the 2002, 2003 and 2004 income tax years whilst remitting large sums to overseas bank accounts. The DPP asked the Attorney-General to make "requests for assistance in a criminal investigation to Switzerland". It was said that the material sought "will assist in an investigation into a major tax fraud in Australia". The DPP asked that "the request should be made on behalf of the DPP, and the ACC." 6 Officers of the Attorney-General's department gave consideration to the DPP's request. It was determined that a mutual assistance request should be made to the Swiss authorities under the Mutual Assistance Act. A "REQUEST FOR ASSISTANCE IN A CRIMINAL MATTER" was prepared. It was signed by Mr Craig Harris, a delegate of the Attorney-General, on 16 March 2005. It was a lengthy document containing 154 paragraphs and eight attachments. In all it consisted of 46 pages. Much of the material in it did not relate to either of the applicants. It will, therefore, only be necessary to refer to some parts of the document. 7 The prefatory words of the request identified it as "a request by Australia for assistance in a criminal matter, made under the Treaty between Australia and Switzerland on Mutual Assistance in Criminal Matters done at Berne on 25 November 1991." Under the heading "AUTHORITY AT WHOSE INSTANCE THE REQUEST IS MADE" the following paragraph appeared "2. The assistance of the authorities of Switzerland is requested by the undersigned at the instance of: (a) the Office of the Commonwealth Director of Public Prosecutions, an independent body established by the Commonwealth Government of Australia to authorise and conduct the prosecution of offences against the criminal laws of the Commonwealth of Australia and action to recover the proceeds of crime, and (b) the Australian Crime Commission (ACC), the Commonwealth agency responsible for the coordination of the investigation giving rise to this request." The purpose of the request was for business records to be obtained from Strachans SA and Corner Banca SA (paragraph 3). As already noted, the Swiss authorities were advised that the business records were "required for the investigation into, and possible prosecution of" a number of individuals including Mr Dunn. The Swiss authorities were also advised that: "5. The material may also be used in possible action by Australian authorities against these suspects to recover proceeds of crime. Please provide the material in a form that is admissible in Australian courts." Then followed a recital of alleged facts. It was alleged that Dunn had introduced clients to Strachans which had, in turn, supplied the clients with company and trust structures. Dunn was said to have been involved in an income dissipation arrangement which used a chain of trust distributions. It was further alleged that: "87. Entities associated with Dunn that participate in the arrangements usually receive trust distributions from client entities which are paid to Dunn in the form of fully franked dividends. For the 2002, 2003 and 2004 income tax years he has only returned income of A$30,000 while being able to remit millions of dollars to overseas bank accounts. 88. Banking records show that: (a) between March 2003 and September 2004, Dunn remitted A$1,900,000 to the Strachans in-house company, Overseas Trading and Promotions, care of the National Westminster Bank … (b) between April 2001 and November 2004, Dunn remitted A$2,876,000 to an account named Gregory Dunn and Mariluz Masamayor …" Various other transactions in which Dunn was involved were then described. The Swiss authorities were advised that: "100. The ACC believe that the transactions described above are fraudulent and have been devised and actioned by Dunn [and certain other individuals] for the sole purpose of defrauding the Commonwealth of Australia by declaring less income than the actual income made. This supports the belief of ACC investigators that Egglishaw through Strachans, provides more than administration, accounting and banking services, but is a willing participant in facilitating criminal activity. The ACC suspect that Dunn has used Egglishaw's and Strachans' services to commit criminal acts, such as obtaining financial advantage by deception, defrauding the Commonwealth of Australia and money laundering." The request identified a number of offences which may have been committed by Mr Dunn and others who were named in the document. These offences included defrauding the Commonwealth (s 29D of the Crimes Act 1914 (Cth)), obtaining financial advantage from a Commonwealth entity by deception (s 134.2 of the Criminal Code Act 1995 (Cth)), conspiracy to commit the offences created by s 29D and s 134.2 (s 11.5(1) of the Criminal Code Act 1995 (Cth)) and money laundering (s 81 of the Proceeds of Crime Act 1987 (Cth) and s 400.4 of the Criminal Code Act 1995 (Cth)) (paragraphs 122-129). The Swiss authorities were asked to execute search warrants to obtain relevant documents from Strachans and Corner Banca. They were asked to "return the requested material to the Australian Central Office for Mutual Assistance in Criminal Matters" (paragraph 146). The address of the office (within the Attorney-General's Department) was provided. It was foreshadowed that "[d]epending upon the nature of the material obtained pursuant to this request, the Australian authorities may wish to make a supplementary request for assistance" (paragraph 154). 8 The request for assistance was forwarded to an officer of the Federal Office of Justice in Berne under cover of a letter dated 17 March 2005. That letter was on the letterhead of the Criminal Justice Division of the Commonwealth Attorney-General's Department and was signed by a Ms Lani Gibbins who was identified as a legal officer. Ms Gibbins was not a delegate of the Attorney-General under the Mutual Assistance Act. The letter sought urgent mutual assistance in the matter of "Operation Wickenby". The letter advised the Swiss authorities that: "Enclosed is an urgent request for assistance in the matter of Operation Wickenby. The request is made on behalf of the Commonwealth Director of Public Prosecutions and the Australian Crime Commission …" Ms Gibbins invited Swiss officials to contact her if they had "any enquiries". 9 The Swiss Federal Office of Justice responded to the request by letter dated 18 May 2005 addressed to Mrs Gibbins. The letter was written by Mr Nicolas Bottinelli. Mr Bottinelli wrote: "We refer to the above mentioned request. The Examining Magistrate has carefully examined this request and is (sic) the view that it could be executed only partially in its actual state. The request does not fulfil some of the requirements of Swiss law in order to grant the requested assistance." He drew attention to Article 2 of the Treaty under which Switzerland can refuse assistance in fiscal matters and went on to deal with certain aspects of Swiss criminal law. He continued: "For all the above mentioned behaviour, Switzerland cannot grant assistance. Generally speaking, the Australian request does not fulfil the Swiss requirements under those (sic) aspects: - The request must describe as exactly as possible which fraudulent means were used in order to obtain tax decisions that were illegitimate (sic) favourable for the tax payers; for example: production to the fiscal authorities of false commercial accounts which includes forged bills or false debts; - The request should also indicates (sic) if the State of Australia was really defrauded, or if it was only an attempt." Dealing specifically with the allegations made against Mr Dunn, Mr Bottinelli asked "which fraudulent means have been used in order to get the money out of Australia?" 10 An initial response to Mr Bottinelli's letter was prepared by Mr David Hellings, a Senior Financial Investigator employed by the ACC. It was incorporated in a draft letter on ACC letterhead dated 25 May 2005. That part of the response which dealt with Mr Dunn advised that: "The ACC has obtained documentary evidence that Dunn has given false instructions to his accountant concerning the funds sent offshore to Overseas Trading and Promotions thus causing him to prepare false tax returns. The ACC has banking records showing that Dunn made a $100,000 cheque payable to Consolidated Artists, an in-house Strachans service company. The cheque was banked at the National Westminster Bank in London by Phillip De Figueiredo. Based on evidence held by the ACC, we believe that Strachans created a false invoice for a film script to allow the payment to falsely appear in the accounts of Dunn's company as a payment for the purchase of a film script. Strachans has assisted in the creation of false documentation to support the fraudulent deception of the ATO." This draft letter was forwarded by Ms Gibbins to Mr Bottinelli by email on 25 May 2005. Ms Gibbins' email read, in part: "Attached is the draft letter as discussed in our telephone conversation this evening/morning. I note that the Magistrate will have the final decision on this matter but I would be very grateful for your comments. I look forward to hearing your comments in the morning." 11 The formal response to Mr Bottinelli's letter was made on 26 May 2005. It comprised a covering letter from Ms Gibbins to Mr Bottinelli to which was attached a revised version of Mr Hellings's draft letter. It will be convenient, at times, in these reasons to refer to those documents collectively as "the May letter". The covering letter read, in part: "Enclosed is an urgent letter in response to your facsimile dated 18 May 2005 about the mutual assistance request in the matter of Operation Wickenby. In your facsimile you sought clarification of the request in light of the requirements of Swiss domestic law regarding fiscal matters. 2. Attached is a letter from the Australian Crime Commission which clarifies the request. This letter has been drafted in consultation with the Commonwealth Director of Public Prosecutions and the Australian Central Authority, the Attorney-General's Department." The attached letter was signed by Mr Hellings and was written on ACC letterhead. It is dated 26 May 2005. Insofar as it deals with Mr Dunn it advised that: "The ACC has obtained documentary evidence showing that Dunn has prepared false instructions for his accountant concerning the funds sent off shore to Overseas Trading & Promotions and back dating documents thus causing his accountant to prepare false tax returns. The ACC has banking records showing that on 10 January 2003, Dunn's company Misty Mountain Pty Ltd drew a $100,000 cheque payable to Consolidated Artists, an in-house Strachans service company. The cheque was banked at the National Westminster Bank in London by Phillip De Figueiredo. On 4 February 2003, Dunn and Philip Egglishaw meet in Perth, Australia. A file note of the meeting produced by Egglishaw shows that he sent an instruction to his staff to obtain some more Consolidated Artists letterheads as they needed to sell another script. He also states in the note a copy from the last letter to Dunn regarding the sale of a script. The file note and the payment indicate that the fraudulent behaviour, in paying for a non existent script, took place. When the ACC issues search warrants in the near future in respect of Dunn and his companies, it expects to seize the false invoices in respect of payments to Consolidated Artists and other evidence of his fraudulent instructions. Based on evidence held by the ACC, the ACC believes that Strachans created a false invoice for a film script to allow the payment to falsely appear in the accounts of Dunn's company as a tax deductible payment for the purchase of a film script when in effect it was just a transfer of money to Dunn's trust administered by Strachans. Strachans assisted in the creation of false documentation to support the fraudulent deception of the ATO." 12 Further communication between the Swiss Federal Office of Justice and the Commonwealth Attorney-General's Department occurred later in the year. On 10 October 2005 Mr Bottinelli wrote to Ms Gibbins seeking, relevantly, "more details about the modus operandi used by [those allegedly involved in criminal activity] to defraud the Commonwealth". The Attorney-General's response was provided under cover of a letter, dated 7 December 2005, from Ms Jane Christie, a senior legal officer in the department, to Ms Isabella Fumagalli in the Swiss Federal Office of Justice. Like Ms Gibbins, Ms Christie was not a delegate of the Attorney-General for the purposes of the Mutual Assistance Act. The covering letter read, in part: "Please find enclosed a letter and attachments in response to Mr Bottinelli's letter of 10 October 2005 and the Examining Magistrate's verbal request made in June 2005. … … I would be most grateful if the letter and attachments are passed to Magistrate Dumartheray as soon as possible. Please contact me if you have any queries or require further information." A letter on ACC letterhead dated 15 November 2005 was attached. It was signed by Mr Kevin Considine the National Team Leader of Operation Wickenby within the ACC. It was directed to the attention of Mr Bottinelli. It commenced by noting that: "This letter is in response to your letter dated 10 October 2005 and the Examining Magistrates (sic) verbal request made in June 2005 to be provided, at a later date, with an update as to the progress of this investigation. It sets out details of the current status of this investigation, answers your queries and seeks your assistance in expediting current proceedings in Switzerland relating to Operation Wickenby. These proceedings relate to documents seized by your office from Strachans SA on 9 & 10 June 2005 in response to a mutual assistance request from the Australian Government." The letter went on to record that 50 search warrants had been executed in Australia since 9 June 2005 at the homes and business premises of persons under investigation and at the premises of certain accountants and legal advisers. Attached to the letter was a document headed "STATUS OF CRIMINAL INVESTIGATIONS". The 15 November 2005 letter and the attachment thereto will be referred to subsequently as "the November letter". In a section of the attachment which dealt with Mr Dunn and certain other persons it was recorded that: "The ACC has banking records showing that DUNN made a $100,000 cheque payable to Consolidated Artists, a Strachans in house company. It is suspected that Strachans created a false invoice for a non existent film script allegedly sold to Dunn or one of his companies to substantiate the payment and the tax deduction. DUNN has given instructions to his accountant concerning the funds sent off shore to Strachans and their in house companies thus causing him to prepare incorrect tax returns." There was then reference to Mr Dunn having been instrumental in creating certain company structures to assist other named individuals (including one Pollock) to avoid Australian taxation. There follows some lengthy passages which it is necessary to set out because the applicants contend that they contain a new request under the Mutual Assistance Act and new allegations against Mr Dunn. Under the heading "Findings in Australia" it is recorded that: "Dunn In addition to his involvement in facilitating transactions for Bartlett, Sayers and Pollock, Dunn appears to have also engaged in a series of fraudulent deceptions to mask the payments he received as fees for the services he provided. Analysis of documentary material seized from Dunn's business premises shows that he has falsely represented in his accounts payments that he has received from Strachans-related entity, Ambassador Finance (which had been held by Strachans for his benefit) as a loan by Ambassador Finance to his own company. In addition to this false representation, Dunn also falsely claimed interest expenses on the fictitious 'loan'" ("the alleged new request"). "Pollock The ACC has established that when Pollock sold his business in 1998, the net proceeds of nearly AU$11 million, was paid to entities controlled by Dunn to pay non existent debts. Dunn in turn paid the majority of funds (less Dunn's fees) to an entity controlled by Strachans on behalf of Pollock. In April 1998 Dunn flew to Jersey and met with Phillip Egglishaw, where he paid Egglishaw a cheque for AU$4.75 million, being AU$3million for Pollock and AU$1.75 million for Dunn. By adopting this method of payment, Dunn and Pollock were able to avoid the scrutiny of Australia's law enforcement agencies. The ACC has information that suggests these funds were used to acquire shares in a company, MACGROVE INVESTMENTS LIMITED (MACGROVE). The ACC believes that this is a fictitious transaction as the funds are believed to have been immediately moved out of MACGROVE and paid into the Pollock and Dunn associated STRACHANS entities. Pollock's accountant who is believed to have knowledge of these transactions and investments has not retained any documentation and expressed concerns about them. The ACC has information that suggests that when Pollock wished to bring funds back into Australia, Dunn insisted that a company and a trust be established to conceal the link between the original funds and funds being repatriated to Australia. These funds appear to have been fraudulently represented as an investment by an independent offshore entity in the newly created Australian unit trust. Bartlett & Sayers The ACC has information that confirms that the Strachans administered company, Crossline Overseas Limited, (CROSSLINE) is beneficially held for Bartlett and Sayers and that CROSSLINE has not provided any consideration in exchange for promissory notes, payable on demand, which have a face value of AU$32.4 million. Further evidence has been obtained confirming that the arrangement between CROSSLINE and Bartlett and Sayers is a charade designed to conceal their involvement with the company from Australian authorities. Dunn met with representatives of the Australian Taxation Office on 25 and 26 October 2001 to discuss the promissory notes and Dunn provided them with copies of the promissory notes numbers 5 and 6 … The copies provided to the ATO did not show the indorsement to Crossline, dated 26 October 2001, and no mention of Crossline was made by Dunn during the meetings. Additional promissory notes were issued on 26 October 2001 which were also indorsed to CROSSLINE and copies of these notes were not provided to the ATO. The ACC has information that suggests that CROSSLINE was not in existence until sometime after 26 October 2001" ("the first new allegation"). … "The ACC has established that a legal advisor working for Dunn gave a legal opinion that the arrangement was illegal and she immediately terminated her employment with Dunn. The ACC also has information that suggest (sic) the legal advisors for Barminco also have expressed grave concerns regarding the illegality of the arrangement that Bartlett and Sayers have entered with Dunn and CROSSLINE" ("the second new allegation"). Under the heading "False or Fictitious Documents produced by Strachans located in Australia" it is said: "Dunn … Documentary material seized from Dunn's business office included several documents which described the purchase of shares in MACGROVE for AU$4.75 million. It is believed that this transaction is fictitious and that these funds of which AU$3 million is Pollocks (sic), was split between Pollock and Dunn and moved to their own STRACHANS associated entities." ("the third new allegation"). Analysis of the accounting records seized from Dunn's business office shows that it would appear that the fictitious film scripts and the AU$4.75 million purchase of shares in MACGROVE have been used to create false entries in his accounting records. Dunn has claimed a 100% write off of the AU$4.75 million investment in shares and it is expected that Dunn may also write off the investments in the scripts to create further capital losses. It is anticipated that these losses will be applied against future taxable capital gains." Later in the document under the heading "How False Documents used in Breaking Australian Law" it is said that: "The false and misleading documentation so far identified during the course of the investigation has been used by Dunn, Bartlett and Sayers, Pollock and entities under their control to conceal or disguise income and assets by fraudulently representing the funds to be business expenses and loans from independent foreign entities, and also to conceal or disguise the transfer of funds offshore as payments for non-existent expenses or the purchase of non-existent assets. The use of these false documents is likely to have resulted in the underpayment of millions of dollars of income tax." 13 By letter dated 2 June 2006 to Mr Bottinelli, Ms Christie corrected some of the information contained in the "STATUS OF CRIMINAL INVESTIGATIONS" document which formed part of the November letter. Ms Christie advised Mr Bottinelli as follows: "Request for Assistance to Switzerland in the Matter of Operation Wickenby The purpose of this correspondence is to clarify information previously provided in relation to the above request. 2. On 7 December 2005, I sent you correspondence attaching a letter dated 15 November 2005 from the Australian Crime Commission (ACC). The ACC letter and its accompanying document "Status of Criminal Investigations" (the Summary), provided a summary of the progress of its investigation. 3. This correspondence was in response to the verbal request from the Examining Magistrate, Mr Dumartheray, in June 2005 and your letter dated 10 October 2005. 4. At page 17 of the Summary, the ACC provided information about its investigation into the alleged sale of two non-existent film scripts to Mr Gregory Dunn (Dunn) or Misty Mountain Pty Ltd, by Consolidated Artists, a Strachans SA in-house company. 5. Subsequent to the preparation of the Summary, the Attorney-General's Department has received a letter and documents from Dunn and Misty Mountain Pty Ltd's (Misty) legal representatives Shaw & Associates, regarding this additional information. Following examination of the documents provided by Dunn and Misty's legal representatives the ACC now provides the following information. 6. Entries have been made in the accounting records of Misty Mountain Pty Ltd recording the purchase of two allegedly non-existent film scripts from Consolidated Artists for $100,000 and $330,000. Other entries record the write-off of the value of those assets to nil. 7. Within the Summary and other documents provided by Australia, it has been said Dunn had claimed tax deductions in respect of funds made payable to Consolidated Artists, a Strachans in-house company. We wish to advise that no income tax deduction has yet been claimed in respect of the payments of $100,000 and $330,000 to Consolidated Artists. 8. However, Dunn's legal representatives have advised that the sum of $430,000 is recorded in the 2003 accounts of Misty Mountain Pty Ltd as a capital loss on write-off of Capital Assets. The ACC believes that this write-off may be used in the future for taxation purposes. If Dunn purports to sell the alleged non-existent scripts or if the write-off value is confirmed by the declaration of a liquidator, the write off could be utilised against taxable capital gains. 9. The ACC continues to suspect that the payments of $100,000 and $330,000 made to Consolidated Artists were for the purpose of concealing the transfer of funds to accounts offshore for the benefit of Dunn, by representing the transfer as payments for the alleged non-existent film scripts, with the intention of deceiving the australian authorities. Because no satisfactory explanation has been offered by Dunn as to why he, or associated entities, have purchased at least two allegedly non-existent film scripts from Strachans SA, the ACC has advised that it is continuing with its investigation." The letter continued with a request to Mr Bottinelli to pass the information contained in the letter to the Examining Magistrate for consideration by him during his consideration of the Mutual Assistance Request. THE APPLICANTS' GROUNDS 14 The applicants contend that the mutual assistance request "was made without authority, outside jurisdiction, or unlawfully." The consequence is said to be that the request is "invalid". It "should be set aside or quashed." The grounds on which relief is sought are numerous. The applicants contend that: · Necessary pre-conditions for the making of a valid application for assistance under the Mutual Assistance Act were not observed. · The request misstated a number of important facts. · The involvement of the DPP in the making of the request was unlawful. · The involvement of the ACC in the making of the mutual assistance request was also unlawful. The Mutual assistance act points 15 The applicants attacked the validity of the mutual assistance request because of a series of alleged failures, on the part of Australian authorities, to comply with the requirements of the Mutual Assistance Act. Delegation 16 The first complaint is that the request was not made by the Attorney-General or his delegate as required by the Mutual Assistance Act. 17 Sub-section 10(1) of the Mutual Assistance Act provides: "A request for international assistance in a criminal matter that Australia is authorised to make under this Act may be made only by the Attorney-General." Section 40 of the Mutual Assistance Act empowers the Attorney-General to delegate his powers under s 10 to an officer of the Attorney-General's department. 18 The applicants accept that Mr Harris was a duly appointed delegate for these purposes and that he signed the request dated 16 March 2005. They contend, however, that the request was ultra vires and "invalid" because: · The covering letter, under which the request was forwarded to the Swiss authorities, formed part of the request and it was signed by Ms Gibbins who was not a delegate of the Attorney-General. · The request was expressly stated to have been made both "on behalf of" and "at the instance of" the DPP and the ACC. · The subsequent correspondence emanating from Australia on 26 May 2005, 15 November 2005, 7 December 2005 and 2 June 2006 formed part of the request but was not made or sent only by the Attorney-General or a delegate of the Attorney-General. An additional and alternative submission was made in argument. It was that each of the letters sent from Australia after 16 March 2005 constituted a new request because each contained fresh allegations. 19 The Mutual Assistance Act provides for requests to be made by Australia for assistance relating to criminal matters. The requests may be made of a foreign country with which Australia has entered into a mutual assistance treaty. That assistance may take various forms. It may be for the taking of evidence (s 12(1)), the search for and seizure of documents (s 14) or the foreign country authorising the attendance of nominated persons at a criminal hearing in Australia (s 16(1)). Such requests for assistance may only be made by the Attorney-General or his delegate. Such requests cannot be made by other Australian authorities, such as police forces, to their counterparts in other countries. This may, however, be done if the form of assistance sought is not one comprehended by the Mutual Assistance Act: see s 6. 20 It was common ground that the form of assistance sought in the instrument signed by the delegate was assistance of the kind comprehended by s 14 of the Mutual Assistance Act, namely that the Swiss authorities authorise searches and seizures under warrant of documents in the possession of Strachans SA and Corner Banca SA in Switzerland. That assistance was sought in and by the document entitled "REQUEST FOR ASSISTANCE IN A CRIMINAL MATTER" signed by Mr Harris, as delegate of the Attorney-General, on 16 March 2005. In my view it was the only request made to Switzerland under the Mutual Assistance Act for present purposes. 21 The letter, signed by Ms Gibbins and dated 17 March 2005 was not a request for assistance under the Mutual Assistance Act. As it said it "enclosed" such a request. The request itself was made by the delegate of the Attorney-General. 22 Ms Gibbins' letter did state that the request was "made on behalf of" the DPP and the ACC. The request itself was stated to have been made "at the instance of" the DPP and the ACC. The "at the instance of" formulation probably accords most closely with the factual position. Nothing, however, turns on the accuracy or otherwise of either of these statements. When read with s 40, s 10(1) of the Mutual Assistance Act requires that a request for assistance must be "made" by the attorney-General or his or her delegate. If the Attorney-General makes the request the requirement imposed by s 10(1) will have been satisfied. It matters not that the request was made at the instance of one or more statutory authorities or on behalf of such authorities. It is to be expected that bodies such as the DPP and the ACC will, from time to time request that the Attorney-General makes requests under the Mutual Assistance Act to assist them in investigating criminal matters. The Attorney-General does not undertake criminal investigations so it is hardly likely that he or she would do other than act on behalf of entities which do so. But it is the Attorney-General who acts by making the application. The request signed by the Attorney-General's delegate on 16 March 2005 is specifically said to have been made by the delegate. 23 The various documents sent from Australia to the Swiss authorities in the wake of the request did not form part of the request. These documents were: · The May Letter: Under cover of Ms Gibbins' letter to Mr Bottinelli dated 26 May 2005 she forwarded a letter, bearing the same date, from the ACC. This correspondence, as it stated, was responsive to Mr Bottinelli's facsimile letter of 18 May 2005 in which he sought clarification of various aspects of the request and sought additional information. · The November Letter: The 15 November 2005 letter from Mr Considine to Mr Bottinelli was sent in response to Mr Botinelli's letter of 10 October 2005 and to a verbal request from the Examining Magistrate, made in June 2005. · The letter from Ms Christie to Ms Fumagalli dated 7 December 2005 was simply a covering letter under which the 15 November 2005 letter was forwarded to the Swiss authorities. · The letter from Mr Christie to Mr Bottinelli dated 2 June 2006 was sent to clarify and correct "information previously provided in relation to the … request." None of the signatories of these documents was a delegate of the Attorney-General under the Mutual Assistance Act. This is of no moment because none of the letters or attached documents constituted a request for assistance under the Mutual Assistance Act. That request was made when the document entitled: "Request for Assistance in a Criminal Matter", signed by the Attorney-General's delegate on 16 March 2005, was sent to the Swiss authorities. What followed was correspondence which dealt with various aspects of the request but no new request was made. The terms of the request 24 The second complaint made by the applicants is that the mutual assistance request and the associated correspondence contained misdescriptions "of essential acts and omissions". These misdescriptions, it was contended, gave rise to contraventions of s 14 of the Mutual Assistance Act and Article 7 of the Treaty. As developed in argument their substantial complaint was that the request for assistance and the subsequent correspondence were beset by sundry errors such that Australia had failed to satisfy its obligations under the Act and the Treaty. The shortcomings ranged from omission of material facts and the making of vague and unsubstantiated allegations to the making of false allegations. It will be necessary to return to these alleged shortcomings in greater detail later in these reasons. It will, however, be convenient, first to refer to the relevant provisions of the legislation and the Treaty. 25 Section 14 of the Mutual Assistance Act provides that: "(1) This section applies to a proceeding or investigation relating to a criminal matter involving a serious offence against an Australian law if there are reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country. a. If this section applies to a proceeding or investigation, Australia may request the appropriate authority of the foreign country: (a) to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises: (i) a search for a thing relevant to the proceeding or investigation; and (ii) if such a thing, or any other thing that is or may be relevant to the proceeding or investigation is found as a result of the search – the seizure of that thing; and (b) to arrange for the thing that has been seized to be sent to Australia." By s 3 of the Mutual Assistance Act a number of terms employed in s 14(1) of the Act are defined. · A "criminal matter" is defined to include "a criminal matter relating to revenue (including taxation and customs duties)". · A "serious offence" is defined to mean an "offence" for which the prescribed penalty is death or imprisonment for not less than 12 months. · The word "offence" is defined to include an offence against a law relating to taxation or other revenue matters. 26 By s 7(2) of the Mutual Assistance Act provision is made for the making of regulations identifying foreign countries to which the Act applies. By s 7(2), the regulations may also make the application of the Act subject to any mutual assistance treaty which has been entered into between Australia and the other country. If such a qualification is made, s 7(3)(a) provides that the Act "applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect of the treaty in relation to [the particular foreign country] …" 27 In regulations made under the Act – the Mutual Assistance in Criminal Matters (Switzerland) Regulations 1994 ("the Regulations") - the Mutual Assistance Act is rendered applicable to Switzerland "subject to such limitations, exceptions or qualifications as are necessary to give effect to the Treaty …": see reg 4(1). 28 Article 1.1 of the Treaty records that Australia and Switzerland have agreed to "grant to each other assistance in investigations or proceedings in respect of offences the punishment of which falls or would fall within the jurisdiction of the judicial authorities of the Requesting State". By Article 1.2(d) such assistance extends to the execution of requests for the search for and seizure of documents. 29 Article 2 prescribes grounds upon which the Requested State might refuse a request for assistance. One of these grounds, provided for in Article 2.1(b) is that "the request concerns a fiscal offence." 30 A further basis for refusing assistance is provided for in Article 3. It deals with what are described as "compulsory measures" which may include searches and seizures under warrant. Article 3 reads: "1. Assistance involving compulsory measures may be refused where the assistance sought relates to acts or omissions which, if committed in similar circumstances in the Requested State, would not be punishable under the laws of that State. 2. Paragraph 1 of this Article does not apply where the assistance requested is directed to establishing the innocence of a person." 31 Communication between Australia and Switzerland in relation to mutual assistance requests is to be channelled through what are known as "Central Offices". By Article 6 it is provided that: "1. The Contracting Parties shall each appoint a Central Office for the purpose of this Treaty. Until the relevant Contracting Party designates another authority, the Central Office of Australia shall be the Attorney-General's Department in Canberra and the Central Office for Switzerland shall be the Federal Office for Police Matters of the Federal Department of Justice and Police in Berne. 2. Requests for assistance shall be made through the Central Offices, each of which shall arrange for the prompt carrying out of such requests by the appropriate competent authorities in the Requested State. 3. The Central Offices may communicate directly with each other." 32 Article 7 of the Treaty deals with the contents of a request for mutual assistance. Relevantly the Article provides: "1. Requests for assistance shall include: (a) the name of the competent authority conducting the investigations or proceedings to which the request relates; (b) the subject matter and nature of the investigations or proceedings and, except in cases of requests for service of documents, a description of the essential acts or omissions alleged or sought to be ascertained, including the text, or a statement, of the law applicable at the place where the offence is committed; (c) the purpose for which the request is made and the nature of the assistance sought; (d) … (e) the full name, place and date of birth, address and any other information which may aid in the identification of the person or persons who are, at the time of the request, the subject of the investigations or proceedings; and (f) … 2. Request for assistance, to the extent necessary and insofar as possible, shall include: (a) … (b) … (c) … (d) a description of the documents or material to be produced or preserved as well as a description of the appropriate person to be asked to produce them and, to the extent not otherwise provided for, the form in which they should be reproduced and certified; (e) … (f) as accurate a description as possible of any place to be searched and the material to be seized. 3. … 4. If the Requested State considers that the information contained in the request is not sufficient in accordance with this Treaty to enable the request to be dealt with, the State may request that additional information be furnished." 33 The applicants object that the allegations made against them in the request for assistance (which was made on 16 March 2005) involved generalised assertions of the kind set out in paragraph 87 and what were described as vague assertions of suspected tax fraud in paragraph 100: see above at [7]. The applicants point to the requirement in Article 7 of the Treaty that a request must disclose "a description of the essential acts or omissions alleged or sought to be ascertained." They contend that, by reason of the alleged errors in the request, there were no "reasonable grounds to believe that a thing relevant to the proceeding or investigation may be located in a foreign country" as required by s 14 of the Mutual Assistance Act. 34 The applicants identify what they assert are fresh allegations against them in the part of the May letter which was signed by Mr Hellings of the ACC and sent to Mr Bottinelli in response to his letter dated 18 May 2005. The relevant passages from the ACC letter are set out above at [11]. The applicants draw attention to "a significant number of additional references to such matters as false documents, misleading documents, false instructions, fraudulent behaviour … and false income tax deduction" which they say had not earlier been made in correspondence with the Swiss authorities. 35 The applicants further complained that the November letter signed by Mr Considine which was sent to the Swiss authorities under cover of a letter from the Attorney-General's Department dated 7 December 2005 contained three new allegations. Those allegations are identified in the quoted passages above at [12]. Attention was also drawn to the ACC's stated anticipation that Mr Dunn might seek, in future, to offset falsely claimed capital losses against capital gains. It was further said that the November letter improperly incorporated legally privileged material, namely advice which a former legal advisor to the applicants had given to the effect that certain arrangements made by the applicants were illegal. 36 The applicants submit that the omissions and factual errors contained in the mutual assistance request and the May and November letters were: · The failure to disclose that millions of dollars in income had been declared by the applicants or their associated entities in returns lodged in respect of the income tax years 1999 to 2004 inclusive; · The failure to disclose that neither applicant had lodged a tax return which included a claim based on an invoice for a film script; · There was no factual basis for the assertion in the May letter that documentation had been created in connection with a film script to support fraudulent deception of the ATO; · The failure to disclose that neither applicant had claimed a tax deduction in respect of interest expenses from a loan from Ambassador Finance; and · The failure to disclose that neither applicant had claimed a write-off of an AU$4.75 million investment in shares in Macgrove Investments Limited. There was also a general complaint in the pleadings that the validity of the mutual assistance request was also undermined because of a failure to "disclose the investigating role of the ATO". This, it was said, gave rise to "an abuse of power" on the part of the respondents. 37 These acts and omissions, it is contended, caused the mutual assistance request and the subsequent letters to contravene s 14 of the Mutual Assistance Act and the Treaty because: · They did not relate to a "proceeding or investigation relating to a criminal matter"; · They did not constitute offences of the kind comprehended by Article 1 of the Treaty; · There were no "reasonable grounds to believe that a thing relevant to [a] proceeding or investigation" was located in Switzerland; · They contained no disclosure of whether circumstances existed which could justify refusal of assistance under Article 2 of the Treaty, including whether the request concerned a fiscal offence; and · They failed to disclose whether circumstances existed which could justify refusal of assistance under Article 3 of the Treaty, including whether acts or omissions which, if committed in similar circumstances in Switzerland, would not be punishable under the laws of Switzerland, in accordance with Article 3 of the Treaty. There was a further submission, which was not pressed at trial, that the documents disclosed information about the applicants in breach of the Privacy Act 1988 (Cth). Criminal Matters 38 No criminal proceeding has been commenced against either applicant arising out of Operation Wickenby. It was, therefore, necessary for an "investigation relating to a criminal matter" to be underway before a valid request for assistance of the Swiss authorities could be made under s 14 of the Mutual Assistance Act. The word "investigation" is not defined in the Act. Section 3 does, however, define a "criminal investigation" to mean "an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed)." The use of the phrase "investigation relating to a criminal matter" in s 14(1) comprehends a wider range of activities than those falling within the defined concept of a "criminal investigation". An investigation "relating to" a criminal matter has the potential to apply to a far broader range of activities: cf Oceanic Life Ltd v Chief Commissioner of Stamp Duties (NSW) (1999) 168 ALR 211 at 224-225 and the cases there referred to. It is not necessary, for present purposes, to determine the extent of the differences. This is because the evidence clearly establishes that the mutual assistance request was made to assist in the conduct of a criminal investigation known as Operation Wickenby. The evidence was given by Mr Outram, the ACC Executive Director, Operational Strategies. He deposed (and I accept) that Operation Wickenby began as a result of information contained in documentary material obtained after the execution of a search warrant in February 2004 on a hotel room occupied by Mr Phillip Egglishaw. That material suggested that a significant number of Australians had committed criminal offences involving taxation fraud. From July 2004 the ACC and the Australian Taxation Office ("the ATO") examined the material to determine which matters should be the subject of criminal investigation by the ACC and which matters should be the subject of civil investigation by the ATO. The ensuing criminal investigation conducted by the ACC was known as "Operation Wickenby". The civil investigations conducted by the ATO did not form part of Operation Wickenby. Operation Wickenby was conducted by the ACC pursuant to the Australia Crime Commission Authorisation and Determination (Money Laundering and Tax Fraud) Determination 2003. It involved the investigation of whether certain individuals had committed offences against Commonwealth criminal laws. Operation Wickenby is to be distinguished from Project Wickenby which was the title assigned to the separate investigations being overseen by the ATO. Allegation of Offences 39 Even if it be assumed that Article 1 of the Treaty imposes a positive obligation on Requesting States to identify with precision the offences to which the relevant investigation relates, there is no substance in the applicants' complaint that the request did not allege the commission of particular offences against Australian law. The request did contain references to a number of offences against Australian criminal law which it was alleged Mr Dunn had committed. The Treaty does not require the Requesting State to provide evidence that particular offences against its laws have been committed. As already noted, all that is required is that there be in existence a bona fide investigation which is designed to determine whether or not such offences have been committed. Reasonable Grounds 40 The power to make an application for assistance which is conferred by s 14 of the Mutual Assistance Act is conditioned on there being "reasonable grounds to believe that a thing relevant to the … investigation may be located in a foreign country." The request for mutual assistance which was sent to the Swiss authorities under cover of Ms Gibbins' 17 March 2005 letter, contained a good deal of information which suggested that material relevant to the investigation might be found in Switzerland. This information was largely derived from documents found on the personal computer of Mr Phillip Egglishaw and from responses by him to questions asked during a hearing conducted by the ACC. Strachans SA was based in Geneva. Mr Egglishaw was one of the principals of Strachans SA. He resides in Geneva. The Swiss Central Office was advised that "Australian authorities are investigating a number of Australian residents for using companies, trusts and bank accounts administered by Strachans S.A., an accounting services firm in Switzerland, to disguise their involvement in tax fraud schemes and money laundering" (paragraph 7). The Swiss authorities were also advised that the ACC believed that services provided by Strachans SA enabled Australian residents to obtain access to their funds "from anywhere in the world by the use of debit or credit cards linked to bank accounts opened and operated for them by Strachans outside Australia, including at Corner Banca, SA in Lugarno, Switzerland" (paragraph 9(c)). 41 The possibility of there being documents in Switzerland which were relevant to the investigation was considered by Mr Outram. His evidence was that, having received advice from those who had examined the material seized from Mr Egglishaw, he believed that Strachans SA, which had offices in Geneva, established personalised schemes for their clients to minimise or avoid paying tax. He believed that it was likely that information relating to these matters would be found in Strachans SA offices in Switzerland. He expected that information to include communications between Strachans SA and their promoters, the identities of beneficial owners of trusts operated by Strachans SA and information linking the accounts and trusts operated by Strachans SA, the promoters and the persons under investigation in Australia. 42 The phrase "reasonable grounds to believe" (or variants of it) has a well understood and well settled meaning. In George v Rockett (1990) 170 CLR 104 at 112 the High Court said that: "When a statute prescribes that there must be "reasonable grounds" for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person." Later in its joint judgment the Court continued (at 116): "The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of mind may, depending on the circumstances, leave something to surmise or conjecture." 43 In subsequent cases the High Court and this Court have cautioned against adopting paraphrases such as "not irrational, absurd or ridiculous" in construing the phrase "reasonable grounds": see McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423 at 445 (per Hayne J) and 467-8 (per Callinan and Heydon JJ); Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190 (per Bowen CJ and Beaumont J). The words are to be given their ordinary meaning. What is needed is a sufficient factual basis supporting the relevant belief. 44 In the present case the Australian investigators were seized of a good deal of information which pointed to the strong possibility that documents, relevant to their investigation, were likely to be found in the premises occupied by Strachans SA and Corner Banca in Switzerland. The information obtained from Mr Egglishaw pointed to the existence of schemes which involved Strachans SA administering trusts on behalf of Australian residents and the facilitation of the repatriation of funds to those residents by use of automated teller machines. Their accounts were held with banks such as Corner Banca. Non-disclosure 45 The request for mutual assistance did not advise the Swiss authorities that neither applicant had claimed a tax deduction for interest expenses from a loan obtained from Ambassador Finance and that neither applicant had claimed a write-off of AU$4.75 million investment in shares in Macgrove Investments Limited. Both of these transactions were referred to in the document entitled "Status of Criminal Investigations" which formed part of the November letter which was sent to Mr Bottinelli: see above at [12]. The applicants submit that the Attorney-General was under an obligation, when making the mutual assistance request, to disclose these matters to the Swiss authorities. This was because he was "under an obligation of disclosure in relation to all material facts." This obligation is said to arise from the Treaty. In particular, reliance was placed on the requirement, in Article 7.1(b), that requests for assistance shall include "a description of the essential acts or omissions alleged or sought to be ascertained" by the Requesting State. It was submitted that one of the purposes of this requirement was to enable the Swiss authorities to make a judgment as to whether or not to refuse the request for the reasons mentioned in Article 2.1(b) and Article 3.1 of the Treaty. Both provisions allow Requested States, in their discretion, to refuse assistance where the request, respectively, concerns a fiscal offence or involves compulsory measures and the assistance sought relates to acts or omissions which, if committed in similar circumstances in the Requested State, would not be punishable under the laws of that State. 46 It is to be noted at the outset that the two omissions which are identified in the preceding paragraph were matters of detail which might have assisted the applicant had they been charged with false deduction claims in income tax returns. The mutual assistance request did not allege that false claims had been made in relation to these payments. They were not relied on for the purposes for the request for assistance. They appear to have come to the attention of investigators after the request was made and were drawn to the attention of Swiss authorities in the progress report on the investigation which was prepared over six months later. 47 There are, in addition, other obstacles in the path of the applicants' argument. The first is that the Treaty does not form part of Australian domestic law and, therefore, save in an immaterial respect, does not impose binding obligations on the Attorney-General: see Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 at 286-7, 304 and 315. 48 Relevantly, s 7(2) of the Mutual Assistance Act provides that regulations may provide that the Act applies to a foreign country subject to any mutual assistance Treaty between that country and Australia. By s 7(3) of the Act it is provided that, if regulations have been made in accordance with s 7(2), then "this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country." Regulation 4(1) of the Regulations provides that the Act applies to Switzerland "subject to such limitations, conditions, exceptions or qualifications as are necessary to give effect to the Treaty…." These provisions do not have the effect of incorporating the Treaty into Australian domestic law: see Bollag v Attorney-General (Cth) (1997) 79 FCR 198 at 214-6. As the respondents submit, in the absence of inconsistency between the Mutual Assistance Act and the Treaty, the Act applies and the Treaty does not. 49 In any event, no general obligation of disclosure of "all material facts" is to be found in the Treaty. The relevant obligation, imposed by Article 7.1(b), extends no further than a requirement to describe essential acts or omissions which are alleged or which it is anticipated the investigation may ascertain. This information is to be provided to assist the Requested State to make a judgment about how it should respond to the request. This includes consideration of the questions of whether Article 2.1(b) or Article 3.1 apply and, if so, whether assistance should be refused on discretionary grounds: see Kennedy v Australian Securities and Investments Commission (2005) 142 FCR 343 at 365. The request for assistance identified with sufficient precision the facts which gave rise to the offences which it was then suspected had been committed. The potentially relevant provisions creating criminal offences were also referred to. This information was sufficient to alert the Swiss authorities to the possibility that the fiscal offences provisions might be engaged. As a result, they directed a series of questions to their Australian counterparts seeking further information about the allegations being made against the applicants and others. Sufficient information was, in my opinion, provided in the request to satisfy Australia's obligations under Article 7.1(b) of the Treaty. 50 The omission of any reference to what was said to be "the investigating role of the ATO" from the mutual assistance request was not a matter placed at the forefront of the applicants' case. As I understood the argument it was that, had reference been made to the ATO, it would have been clearer to the Swiss authorities that fiscal issues may have been involved and that they may have been more inclined to exercise their powers under Article 2.1(b) or Article 3.1 of the Treaty. I do not accept these submissions. The ATO was not conducting the criminal investigation which led to the making of the request. A clear separation of functions had been arranged under which the ATO was confined to civil aspects of the investigations. It may well have been misleading, in a request, made under the Mutual Assistance Act, to have implied or suggested that the ATO was engaged in the criminal investigation. In any event, as already noted, the Swiss authorities understood that the request dealt with fiscal offences. Failure to mention the ATO did not cause them to overlook this point. 51 It is also to be borne in mind that the discretionary considerations comprehended by Article 2.1(b) and Article 3.1 include matters arising under the domestic law of the Requested State which might not be known to or anticipated by the State making the request. It is, of course, open to the Requested State (as occurred here) to seek further information from the Requesting State should this be necessary in order for an informed decision to be made on the request. It is also to be remembered that the Requested State might, in its discretion, determine to respond to the request notwithstanding the fact that the request is one which might properly be refused under those provisions. 52 It may also be the case, as the respondents argued, that the fact that scope exists for the Requested State to seek elaboration of a request for assistance before making a decision as to whether or not comply, renders the request immune from successful attack unless it be established that the pleaded omissions had occurred by reason of fraud or bad faith: cf Lego Australia Pty Ltd v Paraggio (1994) 52 FCR 542 at 555-556; Puglisi v Australian Fisheries Management Authority (1997) 148 ALR 393 at 400. It is not, however necessary to determine whether this line of authority has application to requests for assistance made under the Mutual Assistance Act. Privileged Material 53 The November letter contained a paragraph which read: "The ACC had established that a legal advisor working for Dunn gave a legal opinion that the arrangement was illegal and she immediately terminated her employment with Dunn. The ACC also has information that suggest (sic) the legal advisors for Barminco also have expressed grave concerns regarding the illegality of the arrangement that Bartlett and Sayers have entered with Dunn and CROSSLINE." The applicants surmise that the first statement was founded on an opinion, provided to Mr Dunn by an in-house lawyer employed by the second applicant, Ms Jillian Saint. The applicants suggest that the ACC became aware of the substance of Ms Saint's opinion when she disclosed it in the course of an examination of her by an ACC examiner Mr Tim Sage in September 2005. Ms Saint gave Mr Sage a 31 page version of the opinion. Mr Dunn's solicitor, who was also present at the examination, provided a facsimile copy of a different version of the opinion which ran to 21 pages. The uncontradicted evidence of Ms Phillips, Ms Buttsworth and Mr Woodwood, establishes that the opinions were placed in a sealed envelope by Mr Sage and that nobody had access to the opinions until 15 December 2005, well after the November letter had been sent. The respondents submit that the information which is recorded in the first sentence of the statement was obtained from a letter that Ms Saint wrote to Mr Dunn on or about 1 September 2003. In that letter Ms Saint gave Mr Dunn some reasons for her decision to terminate her employment. Whilst she refers to certain "arrangements" which had caused her to lose sleep and become extremely stressed she does not refer to a particular arrangement; nor does she do more than imply that she had given advice relating to it. There is no reference in the letter to the matters contained in the second sentence of the statement relating to Messrs Bartlett and Sayers and CROSSLINE. No evidence was given by the author of the November letter. I am, therefore, unable to determine whether the statement was made in reliance on Ms Saint's letter or whether it reveals legally privileged material. No attempt has been made to establish that the opinion provided by Ms Saint was, in fact privileged. No determination to this effect has been made. I note that Mr Sage considered that the claim was dubious given that Ms Saint did not, at relevant times, hold a practicing certificate and that she was an employee of Misty Mountain. 54 Even if the statement was partly based on an opinion which was subject to a claim of privilege or was, in fact, privileged it does not follow that the November letter, or that part of it, was in some way rendered "invalid". The applicants did not advance argument as to why this should be so. THE INVOLVEMENT OF THE DPP 55 The DPP played a limited but, nonetheless, an important role in relation to Operation Wickenby. Operation Wickenby, as has already been noted, was conducted by the ACC under the Australian Crime Commission Authorisation Act and Determination (Money Laundering and Tax Fraud) Determination 2003. It involved an investigation directed to determining whether or not certain named individuals had committed offences against Commonwealth criminal laws. Following the execution of the search warrant on Mr Egglishaw's hotel room in February 2004, ACC investigators formed the view that it was likely that documents relating to the investigation would be found on premises occupied by Strachans SA and Corner Banca in Switzerland. The ACC investigators were aware that, in order to obtain such documents, it would be necessary for a mutual assistance request to be made to the Swiss authorities. The investigators were also aware that, pursuant to a Memorandum of Understanding between the DPP and the Attorney-General's Department, which had been made in 1997 ("the Memorandum of Understanding"), it was provided that the DPP had the primary responsibility for the drafting of mutual assistance requests made by Commonwealth agencies. The DPP was to perform a quality assurance role to ensure that any material obtained pursuant to a request was provided in a form that would be admissible in an Australian court in the course of a criminal prosecution or proceedings for the recovery of the proceeds of crime. The prosecution of such proceedings fell within the statutory responsibility of the DPP. 56 Under the Memorandum of Understanding it was also the role of the DPP to determine whether Australian authorities were undertaking the investigation of serious criminal matters such as to justify a request for mutual assistance from a foreign country and to advise the Attorney-General's Department as to whether a request should be made. The DPP appointed Mr Adsett, a senior officer, as its Operation Wickenby Co-ordinator. That officer was, from time to time consulted by the ACC to clarify whether evidentiary material which had been collected suggested that particular criminal offences may have been committed. 57 It was in accordance with these arrangements, that in February 2005, the ACC forwarded information to the DPP which alleged that Mr Dunn and others may have committed offences against Commonwealth laws and provided a draft mutual assistance request. That draft was settled by an officer in the DPP's office. Later in February 2005, Ms Cronan passed on the information obtained from the ACC investigator to the Attorney-General's Department. She provided a copy of the draft mutual assistance request and asked the Attorney-General to make the request for mutual assistance. She asked that the request should be made on behalf of the DPP and the ACC. This was done. 58 When the mutual assistance request was made in March 2005 it was said to have been made at the instance of the Office of the Commonwealth DPP and the ACC. 59 The applicants, in their written submissions, contended that the DPP "had no proper function to perform in relation to the mutual assistance request and that the involvement of the DPP in the mutual assistance request (and the subsequent letters) rendered it invalid." As developed in oral argument the issue was framed in terms of power. It was said that the DPP lacked power to do any of the acts which he had performed in relation to Operation Wickenby and that its participation in the making of the request caused it to be "invalid". 60 The Office of the DPP is established by s 5 of the Director of Public Prosecutions Act 1983 (Cth) ("the DPP Act"). The functions of the DPP include the carrying on of prosecutions for offences against Commonwealth law: see s 6(1)(a)-(e) of the DPP Act Section 6(2) of the DPP Act provides that, in addition to the function identified in s 6(1), the functions of the DPP include functions conferred on him or her under any other Commonwealth law (paragraph (a)) or "such other functions as are prescribed" (paragraph (b)). Section 6(1)(n) of the DPP Act is significant for present purposes. It provides that it is a function of the DPP "to do anything incidental or conducive to the performance of any of the functions referred to in paragraphs (a) to (mb) and in subsection (2)." 61 Although s 6(1)(n) of the DPP Act, in terms, identifies a 'function' of the DPP, it has been construed as being an empowering provision. In Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 the NSW Court of Appeal held that s 6(1)(n) of the DPP Act conferred a special power on the DPP: see at 597. A similar approach to the construction of s 6(1)(n) of the DPP Act was adopted by a Full Court of this Court in Health Insurance Commission v Freeman (1998) 88 FCR 544 ("Freeman"). Whilst rejecting the notion that s 6(1)(n) empowered the DPP to give legal advice on request to Commonwealth authorities merely because they happened to be investigating the commission of offences under Commonwealth law, it held that such advice might be given in certain circumstances. Merkel J (with whom von Doussa and Carr JJ agreed) held (at 564-5) that: "… in any particular case, the function to which the legal advice is incidental or conducive must be identified. Contrary to the view held within the DPP's office, the DPP is not empowered under the DPP Act to give legal advice, if and when sought, to any Commonwealth authority merely because it is investigating the possible commission of offences under Commonwealth law. Before the precondition in s 6(1)(n) is met there must be some nexus between the investigation being conducted by the authority and a statutory function of the DPP. The nexus must be something more than a mere theoretical possibility that the DPP might institute, carry on or take over a prosecution at some future date. The facts of the particular case or the nature of the alleged offence must, at the very least, establish that the possibility of the DPP becoming involved in a prosecutorial function is a real one. A course of conduct of past referrals of similar matters to the DPP or evidence of an intention to refer the particular matter to the DPP for prosecution may suffice. Ultimately, each case will depend on its own facts." His Honour had earlier (at 561) expressed the view that: " … it would seem to be incidental or conducive to the DPP's function of prosecuting, carrying on or taking over proceedings, including considering prosecuting, carrying on or taking over proceedings, to give legal advice to any Commonwealth authorities or agencies involved in the investigation of matters which are likely to be the subject of such proceedings, irrespective of whether the proceedings are prospective, imminent or actual. … For example, it would clearly be "conducive" for the better fulfilment of the prosecutorial functions of the DPP, for advice to be given to an investigative agency to ensure evidential material being gathered by it for the purpose of a prosecution which it is intended to be carried on by the DPP, is being gathered lawfully." 62 The applicants are, no doubt, correct in contending that the Memorandum of Understanding between the DPP and the Attorney-General's Department cannot and does not confer power on the DPP which he does not otherwise possess under a relevant enactment. They are also correct in contending that the DPP was not free to provide advice for the benefit of the ACC merely because the ACC was conducting an investigation into conduct by individuals which may contravene Commonwealth criminal law. The question for determination is, however, whether the various activities of the DPP, which were undertaken in the course of Operation Wickenby, were conducive to the performance of one or more of the prosecutorial functions of the DPP. In my view they were. 63 The ACC's investigation into the conduct of the applicants and others caused it to suspect that they had committed offences under Commonwealth criminal law. Specific offences were identified. The ACC determined that it was likely that documentary evidence which might assist in establishing whether or not offences had been committed was likely to be found in Switzerland. At this point the ACC placed the information, which it had by then obtained in the course of its investigation, in the hands of the DPP. Advice was sought as to whether the evidence suggested the possibility that serious criminal offences had been committed by the applicants and, if so, the terms in which an application for mutual assistance could be made to the Swiss authorities. One aspect of that request was that any documentary material seized in Switzerland should be made available to the Australian authorities in a form which would be admissible in an Australian criminal court. At all relevant times it was reasonably anticipated by the ACC that the DPP would be responsible for prosecuting any charges laid as a result of its investigation. These considerations, in my opinion, establish the necessary nexus between the investigation being conducted by the ACC and the prosecutorial function of the DPP. As a result the DPP was empowered, by s 6(1)(n) of the DPP Act to act as he did. 64 An additional source of power is to be found by a reading of s 6(1)(n) with s 6(2)(b) of the DPP Act. In Freeman Merkel J observed (at 566) that "[i]f it is regarded as desirable that the DPP have a general entitlement to give legal advice to Commonwealth authorities investigating the commission of offences under Commonwealth law, then that is a matter for Parliament." The DPP Act had, since its inception, contained s 6(2)(b) which empowered the executive, by regulation, to confer additional functions on the DPP. The power was not exercised, so as to confer power on the DPP to give general advice, until after the decision in Freeman was handed down. By regulation 3(1)(f) and (g) of the Director of Public Prosecutions Regulations 1984 (as amended by the Director of Public Prosecutions Amendment Regulations 1998 (No 1) which commenced on 22 December 1998) it was provided that it was a function of the DPP to provide legal advice to Commonwealth, State or Territory authorities "whether or not the advice is for the purposes of a particular investigation." It was plainly incidental and conducive to the performance of this function that the advice proffered by the DPP to the ACC and the Attorney-General's Department was given. 65 I note in conclusion that no argument was developed by the applicants to explain how and why, if the DPP had acted ultra vires, his involvement with the making of the request by the delegate of the Attorney-General, would render that request "invalid". THE INVOLVEMENT OF THE ACC 66 The applicants allege that the ACC did not act lawfully in providing to the DPP the information and advice sent in February 2005 by Mr Considine to Mr Adsett and in providing the information contained in the letters from the ACC to the Attorney-General's Department in May 2005 and November 2005. 67 The respondents contend that each of these communications occurred lawfully pursuant to either s 59(7) or 59(9) of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act"). 68 The ACC is established by s 7(1) of the ACC Act. It consists of the CEO, examiners and the members of the staff of the ACC. The functions of the ACC, provided for in s 7A of the Act, include the dissemination of criminal information, the investigation of conduct rendered criminal by Commonwealth laws and reporting on the outcomes of its investigations. Section 51 of the ACC Act makes it an offence for any member of the staff of the ACC to divulge or communicate to any other person any information acquired by him or her in the performance of his or her duties otherwise than in connection with the performance of those duties under a relevant Act. One relevant Act is the ACC Act itself: see s 51(4). Insofar as they are relevant subsections 59(7) and (9) provide: "(7) The CEO may give to: (a) any law enforcement agency; or (b) any foreign law enforcement agency; or (c) … any information that is in the ACC's possession and that is relevant to the activities of the agency or body if: (d) it appears to the CEO to be appropriate to do so; and (e) to do so would not be contrary to the law of the Commonwealth, a State or Territory that would otherwise apply. … (9) Where any information relating to the performances of the functions of: (a) a Department of State of the Commonwealth … (b) … (c) … comes into the possession of the ACC in the course of any operations or investigations conducted by it, the CEO may, if he or she considers it desirable to do so: (d) furnish that information to the Department, the Administration or the instrumentality; and (e) …" The term "law enforcement agency" is defined in s 4, inter alia, to mean "any other authority or person responsible for the enforcement of the laws of the Commonwealth or of the States." 69 By s 59A of the ACC Act the CEO may delegate, by writing, all or any of the CEO's powers and functions to a member of staff of the ACC of Senior Executive Service level. It was common ground that Mr Considine (the author of the February communication and the November letter) and Mr Hellings (the author of the second part of the May letter) were members of the staff of the ACC but were not delegates of the CEO for the purpose of the exercise of the CEO's powers under s 59(7) or 59 (9) of the ACC Act. Such a delegation was however held by Mr Outram who was an SES level officer. Mr Outram gave evidence which was sustained under cross-examination that: · He had responsibility for the management, co-ordination and control of all ACC investigations including Operation Wickenby. · Due to the strategic importance of Operation Wickenby to the ACC, he personally spent a "significant amount of [his] time" on Operation Wickenby. · He was personally aware that it was proposed to send the information, contained in the February communication and the May and November letters, to the recipients prior to those letters being sent. · In each case, he had formed the view that it was appropriate, desirable and relevant to the functions or activities of the DPP and the Attorney-General's Department that the provision of the information to those agencies should occur for the purpose of facilitating the making of the mutual assistance request or furnishing the Swiss authorities with information which they had requested following the making of the request. 70 The applicants contend that the information contained in the February communication to the DPP did not relate to the functions of the DPP and that the CEO did not and could not have formed the view that it was appropriate to give that information to the DPP. They further contend that the information contained in the May and November letters did not relate to the functions of Switzerland and the CEO did not and could not have formed the view that it was appropriate to give the information to the Swiss authorities. The applicants also contend that it was not the function of the ACC to send any of the letters. 71 The applicants' submissions are founded, in part at least, on certain misstatements of fact. The May letter and the November letter were both sent to the Attorney-General's Department with the intention that the information contained in them would be forwarded to the Swiss authorities. It was a matter for the Attorney-General's Department to determine whether the letters would be forwarded to the Swiss authorities. It was necessary for the information to be forwarded to the Attorney-General's Department because it was the Central Office through which, in accordance with Article 6 of the Treaty, communications relating to a mutual assistance request were to be channelled. 72 The DPP was a "law enforcement agency" for the purposes of s 59(7) of the Act. In AA Pty Ltd v Australian Crime Commission [2005] FCA 1178 at [19] Finkelstein J held that a Director of Public Prosecutions or an Attorney-General were persons who had general responsibility for the enforcement of the laws of the Commonwealth and were, therefore, law enforcement agencies for the purposes of s 59(7) of the ACC Act. Although his decision was overturned on other grounds by a Full Court (see Australian Crime Commission v AA Pty Ltd (2006) 149 FCR 540), this aspect of his Honour's reasons remained undisturbed. Indeed, the Full Court took a wider view of the term "law enforcement agency" than Finkelstein J had done. 73 The Attorney-General's Department is plainly a Department of State of the Commonwealth for the purposes of s 59(9)(a) of the DPP Act. The May and November letters were directed to this department. One of the functions of the department was to act as a Central Office in accordance with Article 6 of the Treaty. 74 Before information held by the ACC could be sent to another agency the CEO or his delegate must first form the opinion that such a communication was "appropriate" (s 59(7)) or "desirable" (s 59(9)). In each case Mr Outram formed the necessary opinion prior to the letter being sent. He was not, however, the author of any of the letters; nor did he forward any of the letters to the recipients. This was done, in each case, by a member of the staff of the ACC who was not a delegate of the CEO for the purposes of s 59(7) or 59(9) of the DPP Act. For this reason, the applicants contend, each of the communications was unlawful. I do not accept this submission. 75 The issue which arises is whether a delegate is required personally to perform each and every act which it is necessary to perform to exercise the delegated power. Various decisions of high authority suggest that the answer to this question, in any given case, will depend on a range of considerations. The considerations include the exigencies attaching to the exercise of the power, whether or not the delegate has the capacity to exercise the power on each and every occasion it is likely to be exercised, the potential for the exercise of the power to impinge on the rights of others and the status of the agent: see Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213 at 222-5. A delegate may be able to act through the agency of subordinates in performing some or all of the incidents of the exercise of delegated power. 76 In O'Reilly v Commissioners of the State Bank of Victoria (1982) 153 CLR 1 the High Court was called upon to determine the validity of certain notices given under the Income Tax Assessment Act 1936 (Cth). The Commissioner of Taxation had power to give the notices and he had delegated that power to Deputy Commissioners. Notices were given which bore a facsimile of the signature of a Deputy Commissioner which was stamped on the notices by the Chief Investigation Officer who had been authorised, by the Deputy Commissioner, to do so. The majority held that the notices were valid. Gibbs CJ (with whom Murphy J agreed) considered (at 12-13) that the Deputy Commissioner's delegated powers could be exercised through "a properly authorized officer". The Chief Investigation Officer was properly authorised notwithstanding the fact that the Deputy Commissioner had no personal knowledge that the officer intended to issue the particular notices. Wilson J (at 30-31) held that delegated power could be exercised through servants or agents. Mason J, in a dissenting judgment, was prepared to countenance the performance of ministerial acts by an agent of a delegate. His Honour said (at 18-19): "Apart from any exercise of his powers of delegation the Commissioner may appoint agents to act on his behalf and in his name. But, having regard to the statutory provisions here, I do not think that the Commissioner can appoint an agent to act on his behalf in exercising a statutory discretion or a statutory power which involves the formation of an opinion, except perhaps on the footing that the Commissioner retains to himself the substantial exercise of discretion or the substantial formation of the opinion, or the exercise of substantial control over the exercise of the discretion or the formation of the opinion, leaving to the agent the ministerial act of communicating the decision or issuing the notice." See generally, Campbell, "The Carltona Doctrine", (2007) 18 PLR 251. 77 The power conferred, by ss 59(7) and 59(9) on the CEO of the ACC or his delegate, Mr Outram, was conferred to facilitate departures from the general rule that information in the possession of the ACC should not be disseminated outside that body. The exercise of the power was conditional on the forming of value judgments as to the appropriateness or desirability or such dissemination. Information could only be communicated to a limited number of agencies. The significance which the legislature attached to the formation of the value judgments is indicated by the fact that, in each case, the judgment was to be formed by the CEO or a delegate drawn from the senior ranks (SES level) of the ACC. There was no evidence to suggest that the occasion for the exercise of power under s 59(7) or 59(9) was so frequent as to give rise to an assumption that the legislature could not have expected the CEO or a delegate personally to exercise the power. The exercise of the power had no direct effect on the rights of third parties but might, indirectly, have such an affect if the agency to whom the information was provided acted on it to the detriment of the third party. 78 These considerations suggest that the CEO or his delegate could not authorise other ACC officers to exercise the powers conferred by s 59(7) and s 59(9). Had Mr Outram purported to authorise Mr Considine or Mr Hellings to form the value judgments which lie at the heart of these statutory discretions, I would have been disposed to hold that the relevant disclosures had been made ultra vires. That is not, however, what occurred. 79 Mr Outram formed the necessary opinions upon which the exercise of the statutory discretions, provided for in ss 59(7) and 59(9), depended. He approved the sending of each of the letters. The acts of Mr Considine and Mr Hellings in composing, signing and sending the letters were, in my opinion, ministerial acts which they performed at the behest of and under the supervision of Mr Outram. No contravention of s 59(7) or s 59(9) the ACC Act occurred in relation to the forwarding of the letters to the DPP and the Attorney-General's Department. 80 Even had I formed a contrary view on the question of whether the three letters had been sent conformably with the requirements of the ACC Act, I would not have concluded that the legal efficacy of the mutual assistance request was thereby affected. Only the February communication predated the making of the request. The request was based on information supplied by the ACC but it was made by the delegate of the Attorney-General. There was no reason to suppose that the information had been provided by the ACC other than in good faith. There is nothing in the evidence to suggest that the material was not believed by the ACC to constitute a fair summary of the results of its investigation to that point. The fact that the ACC may have acted in contravention of Australian domestic law in making the communication to the DPP who, in turn, passed it onto the Attorney-General's Department does not, on the evidence, provide a legal basis for the conclusion that the request was invalid. DISPOSITION 81 The application should be dismissed with costs. This conclusion makes it unnecessary to deal with the respondents' contention that relief should be denied by reason of the applicants' delay in making the application. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice TRACEY. Associate: Dated: 24 April 2008 Counsel for the Applicants: Mr J Sher QC, Mr D Galbally QC and Mr J O'Bryan Solicitor for the Applicants: Brown and Co Counsel for the Respondents: Mr P Hanks QC and Dr S Donaghue Solicitor for the Respondents: Australian Government Solicitor Date of Hearing: 29 - 30 August 2007, 5 - 6 September 2007 Date of Judgment: 24 April 2008	19,553
federal_court_of_australia:fca/single/2001/2001fca0847	decision	commonwealth	federal_court_of_australia	text/html	2001-06-21 00:00:00	Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 847	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2001/2001fca0847	2024-09-13T22:52:38.066301+10:00	FEDERAL COURT OF AUSTRALIA Chen v Minister for Immigration & Multicultural Affairs [2001] FCA 847 Migration Act 1958 (Cth) s 476 WEI XING CHEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 221 of 2001 BRANSON J SYDNEY 21 JUNE 2001 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 221 of 2001 BETWEEN: WEI XING CHEN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON J DATE OF ORDER: 21 JUNE 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal be affirmed. 2. The applicant pay the costs of the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 221 of 2001 BETWEEN: WEI XING CHEN APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BRANSON J DATE: 21 JUNE 2001 PLACE: SYDNEY REASONS FOR JUDGMENT INTRODUCTION 1 The applicant, Mr Chen, has applied for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). That decision is dated 25 January 2001. By its decision the Tribunal affirmed a decision that Mr Chen not be granted a protection visa. Mr Chen's application for an order of review was amended by a later document filed with the court on 24 May 2001. Neither the application nor the amending document makes reference to s 476 of the Migration Act 1958 (Cth) ("the Act"), or to any of the grounds of review identified in that section. 2 The court's records show, as Mr Chen acknowledges, that he has participated in the pilot scheme in the Federal Court which gives independent legal advice on the prospects of success of an applicant appealing from a decision of the Refugee Review Tribunal. It appears from what Mr Chen has said today that he has also had access to some other legal advice. However, Mr Chen appeared without legal representation on today's hearing. Despite the legal advice available to him, Mr Chen does not, it appears, have any understanding of the role of this Court on an application of this kind. Mr Chen seeks to have this Court review on the merits his claim to be entitled to a protection visa. The Court, as I have sought to explain to him today and on an earlier occasion, has no jurisdiction to do this. 3 Mr Chen's claim to be entitled to a protection visa is based on his religion, namely Christianity. He asserts that he faces a high risk of persecution, due to his religion, if he returns to China. He also claims that he will be deprived of his basic human rights, including freedom of religion, if he returns to China. The Tribunal accepted that Mr Chen had been dismissed from his employment as a doctor at a hospital because of activities related to his Christian religion. However, the Tribunal concluded that the surrounding circumstances were such that the dismissal was reasonable and not discriminatory. 4 The Tribunal similarly found that Mr Chen's inability to obtain alternative hospital employment, or to set up a private medical practice, was not the result of discrimination on the grounds of his religion. The Tribunal concluded that Mr Chen was not under surveillance in China as he claimed, and that his religious profile is not such as to cause him to have a well-founded fear of persecution in his home city should he return there. It noted that he was able to obtain a legal Chinese passport issued in his own name, and that he had departed China unhindered on two occasions. The Tribunal was not satisfied that Mr Chen was of any interest to the Chinese authorities at the time when his passport was issued, or on the occasions when he departed China. 5 Mr Chen left China for Australia in April 1997 and has remained in this country since that time. He does not suggest that anything that he has done since that time has given rise to a well-founded fear that he will suffer persecution for a convention reason should he return to China. 6 The findings made by the Tribunal are not open to challenge in this Court on any ground identified by the Migration Act. The conclusion that Mr Chen is not entitled to a protection visa flowed logically from those findings. 7 It has not been suggested that the Tribunal failed to observe any procedure that it was required by the Migration Act or regulations to observe. No other ground upon which this Court may review the decision of the Tribunal has been identified or is apparent from the material before this Court. The decision of the Tribunal is therefore affirmed. 8 There will be an order that the applicant pay the respondent's costs. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 3 July 2001 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr J Smith Date of Hearing: 21 June 2001 Date of Judgment: 21 June 2001	1,170
federal_court_of_australia:fca/single/2011/2011fca0711	decision	commonwealth	federal_court_of_australia	text/html	2011-06-17 00:00:00	MST Investment Corporation Limited (Liquidators Appointed), in the matter of MST Investment Corporation Limited [2011] FCA 711	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca0711	2024-09-13T22:52:38.160041+10:00	FEDERAL COURT OF AUSTRALIA MST Investment Corporation Limited (Liquidators Appointed), in the matter of MST Investment Corporation Limited [2011] FCA 711 Citation: MST Investment Corporation Limited (Liquidators Appointed), in the matter of MST Investment Corporation Limited [2011] FCA 711 Parties: PAUL GERARD WESTON AND ANTHONY WAYNE ELKERTON IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350, CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154, CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383, RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907, MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952, MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350 LIMITED, CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154, CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383, RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907 and MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952 File number: NSD 951 of 2011 Judge: STONE J Date of judgment: 17 June 2011 Catchwords: CORPORATIONS – application under ss 447A and 439A(6) Corporations Act 2001 (Cth) for extension of time of convening period for second meeting of creditors – consideration of factors relevant to granting extension Legislation: Corporations Act 2001 (Cth) ss 447A, s 439A(2) and 439A(6) Cases cited: Riviera Group Pty Limited (receivers and managers appointed) (2009) 72 ACSR 352 Smith, in the matter of Claycon Pty Ltd (Administrator Appointed [2011] FCA 652 Date of hearing: 17 June 2011 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the Plaintiffs: D Stack Solicitor for the Plaintiffs: Kemp Strang IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 951 of 2011 IN THE MATTER OF MST INVESTMENT CORPORATION LIMITED PAUL GERARD WESTON AND ANTHONY WAYNE ELKERTON IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350, CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154, CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383, RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907, MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952 First Plaintiff and Second Plaintiffs MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350 LIMITED Third Plaintiff CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154 Fourth Plaintiff CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383 Fifth Plaintiff RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907 Sixth Plaintiff MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952 Seventh Plaintiff JUDGE: STONE J DATE OF ORDER: 17 JUNE 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The plaintiffs have leave to file in Court their originating process and the affidavit of Paul Gerard Weston sworn on 17 June 2011. 2. The originating process is returnable instanter. 3. Pursuant to section 439A(6) of the Corporations Act, 2001 (Cth) ("the Act"), the period for the first and second plaintiffs ("the Administrators") to convene a meeting of the creditors of each of the third, fourth, fifth, sixth and seventh plaintiffs ("the Companies") under section 439A of that Act, is extended up to and including 8 September 2011. 4. Pursuant to section 447A (1) of the Act, Part 5.3A of the Act is to operate in relation to each of the Companies as if the meeting of the creditors of each of the Companies required by section 439A of the Act, may be held at any time during, or within 5 business days after the end of, the convening period as extended by Order 3 above, notwithstanding the provisions of section 439A(2) of the Act. 5. The Administrators have liberty to apply to the Court for any further extension of the convening period referred to in order 3 above, at any time prior to 8 September 2011. 6. The costs and expenses of this application are to be costs and expenses of the Administration of the Companies. 7. The Administrators are entitled to an indemnity under section 443D of the Act for their remuneration, costs, charges and expenses of an incidental to this application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 951 of 2011 IN THE MATTER OF MST INVESTMENT CORPORATION LIMITED PAUL GERARD WESTON AND ANTHONY WAYNE ELKERTON IN THEIR CAPACITY AS JOINT AND SEVERAL ADMINISTRATORS OF MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350, CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154, CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383, RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907, MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952 First Plaintiff and Second Plaintiffs MST INVESTMENT CORPORATION LIMITED (ADMINISTRATORS APPOINTED) ACN 058 202 350 LIMITED Third Plaintiff CHATSWOOD 640-650 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 091 450 154 Fourth Plaintiff CAMPERDOWN 124-126 PROJECT PTY LIMITED (ADMINISTRATORS APPOINTED) ACN 089 770 383 Fifth Plaintiff RESIDENTIAL PROPERTY INVESTMENTS PTY LTD (ADMINISTRATORS APPOINTED) ACN 063 536 907 Sixth Plaintiff MST VIEW WHITSUNDAY PTY LTD (ADMINISTRATORS APPOINTED) ACN 116 046 952 Seventh Plaintiff JUDGE: STONE J DATE: 17 JUNE 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This application is made under ss 447A and 439A(6) of the Corporations Act 2001 (Cth) whereby the administrators of the plaintiff companies seek to extend the convening period for the second meeting of creditors of those companies so as to end on 8 September 2011 rather than 21 June 2011. Under the proposed extension the administrators would be obliged to convene the meeting no later than 15 September 2011; s 439A(2). 2 The plaintiff companies are part of a group of companies known as the MST Investments Group which carries on a property development business involving the purchase of land, demolition of structures on that land and the construction of large buildings of units. The third plaintiff, MST Investment Corporation Limited (Administrators appointed) is the ultimate holding company of the fourth, fifth, sixth and seventh plaintiffs. 3 Evidence as to the history and present circumstances of the plaintiff companies is to be found in the affidavit of Paul Gerard Weston, sworn on 17 June 2011. Mr Weston is an official liquidator and one of the administrators of the third, fourth, fifth, sixth and seventh plaintiffs in this proceeding. In his affidavit Mr Weston describes the corporate structure and business operations of the MST Investment Group. The group is primarily involved in property development and has projects in Sydney in the suburbs of Chatswood and Camperdown as well as, among others, a proposed development in Queensland in the Whitsunday area. 4 Mr Weston explained the steps that needed to be taken to realise the benefit of the property developments of the fourth (Chatswood) and fifth plaintiffs (Camperdown) and direct the resulting funds to the registered mortgagee, Perpetual Nominees Limited (Perpetual). Perpetual is the custodian of trusts for which Australian Unity Funds Management Limited is the responsible entity. Ultimately, according to Mr Weston the funds in both cases, were advanced under facilities with Australian Unity Limited and the proceeds of sale, after deduction of costs and expenses, will be paid to it. 5 The seventh plaintiff (Whitsunday) is the current registered proprietor of land at Cannonvale in Queensland (Whitsunday land). The land is subject to mortgages to Valad Commercial Management Limited (Valad) and Industry Funds Management (Nominees 2) Pty Ltd. The latter mortgage (Members Equity mortgage) secures funds advanced by the Members Equity Bank. The Valad mortgage has been postponed to that of the Members Equity mortgage. 6 The provision of funds sufficient for development of the Whitsunday land to be completed is subject to various preconditions as to the commencement of works and the number of pre-sales that must be achieved. Mr Weston states: The Administrators have been provided with evidence that the directors of MST View Whitsunday are presently engaged in negotiations with potential financiers to fund the costs associated with completing the Whitsundays Project. The Administrators have also been provided with detailed forecast information concerning the Whitsundays Project and a proposal as to how the sales, civil works and construction may be financed. This proposal is subject to the success of negotiations with all parties involved, particularly the current secured creditors, Members Equity Bank and Valad. 7 Clearly time is required for the negotiations to which Mr Weston refers to come to fruition. Mr Weston's affidavit contains a cogent analysis of the financial situation of the company and the creditors as presently understood by the Administrators. Mr Weston states that the directors of each of the plaintiff companies "wish to propound deeds of company arrangement for each of the Companies" which will enable the surplus funds realised from the sale of the remaining units in each development to be made available to the creditors of the MST Group. For this to be achieved it is necessary for the convening period to be extended. 8 In an application such as this there is, of course, no contradictor and so the evidence must be judged in terms of its internal coherence taking into account the experience of, in this case, Mr Weston. I see no reason to doubt any of the facts or arguments that are made in the affidavit. 9 Mr Stack, who appeared for the plaintiffs, drew my attention, in particular, to the decision of Austin J in the matter of Riviera Group Pty Limited (receivers and managers appointed) (2009) 72 ACSR 352 in which his Honour considered an application for an extension of a convening period and, at [13] of his reasons set out the considerations relevant to the granting of such an extension. 10 In this case, they include, in particular, the size and scope of the business, the complex corporate group structure and intercompany loans. The fact that complex transactions have been entered into by the company, all of which lead to the conclusion that there is a need for additional time to make a thorough assessment of a proposal for a deed of company arrangement and that that additional time is likely to enhance the return for unsecured creditors. 11 On the face of it, the requested extension is very long, however, the evidence that has been advanced today on behalf of the applicant indicates that the affairs of the companies to which administrators have been appointed are complex. They will require considerable time to be brought to a stage where the assets of the companies can be developed and realised in an orderly fashion and to the benefit of companies' creditors. 12 If the convening period is not extended then the likelihood would seem to be that the companies would be placed in liquidation and that ultimately the value realised on assets would be significantly less than would be the case if realisation followed the plan proposed by the administrators. 13 The principles identified by Austin J were applied by Jagot J in Smith, in the matter of Claycon Pty Ltd (Administrator Appointed) [2011] FCA 652, where her Honour made orders which are very similar to the orders sought in this case. With respect, I also adopt his Honour's approach and, on that basis I am satisfied that the orders sought by the plaintiffs should be made. 14 I will order that the period for convening the meeting of the creditors, as sought by the plaintiffs be extended up to and including 8 September 2011 and make the other orders sought by the plaintiff in this application. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 17 June 2011	3,107
federal_court_of_australia:fca/single/2013/2013fca0171	decision	commonwealth	federal_court_of_australia	text/html	2013-03-04 00:00:00	SZRQZ v Minister for Immigration and Citizenship [2013] FCA 171	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0171	2024-09-13T22:52:38.327848+10:00	FEDERAL COURT OF AUSTRALIA SZRQZ v Minister for Immigration and Citizenship [2013] FCA 171 Citation: SZRQZ v Minister for Immigration and Citizenship [2013] FCA 171 Appeal from: Application for extension of time and leave to appeal: SZRQZ v Minister for Immigration [2012] FMCA 1141 Parties: SZRQZ, SZRRA and SZRRB v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 10 of 2013 Judge: FARRELL J Date of judgment: 4 March 2013 Legislation: Federal Court of Australia Act 1976 (Cth) s 24 Federal Court Rules 2011 (Cth) rr 4.01, 35.13, 35.14, Ch 2, Pt 9, Div 9.6 Federal Magistrates Court Rules 2001 (Cth) r 44.12 Cases cited: SZRQZ v Minister for Immigration [2012] FMCA 1141 Date of hearing: 4 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 15 Counsel for the First Applicant: The first applicant appeared in person with the assistance of an interpreter Counsel for the Second Applicant: The second applicant did not appear Counsel for the Third Applicant: The third applicant appeared by their litigation representative, the first applicant Solicitor for the First Respondent: Mr M Alderton of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent submitted save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 10 of 2013 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRQZ First Applicant SZRRA Second Applicant SZRRB Third Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE OF ORDER: 4 March 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Compliance with rr 9.63, 9.64 and 9.66(3) of the Federal Court Rules 2011 is dispensed with and the first applicant is appointed the litigation representative of the third applicant, a child. 2. The application for extension of time and leave to appeal is dismissed. 3. The first applicant pay the costs of the first respondent. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 10 of 2013 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZRQZ First Applicant SZRRA Second Applicant SZRRB Third Applicant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: FARRELL J DATE: 4 March 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an application for an extension of time and leave to appeal from the decision of a Federal Magistrate made on 19 November 2012. 2 On 19 November 2012, a Federal Magistrate ordered that the applicants' application for judicial review of a decision of the Refugee Review Tribunal be dismissed pursuant to r 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth) (FMC Rules): SZRQZ v Minister for Immigration [2012] FMCA 1141. The provision referred to in the order permits the Federal Magistrates Court to dismiss an application if it is not satisfied that it raises an arguable case for the relief claimed. Relevantly, r 44.12(2) of the FMC Rules provides that an order made under r 44.12(1)(a) is interlocutory in nature. 3 Accordingly, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth), the applicants require leave to appeal from the Federal Magistrate's decision. 4 Rule 35.13(a) of the Federal Court Rules 2011 (Rules) requires that an application for leave be filed within 14 days after the date on which the judgment was pronounced or the order was made. 5 The applicants filed a notice of appeal in this Court on 7 December 2012 without first seeking leave. An objection to competency was filed by the Minister and the applicants discontinued their appeal on 31 December 2012. On the same day the applicants filed an application for an extension of time and leave to appeal. 6 In accordance with r 35.14(3)(c) of the Rules, the application was accompanied by an affidavit. Such an affidavit is required to state "briefly but specifically, the facts on which the application relies" and "why the application for leave to appeal was not filed within time". The affidavit of the first applicant reads, in its totality (excluding formal parts): 1. I am the applicant in these procedigs; 2. I received the decision after two weeks;. 3. I field a notice of appeal with the Federal Court on 7 December 2012; 4. I did not that the application will be lodged within 2 weeks from the date of the decision. 5. Further to this , I am very sick when I attend the Court Registry I became unconscious and the Court officers sent me Sydney Hospital. (Errors in the original) 7 Contrary to the requirements of the balance of r 35.14(3) – a draft notice of appeal, the judgment or order from which leave to appeal is sought and the reasons for that judgment or order were not provided. Nevertheless, the judgment and reasons have subsequently been filed by the Minister's representative. In the absence of a draft notice of appeal or submissions from the appellants suggesting proposed grounds I am prepared to take the original notice of appeal filed in the now-discontinued proceedings NSD2041/2012 as the draft notice of appeal to be relied upon should leave to appeal be granted. In the absence of a request for the application to be heard on the papers, it proceeded to this hearing. 8 At the hearing of the application, the first applicant appeared unrepresented with the assistance of an interpreter and sought to represent the second and third applicants. In light of the requirements of r 4.01 of the Rules, I declined to allow the first applicant to appear on behalf of her husband, the second applicant. However, consistently with the approach taken by the Federal Magistrate, I permitted her to appear on behalf of her child (the third applicant) as the child's litigation representative. In doing so, I indicated that I would make an order dispensing with compliance with the relevant parts of Div 9.6 of Pt 9 of Ch 2 of the Rules. 9 The principles guiding the discretion to grant an extension of time and leave to appeal are well known and were set out at paragraphs [26]-[31] of the Minister's written submissions (without alteration except for the inclusion of the substance of footnotes throughout the text): 26 The discretionary power to extend time is now addressed by r 35.14 of the Federal Court Rules 2011. It formerly had its counterpart in respect to applications for leave to appeal from interlocutory judgments in Order 52 r 10(2A) of the now-repealed Federal Court Rules. It is well established that a "casual disregard of the requirements of the Rules" is "inappropriate" [Nguyen v Minister for Immigration & Citizenship [2007] FCAFC 38 at [23] per Moore, Bennett and Buchanan JJ; SZKCE v Minister for Immigration and Citizenship [2008] FCA 1814 at [18] per Logan J; SMS Technology Australia Pty Ltd v Abdullah M Al Hamed [2009] FCA 451 at [11] per Logan J], and that the grant of an extension of time is not "automatic" [Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458]. 27 The considerations relevant to the exercise of the Court's discretion to extend time have been formulated as: … the court must be satisfied that there is an acceptable explanation for the delay, that there would be no undue prejudice to the respondent if the court were to grant leave, and that there is merit in the substantial application: see Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 at 348-349. [SZMFT v Minister for Immigration and Citizenship [2008] FCA 1725 at [21] per Cowdroy J; SZNFR v Minister for Immigration and Citizenship [2009] FCA 851 at [12] per Flick J] 28 The discretionary power to grant leave to appeal from an interlocutory decision is also not a power to be "automatically" exercised upon application being made [SZQZJ v Minister for Immigration and Citizenship at [16] per Flick J]. Section 24(1A) of the Federal Court of Australia Act confers on the court "an unfettered discretion" in "unqualified terms" [DÉcor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655; (1991) 33 FCR 397 at 399 per Sheppard, Burchett and Heerey JJ]. In order for the Court to grant leave to appeal the applicant must satisfy the Court of the cumulative test set out in DÉcor Corporation Pty v Dart Industries [at 398-399], namely: (a) whether in all the circumstances the judgment of the primary judge is attended by sufficient doubt to warrant it being reconsidered by the Full Court, and (b) whether substantial injustice would result if leave were refused supposing the decision would be wrong. 29 There two considerations are not unrelated [Cabcharge Australia Ltd v Australian Competition and Consumer Commission [2010] FCAFC 111 at [20] per Kenny, Tracey and Middleton JJ]. The "sufficiency of the doubt in respect of the decision and the question of substantial injustice should not be isolated in separate compartments" [Sharp v Deputy Commissioner of Taxation (NSW) (1988) 19 ATR 908 at 910 per Burchett J]. In CSR Limited, in the matter of CSR Limited [2010] FCAFC 34 at [5] Keane CJ and Jacobson J observed that [g]enerally speaking, leave to appeal will be granted where there is a reasonably arguable case that the decision below is affected by appellable error, and a grant of leave is necessary to remedy a substantial injustice … . 30 It is for the applicant seeking leave to appeal to satisfy the Court of these matters [Ogawa v The University of Melbourne (No 2) [2004] FCA 1275]. If, however, the proposed appeal is doomed to fail, or if no arguable ground of appeal is raised by the applicant, then the application for leave to appeal should not be granted. 31 Any discretion must always be exercised by reference to the relevant facts and circumstances of each individual case. In the present proceeding, there is an overlap in the considerations which guide the exercise of both discretionary powers now in issue. Such overlap is not surprising given that the discretionary powers conferred upon the Court are primarily directed to ensuring the proper administration of justice [Outboard Marine Australia Pty Ltd v Byrnes: Baukenecht (Third Party) [1974] 1 NSWLR 27 at 30 per Reynolds, Hutley and Bowen JJA]. Compliance with the rules of the Court, however, extends beyond the immediate litigious interests of the parties to the public interest in the orderly administration of justice [McGrath and Honey in their capacity as liquidators of Pan Pharmaceuticals Ltd (In Liquidation) v Australian Naturalcare Products Pty Ltd [2006] FCA 1843 at [14] per Allsop J; Von Arnim v Medfin Australia Pty Ltd [2008] FCA 472 at [13]; R v Meyboom [2012] ACTCA 2 at [63], 256 FLR 450 at 460 per Refshauge J]. 10 The explanation provided by the applicants, albeit in short form, in the affidavit accompanying the application for leave may be sufficient in the ordinary course. The fact that the order is interlocutory in nature means that the appeal period is reduced to 14 days. Had the order been final, rather than interlocutory, the notice of appeal would have been within time. This is an explicable and understandable error on the part of an unrepresented litigant. However, exercising the discretion to extend time in an unmeritorious case would be futile. 11 The applicants were put on notice that the grounds of the application for judicial review before the Federal Magistrate (extracted at [15] of the Federal Magistrate's reasons) were deficient from the outset. The Federal Magistrate advised the applicant of his view, referred them to the "RRT Legal Advice Scheme" where they met with, and received advice from, a legal practitioner. An opportunity was also given to them to file an amended application. The applicants did not take up that invitation. 12 The reasons of the Federal Magistrate indicate that he was of the view that the grounds of application simply sought to attack the Refugee Review Tribunal's findings of fact and invite the Court to undertake, impermissibly, merits review. That opinion was correct in my view. 13 Furthermore, the grounds of appeal in the draft notice of appeal simply re-agitate these issues. This Court would be left in the same position as the Federal Magistrate at first instance should the extension of time and leave to appeal be granted. 14 I am not satisfied that there is any merit in the grounds of appeal whatsoever. The applicants have not articulated and prosecuted any permissible grounds for judicial review and accordingly I am not satisfied the decision is attended with sufficient doubt to warrant reconsideration on appeal. In such circumstances I decline to allow the extension of time or grant leave to appeal. 15 I order that: 1. Compliance with rr 9.63, 9.64 and 9.66(3) of the Federal Court Rules 2011 is dispensed with and the first applicant is appointed the litigation representative of the third applicant, a child. 2. The application for extension of time and leave to appeal is dismissed. 3. The first applicant pay the costs of the first respondent. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate: Dated: 6 March 2013	3,270
federal_court_of_australia:fca/single/2020/2020fca1159	decision	commonwealth	federal_court_of_australia	text/html	2020-08-11 00:00:00	Southern Cross Mining Services Pty Ltd v Mickala Mining Maintenance Pty Ltd (No 2) [2020] FCA 1159	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1159	2024-09-13T22:52:38.446157+10:00	Federal Court of Australia Southern Cross Mining Services Pty Ltd v Mickala Mining Maintenance Pty Ltd (No 2) [2020] FCA 1159 File number(s): QUD 470 of 2019 Judgment of: GREENWOOD J Date of judgment: 11 August 2020 Catchwords: INTELLECTUAL PROPERTY – consideration of the disposition of the costs arising out of the determination of an interlocutory application for leave to amend a statement of cross-claim Division: General Division Registry: Queensland National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 12 Date of last submission/s: 3 August 2020 Date of hearing: On the papers Counsel for the Applicant: Mr D Logan QC Solicitor for the Applicant: Redchip Lawyers Counsel for the Respondents: Mr E Heerey QC with Mr B McEniery Solicitor for the Respondents: Thomson Geer Lawyers ORDERS QUD 470 of 2019 BETWEEN: SOUTHERN CROSS MINING SERVICES PTY LTD (ACN 107 646 917) Applicant AND: MICKALA MINING MAINTENANCE PTY LTD (ACN 128 020 342) First Respondent DAMIEN PAUL ENGLEBRECHT Second Respondent order made by: GREENWOOD J DATE OF ORDER: 11 AUGUST 2020 THE COURT ORDERS THAT: 1. The costs incurred by Southern Cross Mining Services Pty Ltd of and incidental to the interlocutory application by Mickala Mining Maintenance Pty Ltd ("Mickala") for leave to amend its statement of cross-claim be paid by Mickala and the second respondent, Damien Paul Englebrecht. 2. Pursuant to s 23 and s 37P of the Federal Court of Australia Act 1976 (Cth), rule 1.32 and rule 1.36 of the Federal Court Rules 2011, these orders and the reasons for judgment in support of these orders are made and published from Chambers. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GREENWOOD J: 1 These proceedings are concerned with the disposition of the costs of and incidental to an application by Mickala Mining Maintenance Pty Ltd ("Mickala") for leave to amend its statement of cross-claim in support of its notice of cross-claim in the principal proceeding. In that application, Mickala was unsuccessful in obtaining the leave it sought on the contested matters. Leave was granted in respect of some matters which were not in contest ultimately in the application. 2 These reasons ought to be read together with the reasons for judgment in Southern Cross Mining Services Pty Ltd v Mickala Mining Maintenance Pty Ltd [2020] FCA 1064. I do not propose to repeat in these reasons contextual matters relating to the structure of the principal proceedings, as those matters are comprehensively addressed in the primary judgment. However, the following matters at [2] to [5] of the primary judgment ought to be noted: 2 In the principal proceeding, the applicant, Southern Cross Mining Pty Ltd ("Southern Cross"), seeks relief in respect of contended infringements of Australian Innovation Patent No. 20130095 (the "095 Patent") of which it is the patentee, against Mickala and Mr Damien Englebrecht. Mr Englebrecht is said by Southern Cross in its statement of claim to be Mickala's sole shareholder, sole director, secretary and guiding mind. 3 As to both respondents, Southern Cross seeks a declaration that the respondents have infringed each of the five claims defining the invention the subject of the 095 Patent. I will return to those claims shortly. 4 Southern Cross also seeks a permanent injunction restraining the respondents from infringing each of the claims by engaging certain acts without its consent or licence; damages pursuant to s 122(1) of the Patents Act 1990 (Cth) (the "Act"); an inquiry as to the loss and damage it claims to have suffered by reason of the infringing conduct together with an order that the respondents pay the amount found due upon such an inquiry; additional damages pursuant to s 122(1A) of the Act; in the alternative to the claims under s 122(1) and (1A), the taking of an account; and other relief. 5 The 095 Patent is a patent for an invention the title of which is "Lighting Tower". It is uncontroversial that the 095 Patent was applied for on 30 January 2013; claims an earliest priority date of 30 January 2013; was granted to the cross-respondent on 21 February 2013; was certified on 28 March 2014; and has an expiry date of 30 January 2021. 3 The respondents to the principal proceeding, Mickala and Mr Damien Englebrecht, have put on a defence to the applicant's statement of claim in which they deny infringement. In addition, Mickala has filed a notice of cross-claim by which it seeks an order for revocation of the 095 Patent in reliance on s 138(3)(b) of the Patents Act 1990 (Cth) (the "Act"). The elements of the cross-claim are described in the primary judgment. 4 The applicant in the principal proceeding, Southern Cross Mining Services Pty Ltd ("Southern Cross"), was the successful party on the interlocutory application. It is entitled to an order for the payment of its costs incurred of and incidental to the interlocutory application. Two questions arise for present purposes. The first is whether Southern Cross ought to have its costs against simply Mickala as the cross-claimant and the party seeking leave to amend its statement of cross-claim, or whether it should have its costs against Mickala and Mr Englebrecht. The second question is whether it should be given liberty to enforce an order for costs now rather than in the light of the ultimate resolution of the proceedings overall. 5 In the statement of claim by Southern Cross, it pleads this at para 3: 3. The Second Respondent [Mr Englebrecht] is, and was at all times material to this proceeding: (a) the sole director, and secretary, of [Mickala]; (b) the sole shareholder of [Mickala]; (c) involved in the day-to-day management of the business of [Mickala]; (d) in effective control of the conduct and business of [Mickala]; and (e) the guiding mind of [Mickala]. 6 By the defence filed on 15 October 2019, the respondents deny para 3 of the statement of claim of Southern Cross. In the submissions on the question of costs in these proceedings, Mickala accepts that Mr Englebrecht is Mickala's sole director and shareholder. It accepts that "he has thereby played an active part in the conduct of the litigation by virtue of his control of the company" and it accepts that "he has a real interest in the litigation, both as Mickala's sole director and shareholder and because the Applicant's action [the claims of Southern Cross] against him falls away if Mickala's cross-claim succeeds". However, Mickala contends that these factors alone are not matters that warrant a costs order in respect of the interlocutory application being made against him. 7 It is true that Mr Englebrecht is not a cross-claimant and he is not therefore a party to the relief claimed by way of cross-claim against the cross-respondent, which is Southern Cross. However, it is artificial to regard Mr Englebrecht as a true "third party" against whom a costs order is sought, in circumstances where at least at the level of the concessions, there is a close relationship between Mickala and Mr Englebrecht. However, the position is a little closer even than that. By the defence of the respondents jointly, the respondents deny para 6 of the statement of claim of Southern Cross. By para 6 of the statement of claim, Southern Cross says that the 095 Patent is, and was at all times material to this proceeding, subsisting and of full force and effect. By para 29 of the statement of claim, Southern Cross asserts that (a) the 095 Patent was held by it; (b) that it is a valid and subsisting patent; (c) that Mickala did not hold any licence or authority to exploit in Australia the invention the subject of the 095 Patent; (d) that Southern Cross sold and hired in Australia an LED lighting tower product manufactured in accordance with the 095 Patent; (e) that Mickala offered and sold, or offered and hired, LED lighting tower products in competition with Southern Cross; and (f) that the Mickala products infringed the claims of the 095 Patent. The respondents jointly deny para 29(a)-(d) and (f), and they do so on the footing that the 095 Patent is not and has never been valid for the reasons pleaded at para 6 which engages a denial of para 6 of the Southern Cross statement of claim: para 29(a)(ii) of the defence of the respondents to the principal proceeding. 8 By para 30 of the statement of claim, Southern Cross pleads that having regard to the relevant paragraphs of its pleading, the respondents have done, and will continue to do (unless restrained), the infringing acts pleaded in the statement of claim and do so in flagrant disregard of the rights in relation to the 095 Patent; knowing or having reason to know of the 095 Patent; knowing that Mickala had no authority or licence to exploit the invention; and having no reasonable basis for believing that Mickala's conduct did not constitute infringement of the 095 Patent. By para 31, Southern Cross pleads that by reason of particular matters pleaded in the statement of claim, the conduct of Mickala has been, and will be, such as to attract the operation of s 122(1A) of the Act. 9 In answer to the claims made in paras 30 and 31, both respondents deny those matters having regard to the matters pleaded by them at para 29 of the defence. That paragraph again engages the notion that the 095 Patent is not, and has never been, valid for the reasons they plead. 10 It can be seen therefore that there is an important degree of correspondence between the claim made by Mickala and the defence by both defendants to the claims of Southern Cross having regard to the merits of those aspects of the cross-claim. 11 I am satisfied that it is appropriate to order that the costs of Southern Cross of and incidental to Mickala's interlocutory application for leave to amend its statement of cross-claim be paid by Mickala and Mr Englebrecht. 12 I am not satisfied that leave ought to be given to enforce the costs order now. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Greenwood. Associate: Dated: 11 August 2020	2,365
federal_court_of_australia:fca/single/1988/1988FCA0349	decision	commonwealth	federal_court_of_australia	application/pdf	1988-06-30 00:00:00	Serra-Sanfelin, Re D.H. Bankruptcy, Ex parte The Official Trustee in [1988] FCA 349	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1988/1988FCA0349.pdf	2024-09-13T22:52:38.793910+10:00	JUDGMENT No. 2°. 7.523 onus CATCHWORDS BANKRUPTCY —- Sub-s.109(10) Bankruptcy Act 1966 - Application by trustee for order conferring advantage on indemnifying creditors with respect to distribution of recovered asset - Asset recovered without resorting to litigation - Bankruptcy Amendment Act 1985 - What is meant by "recovered under an indemnity for costs of litigation" - Principles applicable to determination of degree of advantage which should be conferred. Bankruptcy Act 1966 sub-ss.109(10), 116(1), 152(1), 153(1), 154(1), iets, para.58(1)(b) Bankruptcy Amendment Act 1985 RE: DAVID HAROLD SERRA~SANFELIN EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY the Trustee of the property of David Harold Serra-Santelin NO. 171 OF 1980 LEE J. PERTH 30 JUNE 1988 IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION OF THE STATE OF ) BANKRUPTCY DISTRICT ) ) ) WESTERN AUSTRALIA NO. 171 OF 1980 RE: DAVID HAROLD SERRA-SANFELIN EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY the Trustee of the property of David Harold Serra-Sanfelin Applicant MINUTE OF ORDER JUDGE MAKING ORDER: LEE J. DATE OF ORDER: WHERE MADE: 30 JUNE 1988 PERTH THE COURT ORDERS THAT: 1. The sum of $45,000 recovered by the trustee indemnities for costs of litigation, under less deductions for relevant fees, costs and expenses, be distributed in the following manner: (a) (b) The sum of $12,000 be distributed to the indemnifying creditors pro rata; and the balance, after payment of costs and expenses of administration, be distributed to creditors of the separate estate and the remaining surplus to creditors of the joint estate of the bankrupt and Graeme John Jones. action to include the joint estate of the bankrupt Graeme John Jones. The applicant be granted leave to amend the title of the and So much of the trustee's costs as do not exceed $1,000 be paid as part of the expenses of recovery of the property the subject of this application. Note: Settlement and entry of orders is dealt with in Rule 124 of the Bankruptcy Rules. IN THE FEDERAL COURT OF AUSTRALIA GENERAL DIVISION BANKRUPTCY DISTRICT OF THE STATE OF WESTERN AUSTRALIA were rr NO. 171 OF 1980 RE: DAVID HAROLD SERRA-SANFELIN EX PARTE: THE OFFICIAL TRUSTEE IN BANKRUPTCY the Trustee of the property of David Harold Serra-Sanfelin Applicant CORAM: LEE J. 30 June 1988 REASONS FOR JUDGMENT This is an application by the trustee of the property of the bankrupt seeking orders pursuant to sub-s.109(10) of the Bankruptcy Act 1966 ("the Act") which will have the effect of giving creditors who gave the trustee an indemnity for costs of litigation an advantage over other creditors with respect to the distribution of property of the bankrupt recovered by the trustee consequent upon such indemnities having been provided by those creditors. The trustee of the bankrupt's estate 1s the Official Trustee 1n Bankruptcy ("the trustee"). The bankrupt had carried on business in partnership as a building contractor. The bankrupt and his partner presented a joint debtor's petition on 15 April 1980. The debts owing to unsecured creditors of the joant estate were approximately $190,000. The debts due to the unsecured creditors of the separate estate of the bankrupt amounted to approximately $8,800. The respective estates were duly administered by the realization of assets and the distribution of dividends. The joint estate of the bankrupt and his partner made a distribution to unsecured creditors of 2.082 cents in the dollar after payment of priority creditors. In the separate estate of the bankrupt a dividend of 42.22 cents in the dollar was distributed. The bankrupt was discharged from his bankruptcy on 12 July 1983. In November 1985 the trustee became aware that the bankrupt had made application to become registered as the proprietor of land of which he claimed to be entitled either as a beneficiary of his late father's estate or through rights of adverse possession. The trustee lodged caveats against the property after making enquiries and forming the view that the land in which the bankrupt claimed an interest was an asset of the estate of the bankrupt which had vested in the trustee upon the commencement of the bankrupt's bankruptcy. In March 1986 a meeting of the creditors of the joint estate of the bankrupt and his partner and of the separate estate of the bankrupt was held to decide what action should be taken in respect of the newly discovered item of property in the bankrupt's estate. The meeting resolved that an opinion be obtained from the trustee's solicitors and that the costs thereof be borne by the creditors present in proportion to their proofs of debt. The trustee's solicitors provided advice and recommended that the opinion of counsel be obtained. The trustee instructed solicitors to obtain the advice of counsel. In July 1986 counsel advised that the bankrupt had succeeded to the property upon his father's death which had occurred after the commencement of the bankruptcy but before the discharge of the bankrupt. Counsel concluded that the property was, therefore, property divisible amongst the creditors of the bankrupt's estate pursuant to sub-s.116(1) of the Act. Counsel advised the trustee that pursuant to para.58(1)(b) of the Act, the property vested in the trustee upon being vested in or devolved upon the bankrupt. Counsel did not discuss the effect of discharge of the bankrupt but it is clear that pursuant to sub-s.152(1) and in the absence of any order of annulment under sub-s.154(1) with consequent reversion of the property to the bankrupt under 4. sub-s.154(2), the property remained vested in the trustee for the purpose of realization and distribution to the creditors of the bankrupt's separate and joint estates. The creditors retained rights to receive distributions from those estates in respect of the unsatisfied debts notwithstanding that the bankrupt personally had been released from those debts upon discharge from his bankruptcy pursuant to sub~-s.153(1) of the Act. Another meeting of joint creditors of the bankrupt and his partner and the separate creditors of the bankrupt was held on 19 December 1986 to consider the opinion the trustee had received. The meeting was advised that 1t appeared to be necessary for the trustee to commence legal proceedings to obtain orders allowing him to deal with the bankrupt's property. The creditors were advised that if such litigation were successful the creditors of the bankrupt's separate estate would be paid in full and creditors of the joint estate would receive a further dividend of approximately 16 cents in the dollar. The meeting resolved that the trustee be authorized to institute legal proceedings to establish the interest of the trustee in the bankrupt's properties and to realize that property. At that meeting creditors were informed that the trustee would require the creditors to provide indemnities in respect of his legal costs before proceedings could be commenced. The creditors were informed of the provisions of sub-s.109(10) of the Act which allowed creditors who had provided such indemnities to receive an advantage over other creditors. In the notice of meeting forwarded to creditors, the trustee advised creditors that he had received legal opinions expressing the view that he had a good claim to the bankrupt's half anterest in the property in question, He further advised creditors that the bankrupt had offered to compromise the trustee's claim by payment of a sumof $5,000. The trustee informed creditors that a valuation of the property as at September 1980 indicated that the bankrupt's half share was worth approximately $37,000. Notice of the meeting of 19 December 1986 was forwarded to all creditors of each estate at the last addresses notified to the trustee. In some cases notices were returned unclaimed and the trustee made further efforts to trace those creditors and obtain an alternative address to which another copy of the notice could be forwarded. After the meeting of creditors held on 19 December 1986 had resolved that the trustee be authorized to commence legal proceedings, the trustee, 1n January 1987, forwarded a notice to creditors that the trustee required to be indemnified for the costs of that action. The notice specified that the costs were anticipated to be approximately $9,000 and the notice also set out the text of sub-s.109(10) in full. Creditors were advised that should insufficient or unsatisfactory indemnities be received the matter would not proceed. 6. As a result of that notice eleven creditors of the joint estate provided indemnities for the trustee's costs. One of those creditors limited his liability under that indemnity to the sum of $1,000. There were only two creditors of the separate estate and neither creditor provided an indemnity. According to the trustee's affidavit there were erghty-four creditors who lodged proofs of debt in the joint estate and another ten creditors who had been identified as creditors of that estate but had not proved. The eleven creditors providing indemnities represented approximately 27% of the value of the total debts of the joint estate and approximately 31% of the value of the proved claims lodged in that estate. The indemnity provided by the eleven creditors was in the following form: "IN CONSIDERATION of your undertaking such steps, actions, proceedings or suits aS you may be advised to obtain an Order from the Court claiming the Official Receiver's half anterest in the properties at T7 Stone Street, Bayswater, presently registered in the name of David Harold Serra-Sanfelin and for the realisation of that interest. TWO. ccc cece cece eee teen ee ence a creditor...in the abovenamed estate hereby agree that I will pay to you on demand all costs, charges, expenses and sums of damages for which you may become liable, pay, incur or sustain in respect of or arising out of or in connection with such steps, actions, proceedings or suits (including appeals)." Upon receipt of the indemnities the trustee authorized solicitors to take such steps as were necessary to establish the trustee's interest in the bankrupt's property. The trustee's solicitors made formal demand upon the bankrupt on behalf of the trustee as a result of which negotiations to compromise the matter were commenced. The bankrupt offered to pay to the trustee a sum of $45,000 in full settlement of the rights of the trustee. This proposal was placed before a duly convened meeting of the creditors of the joint and separate estates of the bankrupt on 10 July 1987. Creditors attending that meeting resolved unanimously to authorize the trustee to accept the offer of settlement proposed by the bankrupt. The trustee did compromise the matter by receiving the sum of $45,000. It is said that after payment of various fees and disbursements the amount available for distribution to creditors will be approximately $37,000. In bringing this application for consideration of an order to advantage the creditors who have provided an indemnity, the trustee has given notice of the application to all creditors and that notice has provided a summary of relevant facts. On the hearing of the application no creditor sought to oppose an order being made to advantage the creditors who had provided indemnities. Although the creditors of the separate estate did not provide indemnities, it may not have been reasonable to expect them to have done so. At the time indemnities were sought' the amount still owing to creditors of the separate estate was only approximately $5,000 and the bankrupt was offering to pay that sum to the trustee without the trustee taking any further step in the matter, The terms of sub-s.109(10) are as follows: "Where in any bankruptcy -— (a) property has been recovered, realized or preserved under an andemnity for costs of litigation given by a creditor or creditors; or (b) expenses in relation to which a creditor has, or creditors have, indemnified a trustee have been recovered, the Court may, upon the application of the trustee or a creditor, make such orders as 1t thinks just and equitable with respect to the distribution of that property and the amount of those expenses so recovered with a view to giving the indemnifying creditor or creditors, as the case may be, an advantage over others in consideration of the £15k assumed by creditor or creditors." 9. The indemnity provided by creditors to the trustee was for such costs, charges and expenses which the trustee may have incurred or sustained in respect of steps, actions, proceedings or suits undertaken to obtain an order from the Court in respect of the bankrupt's property. The question that arises is whether the property recovered in the estate, the sum of $45,000, was so recovered under an indemnity for costs of litigation. Prior to the Bankruptcy Amendment Act 1985 it was necessary to show that property had been recovered by means of an indemnity for costs of litigation (at that time sub-s.109(6)). After the Bankruptcy Amendment Act 1985 it became necessary to show that the property had been recovered under an indemnity for costs of litigation. The phrase "by means of" may have required some causal relationship, not necessarily direct, to be demonstrated. (See discussion of meaning of phrase "by reason of" in Vickers v. Minister for Business and Consumer Affairs (1982) 43 A.L.R. 389, 407 per Morling J.) Before the amendment it had been suggested that the meaning of the word "recovered" was limited by the context provided by the words "by means of an indemnity for costs of litigation", In Re Passmore; Ex parte Official Receiver in Bankruptcy (1984) 56 A.L.R. 181 Northrop J. said at p.184: 10. "The court is required to construe the words 'recovered or preserved' appearing in the opening part of s.109(6) of the Act. It is apparent that they are to be construed in the context of litigation. In that context the word 'recover' signifies to recover by legal action, normally by the judgment of a court. It is quite correct to refer, for example, to the recovery of damages for personal injuries even though the legal proceedings in which damages are sought result in a settlement being reached." and at p.186, for the purposes of the Act, the meaning of the words "recovered or preserved" meant: ",..recovered or preserved in some action, matter or proceeding in a court of law." However, in several earlier cases where the trustee had relied upon an indemnity for the costs of litigation in taking any step to assert his right to a bankrupt's property, it had been held that assets recovered by those steps without resort to litigation were assets recovered by means of the indemnity. In Re A. and M. Myerson (1908) 25 W.N. (N.S.W.) 136 Street J. stated at p.137: "I am not going to attempt to put an exhaustive interpretation upon the words 'by means of'. Each case must depend upon its own circumstances, but I think that in every case the Court must see, not merely that the assets in question were recovered after the giving of the indemnity, but that were it not for the indemnity they would probably not have been recovered at all, or at least that the protection and assurance afforded to the official assignee by the indemnity have been material factors in rendering possible and helping towards and facilitating the recovery of the assets claimed to have been recovered by means of such indemnity." 11. and at p.138: "Nearly the whole of this amount was recovered without hostile litigation being resorted to, but if the indemnity comes within the terms of the section I do not think that it is necessary that in every case hostile litigation should have been embarked upon before the provisions of the section can be brought into operation." In that case the Official Assignee had recovered monies from various sources by letters of request and demand without resort to litigation but had made demand only after receiving the indemnities in respect of his costs of litigation. In Re Farrow (1956) 18 A.B.C. 225 the Official Receiver demanded repayment of monies the Official Receiver claimed to have been preferential payments. The demand was refused. The Official Receiver obtained counsel's opinion and thereafter an indemnity from creditors for the costs of litigation. The Court then granted leave to the Official Receiver to institute proceedings and to recover the disputed payments. However, the creditor paid the amounts previously demanded upon becoming aware that leave to institute proceedings had been granted without any formal litigous step having been taken. In that case Jeffriess J. said at p.229: "By the indemnity, it appears to me that the creditors who signed have subjected themselves' to the risk of having to pay the costs of adverse litigation. According to the affidavit of the official receiver, he would not have taken any further action or made any further demand against 12. Burns Philp and Co. Limited had those creditors not given the indemnity...Therefore I conclude that the protection and assurance afforded to the official receiver by the indemnities have been the material factor in bringing about the recovery of these moneys and that the official receiver would not have incurred the expense and risk which he did and take the action which he did, unless he had been secured against personal loss by the indemnity, especially as Burns Philp and Co. Ltd had made it clear from the outset that the claim would be resisted. For these reasons I hold that the assets have been recovered by means of an indemnity for the costs of litigation within the meaning of s.84(2) of the Bankruptcy Act." The effect of the 1985 amendments to s.109 have been considered by Pincus J. in Re Webb; Ex parte Taylor (1987) 75 A.L.R. 139. At pp.141-142 his Honour said: "The expression 'recovered under an indemnity for costs of litigation' is a little elliptical. It seems to mean ''recovered by reason of steps taken under an indemnity for costs of litigation'; an indemnity cannot itself directly bring about recovery. Counsel argued that there is no intention in the section to give a creditor an advantage by reason of having given an indemnity for the costs of any investigation with a view to possible litigation and referred to in Re A Shadler Ltd (1905) 5 SR(NSW) 33. In that case Walker J. held that s.77 of the Bankruptcy Act 1899 (NSW) applied in a winding up under the Companies Act but that, giving that section (which was similar in terms so far as_ relevant to s109(10)) a strict interpretation, the costs of inquiry into whether or not litigation should be instituted were not covered by the section. It follows from Shadler's case that here, if there had been an indemnity only for the costs of investigation, the section would not have applied; but the indemnity in the end covered both investigation and litigation, as it did not in Shadler''s case. The question whether the property was recovered 'under' the indemnity is one of some difficulty. Giving the provision the construction mentioned in 13. the preceding paragraph, however, I find that the property was so recovered. It seems a reasonable inference that it was the threat of immediate litigation which induced Mr. Webb to offer to transfer the properties, and that threat was made in the course of the solicitors pursuing their retainer covered by the indemnity for the costs of litigation. In my view, that indemnity covered the preliminary steps such as preparing the court papers and writing a letter of demand." In the present case the indemnity is not an indemnity limited to the costs of litigation. It extends to costs or charges incurred in respect of such steps as the trustee may be advised to take to obtain an order from the Court. Furthermore, the trustee made it plain that he would take no steps to proceed to obtain a court order in respect of the property unless' such indemnities were received. Whatever the meaning of the expression "recovered under an indemnity" may be, it is apparent that replacement of the phrase "by means of" with the word "under" does not display any intention to contract the scope of operation of the section, and, to the contrary, may show an intention to loosen the nexus of a causal relationship. Ifa trustee or creditor is able to show that an indemnity for costs of litigation has been provided and that the trustee relied upon that indemnity in taking steps preparatory to litigation as a result of which property was recovered for the estate, such circumstances will come within the meaning of the words ""property...recovered...under an indemnity for costs of litigation." 14. I am satisfied that the provisions of sub-s.109(10) apply to the facts of the present case. Accordingly the Court 18 empowered to make such order as it considers to be just and equitable with regard to the distribution of the property recovered with a view to giving indemnifying creditors an advantage over others in consideration of the risk assumed. The risk assumed by the indemnifying creditors must therefore be assessed. Before the indemnity was requested and given, the trustee had already obtained advice from solicitors and counsel's opinion which expressed the view that the trustee had a good claim to the bankrupt's property. Furthermore, before the trustee sought an indemnity in respect of his costs of litigation estimated to be approximately $9,000, the bankrupt had already offered, without prejudice, to settle the trustee's claim by payment of a sum of $5,000. It would not be appropriate to conclude that the indemnifying creditors had exposed themselves to a_ substantial risk. The costs of litigation would have been shared by eleven creditors and an individual creditor's liability may have been comparatively modest. (See Re M.L. Ried (1946) 13 A.B.C. 287.) 15. At worst no indemnifying creditor would have been likely to have been called upon to pay more than the $1,000 to which one of their number limited his exposure under the indemnity. As is stated in Re Manson; Ex Parte the Official Assignee [1897] 18 L.R.(N.S.W.) B & P 45, each case must stand on its own facts and it is for the Court to weigh up all the circumstances including the amount of risk run by the indemnifying creditors, the amount recovered, the proportion between the debts of indemnifying creditors and non-indemnifying creditors and any other matters considered to be relevant. In assessing the degree of risk, of course, the Court must be careful not to rely too strongly on the benefit of hindsight. I am of the opinion that the indemnifying creditors did undertake a risk, although not major, and they are entitled to some advantage. It would not be proper to disturb the anticipated distribution in full to the creditors of the separate estate and it must be remembered that the indemnifying creditors represent less than one-third of the total proved debts of the joint estate. The proceeds of the property recovered in respect of which an order may be made under sub-s.109(10) are the net proceeds after deduction of relevant remuneration, legal costs and expenses which deductions will not include the cost of work done prior to the receipt of indemnity. Some of the outstanding fees and disbursements recited by the trustee in his affidavit appear 16. to relate to costs incurred prior to the receipt of indemnity and if so they should be charged against the general administration and not deducted from the proceeds received. (See Re Ehrat and Danglmaier (1976) 12 A.L.R. 566.) Accordingly, the appropriate order would be that the sum of $45,000 recovered by the trustee under indemnities for costs of litigation, less deductions for relevant fees, costs and expenses, be distributed in the following manner: (a) The sum of $12,000 be distributed to the indemnifying creditors pro rata; and (b) the balance, after payment of costs and expenses of administration, be distributed to creditors of the separate estate and the remaining surplus to creditors of the joint estate of the bankrupt and Graeme John Jones. Leave will be granted to amend the title of the application to include the joint estate of the bankrupt and Graeme John Jones, the trustee having given appropriate notice of the application to all creditors of the joint estate. I will receive submissions from counsel on the question of costs of the application. 17. I certify that the preceding sixteen (16) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: fetnaa Calull Date: 4ot Gere, (98s. Counsel for the Applicant: Mr. R. Harrison Solicitors for the Applicant: Messrs. Warren Harrison The following indemnifying creditors appeared on their own behalf: Mr. D. Campbell Allied Glass Pty. Ltd. through its representative Miss F. Grey Date of Hearing: 22 February, 8 March 1988 Date of Judgment: 30 June 1988	5,790
federal_court_of_australia:fca/single/2021/2021fca1220	decision	commonwealth	federal_court_of_australia	text/html	2021-10-05 00:00:00	Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2021/2021fca1220	2024-09-13T22:52:41.566472+10:00	Federal Court of Australia Woods, in the matter of T & F.S. Woods Pty Ltd v Woods [2021] FCA 1220 File number: QUD 441 of 2019 Judgment of: DERRINGTON J Date of judgment: 5 October 2021 Date of publication of reasons: 8 October 2021 Catchwords: PRACTICE AND PROCEDURE – application for release of implied undertaking in respect of affidavits filed in proceedings – whether affidavits were subject to implied undertaking – whether affidavits were filed voluntarily – where Federal Court (Corporations) Rules 2000 (Cth) required originating process to be supported by affidavit – declaration made that leave not required to use affidavits Legislation: Federal Court (Corporations) Rules 2000 (Cth) rr 2.2, 2.4 Cases cited: Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 Frigger v Trenfield (No 5) [2020] FCA 827 Harman v Secretary of State for the Home Department [1983] 1 AC 280 Hearne v Street (2008) 235 CLR 125 Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 Medway v Doublelock Ltd [1978] 1 WLR 710 R v Silverstein [2020] VSCA 233 Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156 Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore (No 4) [2020] FCA 1458 Sinnott v Chief of Defence Force [2020] FCA 643 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 28 Date of hearing: 5 October 2021 Counsel for the First Plaintiff: Mr A Harding Solicitor for the First Plaintiff: Macpherson Kelley Counsel for the Second Plaintiff: Mr M Rawlings Solicitor for the Second Plaintiff: DWF Australia Counsel for the Defendants: The Defendants did not appear ORDERS QUD 441 of 2019 IN THE MATTER OF T & F.S. WOODS PTY LTD ACN 055 880 496 BETWEEN: DAVID WOODS First Plaintiff T & F.S. WOODS PTY LTD ACN 055 880 496 Second Plaintiff AND: ALLAN JOSEPH WOODS First Defendant JULIEANNE WOODS Second Defendant THE EXECUTOR OF THE ESTATE OF TERENCE WOODS DECEASED Third Defendant order made by: DERRINGTON J DATE OF ORDER: 5 October 2021 THE COURT DECLARES THAT: 1. The affidavits of Mark Smith filed on 24 July 2019, of David Woods filed on 24 July 2019, and of Christian Dreyer filed on 27 August 2019 in the proceedings are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given. AND THE COURT ORDERS THAT: 2. The second plaintiff's interlocutory application filed on 28 September 2021 is otherwise dismissed. 3. The costs of the interlocutory application follow the event in the Federal Circuit and Family Court of Australia proceeding, BRG 627 of 2020: David Woods v T&FS Woods Pty Ltd (ACN 055 880 496). Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) DERRINGTON J: 1 The first plaintiff, Mr David Woods, commenced the present proceedings on behalf of the second plaintiff, T & F.S. Woods Pty Ltd (TFS) and sought leave, nunc pro tunc, to bring and conduct the proceedings on its behalf pursuant to s 237 of the Corporations Act 2001 (Cth) (Corporations Act). In the course of the proceeding, Mr Woods filed an affidavit of Mr Mark Smith on 24 July 2019, an affidavit sworn by himself on 24 July 2019, and one sworn by Mr Christian Dreyer on 27 August 2019. The only orders in the proceedings were made on 30 August 2019. By a notice filed 29 November 2019, the plaintiff discontinued the proceedings with the defendants' consent. 2 TFS now seeks leave to rely on the three affidavits in proceedings in the Federal Circuit and Family Court of Australia (BRG627/2020: David Woods v T&FS Woods Pty Ltd (ACN 055 880 496)) (the FCFCOA Proceedings). For the reasons discussed below, those affidavits are not the subject of the implied undertaking described in Hearne v Street (2008) 235 CLR 125 and, accordingly, leave is not required to rely upon them. Background 3 By an Originating Process filed on 24 July 2019, the first plaintiff sought leave to bring and conduct the proceedings on behalf of TFS, and sought the following relief on its behalf: (a) declarations that the first and second defendants had misappropriated the company's funds and had breached fiduciary and statutory duties owed to the company; (b) orders for the recovery of the allegedly misappropriated funds and for the appointment of independent accountants to investigate and report on the affairs of the company; (c) damages and interest in respect of the first and second defendants' breach of their statutory duties; and (d) in the alternative, orders for the appointment of liquidators and the winding up of the company. 4 As the affidavits filed in support of the Originating Process were not ultimately read in the proceedings, it would be inappropriate to describe their contents in detail here. It suffices to note that the first affidavit, filed on 24 July 2019, was of Mr Smith, an accountant, who deposed to his investigations as to the financial affairs of TFS. The second affidavit, filed on the same date, was of the first plaintiff, Mr David Woods, who was a director of TFS at that time. In that affidavit, he deposed to further matters relating to the affairs of the company and made certain allegations in support of the relief sought. 5 As the first plaintiff's action was one commenced under the Corporations Act, the Originating Process was filed in accordance with r 2.2 of the Federal Court (Corporations) Rules 2000 (Cth) (Corporations Rules). In connection with that rule, r 2.4 provides: 2.4 Supporting affidavits (1) Unless the Court otherwise directs, an originating process, or interlocutory process, must be supported by an affidavit stating the facts in support of the process. … 6 There having been no direction to the contrary, it may be accepted that the first two affidavits filed in the proceedings were filed by the first plaintiff in accordance with that rule. In one sense, it might therefore be said that he was "required" by r 2.4 to file them, however it is not clear that such a rule constitutes "compulsion" sufficient to attract the implied undertaking and thus create a need for the present application. As is concluded below, it does not. 7 On 25 July 2019, the first plaintiff filed an interlocutory process seeking orders for the appointment of provisional liquidators to TFS. 8 On 27 August 2019, the first plaintiff filed the affidavit of its solicitor, Mr Dreyer, in which he deposed to communications with the second plaintiff's accountants. The evidence does not disclose the reasons for why that affidavit was filed in the proceedings and its contents do not assist in answering that question either. It might be thought that it was a further affidavit in support filed in accordance with r 2.4 of the Corporations Rules. If that is accepted, then the principles concerning whether the first two affidavits are the subject of the implied undertaking also apply to it. If that is not accepted, it appears that the affidavit was filed voluntarily such that it cannot be said that any implied undertaking attaches to it on the basis that Mr Woods was compelled to file it. 9 The first plaintiff's interlocutory application for the appointment of a provisional liquidator came on for a hearing on 30 August 2019, but was then adjourned to facilitate a mediation of the dispute. The mediation was successful and it seems that a settlement agreement was entered into. A notice of discontinuance was filed on 29 November 2019 with the consent of the defendants. 10 Mr Woods and TFS are now engaged in further litigation in the Federal Circuit and Family Court of Australia and the company wishes to rely upon the affidavits filed in the proceedings in this Court. In those proceedings, there is an issue as to whether the claim there sought to be agitated is barred by the settlement agreement with respect to the prior action in this Court. Are the affidavits the subject of the implied undertaking? 11 The immediate question is whether the affidavits are the subject of the implied undertaking, commonly referred to as the "Harman undertaking", a name which derives from Harman v Secretary of State for the Home Department [1983] 1 AC 280 (Harman). The leading Australian authority is Hearne v Street, in which Hayne, Heydon and Crennan JJ, with whom Gleeson CJ and Kirby J agreed, described the fundamental principle as follows (at 154 – 155 [96]): Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. (Citations omitted). 12 Despite still being referred to as an implied "undertaking", the High Court in that case confirmed that it is a substantive obligation and one that can only be released by the Court: at 157 – 160 [105] – [107]. The corollary is that the "undertaking" cannot be released merely by the consent of the party which disclosed the relevant information or document. At the hearing of the present application, the respondent to the application somewhat belatedly acknowledged that leave was not required as the filing of the affidavits had not been compelled. 13 Although those principles are clear enough, recent authorities concerning the scope of the implied undertaking – as it applies to affidavits filed in a proceeding – diverge as to whether, and to what extent, a compulsory requirement to file an affidavit is necessary for the implied undertaking to arise with respect to the affidavit. 14 In Sinnott v Chief of Defence Force [2020] FCA 643 (Sinnott), Logan J considered an application by the Chief of Defence Force (the CDF) for leave to use an affidavit beyond the proceedings in which it had been filed. The relevant affidavit had been filed by Ms Sinnott in support of her application for judicial review and an application for an extension of time in which to bring that application. In reasons which were delivered ex tempore, his Honour considered that the affidavit had been "necessarily filed and served in support of the application for an extension of time", and referred to r 31.02(2) of the Federal Court Rules 2011 (Cth) which provides that such an application "must be accompanied by" an affidavit in support. Ultimately, his Honour considered himself bound by Liberty Funding Pty Ltd v Phoenix Capital Ltd (2005) 218 ALR 283 (Liberty Funding) and Hearne v Street to hold that the CDF was bound by an obligation not to use the affidavit other than for the purposes of the proceedings in which it had been filed: at [29]. 15 That conclusion, being that the implied undertaking applies where the rules of court require an affidavit to be filed in support of an originating or interlocutory application which itself is voluntarily made, illustrates the broadest line of authority concerning the level of compulsion required for the implied undertaking to arise. However, Logan J also described that position as being "subject" to an underlying principle, described as follows by McPherson J in Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509 (Central Queensland Cement) at 510: … a document furnished for use for one purpose may not legitimately be used for another. 16 That principle, if it ever represented good law in Australia, would extend the implied undertaking beyond the circumstances considered in Sinnott to circumstances where no element of compulsion existed. Indeed, if an affidavit had been voluntarily furnished in one proceeding, that principle would make it impermissible for another party to rely upon it in other proceedings without the leave of the court. However, the correctness of that statement of principle has subsequently been doubted, at the very least because it pre-dates and is directly inconsistent with the authoritative statement of principle in Hearne v Street: see Frigger v Trenfield (No 5) [2020] FCA 827 [46]. 17 In R v Silverstein [2020] VSCA 233 (Silverstein), the Victorian Court of Appeal (Kyrou, Kaye & McLeish JJA) considered an application for leave to appeal from a decision dismissing an application for contempt, in part arising from the respondents' alleged misuse of certain affidavits. Three of the affidavits had been filed in debt recovery proceedings brought by the applicant for leave, Mr Davey, against the second and third respondents, and he had filed the other in support of a preliminary discovery application. The first respondent, the solicitor for the second and third respondents, later sent the affidavits to Mr Davey's trustee in bankruptcy in an attempt to have the bankruptcy extended. Mr Davey then brought proceedings for contempt, in part on the basis that the respondents had breached the implied undertaking with respect to the affidavits by disclosing them to the trustee. Those charges were dismissed, with the primary judge concluding that the affidavits were not the subject of the undertaking. 18 In unanimously dismissing the application for leave to appeal, the Court of Appeal surveyed the relevant authorities concerning when documents are taken to have been filed, served or produced under "compulsion": at [58] – [91]. As the extracts from Harman set out in the Court of Appeal's reasons identify, the rationale for the implied undertaking is explained in terms of the need to limit the invasion of privacy where a party is compelled to disclose documents or information: Silverstein [61] – [62]. See also Hearne v Street at [107]; Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10 at 33. The undertaking achieves this by limiting the use to which such documents or information may be put to that which is required by the course of justice, in general being their use in the relevant proceedings. 19 It is to be acknowledged that affidavits are specifically identified in Hearne v Street as a kind of document which attracts the implied undertaking. However, as the reasons of the Court of Appeal identify, the two cases cited by the High Court in support of that proposition concerned an affidavit in the nature of disclosure and an affidavit which had been ordered to be confidential: Silverstein at [74] – [76] discussing Medway v Doublelock Ltd [1978] 1 WLR 710 and Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156. 20 Turning to the issue before it, the Court of Appeal observed that the cases demonstrate that not every affidavit filed in compliance with a rule of court is produced under compulsion: at [78]. It doubted whether Liberty Funding supported the proposition applied in Sinnott that affidavits in support filed in accordance with a rule of court were sufficiently "compelled": at [83] – [84]. While it did not seek to define the precise limits of the principles concerning affidavits, it concluded that "the affidavits in question in this case fell well outside the scope of the kind of documents considered to have been provided under compulsion for the purposes of the principles discussed in the authorities": at [89]. Two of the affidavits filed in the debt recovery proceedings had been filed by Mr Davey in support of an application for summary judgment where the relevant rules of court required the application to be supported by an affidavit. Nevertheless, he was under no compulsion to make the application and, accordingly, the affidavits were held not to be the subject of the implied undertaking: at [85]. Likewise, Mr Davey was not compelled to make the application for preliminary discovery and the affidavit in support of that application was also not the subject of the implied undertaking: at [86]. The fourth affidavit, which had been filed by the second defendant in the debt recovery proceeding, was also filed voluntarily and thus was not the subject of the implied undertaking. 21 This Court is bound to follow the conclusions reached by the Court of Appeal in Silverstein: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151 – 152 [135]: with the consequence that it must be concluded that the affidavits filed in these proceedings are not the subject of any implied undertaking and that the second plaintiff does not require leave to rely upon them in the FCFCOA Proceedings. Nevertheless, it ought to be observed that, on one view, the Court of Appeal's decision appeared to emphasise the issue of whether the relevant originating or interlocutory application was made voluntarily, rather than on whether a party was compelled to file, serve or produce the specific documents or information in the relevant affidavit: see at [85] – [86]. The difficulty with the former approach is that it might be taken to follow that no documents or information which a party produces in the course of the proceedings (or in respect of an interlocutory application) which it brought voluntarily can be the subject of the implied undertaking, regardless of whether it was produced under compulsion of a rule or order of the court. Plainly, that would be wrong in the case of documents or information disclosed pursuant to an order requiring an applicant to produce specific documents or information, or specific categories of documents or information in proceedings it commenced voluntarily. Indeed, the quintessential case of compulsion is the production of documents as part of the process of disclosure or discovery. 22 Likewise, where a party is required by the rules of court or an order of the court to file and serve an affidavit deposing to specific information or categories of information, such an affidavit is in substance disclosure and would also be the subject of the implied undertaking. That may be contrasted with affidavits which are voluntarily made in support of an originating or interlocutory process. Even if the relevant rule of court requires such affidavits to be filed with or in support of the process, the specific information or documents included in the affidavits is not prescribed. The documents disclosed or information evidenced is a matter of the litigant's choice. The position seems to be the same where, as here, the rules of court requires the affidavit to state "the facts in support of the process". The information and documents included in the affidavits is nevertheless produced "voluntarily". The same is broadly true of affidavits filed in response to the relevant process. 23 For similar reasons, timetabling orders which require a party to file and serve any affidavits on which it intends to rely by a particular date, in general, do not compel the disclosure of the specific information or documents included in affidavits filed and served in compliance with such orders: Leagou Pty Limited v Commissioner of Taxation [2020] FCA 1162 [19] – [24]. In Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104, Brereton J doubted whether such orders constituted sufficient compulsion to attract the implied undertaking, but considered himself bound by Hearne v Street to conclude that it did: at [39] – [40]. CONCLUSION 24 For the foregoing reasons, the affidavits filed by Mr Woods in this Court on his own behalf and on behalf of TFS are not the subject of the implied undertaking. The leave sought by TFS in its interlocutory application is not required. 25 Where, on an application such as this, it is concluded that a document or information is not the subject of the implied undertaking or that a particular use of it would not constitute a breach of that obligation, the appropriate relief is a declaration to that effect: see e.g. Roufeil v Fiore, in the matter of the Bankrupt Estate of Peter Andrew Fiore (No 4) [2020] FCA 1458 [19]. As Jackson J observed in that case, the granting of leave to use a document or information out of an abundance of caution may encourage the making of unnecessary applications in which the moving party disputes the very need for the application. It is also incongruent to make an order relieving a party from an obligation which the Court has found does not exist. The making of a declaration satisfactorily determines the issue, whilst affording any other party a basis from which to appeal. 26 It follows that the appropriate relief is a declaration that the affidavits are not the subject of an obligation owed to this Court not to use them for any purpose other than that for which they were given. The second plaintiff's interlocutory filed on 28 September 2021 should otherwise be dismissed. Costs 27 There is some difficulty in determining the appropriate order as to costs. Counsel for TFS, Mr Rawlings, somewhat bravely submitted that the law is not entirely settled. Counsel for Mr Woods, Mr Harding, submitted that the issue might have been resolved by the parties outside of Court and there is also force in that. Nevertheless, the context of the application was that a degree of urgency existed as the FCFCOA Proceedings are ongoing and the applicants needed to ascertain quickly where they stood. 28 It is relevant that the dispute between the former protagonists in this Court appears to be continuing. The mediation in this Court apparently resolved or brought a truce to a battle but did not actually settle the war which continues to rage in the Federal Circuit and Family Court. The present application appears, in substance, to be part of that continuing dispute. As each party has acted reasonably, the proper course is that the costs of the interlocutory application before this Court should follow the event of those proceedings. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate: Dated: 8 October 2021	5,026
federal_court_of_australia:fca/single/1997/1997fca1268	decision	commonwealth	federal_court_of_australia	text/html	1997-11-24 00:00:00	Johnstone, Raymond Marshall v Casual Life Furniture Pty Ltd [1997] FCA 1268	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1268	2024-09-13T22:52:41.934503+10:00	FEDERAL COURT OF AUSTRALIA PRACTICE AND PROCEDURE - application to strike out statement of claim - allegation of tort of conspiracy - allegation of misleading and deceptive conduct - whether statement of claim identifies material facts which constitute the causes of action - application to stay proceedings - claim for unpaid barrister's fees - whether Federal Court inappropriate forum - whether claim pursued for an improper purpose Federal Court Rules, O 11 rr 2, 9 Lonhro Ltd v Shell Petroleum Co Ltd (No 2) [1982]AC 173, cited Little v Law Institute of Victoria [1990] VR 257, applied RAYMOND MARSHALL JOHNSTONE v CASUAL LIFE FURNITURE PTY LTD VG 548 OF 1997 TAMBERLIN J SYDNEY (HEARD IN MELBOURNE) 24 NOVEMBER 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 548 of 1997 BETWEEN: RAYMOND MARSHALL JOHNSTONE Applicant AND: CASUAL LIFE FURNITURE PTY LTD Respondent JUDGE: TAMBERLIN J DATE OF ORDER: 24 NOVEMBER 1997 WHERE MADE: SYDNEY (heard in melbourne) THE COURT ORDERS THAT: 1. Paragraphs 9 to 16 inclusive of the Amended Statement of Claim be struck out. 2. The proceedings be permanently stayed against the respondent. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 548 of 1997 BETWEEN: RAYMOND MARSHALL JOHNSTONE Applicant AND: CASUAL LIFE FURNITURE PTY LTD Respondent JUDGE: TAMBERLIN J DATE: 24 NOVEMBER 1997 PLACE: SYDNEY (HEARD IN MELBOURNE) REASONS FOR JUDGMENT This Notice of Motion filed on 7 November 1997 by the respondent, Casual Life Furniture Pty Ltd ("Casual"), seeks to strike out paragraphs 4, and 6 to 16 inclusive, of the applicant's Amended Statement of Claim ("ASC") and a further order that that the proceedings in this Court be permanently stayed. The ASC states that the applicant is a barrister who in 1992 was briefed by Mr Joseph Guss ("Guss"), solicitor, to act for Casual. The applicant carried out work for Casual and charged a fee of $8,430, which is said to be reasonable. Guss failed to pay the moneys whereupon the applicant obtained judgment in the Magistrates' Court against Guss for that sum plus interest at 13.2% under the Penalty Interest Rates Act 1983 (Vic). The ASC claims that the reason judgment was recovered against Guss and not Casual was because of a Victorian Bar Council ethical rule, which it is said, prevented a barrister recovering fees against a client until the solicitor had first become bankrupt This rule, it is claimed, ceased to apply since the coming into operation of the Legal Practice Act 1996 (Vic). There were appeals by Guss against the judgment but these were unsuccessful. Nevertheless, the fees were not paid. The ASC further alleges that Guss, with the assistance of Casual, tried to avoid being served with a bankruptcy notice. No specific facts are pleaded of Casual's alleged conduct in this respect. Guss is a director of Casual. The ASC then alleges that having been served with a bankruptcy notice, Guss tried to set it aside. This was unsuccessful. There was an appeal to the Full Court of the Federal Court. Judgment on that appeal was handed down on 13 November 1997. The appeal was dismissed. It is then alleged that all these steps were taken by Guss because the time for the applicant to make a claim under the Limitation of Actions Act 1958 (Vic) would expire so that the applicant could not recover the moneys against Guss or Casual. There is then an allegation that Casual knew of these aims of Guss and conspired at all times with Guss to avoid paying anything to the applicant for the work which he had done. It is further alleged that in so acting Casual acted in a misleading or deceptive way contrary to s 52 of the Trade Practices Act 1974 (Cth) or s 11 of the Fair Trading Act 1985 (Vic). As a result of misleading or deceptive conduct by Casual and Guss the applicant claims he suffered loss and damage composed in part of the initial judgment for $8,430, together with party-party costs thrown away and solicitor-client costs incurred by the applicant which were also thrown away. There is then an allegation, in the alternative, that Casual and Guss committed the tort of conspiracy with the intent of causing loss and damage to the applicant. The applicant claims the sum of $8,340 for his fees plus interest. There is also a further generalised rolled up claim for a total amount of $350,000. Statement of Claim Casual submits that the pleading is deficient because it does not allege the material facts, including any overt acts on the part of Casual, which are relied on to sustain the conclusion that there was a conspiracy. Order 11 r 2 of the Federal Court Rules requires that a pleading of a party must contain a statement in summary form of the facts relied on. The purpose of pleading is to define the issue with sufficient specificity to inform the other parties in advance of the case they have to meet. The pleading is intended to identify the material relied on as constituting the cause or causes of action which are said to constitute the case for the relief sought. Particulars and statements of evidence are no substitute for proper pleadings. The pleading must disclose facts which can reasonably give rise to the cause of action asserted. The gist of the tort of conspiracy was stated by Lord Diplock in Lonrho Ltd v Shell Petroleum Co Ltd (No 2) [1982] AC 173 at 188-189 as follows: "The gist of the cause of action is damage to the plaintiff; so long as it remains unexecuted the agreement, which alone constitutes the crime of conspiracy, causes no damage; it is only acts done in execution of the agreement that are capable of doing that. So the tort, unlike the crime, consists not of agreement but of concerted action taken pursuant to agreement." In Little v Law Institute of Victoria [1990] VR 257 at 271, Kaye and Beach JJ said: "It follows that a statement of claim pleading tortious conspiracy must allege an agreement or combination between defendants to injure or harm the plaintiff, overt acts of the defendants in furtherance of the agreement or combination, and consequential injury or damage suffered by the plaintiff: see Bullen and Leake and Jacobs, Precedents of Pleading (1975), 12th ed, p341." In that case their Honours considered that the pleadings did not disclose a cause of action because the allegations of overt acts as pleaded were not capable of sustaining the conclusion that the predominant purpose of the respondents' agreement was to injure the appellant in the practice of his profession. In the present case the ASC does not set out the material facts as to the conduct of Casual which are said to give rise to the conspiracy by it with Guss. There is a great deal said about the conduct of Guss. There is an assertion in par 9 that Guss, with the assistance of Casual, tried to avoid being served with the bankruptcy notice but no material facts as to this characterisation of the conduct are spelt out in relation to what assistance Casual is alleged to have given. In par 11 the assertion is that Guss is a director of Casual. In par 13 it is said that Casual knew of the true aims of Guss and conspired with Guss. The allegation of conspiracy of course involves an allegation of law. It is permissible to raise a point of law under O 11 r 9 in the pleadings but this does not avoid the necessity for a proper pleading by way of identifying the material facts which are sought to be relied on to ground the point of law. In addition, in the alternative, in par 16 of the ASC there is an allegation that Casual and Guss conspired to commit the tort of conspiracy with the intent of causing loss and damage to the applicant, but again there is no mention of any overt acts to substantiate this assertion. Casual is left in the dark on the pleadings as to what it is said to have done which amounts to participation in an act or acts of conspiracy. In relation to the s 52 claim there is simply a bare assertion that Casual acted in a misleading or deceptive way, but no material facts are pleaded to ground the allegation in relation to the conduct by Casual. There are no specific material facts pleaded which indicate the way in which any representation or conduct of Casual is claimed to be misleading or deceptive or to whom such conduct is said to be misleading or deceptive or as to any reliance, causation or detriment to the applicant which flowed from the conduct of Casual. Material facts in relation to a s 52 claim might include statements, documents, conduct or implications: see Sutton v AJ Thompson Pty Ltd (In Liq) (1987) 73 ALR 233. The allegations made in the present case are simply to the effect that Casual took unspecified steps to enable Guss and Casual to avoid payment of the applicant's fees. This does not on its face support an allegation of misleading or deceptive conduct. In my view, the failure to plead the material facts as to the conduct of Casual requires the conclusion that the ASC should be struck out in relation to both the allegations of conspiracy and misleading and deceptive conduct, including the claims under the Fair Trading Act. However, there remains the claim in relation to the sum of $8,430 for barrister's fees and for interest. In relation to this claim the applicant has, in my view, set out sufficient material facts to support the allegation, as an arguable case, that such fees have been earned and remain unpaid. Casual submits that the Court should not permit the claim for the barrister's fees to proceed in this Court, given the small amount of that claim. It submits that the appropriate course is to permanently stay the proceedings in this Court in relation to that claim but to make it clear that the stay is not intended to prevent the applicant from pursuing his claim against Casual in any other court such as the Magistrates' Court or in County Court proceedings, whether by way of primary claim or by way of set off or cross-claim. I agree. I think this course is appropriate because there is no foundation for the case being brought or continued in this Court under the guise of a Trade Practices Act claim. The material does not disclose any arguable case on the trade practices claim and the claim for barrister's fees is not one which involves or requires the exercise of federal jurisdiction. Improper purpose Casual also submitted in the alternative that the Federal Court claim against it should be either struck out in its entirety or be stayed because it was being pursued for an improper purpose. Reliance was placed on an affidavit filed by the applicant on 12 November 1997 which was cast in somewhat emotional, and in many respects, highly extravagant terms. In that affidavit the applicant alleged that his main reason for bringing the case in the Federal Court was to try to force Guss to ensure that he was paid out, rather than Guss opting for bankruptcy. The applicant stated that he believed that Guss had plenty of available funds and that if Guss opted for bankruptcy the applicant would do the best he could to "drive his family mad with this case hanging over their heads all the time" until the case was concluded. Notwithstanding the strong emotional outburst in his affidavit I am satisfied that the applicant has an arguable case against Casual in relation to the barrister's fees and I would not dismiss the proceeding on the basis it was brought for an improper purpose. The claim was not disputed as being unarguable in relation to the barrister's fees. I think it is reasonably clear that the applicant is seeking to recover his fees from one or other of the two parties at whose request it is alleged the work was done. Leave to Amend This is not a case where I consider that there is material before me which would justify granting leave for the plaintiff to amend the paragraphs of the ASC which relate to claims for conspiracy and misleading or deceptive conduct. The material in the affidavit of Mr Johnstone does not, in my view, provide sufficient material to reach a conclusion that he has an arguable case in relation to either of these matters. Because the matter is not appropriate for determination by a Federal Superior Court I consider the proceeding should be permanently stayed as to the claim for barrister's fees. Accordingly, the orders I propose to make are these: Paragraphs 9 to 16 inclusive of the Amended Statement of Claim are struck out. The proceedings in relation to the claim for barrister's fees are permanently stayed against Casual. There will be no order as to costs in view of the circumstances disclosed in the affidavit filed by Mr Johnstone. The applicant is, of course, free to pursue these claims in the County Court or the Magistrates' Court by way of claim or counter-claim or set off, as he may be advised. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin Associate: Dated: 24 November 1997 Counsel for the Respondent: Mr M Stiffe Solicitor for the Respondent: Tony Hinz & Associates Date of Hearing: 13 November 1997 Date of Judgment: 24 November 1997	2,906
federal_court_of_australia:irc/1995/1995irca0037	decision	commonwealth	federal_court_of_australia	text/html	1995-02-17 00:00:00	Betty Fuller v Law Institute of Victoria [1995] IRCA 37	https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1995/1995irca0037	2024-09-13T22:52:42.194467+10:00	IN THE INDUSTRIAL RELATIONS COURT OF AUSTRALIA VI 1324 of 1994 VICTORIA DISTRICT REGISTRY B E T W E E N: BETTY FULLER Applicant A N D LAW INSTITUTE OF VICTORIA Respondent Reasons for Judgment 17 February 1995 PARKINSON JR This is an application made pursuant to S170EA of the Industrial Relations Act 1988 ("the Act") arising out of the termination of the applicant's employment on 29 July 1994. The applicant seeks the following remedies: 1. An order declaring the termination of the employer's employment of the employee to have contravened Division 3 of Part VIA of the Industrial Relations Act 1988; 2. An order requiring the respondent to reinstate the employee in employment; 3. an order that the respondent pay compensation to the employee. The hearing of this matter took place over four days and the following witnesses were called to give evidence: Betty Fuller - the applicant Elsa Brown - vocational counsellor Robert Cornell - Executive Director, Law Institute of Victoria Neil Collins - Secretary to the Costing manager Rina Harber - Director of Services, Law Institute of Victoria Marija Johnson - Manager, Costing Department John Gibney - LawCare counsellor Roy Kriegler - Human Resources Manager, Law Institute of Victoria Background and Findings of Fact The applicant was initially employed by the respondent on a temporary basis in late 1990. After the term of this employment expired the applicant was employed, subject to a three month probationary period, on a permanent basis in the respondent's Costing department. This employment commenced on 20 December 1990. The applicant is hearing impaired and, as a result, has a degree of associated speech impairment. Notwithstanding these difficulties she is able to communicate competently. The major problem she appears to encounter is that of communicating by telephone, particularly with persons whose voices are unfamiliar to her. The evidence of Ms Brown, a vocational counsellor who assisted the applicant with job placement, was that whilst the applicant could handle telephone communication it was "not a good idea to make it a large part of her work" (T. 100.20). The applicant was employed as secretary to the Costing department. She was employed by the respondent to provide administrative assistance in that department. The Costing department provides costing services for fee to legal practitioners in the State of Victoria and its work supply is almost exclusively generated in this manner. The evidence was that there was a limited amount of telephone work required in this position. In December 1990 the Costing department employed three staff members: the manager of the costing department, Ms Johnson; her assistant Mr Neil Collins, and the applicant. The staffing arrangements remained the same in that department until the applicant temporarily left that department on 22 April 1994. Ms Johnson's evidence was that during 1993 there had been a sharp decline in the amount of work being referred to the department for costing. To some extent she sought to recover lost revenue by organising and running seminars on costing issues for practitioners. Her evidence was that this was successful in the short term but did not substitute for the dramatic reduction in costing work which had occurred and which remained the case throughout 1994. I accept the respondent's evidence that there was a substantial decline in work in the Costing department, and that this resulted in there being a capacity for the department to operate with one less employee. As a result of an ongoing decline in the relationship between the applicant and Ms Johnson, the circumstances of which are considered more fully later in this decision, the applicant was temporarily transferred from the Costing department to the administration department. Ms Johnson's evidence was that it was after the applicant had left the department that it became apparent that there was no longer a need for a third person in that department. The applicant alleges that her termination of employment arose from her deteriorating relationship with Ms Johnson and that redundancy was merely a guise. She further alleges that integral to the deterioration of the relationship was the conduct of Ms Johnson which the applicant classifies as both sexual harassment and also discrimination against her on the basis of her disability. The respondent contends that this was a case of redundancy and that the reality of the work load decline and the lack of necessity for the applicant's position in the department only became obvious because she had been transferred. The respondent says that any work performance issues were such that it made it more difficult to redeploy the applicant, but that those issues were not the reason for the termination. Because of the circumstances of the temporary transfer and its proximity in time to the decision to terminate the employment, it is necessary to consider what if any influence the issue of the relationship between the applicant and her supervisor had upon the decision that her position was redundant and that her employment was consequently terminated. With this in mind, I turn now to consider the issues which arose between the applicant and Ms Johnson and the various matters which appear to have impacted upon that relationship in a negative manner. During the period of the applicant's employment in the Costing area there was a regular review of performance undertaken by the respondent as part of a joint performance appraisal. The applicant's performance was subject to these reviews and overall, despite some reservations contained in these appraisals as to the level of skill achieved, particularly in relation to the word processing system and the level of supervision and support required from Mr Collins, the applicant's work performance appears to have been recorded as satisfactory to her supervisor, Ms Johnson (Exhibits F1, F2 and F3). Nevertheless there is evidence which establishes that the applicant reacted negatively to any criticisms of her work performance. The evidence was that there was a decline in the applicant's work performance in early 1994 which resulted in discussions between Ms Harber, the Director of Services, and Ms Johnson; Ms Harber and the applicant, and Ms Johnson and the applicant. Ms Harber's evidence which I accept was that there seemed to be no acceptance by the applicant of the validity of any of the concerns expressed as to her performance. Consequently it was decided that the applicant ought be warned as to her work performance. The difficulty which arose in terms of the applicant's relationship with her supervisor arose as a result of her reaction to issues being raised in the course of the performance appraisals, and her approach to criticism in general. The evidence of the respondent is that the applicant responded negatively to any criticism of her work performance and that this response resulted in tension between the applicant and her supervisor. The applicant's evidence is that she found Ms Johnson extremely difficult to work with and that the latter intimidated and harassed her. The applicant's evidence was that she complained of Ms Johnson to Dr Kriegler on a number of occasions during the period of her employment. The extent of the evidence of the complaints was that the applicant found Ms Johnson a difficult person to work with, and on various occasions over the period of employment the applicant sought to be transferred to another department. As a result of an ongoing decline in the relationship between the applicant and Ms Johnson including a verbal confrontation occurring on 31 March 1994 between the applicant and Ms Johnson, the applicant was temporarily transferred from the Costing department to the administration department to, in the words of Mr Kriegler, "enable things to cool off". The verbal confrontation occurred as a result of a direction by the respondent that the applicant undertake an externally conducted skills assessment due to concerns which were expressed to the applicant as to her work performance. Subsequent to this confrontation a warning letter as to work performance was provided to the applicant (Exhibit F6). Whilst there was in these proceedings an issue as to work performance and the accuracy of the relevant performance appraisals the reason for the termination was not poor work performance, although it is likely that the applicant's skill level did in some respects make redeployment more difficult. I am satisfied that the circumstances associated with the relationship between the applicant and her supervisor Ms Johnson led to the transfer of the applicant and thus the identification of the surplus position in the Costing department. I am satisfied that the applicant's position was redundant and that the decision made to terminate the applicant's employment was made as a result of the operational requirements of the respondent. I turn now to consider the issue of the alleged discrimination. Allegation of Discrimination and termination as a result of disability and sex - S170DF(1) and (2) The applicant says that her disability was a factor in the termination of her employment and says further that a reason for the termination of her employment was because of matters involving conduct constituting sexual harassment. S170DF(1) provides in so far as presently relevant: "An employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: ... (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status , family responsibilities, pregnancy, political opinion, national extraction or social origin". Whilst clearly the onus of proving that such matters did not form part of the reason for the termination rests with the respondent, in this matter the respondent has identified the matters which were the reasons for the termination. The respondent's evidence was extensive as to its operational requirements. I accept the respondent's evidence in this regard and I now deal with these issues in more detail. Disability The issue of the applicant's hearing impairment is relevant to these proceedings in only one respect, and that is regarding the attempts made by the respondent to obtain alternative employment or redeployment for the applicant when her position was made redundant, and the reasonableness of those attempts. It is in this context that S170DF(1)(f) is to be considered. The applicant contends that one of the reasons for her termination was her disability and in this regard relies upon the fact that other vacancies existed in the respondent to which, if not for her disability, she could have been redeployed. I am satisfied that S170DF(1)(f) does not preclude the respondent from taking into account the applicant's disability in deciding her suitability or otherwise for an alternative position. This is because of the operation of S170DF(2). S170DF(2) provides: "Subsection (1) does not prevent a matter referred to in paragraph (1)(f) from being a reason for terminating employment if the reason is based on the inherent requirements of the particular position." I am satisfied that S170DF(1)(f) extends to and contemplates circumstances where a decision to terminate is based upon the respondent not being able to find the applicant suitable alternative employment due to his or her disability and termination occurs. But in my view S170DF(2) entitles the respondent to take into account that disability for the purpose of the inherent requirements of the particular position. I find therefore that the respondent has not, in relation to disability, contravened S170DF(1)(f) of the Act. Termination due to sex - Sexual Harassment: In view of the serious nature of the allegations against the applicant's supervisor it is appropriate to record that there is simply no evidence that there was any conduct on Ms Johnson's part which constituted conduct of a sexual nature or sexual harassment. Further, on any view of the evidence the incidents alleged as constituting such conduct were normal examples of social interaction between persons in employment, and nothing more than that. In coming to this conclusion I have taken into account the following matters which I view as significant: - Whilst the applicant alleges that the harassment continued over a period of approximately three years and related not only to the conduct of Ms Johnson but also other employees of the respondent, there was no complaint of harassment of a sexual nature or any other nature made by the applicant during the entire period of her employment to the date of termination. - The respondent had a clear policy, articulated to its employees, prohibiting sexual harassment in the workplace, and a mechanism established to investigate any complaints of such a nature which were made. The evidence was that such complaints which had been made were investigated and dealt with appropriately. The applicant was aware of this procedure. No attempt was made by the applicant at any time during the course of her employment to utilise the process. - The conduct complained of by the applicant was never raised by the applicant with the person or persons concerned either directly or indirectly. - The conduct complained of was at its worst conduct which may have constituted a lack of respect for the applicant's demanding standards as to privacy and in particular what constituted her "personal affairs". - I am further of the view that the applicant entirely misconstrued the nature of any physical proximity between herself and Ms Johnson, particularly on one occasion when the latter merely attempted to help the applicant attend to minor injuries she had sustained in a fall at the workplace. This was the only evidence of any type of physical contact between the applicant and Ms Johnson during the entire course of the employment. In my view none of the incidents raised by the applicant, nor the examples of conduct, constitute either sexual harassment or any other harassment. - During the proceedings the applicant articulated the sexual harassment in various ways but with no specific examples of conduct which would constitute sexual harassment. This included allegations such as stalking when she said: (T.53.25) " Well in fact it was the commissioner who told me it was sexual harassment....so then I wanted to call it sexual harassment of stalking." The applicant further articulated the complaint as "focusing on me" and her evidence was that on 30 March 1994 she had spoken of this aspect of the matter to Mr Cornell, the respondent's Executive Director, at a meeting she had arranged with him. Mr Cornell does not recall any such meeting on that day. In any event, his evidence was that the substance of the conversations he did have with the applicant related to personality and managerial or supervisory problems between the applicant and Ms Johnson. I accept this evidence and note that it is consistent with the evidence of Dr Kriegler and Ms Harber as to the applicant's relationship with her supervisor and the content of any complaints she may have made. - The applicant did not complain to anyone about any harassment during the entire period of her employment in any terms which could be interpreted by a reasonable person informed as to the nature of sexual harassment as a complaint of that kind. - The complaints made to Mr Kriegler were in the nature of a difficulty in getting on with Ms Johnson. This is consistent with the applicant's evidence that people had acknowledged Ms Johnson as a "difficult person to get on with." I am not satisfied on the evidence that this was so, however even if it were, I am satisfied that the personality of the applicant was likely to be equally a contributor to any difficulties in communication which existed between them and in the end resulted in a total breakdown of communication and the applicant's transfer. Having regard to the above matters and S170DF(2) of the Act, I am satisfied that the respondent did have a valid reason for the termination of the applicant's employment, and that the reason for termination did not include matters prohibited by operation of S170DF(1)(e) or (f) of the Act. Harsh, Unjust or Unreasonable - S170DE(2) Having found that the respondent did have a valid reason for the termination of the employment of the applicant being connected with its operational requirements, it is necessary to now consider whether in all the circumstances the termination of the employment was harsh, unjust or unreasonable. In a case of redundancy the termination may be harsh if sufficient investigation of alternatives to termination of employment have not been considered by the respondent. Each case will of course depend upon its own particular circumstances and there is no general rule as to what is required in terms of such investigation of alternatives. The applicant acknowledged in her evidence that there was difficulty for her utilising the telephone. The applicant contends that the respondent's Human Resources Manager and its Director of Services, both of whom were engaged in attempting to find alternative employment for her, focused on her disabilities rather than her abilities. In this respect I have carefully considered the evidence of all witnesses in relation to the steps taken, and am satisfied that the following steps were taken by the respondent in the period April, 1994 to August, 1994. These steps were taken consequent upon an attempt by the respondent to find an internal transfer for the applicant and also when it became apparent that there was no necessity for the position in the costing department. Those steps were: An assessment of the skills and capacity of the applicant. An assessment of the limitations in the applicant's skills and capacity as result of her hearing disability. An assessment of all of the positions within the respondent which had the potential to be suitable for the applicant. A consideration of possible job re-organisation which would accommodate the disability of the applicant. A consideration of possible composite positions. A consideration of part-time employment. A consideration of possible sources of employment outside of the respondent and attempts to obtain such employment. In addition there had been ongoing discussions with the applicant as to possible alternative employment options, and those discussions continued during this period. Whilst the applicant's evidence was that during this period of time, and even immediately after the termination of her employment for redundancy, the respondent was advertising and filling vacant positions, I am satisfied that these positions had been considered for the applicant but that they were unsuitable for the applicant, having regard to her skills, qualifications and the limitations upon her ability to conduct business over the telephone. The applicant was informed by Mr Kriegler on 6 June 1994 that there would be no return to the Costing department and that her position was redundant. Discussions were held with the applicant as to the steps which were being taken in an attempt to find her alternative employment. In correspondence to the respondent dated 5 July 1994 the applicant acknowledged the attempts that were being made to find her an alternative position (Exhibit F10). On 26 July 1994 the applicant was informed that no alternative position could be found for her and that her employment was to be terminated due to redundancy (Exhibit F11). The applicant was paid three weeks pay in lieu of notice and seven weeks in severance payment due to her redundancy. In the present case I am satisfied that the respondent took all appropriate steps to find alternative employment opportunities for the applicant. I am satisfied that the termination was not harsh in this respect. However this is not the end of consideration of this provision. During the course of submissions I asked counsel for the respondent what regard ought be had to the disability of the applicant in determining the question of whether the termination was harsh, unjust or unreasonable. In other words, in view of the disability of the applicant was the respondent under any greater or different obligation to that which would apply in respect of an employee who did not have a disability who was to be made redundant. The submission of the respondent's counsel was that the obligation in respect of disability extends only so far as the extent of the provisions in S170DF(1) of the Act. That is, provided the respondent did not discriminate on the basis of disability, other than taking into account the particular requirements of the job, there is no basis for requiring better or different treatment and that S170DE (2) ought not be interpreted as operating to impose any requirements beyond those in S170DF(1)(f). I do not agree that the term "harsh, unjust or unreasonable" in S170DE(2) is to be limited in the manner contended for by the respondent. There has been a great deal of consideration of the meaning of the words "harsh, unjust or unreasonable" in the circumstance of various Federal and State Courts and tribunals considering termination of employment. In my view the authorities make it clear that the individual circumstances of the applicant, and any deleterious effect having regard to those circumstances which the decision to terminate might have on that person, are relevant matters to take into account in determining whether the dismissal is for example, harsh. See in this regard Bostik (Australia) Pty Ltd v Gorgevski (1992) 36 FCR 20 at 28. In considering the application of the word "harsh" in the term "harsh, unjust or unreasonable", their Honours Heerey and Sheppard JJ said: " We agree with the learned trial judge's view that the court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision upon the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct." (Emphasis added). In this matter the impact of the termination of the employment on the applicant is obviously likely to be of more severe effect than on persons with unimpaired hearing. That is obvious from the evidence of the respondent's witnesses in terms of their attempts to find the applicant suitable alternative employment, both within and outside the Institute. The only reason that they were unable to do so was because of her hearing impairment. It was submitted on behalf of the respondent that to require an employer to have regard to the impact of the termination on the applicant because of her disability would result in employers not hiring persons with disabilities (T. 303.15). I do not accept that this is the approach which would be taken by the majority of employers and, in any event, I am of the view that it is not a relevant consideration in applying the provisions of S170DE(2) of the Act. Not to give consideration to the impact upon the particular individual having regard to her disabilities would be to place her in a different class to persons not suffering from a disability. Why should considerations of the impact upon her not be relevant, yet considerations of harshness because of the particular circumstances of a person with little English, education or training be relevant considerations? I am of the view that the disability of the applicant is a significant matter in considering whether the termination of the applicant's employment was harsh. I am however satisfied that there was sufficient consideration given by the respondent to the impact of the termination on the applicant, and that the respondent provided to the applicant a reasonable period of time to adjust to the decision that there was no alternative position into which she might be redeployed. In addition to the payments made upon termination, the effective date of which was 5 August 1994, of three weeks pay in lieu of notice and seven weeks severance payment, the applicant had been on notice as to her redundancy from 6 June 1994. I am not satisfied having regard to the extensive measures taken by the respondent to obtain alternative employment for the applicant and the time frames within which this occurred, that the termination of the employment was harsh, unjust or unreasonable. Having regard to the above matters the application must fail. I dismiss the application. I certify that this and the preceding eighteen (18) pages are a true copy of the reasons for judgment of Judicial Registrar Parkinson. Associate: Dated: 17 February 1995 Applicant in person Solicitors for the respondent: Arthur Robinson & Hedderwick Counsel for the respondent: Mr J Riekert Dates of hearing: 21, 22 December 1994 and 24, 27 January 1995 Date of judgment: 17 February 1995	4,831
federal_court_of_australia:fca/single/1997/1997fca1440	decision	commonwealth	federal_court_of_australia	text/html	1997-12-16 00:00:00	Treadwell, Elizabeth v Acco Australia Pty Ltd [1997] FCA 1440	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1440	2024-09-13T22:52:42.843110+10:00	FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - complaint of unlawful termination of employment - whether employee terminated for the prohibited reason of absence on maternity leave - employee transferred to temporary position prior to commencing maternity leave - employer undertook restructure of business during employee's absence on maternity leave - whether employee's employment terminated for reason of operational requirements or for absence on maternity leave Workplace Relations Act 1996 (Cth) ss 170CK, 170CQ, 170CR Johns v Gunns Ltd (1995) 60 IR 258 ELIZABETH TREADWELL v ACCO AUSTRALIA PTY LTD VG 538 of 1997 PARKINSON JR MELBOURNE 16 DECEMBER 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 538 of 1997 BETWEEN: ELIZABETH TREADWELL Applicant AND: ACCO AUSTRALIA PTY LTD Respondent JUDICIAL REGISTRAR: PARKINSON DATE OF ORDER: 16 DECEMBER 1997 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The respondent reinstate the applicant to the position held prior to the termination of the employment or to another position on terms and conditions no less favourable. 2. The date for the reinstatement be seven days from the date of this decision. 3. The employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of termination and the date of reinstatement. 4. The respondent pay to the applicant within twenty one days from the date of this order remuneration lost by the applicant as a result of the termination from the 1 August 1997to the date of reinstatement. From this amount shall be deducted an amount representing all payments made by the respondent to the applicant on account of her termination save for annual leave entitlements. 5. The parties have leave to apply to the court on twenty four hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to order 4 herein. 6. The parties have leave to apply prior to Monday 22 December 1997 with respect to the period stated in order 2 herein. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 538 of 1997 BETWEEN: ELIZABETH TREADWELL Applicant AND: ACCO AUSTRALIA PTY LTD Respondent JUDICIAL REGISTRAR: PARKINSON DATE: 16 DECEMBER 1997 WHERE MADE: MELBOURNE REASONS FOR JUDGMENT This is an application brought pursuant to s170CP of the Workplace Relations Act 1996 ("the Act"). The applicant alleges that her employment was terminated for a reason which included a reason prohibited by s170CK of the Act. The applicant seeks orders pursuant to s 170CR of the Act. The applicant contends that her employment was terminated for a reason based upon her sex or pregnancy, family responsibilities or absence on maternity leave. The respondent contends that the sole reason for the termination of the employment was the operational requirements of the business and that the termination was not for the reason and did not include as part of the reason the applicant's sex, pregnancy, family responsibilities or absence on maternity leave. The respondent contends that the redundancy occurred as a consequence of there being no work of a type suitable to the applicant's skills and experience available for her upon her return from maternity leave. It contends that the position in which she was employed prior to her maternity leave commencing no longer existed and that there was no other position for which she was suitable for appointment. The applicant concedes that the respondent reorganised the workplace and that as a result of the restructure a number of redundancies occurred. The applicant contends however that the respondent took no steps to provide for a position to be available upon her return from maternity leave and selected the applicant for redundancy because she was absent from work at a time when redundancies were being considered. The applicant also contended that at the same time as redundancies in other areas were being discussed, new employees were being engaged to commence work immediately in the applicant's former department. The applicant contends therefore that part of the reason for the termination of her employment was her absence from work on maternity leave or on account of her sex, pregnancy or family responsibilities. The respondent is a distributor and wholesaler of stationery and office products. The majority of its business is conducted by receipt of telephone orders from retail sales outlets. In recent years the profile of retail sales outlets, the respondent's major customers, had undergone significant change. The evidence is that the industry profile altered in that there was a greater consolidation of a number of smaller operators. In addition larger volume retailers had entered the market and the respondent's customer base altered to focus on larger account holders. There is no evidence that the volume of sales altered, although there is evidence that the amount of clerical and administrative work diminished as a consequence of the changed customer profile and the reorganisation of the manner in which the work was performed at the respondent. This reorganisation also included the installation of a new computer operating system in 1996. The applicant was employed by the respondent initially as a filing clerk. She was employed on a probationary period of three months, which period was extended for one month. She was appointed to a permanent position as a filing clerk in October 1995. During the course of her employment she worked in the customer service department, the accounts department and the general office. After working as a filing clerk for approximately twelve months, Ms Treadwell was given the duties of Returns Officer in the Customer Services department. This position required that she deal by telephone with customers, generally warehouse personnel, in relation to returns of products, whether because they were faulty or for other reasons. The duties involved locating invoices, providing credit invoices, adjusting computer records and liaison with the customer over the telephone. In June 1996 the applicant advised the respondent that she was pregnant and shortly thereafter advised in writing of her request to take maternity leave to commence in February 1997. At this time she was working in the Customer Service area as a Returns Officer. In August 1996 she applied for a position in the accounts area of the respondent. During the course of the interview she advised that part of the reason for her applying for the position was because she had had a recent bad experience in the returns area with an angry customer. She was not successful in obtaining the accounts position. The applicant continued working in the Customer Services area as a Returns Officer. In September 1996 she was offered a temporary position in the accounts area. The purpose of the temporary position was to overcome a backlog of accounts and invoices which had been building for some time. The task in the job was to enter details of invoices and cross check invoice and account information. The applicant commenced working in this area in September. It was understood that the position was to be a temporary one. Ms Treadwell's evidence was that she assumed she would return to her previous position in Customer Service at the completion of the task. She initially understood that this would be shortly after the Christmas break. In contrast however, the evidence of Mrs Helen Kambouris, the supervisor in the Customer Service Area, was that she had no expectation that the applicant would be returning to that area even though there had been no discussion as to this fact with the applicant. Mrs Kambouris' evidence was that once the applicant had left the area she had no further responsibility for her and that consequently there was no requirement on her to find the applicant a position in the Customer Service area when she returned from maternity leave. The evidence of the respondent's managing director, Mr Seers, as to this matter was unclear. The evidence of the respondent's manager, Mr Bottomer, was that at the time the applicant was transferred to the temporary position, her job in the Customer Service department would no longer be available and that this was made clear to the applicant. The evidence was that at the time the temporary position was offered, and at the time of the first interview, he was aware that the applicant was pregnant and would be taking maternity leave in February 1997. He agreed with counsel for the applicant's proposition that, having regard to the date of the maternity leave, the timing of the temporary position was good and that the temporary position would take the applicant through to the time she went on maternity leave. I accept the applicant's evidence as to the circumstances of her transfer. I do not accept that she was conscious or ought to have been conscious of the fact that being transferred into the temporary position resulted in her position in the Customer Service area disappearing. In general I preferred the applicant's evidence as to events to that of the respondent's witnesses. I found her to be a frank and forthcoming witness, who directed herself to the questions asked and made concessions as to matters, such as her experience, which were against her interest. In contrast I found Mr Bottomer and Mr Seers to be uncertain as to matters of detail and there was some conflict between their evidence as to the applicant's experience and duties and the work being performed by the new employees, and that of Mrs Kambouris. In January 1997 Ms Case, a former employee of the respondent, commenced employment as a casual employee, engaged to take over responsibility for the applicant's duties in her absence. Ms Case continued in the employment of the respondent until the week of the trial of this matter. The evidence is that she initially performed the applicant's tasks in the temporary position and then commenced to undertake a mixture of tasks, including some invoice returns, and general bookkeeping responsibilities. The evidence was that the work associated with the temporary task was completed by end February 1997. The evidence of Mr Bottomer was that approximately 20 per cent of the work which continued to be performed by Ms Case constituted work similar to returns work which had been previously performed by the applicant. The rest of the work allocated to that employee was work for which the applicant did not have the necessary skills or knowledge. The applicant was due to commence her maternity leave in February 1997. In January 1997 she was approached by Mr Bottomer and Mr Seers. The early commencement of her maternity leave was discussed. Ms Treadwell's evidence is that she was instructed to commence her maternity leave earlier than she had desired. Her evidence is that it was made clear to her that the respondent expected her to commence the leave early. This was expressed as being as a consequence of concerns the respondent had for the baby and her own health. Ms Treadwell's evidence was that she understood she had no choice but to commence her leave earlier than she desired and consequently she commenced the maternity leave early, after having made arrangements to facilitate the payment of her annual leave entitlements to cover herself financially for the additional period. The applicant's evidence as to her state of health at this time was that she was well and was being monitored by her doctor in her later stage of pregnancy on a weekly basis. There is no evidence to suggest that there is anything exceptional about this level of monitoring of the health of a woman in her third trimester of pregnancy. The doctor's certificate that she was fit to remain working was understandable as being related to the period between these weekly visits. In light of these matters it does not appear that the reason given by the respondent for requiring the early commencement of the maternity leave is supported by the evidence. In January 1997 the respondent's general manager had conducted a review of its efficiency and staffing levels. Various matters as to staffing were raised in this review and the level of staffing in some departments was under scrutiny. At this time there was an assessment made that some positions were no longer required and that redundancy should be considered. In this correspondence the applicant's temporary position was identified and two positions in the Customer Service area were also identified as having been vacant and to remain so. The evidence of Mr Seers was that these positions did not include the applicant's position of Returns Officer, which was an additional 'vacancy'. The evidence is that despite this memorandum, two positions in the Customer Service area became vacant whilst the applicant was on maternity leave and were filled by the hiring of new employees. The applicant's returns work, whilst initially being performed by distribution amongst all other customer service staff, was shortly thereafter allocated to one of the new employees to perform as Returns Officer. The evidence is that this occurred whilst the applicant was on maternity leave, but at the time she had indicated a desire to the respondent to return to work early. These appointments took place certainly a very short time before the applicant's employment was terminated in June for redundancy. The evidence as to the exact dates the new employees commenced is vague and uncertain, none of the respondent's witnesses being able to assist the court by providing the details of commencement dates from their recollection, and no payroll records being tendered in evidence. Ms Treadwell's baby was born in February 1997 and shortly after the birth Ms Treadwell attended at the workplace to introduce her child to her colleagues. At this time she observed that new employees had commenced working for the respondent in the reception area and in her previous permanent area, Customer Service. In April 1997 and again in May 1997, Ms Treadwell advised the respondent, by its manager Mr Bottomer, that she desired to return to work earlier than originally advised and asked whether this would be possible. Mr Bottomer had in April indicated that he would consider the request. In May, Mr Bottomer advised that there was no work available and that the applicant would not be able to return early from her maternity leave. During this visit the applicant noticed that new employees had commenced working in the Customer Service area and the reception area. On 2 June1997, a final decision was confirmed by Mr Seers that that the applicant, together with two other full time and some part time employees would be made redundant. The applicant was advised of this decision on 20 June 1997 at the respondent's premises. The employment terminated immediately with the applicant being paid notice and an amount on account of a redundancy payment. There seems to have been some discrepancy, later corrected, as to the amount of payment made, but I do not consider this matter of significance in these proceedings. The question which the court is required to decide is whether the applicant's sex, pregnancy, family responsibilities or absence on maternity leave was the reason or was included as any part of the reason for the termination of the applicant's employment. Section 170 CK(2)(f) and (h) of the Act provides: Except as provided by subsection (3) or (4), an employer must not terminate an employee's employment for any one or more of the following reasons, or for reasons including any one or more of the following reasons: ... (f) race, colour, sex, sexual preference, age, physical or mental disability, marital status, family responsibilities, pregnancy, religion, political opinion, national extraction or social origin. (g) ... (h) absence from work during maternity leave or other parental leave. Section 170CQ of the Act provides: In any proceedings under section 170CP relating to a termination of employment in contravention of section 170CK for a reason (a proscribed reason) set out in a paragraph of subsection (2) of that section: (a) it is not necessary for the employee to prove that the termination was for a proscribed reason; but (b) it is a defence to the proceedings if the employer proves that the termination was for a reason or reasons that do not include a proscribed reason (other than a proscribed reason to which subsection 170CK(3) or (4) applies). Section 170CK(2)(f) of the Act is in similar terms to the former s170DF(1)(f). Section 170CQ operates to require the respondent to bear the onus of proving that the reason for termination did not include a matter proscribed by the section. In determining the issue arising from the subsection it is necessary for the court to have regard to the subjective motive of the decision maker. The test is a subjective one and it is the reason of the persons making the decision to terminate the employment which is of relevance in these proceedings; in this case Mr Seers and Mr Bottomer. It is for the respondent to establish on balance that the termination of the employment was not for the reason of or partly for the reason of the applicant's sex, pregnancy, family responsibilities or absence on maternity leave. It is clear that a denial of such reason is not always sufficient for the respondent to meet that onus and the court will assess the question by having regard to the entirety of the circumstances surrounding the termination of the employment. See in this regard Johns v Gunns Ltd (1995) 60 IR 258. In Johns v Gunns there was extensive consideration of the operation of the onus provisions attaching to S170DF of the Industrial Relations Act 1988. Whilst the provision is expressed in slightly different terms, I am satisfied that the approach taken in Johns v Gunns to the interpretation of the onus provision in s170EDA, is relevant for the purposes of a consideration of the operation of s170CQ and s170CK of the Act and that is the approach I have adopted. It is appropriate to extract a large part of that decision. At pages 267 to 268 his Honour Justice Northrop said: Section 170DF(1), however, does impose a prohibition on an employer terminating an employee for specified reasons or for reasons including one of the specified reasons. The relevant reason here is that contained in s 170DE(1)(a). On the facts of the present case, there is no doubt that the absences from work of Mr Johns arising from his injuries arising in the source of his employment are temporary absences from work because of injury, see reg 30D and in particular reg 30D(2). The phraseology used in the operative parts of ss 170DC, 170DE and 170DEF is unusual. The words "an employer must not ..." normally impose a duty on an employer not to do the prohibited act with the result that a breach constitutes a criminal offence. This is not the case here; see s 170EG. The phraseology continues with the word "unless". The use of this word suggests that the words following the "unless" impose an obligation or duty on the employer in the nature of a condition precedent to be complied with by the employer before the employer terminates the employment of an employee. The obligation or duty is not a true condition precedent since non-compliance does not make the termination illegal, unlawful or non-effective. The non-compliance is described in the Act as a contravention of a provision of Div 3 of Pt VIA of the Act; see s 170EE which will be considered later in these reasons. This section is based on the assumption that the termination of the employment is effective and that remedies may be granted for the contravention found on the basis that the termination is effective. The reasons of an employer for terminating the employment of an employee are solely within the knowledge of the employer. The employer may state a reason but that reason need not be the actual reason nor need it be the only reason. Parliament has, from time to time, devised procedures to transfer to an employer the onus of proving the reason for termination of employment. Thus s 5 of the Conciliation and Arbitration Act 1904 (Cth) made it a criminal offence for an employer to dismiss an employee by reason of specified circumstances. Section 5(4) provided that in proceedings for an offence, if all the relevant facts and circumstances, other than the reason "set out in the charge as being the reason ... of the ... (dismissal) ... are proved, it lies upon the person charged to prove that ... (the dismissal) ... was not activated by that reason ... ". In Heidt v Chrysler Australia Ltd (1976) 26 FLR 257, those provisions and earlier authorities relating to them were discussed at length and in particular at 266-271. I set out a passage appearing at 268 which has equal application to cases where s 170DF(1)(a) of the Act applies: "The provisions of s 5(4) of the Act cast an onus of disproving facts, namely, that the reason for the defendant's action was not actuated by the reason alleged in the charge. It has been held that a defendant need not prove the reason why he dismissed an employee: Atkins v Kirkstall-Repco Pty Ltd (1957) 3 FLR 439. The mere proof of a reason for dismissal, other than the reason alleged in the charge, does not necessarily negate the reason alleged in the charge. A mere denial of the reason alleged in the charge may not be sufficient to satisfy the onus cast upon the defendant. All the facts and circumstances leading up to the dismissal must be considered, including any reason expressed at the time of the dismissal, as well as any denial of the reason alleged in the charge." In the same lengthy passage, at 267 reference is made to averment provisions and what was said by Dixon J in R v Hush; Ex parte Devanny (1932) 48 CLR 487. These views could have equal force in the application of s 170DE(1) and s 170DF(1) of the Act. The section now corresponding to s 5 of the Conciliation and Arbitration Act is section 334 of the Act. The wording is somewhat different but, for relevant purposes, the effect is the same, see Lawrence v Hobart Coaches Pty Ltd, (1994) 1 IRCR 92; 57 IR 218. Section 170EDA was inserted into the Act and came into operation on 30 June 1994. Section 170EDA (1) and (2) commences "If an application under section 170EA alleges ... ". The section was enacted when the Court Rules contained provisions that an application, being the formal document initiating a claim or application for a remedy under s 170EA(1), had either itself or in the accompanying affidavit, to allege the employer's stated reason for termination. Since then, from 14 October 1994, under the Court Rules, no allegation of reason for termination is required to be given. Order 75 describes an application under s 170EA(1) as a "claim" and Form 132 adopts that terminology. As a result, if a claim for a remedy comes before the Court there is no application containing an allegation of reason for termination. Section 170EDA applies with respect to terminations where the employee alleges there are no valid reasons for the termination under s 170DE(1) as well as to reasons, not necessarily the only reason, prohibited under s 170DF(1). In my opinion, the opening words of s 170EDA(1) are to be construed as meaning that if, upon all of the evidence, the termination is proved, then the employee is entitled to a remedy unless the employer establishes a valid reason or reasons under s 170DE(1). If established, s 170DE(2) has to be applied. If this construction is not accepted, the absence of appropriate forms in the Court Rules could defeat the intention of the Parliament. For similar reasons, the opening words of s 170EDA(2) are to be given the same meaning. However, a very important result follows. Under s 170EDA(2), where that subsection is to be applied, the termination is taken to have contravened s 170DF(1) unless the employer proves: "(c) the employment was not terminated for the particular reason or reasons or for reasons that included the particular reason or reasons; or..." It is because of this provision that the passage quoted from Heidt is of such importance. On the facts of this case, on the assumption that s 170EDA(2) applies, it would not be sufficient for the respondent to establish the reasons for dismissal as set out in the affidavit of the respondent and that they constituted valid reasons for termination under s 170DE(1). The respondent has to establish a negative namely that the reasons for dismissal did not include the reason that Mr Johns was temporarily absent from work because of injury. A mere denial may not be sufficient. All the facts and circumstances of the case have to be considered. In the present case, having regard to the alleged reason for termination contained in the applicant's affidavit, I am satisfied that s 170EDA(2) applies. Further, during the course of the case presented on behalf of Mr Johns, it was obvious that Mr Johns was alleging that one of the reasons the respondent terminated him was that he, Mr Johns, had temporary absences from work because of injury. This, by itself, in my opinion, is sufficient to satisfy the requirements of s 170EDA(2). These provisions should be considered with respect to a possible amendment to the Court Rules. In my opinion, the respondent has not satisfied the onus of proof cast upon it by s 170EDA(2). The onus is to be satisfied on the civil basis of balance of probabilities. Normally it would be expected that an employer would give a direct denial to a question of whether a reason for termination was for the reason of temporary absence from work because of injury; compare the express denial in Lawrence. This was not done in this case, but I do not rely on the absence of an express denial of this reason. Whilst this is not a proceeding involving any determination as to the validity or fairness of the termination of employment, being as it is strictly confined to the question of prohibited reason arising from s170CK, the evidence as to the respondent's attempt to consider alternative positions, or the manner in which the redundancy is implemented may be relevant to put the termination into context. Thus the circumstances in which the applicant was transferred from her permanent position to a temporary position, required to commence maternity leave earlier than she had planned, and then had no job available to her when she sought to return despite there having been new staff appointed during the course of her maternity leave, some of whom performed tasks which were within the competency and experience of the applicant, are matters which place the conduct of the respondent and the denial of the respondent into a context. As earlier discussed the applicant was replaced in her position by a new employee, Ms Case, who continued to perform the applicant's duties in the temporary position. After those duties had been completed she continued in the employment performing other duties, including some processing of credit claims from the warehouse, which was similar work to that previously performed by the applicant in her role as Returns Officer. Notwithstanding the termination of the applicant's employment for redundancy in June 1997 some two months prior to the expiration of the maternity leave, the employee initially engaged to replace her was retained in the respondent's employ until the week of the trial of this matter. Further, it is apparent that additional employees were engaged to perform work which the applicant had previously performed. During the period in which Ms Treadwell was absent on maternity leave the respondent employed additional staff in its customer services area. The evidence of Mr Seers was that the applicant would not have been suitable for a customer services role as she did not have the experience required. His evidence was that the employees in that area needed prior experience in customer service, experience in speaking to customers on the telephone, of using a computer system and of being able to talk about the products. His evidence was that Ms Treadwell did not have this experience. Ms Treadwell's evidence is that she had experience in all of these areas whilst working for the respondent, although she conceded that some of these duties she had performed for a limited time. Mr Seers' evidence was also that the returns duties previously being performed by the applicant were now being performed by two of the existing Customer Service employees, each dedicating approximately 40 per cent of their time approximately to the task. There is an inconsistency in this evidence with that of Mrs Kambouris whose evidence was that one of the new employees engaged during the period of Ms Treadwell's maternity leave was actually performing the work the applicant had previously undertaken as a Returns Officer and was engaged upon that task full time. Whilst the evidence suggests that the applicant was the least experienced employee in the Customer Service area, it is clear she had a familiarity with and understanding of the products of the respondent. The respondent's evidence of lack of experience in the general customer service role does not explain the basis upon which the applicant was not reallocated her tasks as Returns Officer in the Customer Service area when the work and the vacant position was available. It appears that the selection of the applicant for redundancy was based upon the fact that the position she occupied immediately prior to going on maternity leave was no longer required. However it is clear that this position to which the applicant was transferred shortly before her maternity leave commenced was always to be a temporary position. After she moved from the sales area, her work in relation to returned goods continued to be performed by other employees and the work was subsequently performed by one employee allocated the task. No explanation was given as to why the applicant's position as returns officer was not able to be made available to her at the conclusion of the maternity leave period. The transfer of the applicant to the temporary position shortly prior to her commencement of maternity leave also resulted in her continued employment being vulnerable. Mr Seers in his evidence stated that the reason why the employment was terminated without allowing the maternity leave period to conclude was so that the applicant had the rest of her maternity leave to look for a job. Whilst Mr Seers characterises this conduct as motivated by a desire to progress the interests of the applicant, and that is the manner in which he gave this evidence, the fact is that in deciding to terminate the applicant's employment at the time he did, Mr Seers on his own evidence had regard to the fact that the applicant was on maternity leave. The motive for the taking into account of the proscribed matter is not important in the operation of s170CK. As a result of this evidence, I am not satisfied that part of the reason for the termination of the employment of the applicant at the time that it was terminated did not include the applicant's family responsibilities and her absence on maternity leave, reasons which are proscribed matters in s170CK(2)(f) and (h) of the Act.However this evidence is not the only basis upon which I have concluded that the respondent has not satisfied the onus of proving that the termination did not include in part the reason that the applicant was absent on maternity leave. The following are matters of evidence which are significant in the context of the respondent's denial. First, that the applicant's work as a Returns Officer continued to be performed beyond the date of her termination and was either performed by one or a number of employees and continues to be performed by one employee at the date of trial. Second, that additional persons were hired to work in the workplace and in the areas in which the applicant had experience during the period in which the applicant was absent on maternity leave and after the termination of her employment. Finally I am not satisfied that the applicant was, as the respondent contended, unsuitable for employment in any of the positions which became vacant during her maternity leave. Rather I have concluded that it was her lack of immediate availability to meet the requirements of the respondent in filling a vacant position which was the determining factor as to suitability. The evidence satisfies me that the absence of the applicant on maternity leave was part of the reason for the applicant's selection for redundancy and the reason why the applicant was not appointed to or transferred to various of the vacant positions which became available during that time. The applicant's absence upon maternity leave resulted in her not being considered for these positions. Consequently the applicant became an employee without a position at a time when the respondent was identifying persons for redundancy. One issue arising in these proceedings was the mechanism by which the applicant became entitled to maternity leave and a consideration of the nature of the entitlement. To some extent the entitlement to maternity leave is not crucial to the decision in this case, however the basis upon which the applicant was able to return to work is of some significance. The respondent contends that the applicant's entitlement to return from maternity leave is subject to there being a position available for her and it follows from this contention that the respondent contends that pursuant to the State Award provisions, adopted by the contract, it has no obligation to ensure there is a position in circumstances where there is a reorganisation or restructuring of the business. I do not accept that this is the correct construction of the provision in the State Award. A construction such as this would render meaningless the maternity leave provisions in the awards referred to as it would result in there being no obligation to ensure that any position was kept available for the return of the absent employee. I accept the submission on behalf of the applicant that to the extent that the maternity leave provisions of the Federal legislation provide for minimum standards in maternity leave they apply to the applicant and are operative upon the respondent. However in this case having regard to my conclusions on the facts, it was unnecessary to decide this proceeding by reference to the differences between the maternity leave provisions in the contract and in the Act. This is because I have decided that there was a position available to the applicant at the time she sought to return early from maternity leave, in both April and May, 1997 and at the time she would have been entitled to return at end August 1997 and that the position, despite it having been filled by a newly engaged employee, was that of Returns Officer in the Customer Services Area. For these reasons the respondent has not established, as it is required to do pursuant to s170CQ of the Act that the termination of the applicant's employment did not include as part of the reason, matters prohibited by s170CK of the Act. The respondent has contravened s170CK(f) and (h) of the Act. I turn now to consider the question of remedy. The applicant is unemployed and has been unable to obtain alternative employment. The applicant seeks an order for reinstatement and an order for remuneration lost as a consequence of the termination of the employment. In determining the question of remedy in cases such as these, it is appropriate to consider the circumstances of the employment and its termination. In exercising the discretion provided for by s170CR, it is relevant to consider factors such as the practical effect of an order for reinstatement. Factors such as whether the respondent continues to trade and whether the applicant seeks an order for reinstatement are matters which have been considered as relevant in exercising the discretion previously provided for under s 5 of the former Australian Conciliation and Arbitration Act 1904. See in this regard Bowling v GMH (1980-81) 33 ALR 297 at page 303. As discussed in Johns v Gunns (supra) factors such as the respondent having employed another person in the position of the applicant are not decisive. I have decided that an appropriate approach to the operation of s170CR is as expressed in Bowling at page 305 where the court stated: " The appellant desires to be reinstated in his old or in a similar position. Prima facie therefore the direction should be given". This approach is consistent with Association of Professional Engineers, Scientists and Managers Australia v Deniliquin Council (No. 2) (1995) 63 IR 471-2 and Kozelj v Kellog (Aust) Pty Ltd (Wilcox CJ, 26 July 1996), decisions of the Industrial Relations Court referred to by Counsel for the applicant in written submissions. In this case, pursuant to 170CR(1)(b) of the Act, I propose to order reinstatement of the applicant to the position held prior to the termination of the employment or to another position on no less favourable terms and conditions. The date for reinstatement will be seven days from the date of this decision. S170CR is a broad provision which provides for orders beyond those which were provided for by the operation of s170EE of the former Act. Whilst there is no express reference in s170CR to a power to order payment of remuneration lost as a result of a contravention of s170CK, I am satisfied that such an order is capable of being made pursuant to subsection 170CR(1)(d) of the Act. An order for remuneration lost in the period between the date at which the applicant was to resume her employment after the expiration of the maternity leave period, which I am satisfied was 1 August 1997, and the date of reinstatement will be made. From the amount of remuneration to be paid, an amount is to be deducted on account of all payments made to the applicant by the respondent upon termination of employment, save for annual leave entitlements. An order providing for continuity of service will also be made. Neither party has had opportunity since this decision to be heard in relation to the effective date for reinstatement. Liberty to apply prior to 22 December 1997 is reserved to the parties for this purpose. The orders of the Court will be: 1. That the respondent reinstate the applicant to the position held prior to the termination of the employment or to another position on terms and conditions no less favourable. 2. That the date for the reinstatement be seven days from the date of this decision. 3. That the employment of the applicant by the respondent be treated for all purposes as having been continuous between the date of termination and the date of reinstatement. 4. That the respondent pay to the applicant within twenty one days from the date of this order remuneration lost by the applicant as a result of the termination from 1 August, 1997 to the date of reinstatement. From this amount shall be deducted an amount representing all payments made by the respondent to the applicant on account of her termination save for annual leave entitlements. 5. The parties have leave to apply to the court on twenty four hours notice in the event that agreement cannot be reached in relation to the calculation of the amount of lost remuneration ordered pursuant to order 4 herein. 6. The parties have leave to apply prior to Monday 22 December 1997 with respect to the period stated in order 2 herein. I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of Judicial Registrar Parkinson. Associate: Dated: 16 December 1997 Counsel for the Applicant: Ms M Richards Solicitor for the Applicant: Slater & Gordon Counsel for the Respondent: Mr G McNamara Solicitor for the Respondent: Baker & McKenzie Date of Hearing: 14 November 1997 Date of Judgment: 16 December 1997	8,090
federal_court_of_australia:fca/single/2010/2010fca1077	decision	commonwealth	federal_court_of_australia	text/html	2010-09-15 00:00:00	Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2010/2010fca1077	2024-09-13T22:52:43.084832+10:00	FEDERAL COURT OF AUSTRALIA Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077 Citation: Construction, Forestry, Mining and Energy Union v White [2010] FCA 1077 Appeal from: Application for leave to appeal: White v Construction, Forestry, Mining and Energy Union [2010] FCA 835 Parties: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION, RALPH EDWARDS, ROBERT GRAAUWMANS, MAURIE HILL, STEPHEN LONG, BRENDAN MURPHY, MICHAEL POWELL, SHAUN REARDON, GARETH STEPHENSON and ALEX TADIC v MICHELLE WHITE File number: VID 690 of 2010 Judge: GRAY J Date of judgment: 15 September 2010 Catchwords: APPEAL – leave – interlocutory judgment – dismissal of application to strike out paragraphs of statement of claim – application for imposition of statutory penalties – invocation of principle against double jeopardy – whether sufficient doubt about the correctness of the interlocutory judgment to warrant reconsideration – primary judge merely deferred questions of double jeopardy until trial – whether substantial injustice if the interlocutory judgment were wrong and leave to appeal were to be refused – right of appeal would exist if wrong finding of contravention in respect of two provisions based on same conduct Legislation: Building and Construction Industry Improvement Act 2005 (Cth) ss 38, 43(1)(a), 43(1)(c) Federal Court of Australia Act 1976 (Cth) s 24(1A) Cases cited: Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 followed White v Construction, Forestry , Mining and Energy Union [2010] FCA 835 referred to Date of hearing: 15 September 2010 Place: Melbourne Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 14 Counsel for the applicants: Mr H Borenstein SC and Mr C W Dowling Solicitor for the applicants: Slater & Gordon Counsel for the respondent: Mr R Maidment SC Solicitor for the respondent: Minter Ellison IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 690 of 2010 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant RALPH EDWARDS Second Applicant ROBERT GRAAUWMANS Third Applicant MAURIE HILL Fourth Applicant STEPHEN LONG Fifth Applicant BRENDAN MURPHY Sixth Applicant MICHAEL POWELL Seventh Applicant SHAUN REARDON Eighth Applicant GARETH STEPHENSON Ninth Applicant ALEX TADIC Tenth Applicant AND: MICHELLE WHITE Respondent JUDGE: GRAY J DATE OF ORDER: 15 SEPTEMBER 2010 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The motions the subject of the notice of motion filed on 16 August 2010 be dismissed. 2. The first applicant on the notice of motion pay the respondent's costs of the notice of motion. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY FAIR WORK DIVISION VID 690 of 2010 BETWEEN: CONSTRUCTION, FORESTRY, MINING AND ENERGY UNION First Applicant RALPH EDWARDS Second Applicant ROBERT GRAAUWMANS Third Applicant MAURIE HILL Fourth Applicant STEPHEN LONG Fifth Applicant BRENDAN MURPHY Sixth Applicant MICHAEL POWELL Seventh Applicant SHAUN REARDON Eighth Applicant GARETH STEPHENSON Ninth Applicant ALEX TADIC Tenth Applicant AND: MICHELLE WHITE Respondent JUDGE: GRAY J DATE: 15 SEPTEMBER 2010 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 There is pending in the Court a proceeding, numbered VID 698 of 2009, in which Michelle White ("Ms White") as applicant seeks penalties against the Construction, Forestry, Mining and Engineering Union ("the CFMEU") and nine individuals as respondents (in respect of all ten respondents, "the CFMEU parties"), pursuant to the Building and Construction Industry Improvement Act 2005 (Cth) ("BCII Act"). By an amended notice of motion handed up to the judge in whose docket the case has been managed on 9 August 2010, the CFMEU parties sought the striking out of a number of paragraphs of Ms White's statement of claim and, in the alternative, orders dismissing various claims for relief in the application. 2 The amended notice of motion was based on the invocation of the principle of double jeopardy. The fundamental contention was that to make allegations against the CFMEU parties simultaneously of contraventions of s 38 of the BCII Act as well as contraventions of s 43(1)(a) and s 43(1)(c) was to pursue the CFMEU parties for the same acts by means of two or more allegations of contraventions. 3 On 9 August 2010, the primary judge dismissed the notice of motion. Her Honour's reasons for judgment are published as White v Construction, Forestry, Mining and Energy Union [2010] FCA 835. By notice of motion filed on 16 August 2010, the CFMEU parties seek leave to appeal from her Honour's dismissal of the amended notice of motion. There is no doubt that the orders that her Honour made on 9 August 2010 constituted an interlocutory judgment, and that therefore leave to appeal would be required, pursuant to s 24(1A) of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court of Australia Act"). 4 Paragraph 1 of the notice of motion of 16 August 2010 seeks in part leave to appeal from certain specified paragraphs of her Honour's reasons for judgment. To that extent, the motion could certainly not be granted. A right of appeal, whether by leave or otherwise, is in respect of a judgment, not in respect of the reasons for judgment or passages from the reasons for judgment. It is necessary only to consider whether leave to appeal ought to be granted in respect of her Honour's orders numbered 2 and 3, made on 9 August 2010, they being the orders dismissing the amended notice of motion and ordering the CFMEU to pay Ms White's costs of that motion. 5 Although drawing attention to the fact that s 24(1A) of the Federal Court of Australia Act confers an unfettered discretion, counsel for the CFMEU parties have invited consideration of her Honour's reasons for judgment in terms of the principles laid down in Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The first of those principles is that there should be sufficient doubt about the correctness of the interlocutory judgment to warrant its reconsideration. The second is that there would be substantial injustice if the judgment were wrong and leave to appeal were to be refused. 6 In my view, the application for leave to appeal must fail on both of those principles. In the first place, as I read her Honour's reasons for judgment, her Honour was simply saying that it was not appropriate to determine at an interlocutory stage whether the principle of double jeopardy, or some similar principle, was applicable to the manner in which the allegations had been pleaded. At [4] of her Honour's reasons for judgment, she said: Because the elements of ss 38 and 43(1) are different, there is no double jeopardy problem at this stage of the case [Emphasis added] In the last sentence of [5], her Honour said: If the respondents are found to have committed multiple contraventions based on the same course of conduct, that circumstance must be considered at the sentencing stage to ensure that the respondents are not punished twice for the same actions [Emphasis added] 7 At [8] of her Honour's reasons for judgment, she again emphasised that any element of double punishment could be taken into account at the penalty stage. Her Honour also pointed to the real possibility that at the trial only one contravention would be established, and referred to the desirability of construing the provision when the factual complexion of the case is known. In my view, it is clear that her Honour was not making any final determination on the application of the principle of double jeopardy, or any similar principle. Her Honour was simply saying that it was appropriate to defer such decision until all of the evidence in the case became known in the course of the trial. 8 It is therefore quite impossible to contend, as counsel for the CFMEU parties attempted to do, that they would be estopped by her Honour's judgment from rearguing the same points at the trial. Her Honour's judgment is an interlocutory judgment. It could not give rise to an estoppel. Her Honour is not precluded from coming to the conclusion at the trial that there has been no infringement of any principle such as double jeopardy, nor from concluding that there has been such an infringement, but there ought to be only a finding of a single contravention made. Nor would any other judge be so constrained by reason of her Honour's interlocutory judgment. 9 It seems to me clear that the approach that her Honour took was the appropriate one. The determination of questions such as those raised by the CFMEU parties' attempted strike-out motion at an interlocutory stage was highly inappropriate in the management of the case. Arguments of the kind raised by the CFMEU parties ought properly to be determined at the trial, and not on an application to strike out pleadings. 10 In relation to the question whether the CFMEU parties would suffer substantial injustice if the interlocutory judgment were to be allowed to stand, the answer is again very clear. The practicality of the matter is that, at the trial, the evidence that will be led will be substantially the same, whether or not all of the allegations in the statement of claim are pursued. If at the end of the trial, in the judgment that follows, the CFMEU parties are wrongly found to have contravened more than one provision by reference to the same circumstances, they will have a right of appeal in respect of any such finding. Such an appeal would be targeted by reference to the actual findings made, and not theoretical by reference to the form taken by the pleadings. 11 To utilise the resources of the Full Court to determine this matter now would clearly be wasteful. There is a significant likelihood that the Full Court would take the same view as I understand the primary judge to have taken, namely that the matters the CFMEU parties wish to argue are matters properly to be argued at the trial, and subject to a right of appeal in the event that the Court should come to a conclusion unfavourable to them. 12 There is nothing else about the application for leave to appeal that suggests to me that leave to appeal ought to be granted. For these reasons, the application for leave to appeal should be dismissed. 13 Counsel for Ms White has sought an order for costs of the motion for leave to appeal. In the orders that the primary judge made on the amended notice of motion before her, her Honour made an order for costs only against the CFMEU. The CFMEU was ordered to pay the costs of Ms White of that notice of motion. Counsel for Ms White again seeks an order directed only to the CFMEU in respect of the application for leave to appeal. That order is not resisted by counsel for the CFMEU parties. 14 The orders I make are as follows: 1. The motions the subject of the notice of motion filed on 16 August 2010 be dismissed. 2. The first applicant on the notice of motion pay the respondent's costs of the notice of motion. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the reasons for judgment herein of the Honourable Justice Gray. Associate: Dated: 1 October 2010	2,699
federal_court_of_australia:fca/single/1995/1995fca0225	decision	commonwealth	federal_court_of_australia	text/html	1995-04-10 00:00:00	Sergeant, D.L. v Nolan, J.W.M. [1995] FCA 225	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1995/1995fca0225	2024-09-13T22:52:43.894146+10:00	NOT FOR DISTRIBUTION FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NX 191 of 1993 GENERAL DIVISION ) RE: JEREMY WILLIAM MARDEN NOLAN Debtor BETWEEN: DAVID LLEWELLYN SEARGEANT Applicant AND: JEREMY WILLIAM MARDEN NOLAN Respondent CORAM: SACKVILLE J. PLACE: SYDNEY DATE: 10 APRIL, 1995 REASONS FOR JUDGMENT In this matter I reserved my decision on an application by the applicant (the respondent to the appeal) ("the creditor"), that the debtor (the appellant on the appeal) provide security for the payment of costs that may be awarded against him on the appeal. The application has not been formalised by the filing of a notice of motion. Nor is it supported by an affidavit. However, no objection has been taken by the debtor to my dealing with the application, notwithstanding the procedural irregularities. Mr Armstrong, on behalf of the creditor, submits that the debtor should provide security in the sum of $5,000. This amount has been reduced from the figure of $30,000 that was mentioned when the application was foreshadowed in court, on 4 April 1995. Mr Armstrong contends that the debtor has been shown to be impecunious and that the creditor is at risk of being out of pocket, should the appeal fail. He also points out that most of the grounds in the notice of appeal concern questions of fact and that the errors of law said to have been made in the exercise of the discretion conferred by s.222(2) of the Bankruptcy Act 1966 have not been identified in the notice of appeal with any particularity. This submission is presumably intended to suggest that the debtor does not enjoy good prospects of success on the appeal. The relevant provisions governing the making of an order for security for costs are contained in s.56 of the Federal Court of Australia Act 1976 and Order 52, r 20 of the Federal Court Rules. Section 56 reads as follows: (1) The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that may be awarded against him. (2) The security shall be of such amount and given at such time and in such manner and form, as the Court or Judge directs. ... (4) If security, or further security, is not given in accordance with an order under this section, the Court or a Judge may order that the proceeding or appeal be dismissed. (5) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security." Order 52, r.20 is in the following terms: 20 Unless the Court or a Judge otherwise directs no security for costs of an appeal to the Court shall be required. Mr Maxwell, on behalf of the debtor, submits that an order for security for the payment of costs should not be made, since the debtor was effectively in the position of a defendant in the proceedings. Accordingly, he was forced to protect himself against the creditor's claims. However, this is not a material consideration in determining whether such an order should be made against an appellant, pursuant to the provisions to which I have already referred: Riv-Oland Marble Company (Vic) Pty Ltd v Settef S.p.a., unreported, 2 May 1988, (FCA/Jenkinson J.). Mr Armstrong relies upon Ciappina v Ciappina (1983) 70 FLR 287 (FCA/Neaves J.), and the authorities cited at 290, for the proposition that: "the impecuniosity of an appellant resulting in an inability to pay the costs of an appeal should that appeal not be successful amounts to a special circumstance justifying an order for security." Mr Maxwell does not challenge this proposition, but says there is insufficient evidence that the debtor is impecunious in the relevant sense. However, Mr Maxwell does not dispute that I can take into account evidence adduced before me at the hearing. That evidence reveals clearly that the debtor has substantial undisputed debts that have remained unpaid for a very considerable period of time. On his own evidence he has few, if any, assets. The statement of affairs of November 1993, discloses assets of $15,000 against debts of some $529,000. The assets include personal effects and shares in family companies. The value of the shares (if Mr Nolan's evidence is to be accepted) is likely to have declined since November 1993, because of the decline in the activities of the companies. Although neither party addressed this issue, it is necessary to take into account the consequences for the creditor if the debtor's appeal is ultimately dismissed. In those circumstances, assuming that the sequestration order has been stayed in the meantime, the order would take effect and the debtor would become a bankrupt. Section 51 of the Bankruptcy Act 1966 provides that: "[s]ubject to section 109, the prosecution of a creditor's petition to and including the making of a sequestration order on the petition shall be at the expense of the creditor." Section 109(1)(a) provides that, before applying the proceeds of the bankrupt's assets to other payments, the trustee must apply the proceeds, in the order prescribed by the rules, in payment of the taxed costs of the petitioning creditor and of certain other charges and expenses. The Bankruptcy Rules, r.40 prescribes the order of application of proceeds for the purposes of s.109(1)(a) of the Act. Under r.40 priority is to be given to the expenses incurred by the trustee in protecting the assets of the bankrupt and the expenses incurred in carrying on the bankrupt's business. The rule provides for two other classes of payments to be made and then specifies that the fourth priority item is the payment of the taxed costs of the petitioning creditor, or of the applicant for a sequestration order under Part X of the Act. The creditor in the present case is an applicant under Part X of the Act. The end result of these provisions is that, in my opinion, the creditor is at risk that he will not receive his costs, should the appeal be unsuccessful. (I reach this conclusion on the assumption that the phrase, "the taxed costs of the applicant for a sequestration order under Part X", as used in r.40, includes the costs incurred by a creditor on a debtor's unsuccessful appeal. If it does not, the creditor is at even greater risk.) I appreciate that my conclusions in the judgment delivered on 14 March 1995 are based, in part, on the view that the trustee should have the opportunity of exploring whether the house transaction should be set aside and whether the debtor should be required to make contributions for the benefit of his creditors. If the trustee takes advantage of this opportunity to yield tangible results, the creditor's costs are likely to be paid out of the estate of the bankrupt. However, the prognosis is far from certain and I think that the creditor remains at risk because of the debtor's impecuniosity. In these circumstances, in my opinion, the creditor should be given the protection of an order for security in relation to his costs of the appeal. The creditor adduced no evidence of the costs likely to be incurred by him in contesting the appeal. As in Ciappina v Ciappina, I can only fix a sum that I consider just in the circumstances of the case. I consider that, in the absence of evidence, I should err on the side of providing for a modest amount. On that basis, I think that security should be given in the sum of $3,000. Accordingly, I direct that the debtor give security to the satisfaction of the Registrar, within 28 days from 28 April 1995, in the sum of $3,000, failing which the appeal herein is dismissed. I have chosen the date of 28 April 1995 because that is the date upon which the matter is to return to the Court to deal with the other issues that have been canvassed. The costs of this application are to be the creditor's costs in the appeal. I reserve liberty to apply to either party on 7 days notice. I certify that this and the preceding 5 pages are a true copy of the Reasons for Judgment of the Honourable Justice Sackville. Associate: Dated: 10 April, 1995 Heard: 6 April, 1995 Place: Sydney Decision: 10 April, 1995 Appearances: Mr A. Armstrong, Solicitor of Holmes & Bevan, appeared for the applicant. Mr D. Maxwell, Solicitor of Garland Hawthorn Brahe, appeared for the respondent.	1,876
federal_court_of_australia:fca/single/2022/2022fca1189	decision	commonwealth	federal_court_of_australia	text/html	2022-10-06 00:00:00	Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 3) [2022] FCA 1189	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2022/2022fca1189	2024-09-13T22:52:45.551155+10:00	Federal Court of Australia Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 3) [2022] FCA 1189 File number(s): NSD 1040 of 2019 Judgment of: ROFE J Date of judgment: 6 October 2022 Catchwords: PATENTS – where invention claimed is a core sample orientation device relating to a system and method for orienting core samples extracted from the ground – construction of patent – meaning of "predetermined time intervals" – whether respondents infringed patent in suit – held: respondents' product infringed patent – accessorial liability for infringement: s 117 of Patents Act 1990 (Cth), authorisation and joint tortfeasorship – all respondents liable for infringing conduct PATENTS – invalidity – external fair basis and priority date – fourth respondent challenges priority date of patent claims on basis that they are not fairly based on the matter disclosed in the provisional – claims of patent found to be fairly based – cross-claim dismissed DAMAGES – applicants seeks orders for additional damages against each respondent per s 122A of Patents Act 1990 (Cth) – conduct of respondents in circumstances where lengthy litigation history exists between the parties and previous versions of the respondents' product found to infringe patent – applicants entitled to an award of additional damages Legislation: Copyright Act 1968 (Cth) Federal Court of Australia Act 1976 (Cth) Patents Act 1990 (Cth) Patents Regulations 1991 (Cth) Cases cited: Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 304 ALR 1 Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 2) [2018] FCA 1109 Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4) [2015] FCA 1372 Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (2019) 138 IPR 33 Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 3) [2022] FCA 596 Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd [2022] FCA 445 Bristol-Myers Squibb Co v FH Faulding & Co Ltd (2000) 97 FCR 524 Calidad Pty Ltd v Seiko Epson Corp (No 2) (2019) 147 IPR 386 Collins v Northern Territory (2007) 161 FCR 549 Coretell Pty Ltd v Australia Mud Company Pty Ltd (2017) 250 FCR 155 Facton Ltd v Rifai Fashions Pty Ltd (2012) 95 IPR 95 Fuchs Lubricants (Australasia) Pty Ltd v Quaker Chemical (Australasia) Pty Ltd [2021] FCAFC 65 Generic Health v Otsuka Pharmaceutical Co Ltd (2013) 100 IPR 240 Globaltech Corp Pty Ltd v Australian Mud Company Pty Ltd (2019) 145 IPR 39 Hood v Down Under Enterprises International Pty Ltd [2022] FCAFC 69 Hytera Communications Corp Ltd v Motorola Solutions, Inc [2019] FCAFC 210 Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Ltd (2010) 85 IPR 525 Jupiters Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 Mead Corporation v Riverwood Multiple Packaging Division of Riverwood International Corporation [1997] FSR 484 MJA Scientifics International Pty Ltd v SC Johnson & Sons Pty Ltd (1998) 43 IPR 275 Northern Territory v Collins (2008) 235 CLR 619 Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58 Oxworks Trading Pty Ltd v Gram Engineering Pty Ltd (2019) 154 IPR 215 Playgro Pty Ltd v Playgro Art & Craft Manufactory Limited (2016) 117 IPR 489 Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 Rescare Ltd v Anaesthetic Supplies Pty Ltd (1992) 25 IPR 119 Roadshow Films Pty Ltd v iiNet Ltd (2012) 95 IPR 29 Seiko Epson Corporation v Calidad Pty Ltd (2017) 133 IPR 1 Société des Usines Chimiques Rhône-Poulenc v Commissioner of Patents (1958) 100 CLR 5 Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd (2014) 110 IPR 82 The Koursk [1924] P 140 Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 University of New South Wales v Moorhouse (1975) 133 CLR 1 Division: General Division Registry: New South Wales National Practice Area: Intellectual Property Sub-area: Patents and associated Statutes Number of paragraphs: 440 Date of hearing: 8–10 March 2022, 14 March 2022 Counsel for the Applicants: Mr C Dimitriadis SC with Ms P Arcus Solicitor for the Applicants: Gilbert + Tobin Counsel for the Respondents: Mr A Ryan SC with Mr A Fox SC Solicitor for the First and Second Respondents: Griffith Hack Solicitor for the Third and Fourth Respondents: Bird & Bird ORDERS NSD 1040 of 2019 BETWEEN: AUSTRALIAN MUD COMPANY PTY LTD First Applicant REFLEX INSTRUMENTS ASIA PACIFIC PTY LTD Second Applicant AND: GLOBALTECH CORPORATION PTY LTD First Respondent GLOBALTECH PTY LTD Second Respondent BOART LONGYEAR LIMITED (and another named in the Schedule) Third Respondent AND BETWEEN: BOART LONGYEAR AUSTRALIA PTY LTD Cross-Claimant AND: AUSTRALIAN MUD COMPANY PTY LTD Cross-Respondent order made by: ROFE J DATE OF ORDER: 6 October 2022 THE COURT ORDERS THAT: 1. The parties confer and, within 14 days of these orders, submit to the Associate to Justice Rofe an agreed minute of orders giving effect to these reasons. 2. Failing agreement, each party provide their proposed minute of orders within the same period as specified in order 1. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ROFE J: Introduction 1 The First Applicant, Australian Mud Company Pty Ltd (AMC) is the registered owner of Australian Standard Patent No 2010200162 for an invention entitled "Core Sample Orientation" (the Patent). 2 The Second Applicant, Reflex Instruments Asia Pacific Pty Ltd (Reflex) is the exclusive licensee of the Patent. The Applicants are subsidiaries of the publicly listed company Imdex Limited (Imdex). I will refer to the Applicants as AMC in these reasons. 3 The claims in the Patent assert a priority date from Provisional Patent Application No 2004905021 (the Provisional) filed on 3 September 2004 (the Priority Date), although there is an issue as to whether the claims of the Patent are fairly based on matter disclosed in the Provisional. 4 AMC claims that the Respondents have infringed claims 1–4, 7–10, 16, 17, 21–24, 27, 28, 33–40, 46–48, 54 and 65 of the Patent (the Contested Claims), of which claims 1 and 33 are independent claims. The Contested Claims are method claims (claims 1–4, 7–10, 16–17, 21–24, 27, 28 and 65) and what are described in the Patent as system claims (claims 33–40, 46–48, 54 and 65). 5 There are four Respondents. The First and Second Respondents are Globaltech Corporation Pty Ltd (Globaltech Corporation) and Globaltech Pty Ltd (GTCPL) (collectively, Globaltech). The Third and Fourth Respondents are Boart Longyear Limited (BLY) (now called Boart Longyear Pty Ltd) and Boart Longyear Australia Pty Ltd (BLYA) (collectively, Boart Longyear). 6 AMC contends that each of the four Respondents has infringed the Contested Claims of the Patent in respect of the exploitation of tools for orienting core samples, referred to in these reasons as the "V6 Tool". The V6 Tool was also referred to in the evidence as the TruCore™ UPIX Tool or UPIX Orifinder Tool. 7 The infringement dispute is limited to one feature of independent claims 1 and 33, being the "predetermined time intervals" integer. 8 Before the trial Besanko J made orders on 12 December 2019 that the issues of liability be heard and determined before any issues of the quantum of pecuniary relief. AMC makes a claim for additional damages pursuant to s 122A of the Patents Act 1990 (Cth) (the Act). The entitlement to that relief, but not the quantum thereof, should an entitlement be established, was part of the hearing. 9 BLYA has filed a cross-claim for revocation of the Contested Claims, which turns upon a challenge to the Priority Date of the claims based on the Provisional. BLYA asserts that the claims lack fair basis on the Provisional. 10 The version of the Act and Patents Regulations 1991 (Cth) which is relevant is that in force prior to the "Raising the Bar" amendments passed in 2012. 11 In general terms, the Patent relates to a system and method for orienting core samples extracted from the ground, such as may be used in connection with geological surveys and other exploratory drilling operations. 12 For the reasons set out below I find that the V6 Tool takes each of the integers of the Contested Claims of the Patent. Further, I consider that AMC's entitlement to an award of additional damages pursuant to s 122(1A) of the Act is enlivened. I have also found that the Patent is valid. Prior Proceedings 13 The Patent was the subject of previous proceedings between AMC and Globaltech before Besanko J. In those proceedings, Globaltech was found to infringe the Patent by offering for sale and selling in Australia other core orientation devices known by the brand name "Orifinder": versions 3A, 3B and 5 (Earlier Devices) (Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (2019) 138 IPR 33 (Globaltech FI)). Besanko J held the Patent to be valid and infringed. He rejected all invalidity challenges, including on the ground of external fair basis. A certificate of validity was issued by Besanko J in Globaltech FI in respect of each of claims 1–4, 7–10, 16–17, 21–24, 27–28, 33–40, 46–48, 54 and 65 of the Patent. 14 Globaltech's appeal was unsuccessful. The Full Court held the Patent to be valid and infringed (Globaltech Corp Pty Ltd v Australian Mud Company Pty Ltd (2019) 145 IPR 39 (per Kenny, Robertson and Moshinsky JJ) (Globaltech FC)). An application for special leave to appeal to the High Court was refused. 15 Globaltech was recently unsuccessful in seeking a stay of the quantum aspect of the Globaltech FI proceeding: Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd [2022] FCA 445 (Globaltech QS). Following that decision Globaltech sought an order that AMC make their election as between damages and an account of profits on or before 27 May 2022. This application was unsuccessful: Australian Mud Company Pty Ltd v Globaltech Corporation Pty Ltd (No 3) [2022] FCA 596. 16 Separate proceedings for infringement of the Patent were issued in respect of another core orientation device, the V4 Tool. These were resolved by consent, with orders made by Bennett J on 19 October 2015 including a restraint on both Globaltech Corporation and GTCPL from dealing with the V4 Tool. 17 The Patent was also the subject of proceedings between AMC and Coretell Pty Ltd: Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 2) [2018] FCA 1109, in which Besanko J found the Patent to be valid and infringed. A certificate of validity of each of claims 1 to 69 of the Patent was issued by Besanko J. 18 There were also related infringement proceedings involving two innovation patents which claimed priority from the Provisional, before McKerracher J at first instance (Australian Mud Company Pty Ltd v Coretell Pty Ltd (No 4) [2015] FCA 1372 (Coretell 2015)) and then on appeal to the Full Court (Coretell Pty Ltd v Australia Mud Company Pty Ltd (2017) 250 FCR 155 (per Jagot, Nicholas and Burley JJ) (Coretell FC)). An application for special leave to the High Court was refused. Besanko J noted in Globaltech FI at [11] that the specifications and claims in the innovation patents were substantially the same as the specification and claims in the Patent. 19 The Respondents contend that the V6 Tool operates in a different way to the earlier core orientation devices (the V3A, V3B, V4 and V5 Tools) and therefore avoids infringement. The Patent 20 The invention described and claimed in the Patent provides a method and system for identifying the in situ orientation of the core sample in the surrounding rock prior to extraction. This is important, because drilling typically takes place at an angle to the vertical, and it is necessary to understand the orientation of the sample so that once on the surface, information concerning the location and direction of particular rock formations can be derived from the sample. 21 The following description of the Patent is substantially based on the description of Besanko J in Globaltech FI, and the reasons of the Full Court in Globaltech FC. None of the parties took issue with those descriptions in this proceeding. 22 The Patent is entitled "Core Sample Orientation". The abstract in the Patent describes a core orientation device by reference to Figure 1 and the way in which the device operates to provide a measure of the physical orientation of the device at a particular moment in time. 23 The field of the invention is said to relate to core sample orientation. More specifically, the invention relates to an orientation device for providing an indication of the orientation of a core sample relative to a body of material from which the core has been extracted. It also relates to a method of core sample orientation identification. 24 The field of the invention was discussed by Besanko J in Globaltech FI at [115]–[124], with his Honour concluding that the field of the invention is drilling for minerals in hard rock environments, as distinct from drilling for oil and gas. 25 The specification then sets out the "Background Art", which explains what core sample orientation is and identifies conventional core orientation tools that were in use before the Priority Date. As at the Priority Date, various manual systems and methods for orientating core samples were known and used in mineral exploration. Importantly, these were all "mechanical" type tools, which worked by physically marking the core prior to its extraction from the ground. There were problems and difficulties associated with these prior art methods and tools which the invention claimed in the Patent addresses. These matters were discussed by Besanko J as part of his discussion of the common general knowledge in Globaltech FI at [125]–[159]. 26 When a core sample has been acquired, it is fractured from the surrounding rock (referred to as "core break"), and then the inner tube assembly, and core sample therein, are retrieved back up to the ground surface for analysis. It is said to be desirable for analysis purposes to have an indication of the orientation of the core sample relative to the ground from which it was extracted. 27 The specification states that a common way of obtaining an indication of the orientation of a core sample is through the use of an orientation spear comprising a marker, such as a crayon, projecting from one end of a thin steel shank, the other end of which is attached to a wire line. The description of how the orientation spear is used to mark the core sample is as follows: The orientation spear is lowered down the drill hole, prior to the inner tube assembly being introduced. The marker on the orientation spear strikes the facing surface of material from which the core is to be generated, leaving a mark thereon. Because of gravity, the mark is on the lower side of the drill hole. The inner tube assembly is then introduced into the outer tube assembly in the drill hole. As drilling proceeds, a core sample is generated within the inner tube assembly. The core sample so generated carries the mark which was previously applied. Upon completion of the core drilling run and retrieval of the core sample, the mark provides an indication of the orientation of the core sample at the time it was in the ground. 28 The specification states that there are also mechanical core orientation devices for marking a core sample prior to its extraction from the drill hole. Unlike the orientation spear, which is used before the inner tube assembly is introduced into the drill, the mechanical devices are typically adapted to be incorporated in the inner tube assembly for marking the core. An example of such a mechanical orientation device is said to be that disclosed in WO 03/038212 (which the Full Court in Globaltech FC noted should be WO 03/038232). 29 The specification notes that it is against this background and the problems and difficulties associated therewith that the invention was developed. 30 Before discussing the "Disclosure of the Invention" section, the Full Court in Globaltech FC considered it convenient to set out the two relevant independent claims in the Patent and the two claims that immediately follow them, namely, claims 1 and 2 (method claims) and claims 33 and 34 (system claims). Claim 1 comprises an introductory phrase followed by five descriptive phrases that are indented from the margin, which Besanko J described as "steps", an approach adopted by the Full Court. 31 The broadest method claim, independent claim 1, provides as follows (with integer numbers added). I have also adopted the designation of "steps" as used by Besanko J and the Full Court: 1. A method of providing an indication of the orientation of a core sample relative to a body of material from which the core sample has been extracted, the method comprising: 1.1 drilling a core sample from a body of material with a core drill having an inner tube [step 1]; 1.2. recording the orientation of the inner tube at predetermined time intervals during said drilling, the time intervals being referable to an initial reference time [step 2]; 1.3. inputting the specific time beyond the reference time representative of when the core sample was separated from the body of material [step 3]; 1.4. removing the inner tube, with the core sample held therein in fixed relation to it, from the body of material [step 4]; and 1.5. relating the inputted specific time to the recorded time intervals to obtain an indication of the orientation of the inner tube and consequently the core contained therein at the specific time [step 5]. 32 Claim 2 is as follows: 2. A method as claimed in claim 1, comprising: producing signals to indicate the orientation of the inner tube at any instant in time during said drilling; processing the signals to determine data indicative of the orientation of the inner tube at various instants in time; inputting a time measurement representative of the instant in time when the core sample is separated from the body of material and first held in fixed relation thereto; and comparing the inputted time measurement to the instants in time and identifying the data indicative of the orientation of the inner tube and consequently the core sample at the instant in time. 33 Claim 33 is as follows: 33. A core orientation system for providing an indication of the orientation of a core sample relative to a body of material from which the core sample has been extracted using a core drill, the core drill having an inner tube, the system comprising: means for recording the orientation of the inner tube at predetermined time intervals during drilling by the core drill, the time intervals being referable to an initial reference time, and for inputting the specific time beyond the reference time representative of when the core sample was separated from the body of material; and means for relating the inputted specific time to the recorded time intervals to obtain an indication of the orientation of the inner tube and consequently the core contained therein at the specific time. 34 Claim 34 is as follows: 34. A system as claimed in claim 33, comprising: means for providing signals associated with the physical orientation of the inner tube of the core drill during drilling; input means for inputting into the system a time measurement indicative of the time during drilling when the core sample is detached from the body of material from which it is taken and held in fixed relation to the inner tube; one or more processing means for processing the signals to produce data indicative of the orientation of the inner tube; one or more processing means for processing the data produced and the inputted time measurement to produce an indication of the orientation of the core sample relative to the material from which it is detached; and display means for the indication of the orientation of the core sample relative to the material from which it is detached. 35 In the section headed "Disclosure of the Invention", the Patent sets out a description of the invention. The first paragraph identifies what is said to be the first broad aspect of the invention and it is in the same terms as claim 1. There then follows a series of consistory clauses for the rest of the method claims. The same observations apply to the disclosure of the invention insofar as it relates to the system claims, which is described in the specification as the second broad aspect of the invention. The third broad aspect of the invention is a core drill having a core orientation system according to the second broad aspect of the invention, and the fourth and final broad aspect of the invention is a combination of the method and system aspects of the invention. 36 The specification includes six drawings, which are described as Figures 1–6. It contains a brief description of the drawings, which each depict one specific embodiment of the invention. 37 The function of this part of the specification is to provide a disclosure of the invention, or in other words, to say what the invention actually is. Four broad aspects of the invention are disclosed. These include a first broad aspect, a method of core sample orientation having particular features, referable to claim 1; and a second broad aspect, a core orientation system with particular features, which is referable to claim 33. There are also various narrowing preferments or limitations. 38 In the "first broad aspect", the method disclosed works by using the orientation of the inner tube assembly of the core drill, which receives the core sample, as a proxy for the orientation of the core sample itself. The orientation of the inner tube can be measured by a device with components such as accelerometers, which are capable of sensing a device's orientation. The device is typically attached to the inner tube and sent downhole to provide those measurements of orientation. 39 The "second broad aspect" of the invention, is directed to a core orientation system. It has generally similar features to the method of the "first broad aspect". The difference is that it is directed to a system comprising means or components for carrying out the relevant steps, rather than a method comprising the steps. Those means are broadly defined by reference to their functions, which reflect the steps of the method. In context, it is apparent that the system is directed to a set of interacting components located downhole and on the surface which work together to achieve a specific purpose, being in this case to orient a core sample. The nature of such a system is dealt with further in the context of the corresponding claim of the Patent, claim 33. 40 The specification then provides a "Brief Description of the Drawings". This commences with a passage which emphasises that the detailed description that is about to follow is exemplary but non-limiting, stating that "[t]he invention will be better understood by reference to the following description of one specific embodiment thereof as shown in the accompanying drawings…". That "one specific embodiment" of the invention is then described in a section headed "Best Mode(s) for Carrying Out the Invention". 41 The final part of the body of the specification sets out the "Best Mode(s) for Carrying Out the Invention" (Best Mode(s) section). Besanko J referred to this as the "best method section", and the Full Court followed suit. This part of the specification extends over nine pages and refers to features that are shown in the drawings and are identified by numbers. 42 The purpose of the Best Mode(s) section is to provide a detailed description of a particular exemplary but non-limiting preferred embodiment. The embodiment described involves the use of two timers (downhole and above ground) that are started contemporaneously, using a "counting forwards" system from a common initial reference time. Consistent with it being merely a preferred embodiment, there are references throughout this part of the description to "this embodiment" or "the embodiment". In context, the third last paragraph in this part of the description on page 21 relates to the particular preferred embodiment being described, not to the invention as a whole, or in its broad form. This was dealt with by both Besanko J and the Full Court: see Globaltech FC at [110]. 43 The best method section contains a description of the process of using the core orientation device. The description begins with a reference to a "first step" which comprises moving the core drill, having the core orientation device forming part thereof, from a first location to a drilling location. The best method section refers to a "reference time" and contains a statement to the effect that the reference time corresponds to the time at which the core orientation device is started, and from which successive one minute intervals are timed. 44 The best method section states that in "this embodiment", the core orientation device is started by pressing a particular key on the keypad. The best method section continues as follows: It is also necessary to record the time duration between starting the core orientation device 10 and extracting the core sample. Typically this is achieved by starting an external stop watch at the time of starting of the orientation device 10. Other arrangements are of course possible. The stop watch is started at the time that the orientation device 10 displays a signal on the display 31 indicating that operation of the orientation device 10 has started. This provides for added accuracy. Once the orientation device 10 has been started and recording of the subsequent time duration commenced, the inner tube assembly 36 is inserted into a drill hole for reception in the outer tube assembly 13, and the core drilling operation commenced. During the drilling operation, a core is progressively generated within the inner tube assembly, as previous explained. When the core is to be extracted, the core drill operator refers to the timer and notes the time duration involved. Specifically, the operator either notes the full minute that has previously elapsed or waits until the next full minute elapses, and then records that time (as it must be recalled later). 45 A little later in the best method section, there is a statement that in the particular embodiment described, the core orientation device is rotated to reflect the measure of the orientation. This is achieved by inputting the time duration, as measured by the external stop watch, into the orientation device using the keypad. The section provides that the time measurement measured by the operator and entered into the keypad represents the duration of time between starting the orientation device and the point at which the particular drilling process was terminated in order to fracture the core sample from the body of material to which it is attached so that the core sample can be retrieved from the drill hole and brought to the surface level. 46 The third and second to last paragraphs of the body of the specification are in the following terms: From the forgoing, it is evident that the present invention provides an orientation device which does not require physical marking of a core sample prior to extraction thereof from the ground. Indeed, the orientation device according to the embodiment is particularly convenient for an operator to use. All that is required is for the operator to start the orientation device prior to the inner tube assembly 36 being inserted into the drill hole, and contemporaneously start a timer for recording the time duration before the drilling operation ceases to allow the generated core sample to be retrieved. Modifications and improvements may be made without departing from the scope of the invention. For example in other embodiment the physical orientation does not comprise a rotational orientation but rather a measure of degrees above or below the horizontal plane. 47 The claimed method works in general terms by recording the orientation of the inner tube of the core drill during drilling (for example through the use of accelerometers) at predetermined time intervals. An inputted time (representative of core break) and recorded orientation measurements are subsequently related so as to provide an in situ indication of the orientation of the core sample. 48 There are then 69 claims, including the independent claims 1 and 33 set out above. Witnesses 49 AMC called one expert at trial, Professor Jonathan Tapson. Professor Tapson gave evidence on both infringement and validity. Globaltech called three experts at trial, Professor Thomas Braunl, Mr Peter Berry and Mr Adrian Edmonds. Globaltech's three experts gave overlapping evidence in relation to infringement. Boart Longyear called one expert, Professor Christian Dupuis who gave evidence solely in relation to the validity challenge. Each expert made affidavits before trial which contained their evidence-in-chief and evidence in answer. The parties formulated two lists of issues before trial and each expert addressed the issues in a joint expert report, one for infringement (JER-I) and another for (in)validity (JER-V). The experts gave evidence by way of two joint sessions which were conducted via Microsoft Teams. First on infringement with Professor Tapson, Professor Braunl, Mr Edmonds and Mr Berry and second on invalidity with Professor Tapson and Professor Dupuis. 50 As an aside, I note that the expert evidence in this proceeding was filed prior to the Full Court's decision in Novartis AG v Pharmacor Pty Ltd [2022] FCAFC 58 per Yates, Beach and Moshinsky JJ (Novartis). Consistent with modern case management in patent litigation, the purpose expressed in Pt VB of the Federal Court of Australia Act 1976 (Cth) and the Intellectual Property Practice Note (IP-1), the Court would not expect to see a party relying on multiple expert witnesses from the same discipline. Rather, the Court would expect the parties to be guided by the comments of Beach J in Novartis at [24]–[30]. 51 AMC also called evidence from Mr Kevin Laurence Brown, the Global Products Manager for Reflex. Mr Brown was not cross-examined. 52 Globaltech called evidence from two in-house witnesses, Mr Khaled Hejleh, the Managing Director of Globaltech Corporation and GTCPL, and Mr Brett Wilkinson, Chief Technical Officer at Globaltech Corporation, both of whom were cross examined. 53 Boart Longyear called evidence from Ms Shannon Emrick, General Counsel Asia Pacific of BLYA. 54 Globaltech was ordered to file a Product Description with respect to the V6 Tool before trial. The Product Description contains a description of, and flowcharts with respect to, the V6 Tool. The Product Description was verified by Mr Hejleh. 55 I turn now to summarise the qualifications and experience of the expert witnesses who gave evidence. In respect of Professor Tapson, Mr Brown and Mr Edmonds all of whom gave evidence in Globaltech FI, I also refer to the summary of Besanko J at [44]–[59] in the case of Mr Tapson, [60]–[79] for Mr Brown, and [98]–[103] in the case of Mr Edmonds. Professor Tapson 56 Professor Tapson is an electronics and electrical engineer and Professor at the School of Computing, Engineering and Mathematics at Western Sydney University. He is currently on a leave of absence from the University during which he is employed as the Chief Scientific Officer for GrAI Matter Labs, an electronics company in San Jose, California. 57 Professor Tapson completed his PhD in engineering in 1994 at the University of Cape Town. He also holds a Bachelor of Science in electrical engineering and a Bachelor of Science in physics obtained from the same university. 58 Besanko J noted at Globaltech FI [52] that Professor Tapson has taught in the areas of Mechatronics Design, Microprocessor Systems, Process Control and Instrumentation, Electrical Engineering Design and Advanced Topics in Instrumentation. These subjects involve engineering concepts relevant to the design of instruments and techniques for orientation and position sensing in the mining industry. 59 In Globaltech FI at [53] and [54], along with details of Professor Tapson's membership of professional associations and editorial boards and presentations at industry conferences, Besanko J noted that Professor Tapson had published over 100 academic papers covering a range of topics including sensor design, electronic circuits and networked systems. Of particular note to his Honour was that in 2003, and again in 2004, Professor Tapson was invited to present the keynote address at the Annual Conference of the South African Institute of Mining and Mineral Processing regarding the state of the art of instrumentation and networked systems in the mining industry. 60 At [55] Besanko J listed examples of projects that Professor Tapson had conducted in the areas of orientation instruments and systems for the mining industry up to late 2004. 61 It was suggested by the Respondents that Professor Tapson was an experienced or "seasoned" witness for AMC and its related entities, having appeared for them in eight other proceedings before this court and the Patent Office in Australia and the US, and that he had a close association with AMC. The Respondents pointed to the fact that as a result of Professor Tapson making suggestions during the course of a previous retainer as an expert for AMC, he was named as a co-inventor on two patents. Professor Tapson states in his affidavit dated 12 October 2020 that he has received no payment for his contributions to those patents nor was he involved in their preparation. 62 A similar suggestion was made by Globaltech to Besanko J in Globaltech FI, who rejected it, stating at [59]: It is true, as Globaltech submitted, that Professor Tapson had acted for a number of years as an expert for AMC or its parent company, Imdex Pty Ltd (Imdex). I take into account the fact that Professor Tapson has given evidence in previous proceedings and that, in a sense, he has had a long association with this family of patents. However, I am not persuaded that his independence has been compromised. 63 Nothing that transpired in the hearing would cause me to depart from Besanko J's conclusion. It is true that Professor Tapson has been an expert for AMC in a number of proceedings brought by AMC. However, this is in the context where each of the proceedings involved the construction of the claims of the Patent or the related innovation patents and their validity, and evolving iterations of the Globaltech core orientation device. In that context, it is unsurprising that AMC would continue to have Professor Tapson give expert evidence. Mr Brown 64 Mr Brown is the Global Products Manager for Reflex. Mr Brown gave evidence in Globaltech FI. He was not required for cross examination in this proceeding. 65 Mr Brown has over 20 years' experience in mineral exploration drilling. Over this time he has acquired knowledge and experience in all major forms of exploration drilling, including auger drilling, rotary-percussion drilling and diamond core drilling, including the technologies and instruments used in those drilling programmes. Details of Mr Brown's employment history and experience was set out by Besanko J at [62]–[77]. 66 For the most part, Mr Brown's evidence was directed towards the conduct of the Respondents in support of AMC's claim for relief against all the Respondents, and its claim for additional damages. Mr Edmonds 67 Mr Edmonds was an expert witness for Globaltech in Globaltech FI. 68 Mr Edmonds is an electronics and software engineer who has worked with electronic drill hole surveying instruments for use in underground directional drilling since March 2004. Mr Edmonds has experience in working on projects developing instruments in the field of mining and mineral exploration and geotechnical drilling before the priority date. Justice Besanko summarised Mr Edmonds' experience at [98]–[103]. Professor Braunl 69 Professor Braunl is a Professor of electrical, electronic and computer engineering in the Department of Electrical Engineering at the University of Western Australia. He is also the Director of the University's Robotics & Automation Lab and Renewable Energy Vehicle Lab. 70 Professor Braunl has substantial experience in the general areas of electronic circuits, assembly code, watch dog timers, and all manners of circuit boards, CPUs, chips, and their relationships to software. One of his particular research and teaching areas in his role at the University of Western Australia is in embedded systems. Professor Braunl explains that an embedded system is a computer hardware system (comprising processors, memory, input/output devices) with stored software as part of a complete device. 71 Professor Braunl teaches students in areas such as microcontrollers, sensors, actuators, hardware and software, assembly language, C language, watch dog timers, CPU design, interrupts and communication between processors, timers, design and analysis of circuits, and more. He also designs and uses all of these types of electronic components and software in his work on autonomous vehicles as part of his role as director of the Renewable Energy Vehicle Lab. 72 Professor Braunl had no experience with mining or drilling instrumentation or with software associated with drilling equipment and instrumentation. Mr Berry 73 Mr Berry is a consultant electronics and software engineer based in Western Australia. He graduated in 1983 with a Bachelor of Science in Electronic Engineering from the University of Natal. As at the priority date he was working on a variety of projects concerning electronic technology including designing digital circuit boards, writing embedded firmware for processors, communications protocols and networking. He had also undertaken work to design circuitry and firmware to communicate with accelerometers to determine the data sensed from the accelerometer axes. 74 Mr Berry had undertaken some previous consulting work with Globaltech in or about 2017. Mr Berry states that that work involved two relatively small research projects in respect of testing out new product ideas. His role was to design some electronic componentry of the new product ideas. Neither of the projects was in relation to an electric downhole orientation tool. This constituted his only experience in relation to mining or drilling equipment. Mr Berry was unaware of any of the earlier proceedings. Associate Professor Dupuis 75 Associate Professor Dupuis is an electrical engineer and an Associate Professor at the Université Laval, Québec, Canada. Professor Dupuis graduated with a Bachelor of Electrical Engineering in 2001 from the University of New Brunswick, Canada. He also holds a Masters in Electrical Engineering from the same University. His doctoral thesis was entitled "Field measurements and analysis of electrokinetic seismoelectric signals generated in sedimentary environments". During 2013–14, he was an adjunct visiting fellow at Curtain University of Technology in Western Australia. 76 For approximately 13 years Professor Dupuis has carried out research in the areas of mining, mineral exploration and geotechnical drilling, including the development of borehole instruments and measurement systems to facilitate borehole geophysics and improve mineral exploration efficiency. Mr Hejleh 77 Mr Hejleh is the Managing Director of both Globaltech Corporation and GTCPL. Mr Hejleh verified the Product Description for the V6 Tool. Mr Hejleh was cross examined predominantly in relation to the corporate relationships of the Respondents. Mr Wilkinson 78 Mr Brett Wilkinson is the Chief Technical Officer of Globaltech Corporation, a company in which he is also a shareholder. 79 Mr Wilkinson graduated with a Bachelor of Engineering with honours in electronic systems in 1999 from Edith Cowan University. Since graduating, Mr Wilkinson has worked his whole professional life at Globaltech Corporation. 80 As Chief Technical Officer, Mr Wilkinson manages a team of about six firmware engineers and two technicians. Mr Wilkinson oversees the design and development of electronic tools at Globaltech, including both the electronic hardware and the firmware, from concept to production handover. He is listed as a co-inventor on a number of Globaltech's patents. Mr Wilkinson was involved in the design and development of each version of the Orifinder Tools, including the V6 Tool. 81 Mr Wilkinson performed a series of repeat tests on a V6 Tool to provide output results of the time intervals between successive orientation recordings of the V6 Tool. These results were provided to the expert witnesses for consideration. Ms Emrick 82 Ms Shannon Emrick is the General Counsel Asia Pacific of BLYA. Ms Emrick is also: (a) a director of BLYA (since February 2017); (b) Company Secretary of BLYA (since October 2017); (c) a director of the Third Respondent, BLY Limited (which became BLY Pty Ltd on 4 February 2022) (since December 2021); (d) a director of Votraint No 1609 Pty Ltd (which owns 58% of share capital in Globaltech Corporation) (since 2016); and (e) the Company Secretary of Votraint No 1609 Pty Ltd since 2017. 83 Ms Emrick was also interim Global Chief Legal Officer of Boart Longyear Company from 1 November 2021 until 28 February 2022. 84 As part of her role as General Counsel, Ms Emrick manages the regional BLY Adelaide Office and has legal oversight over Australian and Pacific operations, such as commercial and strategic decisions for the BLY Group within the Asia Pacific region, M&A and divestor work. 85 In her role as General Counsel Asia Pacific of BLYA, Ms Emrick reports to and supports the Global Chief Legal Officer and the Board of the ASX listed entity, which prior to 4 February 2022 was BLY. The Skilled Person 86 The debate between the parties on infringement and validity centres on the construction of the Patent and of the Provisional. These are ultimately matters for the Court, although the evidence of properly qualified experts has the potential to assist in terms of the surrounding common general knowledge and any issues relating to the operation of the allegedly infringing device. 87 The notional person skilled in the art, or skilled addressee, is a person with a practical interest in the subject matter of the Patent. In general terms, in the present case, this includes those interested in the design, manufacture and operation of down hole drilling tools, including core orientation devices, their instrumentation, electronics and software, and the techniques for measuring orientation, particularly core sample orientation. It is likely that the person skilled in the art is a team. 88 In Globaltech FI, Besanko J identified the skilled addressee of the Patent as at the Priority Date as follows at [113]: In my opinion, the person or persons skilled in the art would have experience or knowledge in electronics and software and drilling. There was a debate before me about whether one person was likely to have all of the requisite experience and knowledge. I am of the opinion, on the balance of probabilities, that that is unlikely, and it is more likely that the relevant "person" will be a team of two, possibly more persons. 89 Besanko J held in Globaltech FI at [114] that each of the experts called to give evidence, relevantly including Mr Edmonds and Professor Tapson, were in a position to give relevant expert evidence. Like the experts in Globaltech FI, the remaining experts in this case had varying levels of expertise relevant to areas and aspects of the task, but each were in a position to give relevant expert evidence. Earlier Globaltech Proceedings 90 Before going further, it is useful to refer to the construction of claim 1 in the Globaltech FI proceedings. In that earlier proceeding, Besanko J construed claim 1 of the Patent, including the "predetermined time intervals integer" and then considered the question of whether the V3A, V3B and V5 Tools infringed the Patent. Justice Besanko found each of the V3A, V3B and V5 Tools infringed the claims in suit. Globaltech appealed the findings as to the V5 Tool. Justice Besanko's construction of the claims and findings that the V5 tool infringed the claims in suit were upheld by the Full Court in Globaltech FC. 91 It is against the backdrop of Besanko J's construction of the Patent claims in Globaltech FI, as upheld by the Full Court in Globaltech FC, that the Respondents advance their construction and external fair basis arguments in this proceeding. Globaltech FI 92 Under the heading "The Main Construction Issues", Besanko J discussed three issues, commencing at [185]. Only the first and third of these issues, described as "synchronisation" and "predetermined time intervals" are relevant for the purposes of this proceeding. 93 Besanko J began his consideration of the "synchronisation" issue at [185] by noting that there was no dispute that the method in claim 1 requires two timers, one in the downhole device and the other on the surface, and that they are involved in a way that ultimately leads to the identification of the orientation recording at or close to the time of the core break. Nor was it in dispute that the act of inputting the specific time referred to in step 3 is an act carried out by the operator on the surface. These matters were also not in dispute in the present proceeding. 94 The Full Court observed in Globaltech FC at [60], that Globaltech used the term "synchronisation" to refer to a timer on the surface being started contemporaneously with the timer of the orientation device. The Full Court gave as an example the method adopted when a stop watch is used, as per the best method for carrying out the invention, which may be described as "synchronisation". 95 At [188] Besanko J referred to Professor Tapson's explanation that the use of two timers where the two timers are not started at the same time and then counted forward at the same rate might be called "time correlation", but was not synchronisation. For example, there might be time correlation between two timers (A and B) if the time on an already running timer is recorded. Justice Besanko noted Professor Tapson's opinion that the claims included not only synchronisation, but also forms of time correlation. 96 The Full Court noted at [62] that a further expression used by Besanko J was "offset". This was a term used by Globaltech. In order to identify what was meant by "offset", Besanko J set out the following passage from Professor Tapson's evidence at [192]: Suppose that the preferred embodiment described on pages 18 to 20 of the Patent were implemented with a clock indicating Greenwich Mean Time (GMT) in place of the stopwatch referred to in page 19, 1st paragraph. The operator notes the GMT time when he/she starts the orientation device (10) and notes the GMT time when he/she initiates core break (cf. Patent, page 18, 6th paragraph to page 19, 2nd paragraph). The operator determines the difference between the former GMT time and the latter GMT time, in minutes (cf. Patent, page 19, 4th paragraph). The operator inputs the time difference into the orientation device (10) through keypad (72) (cf. Patent page 19, 6th paragraph to page 20, 1st paragraph). This inputted specific time is representative of core break. The operator has used the difference between two points in time (i.e., the two GMT times) to determine the inputted specific time, instead of using a stopwatch that is started contemporaneously with the orientation device (10). For that reason, the embodiment I have just described is not a "Synchronised Surface Timer" as that term is defined by the Respondents. 97 At [193], Besanko J noted that Globaltech was prepared to accept the offset example at [192] fell within claim 1. 98 At [195]–[197] the primary judge summarised the rival construction contentions: (a) Globaltech's primary contention was that the claims are restricted to synchronisation. The primary judge treated this contention as referring to "synchronisation" in the sense described above (although, as the primary judge recognised, there was a debate as to the meaning of synchronisation); (f) Globaltech's secondary contention was that claim 1 is limited to synchronisation and time correlation where the two timers are counting forwards and the relevant calculation is made from the start to the relevant point, which is core break. While acknowledging that it was somewhat imprecise, the primary judge referred to this construction as "counting forwards" (an expression used in the evidence and submissions); and (g) AMC submitted that, although claim 1 is limited to synchronisation and time correlation, the latter phrase means where two timers are used and the relevant calculation is made either from the start to the relevant point or from the end back to the relevant point. Whilst again acknowledging that it is somewhat imprecise, the primary judge referred to this construction as "counting forwards or backwards". 99 Besanko J summarised the competing contentions as to the first feature, the "synchronisation" issue, at [240]: To sum up, Globaltech described its system as asynchronous. That followed, so it submitted, from the fact that there is no initial reference time and the handheld device at the surface only starts the core orientation device running. Sometime later, there is a point at which the drilling will stop. At that point, the operator starts a handheld timer, which may be different from the handheld device used at the beginning, to record the time. The core is broken and then retrieved to the surface. At that time, the handheld timer is stopped, as is the device timer. The operator is able to identify the orientation reading just prior to core break by reference to the time which has elapsed from the time when the handheld timer was started just prior to core break, and the time when it was stopped. 100 At [241] Besanko J opined that the construction issue concerning synchronisation and counting forwards or backwards turned primarily on the meaning of certain words and phrases in steps 2, 3 and 5 of claim 1 and, more particularly, "predetermined time intervals" and "initial reference time" in step 2, and "inputting the specific time beyond the reference time" and "representative" in step 3. 101 At [242] to [248], Besanko J set out the competing contentions in relation to the words "predetermined time intervals" and "initial reference time": Step 2 "predetermined time intervals" and "initial reference time" 242 AMC's submission with respect to the phrase "predetermined time intervals" is that when applied to an occurrence, the phrase means no more than that something occurs or is done at pre-programmed intervals and it does not say anything about two timers or synchronisation. 243 Globaltech's submission is that the predetermined time intervals are pre-known sequential time intervals that are referable to a known start time and that the start time must, therefore, happen at the beginning. In general terms, that proposition may be accepted. Globaltech goes on to submit that predetermined time intervals are synonymous with synchronised operations where two devices (i.e., one in the downhole tool and one at the surface) can keep track of the same intervals because they are predetermined. To be predetermined, such intervals must have pre-known start and end points. As I understood Globaltech's submission, it was that accurate predetermined time intervals are an essential feature of a synchronised system. It put its submission in writing as follows: The Patent is a synchronised method that requires highly accurate timers counting at accurate intervals, otherwise it would not be possible for the inputted specific time to be related to the initial reference time and the predetermined time intervals. And it would not be possible to subsequently identify a specific time interval using the inputted specific time if the intervals are at unpredictable duration. It may be accepted, that predetermined time intervals are a feature of a synchronised system. However, the same may be said of the methods or systems which are a feature of the use of the Orifinder v3B and Orifinder v5. 244 With respect to the phrase "initial reference time", dictionary definitions of the word "referable" when followed by "to" suggests that it means having a particular relationship with or be directed to. 245 There was debate between the experts concerning whether the start of the RTC which occurs when the Orifinder v5 is switched from Hibernation to Standby mode, was an initial reference time or simply a time. Professor Tapson said that it was the former because every measurement thereafter is timestamped against that time, whereas Mr Edmonds considered that it is just the time on the RTC. Professor Tapson's initial reference time in the case of the Orifinder v5 is when the tool enters Standby mode from Hibernation mode which is when the RTC starts. 246 AMC submits that "initial reference time" means no more and no less than a reference time that may be referenced time. It means something that can serve as a reference for the "predetermined time intervals" that are referred to later in the claim, for example, by timestamping. AMC submits that the Court should accept Professor Tapson's evidence that "initial reference time" means no more than a fixed start time with respect to which the predetermined time intervals are timestamped and includes the time at which a clock in the downhole tool is started. If it meant synchronised two timers, then that could easily have been said. If it meant the starting or synchronised time (Mr Ayris), or the starting point where the two timing devices are synchronised meaning that these times are matched and they count at the same rate (Mr Edmonds), then the claim could easily have said that. Mr Edmonds' opinion as to the meaning of "initial reference time" was linked to his understanding of the specific time beyond the reference time which is examined below. 247 Globaltech submits that an initial reference time is an essential requirement of a synchronised system. In context, it means the synchronisation of a surface timer and a timer in the downhole tool. Globaltech relied on the evidence of its experts. The reasoning of those experts was based, in part at least, on the need for an initial reference time in the case of a synchronised system, but not otherwise, and the explanation as to the operation of the best mode or method. Globaltech also made the point that the only method described in the Patent involved a timer at the surface which is started contemporaneously with the timer in the downhole tool. Globaltech submits that Professor Tapson's construction of initial reference time as related to the start time of the downhole timer, should be rejected because all the experts are agreed that there must be a surface timer in addition to a timer in the downhole tool, and that Professor Tapson's construction involves reading words into the claim, that is, in the downhole timer, contrary to the principles established in the authorities (Welch Perrin v Worrell at 610). 248 The construction issues in this case are by no means easy. At first blush, there is a good deal of attraction in Globaltech's submission that in a context in which it is agreed on all sides that the method involves two timers, one on the surface and one in the hole, the reference to "initial reference time" would suggest a time to which both timers referred, and in its submission that in practical terms the only context provided by the Specification in the best method section and its reference to a synchronised or at least counting forwards method. 102 Ultimately Besanko J concluded as to "synchronisation" as follows at [265]: In conclusion, the claims are not limited to the use of a Synchronised Surface Timer and the major issue is whether the claims are limited to a method which counts forwards or includes a method that counts forwards or backwards. I accept Professor Tapson's evidence that "initial reference time" in step 2 includes the start of the timer in the downhole device. I do not see any reason to limit the phrase to the start of two timers or the start of one timer and the recording of the time shown on another timer. I accept the evidence, particularly in light of the acknowledgments or concessions made by Mr Edmonds, that the Orifinder v5 involves an inputting of a specific time within step 3 and falls within step 5 when that step is considered alone. That really leaves for consideration the word "beyond" in the phrase "beyond the reference time" in step 3. I do not think it means anything more than after or later than. 103 At [277], in considering the "predetermined time intervals" integer in the context of his infringement analysis, Besanko J noted: The Orifinder v5 uses a WDT. WDTs are not precisely accurate as they can be affected by temperature and pressure. The margin of error is in the region of up to 10%. 104 In short, the V5 Tool operated using a device called a "Watch Dog Timer" which counted 12 mini cycles of approximately 2 seconds each so as to produce time intervals which due to the inaccuracy of the WDT, varied randomly within a range of about 25 seconds plus or minus up to about 10%. In other words, although intended to be 25 seconds, the time intervals varied randomly within the range of about 22.5 to about 27.5 seconds (the V5 range). The Respondents' argued that these were not "predetermined time intervals" because of this variability and the fact that the precise duration of each time interval could not be known in advance. 105 Justice Besanko noted at [278] that: AMC submitted that there is no requirement in the claims that the predetermined time intervals be exact or precise time intervals, and no requirement that the progression of time intervals be known or confidently predicted to within "a given second". The best method section in the Specification does not suggest a need for such a degree of accuracy. First, the body of the Specification refers to a timer in the device, but not one exhibiting any particular degree of accuracy. Secondly, there will inevitably be a short delay between starting the orientation device and starting the external stop watch. Thirdly, the relevant time duration inputted into the orientation device is referred to as "in minutes" and not the more precise "in minutes and seconds". 106 At [279] Besanko J recorded the evidence of the Respondents' experts on the issue of "predetermined time intervals"; Mr Ayris, who did not give evidence in this proceeding, and Mr Edmonds, who gave evidence in this proceeding: Mr Ayris agreed that "predetermined time intervals" in step 2 means a pre-programmed or pre-set time interval and that there is no requirement in the claim that some intervals must be expressed with any particular degree of accuracy. Time intervals of, for example, 25 seconds plus or minus 10% (resulting from the use of a WDT) are predetermined time intervals. Mr Edmonds did not agree with this for two reasons. The first reason related to the particular wording of claim 2 which I do not need to consider at this time. The second reason is that he interpreted the claim to mean that the inputted specific time on the surface timer must precisely align with the end of one of the predetermined time intervals when a predetermined time interval is taken. 107 At [280] Besanko J noted two points: First, the WDT in the Orifinder v5 will be accurate to plus or minus 10%. It determines when the orientation readings are taken, and while it must fulfil the requirement of readings at predetermined time intervals, there is no further accuracy issue because the timestamping is done by reference to the RTC. Secondly, core break is not instantaneous, or not necessarily instantaneous. The timestamping of each measurement is done by reference to the RTC which, in turn, refers back to the starting of the RTC (i.e., when entering Standby mode). 108 At [281] Besanko J concluded that the WDT used in the V5 Tool (with its plus or minus 10% accuracy) did not mean that the recording of the orientation of the inner tube does not take place at predetermined time intervals within step 2. The V5 was held to infringe the claims of the Patent. 109 Globaltech appealed Besanko J's construction of the claims and finding that the V5 Tool infringed the claims of the Patent. Relevantly for this case, it alleged that Besanko J had erred by finding that the invention was not limited to a "synchronous" method/system involving two timers that each noted the same initial reference time at the beginning of drilling operations, with both timers counting from that time. Globaltech FC 110 The Full Court observed at [120] that: It was common ground at the trial that two timers would need to be used, one downhole (where orientation measurements would be recorded) and one on the surface (where the person using the method would be). However, the claim does not refer to these timers or how they are to be operated. In particular, it does not refer to the two timers being 'synchronised', or to the two timers being started at the same time. 111 The Full Court continued at [121] to [124] in relation to the steps of claim 1: 121 The steps of claim 1 that deal with the recording, inputting and relating of time measurements are steps 2, 3 and 5. As the primary judge recognised, these steps cannot be considered in isolation from each other. 122 Step 2 refers to recording the orientation of the inner tube at predetermined "time intervals" during the drilling, the time intervals being "referable to an initial reference time". This occurs downhole, where the orientation measurements are recorded, and thus involves the use of the downhole timer. The time intervals at which the orientation measurements are recorded are "referable to" an initial reference time on that timer. 123 Step 3 refers to inputting "the specific reference time beyond the reference time", which is representative of the time at which the core is broken. It was common ground below that this step occurs on the surface. In contrast to step 2, the "specific time" inputted in this step is not said to be "referable to" the initial reference time. It need only be "beyond" the initial reference time. As a matter of ordinary language, this may simply mean that the "specific time" occurs after or later than the initial reference time. This issue is discussed further below. 124 Step 5 refers to "relating the inputted specific time to the recorded time intervals" to obtain an indication of the core orientation at the specific time. This is the step of the method at which the two sets of time measurements (downhole and surface) are related to each other, so as to enable the orientation of the core sample at the time of core break to be determined. The word "relating" is a broad term. In this context, it encompasses any means of relating the inputted specific time to the recorded time intervals so as to obtain an indication of the orientation of the core sample at the specific time. 112 At [125] and [126]: 125 In our view, in light of the above matters, and having regard also to the further matters discussed below, the correct construction of claim 1 is that: step 2 involves the recording of time measurements downhole, while step 3 involves the inputting of a time measurement at the surface; the step in which these time measurements are related to each other is step 5, which occurs later, after the inner tube with the core sample contained in it has been removed from the ground and brought to the surface (see step 4); there is no requirement that the time measurements be related to each other prior to step 5 (by the use of a common initial reference time); that work is done by step 5, which involves "relating" the time measurements to each other. 126 This construction is supported by other aspects of the Patent. First, the specification, after referring to a preferred method comprising (inter alia) inputting a time measurement representative of the instant in time when the core sample is separated from the body of material (Patent, p 4, lines 16-17), states that "[p]referably, the instant in time is representative of a duration of time relative to the initial reference time" (Patent, p 5, lines 4-5). Secondly, the Patent contains a number of narrower claims that use the same or similar language (claims 6, 26 and 52). For example, claim 6, which is dependent on claim 2, requires the instant in time (referred to in claim 2) to be "representative of a duration of time relative to the initial reference time". These parts of the specification and these claims suggest that when the patentee intends to indicate that the time of a core break is to be measured in a way that is referable to the initial reference time, it says so expressly. 113 At [127] the Full Court observed that the claims were not limited to the preferred embodiment as described in the best modes section: While it may be accepted that the best method section (which describes one embodiment) contemplates a system of synchronisation, or at least counting forwards, as discussed above it is not usually legitimate, in the absence of an express reference in the claim itself, to import into a claim features of the preferred embodiment. In the present case, the claim itself does not contain an express reference to a system of synchronisation or counting forwards, and we do not consider there to be a proper basis to import this aspect of the preferred embodiment into the claim. 114 The Full Court then turned to consider the construction specific issues raised by Globaltech on appeal. 115 First, at [130], the Full Court rejected Globaltech's submission that Besanko J erred by finding that the invention claimed was not limited to a method/system involving two timers that each noted the same initial reference time at the beginning of drilling operations (ie that a "synchronised" approach was required). In doing so, the Full Court noted that claim 1 does not require the use of two timers that "record time by reference to the same initial reference time". The Full Court further noted that only step 2 (involving the downhole timer) requires that the time intervals be "referable to" the initial reference time and step 3 (at the surface) merely requires that the input specific time be "beyond" the reference time. The Full Court continued at [130]: Further, the claim does not, as Globaltech submitted, provide that "the times on the two timers are matched when the specific time is inputted into the surface timer to determine the orientation of the core sample". As noted above, step 3 deals with the "inputting" of the specific time at the time of core break (at the surface); step 5, which occurs later, is the step in which the measurements are related to each other so as to obtain an indication of the orientation of the core sample. 116 Secondly (at [133]), Globaltech submitted that the primary judge erred by finding that the "initial reference time" in step 2 of claim 1 includes the start of the timer in the downhole device but does not necessarily also refer to the start of the surface timer. Globaltech submitted that, given that claim 1 requires the use of two timers, the only reasonably open construction of step 2 is that the initial reference time refers to the same start time on both timers. It submitted that, if "initial reference time" does not refer to the starting time on both timers, it cannot be known whether the initial reference time refers to a time on the surface timer or the downhole timer. Globaltech submits that AMC's construction involves reading "initial reference time" so as to exclude the surface timer and, in effect, impermissibly reading into the claim the words "on the downhole device". 117 The Full Court rejected Globaltech's second submission at [134]: Step 2 refers to recording the orientation of the inner tube at predetermined time intervals during the drilling, "the time intervals being referable to an initial reference time". This recording takes place on the downhole timer. It is therefore apparent that step 2 refers to, at least, the downhole timer. The real issue is whether the time recorded on the surface timer must also be referable to the initial reference time. While there are arguments in favour of that construction, we consider the preferable construction to be that this is not required. In resolving this issue, step 2 cannot be considered in isolation. It is necessary to consider the other integers of the claim, in particular, steps 3 and 5. Step 3 does not in terms require the time on the surface timer to be referable to the initial reference time. Rather, it refers to inputting the specific time "beyond" the reference time. Step 5 is the stage at which the inputted specific time is related to the recorded time intervals. Having regard to these steps, in addition to step 2, the preferable construction is that the claim does not require the time recorded on the surface timer to be referable to the initial reference time. Contrary to Globaltech's submissions, this construction does not involve reading words into the claim; rather, it involves construing the words of the claim. 118 Thirdly, the Full Court noted at [137] that Globaltech submitted that the primary judge erred by failing to find that the words "inputting the specific time beyond the reference time" in step 3 refer to a time that is referable to the initial reference time. Globaltech submitted that AMC's construction gives the word "beyond" a meaning in isolation from its context; it ignores that the steps of claim 1 are in chronological sequence — in particular, when step 2 is read with step 3, there is a clear link between the initial reference time and the inputting of the specific time; it ignores the word "reference" in the phrase "the reference time", which indicates that the initial reference time is used as a reference point in time. 119 The Full Court rejected Globaltech's third submission at [138]: First, contrary to Globaltech's submissions, the primary judge did construe the words "specific time". His Honour considered what the "specific time" represented at [250]. His Honour also considered how the "specific time" was required to be measured or expressed at [258]-[259]. Secondly, while there are arguments in favour of Globaltech's construction of the words "inputting the specific time beyond the reference time" in step 3, we consider the preferable construction to be that "beyond" does not mean anything more than "after" or "later than" and that the words do not require the inputted specific time to be referable to the initial reference time. The word "beyond", on a natural reading, does not mean "referable to". The wording of step 3 may be contrasted with that of step 2, which requires in terms that the time intervals be "referable to" the initial reference time. AMC's construction is supported by other aspects of the claims, in particular claim 6 [which the Full Court discussed further below]. 120 At [141] the Full Court noted the evidence of Globaltech's experts, Mr Ayris and Mr Edmonds, to the effect that the inputted time in step 3 is referable to the initial reference time, later stating "it is apparent that the primary judge considered Globaltech's experts' opinions to involve reading in words to the effect that the inputted time in step 3 must be referable to the initial reference time". 121 In relation to claim 6, the Full Court observed at [143]: In our view, contrary to [Globaltech's] submissions, claim 6 provides some assistance in resolving the construction issue concerning claim 1. Globaltech submits that claim 2 requires the inputted time to be measured by reference to the initial reference time. However, claim 2 does not state this. Rather, as with claim 1, there is an issue as to whether the inputted time needs to be referable to the initial reference time. Claim 6 does in terms require a relationship between the inputted time and the initial reference time, by stating that the instant in time (referred to in claim 2) is "representative of a duration of time relative to the initial reference time". As stated above, this suggests that when the patentee intends to indicate that the time of a core break is to be measured in a way that is referable to the initial reference time, it says so expressly. Globaltech's reference to Nichia v Arrow does not assist. Here, the two claims under consideration (claims 1 and 6) do not raise the "same issue of construction", but rather use materially different wording. 122 The Full Court did not comment specifically on Besanko J's construction of "predetermined time intervals" as there was no challenge to that construction. At [144] the Full Court upheld Besanko J's construction of claim 1 of the Patent as correct. Construction Relevant Principles 123 The principles which govern claim construction are well established and are not in dispute. The Full Court in Globaltech FC adopted at [92] the summary of principles set out by the Full Court (per Hill, Finn and Gyles JJ) in Jupiters Ltd v Neurizon Pty Ltd (2005) 65 IPR 86 at [67]: There is no real dispute between the parties as to the principles of construction to be applied in this matter although there is some difference in emphasis. It suffices for present purposes to refer to the following: (i) the proper construction of a specification is a matter of law: Décor Corporation Pty Ltd v Dart Industries Inc (1988) 13 IPR 385 at 400; (ii) a patent specification should be given a purposive, not a purely literal, construction: Flexible Steel Lacing Co v Beltreco Ltd (2000) 49 IPR 331; [2000] FCA 890 at [81] (Flexible Steel Lacing); and it is not to be read in the abstract but is to be construed in the light of the common general knowledge and the art before the priority date: Kimberley-Clark Australia Pty Ltd v Arico Trading International Pty Ltd (2001) 207 CLR 1; 177 ALR 460; 50 IPR 513; [2001] HCA 8 at [24]; (iii) the words used in a specification are to be given the meaning which the normal person skilled in the art would attach to them, having regard to his or her own general knowledge and to what is disclosed in the body of the specification: Décor Corporation Pty Ltd at 391; (iv) while the claims are to be construed in the context of the specification as a whole, it is not legitimate to narrow or expand the boundaries of monopoly as fixed by the words of a claim by adding to those words glosses drawn from other parts of the specification, although terms in the claim which are unclear may be defined by reference to the body of the specification: Kimberley-Clark v Arico at [15]; Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588 at 610; Interlego AG v Toltoys Pty Ltd (1973) 130 CLR 461 at 478; the body of a specification cannot be used to change a clear claim for one subject matter into a claim for another and different subject matter: Electric & Musical Industries Ltd v Lissen Ltd [1938] 4 All ER 221 at 224–5; (1938) 56 RPC 23 at 39; (v) experts can give evidence on the meaning which those skilled in the art would give to technical or scientific terms and phrases and on unusual or special meanings to be given by skilled addressees to words which might otherwise bear their ordinary meaning: Sartas No 1 Pty Ltd v Koukourou & Partners Pty Ltd (1994) 30 IPR 479 at 485–6 (Sartas No 1 Pty Ltd); the court is to place itself in the position of some person acquainted with the surrounding circumstances as to the state of the art and manufacture at the time (Kimberley-Clark v Arico at [24]); and (vi) it is for the court, not for any witness however expert, to construe the specification; Sartas No 1 Pty Ltd at 485–6. 124 At [94] the Full Court observed that it is usually not legitimate, in the absence of an express reference in the claim itself, to import into a claim features of the preferred embodiment: Rehm Pty Ltd v Websters Security Systems (International) Pty Ltd (1988) 81 ALR 79 per Gummow J at 89. Predetermined time intervals 125 The sole issue for construction is the "predetermined time intervals" integer. 126 The Respondents submit that predetermined time intervals are sequential time intervals that have a pre-known start and finish time relative to a known start time. That is, they are predictable at the commencement of operation of the device. 127 In support of their construction the Respondents point to the only example given in the Patent of a predetermined time interval as "an interval of one minute" (ie recordings taken at 1 minute intervals). They also refer to the common view of their experts that the predetermined time intervals integer requires that the orientation recordings which are taken are to be known in advance and be predictable. 128 The Respondents referred to the Macquarie Dictionary definitions of "determined" as "decided; settled; resolved" and "predetermined" as "to determine or decide beforehand". The complete definition of "predetermined" is: 1. To determine or decide beforehand. 2. To ordain beforehand; predestine. 3. To direct or impel beforehand to something. 129 AMC submits that the language and context of the phrase "predetermined time intervals" in claim 1 reveals the nature and purpose of those intervals, and their relevance to how the claimed method works. In particular, there is nothing in the language of "predetermined time intervals" which requires, as a matter of ordinary English, that they must all be same, or known in advance with any particular degree of precision. In their closing submissions AMC states: Further, once it is recognised that the method in claim 1 as a whole is not limited to a "synchronised" approach, in which the above ground timer is started at the same time as (or synchronised with) the downhole timer before the beginning of the operation, so as to relate the measurements of one to the other, it is apparent that there is no need for the downhole time intervals to be of known duration or predictable in advance by the operator of the method. The method works perfectly well by the two sets of measurements — the record of the time of core break made above ground, and the downhole time intervals at which orientation measurements are taken — being related to each other in the subsequent relating step, being step 5 of the method claimed in claim 1. AMC notes that this was recognised by both Besanko J and (in the context of the "synchronisation" issue) the Full Court. 130 Against that background, AMC submits that the phrase "predetermined time intervals" in claim 1 (and in claim 33) refers simply to time intervals which are predetermined by the operation of the method or system, such as by being programmed or set in hardware or software. There is no requirement that the precise progression of time intervals be known in advance or be predictable with any given level of accuracy (such as within "a given second"). Further, there is no requirement that the same outcome be generated each time, so that the intervals at which core orientation measurements are taken are identical. AMC contends that Besanko J's findings show that the intervals may, for example, be predetermined so as to fall within an acceptable range which is sufficient to enable the invention to work. 131 AMC submits that its construction accords with the ordinary meaning of the word "predetermined", and the use of the word in context in the method and system of the claims and Besanko J's correct construction of "predetermined time intervals" in Globaltech FI (and affirmed by the Full Court). Consideration 132 It was not in dispute that the phrase "predetermined time intervals" is not a term of art and it does not have a defined meaning in the specification which is inconsistent with, or other than, the ordinary English meaning of the words. 133 The Full Court noted at [120] that it was common ground in the earlier proceeding that two timers would need to be used to carry out the method of claim 1, one downhole (where the orientation measurements would be recorded) and one on the surface (where the person using the method would be). The need for two timers was also common ground in this proceeding. The Full Court went on to note that the claim does not refer to these timers or how they are to be operated. In particular, the claim does not refer to the two timers being "synchronised", or to the two timers being started at the same time (see also [130]). There is no requirement that the time measurements be related to each other prior to step 5, the relating step. 134 Justice Besanko held that the phrase "predetermined time intervals" in claim 1 does not require a method in which the precise duration of each time interval is the same or can be known in advance by the operator (at [278]). 135 The effect of the dictionary definitions of "determined" and "predetermined" relied on by the Respondents is that "predetermined" means to determine or decide beforehand, or to preordain. The construction adopted by Besanko J and advanced by AMC is consistent with these definitions. A series of time intervals which are designed, programmed or set so as to fall within a defined acceptable range, as opposed to being unconstrained, can fairly be described as "predetermined". The word predetermined, in and of itself, does not designate any degree of precise predictability. 136 There is nothing in the phrase "predetermined time intervals" which requires, as a matter of ordinary English, that they must all be same, or known in advance with any particular degree of precision. There is nothing in the claims or the specification which requires or suggests that the time intervals must be known in advance or be predictable with any given level of accuracy (such as within "a given second"). Rather, the Respondents seek to impermissibly read this in as a requirement of the claim. 137 It is important to recall that, as construed by Besanko J and the Full Court, the method of claim 1 is not limited to, and does not require, a "synchronised" approach, in which the above ground timer is started at the same time as (or synchronised with) the downhole timer before the beginning of the operation. At [127] the Full Court observed that claim 1 did not contain an express reference to a system of synchronisation, or counting forwards, and they did not consider there to be a proper basis to import that aspect of the preferred embodiment into the claim. There is thus no need for the downhole time intervals to be of known duration or predictable in advance by the operator of the method, so that the above ground time of core break can be made referable to those time intervals in step 3. Rather, according to the claimed method, the two sets of measurements — the record of the time of core break made above ground, and the downhole time intervals at which orientation measurements are taken — are related to each other in the subsequent relating step, being step 5 in claim 1 (at [130]). 138 The Respondents' experts set out their understanding of "predetermined time intervals" in the JER-I as follows: Mr Edmonds expressed that his understanding of this integer meant that the sampling intervals should be known in advance, such that at a given point in time, the operator should be able to say with confidence that an orientation sample is or is not being recorded. … Mr Berry directed the other experts to paragraph 17 of his affidavit, repeated here: My understanding of the meaning of the term "predetermined time intervals" in the AMC Patent is that it requires specific time intervals that, before measurements commence being taken (at those time intervals), I could say (and know) that measurements would be recorded at those specific time intervals. If I cannot predict or know in advance the time intervals when the orientation measurements were going to be recorded, then I do not consider that those time intervals can be regarded as "predetermined". 139 Professor Braunl referred to paragraph 18 of his affidavit in which he said: My understanding of the meaning of the term "predetermined time intervals" as used in the AMC Patent is it is referring to time intervals having an interval length, or intervals lengths, that is/are determined or known in advance. In other words, a time interval would be predetermined if I could tell or know what the interval length (or pattern of interval lengths) would be in advance of the interval occurring. This is based on the everyday English meaning of the word "predetermined" and what I have always considered the term to mean in my teaching, research and designing roles. 140 It is clear from these extracts of their evidence in the JER-I, and their oral evidence in the joint session, that each of the Respondents' experts considered that the method of the invention as asserted in claim 1 required "synchronisation" so that the timer in the downhole device counting out the time intervals and the above ground timer are started at the same time, such that the time intervals could be accurately predicted or known by the surface operator. Mr Edmonds and Mr Berry expressly agreed in the joint session that their understanding of how the method in claim 1 of the Patent works is that it requires there to be a synchronisation between an above ground timer and a below ground timer. A construction of claim 1 that was limited to a "synchronisation" approach was expressly rejected by Besanko J and the Full Court (at Globaltech FC [118]–[127] and [130]). 141 Professor Tapson's evidence as to his understanding of the phrase "predetermined time intervals" was consistent with the evidence he gave in the earlier proceedings. As he explained, the phrase simply refers to time intervals which are predetermined by the operation of the method or system, such as by being pre-programmed or deliberately constructed in hardware or software (or "hard-wired"). There is no requirement, either in the claims or the description, that the precise progression of time intervals be known in advance or be predictable within any given level of accuracy (such as within "a given second"). Further, there is no requirement that the same outcome be generated each time, so that the intervals at which core orientation measurements are taken are identical, exact or precise. 142 Professor Tapson explained that it is clear from the invention described and claimed in the Patent that the time intervals in the downhole tool only need to be timed to a sufficiently precise degree such that the invention works. Further, if orientation measurements were not predetermined and were rather taken at completely random times the downhole tool would not be able to function properly because it would not be possible to associate the orientation datasets with the relevant period of drill silence and it would not be possible to guarantee that an orientation measurement would be taken during the period of drill silence. Core break is not instantaneous, so any time measurement is representative rather than exact. So long as the time intervals are pre-set within an acceptable range that is not greater than the period of drill silence at core break, the method will ensure that at least one orientation measurement is captured during the period of drill silence. 143 The Respondents submitted that Professor Tapson adopted an unusual and strained construction, which they said changed in the course of his evidence, some of which was given by him after he had been given information about the operation of the V6 Tool and which led him to construe the claims in a manner that applied to the V6 Tool. 144 An examination of Professor Tapson's second affidavit shows that he gave his views on the construction of the phrase "predetermined time intervals" in the first part of his affidavit before he was given information about the V6 Tool. He later discussed infringement and referred back to his earlier construction. I found his explanation of predetermined time intervals to be consistent with his evidence in the earlier proceeding. 145 A similar assertion was made by Globaltech in the earlier Globaltech FI proceedings in relation to Professor Tapson's evidence as to whether synchronisation was required for the method of claim 1 being made with knowledge of the V5 Tool. Besanko J responded as follows at [238]: It seems to me that in the [Coretell] proceedings, Professor Tapson was focused on the alleged infringing product in those proceedings or the preferred embodiment of the claims in suit. A method involving synchronisation clearly falls within the terms of the claims and that was the focus of Professor Tapson's consideration in the previous proceedings. I do not think that it can be said from the passages I have identified that Professor Tapson identified the metes and bounds of the claims and has now changed his mind with a view to giving evidence that the Orifinder v3B and Orifinder v5 fall within the terms of the claims. That is not to say that the boundaries of claim 1, for example, as now stated by Professor Tapson were in his mind at the time of the previous proceedings. 146 Once it is recognised, consistent with the construction of Besanko J (upheld by the Full Court), that the method in claim 1 as a whole is not limited to a synchronised approach, it is apparent that there is no need for the downhole time intervals to be of pre-known duration or be predictable in advance by the operator of the method. The method works perfectly well by the two sets of measurements — the record of the time of core break made above ground, and the downhole time intervals at which orientation measurements are taken — being related to each other in the subsequent "relating step", being step 5 of the method asserted in claim 1. This was recognised by both Besanko J and (in the context of the "synchronisation" issue) the Full Court. 147 The relating step (in step 5 of claim 1) occurs after the predetermined time intervals (in step 2) and the time of core break (in step 3) have already been separately recorded or inputted. Those two data sets can be related to each other (in step 5) without the precise duration of the predetermined time intervals having been known or predictable in advance by the operator: Globaltech FC at [124]. 148 While it may be accepted that the best method section (which describes one embodiment) contemplates predetermined time intervals of one minute, the Full Court expressly stated with respect to claim 1 and the preferred embodiment that it is not usually legitimate, in the absence of an express reference in the claim itself, to import into a claim features of the preferred embodiment: Globaltech FC [94]. In the present case, the claim itself does not contain an express reference to the time intervals being of a fixed duration or being known in advance with precision. I do not consider there to be a proper basis to import this aspect of the preferred embodiment into the claim. 149 The context requires only that the time intervals be predetermined in the sense that the device is programmed to record the core orientation at time intervals which fall within an acceptable range, being a range that is sufficient to enable the method of the invention to work. In particular, it is necessary that the duration of the time intervals be within an acceptable range that is not greater than the period of drill silence allowed by the operator at the time of core break, so as to ensure that at least one orientation measurement is captured at that time. It is relevant in this respect, as recognised by Besanko J, that the event of core break itself is not instantaneous, so that it is impossible to be precise as to exactly when a core sample fractures. The example given in the "Best Mode(s)" section is for the operator to wait one minute. The V6 Tool 150 It was not in dispute between the experts as to how the V6 Tool works. 151 Mr Hejleh verified a V6 Tool product description and operational flowchart, further product description, circuit diagrams and extracts of UPIX source code. 152 The V6 Tool has two components. The "Oritool" which is sent down hole with the core drill, and the "Oripad" which remains with the operator at the surface. 153 Globaltech described the critical aspects of the operation of the V6 Tool in its written submissions as follows: The device is programmed to take orientation recordings at unknown time intervals. Those time intervals are determined by a random number generator. The way the random number generator works is complex. In a shortened form, an 8 bit timer is repeatedly counting from 0 to 255. A number between 0 and 255 is selected for the next time interval. That number is then divided by 10 and applied to a lookup table which generates an integer number between 1 and 14 for the next interval "analogous to throwing a die". However, the numbers do not occur with an equal likelihood – i.e. this is not a "fair die". The numbers are multiplied by a watch dog timer period of approximately 2.1 secs, to produce the intervals of anywhere between approximately 2.1 to 30 secs. The selection of which time interval will be generated, from recording to recording, is unknowable – i.e. "during any interval, you cannot predict what the next interval will be". It is not possible to know in advance, whether by the software, the programmer or a user, which of the different time ranges will be deployed from recording to recording. Furthermore, the base time intervals are themselves subject to slight variations due to the side-effects of a number of independent processes and events. 154 In the JER-I, the experts agreed that the following statements about the V6 Tool algorithm are correct: 1. The software algorithm is a random number generator. 2. It generates integer numbers between 1 and 14, analogous to the throwing of a die. In addition, we individually state the following: a) Tapson – The numbers do not occur with an equal likelihood, ie. this is not a "fair die". I say this based on my analysis of the flowchart, and confirmed it by observing the distribution of numbers in the test chart I was supplied with, as shown in my second affidavit at paragraph 81. 3. The numbers are multiplied by a watchdog timer period of approximately 2.1 seconds to produce intervals of approximately 2.1 to 30 seconds. In addition, we individually state the following: a) Edmonds – These base time intervals can be randomly varied due to the side effects of a number of independent processes and events. As I was not provided the raw test data with the timing information in Excel format the other experts were, I am unable to state an opinion on the specific characteristics of the base time variation. b) Berry – These base time intervals can be randomly extended due to the side effects of a number of independent processes and events. c) Braunl – The generated time intervals are not predetermined and unpredictable as can be seen from the attached charts. It is usual practice to have a bounded value range. d) Tapson – There are some small (perhaps 100ms) variations from this fundamental timing observable in the times in the test charts. These may be artefacts resulting from the use of an oscilloscope to measure the times, or they could be produced by noise in the WDT periods, or perhaps by some inconsistencies in the software process timing. 4. Therefore during any interval, you cannot predict what the next interval will be. 155 Mr Wilkinson's oral evidence was that the team of software engineers deliberately programmed the software of the V6 Tool so that the range of time intervals between orientation measurements was between 2 to 32 seconds, a range that would be acceptable to the user: … [W]e want the user to not have to sit there and wait up the top for a period of time – that the user would go, "I can't use this tool. This is ridiculous. It takes too long." So we had to make it a period that the user would accept as not being too long to wait. V5 Tool 156 The V5 Tool was found to infringe the claims of the Patent in Globaltech FI. In that case, Globaltech denied that the V5 Tool infringed on the basis (amongst others) that it did not have the "predetermined time intervals" integer: Globaltech FI at [176]. 157 The Respondents contend that the V6 Tool operates differently to the V5 Tool and as a result does not infringe the Contested Claims. Comparisons to the operation of the V5 were drawn in the cross-examination of the experts and in submissions, so it is useful to briefly outline the operation of the V5 Tool as relevant to this case. 158 Besanko J set out the experts' agreement as to the operation of the V5 Tool in Globaltech FI, including how it determined core orientation, at [172]: The V5 Orifinder has four modes according to the Amended Product Description, and five according to its User Guide. The four modes are Hibernation, Standby, Running, and Orientating; the User Guide refers also to a Sleep mode. Hibernation mode extends the battery life when on the shelf. It switches from Hibernation to Standby when subject to movement, and goes back to Hibernation when in Standby and not subject to movement for four hours. On the surface, the Oritool is typically in Standby mode. When switched from Hibernation to Standby mode, the Oritool's RTC (Real Time Clock) starts up from the factory reset value. The Oripad RTC is always running and hence reflects the time since it was powered up with batteries. This means that the RTCs in Oripad and Oritool do not reflect the same starting time. The Oripad is switched on and then used to switch on the Oritool, which goes from Standby to Running mode. This Oritool uses a watchdog timer (WDT), which starts up in Running mode. The WDT counts 12 mini-cycles of approximately 2 seconds each and performs an orientation measurement at the end of each approximately 24 second cycle. Each of these measurements is time-stamped with the time of the Oritool RTC and stored in memory. … When the driller wants to break the core, he stops the drill. The time of core break is recorded by pressing the "Mark" button on the Oripad – this triggers a Wait period of 33s, and then the time is recorded from the Oripad RTC (the Wait expiry timestamp). When the Oritool is returned to the surface, the Oripad communicates with the Oritool and sets it into Orienting mode (this is started by pressing "Find" on the Oripad). At this time the Oritool stops recording data. The Oripad sends the elapsed time since core break to the Oritool (the time since the Wait expiry timestamp), and the Oritool subtracts that elapsed time from its current RTC time to establish at what time on its RTC the core break happened. It then recovers the most recent orientation data prior to core break and uses that as the core orientation data. (Emphasis in original.) 159 The highlighted passages were the features of the V5 which were said by Globaltech to mean it fell outside the terms of claim 1. Besanko J then discussed three features of the V5 Tool which Globaltech submitted had the consequence that it fell outside the terms of claim 1. The following two features discussed at [174] and [176] are relevant to this proceeding: 174 First, claim 1 in the Patent is limited to a synchronised system and the Orifinder V5 does not employ such a system. As the experts have said in the case of the Orifinder V5, the Oripad sends the elapsed time since core break to the Oritool (the time since the Wait expiry timestamp), and the Oritool subtracts that elapsed time from its current RTC (Real Time Clock) time to establish at what time on its RTC the core break happened. As I will explain, unlike the Orifinder V3A, the respective RTCs in the Oripad and Oritool are not synchronised at the beginning of the process. … 176 Thirdly, step 2 in claim 1 in the Patent is limited to readings taken at predetermined time intervals and such intervals are precise time intervals. The time intervals at which readings are taken by the Oritool in the case of the Orifinder V5 are determined by a WDT, the accuracy of which can be affected by matters such as temperature and pressure. The WDT means that it cannot be said that readings are taken at predetermined time intervals. (Emphasis in original.) 160 The time intervals at which the orientation measurements were taken by the V5 Tool were 25 seconds plus or minus 10% (resulting from the use of a WDT), or, in other words, the time intervals of the V5 Tool were within a range from 22.5 – 27.5 seconds (the V5 range). Infringement by the V6 tool 161 The only dispute on infringement is whether the V6 Tool has the "predetermined time intervals" integer of claims 1 and 33. 162 The Respondents submit that the V6 Tool operates in a different way to the earlier devices, including the V5 Tool. The Respondents submit that the V6 Tool does not infringe the Contested Claims because the time intervals at which the orientation measurements are taken occur at "random" or unpredictable times somewhere within the range of about 2.1 to 32.2 seconds. The precise time interval is not capable of being known by the surface operator or determined beforehand. Each time interval is not predictable before generation. The V6 Tool orientation recordings are not made at predetermined intervals (in the sense of pre-known sequential time intervals), but rather at "unpredictable" time intervals. 163 The Respondents submit that the recording method of the V6 Tool which involves recordings being made at unpredictable points in the range 2.1 to 32.2 seconds utilises a different methodology (from the V5 Tool, the subject of Globaltech FI) as the time intervals vary by significantly greater than 10%. For example, an interval of 2.1 seconds might be followed by an interval of 30 seconds. That would be a variation of over 1000%, far exceeding the plus or minus 10% of the variability of the V5 Tool. 164 The Respondents submit that the fact that it is known that the "random" time intervals fall within a bounded range, and that the range is an acceptable range for the device to work, does not make them predetermined. I note that the word "random" was not used by the experts or parties in its strict mathematical sense, but in the sense of "unpredictable". 165 AMC submitted that the V5 range which was considered by Besanko J — the plus or minus up to 10% variation for each successive time interval in the V5 Tool — was significant having regard to the typical duration of a core sampling operation. AMC submitted that the expert evidence in the this proceeding made clear that such an operation could take over an hour in total, meaning that the time intervals cumulatively could vary by a period of several minutes from what might be expected by the operator had they been uniform and precise. As such, the precise duration of each time interval in the V5 Tool was simply unknowable by the operator, and advance knowledge of the duration of each time interval could not be used as the basis for practising the method. Consideration 166 The variation of the time intervals in the V6 is due in large part to the WDT which was also the source of variability in the V5 Tool. Each of the Respondents' experts were of the view that time intervals with the variation of the kind seen in the V5 Tool would not be predetermined. Of the Respondents' experts, only Mr Edmonds had prior knowledge of the V5 Tool (from giving evidence in the earlier proceeding). The other experts were asked questions about time intervals of the kind in the V5 Tool on a hypothetical basis in the joint session. 167 The experts agreed that due to the variation present in the V5 Tool time intervals, the surface operator could not predict in advance what any particular time interval would be within the V5 range of 22.5 to 27.5 seconds, but that the operator knew that the interval would be within that bounded range. 168 In cross examination, Mr Edmonds agreed that in the case of the V5 Tool (and its plus or minus 10% variability) the operator on the surface would not be able to say with confidence when a given time interval would end within that range. He reiterated his view (contrary to Besanko J's finding) given in the earlier proceedings that the V5 time intervals were not predetermined, and agreed that his reasons for his conclusion were also his reasons for considering that the time intervals of the V6 Tool were not predetermined, adding that the variation is now greater than for the V5 Tool. 169 Mr Edmonds confirmed that despite the unpredictable variation in the length of time intervals in the V5 Tool, the orientation method employed by the V5 Tool worked. Mr Edmonds explained that the V5 Tool worked because there was a real time clock on the downhole tool that was keeping a synchronised time with the timer on the surface, and the orientation measurement (taken at the time interval within a known range) was time stamped against the real time clock so that the operator could look up the particular measurement at core break after the tool was back on the surface. As a result of the time intervals being within a known range, the surface operator would know with confidence that if they waited for a period of 27.5 seconds or more (the maximum value in the V5 range), that at least one orientation measurement would have been taken. 170 Mr Edmonds' evidence as to why the V5 Tool worked was: [Counsel]: And adopting a practical approach to this, you need to have an upper bound which makes sense in terms of the system being usable so the operator doesn't have to wait an hour, for example; correct? Edmonds: Well, I guess – I guess in the context of the drilling, I don't – I don't know if an hour – it – it would depend on the circumstances, but, yes, there would be an upper limit to – to it, whatever it was set to be. [Counsel]: And the second reason which is interrelated why the v5 tool worked was the one you referred to, which was that each orientation measurement was timestamped by reference to a real-time clock in the v5 tool; correct? Edmonds: Yes, that's correct 171 The only essential difference between the V5 Tool and the V6 Tool is the incorporation into the latter of the algorithm which means that each time interval was in the range of 1 to 14 WDT cycles. 172 The V6 Tool operates similarly to the way Mr Edmonds explained the V5 operated, in that the random and unpredictable time intervals fall within a bounded range, albeit a wider range than the V5 range. 173 The experts agreed that the time intervals counted out by the V6 Tool are not unconstrained, but rather, are within a range of approximately 2.1 to 30 seconds (or a little more, taking into account possible sources of variation additional to the algorithm and the random number generator). To use Mr Berry's language, the time intervals are within an "upper bound" that is known in advance by reason of the design of the system. 174 Professor Tapson's evidence was that a 2 second time interval would work acceptably, but a longer interval, such as 10 minutes, would be impractical. 175 Professor Braunl stated in relation to predetermination during the expert session: [I]n order to be predetermined it could all just be the same interval or there could be different intervals, as long as they have a method to establish what that interval will be. So there could be pattern, could all just be, I don't know, double of that up to a certain value, or it could be any other method that I can calculate in advance. 176 Professor Braunl also considered that the time intervals with variation of the kind found in the V5 were not predetermined time intervals: I think it also depends because I think what you referred to earlier was because the drilling operation takes up to an hour, the – the time difference could be several minutes. If there's a time difference of several minutes I would say that it's – it's not – it's not predetermined. Of course, if you shrink that interval to – you had, what's that, five seconds. If you shrink that to a fraction of a 5 second, you might argue, well, maybe that is still predetermined. That's just a margin of error. But, you know, plus one is 10 per cent. That's 20 per cent variation times a certain factor. So if there's a difference in outcome of several minutes, I would probably say it's not predetermined. 177 Professor Braunl agreed with the proposition put to him that whether or not time intervals are predetermined doesn't depend on the particular source of the randomness, whether it's an algorithm or some other source; it's the fact of the randomness and perhaps a consideration of the extent of it which led him to conclude that the time intervals of the V6 Tool are not predetermined. 178 Mr Berry read into the Patent a requirement that the time intervals were equal. Neither the specification nor the claims impose such a requirement: It's not an explicit requirement in the patent, but if – reading it as a – an engineer tasked – if I was tasked to go and build this thing, given the patent, I would naturally assume we're going to – we would start using a regular set of time intervals. In other words I would say, "Right. I'm going to sample this thing at once a minute", or once every second, or whatever it is. There is nothing in the patent that would direct me to use variable time intervals. So I – I think it's implicit that the – that – in the patent that the time intervals are all the same. … it's certainly not explicit. 179 The V6 Tool time intervals are not truly random. The V6 Tool is programmed to generate time intervals that fall within the range of 2 to about 32.5 seconds, ie a known range, a range over which the V6 Tool will work. The algorithm may be represented by a formula such as T = N x 2.1 seconds, where T is the time interval and N is a number from 1 to 14. If the time intervals were not within a bounded range, and were able to be generated anywhere between 2 seconds and 24 hours (as an example), the V6 Tool would be at the very least uncommercial as the surface operator would need to wait the maximum time that a time interval could be from the core break to be sure that an orientation measurement had been made. Hence, although the surface operator does not know and cannot predict the length of the next time interval, they do know that it will fall within the range and that the wait period will therefore be 32.5 seconds (or slightly longer to be safe). The surface operator also knows that the orientation measurement will be time stamped along the real time clock so that it can be identified. 180 The Respondents' experts raised the prospect of additional sources of randomness (over and above the algorithm with its random number generator) that would also contribute to the variation between successive time intervals in the V6 Tool. These include "side effects" such as inaccuracies caused by the equipment used, including variation in the WDT or temperature changes. As Mr Berry pointed out the time interval algorithm might be better represented as T = (N x 2.1) + X, where X is the additional source of randomness. These additional sources of randomness make no difference to whether the time intervals are pre-determined or not, as they are the same sources of randomness that were present in the V5 Tool, and which did not prevent the time intervals from being "predetermined" within an acceptable range. 181 The orientation measurement recorded at each sampling interval is associated with a precise time stamp generated by the Real Time Clock (RTC) in the V6 Tool. Thus, the time of each time interval is in fact precisely recorded, and can be related, in step 5, to the above ground time measurement for the time of core break to obtain an indication of the orientation of the inner tube assembly, and thus the core, at that time. This aspect was also present in the V5 Tool as Besanko J observed: Globaltech FI at [280]. To adopt his Honour's words, the V6 Tool determines when the orientation readings are taken, and while it must fulfil the requirement of readings being taken at predetermined time intervals, there is no further accuracy issue because the timestamping is done by reference to the RTC. 182 For these reasons I consider that the V6 Tool has the feature of "predetermined time intervals" and infringes claims 1 and 33 and the remainder of the Contested Claims. As the predetermined time interval integer was the only integer in dispute, the V6 tool infringes the Contested Claims. Infringement and accessorial liability of respondents 183 I have found that the V6 Tool infringes the Contested Claims. 184 The Respondents admit that since 25 February 2019, Globaltech Corporation has manufactured and supplied to BLYA in Australia the TruCore™ UPIX core orientation device (the V6 Tool). The Respondents also admit that BLYA has acquired V6 Tools from Globaltech Corporation and sold or supplied, or offered for hire and hired out to customers in Australia, the V6 Tools. 185 AMC submits that all four Respondents (not just Globaltech Corporation and BLYA) are directly liable for infringement of those of the Contested Claims which are directed to the core orientation system by the sale and supply of the V6 Tool because when used each tool takes all of the integers of the Contested Claim. 186 AMC also contends that the Respondents are indirectly liable for infringement of the Contested Claims on the following grounds. 187 First, AMC contends that the Respondents have directly infringed those of the Contested Claims which are method claims by supplying the V6 Tools, pursuant to s 117 of the Act. Related to this is AMC's contention that each of the Respondents has authorised, or procured, induced or joined in a common design with customers or end users to whom the V6 Tool has been supplied to use as a core orientation tool, and have thereby indirectly infringed the Contested Claims. 188 Second, AMC contends that each of the Respondents has authorised the infringing acts. 189 Third, AMC contends that each of the Respondents has engaged in a common design with the others, and/or is a joint tortfeasor in the other's acts of infringement. 190 The Respondents deny that GTCPL and BLY have infringed the Patent, or that they are liable as joint tortfeasors or otherwise for infringement. They submit that GTCPL does not trade, its sole purpose being to provide management services to Globaltech. GTCPL has not supplied the V6 Tool in Australia. They submit that BLY is a holding company which has never supplied any of the V6 Tools. Relevant Principles Ground 1 - s 117 191 Section 117 of the Act states: 117 Infringement by supply of products (1) If the use of a product by a person would infringe a patent, the supply of that product by one person to another is an infringement of the patent by the supplier unless the supplier is the patentee or licensee of the patent. (2) A reference in subsection (1) to the use of a product by a person is a reference to: (a) if the product is capable of only one reasonable use, having regard to its nature or design—that use; or (b) if the product is not a staple commercial product—any use of the product, if the supplier had reason to believe that the person would put it to that use; or (c) in any case—the use of the product in accordance with any instructions for the use of the product, or any inducement to use the product, given to the person by the supplier or contained in an advertisement published by or with the authority of the supplier. 192 Schedule 1 to the Act includes the following definition of "supply": supply includes: (a) supply by way of sale, exchange, lease, hire or hire-purchase; and (b) offer to supply (including supply by way of sale, exchange, lease, hire or hire- purchase). 193 The question whether "the use of a product would infringe a patent" raised in s 117(1) turns on whether such use would infringe the exclusive rights given to the patentee. These rights are defined in s 13. Section 13(1) provides that "[s]ubject to this Act, a patent gives the patentee the exclusive rights, during the term of the patent, to exploit the invention and to authorise another person to exploit the invention". Section 13(3) provides that a patent has effect throughout the patent area. 194 Schedule 1 to the Act includes the following definition of the word "exploit": exploit, in relation to an invention, includes: (a) where the invention is a product—make, hire, sell or otherwise dispose of the product, offer to make, sell, hire or otherwise dispose of it, use or import it, or keep it for the purpose of doing any of those things; or (b) where the invention is a method or process—use the method or process or do any act mentioned in paragraph (a) in respect of a product resulting from such use. 195 Section 117, has been considered by the High Court in Northern Territory v Collins (2008) 235 CLR 619 (Northern Territory) and Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 304 ALR 1 at [300]–[302] and by the Full Court in Generic Health v Otsuka Pharmaceutical Co Ltd (2013) 100 IPR 240 at [60]–[64] and recently in Hood v Down Under Enterprises International Pty Ltd [2022] FCAFC 69 at [33]–[36] and [104]–[110]. 196 Section 117(2)(a) addresses "only use" in contrast to "known use" in s 117(2)(b) and "instructed use" in s 117(2)(c): Northern Territory per Hayne J at [35]. 197 Section 117 imposes liability on the supplier where the supply would otherwise not infringe but where use of the product supplied by the person to whom it is supplied would infringe: Northern Territory at [42] per Hayne J. Ground 2 - Authorisation 198 Section 13(1) provides that a patent gives the patentee the "exclusive rights" during the relevant period "to exploit the invention and to authorise another person" to exploit the invention. As Gummow J observed in Rescare Ltd v Anaesthetic Supplies Pty Ltd (1992) 25 IPR 119 at 153, exploitation and authorisation are distinct concepts. 199 The word "authorise" as used in s 13(1) is to be taken by analogy to have the meaning it has in the comparable context of the Copyright Act 1968 (Cth): Bristol-Myers Squibb Co v FH Faulding & Co Ltd (2000) 97 FCR 524 at [97]. In the copyright context, Gibbs J (as his Honour then was) said in University of New South Wales v Moorhouse (1975) 133 CLR 1 at 12, that a person could not be said to authorise an infringement unless they had some power to prevent it, although express or formal permission or sanction, or active conduct indicating approval was not essential to constitute an authorisation. Inactivity or indifference exhibited by acts of commission or omission may reach a degree from which an authorisation or permission may be inferred. 200 This approach has been applied in the context of patent infringement in a number of cases including Inverness Medical Switzerland GmbH v MDS Diagnostics Pty Ltd (2010) 85 IPR 525 (Inverness) at [194] and Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd (2014) 110 IPR 82 (Streetworx) per Beach J at [390]–[396]. In Inverness, Bennett J said at [194]: It is an infringement of the patentee's exclusive rights not only to exploit an invention but also to authorise another person to exploit it: s 13 of the 1990 Act. The word "authorise" in s 13 has the meaning in the comparable context of the Copyright Act. … A person authorises an infringement if he or she "sanctions, approves or countenances" the infringement. … s 13 at least embraces the case where a person "made himself a party to the act of infringement". (Citations omitted.) 201 In the Roadshow Films Pty Ltd v iiNet Ltd (2012) 95 IPR 29 (iiNet), a copyright case involving an internet service provider, the High Court expressed the view that "while 'countenancing' may encompass inactivity, support and encouragement, it is not enough to make the party a secondary infringer for authorisation of the conduct". An alleged infringer must, their Honours said, have a power to prevent the primary infringements. This was said in the context of the express requirement in s 101(1A) of the Copyright Act 1968 (Cth) that certain matters must be taken into account in determining authorisation, including the extent of the power to prevent the doing of the act, the relationship between the parties and any reasonable steps taken to prevent or avoid the doing of the act. 202 In Apotex Pty Ltd v Les Laboratoires Servier (No 2) (2012) 293 ALR 272 (Apotex), Bennett J summarised the principles of authorisation and observed at [27] to [29]: 27 There cannot be an act of authorisation without an act of primary infringement (RCA Corporation v John Fairfax Sons [1981] 1 NSWLR 251 at 257). A secondary infringement is completed only when the primary infringement has taken place (Roadshow Films Pty Ltd v iiNet Pty Ltd (2012) 286 ALR 466 at [94] per French CJ, Crennan and Kiefel JJ). In iiNet at [68]–[70], French CJ, Crennan and Kiefel JJ discussed aspects of "authorisation" of breach of copyright. iiNet, an internet service provider, had no direct power to prevent the primary infringements and could only ensure that result indirectly by terminating the contractual relationship it had with its customers. Their Honours expressed the view that while "countenancing" may encompass inactivity, support and encouragement, it is not enough to make the party a secondary infringer for authorisation of the conduct. An alleged infringer must, their Honours said, have a power to prevent the primary infringements. This was said in the context of the express requirement in s 101(1A) of the Copyright Act 1968 (Cth) that certain matters must be taken into account in determining authorisation, including the extent of the power to prevent the doing of the act, the relationship between the parties and any reasonable steps taken to prevent or avoid the doing of the act. 28 Apotex P/L emphasises that "control is a significant element in a finding of authorisation" and refers to Gummow and Hayne JJ's comments that iiNet only had an indirect and "attenuated" power to control the primary infringements (at [146]). On the other hand, as Servier says, control is not a necessary element of authorisation. Servier points out that Gummow and Hayne JJ, in their Honours' discussion of authorisation in iiNet at [122], do so in terms of "clothe with authority, particularly legal authority, thereby giving a right to act" and not in terms of "control". This definition of "authorise" was a "matter of ordinary usage" and was "without the subsequent accumulation of case law" (at [122]). However, their Honours declined to accept that indifference or countenancing amounted to authorisation. 29 Inactivity is not enough to constitute authorisation without a clear power, more than an indirect or attenuated power, to prevent the primary infringements: iiNet at [69] and [143]. Neither mere facilitation nor mere indifference may be sufficient to constitute authorisation: Australasian Performing Right Association Ltd v Metro on George (2004) 210 ALR 244; [2004] FCA 1123 at [18]–[19]; Nationwide News Pty Ltd v Copyright Agency Ltd (1996) 65 FCR 399 at 422; 136 ALR 273 at 295; 34 IPR 53 at 76 (Nationwide News). Knowledge that infringement is likely to occur does not necessarily amount to authorisation (compare copyright: Nationwide News at FCR 424A; ALR 296; IPR 77). 203 For "authorise", no intention to infringe or knowledge that the relevant acts would be likely to infringe is necessary. More particularly, knowledge of the patentee's intellectual property rights does not need to be shown. All that may be required is knowledge of the acts that constitute infringement rather than their legal characterisation as infringing acts: Streetworx per Beach J at [394]. Ground 3 – Joint tortfeasorship 204 Liability on the basis of joint tortfeasorship may arise in patent infringement proceedings as patent infringement is a statutory tort: Collins v Northern Territory (2007) 161 FCR 549 at [24]–[30] per French J (Collins). French J observed at [25]: What was, and still is, required was conduct of the kind that would characterise a person as a joint tortfeasor at common law. As was said in the 16th ed of T[e]rell on The Law of Patents, Sweet & Maxwell, London, 2006 at p 8–40: Persons may be liable for infringement if their acts are such as would make them joint tortfeasors under the general law. Liability as a joint tortfeasor has been said to require concerted action with another in the commission of the infringement or a "concerted design": Morton-Norwich Products Inc v Intercen Ltd [1978] RPC 501 at 513 (per Graham J). … mere facilitation of an infringement does not amount to procuration of or involvement in it: Molnlycke AB v Procter & Gamble (No 4) [1992] RPC 21 at 29; [1992] 4 All ER 47 at 55 (per Dillon LJ). 205 The relevant principles were usefully extracted by Moshinsky J in Playgro Pty Ltd v Playgro Art & Craft Manufactory Limited (2016) 117 IPR 489 at [150]–[153]: 150 The liability of a joint tortfeasor was considered in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574; 141 ALR 1. Brennan, Dawson and Toohey JJ said (at CLR 580; ALR 4): As was said in The Koursk [[1924] P 140 at 159–160], for there to be joint tortfeasors "there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage". Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort. 151 In the same case, Gummow J said (at CLR 600; ALR 19): In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The Koursk. Scrutton LJ there spoke of "two persons who agree on common action, in the course of, and to further which, one of them commits a tort", saying that in such a case there is one tort committed by one of them "in concert with another". Sargant LJ accepted the proposition that persons are joint tortfeasors when their "respective shares in the commission of the tort are done in furtherance of a common design" so that those who "aid or counsel, direct, or join" in commission of the tort are joint tortfeasors. (Footnotes omitted.) 152 In Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1; 65 IPR 409; [2005] FCA 972, which involved allegations of copyright infringement, Tamberlin J said (at [135]–[136]): 135 The authorities indicate that in order to make out a case of joint tortfeasor liability on the basis that copyright infringement is a statutory tort, it is necessary to establish that there has been a common design by the respondents to participate in or induce or procure another person to commit an act of infringement. In WEA International Inc v Hanimex Corporation Ltd (1987) 17 FCR 274 at 283; 77 ALR 456 at 465; 10 IPR 349 at 359, Gummow J points out that in circumstance where two or more persons assisted or concurred in or contributed to an act causing damage this is not of itself sufficient to found joint liability and there must also be some common design. In other words, there must be something in the nature of concerted action or agreed common action. It is not necessary that there must be an explicitly mapped out plan with the primary offenders. Tacit agreement between the parties is sufficient: see Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 609 per Mustill LJ; Molnlycke AB v Procter & Gamble Ltd (No 4) [1992] 1 WLR 1112; [1992] 4 All ER 47 at 52; [1992] RPC 21 at 29 per Dillon LJ (with whom Leggatt LJ agreed). In Intel Corporation v General Instrument Corporation (No 2) [1991] RPC 235 at 241, Aldous J stated that: that capacity to control will not establish a common design. It is the extent of the control actually exercised or the involvement which is relevant and, in particular, whether it amounts to a common design to do the acts complained of. 136 The relevant authorities were considered by the High Court in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 580–581; 141 ALR 1 at 3, where the joint judgment referred to the necessity for two or more persons to act in concert in committing the tort. At 600, Gummow J cited with approval the comment of Sargent LJ in The Koursk [1924] P 140 at 159–60 that persons are joint tortfeasors when their respective shares in the commission of the tort are done in furtherance of a "common design" so that those who aid or counsel, direct or join in the commission of the tort are joint tortfeasors. 153 See, on appeal, Cooper v Universal Music Australia Pty Ltd (NSD) (2006) 156 FCR 380; 237 ALR 714; 71 IPR 1; [2006] FCAFC 187 at [87] per Branson J (Universal Music v Cooper), [173] per Kenny J. In Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2016) 329 ALR 522; [2016] FCAFC 22, Nicholas, Yates and Wigney JJ set out the above passage from Universal Music v Cooper and said (at [142]): We respectfully agree with Tamberlin J's summary of the authorities. We would add that it is not necessary that the parties to the common design intend to infringe. As Mustill LJ (with whom Ralph Gibson and Slade LLJ agreed) observed in Unilever Plc v Gillette (UK) Ltd [1989] RPC 583 at 602, it is not necessary to show "a common design to infringe … it is enough if the parties combine to secure the doing of acts which in the event prove to be infringements": see also Unilever v Chefara Properties Ltd [1994] FSR 135 at 138. See also Caterpillar Inc v John Deere Ltd (1999) 48 IPR 1; [1999] FCA 1503 at [21]–[25] per Carr, Sundberg and Kenny JJ. See also: Seiko Epson Corporation v Calidad Pty Ltd (2017) 133 IPR 1 per Burley J at [440]–[441] (Calidad). 206 Merely because companies are closely associated, even if there was overall control (both financial and voting) and the companies regarded themselves as a single economic unit, does not establish that they are acting in concert or pursuant to a common design: Apotex at [26] citing Laddie J at 490 in Mead Corporation v Riverwood Multiple Packaging Division of Riverwood International Corporation [1997] FSR 484. 207 In Apotex Bennett J observed at [26] the fact that companies regard themselves as vertically integrated is not sufficient, of itself, to establish joint tortfeasorship by common design. The fact that two parties form part of the same global group of companies and that a manufacturer and distributor relationship exists between them is not, alone, sufficient to support an arguable case. However, her Honour noted that these may be factors that, together with other factors, are relevant to establishing joint tortfeasorship. 208 The High Court (per Brennan CJ, Dawson and Toohey JJ) had "no doubt" that Channel 7 and Channel 9, the respondents to a defamation action, were joint tortfeasors in Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 (Thompson). In that case, Channel 9 produced a live program from its studios in Sydney. Pursuant to a licence agreement between Channel 7 and a related corporation of Channel 9, the program was received by a Channel 7 transmitting site on Black Mountain in the ACT. From there the program was relayed to the studios of Channel 7 in the ACT from where it was broadcast throughout the ACT and adjoining areas of NSW. 209 Chief Justice Brennan, Dawson and Toohey JJ observed that the difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage (at 580). They continued at 581: The transmission of the television program in question was the result of concerted action on the part of Channel 9 and Channel 7 and that made them joint tortfeasors. In the same way, the journalist, printer, publisher and distributor are joint tortfeasors in respect of the ultimate publication of a libellous periodical or book. In the present case, PBL had licensed Channel 7 to transmit the program in question. The relevant licence agreement established the common design, namely, the transmission of the program by Channel 7 to the Australian Capital Territory and adjoining areas in pursuit of commercial gain. Whilst Channel 7 had the right not to broadcast any particular program or part of a program, where a program was in fact broadcast it was because Channel 9 and Channel 7 acted together — in concert — to achieve a common end. 210 At 602, Gummow J (Gaudron J agreeing) rejected the submissions that Channel 7 and Channel 9 were not joint torfeasors, stating: In the present case the licence agreement existed for the common commercial benefit of Channel 7 and Channel 9. The material supplied pursuant to that licence agreement was, given its nature, for transmission forthwith in the Territory. The television programme sued upon was not capable of use for a purpose which, in respect of the rights of the appellant, was a lawful one. 211 The High Court in Thompson referred to the English Court of Appeal case of The Koursk [1924] P 140. That case, Bankes LJ observed, was the first reported case to consider the question of what constituted a "joint tort". The Koursk was one of five ships travelling at night, without lights, in a line abreast with set spacing between them and following a prescribed zig zag course. Just prior to 3:00 am, the Koursk got out of position and was observed heading for another ship, the Clan Chisholm. The Clan Chisholm turned but did not reverse engines. The Koursk collided with the Clan Chisholm which in turned collided with another ship, the Itria, which sank. Ultimately, the question before the Court of Appeal was whether the Koursk and the Clan Chisholm were joint tortfeasors. If so, the Itria could not recover from the Koursk as it had already recovered judgment against one of the joint tortfeasors, the Clan Chisholm, in an earlier proceeding. 212 At 152 Bankes L.J. found the acts of negligence to be separate, stating "there is no possible connection between them. They began, they continued, and they ended as separate acts, and they never became a joint act". 213 Lord Justice Scrutton found at 157 that there were two separate and independent acts of negligence which resulted in the collision. The Koursk and the Clan Chisholm were not joint tortfeasors of the same tort, but separate tortfeasors of two different torts. 214 At 159, Sargant L.J. quoted from Clerk and Lindsell on Torts, (7th ed, Sweet & Maxwell, 1921) pp 59–60, observing that in order to constitute joint tortfeasance there must be concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage. The Respondents' Conduct Boart Longyear corporate arrangements 215 In September 2018 BLY announced that it had acquired a majority shareholding in Globaltech Corporation. The announcement stated that: Boart Longyear's continued investment in GlobalTech builds our in-house knowledge tied to electronic instrumentation and data collection in the mineral exploration and mining industry. This is an intentional decision to further support our Geological Data Services strategy that is fully focused on developing digital technologies and services and delivering resource-defining information for mining clients. BLY holds its 58.32% of Globaltech Corporation in its subsidiary, Votraint No 1609 Pty Ltd (Votraint), of which it presently owns 100% of the share capital. A February 2022 company search showed Votraint as a minority shareholder in BLYA, with BLY holding the majority of shares. The decision to acquire the majority shareholding in Globaltech Corporation was made by the BLY board. 216 According to Ms Emrick, at the time of the acquisition of Globaltech Corporation, BLY did not have its own R&D capacity so it invested in an entity that did. At that time BLYA had been renting out Globaltech's V5 Tool. 217 On 4 February 2022, BLY converted to a proprietary company and became Boart Longyear Pty Ltd. Prior to 4 February 2022, BLY was listed on the Australian stock exchange (as BLY). Since that date the ASX listed entity is Boart Longyear Group Ltd, a Canadian entity (BLG), which is now the ultimate holding company of BLYA and BLY. 218 Ms Emrick confirmed that Boart Longyear only has the one board, which prior to the February 2022 restructure, was the board of the holding company, BLY (now BLG). Ms Emrick agreed that the board was responsible for guiding and directing its controlled entities. The CEO of BLY, Jeff Olsen, is also a director of BLYA. Ms Emrick has been a director of BLYA since February 2017. 219 Longyear TM Inc (LTM) is the registered owner of the TRUCORE and TRUCORE UPIX trade marks. BLYA has an exclusive licence from LTM to use LTM's trade marks in Australia. LTM is also the registered owner of the Boart Longyear 5 blade impeller device mark, pictured below: (BLY logo) 220 LTM is also the registered owner of the TRUCORE and TRUCORE UPIX marks in Australia. 221 Prior to its conversion to a proprietary company, BLY was the ultimate holding company for BLYA, LTM and the rest of the Boart Longyear entities around the world. 222 In their submissions the Respondents seek to rely on the corporate structure after the restructure wherein since 4 February 2022, BLG has been the ultimate holding company. Given that the Respondents admit that Globaltech Corporation has manufactured and BLYA has supplied the V6 Tool since 25 February 2019, the corporate arrangements of BLY prior to 4 February 2022 are relevant to the consideration of liability. 2019 Boart Longyear Annual Report 223 The Boart Longyear 2019 Annual Report describes "Boart Longyear" as the global leading integrated provider of drilling services, drilling equipment and performance tooling for mining and mineral drilling companies. Boart Longyear is said to offer a comprehensive portfolio of technologically advanced and innovative drilling services and products. Boart Longyear operates through two divisions: "Global Drilling Services" and "Global Products". 224 The 2019 Annual Report bears the BLY logo on the cover and begins with "WHO WE ARE. Established in 1890, Boart Longyear is celebrating its 130th year as the world's leading provider of drilling services…". The President and CEO, Jeff Olsen, commences his report to shareholders: "At Boart Longyear, we continue our commitment to improving our financial, operating, and safety performance. … [O]ur team has worked diligently to deliver on these commitments during 2019…". The first page of the 2019 Annual Report states that "[o]ur Corporate Governance Statement may be found at www.boartlongyear.com/corporate-governance". I will refer to the website: www.boartlongyear.com as the BLY website. 225 Under the heading "Directors' Report" on page 3 of the 2019 Annual Report, BLY is described as "the Parent", and together with its "controlled entities" it is referred to as "the Company" throughout the Annual Report. As at the date of the 2019 Annual Report, BLY was the holding company of all the Boart Longyear entities. Amongst their responsibilities, the Board of BLY guided and directed the controlled entities. 226 Note 28 to the Consolidated Financial Statements in the Annual Report lists the many principal subsidiary companies of BLY. With the exception of Globaltech Corporation, BLY owns 100% of each of the principal subsidiary companies listed, including LTM, BLYA and BLY Company, which is discussed below in relation to the BLY website. 227 In the Corporate Information section at the rear of the 2019 Annual Report, the Global Headquarters and Boart Longyear Investor Relations is listed at an address in West Valley City, Utah in the United States, and the registered office is located in Adelaide, South Australia. BLY website and social media 228 According to Ms Emrick, as at January 2019, and continuing as at the date of her affidavit, the BLY website was managed by CSC Global, which is paid for its services by BLY Company. BLY Company is responsible for managing, monitoring, creating and/or posting content on the BLY website and social media. 229 According to Mr Brown, on 1 October 2020, he accessed the BLY website. The "corporate profile" page of the BLY website identifies "Boart Longyear" as being headquartered in Salt Lake City, Utah, USA and listed on the Australian Securities Exchange in Sydney, Australia (ASX:BLY). The BLY website displays the BLY logo on each page. 230 The "legal" page of the BLY website states that the "website is operated by Boart Longyear and its affiliates and subsidiaries (collectively referred to as 'us', 'we' or 'Boart Longyear')". Under the heading "Intellectual Property Considerations", the website states "All trademarks, service marks and trade names used on the Website are trademarks or registered trademarks of Boart Longyear". The domain registration information lists the registrant contact as Boart Longyear. 231 In correspondence dated 11 February 2019, and repeated in their letter of 20 February 2019, BLYA's lawyers noted that the Boart Longyear website is not managed or controlled by BLYA, such that BLYA was unable to comply with a demand that certain materials be taken off the website. 232 According to Mr Brown, on 1 October 2020, he accessed the icons with hyperlinks to Boart Longyear social media platforms on the BLY website. One of those platforms was the Boart Longyear YouTube channel at the URL https://www.youtube.com/user/BoartLongyear1. Mr Brown viewed a training video for the TruCore UPIX device on BLY's YouTube channel. The video is discussed later. February 2019 letter 233 In February 2019, Boart Longyear sent a letter to "Dear Valued TruCore Customer" (February 2019 letter). The BLY logo was at the top left of the letter and the letter was signed by Ms Emrick as "Regional General Counsel Asia Pacific" without reference to a company. There was no reference to BLYA in the letter. The letter stated: As you are aware, a decision was recently made by the Federal Court in proceedings issued by Reflex/AMC against GlobalTech in relation to certain intellectual property used in the TruCore Tools manufactured by GlobalTech. Boart Longyear understands that Reflex/AMC has recently written to various customers regarding the asserted effect of the Court's decision in those proceedings upon those customers' continued use of any TruCore Tools supplied by Boart Longyear. It is important to note that the Court's orders are only enforceable by Reflex/AMC against GlobalTech directly, being the only defendant to that action, and only in relation to any TruCore Tools that are owned by GlobalTech, which excludes any tools currently supplied by Boart Longyear. On 23 January 2019, GlobalTech filed its appeal in the Proceedings which seeks to overturn the Court's original decision. The appeal is anticipated to be heard in May this year. We understand that GlobalTech is confident that the Court's original decision will be overturned. Whilst Boart Longyear is unable to make any comment regarding the merits of the Court's original decision or as to the prospects of the appeal, we note that GlobalTech has developed an alternative solution for its TruCore Tools which addresses the issues raised in the proceedings. As a precautionary measure, pending the outcome and determination of GlobalTech's appeal, Boart Longyear is currently in the process of replacing all of its existing and new TruCore Tools to incorporate that alternative solution (New Version TruCore Tools). Our team will be in touch with you shortly to arrange for the New Version TruCore Tools for you. (Emphasis added.) Globaltech Corporation and GTCPL corporate arrangements 234 As noted above, at the relevant times since around September 2018, the majority of the shares in Globaltech Corporation were held by Votraint, a subsidiary of BLY. 235 Mr Hejleh is the Managing Director of both Globaltech respondents. Globaltech Corporation shares two of its seven directors (Mr Hejleh and Mr Stewart) with GTCPL, which has four directors. Mr Klass and Mr Anwar are the other two directors of GTCPL. Until 1 October 2018, Mr Klass and Mr Anwar were also directors of Globaltech Corporation. GTCPL does not hold shares in Globaltech Corporation and vice versa. 236 Mr Hejleh and Mr Stewart are the executive directors of Globaltech Corporation. Four of the five non-executive directors of Globaltech Corporation are also "Boart Longyear" employees: Mark Dogan, Brian Durrant, Robert Buto and Mike Ravella. These non-executive directors are not involved in the day to day operations of Globaltech Corporation. 237 Globaltech Corporation and GTCPL have the same recorded registered business address and principal place of business. Globaltech Corporation and GTCPL business operations 238 Mr Hejleh gave evidence on behalf of the Globaltech respondents. In his affidavit, which was directed primarily to the issue of GTCPL's role, Mr Hejleh deposed that he had full access to the business records of both Globaltech respondents and that he was familiar with their business and technology. 239 Mr Hejleh gave written evidence that since 2008, the sole business activity with which GTCPL was engaged was the provision of management consulting services to Globaltech. The management consulting services are provided to Globaltech Corporation by the four directors of GTCPL. A copy of the confidential Management Consultancy Agreement between Globaltech Corporation and GTCPL dated 22 August 2008 was annexed to his affidavit dated 24 December 2020 (Management Agreement). 240 Mr Hejleh's oral evidence was that GTCPL was "more or less a … holding company" and had been since 2006, when for accounting and taxation reasons all money and assets (including intellectual property) were transferred to Globaltech Corporation, and it became the operating company. GTCPL has no employees; the four directors are the only people in GTCPL. There was no mention of any transfer of assets in Mr Hejleh's affidavit. 241 During cross-examination, Mr Hejleh recalled that there was a written transfer agreement documenting the transfer of assets to Globaltech Corporation in 2008. He agreed that he had not mentioned the transfer agreement in his affidavit because he thought it was "irrelevant". According to Mr Hejleh the transfer agreement would be somewhere in the archives. 242 Prior to 2008, the four directors of GTCPL were paid salaries as employees of Globaltech. Pursuant to the Management Agreement, each of the four directors of Globaltech Corporation directed that part of their salary from Globaltech Corporation be paid as a combined management fee to GTCPL. Mr Hejleh's evidence was that after Mr Klass and Mr Anwar left the Globaltech Corporation board, they were still "as senior as they've ever been in directing people within the company". They remained as employees of Globaltech Corporation and continued to be paid their salary, a portion of which was paid to GTCPL as per the Management Agreement. 243 The portion of the Globaltech Corporation employee salaries of the GTCPL directors paid to GTCPL is the sole income source of GTCPL from which it paid directors' fees and issued dividends. 244 The Management Agreement is silent as to the nature of the services for which the management fees were to be paid. There is nothing in the Management Agreement that says that the sole business activity of GTCPL is to provide management or management consultancy services to Globaltech Corporation. Mr Hejleh was unable to provide any examples of management consulting or services provided to Globaltech Corporation by GTCPL. The primary purpose of the Management Agreement was for accounting reasons to reduce the tax payable on the salaries of the four directors of Globaltech Corporation. Mr Hejleh stated in cross-examination: You could characterise it, I guess, any way you like, but the bottom line is our accountants know us well and they know how we contribute to the business and they proposed to us, said, [sic] "That would be a good structure to have going forward," so we went along with it. 245 Mr Hejleh agreed that he gave instructions on behalf of both Globaltech Corporation and GTCPL in legal proceedings, and that he gave high level strategic and business directions in relation to the Globaltech website if asked. 246 Mr Hejleh was taken in cross examination to screenshots of webpages printed from the Globaltech website (www.globaltech.com.au). The Globaltech website displayed the Globaltech logo at the top left of each webpage, and also prominently on a page displaying "Globaltech News" and "Globaltech Proud Partners". The Globaltech logo was displayed at the top left of the webpage displaying the "TRUCORE UPIX CORE ORIENTATION TOOL" which Mr Hejleh agreed was the V6 Tool. Below a short description of the V6 Tool, the website stated "Click here for more info". When the reader clicked for more information they were taken to the BLY website (www.boartlongyear.com). 247 Mr Hejleh was unaware of whether there was any formal agreement with Boart Longyear giving Globaltech Corporation or GTCPL permission to use the TRUCORE UPIX trade mark on the Globaltech website. 248 Mr Hejleh was also unaware of whether there was any formal agreement between Globaltech Corporation and Boart Longyear which allowed the Globaltech website to link to the BLY website. He had not seen any written documentation concerning the link and said that "Gordon was in charge of putting this together". "Gordon" was Mr Stewart, who was the other director of both Globaltech respondents. 249 Until December 2019, GTCPL was the registrant of the www.globaltech.com.au domain. Mr Hejleh's evidence was that the website should have been transferred to Globaltech Corporation at the date of the asset transfer in 2008, but it had been overlooked. He asked the "Company Secretary" to change the registration to Globaltech Corporation in late 2018, but it was not effected until about a year later in December 2019. When pressed by AMC's junior counsel, Ms Arcus, to identify the company secretary, the following exchange took place: [Counsel]: Now, you refer to the company secretary. Can you identify the name of the individual you're referring to, please? Hejleh: I believe that would have been Gordon and/or Mike, I can't remember to be quite honest. [Counsel]: And – well, Gordon Stewart was the company secretary of Globaltech Corporation at that time, whereas Michael Klass was the company secretary of Globaltech - - -? Hejleh: Yes. [Counsel]: Proprietary Limited at that time? Hejleh: I would have probably called Gordon. [Counsel]: You would have called Gordon? Hejleh: I would have probably asked Gordon, yes. [Counsel]: So you would have asked the company secretary of the Globaltech Corporation entity - - -? Hejleh: I wasn't thinking about - - - [Counsel]: - - - to change - - -? Hejleh: I wasn't thinking, the titles were there all the time. We all [sic] got different hats. I just would have asked Gordon naturally. [Counsel]: So is it the case that you weren't thinking of the fact that the company secretary necessarily acting on behalf of Globaltech Proprietary Limited or Globaltech Corporation; is that right? Hejleh: My objective was to change the domain holder. I didn't really mind who did it. 250 GTCPL was also the registered owner of the Globaltech logo from 2000 until June 2020, when the renewal fees were not paid. No formal licence was given by GTCPL to Globaltech Corporation to use the logo: [Counsel]: Did Globaltech Proprietary Limited ever give Globaltech Corporation permission to use the logo? Hejleh: Yes. [Counsel]: And was that permission in the form of a trademark licence agreement? Hejleh: Don't think so. I think we just – we wanted to register the logo with Corp, and then the trade people, I think, from memory, came back to us and said, "You need to get permission from the other company." So we gave the permission back to the people that register the trademarks, and it was allowed. [Counsel]: And I take it this was, again, a conversation in your own head, as managing director of both entities; is that right? Hejleh: No. No. [Counsel] So what – so there was no - - -? Hejleh: No. [Counsel]: - - - formal trademark licence agreement. Was there a verbal agreement? Hejleh: It was probably a conversation between the four of us that that's what we're going to do; we're going to – because, at that time we're talking – I think – I think Corp would have had access to this logo since 2006, at least, if not before, and we would ..... conversations – as we are moving everything, then the trademarks move; everything moves. [Counsel]: And so what was the date of this verbal agreement between the four of the directors? Hejleh: I don't know. 251 During Mr Hejleh's cross-examination, it became apparent that there were no strict boundaries or roles for the directors of the two Globaltech companies. Rather, the approach was "it's the four of us", being the four original directors of both Globaltech entities, who were also the four employees of Globaltech Corporation. The four men would take on interchangeable roles between the two entities at any given time to get things done. The result being that, at times in his cross-examination, Mr Hejleh himself was confused as to which entity the directors were working for. [Counsel]: Now, you refer to the company secretary. Can you identify the name of the individual you're referring to, please? Hejleh: I believe that would have been Gordon and/or Mike, I can't remember to be quite honest. … [Counsel]: So is it the case that you weren't thinking of the fact that the company secretary necessarily acting on behalf of Globaltech Proprietary Limited or Globaltech Corporation; is that right? Hejleh: My objective was to change the domain holder. I didn't really mind who did it. [Counsel]: Okay. And when you made the request of the company secretary, who we know to be Mr Stewart, I take it you were acting in your capacity as managing director of Globaltech Proprietary Limited, as well as Globaltech Corporation, correct - - -? - - - both entities? Hejleh: I guess so, yes. 252 According to Mr Hejleh, he had regular contact with the four Boart Longyear employees who were non-executive directors of Globaltech Corporation. 253 According to Mr Hejleh, Globaltech Corporation is not able to sell or supply the V6 Tool to anyone other than BLYA. If Globaltech Corporation received a request from a customer to buy a TruCore™ Upix device (V6 Tool) they would direct the customer to "Boart Longyear". 254 Mr Hejleh spoke of an "overall distribution agreement" between "us and Boart Longyear" that had been in place in an earlier form since 2012. The distribution agreement covered matters such as the terms on which Boart Longyear bought products, the applicable warranty and the royalty to be paid to Globaltech when Boart Longyear rented out products. There was no copy of the distribution agreement in evidence. Globaltech logo and trade marks 255 Until June 2020, GTCPL was the registered owner of the Globaltech logo trade mark, registration number 837672 (the Globaltech logo), depicted below: The renewal fees were not paid in respect of the Globaltech logo when they were due in June 2020, so the current status of the Globaltech logo given on the IP Australia database at the date of the hearing is: Registered – Expired: Renewal Possible. 256 There was no licence agreement between GTCPL and Globaltech in relation to the Globaltech logo. 257 Globaltech Corporation is the registered owner of the UPIX trade mark. The UPIX trade mark was created by Mr Hejleh, who agreed that at the time it was registered, Globaltech had the intention to use it on advertising and customer facing material. According to Mr Hejleh, Globaltech licensed Boart Longyear to use the UPIX trade mark: Hejleh: "UPIX". They applied for "UPIX", as well, and, again, the trademark people said that they have to get our permission, and we allowed it. [Counsel]: And was there a formal – sorry. Was there written documentation recording this arrangement or understanding - - -? Hejleh: I just got - - - [Counsel]: - - - between Boart Longyear and Globaltech? Hejleh: We just got an email from the – from the product manager saying, "We would like to use 'UPIX', and we can't do it without your permission. Would you allow it?" And we just signed the piece of paper and sent it back. Globaltech website and LinkedIn page 258 Mr Brown visited the Globaltech website (www.globaltech.com.au) in September 2020. The Globaltech logo is displayed on the home page of the Globaltech website and each page of the website that Mr Brown annexed to his affidavit. Globaltech Corporation admits that it is the controller and registrant of the Globaltech website at domain name www.globaltech.com.au. The public records indicate that Globaltech Corporation has owned the website since December 2019. Before that time the website was owned by GTCPL. 259 The following discussion of the display of the V6 Tool on the Globaltech webpages is based on the pages from the Globaltech website visited by Mr Brown in September and October 2020, and annexed to his affidavit. 260 The "about" section of the Globaltech website notes that in 2018, Boart Longyear became a majority stakeholder in Globaltech. Boart Longyear is described as "the world's leading provider of drilling services, drilling equipment and performance tooling for mining and drilling companies globally". The relationship between the two companies is described as a "strategic alliance" with Boart Longyear "helping Globaltech to build leading products and services that will improve performance in the mining and exploration industry". 261 Under the heading "our vision & core values", the Globaltech website states "[i]n collaboration with our major business partner, Boart Longyear, we keep health and safety foremost…". 262 The Globaltech website page headed "Exploration & Instrumentation" links to a "products" page which refers to the TruCore™ UPIX core orientation tool product which is described as "an easy-to-use, highly accurate core orientation system". Underneath the heading there is a short description, under which is a link "click here for more info". When the reader clicks on the link they are taken to the BLY website, to a page displaying the BLY logo, a picture and a heading "TRUCORE™ UPIX CORE ORIENTATION". Under the heading is written "TruCore™ UPIX is an easy-to-use highly accurate core-orientation system featuring step-by-step workflow guidance, wireless communication, and a field replaceable battery". This webpage is reproduced below: 263 Further down the page there is a heading "TAKE CORE. TAKE CONTROL". Under that heading is written "Boart Longyear has a living legacy of delivering innovation in drilling technology. As a tool in Boart Longyear's new line of instrumentation, TruCore UPIX is supported by a hands-on team of experts with professional backgrounds in drilling, geology and engineering". Next to this there is a drawing of the TruCore™ UPIX hand-held unit on which the Boart Longyear logo is prominently displayed at the top. 264 Continuing down the page there is a heading "Downloads" and underneath that the "TruCore™ UPIX Core Orientation Technical Data Sheet" pdf is available to download. There is then an invitation to "RENT TRUCORE UPIX TODAY". 265 Mr Brown also visited the GTCPL LinkedIn page in October 2020. The page described GTCPL as a Western Australian company that develops and manufactures tools and technologies for efficient exploration drilling and mining applications. The ORIFINDER bore core orientation system is described as a "Core product". TruCore™ UPIX instruction manual and training video 266 In July 2020, BLY's lawyers forwarded to AMC's lawyers a copy of the instruction manual for the TruCore™ UPIX Tool. Ms Emrick believed that the instruction manual was supplied with the TruCore™ UPIX devices hired to customers. The instruction manual provides detailed instructions to the user on how to use the TruCore™ UPIX or V6 Tool. 267 The instruction manual is entitled "TRUCORE™ UPIX CORE ORIENTATION KIT User Guide". The front page bears the Boart Longyear logo and the TRUCORE trade mark. The manual suggests that if additional training and support is required, the customer should contact "your local Boart Longyear representative", or further information can be found on the BLY website. The worker pictured in the instruction manual wears a shirt and a hard hat bearing the Boart Longyear logo. The handheld part of the TruCore™ UPIX device shown in the instruction manual bears the name "TRUECORE UPIX". The underground part of the device has the name Boart Longyear and the Boart Longyear logo pictured as being along the side of the barrel. 268 The device is described throughout the instruction manual as the "TruCore™ UPIX tool". 269 The only references in the instruction manual are to "Boart Longyear". There are no references to BLYA or Globaltech. 270 Mr Brown compared the instruction manual (user guide) for the V6 Tool with the 2016 TruCore User Guide, which he in turn compared with the Orifinder V5 User Guide. According to Mr Brown the text of the Orifinder V5 User Guide step-by-step operating procedure is almost identical to the 2016 TruCore User Guide, and that the operating procedure for the V6 and TruCore 2016 User Guides is essentially the same. Mr Brown considered that the V6 User Guide, the Orifinder V5 User Guide, and the 2016 TruCore User Guide could be used interchangeably to operate any of the Orifinder V5, V6 Tools, or TruCore Tools. 271 In the training video downloaded by Mr Brown from the BLY YouTube page, the only corporate name that can be seen is "Boart Longyear" and the only logo is the BLY logo. That is also what is displayed on the screen at the start and end of the video. The people in the video wear work clothes and safety hats with the BLY logo. The hand held device in the video bears the BLY logo. Adjacent premises 272 Globaltech and Boart Longyear both have warehouses at the same address in Forrestfield, Western Australia. The warehouses of the companies are in the same building but they are separated by a fence and each has separate access and key card entry systems. 273 The land where the warehouses are located is owned by Boart Longyear, and Globaltech pays rent to Boart Longyear. It was not suggested that the rent was other than market value. The Globaltech logo is attached to the exterior fence of the Forrestfield premises. It is also the registered address for GTCPL. Boart Longyear's knowledge of the Patent and December 2018 Orders 274 Boart Longyear has been on notice of the existence of the Patent since at least February 2016, when AMC's lawyers sent a copy to BLY's South Australian registered office. Boart Longyear's US lawyers responded in March 2016 stating: [W]e have investigated the issue of clearance in view of the above identified '162 patent and have concluded that the '162 patent is not a hindrance for Boart Longyear to make, use, offer to sell or sell in Australia, or import into Australia any of the products currently being marketed by Boart Longyear, to include the TrueCore™. 275 Copies of the 14 December 2018 orders made by Besanko J were forwarded by AMC to Boart Longyear's US lawyers in December 2018. 276 According to Mr Hejleh, Globaltech Corporation has kept Boart Longyear informed as to its legal disputes with AMC concerning the Patent, including that it was working on a workaround for the V5 Tool found to infringe the Patent. According to the February 2019 letter to customers, Boart Longyear was aware that Globaltech was working on an alternative solution to the V5 Tool which was found to infringe in Globaltech FI. Consideration 277 AMC contends that the Contested Claims which are directed to a core orientation system (claims 33 to 40, 46 to 48, 54 and 65 of the Patent) (the Contested System Claims) have been directly infringed since January 2019, by each of the Respondents' making, selling and otherwise exploiting the V6 Tool because each V6 Tool takes all the integers of each of the Contested System Claims sued upon. AMC contends that the Respondents have directly infringed the Contested System Claims by their supply (including offers to supply) of the V6 Tool because when used each tool takes all the integers of each contested claim sued upon. 278 AMC contends that the Respondents have also infringed those of the Contested Claims which are method claims (the Contested Method Claims) by supplying the V6 Tools, pursuant to s 117 of the Act. Ground 1 - s 117 279 As I have found the V6 Tool infringes the Contested Claims, the enlivening requirement of s 117(1), that use of a product by a person would infringe the Patent, is met. Section 117(2)(a) 280 Under s 117(2)(a), the supply of a product will infringe a patent if the infringing use is the only reasonable use of the product. This applies to the V6 Tools. Globaltech admits that the V6 Tool is capable of only one reasonable use having regard to its nature and design. Boart Longyear denied this, but did not appear to seriously contest that fact on the evidence and did not identify any other use for the V6 Tool other than to orient core samples. Professor Tapson's evidence was to the effect that the only reasonable use for the V6 Tool in practice is to orient core samples in the manner claimed in the Contested Claims. I accept that having regard to the nature and design of the V6 Tool, it is a piece of purpose built equipment which is designed to be put to a particular, specific use: orienting core samples. 281 I consider that Globaltech Corporation and BLYA have infringed the Contested Method Claims under s 117(2)(a) by supplying (and offering to supply) the V6 Tools in Australia. Section 117(2)(b) 282 Under s 117(2)(b), the supply of a product will infringe if the supplier had reason to believe it would be put to the infringing use, if the product is not a "staple commercial product". 283 Globaltech admits that the V6 Tool is not a staple commercial product. Boart Longyear denied that the V6 Tool is not a staple commercial product, but did not appear to contest that proposition on the evidence, or make submissions on the issue. 284 The V6 Tool cannot be put to a variety of uses, and is not in fact put to a variety of uses: Northern Territory per Hayne J at [48]. The V6 Tool is a piece of purpose built equipment which is put to a specific purpose: core orientation. It is not a staple commercial product. 285 Globaltech and BLYA had reason to believe that the V6 Tools would be used in a manner that would infringe the Contested Method Claims, this being the use for which the V6 Tool is intended and for which it is instructed in the instruction manual provided to customers with the V6 Tool. 286 I consider that infringement of the Contested Method Claims by Globaltech and BLYA under s 117(2)(b) is also established. Section 117(2)(c) 287 Under s 117(2)(c), the supply of a product will infringe a patent if the supplier gave instructions or inducements for the infringing use. 288 The V6 Tool instruction manual or user guide supplied with the V6 Tools, which was considered by Professor Tapson, instructs on the use of the V6 Tools. Use of the V6 Tool in accordance with the instructions in the user guide will take all the integers of the Contested Method Claims. 289 The Globaltech website advertised the V6 Tool on the "products" page as the "TruCore UPIX Core Orientation Tool" which it describes as "an easy-to-use, highly accurate core orientation system". Underneath the heading there is a short description, under which is a link "click here for more info" which directs to the BLY website. 290 There are no references to BLYA or Globaltech in the V6 Tool user guide. The only corporate reference in the user guide is to "Boart Longyear" and the BLY logo. The hand held device pictured in the user guide bears the BLY logo. The user guide suggests that if additional training and support is required, the customer should contact "your local Boart Longyear representative", or further information can be found on the BLY website. 291 I consider that infringement of the Contested Method Claims by Globaltech Corporation and BLYA pursuant to s 117(2)(c) is established. 292 I also conclude that Globaltech Corporation and BLYA authorised customers of the V6 Tool to exploit the invention within s 13(1) of the Act, in that without AMC's licence they sanctioned, approved and countenanced the use of the V6 Tool in accordance with the instruction manual. Grounds 2 and 3 – authorisation and joint tortfeasorship with other respondents 293 The Respondents submit that the position of BLYA and Globaltech Corporation is dramatically different from the factual circumstances in Calidad. In that case there were separate family-owned companies found to be operating as "a single corporate organism to one end" (Calidad at [446]). The fact that BLYA and Globaltech Corporation may form part of the same global group of companies is not to be misconstrued — their day-to-day relationship is of manufacturer and distributor. Properly regarded in light of the facts and circumstances set out above, the Respondents say that BLYA and Globaltech Corporation have not acted as joint tortfeasors by common design in the sale and supply of V6 Tools in Australia: Apotex at [26]. GTCPL and Globaltech Corporation 294 GTCPL was the second respondent in Globaltech FI. In that case Globaltech submitted that there was no or insufficient evidence of infringement by GTCPL. At [327] Besanko J found that the evidence supported the conclusion that GTCPL was a participant in the infringing acts and an infringer. That finding was not challenged on appeal. The evidence relied upon by Besanko J in reaching his finding included the fact that GTCPL's logo mark appeared on the V5 Tools and the 2011 User Guide, and also that GTCPL's logo mark and website address appeared in a 2010 brochure, a quotation and historical website material. GTCPL also agreed to consent orders imposing an injunction against it in relation to the V4 tool. 295 The Respondents submit that GTCPL is effectively a holding company which transferred all of its assets (including technology, domain names and trade marks) to Globaltech Corporation in 2006, many years prior to Globaltech FI and the V4 tool, via a written agreement. According to the Respondents GTCPL does not manufacture, offer to sell, distribute or supply V6 Tools in Australia, online or otherwise, and it has never advertised or promoted the V6 Tools in Australia. 296 When GTCPL's managing director, Mr Hejleh, prepared his evidence in this proceeding it was against the backdrop of the finding in Globaltech FI that GTCPL was a participant in the infringing conduct. It would be fair to conclude that in those circumstances Mr Hejleh put the best case he could before the Court in his affidavit in relation to the separate nature of the Globaltech respondents. 297 According to Mr Hejleh, he had access to all the business records of Globaltech Corporation and GTCPL. Yet he failed to mention in his affidavit or annexe to it any documents, contemporaneous or otherwise, to corroborate the matters that he gave evidence about for the first time only when they arose in the course of cross examination, such as the 2006 asset transfer to Globaltech, or the 2012 distribution agreement with Boart Longyear. Mr Hejleh regarded the asset transfer agreement as "irrelevant". 298 Both the asset transfer and distribution agreements were important documents on which the Respondents sought to rely in support of their case that GTCPL had no role in the manufacture, sale or supply of the V6 Tools. Whilst it is possible that the documents may have been destroyed as being over 10 years old, it is noteworthy and surprising that their existence and effect was not canvassed in Mr Hejleh's affidavit. Their existence was raised by Mr Hejleh for the first time during cross-examination. 299 I consider that the Management Services Agreement entered into by the four directors of Globaltech Corporation and GTCPL in 2008 was entered into solely for accounting and tax purposes, not business operational purposes. Mr Hejleh was questioned extensively about the agreement and was unable to provide an example of any of the management services provided by GTCPL. 300 The finding that GCTPL was jointly liable for infringement in Globaltech FI did not result in a noticeable change in corporate behaviour at Globaltech Corporation. GTCPL remained as the proprietor of the Globaltech website until December 2019 (a year after the final orders in Globaltech FI). Mr Hejleh's evidence was that he asked the "company secretary" to change the registrant of the website in late 2018, yet it remained in GTCPL's name until December 2019. GTCPL remained as the registered owner of the Globaltech logo until the registration lapsed for non-payment of fees in June 2020. The Globaltech logo continued to be used on the Globaltech website. 301 GTCPL's proprietorship of the website and logo were two factors relied upon by Besanko J in reaching his findings that GTCPL was liable for infringement in Globaltech FI. If the Globaltech companies were the separate entities contended by the Respondents, and the ownership of the website and trade marks were meant to have been transferred under the 2006 asset transfer agreement, it is surprising that they were still not transferred to Globaltech for over a year after the Globaltech FI decision. 302 Mr Hejleh is the Managing Director and guiding mind of both entities. Together with the assistance of Mr Stewart, Mr Anwar and Mr Klass, Mr Hejleh directed and controlled the collective Globaltech business. 303 It is apparent from Mr Hejleh's evidence that there were no strict boundaries or roles for the four original directors of the two Globaltech companies, who were also employees of Globaltech Corporation. Rather, the approach was "it's the four of us". The four men would take on interchangeable roles between the two entities as required at any given time to get things done. The lax approach to the holding and eventual transfer of the website and the ownership of the Globaltech logo is consistent with the blurred operational lines between the two Globaltech entities. 304 There is no real difference between the two Globaltech entities for the purposes of its core orientation tools and Globaltech's core orientation business runs through both Globaltech entities. 305 These factors take the relationship between Globaltech Corporation and GTCPL beyond that of merely related companies which share a registered address and principal place of business and have some directors and shareholders in common. 306 As such, I find that Globaltech Corporation and GTCPL were acting in a common design and are jointly liable for the infringing conduct. BLY and BLYA 307 Following the recapitalisation initiative in late 2021, BLY is no longer an ASX listed entity. The ASX listed entity is now BLG. Ms Emrick's evidence was that BLG is now the ultimate parent company of more than 65 entities, including BLY and BLYA. 308 The Respondents submit that BLY has not, and does not supply the V6 Tools in Australia, or at all. They contend that BLY is a holding company; it has no operational function, and no employees. BLY is not the entity responsible for the BLY website, the videos published on social media or the instruction manual relied on by AMC. 309 The Respondents argument is largely based on the current post-restructure corporate arrangements. However, a substantial proportion of the time during which the V6 Tool was offered for sale and supplied in Australia was prior to the restructure. The conduct of BLY during this period cannot simply be ignored because it is no longer the ultimate holding company. 310 It is apparent from the discussion of the evidence above that there is a strong tendency for Boart Longyear entities, and those acting for them, to refer to the entities globally as "Boart Longyear" rather than identifying a particular Boart Longyear company. An example of this is the Boart Longyear 2019 Annual Report discussed above. Another example is the February 2019 letter to customers also set out above. A further example is the V6 Tool Instruction Manual which has the BLY logo on the front page and which invites customers to "contact their local Boart Longyear representative". BLY presents itself to the world as one entity: Boart Longyear. 311 Mr Hejleh referred to the global "Boart Longyear" in his cross examination and did not differentiate between BLY and BLYA in his oral evidence. 312 In a letter dated 9 March 2016, BLY's US lawyers wrote to AMC's lawyers, noting: …the '162 patent is not a hindrance for Boart Longyear to make, use, offer to sell or sell in Australia, or import into Australia any of the products currently being marketed by Boart Longyear, to include TruCore™. (Emphasis added.) And in a letter dated 5 March 2019, the US lawyers wrote: My firm represents Boart Longyear Co. and its affiliates. In that capacity, I respond to your February 27, 2019 letter to the company's directors. … If your letter portends US-based litigation, please be aware that Boart Longyear will defend itself vigorously, including by initiating post-grant proceedings against Imdex-related US patents at the US Patent & Trademark Office. For example, Boart Longyear may initiate inter partes review to invalidate the '055 patent for anticipation and obviousness under 35 U.S.C. §§102 and 103. Boart Longyear also reserves the right to initiate a declaratory judgment action in the US to invalidate the '055 patent under 35 U.S.C. §§ 101, 102, 103, and 112. (Emphasis added.) 313 It is clear that up until the restructure in February 2022, BLY presented itself and its entities to the world globally as "Boart Longyear". The companies within Boart Longyear, in particular BLY and BLYA, worked collectively together to operate the Boart Longyear core orientation tool business in Australia. 314 The BLY website, the instruction manual, the letters to customers, all refer to Boart Longyear. To the public and potential consumers, the offer to supply was being issued by Boart Longyear, rather than BLYA. The Respondents admitted that BLYA sold or supplied or offered for hire and hired the V6 Tools to customers in Australia. Absent that admission, there was no evidence that BLYA had any role in the sale, hire or supply of the V6 Tools in Australia. 315 As such, I find that BLY could have prevented BLYA from supplying the V6 Tools. BLY authorised the infringing conduct and BLY and BLYA participated together in a common design to sell, supply and hire the V6 Tools. Globaltech Corporation and BLY 316 Globaltech Corporation granted Boart Longyear an exclusive distribution and supply arrangement in respect of the V6 Tool. According to Mr Hejleh the V6 Tool is "built specifically" for Boart Longyear, and any V6 Tool customer enquiry received by Globaltech Corporation is referred to Boart Longyear. The exclusive supply agreement existed for the commercial benefit of Globaltech Corporation and BLY. 317 Globaltech Corporation kept Boart Longyear appraised of the legal disputes with AMC about the Patent, and the workaround solution to the infringing V5 Tool that it was developing. As early as January 2019, Boart Longyear was informing its V5 customers that Globaltech had developed an alternative solution. 318 Globaltech Corporation and BLY use the trademark "TRUCORE UPIX" on or in relation to their exploitation of the V6 Tools, even though Globaltech Corporation is the registrant of the UPIX trade mark and LTM is the registrant of the TRUCORE UPIX trade mark. 319 Globaltech Corporation only ever used the mark TRUCORE UPIX in relation to V6 Tools, which it manufactured and supplied to Boart Longyear. Globaltech Corporation did not object to Boart Longyear filing the TRUCORE UPIX mark in late 2019 even though the UPIX mark was registered by Globaltech Corporation earlier in time (in March 2019) and Mr Hejleh came up with the UPIX mark. Mr Hejleh said he gave permission to Boart Longyear to use the UPIX mark. 320 In September 2020 the "TRUCORE UPIX CORE ORIENTATION TOOL" was advertised on the Globaltech website (www.globaltech.com.au) (then owned by Globaltech Corporation), with links to the BLY website. The Globaltech website described Globaltech being in collaboration with its major partner Boart Longyear. Globaltech Corporation does not receive any fees for each customer that is redirected to the Boart Longyear website from the Globaltech website. 321 Globaltech and BLY are also related companies. BLY is a majority shareholder in Globaltech, via its ownership of Votraint. 322 Taken together, the above factors establish that the relationship between Globaltech Corporation and BLY is more than a mere supplier/distributor relationship with regard to the supply of the V6 Tools. 323 I consider that Globaltech and BLY have engaged in a concerted action to a common end. There is a concurrence to the actions of BLY and Globaltech. The allegations of authorisation and joint tortfeasorship are made out. All respondents 324 AMC contends that the present corporate structure of the Respondents shows a close connection between all four Respondents. In addition to the matters in the preceding section, AMC points to: (a) BLY, through its subsidiary Votraint acquiring over time a majority shareholding in Globaltech Corporation (58.32% as at February 2022); (b) The replacement of two of the original Globaltech directors with four directors who are employees of Boart Longyear; (c) BLYA, BLY and Globaltech Corporation admitting that they are associated entities within the meaning of s 50AAA of the Corporations Act 2001 (Cth); (d) The four Respondents share the same principal place of business and operate from shared premises at which the V6 Tools are manufactured; (e) Mr Hejleh, the Globaltech entities' Managing Director kept in regular contact with the directors of Globaltech Corporation who were employees of BLY; (f) The interchangeability of the User Guides for the V5 and V6 Tools. 325 Other than the findings that I have made above, I do not consider that all the respondents were engaged in some common design or that they were all acting in concert as a group in relation to the manufacture, sale, supply or offers to supply of the V6 Tool. A principle reason for this is that aside from the Respondents' admission as to liability of BLYA, there was no evidence as to BLYA's role in the infringing conduct. As discussed above, BLY as Boart Longyear was the entity from the consumer's perspective offering the V6 tool for supply in Australia. Additional damages s 122A 326 AMC seeks orders for additional damages from each of the Respondents, in the event that they make an election for damages. The Respondents deny that claim. The only point to be determined at this stage is entitlement, not quantum. 327 Section 122(1A) of the Act was introduced with effect from 28 September 2006 and it applies to infringements occurring on and after that date. It provides as follows: (1A) A court may include an additional amount in an assessment of damages for an infringement of a patent, if the court considers it appropriate to do so having regard to: (a) the flagrancy of the infringement; and (b) the need to deter similar infringements of patents; and (c) the conduct of the party that infringed the patent that occurred: (i) after the act constituting the infringement; or (ii) after that party was informed that it had allegedly infringed the patent; and (d) any benefit shown to have accrued to that party because of the infringement; and (e) all other relevant matters. 328 It was common ground that the factors identified in subsection (1A) are the same as those in the additional damages section (s 115(4)) in the Copyright Act 1968 (Cth) and the case law relevant to that section may be deployed by analogy to patent cases. 329 The Court has a broad discretion to award additional damages. 330 More than copying is required to enliven the application of s 122(1A). The Full Court in Oxworks Trading Pty Ltd v Gram Engineering Pty Ltd (2019) 154 IPR 215 (Oxworks) observed at [72] that "it is not illegitimate, or flagrant, for a competitor to examine the disclosure of a patent and to attempt to work around the monopoly claimed in the claims". Nor is flagrancy a prerequisite for an award of additional damages: MJA Scientifics International Pty Ltd v SC Johnson & Sons Pty Ltd (1998) 43 IPR 275 per Sundberg J at 282. 331 Section 122(1A) provides a non-exhaustive guide as to the matters that are relevant in considering whether additional damages should be awarded the Court. In addition to flagrancy, these factors include the conduct of the infringer after the acts of infringement (including after the infringer has been informed that it has infringed the rights in question), the benefits accruing to the infringer by reason of the infringements that are found, and all other relevant matters: Hytera Communications Corp Ltd v Motorola Solutions, Inc [2019] FCAFC 210 (per Jagot, Yates and Stewart JJ) at [25] (Hytera). The Full Court in Hytera at [25] observed that "all other relevant matters" meant "all other matters that can be seen, rationally, to bear on an assessment of the conduct that is found to be infringing and the context in which that conduct takes place". 332 Speaking in the copyright context, Lander and Gordon JJ observed in Facton Ltd v Rifai Fashions Pty Ltd (2012) 95 IPR 95 at [32] that in order to enliven an entitlement to additional damages, the court must first order that compensatory damages are payable, as opposed to an account of profits. At [33], they noted that the damages contemplated under s 115(4) were of a punitive kind. At [36] they observed that additional damages will be awarded under s 115(4) when the conduct of the defendant is such that an award of punitive damages should be made to mark the court's recognition of the opprobrium attached to the defendant's conduct. 333 AMC was unsuccessful in its claim for additional damages in Globaltech FI. Besanko J dealt with the matter briefly, giving his reasons for rejecting the claim at [332]: The principal argument put by AMC in favour of an award of additional damages was that since late 2011, albeit in relation then to the Method and System Patents, Globaltech has known of AMC's patent rights and has pressed on with their core orientation tools "working around", or trying to work around those rights. It is in this respect that AMC relies on Mr Hejleh's evidence that the only difference between the Orifinder v3A and the Orifinder v5 related to the software programming and there were no differences in the hardware. There are two answers to this argument. First, the construction issues in this case were not straightforward and, for the purposes of infringement, centred on the issue of a Synchronised Surface Timer, counting forwards and counting forwards or backwards. Secondly, the evidence of Dr Blake concerning the High Side Seeker tool and promotional website material (discussed below) raised a serious issue about the novelty of the invention. 334 AMC submits that the following matters are relevant factors which support the award of additional damages against Globaltech in this case: (a) the V6 Tool is the sixth iteration of Globaltech's Orifinder device; (b) these proceedings are the third proceedings brought against Globaltech for the infringement of the Patent; (c) the V6 Tool was developed as a workaround of the Patent claims; and (d) the V6 Tool was launched whilst Globaltech was subject to a general form of permanent injunction which restrained infringement of the Patent claims. 335 AMC submits that the following matters are relevant factors which support the award of additional damages against Boart Longyear in this case: (a) AMC notified BLY of the existence of the Patent in February 2016; (b) BLY was aware of the earlier proceedings and the final orders including the permanent injunction; and (c) Given (a) and (b), BLY took a calculated risk launching the V6 Tool in February 2019. 336 AMC contends that the change from the V5 to the V6 Tool involved "only a few software tweaks" to deliberately create the appearance of more random and unpredictable time intervals. Globaltech rejects that proposition and says that the evidence of Mr Wilkinson showed that the programming of the V6 Tool was a massive task, and the technology is the subject of a US patent. 337 AMC also made reference to the following matters which I do not consider to be relevant matters for the purposes of s 122(1A): (a) The attempt to stay the Globaltech FI quantum enquiry on the basis that the validity of the Patent was being challenged in this proceeding; (b) The necessity for AMC to issue yet another proceeding concerning the V5 Tool, this time against BLY as they have disclaimed responsibility for what was found to have been done by Globaltech in the Globaltech FI proceeding, even though Globaltech supplied the V5 tools to BLY to be rented out under the TruCore brand. I consider that these are more properly matters which, if appropriate, can be dealt with via a costs order or case management in those other proceedings but which have no bearing on the enlivenment of additional damages in this case. 338 The Respondents submit that there is no basis for an award of additional damages. First, they say there is no basis to award such damages against Boart Longyear Australia, as it was not a party to the earlier proceedings, nor subject to any injunction restraining its conduct. Boart Longyear had conducted its due diligence and formed a view that the V6 Tool did not infringe the Patent. Second, BLY has not engaged in any infringing conduct as it has not and does not supply the V6 Tools in Australia. Nor has it authorised anyone else to do so. Similarly GTCPL does not trade so there is no basis for an award of additional damages against it. 339 As to Globaltech Corporation, the Respondents say that Globaltech Corporation ceased manufacture and supply of the V5 Tools immediately upon the final orders coming into effect. Further the V6 Tool was designed to avoid the claims of the Patent. Globaltech submits that the evidence shows an earnest attempt on Globaltech Corporation's part to design a device which avoided the infringement findings in the Globaltech FI proceedings. Globaltech was so confident that its V6 Tool did not infringe the claims of the Patent that it did not consider it necessary to seek a declaration of non-infringement. Consideration 340 In Globaltech FI Besanko J made the following order, amongst others, on 14 December 2018 for a permanent injunction (December Orders): 4. The respondents [Globaltech Ltd and Globaltech Pty Ltd] and each of them be permanently restrained, whether by themselves, their directors, officers, servants, agents or however otherwise from infringing the Patent in Australia during the term of the Patent, including without limitation by, without licence of the applicants: (a) making, hiring, selling or otherwise disposing of, offering to make, hire, sell or otherwise dispose of, using, importing, exporting, or keeping for the purpose of doing any of those things, any core sample orientation tool or system according to any of claims 33-40, 46-48, 54 or 65 of the Patent, including without limitation the core sample orientation tools developed and sold under the names "Orifinder v3A", "Orifinder v3B", "Orifinder v5" or "TRUCORE" (the Orifinder Tools); (b) using any method of providing an indication of the orientation of a core sample according to any of claims 1-4, 7-10, 16-17, 21-24, 27-28 or 65 of the Patent; (c) supplying or offering to supply any core sample orientation tool or system capable of being used in a method of providing an indication of the orientation of a core sample according to any of claims1-4, 7-10, 16-17, 21-24, 27-28 or 65 of the Patent; (d) doing the acts referred to in sub-paragraph (c) above together with the giving of, or the publication of advertisements containing, instructions or inducements for the use of such a core sample orientation tool or system in a method of providing an indication of the orientation of a core sample according to any of claims 1-4, 7-10, 16-17, 21-24, 27-28 or 65 of the Patent; (e) authorising, procuring, inducing or joining in a common design with any person to do any act referred to in sub-paragraphs (a) to (d) above. 341 The December Orders included orders for destruction of any Orifinder Tools and all advertising, instructional and promotional material relating thereto in the possession, custody, power or control of the respondents. The orders also had a penalty notice in the following form attached: If you, GLOBALTECH CORPORATION PTY LTD (ACN 087 281 418) AND GLOBALTECH CORPORATION PTY LTD (ACN 087 281 418): (a) refuse or neglect to do any act within the time specified in this order; or (b) disobey the order by doing an act which the order requires you to abstain from doing; you will be liable to imprisonment, sequestration of property, or any other action the Court may determine. If any person who knows of this order does anything to assist you in disobeying the order as specified above, they will also be liable to imprisonment, sequestration of property, or any other action the Court may determine. 342 The permanent restraint imposed by the December Orders is an injunction in a "general" form; which restrains Globaltech from infringing specific claims of the Patent, and lists as non-limiting examples of core sample orientation tools the three specified Orifinder versions found to infringe: V3A, V3B and V5. The general injunction is framed in terms of AMC's statutory rights as the patentee, rather than on the infringer's acts or products which have been found to infringe those statutory rights. 343 In Calidad Pty Ltd v Seiko Epson Corp (No 2) (2019) 147 IPR 386 (Calidad FC), the Full Court (Greenwood, Jagot and Yates JJ) in the context of discussing why a general injunction was appropriate in the circumstances of the case, over a narrower form of injunction observed at [49]: This approach effectively, but in our respectful view unjustifiably, elevates the position of the infringer over that of the holder of the rights in question. Where the infringer has already been found to have engaged in wrongful conduct, and is undoubtedly cognisant of the intellectual property rights in question, it is not unjust to expect that the infringer be the party at risk in respect of that person's future conduct and acts, not the party whose known rights have already been infringed and vindicated by the court's judgment. Thus, the imposition of an injunction in general form is not, in and of itself, an undue burden on the infringer. By the same token, the person whose intellectual property rights have been infringed should not be exposed to the risk of having to engage in continuing legal proceedings in order to vindicate, again, that person's established rights against an established infringer. It is not, with respect, a sufficient answer to say that the rights holder might have a claim for additional damages if further infringement be found. Further, if the established infringer is in any doubt about whether that person's future acts might infringe the intellectual property rights that have been established, or is concerned that those acts will be a matter of contention so far as the rights holder is concerned, then it is within the power of that person to seek appropriate declaratory relief. Relevant to the present case, for example, is s 125 of the Patents Act 1990 (Cth) which specifically provides for the granting of non-infringement declarations. In other cases, recourse can be had to the Court's general power to grant declaratory relief under s 21 of the Federal Court of Australia Act 1976 (Cth). 344 The V6 Tool is the sixth version of the Orifinder Tool that Globaltech has developed as a work-around of AMC's Patent that have embodied the Patent's time-stamping core orientation method. Those different embodiments span more than a decade. Three versions (the V3A, V3B and V5) were considered by Besanko J in Globaltech FI and found to infringe the Patent. Globaltech then unsuccessfully appealed and its special leave application before the High Court was refused. 345 Another version, the Orifinder V4 was the subject of separate proceedings: NSD142/2015, which was resolved by consent with orders made on 19 October 2015 including a restraint on both Globaltech respondents from dealing in the Orifinder V4. 346 The present proceedings are the third Federal Court proceedings brought by AMC against Globaltech for infringement of the Patent. 347 Whilst ordinarily Globaltech may be able to say that it is confident that the work around for the Patent it has designed does not infringe and that it is not obliged to take any steps such as seeking a non-infringement declaration, this case is not the ordinary case. That was the position in Globaltech FI in which Besanko J did not award additional damages. The position is different this time. The V6 Tool is another iteration, following four previous iterations, each found to infringe the Patent. Unlike the earlier proceedings, at the time Globaltech launched the V6 Tool, it had been found to engage in wrongful conduct and was subject to a general form injunction restraining it from infringing the claims of the Patent. 348 Globaltech had been found by Besanko J in Globaltech FI to engage in wrongful conduct in relation to the Patent. 349 Globaltech was aware of the permanent injunction ordered by Besanko J in Globaltech FI. Mr Hejleh's evidence was that he had read the December Orders carefully in December 2018, and he understood when he read the orders the restraints on GTCPL and Globaltech Corporation. 350 Globaltech launched the V6 Tool when it was bound by orders as to a permanent injunction in general terms as set out above. The December Orders identified as non-limiting examples of core sample orientation tools, the V3A, 3B and V5 Tools; the subject of the proceeding. The orders permanently restrained Globaltech from infringing specified claims of the Patent during the term of the Patent, including supplying or offering to supply any core orientation tool or system according to any of the contested system claims of Patent, using any method of providing an indication of the orientation of a core sample, or providing any core orientation tool or system capable of being used, according to any of the contested method claims of the Patent. 351 Flagrancy is one of the relevant considerations as to whether additional damages should be awarded, but is not a prerequisite to enliven additional damages. 352 As the Full Court said at [49] in Calidad FC, where the infringer has already been found to have engaged in wrongful conduct, and is undoubtedly cognisant of the Patent, it is not unjust to expect that the established infringer be the party at risk in respect of that person's future acts, not the party whose known statutory rights have already been infringed and vindicated. In the circumstances of this case, it is not unjust to expect that Globaltech, if it was confident that the V6 Tool did not infringe the claims of the Patent, take some action, such as seeking a non-infringement declaration pursuant to s 125 of the Act, or providing a sample V6 Tool to AMC to demonstrate that it did not infringe. Globaltech did neither. 353 Instead, on 10 January 2019, Mark Dogan, BLYA's Sales Director – Asia Pacific and Africa, sent an email to customers which stated: As you may be aware there was a court ruling on 26 November 2018 in the matter of AMC/Reflex v. Globaltech. The ruling in that matter relates to an Australia [sic] patent held by AMC/Reflex and the software used in their core orientation tools. Globaltech and Boart Longyear are of the view that the court erred in its decision and Globaltech has already notified the court of its intention to file an appeal. … In the interim, we have been advised that Globaltech has developed an alternative solution that can be applied to existing and new TruCore units that does not include the specific subject of the legal dispute noted above. The new solution will allow the tools to operate without impacting workflow or data accuracy. At your request, we are prepared starting January 23, 2019 to begin exchanging any units currently in the field with the alternative solution. As previously noted, while our view is that the court decision will be overturned on appeal, we understand that this may provide some added level of comfort. Boart Longyear owns its TruCore tools and is not an agent of Globaltech. Boart Longyear remains committed to providing our clients with the best geological data services tools the market has to offer. 354 On 8 February 2019, Globaltech's lawyers informed AMC's lawyers that Globaltech intended to release a new Orifinder tool, but provided no details of the new tool. On the same day Boart Longyear made the statement "Globaltech has developed an alternative solution for its TruCore Tools which addresses the issues raised in the proceedings". 355 On or around 8 February 2019, Ms Emrick signed off on a letter to "Valued TruCore Customers". The letterhead bore the Boart Longyear logo and Ms Emrick signed herself as "Regional General Counsel Asia Pacific". The letter, which on Ms Emrick's evidence was distributed by Mr Dogan, stated: As you are aware, a decision was recently made by the Federal Court in proceedings issued by Reflex/AMC against GlobalTech in relation to certain intellectual property used in the TruCore Tools manufactured by GlobalTech. Boart Longyear understands that Reflex/AMC has recently written to various customers regarding the asserted effect of the Court's decision in those proceedings upon those customers' continued use of any TruCore Tools supplied by Boart Longyear. It is important to note that the Court's orders are only enforceable by Reflex/AMC against GlobalTech directly, being the only defendant to that action, and only in relation to any TruCore Tools that are owned by GlobalTech, which excludes any tools currently supplied by Boart Longyear. On 23 January 2019, GlobalTech filed its appeal in the Proceedings which seeks to overturn the Court's original decision. The appeal is anticipated to be heard in May this year. We understand that GlobalTech is confident that the Court's original decision will be overturned. Whilst Boart Longyear is unable to make any comment regarding the merits of the Court's original decision or as to the prospects of the appeal, we note that GlobalTech has developed an alternative solution for its TruCore Tools which addresses the issues raised in the proceedings. As a precautionary measure, pending the outcome and determination of GlobalTech's appeal, Boart Longyear is currently in the process of replacing all of its existing and new TruCore Tools to incorporate that alternative solution (New Version TruCore Tools). Our team will be in touch with you shortly to arrange for the New Version TruCore Tools for you. 356 Although at the time she signed the letter Ms Emrick was aware that the V5 Tool had been found to infringe the Patent in the earlier proceedings, she had not read the December Orders. She thought at the time she signed that letter she may have read a summary of the Globaltech FI reasons from the Chief Legal Officer of BLY. 357 Ms Emrick agreed in her oral evidence that the injunctive relief in the December Orders was not limited to versions of software used on core orientation tools and it included core orientation tools sold under the brand name TruCoreTM. 358 In a letter dated 20 February 2019, BLYA's lawyers were at pains to point out to AMC's lawyers that the December orders only applied to, and were enforceable against Globaltech, and not BLYA as they were not a party to the earlier proceedings. They stated that, nevertheless, BLYA was "acutely aware of the effect of the Orders, including the Penal Notice". The letter also noted that Boart Longyear's website was not managed or controlled by BLYA. 359 Globaltech did not proffer details of the workings of the V6 Tool, and why it did not infringe. On 24 June 2019, AMC commenced an application for preliminary discovery seeking inspection of the V6 Tool, the source code, circuit diagrams and any user guides or instruction manuals. Orders for inspection were made by consent on 5 September 2019, and Professor Tapson inspected a V6 Tool on 21 and 22 October 2019. 360 Globaltech submits steps such as seeking a non-infringement declaration are not necessary when a party is confident that its conduct does not infringe. Globaltech relied on the statements of the Full Courts in Fuchs Lubricants (Australasia) Pty Ltd v Quaker Chemical (Australasia) Pty Ltd [2021] FCAFC 65, and Oxworks (at [73]) to the effect that the failure of an alleged infringer to defend their "reasonably arguable" case is not of itself a trigger for an entitlement to additional damages. These statements were made by the Full Courts in the context of first time infringement cases. The Full Courts were not dealing with an infringer already found to have engaged in infringing conduct in respect of the same patent, being found to infringe again with a modified version of the product previously found to infringe. 361 Globaltech submits that if "AMC felt so strongly that the UPIX [V6] Device infringed then they could have brought an application for contempt". 362 Globaltech submits that it may be regarded as having cooperated with AMC to provide information and documents about the operation of the V6 Tool. Such "cooperation" came after AMC had filed an application for preliminary discovery, some five months after the Respondents publicly announced the launch of the "alternative solution". 363 In the circumstances of this case, I find that the conduct of Globaltech as discussed above is such as to enliven the award of additional damages. 364 BLY and BLYA were aware of the Globaltech FI proceeding and the December Orders. A copy of the December Orders was sent to BLY in December 2018 by the solicitors for AMC. Mr Hejleh's evidence was that he discussed the December Orders with Boart Longyear soon after they were published. The December Orders had a penalty notice attached, the last paragraph of which was addressed more broadly than the parties to Globaltech FI. 365 Despite the general form of the injunctive relief granted against Globaltech in those orders, and even though Globaltech was the manufacturer and supplier of BLYA's TruCore V5 Tools, BLY and BLYA continued to sell the V5 Tools after the injunctive relief came into effect on 24 January 2019. 366 Boart Longyear immediately commenced supplying the V6 "UPIX" tool to the Australian market when it first became available in February 2019. 367 There was no material before the Court to suggest that BLY had conducted its own due diligence as to whether there was any arguable case as to non-infringement before it commenced supply. BLYA's General Counsel Asia Pacific, Ms Emrick, had not read the Globaltech FI reasons or the December Orders, and may have read a summary of the December Orders prior to BLY launching the alternative solution. The evidence suggests that Boart Longyear may have been given some kind of assurance by Globaltech that the V6 Tool was an "alternative solution" that addressed the issues raised in the V5 Proceedings. 368 Boart Longyear took a calculated risk by supplying the infringing V6 Tool in light of the terms of the general injunctive relief of the December Orders and the penalty notice. The 20 February 2019 letter shows that BLY was "acutely aware of the effect of the Orders, including the Penal Notice". BLY was clearly alive to the risk that the tool it was renting out and supplying to the Australian market as the new version of the "TruCore UPIX" tool may infringe the Patent. 369 Like Globaltech, BLY took no steps to seek a declaration of non-infringement, or to provide an example tool to AMC for inspection prior to launching the alternative solution. In the circumstances of this case, I consider that the potential to award additional damages is also enlivened against BLY and BLYA. 370 I find that the potential to award additional damages is enlivened in respect of all the Respondents. The amount of any additional damages to be awarded is a matter for the quantum part of this proceeding. Validity – external fair basis 371 BLYA contends the Patent is not entitled to a priority date earlier than 17 June 2011 (the filing date of the amendment to the specification of the Patent to include the term "recording the specific time"), as the claims are not fairly based on the matter disclosed in the Provisional. BLYA submits that an essential feature of the invention disclosed in the Provisional concerns time referencing limited to time intervals from an initial reference time. To the extent that the Patent's claims are not confined to such an arrangement, then they are not fairly based on the matter disclosed in the Provisional. 372 It is common ground that if the Priority Date is shifted to 17 June 2011, AMC will have prior published itself with its own device. AMC's Ace Core Tool was released to the Australian market in late September 2004 and is an embodiment of the invention described and claimed in the Patent (Globaltech FI at [334]) 373 BLYA points to the difference between recording or inputting a specific time beyond the reference time (in claim 1 of the Patent) and recording or inputting a specific time interval beyond the reference time (in the fifth aspect of the Provisional) to argue that claim 1 of the Patent is wider than the fifth aspect of the invention disclosed in the Provisional, and therefore not entitled to the Priority Date. 374 AMC submits that the same or similar external fair basis issues have previously been considered by the Court. AMC points to the grounds of challenge by Globaltech to the Priority Date which were considered and rejected by Besanko J in Globaltech FI at [334]–[349] and [524]. Another challenge to the Priority Date was made in relation to similarly worded claims in the divisional innovation patents based on the Provisional and rejected at first instance in Coretell 2015 at [437]–[459] and on appeal in Coretell FC at [127]–[171]. 375 AMC submits that each of these Priority Date challenges focused on a particular aspect of the disclosure in the Provisional, being the "fifth aspect" of invention, which relates to a method of core sample orientation. According to AMC, each of the judges who considered the matter held, that passage, read in context, provides a broad disclosure of the invention claimed in claim 1 (and claim 33) of the Patent and the similarly worded claims of the two divisional innovation patents. This is so, notwithstanding some minor differences in the wording of the "fifth aspect" of the invention in the Provisional as compared with the relevant claims. AMC submits that those differences are not material, having regard to the principles of external fair basis. Considered in context and as a matter of substance, AMC contends that the "fifth aspect" in the Provisional discloses the same combination of steps as is seen in claims 1 and 33 of the Patent. 376 AMC highlighted that the argument now made by BLYA, focused on the phrase "recording the specific time interval" (in the third integer of the "fifth aspect" of the invention in the Provisional) and the phrase "inputting the specific time" (in the Contested Claims), was raised by Globaltech before Besanko J. The argument did not need to be addressed by his Honour as it was abandoned by Globaltech in closing: Globaltech FI at [339]. AMC contends that his Honour's findings entailed a rejection of the present external fair basis argument; a contention not rejected by Besanko J in Globaltech QS at [22]. Specifically, his Honour noted in Globaltech FI at [345] that "… the invention [in the Provisional] encompasses a recorded specific time that is inputted so that the relating step (ie, the recorded specific time is related to recorded time intervals) can be carried out". This was a finding that the disclosure of the "fifth aspect" of the invention in the Provisional provided external fair basis for step 3 [integer 1.3] of the Contested Claims, the integer that BLYA alleges lacks fair basis. 377 BLYA submits that the external fair basis argument it puts forward in this case is different to that ultimately abandoned by Globaltech in the earlier proceeding. BLYA says that claims of the Patent involve inputting a "specific time" as part of undertaking the method of core orientation claims, which term was construed by Besanko J as not being limited to a time interval or a duration of time, and so included a time on a clock (e.g. 3.05 pm) or the time at which a timer is started. 378 The term "specific time" appears only once in the Provisional, whereas there are a number of references to "specific time interval". BLYA submits that, properly construed, in the context of the Provisional as a whole, "specific time" is concerned with using time intervals, calculated from an initial reference time. This is a narrower time measurement concept than that which is used in the Patent. On that basis BLYA contends that the claims of the Patent claim a time measurement methodology which travels beyond the disclosure in the Provisional. 379 BLYA notes that the phrase "recording the specific time" was amended on 16 August 2011 to "inputting the specific time", the phrase which appears in the Contested Claims. 380 BLYA submits that there is a disconformity between the language of the Provisional and the Patent which, following the broad construction of the fifth aspect adopted by Besanko J in the earlier proceeding, provides the basis for its external fair basis argument. BLYA says that its external fair basis argument only crystallised upon the construction of step 3 adopted in the earlier proceeding (and affirmed by the Full Court in Globaltech FC), and for that reason it could not have been run earlier. In any event, BLYA was not a party to the earlier proceeding. 381 In Globaltech FI, Globaltech propounded a construction which limited claim 1 to a synchronised method. This construction was rejected by Besanko J and the Full Court. The present external fair basis argument could have been run in Globaltech FI on the basis of Globaltech's preferred construction. It was not necessary to wait until Besanko J and the Full Court had construed claim 1 in order to raise the external fair basis argument. Globaltech chose not to run the external fair basis argument and to pursue other external fair basis arguments. As Besanko J noted in Globaltech QS, it is not irrelevant that the external fair basis argument now pressed was not pursued in Globaltech FI. 382 Step 3 of claim 1 of the Patent was construed by Besanko J in Globaltech FI at [250] as follows: With respect to the phrase "inputting the specific time beyond the reference time" there needs to be an inputting or recording of a specific time that must be beyond the reference time, and the specific time must be representative of when the core sample was separated from the body of material. … 383 At [258] Besanko J said "In my opinion, 'beyond' means no more than after and the operator would know that step 3 was carried out after the initial reference time". 384 BLYA contends that the construction given by Besanko J to "specific time" (in claim 1) was therefore not limited to a time interval or duration of time calculated from an initial reference time. BLYA submits that the Court's finding that claim 6, which referred to a duration of time, was a narrower claim than claim 1, highlights the breadth of the construction of step 3 in claim 1. The Court construed "specific time" very broadly, BLYA submits, so as to encompass a wide variety of time referencing techniques, such as a specific time on a clock (e.g. 3.05 pm) and the starting of a timer. 385 In contrast, BLYA submits that the invention described in the Provisional concerns a method of core orientation involving time referencing limited to time intervals from an initial reference time. Properly construed, the Provisional as a whole uses the term "specific time interval", which BLYA contends means a time interval or a duration of time calculated from something. Whilst the term "specific time" is used numerous times in the Patent (including in the claims), it is only used once in the Provisional, in the fifth aspect. 386 The fifth aspect which is of particular relevance to the external fair basis argument is described in the Provisional as follows: According to a fifth aspect of the invention there is provided a method of providing an indication of the orientation of a core sample relative to a body of material from which the core sample has been extracted, the method comprising: (1) drilling a core sample from a body of material with a core drill having an inner tube assembly; (2) recording the orientation of the inner tube at predetermined time intervals with reference to an initial reference time during said drilling; (3) recording the specific time interval beyond the reference time at which the core sample was separated from the body of material; (4) removing the inner tube assembly and core sample contained therein from the body of material; and (5) relating the recorded specific time to the recorded time intervals to obtain an indication of the orientation of the inner tube and consequently the core contained therein at the specific time interval. Preferably, the method according to the invention is performed using an orientation device attached to the inner tube assembly, the orientation device being in accordance with either the first or second aspect of the invention (Emphasis added.) 387 BLYA contends that the singular reference to "specific time" in the Provisional is to be understood as a reference to "specific time interval", because it is plainly referring to the earlier words "recording the specific time interval". BLYA submits that if its meaning is otherwise, then it is a loose or stray remark of the kind referred to in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 at [69] (Lockwood No 1). 388 BLYA submits that other passages in the Provisional support its construction. For example in the Best Mode section: It is also necessary to record time duration subsequent to starting of the orientation device, the purpose of which will be explained later. This time duration is typically recorded by way of a timer such as a stop watch" And: Once the orientation device 10 has been started and recording of the subsequent time duration commenced, the inner tube assembly 15 is inserted into the drill hole for reception in the outer tube assembly 13, and the core drilling operation then commenced. And finally: From the forgoing, it is evident that the present invention provides an orientation device which does not require physical marking of a core sample prior to extraction thereof from the ground. Indeed, the orientation device according to the embodiment is particularly convenient for an operator to use. All that is required is for the operator to start the orientation device prior to the inner tube assembly 15 being inserted into the drill hole, and contemporaneously start a timer for recording the time duration before the drilling operation ceases to allow the generated core sample to be retrieved. (Emphasis by BLYA.) Relevant principles 389 BLYA challenges the Priority Date of the claims of the Patent on the basis that they are not fairly based on the matter disclosed in the Provisional. 390 Subsection 43(2) of the Act provides that the priority date of a claim is either the date of filing of the specification or, where the Patents Regulations 1991 (Cth) provide for the determination of a different date as the priority date, the date determined under the Regulations. 391 The Patent was filed on 15 January 2010 as a divisional application of Australian Standard Patent no. 2005256104, which claimed priority from the Provisional. In these circumstances the priority date of the claims of the Patent is determined under s 40(3) and s 79B of the Act, together with reg 3.12. 392 Regulation 3.12 in the applicable form relevantly provides: 3.12 Priority dates generally (1) Subject to regulations 3.13 and 3.14 and sub regulation (2), the priority date of a claim of a specification is the earliest of the following dates: (a) the date of filing of the specification; (b) if the claim is fairly based on matter disclosed in 1 or more priority documents, the date of filing the priority document in which the matter was first disclosed; (c) if the specification is a complete specification filed in respect of a divisional application under section 79B of the Act and the claim is fairly based on matter disclosed in the specification referred to in paragraph 79B (1) (a) of the Act — the date mentioned in sub regulation (2C); … (2C) The date for a specification to which paragraph 3.12 (1) (c) applies is the date that would have been the priority date of the claim if it had been included in the specification referred to in paragraph 79B (1) (a) of the Act. 393 As Besanko J observed at [341] in Globaltech FI, the principles of fair basis are well established. The question is whether there is a real and reasonably clear disclosure in the body of the specification of that which is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification: Lockwood No 1 at [69] citing Fullagar J in Société des Usines Chimiques Rhône-Poulenc v Commissioner of Patents (1958) 100 CLR 5. Also at [69], the High Court noted that "a real and reasonably clear disclosure" in connection with s 40(3) did not limit disclosures to preferred embodiments. 394 In Coretell FC, Burley J (with whom Jagot and Nicholas JJ agreed) observed at [134] that there was a nuanced difference between the test for fair basis arising under s 40(3) of the Act and the test for determining priority dates pursuant to reg 3.12(1) above. The latter requires that the claim be "fairly based on matter disclosed in the specification" and the former requires that the claim described be "fairly based on the matter described in the specification" (emphasis added by his Honour). Burley J continued at [134]–[136]: 134 … A Full Court of this Court succinctly stated the practical effect of the difference in Multigate Medical Devices Pty Ltd v B Braun Melsungen AG (2016) 117 IPR 1 at [189]: … There are two linguistic differences in the phrase used for external fair basis. First, the definite article is omitted. Second, the reference is to what is disclosed rather than what is described. So, the absence of the definite article makes it plain that external fair basis can arise if some part of the overall disclosure made in the prior specification discloses the relevant matter. … Further, the use of "disclosed" rather than "described" connotes greater flexibility in the test for external fair basis in terms of ascertaining from the prior specification the requisite disclosure. (Citations omitted; italics in original.) 135 Whilst one must bear in mind this nuance, otherwise, the test for external fair basis is essentially the same as that set out definitively in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (2004) 217 CLR 274 (Doric No 1), where the High Court held that the requirement that a claim or claims be fairly based on matter described in the specification within s 40(3) of the Act requires a "real and reasonably clear disclosure" of what is claimed. At [69] the High Court referred with approval to the following passage in the judgment of Gummow J in Rehm at 95: The circumstance that something is a requirement for the best method of performing an invention does not make it necessarily a requirement for all claims; likewise, the circumstance that material is part of the description of the invention does not mean that it must be included as an integer of each claim. Rather, the question is whether there is a real and reasonably clear disclosure in the body of the specification of what is then claimed, so that the alleged invention as claimed is broadly, that is to say in a general sense, described in the body of the specification. 136 The relevant inquiry is to ascertain what that patentee discloses to be the invention, which involves consideration of the whole document. The fact that some words in the specification match the claims in what is referred to as a "consistory clause" will not be determinative. As the High Court said in Doric No 1 at [99]: … the correct position is that a claim based on what has been cast in the form of a consistory clause is not fairly based if other parts of the matter in the specification show that the invention is narrower than that consistory clause. The inquiry is into what the body of the specification read as a whole discloses as the invention [Welch Perrin & Co Pty Ltd v Worrel (1961) 106 CLR 588 at 612-613]. An assertion by the inventor in a consistory clause of that of which the invention consists does not compel the conclusion by the court that the claims are fairly based nor is the assertion determinative of the identity of the invention. The consistory clause is to be considered by the court with the rest of the specification. 395 The disclosure in the Provisional has been now considered in two earlier proceedings, Globaltech FI and FC and Coretell FC. Coretell FC 396 Burley J (with whom Jagot J and Nicholas J concurred) considered the disclosure of the Provisional in detail in Coretell FC at [137]–[154], in the context of an external fair basis challenge to the claims of the Method and System innovation patents. His Honour did so against the background of three arguments that were raised by the Coretell parties in that proceeding (the "unitary device argument", the "functional disclosure argument" and the "held in fixed relation" argument). His Honour's reasons demonstrate the breadth of the disclosure in the Provisional. In particular, in Coretell FC at [142], his Honour considered the section of the Provisional entitled "Disclosure of the Invention", which is the section that broadly describes the invention. This provides a description of the invention in several aspects. The fifth aspect (set out above) is of particular relevance to BLYA's present external fair basis argument. 397 The breadth of the fifth aspect was remarked upon by Burley J, who observed at [145]: It is notable that this aspect is expressed in broad, functional terms. The description is not limited to the manner in which the method may be carried out, although the use of a core drill having an inner tube assembly is required. Unlike the first four aspects described, the use of particular "means" is not identified. And at [147]: It is clear from these paragraphs that the method so described is not constrained to be performed by any particular orientation device, as described in aspects one, two, three or four. No language in the fifth aspect mandates such an approach. The language in the final paragraph beginning with "[p]referably" tells against such a construction. 398 Burley J also considered the detailed description of what the inventor considered to be the best method for carrying out the invention. The non-limiting nature of that description was highlighted in his Honour's reasons in Coretell FC by his emphasis on "embodiment" in the passage at [148] (below) to indicate that this is only an embodiment of the invention, and the invention is not limited to that the preferred embodiment: The specification then includes a section which refers to Figures 1 – 6 which are included in the Application, and describes, at length, what the inventor considered to be the best method for carrying out the invention. The section commences by observing that the embodiment shown in the drawings is directed to an orientation device for use with a core drill in order to provide an indication of the orientation of a core sample obtained in a core drilling operation. (Emphasis in original.) 399 At [154], Burley J addressed the final paragraph of the Provisional. His Honour rejected an argument that this confined the scope of the invention, stating at [158]–[159]: 158 …When the invention is read as a whole, in order to understand the sense of its disclosure, it is my view that the invention is described to extend beyond the particular device described. It includes a method disclosed by reference to function. In particular, the disclosure of the fifth aspect of the invention is not confined in the manner for which the appellants contend. As a matter of language, the fifth aspect describes a method that employs a core drill having an inner tube assembly, but otherwise provides no constraint on the five functional steps to which the method refers. Nothing in the paragraph setting out the fifth aspect suggests that the method is confined to the use of a device as set out in the earlier aspects. The paragraph that immediately follows the description of the fifth aspect indicates, as I have observed above, that the inventor considered it to be preferable, but not essential, that the method be performed using an orientation device of the type described in the first two embodiments. Nor, in my view, does the detailed description of the best method provide any language to suggest that the invention is to be understood as confined to a device embodiment. Indeed, that section is particular in emphasising that it describes only an "embodiment". 159 I have observed above that, as the High Court noted in Doric No 1, a broad statement of the invention made by the inventor may be sufficient to provide fair basis for the claims, although it is open to the Court to find that a claim which is based on what has been cast in the form of a consistory clause will not be fairly based if other parts of the matter in the specification show that the invention is narrower than that clause: Doric No 1 at [99]. I have been unable to detect in the content of the specification a suggestion that the invention is narrower than that described in the fifth aspect. Whilst the appellant draws attention to the paragraph (quoted above) on the final page of the specification, I do not consider that, properly construed, that paragraph is to be understood as confining the disclosure of the invention to "an orientation device only", and not the broader method set out in the fifth aspect. The statement in the first sentence of the paragraph that the invention "provides an orientation device" is plainly correct, but it does not limit the disclosure to that orientation device (singular) alone. 400 BLYA referred to Burley J's observations in relation to the fifth aspect at [158] and [159], drawing attention to three elements which it says are relevant to construction in this proceeding. First, at [158] his Honour noted that the invention described extends beyond the particular device described to include a method disclosed by reference to function. The fifth aspect concerns disclosure of five functional steps. Thus, BLYA submits, the disclosure is limited to, and concerns, such expressions of functionality. If later amendments introduce new functionality then they will introduce matter that travels beyond the disclosure of the fifth aspect. 401 The second, relates to the second last sentence of [158]: "Nor in my view, does the detailed description of the best method provide any language to suggest that the invention is to be understood as confined to a device embodiment". BLYA submits that this raises the point as to whether the description of the best method might aid construction of the fifth aspect. BLYA says that the "Best Mode" section of the Provisional simply affirms the disclosure in the fifth aspect, confirming Professor Dupuis' view as to the confined nature of the disclosure in the fifth aspect. 402 Third, BLYA refers to Burley J's observation at [159] that he had "been unable to detect in the content of the specification a suggestion that the invention is narrower than that described in the fifth aspect", and submits that passage supports the proposition that the other parts of the Provisional do not suggest a construction of the broad statement of the fifth aspect other than as a method limited to the description of the best mode, in accordance with Professor Dupuis' reading of the specification. 403 AMC drew attention to Burley J's comments at [162] in the context of considering the Coretell parties' argument in that case on the external fair basis issue (the "functional disclosure" argument), his Honour again noted the breadth of the disclosure in Coretell FC at [162]: As I have noted, in the fifth aspect, the inventor says his invention is a method whereby the functional effects described are achieved. That function may be achieved using any means that meets the function. The position is, as the respondents submitted, analogous to the facts in Doric No 1 at [4]-[12], where the consistory clause in the specification included a broad statement directed to a latch assembly which had a lock release means described in terms of its function, but did not indicate anything in terms of the form which the lock release means may take. The High Court considered that to be sufficient description, and within s 40(3) of the Act, to satisfy the test for fair basis. In that case, the Court found at [38] that no words of limitation of the breadth of the functional disclosure were to be found in the body of the specification. The same applies in the present case. (Emphasis added.) 404 AMC submits that Justice Burley's findings and analysis as to the disclosure of the Provisional in Coretell FC are correct, and significant for the present case. In particular, his Honour's emphasis on the fact that the "fifth aspect" discloses a broad method whereby the functional effects described are achieved, using any means that meets the function, is significant. Globaltech FI 405 Besanko J also addressed an external fair basis challenge, this time in relation claims of the Patent: Globaltech FI at [334]–[349]. His Honour found that claims 1 to 4, 7 to 10, 1–17, 21 to 24, 27 to 28, 33–40, 46–48, 54 and 65 of the Patent were fairly based on matter disclosed in the Provisional. In doing so, his Honour construed the Patent and the Provisional and made detailed findings as to their disclosure, and found that the Provisional provided a real and reasonably clear disclosure of the methods and systems that were claimed in the Patent. 406 AMC submits that the allegation of lack of fair basis that was considered and rejected by Besanko J concerned the very same feature in the "fifth aspect" of the invention in the Provisional, and the very same integer of the claims of the Patent, as are put in issue by BLYA's argument in this case. In dealing with this, his Honour held that the relevant part of claim 1 (integer 1.3, referring to the inputting of a "specific time") was fairly based on the corresponding part of the Provisional (step 3 of the "fifth aspect", referring to the recording of a "specific time interval"); see Globaltech FI at [345]: In my opinion, the word "recording" includes inputting and, indeed, the word "inputting" may have a narrower scope. I have reached this conclusion for three reasons. First, the fifth aspect of the invention in the Provisional Application is describing a method and, as Burley J said in Coretell Full Court, it is a method described in broad functional terms. Secondly, having regard to step 5, the invention encompasses a recorded specific time that is inputted so that the relating step (i.e., the recorded specific time is related to recorded time intervals) can be carried out. I agree with AMC's submission that if one has recording of the specific time according to the fifth aspect of the Provisional Application, then considering the method as a matter of substance, one will also have inputting of that time. … 407 At [347] Besanko J rejected an argument that the specific time interval "at which" the core sample was separated (in the "fifth aspect" of the invention in the Provisional) was materially different from the specific time "representative of when" the core sample was separated (in the Contested Claims of the Patent). Reading the disclosure in the Provisional purposively and in a common sense way, Besanko J held that the skilled person would not understand the language used to require exact precision with the core break, particularly noting that core break is not instantaneous: Globaltech FI at [347], citing Professor Tapson's evidence. The expert evidence 408 Professors Tapson and Dupuis agreed in the JER-V, that a "time interval" is defined as a "period of time that separates two given instants in time", and that time intervals can exist without the need that they be calculated. They also agreed that the Provisional disclosed the use of time as a means of indexing data that is collected by the invention. 409 The experts noted that the concept of time is intrinsically defined by intervals that are referenced to an agreed upon temporal reference. For example, the time "12.35 am" represents an instant in time that is referenced to a 35 minute interval since midnight, ie counting forward from midnight. Or, as Professor Dupuis agreed in the joint session, the same time can also be identified as 25 minutes until 1 am, ie counting backward from 1 am. These examples are two different, but equally valid, ways of identifying the same instant in time. It is inherent in the nature of time that either method can be adopted, because time is a continuum that is counted in standard units of minutes and hours. 410 The two experts also agreed that the sole reference to "specific time" within the context of the fifth aspect of the invention disclosed in the Provisional is to the time when the core sample is separated from the body of material (ie core break). The experts differed as to whether that sole reference to "specific time" allowed for the recording of the event without consideration of a duration of time relative to an initial temporal reference (ie initial reference time). 411 Professor Tapson considered that the Provisional describes relating a "specific time to the recorded intervals" and that "specific time" in that context is not necessarily calculated, measured or expressed as a duration of time relative to the initial reference time. Professor Tapson considered that there was nothing in the Provisional that limited "specific time" to a duration of time relative to the initial reference time. Professor Dupuis disagreed. 412 Professor Dupuis agreed that the "specific time interval" in step 3 is one of the time intervals referred to in step 2, being the specific one that occurs at the time of core break. Professor Dupuis agreed that "specific time interval" is used because it identifies which of the downhole time intervals is the time interval of interest. That is, the time interval at which the core breaks. He also agreed that the recording of the specific time interval is done by the operator, above ground, and that the operator would be aware that the orientation tool down the hole has been recording orientation measurements at successive time intervals, and the record of those would be stored by the downhole device. Professor Dupuis agreed that step 3 required making a record to identify which of the downhole time intervals is the one of interest, the one recording the core break. 413 Professor Dupuis agreed that step 5 of the fifth aspect involved the relating of the above ground record relating to the time of the core break, and the downhole time record of the time interval at which the core break orientation measurement was taken. 414 Professor Dupuis regarded the sole reference to "specific time" as "essentially synonymous" with "specific time interval" in the context of the Provisional. He considered them as intimately related to the same temporal reference (the starting of the stopwatch disclosed in the described embodiment), and the specific instant when the core was separated from the body of material — namely, "specific time". 415 Professors Dupuis and Tapson agreed that "recording the specific time interval" in step 3 could be implemented simply by making a record of the time at which core break occurs on the above ground timer. [Counsel]: Just to clarify … simply recording the time on the aboveground timer at which the core break occurs, you accept that that, subject to the issues you raised, would be one way in which you could make … a record of the specific time interval downhole at which core break occurred; correct? Dupuis: That's correct. [Counsel]: And you could do that, because you would know, for example, if the time on the aboveground timer was one hour and 55 minutes – just to take an arbitrary number – you would know that the specific time interval counted out down hole at which core break occurs is the one that occurred at the time of one hour and 50 minutes or whatever I put to you that was the time … Dupuis: 55 minutes, yes. [Counsel]: … on the aboveground timer. Yes. Do you agree with that? Dupuis: Yes. [Counsel]: Professor Tapson, can I ask you whether you agree that that is one way in which step 3 of this method could be practiced. Tapson: Yes, I agree. 416 Professor Dupuis agreed that, subject to the accuracy of the timers, the fifth aspect of the invention in the Provisional could be implemented without having an initial temporal reference and instead using a later temporal reference. 417 BLYA sought to diminish the effect of Professor Dupuis' agreement that there were other means by which the method of the fifth aspect could be implemented, noting that the cross examination was directed towards potential ways to implement the method of the fifth aspect, not what the experts considered was taught by the disclosure in the Provisional. AMC rejected the criticism, submitting that the role of the expert is not to construe the words of the specification, but to assist with technical matters, such as how the invention disclosed might be implemented. 418 Whilst Professor Dupuis agreed that there was more than one way that the method of the fifth aspect could be implemented, he was not completely convinced that the Provisional specification intended any method other than a synchronised (counting forward) method. The cornerstone of his reasoning was his observation that the invention described in the Provisional involves the concept of a time interval referenced to a synchronisation event, which he regarded as fundamental to the one embodiment of the invention disclosed in the Provisional. It was clear that he considered that the invention disclosed in the Provisional was limited to the preferred embodiment described in the best method section. He considered that implicit in that embodiment was the feature of the inputting of a specific time interval beyond the reference time. In his affidavit dated 28 January 2021, Professor Dupuis stated: Implicit in the provisional specifications is the synchronicity of the measurement system based on an external reference clock that is disclosed as a stopwatch. The description of the invention makes it clear that, the key to indexing the measurements in space and time is the ability to recall the time interval that elapsed from the initialization of the system and when the rock core was broken. 419 BLYA criticised Professor Tapson for his clarification made at the start of the joint session wherein he changed his reference in the JER-V to the notions of counting forward and counting backwards as being "valid within the claims of the patent" to "valid within the description of the provisional specification". BLYA submitted that this showed that Professor Tapson's reasoning was based on the way AMC advanced its claim construction arguments for the Patent in the earlier proceeding, rather than him considering the disclosure in the Provisional in isolation. When this proposition was put to Professor Tapson, he rejected it: I think that's much too direct. I – I do – I think it's not unreasonable to say that I'm a human being, and – and having read the patent and the claims, it would be impossible to, in a sense, not be informed by that. But – but the idea that there was some effort to merge or – or – or resolve any differentiation between those two is – is simply not accurate. 420 I do not consider that Professor Tapson's "acknowledgement" diminished his evidence as to what he considered to be disclosed in the Provisional. Consideration 421 In Globaltech FI and FC, Globaltech's preferred construction which limited claim 1 of the Patent to the synchronised method of the preferred embodiment, was rejected. Besanko J and the Full Court adopted a broad construction of step 3 of the method of claim 1 as encompassing synchronous and asynchronous methods. (Globaltech FI at [265] and Globaltech FC at [134]). 422 For the reasons which follow, I do not consider that the disclosure in the Provisional is limited to a synchronised method. The claims of the Patent are fairly based on the matter disclosed in the Provisional. 423 Despite propounding a construction of claim 1 of the Patent limited to a synchronised method at trial, Globaltech chose not to pursue the present external fair basis argument in Globaltech FI. BLYA, not a party to the earlier proceedings, seeks to explain Globaltech's abandonment on the basis that the external fair basis argument only "crystallised" with the adoption of the broader construction of claim 1 encompassing synchronous and asynchronous methods by Besanko J, which was upheld by the Full Court in Globaltech FC. The current external fair basis argument could have been run at the Globaltech FI trial. That Globaltech abandoned the argument suggests that Globaltech did not count it amongst its strongest. In any event the argument is now raised by BLYA, which was not a party to Globaltech FI. 424 By directing attention to the contrast between the third integer of the fifth aspect disclosed in the Provisional — "recording the specific time interval beyond the reference time at which the core sample was separated from the body of material" — and the third integer of claim 1 of the Patent — "inputting the specific time beyond the reference time representative of when the core sample was separated from the body of material", BLYA seeks to argue that the disclosure in the Provisional is limited to a synchronised method and that there is no basis in the Provisional for the broad construction of claim 1 adopted by Besanko J and the Full Court in Globaltech FI and FC. 425 BLYA submits that the disclosure in the Provisional is limited to the manner of carrying out step 3 in the embodiment described in the best method section. Professor Dupuis, despite his agreement in oral evidence that there are other ways to carry out the method of the fifth aspect, continued to maintain his position that the disclosure in the Provisional is confined to the synchronised method using a stop watch as described in the embodiment. The other ways of carrying out step 3, which Besanko J found to fall within the claims, are said by BLYA to "introduce new functionality", and travel beyond the disclosure of the Provisional. I reject that submission. 426 Justice Burley described the fifth aspect of the Provisional as being "expressed in broad functional terms". The description of the fifth aspect in the Provisional is not limited to the manner in which the method may be carried out: Coretell FC at [145]. That function may be achieved using any means that meets the function: Coretell FC at [162]. His Honour described the position being analogous to the facts in Lockwood No 1 (at [4]–[12]) at [162]: [W]here the consistory clause in the specification included a broad statement directed to a latch assembly which had a lock release means described in terms of its function, but did not indicate anything in terms of the form which the lock release means may take. The High Court considered that to be sufficient description, and within s 40(3) of the Act, to satisfy the test for fair basis. In that case, the Court found at [38] that no words of limitation of the breadth of the functional disclosure were to be found in the body of the specification. The same applies in the present case. 427 The functional effects of particular relevance to the external fair basis case are the recording and relating functions described in steps 3 and 5 of the fifth aspect of the Provisional: • Recording the specific time interval, beyond the reference time…; and • Relating the recorded specific time to the recorded time intervals… 428 As discussed above, the experts agreed that a "time interval" is defined as a "period of time that separates two given instants in time", and that the Provisional disclosed the use of time as a means of indexing data that is collected by the invention. 429 Professor Dupuis accepted as a general proposition, that the nature of time is such that there are different ways of identifying an instant in time which are equally valid. 430 Professors Dupuis and Tapson understood the phrase "specific time interval" as used in step 3 to designate one of the time intervals referred to in step 2 which are counted out downhole, being the specific one that occurs at the time of core break as referred to in step 3. 431 Professor Dupuis agreed with Professor Tapson that it is possible to use a temporal reference that occurs after an event of interest in order to relate measurements of two timers that occurred before that reference, even if the two timers were not synchronised with each other to begin with, due to the inherent properties of time. 432 Professor Dupuis agreed that "recording the specific time interval" in step 3 could be implemented simply by making a record of the time at which core break occurs on the above ground timer. 433 Professor Dupuis agreed that other there were other possible ways to carry out step 3 than the synchronous method involving a stopwatch described in the embodiment, including an asynchronous method. His evidence was that the difference between a synchronous method and an asynchronous method was not "trivial", and that design of an asynchronous method might "require a little bit more thought" in order to make "all of the timing events line up". However, he did not suggest that utilising an asynchronous method would introduce new functionality to the steps set out in the fifth aspect. 434 Professor Dupuis maintained his opinion that the invention described in the Provisional involved a concept of a time interval referenced to a synchronisation event, which he regarded as fundamental to the invention disclosed in the Provisional. He considered the synchronicity of the measurement system based on an external reference clock (the stopwatch disclosed) was implicit in that embodiment. Professor Dupuis accepted that his view was based on the features of the preferred embodiment in the Best Modes section of the Provisional. Professor Dupuis considered the preferred embodiment was the only method disclosed in the Provisional. 435 Professor Dupuis' opinion that the disclosure of the Provisional was limited to the one embodiment disclosed in the Provisional was not founded on the absence of "interval" in the fifth step of the fifth aspect. In his view the phrases "specific time" and "specific time interval" were "essentially synonymous in the context of the Provisional". 436 Justice Burley in Coretell FC held that the disclosure of the fifth aspect of the invention was not confined to the preferred embodiment. His Honour observed at [158] that the inventor considered that embodiment to be "preferable" but not essential. There is no language in the detailed description of the best method of the Provisional to suggest that the invention is to be understood as confined to the preferred embodiment. No words of limitation of the breadth of the functional disclosure are to be found in the body of the Provisional. 437 As the experts agreed, there were other manners in which to record the time at which core break occurred for the purposes of carrying out step 3 than the stopwatch method of the preferred embodiment. These other manners do not add additional functionality to the steps of the fifth aspect disclosed in the Provisional. 438 The absence of "interval" in step 5 of the fifth aspect does not cause the disclosure in the Provisional to be confined to the synchronised method of the preferred embodiment. BLYA's external fair basis argument which relies of the absence of "interval" in the fifth step epitomises the over meticulous verbal analysis approach of the kind rejected by the High Court in Lockwood No 1 at [68]. 439 As such, I do not consider the claims to be without fair basis and BLYA's cross-claim is unsuccessful. Conclusion 440 Each of the respondents has infringed the Contested Claims of the Patent which I find to be valid. Further, the applicants are entitled to additional damages pursuant to s 122(1A) of the Act. I certify that the preceding four hundred and forty (440) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rofe. Associate: Dated: 6 October 2022 SCHEDULE OF PARTIES NSD 1040 of 2019 Respondents Fourth Respondent: BOART LONGYEAR AUSTRALIA PTY LTD	55,206
federal_court_of_australia:fca/single/1997/1997fca1021	decision	commonwealth	federal_court_of_australia	text/html	1997-10-03 00:00:00	Ogenic Ltd v Deloitte Touche Tohmatsu [1997] FCA 1021	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1021	2024-09-13T22:52:46.562903+10:00	FEDERAL COURT OF AUSTRALIA C A T C H W OR D S PRACTICE AND PROCEDURE - security for costs - impecunious corporate applicant - merits of case - case facing difficulties but arguable - risk management nature of security for costs order - authority to bring action - requisite number of directors ratifying initiation of proceedings - pleadings - superfluous paragraphs raising false issue. Fair Trading Act 1987 (WA) Corporations Law OGENIC LIMITED (ACN 009 205 805) v DELOITTE TOUCHE TOHMATSU JUDGE: FRENCH J DATE OF ORDER: 3 OCTOBER 1997 WHERE MADE: PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY 3009 of 1997 BETWEEN: OGENIC LIMITED (ACN 009 205 805) Applicant AND: DELOITTE TOUCHE TOHMATSU Respondent JUDGE: FRENCH J DATE OF ORDER: 3 OCTOBER 1997 WHERE MADE: PERTH MINUTES OF ORDER THE COURT ORDERS THAT: 1. The applicant provide security for the respondent's costs of the application by way of bank guarantee or in such other form as is acceptable to the Registrar in an amount of $60,000, $25,000 of which is to be provided on or before 24 October 1997 and the balance within 21 days of an appointment being made for the matter to be listed for trial. 2. The application be stayed if security is not provided by 24 October 1997 or within 21 days of an appointment being made for the matter to be listed for trial. 3. There be liberty to apply. 4. Paragraphs 5 and 10.1 of the statement of claim be struck out. 5. The motion is otherwise dismissed. 6. The applicant is to pay one-quarter of the respondent's costs of the motion. The costs of the motion be otherwise reserved. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY 3009 of 1997 BETWEEN: OGENIC LIMITED (ACN 009 205 805) Applicant AND: DELOITTE TOUCHE TOHMATSU Respondent JUDGE: FRENCH J DATE: 3 OCTOBER 1997 PLACE: PERTH REASONS FOR JUDGMENT ON MOTION FOR SECURITY FOR COSTS AND OTHER ORDERS This application was commenced on 27 May 1997. Ogenic Limited (Ogenic), formerly known as Broadbanx Investments Limited sues Deloitte Touche Tohmatsu (Deloittes), a firm of Chartered Accountants. The causes of action depend in essence upon allegations that Deloittes made misleading statements about the financial performance of a company called PKE Limited (PKE) in a report prepared by it for Ogenic in connection with Ogenic's takeover of PKE. Ogenic says it signed a contract on 24 February 1994 to purchase all of the issued shares in PKE in consideration of the issue of 14 million of its own shares to Vendor shareholders in PKE. The contract was subject to the approval of the purchase by Ogenic's shareholders and Ogenic's satisfaction with the financial affairs of PKE after a due diligence enquiry. Ogenic's shareholders were also required to procure, after the acquisition, the transfer of a proportion of their shares to achieve a shareholder spread complying with Rule 1A(3)(b)(ii) of the ASX Listing Rules. In connection with that disposition it was necessary for Ogenic to register a prospectus with the Australian Securities Commission. Ogenic says it engaged Deloittes on 3 March 1994 to prepare an independent accountant's report for inclusion in the prospectus. This was of course a prospectus to prospective acquirers of shares in Ogenic. There was evidence before the court that in seeking a quotation from Deloittes on 21 February 1994 Ogenic (then Broadbanx) had identified three distinct assignments. The first was the preparation of an Investigating Accountant's Report for inclusion in a prospectus to be issued by Ogenic in March 1994. The second sought a confirmation that the transaction was fair and reasonable for the minority shareholders of Ogenic. The third was a Valuation Report on PKE. In the event it was in relation to the first assignment that Deloittes was engaged. Ogenic alleges that the Deloittes report (delivered in draft on 23 March 1994) was misleading or deceptive or likely to mislead or deceive contrary to s 10 of the Fair Trading Act 1987 (WA) and s 994 of the Corporations Law. It is also said that the statements were made negligently or in breach of an implied term of the Deloittes' contract to use reasonable care in the preparation of the drafts of and the final report and in making statements to Ogenic. The statements complained of related to the sales and profit and loss performance of PKE. There were also said to have been oral representations by a representative of Deloittes that the PKE shares were worth at least $0.35 each and that information provided by PKE was good or better than normally expected. Ogenic says the statements were incorrect and that it relied upon them:- "... in concluding its due diligence investigations into the affairs and financial circumstances of PKE, in declaring the agreement unconditional in securing the quotation of the applicant's shares on the official list of the ASX and settling the agreement." Ogenic says it has suffered loss and damage which is particularised as follows:- "18.1 Issue of 14 million fully paid shares in the applicant to the Vendors at consideration of acquisition of the Vendors' shares in PKE which were of a lesser value. 18.2 Loans of $3,852,041 made by the applicant to PKE which PKE is unable to repay." Deloittes moves for orders that the action be "set aside as irregular", that Ogenic pay security for Deloittes' costs of the action in the sum of $158,931 and that paras 5 and 10.1 of the statement of claim be struck out. As to the first limb of the motion the point is made that when the application was instituted Ogenic had only two directors instead of the three required by article 79 of its Articles of Association and s 221 of the Corporations Law. Notwithstanding the absence of a minute of the meeting I am satisfied that the point is met by the affidavit evidence of Neil Graham that he was reappointed a director of Ogenic on 1 July 1997 and agreed with the other two directors, Deryck Graham and Paul Rangel, to ratify their earlier decision to institute the present proceedings. On the question of security for costs there seems to be little dispute that Ogenic is impecunious. Mr Neil Graham states in his affidavit that the company has no resources and its directors have no funds available to meet any application for security. He says that the "liquid assets" of Ogenic were paid into PKE as part of the merger and acquisition of PKE by way of the loans totalling $3,852,041 which, since June 1994, have not been repaid as PKE is unable to repay them. Ogenic's financial position is said to have arisen as a result of its decision to acquire PKE which in turn was based on the report prepared by Deloittes and the oral representations made by Mr Jones of that firm on 13 April 1994. It is not immediately apparent that the advance of monies to PKE was a necessary consequence of the merger. The statement of claim does not expose the factual basis upon which the loans are said to be related to the conduct on the part of Deloittes which is said to have induced the merger. The merit of the claim is a relevant factor in deciding whether or not to make an order for security for costs. There was extensive affidavit evidence put before the court on each side of the argument going to the merits. On an application of this kind, however, a judgment as to the merits must be provisional and based upon incomplete and largely untested material. It is reasonably clear, however, that the claim obviously faces some difficulties. In particular the work which Deloittes was commissioned to carry out was for the purpose of the disposition of Ogenic's shares to the public to achieve the requisite spread of shareholders. Deloittes was not required to advise Ogenic in relation to the acquisition of PKE, the value of its shares or to participate in a due diligence review. Its quotation to carry out a valuation was not accepted. That work was given to another firm, Stanton Partners. Stanton Partners' report in draft was prepared after Deloittes was retained and before it supplied its report to Ogenic. Deloittes takes issue on the question of reliance and reference is made in the evidence to the express deletion from a statement concerning PKE's liabilities that the directors of Ogenic had relied upon the Deloittes report in the acquisition of PKE. The preceding observations are neither exhaustive nor conclusive of the merits of the case. Despite the limited purpose for which the Deloittes report was obtained and the use of other advice in relation to the acquisition it may be arguable that a case is made for reliance upon that report. Nevertheless the case faces sufficient difficulty that the merits militate in favour of an order for security. The making of an order for security for costs is to some extent an exercise in risk management. It involves balancing the risk that an impecunious applicant may be prejudiced in its ability to pursue a legitimate case against the risk that an innocent respondent may be left, after a successful defence, with no ability to recover its costs. Two proforma bills of costs have been proffered, one by Deloittes, the other by Ogenic. The Ogenic bill contemplates a 10 day trial with senior counsel with a costs total of $158,000. The Ogenic bill contemplates a total of $61,948 on a 7 day trial with senior counsel. I note that Ogenic's solicitors appear to have been retained on the basis that they will be paid the costs of the action if successful. Ogenic has submitted that if an order for security for costs is made it should be payable at various steps of the proceedings on a phased basis. In my opinion an order for security should be made, initially for an amount which will cover interlocutory processes to the point of hearing with further security to be provided before the matter goes to trial. In my opinion an appropriate global amount is $60,000, $25,000 of which should be provided now and $35,000 prior to entry for trial. The security can be provided by way of bank guarantee. On the objections to the statement of claim Ogenic's counsel concedes that par 5 is superfluous. As to par 10.1, I accept that it involves a representation which is nowhere said to be false. It conceivably raises a false issue and should be struck out. There will be orders accordingly. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice FRENCH J Associate: Dated: 3 October 1997 Counsel for the Applicant: Mr T H Brickhill Solicitor for the Applicant: Brickhill & Hanbury Counsel for the Respondent: Mr P G McGowan Solicitor for the Respondent: Phillips Fox Date of Hearing: 26 September 1997 Date of Judgment: 3 October 1997	2,511
federal_court_of_australia:fca/single/1997/1997fca0630	decision	commonwealth	federal_court_of_australia	text/html	1997-07-16 00:00:00	Telstra Corp Pty Ltd v First Netcom Pty Ltd [1997] FCA 630	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca0630	2024-09-13T22:52:48.461110+10:00	CATCHWORDS INTERLOCUTORY INJUNCTION - serious question to be tried - difficulty of assessing merits of substantive claims in interlocutory proceedings - whether one party's refusal to pay bills to the other party is based on a genuine and bona fide dispute - balance of convenience - maintenance of status quo until final determination - whether one party should be compelled to continue to supply services to another when bills remain unpaid - what measures can be taken to secure future liabilities between the parties - whether threat to substantial portion of one party's business justifies an injunction to maintain the status quo - whether comparable damage is likely to be incurred by continued non-payment of bills rendered TELSTRA CORPORATION PTY LTD v FIRST NETCOM PTY LTD NG 483 of 1997 EINFELD J SYDNEY 16 JULY 1997 IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No.NG 483 of 1997 GENERAL DIVISION ) Between:TELSTRA CORPORATION LTD Applicant And: FIRST NETCOM PTY LTD Respondent MINUTE OF ORDERS The Court orders that: 1. Upon the respondent by its counsel undertaking to pay to any party adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just, in such manner as the Court directs: (a) the applicant be restrained from communicating with the respondent's customers in the terms or to the effect of the draft letter enclosed with a letter from the applicant to the respondent dated 6 June 1997, and (b) the applicant be restrained until further order from discontinuing the supply of tariffed services to the respondent for the reasons set out in the said letter. 2. The applicant's application for security for the undertaking as to damages be adjourned until: (a) a substantive motion and affidavit(s) have been filed (b) the applicant has had an opportunity to explore the respondent's offer to consider a payment regime for future services, (c) the possibilities for mediation or arbitration have been considered, and (d) the Court can determine a sensible regime of case management for this case including its possible compulsory reference out to arbitration. 3. Costs reserved. Note: Settlement and entry of orders are dealt with in accordance with Order 36 of the Federal Court Rules. EINFELD J SYDNEY 16 JULY 1997 IN THE FEDERAL COURT OF AUSTRALIA) NEW SOUTH WALES DISTRICT REGISTRY) No.NG 483 of 1997 GENERAL DIVISION ) Between:TELSTRA CORPORATION LTD Applicant And: FIRST NETCOM PTY LTD Respondent REASONS FOR JUDGMENT EINFELD J SYDNEY 16 JULY 1997 History of the parties' relationship Following upon partial deregulation of the telecommunications industry in Australia, First Netcom Pty Ltd (First Netcom) has been in business as a reseller of telecommunication services within Australia since about the end of 1994. From about July 1995 all of First Netcom's services were obtained from Telstra Corporation Ltd (Telstra), including local, trunk and international telephone calls. In other words, First Netcom became an intermediate provider to the general community of the full range of Telstra's telecommunication services. Since some time in 1996 First Netcom has been obtaining its trunk and overseas facilities from Optus Communications Ltd (Optus) but as Telstra is at present the only viable direct source of local call services, it has continued to obtain those calls through Telstra. In general terms, First Netcom seeks and enters into contracts with customers -- whether individuals, governments, public agencies and entities, unincorporated associations, or corporations -- for the provision of telecommunications services. Because of arrangements made to facilitate deregulation of the telecommunications market in Australia, First Netcom is able to obtain local calls from Telstra at a somewhat lower rate or tariff than is available to the public dealing with Telstra direct. It then offers to its customers a package of services on various terms and conditions including the price of the services provided. In this way the customer is thought to benefit both by reason of a reduced cost of calls and the provision of one single account for all telecommunications uses. Of course Telstra is in the retail market itself as a full competitor with First Netcom and other resellers. To permit Telstra to bill First Netcom for the local call services which its customers use, First Netcom provides Telstra with certain basic information concerning its customers who are then placed on what is known as the "Agreed Accounts List" (AAL). It is the parties' intention that First Netcom's AAL record all its customers who have been notified to Telstra and who have not subsequently ceased to be its customers. As with all its own direct customers, Telstra's infrastructure equipment records the use of the telecommunications services made by the customers of all resellers or service providers, and at agreed intervals furnishes a bill or account to the resellers for the services used. The resellers then send bills to their customers on the basis of the contracts entered into between them, including the agreed price for the local calls supplied through Telstra's infrastructure facilities. The customers then pay the resellers for the services supplied. The arrangement between First Netcom and Telstra is that Telstra issues a separate monthly bill in respect of each First Netcom customer and sends it to the nominated city office of First Netcom. Under their agreement Telstra issues these bills in what is called a "paper format", meaning that it is in the same form as bills issued by Telstra to its own direct retail customers. It is not clear how long after Telstra renders each bill to First Netcom that the bill becomes payable. Since early in its relationship with Telstra, First Netcom has been alleging a number of systemic and other failures by Telstra in its contractual obligations. Among the allegations have been that Telstra failed or delayed to transfer customers to First Netcom's AAL, that there were unauthorised additions to and deletions from First Netcom's AAL, and most importantly that Telstra failed to provide accurate and timely billings. First Netcom has also alleged that a division of Telstra known as the "Winback Team", set up to entice customers of its competitors back to Telstra, has used confidential information to approach First Netcom's customers and seek to persuade them to transfer their services to Telstra direct. Another allegation is that in its attempts to target First Netcom's customers in this way, Telstra has communicated misleading and deceptive information about First Netcom, including that it is First Netcom itself which is unable to provide accurate and timely billing and other services to the customers. As a consequence of these alleged failures on the part of Telstra, First Netcom claims that it has suffered significant loss and damage including a loss of customers enticed back to Telstra by the allegedly misleading representations. After a certain point in time in 1996 which is difficult to identify precisely, First Netcom ceased to pay all or most of the bills it was receiving from Telstra in respect of services availed of by First Netcom's customers. Accordingly, as at 30 September 1996, Telstra was alleging that First Netcom owed $10,104,707 of which accounts to the value of a little over $9,000,000 were identified as "disputes subject to resolution". The significance of this classification is that, according to First Netcom, Telstra has at all relevant times operated an apparently unofficial disputes procedure with its service providers under which they notify Telstra when they dispute a bill including the grounds of the dispute, and for its part Telstra does not then require payment of the disputed amounts until the disputes have been determined. First Netcom says that in accordance with this procedure it has notified Telstra of a large number of disputed bills and the reasons for each dispute by reference to certain codes or categories under Telstra's procedure protocols. The last dispute or series of disputes filed by First Netcom with Telstra was lodged following the December 1996 accounts. Correspondence crystallising the current dispute There has been a raft of correspondence between the parties or their solicitors: 1. The immediately relevant exchange commenced on 20 May 1997 when Telstra wrote to First Netcom as follows: First Netcom's Trading Relationship with Telstra - Credit Assessment Telstra has conducted a review of the creditworthiness of First Netcom Pty Limited ('First Netcom'). The result of that review is that Telstra believes that First Netcom is not creditworthy. Accordingly, under clause 6.3(a)(l) of the General Conditions Applicable to Telecommunications Services, Telstra requires First Netcom to provide security to Telstra for payment of charges incurred and unpaid by First Netcom in relation to telecommunications services. Telstra requires that the security have a value of at least 75% of the charges incurred and unpaid by First Netcom. According to Telstra's records, charges incurred and unpaid by First Netcom up to 31 March 1997 total $13,863,962. The security must be in place by 3 June 1997. The security may take the form of a suitable bank guarantee in favour of Telstra. A form of bank guarantee which would be acceptable to Telstra is enclosed for your consideration. Alternatively, Telstra is prepared to entertain some other form of security if First Netcom wishes to offer it, so long as it is in a form and of a value satisfactory to Telstra and can be offered, negotiated and implemented by 3 June 1997. In order to have the security in place by 3 June 1997, you should indicate by 27 May 1997 that First Netcom is prepared to provide the security sought. In addition, by 27 May 1997, you should provide Telstra with First Netcom's response to our proposed form of security or, alternatively, First Netcom's proposed form of security. 2. On 22 May 1997 First Netcom replied to Telstra's letter: First Netcom denies that it is not creditworthy. Please provide copies of all documents constituting or evidencing the review which you say Telstra has conducted and the belief you say it has formed. First Netcom denies that there are charges incurred and unpaid by First Netcom up to 31 March 1997 of $13,863,962.00. Further, given that this alleged debt is the subject of proceedings in the Supreme Court, and that you are aware it is being contested in those proceedings, it seems to me that your separately seeking to obtain security may well be improper. First Netcom's rights in this regard remain reserved. In any event, to the extend (sic) that clause 6.3 of the General Conditions may constitute part of any agreement between First Netcom and Telstra (which is not admitted) it is clear from the totality of the wording of that clause that it is not intended to apply to charges which have been incurred in the past. In view of the foregoing, there is no occasion for the provision of the security you request. If Telstra's (sic) proposes to take any action against First Netcom in relation to, or arising from, First Netcom's not providing the security sought, other than by way of proceedings, I request that you provide me sufficient advance notice so as to allow First Netcom to approach the Court if it is so advised. You should also consider that the taking of any such action may well greatly aggravate the loss and damage which Telstra has already caused First Netcom. I note in passing that the form of Letter of Credit which you provide with you letter has Pacific Star Communications Pty Limited as the "Account Party". I assume from this you are seeking security in identical terms from that company. This seems to me yet another indication of the commonality between the two proceedings which you and your legal counsel are at such pains to deny. 3. This letter was replied to by Telstra on 27 May: It is evident from your letter that First Netcom declines to provide the security required by Telstra's letter of 20 May 1997. If that is not the case, please advise me immediately and specify what security First Netcom agrees to provide and when that security will be in place. I respond to the principal points in your letter below. (i) Telstra rejects the legal arguments in your letter in relation to the proper construction of Clause 6.3 of the General Conditions Applicable To Telecommunications Services ("Clause 6.3") and the effect of the proceedings commenced against First Netcom by Telstra. (ii)Clause 6.3 does not state that, in order to require security from First Netcom, Telstra must establish any facts regarding the credit risk arising from Telstra's current relationship with First Netcom. In any event, First Netcom cannot decline to provide security on the ground that First Netcom would like to review Telstra's analysis of that credit risk. I further note that your letter provides no facts that would remotely support a conclusion that such a credit risk does not exist. (iii)I also note your statement that First Netcom does not acknowledge that Clause 6.3 forms part of the contract currently governing the relationship between Telstra and First Netcom. Please confirm whether First Netcom takes the position that it currently is not bound by Clause 6.3 and state the reasons for any such position. In summary, Telstra continues to require security from First Netcom in accordance with my letter of 20 May 1997. Telstra reserves its rights in respect of the other statements in your letter. 4. First Netcom's reply was dated 4 June: First Netcom's Trading Relationship with Telstra This letter responds to your letters dated 27 May, 1997 and, to the extent it refers to the payment sought in your letter of 20 May, 1997, to your letter of 29 May, 1997. First Netcom does not accept that Telstra has established any proper basis for requiring either the security or advanced payment sought. These matters are addressed in my letter of 26 May, 1997 and I adhere to what I said in that letter. In respect of the specific matters you raise in the earlier of the letters referred to, I reply as follows. (i) Noted. We must agree to disagree. (ii)It was your letter of 20 May, 1997 that, in effect, asserted that Telstra was seeking security pursuant to clause 6.3(a)(i) because it had conducted a review of, and formed a belief as to, First Netcom's creditworthiness. It seems to me that, irrespective of the contractual position, Telstra could not, in good faith, pursue security in this way unless it had formed, on a proper basis, a bona fides (sic) belief that circumstances existed which justified its doing so. If you were to provide the documents evidencing the review, as I have requested, it may be that I could dispel any misapprehension's that Telstra has about First Netcom's creditworthiness. (iii)If Telstra seeks to rely on clause 6.3, it is for Telstra to establish that it applies. 5. In a second letter dated 20 May, Telstra wrote to First Netcom: FIRST NETCOM'S TRADING RELATIONSHIP WITH TELSTRA - CREDIT ASSESSMENT Telstra has conducted a review of the creditworthiness of First Netcom Pty Limited ("First Netcom"). The result of that review is that Telstra believes First Netcom is not creditworthy. Accordingly, under clause 6.3(a)(ii) of the General Conditions Applicable to Telecommunications Services, Telstra requires First Netcom to pay in advance part of the charges which it is estimated First Netcom will or may incur in relation to the provision by Telstra of telecommunications services to First Netcom. Accordingly, Telstra requires the payment of $325,000 being 50% of the charges Telstra estimates First Netcom will or may incur in June 1997 in relation to the provision by Telstra of telecommunications services to First Netcom. The payment of $325,000 must be made to Telstra by 30 May 1997. Telstra foreshadows that it may require similar advance payments in the future. 6. First Netcom's reply was dated 26 May: First Netcom's Trading Relationship with Telstra This letter refers to the second of your letters of 20 May, 1997 and to recent discussions and correspondence with Brett McCracken of ISBU concerning Telstra's failure to provide bills. In my letter of 22 May, 1997, responding to your first letter dated 20 May, 1997, First Netcom denied that it is not creditworthy. That denial is reiterated. Telstra has, so far as this Company is aware, no basis to assert to the contrary. I am now forced to the unavoidable conclusion that Telstra is embarked on a calculated campaign to undermine (I should say, "further undermine") First Netcom's financial position. I base this on the following: (a) your attempt to require something in excess of $10 million security in respect of Telstra's disputed debt claim which attempt is, as I have already indicated in previous correspondence, at best, of doubtful propriety given that the claim is already the subject of litigation; (b) Your present unjustified attempt to require advance payment of a substantial sum based on your estimate of charges First Netcom may incur (which, incidentally, appears to take no account of the ongoing errors in, and late provision of, billing information by Telstra); and (c) Telstra's apparently capricious failure to supply billing information in April (thus further undermining First Netcom's capacity to recover charges from its own clients), as referred to in the conversations and correspondence with Brett McCracken, and as detailed below. All this must be seen in the context of the egregious harm Telstra has already caused First Netcom by its persistent failure to provide accurate and timely billing since the inception of our business relationship. As had previously been indicated, the Company's estimate of that loss and damage in January this year was approximately $37 million. Telstra's failure to adequately address the underlying billing recovery process, notwithstanding our repeated requests and suggestions in this regard, will have already significantly exacerbated that loss. Any attempt to further require provision of security or payment in advance, or any action purportedly taken in consequence of their not being provided, will only further aggravate the situation. I reiterate my request for advance notice of any such action if it takes any form, other than being brought by way of proceedings. So far as the April billing is concerned, the situation is as follows. Telstra has simply failed to provide bills for in excess of 2,300 customers due for delivery in the first half of April. No alteration has been authorised or requested in respect of the billing profiles of these accounts, including in relation to billing frequency and bill production date. It appears that the best Telstra can offer is to provide the bills in about a month's time. In other words, approximately two and a half months late. It also appears that Telstra may, unilaterally, have put back the bill generation date in respect of these customers. Could you please, as a matter of urgency inform me: (a) whether Telstra has altered in any way the billing profile of the accounts concerned (they are identified in the email sent by Wayne Wilson to Mr McCracken on 28 April, 1997); and (b) when the bills concerned are to be supplied. Without prejudice to First Netcom's rights which may have already accrued, I put you on notice that if I do not received (sic) a satisfactory response to this inquiry, First Netcom will take such action as it is advised, which may well include approaching the court for interlocutory orders to protect its position in this regard. 7. Telstra replied on 29 May: First Netcom's Trading Relationship with Telstra - Request for Payment in Advance I refer to your letter dated 26 May 1997, which responds to Telstra's request for payment in advance. Telstra rejects any suggestion that it is acting in a unjustified or improper manner in requiring First Netcom to pay in advance part of the charges which Telstra estimates First Netcom will or may incur in June 1997, as contemplated by Clause 6.3(a)(ii) of the General Conditions applicable to Telecommunications Services ("Clause 6.3"). Telstra is simply exercising its contractual right to do so. Nothing in your letter, including your comments concerning the April billing information, provides First Netcom with any justification to refuse to make the payment sought in my letter of 20 May 1997. In those circumstances, Telstra expects First Netcom to make part payment in advance in accordance with my letter of 20 May 1997. In respect of your statements concerning a portion of First Netcom's April billings, as a result of an internal billing audit by Telstra, a number of First Netcom accounts, for which bills were due to be produced for the period 4 to 21 April, were "pended". This means that while charges incurred for the accounts were recorded in Telstra's systems, bills for the period 4 to 21 April were not produced and forwarded to First Netcom in April. All relevant charges not billed to First Netcom for the period 4 to 21 April were, however, subsequently included in the bills produced and forwarded to First Netcom in relation to those accounts in May 1997. Accordingly, first Netcom has been billed for all charges incurred in relation to the accounts in question. In response to paragraph (a) and (b) (sic) on page 2 of your letter, I say as follows: (a) Telstra has not altered the billing profile of the accounts concerned; and (b) Since First Netcom has already received bills in May 1997 that incorporate the charges that were not billed during April, there appears to be no purpose served by producing additional bills for the period 4 to 21 April. Your letter also appears to mischaracterise my letter of 20 May 1997 requiring security. My letter of 20 May speaks for itself. Telstra does not purport to comment at this time on your unsubstantiated claim concerning losses incurred by First Netcom. Telstra reserves all its rights in respect of the matters referred to in your letter. 8. This letter was replied to by First Netcom on 2 June in a letter marked 'Without Prejudice': Your explanation as to why a portion of our April billings were not received is directly at odds with the advices made by your Mr Brett McCracken, and I seriously suggest that you two sit down and get your story straight before you are cross examined on this issue in the courts. Mr McCracken's advice, when we confirmed non receipt of the April bills, was that there was no problem and that we had actually been billed, hence Telstra could give no particular reason why those bills had not been received. Mr McCracken advised us that for this reason, and the fact that we had not received bills, Telstra would undertake to reprint the missing April bills. We in fact specifically queried whether the bills had been placed in "review", and were advised by Mr McCracken that this was not the case. The fact that you now contradict his statements is a matter of concern, and we are suspicious as to the motivation. We see this use of the "bills in review" program as a further example of intimidation by Telstra, and suggest that you refer to the speech made by your CEO, Mr Frank Blount, at the recent ATUG conference, when he said (and I quote) "The senior management of Telstra does not, and will not, condone intimidation as an element of any of the company's relationships at any time for any reason". We in the service provided (sic) industry would be delighted to hear that the "new Telstra" that Mr Blount refers to will herald in an area of trust in the carrier, however our experience to date with the commercial thuggery and intimidation used by Telstra in its dealings with our industry gives us little hope for improvement. I note further in your letter you do not guarantee Telstra will not once again place bills into review "as a result of an internal audit", and therefore cannot guarantee timely receipt of billing information by First Netcom. Perhaps you would like to provide these undertakings now. 9. Telstra replied, in a letter also 'WITHOUT PREJUDICE', on 10 June 1997: The correct position in relation to the April billing information is as set out in my letter to you dated 29 May 1997. For your information, the "pending" of bills is not the same as placing "bills in review". The placing of "bills in review" is a result of Telstra's billing systems automatically identifying abnormal call charges on a bill and withholding that bill for further investigation. An account is "pended" as a result of a manual internal audit which means that bills for that account will not be produced during the period the account is "pended". Mr McCracken was correct when he advised you the bills were not "bill in review". There has been no contradiction between my advice to you and Mr McCracken's advice to you in that regard. As to the balance of your letter, I reject any suggestion that Telstra has engaged in any type of "intimidation". Further, I have responded to the matters on which you sought clarification in my letter of 29 May 1997. No undertakings were sought in the terms which you now suggest nor would they be required or appropriate. In the circumstances, First Netcom is in no position to require guarantees concerning the provision of services to it. 10. First Netcom's reply to this letter was dated 11 June and was also marked 'Without Prejudice': 1. Thank you for your further explanation of the so called "Pending" of bills. Perhaps you can now advise why our bills were "pended", if indeed this was a manual exercise, why Mr McCracken was not aware of this. Mr McCracken was approached on a number of occasions and asked for an explanation as to what was happening with these bills, and his answer was that he did not know, and that the bills had been sent out, and that he would arrange for duplicate bills to be issued. Surely if this was a manual system, and the number of bills in our grouping were "pended" to the extent they were, Mr McCracken would have been aware of this as our Account Manager. If he wasn't, would you like to comment on the organisational arrangements that allow this to happen. 2. The fact that you do not seem to believe that Telstra has been involved in a systematic intimidation of this company specifically and the service provider industry general (sic) does you no credit. There is ample evidence to show that Telstra either by direct planning or intentional acts of omission, has done what it could to ensure that the Service Provider industry was effectively "nobbled" prior to deregulation. That Telstra has done a good job at removing any level of competition is undoubted, and there is ample evidence that will be provided in the courts in due course to show what has been done. This correspondence, as time-consuming and unrewarding in resolving a single disputed matter as it was, represents only a small portion of the party and party exchanges evidenced in the proceedings thus far. I have set it out in this selective way to illustrate in the words of the parties what the nature and substance of their disputes are. I have included the letters marked 'without prejudice' because as I read them they are not truly without prejudice in any relevant sense at all. 11. Inserted into this panoply of words was a letter dated 6 June 1997 in which Telstra brought these disputes to a head: Telstra Corporation Limited - Discontinuance of Services to First Netcom Pty Ltd This letter provides formal notice to First Netcom of Telstra's intention to discontinue all tariffed services to First Netcom on 8 July 1997. Telstra relies, without limitation, on clause 7.3 of Telstra's General Conditions Applicable to Telecommunications Services as entitling it to discontinue the provision of all Tariffed Services to First Netcom on any of the grounds that payment by First Netcom of accounts for services is overdue, the provision of security by First Netcom is overdue and First Netcom has breached terms and conditions of the Tariff. Telstra relies, without limitation, on all or any of the following: 1. By letter dated 19 February 1997, Telstra demanded payment by First Netcom within 7 days of the sum of $3,639,327 being an amount payable to Telstra in relation to a number of accounts which First Netcom sought to dispute on the ground described as "invalid tariff code". That amount has not been paid. 2. By letter dated 12 March 1997, Telstra demanded payment by First Netcom within 7 days of the sum of $1,718,633 being an amount payable to Telstra in relation to a number of accounts which First Netcom sought to dispute on the ground described as "insufficient details". By letter dated 2 April 1997, Telstra revised that amount and demanded immediate payment by First Netcom of the sum of $1,664,845. That mount has not been paid. 3. First Netcom has failed to pay the sum of $3,168,633 in respect of accounts for services provided by Telstra from 1 October 1996 to 28 February 1997. That sum is overdue and has not been paid. 4. By letter dated 20 May 1997, Telstra sought security from First Netcom in respect of charges incurred by First Netcom and which remain unpaid, which security was to be in place by 3 June 1997. That security has not been provided. 5. By letter dated 20 May 1997, Telstra required from First Netcom, by 30 May 1997, payment in advance of part of the charges which Telstra estimates First Netcom will or may incur in June 1997, in the amount of $325,000. That amount has not been paid. First Netcom is also notified that, too minimise any disruption in relation to the provision of services to First Netcom's customers, Telstra intends to inform those customers, on 20 June 1997, of the intended discontinuance. A form of the proposed notice to customers is enclosed. DRAFT THIS LETTER CONTAINS IMPORTANT INFORMATION AFFECTING YOUR TELEPHONE SERVICES PLEASE READ IT CAREFULLY June 1997 Name Address Contact Details Dear [Sir/Madam] Your telephone service from First Netcom Pty Limited We understand that your telephone service is currently supplied to you by a service provider, First Netcom Pty Limited, which "resells" to you telecommunications services supplied to it by Telstra. Effective from 8 July 1997 Telstra intends, from 8 July 1997, to cease to supply First Netcom Pty Limited with telecommunications services for re-sale to you. This would mean that from 8 July 1997 your current telephone service would no longer be supplied by First Netcom Pty Limited You choose new supplier In that event, you would need to choose one of the general carriers (Telstra or Optus) or a new service to supply your telecommunications services from that date. You may even choose to acquire your network access and local calls from one supplier and your long distance calls from another. For example, if you would like to choose Telstra as the supplier of some or all of the telecommunications services you currently obtain through First Netcom Pty Limited, you can proceed in one of two ways. OPTION 1:You can complete the attached Customer Transfer Form and return it to Telstra by 4 July 1997 OPTION 2:You may simply continue to use your telephone service as you require after 8 July 1997. In that event, you will be taken to have accepted this offer of Telstra to supply telecommunications services to you. Telstra will reflect this change in its records and allocate an appropriate pricing plan to your accounts for services rendered after that date. You can change that discount plan, if you wish. Choosing another supplier If on the other hand you wish to choose a carrier or service provider other than Telstra to provide some or all of your telecommunications services, you should contact the relevant organisation to determine what you are required to do to have your services supplied by that organisation. You should then contact Telstra on the number set out below and advise us of your decision by 4 July 1997. Telstra will then effect your transfer to the other supplier. In the meantime, Telstra intends to protect your interests by continuing your telephone service from the date of discontinuance of services via First Netcom until the transfer to your new supplier is completed. Telstra will charge you according to an appropriate pricing plan for your use of telecommunications services during that period. If you do not want your services to continue during that period, please tell us immediately by calling the number set out below. What to do now · Decide how you want to acquire telecommunications services from 8 July 1997 and take the steps described above. · In the meantime, you should pay accounts received from First Netcom for services provided by it. Telstra has established a dedicated Help Desk to respond to any questions you may have and to minimise any disruption the change in the supply of your telecommunications services may cause you. The contact number is [1800 ] Yours sincerely [Name] [Title] 12. Telstra's solicitors Mallesons Stephen Jaques (Mallesons) added two further justifications for Telstra's proposed discontinuance of services in a letter somewhat oddly described as a "Confidential communication" and dated 18 June 1997 to First Netcom's solicitors Freehill Hollingdale & Page (Freehills): 1. First Netcom has failed to pay the sum of $663,265.36 in respect of accounts for services provided by Telstra for the month of March 1997. That sum is overdue and has not been paid. 2. First Netcom has failed to pay the sum of $313,485.93 in respect of accounts for services provided by Telstra for the month of April 1997. That sum is overdue and has not been paid. There is no presently relevant "confidential" material in that letter such as should prevent its extraction here. Legal proceedings between the parties In July 1996 First Netcom commenced proceedings against Telstra in the Equity Division of the Supreme Court of New South Wales seeking an order that Telstra provide it "with sufficient billing information to enable it to bill each of [its] clients". It also claimed damages, interest and costs. The summons was served and Telstra entered an appearance but at Telstra's request the parties agreed not to advance those proceedings so as to enable the disputes between them to be the subject of mediation. There followed extensive without prejudice negotiations extending to quite recently but no mediation has taken place. First Netcom says that it is willing to mediate the disputes. Telstra appears to have lost or moderated its enthusiasm for mediation. I am not aware of the fate of these proceedings. On 23 April 1997 Telstra commenced proceeding number 50090 of 1997 in the Commercial Division of the Supreme Court of New South Wales against First Netcom claiming the sum of $13,863,962 being charges allegedly incurred and unpaid up to 31 March 1997. On 18 June 1997 First Netcom filed its defence and cross claim to this claim. By this time there had already been three directions hearings in the Commercial Division, namely on 9, 16 and 21 May. Then on 19 June, when the cross claim was first sighted by the Supreme Court, it was seen that First Netcom was relying on a large range of causes of action including substantial breaches by Telstra of their contract, as well as negligence, misleading and deceptive conduct, unauthorised use of confidential information, unconscionable conduct, fraud on power, misuse of market power and what is described as discrimination under the Telecommunications Act. Damages were sought in an unparticularised sum although an affidavit of First Netcom's solicitor earlier quantified the loss at approximately $37,000,000. Importantly for present purposes, the cross claim sought interlocutory injunctions until the determination of the proceedings or further order to restrain Telstra from discontinuing the supply of telephone services to First Netcom and from communicating with First Netcom's customers in the terms or to the effect of the draft notice enclosed with Telstra's letter to First Netcom of 6 June 1997. Because of perceived jurisdictional problems for the New South Wales Supreme Court in dealing with all the issues raised by the cross claim, the case was cross vested to this Court on 19 June 1997 on which day an urgent hearing was commenced on the application for interlocutory relief. In order to enable the Court to hear and give judgment on the matter, appropriate undertakings have been given to extend the time for the sending out of the letter until judgment has been given. Of course the central issue is not the proposed letter but the intended discontinuance of Telstra's local call services to the letter's addressees if they remain First Netcom's customers. The evidence There was a considerable quantity of evidence called on the application for interlocutory injunctions. There is no dispute that the parties reached agreement in 1995 for Telstra to supply telecommunications services to First Netcom. It is also agreed that in the intervening period Telstra has been supplying considerable quantities of telephone calls and other facilities to First Netcom's customers even though in the last 12 months or so these services have been limited to line rental, maintenance and local calls. In fact it appears that First Netcom's customers are incurring amounts in the order of $600,000 to $650,000 per month for these services. For a considerable time First Netcom has been disputing almost every account so that since at least October 1996 it has paid Telstra only about $25,000 per month, or less than 4% of total billings, whilst collecting from its customers of the order of 40-50% of those sums. Since January 1997 no bills have been lodged for dispute but in general payment has not been made. First Netcom claims that it is not bound to pay on two main grounds, first, that the bills are still quite inadequate to identify actual amounts owing with sufficient accuracy and precision to be able to be checked and verified to the customer, and second, that its cross claim so far exceeds Telstra's claim against it as to provide no requirement for payment. As indicated by the correspondence earlier extracted, Telstra considers that it should not be required to continue to provide services to a company which owes it such a large sum of money, and which is not prepared to provide security for past or future liabilities, despite recovery from its customers of a sizeable proportion of the moneys owed. In Telstra's opinion First Netcom is also unable and unlikely to be able to pay its future liabilities. The inference if not express suggestion by Telstra is that the real reason First Netcom is not paying is not because of the inaccuracies or inadequacies in the billing or because of the cross claim but because it does not have the funds to pay. An internal memo from the credit manager of Telstra's division known as the Industry Services Business Unit-Finance to the General Manager of that division dated 20 May 1997 -- the same day on which Telstra sent its two letters to First Netcom seeking security and part payment in advance -- is instructive in this regard. In this memo the view is expressed that First Netcom possesses neither "the skills, expertise, financial backing, operational processes or performance record in respect of payments to be classified as an acceptable risk in either the short or the long-term". The memo identifies amongst other things that First Netcom is undercapitalised and that it has failed to participate "in a positive proactive manner to develop sustainable long-term financial and operational processes". The memo claims that Telstra's analysis is supported by independent external creditworthiness assessments conducted by Price Waterhouse in October 1996 which are said to have assessed First Netcom as "a high credit risk to Telstra". It was this memo that recommended that security be obtained from First Netcom and that there be a requirement for pre-payment of estimated charges to be incurred in future. In contrast to the first of the letters of 20 May seeking security for 75% of the claimed unpaid charges to 31 March 1997 of $13,863,962, the memo suggests that security be sought for the total amount owing as at 20 May 1997. All of this memo together with the two letters of 20 May and the subsequent correspondence indicate that Telstra fears that it will not be paid either the past amount or future charges. It was in the light of the refusal and failure of First Netcom to offer or provide either of these requests that led to the notice to discontinue services to First Netcom of 6 June and the proposed letter to First Netcom's customers. As Telstra's letter of 6 June and Malleson's letter to Freehills of 18 June indicate, the threat to discontinue also relies upon First Netcom's failure to pay several other amounts as requested. Submissions of parties Telstra argued for the Court's acceptance that the unpaid amounts are not seriously disputed. It said that it is no part of the agreement between the parties that disputed bills or parts of bills can justify the non-payment of other undisputed bills or parts of bills. Moreover, it claimed that First Netcom is using the dispute procedure as part of a deliberate plan to conserve its available money. Telstra cited blanket disputation of whole lists of unpaid bills, rejection of entire bills because of an error in one item, refusal to honour the due date for the payment of a single bill, belated raising of disputes long after the original accounts were raised, and refusal to pay even the items actually collected from customers which are acknowledged to be justified. Telstra thus contended that no seriously triable issue was raised as to any or any significant part of the amount claimed. As to the cross claim, Telstra contended that much of it was bogus and in any event that damages would provide an adequate remedy for any causes of action proved. First Netcom contended that discontinuance and the proposed letter would themselves prove all or some of the causes of action relied on in the cross claim. It said that Telstra submitted the dispute to the Court for resolution and it should not be allowed to have the dispute effectively determined by an extra-curial summary procedure without waiting for the judicial determination that Telstra itself is seeking. First Netcom contended that the genuineness of the dispute has been clearly proved and that it is not irrelevant that Telstra is in current dispute with eighteen out of twenty service providers. Thus Telstra should be found to be threatening discontinuance as a means of pressurising First Netcom to pay or even to drive First Netcom out of the retail market for telecommunications services altogether. This is said to be driven by the last phase of deregulation of the industry on 1 July 1997 which opened the market to full competition. The legal position In order to obtain the interlocutory relief it seeks, First Netcom must show that there is an arguable or triable issue that Telstra is not owed the money it seeks or any reasonable proportion of it, or that it does not have a legal or equitable right to discontinue services as threatened. To the extent that First Netcom's arguments rely upon the cross claim, it must also show that there is an arguable issue that Telstra is in breach of at least some of the obligations upon which the cross claims for damages are sought. It must also raise a serious question for trial that the damages sued for are of the order of the amount quoted or at least that the damages might exceed the amount to which Telstra might be held to be entitled. If these issues or any of them are raised, then the case must be one in which it is appropriate for the Court to exercise its discretion to grant the equitable relief sought. The usual expression is that the balance of convenience must favour the orders being made. It is customary to consider this matter in the context of maintaining the status quo pending the hearing of the action. Conclusions 1. It was not in truth disputed in argument that by clauses 6.1, 6.2 and 6.3 of Telstra's General Conditions Applicable to Telecommunications Services (the General Conditions), Telstra is both entitled to sue for the unpaid costs of services provided to First Netcom and to seek security for these payments. It is also entitled to seek and require pre-payment of future charges likely to be incurred. 2. Moreover, clause 7.3 of the General Conditions permits discontinuance for non-payment of accounts or security for payment: (a) Telstra may discontinue provision of a Tariffed Service: (i) if the customer becomes bankrupt or insolvent. (ii)if, whether or not the Tariffed Service has already been suspended or restricted under clause 7.2, payment of an account or provision of security, for the service or for any other telecommunications service provided to the customer, is overdue. (iii)if the customer breaches any term or condition of the Tariff. No part of the defence and cross claim is inconsistent with Telstra's right under this clause 7.3 to discontinue the services concerned. Indeed it appears to be implied from paragraph 4 of the defence amongst other places that First Netcom has agreed to be bound by the General Conditions. Prima facie it therefore cannot be disputed that Telstra is contractually entitled to discontinue the services concerned for non-payment of accounts. In other words, the discontinuance is or would prima facie be the exercise of a contractual right. 3. It is difficult to see from the evidence how the $37 million damages suggested for the cross claim could be in that order especially as First Netcom seems to have been trading at a loss throughout the whole of the period in which they have been in dispute with Telstra. 4. However, a major question raised by the interlocutory application is whether discontinuance would be a bona fide and proper use of the contractual right, whether it would in the circumstances represent a prejudgment of the issues to be raised in the litigation which Telstra itself commenced, and whether it would be an action in breach of other legal obligations and statutory enactments. In other words, First Netcom's application for interlocutory relief raises the question whether Telstra's use of the discontinuance weapon is a legitimate exercise of its rights and powers in the light of its summary effect on First Netcom's business and profitability. For there seems little doubt and little dispute that discontinuance of its local call service would cause irreparable injury to First Netcom in that it may be fatal to its reputation as a worthy and genuine operator, and thus its retention of its customers' other business in the trunk and international markets and its capacity to secure additional customers. The evidence did not satisfy me that there was a reasonably available alternative source of supply of local calls on commercial terms to Telstra. 5. So far as concerns the proposed letter, a real question arises as to whether the proposal to address First Netcom's customers direct is a legitimate act on the part of Telstra at all, let alone that it is a necessary step in pursuance of its contractual rights to terminate its services to First Netcom. Although Telstra has asked First Netcom to supply a list of names and addresses of its customers, Telstra admitted in evidence that it did not need this list and would be able to send out the letter to the customers without any assistance from First Netcom at all. Accordingly an argument arises as to whether this would be a use by the retail and promotions arms of Telstra of confidential information received for another purpose by another section of its business, whether this and the proposed discontinuance would be a breach of Part IV of the Trade Practices Act, and in any event whether it is misleading in its content. A seriously triable question arises as to whether it is legally appropriate to mix Telstra's selling of its own claimed qualitative excellence in services with its taking action against a retail competitor under the terms of a contract to supply basic communications facilities over which it has monopolistic control. 6. Without setting out a full analysis of the figures presented, there seems little doubt, from my reading of the figures and the evidence of First Netcom in relation to them, that prima facie Telstra will be found entitled to some moneys in its principal claim. There is too little evidence at this stage to assess the legitimacy or likely success of all the disputes raised by First Netcom in this connection, not least because the basic material in the form of Telstra's raw data to justify the charges made was not produced and does not appear to have been examined or analysed by either side. By the same token, sufficient doubts have been raised about some of the charges as to suggest that prima facie Telstra will not recover its entire claim. Leaving aside the cross claim altogether therefore, Telstra's contractual rights must themselves be assessed against the uncertainty of the amount of the debt it will be able to prove, and whether there are not other legal and equitable blockages to their use of the discontinuance option. 7. Telstra's conclusions about First Netcom's creditworthiness struck me as more argumentative than probative. The essential argument is that First Netcom's financial situation is such that it should not be permitted further credit facilities. Despite Telstra's denials, it seems to me that this is in substance if not in form an assertion of insolvency, or at least a present inability or unwillingness due to financial stringencies to pay its debts. This issue requires full litigation, not summary conclusions on an interlocutory basis. 8. First Netcom has decided that its problems with local calls are such that it will not be offering them to new customers although it intends to continue to supply existing customers. Hence it can be expected that its current monthly requirement of calls of upwards of $600,000 will not be exceeded. If Telstra's current assessment of debt of in excess of $13 million is correct, it can only rise to around $20 million if not one item is paid in the next twelve months by which time the litigation should be completed. 9. In fact that set of speculations is unlikely to be realised so adversely to Telstra. With commonsense and application, the case should be completed in less than twelve months. In fact the case cries out for early mediation or arbitration. Furthermore, First Netcom has been willing to pay some sums and submitted in this case that if future charges alone were addressed, it would favourably consider a sensible payment regime. If First Netcom continues to be unable to bill its customers efficiently and accurately, some may well cease to avail themselves of its services. If First Netcom continues to lose money on its local calls service, it seems unlikely to be willing to continue to supply them for long. 10. As I see the evidence, neither party comes to this litigation free of cloud or at least the absence of evidence on essential matters to be proved. I can well understand Telstra's concerns in the matter but at such an early stage of the case, it is quite inappropriate to foretell or compel the result of highly contentious and substantively disputed claims by permitting the status quo to be disturbed, in this case by the summary removal of a significant part of the business of a commercial enterprise. Telstra will lose further funds if First Netcom continues not to pay and Telstra at present declines arbitration of the disputes. But First Netcom may be forced out of business altogether if an injunction is not granted. This situation bespeaks only one possible result of these interlocutory proceedings. 11. The Courts are normally reluctant to interfere in commercial marketplace competition between two fierce competitors more than is absolutely essential to ensure that the law and fair conduct are being followed. In this case, there are two other concerns. One is that neither party has been entirely frank about its motives and the facts. The second is the possibility that either way an injunction -- or the refusal of an injunction -- will impact on the proposed public float of shares in Telstra foreshadowed by the Telstra (Dilution of Public Ownership) Act 1996 on which, oddly enough, no submissions were made and I have therefore ignored. This case thus presents as one where an injunction should go to preserve the current situation until the disputes can be determined. Undertaking as to damages First Netcom has offered the usual undertaking as to damages, meaning that it undertakes to pay any party adversely affected by the interlocutory injunction such compensation (if any) as the Court thinks just, in such manner as the Court directs. Telstra has sought security for the undertaking in an unstated amount which First Netcom has declined, principally on the ground that Telstra is unlikely to suffer loss or damage from the injunction. This dispute has hardly been argued and there has been no evidence on the subject except incidentally. Further, security for the undertaking is similar to the security for future charges sought in the correspondence and discussed earlier. In my view, if this matter is to be argued at all, it should be by substantive motion and evidence. I will therefore adjourn the issue of security until: (a) a substantive motion and affidavit(s) have been filed (b) Telstra has had an opportunity to explore First Netcom's offer to consider a payment regime for future services, (c) the possibilities for mediation or arbitration have been considered, and (d) the Court can determine sensible case management for this litigation including its possible compulsory reference out to arbitration. Costs The costs of this application will be reserved until the issue of security and the further management of the case have been determined. For the applicant Mr Henric Nicholas QC and Ms Lucy McCallum instructed by Mallesons Stephen Jaques, Solicitors For the respondent Mr Roger Gyles QC and Mr Stephen Finch, instructed by Freehill Hollingdale & Page, Solicitors Dates of hearing 19, 20 and 26 June 1997 Date of judgment 16 July 1997	11,579
federal_court_of_australia:fca/single/1994/1994FCA0793	decision	commonwealth	federal_court_of_australia	application/pdf	1994-10-28 00:00:00	Carbone, F.B. & Anor v. National Crime Authority & Ors [1994] FCA 793	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1994/1994FCA0793.pdf	2024-09-13T22:52:49.081993+10:00	a JUDGMENT No. snncdedasced ia CATCHWORDS CRIMINAL LAW - search warrants - warrant for search and seizure of documents etc. of private investigator retained by solicitor for person charged in relation to bomb explosion in premises of National Crime Authority - whether warrant complies with s.22 of National Crime Authority Act 1984 (Cth). PRACTICE AND PROCEDURE - legal professional privilege - waiver - tape recordings of conversations between private investigator retained by solicitor for person charged with certain offences and third party later transcribed - whether legal professional privilege waived from events at meeting between investigator and police - whether waived through use of transcript at committal proceedings - whether transcripts obtained in breach of Telecommunications (Interception) Act 1979 (Cth) - whether breach precluded privilege. PRACTICE AND PROCEDURE - legal professional privilege - witness statements - whether legal professional privilege exists in relation to witness statements - whether waived by provision of copy of statement to witness. National crimes Aut hority Act 1984 (Cth): ss.13, 14, 22, 22(5), 25, Telecommunications (Interception) Act 1979 (Cth): 5.7. "relevant criminal activity" George v Rockett (1990) 170 CLR 104; applied. Parker v Churchill (1985) 9 FCR 316; discussed. Attorney-General v Maurice (1986) 161 CLR 475; applied. R v Bell: Ex parte Lees (1980) 146 CLR 141; discussed. J-Corp Ltd v Australian Builders Labourers Federated Union of Workers (Western Australian Branch) (No 1) (1992) 38 FCR 452; discussed. Dingle v onwealth Development Bank st ia; discussed. Complete Technology Pty Ltd v Toshiba (Australia t (Hill J, 7 September 1994, unreported); discussed. NE_and DOMEN P. v NATIONAL CRIME AUTHORITY & ORS No SG77 of 1994 RECEIVED HILL J SYDNEY (Heard in Adelaide) 1- NOV 1994 28 OCTOBER 1994 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY ) ) RI REG ) No SG77 of 1994 ) ) BETWEEN: FRANCESCO BAGYIO CARBONE and DOMENIC PERRE Applicants AND: JOHN WILLIAM VON DOUSSA First Respondent MALCOLM IAN GRAY Second Respondent V HUNT Third Respondent KINGSLEY ROBINSON Fourth Respondent KYM _PRESGRAVE Fifth Respondent BRIAN SWAN Sixth Respondent ROBERT STAPLETON Seventh Respondent RAY LOECHEL Eighth Respondent NATIONAL CRIME AUTHORITY Ninth Respondent HILL J PLACE: SYDNEY (Heard in Adelaide) : 28 OCTOBER 1994 MINUTES OF ORDER THE COURT ORDERS THAT: (1) Application allowed. THE COURT DIRECTS THAT: (2) Applicants bring in short minutes of order setting out orders proposed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN_THE FEDERAL COURT OF AUSTRALIA A DISTRIC TRY GENERAL DIVISION No 8G77 of 1994 wr ww we BETWEEN: ERANCESCO BAGYIO CARBONE and DOMENIC PERRE Applicants Hog za \|=) JOHN WILLIAM VON DOUSSA First Respondent MALCOLM JAN GRAY Second Respondent AV U Third Respondent KINGSLEY ROBINSON Fourth Respondent KYM PRESGRAVE Fifth Respondent BRIAN SWAN Sixth Respondent ROBERT STAPLETON Seventh Respondent RAY LOECHEL Eighth Respondent NATIONAL CRIME AUTHORITY Ninth Respondent CORAM: HILL J PLACE: SYDNEY (Heard in Adelaide) DATED: 28 OCTOBER 1994 REASONS FOR JUDGMENT The applicants seek judicial review of the decision of von Doussa J, the first respondent, made on 7 October 1994 to issue, at the instance of the National Crime Authority ("NCA"), certain search warrants pursuant to s.22 of the National Crime Authority Act 1984 (Cth) ("the NCA Act") and ancillary relief. At the centre of the application lies the validity of those warrants which were addressed, inter alia, to Detective Senior Sergeant Robinson, the fourth respondent. Mr Carbone is a licensed commercial and private agent licensed under the Commercial and Private Agents Act 1986 (SA) in Categories 1, 2, 3, 5 and 8 of that Act. He was employed by a Mr Waye, a solicitor instructed by Mr Perre, to take statements of potential witnesses and to investigate the circumstances of the bombing of premises of the NCA in Adelaide. Mr Carbone's instructions extended to investigate a particular person, a Mr Chamberlain, in connection with that matter. At the time Mr Carbone was instructed by Mr Waye, Mr Perre had been charged with murder and attempted murder of an officer of the NCA who had died as a result of the bombing. There were numerous matters raised in the initial application. As is not uncommon with matters of this kind, the issues ultimately presented for hearing differed somewhat from those initially raised. In part this was brought about in the present case by considerable cooperation between the legal advisers of both parties in relation to a claim that many of the documents or other items seized were the subject of legal professional privilege attaching to Mr Perre, it having ultimately been conceded that subject to matters of waiver and other matters argued before me which affected particular documents, certain documents were clearly the subject of legal professional privilege and should be returned to the applicants, others were not at all the subject of privilege and others, such as statements of witnesses brought into existence by Mr Carbone or persons employed by him, were, subject to a formal submission that was put, also the subject of legal professional privilege and, subject to that submission, should be returned. This substantial area of agreement had the fortunate consequence of reducing considerably the time the matter took for hearing. The issues ultimately argued can be summarised as follows: (1) Whether the warrant as issued complied with the provisions of s.22 of the NCA Act so as to be valid. (2) Whether legal professional privilege in the transcripts of the interviews with Mr Chamberlain had been waived by virtue of events that happened on 13 and 14 July 1994. (3) Whether privilege in these transcripts was waived by virtue of parts of the transcripts being put' to Mr Chamberlain during the committal proceedings against Mr Perre. (4) Whether records of conversations between Mr Carbone and Mr Chamberlain were capable of being the subject of legal professional privilege, having regard to what was said to be a breach of the Telecommunications (Interception) Act 1979 (Cth) in the manner in which they came into existence. (5) Whether legal professional privilege can exist at all in witness statements although prepared for the sole purpose of litigation. (6) Whether legal professional privilege in witness statements is waived by a copy of those statements being given to the witness. I shall deal with each of these matters in turn. validi the warrant The warrant, a copy of which is annexed to this judgment, is purported to have been issued under' the provisions of s.22 of the NCA Act. Put simply, that section empowers a judge of a prescribed court (and this Court is a prescribed court) to authorise certain persons to enter upon premises to search for what the legislation refers to as "things of a relevant kind" and seize any things of the relevant kind found on the premises delivering them up to the NCA: see s.22(2). The expression "things of a relevant kind" is defined in s.22(1)(a) which, together with the opening words of sub-sec.(1), provides as follows: "A member may apply to a Judge of a prescribed court for the issue of a warrant under subsection (2) if: (a) the member has reasonable grounds for suspecting that, on a particular day (in this section referred to as the 'relevant day'), being the day on which, or a particular day within one month after the day on which, the application is made, there may be, upon the land or upon or in any premises ... a thing or things of a particular kind connected with a matter relating to a relevant criminal activity, being a matter into which the Authority is conducting a special investigation (in this section referred to as 'things of the relevant kind')...". The expression "relevant criminal activity" is defined in s.4(1) to mean: ",.. any circumstances implying, or any allegations, that a relevant offence may have been, or may be being, committed against a law of the Commonwealth, of a State or of a Territory;". The expression "relevant offence" is in turn defined in the same section as follows: ",.. an offence: (a) that involves 2 or more offenders and substantial planning and organization; (b) that involves, or is of a kind that ordinarily involves, the use of sophisticated methods and techniques; (c) that is committed, or is of a kind that is ordinarily committed, in conjunction with other offences of a like kind; and (d) that involves' theft, fraud, tax evasion, currency violations, illegal drug dealings, illegal gambling, obtaining financial benefit by vice engaged in by others, extortion, violence, bribery or corruption of, or by, an officer of the Commonwealth, an officer of a State or an officer of a Territory, bankruptcy and company violations, harbouring of criminals, forging of passports, armament dealings or illegal importation or exportation of fauna into or out of Australia, or that involves matters of the Same general nature as one or more of the foregoing, or that is of any other prescribed kind; but (e) does not include an offence committed in the course of a genuine dispute as to matters pertaining to the relations of employees and employers... (£) does not include an offence the time for the commencement of a prosecution for which has expired; and (g) does not include an offence that is not punishable by imprisonment or is punishable by imprisonment for a period of less than three years;". Sub-section (5) of 8.22 requires the warrant to set out certain matters. The sub-section provides as follows: "A warrant issued under this section shall: (a) include a statement of the purpose for which the warrant is issued, which shall include a reference to the matter relating to a relevant criminal activity into which the Authority is conducting a _ special investigation and with which the things of the relevant kind are connected; (b) state whether entry is authorized to be made at any time of the day or night or during specified hours of the day or night; (c) include a description of the kind of things authorized to be seized; and (d) specify a date, not being later than one month after the date of issue of the warrant, upon which the warrant ceases to have effect." It is not disputed by the applicants that prima facie the warrant appears to comply with the requirements of 8.22(5). Two separate points are, however, made. First, it is said that the description of the "things" to be searched for contained in Schedule A is so wide that the warrant is, in the language of the common law cases, a "general warrant". In part this submission depends upon whether the words at the end of the Schedule "And which relate to the affairs, activities or associates of Dominic PERRE" qualifies only para.(5) of the Schedule or whether those words relate to each and every one of paras.(1) to (5). It was conceded that if para.(4) were, in its description of "things", unrestricted by those last words, then para.(4), at the very least, would be too wide but could be severed. This would leave only paras.(1) to (3) and para.(5) valid. It may very well be that the words at the end of Schedule A were intended to govern each of paras.(1) to (5) and that their positioning as indented as part of para.(5) is a typographical error. Some weight is given to that argument by the reference to "the things mentioned in 1 to 4" in para.(5). In my opinion, however, a warrant must be strictly construed. If the NCA, albeit inadvertently and through typing error, describes documents in a way which is ambiguous in the sense that the person to whom the warrant is addressed could read it either in one way or another, then if the warrant is capable of being read in a way adverse to the NCA, the NCA must bear the consequences. It follows, although it is not necessary for my decision in the case, that I would be of the view that para.(4) of Schedule A would need to be struck out for the warrant's validity to be maintained. The more substantial argument, however, relates to Schedule B. The applicants' submission commenced with the proposition that once Schedule B was incorporated into the description of the things to be searched for and seized, the warrant was a "general warrant" and therefore invalid. Put that way, the submission could not as such be accepted. As the full court of the High Court pointed out in George v Rockett (1990) 170 CLR 104 at 110 the situation at common law is that a general warrant could not be issued: Leach v Money (1765) 19 State Tr 1001; Entick v Carrington (1765) 19 State Tr 1029. As the High Court said: "Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, w Relati Search n Seizure (1986) pp.1-2." This is not to say, however, that the legislature might not override the common law position. A powerful example of this is to be seen in the extensive powers given to the Commissioner of Taxation to have full and free access to premises for the purposes of s.263 of the come Assessment Act 1936 (Cth): Commissioner of Taxation v Citibank Limited (1989) 20 FCR 403. Another example to a lesser extent is 8.679 of the Criminal Code (Q) discussed in George v Rockett. As the High Court said (at 110-111): "Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the Ilegislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation." As Rockett's case itself indicates, therefore, the issue in a case such as the present is not as such whether the warrant 18 or is not a general warrant but rather whether the statutory conditions governing the issue of the present warrant stipulated for in the NCA Act have been complied with. If they have, then it is no argument that those provisions permit an intrusion of privacy which the common law itself would not have permitted. As has already been indicated, the NCA Act specifically requires a warrant, issued under s.22, to set out the matters in sub-sec.(5). The first of those matters, the statement of purpose, is an essential ingredient in the legislative scheme because it requires that the warrant include a reference to the matter relating to a relevant criminal activity which the NCA is investigating. This has, no doubt, been seen by the legislature as essential because -1l1- the person executing the warrant will only be authorised under it to seize the things particularised which are connected with a matter relating to a relevant criminal activity as defined. That is to say there must be not merely particularisation of the things but an indication of the relevant criminal activity with which those things are connected. Because the question is one which, of its very nature depends on the specific terms of the NCA Act, decisions on other legislation will be of little assistance. There is, however, some, albeit imperfect, analogy with s.10 of the Crimes Act (1914) (Cth) which authorises the issue of a warrant to seize, inter alia, things as to which there are reasonable grounds for believing that they will afford evidence as to the commission of an offence. In Beneficial Finance Corporation v Commissioner of Australian Federal] Police (1991) 31 FCR 523 at 533-4 Burchett J, with whose judgment Sheppard and Pincus JJ concurred, cited comments made by him in Parker v Churchill] (1985) 9 FCR 316 at 319 saying: ",.. it is necessary to bear in mind the purpose of the specification of an offence or offences in a search warrant under sl0. In the nature of things, that purpose is far removed from the purpose of an indictment or statement of particulars of an offence' charged. For the search warrant 1s a tool of investigation or of evidence gathering, and may be obtained at a time before any charge could be adequately framed, if indeed any charge should ever eventuate. The function of the indication of an offence in a search warrant is to 'authorize seizure by reference to that offence'. eee it establishes a nucleus for the search. It enables both the officer executing the warrant, and the citizen whose premises are subjected to it, to form some judgment whether particular things are relevant or irrelevant, and particular actions authorised or unauthorised." So too, under the NCA Act, the requirement that the warrant include "a reference to the matter relating to a relevant criminal activity" will be necessary because that reference operates to delineate the things that may be searched for and seized. That reference will be necessary because only with it will the officer executing the warrant be able to form a judgment whether particular things may be seized. Similarly, that reference will be necessary to enable the citizen whose premises are to be searched to form some judgment at least as to whether particular things are authorised to be seized. Before considering whether sub-sec.(5) has been complied with in the present case it is necessary to say something of the purposes for which the NCA was established and the scheme of the NCA Act. As appears from the second reading speech of the then Minister for Communications, the Honourable Mr Duffy, to the National Crime Authority Bill (1983), the NCA came into existence because of a perception that a new institution was needed to deal with the threat of organised crime. The NCA -13- was not to replace existing police forces whose investigations concerned particular offences known or reasonably believed to have been committed. As the Minister said (Hansard, House of Representatives, 7 June 1984 at 3093): "However, it is of the nature of organised and sophisticated crime that particular manifestations of that crime, particularly in the areas of drug importation, corporate fraud and tax evasion, may not come to the attention of the police forces. Activities of this kind may be so intricately interwoven, may involve' so many jurisdictions and may be so well camouflaged under apparently legitimate ways of doing business that they may well not cause any one police force to take notice." Clearly, the NCA was to be an investigatory body but was to be authorised to investigate only matters referred to it specifically by State, Territory or Federal Governments. Its jurisdiction was to be, as the Minister saw it, "precisely defined" by the description of "relevant criminal activity" and "relevant offence" so as to (at 3094): ",e. ensure that the area of tIawful inquiry by the Authority in any one case is readily ascertainable. If the Authority should stray beyond that area, it can be restrained by judicial order." The Government also, so the Minister indicated, gave attention to the balance to be maintained between the powers necessarily to be conferred upon the NCA on the one hand and - 14- civil rights upon the other. Thus the Minister said (at 3091- 3092) it is: "... designed to effectively co-ordinate and lead on a national basis the attack against organised crime, the Authority will nonetheless be constructed in such a way, and with such checks and balances and limitations on its powers, that prejudice to the rights and liberties of individuals will be avoided." The matters discussed by the Minister are evident in the NCA Act. The functions of the NCA are detailed in s.11 of the Act. There are both general and special functions. General functions include the collection and analysis of information and intelligence so long as that information and intelligence relates to "relevant criminal activities" and especially: "wee to investigate, otherwise than pursuant to a reference made under section 13 or in accordance with section 14, matters relating to relevant criminal activities;". The specific functions are investigatory of relevant criminal activities referred to the NCA under either s.13 or 8.14 of the NCA Act. Section 13 permits the Commonwealth to refer a "matter relating to a relevant criminal activity" to the NCA for investigation in so far as the relevant offence is, or the relevant offences are or include an offence or offences against the law of the Commonwealth or the Territory and s.14 permits a State Minister to refer "a matter relating to a relevant criminal activity" to the NCA for investigation if the relevant offence is a State offence. Sections 13 and 14 specifically indicate that it will be unnecessary to specify in the reference the particular offence. In essence, therefore, the NCA is an investigatory authority whose primary functions are to investigate references made to it by the State, Territory or Federal Governments provided in each case the reference is in respect of a matter relating to a "relevant criminal activity" as defined. It may be inferred from Schedule B of the warrant that there has been a reference by the Minister for Emergency Services for the State of South Australia to the NCA which claims that certain persons (apparently named in the reference) and their associates have engaged in various activities of the kind set out in cl.2 of Schedule B. It is not of course suggested that there has not been a valid reference. For reasons perhaps of security, the persons in question are neither named or described in Schedule B. The very nature of the NCA as an investigatory body into organised crime of a sophisticated kind will often have the consequence that its activities will be covert lest those being investigated are alerted. The provisions of s.51 as to secrecy reflect this. Section 25 of the NCA Act authorises the NCA to hold hearings for the purposes of a special investigation. A special investigation is an investigation the NCA is conducting in the performance of its special functions. Since those special functions relate back to the need for there to be a reference in relation to matters concerning relevant criminal activity, the hearing by definition will need to relate to a specific matter. Section 28, which empowers a member of the NCA to issue a summons to appear at hearings, requires that summons to specify the particular circumstances of a special investigation to which the hearing relates except where so to do would prejudice the effectiveness of the special investigations. The section in so doing seeks to protect the need where appropriate for the NCA's activities to be covert. In contrast to s.25, s.29 empowers a member of the NCA to, inter alia, require production of a specified document; the only limitation being that the document required to be produced be "relevant to a special investigation". There is no requirement in s.29 for the notice to stipulate what the special investigation is concerned with, at least on the face of the section, and it could well be difficult for a person so notified to know whether the notice is within or -17- outside power. Section 29A of the NCA Act ensures prevention of disclosure of information about a summons or notice except in certain circumstances. This brief analysis of the history and structure of the NCA might well suggest that where the NCA thought it appropriate to issue search warrants, those warrants could be framed in a way which would leave secret the relevant criminal activity the subject of a reference to the NCA. Such a policy might well be understandable. Parliament, in giving effect to such a policy, would need to balance it against the prejudice that might be created to the rights and liberties of those whose premises are to be searched and whose goods may be seized. However, while reference to the NCA Act and the functions of the NCA is useful, I must nevertheless give effect to the language which Parliament has used in s.22 which makes it clear that there must be particularisation of the "thing" which may be seized as well as a connection shown with a matter relating to a relevant criminal activity. It was conceded by counsel for the NCA that it would be inadequate to comply with s.22(5) merely to allege that a relevant offence has been committed and then to repeat the language of the definition of relevant offence. Something of greater specificity would be required than that. The extent - 18 - of the specificity doubtless will depend upon particular circumstances. But at the very least, in my opinion, the warrant must be such as to enable the person executing it to know whether a particular thing found in the premises falls within the definition "things of the relevant kind". In my mind as Schedule B is presently framed, it would be impossible for a person executing the warrant to know whether or not a particular item did or did not fall within the things authorised to be seized under the warrant. Let me take a particular example. Schedule A para.(1) refers to recordings of telephone conversations, inter alia, during which Mr Chamberlain was present. That paragraph is clearly enough expressed and precise. But the warrant does not authorise to be seized all audio, video or other recordings of conversations during which Mr Chamberlain was present. It is only those conversations which are connected with the matters specified in Schedule B. Let it be assumed further that the recording did discuss some violence. The question for the person then executing the warrant would be whether that violence was engaged in by the persons identified to the Minister or persons associated with them along or in concert with other persons. Without knowing the identity of the persons identified to the Minister, the person executing the warrant would be unable to say. The problem is made no less acute even if the reference to "Dominic PERRE"" is read as qualifying para.(1). For it is not all recordings of conversations to which Mr Chamberlain was a party or during which he was present which relate to the affairs, activities or associates of Mr Perre which may be seized, but only those which have a connection with the matters in Schedule B. Because the Matters in Schedule B are stated in a way such as to be unintelligible without more to the person executing the warrant, it follows that that person will never know whether items to be seized fall within or outside the warrant. While I would agree with senior counsel for the NCA that it is unnecessary to stipulate a particular offence in the warrant having regard to the investigatory function of the NCA, at the very least it will be necessary to use language outlining the relevant criminal activity with sufficient particularity to enable the person executing the warrant to determine whether the necessary connection exists between the things particularised in the warrant, on the one hand, and the relevant criminal activity, on the other. It would be undesirable to attempt to formulate a test which would cover every particular case as the particularity would vary with the circumstances. However, Schedule B, in my opinion, falls far short of the requirement which sub-sec.(5) of s.22 requires to be set out in the warrant and for this reason the warrant is invalid. - 20 - It is accordingly strictly unnecessary to consider the other matters raised by the applicants but in case the Matter goes further I will deal briefly with those matters making relevant findings of fact where factual matters are concerned. (2) Whether privilege was waived having regard to the events Qf 13 and 14 July 1994 In an affidavit filed in the proceedings, Detective Senior Constable Crouch deposed that he and a Detective Sergeant Swan had met with Mr Carbone at Holden Hill Police Station on 13 July 1994 and discussed with him the existence of 11 hours of tape recordings between Mr Carbone and Mr Chamberlain. According to the affidavit, during the conversation Mr Carbone read excerpts of the transcripts to Detective Senior Constable Crouch. Detective Senior Constable Crouch then says that he met Mr Carbone on 14 July at a restaurant in Adelaide where they discussed a number of matters concerning the NCA bombing. According to his affidavit: "Carbone allowed Brian Swan and I to have access to a lever arch folder containing typed transcript which appeared to be of conversations between Carbone and Chamberlain. Both Brian Swan and I read various pages which were indicated to us by Carbone. In all we would have examined about thirty or forty pages of the transcript." -~21- In examination in chief Detective Senior Constable Crouch indicated that a tape recording had been kept of the meeting of 13 July 1994 and the relevant parts of that transcript were tendered to me. Nothing in the material tendered supports Detective Senior Constable Crouch's assertion that Mr Carbone read aloud excerpts of the transcripts. It is true that Mr Carbone gave some indication of some matters that were in the transcripts. The only other matter that the excerpt of the tape recorded interview shows is that Mr Carbone refused to permit the police to copy the transcripts. There is a dispute as to what happened on 14 July 1994, Mr Carbone says that he did not give access of the transcript to the detectives. He denied what was said by Detective Senior Constable Crouch. He said that he did not hand the volume of transcripts over to the Detectives to look at as they pleased but rather he held on to it as they just flipped the pages and they closed the file. He said his reasons for showing the transcripts was to show that they really existed. Cross-examined, Detective Senior Constable Crouch reaffirmed that he had read various pages of the transcript folder perusing them, although not remembering now whether he had read entire pages. When cross-examined about the evidence - 22 - that he and Detective Sergeant Swan had read 30 or 40 pages he said that he had read 15, 20 or 30, he did not know how many. Neither Mr Carbone nor Detective Senior Constable Crouch were cross-examined as to credit in any detail. However the substantial difference between Detective Senior Constable Crouch's testimony of what happened on 13 July 1994 and the transcript casts doubt on his evidence and in the result I would prefer the evidence of Mr Carbone to that of Detective Senior Constable Crouch. There is, however, another important reason why I did not think that privilege was waived on this occasion. There is no doubt that the privilege is the privilege of Mr Perre, not Mr Carbone. That privilege could only be waived by Mr Perre. It follows that if, without authorisation Mr Carbone had shown the document to the two policemen, privilege would not have been waived. Appreciating this senior counsel for the NCA cross-— examined Mr Carbone and sought from him a concession that in meeting with the police he had Mr Perre's authority saying that he would provide the police with full details of his knowledge, presumably meaning thereby about the NCA bombing case. Such a concession, however, goes far short of an authority on Mr Perre's part to Mr Carbone to waive the privilege attracting to the transcripts by handing over the documents to the police. For these reasons I find that there has not been a waiver of privilege by virtue of the events of 13 and 14 July 1994, Had I been of a different view a question would have arisen as to whether privilege had been waived in respect of the whole of the 500 pages of transcript, consisting of at least 4 conversations with Mr Chamberlain over some 11 hours. The onus, in an evidentiary sense, would be on the NCA to show in respect of what transcripts privilege had been waived. That clearly would be difficult given the evidence to which I have referred. (3) Whether the privilege was waived by the use of the j in t cross— Mr_ Chambe i During the committal proceedings Mr Chamberlain was cross-examined on some parts of the transcript. Various passages were put to him relating to Mr Chamberlain's motivation to lie and seek a reward, his knowledge of how bombs might be constructed, his forthcoming intended book on the incident and his whereabouts at the time of the explosion. The question is whether the use of the transcript in this fashion, by reading passages of it to a witness, constitutes a waiver. - 24 - The question of what constitutes a waiver was considered by the High Court in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475. It is clear that a waiver can be either express or implied. For an express waiver to arise there must have been an actual intention to waive privilege. That 1S not suggested here. But a waiver may arise by implication in circumstances where it would be unfair or misleading to allow a party to refer to or use material and yet assert that the material is privileged: see per Gibbs CJ at 481, per Mason and Brennan JJ at 487-8 and per Deane J at 492-3. A question also arises as to whether waiver in respect of part of a document operates to waive the whole, a matter discussed by Gibbs CJ at 482 and see Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 at 538-9 referred to by his Honour. I think there 1s much to be said for the view that use of part of the transcript in court could operate as a waiver of privilege in respect of the whole transcript but it is not necessary for the purposes of the present case to decide that issue and I refrain from doing so. : : it] Chamberlain The conversations with Mr Chamberlain were taken over a considerable period of time. Mr Carbone's evidence was that they were recorded not from an external recording device but from a recording device plugged into the telephone socket. The inference from this is that the voice of Mr Chamberlain would have reached the tape recorder directly from the socket and momentarily before it reached Mr Carbone's ear set. It was submitted that accordingly the taping of conversations breached 8.7 of the Telecommunications (interception) Act 1979 (Cth) which prohibits the interception of a communication passing over a telecommunication system. The expression "intercept" is defined in s.6 as consisting of listening to or recording a communication in its passage over a telecommunications system without the knowledge of the person making the communication. An issue of fact accordingly arises as to whether Mr Chamberlain had knowledge of the recording. According to Mr Carbone's evidence, on no occasion did he ever actually tell Mr Chamberlain that he was recording the conversations. According to his evidence, Mr Chamberlain actually said to Mr Carbone that Mr Carbone was taping the conversations. On one occasion when Mr Carbone was not, he said so. I was asked to peruse two relevant pages of the transcript emanating from two of the six conversations taped to confirm the accuracy of this evidence. I would infer that nothing in the remainder of the transcribed conversations would be of assistance to the applicants. The two pages supplied do not confirm Mr Carbone's evidence. On each page the question of taping arose. In both conversations Mr Carbone actually implied his tape recorder was broken. The evidentiary burden again lies upon the NCA to show that the Telecommunications (Interception) Act has been breached, that 1s to say, to show that Mr Chamberlain did not know. It seems to me that the evidence falls short of suggesting that Mr Chamberlain knew the conversations were taped. At best it can be said that he may have suspected. Mr Chamberlain was not called to give evidence. I hold accordingly that Mr Chamberlain did not know that he was being taped in the interviews. It follows in my view that there would be an intercept in the relevant meaning of the expression, prohibited by s.7: cf T v Medical Board of South Australia (1992) 58 SASR 382. This raises a difficult question as to whether the fact that the conversations were taped contrary to the provisions of the Telecommunications (Interception) Act has the consequence that no privilege attaches to those transcripts where the privilege would otherwise have attached if the transcripts had legally been obtained. Senior counsel for the NCA referred me to the decision of the High Court in R v Bell; Ex parte Lees (1980) 146 CLR 141, not because the situation that arose in that case was in any way comparable but because of the discussion of principle there contained. The issue in R v Bell was a whether a communication to a solicitor by his client of her address in circumstances where the client, in breach of an order of the Family Court of Australia, had absconded with a child over whom the client's husband had interim custody was the subject of legal professional privilege. It was held that it was not. As the judgment of Gibbs J in that case points out there are certain cases in which the privilege will not exist even although the communication was made in circumstances of confidence. One example is where the communication was part of a criminal or unlawful proceeding or made in furtherance of an illegal object: Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382. So if the communication in respect of which privilege is claimed is itself a step in the commission of a crime or a civil fraud, the privilege will be found not to exist and it will be immaterial that the solicitor is not a party to the illegal object. The reason why legal professional privilege is denied in such circumstances is that the maintenance of the privilege in the face of the illegal object would operate to impede the administration of justice rather than to further it: cf per Stephen J in Bel] at 151-2. The legislature had seen fit to proscribe the taping of intercepted conversations without the authority of the person whose conversations are taped. It is not necessary in the present case to determine whether Mr Carbone was, in the circumstances, liable to a penalty where it seems he was advised by Mr Waye that what he was doing was not illegal. A significant point is that the communications, in respect of which it is alleged privilege attaches, were themselves obtained in breach of Parliament's proscription. To permit privilege to attach in such circumstances, in my view, would be to impede and indeed discourage the due administration of justice and observance of the law with the consequence that I would hold that privilege does not attach to the transcripts. (5) The existence of privilege in witness statements In J-Corp Ltd v strali Bui b We rs_(We n_Au ian a ° (1992) 38 FCR 452 French J referred to comments of Pincus J in Dingle v Commonwealth Development Bank of Australia (1989) 23 FCR 63 and said (at 457): - 29 - "The privilege attaching to statements taken from potential witnesses may not be supportable by public interest considerations of the same order as those enunciated in Grant v Downs in relation to solicitor/client communications although it arises in the context of the solicitor/client relationship. The confidentiality which attends their taking is of a limited character. There is nothing to stop a prospective witness who has given a statement to a solicitor from announcing that fact and the content of his statement to the world at large. In the ordinary course, neither the solicitor nor his client could do anything' to prevent such disclosure. It may be that the time has come to reconsider whether Such privilege as attaches to witness statements ought to continue although it may be questionable whether it can be affected by judicial decision." The comments of French J were dicta. It must, however, be conceded, as indeed it was by counsel for NCA, that the present law proceeds on the basis that legal professional privilege does attach to such statements and there are comments of the highest authority to that effect; cf Grant v Downs (1976) 135 CLR 674 at 682 per Stephen, Mason and Murphy JJ; and Attorney-General (Northern Territory) v Maurice (supra) per Deane J at 490. Recently in Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (Hill J, 7 September 1994, unreported) I accepted that witness statements brought into existence for the purpose of litigation attract legal professional privilege, a view to which I continue to adhere. If it is now to be held that such statements do not attract legal professional privilege it will require a decision of the High Court and not a single judge of this Court to reach that conclusion. This was indeed recognised by senior counsel for the NCA and the submission made was rather in the nature of a protective submission in case ultimately the matter should be argued before the High Court. 6) wai e wi t In my view there is no substance in the argument that privilege attaching to witness statements is waived when a copy of those statements is given to the witness. The statement is given to the witness in circumstances of confidentiality and as part of the process of ensuring the accuracy of the statement. It would be nonsense at the one time to maintain that privilege exists in such a statement and on the other hand to assert its waiver once the statement is shown or given to the person who gave it. Conclusion In my view the applicants should succeed in the application on the basis that the warrant was invalid. There will be the need for consequential relief in the form of orders for the delivery up of documents seized to Mr Carbone and for the destruction of any copies made. In these circumstances I would direct the applicants to bring in short minutes of order setting out the orders proposed. A copy should be served upon the respondents and if possible the terms of orders agreed. It will be necessary for orders to be made giving leave to the applicants to discontinue the proceedings against certain of the respondents and that such orders deal with the costs of the respondents against whom the proceedings are discontinued. Subject to those orders, the remaining respondents, other than von Doussa J, should pay the applicants' costs. I certify that this and the preceding thirty (30) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Hill. Associate: Date: 28 October 1994 Counsel and Solicitors SW Tilmouth QC and CJ Calidcott for Applicants: instructed by Caldicott & Co Counsel and Solicitors BT Lander QC with G Gretsas for Second and Fourth instructed by Australian Respondents: Government Solicitor Dates of Hearing: 20-21 October 1994 Date Judgment Delivered: 28 October 1994 COMMONWEALTH OF AUSTRALIA National Crime Authority Act 1984 Section 22 SEARCH WARRANT TO Detective Senior Sergeant Kingsley ROBINSON Detective Sergeant Steven QUARTERMAINE Detective Sergeant Michael SCHULTZ Detective Senior Constable Andrew HILL {all o£ whom are members of the South Australia Police Department and members of the staff of the National Crime Authority] WHEREAS an application has been made to me by a Member of the National Crime Authority pursuant to Section 22(1) of the National Crime Authority Act 1984 for the issue of a warrant pursuant to Section 22 of that Act in relation to certain premises, namely: e the premises situate at and known as Unit 6 194 Prospect Road, Prospect, in the State of South Australia. AND WHEREAS I, John William VON DOUSSA, a Judge of the Federal Court of Australia, am satisfied by information given to me by affidavit that there are reasonable grounds for issuing this warrant pursuant that section. AND WHEREAS the purpose for which this warrant is issued is to authorise you, pursuant to Section 22(2) of the National Crime Authority Act 1984, with such assistance as you think necessary and if necessary by force: (a) to enter upon the abovementioned premises at any time between the hours of 8-00am and 6-00pm, provided that those premises are occupied at the time of entry. (b) to search the abovementioned premises for things specified in Schedule A connected with the matters specified in Schedule B; and (c) to seize any things specified in Schedule A connected with the matters specified in Schedule B found upon the said premises and deliver the things so seized to the National Crime Authority. NOW YOU ARE THEREFORE SO AUTHORISED and for so doing this shall be your sufficient warrant. THIS WARRANT ceases to have effect on the 5th day of November 1994, being not later than than [sic] one month after the date of issue hereof. ISSUED at Adelaide in the State of South Australia this 7th day of October 1994. [Signature] A Judge of the Federal Court SCHEDULE A JTHINGS which are originals or copies of any one or more of the following: 1. Audio, video or other recordings of all telephone or other conversations to which Allan CHAMBERLAIN was a party or during which he was present; 2. Transcripts of all telephone or other conversations to which Allan CHAMBERLAIN was a party or during which he was present; 3. Notes, memoranda or other documents which include or relate to any of the contents of any telephone or other conversations to which Allan CHAMBERLAIN was a party or during which he was present; 4. Files, working papers, records, reports, statements, diary notes, file notes, diaries, job cards, minutes, memoranda, letters, sundry correspondence, envelopes, publications, telephone directories, address books, photographs, photograph albums, video cassettes, audio cassettes; and, 5. In the event that there are electronic data processing facilities installed in the premises, things being; (a) computer hardware including central processing units and all associated peripheral equipment including solid state memory storage, expansion boards, keyboards, visual display units, disk drive units, printers, tape stream units, networking equipment, encryption equipment, modems and other data communication equipment, mouse devices, protocol devices, all other input or output devices and equipment, all cables, connection wiring and connectors; (b) storage media for computer generated or access data including hard disks, floppy diskettes, magnetic tapes, solid state memory storage devices and all data recorded on such media; (c) computer software including operating system software, source codes, object codes application software, utilities software; (dad) documents including manuals, operating instructions, correspondence and notes relating to the computer hardware, storage media or computer software; (e) documents relating to sign-on codes, transaction codes, passwords, network and terminal addresses, access procedures and encryption keys; (£) documents relating to work practices and procedures in respect of computer hardware and allied operations; (g) documents relating to software systems applications or database development and construction; being things necessary or incidental to the creation, processing, recording, storage, production or reproduction of any of the things mentioned in 1 to 4 (both inclusive) above by magnetic, electronic or electro-magnetic means; And which relate to the affairs, activities or associates of Domenic PERRE. SCHEDULE B Certain special investigations being conducted by the National Crime Authority, namely: Reference granted 6 June 1994 pursuant to ss 14(1) of the National Crime Authority Act 1984 MATTER BEING REFERRED Whether a relevant offence has been, or is being, committed as alleged in clause 2, and, if so: (a) the identity of the person or persons involved; and (b) the nature of their involvement. GENERAL NATURE OF THE CIRCUMSTANCES OR ALLEGATIONS CONSTITUTING THE RELEVANT CRIMINAL ACTIVITIES (SUBSECTION 5(3)(a) OF THE ACT) The general nature of the allegations is that certain persons identified to the Minister for Emergency Services for the State of South Australia by the Authority on 6 June 1994, or persons associated with them, may have been, or may be being, in concert with other persons, engaged in one or more of the following activities: (a) the unlawful production, sale or supply of a drug of dependence of [sic] prohibited substance; (b) extortion; (c) murder; violence; corruption; fraud on third party motor vehicle insurers; and money laundering within the meaning of subsection 10(b) of the Crimes (Confiscation of Profits) Act 1986, that the Authority suspects may have been or may be, directly or indirectly connected with a course of activity involving the commission of one or more of the offences referred to in clause 3. STATEMENT OF RELEVANT OFFENCES AGAINST ONE OR MORE LAWS OF THE STATE OF SOUTH AUSTRALIA (SUBSECTION 5(3)(b) OF THE ACT) 3. For the activities described in paragraphs 2(a) to (f£) inclusive, the relevant offences are, in include, an offence or offences against one or more laws of the State of South Australia, each being an offence: (a) (b) (c) (a) involving 2 or more offenders and substantial planning and organisation; and involving, or a kind ordinarily involving, the use of sophisticated methods and techniques; and committed, or of a kind ordinarily committed, in conjunction with other offences of a like kind; and involving fraud, illegal drug dealings extortion, violence, bribery or corruption of officers of the State of South Australia, or matters of the same general nature as one or more of those matters. PURPOSE OF THE INVESTIGATION (SUBSECTION 5(3)(c) OF THE ACT) 4. The purpose of the investigation is: (a) (d) to collect and analyse criminal information and intelligence relating to the relevant criminal activities, and to disseminate that information and intelligence to: (i) law enforcement agencies; and (ii) other authorised persons; and to make appropriate recommendations to the Minister, to the Commonwealth Minister, or the appropriate Minister of the Crown of a participating State, being recommendations for reform of: (i) the law relating to relevant offences; and (ii) relevant administrative practices; and (iii) the administration of the courts in relation to trails of relevant offences; and to investigate the matter in so far as: (i) a relevant offence (including an office (sic] deemed to be a relevant offence under subsection 3(3) of the National Crime Authority (State Provisions) Act 1984) is an offence against one or more laws of the State of South Australia; or (i1) the relevant offences (including an offence deemed to be a relevant offence under subsection 3(3) of the National Crime Authority (State Provisions) Act 1984) are, or include, an offence or offences against one or more laws of the State of South Australia; and (d) to identify any offender or offenders; and (e) to assemble evidence that would be admissible in the prosecution of offenders; and (£) to give the evidence to: (i) the Attorney-General of the Commonwealth or the State, as case requires; or (ii) the relevant law enforcement agency; or (iii) any person or authority (other than a law enforcement agency) that is authorised by or under a law of the Commonwealth, or of the State or Territory, to prosecute the offence.	11,889
federal_court_of_australia:fca/single/2013/2013fca1442	decision	commonwealth	federal_court_of_australia	text/html	2013-12-13 00:00:00	Richards v Macquarie Bank Limited (No 5) [2013] FCA 1442	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca1442	2024-09-13T22:52:50.880692+10:00	FEDERAL COURT OF AUSTRALIA Richards v Macquarie Bank Limited (No 5) [2013] FCA 1442 Citation: Richards v Macquarie Bank Limited (No 5) [2013] FCA 1442 Parties: TRACEY RICHARDS v MACQUARIE BANK LIMITED ABN 46 008 583 542, STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 064 804 691, AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION, VICKI ALLOM, ROBERT BALE, LYNDA BALE, TODD COLE, GRAEME DYER, KAREN DYER, EAMON HANNAN, RICHARD HEASLIP, LLOYD JONES, MARGARET JONES, MARIE KUPERMANN, KEITH LUNN, VERONICA LUNN, VIOLETTE RUSSO, KENNETH RYAN, FRANCES RYAN, VIKAS SEHGAL, RASHI SEHGAL, THOMAS RAYMOND WEARNE, RAYMOND ZARINS AND YVONNE ZARINS, SEAN JUDE MCARDLE and VICTOR FRANCIS AINSLIE File number: QUD 590 of 2010 Judge: LOGAN J Date of judgment: 13 December 2013 Catchwords: PRACTICE AND PROCEDURE – representative proceedings – application for Court approval of a Second Revised Settlement Scheme under s 33V of the Federal Court of Australia Act 1976 (Cth) – fairness and reasonableness of Second Revised Settlement Scheme Held: settlement approved subject to conditions Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V, 53A, Pt IVA Cases cited: Australian Securities and Investments Commission v Richards [2013] FCAFC 89 related Modtech Engineering Pty Limited v GPT Management Holdings Limited [2013] FCA 626 distinguished Richards v Macquarie Bank Limited (No 4) [2013] FCA 438 related Date of hearing: 12 - 13 December 2013 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 47 Counsel for the Applicant: Mr J Kirk SC with Mr L Livingston Solicitor for the Applicant: Thompson Eslick Solicitors Counsel for the First and Second Respondents: Mr J Sheahan SC with Mr A Pomerenke QC Solicitor for the First and Second Respondents: Allens Counsel for the Third Respondent: Mr M Colbran QC with Mr D Cook Solicitor for the Third Respondent: Mr A Tregear, Australian Securities and Investments Commission Counsel for the First Objecting Respondents: Mr D Campbell QC with Mr G Donnellan Solicitor for the First Objecting Respondents: Thompson Eslick Solicitors IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 590 of 2010 BETWEEN: TRACEY RICHARDS Applicant AND: MACQUARIE BANK LIMITED ABN 46 008 583 542 First Respondent STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 064 804 691 Second Respondent AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent VICKI ALLOM, ROBERT BALE, LYNDA BALE, TODD COLE, GRAEME DYER, KAREN DYER, EAMON HANNAN, RICHARD HEASLIP, KERRI-ANNE HEASLIP, LLOYD JONES, MARGARET JONES, MARIE KUPERMANN, KEITH LUNN, VERONICA LUNN, VIOLETTE RUSSO, KENNETH RYAN, FRANCES RYAN, VIKAS SEHGAL, RASHI SEHGAL, THOMAS RAYMOND WEARNE, RAYMOND ZARINS AND YVONNE ZARINS First Objecting Respondents SEAN JUDE MCARDLE Second Objecting Respondent VICTOR FRANCIS AINSLIE Third Objecting Respondent JUDGE: LOGAN J DATE OF ORDER: 13 DECEMBER 2013 WHERE MADE: BRISBANE THE COURT ORDERS THAT: 1. Pursuant to s 33V and s 33ZF of the Federal Court of Australia Act 1976 (Cth) (Act), the settlement of the proceeding between the Applicant and the First Respondent be approved on the terms set out in: (a) the deed of settlement which is confidential exhibit BRI-A to the affidavit of Brett Richard Imlay sworn 25 March 2013 (Deed); and (b) the "Settlement Deed – Supplement" executed on 3 October 2013 which is contained in confidential exhibit SC-A to the affidavit of Stephanie Carmichael sworn 3 December 2013 (Supplementary Deed); and (c) the Second Settlement Scheme (SSS) amended 13 December which is Exhibit 6 and subject to the following matters being removed from the SSS: (i) the payment of interest at a rate other than that applied by the Federal Court of Australia when calculating pre-judgment interest pursuant to s 51A(1) of the Act and Practice Note CM 16; (ii) any discrimination or reduction on entitlements that are to be received by Discounted Claimants. 2. The Applicant be authorised nunc pro tunc on behalf of the group members to enter into and to give effect to the Deed and the Supplementary Deed and the transactions contemplated by them, for and on behalf of the group members. 3. The objecting group members represented by Thompson Eslick Solicitors and named in the Schedule be joined as parties to the application as the First Objecting Respondents. 4. Sean Jude McArdle be joined as a party to the application as the Second Objecting Respondent. 5. Victor Francis Ainslie be joined as a party to the application as the Third Objecting Respondent. 6. Pursuant to s 33V(2) and s 33ZF of the Act: (a) an amount of $231,050.91 (inclusive of GST) be approved as the Appeal Costs to be distributed in accordance with cl 49(a) of the SSS; (b) an amount of $572,589.49 (inclusive of GST) be approved as the Further Approval Costs to be distributed in accordance with cl 49(b) of the SSS; (c) an amount of $93,707.40 (inclusive of GST) be approved as the Applicant's IT Costs as defined in subparagraph 8 of the affidavit of Brett Imlay sworn 6 December 2013; (d) an amount of $89,265.75, being GST on the professional costs component of the Administration Costs omitted from the First Approval Order identified in paragraph 8 of the affidavit of Brett Imlay sworn 6 December 2013, be approved; (e) an amount of $198,000 (inclusive of GST) be approved as further Administration Costs for the estimated cost of engaging a second independent accountant to conduct reviews of group member entitlements in accordance with cll 60B-63 of the SSS; (f) the further costs associated with the applications for leave to appeal in the substantive proceedings identified in paragraph 6 of the affidavit of Brett Imlay sworn 3 December 2013 be approved in the amount of $4,473; (g) the further unpaid disbursements identified in paragraph 7 of the affidavit of Brett Imlay sworn 3 December 2013 be approved in the amount of $614.68; (h) the administrator appointed under cl 23 of the Scheme (Administrator) is granted leave to apply to the Court for approval of any further Administration Costs and to obtain approval of any invoices raised by it in accordance with cl 50A of the SSS; and (i) Stewart Levitt and the Administrator are granted liberty to apply in relation to any question concerning the payment of Administration Costs. 7. Pursuant to s 33V and s 33ZF of the Act, liberty is granted to the Administrator to apply to the Court in connection with the SSS including for any order, approval or guidance of the kind contemplated by the SSS. 8. Pursuant to s 33V and s 33ZF of the Act, liberty is granted to any Participating Group Member (within the meaning of cl 17(b) of the SSS) to apply to the Court for a review in relation to the administration of the SSS in accordance with cl 63(c)(ii) or cl 63(c)(iii) of the SSS. 9. Pursuant to s 37AF and s 33ZF of the Act, the exhibits marked as Confidential Exhibits BRI-E (to the affidavit of Brett Imlay sworn 25 September 2013), SC-A and SC-C are not be published to any person other than the Applicant, the respondents (or their legal advisers) or Thompson Eslick Solicitors without leave of the Court and are to be sealed on the Court file in envelopes marked "Not to be opened except by leave of the Court or a Judge". 10. Pursuant to s 37AF and s 33ZF of the Act, the exhibit marked as Confidential Exhibit 2 is not be published to any person other than the Applicant, the Second Respondent, the First Objecting Respondents (or their legal advisers), the Second Objecting Respondent or the Third Objecting Respondent without leave of the Court and are to be sealed on the Court file in envelopes marked "Not to be opened except by leave of the Court or a Judge". 11. Pursuant to s 37AF and s 33ZF of the Act, the exhibit marked as Confidential Exhibit 3 is not be published to any person other than the Applicant, the First Respondent's solicitors (who are authorised to provide it to counsel for the First Respondent, and the contents of the exhibit so provided may be used solely for the purposes of the current application), the Second Respondent, the First Objecting Respondents (or their legal advisers), the Second Objecting Respondent or the Third Objecting Respondent without leave of the Court and are to be sealed on the Court file in envelopes marked "Not to be opened except by leave of the Court or a Judge". 12. Pursuant to s 33ZB and s 33ZF of the Act, the persons affected and bound by orders 1 and 2 are the Applicant, the respondents and the group members. 13. None of the orders made in this proceeding under s 37AF of the Act shall prevent any person from publishing the whole or any part of these reasons for judgment. 14. Cost be reserved. 15. This matter is adjourned to 9.30am on Friday 20 December 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 590 of 2010 BETWEEN: TRACEY RICHARDS Applicant AND: MACQUARIE BANK LIMITED ABN 46 008 583 542 First Respondent STORM FINANCIAL LIMITED (RECEIVERS AND MANAGERS APPOINTED) (IN LIQUIDATION) ACN 064 804 691 Second Respondent AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION Third Respondent VICKI ALLOM, ROBERT BALE, LYNDA BALE, TODD COLE, GRAEME DYER, KAREN DYER, EAMON HANNAN, RICHARD HEASLIP, KERRI-ANNE HEASLIP, LLOYD JONES, MARGARET JONES, MARIE KUPERMANN, KEITH LUNN, VERONICA LUNN, VIOLETTE RUSSO, KENNETH RYAN, FRANCES RYAN, VIKAS SEHGAL, RASHI SEHGAL, THOMAS RAYMOND WEARNE, RAYMOND ZARINS AND YVONNE ZARINS First Objecting Respondents SEAN JUDE MCARDLE Second Objecting Respondent VICTOR FRANCIS AINSLIE Third Objecting Respondent JUDGE: LOGAN J DATE: 13 DECEMBER 2013 PLACE: BRISBANE REASONS FOR JUDGMENT 1 This is an application under s 33V of the Federal Court of Australia Act 1976 (Cth) (Federal Court of Australia Act) for the approval of the settlement of a class action. There is a history to this matter which needs to be recited. 2 On 24 December 2010, an originating application under Pt IVA of the Federal Court of Australia Act was filed in the Court. That instituted proceedings as between Mrs Richards, who was the lead plaintiff and representative of a class, and Macquarie Bank Limited (the Bank) and Storm Financial Limited (Receivers and Managers Appointed) (in liquidation). After considerable interlocutory work and related directions hearings, a trial in respect of those proceedings commenced before Reeves J on 24 September 2012. 3 On 15 March 2013, and at a time when final addresses in the trial of the proceedings were due to commence, a deed of settlement was executed as between Mrs Richards and the Bank. Upon that being notified to the Court, Reeves J vacated further hearing dates and directed the parties to apply to the Court for approval upon filing of the settlement documents concerned. Later that month and as a consequence of the filing of an application for approval, the application came on before me for initial directions. Thereafter, some 28 objection notices were filed. On 2 May 2013, the approval application was heard by me, with judgment being delivered the following day: see Richards v Macquarie Bank Limited (No 4) [2013] FCA 438. 4 The settlement concerned provided for the distribution of $82.5 million, inclusive of interest and costs, as between a class which comprised approximately 1050 group members. The settlement had as a feature a funders' premium. That entailed about $28.875 million, or about 35% of the settlement sum. That would have seen a subclass within the overall class, comprised of some 317 group members who had contributed funds to the litigation, receive about 42% of the combination of their lost equity and legal cost contributions. The balance would then have been allocated to the subclass comprising those who had not made contribution to the litigation. There were approximately 733 persons in this subclass. They would have received about 17.6% of their lost equity 5 On 24 May 2013, the Australian Securities and Investments Commission (Commission) lodged an appeal against the approval of the settlement in those terms. On 12 August 2013, the Full Court decided to allow the Commission's appeal: see Australian Securities and Investments Commission v Richards [2013] FCAFC 89. That saw the matter returned to the Court's original jurisdiction. Thereafter, Mrs Richards and the Bank entered into further negotiations, which culminated in a revised settlement scheme being propounded for approval. These reasons for judgment must necessarily be read having regard to the history as cited, in conjunction with my earlier reasons for judgment and those of the Full Court. 6 It is also necessary to record that there is litigation presently before the court which is yet to be resolved as between the Commission and Macquarie Bank Limited. It is a feature of that litigation that persons who have a grievance against the Bank, though not parties to that litigation, may rely upon findings made in that litigation in other proceedings. 7 Following directions in respect of the second application for approval, 42 notices of objection were received. In addition, 285 notices were separately received by the Court in which support was voiced for the approval of the scheme as revised following the Full Court's judgment. It will be evident enough from that fact alone, in other words that there is support and objection, that there is no universality of support for the approval of the scheme. That absence of universality was further manifested in the appearance and related submissions on the hearing of the approval application yesterday. At that hearing, both Mrs Richards and the Bank were represented by counsel, as was, again, the Commission. In addition, a group of 19 of those who had lodged objections, and who have come to be represented by the solicitors firm Thompson Eslick, also made submissions by counsel. Further, two individuals who had lodged objection notices made submissions in person. 8 It is convenient first to deal with the essence of the submissions made by the individuals as to their objection to approval. 9 I was reminded by each gentleman, courteously, yet nonetheless powerfully, of the variation as between the original settlement scheme as propounded and the present in the absence from the present of provision for a funders' premium, which would have seen, as I have mentioned, a return of some 42% to those who had provided funds for the litigation. 10 Obviously enough, the notion that those who had provided money which had enabled the conduct of litigation which had, in the end, culminated in a consensual settlement, had a powerful attraction for me: witness my original reasons for judgment. It did not have such an attraction for the Full Court in terms of the manner in which the prospect that there may be such a differential distribution of settlement moneys had not been notified in advance. 11 It is a necessary feature of our legal system, and fundamental to the rule of law, that the judgment of an appellate court must be respected. It was in deference to that fundamental principle and also the desirability nonetheless, if possible, of compromising the litigation that those representing Mrs Richards (and necessarily, then, those having the carriage of the proceeding for the plaintiff) and the Bank, struck a revised settlement scheme. 12 It would be subversive of the rule of law were I to refuse to approve the settlement scheme for the reason only that it did not provide for a premium of the kind which the earlier scheme provided. That is an idea whose time has passed. That is not to say, as the Full Court allowed, that such a premium could never be provided for. It is just that due notice in advance of the prospect of such a premium is necessary in order for there to be a fair and reasonable compromise sufficient to attract the Court's approval. 13 There are, underpinning the Full Court's judgment, certain related considerations which do intrude upon whether, or whether subject only to particular conditions, approval of the scheme in its revised form should be granted. In my earlier reasons for judgment, I canvassed authorities which relate to the considerations pertinent to approval of a scheme. I do not propose to repeat what is there stated, nor do I propose to repeat the view expressed in my earlier reasons for judgment that the compromise concerned in terms of the sum offered and proposed to be accepted is fair and reasonable, having regard to the causes of action pleaded and the risks of litigation. It is not, though, the sum itself which falls for approval but rather the scheme of which that settlement sum forms part that falls for consideration of approval. 14 Before turning to features of that scheme, it is convenient to deal with one of the issues raised on behalf of the 19 objectors. That was that there ought to be an adjournment of this application so as to provide for further mediation, and mediation which would incorporate, by direction, mediation not only of this proceeding as including now the overtly identified interests of those 19 objectors, but also mediation in respect of the separate litigation I have mentioned as between the Commission and the Bank. 15 I accept that I have power compulsorily to order such mediation (see s 53A of the Federal Court of Australia Act). The subject of the 19 objectors' submission is therefore a matter which goes to discretion, not power. As to discretion, it is relevant to note, and indeed, it was common ground, that there was, at a much earlier stage in proceedings, an attempt to achieve a comprehensive settlement via a mediation conducted by The Honourable Kevin Lindgren AM. Hindsight can be a powerful educator, and hindsight of 2103 might well instruct that prudence ought to have intruded in a mediation conducted by that highly experienced and well-respected person, such that a comprehensive compromise was achieved. It was not, though, such education which was available at that time, and no such comprehensive settlement then commended itself. It is neither necessary, nor desirable nor appropriate to explore why that was so, other than explicitly to record that it is no reflection on the mediator that it did not. 16 As it happened, a further mediation, on this occasion not involving the Commission, did occur, this time conducted by The Honourable Michael McHugh AC. 17 The background against which that mediation in respect of the proceedings as between Mrs Richards and the Bank did occur could not have been more fulsome in terms of the evidentiary foundation of the relative strengths and weaknesses of the respective parties' cases. This time, a settlement was achieved, subject to court approval. 18 In that settlement, if approved, the Bank has the benefit of comprehensive releases and indemnities. There is no doubt that those releases will have an impact, so far as class members are concerned, upon whatever benefit they might otherwise have been able to gain from findings made in the litigation instituted by the Commission. To put matters bluntly, the Bank is not a charity. There is, when one examines the settlement concerned, a benefit for the bank, and it is the one mentioned. That is the quid pro quo represented by those releases and indemnities. The Bank is hardly to be criticised for seeking that, nor, for that matter, are those acting for Mrs Richards to be criticised for recognising that that is indeed the quid pro quo. I should add that I do not regard the provision in the revised scheme for indemnity as anything other than fair and reasonable. 19 Against that background, and bearing in mind the history recited, I see little point at all in forcing parties who have already reached a compromise to seek to abandon that and reach some wider compromise. There comes a time when enough alternative dispute resolution is enough. That time, in my view, has been reached. I do not, therefore, propose to adjourn the proceeding as requested by the 19 objectors. It is necessary to consider not just their particular interests, nor even, for that matter, those of other objectors, nor even, for that matter, that larger number who support the settlement and have voiced that support by the filing of notices with the Court, but rather the interests of the group as a whole. There is also a public interest in lending finality to litigation. 20 I turn, then, to some features of the scheme as revised. The funders' premium, which would have seen the return of some 42% of equity and funding contributions is no longer a feature of the revised scheme, as I have mentioned. Also gone from the revised scheme is a provision in respect of foregone claims which would have allowed the bank to recoup funds not claimed by participating group members as part of the settlement. In lieu of that, there are provisions in the revised scheme which allow for the redistribution of such unclaimed funds amongst the participating group members. That is, in effect, a benefit for participating group members, which was not a feature of the earlier scheme. 21 There is the addition in the revised scheme of provisions allowing for the payment to the solicitor's firm, Levitt Robinson, who act for Mrs Richards, of the unpaid costs of the Commission's appeal to the Full Court, as well as costs associated with the revised settlement. In principle, those provisions are not controversial, although there is a controversy about the allowance of Levitt Robinson's costs as a whole. It will be necessary to say something to that later in these reasons for judgment. It is also a feature of the revised scheme that there is clarification in the calculation of the equity contributions and a changed manner in which what one might term storm-related settlements with other banks are accounted for. 22 There has been, in respect of the revised scheme as originally filed, further revision as a result of consultations between counsel, the results of which repose in exhibit 6. Those consultations have, to my complete satisfaction, been engaged in with a genuine spirit of promoting, to the extent possible, compromise of litigation. I commend all counsel who have appeared for the spirit in which the approval application has been approached. Even allowing for that, there remain a number of issues which could not be conceded by one party or another. I do not in any way suggest that the absence of concession in these respects is unreasonable. This truly is a peculiarly difficult case in which to consider what is fair and reasonable in terms of settlement. 23 I propose to deal in turn with particular areas which remain controversial. First, payment of interest on costs contributions. Two clauses in the revised scheme are pertinent: clause 34 and clause 40. Clause 34 forms part of a group of clauses which provide for the submission of information grounding that part of a group member's claim on the overall settlement fund, which relates to interest payments made on borrowed funds used to make contributions to the applicant's costs, ie, Mrs Richards' costs, or the costs of the appeal to the Full Court, or both. 24 Clause 40 makes provision of the payment of simple interest on such contributions, those contributions being referred to in clause 39, at the greater of two rates: (a) in the case of funding group members who contributed to costs using borrowed funds, and on the provision of evidence acceptable to the administrator and the accountant of the cost of those funds at the rate paid by the funding group member; or (b) at the rate applied at the Federal Court of Australia when calculating prejudgment interest pursuant to s 51A(1) of the Federal Court of Australia Act, and practice note CM16. 25 The intention of the payment of interest is obvious enough and was supported by Mrs Richards and the Bank. Viewed in the abstract, there is much to be said in favour of returning to those who have put Mrs Richards, and those advising her, in funds sufficient not just to institute the proceedings, but to prosecute them to the point where the Bank, notwithstanding what can only be described as a closely contested trial, nonetheless felt moved, following further mediation, to come to an agreement. There is an attraction in the provision of interest on moneys used for that purpose. Others who, for one reason or another, could not or did not contribute will, nonetheless, have the benefit of the compromise achieved and achieved only by the institution and prosecution of litigation. 26 There are, though, other considerations which also intrude as a matter of fairness. These were highlighted by the Commission in its submissions. The Commission drew attention to the possibility that some of the funding group members may have borrowed funds at particular high rates of interest. There was no evidence as to what particular rates were at large amongst funding group members. In particular, there was no evidence to support a proposition that rates as high as 89% per annum had been visited upon particular funding group members. That appears to be something of a red herring. 27 Nonetheless, in prospect at least, is the possibility that rates of interest higher than those for which practice note CM16 makes provision could, nonetheless, be at large. Of greater resonance is the submission made by the Commission that there was nothing in the original notice in respect of the proposed litigation which went to the possibility that group members might receive some particularly elevated rate of interest or, indeed, any rate of interest at all in respect of contributions to the litigation. When I made earlier reference to a need to respect the judgment of the Full Court, I meant, also, that the need extended to a need to respect, not just the very issue addressed, but also the underlying foundation for why the funders' premium was regarded as not fair in the particular circumstances. A critical factor in that regard was the absence of notice in advance. 28 For all that, funding group members have been kept out of an amount of capital contributed. How, if at all, can one balance respect for the principle for which the Full Court's judgment stands and the unattractive notion that those who have contributed and have contributed to the benefit of all should receive something for that loss of use of their capital, be that capital from their own available funds or capital which is borrowed? In reflecting upon that, it seems to me that a person reading the notice originally would regard it as going without saying that a person should at least receive interest of the kind which is customary in litigation in respect of the loss of use of capital up to judgment. I do not consider that it would be regarded as going without saying that, if one had borrowed, one ought to receive the interest back, however much that interest might be. For that reason, it does not seem to me that it is fair and reasonable to approve a settlement which admits of the possibility of a rate of interest higher than that for which practice note CM16 provides. I do consider that it is fair and reasonable to make provision for the payment of interest at that rate and as provided for in greater detail in clause 40(b) at present. Thus, if I were otherwise disposed to approve the revised scheme, that approval would be conditioned upon interest being paid only in accordance with the present clause, 40(b). 29 In other words, removal of clause 40(a) and related clauses which intrude upon the ability to make the higher rate of interest, principally, it would seem to me, clause 34 is necessary. That, nonetheless, would leave as approved a scheme which entails funding group members receiving a rate of interest on contributions at the rates of interest, or by reference to the rates of interest, described in practice note CM16. That is a rate which is regarded as generally appropriate in litigation. I note further that practice note CM16 entails rates of interest which are not just regarded as appropriate in this Court but also have a wider approval amongst other courts in this country. Discounted claimants 30 Unlike the earlier scheme, this revised scheme makes provision for a reduction – a reduction in the order of 50% – in respect of a class of persons who might be described as those who were a director of Storm Financial, a Storm Financial adviser, or a senior Storm Financial employee, or a person in like capacity in a subsidiary whose role related to the design, implementation or promotion of what one might term "the Storm investment model". 31 I have the benefit, in relation to that class, of a confidential joint opinion prepared by those advising Mrs Richards, as well as a related and also necessarily confidential submission made on behalf of the Commission. These two documents are necessarily confidential because they do contain opinions and submissions in relation to prospects of that class. Raised for consideration is whether it would be fair and reasonable to approve a revised scheme which entails discrimination in respect of this group of claimants who form part of the overall class. There are some 20 persons affected. The causes of action concerned in the litigation – unauthorised managed investment scheme, contract based, unconscionable conduct and linked credit provider based causes of action – are such that it is not immediately apparent to me that all of those causes of action are necessarily affected to the extent which would warrant identification of a separate class and discounting. That is not to voice an opinion one way or the other as to what the prospects might be were those 20 persons separately to have sued. 32 The Commission put the proposition that there may be some populist attraction in identifying that group as a separate class. There may also, of course, be some populist attraction in not approving the scheme for some, so that they might take advantage of whatever forensic success the Commission might enjoy in its separately-instituted proceedings against the Bank. Intruding more fundamentally is the consideration that this type of discrimination was not telegraphed in advance by notice given pursuant to the orders originally made by the Court. No such notice would have enabled those particular claimants who fell within the class to decide to opt out. Even allowing for inferences which one might draw in respect of the particular positions held, and allowing everything which one might extrapolate from those inferences as to likelihood or otherwise of success in respect of that class, as elaborated upon in the confidential joint opinion, what remains is nonetheless an absence of prior notice. 33 Thus whilst I have reservations in any event as to the discounting, what I can and must respect is a principle which seems to me to underpin the Full Court's reasons for judgment. If a discriminatory funding premium is not to be permitted, however otherwise just it might seem, because of an absence of prior notice, it seems to me necessarily to follow that a discrimination against a particular subclass of claimant, which was also not the subject of prior notice, should not be regarded as fair and reasonable. For that reason, I would only approve the revised scheme if the clauses providing for discrimination in respect of the persons who have been described as the discounted claimants were removed. Should there be provision for an extended opt-out period? 34 This consideration was raised on behalf of the 19 objectors. It emerged in the course of submissions that of these 19 persons, only three were not Queensland resident. At the time when the original approval application came before me, I considered then that the notice which had been given in accordance with the order made by Reeves J was adequate. I see no reason to revise that view, even in light of the submissions made on behalf of the 19 objectors. The advertisements were placed in The Courier-Mail, the Townsville Bulletin and The Australian. The latter has a national circulation, The Courier-Mail at least a Queensland-wide circulation and the Townsville Bulletin a regional circulation obviously enough centred upon Townsville. They were particularly targeted publications, obviously responsive to the evidence before his Honour. It seems that three persons in New South Wales did not come to see the notice in The Australian. That is as may be. The notice order itself does not strike me as anything other than orthodox. 35 It was also put that a reader of the Commission's website would have assumed that the Commission was instituting proceedings for all. That may well be so, but that was a proceeding instituted by the Commission, not by Ms Richards. There was separate provision for notice by court order of those proceedings. That notice came, it would seem, to the attention of many. I do not therefore propose to condition approval upon any extension of the opt-out period. I also take into account in that regard that the settlement scheme at the moment has a comprehensive quality, so far as the Bank is concerned, to provide for opt-out, and no objectors actually said they wished to opt-out. To extent the opt-out period would be to detract from the comprehensiveness of the releases and indemnities for which the Bank has bargained and do that for no reason other than inattention to notices made in an orthodox way, pursuant to court order. 36 I note further that, when on 12 November 2013, I inquired of the Commission's counsel at a directions hearing as to bases upon which the Commission proposed to contest the revised settlement, the Commission indicated that it was not objecting to the notice. That, of course, related to the notice in respect of the revised scheme. That method of notice was more comprehensive than that originally provided for. It may well be that that greater comprehensiveness led to the 19 objectors being alerted. Nonetheless, as I have said, the order originally made was orthodox, having regard to the actions and activities of Storm Financial. Should there be provision in respect of a right of review? 37 I consider that the powers conferred upon the court by s 33V of the Federal Court of Australia Act are sufficiently wide either to condition approval only on the basis of the incorporation of a right of review in a scheme or to approve with an order that there be such a right of review. As first propounded, the revised scheme provided for Mr Levitt to act as administrator. As a result of the cooperative spirit which I have described and perhaps also responsively to a suggestion made in the course of submissions by me, the scheme which is to be found now in exhibit 6 provides for an independent administrator and for that person to be appointed by the Court. It further provides for that person's remuneration not to be approved by Levitt Robinson, but rather by the Court. In other words, the administrator is a person who is, and is seen to be, independent of either those advising Ms Richards or, for that matter, the Bank. 38 There is provision in the scheme as revised in clauses 26A and 26B for the administrator to conduct a review. For the 19 objectors, it was submitted that there ought to be a further clause, a proposed clause 26C, which would be in these terms: A Group Member aggrieved by any act, omission or decision in relation to the administration of the Second Revised Settlement Scheme may apply to the Court in respect of the act, omission or decision and the Court may confirm, reverse or modify the act or decision, or remedy the omission as the case may be, and make orders and give such directions as it thinks fit. 39 It was additionally submitted that there ought to be a provision granting liberty to apply to the Court for the determination of any matter arising in relation to the implementation of the settlement. 40 As I have said, I accept that there is power to condition approval in the presence of such a clause or to make an order granting liberty to apply in those terms. I am not persuaded that there is any need in the circumstances of this case for any such provision, given the revision or, rather, the further revision which has occurred in relation to the appointment and remuneration of the administrator. 41 It is not the subject of express provision in the Act that there must be such scope for court review. Nor is there anything in the cases which would suggest that no scheme can be approved as fair and reasonable unless it provides for that. It is said that there may nonetheless be an ability to approach a State Court under State legislation providing for trusts. A nice question may well be raised as to whether the scheme for which Pt IVA of the Federal Court of Australia Act provides is a code not admitting of the intrusion of State Courts into a compromise approved by this Court. For the present, that contingency, if it be one at all in law, is no sound basis at all for doing that which is not otherwise necessary in the interests of justice in this particular case. What I propose to do instead is to make provision for the administrator, if so advised, to approach this Court for advice in relation to any subject arising in the administration. Otherwise, it is to be expected that the administrator will do his independent duty. Costs 42 It was put that there ought to be some provision in respect of scrutiny of the solicitor/client costs which fall to be paid to Levitt Robinson out of settlement funds. It is axiomatic, of course, that the Court must approve costs. It is not axiomatic that such approval must only be given on the basis of costs as taxed by a court registrar. In Modtech Engineering Pty Limited v GPT Management Holdings Limited [2013] FCA 626, against a very different background in respect of an application which entailed approval of solicitor's costs Gordon J was moved to require a report from a registrar. 43 Here, though, I have the benefit – as I did for that matter on the earlier occasion when I heard the approval application – of considered expert opinion by an independent costs assessor. That opinion does not, of course, bind me. Nonetheless, upon examination of it, it seems to me to provide the requisite degree of detached scrutiny of costs upon which it is reasonable to rely and I do so. I propose, therefore, to allow such costs as have passed that particular scrutiny. Notification of the proposed revised new scheme 44 The Commission drew attention to a fact reported upon in the evidence read on behalf of Mrs Richards in relation to the notification of the proposed revised new scheme. That evidence was that there were some 116 notifications of undelivered email and a further 42 registered post returns. Levitt Robinson used email or, as the case may be, postal addresses which had hitherto been given to the firm in respect of communications. These email and postal addresses had been earlier used for notices. 45 The Commission voiced concern about these returns. Concern is one thing; failure on the part of an individual member of a class to keep current his or her address for contact is another. There comes a time when individuals must take responsibility for their own actions. One such time is when in the course of litigation of which they have had notice, they move. I am quite satisfied that the notice which was given was adequate in the circumstances. 46 Finally, lest they be thought to have been forgotten, I should make reference to those persons who have filed with the Court notices supporting approval of the settlement. There are heart-rending accounts to be found in those notices of support. What particularly motivates me to approve, but approve subject only to the conditions which I have mentioned, this revised scheme is the desirability of closure to a wide class of persons and the return to them at an early stage – much earlier than one might otherwise apprehend – of something in respect of what must seem to many to have been in hindsight a most imprudent investment decision indeed. 47 For these reasons, the orders which I propose to make are not to approve the scheme as it is in exhibit 6, but rather to approve a scheme as revised in the way that I have indicated. As to the other orders which are proposed in draft, these seem to me to be apt subject to their revision so as to include the conditions mentioned. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 23 December 2013	8,913
federal_court_of_australia:fca/single/2022/2022fca1407	decision	commonwealth	federal_court_of_australia	text/html	2022-11-28 00:00:00	Core Building Group Pty Ltd v Devoy [2022] FCA 1407	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2022/2022fca1407	2024-09-13T22:52:51.323441+10:00	Federal Court of Australia Core Building Group Pty Ltd v Devoy [2022] FCA 1407 File number(s): ACD 45 of 2020 Judgment of: GOODMAN J Date of judgment: 28 November 2022 Catchwords: COSTS – where proceeding resolved without final hearing – whether a costs order should be made on the basis of unreasonable conduct or belated capitulation by the respondents – no unreasonable behaviour – belated capitulation on all issues other than the assessment of damages – order that the respondents pay the applicant's costs in so far as those costs relate to issues other than the assessment of damages Legislation: Corporations Act 2001 (Cth), ss 182, 183, 1317H Federal Court of Australia Act 1976 (Cth), s 43 Federal Court Rules 2011 (Cth), rr 25.01, 25.14(3) Cases cited: Bridging Capital Holdings Pty Ltd v Self Directed Super Funs Pty Ltd (Costs) [2022] FCA 361 Calderbank v Calderbank [1976] Fam 93 Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Division: General Division Registry: Australian Capital Territory National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 22 Date of last submission/s: 4 November 2022 Date of hearing: Determined on the papers Solicitor for the Applicant: Aulich Civil Law Solicitor for the Respondents: McInnes Wilson Lawyers ORDERS ACD 45 of 2020 BETWEEN: CORE BUILDING GROUP PTY LTD (ACN 155 228 836) Applicant AND: CHRISTOPHER DEVOY First Respondent DEBBORAH HAWKINS Second Respondent BEL BAGNO PTY LTD Third Respondent order made by: GOODMAN J DATE OF ORDER: 28 NOvember 2022 THE COURT ORDERS THAT: 1. The respondents are to pay the applicant's costs of the proceeding in so far as those costs relate to issues other than the assessment of damages. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J Introduction 1 On 1 September 2022, at the commencement of the final hearing of this proceeding, I was informed that the proceeding had settled save as to the question of costs. On 5 September 2022, I made an order by consent for the entry of judgment in favour of the applicant in the sum of $170,000. 2 These reasons for judgment address the question of costs. For the reasons set out below, the appropriate order is that the respondents pay the applicant's costs in so far as those costs relate to issues other than the assessment of damages. Background 3 On 10 September 2020, the applicant commenced this proceeding by filing an Originating Process and a Statement of Claim. The Originating Process sought orders that the respondents pay to the applicant damages for breach of contract and compensation pursuant to s 1317H of the Corporations Act 2001 (Cth), including any profits made by the respondents. The Statement of Claim set out a series of alleged breaches of contract and contraventions of ss 182 and 183 of the Corporations Act. It also provided particulars of the applicant's loss and damage, totalling $158,817, together with "unknown profits made by the respondents" from the alleged contraventions of the Corporations Act. 4 On 2 December 2020, the respondents filed a Defence, which put into issue both the respondents' liability to the applicant and the quantum of any amount payable by the respondents to the applicant. 5 On 20 April 2021, the applicant's solicitor sent a letter to the respondents' solicitor (20 April 2021 Letter). The 20 April 2021 Letter described the evidence that the applicant proposed to adduce, including expert evidence which the applicant's solicitor contended would establish that the applicant's loss was $158,817. It then set out an offer (20 April 2021 Offer): Notwithstanding the above, and in the interests of resolving this matter expeditiously, my client is prepared to resolve its claim against your clients on a commercial basis. My client is prepared to accept payment of the sum of $130,000.00 plus costs on a party/party basis. Presently, our total costs are $83,615.57 (inclusive of GST), being $68,068.00 in professional fees and $15,547.57 in disbursements (of which $2,200 are Counsel's fees). In accordance with the decision of the Full Federal Court in WSA Online Limited v Arms [2006] (No 2) FCAFC 108, when an offer is made to respondents jointly it is appropriate to consider their position collectively. Collectively, this offer is clearly a compromise more favourable to the respondents if the Plaintiff is successful in its claim. My client makes this offer on the basis that any or all of the respondents can accept this offer. That is, whether one respondent accepts the offer, or two or all of the respondents accept the offer collectively, it is of no concern to our client. For the sake of clarity, upon agreement for my client to be paid $130,000.00 plus costs, the offer is accepted and settlement is made as between all respondents. This offer is constructed in this manner so that a Court can assess this offer as collectively as more favourable to each and every defendant in the event my client is successful in its claim. As you will appreciate, this offer represents a significant compromise of my client's claim against your clients. This offer is an offer of compromise pursuant to rule 25.01 of the Federal Court Rules 2011 (Cth) (the Rules) and will remain open for 28 days, being to 28 April 2021. I enclose, by way of service, a Notice of Offer of Compromise. In the event this offer is not considered an offer of compromise under the Rules, it is made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333 (Calderbank). (emphasis in original) 6 It is common ground that despite the statement "I enclose, by way of service, a Notice of Offer of Compromise" no such notice accompanied the 20 April 2021 Letter. 7 On 29 April 2022, I made an order, by consent, that judgment be entered for the applicant with damages to be assessed. Thereafter, the parties prepared for a hearing confined to the assessment of damages. In submissions filed ahead of the hearing, the applicant submitted that the Court should order the respondents to pay $362,294.76; and the respondents submitted that the appropriate amount was between $71,158.25 and $142,729.75. 8 As noted above, on 1 September 2022, I was informed that the parties had settled the proceeding, save for the question of costs; and on 5 September 2022, I made an order by consent that judgment be entered in favour of the applicant in the sum of $170,000. submissions 9 The initial submissions of the parties did not address the fact that there had been no determination of the merits of the proceeding. The Court drew the attention of the parties to the observations of McHugh J in Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 and the New South Wales Court of Appeal in Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; (2018) 97 NSWLR 681 as to the limited circumstances in which costs are ordered when there has been no determination of the merits of the proceeding, and invited further submissions. The parties provided further submissions which addressed the above-mentioned observations. 10 The applicant's position, shortly stated, is that the respondents should pay the applicant's costs because: (1) the respondents did not accept the 20 April 2021 Offer and the respondents achieved a lesser result than they would have achieved if that offer had been accepted; (2) both liability and the assessment of damages were in dispute until 29 April 2022, when the respondents admitted liability; (3) the assessment of damages was resolved on 5 September 2022 for an amount exceeding the 20 April 2021 Offer; (4) in these circumstances, the respondents: (a) acted unreasonably in defending the proceeding; and (b) following lengthy and contested litigation, surrendered or capitulated. 11 The applicant also contends that the respondents' non-acceptance of the 21 April 2021 Offer provides a basis for costs to be awarded on an indemnity basis. 12 The respondents' position, shortly stated, is that there should be no order as to costs because: (1) the respondents did not act unreasonably; and (2) the entire proceeding resolved by consent (albeit in two stages) and without a trial on the merits. Consideration The discretion where there has been no determination of the merits 13 Section 43 of the Federal Court of Australia Act 1976 (Cth) provides the Court with a broad discretion as to costs. An important consideration in the exercise of that discretion in the present case is that there has been no determination of the underlying merits of the proceeding. The principles which inform the exercise of the costs discretion in such circumstances are well-established and were conveniently summarised by Stewart J in Bridging Capital Holdings Pty Ltd v Self Directed Super Funs Pty Ltd (Costs) [2022] FCA 361 at [16]: The general principles that apply to the determination of costs where there has been no adjudication on the merits of the proceeding are well-established. There is no dispute about the plaintiff's characterisation of those principles as follows: (1) the court has no ability to try a hypothetical action between the parties; (2) however, in an appropriate case, the court may make an order for costs where there has been no adjudication on the merits and the moving party no longer seeks to proceed with the action; (3) examples of circumstances in which the court may be satisfied it is appropriate to make such an order include where the court is able to conclude that: (a) one of the parties has acted so unreasonably as to justify a court order against it; or (b) despite both parties having acted reasonably, one party would almost certainly have succeeded if the matter had been tried; (4) it is important to draw a distinction between cases in which one party, after litigating for some time, effectively surrenders to the other, and cases where some supervening event or settlement removes or modifies the subject of the dispute such that no issue remains between the parties except as to costs although no party can be said to have won. In the former type of case, the exercise of the court's discretion will usually justify the award of costs to the successful party; and (5) where it appears to the court that both parties have acted reasonably in commencing and defending the proceedings and the conduct of the parties continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the discretion will usually mean the court will make no order as to costs. (See Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin [1997] HCA 6; 186 CLR 622 at 624-625 per McHugh J; One.Tel Ltd v Commissioner of Taxation [2000] FCA 270; 101 FCR 548 at [5]-[6] per Burchett J; Nichols v NFS Agribusiness Pty Ltd [2018] NSWCA 84; 97 NSWLR 681 at [27]-[30] per Payne JA, Meagher JA agreeing.) 14 As noted above, the applicant contends that a costs order against the respondents is justified because: (1) the respondents behaved unreasonably; and (2) the respondents capitulated after litigating for some time. Unreasonable conduct? 15 The applicant's submission concerning unreasonable conduct is based upon the respondents' non-acceptance of the 20 April 2021 Offer. The applicant made two contentions. 16 The first contention was that the applicant made a valid Offer of Compromise under r 25.01 of the Federal Court Rules 2011 (Cth); that offer was not accepted; the applicant obtained a judgment which was more favourable than the terms of the offer (as $170,000 exceeds $130,000); and thus, by dint of r 25.14(3) of the Rules, the applicant is entitled to an order that the respondents pay the applicant's costs on an indemnity basis from the second business day after the offer was served. This contention fails at the outset. As noted at [6] above, no Offer of Compromise compliant with r 25.01 was served, despite the 20 April 2021 Letter having referred to such an offer. 17 The applicant's second contention was that the 20 April 2021 Offer should be regarded as an offer of the kind made in Calderbank v Calderbank [1976] Fam 93, and that the respondents behaved unreasonably in not accepting it. I do not accept this submission. The 20 April 2021 Offer was expressed to be open until 28 April 2021 and was made at a time before the applicant had completed the service of its evidence; and the respondents had not served their evidence. Further, the extent of the compromise was modest, in that the applicant offered to accept $130,000 (plus costs of $83,615.57) in compromise of a claim described in the 20 April 2021 Offer as having a value of $158,817.00. In all of these circumstances, I do not consider the non-acceptance of the 20 April 2021 Offer to be conduct so unreasonable that it warrants an award of costs (much less an award of indemnity costs) against the respondents. Capitulation? 18 The applicant contends that the respondents capitulated to the claims made by the applicant, by dint of their consent to the orders made on 29 April 2022 and 5 September 2022. 19 In my view, the respondents' consent to the 29 April 2022 order represented a capitulation by the respondents on all issues other than the assessment of damages in circumstances where all issues had been contested since the respondents' Defence was filed on 2 December 2020. Had the respondents conceded liability when their Defence was filed, it is likely that the applicant would not have incurred significant costs in seeking to prove that issue. 20 However, I do not regard the respondents' consent to the order made on 5 September 2022 for the entry of judgment for the applicant against the respondents in the sum of $170,000 as a capitulation by the respondents on the assessment of damages. Rather, it was a compromise reached between the parties on the first morning of the hearing in a context which included the evidence filed by both parties on the quantum of damages, and the competing submissions of the parties as to the amount to be paid by the respondents to the applicant (see [7] above). 21 In summary: (1) I am not satisfied that the respondents failure to accept the 20 April 2021 Offer to be conduct so unreasonable that it warrants an award of costs against the respondents; and (2) I am satisfied that the respondents capitulated on all issues other than the assessment of damages. 22 In those circumstances, the appropriate exercise of the discretion is to order the respondents to pay the applicant's costs of the proceeding in so far as those costs relate to issues other than the assessment of damages. I will make an order accordingly. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 28 November 2022	3,482
federal_court_of_australia:fca/single/2001/2001fca1704	decision	commonwealth	federal_court_of_australia	text/html	2001-12-03 00:00:00	He v Minister for Immigration & Multicultural Affairs [2001] FCA 1704	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2001/2001fca1704	2024-09-13T22:52:51.979848+10:00	FEDERAL COURT OF AUSTRALIA He v Minister for Immigration & Multicultural Affairs [2001] FCA 1704 XI XI ZHU HE v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 2110 of 2001 KATZ J 3 DECEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2110 of 2001 BETWEEN: XI XI ZHU HE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE OF ORDER: 3 DECEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1 The application be dismissed. 2 The applicant pay the respondent's costs of the proceeding. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 2110 of 2001 BETWEEN: XI XI ZHU HE APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: KATZ J DATE: 3 DECEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 There is before the Court an application for review of a decision made by the Refugee Review Tribunal ("the RRT"). 2 The applicant in the present proceeding, Ms Xi Xi Zhu He, is a Chinese national. On 31 August 1998, she arrived in Australia with a visitor visa. On 18 September 1998, she applied to the respondent in the present proceeding, the Minister for Immigration & Multicultural Affairs ("the Minister"), for the grant of a protection visa. On 14 November 2000, a delegate of the Minister ("the delegate") decided to refuse to grant Ms He's protection visa application. (I note that I am unaware why it took the delegate almost twenty-six months to make his decision on Ms He's protection visa application.) On 12 December 2000, Ms He applied to the RRT for review of the delegate's decision. On 26 June 2001, the RRT handed down its decision the subject of the present application for review, which decision affirmed the delegate's decision. 3 For the purpose of the present proceeding, it is unnecessary to refer to the RRT's findings and reasons on the question whether Ms He was a refugee. It is, however, necessary to refer to certain events which occurred during the conduct by the RRT of its review of the delegate's decision. 4 On 8 March 2001, the RRT invited Ms He to appear before it at a certain location in Sydney on Monday, 21 May 2001, at 2.30 pm, to give evidence and present arguments relating to the issues arising in relation to the delegate's decision: see subs 425(1) of the Migration Act 1958 (Cth) ("the Act"). On 25 March 2001, Ms He advised the RRT that she intended to appear at the time and place specified in the RRT's invitation to her. 5 I next set out a passage from the RRT's statement of findings and reasons, which passage explains subsequent developments: "[22] On 21 May 2001, by facsimiled letter and medical certificate, the applicant's adviser informed the Tribunal that the applicant could not attend the hearing scheduled for later that day because of her current poor health situation. The Tribunal was requested to reschedule the hearing. The medical certificate, dated 17 May 2001, indicated that the applicant was suffering a viral infection and was unfit for work or school from 17 May until 21 May 2001. The Tribunal contacted the doctor that morning to confirm the certificate. The doctor indicated that the applicant was suffering from neck pain, but should be able to attend a Tribunal hearing, so long as she could stand up and move around if she needed to. [23] The applicant's adviser was contacted, who informed that the applicant had attended the doctor again and had been issued a second medical certificate, dated 20 May 2001. The adviser was informed that the doctor had been contacted, and that the applicant could attend the hearing. The adviser stated that he would try and contact the applicant. Later in the morning of 21 May 2001, the second medical certificate was received. The certificate indicated that the applicant was suffering from headache and neck pain, and was unfit for work or school from 20 May until 22 May 2001. The adviser contacted the Tribunal and informed that he was unable to contact the applicant, but had left a message on her answering machine to attend the hearing. [24] The applicant did not attend the hearing or contact the Tribunal to explain her failure to attend. On 22 May 2001, the Tribunal contacted the adviser to find out why the applicant failed to attend the hearing, and to put the explanation in writing. The adviser asked why the Tribunal wanted an explanation when a medical certificate had been tendered. He stated that he did not know why the doctor had given the applicant a medical certificate and had told the Tribunal that the applicant could attend the hearing. The adviser stated that the doctor was 'two faced', and stated his intention to find out why the doctor told the Tribunal that the applicant could attend, when the adviser had stated that the applicant was sick for about two weeks. [25] The adviser was informed that he should contact the applicant and seek an explanation as to why she had not attended the hearing when she did not have permission from the Tribunal not to attend. He was informed that a written explanation was required as soon as possible. The adviser indicated that he would provide a written explanation that day. No explanation was received from the adviser, nor did the applicant contact the Tribunal and explain her failure to attend. [26] In these circumstances, and pursuant to section 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it." 6 Section 426A of the Act, referred to in the passage which I have just quoted from the RRT's statement of findings and reasons, provides as follows: "426A Failure of applicant to appear before Tribunal (1) If the applicant: (a) is invited under section 425 to appear before the Tribunal; and (b) does not appear before the Tribunal on the day on which, or at the time and place at which, the applicant is scheduled to appear; the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. (2) This section does not prevent the Tribunal from rescheduling the applicant's appearance before it, or from delaying its decision on the review in order to enable the applicant's appearance before it as rescheduled." 7 Ms He's application to the Court for review of the RRT's decision was lodged by her in person on 23 July 2001. In it, she identified two grounds of her application: first, that the RRT's decision had been induced or affected by actual bias; and, secondly, that there was no evidence or other material to justify the making of the decision. The first of those two grounds was a ground of review of the RRT's decision under par 476(1)(f) of the Act as it read at the commencement of the present proceeding, while the second of those two grounds was a ground of review of the RRT's decision under par 476(1)(g) of the Act as it read at the commencement of the present proceeding. Subsequently, amendments to the Act have been made, but those amendments may be ignored for present purposes. 8 In support of her application to this Court for review of the RRT's decision, Ms He filed written submissions. It is apparent from those written submissions that Ms He's real concern about the outcome of her application to the RRT for review of the delegate's decision was with the RRT's not having rescheduled her appearance before it. Among other things, she said, "[I]t was unfair to refuse my application for a deferred hearing when I was so sick and could not attend the hearing. … I believe it is unfair to refuse my application for a deferred hearing under such circumstances and it was rare that the officer [that is, the member constituting the RRT] would have called the doctor to confirm whether I could attend the hearing. A doctor who was questioned like that would have changed his or her mind to state whether the patient was fit for the hearing because it was so unusual. If I were really fit for the hearing, the doctor would not have issued the doctor's certificate to prove that I was not fit for work or study. However, when the doctor was questioned like that he may have changed his mind for his or her own sake. I don't think the way the officer had done is usual, I can't see why the officer could not arrange another hearing for me, instead, he made a decision on my application without sufficient content. Under such circumstances, I believe that the decision of my application was induced or affected by actual bias of the officer. There was no evidence or other material[ ] to justify the making of the decision." 9 I will deal first with the "no evidence" ground relied on by Ms He. 10 Subsection 476(4) of the Act as it read at the commencement of the present proceeding had the effect that an applicant could not succeed on the "no evidence" ground set out in par 476(1)(g) of the Act unless the applicant also established one of two additional matters. Relevant for present purposes was the matter set out in par 476(4)(b) of the Act. The combined effect of pars 476(1)(g) and 476(4)(b) of the Act was that an applicant who wished to succeed on the "no evidence" ground was required to establish: first, that the decision-maker had based the decision on the existence of a particular fact; secondly, that that particular fact on the existence of which the decision had been based did not exist; and, thirdly, that there had been no evidentiary material before the decision-maker from which it had been open to the decision-maker to conclude that that particular fact did exist. An additional refinement regarding a "no-evidence" case was that it could only be made out in respect of the decision-maker's ultimate decision, not in respect of an interlocutory procedural decision by the decision-maker. Yet another refinement was that the applicant could seek to establish the non-existence of the particular fact on the existence of which the ultimate decision had been based only by evidence admissible according to the rules of judicial evidence. For a recent decision of mine in which I discussed many of the above matters, see Rasel v Minister for Immigration & Multicultural Affairs [2001] FCA 443 (20 April 2001, unreported). 11 The probability that, when the "no evidence" ground was included in her application for review, the above intricacies of the law of judicial review on the "no evidence" ground were present to the mind either of Ms He or of anyone advising her is not great. Indeed, I suspect that what the drafter may have had in mind by including the ground was that the mere absence of any oral evidence given by Ms He at an appearance before the RRT meant that there was no evidence to justify the making of the RRT's decision. Be that as it may, in the present proceeding, Ms He has identified no particular fact on which, according to her, the RRT's ultimate decision was based, still less sought to establish by evidence admissible according to the rules of judicial evidence that that fact did not exist and that there was no evidence before the RRT of its existence. It is therefore apparent that her "no evidence" ground must fail. 12 I turn next to Ms He's "actual bias" ground. 13 In Jia v Minister for Immigration & Multicultural Affairs (1998) 84 FCR 87 at 104, French J said that actual bias, within the meaning of par 476(1)(f) of the Act, "… must be a pre-existing state of mind which disables the decision-maker from undertaking or renders him [or her] unwilling to undertake any or any proper evaluation of the materials before him or her which are relevant to the decision to be made". 14 French J's definition of actual bias for the purpose of par 476(1)(f) of the Act was accepted by all three members of a Full Court of this Court which reversed his judgment in Jia: see Jia v Minister for Immigration & Multicultural Affairs (1999) 93 FCR 556 (Spender and R D Nicholson JJ; Cooper J dissenting). On an appeal to the High Court of Australia in which the Full Court's judgment was in turn reversed, Gleeson CJ and Gummow J described the test of actual bias which had been applied both by French J and by the Full Court as "orthodox": see Minister for Immigration & Multicultural Affairs v Jia (2001) 178 ALR 421 at 438, [72]; see also at 451, [130] (Kirby J); and at 463, [176] (Hayne J). I will proceed herein on the basis of French J's definition. 15 As I understand Ms He's submissions, she points to two matters as establishing actual bias in the relevant sense on the part of the RRT: first, that the RRT sought, on the day of her scheduled appearance, to check with the doctor concerned the information contained in the medical certificate supplied; and, secondly, that the RRT decided not to reschedule Ms He's appearance before it. I have inferred that Ms He relies on those two matters both from her written submissions to which I have already referred above and from her oral submissions made during the course of the hearing today. 16 In my view, those two matters, whether considered alone or in combination, do not come close to establishing actual bias on the part of the RRT, even ignoring the seriousness of the making of an allegation of actual bias against a decision-maker. 17 As to the RRT's seeking, on the day of Ms He's scheduled appearance before it, to check with the doctor concerned the information contained in the medical certificate supplied, I can see nothing unfair or otherwise inappropriate in such conduct, still less find in it any suggestion of a state of mind on the RRT's part which rendered it unwilling or unable ultimately to evaluate Ms He's claims to be a refugee. 18 In that connection, it should be noted that the medical certificate about which the RRT made inquiries, although dated Thursday, 17 May 2001, was not brought to the RRT's attention on that date. Instead, it appears to have been faxed to the RRT three days later, on Sunday evening, 20 May 2001, and to have been first seen by the RRT on Monday, 21 May 2001, the day of Ms He's scheduled appearance before the RRT. Further, the certificate covered a period ending on Monday, 21 May 2001, and said nothing specifically about Ms He's ability to appear before the RRT. Instead, the certificate was created on a pre-prepared form, which merely spoke of her being unfit for "work/school". 19 As to the RRT's deciding not to reschedule Ms He's appearance before it, again, I can see nothing unfair or otherwise inappropriate in such conduct, still less find in it any suggestion of a state of mind on the RRT's part which rendered it unwilling or unable ultimately to evaluate Ms He's claims to be a refugee. 20 In that connection, I note that the RRT sought from Ms He, after her non-appearance before it at the scheduled time and place, an explanation of her non-appearance, given the circumstances, but none had been forthcoming by the time it made its decision in the matter. 21 In the result, I will dismiss with costs Ms He's application for review of the RRT's decision. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz. Associate: Dated: 14 December 2001 The Applicant appeared in person. Counsel for the Respondent: Mr S Lloyd Solicitors for the Respondent: Blake Dawson Waldron Date of Hearing: 3 December 2001 Date of Judgment: 3 December 2001	3,549
federal_court_of_australia:fca/single/2018/2018fca1683	decision	commonwealth	federal_court_of_australia	text/html	2018-11-08 00:00:00	BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1683	2024-09-13T22:52:52.110589+10:00	FEDERAL COURT OF AUSTRALIA BDS17 v Minister for Immigration and Border Protection [2018] FCA 1683 Appeal from: BDS17 v Minister for Immigration and Border Protection [2017] FCCA 2757 File number: NSD 2111 of 2017 Judge: FLICK J Date of judgment: 8 November 2018 Catchwords: EVIDENCE – coincidence evidence – admissibility of coincidence evidence – where evidence adduced to establish actual bias – where evidence adduced to establish state of mind of primary Judge – evidence of other cases decided by the primary Judge – statistical evidence – whether evidence has significant probative value – evidence inadmissible ADMINISTRATIVE LAW – actual bias – test to establish actual bias – consideration of need for caution before raising allegation of actual bias – whether primary Judge actually biased ADMINISTRATIVE LAW – reasons for decision –requirement to give reasons – consideration of what constitutes adequate reasons – whether the primary Judge failed to give adequate reasons – whether there was a real engagement with the arguments and grounds being advanced ADMINISTRATIVE LAW – apprehended bias – whether the Tribunal exhibited apprehended bias against the Appellant – whether Tribunal Member hostile to the Appellant – whether the allegation of apprehension of bias appropriately made HIGH COURT AND FEDERAL COURT – application for the Court to be reconstituted – where application made after the conclusion of the hearing – where Counsel expressly declined to make application during the hearing – application rejected PRACTICE AND PROCEDURE – legal practitioners –where barrister affirmed affidavit in proceeding in which he appeared – where affidavits annexed documents sought to be relied on – where prospect that barrister appearing could be called upon to give evidence – a course to be shunned Legislation: Evidence Act 1995 (Cth) s 98 Evidence Act 1995 (NSW) s 98 Evidence (National Uniform Legislation) Act (NT) s 97 Cases cited: A2 v The Queen [2018] NSWCCA 174 ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30 Attorney-General (NSW) v Quin (1990) 170 CLR 1 AZU15 v Minister for Immigration and Border Protection [2016] FCAFC 74, (2016) 240 FCR 143 AZZI v Minister for Immigration and Multicultural Affairs [2002] FCA 24, (2002) 120 FCR 48 BDS17 v Minister for Immigration and Border Protection [2017] FCCA 2757 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65, (2017) 250 FCR 587 Chava v Minister for Immigration and Border Protection [2014] FCA 313, (2014) 141 ALD 433 Commissioner of Taxation v Glennan [1999] FCA 297, (1999) 90 FCR 538 CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 353 ALR 641 DSJ v The Queen [2012] NSWCCA 9, (2012) 84 NSWLR 758 Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189, (2002) 6 VR 1 Hocking v Medical Board of Australia [2014] ACTSC 48, (2014) 287 FLR 54 IMM v The Queen [2016] HCA 14, (2016) 257 CLR 300 Macks v Viscariello [2017] SASCFC 172, (2017) 130 SASR 1 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48, (2011) 244 CLR 427 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 111 ALD 15 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356, (2016) 246 FCR 111 NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361 Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 R v Gale [2012] NSWCCA 174, (2012) 217 A Crim R 487 R v MR [2013] NSWCCA 236 Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 Re JRL; Ex parte CJL (1986) 161 CLR 342 Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, (2003) 216 CLR 212 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470, (2009) 181 FCR 113 SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, (2015) 229 FCR 317 VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872, (2003) 131 FCR 102 White v Johnston [2015] NSWCA 18, (2015) 87 NSWLR 779 Date of hearing: 25 May 2018 Date of last submissions: 29 May 2018 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 122 Counsel for the Appellant: Mr A Silva Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 2111 of 2017 BETWEEN: BDS17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGE: FLICK J DATE OF ORDER: 8 NOVEMBER 2018 THE COURT ORDERS THAT: 1. The appeal be allowed. 2. Order 2 of the Orders made by the Federal Circuit Court on 13 November 2017 be set aside. 3. The proceeding be remitted to the Federal Circuit Court, differently constituted, for reconsideration in accordance with law. 4. There be no order as to costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT 1 The Appellant in the present proceeding, identified by the pseudonym BDS17, arrived in Australia as an unauthorised maritime arrival in April 2013. 2 He is a citizen of Sri Lanka who claims to fear harm if he is returned to Sri Lanka as a result of (inter alia) an altercation during a 2010 election campaign and persecution by criminal groups. 3 In August 2013, the Appellant applied to the then Department of Immigration and Citizenship for a Protection (Class XA) visa. A delegate of what was by then the Minister for Immigration and Border Protection refused that application in January 2015. BDS17 then sought review of the delegate's decision by the Refugee Review Tribunal. What was by then the Administrative Appeals Tribunal (the "Tribunal") affirmed the delegate's decision in February 2017. 4 In March 2017, an application was filed in the Federal Circuit Court of Australia seeking judicial review of the Tribunal's decision. That Court heard the application on 13 November 2017 and on the same day delivered ex tempore reasons dismissing the application: BDS17 v Minister for Immigration and Border Protection [2017] FCCA 2757. 5 A Notice of Appeal was filed in this Court on 29 November 2017 and an Amended Notice of Appeal was filed on 20 December 2017. Omitting for present purposes the Particulars provided in respect to each Ground of Appeal, those Grounds as set forth in the Amended Notice of Appeal were expressed (without alteration) as follows: (1) His Honour the learned primary judge's decision should be set aside for actual bias on the part of the Judge. Substantive Grounds (2) His Honour the learned primary Judge erred in failing to hold under Ground 1 that the Tribunal (a) failed to take a relevant consideration (b) failed to exercise jurisdiction (c) failed to give proper, genuine and realistic consideration (3) His Honour the learned primary Judge erred under Ground 2 by failing to find that the Tribunal failed to inquire with the Mannar Police and/or Mannar Magistrates Court Registry or the Document Examination Unit of the Department or with the applicant's former lawyer about the genuineness of documents vital to the applicant's case (4) His Honour erred under Ground 3 by failing to hold that the Tribunal made jurisdictional error in that it was (a) not open for the Tribunal to impliedly find that the documents were fraudulent and/or (b) not open for it to give no weight (5) His Honour erred under Ground 5 by failing to find that the Tribunal made jurisdictional error in that it made exaggerated adverse credibility findings which were not open (6) His Honour erred under Ground 6 by failing to find that The Tribunal made jurisdictional error in that the Tribunal caused apprehension of bias by its hostility to the applicant (7) His Honour erred under Ground 8 by failing to find that The Tribunal made jurisdictional error in that it misapprehended the applicant's evidence and made adverse credibility findings based on that misapprehension These Grounds of Appeal are, amongst other reasons, noticeable for contending that the primary Judge's decisions should be set aside by reason of actual bias on the part of the primary Judge. Such an allegation is rare. 6 In addition to filing the Amended Notice of Appeal, Counsel on behalf of BDS17 has filed a Notice of Intention to Adduce Coincidence Evidence. That notice was given under s 98(1) of the Evidence Act 1995 (Cth). 7 Written submissions have been filed by both parties. After the close of hearing, further submissions were filed by the Appellant – including a submission that the Court should be reconstituted. 8 Ground 1, being the allegation of actual bias against the primary Judge, is rejected. A number of Grounds, namely Grounds 2, 4, 5 and 7, overlap and raise a common contention that the primary Judge failed to explain the basis upon which he proceeded and failed to properly consider the submissions then being advanced. That argument has prevailed. Ground 3, being the allegation that the Tribunal failed to make reasonable inquiries, is rejected. Ground 6, confined as it is to an allegation founded upon an alleged "hostility" on the part of the Tribunal is also rejected. Ground 7 was not pressed. The application for reconstitution of the Court is rejected. 9 The appeal should thus be allowed in part. ACTUAL BIAS 10 The first Ground of Appeal alleges actual bias as against the primary Judge. It is in support of that Ground that Counsel on behalf of BDS17 seeks to adduce "coincidence evidence". 11 If the application to adduce "coincidence evidence" is acceded to, Counsel on behalf of BDS17 seeks to adduce evidence in respect to two other decisions made by the primary Judge in two other migration cases – one being SYG2417 of 2016; the other SYG2834 of 2015 – as well as statistical evidence about the cases decided by the primary Judge. 12 The application to adduce "coincidence evidence" is rejected as the evidence does not have significant probative value. However, even if it were admitted, neither that evidence, nor any other consideration, establishes actual bias on the part of the primary Judge. Actual bias – a grave & exceptional allegation 13 A finding of actual bias is a "grave and exceptional matter": NADR v Minister for Immigration and Multicultural Affairs [2002] FCA 361. In the context of entertaining a submission that the Refugee Review Tribunal had demonstrated actual bias, Emmett J there observed: [16] A finding of actual bias is a grave and exceptional matter. The accusation of such bias must be firmly established. It cannot be sufficient to establish actual bias to invite a court to find that it would have come to a different decision from the decision-maker. Even factual error or faulty reasoning, notwithstanding that the factual error might be serious or the reasoning might be totally illogical, is not of itself sufficient to lead to a finding of actual bias … The more so is this the case when the allegation is made, not against a statutory tribunal, but against a Chapter III judge, such as the primary Judge in the present proceeding. 14 Unlike decision-makers who may be members of the Executive or statutory tribunal members, higher standards are justifiably imposed upon the judiciary. Judges, unlike administrative decision-makers, serve a fundamentally different role. These differences were adverted to in part by Gleeson CJ and Gummow J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 539. In contrasting the position of a Minister and that of a judicial officer, their Honours there concluded: [102] … As the circumstances of the radio interview demonstrate, the Minister himself can be drawn into public debate about a matter in respect of which he may consider exercising his powers. He might equally well have been asked questions about the cases in Parliament. The position of the Minister is substantially different from that of a judge, or quasi-judicial officer, adjudicating in adversarial litigation. It would be wrong to apply to his conduct the standards of detachment which apply to judicial officers or jurors. 15 The test for actual bias is "stringent" and the onus cast on the Appellant of proving actual bias is a "heavy one": Hocking v Medical Board of Australia [2014] ACTSC 48 at [174] to [175], (2014) 287 FLR 54 at 84 per Murrell CJ. Coincidence evidence – s 98 of the Evidence Act 16 "Coincidence evidence" is not admissible unless such evidence falls within s 98 of the Evidence Act. 17 Section 98 provides as follows: The coincidence rule (1) Evidence that 2 or more events occurred is not admissible to prove that a person did a particular act or had a particular state of mind on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, or any similarities in both the events and the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless: (a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence; and (b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value. (2) Paragraph (1)(a) does not apply if: (a) the evidence is adduced in accordance with any directions made by the court under section 100; or (b) the evidence is adduced to explain or contradict coincidence evidence adduced by another party. 18 "Coincidence evidence" is defined in the Dictionary to the Evidence Act as "evidence of a kind referred to in subsection 98(1) that a party seeks to have adduced for the purpose referred to in that subsection". "Coincidence evidence" invites a "particular form of probabilistic reasoning designed to establish a particular fact or state of mind": R v MR [2013] NSWCCA 236 at [61] per Beech-Jones J, Hoeben CJ at CL agreeing. 19 In explaining the comparable provision found in the Evidence Act 1995 (NSW), Simpson J in R v Gale [2012] NSWCCA 174, (2012) 217 A Crim R 487 at 494 observed: [25] At its heart, s 98 is a provision concerning the drawing of inferences. The purpose sought to be achieved by the tender of coincidence evidence is to provide the foundation upon which the tribunal of fact could draw an inference. The inference is that a person did a particular act or had a particular state of mind. The process of reasoning from which that inference would be drawn is: • two or more events occurred; and • there were similarities in those events; or there were similarities in the circumstances in which those events occurred; or there were similarities in both the events and the circumstances in which they occurred; and • having regard to those similarities, it is improbable that the two events occurred coincidentally; • therefore the person in question did a particular act or had a particular state of mind. Her Honour continued (at 495 to 496): [30] The factual underpinnings of the s 98 decision to admit or reject coincidence evidence are: • that there is evidence capable of establishing the occurrence of two or more events; and • that there is evidence capable of establishing similarities in the two or more events; or • that there is evidence capable of establishing similarities in the circumstances in which two or more events occurred; • that there is evidence capable of establishing both similarities in the two or more events and similarities in the circumstances in which the two events occurred. [31] In a case in which it is found that there is such evidence, then, in my opinion, the correct process in the determination of the admission of evidence under s 98 involves a series of steps, as follows: • the first step is to identify the "particular act of a person" or the "particular state of mind of a person" that the party tendering the evidence seeks to prove; • the second step is to identify the "two or more events" from the occurrence of which the party tendering the evidence seeks to prove that the person in question did the "particular act" or had the "particular state of mind"; • the third step is to identify the "similarities in the events" and/or the "similarities in the circumstances in which the events occurred" by reason of which the party tendering the evidence asserts the improbability of coincidental occurrence of the events; • the fourth step is to determine whether "reasonable notice" has been given of the intention to adduce the evidence (or, if reasonable notice has not been given, whether a direction under s 100(2) ought to be given, dispensing with the requirement); • the fifth step is to make an evaluation whether the evidence will, either by itself or in conjunction with other evidence already given or anticipated, "have significant probative value"; McClellan CJ at CL and Fullerton J agreed with Simpson J. 20 In order for evidence to be "coincidence evidence" it is not sufficient that it is relevant; the party seeking to adduce the evidence must give notice (s 98(1)(a)) and the evidence must have "significant probative value" (s 98(1)(b)). The "probative value" of evidence is defined in the Dictionary to the Evidence Act as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue". The impact of the adjective "significant" in the phrase "significant probative value" has been considered by the High Court in IMM v The Queen [2016] HCA 14, (2016) 257 CLR 300 at 313 to 314 in the similar legislative context of s 97(1)(b) of the Evidence (National Uniform Legislation) Act (NT) (which relates to "tendency evidence"). French CJ, Kiefel, Bell and Keane JJ there said: [44] The assessment of "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue" requires that the possible use to which the evidence might be put, which is to say how it might be used, be taken at its highest. The definition must be read in the context of the provision to which it is applied. For the purposes of s 97(1)(b), the inquiry is whether the probative value of the evidence may be regarded as "significant". … [46] Cross on Evidence [(10th Aust ed, LexisNexis, 2015) at 763] suggests … that a "significant" probative value is a probative value which is "important" or "of consequence". The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding. These observations apply with equal force to s 98(1)(b): cf. A2 v The Queen [2018] NSWCCA 174 at [1032] per Hoeben CJ at CL, Ward JA and Adams J. 21 Relevant to an assessment as to whether evidence has a "significant probative value" is whether there is an alternative explanation for the coincidence: DSJ v The Queen [2012] NSWCCA 9, (2012) 84 NSWLR 758. Whealy JA there observed (at 775 to 776): The contested interpretations of s 98 [78] In this appeal the Crown has conceded that, in performing the task under s 98, a trial judge may, in an appropriate case, have regard to an alternative explanation arising on the evidence. The Crown, however, insisted that, in so doing, the trial judge is restricted to examining whether the Crown hypothesis has cogency, that is, whether the Crown evidence is capable of being regarded as significant in its ability to prove the Crown case. If the coincidence evidence, either by itself or having regard to other evidence in the Crown case, positively and forcefully suggested an explanation consistent with innocence, then the coincidence evidence could scarcely be regarded as important or of consequence in proving the fact or facts in issue. What is required is this: the trial judge must ask whether the possibility of such an alternative explanation substantially alters his (or her) view as to the significant capacity of the Crown evidence, if accepted, to establish the fact in issue. Does the alternative possibility, in the judge's view, rob the evidence of its otherwise cogent capacity to prove the Crown's case? If it does not, the trial judge may safely conclude that the evidence has significant probative value. [79] In a practical sense, there are two avenues of approach to be taken. First, in examining the coincidence evidence (together with other material already in evidence or to be adduced) the trial judge is required to ask whether there emerges, from a consideration of all the Crown evidence, a possible explanation inconsistent with guilt. For regard to be had to the alternative explanation, it must be a real possibility, not a fanciful one. It must be a broad or overarching possibility, capable of being stated in general terms, even though it may derive from an individual piece or pieces of evidence or the evidence taken as a whole. [80] Secondly, the trial judge must ask whether that possibility substantially alters his (or her) view as to the otherwise significant capacity of the coincidence evidence to establish the fact or facts in issue. Of course, if the trial judge has already concluded that the coincidence evidence does not reach that level of significance in terms of its capacity, he will have rejected the evidence in terms of s 98. In that situation, the possibility of an alternative inference may, for the time being, be set to one side. Later in the trial, when the evidence has concluded, that possibility will become a matter for the jury to assess and determine when it comes to consider whether the Crown has proved its case beyond reasonable doubt. [81] The Crown, in making its concession, however, stressed that at no stage in this process was the trial judge required or entitled to assess the actual weight of any part of the evidence, or to make any actual assessment concerning the probabilities of any alternative theory. Nor was the trial judge required or entitled to make a comparison of the Crown theory and the probabilities of any alternative theory. This proposition appears consistent with established authority. Any attempt by the trial judge to anticipate the actual weight the jury would attach to the evidence is prohibited, as I have explained. In expressing his agreement with these observations, Bathurst CJ set out the terms of s 98 and the definition of "probative value" found in the Act and continued (at 760 to 761): [4] I have set out the relevant provisions of the Act because the issues raised in the appeal depend upon the application of its requirements. [5] There are a number of matters that should be noted about s 98(1). [6] First, its provisions will only fall for consideration if the evidence in question is relevant. That is in terms of s 55 of the Act it could rationally affect the probability of the existence of a fact in issue. [7] Second, it requires the court to form a view, "think", that the evidence had significant probative value, that is, that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. [8] Third, it follows from the use of the word could in the definition of significant probative value that what the court is required to assess is the possibility of the evidence affecting the assessment of the probability of the existence of a fact in issue. It is not required to assess whether the evidence would have this effect, that is, engage in a fact-finding exercise involving an assessment of the reliability and credibility of the evidence. [9] Fourth, the matters to which the court is to have regard in performing this task is the evidence sought to be adduced either on its own or having regard to other evidence adduced or to be adduced by the party seeking to tender it. In particular, regard is not to be had to evidence either adduced or to be adduced by the other party to the proceedings. This also demonstrates, in my opinion, that it is no part of the court's task to engage in a fact-finding exercise to determine the reliability or credibility of the evidence, or to form a view one way or the other whether the jury would in fact find the evidence to be of significant probative value. [10] However, as Whealy JA has pointed out (at [78]–[81]), the trial judge in forming a view as to whether the evidence has significant probative value must consider by reference to the evidence itself or other evidence adduced or to be adduced by the party tendering it, whether there is a real possibility of an alternate explanation inconsistent with (in this case) the guilt of the party against whom it is tendered. This is because the availability of such an alternative hypothesis will be relevant to forming the view required by the section that the evidence has significant probative value. However, this does not involve either undertaking the fact-finding analysis suggested by senior counsel for DSJ or reaching a conclusion that the explanation for the coincidence proffered by the party seeking to tender the evidence was more probable than an alternative hypothesis. Each of these approaches go beyond what is required by the terms of s 98(1)(b) of the Act and would involve the judge usurping the fact-finding role of the jury. (Citations omitted.) 22 President Allsop, as his Honour then was, also agreed with Whealy JA. McClellan CJ at CL and McCallum J also agreed with Whealy JA 23 The requirement that evidence have significant probative value "makes it necessary to identify with some precision what the tendering party proposes to establish by the evidence": White v Johnston [2015] NSWCA 18 at [139], (2015) 87 NSWLR 779 at 808 to 809 per Leeming JA Coincidence evidence – the evidence identified 24 The object of seeking to adduce the contested "coincidence evidence" was to establish that the primary Judge had "a particular state of mind" – namely a mind actuated by actual bias such that the Appellant's case was not resolved by reference to the legal and factual merits presented. 25 The submission was variously expressed as the oral submissions advanced by Counsel on behalf of the Appellant unfolded. 26 The evidence sought to be admitted as coincidence evidence was to be found in a number of affidavits. Those affidavits included two affidavits of Mr Anthony Silva (Counsel appearing for the Appellant), namely affidavits identified as: ANS-1M, which (inter alia) maintained that an analysis of the cases decided in November 2017 revealed Judge Street as having dismissed all 33 migration applications he dealt with. In all of those 33 cases ex tempore reasons were given. All of the other Judges of that Court in that same month dismissed 111 of the 126 migration cases they dealt with. In September 2017, Judge Street is said to have dismissed all 46 of the migration cases he dealt with and gave ex tempore reasons in 44 of those cases. All of the other Judges are said to have dismissed 92 out of the 96 migration cases in that same month and gave ex tempore reasons in 50 of those cases; and ANS-2M, which annexed a print out of a list of the migration decisions of the Federal Circuit Court for the month of November 2017. The affidavit also annexed copies of the first 10 decisions from that list. The text of the affidavit stated that the deponent would "try to demonstrate that Judge Street makes his decisions in a particular way" and that the "random sample" of ten decisions "will establish that the pattern of decision making emerging from this sample could be applicable to all the 301 decisions" made by the Federal Circuit Court in September and November 2017. The appropriateness of Counsel for a party to give evidence in the same proceeding in which he appears was not self-evident. Whether it is a course condoned by the New South Wales Bar Association was not an issue pursued in the hearing of the appeal. No further mention thus need be made of the issue. Nor is it necessary to consider the difficulties that could well have emerged if Counsel for the Respondent Minister applied to cross-examine the deponent. Who would take objections to any of the questions asked in cross-examination and how any re-examination would take place bedevils the imagination. It is a course, however, to be shunned by reason of the very real prospect of forensic difficulties emerging. 27 When reference is made to ANS-2M, Counsel submitted that 3 out of the 10 sample cases were cases of Judge Street. Within this context, the submission of Counsel for the Appellant was that "[t]he purpose of coincidence evidence is to establish that considering the three cases together it is not a coincidence that in all three cases the same judge decided the case in a particular manner". The "particular manner" was said to be that the primary Judge "decided the cases without basing them on the evidence, written and oral submissions of the parties but based on his own bias". 28 A comparison between those 3 cases and the remaining cases, it was submitted, was said to demonstrate that the manner and structure of the reasons for decision of Judge Street were: very different to that of other Judges; and always the same. It was further submitted that the structure of the reasons for decision of Judge Street was always the same, in that: the reasons provided were brief; the reasons set forth the findings of the Tribunal whose decision was under review; the reasons were expressed by way of general statements of principle; and those general statements did not "link" the reasons to the Tribunal findings. 29 In addition there were three affidavits of an applicant in separate proceedings before Judge Street in the Federal Circuit Court, being affidavits affirmed on 7 January 2018, namely affidavits identified as: SM-1, which annexed (inter alia) a copy of the reasons for decision of the Administrative Appeals Tribunal and the reasons for decision of Judge Street on the application for review of the Tribunal's decision in which that applicant was a party; SM-2, which annexed (inter alia) a copy of the transcript of the proceeding before the Tribunal and the proceeding before Judge Street in which that applicant was a party; and SM-3, which annexed (inter alia) a copy of the decision of the delegate which was the subject matter of the proceeding before the Tribunal and before Judge Street in which that applicant was a party. 30 In addition there were a further two affidavits of another applicant in a separate proceeding before Judge Street in the Federal Circuit Court, being affidavits affirmed on 16 January 2018, namely affidavits identified as: KM-1, which annexed (inter alia) a copy of the reasons for decision of the Administrative Appeals Tribunal and the reasons for decision of Judge Street in the application for review of the Tribunal's decision in which that applicant was a party; and KM-2, which annexed a copy of the transcript of the proceedings before the Tribunal and Judge Street in which that applicant was a party. It may be noted that that applicant's case was subject to an appeal in which both actual and apprehended bias grounds were raised but rejected by the Full Court: CDD15 v Minister for Immigration and Border Protection [2017] FCAFC 65, (2017) 250 FCR 587. 31 There were a further three affidavits of Ms Sylvia Nicholas Silva, who described herself as "the Administrative Assistant to Barrister A.N. Silva", being affidavits affirmed on 6 May 2018, namely affidavits identified as: SS-3M, which annexed an affidavit of the applicant in Federal Circuit Court proceeding number SYG2356 of 2013 before Judge Street. That affidavit was filed in the appeal from the decision of Judge Street in Federal Court proceeding number NSD318 of 2015 and concerned what the deponent "observed, the impression that [he] formed and the state of mind that [he] was in" during the hearing before Judge Street. SS-4M, which annexed the transcript of the hearing before Judge Street in Federal Circuit Court proceeding number SYG2356 of 2013. SS-5M, which annexed an affidavit of Mr Anthony Nicholas Silva who was the solicitor on the record in Federal Circuit Court proceeding number SYG2356 of 2013 before Judge Street. That affidavit was filed in the appeal from the decision of Judge Street, being Federal Court proceeding number NSD318 of 2015 and annexed (inter alia) the pleadings and the submissions in the Federal Circuit Court proceedings. 32 A common element to each of the cases to which transcripts, submissions and copies of the decisions of the Tribunal and Judge Street were sought to be placed in evidence, it may be noted, is that Counsel for the present Appellant (BDS17) was also acting for the migrant parties to those proceedings. A disturbing feature of this evidence was that it identified that names of parties to other proceedings in which care had been taken to ensure their anonymity (see para [114]). 33 Two affidavits of the Appellant in the present proceeding were also read without objection, both of which were affirmed on 19 December 2017. Those affidavits attached the submissions and a transcript of the hearing before the primary Judge. Coincidence evidence – the rejection of the evidence 34 Other than the affidavits of the Appellant, objection was taken to each of these affidavits by Counsel for the Respondent Minister. 35 It was submitted that the affidavits did not satisfy the requirements of s 98(1)(b) of the Evidence Act. A decision as to whether the affidavits should be admitted was reserved and the parties informed that a decision and reasons for that decision would be given at the same time as the judgment on the appeal. Both parties were content to follow that course and the hearing of the appeal proceeded with submissions being directed both to the admissibility of the affidavits and to their content, assuming that they were otherwise relevant and admissible. 36 For present purposes it may be assumed that the evidence sought to be admitted in the present proceeding demonstrated, with respect to proceedings arising under the Migration Act, both: that the primary Judge frequently dismissed proceedings, and did so more than other Judges of the Federal Circuit Court; and a similarity as to the manner in which the primary Judge both conducted hearings and resolves such proceedings, including a similarity as to the manner in which the Judge's reasons are structured and expressed in terms of general statements of principle. 37 It is nevertheless respectfully concluded that the evidence sought to be admitted does not have "significant probative value" for the purposes of s 98(1)(b) of the Evidence Act. That conclusion has been reached because: the resolution of each case necessarily involves a consideration of the facts and circumstances of particular relevance to that individual case – and the particular facts and circumstances of each of the other two cases sought to be relied upon were not exposed to sufficient scrutiny in this Court such that any conclusion could be reached as to their substantive similarities, if any; even assuming that the facts and circumstances of the two other cases sought to be relied upon are sufficiently similar to those presented before the primary Judge in the present case, the mere fact that a Judge has pursued a comparable course of conduct and reached the same conclusion in each case is not of itself capable of giving rise to an inference of actual bias – of itself, the comparable resolution of two other like cases exposes nothing other than consistency in decision-making; and a like course of conduct and a like conclusion in two other cases falls far short of providing a factual foundation for a conclusion that the primary Judge is so actuated by bias that the same approach will be pursued – and has been pursued in the present case – irrespective of submissions which may be advanced. That is, that fact that the primary Judge took a similar approach and reached a similar conclusion in two other particular cases cannot, without more, rationally affect the assessment of the probability of the existence of a particular state of mind of the primary Judge, and particularly not in a significant way. It is also not without relevance to further note that: many migration cases coming before the Federal Circuit Court – and, indeed, this Court – are unsuccessful. But that fact alone does not expose a failure on the part of individual judges to consider the facts and merits of each case, let alone actual bias on the part of the judges who resolve those cases. Actual bias, it is respectfully considered, is not made out because (inter alia): a common course of decision-making where recourse is made to general statements of legal principle with an absence of reference to the manner in which those principles have specific application to the facts presented for resolution in each particular case does not have "significant probative value" for the purposes of s 98(1)(b) of the Evidence Act. Such evidence as is presented in the current case is not sufficient to establish that the primary Judge was actually biased. Taking it at its highest, the evidence presented going to inadequacy in the exposition of decision-making, including inadequacy in any exploration of the more specific content of a legal principle expressed in general terms and not by reference to the particular legal issue in need of resolution, with respect, is not capable of establishing actual bias. Criticism as to legal reasoning, of itself, is not to be equated with actual bias. 38 If the assessment of the probative value of the evidence sought to be tendered is further tested by reference (for example) to ANS-1M, only further reason to question the probative value of the evidence emerges. There was no analysis (for example) of any of the 33 migration applications which were dismissed by the primary Judge in November 2017 with the giving of ex tempore reasons and there was no analysis of such further matter as: whether some or other of those 33 cases were dismissed because of (for example) a party failing to appear; and/or whether some or other of those 33 cases were dismissed (for example) because they were out of time or because the Federal Circuit Court did not have jurisdiction to entertain the applications; and/or the legal and/or factual difficulty presented by one or other of those cases. Applications in which an impermissible challenge is made to the factual merits of a tribunal or delegate decision (obviously enough) present different issues for resolution than other cases in which the ever-changing statutory provisions found within the Migration Act throw up questions of legal construction which are novel and hitherto untested. If reference is made to ANS-2M as a further litmus test of probative value: little can be gained by an assessment that a particular Judge "makes his decisions in a particular way". Many migration cases, whether before the Federal Circuit Court or this Court, present frequently recurring factual and legal scenarios which readily permit of a Judge oft pursuing a similar course of legal writing and reasoning. 39 If the probative value of the evidence sought to be adduced is further tested by reference to (for example) SM-2, and the transcript of the hearing in that separate proceeding before Judge Street and in which that applicant was represented by Mr Silva, the same conclusion is reached. By way of example, reliance was sought to be placed upon part of the following exchange between Judge Street and Counsel: MR SILVA: That's exactly why we're challenging that, because there's firstly no evidence. Secondly, it's not open. And we are challenging on both grounds, your Honour. HIS HONOUR: When you say there's no evidence … MR SILVA: Yes. HIS HONOUR: … there's the applicant's evidence, which the tribunal rejects. So this is not a no evidence case. To the extent … MR SILVA: Your Honour … HIS HONOUR: It can't be a no evidence case, can it? MR SILVA: Your Honour, there was detailed information about the incident, comprehensive, and the Tribunal rejects ..... says it didn't happen. HIS HONOUR: But, Mr Silva, you know what a no evidence case is. No evidence means that the – a case where there's a finding in respect of which the proposition is advanced there's no evidence. So your submission that there's no evidence is ..... it. When you say that there is a finding that you seek to attack in respect of credibility, I want to understand the basis for it. So to say no evidence can't be right. If you say it wasn't open, why wasn't it open to the Tribunal to reject the applicant's evidence? Counsel then took Judge Street to particular pages of the delegate's decision and the exchange continued: HIS HONOUR: But, Mr Silva, I'm not in a position to make fresh findings of fact. The applicant's evidence was the subject of a credibility challenge clearly identified by the Tribunal in the course of the hearing. So his credibility was raised in respect of this incident, and inconsistencies identified in the transcript that you've tendered, which I've read. MR SILVA: Your Honour … HIS HONOUR: So what the delegate said can't give rise to any error, can it? MR SILVA: Your Honour, is the tribunal a primary decision-maker? No. Tribunal is not the primary – the Tribunal is reviewing the decision of the delegate. HIS HONOUR: No, it's not, Mr Silva. MR SILVA: It is. The exchange continued on a little later as follows: HIS HONOUR: Mr Silva, the proposition that there's a decision of the delegate – I understand that there was a decision. It's what gives rise to the right to a review. But in relation to your ground 1, how does what the delegate said give rise to establishing any error of the kind that you've identified? MR SILVA: Your Honour, before the tribunal, there was evidence in the form of the claims that was made, how the interview was conducted, and the tribunal said it has heard the interview. So all this evidence was before the Tribunal, so it is important for us to know that the tribunal had this before it and the delegate's decision, especially as far as credibility is concerned, it's important. The tribunal could not ignore that. The tribunal is not bound, but it should not ignore, and the delegate has made clear and strong findings in favour of the applicant in terms of credibility. HIS HONOUR: Yes. What else do you wish to say in relation to ground 1? MR SILVA: Your Honour, on that same page – on the next page, your Honour, page 145, fourth paragraph. HIS HONOUR: I can see I am satisfied the events occurred by the delegate. MR SILVA: That's correct, your Honour. And the next one, about the hiding, and you will see at the end – at the end of 145: Based on the detail and spontaneity of the applicant, I am satisfied the events occurred as claimed. And then the next page, 146, second paragraph. So the delegate found applicant to be a truthful person – accepted all the claims that he made. HIS HONOUR: Mr Silva, it starts afresh in the review. What the delegate held, unless there was some sort of denial of procedural fairness, does not assist me making out an undertaking of any of the kind you're alleging in ground 1. MR SILVA: Your Honour, I – with the greatest of respect, I disagree with you. HIS HONOUR: Why? MR SILVA: Because your Honour needs to know how the evidence progressed before the Tribunal, and how the delegate decided is one of the factors. Although the Tribunal is not bound, the Tribunal had it before it, and your Honour needs to be aware of the way the delegate decided. Your Honour cannot say this is not relevant, and I will respectfully disagree if your Honour says that's not relevant. 40 Founded upon this exchange, and other like exchanges, the submission of Counsel in the present proceeding (albeit variously expressed) was that such exchanges manifest Judge Street: "cutting-off" Counsel; not permitting or impeding the adducing of evidence; exhibiting hostility towards the applicant; and/or declining to entertain submissions then being made and revealing a mind closed to persuasion. The exchange, however, manifests the reverse. The exchange, and the other like exchanges this Court was directed to, manifest: exchanges between the Bench and the Bar appropriately testing propositions being put; and rather than "cutting-off" Counsel or a mind resistant to entertaining a submission, the exchanges manifest a willingness (indeed an anxiety) to understand the proposition being advanced and (wither reference to the above exchange by way of example) an anxiety to understand why what was being put was not an impermissible review of findings of fact. 41 It is respectfully concluded that the evidence sought to be admitted as coincidence evidence does not have "significant probative value" and is therefore inadmissible. Even if the coincidence evidence which was sought to be relied upon had been admitted, it is respectfully concluded that it certainly would not have been sufficient to establish any case of actual bias. 42 Although it may be accepted that in the present proceeding Counsel for the Appellant sought to address deficiencies in the evidence that have previously been identified in ALA15 v Minister for Immigration and Border Protection [2016] FCAFC 30, the evidence now before this Court – even if admitted – fell well short of establishing any argument as to actual bias on the part of the primary Judge. In addressing the deficiencies in the "raw statistical material" as presented to the Full Court in ALA15, Allsop CJ, Kenny and Griffiths JJ there observed: [38] … The first is that, for such raw statistical material to be attributed to the hypothetical observer, it normally would need to be accompanied by a relevant analysis of the individual immigration judgments determined by the primary judge in order that the statistics were placed in a proper context. Absent such analysis, the hypothetical observer would not be able to make an informed assessment of the significance of the raw statistics. It may be, for example, that a close analysis of some, many, or all of the relevant judgments reveal that they had been determined on a reasonable and plausible basis. And, even if some or all of the judgments were wrongly decided, that may be the consequence of human frailty on the part of the judge and not prejudgment, a consideration which a fair-minded lay observer would take into account. [39] Secondly, and contrary to the applicant's submission, raw statistics concerning the outcome of immigration matters which have been determined by the primary judge compared with other FCCA judges or the outcome of MRT-RRT decisions generally does not necessarily indicate prejudgment. … [40] Thirdly, there are two additional reasons why the statistics from the Annual Report of the MRT-RRT which are referred to in Mr Kline's affidavit are irrelevant: (a) those statistics relate to the period 2013-2014, which is prior to the primary judge's appointment; and (b) more significantly, those statistics are not confined to the outcome in the FCCA of judicial review proceedings of MRT-RRT decisions, but also included appeal proceedings in this Court and the High Court. Accordingly, they do not provide a valid "control" for statistical purposes. [41] Fourthly, we accept the Minister's submission that the mere fact that a particular judge has decided a number of cases, the facts and circumstances of which are unknown, one way rather than another, does not go any way to assisting the hypothetical observer making an informed assessment as to whether that judge might not bring an impartial and unprejudiced mind to the resolution of the question in a particular proceeding before that judge. There remained lacking in the present proceeding such analysis of the other decisions of the primary Judge as could found a submission as to actual bias on the part of the primary Judge. 43 The evidence sought to be tendered in the present proceeding as "coincidence evidence" is rejected. The Appellant has failed to establish for the purposes of s 98(1) that any one or other of the other cases decided by the primary Judge have sufficient "similarities in the events or the circumstances" such as would be capable of giving rise to coincidence reasoning. An alternative inference to be drawn from the evidence which "substantially alters" the significance of its capacity to establish the fact is issue was that the result in each particular case was a result driven by the facts and circumstances of each case rather than a commitment on the part of the primary Judge to close his mind to the factual and legal merit of each case that came before him: cf DSJ v The Queen [2012] NSWCCA 9 at [78] to [81], (2012) 84 NSWLR 758 at 775 to 776 per Whealy JA. Given the fact that each of the individual aspects of the evidence sought to be relied upon remains open to an inference that the primary Judge was doing no more than testing the evidence that was before him or attempting to assess the merit of such factual and legal submissions as were under consideration, no finding is open that the evidence sought to be admitted has "significant probative value" going any way to proving actual bias. The absence of actual bias 44 The rejection of the evidence sought to be adduced as "coincidence evidence" leaves the allegation of actual bias to be resolved by reference to the facts and circumstances of the present case, including: an examination of the transcript of the proceeding before the primary Judge in the present case; and the reasons for the decision now under appeal. 45 The argument is rejected. The Appellant has failed to establish any case of actual bias on the part of the primary Judge. 46 A review of the reasons and the transcript fails to reveal any basis upon which it could be concluded that the primary Judge exhibited actual bias. The transcript in the present proceeding again reveals that the primary Judge was testing propositions with Counsel and manifests a willingness or even anxiety to understand the propositions being put to him by Counsel. Further, there is nothing exceptional in the reasons for decision upon which a conclusion could be reached that the primary Judge was biased. 47 Although superior courts should not hesitate to entertain a properly formulated claim that a Judge has manifest actual bias against a party, superior courts should equally have no hesitation in keeping such allegations within proper bounds. The administration of justice is not served by ill-conceived claims of actual bias being raised for resolution, especially by members of the legal profession and even more so by Counsel. Nor does it serve the interests of a party for ill-conceived claims of actual bias to be advanced in circumstances where a claim is lacking in any self-evident foundation. This Court should be able to place reliance upon legal practitioners to advance claims of actual bias in only the clearest of cases. The present is no such case. 48 The forensic decision to advance such a claim, moreover, is only open to question – and the reasons for advancing such claims open to even greater question – in circumstances where success on the part of a client could equally well have been served by advancing a more soundly based claim of a reasonable apprehension of bias. The absence of any allegation of a reasonable apprehension of bias on the part of the primary Judge, and the sole reliance placed by Counsel for BDS17 upon an allegation of actual bias, only invites further concern as to the forensic decision made by Counsel. The objective of BDS17, namely the party to the proceeding and the person presumably giving informed instructions, must surely be to secure the setting aside of the decision of the primary Judge – an objective which would just as well be served by reliance upon the less stringent test required to be met if the allegation is one of a reasonable apprehension of bias and not actual bias. 49 If the present proceeding be left to one side, an unfounded allegation made of actual bias on the part of a judge – and an absence of reliance upon a reasonable apprehension of bias – could only invite concern as to whether the forensic objective is to launch a personal attack on the judge rather than to secure a successful outcome for the client. But it is unnecessary to further consider any such musings. 50 Left to be considered are the remaining Grounds of Appeal. FAILURE TO CONSIDER – DOCUMENTS & ADVERSE CREDIBILITY FINDINGS 51 A number of Grounds of Appeal had a recurring underlying theme, namely that the primary Judge had failed to "deal with" or properly address particular submissions or had "just made general statements without dealing with [the] specifics of the complaint" or had failed to deal with submissions or oral arguments "in any meaningful way". 52 Included within these Grounds of Appeals are the second, fourth and fifth Grounds. 53 In identifying these particular Grounds it must necessarily be recognised that a number of the Grounds of Appeal overlapped. The second Ground of Appeal, for example, contends (without alteration) that the primary Judge erred in failing to find that "the Tribunal (a) failed to take a relevant consideration (b) failed to exercise jurisdiction (c) failed to give proper, genuine and realistic consideration". Grounds 4 and 5 assert that it was "not open" for the Tribunal to proceed as it did and assert error on the part of the primary Judge in "failing to hold" or that he "failed to find" that the Tribunal committed error. The Particulars provided in respect to Grounds 2, 4 and 5 all assert a failure "to deal with" particular matters and the making of "general statements without dealing with specifics". 54 No matter the various ways in which the arguments may be expressed, the arguments contend that the primary Judge failed to expose in the reasoning he provided the basis upon which he engaged with the now-Appellant's submissions. 55 Given the conclusion that there has been a failure on the part of the primary Judge to actively engage in the submissions advanced for his consideration, it is prudent to: separately identify at the outset the basis upon which there is a responsibility on the part of judges to explain their decisions; identify the documents which were before the Tribunal which attracted particular scrutiny before the primary Judge and the manner in which the arguments were resolved (i.e., the fourth Ground of Appeal); identify the credibility findings made by the Tribunal which attracted a like challenge before the primary Judge (i.e., the fifth Ground of Appeal); and identify those parts of the primary Judge's reasons which attracted the finding that the primary Judge failed to give adequate reasons and identify the deficiencies in those reasons. The need to explain 56 The general purpose served by a requirement to provide reasons has been summarised as follows by Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56, (2003) 216 CLR 212 at 242: [105] … The rationale of the obligation to provide reasons for administrative decisions is that they amount to a "salutary discipline for those who have to decide anything that adversely affects others". They encourage "a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making". They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases "public confidence in, and the legitimacy of, the administrative process". (Footnotes omitted.) These statements of general principle apply with only increased vigour when consideration is given to the requirement imposed upon judges to explain the legal and factual basis upon which they have proceeded. 57 President Kirby (as his Honour then was) had also earlier provided the following general outline of the content of adequate reasons in Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259: This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge's conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed factual questions and to list the findings on the principal contested issue. Only if this is done can this Court discharge its functions, if an appeal is brought to it. This reasoning was applied by the Full Court of the Supreme Court of South Australia in Macks v Viscariello [2017] SASCFC 172 at [516], (2017) 130 SASR 1 at 107 per Lovell J, Corboy and Slattery AJJ. 58 When considering the content of adequate reasons, Meagher JA in Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 observed (at 443 to 444): It follows, that reasons need not necessarily be lengthy or elaborate. … the content of the obligation is not the same for every judicial decision. No mechanical formula can be given in determining what reasons are required. However, there are three fundamental elements of a statement of reasons, which it is useful to consider. First, a judge should refer to relevant evidence. There is no need to refer to the relevant evidence in detail, especially in circumstances where it is clear that the evidence has been considered. However, where certain evidence is important or critical to the proper determination of the matter and it is not referred to by the trial judge, an appellate court may infer that the trial judge overlooked the evidence or failed to give consideration to it. Where conflicting evidence of a significant nature is given, the existence of both sets of evidence should be referred to. Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached. … where findings of fact are not referred to, an appellate court may infer that the trial judge considered that finding to be immaterial. Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other. But that is not to say that a judge must make explicit findings on each disputed piece of evidence, especially if the inference as to what is found is appropriately clear. Further, it may not be necessary to make findings on every argument or destroy every submission, particularly where the arguments advanced are numerous and of varying significance. Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found. Those reasons or the process of reasoning should be understandable and preferably logical as well. Whilst it is desirable to address these elements in giving reasons for decision, it is the purpose which the reasons serve which assumes primary importance in determining the content of the reasons. That purpose must be weighed against other considerations. … In the end, the balancing act which needs to be undertaken in considering the sufficiency of a statement of reasons involves the adoption of, at the least, a minimum standard which places the parties in a position to understand why the decision was made sufficiently to allow them to exercise any right of appeal. (Citations omitted.) Although these comments were made more in the context of the hearing of contested evidence rather than the more idiosyncratic realm of judicial review of administrative decision-making, the comments of his Honour nevertheless remain a useful touchstone of what to look for in a judicial statement of reasons. 59 Emphasising the importance of reasons to an appellate court, Charles, Buchanan and Chernov JJA in Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) [2002] VSCA 189, (2002) 6 VR 1 at 31 concluded: The purposes underlying the judicial obligation [100] First, a Court of Appeal must be in a position to determine whether the decision of the trial judge contains appealable error. … Secondly, an adequate statement of the reasons "provides the foundation for the acceptability of the decision by the parties and the public". …Thirdly, it furthers judicial accountability guarding "against the birth of an unconsidered or impulsive decision". Next, the provision of adequate reasons has an educative function in that it "enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future." (Footnotes omitted.) A failure to deal with the documents – Ground 4 60 The fourth Ground of Appeal focusses attention upon documents which were provided at the Tribunal hearing by the now-Appellant in support of his claims. This Ground of Appeal had its counterpart in the third Ground of Review advanced before the primary Judge. 61 The documents were identified in this Court as: a Sri Lankan Police Submission of Information to Magistrate dated 18 August 2011; a Sri Lankan Police Submission of Information to Magistrate dated 21 May 2012; part of a Sri Lankan Police Submission of Information to Magistrate which is undated; a letter from the Hatton National Bank to the Special Criminal Investigation Bureau, Mannar dated 18 July 2011; and a Magistrate's decision. Each of the documents was accompanied by a translation. 62 The findings of the Tribunal to which the Appellant refers of relevance to these documents are the following (without alteration): 26. At hearing the applicant introduced new evidence on a number of issues. This included that, on the orders of the court, he had to report to Mannar police station on the last Sunday of each month; although when asked why this was the case, given his evidence that authorities knew he was not guilty, he was unable to explain. Nor did he explain how it was that nothing happened when he failed to report for four months after moving to Chilaw. At the end of the hearing, the applicant also said that he had been issued with an arrest warrant, a copy of which he had in Sri Lanka. The Tribunal finds this dubious, given that he had never mentioned this before, or provide the warrant with the court documents he submitted to the Department. At the same time, as discussed with the applicant, in view of the prevalence of document fraud in Sri Lanka and their use in the protection visa process, the Tribunal cannot attach weight to any of the documents provide by the applicant. 63 The conclusion of the primary Judge in respect to the arguments addressed in respect to the findings of the Tribunal were as follows: Ground 3 [34] In relation to Ground 3, Mr Silva sought to attack the findings of the Tribunal in determining to give no weight to the reports and applicant's claim concerning N and the involvement of the police. The adverse credibility findings by the Tribunal were open for the reasons given by the Tribunal. The applicant's credit was a matter for the Tribunal to take into account. It was also a matter for the Tribunal to determine what weight to give to the documents produced by the applicant in support of his claims. No jurisdictional error as alleged in Ground 3 is made out. 64 The fourth Ground of Appeal contends that the primary judge "failed to address the applicant's written submission … or oral arguments in any meaningful way" and "[f]ailed to deal with the appellant's case". Exaggerated credibility findings – Ground 5 65 The fifth Ground of Appeal contends that the primary Judge erred "by failing to find that the Tribunal made jurisdictional error in that it made exaggerated adverse credibility findings which were not open". 66 The "exaggerated adverse credibility findings" made by the Tribunal which the Appellant contends were "not open" were not particularised in the Grounds of Appeal. Before the primary Judge, however, there was greater specificity as to the "credibility findings" then under scrutiny: [2017] FCCA 2757 at [27]. The primary Judge there set forth the Grounds of Review then being relied upon and the Particulars for each Ground. 67 With reference to those Particulars, the reasons and findings made by the Tribunal and the submissions advanced before this Court, it is understood that the findings under challenge included the following two findings that the now-Appellant "fabricated" claims, namely: the claim that he was "involved with the [United National Party] … [and] campaigned for the Sarath Fonseka in the 2010 election" (at para [24]); and the claim that he "had a physical altercation with Sagara during the campaign [and] apologised for it two years later; [and] that Sagara threatened to kill him, broke windows in his house [and] burned his bike" (at para [24] and [28]). On the basis that it did not accept these claims, the Tribunal concluded that it was not satisfied that the now-Appellant would "suffer persecution due to his imputed political opinion and membership of the particular social group of campaign supporters over his encounter with Sagara or for any other Convention reasons" (at para [24]). 68 In addition to these findings, the Appellant challenges the Tribunal's findings that aspects of the Appellant's account were "implausible", including: the finding that "his evidence about the election campaign and its aftermath was vague, implausible and inconsistent with country information from independent sources" (at para [18]); the finding that it found it "implausible that if the applicant was so actively involved in putting up posters for Fonseka's campaign" he would not know "basic information" about the campaign (at para [20]); the finding that it was "dubious" and that the Tribunal did not find it "plausible that, knowing of Sagara's criminal activities and imprisonment for murder, the applicant would draw attention to himself" (at para [23]); and the finding that it was "implausible that in 2012 … the court would order the twenty-year-old applicant to produce a criminal" (at para [27]). 69 The Appellant also challenges a series of further adverse assessments made by the Tribunal with respect to the evidence given by the Appellant, being: the finding that the Appellant "shifted his evidence" when he was asked what was said at "meetings" of the United National Party (at para [19]); the finding that its "concerns [were] compounded by the applicant's inability to remember when the first incident with Sagara took place, or even the month of the 2010 election" (at para [21]); the finding that the Appellant "gave inconsistent evidence as to what transpired after his initial confrontation with Sagara" (at para [22]); and the finding that the Appellant "introduced new evidence on a number of issues" and that it was "dubious" that the Appellant (in respect to an identified matter) had "never mentioned [it] before" (at para [26]). 70 The conclusion reached by the primary Judge in respect to much the same argument as is presently advanced was expressed as follows: Ground 5 [35] In relation to Ground 5, Mr Silva sought to attack particular findings in the Tribunal's reasons in relation to credit, arguing that they were not open. The substance of Mr Silva's submissions was to invite this Court to engage in impermissible merits review. There is no substance in the assertion of any inconsistency in the findings made by the Tribunal. The adverse credibility findings made by the Tribunal were open on the material before the Tribunal and cannot be said to lack an evident and intelligible justification. No jurisdictional error as alleged in Ground 5 is made out. The primary Judge's failure to explain 71 The fundamental deficiency in the primary Judge's reasons as expressed at paras [34] and [35] of the reasons for decision is that those reasons do no more than repeat matters of general principle without any attempt to tie those expressions of principles back to either: the findings made by the Tribunal; or the submissions being advanced. 72 Both of these paragraphs, for example, make reference to "adverse credibility findings" and both paragraphs rejected the challenge then being made to these findings by reason of the findings being "open" to the Tribunal. That was where the analysis on the part of the primary Judge started and ended. 73 When resolving any challenge to findings of credit made by an administrative decision-maker, it may readily be accepted that a convenient starting point is to acknowledge that findings as to credibility are generally regarded as findings of fact "par excellence": e.g., SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [34], (2009) 181 FCR 113 at 124 per Logan J. But such findings nevertheless remain findings of fact and permit a limited scope of judicial scrutiny. Albeit in a non-exhaustive way, in CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146, (2016) 253 FCR 496 at 508 to 509, McKerracher, Griffiths and Rangiah JJ observed: [38] There are several other potential bases upon which credit findings can be challenged. Recitation of the expression that credibility is a matter par excellence should not be understood as precluding challenges to credibility or, indeed, other findings of fact on any basis. While there is no suggestion in this case that this is what has occurred, the frequency of adoption of the expression should not obscure the availability of challenges on recognised grounds, such as: (a) failure to afford procedural fairness; (b) reaching a finding without any logical or probative basis; (c) unreasonableness; and/or (d) jurisdictional error as discussed by Flick J in SZVAP v Minister for Immigration and Border Protection (2015) 233 FCR 451. The need for caution when a court is invited on an application for judicial review to scrutinise findings as to credibility springs (in part at least) from the need for such a court to confine its task to that of judicial review as opposed to merits review (Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36 per Brennan J) but also (in part) from a recognition that for a court to unjustifiably retreat from reviewing findings going to credibility may have the potential to shield an administrative decision from effective judicial scrutiny: cf. SZSHV v Minister for Immigration and Border Protection [2014] FCA 253 at [31] per Flick J. Allsop CJ, Kenny and Bromwich JJ in AZU15 v Minister for Immigration and Border Protection [2016] FCAFC 74, (2016) 240 FCR 143 at 145 have thus observed: [11] Care needs to be taken by the Tribunal to ensure that blanket, reflex or exaggerated adverse credit findings do not take the place of a proper examination of a visa applicant's claims as required by s 414 of the Migration Act 1958 (Cth). When adverse credit findings of this kind are made, there is a risk that the Tribunal will lose sight of and not discharge its statutorily-mandated task, including by overlooking a material claim or part of a claim that an applicant has made. Credibility will not always be a complete answer to every integer of such a claim. Such matters of general principle may be accepted. 74 In the present case, the deficiency in the reasoning of the primary Judge emerges at a number of different levels of analysis. At one level of analysis, the reasons of the primary Judge: merely repeat the proposition that the "adverse credibility findings made by the Tribunal were open" to the Tribunal either for the reasons given by the Tribunal or by reference to the material before the Tribunal without any apparent consideration being given to whether the diverse adverse credibility findings – or any one or other of them – should be questioned or further scrutinised by the Judge, albeit within the narrow constraints permitted when undertaking judicial review as opposed to merits review. It is only when attention is focussed upon a particular finding of fact said to be "open" to the Tribunal by reason of its adverse assessment as to credibility that: attention can then be directed to that particular finding of fact and the role played by that finding in the reasoning process. Some findings of fact may play little part in the ultimate reasoning processes of the tribunal; other findings of fact may assume a more prominent role and indeed dictate or heavily influence the ultimate conclusion. The deficiency in this part of the reasoning process is only compounded by the fact that the primary Judge: failed to explain or set forth the manner in which generally expressed legal principles (e.g., that findings were "open" on the evidence or that it was "a matter for the Tribunal to determine what weight to give to the documents produced") were applied to any or all of the findings under consideration. Of equal concern is: the failure in the reasoning of the primary Judge to separately address whether different considerations apply to (for example) the findings of the Tribunal that the now-Appellant had "fabricated" claims as opposed to the findings that some evidence was "implausible" or even that the Appellant had "shifted his evidence". Expressed perhaps differently, of concern is: the failure in the reasoning of the primary Judge to identify the "adverse credibility findings" to which reference was being made in paras [34] and [35]. The last deficiency is, with respect, not remedied – as counsel for the Respondent Minister would have it – by reference to the primary Judge's summary of the Tribunal's decision, even if it is accepted that many of the credibility findings made by the Tribunal were there identified: [2017] FCCA 2757 at [8] to [22]. A deficiency in the reasoning process of a Judge entrusted with the task of undertaking judicial review of an administrative decision is neither satisfied by: merely summarising the claims made and the decision-making processes of the Tribunal; nor extracting the Grounds of Review being advanced for resolution and the Particulars provided in support of those Grounds. 75 That which is called for when the legality of an administrative decision is under judicial scrutiny is: an active engagement on the part of a judge at first instance with the arguments and submissions being advanced. There must be what the Full Court has described as a "real engagement" with the arguments or grounds being advanced for resolution: BZD17 v Minister for Immigration and Border Protection [2018] FCAFC 94 at [25] per Perram, Perry and O'Callaghan JJ. An appellate court should not be called upon to itself discharge the functions properly entrusted to a judge at first instance. 76 That which is called for, moreover, is not: a mere repetition of generally accepted legal principles but, rather, an application of those principles to the findings and reasoning of the Tribunal. A party to litigation is not to be deprived of the opportunity to have his case properly considered at first instance and thereafter (if necessary) to have his case considered on appeal when the judicial task shifts to the determination of whether or not there is appellable error. 77 In reaching these conclusions, it must necessarily be recognised that the reasoning process in judicial decision-making is obviously dependent upon the legal and factual issues under consideration. In some circumstances, there may be little else to be said other than a statement that a finding of fact was open on the evidence. A repetition of competing evidence may give content to why that conclusion has been expressed. In other circumstances, there may be little else than can be said other than that a submission is rejected. 78 The fundamental difficulty in the present appeal is a disturbing lack of any explanation in respect to any particular aspect of the evidence or the findings of the Tribunal. A similar concern could be expressed if a reasoning process was prolonged by a journey through the relevant authorities without any attempt to explain the manner in which that journey was relevant to the conclusions reached. A member of the public, let alone the present Appellant, would have little idea why a particular argument – or a particular aspect of an argument– was rejected. An expression of a conclusion in conjunction with a general statement of a principle or principles of law, falls well short of the standard of reasoning which is required of a judicial officer. APPREHENSION OF BIAS ON THE PART OF THE TRIBUNAL? 79 The sixth Ground of Appeal contends that "[h]is Honour erred … by failing to find that The Tribunal made jurisdictional error in that the Tribunal caused apprehension of bias by its hostility to the applicant". 80 This Ground, raising again an allegation of bias – in this case, albeit, an allegation of an "apprehension of bias" as opposed to actual bias – should be separately addressed. It is prudent to do so in order to emphasise the need in all cases in which an allegation of bias is raised for Counsel raising such an allegation to independently form a view as to whether such an allegation should be advanced and to continually emphasise the need for such an allegation to be "firmly established": cf. Re JRL; Ex parte CJL (1986) 161 CLR 342 at 352 per Mason J, 364 per Wilson J, 371 per Dawson J. 81 On the facts of the present case, it has been respectfully concluded that the allegation should not have been made. The evidence fell well short of establishing anything other than a Tribunal member carefully testing the claims being made. The evidence of hostility 82 The factual basis for the argument that the Tribunal had manifested a reasonable apprehension of bias was founded upon exchanges occurring during the course of the Tribunal hearing between the Tribunal member and BDS17. 83 By way of example, reliance was placed by the Appellant upon the following exchange recorded in the transcript of the proceeding before the Tribunal when a factual question arose in respect to a person ("Sagara") whom the Appellant asserted had an "illegal activity or business and by supporting the government he prevented the police from raiding or the police from arresting him". The exchange relied upon between Ms Moustafine (the Tribunal Member) and the now-Appellant (through an interpreter) was as follows: MS MOUSTAFINE: Sagara was supporting the government, because he had an alcohol ring and so that the police – so he had protection against the police. Is that what you're saying? INTERPRETER: Okay, so not – not a business of actually selling alcohol but actually manufacturing the alcohol. MS MOUSTAFINE: How did you know that? INTERPRETER: Everyone in the village knew that he … MS MOUSTAFINE: Yeah, but how did you know? INTERPRETER: I – I heard. MS MOUSTAFINE: Who did you hear from? INTERPRETER: From my friends. MS MOUSTAFINE: That was why he supported the government party? INTERPRETER: So if you're doing some illegal activity, unless you aligned or a supporter of the government, that's the only way you prevent police investigation or police getting involved in the matter. MS MOUSTAFINE: Okay. How do you know that? Have you been involved in illegal activity, that you know this? INTERPRETER: Can you please repeat the question? MS MOUSTAFINE: How do you know that if you are doing illegal activity unless you are aligned with the government, it is the only way to prevent the police getting involved? How do you know that? Do you know – sorry. INTERPRETER: Okay, so it is quite common knowledge that if you support the government, you can prevent arrest by the police, the police inquiring in to what you're doing. All of that can be prevented. MS MOUSTAFINE: How do you – do you know this from personal experience? Have you been involved in illegal activity to know this? INTERPRETER: No. MS MOUSTAFINE: Again, it's something you heard, is that right? INTERPRETER: Yes. This exchange, as well as the other exchanges the Appellant sought to rely on, with respect, do not exhibit any basis upon which it can be asserted that the Tribunal exhibited a reasonable apprehension of bias. The Tribunal, it is to be recalled, is not in the position of a Court and has a distinct inquisitorial function: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 at [18], (2009) 111 ALD 15 at 19 per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ. The exchanges only manifest the Tribunal properly exploring with a claimant the factual basis upon which his evidence was being advanced. The reasoning of the primary Judge 84 The primary Judge rejected the argument as to an apprehension of bias on the part of the Tribunal. His reasons for doing so are cryptic. They were as follows: [36] In relation to Ground 6, Mr Silva made an allegation of bias by the Tribunal. The allegation should not have been made. Allegations of bias must be distinctly made and clearly proved. There was no proper basis to assert from the transcript that the exchanges by the Tribunal seeking to test the applicant's credit when raising the Tribunal's concerns with the applicant gave rise to any proper basis to assert that the Tribunal was acting other than impartially, with an open mind reasonably capable of determining the matter on the merits. [37] The questions in the transcript to which Mr Silva referred are not conduct by reason of which a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an independent, impartial mind to the determination of the matter on its merits. The allegation of bias has not been proved. Ground 6 fails to make out any jurisdictional error. Although the primary Judge's reasons are cryptic, the argument was rightly rejected. 85 The primary Judge was correct to acknowledge that allegations as to bias are to be "distinctly made and clearly proved": cf. Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17 at [69] and [127], (2001) 205 CLR 507 at 531 per Gleeson CJ and Gummow J, 546 per Kirby J. Although those observations were made in respect to an allegation of bias against a Minister, the same observations are equally applicable to the position of tribunals such as the Administrative Appeals Tribunal in this case: cf. SZRUI v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCAFC 80 at [22] per Flick J (Allsop CJ agreeing); MZZLO v Minister for Immigration and Border Protection (No 2) [2016] FCA 356 at [53], (2016) 246 FCR 111 at 126 per Moshinsky J. 86 The party alleging a reasonable apprehension of bias carries the onus of proof. That onus must be discharged again recognising the fundamentally different nature of the tasks entrusted to a tribunal and those entrusted to a judge. These differences were summarised by Hayne J in Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17, (2001) 205 CLR 507 at 562 to 563 as follows: [179] Importantly, the rules about judicial prejudgment recognise that, subject to questions of judicial notice, judges, unlike administrators, must act only on the evidence adduced by the parties and must not act upon information acquired otherwise. No less importantly, the rules about judicial prejudgment proceed from the fundamental requirement that the judge is neutral. That requirement for neutrality is buttressed by constitutional and statutory safeguards. Those safeguards include not only the provisions for security of terms of office and remuneration but also extend to statutory provisions prohibiting interference with the course of justice. A judge can have no stake of any kind in the outcome of the dispute. The judge must not "[descend] into the arena and ... have his vision clouded by the dust of the conflict". The central task and, it may be said, the only loyalty, of the judge is to do justice according to law. [180] Decisions outside the courts are not attended by these features. Reference need only be made to a body like the Refugee Review Tribunal established under Pt 7, Div 9 of the Migration Act 1958 (Cth) to show that this is so. The procedures for decision-making by that body are much less formal than those of a court. There is no provision for any contradictor and the procedures are, therefore, not adversarial. The decision-maker has little security of tenure and, at least to that extent, may be thought to have some real stake in the outcome. The decision-maker, in a body like the Refugee Review Tribunal, will bring to the task of deciding an individual's application a great deal of information and ideas which have been accumulated or formed in the course of deciding other applications. A body like the Refugee Review Tribunal, unlike a court, is expected to build up "expertise" in matters such as country information. Often information of that kind is critical in deciding the fate of an individual's application, but it is not suggested that to take it into account amounts to a want of procedural fairness by reason of prejudgment. (Footnotes omitted.) Similarly, in NADH of 2001 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 328, (2004) 214 ALR 264 at 269 Allsop J (Moore and Tamberlin JJ agreeing) observed of the Refugee Review Tribunal that [19] … The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality. 87 To make out such a case the party must establish that administrative decision-makers have not brought to the resolution of the claims made "fair and unprejudiced minds": R v Commonwealth Conciliation and Arbitration Commission; Ex parte The Angliss Group (1969) 122 CLR 546 at 553 to 554. Barwick CJ, McTiernan, Kitto, Taylor, Menzies, Windeyer and Owen JJ there observed that the requirement was "not infringed by a mere lack of nicety". 88 Where an allegation of a reasonable apprehension of bias is sought to be made out by reference to an argument as to "hostility" on the part of a tribunal member, as is the case in the present proceeding, it is to be recalled that "[o]ccasional displays of impatience and irritation, whether justified or not, will not amount to disqualifying bias": VFAB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 872 at [81], (2003) 131 FCR 102 at 126. Kenny J there cited with approval the following observations of Kirby J in Re Minister for Immigration and Multicultural Affairs; Ex parte AB (2000) 177 ALR 225 at 230: While sustained ill-temper can give rise to a reasonable apprehension of bias, momentary outbursts and misunderstandings in the often stressful world of adjudication must be tolerated, so long as they pass and do not affect the functions of the adjudicator … Even where the conduct of a hearing on the part of a tribunal "might be seen as impatient and somewhat overbearing in parts", there was held to be no denial of a reasonable opportunity to be heard in Chava v Minister for Immigration and Border Protection [2014] FCA 313 at [51], (2014) 141 ALD 433 at 443 per Mortimer J. 89 Notwithstanding the manner in which Ground 6 is drafted in the Amended Notice of Appeal, and the reference there to an apprehension "caused … by [the Tribunal's] hostility to the applicant", the Particulars to that Ground were somewhat confusing. The Ground was understood to be an argument that there was an apprehension of bias on the part of the Tribunal and that the primary Judge erred in failing to so conclude. But the Particulars appear to refer to (inter alia): a failure on the part of the primary Judge to "address the applicant's written or oral arguments in any meaningful way"; and other failings on the part of the primary Judge. How any such failures on the part of the primary Judge, even if accepted, manifest an apprehension of bias on the part of the Tribunal was not explained. 90 The sixth Ground of Appeal as advanced in this Court is rejected. THE REMAINING GROUNDS OF APPEAL 91 Given the conclusion that the second, fourth and fifth Grounds of Appeal should prevail, at least in part, it is unnecessary to resolve the remaining Grounds of Appeal. But it is nevertheless prudent to set forth some brief and tentative views lest it be though that they have not been considered. A failure to inquire – Ground 3 92 The third Grounds of Appeal contends that the primary Judge erred in failing to find that the Tribunal should have made certain inquiries. 93 To the extent that this Ground of Appeal also contends that there has been a failure on the part of the primary Judge "to deal with the written and oral arguments and authorities put forward" – an issue raised in the first Particular to the Ground – the same conclusions as have previously been expressed in respect to Grounds 2, 4 and 5 need not be again repeated. 94 An outstanding aspect of Ground 3, however, is the alleged failure to make inquiries. 95 An initial difficulty that this particular aspect of Ground 3 confronts is that there is no general duty or requirement that administrative decision-makers initiate the making of further inquiries. 96 At least one starting point for any consideration of the existence of any duty or requirement upon the part of an administrative decision-maker to make further inquiries with a view to uncovering further factual material of relevance to the resolution of a claim being made are the following observations of Brennan J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 55: The Court has no jurisdiction to visit the exercise of a statutory power with invalidity for failure to have regard to a particular matter unless some statute expressly or by implication requires the repository of the power to have regard to that matter or to matters of that kind as a condition of exercising the power. 97 Another starting point is the generally expressed principle that it remains the task of a claimant to put before a decision-maker that material which the claimant contends supports the claim being made. It is no part of the task entrusted to a decision-maker to make out a case for a claimant: Commissioner of Taxation v Glennan [1999] FCA 297 at [82], (1999) 90 FCR 538 at 558 per Hill, Sackville and Hely JJ. In Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277, French J (as his Honour then was) made the following observation: [29] Generally speaking when a statute provides for a person to apply to some authority for the grant of a right or privilege the decision-maker is, absent some relevant statutory direction, entitled to rely upon the materials supplied by the applicant as that which is presented in favour of the application. There is no general duty on the decision-maker to seek additional material which may remedy deficiencies in the applicant's presentation … See also: AZZI v Minister for Immigration and Multicultural Affairs [2002] FCA 24 at [102], (2002) 120 FCR 48 at 71 per Allsop J (as his Honour then was). 98 Although these may be the starting points, it is further recognised that in some limited circumstances a decision-maker may be called upon to make further inquiries: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169 to 170. Wilcox J there observed: I express no more than a tentative view. … Under s 5(1)(e) and s 5(2)(g) the court is concerned with the manner of exercise of the power. A power is exercised in an improper manner if, upon the material before the decision-maker, it is a decision to which no reasonable person could come. Equally, it is exercised in an improper manner if the decision maker makes his decision — which perhaps in itself, reasonably reflects the material before him — in a manner so devoid of any plausible justification that no reasonable person could have taken this course, for example by unreasonably failing to ascertain relevant facts which he knew to be readily available to him. The circumstances under which a decision will be invalid for failure to enquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make enquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information. More recent decisions, including decisions of the High Court, reinforce the limited circumstances in which a decision-maker may be called upon to make further inquiries: cf. Minister for Immigration and Citizenship v SZIAI [2009] HCA 39, (2009) 111 ALD 15. 99 Whatever may be the outer perimeters within which argument may legitimately be advanced, on the facts of the present case the Appellant contends that the primary Judge erred in failing to find that the Tribunal should have made inquiries of: the Mannar Police and/or Mannar Magistrates Court Registry; or the Document Examination Unit of the Department; or the now-Appellants former lawyer, with a view to assessing the genuineness of documents "vital to the applicant's case". 100 The present argument is rejected because: the obligation primarily rested upon the now-Appellant to place before the Tribunal the documents and other evidence upon which he sought to place reliance; left unexplained is what inquiries had been made by or on behalf of the now-Appellant as to those persons from whom further information could have been obtained and why any requirement to make such inquiries should be shifted from the now-Appellant to the Tribunal; and left unexplained is why the Tribunal should have made inquiries of the now-Appellant's former lawyers – and the difficulties that may well have been encountered with potential claims for legal professional privilege – in circumstances where it was the Appellant who it may be expected should have made those inquiries. A failure to give weight to documents – Ground 4 101 That part of the fourth Ground of Appeal which alleges a failure on the part of the primary Judge to "address" submissions made and a failure "to deal with the appellant's case" has already been resolved. 102 The balance of that Ground asserted that the primary Judge erred in failing to hold that it was not open to the Tribunal to find that the documents which attracted the Tribunal's observations at para [26] of its reasons were fraudulent and/or it was not open to give them "no weight". As that paragraph made clear, the "prevalence of document fraud in Sri Lanka" was a matter which was "discussed" with the now-Appellant during the course of the Tribunal hearing. 103 Had it been necessary to resolve this aspect of the Ground of Appeal, the argument would have been rejected. 104 The reasoning of the Tribunal, it is considered, falls short of any finding that the documents were "fraudulent"; but there is no questioning the conclusion of the Tribunal that it "[could not] attach weight to any of the documents". 105 The submissions advanced on behalf of the Appellant in the present proceeding were a mixture of speculation and assertion. The submission, for example, that it did "not appear that the Tribunal scrutinised the documents", is not supported by the Tribunal's statement (at para [15]) that it had "had regard to the applicant's written and oral evidence to the Department and the Tribunal". It is not lightly to be inferred that the Tribunal did not have "regard to" – or, to employ the language of the Appellant, that it had not "scrutinised" – documents in circumstances where it has indicated to the contrary. And the further submissions advanced to this Court, for example, that the "four court documents were comprehensive" and "so detailed that any fraud would become apparent to the reader", are more submissions as to the weight to be given to the documents rather than submissions in aid of a conclusion that the Tribunal failed to give proper consideration to each of the documents. 106 This aspect of the Ground of Appeal, and the counterpart argument before the Federal Circuit Court, are (with respect) nothing more than invitations to the Court to engage in impermissible merits review. The now-Appellant was given the opportunity to address the Tribunal on the reliability of the documents in question when the matter was "discussed" during the Tribunal hearing. It was for that Tribunal, and not the Federal Circuit Court or this Court, to determine the weight to be given to the documents. A misapprehension of evidence – Ground 7 107 The seventh Ground of Appeal contends that the primary Judge erred "by failing to find that The Tribunal made jurisdictional error in that is misapprehended the applicant's evidence and made adverse credibility findings based on that misapprehension". 108 This Ground was not pursued. To the extent, however, that the Ground overlaps Ground 5 it has already been addressed. THE APPLICATION FOR THE RECONSTITUTION OF THE COURT? 109 At the conclusion of the hearing on 25 May 2018, leave was granted to the parties to file further submissions directed to a number of issues that had arisen. 110 Supplementary Submissions were filed on behalf of the Appellant in excess of the page limit for which leave had been given. Three paragraphs of those submissions addressed the questions that had arisen at the hearing. The balance of those submissions made an application that the Court should be reconstituted. 111 Notwithstanding both the fact that Counsel for the Appellant during the course of his oral submissions expressly declined to make such an application and the fact that the application now made falls outside the ambit of the leave granted, the application has been made and should be resolved. Left to one side is whether an election had already been made not to pursue such a course during the hearing itself. 112 The application is founded in large part upon two exchanges between the Bench and Counsel for the Appellant, namely: an exchange in which Counsel had already referred the Court to SZWBH v Minister for Immigration and Border Protection [2015] FCAFC 88, (2015) 229 FCR 317, Shrestha v Migration Review Tribunal [2015] FCAFC 87, (2015) 229 FCR 301 and DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2, (2018) 353 ALR 641. Counsel then proceeded to refer to "your Honour's own decision" in further support of the same proposition, being the decision in CPF15 v Minister for Immigration and Border Protection [2018] FCA 330 ("CPF15"). That prompted the response from the Bench: "[y]ou must be getting desperate … [t]o cite my own decisions"; and an exchange in which Counsel for the Appellant was identifying the names of persons who had unsuccessfully applied for refugee status. That was then referred to as a "criminal offence". There immediately followed: "what I'm more concerned about at present is, as I understand it, and I just would have to check or get your assistance on, I thought there was a provision in the Migration Act which said that there should not be an identification of the names of parties to proceedings", which was a reference to the names of asylum seekers. Concern was expressed as to "what's on the court file". Reference was also made in the Supplementary Submissions to issues that arose in the case management of another case before the Court as it is presently constituted. That case raises similar issues to the present appeal and Counsel for the Appellant is also involved in that case. Those submissions included reference to: a case management hearing where a referral was made to pro bono Senior Counsel to assist both Junior Counsel who has remained in the case and the Court in respect to whether an allegation of actual bias was to be maintained against the same Federal Circuit Court Judge whose decision was there under appeal; and the time within which an Amended Notice of Appeal and an Amended Notice of a Constitutional Matter under s 78B of the Judiciary Act 1903 (Cth) were to be filed and served. Eight weeks was sought by Junior Counsel; four weeks was granted. 113 It is to be recalled that in Re JRL, Ex parte CJL (1986) 161 CLR 342 at 352, Mason J (as his Honour then was) said that "[i]t needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party". Mason J there went on to say: Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of bias, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour. The existence of a reasonably apprehension of bias is to be tested by reference to a "fair-minded lay observer" (Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48 at [31], (2011) 244 CLR 427 at 437 per Gummow ACJ, Hayne, Crennan and Bell JJ) and not by reference to the "perhaps individual and certainly motivated views of the particular litigant who has made the allegation of bias": Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72 at [10], [2010] 1 NZLR 35 at 46 per Blanchard J. 114 Although with the benefit of hindsight, the comment in respect to CPF15 was (at least in the circumstances of the present case) better not made, it is respectfully concluded that the comment would occasion no concern to a reasonable observer. Of itself, the exchange would not have occasioned any concern to a reasonable observer. Only the more so is that the case when the comment was immediately followed – after concern was expressed by Counsel – by the statement that it was "certainly not … any criticism of you, Mr Silva". The exchange with respect to the identification of refugee applicants could equally have been better expressed. But, again, a reasonable observer would form no conclusion other than that a Judge of this Court was expressing concern to ensure that Counsel avoided the inadvertent disclosure of the identity of persons whom the legislature has considered should not be disclosed: see para [32]. 115 The exchange with respect to the appointment of pro bono Counsel would also be viewed by the reasonable observer as the Court taking all steps available to it to ensure that any argument as to actual bias was properly considered by a member of the Inner Bar and to ensure that the case for the individual Appellant was being presented in the best manner possible. A direction that four weeks be permitted to serve an Amended Notice of Appeal and any further Notice of a Constitutional Matter, with respect, was more than adequate. 116 A further concern raised in the Supplementary Submissions focussed attention upon: an assessment made by Counsel that the Court had not "read" submissions which had been filed before the hearing commenced. Whether that assessment on the part of Counsel was correct is not to the point. What is of relevance is the objective assessment or perception of the reasonable observer. Given the consideration that has been given to the written submissions which have been filed, and the submissions as developed during the course of the oral hearing, it is considered that a reasonable observer would only form the conclusion that Counsel for the Appellant was given a more than reasonable opportunity to present his case. The submission also, with respect, fails to take into account the very reason why judgments are reserved. Reserving a decision for further consideration permits a Judge to subsequently review the written submissions which have been made and to do so with the benefit of both further time and the transcript of the oral submissions. 117 The application that the Court be reconstituted is rejected. CONCLUSIONS 118 The argument central to the Appellant's case, and the one to which primary attention was directed, was the argument that the primary Judge exhibited actual bias. That argument has been rejected. It should, with respect, not have been advanced. There was no "fall-back" position seeking to contend (for example) that the primary Judge exhibited an apprehension of bias. In the absence of any submissions being directed to such an argument, it need not be further considered. 119 The argument as to the failure on the part of the primary Judge to adequately explain the basis upon which he proceeded and decided the case has prevailed. That argument was found in Grounds 2, 4 and 5. There was, however, an overlap with other Grounds of Appeal. 120 The remaining arguments have been briefly addressed. The argument alleging an apprehension of bias on the part of the Tribunal has been rejected. 121 The application that the Court be reconstituted has also been rejected. 122 Counsel for the Respondent Minister submitted that, if the actual bias ground was not successful, the First Respondent should not be ordered to pay those costs. There was some indication that the costs incurred by Counsel for the Appellant in preparing that ground would likely be large. It has also been found that the allegation of actual bias was not appropriately made. However, while the bulk of the hearing was occupied by the unsuccessful actual bias ground, the Appellant has nonetheless been successful on the appeal. In the circumstances, it is appropriate that there be no order as to costs. It is also appropriate that there be no order disturbing the costs order made by the Federal Circuit Court. THE ORDERS OF THE COURT ARE: 1. The appeal be allowed. 2. Order 2 of the Orders made by the Federal Circuit Court on 13 November 2017 be set aside. 3. The proceeding be remitted to the Federal Circuit Court, differently constituted, for reconsideration in accordance with law. 4. There be no order as to costs. I certify that the preceding one hundred and twenty-two (122) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 8 November 2018	23,491
federal_court_of_australia:fca/full/2013/2013fcafc0037	decision	commonwealth	federal_court_of_australia	text/html	2013-04-04 00:00:00	TPG Internet Pty Ltd v Australian Competition & Consumer Commission (No 2) [2013] FCAFC 37	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2013/2013fcafc0037	2024-09-13T22:52:52.632148+10:00	FEDERAL COURT OF AUSTRALIA TPG Internet Pty Ltd v Australian Competition & Consumer Commission (No 2) [2013] FCAFC 37 Citation: TPG Internet Pty Ltd v Australian Competition & Consumer Commission (No 2) [2013] FCAFC 37 Appeal from: Australian Competition & Consumer Commission v TPG Internet Pty Ltd [2011] FCA 1254 Australian Competition & Consumer Commission v TPG Internet Pty Ltd (No 2) [2012] FCA 629 Parties: TPG INTERNET PTY LTD v AUSTRALIAN COMPETITION AND CONSUMER COMMISSION File number: VID 455 of 2012 Judges: JACOBSON, BENNETT & GILMOUR JJ Date of judgment: 4 April 2013 Catchwords: TRADE PRACTICES – penalty and consequential relief – principles relevant to the imposition of a penalty Legislation: Trade Practices Act 1974 (Cth) ss 52, 53(e),(g), 53C, 76E(2) Telecommunications Consumer Protections Code Cases cited: TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 Determined on the papers: 21 March 2013 Place: Perth via video-link to Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 30 Counsel for the Appellant: Mr N J O'Bryan SC with Mr M Hoyne Solicitor for the Appellant: Truman Hoyle Lawyers Counsel for the Respondent: Mr C Golvan with Mr E Heerey Solicitor for the Respondent: Australian Government Solicitor IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 455 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: TPG INTERNET PTY LTD Appellant AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent JUDGES: JACOBSON, BENNETT & GILMOUR JJ DATE OF ORDER: 4 APRIL 2013 WHERE MADE: PERTH (VIA VIDEO-LINK TO SYDNEY) THE COURT ORDERS THAT: 1. Set aside the orders of Murphy J, made 15 June 2012. THE COURT DECLARES THAT: 2. The Appellant (TPG), between 25 September and 7 October 2010, in trade or commerce: (a) engaged in conduct that was misleading or deceptive or likely to mislead or deceive, in contravention of s 52 of the Trade Practices Act 1974 (Cth) (the Act); (b) made false or misleading representations with respect to the price of a service, in contravention of s 53(e) of the Act; and (c) made false or misleading representations concerning the existence or effect of a condition, in contravention of s 53(g) of the Act; by publishing or causing to be published advertisements on television for the supply of a broadband internet service by TPG, which contained a statement to the effect of "UNLIMITED ADSL2+$29.99 per month", and thereby represented that a customer could obtain an unlimited ADSL2+ broadband internet service for payment of only $29.99 per month, when in fact the broadband internet service was only offered upon terms that the customer: (d) pay to TPG a total of no less than $59.99 per month; (e) purchase, or bundle, home telephone line rental with the broadband internet service at an additional cost of $30 per month; and (f) pay to TPG "up front" charges of either $79.95 or $129.95 depending on the contract term. 3. TPG, between 25 September and 7 October 2010, in trade or commerce, and in connection with the supply or possible supply of a broadband internet service, contravened s 53C of the Act by publishing or causing to be published advertisements on television, its website, third party internet sites and in newspapers for the supply of a broadband internet service, which contained a statement to the effect of "UNLIMITED ADSL2+$29.99 per month" and thereby made a representation with respect to an amount that, if paid, would constitute a part of the consideration for the supply of the service, but did not specify, in a prominent way, the single price for the service. THE COURT ORDERS THAT: 4. Pursuant to s 76E(1) of the Act, the Appellant pay to the Commonwealth of Australia a pecuniary penalty in respect of the conduct referred to in paragraphs 2 and 3 above, in the amount of $50,000. 5. The proceeding is otherwise dismissed. 6. The respondent pay the appellant 75% of its costs of and incidental to the appeal, the proceedings at first instance before Murphy J and the application for an interlocutory injunction before Ryan J. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VID 455 of 2012 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: TPG INTERNET PTY LTD Appellant AND: AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Respondent JUDGES: JACOBSON, BENNETT & GILMOUR JJ DATE: 4 APRIL 2013 PLACE: PERTH (VIA VIDEO-LINK TO SYDNEY) REASONS FOR JUDGMENT 1 The Court delivered judgment in this appeal in December 2012 and at that time reserved the question of penalty and consequential relief, if any: TPG Internet Pty Ltd v Australian Competition and Consumer Commission [2012] FCAFC 190 (the first judgment). 2 The parties have filed written submissions on these outstanding questions which we will now determine on the papers. 3 The substance of the declaratory relief has been agreed between the parties. The parties have also agreed (and the Full Court noted) that the trial judge's order in respect of corrective advertising ought to be set aside. Although Order 2 of the Orders of the primary judge, in effect, survived the appeal, we have set it aside and restated it as Order 3 in the orders we have made. This has the effect that all the declarations are found in one rather then two sets of orders. Pecuniary Penalty 4 The general principles applicable to penalty were set out in the first judgment and these reasons should be read with that in mind. Nonetheless, it is convenient to observe that under s 76E(2) of the Trade Practices Act 1974 (Cth) (the Act), the Court must take into account all relevant matters including: (a) the nature and extent of TPG's act or omissions, including any loss or damage suffered as a result of TPG's act or omission; (b) the circumstances in which the act or omission took place; and (c) whether TPG has previously been found by the Court to have engaged in any similar conduct. 5 We concluded in the first judgment that there were three different messages that constituted separate episodes of conduct, referred to as categories of contraventions: (i) the "no bundling condition"; (ii) the no set-up fee; and (iii) the failure to prominently display a single price. 6 It was only the first category which involved the amended advertisements published after 7 October 2010. The findings of the primary judge of contraventions by the "no set up fee" representation and the failure to display prominently a single price were limited to the initial advertisements which ran for 13 days from 25 September 2010 to 7 October 2010. 7 The ACCC in its submissions has attempted, by reference to our conclusions at [163] in the first judgment, to erect an argument for penalties based on the primary judge's findings as to liability but translated to the much narrower range of contraventions found by this Court. 8 We should immediately observe, in fairness to the ACCC, that our earlier reasons at [163], whilst reflecting the qualitative equivalence across the categories of contraventions failed to reflect the quantitative disparity between them. Those findings of putative penalties going to the contraventions as found by the primary judge which we accept suffer from the flaw now identified should not be the foundation for constructing a penalty regime in respect of the much reduced number of contraventions as found by this Court. Qualitative equivalence of categories of contraventions is but one factor. It is as important to consider the quantitative aspect of the contraventions. 9 The consequence of accepting these submissions would see the overall penalty reduced from $500,000 as set out by the primary judge by only $100,000 to $400,000 for which the ACCC contends, in the circumstances where this Court has allowed the appeal in respect of most of the advertisements found by the primary judge to have contravened the relevant legislation. This result, TPG contends, would be perverse. We agree. 10 Moreover, as TPG submits, this approach fails to take into account the other costs and expenses which have been wrongly imposed on it as a result of the proceeding at first instance, which are referred to in TPG's earlier submissions. 11 We are required to consider an appropriate penalty, if any, in light of the surviving contraventions. The factors identified by the primary judge which TPG submits are relevant are as follows: (a) the television advertisement which was found to have infringed ss 52 and 53 was published over 4 days only between 3 October 2010 and 7 October 2010; (b) the initial advertisements that were found to have infringed s 53C were shown between 25 September 2010 and 7 October 2010; (c) as soon as the ACCC raised concerns about the initial advertisements, TPG immediately took appropriate steps to change those advertisements; (d) no relevant loss or damage was suffered by any person as a result of TPG's conduct; (e) TPG has not previously been found to have engaged, by the Court, to have engaged in similar conduct; (f) it was not a case of TPG acting deliberately or covertly in contravention of the legislative requirements; (g) TPG had a compliance program in place to ensure compliance with the Act, and this was independently reviewed; (h) TPG did co-operate with the ACCC and, in fact, went beyond what was necessary to ensure compliance; and (i) TPG is a substantial company but on the second tier of telecommunications companies (below companies such as Telstra, Optus and Vodafone). 12 We concluded that the "no bundling" representation applied only to the initial television advertisement, while the failure to display prominently the single price applied to the initial advertisements (other than the radio advertisement). TPG submits that, in the circumstances, if this Court had been imposing a penalty at trial based upon the contraventions that the Full Court has found then a penalty of $50,000 (being $25,000 for the television "no bundling" representation and $25,000 for the s 53C breach) would have been appropriate. 13 We do not accept TPG's submission that in the unusual circumstances of this case, no pecuniary penalty be imposed on it. Whilst the number of contraventions is considerably reduced as a result of the first judgment, they nonetheless, in the context of a national advertising campaign, remain serious although self-evidently less so than was the subject of the findings of the primary judge. 14 However, TPG submits that as a result of the manner in which this proceeding has been brought and prosecuted: (a) it has incurred costs of over $600,000 and, regardless of what orders this Court makes in respect of costs, it will be significantly out of pocket; (b) it was, after the decision of the trial judge, forced immediately to terminate an advertising campaign which has now been held not to have infringed against the law. The removal of the outdoor advertisements alone cost TPG in excess of $105,000 ex GST; and (c) further, it was required to write to all of the customers which signed up under the initial and the revised advertisements noting that it had been found by the Federal Court to have engaged in misleading and deceptive conduct. The extent of the unjustified reputational damage that was done to TPG is hard to estimate but is unlikely to be completely undone by the decision of the Full Court. 15 We consider an appropriate penalty for the first category (no bundling) to be $50,000; for the second category (no set-up fee) $25,000 and the third category (no prominent single price) $50,000. Apart from the legal costs incurred by TPG, which we do not consider relevant, we consider that this Court may take into account as a relevant factor that TPG has incurred loss and damage in the ways it has submitted by reason of the findings now set aside, of the primary judge. When account is taken of those factors as well as the principle of totality, we consider that a penalty of $50,000 is reasonable. Injunctions 16 TPG did not in its appeal challenge Order 6 made by the primary judge which enjoined TPG for a period of 3 years from publishing any relevant advertisements without specifying, in a prominent way, the single price for the service or bundle of services. 17 However, the question of injunctions falls to be reconsidered generally in light of the judgment of the Court. 18 The ACCC contends that there is continued utility in the injunction sought by the ACCC, particularly insofar as it addresses the breaches upheld in respect of s 53C of the Act and the initial television advertisements. It argues that the public interest is served by preventing any recurrence of such conduct, especially in light of TPG's decision not to follow completely the legal advice it received and not to take a cautious approach about its advertisements. 19 This order relates to conduct engaged in for a period of a few days, almost two and a half years ago. The conduct ceased immediately upon the ACCC raising the issue with TPG. We agree that no useful purpose would be served by an injunction in these circumstances. 20 Further, as TPG correctly submits, in any event, the injunctions sought by the ACCC would apply for a period of 3 years from the date of the orders. This would mean that they would extend for a significantly greater period than even the trial judge's orders, which were for three years from 15 June 2012. 21 We would, in the exercise of our discretion, not order any injunctive relief. We do not consider it would serve any useful purpose. Compliance Program 22 Paragraph 10 of the orders of the primary judge made on 15 June 2012 requires TPG to maintain a compliance program, in the form sought by the ACCC (which includes reporting obligations to the ACCC) for a period of 3 years. For essentially the same reasons that we decline to grant injunctive relief, we would not order a compliance program. 23 Moreover, as TPG contends, it already has an appropriate compliance program in place. The Telecommunications Consumer Protections Code, which was introduced in 2012, contains compliance obligations that overlap the compliance program ordered by the trial judge, particularly in terms of reviews and reporting. It would be oppressive to force TPG to participate in multiple layers of third party review and reporting such as would be required if TPG is ordered to maintain the compliance program sought by the ACCC. Costs 24 TPG submits that, it was ultimately largely successful in this case and seeks all of its costs or alternatively, an apportionment on the basis we have set out below. The ACCC submits that TPG ought pay to it 50% of the trial costs and that it should pay TPG 50% of the appeal costs. 25 TPG submits that there is no reason why it ought not have its costs of the injunction application, which costs were ordered to be "in the cause". It points up that at trial, the issues of liability were heard over two days, as to which TPG was ultimately largely successful, and the penalty hearing was heard over another two days. It contends that its submissions as to penalty have almost all been upheld either by the primary judge or the Full Court. While it did not succeed on the s 53C point on appeal, it argues that this was a relatively small part of the case and it did succeed on most of the issues relating to bundling and on all points relating to the set-up fees and penalty. 26 It is appropriate in this case that there should be an apportionment of costs of the proceedings. This is not a calculation capable of precision. 27 However, TPG proffered, without objection being taken, the following assessment as to the court time taken by each of the hearings: injunction application - half a day, liability hearing - two days; penalty hearing - two days; appeal - one and a half days. It submits that on the basis that it succeeded on the matters that were the subject of the injunction application and on matters related to penalty, and had 80% success on liability on appeal then, of the six days in court, TPG succeeded in respect of 5.3 of those days. This equates to more than 88% of the court time. It submits that with this level of success, it ought have the entirety of its costs but in the exercise of a partial order, it seeks 90% of its costs of the trial and the appeal. 28 Moreover, TPG contends that it succeeded not only on the largest number of issues but also succeeded on the most important issues, being the revised advertisements which were continuing, and which were published over 13 months, rather than for only 12 days. 29 The ACCC submits that it was successful at trial in establishing, at least, contraventions of s 53C of the Act by TPG in relation to the initial television advertisements. These findings were not challenged on appeal. It contends correctly that, again, at least in part, TPG has not been successful in its appeal. 30 That there was a mix of success and failure on each part is plain. However, we broadly accept TPG's submissions and would order the ACCC to pay 75% of TPG's costs related to the injunction, the trial and the appeal. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Jacobson, Bennett & Gilmour. Associate: Dated: 4 April 2013	4,014
federal_court_of_australia:fca/single/2005/2005fca0292	decision	commonwealth	federal_court_of_australia	text/html	2005-03-23 00:00:00	Mobileworld Operating Pty Ltd (ACN 090 451 433) v Telstra Corporation Limited (ACN 051 775 556) & Ors [2005] FCA 292	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2005/2005fca0292	2024-09-13T22:52:52.761158+10:00	FEDERAL COURT OF AUSTRALIA Mobileworld Operating Pty Ltd (ACN 090 451 433) v Telstra Corporation Limited (ACN 051 775 556) & Ors [2005] FCA 292 PRACTICE AND PROCEDURE – Pleading – Application to strike out certain paragraphs of Statement of Claim – Cross-application for leave to further amend – Whether reasonable cause of action disclosed – Whether parts of pleading embarrassing. FEDERAL COURT OF AUSTRALIA – Jurisdiction to strike out discretionary - Ordering further particulars and allowing proposed amendments an alternative to striking out. COLLATERAL CONTRACT – Whether an inconsistency between terms of collateral contract and main contract rendered a claim untenable. TRADE PRACTICES – Causation – Whether allegations pleaded properly. Federal Court Rules, O 11 r 16, O12 r 5, O 13 r 2(1) and O 20 r 2(1) Trade Practices Act 1974 (Cth), ss 51A, 52, 82 and 87 Australian Competition and Consumer Commission v Golden West Network Pty Ltd and Ors [1997] FCA 792 referred to Beach Petroleum N.L. and Another v Johnson and Others (1991) 105 ALR 456 referred to Bond Corporation Pty Ltd v Thiess (1987) 14 FCR 215 referred to B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 referred to March v Stramare (E. & M. H.) Pty Ltd (1991) 171 CLR 506 referred to Dare v Pulham (1982) 148 CLR 658 referred to De Lassalle v Guildford [1901] 2 KB 215 referred to Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 considered Dey v Victorian Railways Commissioners (1949) 78 CLR 62 followed Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 211 ALR 101 referred to Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd (2003) 134 FCR 522 referred to General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Ors (1964) 112 CLR 125 followed Henville v Walker (2001) 206 CLR 459 referred to Heilbut, Symons & Co v Buckleton [1913] AC 30 referred to Hodges and Anor v State of New South Wales and Anor (1987-88) 77 ALR 1 referred to Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 considered J.J. Savage& Sons v Blakney (1970) 119 CLR 435 referred to Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 referred to McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 referred to Marks v GIO Australia Holdings (1998) 196 CLR 494 referred to Marks v Hunt Bros (Sydney) Pty Ltd [1958] SR (NSW) 380 referred to Maybury v Atlantic Union Oil Co. Ltd (1953) 89 CLR 507 referred to Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 44, 147 (41-591) referred to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 42, 677 (41-522) referred to Murphy v Overton Investments Pty Ltd [2004] HCA 3 referred to Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 referred to L'Estrange v F. Graucob Ltd[1934] 2 KB 394 referred to Telstra Corporation Ltd v Bos (unreported) 18 June 1996 (Sup. Ct. Vic) referred to Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 211 ALR 342 considered Trade Practices Commission v Pioneer Concrete (QLD) Pty Ltd and Others (1994) 52 FCR 164 followed Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 referred to Yorke v Lucas (1985) 158 CLR 661 referred to MOBILEWORLD OPERATING PTY LTD (ACN 090 451 433) v TELSTRA CORPORATION LIMITED (ACN 041 775 556) & ORS CRENNAN J 23 MARCH 2005 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V620 OF 2004 BETWEEN: MOBILEWORLD OPERATING PTY LTD (ACN 090 451 433) APPLICANT AND: TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIRST RESPONDENT DAVID KENNETH HUNTER MOFFATT SECOND RESPONDENT EDWARD NOEL PRETTY THIRD RESPONDENT JUDGE: CRENNAN J. DATE OF ORDER: 23 MARCH 2005 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. Leave be granted to the applicant to file and serve, on or before 20 April 2005, a further amended statement of claim in accordance with the proposed statement of claim filed on 8 December 2004 and in accordance with these reasons, including further and better particulars of paragraphs 20(D), 22, 33 and 70. 2. The applicant is to file and serve further and better particulars of paragraph 29 of the further amended statement of claim in accordance with these reasons within twenty-eight days of completion of inspection by the applicant of documents discovered by the respondents. 3. The respondents' motion dated 15 September 2004 be adjourned with leave to reinstitute the motion on three days notice. 4. The costs of the respondents' motion be reserved. 5. The respondents' costs occasioned by and thrown away by the amendments be paid by the applicant and the costs of the applicant's motion dated 22 September 2004 be reserved. 6. General liberty to apply, on three days notice, is reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V620 OF 2004 BETWEEN: MOBILEWORLD OPERATING PTY LTD (ACN 090 451 433) APPLICANT AND: TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIRST RESPONDENT DAVID KENNETH HUNTER MOFFATT SECOND RESPONDENT EDWARD NOEL PRETTY THIRD RESPONDENT JUDGE: CRENNAN J. DATE: 23 MARCH 2005 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The respondents to the original application applied by notice of motion dated 15 September 2004 for an order pursuant to O 11 r 16 of the Federal Court Rules that paras 19, 20, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36(b)-(d), 39, 40, 41,42, 45, 46, 47, 48, 49, 50, 51, 52, 53, 65, 66, 67, 68, 69, 70, 71 and 72 of the originating statement of claim be struck out. The statement of claim was filed on 13 May 2004, a defence and cross-claim was filed on 30 July 2004 and the applicant's reply and defence to the cross-claim was filed on 9 August 2004. The applicant applied for leave to file and serve an amended statement of claim by notice of motion dated 22 September 2004. 2 Both notices of motion were set down for hearing on 7 December 2004. At the hearing the applicant produced a proposed further amended statement of claim which formed the basis of submissions at the hearing. The respondents no longer pressed to strike out paras 19, 23, 36(b)-(d), 39, 40, 41, 46, 65 and 66. Following the hearing and pursuant to directions given by the Court the applicant filed a further proposed amended statement of claim on 8 December 2004. This latest version is the version for the purposes of the determination of the two notices of motion. The respondents pressed their opposition to the grant of leave to amend paras 20, 22, 24(a) and (b), 25, 29, 31, 32, 33, 34, 43, 44, 48(a), 49, 60, 61, 67, 68, 69, 70 and 72. These paragraphs covered claims of collateral contract, implied terms and conduct said to be misleading and deceptive or likely to be under the provision of the Trade Practices Act 1974 (Cth) ('the TPA'). The pleadings 3 The statement of claim in its present form contains 84 paragraphs and is 39 pages long. It has eleven (11) confidential annexures. The applicant claims damages primarily based on ss 52 and 53(g) and seeks relief under ss 82 and 87 of the TPA and also under accrued jurisdiction for breach of contract. The application contains some 21 claims for relief seeking various declaratory and injunctive orders and another 14 claims for relief seeking various, and sometimes alternative, orders for repayment, damages and compensation. The complaints arise from dealings where the applicant carried on business as the owner and operator of a mobile phone dealership selling mobile phone connections to the first respondent's mobile telecommunications service and related telephony services. A dealership agreement between them was executed on 10 January 2003 and varied in writing signed by both parties on 31 January 2003 ('2003 Agreement'). There were several prior dealership agreements, including one executed in February 2002 ('2002 Agreement'). It seems a dispute arose between the applicant and the first respondent in relation to the operation of both the 2002 and the 2003 Agreements. The second and third respondents are admitted to be employees of the first respondent. 4 There are eight main claims contained in the statement of claim. It is sufficient for present purposes to summarise the applicant's claims as follows: (i) it is claimed as against the first respondent that it represented and warranted that it would not enforce certain terms relating to the applicant's remuneration contained in the 2003 Agreement ('the First Representation'). The applicant claims that in making the First Representation the first respondent engaged in conduct that was misleading and deceptive or likely to mislead or deceive in contravention of s 52 of the TPA. The applicant claims that it suffered loss and damage as a consequence of the first respondent's representation and warranty. Further, and/or in the alternative the applicant claims that the first respondent breached a collateral contract and warranty to the 2003 Agreement constituted by the First Representation; (ii) it is claimed that the second respondent was a person involved in each of the contraventions of ss 52 and 53 of the TPA by the first respondent; (iii) further, or in the alternative, it is claimed that the first respondent by its conduct or failure to act breached certain express and implied terms of the 2003 Agreement; (iv) it is alleged that the first respondent made a further representation (the 'Second Representation') to induce the applicant to spend additional sums on advertising in the belief that the first respondent would contribute to the cost of that additional advertising. The applicant claims in relation to the Second Representation that as it relates to future events the applicant will invoke s 51A of the TPA and that the first respondent engaged in conduct in contravention of ss 52 and 53(g) of the TPA; (v) it is claimed that the first respondent breached the terms of a further agreement referred to as the January 2003 Co-Op Agreement by failing to pay certain sums to the applicant; (vi) it is alleged that the first respondent wrongfully demanded that the applicant repay certain sums, which it alleged had been overpaid under the 2003 Agreement and an agreement made in 2002. Further to that claim, the applicant also claimed that by sending a letter of demand for repayment of those monies the first respondent was in breach of s 52 and, or in the alternative, of s 53(g) of the TPA; (vii) it is claimed that the third respondent was a person involved in each of the contraventions of the TPA by the first respondent; and (viii) finally, it is claimed that the first respondent breached an agreement referred to as the Business Systems Agreement. Further, or in the alternative to that claim, the applicant claims that the first respondent made certain representations and warranties to induce the applicant to enter into a Business Systems Agreement. The applicant claims that, insofar as the making of those representations and warranties relates to future conduct it will rely on s 51A of the TPA, and further, in making those representations and warranties the first respondent breached s 52 of the TPA. Established principles 5 The standards of persuasion, which the respondents would ordinarily need to meet in order to succeed in striking out parts of a statement of claim are well established and are not in contention. The jurisdiction of the court to dismiss a claim upon the basis that it discloses no reasonable cause of action is to be sparingly invoked: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 ('Dey'); General Steel Industries Inc v Commissioner for Railways (N.S.W.) and Ors (1964) 112 CLR 125 ('General Steel'). 6 In Dey, Dixon J (as he then was) stated at 91: 'A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.' 7 In General Steel, Barwick CJ at 129 summarised various expressions of the test to be applied: '"so obviously untenable that it(the claim) cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that (the claim)does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".' 8 There are numerous reported cases of the Federal Court relying on those principles which have been applied both when applications to strike out have been refused and when they have succeeded: see for example, McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 (Weinberg J). Applicable rules in the Federal Court 9 Pleadings in the Federal Court are governed by O 11 of the Federal Court Rules ('Rules') which provides relevantly: '1. . . . 2. Subject to these Rules- (a) a pleading of a party shall contain, and contain only, a statement in a summary form of the material facts on which the party relies, but not the evidence by which those facts are to be proved; and (b) paragraph (a) has effect subject to this Order and to Order 4 (which relates to commencement of proceedings) and to Order 12 (which relates to particulars). 3. . . . 4. . . . 5. . . . 6. . . . 7. . . . 8(1) A party shall not in any pleading make an allegation of fact, or raise any ground or claim, inconsistent with a previous current pleading of his. 8(2) Sub‑rule (1) does not affect the right of a party to make allegations of fact, or raise grounds or claims, in the alternative. 9. A party may by his pleadings raise any point of law. 10. . . . 11. . . . 12. . . . 13. . . . 14. . . . 15. . . . 16. Where a pleading- (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading; (b) has a tendency to cause prejudice, embarrassment or delay in the proceeding; or (c) is otherwise an abuse of the process of the Court; the Court may at any stage of the proceeding order that the whole or any part of the pleading be struck out.' 10 O 20, r 2(1) of the Rules provides that the Court may order that the whole of or any part of a proceeding be stayed or dismissed if no reasonable cause of action is disclosed or on the ground that the proceeding is an abuse of process. O 13, r 2(1) provides that the Court may, at any stage of the proceeding grant leave to amend any document in the proceeding, and a Court may order a party to file and serve further particulars under O 12, r 5. The various powers referred to in the Rules are discretionary. I turn now to deal with those paragraphs in respect of which the respondents continue to oppose the applicant's being granted leave to amend as characterised by them: 'Paragraph 22 – collateral contract claim; Paragraphs 20, 24(a) and (b), 25, 29, 31, 32, 33 and 34 – first Trade Practices Act ('TPA') claim; Paragraphs 43, 44, 84(c) and 49 – second Trade Practices Act ('TPA') claim; and Paragraphs 67 to 70 and 72 – third Trade Practices Act ('TPA') claim.' Collateral contract claim 11 The first paragraph the respondents seek to have struck out is the collateral contract claim in para 22 of the statement of claim. Paragraph 22 states: 'The First Representation and Warranty was collateral to the 2003 Agreement and constituted a collateral warranty.' 12 The 'First Representation and Warranty' is defined in the statement of claim as: '[The first respondent] represented and warranted … to [the applicant] that if [the applicant] agreed to reduce a percentage of its Trailing Commission on Net Billings from that provided for in the 2002 Agreement and increased the number of [the applicant's] retail outlets in New South Wales, and performed, [the first respondent] would not enforce the Limitation on [the applicant's] remuneration provided for in clause 1.1 of Schedule 5 to the 2003 Agreement.' The precise details of the 'Limitation' are confidential and it is unnecessary for present purposes to articulate them. According to the applicant's written submissions the alleged collateral contract is that: '[The first respondent] would not enforce the Limitation on the applicant's remuneration provided for in clause 1.1 of Schedule 5 to the 2003 Agreement.' 13 Counsel for the respondents contended that the collateral contract as pleaded should be struck out because it is inconsistent with the express terms of the 2003 Agreement. Counsel for the respondents relied on Hoyt's Proprietary Ltd v Spencer (1919) 27 CLR 133 ('Hoyt's v Spencer'), which was followed in Maybury v Atlantic Union Oil Co. Ltd (1953) 89 CLR 507 ('Maybury'),as authority for the proposition that where the parties have a written agreement, an alleged collateral contract is only valid and enforceable if the 'two may consistently stand together so that the provisions of the main agreement remain in full force and effect notwithstanding the collateral agreement': Hoyt's v Spencer at 139. Two alleged inconsistencies were relied upon; first, the inconsistency between express provisions in Schedule 5 to the 2003 Agreement, covering dealer remuneration and the alleged oral collateral contract containing a promise not to enforce those provisions, and secondly, the inconsistency between the existence of the alleged oral collateral contract and the terms of the main contract which expressed it to be 'the entire agreement' of the parties about the subject matter, variable only 'in writing executed by all the parties.' It was noted that Hoyt's v Spencer was treated recently in the High Court as current authority: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 211 ALR 101 ('Equuscorp') and Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 211 ALR 342 ('Toll'). The collateral contract claim was described as 'hopeless' and it was submitted for the respondents that it would be a proper exercise of judicial discretion to strike out para 20 and refuse the applicant any leave to amend it. 14 Counsel for the applicant contended that the present case falls outside the rule in Hoyt's v Spencer. I was told it will be argued for the applicant that the first respondent's agreement not to enforce the main contract's limitation on the applicant's remuneration is different from alleging terms in a collateral contract which are inconsistent with express terms in a principal agreement. It was asserted on behalf of the applicant that the main agreement did not contain express provisions for the giving of notice. It was submitted the facts of this case more closely resemble those in De Lassalle v Guildford [1901] 2 KB 215, than those in Hoyt's v Spencer. 15 Alternatively, the applicant's counsel submitted that if the case fell within the Hoyt's v Spencer rule, the applicant will rely on the fact that in this case it is alleged the first respondent promised to refrain from enforcing a term in the principal agreement: see Gibbs CJ in Gates v City Mutual Life Assurance Society Limited (1985) 160 CLR 1 at 5/6: 'The learned author of "A Plea for the Reform of the Rule in Hoyt's Pty Ltd v Spencer", Australian Law Journal, vol. 52 (1978), p 372 criticizes those decisions (Hoyt's v Spencer and Maybury) but I find no need to reconsider them here, since the present is not a case in which one party made a promise to modify or to refrain from enforcing a term of the principal agreement.' Counsel for the applicant also distinguished recent cases in which Hoyt's v Spencer was mentioned. In Equuscorpthe Court noted that the written agreement was not procured by misrepresentation [at 33] and the respondent had never made a case that an earlier oral consensus constituted a collateral contract [at 36]. In Toll, in following L'Estrange v F. Graucob[1934] 2 KB 394, the Court noted: 'The general rule, which applies in the present case, is that where there is no suggested vitiating element, and no claim for equitable or statutory relief, a person who signs a document which is known by that person to contain contractual terms, and to affect legal relations, is bound by those terms, and it is immaterial that the person has not read the document.' In this case, statutory relief is being sought in respect of the first representation and warranty alleged to have led to loss but the same facts are also pleaded as constituting a collateral contract. It was urged this case may be an appropriate vehicle for reconsideration of Hoyt's v Spencer and therefore the case is tenable for pleading purposes and should not be struck out. It was submitted the applicant should be entitled to preserve the position so as not to be precluded from arguing later that Hoyt's v Spencer should be overruled. 16 When, as here, it is alleged the main contract would not have been entered into without the representation said to constitute the collateral contract, it is impossible before evidence is taken to make any assessment about the extent to which the facts will resemble, or differ from, those in Hoyt's v Spencer. Whether or not a party was induced to enter the main contract as a result of a representation is a matter of evidence, as are also the questions of whether the representation was truly promissory and animus contrahendi is made out: cf J.J. Savage & Sons Pty Ltd v Blakney (1970)119 CLR 435 at 442; and see Heilbut, Symons & Co v Buckleton (1913) AC 30 at 476 (per Lord Moulton); see also Marks v Hunt Bros (Sydney) Pty Ltd [1958] SR (NSW) 380. Equally, the question of whether the written agreement was the sole repository of consensus between the parties will be a matter to be determined on the evidence: Telstra Corporation Ltd v Bos (unreported) 18 June 1996 (Sup. Ct. Vic.) (Mandie J) at 21. 17 In the circumstances, the authorities upon which the respondents' counsel relies do not render the applicant's claims frivolous or untenable as a matter of law, even if such authorities prove formidable at trial. There is a distinction to be made between a case where it can be said applicable legislation makes it plain that a cause of action is not maintainable (General Steel; Dey) and a case where a plaintiff seeks to maintain a difficult case by seeking to distinguish a particular authority or raise a debatable question of law or even argue a law is invalid: see, for example, Hodges and Anor v State of New South Wales and Anor (1987-88) 77 ALR 1; see also Beach Petroleum N.L. and Another v Johnson and Others (1991) 105 ALR 456 at 465 (von Doussa J). 18 The correct approach in difficult circumstances, has been identified by a Full Court of this court in Trade Practices Commission v Pioneer Concrete (QLD) Pty Ltd and Others (1994) 52 FCR 164 at 175B (per Sheppard J, with whom Jenkinson and Drummond JJ agreed): '. . . a court asked to strike out all or part of a pleading needs to be careful to ensure that giving effect to the application does not prevent a party from making a case which it is entitled to make. One has to err on the side of caution lest one deprive a party of a case which in justice it ought to be able to bring.' 19 I do not propose to strike out para 22 on the basis that Hoyt's v Spencer renders the case as pleaded untenable. I do, however, accept that there is force in the submission for the respondents that the collateral contract averment is conclusionary. This does not have the inevitable result it once might have had. As with any other contract, details of parties, consideration and terms are relevant. Proper particulars are necessary even if incorporated by reference to particulars to be found elsewhere in the pleading. A respondent should not be left in a position of trying to infer what the proper particulars might be. The primary function of a statement of claim is to put the other party on notice of the case to be met: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd [1996] ATPR 42, 677 (41-522) (Burchett J and the authorities he there cites) ('Multigroup'). Further, it is a proper function of particulars to delineate the boundaries of any case to be met: Dare v Pulham (1982) 148 CLR 658 at 664 ('Dare v Pulham'). Not every conclusionary statement in a pleading needs to be struck out if particulars can be ordered to cure a deficiency: Australian Competition and Consumer Commission v Golden West Network Pty Ltd and Ors (1997) FCA 792 (Lockhart J). I propose to order proper particulars be given of para 22. First trade practices claim 20 The next paragraph sought to be struck out is para 20 of the statement of claim which pleads a representation and warranty by the first respondent to the applicant that if it agreed to certain matters, a limitation (or cap) on remuneration in the 2003 Agreement would not be enforced ('the no-cap representation' also referred to in argument as the 'First Representation'). The First Representation was said to have been made in trade and commerce (para 21), to have been relied upon and to have induced the applicant (para 24), to have been misleading and deceptive (para 27) and to have caused loss and damage (para 29). This section of the pleading was subject to proposed amendments but the respondents continued to object to disconformity in the particulars relied upon and particularly a failure to identify what part of the representation is said to be implied or the basis of the implication. 21 Any disconformity between particulars and representations or between particulars and evidence actually led can in the usual course, be corrected by an applicant even after the evidence has closed: Dare v Pulham at 664. The applicant's counsel indicated during the course of the hearing that certain particulars would be deleted; this should be attended to when the proposed statement of claim is prepared for filing and serving. The paragraph should not be struck out in its entirety at this stage on the basis of any disconformity. There is, however, force in the argument that there has been a failure to identify what part of the representation is implied and the basis of the implication. Of the well‑known conditions needed to justify the implication of a term in a contract, two are relevant to this argument. First, the requirement that the term to be implied must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it and secondly, that the term must not contradict any express terms of the contract: B.P. Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 at 283 (per Lord Simon of Glaisdale, Viscount Dilhorne and Lord Keith of Kinkel). 22 In my view, the facts as pleaded do not give rise to a necessary implication and, to the extent that there are no facts or circumstances pleaded which show the necessity to include such an implied term in the contract, or which show how the contract would be ineffective without the implied term, or how the term would be implied by operation of law, the proposed parts of para 20 in the statement of claim dealing with an implied term are defective. I propose to order that proper particulars be provided under (D) subjoined to para 20. Paragraphs 24(a) & (b) and 29 23 Counsel for the respondents continued to take issue with subparas 24 (a) and (b) and para 29 of the statement of claim. It is easiest to understand these objections in the context of proposed paras 24-27 (inclusive) and 29 which provide: '24. [The applicant] acting in reliance upon the truth of the First Representation and Warranty and induced to act thereby: (a) agreed to terminate the 2002 Agreement; (b) discontinued the 2002 Proceeding against [the first respondent] and agreed not to reinstate it and indemnified [the first respondent] against all claims made in the said proceeding; (c) agreed to the terms of the 2003 Agreement, including the terms which would reduce its Trailing Commission on Net Billings; and (d) executed on 10 January 2003 each of: (i) with Mobileworld Communications Pty Ltd (as Guarantor), the 2003 Agreement whereby [the applicant] was appointed to promote the sale of, and extend the demand for, [the first respondent's] GSM Mobile Service and the CDMA Mobile Service in Australia from 1 January 2003 for the term therein described; (ii) the 2003 Settlement Agreement; and (iii) the Varied Secret Agreement; and (e) otherwise acted to its detriment. Particulars Further particulars will be provided after discovery and inspection and prior to the trial of he (sic) proceeding herein. 25. Contrary to the First Representation and Warranty, [the first respondent] now seeks to enforce Schedule 5 clause 1.1. in relation to the Limitation on [the applicant's] remuneration in a Contract Year notwithstanding that [the applicant] agreed to reduce the percentage of its Trailing Commission on Net Billings and increased the number of [the applicant's] retail outlets in New South Wales and performed. Particulars By sending the Letter of Demand referred to in paragraph 59 below, the preceding letters and emails described in the particulars appended to paragraph 44 below, and otherwise engaging in conduct described in paragraphs 59 to 64 both inclusive below, [the first respondent] wrongfully sought to demand repayment of monies paid by it in excess of the Limitation. 26. As the First Representation and Warranty relates to future events or acts, at the time [the first respondent] made the First Representation and Warranty there were no reasonable grounds upon which the First Representation and Warranty could have been made to [the applicant] and [the applicant] will rely at the trial of this proceeding upon the provisions of section 51A of the TPA Trade Practices Act 1974 (Cth) ("the TPA"). 27. In the premises, in making the First Representation and Warranty, [the first respondent] engaged in conduct that was: (a) misleading and deceptive; (b) likely to mislead or deceive, in contravention of section 52 of the TPA. … 29. By reason of the contraventions of s 52 of the TPA, described in paragraph 27 above, [the applicant] has suffered and will continue to suffer loss and damage. Particulars (a) [the applicant] has been subjected to the Demand, described in paragraph 59 below, to repay to [the first respondent] a sum said by [the first respondent] to constitute remuneration received by it from [the first respondent] in excess of the Limitation, and [the applicant] has paid, involuntarily, under protest, the sum wrongfully sought by [the first respondent]; (b) deleted (c) [the applicant] has not received payment of either the remuneration to which it is entitled or interest to compensate for its late payment; (d) [the applicant] has neither received accurate nor timely information from [the first respondent] enabling either [the first respondent] or it to ascertain accurately or at all the remuneration to which it is entitled pursuant to the terms of clause 7.1 and Schedule 5 the 2003 Agreement; (e) [the applicant] is unable to calculate such profits until after discovery and inspection but will provide further particulars prior to the trial of the proceedings herein; (f) Further particulars of [the applicant's] loss and damage will be provided after discovery and inspection and prior to the trial of the proceeding herein.' 24 Counsel for the respondents objected to subparas (a) and (b) of para 24 as irrelevant pleadings which ought to be struck out as surplusage. Counsel for the respondents explained his objection on the basis that in terms of a claim under s 52 of the TPA, para 24 could only stand if the applicant pleaded that they had suffered loss or damage by reason of being deprived of the benefits under the 2002 Agreement. In other words, in its current form para 24 appears to foreshadow a quantum claim arising out of the differences between the two agreements and if that is not the case the respondents have to meet then it ought to be deleted. It was further submitted on behalf of the respondents that there was a disconformity between para 24 and para 29 such that those claims were embarrassing. 25 As appears above, in para 29 the applicant identifies the loss and damage it has suffered. However, counsel for the respondents contended a disconformity in the pleadings arose because there was no link pleaded between the alleged loss or damages suffered as a result of the first respondent's alleged contraventions of s 52 of the TPA and the allegation in para 24 that the applicant was 'induced by the alleged representations to both, enter into the 2003 Agreement, and to terminate the 2002 Agreement.' Counsel for the respondents also submitted that the applicant has not complied with the requirement 'that [the applicant] plead and establish that course, which but for reliance on the contravening conduct, it could have otherwise adopted, and formulate its damages on that basis'. It was contended there was no adequately pleaded causal connection between the 'no cap' representation and the alleged damage. Observations made by Branson J in Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 at [7] to [16] were relied upon by the respondents. 26 In response to the challenge to subparas 24(a) and (b), counsel for the applicant rejected the characterisation of them as surplusage and submitted that they operated to alert the respondents to the factual matrix behind the claim as part of the narration of the pleading. Further, it was submitted that as subparas 24(a) and (b) are not relevant to the loss and damage claims there was no need for particulars in relation to a claim that was not being made. There is a good deal of narration in the pleading to explain the background to the 2003 Agreement, the subject matter of the proceeding. On the basis that subparas 24(a) and (b) are mere narration, I decline to strike them out as embarrassing to the respondents. 27 In response to the respondents' criticism of para 29, counsel for the applicant relied on the decision of the Full Court of this Court in Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 ('Demagogue') per Black CJ at 32: 'The general law does not impose, as a requirement for effective rescission, that a party who has been induced to enter into a contract by a misrepresentation must have suffered loss and damage in the sense of a loss for which a pecuniary award may be made. In the Trade Practices Act itself, the right of rescission given to consumers by s 75A where there has been a breach of a condition implied by a provision of Div 2 of Pt V is not conditional upon the existence of loss or damage in that sense. Despite the use of the same words "loss or damage" that appear in s 82, it would be surprising if s 87, in providing a range of discretionary remedies, contained a limitation that is not imposed by the general law in cases that would fall within the scope of Pt V of the Trade Practices Act and that would, in any event, seriously limit the usefulness of that section.' Counsel for the applicant also referred to Gummow J in Demagogue at [43]: '… whilst s 82 is concerned with the recovery of an amount representing the loss or damage, s 87 is concerned with compensation, whether in whole or in part, for loss or damage and with the reduction of loss or damage, and with the prevention of loss or damage which is likely to be suffered.' Counsel for the applicant submitted that according to the authorities although trade practices cases like the present case may be analogous to actions in deceit, the relief available for such a claim is not confined to damages for monetary loss. 28 It is well‑established that any amount recoverable under s 82 or orders which might be made under s 87 of the TPA are not confined by analogy whether with tort, or contract or other remedies including those available in equity: Marks v GIO Australia Holdings (1998) 196 CLR 494 ('Marks v GIO'); Henville v Walker (2001) 206 CLR 459 and Murphy v Overton Investments Pty Ltd [2004] HCA 3. Counsel for the respondents did not contend otherwise. It is equally well‑established that s 82(2) should be understood as taking up the common law practical concept of causation: Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 525; Marks v GIO at [38], [39] and [4]. Causation is a question of fact to be determined by reference to commonsense and experience: March v Stramare (E. & M. H.) Pty Ltd (1991) 171 CLR 506 at 515. There are also a number of authorities supporting the necessity to identify in a pleading, the causal connection between the conduct complained of and loss and damage: see Bond Corporation Pty Ltd v Thiess (1987) 14 FCR 215 (French J); Multigroup; Mitanis v Pioneer Concrete (Vic) Pty Ltd [1997] ATPR 44, 147 (41-591) (Goldberg J). It is not sufficient to simply plead a conclusion: Pioneer Electronics Australia Pty Ltd v Edge Technology Pty Ltd [1999] FCA 142 at [7] (Kenny J). 29 On the issue of causation, the applicant pleaded the representation (para 20), reliance and inducement (para 24), the misleading and deceptive character of the representation (para 27) and loss and damage (para 29). Counsel for the applicant described the loss and damage sought in subpara 29(a) as 'the difference between the deal that was done and what has flowed from the breach' and made reference to the possible availability of the contract measure of damage under the TPA. So it seems that the applicant is claiming damages for 'loss of a bargain' or what is sometimes called 'expectation loss' as distinct from loss flowing from reliance on the representation so as to be worse off as a result of entering the transaction by inducement. It is clear from submissions made at the hearing of these motions there will be a strong contest about whether there is a sufficient connection between the alleged representation said to have been relied upon and the loss and damage claimed. 30 Whatever difficulties the applicant's approach may or may not pose for the applicant in terms of proving that loss and damage was caused by the conduct complained of, for the purposes of obtaining remedies under ss 82 and 87 of the TPA, it would not be a proper exercise of the discretion to strike out para 29, when it is claimed that the subject matter of the agreement (the dealership) was less valuable than it would have been if the representation were true. This is clearly arguable under the provisions of the TPA. 31 Further and better particulars of para 29 have been foreshadowed after discovery and inspection. The respondents are entitled to understand the case on causation since they would be entitled to deny causation as well as denying loss and damage or to disclaim liability from losses if they can negate the causal effect of the representation. Particulars subjoined to para 29 to date do not make it clear if or how the applicant is worse off because of the conduct nor is it clear whether the applicant lost any benefits by reference to benefits under a previous agreement. Proper particulars of causation need to be provided at the same time as full particulars of quantum are provided. The orders I propose will enable the respondent to re‑agitate this issue should it become necessary to do so. 32 Paragraphs 33 and 34 contain claims against the third respondent as a person involved in the first respondent's alleged contraventions. The respondents seek to strike out these paragraphs. Even if the first TPA claim were not struck out, it was submitted for the respondents that the present pleading lacked the particularity necessary to establish a valid cause of action bearing in mind the principles established in Yorke v Lucas (1985) 158 CLR 661 at 667 ('Yorke v Lucas'), namely that before a person can be said to be a party to a contravention he must be an intentional participant, the necessary intent being based on knowledge of the essential elements of the contravention. Counsel for the applicant did not dispute the principles established in Yorke v Lucas but relied on the particulars subjoined to para 33 in confidential annexure 4, as constituting the material facts upon which it proposes to rely to substantiate the cause of action against the third respondent. I do not accept these submissions because, whilst the particulars provided in the confidential annexure allege the third respondent knew of the representation in the sense he was involved in making it, that does not constitute particulars of his knowledge of the falsity of the representation. To enable the third respondent to understand the applicant's reliance on s 75B of the TPA, I will order the provision of particulars of knowledge of the falsity of the representation in respect of para 33 (O 12, r 5(2)). Second trade practices claim 33 Paragraph 45 pleads the Second Representation complained of namely, that the first respondent represented that certain sums of money were not to be included as part of the remuneration payable to the applicant pursuant to the 2003 Agreement. It was pleaded that the representation was made in trade and commerce (para 44), relied upon and induced the applicant (para 47) and caused loss and damage (para 53). 34 It was asserted on behalf of the respondents that paras 43 and 44 are embarrassing as they bear no narrative relationship to para 45 in the form now proposed. Counsel for the applicant responded that the two paragraphs are important as narrative paragraphs relevant to the whole section of the pleading on this aspect, namely paras 43 to 53 (inclusive). I accept this submission. It would not be a proper exercise of the discretion to strike out these paragraphs. 35 Similarly it was contended for the respondents that subpara 48(c) and para 49 should be struck out as no longer relevant to para 45 in the form now proposed, as they were relevant to parts of that paragraph which are no longer pursued. 36 The response was that these paragraphs remained relevant to the Second Representation as it was now pleaded. 37 It seems to me correct that references in these paragraphs once naturally referred back to references in paras 45(a) and (b) as they once stood. However, it is possible to read those references differently now as constituting averments relevant to causation. Accordingly, I decline to strike out those paragraphs. Third trade practices claim 38 The complaints about this section of the pleading are best understood by reference to the proposed paragraphs: '59. By letter dated 13 February 2004 ("the Letter of Demand"), [the first respondent] wrongfully demanded that [the applicant] repay to it the sum of $21,283,642.61 alleged by it to have been overpaid by [the first respondent] under the 2002 and 2003 Agreements. Particulars The letter from [the first respondent] is dated 13 February 2004 and is signed by Willis. A copy of the letter may be inspected at the office of [the applicant's] Solicitors during ordinary business hours by prior appointment. 60. The Letter of Demand: (a) required [the applicant] to pay the sum of $21,283,642.61 as soon as possible; (b) constituted a formal notice of the requirement to pay the said sum as soon as possible; (c) stated that non‑payment of the said sum would constitute a material breach under the 2003 Agreement. Particulars [The applicant] refers to the express terms of the Letter of Demand. 60A. [The first respondent] was at all relevant times under an obligation to act in good faith in relation to any demands it made in purported reliance upon the 2003 Agreement. Particulars The term is implied by the need to give business efficacy to the 2003 Agreement and is otherwise implied by law. 61. At no time was there any, alternatively any proper, basis upon which [the first respondent] acting in good faith, could reasonably have formed the opinion that: (a) [The applicant] owed to [the first respondent] under the terms of the 2002 and 2003 Agreements the sum of $21,283,642.61; (b) [The applicant] owed any sum at all to [the first respondent] under the terms of the 2002 and 2003 Agreements; and (c) [The first respondent] was entitled to treat non‑payment by [the applicant] of the sums demanded in the Letter of Demand as constituting a material breach under the 2003 Agreement. 62. At all times, [the first respondent] demanded that [the applicant] comply with the Demand contained in the Letter of Demand. Particulars (a) . . . (b) . . . (c) . . . (d) . . . 63. [The first respondent] extended the time within which the Notice must be complied with to 31 March 2004. Particulars (i) . . . (ii) . . . (iii) . . . (iv) . . . Copies of the written communications may be inspected at the office of [the applicant's] Solicitors during ordinary business hours by prior arrangement. 64. On Wednesday 31 March 2004 [the applicant], to preclude [the first respondent] from seeking to terminate the 2003 Agreement, made an involuntary payment under protest to [the first respondent] in the sum of $21,283,642.61. 65. [The first respondent] by making the wrongful demand for payment contained in the Letter of Demand has: (a) acted in breach of its obligations to act in good faith towards [the applicant]; and (b) breached clause 7.1 and Schedule 5 of the 2003 Agreement. Particulars The obligation to act in good faith towards [the applicant] is to be implied by operation of law and to give business efficacy to the 2003 Agreement. 66. By reason of the matters alleged in paragraphs 42 and 59 to 65 both inclusive above: (a) the Letter of Demand is and was at all times invalid and of no force and effect; and (b) [The applicant] has suffered and continues to suffer loss and damage. Particulars [The applicant] has been deprived of the sum of $21,283,642.61 together with interest thereon. 67. Further, by reason of the matters alleged in paragraphs 61 and 62 above in: (a) sending the Letter of Demand; (b) representing that it had an entitlement to have [the applicant] comply with the Letter of Demand; and (c) representing that it has an entitlement to treat non‑payment by [the applicant] of the sums in the Letter of Demand as constituting a material breach under the 2003 Agreement; [The first respondent], in trade or commerce, engaged in conduct that was: (i) misleading and deceptive; in contravention of section 52 of the TPA. Particulars (a) The representation referred to in sub‑paragraph (b) was partly oral and partly in writing. Insofar as it was oral it was constituted by the conversations described in the particulars appended to paragraph 62 above. Insofar as it was in writing it was contained in the Letter of Demand. (b) The representation referred to in sub‑paragraph (c) was in writing and was contained in the Letter of Demand. 68. Further or in the alternative, in engaging in the conduct described in paragraphs 59 to 64 both inclusive above, [the first respondent] in trade or commerce, in connexion with the supply or continued supply of services under the 2003 Agreement, or in connexion with the promotion by any means of the supply or use of services under the 2003 Agreement made a false or misleading representation in contravention of sub‑section 53(g) of the TPA concerning the existence, or effect of a right or remedy namely, an entitlement to: (a) have [the applicant] comply with the Letter of Demand; and (b) treat non‑payment by [the applicant] of the sums demanded in the Letter of Demand as constituting a material breach under the 2003 Agreement. 68A. There were terms of the 2003 Agreement that: (a) [The applicant] was required, within 5 business days of receiving notice from [the first respondent] to do so, to refund to [the first respondent] any overpayment the subject of a notice from [the first respondent] (clause 5 of schedule 5); (b) without prejudice to its rights under clause 8.3 and 8.5, [the first respondent] might, notwithstanding any other clause, suspend the provision of any goods and services to the dealer during any period in which amounts owing to it under the agreement were unpaid (clause 8.6); (c) a party might terminate it by giving 7 days notice in writing to the other party if the other party was in breach of any of its material obligations under the agreement, or any other agreement in force from time to time between [the first respondent] and one or more of the other parties to the 2003 Agreement and, if such breach was capable of remedy, did not rectify such brief within 14 days after receiving a notice to do so (clause 8.5). 68B. At all material times, [the applicant] understood that the representation constituted by the statement in the Letter of Demand referred to in paragraph 60(c) above, was a threat by [the first respondent] that a failure by it to pay the sum demanded by [the first respondent], would result in or be likely to result in: (a) an immediate cessation of the supply by [the first respondent] to [the applicant] of the services under the 2003 Agreement pursuant to clause 8.6; and/or (b) termination of the 2003 Agreement pursuant to clause 8.5; and (c) irreparable damage being suffered by [the applicant's] business. Particulars [The applicant's] business was and has been at all material times, dependant upon [the first respondent] supplying services in relation to the Mobile Service (within the meaning of the 2003 Agreement). Any suspension of the supply of those services would prevent [the applicant's] business from re‑supplying those services to members of the public and thereby result not only in the immediate effective cessation of the business, but irreparable damage to its reputation and goodwill as a reliable supplier of the Mobile Service. 68C. In reliance upon the representation constituted by the statement in the Letter of Demand referred to in paragraph 60(c) above and n the circumstances described in paragraph 68A and 68B above, [the applicant] made the involuntary payment described in paragraph 64 above. 69. By reason of the matters alleged in paragraphs 67 to 68C above, [the applicant] has suffered and continues to suffer loss and damage. Particulars [The applicant] has been deprived of the sum of $21,283,642.61 together with interest.' 39 It was contended paras 67 to 69 (inclusive) should be struck out as no material facts of reliance are pleaded, ie. it is not pleaded that the applicant believed the representation or was deceived by it. It was further asserted that paras 61, 62 and 68C make it clear the applicant did not believe the pleaded representation. 40 It was then contended that without a belief in the representation there can be no requisite causal connection between the alleged loss and damage and the alleged contravening conduct. Observations by Lander J in Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd (2003) 134 FCR 522 at [88]–[128] were relied upon by the respondent. 41 Counsel for the applicant contended that substantial amendments proffered in respect of paras 67 to 69 (inclusive) now set out the material facts relied on. It appears that it is the applicant's understanding of the effect of the representations alleged (para 68B) that allegedly caused the applicant to make what it describes as 'involuntary payment' to the first respondent. Whether or not the applicant succeeds on causation is a question for later. Given the collateral contract and First Representation claims, it would not be a proper exercise of discretion to treat the paragraphs as now proposed as pleading an untenable cause of action. 42 Paragraphs 70 and 72 were also the subject of continuing objection. They contained claims against the second respondent as a person involved in the first respondent's alleged contraventions by reason of the representations pleaded in para 67. The arguments were the same as those raised in respect of the third respondent, dealt with above, with a similar outcome. To enable the second respondent to understand the reliance by the applicant on s 75B of the TPA, I will order particulars of knowledge of the falsity of the representation to be provided in para 70 (O12 r 5(2)). Conclusion 43 It is not appropriate in the present context to express views about whether the collateral contract pleaded is likely to be found invalid or whether ss 82 and 87 of the TPA might encompass a claim for expectation loss or whether causation might be inferred rather than proven by direct evidence. In requiring an examination of some documentary evidence and by making extensive reference to authorities relevant to substantive issues of collateral contract and causation, submissions exceeded what should be sufficient given that pleadings will not be struck out unless they are manifestly untenable or clearly embarrassing. The fact that a defence and counterclaim has been filed, and that the respondents' objections have changed since they were first raised by solicitor's letter dated 17 August 2004, suggests that no clear embarrassment subsisted in the pleading even in its unamended form. Whilst certain particulars have been ordered, that result could possibly have been achieved without a motion to strike out significant parts of the pleadings. I have reached the conclusion that the applicant should be granted leave to amend in accordance with the proposed further amended statement of claim, subject to the provision of certain further and better particulars and in accordance with these reasons. I will hear the parties on the costs of the applicant's motion. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Crennan. Associate: Dated: 23 March 2005 Counsel for the Applicant: David Shavin QC Stewart Anderson Edward Woodward Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondent: Kim Hargrave QC Michael Wyler Solicitor for the Respondent: Mallesons Stephen Jaques Date of Hearing: 7 December 2004 Date of Judgment: 23 March 2005	12,696
federal_court_of_australia:fca/single/2007/2007fca0844	decision	commonwealth	federal_court_of_australia	text/html	2007-05-31 00:00:00	Macquarie University v Macquarie University Union Limited (No 2) [2007] FCA 844	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2007/2007fca0844	2024-09-13T22:52:56.611671+10:00	FEDERAL COURT OF AUSTRALIA Macquarie University v Macquarie University Union Limited (No 2) [2007] FCA 844 MACQUARIE UNIVERSITY AND ANOR v MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ABN 91 085 197 600) (NO 2) NSD 784 of 2007 MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) v VENUES AT MACQUARIE PTY LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 111 705 394) (NO 2) NSD 796 of 2007 LINDGREN J 31 may 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 784 OF 2007 MACQUARIE UNIVERSITY First Plaintiff ROBERT TONGUE Second Plaintiff MACQUARIE UNIVERSITY UNION LIMITED (ABN 91 085 197 600) Defendant MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ABN 91 085 197 600) First Applicant ROBERT TONGUE Second Applicant STEVEN JOHN BROWN Respondent JUDGE: LINDGREN J DATE OF ORDER: 23 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The respondent, Steven John Brown of Etienne Lawyers, respondent to the interlocutory process filed on 15 May 2007, pay into Court $118,000 to abide the further order of the Court. 2. The parties to the interlocutory process referred to in Order 1 have liberty to apply on 24 hours' notice. 3. The application brought by the interlocutory process referred to in Order 1 be stood over for further directions to Wednesday 6 June 2007 at 9:30 am. 4. Compliance with Rule 5.6(2)(b) of the Federal Court (Corporations) Rules 2000 be dispensed with. 5. The defendant, Macquarie University Union Limited, be wound up. 6. Trevor Mark Pogroske be appointed as liquidator of the defendant. 7. The interlocutory application made by interlocutory process filed 16 May 2007 relating to the Annual General Meeting of the defendant be dismissed. 8. The taxed costs incurred by the plaintiffs in this proceeding be reimbursed to it out of the property of the defendant in accordance with ss 466(2) and 556(1)(b) of the Corporations Act 2001 (Cth). 9. These orders be entered expeditiously. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 796 OF 2007 MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600) Plaintiff VENUES AT MACQUARIE PTY LIMITED (ACN 111 705 394) Defendant VENUES AT MACQUARIE PTY LIMITED (PROVISIONAL LIQUIDATOR APPOINTED) (ACN 111 705 394) Applicant STEVEN JOHN BROWN First Respondent MACQUARIE UNIVERSITY STUDENTS' COUNCIL INCORPORATED Second Respondent JUDGE: LINDGREN J DATE OF ORDER: 23 MAY 2007 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The first respondent, Steven John Brown of Etienne Lawyers, respondent to the interlocutory process filed on 15 May 2007, pay into Court $115,000 to abide the further order of the Court. 2. The parties to the interlocutory process referred to in Order 1 have liberty to apply on 24 hours' notice. 3. The application brought by the interlocutory process referred to in Order 1 be stood over for further directions to Wednesday 6 June 2007 at 9:30 am. 4. The interlocutory application made by Interlocutory Process filed 15 May 2007 seeking an order against the second respondent, Macquarie University Students' Council Incorporated, be dismissed. 5. Compliance with Rule 5.6(2)(b) of the Federal Court (Corporations) Rules 2000 be dispensed with. 6. The defendant, Venues at Macquarie Pty Limited, be wound up. 7. Trevor Mark Pogroske be appointed as liquidator of the defendant. 8. The taxed costs incurred by the plaintiff in this proceeding be reimbursed to it out of the property of the defendant in accordance with ss 466(2) and 556(1)(b) of the Corporations Act 2001 (Cth). 9. These orders be entered expeditiously. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 784 OF 2007 MACQUARIE UNIVERSITY First Plaintiff ROBERT TONGUE Second Plaintiff MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ABN 91 085 197 600) Defendant MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ABN 91 085 197 600) First Applicant ROBERT TONGUE Second Applicant STEVEN JOHN BROWN Respondent IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 796 OF 2007 MACQUARIE UNIVERSITY UNION LIMITED (IN PROVISIONAL LIQUIDATION) (ACN 085 197 600) Plaintiff VENUES AT MACQUARIE PTY LIMITED (PROVISIONAL LIQUIDATOR APPOINTED) (ACN 111 705 394) Defendant VENUES AT MACQUARIE PTY LIMITED (PROVISIONAL LIQUIDATOR APPOINTED) (ACN 111 705 394) Applicant STEVEN JOHN BROWN First Respondent MACQUARIE UNIVERSITY STUDENTS' COUNCIL INCORPORATED Second Respondent LINDGREN J JUDGE: DATE: 31 MAY 2007 PLACE: SYDNEY REASONS FOR JUDGMENT (No 2) INTRODUCTION 1 In proceeding NSD 784 of 2007, on 4 May 2007 I appointed Trevor Mark Pogroske as official liquidator provisionally of the defendant, Macquarie University Union Limited ("MUU"): see Macquarie University v Macquarie University Union Limited [2007] FCA 743. 2 In proceeding NSD 796 of 2007, on 10 May 2007 Rares J appointed Mr Pogroske as official liquidator provisionally of the defendant, Venues at Macquarie Pty Limited ("Venues"): see Macquarie University Union Ltd (in provisional liquidation) v Venues at Macquarie Pty Limited [2007] FCA 721. 3 I will use the abbreviations "MUU" and "Venues" to refer to the respective defendants both before and after the appointments of Mr Pogroske as provisional liquidator, without distinguishing between their status before and after those appointments. 4 I will take both sets of reasons for judgment to which I have referred as read. They provide the background to the orders I made on 23 May 2007 for the winding up of both MUU and Venues and the appointment of Mr Pogroske as liquidator of those companies. These are my reasons for the making of those orders. BACKGROUND 5 Much has happened since Mr Pogroske was appointed as provisional liquidator of MUU and of Venues. In proceeding NSD 784 of 2007, MUU filed an interlocutory process on 15 May 2007 seeking an order that Steven John Brown of Etienne Lawyers pay to it $118,000. In the same proceeding, MUU and Mr Pogroske filed an interlocutory process on 16 May 2007 seeking an order that the annual general meeting of MUU proposed to take place on 31 May 2007 not take place unless otherwise ordered by this Court. 6 In proceeding NSD 796 of 2007, Venues filed an interlocutory process on 15 May 2007 seeking an order that Macquarie University Students' Council Incorporated ("MUSC") pay $95,000 to Venues. By a separate interlocutory process filed in the same proceeding on 15 May 2007, Venues seeks an order that Mr Brown pay $115,000 to it. 7 All of the interlocutory applications were fixed for hearing at 10.15 am on 23 May 2007 but the circumstances changed fundamentally last week when the various elected student councillors decided not to contest further either the interlocutory applications or the substantive applications. In the result, the respective plaintiffs, Macquarie University ("the University") and MUU published notices in The Sydney Morning Herald on 18 May 2007 to the effect that they would apply for orders winding up MUU and Venues at 10.15 am on 23 May 2007. Rule 5.6(2)(b) of the Federal Court (Corporations) Rules 2000 requires that such notice be published at least seven days before the date fixed for hearing of the application. The notices were published a little less than seven days before 23 May 2007, but I waived compliance with the rule. 8 On the hearing, Mr Brown, through counsel, indicated that he wished to pay into Court $118,000 in proceeding NSD 784 of 2007 and $115,000 in proceeding NSD 796 of 2007 – a total of $233,000. These were the amounts referred to in the respective interlocutory processes directed to him (see [5] – [6] above). It was agreed between the respective applicants and Mr Brown that orders be made for him to make those payments into Court. Because there was a question as to the period of time during which the money would have to abide an order of the Court, I ordered by consent that those two interlocutory applications be stood over to Wednesday, 6 June 2007 at 9.30 am, and that the parties to them have liberty to apply on 24 hours' notice in the meanwhile. This would allow an opportunity, if need be, for an order to be made for investment of the amount in a special interest bearing account rather than its simply being deposited in the non interest bearing Litigants' Fund. 9 Because, in the event, I ordered that MUU be wound up, the interlocutory application in proceeding NSD 784 of 2007 seeking an order that the annual general meeting of MUU not be held became otiose and I ordered that that interlocutory application be dismissed. 10 On 17 May 2007, the Supreme Court of New South Wales ordered that MUSC be wound up and that Mr Pogroske be appointed liquidator in respect of it (see further [22] below). Accordingly, the interlocutory application in proceeding NSD 796 of 2007 seeking an order that MUSC pay $95,000 to Venues also lost its utility. On the application of Venues, I also dismissed that interlocutory application. (There was no appearance for MUSC, although, of course, its liquidator, Mr Pogroske, instructed senior counsel who appeared for Venues.) THE PRESENT APPLICATIONS FOR THE WINDING UP OF MUU AMD VENUES 11 By its originating process filed in Court on 4 May 2007, the University seeks an order for the winding up of MUU on the oppression and just and equitable grounds pursuant to ss 461, 462, 232 and 233 of the Corporations Act 2001 (Cth) ("the Act"). 12 By its originating process filed on 8 May 2007, MUU seeks an order for the winding up of Venues on the grounds of insolvency pursuant to ss 459A, 459B and 459P of the Act, and on the just and equitable and oppression grounds pursuant to ss 461, 462, 232 and 233 of the Act. MUU 13 MUU is a company limited by guarantee. It trades under the name "Students at Macquarie" or "SAM". MUU operates as a student union and, according to its objects, exists to complement and support the academic activities of the University by providing products, services and facilities that, among other things, promote the welfare of the University and the wellbeing of its members. In keeping with its objects, MUU operates and owns one child care centre, manages two other child care centres, operates a food and beverage business, including licensed premises, and operates an entertainment department, a retail organisation and an academic dress service. MUU operates a number of bank accounts, including, relevantly, two bank accounts with the National Australia Bank ("NAB"): Banksia Cottage Childcare Centre Account (No 537121144) ("Banksia account") and a general MUU account (No 209281157) ("MUU account"). 14 As at 3 May 2007, the board of MUU comprised 13 directors. These included Victor Ma (the executive director), Siu Kei Cheung, Annie Tseung and Chi Cheung Wong. They also included (in accordance with the MUU Constitution) Mr Robert Tongue and Ms Marilyn Dodkin as the two University Appointed Board Members. Alfonso Maccioni is the Chief Operating Officer of MUU, as well as the MUU Employee Elected director of MUU. Mr Maccioni was, to his knowledge up until late April 2007, a signatory on the Banksia and MUU accounts. Ms Katrina Jacobson was the Financial Controller of MUU and, until 30 April 2007, was also a signatory on each of the Banksia and MUU accounts. 15 On 4 May 2007, the University Council passed a resolution that the appointments of all members of the board of MUU be rescinded other than those of the University Appointed Board Members and the MUU Employee Elected director. 16 As noted above, on the same day the Court appointed Mr Pogroske official liquidator provisionally of MUU. Venues 17 Venues is a wholly-owned subsidiary of MUU. Venues operates a function centre and a catering business. It also operates a bank account with the NAB (No 577224463) ("Venues account"). 18 As at 3 May 2007, the board of Venues comprised six directors: Victor Ma, Siu Kei Cheung, Annie Tseung and Chi Cheung Wong, and Alfonso Maccioni and Anthony Matis (who is also the Chief Executive Officer of MUU). Mr Maccioni and Mr Matis resigned as directors of Venues on 2 May 2007. Ms Jacobson and Mr Maccioni were signatories to the Venues account. 19 On 8 May 2007 the board of Venues caused Venues to go into voluntary administration and Richard Albarran and Robert Elliott of Hall Chadwick were appointed voluntary administrators. 20 On 10 May 2007, in association with the appointment of Mr Pogroske as official liquidator provisionally, Rares J ordered that the voluntary administration of Venues end. MUSC 21 MUSC is an association incorporated under the Associations Incorporation Act 1984 (NSW) ("the AI Act"). It acts as a student representative body and its objects include providing a recognised means of communication between students and the University. MUSC is unrelated to MUU and Venues although some of MUSC's councillors, including Victor Ma, are also directors of MUU and Venues. 22 The grounds on which the Supreme Court of New South Wales on 17 May 2007 ordered that MUSC be wound up were that it was unable to pay its debts and the just and equitable grounds pursuant to s 51(1)(c) and (j) of the AI Act (Macquarie University v Macquarie University Students' Council Incorporated [2007] NSWSC 510). REASONS FOR ORDERING WINDING UP OF MUU AND VENUES Application to wind up MUU 23 As the University is a member and a contributory of MUU pursuant to cll 1.26(j) and 6(b) of MUU's Constitution, it has standing pursuant to ss 234 and 462(2) of the Act to apply for an order that MUU be wound up. Transfers of funds not in the interests of MUU and Venues 24 In the period 30 April 2007 to 2 May 2007, Ms Jacobson discovered anomalous transfers of moneys out of bank accounts as follows: (a) a sum of $40,000 from MUU's Banksia account on 27 April 2007; (b) a sum of $55,000 from the Venues account on 27 April 2007; (c) a sum of $40,000 from the Venues account on 2 May 2007; (d) a sum of $50,000 from the Venues account on 2 May 2007; and (e) a sum of $30,000 from the MUU account on 2 May 2007. 25 The transfers were made without the knowledge of Mr Maccioni or Ms Jacobson. 26 The sum of $40,000 transferred from the Banksia account on 27 April 2007 was returned to that account on 1 May 2007. 27 Ms Jacobson alerted the board of directors of MUU to the transfers in emails sent on 1 and 2 May 2007. She received responses that were unsatisfactory in that they merely told her that it would be revealed in due course that the transfers had been in order and that she should not concern herself over them. 28 On 4 May 2007, the date of Mr Pogroske's appointment as provisional liquidator of MUU, a further transfer of $88,000 was made from the MUU account to the account of Etienne Lawyers. This was in addition to the $30,000 referred to earlier which had been transferred to Etienne Lawyers on 2 May 2007. This makes $118,000 transferred to Etienne Lawyers, and is amount is the subject of the interlocutory application referred to in [5] above. Mr Pogroske requested the return of both sums from those who appeared to have been the authorised signatories of the accounts: Victor Ma, Ethan Li and Siu Kei Cheung. Mr Pogroske received responses which did not explain why the amounts had been transferred and why they were not being immediately returned. 29 In his affidavit sworn 14 May 2007, Mr Pogroske deposes that he "is not aware of any legitimate purposes for the transfer of the two payments referred to Etienne Lawyers, based on [his] inspection of the books and records of MUU". 30 With respect to amounts transferred from the Venues account, Mr Pogroske deposes in his two affidavits sworn on 14 May 2007 and filed in the Venues proceedings that, based on his investigations and communications with the NAB: (a) the $55,000 transferred on 27 April 2007 was transferred to a bank account held by MUSC; (b) the $40,000 transferred on 2 May 2007 was transferred to a bank account held by MUSC; (c) the $50,000 transferred on 2 May 2007 was transferred to Etienne Lawyers; (d) a further amount of $65,000 was transferred to Etienne Lawyers on 4 May 2007. 31 As can be seen, this makes $115,000 transferred to Etienne Lawyers and $95,000 transferred to MUSC. These are the amounts the subject of the interlocutory applications referred to in [6] above. 32 By letter dated 12 May 2007, Mr Brown of Etienne Lawyers stated to Mr Pogroske that he was not aware of having received any moneys from Venues, and that he did not receive instructions from that company. 33 In his affidavit sworn 14 May 2007 and filed in the Venues proceeding, Mr Pogroske deposes that "[b]ased on [his] investigations into Venues, and inspection of its books and records, [he] is not aware of any legitimate purpose for the transfer of the above monies to MUSC." 34 Further, with respect to the total of $210,000 removed from the Venues account (particularised in [30] above), Mr Pogroske deposes that if those transfers had not been made, Venues would have had sufficient funds to pay a substantial portion of its liabilities owing to MUU. Oppressive and unfair conduct to the detriment of the University 35 Sui Kei Cheung, Chi Cheung Wong and Annie Tseung were appointed as members of the board of directors of MUU on 27 April 2007 without the knowledge of Mr Maccioni. 36 On or about 30 April 2007, Mr Ma and others arranged for Mr Maccioni and Ms Jacobson to be removed as signatories to the MUU, Banksia and Venues bank accounts without the knowledge of Mr Maccioni or Ms Jacobson. 37 When questioned by Ms Jacobson and Mr Pogroske about the transfers referred to above, Mr Ma and certain of the other directors were less than forthcoming. 38 I accept that the transfer of the funds was part of a strategy on the part of Mr Ma and certain of the other directors to remove assets from MUU and Venues into their control through either MUSC or Etienne Lawyers. The purpose of the strategy was to ensure that the assets were placed beyond the reach of the University, and was contrary to the objects of MUU and in breach of the directors' obligations to the membership of MUU as a whole. 39 It is beside the point that Mr Ma and others may have believed that their strategy was morally or politically supportable or that they did not intend to make any personal gain from the funds. Authorities on "just and equitable" and "oppression" grounds for winding up 40 It is appropriate for the Court to exercise its discretion to wind up a company on the just and equitable ground in circumstances where there is "a lack of probity in the conduct of the company's affairs, productive of a justifiable lack of confidence in the administration of the company": Macquarie Bank Ltd v TM Investments Pty Ltd (2005)223 ALR 148 at [11]; see also Deputy Commissioner of Taxation v Casualife Furniture International Pty Ltd (2004) 9 VR 549 at [452]. A justifiable lack of confidence may be shown where directors of a company cause the company to enter into highly irregular and potentially dishonest transactions (Macquarie Bank Ltd v TM Investments Pty Ltd,above, at [16]) or where the history of the conduct of the company indicates a failure to abide by its obligations and by commercial morality in the conduct of the business (Deputy Commissioner of Taxation v Casualife Furniture International Pty Ltd, above, at [504]). An order may be made where a company has not carried on its business candidly and in a straightforward manner with the public or in circumstances where, as here, the company has improperly divested itself of assets in breach of directors' obligations under the Act (Australian Securities and Investments Commission v International Unity Insurance Pty Limited (2004) 22 ACLC 1416, per Lander J at [135] – [139] and cases there cited). 41 Orders for winding up on the oppression ground (whether under s 461 or s 232) may be appropriate where the conduct of a company's affairs is contrary to the interests of the members as a whole or is oppressive to members, whether in their capacity as members or another capacity. A key consideration is whether there has been unfairness in the abuse of majority power or control (Wayde v New South Wales Rugby League Limited (1985) 180 CLR 459 at 472, per Brennan J). Unfairness may be inferred where there is a lack of reasonable commercial justification for the conduct (Jenkins v Enterprise Gold Mines NL (1992) 6 ACSR 539). 42 In the factual circumstances of the present case, the Court's discretion to wind up MUU on the just and equitable ground and the oppression ground, is enlivened and should be exercised in my view. The directors in question have not sought to support their actions on any legally defensible ground. 43 An order to wind up on the just and equitable ground is particularly warranted where the University is considering the restructuring of the provision of services to students by the amalgamation of the operations of MUU, Venues, MUSC and other organisations providing services to students. This restructuring is being considered in the light of the reduction of income to these bodies resulting from the abolition of compulsory upfront student union fees by the Commonwealth government in 2005. Orders for the winding up of student associations on the just and equitable ground (albeit pursuant to s 51 of the AI Act) have been made in circumstances where the association will be unable to continue to provide services in keeping with its objects for the reason that it can no longer fund the services (Re Bankstown Students Association Inc [2005] NSWSC 700; Macquarie University v Macquarie University Students' Council Incorporated [2007] NSWSC 510). 44 It is no satisfactory solution for a fresh election of directors to be held because the directors who have caused the money of MUU to be transferred from its bank accounts may well be re-elected and embark on a similar course of action again. The case is thus not akin to one in which it can be said that the solution of removing the existing directors and replacing them with acceptable ones lies in the hands of the aggrieved party through its controlling voting power as a member. Application to wind up Venues 45 Venues owes MUU $297,745.92. MUU is both the sole shareholder and the largest creditor of Venues. 46 As plaintiff in proceeding NSD 796 of 2007, MUU relies on the matters referred to above as they relate to Venues. 47 In addition, MUU applies for winding up of Venues on the ground of insolvency pursuant to ss 459A and 459P of the Act. That ground is also established in my view. CONCLUSION 48 For the above reasons, I ordered that MUU and Venues be wound up and that, in each case, Mr Pogroske be appointed liquidator. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 31 May 2007 Proceeding NSD 784 of 2007 Counsel for the First and Second Plaintiffs and the First and Second Applicants on the Interlocutory Process: Mr I M Jackman SC and Ms J Shepard Solicitor for the First and Second Plaintiffs and the First and Second Applicants on the Interlocutory Process: Addisons Counsel for the Respondent on the Interlocutory Process: Mr A D Justice Solicitor for the Respondent on the Interlocutory Process: Etienne Lawyers Date of Hearing: 23 May 2007 Date of Judgment: 23 May 2007 Date of Publication of Reasons: 31 May 2007 Proceeding NSD 796 of 2007 Counsel for the Plaintiff and Applicant on the Interlocutory Process: Mr I M Jackman SC and Ms J Shepard Solicitor for the Plaintiff and Applicant on the Interlocutory Process: Addisons Counsel for the First Respondent on the Interlocutory Process: Mr A D Justice Solicitor for the First Respondent on the Interlocutory Process: Etienne Lawyers The Second Respondent on the Interlocutory Process did not appear Date of Hearing: 23 May 2007 Date of Judgment: 23 May 2007 Date of Publication of Reasons: 31 May 2007	6,246
federal_court_of_australia:fca/single/2014/2014fca1348	decision	commonwealth	federal_court_of_australia	text/html	2014-12-10 00:00:00	Australian Postal Corporation v Edwards [2014] FCA 1348	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca1348	2024-09-13T22:52:56.705286+10:00	FEDERAL COURT OF AUSTRALIA Australian Postal Corporation v Edwards [2014] FCA 1348 Citation: Australian Postal Corporation v Edwards [2014] FCA 1348 Parties: AUSTRALIAN POSTAL CORPORATION v VICKY EDWARDS File number: QUD 22 of 2014 Judge: COLLIER J Date of judgment: 10 December 2014 Catchwords: ADMINISTRATIVE LAW – application for review of decision of Administrative Appeals Tribunal setting aside decision of a delegate of the applicant finding applicant not liable to pay employee respondent compensation pursuant to s 16 and s 19 Safety, Rehabilitation and Compensation Act 1988 (Cth) – s 44(1) Administrative Appeals Tribunal Act 1975 (Cth) – applicant also seeking relief pursuant to s 39B Judiciary Act 1903 (Cth) – Tribunal member preferred medical evidence of orthopaedic surgeon favouring respondent's case over evidence of two orthopaedic surgeons supporting applicant's case – whether respondent's condition constitutional or caused by workplace activity – whether amended notice of appeal states valid questions of law – whether Tribunal failed to give adequate reasons for decision – whether Tribunal gave proper consideration to medical evidence of orthopaedic surgeons supporting applicant's case – whether Tribunal failed to take into account relevant factor that one orthopaedic surgeon the respondent's treating doctor – whether decision of Tribunal afflicted by legal unreasonableness – Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Legislation: Administrative Appeals Tribunal Act 1975 (Cth) ss 43(2), 43(2A), 43(2B), 44(2B) Judiciary Act 1903 (Cth) s 39B Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 16, 19 Cases cited: Collector of Customs v Pozzolanic enterprises Pty Ltd (1993) 43 FCR 280 Commissioner of Taxation v Osborne (1990) 26 FCR 63 Hamidi v Minister of Immigration and Ethnic Affairs (unreported, Hill J, 26 July 1996) Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744 Nelson v Commissioner of Taxation [2014] FCAFC 163 Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26 Reece v Webber [2011] FCAFC 33 Repatriation Commission v Owens (1996) 70 ALJR 904 Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121 Date of hearing: 16 May 2014 Place: Brisbane Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 56 Counsel for the Applicant: Mr M Robinson SC with Mr M Gollan Solicitor for the Applicant: Sparke Helmore Counsel for the Respondent: Mr M Black Solicitor for the Respondent: Maurice Blackburn IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 22 of 2014 BETWEEN: AUSTRALIAN POSTAL CORPORATION Applicant AND: VICKY EDWARDS Respondent JUDGE: COLLIER J DATE OF ORDER: 10 DECEMBER 2014 WHERE MADE: BRISBANE THE COURT ORDERS THAT: The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 22 of 2014 BETWEEN: AUSTRALIAN POSTAL CORPORATION Applicant AND: VICKY EDWARDS Respondent JUDGE: COLLIER J DATE: 10 DECEMBER 2014 PLACE: BRISBANE REASONS FOR JUDGMENT 1 At material times Ms Vicky Edwards, the respondent in the matter before me, was employed by the current applicant Australian Postal Corporation ("APC"). Ms Edwards suffered a workplace injury for which APC initially accepted liability. On 3 December 2012 APC made a determination pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) ("the Act") that it was not liable to pay her compensation pursuant to s 16 and s 19 of the Act. The decision was affirmed by a delegate of APC on 13 February 2013. 2 Ms Edwards sought a review of the delegate's decision in the Administrative Appeals Tribunal ("the Tribunal"). On 9 December 2013 the Tribunal found in favour of Ms Edwards and ordered that the delegate's decision be set aside and substituted with a decision that APC be liable to pay Ms Edwards compensation under s 16 and s 19 of the Act. 3 APC has appealed from the Tribunal's decision to this Court pursuant to s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ("AAT Act") and further has sought relief pursuant to s 39B of the Judiciary Act 1903 (Cth). Either way, I note that the matter before the Court falls within the original jurisdiction of the Court and to that extent is not an "appeal" although I will continue for convenience to refer to it as such. 4 Linked with the amended notice of appeal dated 11 February 2014 was a notice of objection to competency filed by Ms Edwards on 30 January 2014. One issue in contention was whether APC's amended notice of appeal was filed out of time. At the hearing however Mr Black for Ms Edwards informed the Court that the required extension of time was not opposed (transcript p 5 ll 15-16) and I ordered that time be extended for the lodgement of the amended notice of appeal pursuant to s 44(2A) of the AAT Act. Accordingly, the respondent did not press the objection to competency (transcript p 47 ll 24-30). 5 I turn now to the substantive issues raised in this matter. Background 6 The background facts are set out in the decision of the Tribunal. It is convenient to repeat the key facts which are not in dispute. 7 Ms Edwards has been employed by APC since October 2006. On 10 February 2012 Ms Edwards was on duty pushing a heavy wheeled bin (known as a "ULD") down a slight slope. According to Ms Edwards, she pushed the ULD off with both her feet and upon doing so felt what she described as "an immediate burning sensation" in her "right Achilles area". She stated that the ULD went off quite suddenly and she had to pull the handle of a pallet jack to stop it. She then claimed to have felt "an aching type pain" in her "left Achilles that came and went". Ms Edwards took her break and reported the incident to her manager. After this she was taken to a first aid room and ice was applied to her ankles. 8 On 11 February 2012 Ms Edwards consulted a doctor and was certified as being unfit for work on that day and the following day. On 13 February 2012 she returned to work and was advised by her manager to sit down and do manual sorting for the day. On 14 February 2012 the facility doctor placed her on restricted seating duties. The Tribunal member found that while she performed those duties on 14 and 15 February 2012 she still had severe pain. 9 On 16 February Ms Edwards went to see another doctor and was given a medical certificate for two days off work due to an ear infection. On 21 February 2012 she saw a doctor who gave her a medical certificate recommending she rest from 21 February 2012 to 27 February 2012. On 2 April 2012 Ms Edwards returned to work, performing duties that did not require lifting anything heavier than 5kg. 10 In March 2012 Ms Edwards consulted Dr Aneel Nihal, an orthopaedic surgeon, who referred Ms Edwards to physiotherapy and anti-inflammatory medication. Ms Edwards' condition did not improve and in August 2012 Dr Nihal recommended that Ms Edwards undergo surgery. 11 On 8 January 2013 APC ceased paying compensation for Ms Edwards' "bilateral Achilles conditions". Medical evidence before the Tribunal 12 The evidence before the Tribunal regarding Ms Edwards' medical condition consisted of the reports of three orthopaedic surgeons, namely Dr Malcolm Wallace, Dr Terence Saxby and Dr Aneel Nihal. 13 It is useful to highlight the key findings of each of the surgeons. 14 In his report dated 22 June 2013, Dr Wallace stated that: Ms Edwards suffers from bilateral Achilles Tendonitis; Ms Edwards has been appropriately investigated and treated conservatively; surgical treatment would likely make Ms Edwards' condition worse if undertaken; ongoing treatment should consist of simple analgesics, anti-inflammatory agents, a heel raise and the avoidance of aggravating activities; Ms Edwards had reached "maximum medical improvement"; Ms Edwards would not be able to return to the type of work which she was doing before or which involves any type of pushing or pulling; and Ms Edwards would be able to do other lighter manual, supervisory or sedentary work. 15 In his report dated 23 August 2013, Dr Wallace stated that: Ms Edwards' condition is as a result of a workplace injury; and Ms Edwards' incapacity for work has resulted from the conditions described in his earlier report as it will involve pulling, pushing and physical work. 16 In his report dated 10 May 2012, Dr Saxby stated: Ms Edwards' condition was right Achilles tendinopathy, right much greater than left; he believed Ms Edwards' condition to be a pre-existing (constitutional) condition; Ms Edwards' work environment including pushing trolleys could be an aggravating factor; Ms Edwards had been treated appropriately for this and it appeared that her aggravation had settled; Ms Edwards should be able to gradually increase her hours and return to normal duties; and Ms Edwards has an underlying problem in her Achilles tendon and this may cause ongoing troubles in the future, but at that stage her aggravation had been dealt with appropriately. 17 Dr Saxby was asked by APC to provide a further report, and was briefed with the two reports of Dr Wallace. In his subsequent report dated 10 September 2013, Dr Saxby stated that: his opinion remained unchanged after examining the reports of Dr Wallace; Ms Edwards had been treated appropriately for the particular aggravation and it would be expected that that aggravation would settle; he believed that any ongoing problems at that stage would be related to the underlying degenerative condition rather than any work-related activity; and any permanent impairment is a result of the underlying condition rather than any work-related component. 18 In his report dated 12 September 2012, Dr Nihal stated that: he agreed with Dr Saxby's comments that Ms Edwards' "Achilles nodular degeneration" was pre-existing and constitutional; heavy work involvement and pushing of trolleys could be considered an aggravating factor; aggravation of Achilles tendonitis, when treated non-surgically, usually takes about 6-8 months to settle; and he agreed with Dr Saxby that Ms Edwards has underlying degenerative problems in both Achilles tendons and this would give her ongoing pain, discomfort and trouble in the future if she continued to be involved in heavy work. 19 In his report dated 26 March 2013, Dr Nihal stated that: clinical examination of Ms Edwards showed that she was extremely tender over both Achilles tendons, had nodules on both tendons which were tender to touch, had tightness of Achilles tendon and was tender over the insertion of Achilles tendon with the calcaneum. Tribunal's findings 20 The Tribunal member found that Ms Edwards has a condition of bilateral Achilles tendonitis which is worse on Ms Edwards' right side. He also found that Ms Edwards has an Achilles nodular degeneration. As to whether Ms Edwards' condition could be considered "constitutional" the Tribunal member noted that: Dr Nihal described the Achilles nodular degeneration as pre-existing and constitutional. Dr Wallace, under cross-examination, did not consider Ms Edwards to have what can be referred to as a constitutional condition in the sense of being "inborn" or "predetermined from within". Dr Wallace was strongly of the opinion that the condition is either inflammatory or traumatic and did not consider that the condition would occur in any case. Dr Wallace was not prepared to agree with Dr Saxby who considered that non-insertional tendinopathy is constitutional in nature. Dr Wallace stated that tendinopathy was not a well understood condition. Ms Edwards' legal representative, in final submissions, accepted that prior to 10 February 2012, Ms Edwards had a constitutional Achilles tendinopathy condition. Ms Edwards had given evidence that the condition was generally asymptomatic apart from when she felt some discomfort in October 2011, mainly in her right ankle when pushing and pulling ULDs. The matter involves a conflict of specialist evidence. Dr Saxby was of the view that any ongoing problems at that stage were due to the underlying degenerative condition rather than any work-related activity. Dr Wallace was of a contrary opinion as he was strongly of the opinion that Ms Edwards' condition was a result of workplace injury and was not shaken from this view in cross-examination. 21 The Tribunal member preferred the evidence of Dr Wallace. The Tribunal member went on to note that despite being briefed with Dr Wallace's reports, Dr Saxby did not point to any reasons why the reports of Dr Wallace should not be relied upon. The Tribunal member concluded that Ms Edwards' condition was related to her workplace injury. Notice of appeal 22 In its amended notice of appeal dated 11 February 2014, APC seeks the following orders: 1. Pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth): a. The appeal be allowed. b. The Tribunal's decision be set aside and the applicant's decision dated 13 February 2013 be affirmed. c. Alternatively, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law. d. Costs. 2. In the alternative, under section 39B of the Judiciary Act 1903 (Cth): a. An order for a writ in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the Tribunal. b. An order for a writ in the nature of prohibition or, alternatively, an injunction preventing the respondent or any of her officers, servants or agents from acting on or taking any further steps in reliance on the decision. c. An order for a writ in the nature of mandamus remitting Tribunal application number 1625/2013 to the Tribunal to be determined according to law. d. … e. Costs. 3. If necessary, an extension of time for these proceedings to be filed, up until the date the first originating process was filed. 23 The questions of law raised by the amended notice of appeal were as follows: 1. Whether the Tribunal failed to provide reasons or lawful reasons for its decision. 2. Whether the Tribunal failed to consider the evidence before it or whether it failed to give proper, genuine or realistic consideration to the said evidence. 3. Whether the Tribunal failed to exercise or complete the exercise of its statutory power when making the decision. 4. Whether the Tribunal failed to take into account a relevant consideration that it was required to take into account. 5. Whether the decision is affected by legal unreasonableness. 24 In seeking these orders, APC relies on the following grounds: 1. The Tribunal failed to give reasons or lawful reasons for its decision in relation to determining that the respondent was suffering from bilateral Achilles tendonitis and in determining to accept the evidence of Dr Wallace over the overwhelming evidence of Dr Saxby and Dr Nihal. 2. In failing to address the evidence or in failing to afford the evidence proper, genuine or realistic consideration in respect of the respondent's treating doctor, Dr Nihal, the Tribunal failed to comply with its statutory obligations under the Administrative Appeals Tribunal Act 1975 (AATA). 3. Having identified that the dispute between the specialists was whether the respondent's condition was constitutional, and having noted Dr Nihal's opinion that it was, the Tribunal failed to take into account a relevant consideration when it considered that Dr Wallace's opinion should be preferred to Dr Saxby's without affording any lawful or proper regard to Dr Nihal's opinion. 4. The Tribunal failed to take into account a relevant consideration that it had to take into account in failing to find that Dr Nihal was a treating doctor of the respondent and that his reports before the Tribunal should have been afforded some additional weight. 5. By failing to express any reasons or findings with respect to Dr Nihal's opinion on the constitutionality of the condition, the Tribunal failed to exercise its statutory power in determining whether the respondent presently suffered from a compensable injury which gave rise to incapacity for work (s 19 of the Act) or a need for medical treatment (s 16 of the Act). 6. The decision is afflicted by legal unreasonableness in that: a. the member failed to give adequate weight to relevant factors of great importance; b. the member gave excessive weight to irrelevant factors of no importance; c. the member reasoned illogically or irrationally; d. the decision lacks evident and intelligible justification. 25 APC also asks the Court to make a finding of fact, namely: 1. That the evidence of Dr Saxby, orthopaedic surgeon and Dr Nihal, orthopaedic surgeon be relied upon and preferred to other medical evidence in the proceedings. Submissions of the parties 26 Both parties in this case were legally represented. In summary, APC submits: the weight of evidence and the opinions of more relevantly qualified experts favours APC; in upholding Ms Edwards' application and setting aside the reviewable decision the Tribunal fell into legal error in that it: ₒ failed to provide lawful reasons for that decision; ₒ failed to take into account relevant considerations; ₒ failed to give any proper, genuine and realistic consideration to the evidence, or indeed reasonably assess the evidence at all; there is no explanation for why the Tribunal failed to accept the evidence of Dr Nihal, who was Ms Edwards' treating doctor and had seen her over a greater period and more regularly than any other doctor; there was no explanation for why the Tribunal failed to accept the evidence of Dr Saxby, who was superior in expertise and had provided reasons for his opinion which were undisturbed; no reason was given by the Tribunal for accepting Dr Wallace's evidence exclusively over that of Dr Saxby and Dr Nihal. The Tribunal provided no analysis of the competing evidence and gave no real explanation for rejecting it; the Tribunal is required to give proper, realistic and genuine consideration to the merits of the case. 27 In opposing the notice of appeal Ms Edwards submits as follows: APC's amended notice of appeal pleads five separate questions of law but the complaints fall into three broad categories: (1) A complaint that the Tribunal failed to give lawful reasons for its decision, in particular preferring Dr Wallace's evidence to that of the other experts. (2) A complaint that the Tribunal failed to give "proper, genuine or realistic" consideration to Dr Nihal's report. (3) A complaint that the Tribunal's decision was unreasonable. In relation to the first category: ₒ failure by the Tribunal to give reasons for preferring some medical evidence to other medical evidence does not constitute an error of law; ₒ in any event the Tribunal did explain why it preferred the evidence of Dr Wallace to that of Dr Saxby; ₒ the rejection of Dr Saxby's evidence sufficed to deal with Dr Nihal's concurring report; ₒ APC's description of evidence of Dr Saxby and Dr Nihal as "overwhelming" cannot be supported. In relation to the second category, the real issue for the Tribunal was the relationship between Ms Edwards' condition or symptoms and her accepted "injury", in particular the causal link. Dr Nihal's report was not a "mandatory relevant matter" to take into consideration. In any event, the Tribunal's decision shows that it was well aware of Dr Nihal's reports and the opinion he expressed. In relation to the third category the Tribunal was engaged in a fact finding exercise, and was not called upon to exercise a statutory discretion. It is clear that a wrong finding of fact is not an error of law, or the attainment of a factual finding by a faulty process. The Tribunal's factual conclusions had a foundation in the evidence and were open having regard to Dr Wallace's evidence. Consideration 28 Section 44(1) of the AAT Act provides that a party to a proceeding before the Tribunal may appeal to the Court on a question of law from any decision of the Tribunal in that proceeding. As has been made clear by the High Court, s 44(1) intends that the merits of a case are dealt with not by the Court but by the Tribunal, this distribution of function being critical to the correct operation of the administrative review process: Repatriation Commission v Owens (1996) 70 ALJR 904 at 904. This point was recently reiterated by the Full Court of this Court in Nelson v Commissioner of Taxation [2014] FCAFC 163 at [11] where their Honours explained: The right of appeal to the Federal Court from a decision of the Tribunal conferred pursuant to s 44 of the AAT Act is of a limited nature only. Pursuant to s 44 of the AAT Act, an appellant can only appeal on a question of law from the Tribunal and an appeal is not competent unless a question is identified that is properly characterised as a question of law. The notice of appeal must disclose that the Court's jurisdiction is enlivened pursuant to s 44 of the AAT Act and if the questions, properly analysed, are not questions of law, the appeal is not competent. The form of their expression does not turn them into questions of law. 29 Question of law (3) as articulated in the amended notice of appeal is somewhat unclear. A bald claim that the Tribunal has failed to exercise or complete the exercise of its statutory power when making the decision is, in in the absence of specific clarification, too vague to constitute a question of law. I am prepared however to read this question of law with the second and fifth grounds of appeal which provide context. 30 I am satisfied that the other questions posed by APC for consideration are, in fact, questions of law. I also note that there is obvious and unsurprising cross-referencing between the questions of law raised and the grounds of appeal upon which APC relies. 31 APC has specifically requested the Court to make a finding of fact, namely that the evidence of Dr Saxby and Dr Nihal be preferred to other medical evidence in the proceedings. In my view the Court has no jurisdiction to make such a finding of fact in the context of an appeal pursuant to s 44(1) of the AAT Act, for the reasons given in Repatriation Commission v Owens and Nelson v Commissioner of Taxation. Further, I am not satisfied that s 39B of the Judiciary Act confers jurisdiction on this Court to make findings of fact contrary to findings of the Tribunal below. 32 It is appropriate to turn to the grounds of appeal raised by APC in this matter. Ground 1: Provision of reasons 33 Section 43(2), (2A) and (2B) of the AAT Act provide: Tribunal must give reasons for its decision (2) Subject to this section and to sections 35 and 36D, the Tribunal shall give reasons either orally or in writing for its decision. (2A) Where the Tribunal does not give reasons in writing for its decision, a party to the proceeding may, within 28 days after the day on which a copy of the decision of the Tribunal is given to that party, request the Tribunal to give to that party a statement in writing of the reasons of the Tribunal for its decision, and the Tribunal shall, within 28 days after receiving the request, give to that party such a statement. (2B) Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based. 34 In considering the obligation of the Tribunal under these sections, it is important for the Court to keep in mind the fact that the Tribunal's reasons should be measured in a reasonable and realistic way, rather than with an eye keenly attuned to the perception of error: Collector of Customs v Pozzolanic enterprises Pty Ltd (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; Sylvan Health Pty Ltd v Minister for Health and Ageing [2010] FCAFC 121 at [44]. 35 APC submits that the Tribunal failed to give reasons why it preferred the evidence of Dr Wallace over the "overwhelming evidence of Dr Saxby and Dr Nihal". In considering APC's case concerning the lack of reasons given by the Tribunal, I make the following observations. 36 First, review of the decision of the Tribunal shows that the Tribunal gave careful consideration to the opinions of the respective surgeons, and further gave reasons for preferring the evidence of Dr Wallace to that of Dr Saxby (and, by implication, Dr Nihal). That this is so is apparent from the reasons of the Tribunal, in particular paragraph 17 where the Tribunal explains: This is a matter in which there is a conflict of specialist evidence. Dr Saxby considers that "any ongoing problems at this stage are related to the underlying degenerative condition rather than any work-related activity". Dr Wallace is of a contrary opinion, he is strongly of the opinion that her condition is a result of the workplace injury as outlined: he was not shaken from that opinion during his extensive cross-examination, despite quite properly acknowledging the expertise of Dr Saxby. This is one reason why I prefer to rely upon the opinion of Dr Wallace. I also comment that Dr Saxby was briefed with both reports of Dr Wallace and while in his most recent report Dr Saxby still maintains his opinion he has not outlined any reasons why the reports of Dr Wallace should not be accepted. I accordingly find in reliance of the reports of Dr Wallace that the present condition of the applicant is related to her workplace injury. 37 This paragraph should be read with earlier paragraphs in the Reasons for Decision. It is apparent that the Tribunal preferred the evidence of Dr Wallace to the evidence of Dr Saxby and Dr Nihal for reasons including: the Tribunal's assessment of Dr Wallace as a witness; the Tribunal's analysis of Dr Saxby's evidence in light of Dr Wallace's report; the uncontroverted opinion of Dr Wallace that tendinopathy was not a well understood condition; the view apparently taken by the Tribunal that APC placed primary reliance on the reports of Dr Saxby rather than those of Dr Nihal. 38 Second, APC's submission that such evidence was "overwhelming" appears referable to the fact that there were two surgeons whose views supported APC's case, the "superiority in expertise" of Dr Saxby over Dr Wallace as an orthopaedic surgeon, and the fact that Dr Nihal was Ms Edwards' treating orthopaedic surgeon. However, determination of the question whether the evidence of Dr Saxby and Dr Nihal was "overwhelming" involves a value judgment on the facts of this case. Even if I were to accept that this issue raised a question of law, I note the submissions on behalf of the respondent that the evidence was not "overwhelming" because, in summary: Dr Saxby conceded that the incident with the ULD may have caused the symptoms that he thought were related to a pre-existing condition to come on sooner than they might otherwise have done. The only explanation Dr Saxby advanced as to why he considered the symptoms experienced by Ms Edwards were related to a pre-existing condition rather than the workplace injury was that her work aggravation would have been expected to settle. Dr Nihal's written report of 12 September 2012 essentially agreed with Dr Saxby's views. 39 In my view the respondent's submissions have merit. However even if the Tribunal erred in its conclusions on the facts, such error does not in itself constitute an error of law. As Hill J observed in Hamidi v Minister of Immigration and Ethnic Affairs (unreported, Hill J, 26 July 1996) at [11] an arguably wrong finding of fact does not bring into existence a question of law. A similar point was made by the Full Court in Minister for Immigration and Multicultural Affairs v Al-Miahi (2001) 65 ALD 141; [2001] FCA 744 at [34]. 40 Third, that the Tribunal viewed the evidence of Dr Saxby as the lead medical evidence for APC is apparent from the manner in which the Tribunal referred to Dr Nihal's reports (for example, at [12] and [13] where the Tribunal noted that Dr Nihal's reports were "in evidence") compared with the observation of the Tribunal at [9] that APC had obtained two reports from Dr Saxby. The references of the Tribunal were made in light of the fact that Dr Nihal's reports were not prepared for the purposes of the Tribunal proceedings, and he – unlike Dr Saxby – did not have the opportunity to comment on Dr Wallace's reports. Certainly the manner in which APC's case was conducted in the Tribunal supports this inference. Dr Nihal was not called to give evidence at the hearing. Further, in the Tribunal the cross-examination by Counsel for APC of Dr Wallace concentrated primarily on the differences between the evidence of Dr Wallace and Dr Saxby, with only relatively few questions to Dr Wallace concerning Dr Nihal's evidence (transcript 21 November 2013 p 27 l 39 – p 29 l 10). 41 I accept the submission of Mr Black for Ms Edwards that it followed that if the Tribunal preferred the evidence of Dr Wallace to that of Dr Saxby, it would similarly prefer Dr Wallace's evidence to that of Dr Nihal and, indeed, that is what happened. 42 Fourth, the issues raised by APC are suggestive of an application for review of the reasons of the Tribunal on its merits. APC submits, for example, that the Tribunal has not given lawful reasons for finding against APC where: Dr Saxby was superior in expertise to Dr Wallace; Dr Saxby was "not shaken" in his evidence; Dr Nihal was Ms Edwards' treating orthopaedic surgeon; and the opinions of its two orthopaedic surgeons who gave evidence on behalf of APC should be preferred to the opinion of Ms Edwards' one orthopaedic surgeon. 43 These are all issues which go to the merits of the case. Certainly it is well-settled that the weight given by the Tribunal to evidence before it, both oral evidence and documentary, is a matter for the Tribunal as an incident of its role as the arbiter of fact: Wu Shan Liang at 272. To adopt comments of Jagot J (Nicholas J agreeing) in Rawson Finances Pty Ltd v Commissioner of Taxation (2013) 133 ALD 39; [2013] FCAFC 26 at [119]: The Tribunal was entitled to weight the evidence as it saw fit provided that in so doing it did not lose sight of the decision it had to make … and reached conclusions that were reasonably open on the evidence. 44 Ground 1 is not substantiated. Grounds 2, 3, 4 and 5: Having regard to the evidence 45 Grounds 2, 3, 4 and 5 all raise questions relating to whether the Tribunal has taken into account relevant considerations. Grounds 2 and 3 invite a finding that the Tribunal has failed to give "proper" consideration to evidence of Dr Nihal, whereas grounds 4 and 5 refer to the failure of the Tribunal to take into account that Dr Nihal was Ms Edwards' treating doctor whose opinion (including with respect to the constitutionality of Ms Edwards' condition) should have been given additional weight. 46 It is well-settled that in exercising its function the Tribunal must take into account relevant considerations: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1996) 162 CLR 24. That the Tribunal has an obligation to give evidence before it proper, genuine or realistic consideration is clear from such cases as Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291; [1987] FCA 457 and more recently Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164. A helpful articulation of this obligation was that of Gummow J in Khan at [33] where his Honour warned against: consideration so limited as to be indicative of a perfunctory and cursory consideration rather than a proper genuine and realistic consideration of what was a substantial element in the merits of the particular cases … 47 Turning to the specific issues raised in these grounds of appeal, it is clear from the reasons of the Tribunal that the Tribunal did consider Dr Nihal's evidence. Indeed the Tribunal quoted extensively from Dr Nihal's medical reports. That the Tribunal did not later specifically refer to Dr Nihal's evidence when concluding that it preferred Dr Wallace's evidence does not, in my view, mean that it failed to take Dr Nihal's evidence into account at that stage of the decision. As I noted earlier, it is apparent that the medical opinions of Dr Saxby and Dr Nihal coincided as to the medical condition of Ms Edwards. Insofar as APC claims a failure of the Tribunal to perform its obligations under s 43(2B) of the AAT Act in failing to specifically discuss Dr Nihal's reports in further details, it is relevant to note the observation of the Full Court in Commissioner of Taxation v Osborne (1990) 26 FCR 63 at 65 where Pincus J (Spender and French JJ agreeing) said: A breach of that provision is not necessarily shown by pointing to matters which might, with advantage, have been the subject of fuller and more detailed discussion or to possible issues which have not been mentioned. Where there are (as is usual in the Tribunal) no pleadings or other documents formally defining the questions which the parties desire to have decided, subs (2B) does not necessarily and always require discussion of every point which might have been raised before the Tribunal, whether or not it has been argued. 48 Second, and notwithstanding ground (4), the Tribunal recognised that Dr Nihal was Ms Edwards' treating orthopaedic surgeon at [4] of the Reasons for Decision. In my view APC's actual concern expressed in that ground of appeal related to the weight given by the Tribunal to Dr Nihal's evidence. This is not a case where there was no medical evidence to support the decision of the Tribunal. The conclusions of the Tribunal were open on the evidence, and the Tribunal in so concluding explained that it preferred the evidence of Dr Wallace. I am satisfied that the Tribunal engaged with the question for decision and the evidence before it as part of an active intellectual process and that these obligations were not the subject of perfunctory and cursory attention. The approach APC invites the Court to take in finding that the Tribunal should have given different – presumably determinative – weight to the evidence of Dr Saxby and Dr Nihal, would entail this Court improperly reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions (cf comments of the High Court in Minister for Immigration and Citizenship v SZJSS at [36]). 49 Third, as I have already noted, Dr Nihal was not called to give evidence in the proceeding before the Tribunal, Dr Nihal was not provided with Dr Wallace's report for comment, and it is apparent that APC relied primarily on the evidence of its expert Dr Saxby (with whom Dr Nihal agreed). In these circumstances I am not satisfied that the Tribunal erred in failing to make findings in relation to Dr Nihal's opinion concerning the constitutionality of Ms Edwards' condition. As the Full Court observed in Reece v Webber [2011] FCAFC 33 at [65]: … a failure to expressly mention particular material is not conclusive that it has not been taken into account. A decision-maker is not normally required in its reasons for decision to refer to "every item of evidence that was before it" and an "omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked … 50 In my view these grounds are not substantiated. Ground 6: Unreasonableness 51 In ground (6) APC claims that the decision of the Tribunal was afflicted by legal unreasonableness in the sense explained by the High Court in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, in that the Tribunal failed to give adequate weight to relevant factors of great importance, gave excessive weight to irrelevant factors, reasoned illogically or irrationally and delivered a decision without evidence and intelligible justification. 52 In my view none of these criticisms have merit. Placing to one side the principle that questions of weight are always issues of fact for the decision-maker, I am unable to see that: the Tribunal gave weight to matters of "no importance" and gave no weight to matters of "great" importance. A plain reading of the Reasons for Decision of the Tribunal indicates that the Tribunal assessed all of the evidence before it and reached a conclusion based on that evidence. the Tribunal acted illogically or irrationally, or delivered a decision without evidence and intelligible justification. There was evidence before the Tribunal supporting its decision, namely the evidence of Dr Wallace. The Tribunal gave reasons for its decision in accepting the evidence of Dr Wallace. While perhaps the reasons of the Tribunal could have been more detailed, there is adequate material in the Reasons for Decision to indicate why the Tribunal preferred the evidence of Dr Wallace. As was observed in Wu Shan Liang at 272 the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. 53 The High Court in Li explained the relevance of unreasonableness in the context of an exercise of a statutory discretion. The statutory discretion exercised by the Tribunal was in respect of finding relevant facts. However a faulty process of reasoning in determining facts does not, of itself, constitute an error of law: Rawson Finances Pty Ltd v Commissioner of Taxation. In any event in this case it is not apparent that the process of reasoning of the Tribunal in determining the facts was faulty. The Tribunal formed a view, open on the material before it. It is not for the Court to second-guess that decision. 54 It is clear that APC disagrees with the decision of the Tribunal. As the High Court observed in a different context in Minister for Immigration and Citizenship v SZJSS at [34]: It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it. 55 I am not persuaded that the decision of the Tribunal in this case, including in its treatment of Dr Nihal's evidence, can be described as illogical or unreasonable. In my view ground (6) is not substantiated. Conclusion 56 As I noted earlier in this judgment it is not appropriate for the Court to determine the question of fact APC sought the Court to answer. Further, the questions of law raised by APC were valid, although in my view they should be determined in Ms Edwards' favour. The appropriate order in this case is to dismiss the application dated 11 February 2014 containing the amended notice of appeal, with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 9 December 2014	8,673
federal_court_of_australia:fca/single/1995/1995fca0507	decision	commonwealth	federal_court_of_australia	text/html	1995-07-20 00:00:00	Pilkington (Australia) Ltd v The Anti-Dumping Authority & Anor [1995] FCA 507	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1995/1995fca0507	2024-09-13T22:52:57.169844+10:00	IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES REGISTRY ) No. G 672 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PILKINGTON (AUSTRALIA) LIMITED Appellant AND: THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER OF STATE FOR SCIENCE AND SMALL BUSINESS Second Respondent COURT: LOCKHART, LEE & BEAZLEY JJ. DATE: 20 JULY 1995 PLACE: SYDNEY MINUTE OF ORDER THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. There be no order as to the costs of any party of the proceeding at first instance or on appeal. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES REGISTRY ) No. G 672 of 1994 ) GENERAL DIVISION ) ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: PILKINGTON (AUSTRALIA) LIMITED Appellant AND: THE ANTI-DUMPING AUTHORITY First Respondent THE MINISTER OF STATE FOR SCIENCE AND SMALL BUSINESS Second Respondent COURT: LOCKHART, LEE & BEAZLEY JJ. DATE: 20 JULY 1995 REASONS FOR JUDGMENT THE COURT: On 7 April 1995 we delivered our reasons for judgment in this matter, Lockhart and Beazley JJ. publishing joint reasons and Lee J. publishing his reasons. For the reasons which were given in our judgments we said that we proposed to uphold the appeal in so far as it related to the exports from Indonesia, but otherwise to dismiss the appeal. We said also that we would not make orders on 7 April 1995 but would do so when the parties had filed and served written submissions in relation to the relief which ought to be granted by the Court. Written submissions have been received by the Court from the appellant and the respondents. We have considered them and examined the question of relief for ourselves. The question of the appropriate orders to make is not an easy one. The application of the appellant which commenced this proceeding under the ADJR Act sought orders to review "the decision" of the Anti-Dumping Authority pursuant to s. 7 of the Anti-Dumping Authority Act 1988 "to determine the export price for clear float glass exported to Australia from Indonesia purportedly pursuant to para. 269TAB(1)(a) of the Customs Act 1901" and the "decision" of the Minister "to adopt and implement [that] determination of export price". The function of the Anti-Dumping Authority under s. 7 of the Anti-Dumping Authority Act was to consider the question referred to it by the Comptroller of Customs, namely, whether the publication of the dumping duty notice sought in respect of the goods the subject of the application was justified. Section 7(1) of the Anti-Dumping Authority Act instructs the Authority to hold an inquiry and give a report to the Minister - (a) recommending whether any such notice should be published and the extent of any duties that are, or should be payable, under the Anti-Dumping Act; (b) in particular, recommending whether the Minister ought to be satisfied as to the matters in respect of which the Minister is required to be satisfied before such a notice can be published; and (c) give all reasons for any recommendations. The Authority's report to the Minister (Report No. 81, 10 September 1992) recommended that the Minister - (a) take anti-dumping action against exports of glass from Indonesia by Asahimas; (b) sign an instrument under s. 269TAC(2)(c) of the Customs Act to establish normal values; (c) sign instruments under s. 269TG of the Customs Act declaring that s. 8 of the Customs Tariff (Anti-Dumping) Act 1975 applies to exports of clear float glass from Indonesia; (d) sign an instrument under s. 8(5) of the Customs Tariff (Anti-Dumping) Act declaring that the dumping duty be ascertained by reference to the lower of the full dumping duty or the amount necessary to increase the export price to the non-injurious free on-board price. On 15 October 1992 the Minister made and published a declaration pursuant to s. 269TG(1) of the Customs Act; a declaration pursuant to s. 269TG(2) of the Customs Act; determined normal values pursuant to s. 269TAC(2)(c) of the Customs Act for goods exported to Australia from Indonesia by Asahimas for the calendar years 1991 and 1992 and published notice of that determination; and made a direction and published notice of the amount of dumping duty to be imposed pursuant to s. 8(5) of the Customs Tariff (Anti-Dumping) Act. The last direction and notice seems a little odd. Section 8(5) of the Customs Tariff (Anti-Dumping) Act requires the Minister by signed notice to direct that the element of interim dumping duty in respect of particular goods be ascertained, if interim duty is payable in respect of those goods. The notice published by the Minister on 15 October 1992 is not such a direction. Pursuant to s. 8 of the Customs Tariff (Anti-Dumping) Act (sub-ss. (2) and (6)), dumping duty is payable on goods by virtue of a notice under ss. 269TG(1) and 269TG(2) of the Customs Act and is calculated in the manner set out in s. 8(6). Pursuant to s. 8(3) an interim dumping duty is payable, pending final assessment of the dumping duty payable, on the goods the subject of a notice under s. 269TG(1) or (2) of the Customs Act. Whether the applicable provision is subsection (5) or (6) of s. 8 the Minister is required to ascertain the export price of the goods concerned. However, there is no provision for the Minister to give notice of the ascertainment of that export price. Returning to the "decisions" of the Authority and the Minister sought to be reviewed by the appellant, none of the actual decisions of these parties is contested, namely, the recommendation to the Minister to take anti-dumping action against exports of glass from Indonesia by Asahimas; the recommendation that the Minister establish normal values under s. 269TAC(2)(c) of the Customs Act; the recommendation that the Minister make a declaration under s. 269TG(1) and (2) that dumping duty applies to exports of clear float glass from Indonesia, and the decisions by the Minister to implement those recommendations. The manner of calculating the export price under s. 269TAB(1) of the Customs Act in the Authority's report may have been conduct leading to the making of a decision and reviewable under s. 6 of the ADJR Act but, as mentioned above, it was not the appellant's case that the actual decisions of the Authority were flawed by reason of that treatment. In particular, there is no attack upon the determination of normal value effected by the Minister under s. 269TAC(2)(c) of the Customs Act. Asahimas and Asahi Glass are no longer parties to the application and do not contend that the Minister incorrectly ascertained export prices in calculating the amount of dumping duty to be imposed pursuant to s. 8(2) and (5) or (6) of the Customs Tariff (Anti-Dumping) Act. The only decisions made by the Authority and the Minister that were based upon a consideration of export price were the respective decisions that anti-dumping action should be taken. No attack is made on those decisions. Furthermore, the calculation of normal value has been reviewed and at least one fresh decision has been made on that matter. No attack has been made upon that process. The review was carried out under s. 269TAD of the Customs Act. (See Powerlift (Nissan) Pty Ltd v Minister for Small Business, Construction and Customs (1993) 40 FCR 332.) Section 269TAD of the Customs Act was repealed on 1 January 1993 by s. 6 of the Customs legislation (Anti-Dumping Amendments) 1992, but s. 17 of that Act provides that s. 269TAD continues to apply to dumping notices published before the date of repeal of that section. In the circumstances the only appropriate order is that the appeal be dismissed. Notwithstanding that no specific orders are made by the Court, the reasons of the Court will assist the Minister properly to ascertain export prices for the purpose of the Customs Tariff (Anti-Dumping) Act. As to costs, in our opinion each party should bear its or his own costs of the proceeding at first instance and of this appeal. The appropriate order for costs is that there be no order as to the costs of any party of the proceeding at first instance or of the appeal. I certify that this and the preceding six (6) pages are a true copy of the reasons for judgment herein of the Court . Associate Dated: 20 July 1995 Counsel for the Applicant: Mr Walker SC with Mr Speakman Solicitors for the Applicant: Messrs C.G. Gillis & Co. Counsel for the Respondents: Mr Robertson with Ms Abadee Solicitors for the Respondents: Australian Government Solicitor Date of Hearing: 22 February 1995 Date of Judgment: 20 July 1995	2,091
federal_court_of_australia:fca/single/1997/1997fca1084	decision	commonwealth	federal_court_of_australia	text/html	1997-10-22 00:00:00	Health Services Union of Australia v North Eastern Health Care Network Health Services Union of Australia v Western Health Care Network [1997] FCA 1084	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca1084	2024-09-13T22:52:57.295058+10:00	FEDERAL COURT OF AUSTRALIA INDUSTRIAL LAW - award breach proceedings pursuant to s 178 of the Workplace Relations Act 1996 (Cth) ("the Act") - whether failure to comply with awards. INDUSTRIAL LAW - "mainstreaming" of Victorian public mental health services - whether respondents became successors, assignees or transmittees of part of the business of the State of Victoria under s 149(1)(d) of the Act - whether the provision of mental health services by the State of Victoria can constitute "the business or part of the business" within the meaning of s 149(1)(d) of the Act - whether performance of a governmental function or activity under statutory duties and powers may constitute a "business or part of the business" - whether transmission of a business or part of a business on the facts - whether the Australian Industrial Relations Commission had ordered that s 149(1)(d) did not have any relevant application. WORDS AND PHRASES - "Subject to any order of the Commission" - "business" - "part of the business". Workplace Relations Act 1996 (Cth) ss 149, 170LB Mental Health Act 1986 (Vic) ss 97, 94 Health and Community Services (Nursing, Health Care and Associated Groups) Interim Award 1994 Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995 Nurses (Victorian Health Services) Award 1992 Hayman v Neill [1960] AR 363, considered Manly v Gazal Clothing Co Pty Ltd [1973] AR 547, considered Crown Employees Roads & Traffic Authority (NSW) (Officers Salaries & Conditions) Award, Re (1989) 29 IR 120, disapproved Australian Industrial Relations Commission, Re: Australian Transport Officers Federation, Ex p (1990) 171 CLR 216, applied R v Commonwealth Conciliation & Arbitration Commission; Professional Engineers', Australia, Ex p (1959) 107 CLR 205, considered Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (Industrial Relations Court of Australia, Marshall J, 31 October 1995, unreported), applied Gregory v Phillip Morris Ltd (1988) 80 ALR 455, applied HEALTH SERVICES UNION OF AUSTRALIA v NORTH EASTERN HEALTH CARE NETWORK VI 4914 of 1995 HEALTH SERVICES UNION OF AUSTRALIA v WESTERN HEALTH CARE NETWORK VI 1275 of 1997 MARSHALL J MELBOURNE 22 OCTOBER 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY BETWEEN: HEALTH SERVICES UNION OF AUSTRALIA Applicant AND: NORTH EASTERN HEALTH CARE NETWORK Respondent VI 4914 of 1995 BETWEEN: HEALTH SERVICES UNION OF AUSTRALIA Applicant AND: WESTERN HEALTH CARE NETWORK Respondent vi 1275 of 1997 JUDGE: MARSHALL J DATE: 22 october 1997 PLACE: MELBOURNE REASONS FOR JUDGMENT HIS HONOUR: There are two applications before the Court pursuant to s 178 of the Workplace Relations Act 1996 (Cth)("the Act") in which the applicant, Health Services Union of Australia ("the Union"), seeks the imposition of a penalty upon each respondent, North Eastern Health Care Network ("North Eastern") and Western Health Care Network ("Western"), for the alleged failure of each respondent to comply with two awards made by the Australian Industrial Relations Commission ("the Commission"). Prior to the substantive hearing I ordered that the two matters be heard together and granted the State of Victoria leave to intervene pursuant to s 470 of the Act. The relevant awards alleged to have been breached by North Eastern are: · Health and Community Services (Nursing, Health Care and Associated Groups) Interim Award 1994 ("the 1994 Award"); and · Victorian Health and Community Services (Psychiatric, Disability and Alcohol and Drug Services) Award 1995 ("the 1995 Award"). It has also been alleged that Western breached the 1995 Award. The Union sought the imposition of penalties upon North Eastern for its alleged failure to pay certain benefits to one of its members, Ms Christine Carson. The benefits concerned are the payment of the correct shift penalty and commuted allowance under the 1994 Award. The Union also sought the imposition of penalties upon Western for its alleged failure to provide substituted leave days to one of its members, Mr Anthony Grant Rule, pursuant to the 1995 Award. Mr M Bromberg, of counsel, appeared for the Union. Ms M Young, of counsel, also appeared for the Union for part of the proceedings. Dr C N Jessup QC with Mr L Kaufman, of counsel, appeared for North Eastern. Mr Kaufman also appeared for Western. Mr A G Uren QC with Mr T J Ginnane, of counsel, appeared for the State of Victoria. Mr Bromberg invited the Court to make certain declarations in each matter on the basis that if the Court was minded to make those declarations, it should not proceed to deal with the quantum of any underpayment (if any) or the imposition of any penalty, pending a further hearing in which the parties would have the opportunity to make submissions concerning issues relevant to quantum and penalty. Whilst contending that the applications should be dismissed, Dr Jessup, Mr Kaufman and Mr Uren did not initially oppose the Court, as a first step, considering whether to make the declarations sought by the Union. Later, Dr Jessup submitted that the Court should not make any declarations unless it was clear that the applications would not ultimately be dismissed. BACKGROUND FACTS (a) General Oral evidence was adduced by the parties and the intervener from the following witnesses: Witness Who called Heather Lexie Bella Anderson The Union Christine Carson The Union Jerry Hall The Union Anthony Grant Rule The Union David William Stephens The Union Carol Joy Sainsbery North Eastern John Ross Lucas North Eastern Bhargavi Mitchell-Dawson North Eastern Patricia Saunders Western George Michael Shaw Western Wendy Elizabeth Murphy State of Victoria Alan Hall State of Victoria The Court also received evidence by affidavit from the following persons: Julie Louise Sharrock George Szlawski Margaret Jean Fitzherbert Graham John Clay Robert Jan Burnham In general, the background facts were not in dispute. In outlining the relevant background facts I have had regard to the uncontroverted evidence. Reference to particular witnesses by name will only be made when it is material to do so. The State of Victoria has responsibility pursuant to the Mental Health Act 1986 (Vic) to facilitate the provision of mental health services to mentally ill persons resident within the State. Although the Mental Health Act does not require the State to exclusively provide such services directlyitself, until recent years, it historically did so. Although some psychiatric wards were to be found in some public hospitals prior to the mid-1990s, mental health services in Victoria were generally provided from large State run psychiatric hospitals in a custodial care environment. In 1993 the State Government commenced a major review of Victoria's mental health system. In April 1994 the then Minister for Health, the Hon M Tehan MP, "launched" a document entitled Victoria's Mental Health Services: The Framework for Service Delivery published by the Psychiatric Services Division of the Department. That document stressed that the Government's policy on mental health had as an integral plank the concept of "mainstreaming" of public mental health services. This involved the gradual replacement of large psychiatric hospitals with a range of services co-located with general hospitals and other community based services. The 1993 review identified three core components of the State's mental health system. They were: · children and adolescent services; · adult services (i.e. services for persons aged from 16 to 64 years of age); and · geriatric or aged person services. Part of the services provided to adults requiring mental health services are acute inpatient services. Such services include bed-based services to acutely mentally ill adults. In mid 1994 the relevant State Government Department, then known as Health and Community Services (now styled Human Services) ("the Department"), prepared advertisements to be placed in the Age and Herald-Sun newspapers seeking expressions of interest from "... organisations interested in managing a component of Victoria's Mental Health Services." The expressions of interest advertisement continued as follows: "The delivery of services is organised through nine rural and metropolitan regions and comprises a mix of inpatient and community based services. Regional services are typically delivered through smaller units known as 'Area Based Mental Health Services'. Expressions of interest are sought from organisations interested in taking responsibility for mental health services that are currently directly managed by H&CS including: · Adult services for people typically aged between 16 and 64 years. · Aged persons services for people typically over 65 years. · Child, adolescent and family mental health services. Non-government organisations (NGO's) are invited to express interest in the future management of disability support services that are currently managed directly by H&CS. NGO's are not required, however, to express interest in the ongoing management of services which they currently manage. Organisations which already provide services on behalf of H&CS (such as general hospitals) must express interest in the continued provision of those services. Future managers of mental health services will be required to operate services in a style and manner consistent with the requirements described in the document Victoria's Mental Health Services - The Framework for Service Delivery. Guidelines relating to the preparation and submission of an expression of interest can be obtained from the appropriate H&CS Regional Director as listed below:" Following the above introduction a list of contact people, addresses and phone numbers was set out. The "expressions of interest" advertisement, although referring to "management" of services, clearly envisaged the actual provision and operation of services by interested organisations. It specifically referred to a requirement to "operate services" in a particular style. What were being sought by the Department were not expressions of interest from organisations seeking merely to manage components of the State's mental health services but to actually provide and operate them. "Management" in this context is a euphemism for "provision and operation". In June 1994, the Department published a document which contained "guidelines for submitting expressions of interest to manage a component of the Victorian Mental Health Services". The guidelines made it clear that a proposal was able to be lodged for "a single service element" of the State's mental health services. More specific "expressions of interest" advertisements were placed in the relevant newspapers later in 1994. For example, on 3 December 1994 an expressions of interest advertisement appeared in the Age newspaper calling for responses from organisations "... interested in taking on responsibility for and managing the Central East (Adult) Mental Health Services." Relevantly to the applications before the Court, the following expressions of interest, inter alia, were sent to the Department from: · Preston and Northcote Community Hospital ("PANCH"), dated 17 December 1994, to "manage" the adult mental health services in the Central East area; and · Western Hospital, dated 25 July 1994, with respect to "... service elements of mental health services for the Western Metropolitan Region." (b) PANCH/North Eastern By letter dated 2 February 1995, the Department advised the thenChief Executive Officer of PANCH, Dr Ian Brand, that the Minister for Health had given "in principle endorsement for negotiations to proceed for the delivery by your agency of the following services: ..." The letter then set out in the following style the relevant services: " Service Element Region Catchment Area 1. 25 Bed Acute Inpatient Unit Eastern Metropolitan Region LGA's of Box Hill, Nunawading, Templestowe, Doncaster, Waverley 2. Crises Assessment and Treatment Services As Above As Above 3. Mobile Support and Treatment Services (yet to be established) As Above As Above 4. Continuing Care, Clinical and Consultancy Service As Above As Above ". PANCH was accepted by the Department as the auspice agency for the Central East Area Mental Health Service. On 28 March 1995, a proclamation was made under s 94(2) of the Mental Health Act proclaiming Upon House as an approved psychiatric unit with effect from 9 April 1995. The "25 Bed Acute Inpatient Unit" referred to in the letter of 2 February 1995 was a reference to a building known as "Upton House". Upton House is a facility which was built within the perimeter of the Box Hill Hospital in or about 1993. On 18 April 1995, Upton House commenced to receive patients. Those patients were transferred from North Ward 5 at the Larundel campus of the North East Metropolitan Psychiatric Services ("NEMPS") in Bundoora. The employees who commenced to work at Upon House to provide mental health services to adult inpatients were transferred from North Ward 5. Those persons were made available to PANCH pursuant to s 97 of the Mental Health Act which allows the Department to: "... make available to a person, association or organization providing mental health services the services of any person ... employed in the Department under the Public Service Act 1974." Ms Sainsbery is the Manager, Psychiatric Services for North Eastern. She gave evidence that, prior to 18 April 1995, the adult mental health services for the Central East catchment area were provided by the Department from the NEMPS campus. She also testified that, after 18 April 1995, that the Department no longer provided any services out of NEMPS in relation to adult mental health services for the Central East catchment area. Those services, Ms Sainsbery said, were provided by PANCH until August 1995 when PANCH amalgamated with various other hospitals to form North Eastern. Ms Sainsbery testified that, on 6 June 1995, the Department and PANCH executed the "NEMPS Redevelopment Interim Transition/Service Agreement" to apply for the period 18 April 1995 to 30 June 1995. Under cross-examination, Ms Sainsbery said the reason for the interim agreement was: "... because the services(sic)was taken over in February of the year, so there was an interim agreement until the end of that financial year..." On 24 July 1995, a Health Services Agreement was made between the Department and PANCH pending the finalisation of a further agreement by August 1995 for the year 1995/1996. That agreement referred to the hospital managing and providing mental health services listed in Schedule 1 thereto for a designated catchment area. The services and the catchment area corresponded to those which PANCH, according to Ms Sainsbery, became responsible for in February 1995. The agreement also dealt with the transfer of employees, equipment assets and medical records. Mr Lucas is the Executive Director of the Department of Psychiatry at Maroondah Hospital. He was previously the Director of Nursing Services at NEMPS until October 1995. He testified that, on or after 18 April 1995, the acute adult inpatient services that were provided at North Ward 5 at NEMPS were no longer provided there but were thereafter provided at Upton House. He said that a "relapse patient" attending at North Ward 5 after 18 April 1995 would be re-directed to Upton House. Mr Lucas testified that after 18 April 1995, the services that had previously been provided at North Ward 5 were after that date relocated to Upton House. Ms Mitchell-Dawson is the senior psychiatric nurse for North Eastern. In her evidence in chief Ms Mitchell-Dawson was asked to recall when the patients at North Ward 5 relocated. She replied that "to the best of my recollection Ward North 5 moved to Upton House." At the Larundel campus of NEMPS, prior to mainstreaming, there was a general practice of admitting patients to certain wards based on where the patients lived. This was described by Mr Lucas as "loose admission geographical criteria". Mr Jerry Hall, one of the employees formerly located at North Ward 5 who was transferred to Upton House, gave evidence that five of the wards at Larundel were catchment based but that "from time to time patients from outside the catchment area of the ward would be cared for". This latter happening occurred due to bed shortages and the occasional need to separate certain patients. As well as the five catchment based acute inpatient wards there was a ward at Larundel known as "A Ward". A Ward was a locked acute inpatient ward for high dependency patients. It received patients from all over the State. There was also a unit known as the "Professorial Unit", which was a specialised unit which treated persons with conditions such as eating disorders. North Ward 5 was a twenty-five bed acute inpatient unit with a one bed seclusion room. The catchment area consisted of the former local government areas of Box Hill, Doncaster, Templestowe, Nunawading and Waverley and parts of Warrandyte. The catchment area for North Ward 5 immediately prior to 18 April 1995 was the same catchment area as applied to Upton House on and from 18 April 1995. Relocation of North Ward 5 to Upton House was planned about two years prior to it actually occurring. In the year prior to relocation NEMPS engaged in a "matching process" where it specifically asked staff to nominate their preference for future employment at particular relocated services. The staff were then placed in a particular ward which would relocate to a particular area. For example, those staff who wished to relocate to Upton House requested placement in North Ward 5. The majority of existing staff within North Ward 5 at the commencement of the matching process expressed a preference to stay at North Ward 5 in preparation for relocation to Upton House. During the matching process and beyond, in preparation for the move to Upton House, the geographical admission criteria was tightened so that the patients treated at North Ward 5 became almost exclusively from the catchment area for the Central East area. The evidence disclosed, however, that catchment areas are adjusted from time to time having regard to population changes. In late 1992 or early 1993 "Crisis and Assessment Teams" were established in catchment areas. Those teams worked in the community in their relevant areas and often directly admitted patients to wards. The Crisis and Assessment Team for the Central East Area Mental Health Service was established in August 1994. It was based in Upton House and operated from there in advance of Upton House being opened as an inpatient unit. A "Mobile Support and Treatment Service" was established by North Eastern with respect to the Central East area in November 1995. This service had no equivalent in any service previously operated by the Department. Ms Sainsbery agreed, under cross-examination, that all other services which were provided by PANCH/North Eastern after 18 April 1995, had previously been provided by the Department. On 18 April 1995, most of the patients at North Ward 5 were transferred to Upton House. Some patients were allowed to go home for the week-end and come to Upton House the following week. All North Ward 5 nursing staff moved to Upton House. Two domestic staff were recruited from other wards at NEMPS. All relevant documents (including patient records) and necessary paper work were transferred to Upton House from NEMPS. NEMPS letterhead continued to be used for a while until replaced by Upton House stationery. Food for use at Upton House was brought in from the Box Hill Hospital kitchen. At NEMPS, food for North Ward 5 was brought in from a kitchen outside the ward at Larundel. At North Ward 5 security was provided as part of the NEMPS emergency system. Originally at Upton House security was provided by a contractor. It is now provided by Box Hill Hospital. The four bed acute admission faculty, or high dependency unit, at Upton House had no equivalent at North Ward 5. Patients who are treated in that unit would formerly have been treated at A Ward at the Larundel campus of NEMPS. Further, Upton House invoices other auspice agencies when patients from their catchment areas are treated at Upton House. As Mr Lucas testified, "after the first 24 hours you invoice them for the bed day rate and any other additional costs." This is because North Eastern only receives departmental funding for patients for the Central East catchment area. After 18 April 1995, North Ward 5 closed for a short time for some minor refurbishment. It is currently used as an extended care unit to house patients requiring rehabilitation. That service is shortly to be relocated in Dandenong, according to Ms Mitchell-Dawson. Ms Carson is currently employed by North Eastern as a registered psychiatric nurse at the Central East Area Mental Health Service, Upton House. She was an employee of the Department until July 1995 and worked at the Royal Park campus of NEMPS for two and a half years before July 1995. Towards the end of March 1995 Ms Carson applied for a position at Upton House which she knew was coming into operation. In June 1995 she was offered a position at Upton House. Ms Carson requested a transfer under s 97 of the Mental Health Act but was told by an officer of the Department that she would have to resign from it to take up her position with what was then PANCH. Ms Carson commenced her employment with PANCH at Upton House on 23 July 1995. In the period 14 to 27 August 1995 she was required to work weekends and public holidays but testified that she did not receive a commuted allowance which was available to employees who were entitled to benefits of the 1994 award and the 1995 award. Ms Carson also claimed that she did not receive the correct shift penalty for afternoon shifts which she was required to work on 14, 15 and 21 August 1995. Under cross-examination Ms Carson acknowledged that she was aware upon taking up employment with PANCH that her employer would apply the Nurses (Victorian Health Services) Award 1992 ("the Nurses Award") to her employment. The Nurses Award bound PANCH in respect of employment by it of nursing staff. (c) Western Western Hospital's expression of interest document expressed interest in the mental health service in the Western Metropolitan Region for the South-West and Mid-West areas. Those service elements included "GENERAL ADULT" services constituted by: · crisis assessment and treatment; · mobile treatment and support; · continuing care, clinical and consultancy; and · acute inpatient. On 30 June 1995, Western Hospital was advised by the Department that it was successful in its application "to manage and control" the relevant services. A transitional Health Services Agreement was sent to Western Hospital by the Department "to enable a seamless mainstreaming of services on 1 July, 1995." Western Hospital was thus accepted by the Department as the auspice agency for the South-West and Mid-West acute adult mental health service. On 11 July 1995, a proclamation was made under s 94(2) of the Mental Health Act proclaiming: "... the whole of the property situated at 160 Gordon Street, Footscray, formerly gazetted as the Footscray Psychiatric Hospital, to be an approved psychiatric unit known as the Western Hospital Psychiatric Unit from 13 July 1995." On 1 August 1995, Western came into existence as a result of an order of the Governor in Council which effectively amalgamated Western Hospital and certain other hospitals to form Western. Prior to 1 July 1995, the adult mental health services for the Mid-West and South-West regions were provided directly by the Department. These services were chiefly provided at Footscray Psychiatric Hospital which operated as a fifty bed acute inpatient hospital. The hospital was a free standing building located in Gordon Street, Footscray. The first floor consisted of a ward where mental health inpatient services were provided to patients from the Mid-West catchment area. An occupational therapy area was contained on the second floor. The third floor consisted of a ward where mental health inpatient services were provided to patients from the South-West catchment area. An eight bed high dependency unit was located on the ground floor. There was also a community mental health clinic in each of the catchment areas which referred patients to the hospital. In late 1993 or early 1994, a Crisis Assessment Team was established. Initially, it was based on the ground floor of the hospital but some six months later it became based at the two clinics. Mr Rule is a state enrolled psychiatric nurse who is an employee of Western. He commenced work at the Gordon Street site in April 1993 as an employee of the Department on a short fixed term contract. He was employed pursuant to several such contracts and on 1 July 1995 was made available to Western Hospital in the same manner as Ms Carson was made available to North Eastern, namely pursuant to s 97 of the Mental Health Act. Mr Rule testified that the provision of acute adult inpatient services did not alter in any significant way after 1 July 1995. The venue for the provision of services remained. No patients were discharged as a result of the change in service provider. There was some variation in the catchment areas but not to any significant extent. Mr Rule remained an employee of the Department until 23 December 1995 when he was offered permanent employment by Western. As a condition of acceptance of the offer, Mr Rule was required to resign from the Department. Since becoming an employee of Western, Mr Rule has had the Nurses Award applied to his employment. He testified that he has not enjoyed the benefit of substituted leave in recognition of his inability to take public holiday leave as those days occur, which he would otherwise have been granted under the 1995 Award. Under cross-examination, Mr Rule acknowledged that the manner of delivery of the allied health services provided to the catchment areas had altered after June 1995 and that the position of area manager had replaced the former positions of Director of Nursing and Assistant Director of Nursing. During re-examination, Mr Rule testified that his work had not changed on a day to day basis since July 1995 and that nothing had changed apart from some managerial changes and the relocation of some services. Ms Saunders is the Area Manager for the Midwest Area Mental Health Service of Western. She testified that altered health services are now provided by staff based in the community rather than at the Gordon Street site. She also testified that the services provided by the unit had not changed as a result of such relocation. Ms Saunders gave evidence that instead of there being a clinical nurse specialist when the Department ran the service, there is now a clinical nurse consultant with additional duties. She agreed with Mr Bromberg that the services which began to be provided on or about 1 July 1995 by Western Hospital, and then Western, were the services that had been provided by the Department. Mr Shaw is a senior officer with Western whose previous positions included the position of Operations Manager for the Division of Psychiatry at Western Hospital. Mr Shaw testified, inter alia, that the community care unit in St Albans was operated by Western Hospital and although it was in the process of being established by the Department in 1994, it had not been operated by it. Mr Shaw agreed with Mr Bromberg that each of the services provided to the relevant catchment areas by Western when it took over responsibility for those services corresponded to a service previously provided by the Department. Mr Shaw also testified that motor vehicles and other assets had been transferred to Western Hospital from the Department. THE MAIN COMPETING CONTENTIONS It was submitted by Mr Bromberg that PANCH, later known as North Eastern, became a successor, assignee or transmittee of part of the business of the State of Victoria when it commenced to operate the acute adult mental health services for the Central-East region of metropolitan Melbourne. It was also submitted by Mr Bromberg that Western Hospital, later known as Western, became a successor, assignee or transmittee of part of the business of the State of Victoria when it commenced to operate the acute adult mental health services for the Mid-West and South-West regions of metropolitan Melbourne. Central to these submissions is the application of s 149(1)(d) of the Act to the facts and circumstances which I have described. Mr Bromberg contended that an identifiable economic activity, i.e. the provision of acute adult mental health services in identifiable regions, was transmitted from the State of Victoria to each of the respondents. It followed, on his submission, that in each matter a part of the business of the State of Victoria had been transmitted to each respondent. Consequently, it was submitted, North Eastern became bound by the 1994 Award and the 1995 Award and that Western became bound by the 1995 Award. Counsel for each respondent and the intervener contended that the direct provision of mental health services by the State of Victoria did not constitute a "business" within the meaning of s 149(1)(d) of the Act. Section 149(1) of the Act outlines the persons bound by awards by providing as follows: "Subject to any order of the Commission, an award determining an industrial dispute is binding on: (a) all parties to the industrial dispute who appeared or were represented before the Commission; (b) all parties to the industrial dispute who were summoned or notified (either personally or as prescribed) to appear as parties to the industrial dispute (whether or not they appeared); (c) all parties who, having been notified (either personally or as prescribed) of the industrial dispute and of the fact that they were alleged to be parties to the industrial dispute, did not, within the time prescribed, satisfy the Commission that they were not parties to the industrial dispute; (d) any successor, assignee or transmittee (whether immediate or not) to or of the business or part of the business of an employer who was a party to the industrial dispute, including a corporation that has acquired or taken over the business or part of the business of the employer; (e) all organisations and persons on whom the award is binding as a common rule; and (f) all members of organisations bound by the award." (Emphasis added) Counsel for the respondents and the intervener also contended that on the facts of each matter there was no transmission of business even if the provision of mental health services by the State was said to constitute a business. Additionally, they submitted that in making the 1994 Award and the 1995 Award the Commission had effectively ordered that s 149(1)(d) of the Act not have any relevant application. This last submission relies upon the opening words of s 149 of the Act that the section is "[s]ubject to any order of the Commission". DID THE PROVISION OF MENTAL HEALTH SERVICES IN THE RELEVANT AREAS CONSTITUTE "THE BUSINESS" OR "PART OF THE BUSINESS" WITHIN THE MEANING OF SECTION 149(1)(d)? Dr Jessup submitted that for part of a business to be transmitted, it must be capable of itself constituting a business. He referred the Court to the judgments of the New South Wales Industrial Commission in Hayman v Neill [1960] AR 36 at 368 and Manly v Gazal Clothing Co Pty Ltd [1973] AR 547 at 551. In both these cases the New South Wales Industrial Commission ("the NSW Commission") dealt with the meaning of the words "any part thereof" relating to the word "business" in the context of the transmission provisions of the Long Service Leave Act 1955 (NSW). Hayman decided that if any employer merely sold part of the machinery it used in its business there would not be a transmission of business. Manley applied Hayman. I do not doubt the correctness of Hayman but it is of little assistance in the unusualcircumstances of the matters before this Court. It is not suggested that the State of Victoria merely sold equipment to the respondents or made equipment available to them. The respondents conducted operations formerly conducted by the State in the relevant regions. The real question for determination is whether what the State formerly conducted can be described as a business within the meaning of s 149(1)(d) of the Act. Dr Jessup contended that the word "business" connotes a commercial venture which is market-driven and undertaken by business persons. He described the billing process undertaken by health care networks in respect of treatment of patients from outside their catchment areas as "fringe indications of commercial transactions". He initially submitted that government activity cannot be business although later contended that the government can be in business but that the mere fact that it employs people to provide services to the community does not mean it is thereby in business. Dr Jessup highlighted the fact that s 149 (1)(d) of the Act refers to "business" and not what he submitted was the broader concept of an "undertaking" which is referred to elsewhere within the Act, such as in the definition of "industry" in s 4 of the Act. The intervener at paragraph 22 of its written submissions contended as follows: "The provision of mental health services by the State is not an activity which forms part of a business within the meaning of s 149 of the Industrial Relations Act 1960(sic). The State has in that regard been involved in the performance of a Governmental function or activity under statutory duties and powers. That is a public function, not a business." In support of that proposition that intervener cited Crown Employees Roads & Traffic Authority (NSW) (Officers Salaries & Conditions) Award, Re (1989) 29 IR 120 at 139, a judgment of Hill J of the NSW Commission. Crown Employees concerned an application by the Public Service Association of New South Wales ("PSA") for an award governing the salaries and conditions of employment of officers employed by the Roads and Traffic Authority of New South Wales ("RTA"). At the time RTA was a new statutory authority which performed the functions of the former Commissioner for Main Roads ("DMR"), the Traffic Authority ("TA") and many of the functions of the Commissioner for Motor Transport ("DMT"). Leave to intervene in the award application was granted to the Australian Transport Officers Federation ("ATOF"). ATOF's interest was in respect of a substantial number of its members who were formerly employed by DMT and at the time of the application, the RTA. ATOF applied for an adjournment of the PSA application until its notification of industrial dispute had been dealt with federally. Hill J heard and determined ATOF's adjournment application and an application by PSA for an interim award. Hill J said at 139: "In my opinion there were no businesses or undertaking conducted by DMR, DMT, or TA but rather performance by statutory bodies, representing the Crown, of various governmental functions and activities of the Crown... The words 'business' or 'undertaking' are quite inapt to describe the activities." Hill J effectively held that ATOF was not eligible to enrol employees of RTA. A directly contrary conclusion was reached by the High Court in Australian Industrial Relations Commission, Re: Australian Transport Officers Federation, Ex p (1990) 171 CLR 216 in full knowledge of the judgment of Hill J which is referred to at 228 as providing "a comprehensive review" of the relevant "reorganisation". It was submitted to the High Court in ATOF by an unsuccessful party that the relevant successor clause in ATOF's eligibility rules did not apply because the activities of the DMT did not amount to a business and if they did such business was and remains with the Crown: see at 225 and 226. The High Court at 228 rejected that submission. Consequently, I do not regard the judgment of Hill J as good authority for the proposition stated at paragraph 22 of the intervener's written submissions which, I have noted, was also contended for by the respondents. The judgment of Hill J is no longer good law, if it ever was. Mr Bromberg, in reply, referred the Court to the definition of "single business" in s 170LB of the Act in support of his proposition that activities carried on by a State can be considered to be a business for the purposes of the Act. It would be a strange result if a certified agreement could be made under the Act in circumstances where a State might be a party to the agreement in respect of a business but that business would not be able to constitute a business within the meaning of s 149(2)(c) of the Act. Section 149(2)(c) of the Act provides that: "An award that is constituted by a certified agreement ... is binding upon an employer who is a successor, assignee or transmittee (whether immediate or not) to or of the whole or part of the business of a party, including a corporation that has acquired or taken over the whole or part of the business of the party." I see no basis for construing the words "part of a business" in any different way in s 149(2)(c) to the way they should be construed in s 149(1)(d). The submission that the exercise of a public function cannot constitute a business is reminiscent of the submission rejected by the High Court in R v Commonwealth Conciliation & Arbitration Commission; Professional Engineers', Australia, Ex p (1959) 107 CLR 208 that what is governmental cannot be industrial. At 236, Dixon CJ noted that the phrase "industrial dispute" was "very wide and flexible". Similarly, in my view, "business" is also a word of wide import. In ATOF the High Court said that at 226: "Of all words, the word 'business' is notorious for taking its colour and its content from its surroundings... Its meaning depends upon its context." In the context of s 149 of the Act I see no basis for the restrictive interpretation of "business" contended for by the respondents and the intervener. Activities of a State constituted by the employment of persons and the provision of services to the public do not cease to be "business" merely because they are not generally conducted for profit. The Act provides for the making of awards and agreements which apply to business conducted by States. There is no reason to suggest that s 149(1)(d) or s 149(2)(c) of the Act should be interpreted in some different or special way when a State transmits certain of its functions to another entity in circumstances where award application consequences arise for affected employees. I find that the provision of mental health services in the relevant area by the State did constitute "part of the business" within the meaning of s 149(1)(d) of the Act. WAS THERE A TRANSMISSION OF PART OF THE BUSINESS OF THE STATE TO NORTH EASTERN? Being of the view that the activities engaged in by the State of Victoria in the provision of adult mental health services in the Central East area prior to 18 April 1995 constituted part of the business of the State within the meaning of s 149(1)(d) of the Act, it is necessary for the Court to consider whether North Eastern became a successor, assignee or transmittee of part of that business. For convenience I will describe that question as whether there was a transmission of that part of the business of the State on or after 18 April 1995. I have no difficulty in finding that such a transmission occurred. On 18 April 1995 PANCH (which later formed part of North Eastern) took over responsibility for the provision of adult mental health services for the Central East area, which services immediately prior to 18 April 1995 were being provided by the State. In ATOF the High Court considered the meaning of the words a "successor or assignee or transmittee of the business of" in examining the eligibility rule of a registered organisation. At 230 the High Court said: "... on the reading of the clause which we favour, the ultimate issue is whether there is a substantial identity between the old activities and those now carried on by the RTA which correspond with the old activities." Dr Jessup essentially submitted that the Court should not treat ATOF as laying down a test for the Court to apply for the purposes of interpreting s 149 of the Act. In Australian Federation of Air Pilots v Skywest Airlines Pty Ltd (31 October 1995, Industrial Relations Court of Australia, unreported) I dealt with a similar submission made on behalf of the respondent in that case. At 8 I said as follows: "Mr Parry submitted that the Court should pay little regard to the decision in ATOF because it concerned the interpretation of an eligibility rule. I reject that submission. It is well established that eligibility rules should ordinarily be construed generously. See for example, Re Anti-Cancer Council, Ex parte State Public Service Federation (1992) 175 CLR 442, 448. However, there is no indication in ATOF that the Court approached the meaning of the relevant rule in any special way because it was considering an eligibility rule. I agree, with respect, with the views of the Full Bench of the Australian Industrial Relations Commission ("the Commission") in Meat & Allied Trades Federation of Australia v Australasian Meat Industry Employees Union (1995) 58 IR 90 where at 94 the Full Bench said of ATOF: "... The Court in that instance was free to place a liberal construction on the relevant union rules. However the Court's reasoning would appear to be no less applicable to construction of the corresponding terms of that Act, which were alluded to in the same passage of the decision ..." The relevant part of the legislation to which the Full Bench was referring was s 61(d) of the former Act which was in materially identical terms to s 88ZB(1)(c) of the former Act." I am content to adhere to what I said in Skywest. I received no cogent submission as to why I should not do so. In ATOF the relevant rule was in materially identical terms to the relevant part of s 61(d) of the Conciliation and Arbitration Act 1904 which was the predecessor provision to s 149 of the Act. The Conciliation and Arbitration Act did not refer to "part of a business" in s 61(d) as s 149 of the Act now does. However, that distinction makes no difference to the utility of the Court's reference to the approach of the High Court in ATOF. It is beyond dispute that there was a substantial identity between the old activities carried on by the State in the provision of adult mental health services for the Central East area immediately prior to 18 April 1995 and the provision of those services by PANCH on 18 April 1995. Immediately prior to 18 April 1995 persons requiring adult inpatient mental health services from the Central East catchment area were cared for at North Ward 5 at NEMPS. On 18 April 1995 those patients and the large bulk of the staff who provided those services from that day were transferred to Upton House. I accept the evidence of Ms Sainsbery and Mr Lucas that, after 18 April 1995, the Department no longer provided any services out of NEMPS in relation to adult mental health services for the Central East catchment area and that those services were provided by PANCH and, from August 1995, by North Eastern. As well as the transfer of employees, equipment, assets and medical records were transferred to Upton House. As Ms Mitchell-Dawson put it, "Ward North 5 moved to Upton House". An element of the provision of adult mental health services for the Central East area is the Crisis and Assessment Team. The Crisis and Assessment Team was operational some eight months prior to 18 April 1995. It was part of the business of the Department on 17 April 1995 and became part of the business of PANCH on 18 April 1995. The matters referred to above illustrate the substantial identity between the relevant prior activities of the State and those of PANCH/North Eastern. Such "substantial identity" is not diluted by focusing on some operational differences between activities carried on at North Ward 5 and those carried on at Upton House referred to in the relevant background facts set out above, for example, the existence of the four bed acute admission facility at Upton House. Subject to the issues dealt with under the later heading of whether the Commission otherwise ordered, I am of the view that there was, on 18 April 1995, a transmission of part of the business of the State (consisting of its provision of adult mental health services for the Central East area) to PANCH. WAS THERE A TRANSMISSION OF PART OF THE BUSINESS OF THE STATE TO WESTERN? The fact that there was a transmission of that part of the business of the State which provided adult mental health services for the South-West and Mid-West areas is easy to discern. On 1 July 1995 Western Hospital commenced to conduct what was prior to that day part of the business for the State, i.e. the provision of adult mental health services for the South-West and Mid-West areas of metropolitan Melbourne. I accept the evidence of Mr Rule that the provision of acute adult inpatient services at the Gordon Street premises did not alter in any significant way after 1 July 1995. The occurrence after the date of transmission (i.e. 1 July 1995) of some managerial changes and the relocation of some services does not affect the fact that there was a substantial identity between the old activities relevantly carried on by the State immediately prior to 1 July 1995 and the activities carried on by Western Hospital on 1 July 1995. I accept the evidence of Ms Saunders that the services which were provided by Western Hospital on 1 July 1995 were the services that had previously been provided by the Department. I also accept the evidence of Mr Shaw that each of the services provided to the relevant catchment areas by Western when it took over responsibility for those services corresponded to a service previously provided by the Department. HAS THE COMMISSION OTHERWISE ORDERED? Counsel for the respondents and the intervener submitted that s 149(1)(d) of the Act had no application to the maters before the Court because the Commission in making the 1994 Award and the 1995 Award effectively determined that s 149(1)(d) of the Act should not apply. They relied upon the opening words in s 149(1) of the Act which provides, immediately prior to describing persons bound by awards, that the sub-section is: "Subject to any order of the Commission ...". (a) The 1994 Award Mr Kaufman submitted that from its very terms it is obvious that the 1994 Award was only intended to apply to the State of Victoria. He referred in that context to the inclusion in that award of provisions that applied specifically to public servants. He submitted that it was "an award peculiar and unique to the Victorian Public Service". He noted that the 1994 Award included, by reference, the provisions of the Victorian Public Service Regulations in force as at 27 October 1992. He acknowledged that the 1994 Award was an interim award, designed to maintain the status quo, which included the operation of relevant public service conditions found in Public Service Board determinations and the State Public Service Personnel Management Manual. Counsel also referred to the fact that the 1994 Award in terms was made binding on the employer side upon (at clause 2(1)): "The Crown in Right of the State of Victoria in respect of all employees of the Department of Health and Community Services (Victoria) eligible to be members of the ... [relevant unions]." I do not consider that an award tailored to meet the circumstances of employment of employees by a particular employer cannot apply to another employer upon the transmission of part of the business of the first employer to the second. I do not accept that in the making of an employer specific award the Commission should be considered to have made an order ousting the effect of s 149(1)(d) of the Act. It will not often be known with any certainty when an award is made whether an employer bound by it will transmit part of its business to another entity. If the other entity finds the provisions of the award unsuitable to its business, it is open to it to apply to the Commission to have the award varied or set aside in so far as it applies to it. If it was the intention of the Commission in making the 1994 Award it would have been an easy task for it to provide that s 149(1)(d) of the Act did not apply by adding a provision which had that effect. No such clause found its way into the 1994 Award. I find that, in making the 1994 Award on 15 August 1994, the Commission did not intend to oust the operation of s 149(1)(d) of the Act. (b) The 1995 Award The 1995 Award was made on 9 February 1996 with retrospective effect to 1 March 1995. Clause 3 of the 1995 Award provides that: "This award shall apply to the employment of all employees of the Crown in the Right of the State of Victoria, including temporary employees, part-time employees and casual employees, engaged in the performance of work in or in connection with industries and/or industrial pursuits of health and community services, and in or about places where such industries and/or related pursuits are undertaken, and in particular: (a) Psychiatric and mental health services; and/or (b) Intellectual Disability services; and/or (c) Alcohol and Drug related services." Clause 5 of the 1995 Award provides that: "This award shall be binding upon: (a) the Crown in the Right of the State of Victoria in respect of all its employees for whom provision is made in this award, (b) the Health Services Union of Australia in respect of all employees employed pursuant to this award." Mr Kaufman referred the Court to certain clauses in the 1995 Award which show that it was intended to apply to public servants only. This is unsurprising having regard to the content of the scope and parties bound clauses referred to above (cls 3 and 5 respectively). Apart from one aspect, to which I will now turn, there is no relevant basis to treat the argument that the 1995 Award was not intended to attract the operation of s 149(1)(d) of the Act any differently to the same argument raised in the context of the 1994 Award. That one aspect was the submission of Dr Jessup that the transcript of the proceedings in the Commission which led to the making of the 1995 Award indicates that it was not the intention of the parties to the award that it attract the operation of s 149(1)(d) of the Act upon a relevant transmission. On a superficial reading of the relevant parts of the transcript that submission is not unattractive. However, on a thorough and close analysis of that transcript I do not believe it can be said that it was the unambiguous intention of the parties to what became the 1995 Award to exclude it being applied to other entities upon a transmission of part of the business of the State. The relevant hearing before the Commission took place on 17 October 1995 before Senior Deputy President MacBean. Mr Stephens, an industrial officer employed by the Union, testified that prior to that hearing a document was prepared by the parties which included a draft cl 3 of the draft award. The draft clause did not include the words "the Crown in the Right of the State of Victoria" but was otherwise identical to what became cl 3 of the 1995 Award. When cls 3 and 5 of the 1995 Award are read together, it is difficult to discern what work the additional words do. As a result of the wording of cl 5, the Award could not apply at its making to any employer other than the State. The additional words were added at the suggestion of counsel for the State, Mr McDonald, after the solicitor for the Victorian Hospitals Industrial Association, Mr Szlawski, had raised the issue of mainstreaming of mental health services. The relevant transcript was in evidence before me as Exhibit DWS-6 to the affidavit of Mr Stephens, which is Exhibit KK in the proceedings. At 98-99 of the transcript, Mr Szlawski acknowledged that: "... at this stage public hospitals are clearly not respondent (sic) to this award. This award covers public servants and s 97 staff. The union is seeking to perhaps change the situation in the future, ...". After somewhat vaguely adumbrating his concerns, Mr Szlawski was interrupted at 101 by MacBean SDP who said: "Yes. I think you are really foreshadowing something further down the track as it were in regard to this problem of the two awards operating side by side." Mr Szlawski relevantly replied: "Well, quite. Our position is quite clear on that. Obviously this is - I am just putting it in a base (sic) of setting the scene so to speak, your Honour. ... Obviously, I do not propose to take it any further before you today, because this is not the appropriate forum for it." Shortly thereafter Mr McDonald, at 102, suggested that the extra words referred to above be inserted in cl 3 to: "... address the particular point which Mr Szlawski raises." Apart from those extra words not making any difference to the combined meaning of cls 3 and 5, it was not clear on a fair reading of the transcript as to whether Mr Szlawski was making any point of immediate consequence rather than foreshadowing a point that if State services were mainstreamed into public hospitals, the public hospitals would seek to argue on another day that the award that was in the process of then being made should not apply to employees of public hospitals. Mr Stephens submitted to the Commission, at 103, that the matter as to what would follow for award application purposes upon mainstreaming was a matter of "significant disagreement between the parties at the moment." The Senior Deputy President then said that: "I would be surprised if it was otherwise." The Senior Deputy President enquired of Mr Stephens whether he objected to the extra words sought by Mr McDonald. Mr Stephens replied to the effect that he did not know what Mr Szlawski's problem was. MacBean SDP then said: "If it makes him happy and does not upset you, well there is no problem." Mr Stephens replied: "Let him have it." I do not consider that any fair minded reader of the transcript, upon a thorough analysis of it, would be able to form the view that the parties to the 1995 Award intended to oust the operation of s 149(1)(d) of the Act and ensure that it did not apply in the event of mainstreaming. As the transcript shows, what would apply in that event was a matter for future debate. Consequently, I find that the Commission did not order that s 149(1)(d) of the Act has no application to the 1995 Award. AWARD APPLICATION CONSEQUENCES The Nurses Award has application to employees of North Eastern and Western. The 1995 Award also applies to employees of North Eastern who are engaged in the provision of adult mental health services for the Central East area and employees of Western engaged in the provision of the services of the Mid-West and South-West regions. The appropriateness of the 1995 Award or the Nurses Award applying to such employees was a matter raised in evidence. At an early stage in the proceedings Dr Jessup objected to the Court receiving such evidence on the basis that it was irrelevant to any issue in the proceedings. I admitted the evidence as I was not at that stage sufficiently confident that it was irrelevant. It consisted of evidence then given by Ms Anderson for the Union. An uncontested affidavit in reply sworn by Ms Sharrock was filed by each respondent. The evidence contained in it appears to be at odds with the thrust of Ms Anderson's evidence. On reflection I now consider that such material is not relevant to the legal questions which I am required to determine in these proceedings. The appropriateness of the 1995 Award's application as against the application of the Nurses Award is a matter which can be addressed by the relevant parties before the Commission. The situation where two awards govern the terms and conditions of employment of certain employees, whilst relatively unusual, is not an unknown one. In those circumstances, the employer is obliged to accord to its employees the better conditions in respect of the matters dealt with in the awards, thus obeying all its obligations. It is not the function of this Court to determine which award is more appropriate. ANCILLARY ISSUES (a) Certified Agreements with the Nurses Award as the Parent Award The respondents referred the Court to material which was supplied to the Commission during the making of certified agreements. One such certified agreement was made between PANCH on the one hand and the Union and the Australian Nursing Federation ("ANF") on the other. It appears that the parties to that agreement submitted to the Commission that the Nurses Award applied to the employees covered by the agreement. Whether or not that is so, as it plainly is, it is not an issue which this Court must consider in determining the application of s 149(1)(d) of the Act to the facts and circumstances of the applications before it. The application of that agreement upon the 1995 Award was dealt with by Mr Bromberg in reply. However, it is not a matter that I find necessary to deal with in answering the legal questions that are relevant to these proceedings. Even if certain officials of the Union had formed a view that the 1994 Award and the 1995 Award did not apply to the respondents, that view, if it existed, would not bind the Court in the way it dealt with the applications now before it. (b) Use of European and United Kingdom Decisions on the Transmission Issue Mr Bromberg, in support of his submission that relevant transmissions had occurred, referred the Court to several European and United Kingdom judgments. All such judgments, of course, dealt with statutory frameworks different to that provided for in the Act and, in particular, s 149(1)(d) thereof. I agree with Mr Uren QC that those judgments are of no assistance to the Court. As is evident from what I have dealt with above, I believe that the appropriate test, with some modification for the focus on "part of a business", is the one referred to in ATOF and adopted in Skywest. I note in passing that Skywest was affirmed on appeal: see Skywest Airlines Pty Ltd v Australian Federation of Air Pilots (1996) 69 IR 362. However, the Full Court of the Industrial Relations Court of Australia did not find it necessary to deal with the application of the "substantial identity" test referred to in ATOF. IS IT APPROPRIATE TO MAKE A DECLARATION AS SOUGHT BY THE UNION? The Union submitted that if I agreed with its submission I should make declarations giving effect to my findings. At an early stage of the proceedings there was no objection from the respondents to that course. However, on the second last day of the hearing, Dr Jessup referred to the Court to the following passage of the joint judgment of Wilcox and Ryan JJ in Gregory v Phillip Morris Ltd (1988) 80 ALR 455 at 482: "By way of an alternative to specific performance, the appellant seeks a declaration that his employment was not lawfully terminated. There are circumstances in which the making of a declaration upon such a matter may serve a useful purpose; for example, where some ancillary benefit can thereby be obtained. But in this case, if specific performance is refused, the making of a declaration will not achieve any useful purpose. We bear in mind what was said by Barwick CJ and Jacobs J in Neeta (Epping) Pty Ltd v Phillips (1974) 141 CLR 286 at 397; 3 ALR 151 at 168: 'Unless the parties are agreed on the consequences which flow from a declaration that such a contract has or has not been validly rescinded it is generally undesirable that the court should so declare without any orders for consequential relief.' That comment was made about a contract for the sale of land. It seems to us that it applies even more strongly to a case where a contract of employment has been breached in circumstances of industrial tension." Dr Jessup effectively submitted that if the Court was prepared to make certain declarations sought by the Union it should not do so unless it was confident that the Union would succeed in showing that the relevant awards were breached. On the basis of the observations of Wilcox and Ryan JJ in Gregory I do not consider it appropriate to make any declarations at this stage as I do not have sufficient evidence before me to conclude that the 1994 Award and the 1995 Award have been breached as alleged in the applications. In my view it is preferable that these matters be adjourned for directions at a future date which gives the parties sufficient time to absorb the consequences for them of this judgment and enable them to, if possible, reach some form of agreement about the future conduct of each proceeding. I will therefore order that the matters be adjourned for a directions hearing before me at 9.45 am on Monday 10 November 1997. I certify that this and the preceding twenty-eight (28) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall Associate: Dated: 22 October 1997 Appearances for VI 4914 of 1995: Counsel for the Applicant: M Bromberg with M Young Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: Dr C N Jessup QC with L Kaufman Solicitor for the Respondent: G Szlawski, Victorian Hospitals' Industrial Association Counsel for the Intervener A G Uren QC with T J Ginnane Solicitor for the Intervener Victorian Government Solicitor Appearances for VI 1275 of 1997: Counsel for the Applicant: M Bromberg with M Young Solicitor for the Applicant: Maurice Blackburn & Co Counsel for the Respondent: L Kaufman Solicitor for the Respondent: Phillips Fox Counsel for the Intervener A G Uren QC with T J Ginnane Solicitor for the Intervener Victorian Government Solicitor Dates of Hearing: 28-29 August 1997, 1-5 September 1997 Date of Judgment: 22 October 1997	13,196
federal_court_of_australia:fca/single/2000/2000fca0266	decision	commonwealth	federal_court_of_australia	text/html	2000-03-04 00:00:00	Eastley v Mauger [2000] FCA 266	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2000/2000fca0266	2024-09-13T22:52:58.668657+10:00	FEDERAL COURT OF AUSTRALIA Eastley v Mauger [2000] FCA 266 DANIEL CLIFFORD EASTLEY & ORS v EDWIN MAUGER & ANOR N 782 of 1999 SACKVILLE J 2 MARCH 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 782 OF 1999 BETWEEN: DANIEL CLIFFORD EASTLEY APPLICANT AND: EDWIN MAUGER RESPONDENT JUDGE: SACKVILLE J DATE: 2 MARCH 2000 PLACE: SYDNEY THE COURT ORDERS THAT: 1. Pursuant to s 86A of the Trade Practices Act 1974 (Cth) ("TP Act") which is attracted to this case by virtue of s 75AS of the TP Act, these proceedings be transferred to the District Court of New South Wales. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 782 OF 1999 BETWEEN: DANIEL CLIFFORD EASTLEY APPLICANT AND: EDWIN MAUGER RESPONDENT JUDGE: SACKVILLE J DATE: 2 MARCH 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 I propose to make an order pursuant to s 86A of the Trade Practices Act 1974 (Cth) ("TP Act") which is attracted to this case by virtue of s 75AS of the TP Act, transferring these proceedings to the District Court of New South Wales. 2 The applicant's case as pleaded includes a claim under Part VA of the TP Act. However, my impression is that that claim is subsidiary to the claim founded on breach of duty. The District Court is well suited to determine the claim which, in substance, arises under State law. 3 I note that there is no question that the District Court of New South Wales has the power to grant the remedies that are sought by the applicant in these proceedings. 4 There is no opposition to the course that has been proposed. In my view it is in the interests of justice that the order should be made. 5 It follows that s 86A(2) of the TP Act is satisfied. I therefore make an order that the proceedings be transferred to the District Court. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville. Associate: Dated: 2 March 2000 Counsel for applicant: Mr C E Moore Solicitor for applicant: Peter Long & Co Counsel for first respondent: Mr R J Colquhoun Solicitor for first respondent: Robert Johns Solicitor appearing for Mr W A D Vorbach second respondent: of Ebsworth & Ebsworth Solicitor appearing for Mr A L Edwards proposed cross- of P W Turk & Associates respondent: Date of Hearing: 2 March 2000 Date of Judgment: 2 March 2000	724
federal_court_of_australia:fca/single/2009/2009fca0198	decision	commonwealth	federal_court_of_australia	text/html	2009-03-11 00:00:00	Satchithanantham v National Australia Bank Ltd [2009] FCA 198	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2009/2009fca0198	2024-09-13T22:53:00.663609+10:00	FEDERAL COURT OF AUSTRALIA Satchithanantham v National Australia Bank Ltd [2009] FCA 198 THAMBIAPPAH SATCHITHANANTHAM v NATIONAL AUSTRALIA BANK LTD NSD 1141 of 2008 EDMONDS J 11 MARCH 2009 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1141 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: THAMBIAPPAH SATCHITHANANTHAM Appellant AND: NATIONAL AUSTRALIA BANK LTD Respondent JUDGE: EDMONDS J DATE OF ORDER: 27 FEBRUARY 2009 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using eSearch on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1141 of 2008 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: THAMBIAPPAH SATCHITHANANTHAM Appellant AND: NATIONAL AUSTRALIA BANK LTD Respondent JUDGE: EDMONDS J DATE: 11 MARCH 2009 PLACE: SYDNEY REASONS FOR JUDGMENT Introduction 1 On 27 February 2009 I dismissed the appellant's appeal from the judgment of the Federal Magistrates Court (Smith FM): Satchithanantham v National Australia Bank Limited [2008] FMCA 940, and indicated that publication of my reasons would shortly follow. 2 The appeal put in issue an order dismissing the appellant's application to set aside a bankruptcy notice issued on 15 April 2008 at the request of the respondent ('the Bank') and served on the appellant on 14 May 2008 ('the bankruptcy notice'). 3 The bankruptcy notice relies upon an order made by James J (of the Supreme Court of New South Wales) on 12 December 2007 that the appellant pay the Bank's costs (of the motions referred to in the order of 12 December 2007), which was in the following terms: 2. Thambiappah Satchithanantham pay the plaintiff's costs of the motion filed by Thambiappah Satchithanantham dated 19 October 2007 and of the motion filed by the plaintiff dated 20 November 2007, in the sum of $10,000 inclusive of GST pursuant to section 98(4)(c) of the Civil Procedure Act 2005 on an indemnity basis within 28 days; (Hereinafter sometimes referred to as 'the costs order'.) 4 The appellant's notice of appeal filed on 21 July 2008 ('the notice of appeal') contains some 20 paragraphs under the heading 'grounds of appeal' but many of them assert no more than that his Honour erred 'in law and facts' by doing things or by not doing things, without any particularisation of the alleged errors. 5 The appellant filed an amended notice of appeal on 15 September 2008 containing a further 20 paragraphs under the heading 'grounds of appeal' as well as repeating the 'grounds of appeal' in the notice of appeal. Leave was required for the filing of this amended notice of appeal because it was out of time. The appellant sought that leave on the hearing of the appeal in reliance on his affidavit sworn and filed in Court on 10 December 2008. This affidavit was read on the hearing of the appeal. The appeal was conducted on the basis that leave for the filing of the amended notice of appeal had been granted and I now grant that leave. 6 The so-called 'grounds of appeal' in the amended notice of appeal are largely repetitive of the 'grounds of appeal' in the notice of appeal and suffer from the same deficiencies. 7 On the hearing of the appeal, the appellant said that he relied on: (1) Written submissions filed on 28 January 2009. (2) Written supplementary submissions filed in Court on 27 February 2009. (3) Three affidavits sworn by him: (a) the first on 14 October 2008 and filed the same date; (b) the second on 22 October 2008 and filed in Court on 23 October 2008; and (c) the third being the affidavit referred to in [5] above. These three affidavits were read without objection on the hearing of the appeal. 8 However, in the course of his oral submissions, the appellant made no reference to any of these documents although he did make reference to some of the matters to which the documents refer. 9 None of the grounds of appeal identify any basis for error on the part of his Honour, whether of law or fact, and most of them seek to agitate issues arising out of other proceedings, one involving the Bank and the appellant's wife in the Supreme Court of New South Wales concerning a property she owns. 10 While I can well understand the anxiety of the appellant to ventilate and agitate grievances which he harbours and genuinely views, rightly or wrongly, as being sourced in the conduct of the Bank towards him and his wife, this is not the proceeding, and perhaps this Court is not even the forum, in which to do it. 11 His appeal to this Court has no foundation. Some of the grounds are incomprehensible. Doing the best I can, I will address the other grounds. Before doing so, there is one matter I should note. 12 In the course of his reasons for judgment, his Honour made reference to various proceedings in the Supreme Court of New South Wales taken by the Bank as mortgagee over properties which appear to be in the ownership of close relatives of the appellant; as well as to the appellant's attempts to be joined as a party to these proceedings; and the dismissal of the appellant's appeal to the New South Wales Court of Appeal. In her written submissions, counsel for the Bank drew my attention to developments in these proceedings since 1 July 2008, the date of the hearing of the appellant's application to set aside the bankruptcy notice before his Honour. These included: (a) the appellant's appeals from the judgments of MacCready AsJ dismissing his claims against the Bank in proceedings Nos. 6031/07 and 5597/07 were dismissed by White J on 26 September 2008; (b) the appellant's further motion in Court of Appeal proceeding No. 40444/08, challenging the costs order was dismissed with costs; (c) the appellant's application for special leave to appeal to the High Court against the Court of Appeal's refusal to grant leave to appeal against the orders made by James J on 12 December 2007 was refused on 10 December 2008; (d) the hearing of proceeding No. 15249/05 before McCallum J was completed on 5 September 2008. Judgment was handed down on 6 February 2009 (National Australia Bank v Satchithanantham [2009] NSWSC 21) wherein the Bank was directed to bring in short minutes of order including an order for possession of the property at Westmead owned by the appellant's wife. The Notice of Appeal 13 Paragraph 1 generally challenges the dismissal of the application to set aside the bankruptcy notice. 14 The appellant specifically challenges: (a) The refusal to allow him to issue three subpoenae and to cross-examine Danielle Kuti (paras 2 and 3); (b) the refusal to adjourn the application to set aside the bankruptcy notice until the determination of 'many pending appeals' which seem to relate to the alleged cross-claims against the Bank and in particular the appeals against the dismissal of proceedings Nos. 5597/07 and 6031/07 against the Bank which were heard on 25 September 2008 and also other proceedings to which the Bank is not a party (paras 4, 13, 15, 20(g)); (c) the alleged failure to give due consideration to an offer made for payment of the costs order (para 6); (d) the failure to 'go behind' the judgment upon which the bankruptcy notice was based (paras 5, 8 and 9); and (e) the failure to declare the bankruptcy notice or its service to be defective (paras 10 and 11). 15 Paragraphs 5, 7, 8, 12, 18, 19 and 20 are largely incomprehensible although: (a) para 7 seems to relate to the issue as to whether the costs order is a final order; and (b) para 12 seems to relate to the claim that the costs order is not payable by the appellant but by his wife. Failure to Grant an Adjournment, Allow Cross-Examination of Danielle Kuti, Permit Reliance on Subpoena 16 The basis for the alleged error in failing to grant an adjournment would appear to be: (a) pending appeals against the judgments of MacCready AsJ dismissing the appellant's claims in proceedings Nos. 6031/07 and 5597/07 (para 13). In his reasons for judgment, his Honour (at [25]) considered the appeal in proceeding No. 6031/07, being the proceeding which the appellant identified at the hearing at first instance as having the most apparent merit, and concluded that it did not have sufficient merit to justify the adjournment of the appellant's application to set aside the bankruptcy notice. In any event, as indicated above, the appeals against the judgments of MacCready AsJ were dismissed by White J on 26 September 2008. It follows, that no error could be said to have been made; and (b) pending appeals in proceedings against parties other than the Bank (para 15). These could not properly form the basis for an application for an adjournment. 17 The appellant does not indicate in the notice of appeal the basis upon which the refusal to permit the cross-examination of Danielle Kuti or reliance on various subpoenae was in error. The relevant paragraphs of his Honour's reasons for judgment are [21] – [23]. His Honour refused to permit the appellant to further investigate, through the issue of subpoenae, the basis of the costs order, when the proper avenue for the appellant to challenge that order was by way of an appeal and his attempts to pursue such a course had not been successful. Nature of Judgment Debt specified in Bankruptcy Notice 18 As already indicated, the Bank's bankruptcy notice is based on the order of James J made on 12 December 2007, that the appellant pay the respondent's costs (of the motions referred to in the orders of 12 December 2007) in the sum of $10,000 within 28 days of that date. 19 There are a number of important things about the nature of the costs order, which the appellant's affidavits and notice of appeal fail to acknowledge, and which are addressed in his Honour's reasons for judgment at [15] – [20]: (a) Under subss 98(1)(a), (1)(b) and (4)(c) of the Civil Procedure Act 2005 (NSW), the Supreme Court has an express power to order that a person pay a 'specified gross sum instead of assessed costs'. That is precisely what James J did on 12 December 2007; (b) the appellant has no right to have those costs assessed. Section 353(1) of the Legal Profession Act 2004 (NSW) provides that the assessment regime only applies in relation to a person who is liable to pay costs 'as a result of an order for the payment of an unspecified amount of costs made by a court' (emphasis added); (c) any suggestion that the order made by James J on 12 December 2007 is somehow to be split equally between the appellant and his son, Bramooth, merely because they were both appellants to a motion before James J, is misconceived. Likewise there is no basis for the further contention now made in para 12 of the notice of appeal that the costs order is payable by the defendant to proceeding No. 15249/05, being the appellant's wife. Order 2 made by James J on that date plainly orders the appellant alone to pay to the respondent the sum of $10,000 by way of costs; (d) although it is true that an interlocutory order for costs ordinarily does not become payable until the conclusion of the proceedings, that principle does not apply where 'the court orders otherwise': see rule 42.7 of the Uniform Civil Procedure Rules 2005 (NSW). Here, James J plainly ordered otherwise. His Honour ordered that the costs be paid within 28 days, that is, by 9 January 2008; (e) by notice of motion filed in the New South Wales Court of Appeal on 29 May 2008 by the appellant and his son, the following relief (amongst other things) was sought: (i) that the order for costs made by James J on 12 December 2007 'be stayed until assessed and taxed'; (ii) that the appellant and his son were only 'entitled' (sic qu. 'obliged') to pay a half portion of that costs order; and (iii) that the order for costs made by James J on 12 December 2007 be set aside. It has already been noted that (i) and (ii) were misconceived. The motion to the Court of Appeal in its entirety was dismissed with costs on 16 June 2008. This is dealt with in [9] of his Honour's reasons. (f) despite that dismissal, the appellant filed yet a further notice of motion with the New South Wales Court of Appeal on 25 June 2008, returnable on 14 July 2008. In prayer 2, the appellant yet again sought an order that the New South Wales Court of Appeal 'set aside', amongst other orders, the costs order made by James J on 12 December 2007. By prayer 4 he sought a stay of that costs order until determination of that motion (but no such stay has been granted). The further motion was dismissed with costs on 14 July 2008. 20 Viewed in this context, the various attacks by the appellant on the debt underlying the bankruptcy notice are vexatious and frivolous and were correctly dismissed by his Honour. Validity of and Service of the Bankruptcy Notice 21 The appellant claims that he was served with the bankruptcy notice 'in the court buildings'. His Honour accepted at [10] of his reasons that this does not mean that there is any defect in the service of the bankruptcy notice relying on what Lindgren J said in Re O'Sullivan (1995) 57 FCR 145 at 149E. 22 There is also no error in his Honour's dismissal of the appellant's challenges to the validity of the bankruptcy notice in [13] and [14] of his reasons. The Appellant has not shown Bona Fide Counter-Claim, Set-off or Cross Demand 23 Taking into account all of the evidence and submissions of the appellant seeking to persuade the Court below that he had a cross-claim within subs 40(1)(g) of the Bankruptcy Act 1966 (Cth), his Honour, at [29], was entirely unsatisfied that such a claim existed within the test set out in the authorities summarised by Lindgren J in Re Glew; Glew v Harrowell of Hunt & Hunt Lawyers (2003) 198 ALR 331. 24 In Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 30 ALR 433 at 438 – 439, Lockhart J said that the authorities establish that: (a) an affidavit in support of an application to set aside a bankruptcy notice 'cannot merely contain an assertion that the debtor has a counter-claim, set-off or cross demand'. Rather, the affidavit must 'show' the existence of such a claim and the Court must be satisfied that the debtor has 'a fair chance of success' on the asserted claim; (b) the principles in Ebert v Union Trustee Co of Australia Ltd (1960) 104 CLR 346 at 350, remained applicable. His Honour, at 438, quoted with approval a passage from Ebert to the effect that the debtor 'clearly must satisfy the court that there exists in him a counter-claim, set-off or cross demand … The [debtor] cannot satisfy the court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out'. (Emphasis added) 25 In Re Glew at [9], Lindgren J (citing authority for each proposition) said that a debtor seeking to set aside a bankruptcy notice must satisfy the Court that: (a) he has a 'prima facie' case; (b) he has a 'fair chance of success'; (c) he is advancing a 'genuine' or 'bona fide' claim. Further, Lindgren J said at [10] that, while the Court does not undertake a 'preliminary trial' of the alleged counter-claim, set-off or cross demand, 'clearly, the application of the criteria above requires the court to make some kind of preliminary assessment'. (Emphasis added) 26 I agree with his Honour's lack of satisfaction on this issue. The appellant falls comfortably short of satisfying the relevant requirements. The Amended Notice of Appeal 27 The 'grounds of appeal' are either repetitive of the 'grounds of appeal' in the notice of appeal or, like many of those latter grounds, are incomprehensible. In his oral submissions, the appellant did not take me to any of the grounds in the amended notice of appeal. There were a number of serious, but totally unsubstantiated, allegations that the Bank and its legal representatives had misled various courts and such allegations do find their way into some of the 'grounds of appeal' in the amended notice of appeal. However, they are undeserving of any consideration past the mere mention of them; they are certainly not deserving of any substantive analysis. 28 The appeal must be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 11 March 2009 Counsel for the Appellant: The appellant appeared in person Counsel for the Respondent: Ms N Bearup Solicitor for the Respondent: Dibbs Abbott Stillman Date of Hearing: 27 February 2009 Date of Judgment: 11 March 2009	4,113
federal_court_of_australia:fca/single/2012/2012fca1234	decision	commonwealth	federal_court_of_australia	text/html	2012-11-08 00:00:00	SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2012/2012fca1234	2024-09-13T22:53:01.284737+10:00	FEDERAL COURT OF AUSTRALIA SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 Citation: SZQRU v Minister for Immigration & Citizenship [2012] FCA 1234 Appeal from: Application for extension of time: SZQRU v Minister for Immigration & Anor [2012] FMCA 492 Parties: SZQRU v MINISTER FOR IMMIGRATION & CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number: NSD 909 of 2012 Judge: KATZMANN J Date of judgment: 8 November 2012 Legislation: Federal Court Rules 2011 (Cth), r 36.03 Migration Act 1958 (Cth), ss 36(1), 91R, 474 Cases cited: Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 New South Wales v Canellis (1994) 181 CLR 309 Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 WAAD v Minister for Immigration & Indigenous Affairs [2002] FCAFC 399 Date of hearing: 7 November 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Solicitor for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms M Stone of DLA Piper Australia Solicitor for the Second Respondent: The second respondent filed a submitting notice IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 909 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQRU Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 8 NOVEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 909 of 2012 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQRU Applicant AND: MINISTER FOR IMMIGRATION & CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 8 NOVEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a Lebanese national who claims to be an Alawi Muslim and to fear persecution there on political and religious grounds. In large part the basis for these fears is that two years before he left for Australia, he was allegedly threatened by the leadership of the Arab Democratic Party, which he had reluctantly joined, during or at the time of local fighting. The applicant further claims that, because he had consistently refused to bear arms or fight for the party, he was not respected and people in his area abused him as a coward. He expressed the fear that, having left the area now without the party's permission, he will be viewed as a traitor and a spy for the rival Sunni parties and killed. He also claims to fear being physically harmed or killed by Salafists or Sunni Muslim groups because of his religion. 2 After unsuccessfully applying to the Minister for Immigration and Citizenship for a protection visa, he sought a review by the Refugee Review Tribunal, but that application was unsuccessful, too. He then applied to the Federal Magistrates Court to quash the tribunal's decision and require it to reconsider his case but in an ex tempore decision Raphael FM dismissed the application. The applicant wants to appeal that judgment but he failed to file a notice of appeal within the prescribed time and now seeks an extension of time within which to do so. 3 The tribunal rejected the review application because of inconsistencies in, and the quality of, the material the applicant presented and the absence of independent material to support it. The tribunal considered that statutory declarations from other Lebanese Alawites living in Australia upon which the applicant relied, which stated that what he said about the ADP was true, but which were lacking in important particulars, were on that account entitled to little weight. In one important respect they were also inconsistent with oral evidence the applicant had given at the hearing. The tribunal accepted that there have been periods of conflict between Alawi and Sunni groups in Tripoli, most recently in 2008, and that political and sectarian tensions are high in the area where the applicant was living. It also accepted that there were sporadic outbreaks of fighting in which people were killed, but that since 2008 that occurred in the context of demonstrations. As the applicant said he did not wish to be politically involved, the tribunal did not consider he was at risk. It also found that his assertion that the ADP had killed people was based on nothing more than rumours. Having regard to the wealth of information about the current political situation in Lebanon, the tribunal said that if targeted killings of people like the applicant were taking place "with any regularity or frequency" for the reasons that he claimed, there would be reports of this. In any case, it said that the evidence indicated that the state authorities have taken appropriate measures to stop the outbreak of violence. The tribunal concluded that, as the applicant had managed to remain in his neighbourhood safely for two years after the 2008 fighting without suffering serious harm or mistreatment that could be considered persecution, he would not suffer such harm or mistreatment in the foreseeable future. As applicant's evidence was that the party was aware he was coming to Australia, the tribunal did not accept that he would be suspected of leaving in order to spy for the Sunnis. 4 The judgment of the federal magistrate was pronounced and the orders made on 30 May 2012. The applicant had 21 days to appeal. See Federal Court Rules 2011 (Cth), r 36.03. The appeal should therefore have been filed by 20 June 2012. It appears that on 28 June 2012 the applicant tried to file a notice of appeal but the document was rejected. Instead, he filed an application for an extension of time and an affidavit in support. The grounds set out in what is now styled the draft notice of appeal are as follows (without alteration): 1. The Refugee Review Tribunal (the Tribunal) misunderstood my claim. 2. His Honour Learned Magistrate Raphael also failed to accept my fear of persecution and the evidence which was before the Tribunal that I fear persecution and that even though I was not physically harmed while in Lebanon my situation has changed should I return. The Tribunal made error of law in coming to a conclusion which was not based on available evidence. 5 He asks for orders that both the tribunal decision and the decision of the federal magistrate be quashed. 6 In his affidavit the applicant stated in English (again without alteration): I ask the Hon Court to accept my draft notice of appeal. I believe I have strong case and arguable case. I was not aware of the judgement being made on 30.5.012, the date of the judgement is 7/6/012. I will provide transcript which was not before FMC. I ask the Hon Court to accept my draft notice of appeal. 7 I note that the transcript of the tribunal hearing was not provided. 8 No submissions were filed in support of the application. At the hearing I invited the applicant to tell me why his application should be granted and to explain what it was that the federal magistrate had got wrong. He told me, through an Arabic interpreter, that the tribunal did not apparently understand his case, relied on inaccurate internet information and thought he was lying. He said that when he attended at the tribunal, he had been involved in an accident and was taking painkillers that affected the way he presented his case. He said he wanted an opportunity to explain his case to the tribunal again, more clearly than he had done previously. He said he now had witnesses who had recently arrived from Lebanon and documentary information he wanted to give the tribunal. He said that the tribunal told him he could adjourn the case and he should have done so. When pressed to address the proposed grounds of appeal, he did not do so. He merely lamented that he did not have a solicitor. 9 The explanation for the delay is unsatisfactory. The applicant was present (with his interpreter) when the judgment was pronounced. I cannot therefore accept the proposition that he was not aware of it in sufficient time to file his appeal. 10 Nevertheless the delay in this case is short. The Minister accepts he is not prejudiced by it. In the circumstances I would not allow the mere fact of the delay to stand in the applicant's way. As the Full Court observed in WAAD v Minister for Immigration & Multicultural Affairs [2002] FCAFC 399 at [7], the Court is given the discretion to extend time in order to be able to do justice between the parties. Consequently, where the delay is short and no injustice would be occasioned to the respondent, justice will usually be done by exercising the discretion in the applicant's favour. But where the prospective appeal enjoys insufficient prospects of success, it would not be just to do so. This is such a case. To succeed on an appeal the applicant would have to show that the federal magistrate fell into error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. For the following reasons, however, he is evidently unable to do so. 11 First, the contention that the tribunal misunderstood the applicant's claim was propounded in the court below. It was the first ground of the application. The federal magistrate noted that it was not particularised, but from what the applicant told him he inferred it was a complaint that the tribunal did not believe him on his oath. If so, that is a matter insusceptible of a remedy in the courts. The federal magistrate only had power to intervene if the tribunal decision was affected by jurisdictional error (Migration Act 1958 (Cth), s 474; Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476). 12 According to the federal magistrate, however, the tribunal did not disbelieve the applicant; it merely decided that the threats to him were not as serious as he thought. The tribunal certainly did not find that the applicant lied to it. But it is plain that it regarded independent country information to be more reliable than the applicant's account and, in some instances, in the absence of such information or where the applicant's evidence was in conflict with it, it preferred the independent information. 13 His Honour noted the tribunal's finding that the applicant had lived peacefully in Tripoli for two years before coming to Australia and its conclusion that there was no reason to believe the situation would change if he were to return. This conclusion was fatal to the applicant's claim, as a criterion for the grant of a protection visa is that Australia owes protection obligations to him under the 1951 Convention Relating to the Status of Refugees, as amended by the 1967 Protocol ("Refugee Convention"): Migration Act, s 36(1). That meant that the applicant had to satisfy the Minister that he has a well-founded fear of being persecuted for one or more Convention reasons: Refugee Convention, Art 1A(2). Section 91R of the Migration Act placed additional obstacles in the applicant's path. In substance, he is ineligible for a protection visa unless the reason is the essential and significant reason for his fear, the persecution involves serious harm to his person as well as systematic and discriminatory conduct. Even if the tribunal had found his fears to be well-founded, it is apparent that the dearth of evidence to indicate that targeted killings of people like him were occurring regularly or frequently would also have stood in his way. 14 The federal magistrate then observed (correctly): There is no jurisdictional error in coming to a conclusion of that type based, as it is, upon available evidence. 15 Secondly, the federal magistrate did not fail to accept anything the applicant told the tribunal concerning his fear of persecution. Indeed, it was, as I have already indicated, no part of his role to decide whether the applicant was telling the truth or whether his fears were well-founded. That was a task for the tribunal and the tribunal alone. A wrong finding of fact is not a jurisdictional error. The courts have no jurisdiction to correct administrative injustice of this nature: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–36; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 and 291. The federal magistrate found that the tribunal's findings were open on the evidence and held, correctly, that any decision it made on the facts of the case that was based on those facts could not be impugned in his court because of a difference of opinion about the validity of the information. It appears from the federal magistrate's reasons for judgment that the applicant urged upon him that he was telling the truth but his Honour explained, once again correctly, that they were matters going to the merits of the case and not to the legality of the decision-making process. 16 The third matter the applicant raised in his draft notice of appeal could involve jurisdictional error. Not all errors of law by administrative tribunals are of this kind. That will depend on whether the exercise or purported exercise of the tribunal's powers is affected by the error. See Craig v South Australia (1995) 184 CLR 163 at 179. Yet, the applicant did not identify the legal error, let alone explain how it affected the exercise or purported exercise of the tribunal's powers. I can find nothing in the federal magistrate's reasons to suggest that the tribunal made such an error. 17 Nothing the applicant put on this application takes the matter any further. 18 The first matter the applicant raised was his illness during the tribunal hearing. 19 In some circumstances, the illness of an applicant at the time of a tribunal hearing may give rise to jurisdictional error by depriving him or her of a meaningful opportunity to give evidence and present arguments as s 425 of the Migration Act requires: Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 at [37], so as to stultify or frustrate the tribunal's review function (Minister for Immigration and Citizenship v SZNVW (2010) 183 FCR 575 at [87] applying SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189). In SCAR the Full Court referred to Applicant NAHF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 128 FCR 359 where s 425 was found to have been breached when the applicant was unable to attend the hearing because of ill health. But there may well be circumstances in which the opportunity is lost though the applicant is present in person, for example where the applicant is genuinely distracted by intractable pain or heavily sedated or confused so that he or she is not in a fit state to give evidence or present arguments. Indeed, SCAR was a case of that kind. But this is not. The applicant said he was affected by the medication. There is, however, no evidence to support his statement. Indeed, what material there is points in the opposite direction. Further, unlike in SCAR, the tribunal in this case was aware of the applicant's situation. The tribunal recorded in its reasons: The applicant submitted … police and medical reports relating to a car accident in May 2011 in which [he] was seriously injured. The applicant was clearly in discomfort during the Tribunal hearing and said that he had taken pain killing medication. However, he insisted that he was capable of giving evidence and that he wanted the hearing to proceed; he said that the medication did not make him drowsy. I am satisfied that the applicant was capable of giving evidence, and the manner in which he did so gave rise to no concerns on my part that his evidence was affected by his medical condition or the medication he had taken. 20 The applicant offered no reason, let alone evidence, to doubt the tribunal's conclusion. The applicant had plenty of opportunity to adduce evidence about his capacity to participate in the hearing but he did not do so, despite providing the tribunal with some additional evidence after the hearing. There is nothing to indicate that his capacity to make decisions in his own interests was impaired by either his medical condition or the medication. Cf. SZNVW 183 FCR 575 at [36]. 21 This matter was not raised (at least expressly) by the draft notice of appeal. It was certainly not raised before the federal magistrate. In these circumstances, if it were to be pursued on an appeal, the applicant would require leave. Where, as here, there is no adequate explanation for the failure to take the point and it seems to be of doubtful merit, leave will generally be refused. See VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 at [46]–[48]. 22 The second matter the applicant referred to was the existence of new evidence. 23 The fact that there may be new evidence to support his claim for a protection visa does not indicate error on the part of the federal magistrate. If this evidence is cogent and he were to make the appropriate application, he may be able to persuade the Minister to exercise his discretion under s 417 of the Migration Act to substitute a more favourable decision. But the existence of new evidence does not advance his application in this Court. 24 Finally, the applicant mentioned his lack of a solicitor. This was a matter raised before the federal magistrate but nothing the federal magistrate said about it reveals appealable error. There is no right to legal representation. Doubtless, the applicant might have had a better chance if he had been legally represented, but in a civil case procedural fairness does not require it: New South Wales v Canellis (1994) 181 CLR 309 at 329–331; Nguyen v Minister for Immigration & Multicultural Affairs (2000) 101 FCR 20 at [24]; Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50 at [17] per Perram J. Cf. SZNVW 183 FCR 575 at [30]. 25 In these circumstances, the application should be dismissed. It would not be just to extend the time within which to appeal because the appeal is bound to fail. There is no reason why the applicant should not pay the Minister's costs. I make orders accordingly. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 8 November 2012	4,279
federal_court_of_australia:fca/single/2001/2001fca1525	decision	commonwealth	federal_court_of_australia	text/html	2001-09-26 00:00:00	Raisanen v Special Broadcasting Services Corporation [2001] FCA 1525	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2001/2001fca1525	2024-09-13T22:53:01.662038+10:00	FEDERAL COURT OF AUSTRALIA Raisanen v Special Broadcasting Services Corporation [2001] FCA 1525 HEIJA VIOLA RAISANEN v SPECIAL BROADCASTING SERVICES CORPORATION N 1100 OF 2000 EMMETT J 26 SEPTEMBER 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1100 OF 2000 BETWEEN: HEIJA VIOLA RAISANEN APPLICANT AND: SPECIAL BROADCASTING SERVICES CORPORATION RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 26 SEPTEMBER 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 1100 OF 2000 BETWEEN: HEIJA VIOLA RAISANEN APPLICANT AND: SPECIAL BROADCASTING SERVICES CORPORATION RESPONDENT JUDGE: EMMETT J DATE: 26 SEPTEMBER 2001 PLACE: SYDNEY REASONS FOR JUDGMENT EMMETT J 1 This is an application under s 127A(2) of the Workplace Relations Act 1996 (Cth) ("the Act"). The Act was originally enacted as Act No 96 of 1988 and it has been substantially amended since its enactment as the Industrial Relations Act 1988 (Cth). Under s 127A(2), application may be made to the Federal Court of Australia to review a contract of a certain category on the ground that the contract is unfair. Under that provision, "contract" relevantly includes any collateral arrangement relating to a contract for services that is binding on an independent contractor and relates to the performance of work by the independent contractor. Under s 127A(5), if the Court forms the opinion that such a ground is established in relation to the whole or the part of a contract, it must record its opinion stating whether the opinion relates to the whole or a specified part of the contract. Under s 127B(1), if the Court records an opinion under s 127A in relation to a contract, it may make an order varying the contract. 2 From June 1988 to 30 August 1992, the applicant was engaged by the respondent, Special Broadcasting Services Corporation ("SBS"), as an independent contractor in the position of radio broadcaster in the Finnish language program broadcast by SBS. On 27 June 1992 the applicant applied for two positions with SBS in relation to that Finnish language program. The positions were Broadcaster Journalist Level 2 and Journalist Level 1. The applicant was furnished with several documents described as follows: · SBS Radio 2EA Recruitment Information Kit, · Selection Criteria and Duty Statement relating to Broadcaster Journalist Level 2, · Positions Available Finnish Language Program. 3 By letter of 30 June 1992 SBS confirmed an invitation to the applicant to attend an interview which was fixed for 7 July 1992. The applicant claims that she and SBS were parties to an arrangement that she would be granted an interview and that selection to fill the posts for which she applied would be in accordance with the criteria set out in the documents referred to above. The applicant says that she had an expectation that the criteria would be applied fairly. She claims that that arrangement was a collateral arrangement relating to the contract that she had entered into with SBS in June 1988. the proceeding and the applicant's claims 4 In her further amended application the applicant seeks the following orders. "1. An order declaring that the contract entered into between the Applicant and the Respondent on 21 June 1988 and which was terminated on 31 August 1992 was unfair. 2. An order declaring that the interview conducted on 7 July 1992 for the position of broadcaster/journalist was a collateral arrangement to the contract for work in an industry referred to in 1 above and that the interview is within the terms of 127A(1)(b) of the Workplace Relations Act 1996. 3. An order declaring that the collateral arrangement was unfair in that the interview process did not consist of a fair assessment of the applicant's qualifications for the position of broadcaster/journalist as against those of the successful applicant, Mr Karl Mattas. 3a. An order declaring that the collateral arrangement was unfair in that the interview process did not result in a fair assessment of the Applicant's qualifications for the position of a broadcaster/journalist as against those of the successful applicant, Mr Karl Mattas. 4. An order that the contract be varied so that on its termination the Respondent to pay to the Applicant the amount of $35,000 being 1 years salary of the position referred to in 2 above. 5. In the alternative to Order 4 an order that this honourable Court vary the contract and order the Respondent to pay an amount of money to the Applicant which it considers just in all the circumstances of the case. 6. An order that the Respondent pay the Applicant's costs of an incidental to these proceedings." 5 In her further amended statement of claim the applicant alleges that the interview of 7 July 1992 was a collateral arrangement within the terms of s 127(1)(b) by reason of the following matters: (i) the applicant was granted the interview because of her work with SBS between 1988 and 1992; (ii) the applicant was contracted by SBS at the time of the interview; (iii) the applicant was paid compensation when she did not get the job for which she applied. 6 The statement of claim alleges that the so-called collateral arrangement was unfair in operation and in its result. The allegation is particularised as follows: "(i) The Applicant had been contracted in the position of radio broadcaster in the Finnish language for a period of four years. (ii) Finnish is the Applicant's mother tongue. (iii) The Applicant had demonstrated experience in preparing and presenting radio programs specifically planning, research and script preparation and announcement. (iv) The successful applicant was not proficient in the Finnish language at the time of his appointment. (v) The successful applicant had never demonstrated his ability to prepare and present radio programs of the type envisaged. (vi) The successful applicant's experience had been in the area of film editing and as a studio technician. (vii) The Applicant was never given access to her personnel file to see how her performance in the interview was perceived. (viii) The Applicant's offer to show the interviewing panel her certificates in respect to education and qualifications was rejected. (ix) The Applicant's request to repeat the interview was rejected. (x) To the best knowledge of the applicant, no member of the interviewing panel contracted any of the referees nominated by the Applicant. (xi) Criterion Number 1, was applied differentially by the interviewing panel as between the Applicant and Mr Mattas to the disadvantage of the Applicant. Such differential application being unfair." 7 Counsel for the applicant contended that one of the reasons she was granted the interview was as a result of the work that she had done under the contract that had been in force since 1988. She was granted the interview because she had experience with SBS in relevant roles. Thus, it was said, there was a connection between the interview and the applicant's past work with SBS. What caused her to be granted the interview was, in part, her past experience. Accordingly, so it was said, the interview was a collateral arrangement relating to her existing contract. The collateral arrangement was that she would be granted an interview and that selection to fill the post for which she applied would be in accordance with the criteria stated in the documents to which I have referred. It was said that the applicant had a reasonable expectation that those criteria would be applied fairly. 8 The applicant also claimed that she had an expectation that SBS would follow its charter, as provided in s 6 of the Special Broadcasting Service Act 1991 under which SBS is formed. Section 6 provides: "The principal function of SBS is to provide multilingual and multicultural radio and television services that inform, educate and entertain all Australians, and, in doing so, reflect Australia's multicultural society." 9 The applicant's complaint is that the alleged collateral arrangement was unfair. The core of the complaint is that the interview process resulted in the appointment of Mr Karl-Julius Mattas to a position with SBS instead of the applicant. It was said that Mr Mattas is a person with inferior skills in the Finnish language. On the other hand, the applicant's skills were not properly taken into account or tested in connection with her application. The unfairness was said to be that a person who did not have the basic requirement for the position for which the applicant had applied, namely, skill in the Finnish language, was appointed to that position in circumstances where the applicant was not tested as to her skill in the Finnish language. Further, it was said that Mr Mattas did not meet one of the criteria against which the applications were expected to be judged. factual background history of SBS 10 Radio stations 2EA and 3EA, which eventually became known as SBS Radio, commenced operations in 1975 and were initially staffed on a voluntary basis. On 1 January 1978 SBS was established by the Commonwealth Government. From that time the language programs broadcast by SBS Radio were prepared and broadcast by broadcasters, journalists and co-ordinators who were engaged as independent contractors on a fee for service basis. Following a negotiated restructuring those staff were progressively replaced from about 1986 with broadcasters and/or journalists employed under the Public Service Act 1922 (Cth). 11 In 1979 an association had been established to represent the interests of SBS Radio broadcasters, journalists and co-ordinators in determining the rates of payment for their services and other conditions of their engagements as independent contractors. Following the establishment of that association, the rates of payment for broadcasters were arrived at through negotiation and agreement with the association and approval by the Public Service Board. From 1984 until 1993 there were extensive negotiations for the restructuring of SBS to replace the fee for service contractors with appropriate employees, including an appropriate determination and appropriate award to apply to the employees who would be employed when the restructure came into effect. retainer of the applicant 12 On 25 April 1988 a memorandum was sent to the then co-ordinator of the Finnish Language Program to make broadcast announcements in April and May. The memorandum said that the Finnish program was in urgent need of contributors. The announcement was to the effect that SBS was inviting expressions of interest for contributors and broadcasters on the Finnish Language Program Radio 2EA. The duties were said to include planning, presentation and production of a variety of programs. The announcement said that applicants must be proficient in the Finnish language and that the successful applicants would be engaged as contributors on a contractual basis. Expressions of interest were invited by 15 May 1988. 13 On 10 May 1988 the applicant wrote to the program manager of 2EA in reply to an advertisement published on 7 May. Part of the letter stated: "…because of my work history I am very interested in the position with your radio station as a contributor." Some brief details were furnished. On 24 May 1988 the acting program manager for Radio 2EA wrote to the applicant thanking her for her interest in the program and confirming an interview for 14 June 1988. It appears that the applicant was found suitable: an endorsement on her letter of 10 May 1988 is to that effect. A note of 22 June 1988 made by the Acting Program Manager confirms that the applicant had been suitable and was engaged as a broadcaster to prepare and present programs on the Finnish program with Tony Lehtonen. 14 The job that the applicant carried out at SBS until 1992 was designated as both broadcaster and journalist. Those two designations accurately covered her role. She both presented programs and undertook all aspects of their preparation, specifically planning, research and script preparation and announcements. Mr Lehtonen recorded that the applicant worked with him as a broadcaster and journalist and prepared her own ten to twenty minute recorded segment for every program. She shared the journalistic work with Mr Lehtonen. She did many interviews with different people and did her own research. 15 The Finnish program was broadcast every Saturday from 8.15 pm to 9.15 pm. The applicant would commence work at 2 pm and leave after 9.30 pm. That is the work that she carried out during the whole of the period of her contractual arrangement with SBS. restructuring of SBS 16 After some five years of some uncertainty, SBS received the go-ahead in 1983 to proceed with the clarification of the status of broadcasters and co-ordinators with a view to offering them employment. The agreement followed personal representations by the then chairman of SBS, Sir Nicholas Shehadie, to the then Prime Minister and also the then current Minister. Negotiations took place over a number of years between SBS, Actors and Announcers Equity, the Australian Journalists Association and the Public Service Board. In late 1985, elements of agreement appeared to emerge with the SBS and unions concentrating their efforts to resolve the issue. 17 A complex series of agreements were entered into by all parties concerned. The agreements included the following: · job specifications and a Public Service Board determination to enable the creation of broadcast officer positions with an appropriate salary structure to reflect the responsibilities of those positions; · appropriate entry assessment requirements, both for broadcast officers and group journalists; · the acceptance of the concept of bilingual journalists to enable the delegation of news and current affairs matters; · merit advancement; · a compensation package for those broadcasters and co-ordinators who either may not be eligible or may not be offered employment in the new structure; and · a selection process and selection committee structures. 18 A memorandum of SBS of April 1987 records the following as a brief summary of the selection process. It was said to illustrate the complexity and fairness of the process: "Language groups comprise a team of broadcasters and group journalists. All the positions (both full time and part time) are advertised simultaneously. Two divergent selection processes with two separate selection committees then occur. The selection committee for broadcast officers comprise: · a representative of SBS management; · a community consultant; · an Actors Equity workplace representative. The selection committee for journalists comprise: · two senior SBS journalists (A grade or higher); · a management representative; · the same community consultant who sits on the selection committee for broadcasters for the same group. All written applications are initially considered by the relevant selection committees, against the selection criteria for the relevant positions and a short list developed. Short listed applicants for both broadcast and journalist positions are then invited to undertake an entry assessment. This comprises: (1) translation from English into the relevant language of a 100 word community service announcement; (2) translation of news stories of 200 words from English into the relevant language; (3) the writing of a radio script for transmission on radio in the relevant language; (4) applicants sitting for the language assessment are then invited to record a 10 minute radio program segment comprising the aforesaid script plus adlibbing and the introduction of an interviewee. These assessments (both the written and tape recorded) are then sent to two separate assessors in strict confidence. … The assessments are not of literary translations but on the basis of communication skills, that is the applicant's ability to comprehend an English text and communicate that meaning accurately in the relevant language. Applicants for journalist positions are asked to undertake a further assessment of their journalistic skills. A second written assessment is conducted in English. 19 At some stage prior to mid 1992, a report to the Board of SBS on the background of proposed strategy relating to current restructuring was made. Part of the report states: 1. Background: The restructuring of SBS Radio was suspended in late 1989 pending the re-allocation of air time to reflect the composition of the Australian community in the 90s. The long and sometimes painful process of rescheduling was completed when the two new schedules approved by the Board were implemented on 10 February 1992. As agreed with the relevant unions at the time of suspension of the restructuring, new rounds of recruitment were resumed in April to remove the inequity of the different stages between broadcasters and journalists who are public servants and those who are contractors. During the previous exercises, only 15 language groups were restructured in Sydney and 23 in Melbourne. (Most of them were large and established communities.) The current restructuring will involve 48 language groups at 2EA and 37 at 3EA. (Most of them are small and a number newly established.) 2. The process: Under the structural efficiency principle, negotiations which took place some two years ago, the Australian Journalists Association (AJA) agreed to a simplified recruitment process consisting only of three members (SBS radio station management, a skilled professional and a Commonwealth officer from a relevant department/agency). A community consultant or representative and an AJA representative are no longer required under this agreement. During further discussions in March this year with the AJA, a combined position of broadcaster/journalist was also agreed in principle to overcome the demarcation difficulty in editorial terms between a broadcaster and a journalist. Duty statements and selection criteria were also worked out with the AJA for the positions of broadcasters, journalists and the combined position of broadcaster/journalist. … Also, during those discussions, the AJA was advised of steps to be followed during the interviewing process which included a journalistic assessment as part of the interview for those who applied for the combined position of broadcaster/journalist. A set of questions was worked out between the two interviewing committees to ensure consistency of selection on the basis of the selection criteria. The last step of the process for these applicants found suitable by the selection committee is a language test conducted by the Institute of Languages of the University of New South Wales, as agreed with the AJA." 20 Annexed to that report was a document which set out the make-up of selection committees as follows: "The 3 person committee in each state consists of: (1) SBS radio management representative, 2EA manager or 3EA manager as chairperson. (2) Skilled person from sister station or SBS TV (AJA member). (3) Commonwealth Government officer relevant department or agency." 21 It is necessary to consider the application that was made by the applicant to SBS against the background of those restructuring proposals. In 1988 the applicant apparently submitted an application to SBS for the position of journalist/broadcaster. In connection with that application, she submitted to SBS a reference from Paula Sutinen and Risto Sutinen dated 4 November 1988. That reference was relevantly in the following terms: "As it has come to our knowledge that Ms Helja Raisanen is applying for a job as the Finnish language radio programs co-ordinator at the SBS Radio in Sydney, we would like to put in a word in her favour. We were living in Sydney from January to November 1984 and again from January to October 1987 and had the chance to listen to Finnish language radio programmes there. However, we did not like them very much because the Finnish language used in them was not good at all, nor were the contents of programmes very interesting, either. We think that it is essential that Finnish language programmes are conducted in good Finnish language. Elderly migrants love to hear their mother tongue, and for the younger generation, these programs are language lessons at the same time. They can also be educational and informative if they are well prepared. While in Sydney, we had opportunities to hear Ms Helja Raisanen as a compere at social functions. Her Finnish language was perfect and her interpretations between the two languages - English and Finnish - accurate and quick. We are convinced that Ms Raisanen would fill the position of the co-ordinator/commentator in Finnish language radio programs at the SBS Radio in Sydney to the full satisfaction of listeners as well as to the satisfaction of the SBS Radio administration." 22 By letter of 5 December 1988, Ms Pamela Blackman of the Restructuring Section of SBS acknowledged receipt of the applicant's application for the position of journalist/broadcaster. The letter set out "a number of things" which Ms Blackman said applicants "should be aware of". The letter relevantly said as follows: "Firstly, you will be asked to attend an entry assessment. This consists of a 2˝ hour written assessment and a half hour studio audition. You will also be required to attend a three hour journalist assessment. More specific details about the assessments are contained in the enclosed information booklet. The written assessment will be held on Wednesday, 14 December… … The journalist assessment will be held at 1.30 pm on the same day. … Your audition will be held on Wednesday, 21 December. You will be told the exact time of your audition when you attend the written assessment. … Depending on the outcome of these assessments, you may be required to attend an interview." 23 Attached to that letter were selection criteria for Broadcaster Class 1, Broadcaster Class 2 and Journalist Grade B. Also attached was further information relating to the entry assessment procedure and the journalist assessment. 24 The applicant sat for an assessment test in regard to the Finnish language program on 14 December 1988. She said that she attended the assessment and sat for both the written and journalist assessments on that day. While no document was in evidence before me, the applicant said that she recalled that she subsequently received a letter informing her that she had passed the test but that the restructuring had been postponed so that appointment to the position referred to in her application would not be occurring at that time. I have no reason to doubt the truth of that statement. 25 As I have already said, the restructuring program was reactivated during 1992. On 12 June 1992, an internal memorandum of SBS records that instructions were given for announcements to be made in relation to vacancies in a number of language programs, including Finnish. The instructions included the following: "Both the English version … and the version in your language (script in English for translation attached) must go to air in every program on and after Saturday, 13 June until and including Monday, 29 June." 26 It appears that at the same time advertisements were published in newspapers in Sydney and Melbourne inviting applications for broadcasters and journalists in a number of languages including Finnish. The advertisements required applications to be sent to the Radio Restructuring Officer of SBS by Monday, 29 June 1992. The applicant saw the advertisement and responded to it. 27 When she did so she was provided with some further information including a document entitled "Positions Available". That document relevantly provided as follows: "SBS Radio 2EA Finnish Language Program One Program Per Week There are a number of possible staffing structures for staff in the Finnish Language Program. SBS prefers to recruit staff who are able to undertake both broadcaster and journalist duties as a broadcaster/journalist. However, if there are no suitable candidates, then SBS will recruit staff who can work as either a broadcaster or journalist Preferred staffing structure Broadcaster/Journalist Level 2 (13 hours per week) Alternate staffing structure Broadcaster Level 2 (9 hours per week) Journalist Level 1, (4 hours per week)" 28 At some stage prior to her interview in July 1992, the applicant was also furnished with a further two documents, one of which was headed "Selection Criteria" and the other headed "Duty Statement". Both had subheadings "Broadcaster/Journalist Level 2, Relevant Language Program". The first document, "Selection Criteria", sets out eight criteria as follows: "1. Proficiency in the relevant language including a clear delivery in that language 2. Demonstrated ability to undertake the more complex broadcasting tasks involved in planning, preparing and presenting radio programs 3. Demonstrated ability to write, compile and present news, sport and current affairs from a variety of sources, including the production of current affairs from a variety of sources, including the production of current affairs and/or documentaries 4. Demonstrated management skills, and in the case of head of a language group, budgeting skills 5. Demonstrated communication skills in English 6. Understanding of, willingness to abide by, and ability to monitor and ensure compliance with, the standards used by SBS, in particular the SBS Guidelines for Radio 7. Knowledge of relevant audience and its ethnic, religious, political, social, communal and historical background together with knowledge of homeland and Australian issues 8. Knowledge of government departments and other agencies in the Australian community providing social and cultural services Suitable interviewees are required to undergo a language assessment to demonstrate their proficiency in the relevant language." 29 Persons who indicated an interest in the positions in June 1992 were furnished with an information kit by SBS. The information kit contained the following cover note: "Thank you for your inquiry about the recently advertised positions within SBS Radio. The Information Kit is designed to provide applicants with a broad understanding of the role and function of the SBS Radio." The information kit contained a number of documents as follows: · a copy of the newspaper advertisement; · SBS Radio 2EA schedule, showing that the Finnish program was broadcast at 10.45pm on Saturdays; · charter of the SBS describing the role of SBS as set out in s 6 of the Special Broadcasting Service Act 1991; · SBS mission statement; · SBS guidelines for radio; · SBS policy statement on combating racism; · application form; · documents headed "Important matters" and "Checklist". 30 On 29 June 1992 the applicant submitted a form in accordance with the information kit. The form was dated 27 June 1992 and it comprised applications for two positions being Broadcaster/Journalist and Journalist 1. Subsequently, the applicant furnished to SBS two references, one from C M Beaton, Principal Policy Adviser in the Policy Department Branch of the Department of Employment, Industrial Relations and Training, Tasmania dated 24 June 1992 and the other from Helena King of Tour Hosts Pty Limited dated 1 July 1992. 31 By letter of 30 June 1992, Mary Ghanem, the Restructuring Officer of SBS, confirmed that the applicant had been invited to attend an interview for the position of Broadcaster/Journalist 2 and a Journalist 1 in the Finnish Language Program on 7 July 1992. The letter requested that the applicant bring, amongst other things, two separate written referee's reports relating directly to the selection criteria and, if the applicant had previously passed the language test, evidence of the result. 32 The applicant attended the interview on 7 July 1992. A number of applicants also attended interviews on that day and on the following day, in relation to the Finnish language program. Included amongst those other applicants was Mr Mattas. The applicants were interviewed by a panel comprising Sawsan Madina, as chairman, the manager of SBS Radio 2EA, Raymond Moti, news editor of 3EA and AJA member, and Robert Brandsceid, independent committee member of the DILGEA. 33 The committee prepared assessment reports in respect of each of the applicants. Part of an interview report in evidence contains the assessments in relation to Mr Mattas and the applicant. It also contains copies of the applications by each of them, including their references. It also contains their "news report", based on certain clips that they were shown in the course of the interview. 34 By letter of 31 August 1992, the restructuring officer of SBS wrote to the applicant saying that the recommendation from the interview committee had been received. The letter went on to say, relevantly: "I wish to advise you that your application for the above positions unfortunately has not been successful on the basis that you did not meet the selection criteria. As a result, you are welcome to continue your services until and including 13 September 1992. After that date your services will no longer be required. As you have been providing a service to the Finnish Language Program for more than 12 months, you are eligible for compensation. Details of your compensation package is (sic) outlined on a separate page attached to this letter." 35 On the same day Wolfgang Ziegler, the Acting Station Manager of Radio SBS, wrote to the applicant saying that he had been informed by the restructuring co-ordinator that her application for the positions in the Finnish Language Program had not been successful. The letter went on to say that the writer understood that the applicant may be eligible for some compensation. 36 By letter of 24 September 1992 the personnel manager wrote to the applicant regarding her entitlement to compensation, saying that an amount of $1,004.55 had been deposited into her account, which represented payment of her entitlement. The letter set out the calculation of that sum. 37 By letter of 8 October 1992 the restructuring officer sent to the applicant a copy of her assessment report. It is that report and the corresponding report in relation to Mr Mattas that give rise to the complaints by the applicant concerning her treatment by SBS. I shall come to the detail of those reports in due course. Australian industrial relations commission proceeding 38 By notification on 8 September 1992, the Media, Entertainment and Arts Alliance ("MEAA") alleged the existence of an industrial dispute between MEAA and SBS. The notification was to the Australian Industrial Relations Commission ("AIRC"). The matter alleged to be the subject of dispute related to the negotiations on redundancies between MEAA and SBS. That matter originally came before Deputy President Harrison. On that occasion SBS expressed the view that the dispute was about the amount of redundancy benefit that particular persons would receive. MEAA, on the other hand, claimed they were not only concerned about the level of redundancy payment, they also sought to halt the selection process for the new restructured position of Broadcaster/Journalist. At the conclusion of the hearing before Deputy President Harrison, it was recommended that all industrial bans be lifted so that the Commission could assist the parties by chairing conferences. 39 The matter then came before Commissioner Smith of the AIRC on 15 September 1992, where conferences failed to produce a settlement on the dispute. On 1 October 1992, following a further conference, a recommendation was made. The next morning the parties announced that an agreement had been reached. That agreement was relevantly as follows: "1. Compensation package for Contractors The MEAA have agreed to take back to its members an offer from the SBS for the compensation package for contractors terminated as part of the restructuring process to be increased from 26 weeks to 30 weeks for people over 45 years of age and from 13 weeks to 17 weeks for people under 45 years of age. SBS makes this additional and final offer in the interests of equitable treatment of people, notwithstanding their status as contractors of employees. SBS agrees to address individual anomalies relevant to the redundancy package raised by the MEAA. 2. Review of SBS Radio selection process at 2EA and 3EA SBS Management acknowledge the Union's concerns that there are perceptions within SBS Radio 2EA that the current merit based selection process may not be fair. In view of this, SBS Management has agreed to a review of the selection process at both stations by an independent person. … 4. Future negotiations The parties will commence discussions as soon as possible on terms and conditions under the SBS Act. The parties agree to review redundancy and redeployment issues including the question of quantum as part of these discussions. SBS respects the right of the MEAA to raise the issue of paying any improved quantum to people affected by this agreement." 40 The matter of the unfairness of the process was then the subject of further proceeding before the AIRC. In the course of that proceeding the applicant made submissions orally to the Commission. Her submissions relevantly included the following: "…the SBS interview committee during the current restructuring made the decision to terminate my employment by saying that I did not meet the selection criteria. I will briefly detail my background. When I started working at 2EA in 1988 I had undertaken a freelance journalism course as well as broadcasting production, script writing, and film TV and radio works of studies. I also had four years' experience in print media, journalism and advertising in Finland. I was no offered training or proper introduction to my radio work at 2EA. However, I continued learning from my colleagues and I enrolled to the university as a full time student to further my education and abilities on this field. Now, I have two weeks to go before I obtain an degree in BA of Communication, majoring for journalism and media production. Furthermore, I have 12 years' experience in freelance writing. My last article was published 28 September 1992 … However, SBS hired less qualified person than myself in media work. After listening to his programmes my comments are he has a speech defect. The problem, of course, in words with R and S. I do not wish to be unsympathetic to his misfortune, but it is detrimental to the programme quality that he does not provide clear delivery when broadcasting. This is contradictory to selection criteria number one, and I urge the Honourable Commissioner to check SBS's language test. Being a specialist in radio and press news, I feel that his news presentations are unprofessional and sometimes misleading. Firstly, because of his inability to translate from English to Finnish produces non-coherent sentences. Such as his news report after announcing 2EA his reasons for recent strike, by claiming the editors - he did not say broadcasters and journalists, he said editors, went on strike because they were unhappy with redundancy money claimed for damages and military enlisting." 41 On 26 March 1993 Commissioner Smith published his decision on the matter then outstanding. His conclusion was that he was unable to conclude that there was any divergence from proper procedure in recruiting and selecting persons for the positions advertised. The existence of markedly different outcomes in Melbourne and Sydney gave him reason to pause and reflect on the conduct of persons associated with SBS. Commissioner Smith recorded that he appreciated the strong views held by those who condemned the approach taken by SBS but on the material before him he was unable to reach any conclusion that would support he view that impropriety was exhibited by any person associated with the selection of persons for positions at SBS. reports of interviews conducted on 7 & 8 july 1992 42 The reports of the interviews of the applicant and Mr Mattas take the form of dealing with the assessment of each applicant in relation to the criteria set out in the document to which I have already referred – see paragraph 29 above. It is significant that the assessment in relation to the applicant indicated that she did not meet several of the criteria. The conclusion in relation to each criterion on relation to the applicant is as follows: · Criterion 1: The applicant advised the committee that she had previously sat for the SBS Radio language assessment but had not received notification of the result. The applicant did not meet the other criteria and was not required to undergo the language assessment. · Criterion 2: The applicant does not meet this criterion. · Criterion 3: The applicant does not meet this criterion for a Broadcaster/Journalist Level 2 and marginally meets this criterion as a Journalist Level 1. · Criterion 4: The applicant did not provide references which could attest to her management skills. Her CV did not show that she has any experience in a management capacity. It is not possible to assess the applicant against this criterion. · Criterion 5: The applicant meets this criterion to a high degree. · Criterion 6: The applicant marginally meets this criterion. · Criterion 7: The applicant meets this criterion. · Criterion 8: The applicant marginally meets this criterion. · Criterion 9: It is not possible to assess the applicant against this criterion. The conclusion under the heading, "General Comments", is as follows: "The applicant is currently undertaking a degree in communications and has worked for SBS Radio for 4 years. Her written journalist assessment and responses at interview indicate a basic journalistic ability, however, she could not demonstrate the journalistic skills required at the levels applied for. She was also unable to demonstrate the programming ability required of a professional broadcaster. The applicant was not found suitable for Broadcasting Journalist Level 2 and Journalist Level 1." 43 In relation to Mr Mattas, the report relevantly contains the following assessments in relation to each criteria. · Criterion 1: The applicant sat for the independent language assessment and passed. The applicant meets this criterion. · Criterion 2: The applicant meets this criterion Broadcaster Level 2 and Broadcaster/Journalist Level 2. · Criterion 3: The applicant marginally meets this criterion for a Broadcast/Journalist Level 2, and meets for Journalist Level 1. · Criterion 4: The applicant's referees attest to his communication, interpersonal and teamwork skills. The applicant meets this criterion. · Criterion 5: The applicant meets this criterion to a high degree. · Criterion 6: The applicant meets this criterion. · Criterion 7: The applicant meets this criterion. · Criterion 8: The applicant meets this criterion. The conclusion under the heading, "General Comments", is as follows: "The applicant has had extensive experience at the Finnish Broadcasting Corporation as well as the ABC. At the interview he demonstrated that he possessed the programming skills required of a Broadcaster Level 2 and Broadcaster/Journalist Level 2. His journalistic skills marginally meet the standard required of Broadcaster/Journalist Level 2 and the committee believes that the applicant has the ability to perform the duties of Broadcaster/Journalist Level 2. The applicant is marginally suitable for the position of Broadcaster/Journalist Level 2 and suitable for Broadcaster Level 2 and Journalist Level 1." 44 There was evidence before me that Mr Mattas passed the independent language assessment. That evidence consists of a letter from the University of New South Wales to SBS of 19 October 1992, writing to notify SBS of the results achieved in the SBS Language Assessment Test up to that date. The results showed that Mr Mattas passed the test in relation to Finnish. Nevertheless, the applicant contended in the proceeding in this Court that Mr Mattas' skills are less than adequate. In the view which I have reached, it is unnecessary to make any judgment about that question. However, it is appropriate that I refer to the evidence upon which that contention was based. 45 Mr Risto Soder is the Editor of the Suomi Newspaper, which is the leading Finnish newspaper in Australia. On 19 February 1998 he wrote an English language editorial in that newspaper in which he relevantly said as follows: "Our multicultural Australia presents tens of different ethnic groups an opportunity to have radio programs in their own language on SBS. Furthermore, in many cities the Ethnic communities have started their own radio stations and in many of them the Finns are participating as well. This voluntary work is respected and if not all of these programs have been masterpieces, it is understandable. However, normally the quality has been good and there has not been much to criticise. With SBS it is a different story. SBS will employ the staff after a complicated selection process and will also pay the salary. There has been enough applicants for the Finnish programs both in Sydney and Melbourne. Thus you can assume that after this procedure there would have been competent broadcasters in both cities. … The Finnish programs are now made only in Sydney where the broadcaster has for some years now been Mr Karl Mattas. His appointment to this job was a small surprise because he had no earlier experience and his Finnish language was not very fluent. However, nobody should be condemned beforehand and everyone should be given an opportunity to improve his skills. Unfortunately Mr Mattas has not improved at all after the retirement of Mr Pentila (who provided the service in Melbourne), listening to the SBS Finnish programs has been a real pain. Either Mr Mattas do not know Finnish well enough or then he cannot read or both of them. In each case his talk is mostly incomprehensible gibberish, where every second sentence must be corrected or the whole story started again. Naturally, the executives in SBS do not know any Finnish and probably do not even realise this problem. But surely the language skills of all applicants must have been tested beforehand. It would be interesting to know who has tested Mr Mattas and with what kind of results. And naturally how his competence as a broadcaster has been evaluated. For instance, his choice of news presented in the programs gives cause to assume his is not fully competent." 46 Mr Soder said in an affidavit that the views that he expressed in that editorial were his opinions at that time and that he was expressing his views as they existed at the time of the editorial. He said that he made his comments after listening to Mr Mattas' program since Mr Mattas took over in 1992. Mr Soder also said that there are two official languages in Finland: Finnish and Swedish. He said that Mr Mattas is from a Swedish speaking background, which represents about 5 per cent of the population. Finnish is taught at school to all of the population. However, in terms of pronunciation, grammar and vocabulary, it was apparent to Mr Soder, at the time of writing the editorial, that Mr Mattas' mother tongue was not Finnish. 47 No evidence was given of Mr Soder's opinion at any other time, although an application was made to adjourn the hearing to enable further evidence to be obtained from Mr Soder. I declined that application in the absence of any satisfactory evidence to explain why further relevant evidence was not obtained previously. In any event, as I have already said, I do not regard this evidence as having any bearing on the outcome of the proceeding. 48 The applicant also gave evidence by affidavit in support of her contention that Mr Mattas' Finnish was inadequate. The applicant is a native Finnish speaker, having been born in Suomussalmi. She lived in her birthplace until she was approximately fifteen. She then moved to Helsinki, where she lived until she was twenty four. I accept that the applicant is a fluent Finnish speaker. 49 She annexed to her affidavit a number of comments made by her in respect of broadcasts by Mr Mattas in the Finnish language program between 13 August 2000 and 4 March 2001. The comments consist of a detailed schedule of mistakes in Mr Mattas' Finnish. However, no context is given for the alleged mistakes, so that it is not possible to make any judgment as to the seriousness of the errors, or the extent to which a listener would not be able to understand what was being said in Finnish. Some of the comments appear to be minor. They concern pronunciation and mistakes in inflection. They do not indicate to me that the broadcasts by Mr Mattas would not be comprehensible to a Finnish speaker. In any event, as I have said, on the view that I take, that evidence is not material. 50 The thrust of the applicant's complaint is that she was not given the opportunity to show her expertise in Finnish in circumstances where Mr Mattas was appointed notwithstanding his unsatisfactory skill in the Finnish language. I was invited to form a conclusion that the assessments by the interviewing committee as to the fluency of Mr Mattas in Finnish were wrong. That seems to me to be a complete misconception of the task of the Court in an application such as the one before me. construction of s 127a 51 The question is whether a contract as defined in s 127A(1) of the Act is unfair. The question is not whether a party to the contract has performed his or her obligations under the contract. The first question that must be determined is whether or not there can properly be said to be a collateral arrangement relating to the contract for services between the applicant and SBS. It is common ground that there was in force up until 31 August 1992 a contract for services within the meaning of s 127(1)(a) of the Act. The question is whether there was a collateral arrangement relating to such a contract. arrangement relating to the contract 52 An "arrangement" is apt to describe something less than a binding contract or agreement. However, in order for there to be an arrangement, there must be a meeting of the minds of those said to be parties to the arrangement. There must be a consensus as to what is to be done, not merely a unilateral hope as to what might happen or might be done. An arrangement will normally involve a communication between parties giving rise to expectations in each other that the other will act in a particular way. 53 There is, of course, no necessity for an element of commitment between the parties to an arrangement. If there were, there may be a contract or an agreement enforceable at law. If it could be said that the arrangements concerning the interview of July 1992 and the basis upon which a position would be offered to the applicant relate to the contract for services, I am satisfied that they are capable of constituting an arrangement. That is to say, the applicant applied for the position. I infer that the expectation of the applicant and SBS was that the decision in relation to her application would be made in accordance with the regime that had been established pursuant to the negotiations concerning restructure, which I have already described. 54 There was an expectation and a consensus that the positions advertised would be filled in accordance with the selection criteria that had been published as part of the information kit. There is no contention that those arrangements were in the slightest bit unfair. Indeed, they appear to me to be eminently fair. 55 However, I do not consider that the arrangements relating to interview and appointment relate to the contract for services between the applicant and SBS. 56 It may be that the applicant was granted an interview because of her experience with SBS. It may be that she was granted an interview because of the contractual relationship which then existed. However, that in my view is not sufficient to conclude that the arrangements for the interview relate to the contract for services. They have no connection with the contract for services. The contract for services could have continued irrespective of whether the interview was granted. The interview and the arrangements relating to the filling of positions was not in any way collateral to the contract for services. That would be sufficient to dispose of this application. unfairness 57 However, as I have said, this application is not based on the contention that those arrangements were unfair, but is based on a contention that that selection committee made a mistake in preferring Mr Mattas over the applicant. I have already said that it is significant that the committee concluded that the applicant did not meet certain of the criteria. For that reason, she was not required to undergo the language assessment. One of the requirements of the interview was that she bring evidence of her having passed the language test. She apparently failed to comply with that requirement. The failure to ask her to undergo language assessment is completely irrelevant to any suggestion of unfairness. It can be inferred that the reason why the applicant was not offered the position is simply because she did not meet certain of the criteria for the position. It was therefore unnecessary for her to undergo a test to see if she satisfied one of the other criteria. On the other hand, Mr Mattas, it seems, satisfied the independent language assessment, the requirement imposed pursuant to the restructuring arrangements that I have described. Whether that test was adequate is something about which this Court can express no view at all. 58 The other complaint about the assessment of Mr Mattas is that Criterion 4 required demonstrated management skills, including supervisory, liaison teamwork, administrative and budgeting skills. The comment in the assessment is that Mr Mattas' referees attested to his communication, interpersonal and teamwork skills. There is no indication that the referees attested to the other skills required by Criterion 4. However, the committee concluded that the applicant met that criterion. It reached that conclusion after interviewing Mr Mattas, and considering his curriculum vitae as set out in his application form. It is certainly not apparent that there was no material before the committee upon which it could base its conclusion that Mr Mattas satisfied Criterion 4. 59 This criticism is misconceived. The applicant has eschewed any complaint about the process as it was intended to be followed. Yet she contends that there was unfairness in the outcome in the particulars that I have indicated. As I have already indicated, that is a misconception. 60 Section 127A is concerned only with unfairness and harshness at the time when a contract is made. It may be that the terms of a contract vary during the course of its performance. Thus, a contract which was fair at the time when it was entered into may, by reason of some variation of it, become unfair. The Court may then be called upon to form an opinion in relation to the contract as varied. Nevertheless, it is the terms of the contract which must be considered. Considerations of unfairness must be made of the contract in its form at the time it was made or varied. 61 I do not consider that there is any warrant, in the clear words of s 127A, for considering the fairness of conduct by a party to a contract in not observing the terms of the contract. That is, in effect, the complaint that is made. Even if that were open, I do not consider that such a complaint is made out. I do not consider there is any material before me to support a conclusion that the committee decided the appointments in question, otherwise then in accordance with the regime that had been laid down. 62 There is nothing unfair in the outcome on the basis of the material before me. I make no assessment of the competence of Mr Mattas for the reasons that I have indicated. That is sufficient to dispose of the application. However, a number of other matters were raised by SBS to which I shall refer briefly. retrospectivity 63 Sections 127A and 127B were first inserted into the Act by s 7 of the Industrial Relations Legislation Amendment Act 1992 ("the 1992 Amendment"). In its original form, s 127B provided that application could be made to the AIRC to review a contract. Section 7 of the 1992 Amendment commenced on 23 July 1992, pursuant to proclamation dated 21 July 1992. Sections 127A and 127B were amended by s 71 and s 72 of the Industrial Relations Reform Act 1993 ("the 1994 Amendment"). Sections 71 and 72 commenced on 30 March 1994 pursuant to proclamation dated 25 March 1994. By s 71 and s 72, the Industrial Relations Court of Australia was substituted for the AIRC, as the tribunal to which application could be made under s 127A and which could make orders pursuant to s 127B of the Act. Thus, the jurisdiction under s 127B was conferred on the Industrial Relations Court of Australia. The jurisdiction of that Court was subsequently conferred on the Federal Court of Australia. Nothing appears to turn on that further complication. 64 Neither s 127A nor s 127B alters the rights or liabilities of any party to a contract as defined. Rather, the provisions authorise the Court to make orders that have the effect of varying the rights and liabilities of parties to such a contract. Thus, the Court may, by its orders, either set aside the whole or a part of a contract or vary the contract. No court had jurisdiction to do so prior to 30 March 1994, although the AIRC had power to make such orders from 23 July 1992. 65 A question that arises is whether the jurisdiction of this Court extends to setting aside, either in whole or in part, or varying, a contract that was fully executed and performed prior to the conferral of jurisdiction on the Court or its predecessor. In my opinion, on any view, any collateral arrangement alleged by the applicant had been made prior to that jurisdiction being conferred. 66 The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities that the law had defined by reference to the past events; see Maxwell v Murphy (1957) 96 CLR 261 at 267. Neither the 1992 Amendment or the 1994 Amendment, of itself, affected any right or liability under any contract as defined. Their effect, as I have said, was simply to confer a jurisdiction and power, first on the AIRC and then on the Industrial Relations Court, to affect such rights. 67 As I have said, I do not need to reach a final conclusion in relation to this matter. However, my tentative view would be that the 1994 Amendment should be construed as conferring jurisdiction and power on the Federal Court to make orders only with respect to contracts as defined that came into existence on or after 30 March 1994. To construe the provision otherwise would involve the possibility that the Court could make orders that would affect rights that were vested at that date. delay 68 SBS also relied on a number of matters relating to the delay in the commencement of this proceeding. The Act does not contain any time limit for the commencement of a proceeding pursuant to s 127A. SBS contended that s 14 of the Limitation Act 1969 (NSW) applies to the present proceeding. Section 14(1) provides relevantly as follows: "An action on any of the following causes of action is not maintainable if brought after the expiration of a limitation period of six years running from the date on which the cause of action first accrues to the plaintiff or to a person through whom he claims: (a) a cause of action founded on contract (including quasi contract) not being a cause of action founded on deed, …." I do not consider that the cause of action under s 127A is founded on a contract. Rather, it is to seek orders that have the effect of varying a contract. If the Court made an order varying a contract, it would be a matter for an applicant to seek to enforce the contract, as varied, in a court of competent jurisdiction. 69 It may be that a contract as varied would give rise to a cause of action. The question would then arise as to when that cause of action arose. It may be that, on proper analysis, the cause of action on a contract for services as varied by the Court arises at the time when the variation is made. 70 It would be a curious result where a contract were varied such that there was a cause of action for the recovery of moneys under the variation that might be payable if that cause of action were held to have arisen prior to the variation. It may be that in an appropriate case, the time at which any money payable under the contract as varied is payable should be specified by the Court to avoid any difficulty with limitation in such circumstances. 71 In any event, I do not consider that s 14 would have been a bar to this claim. Alternatively, it is alleged that the limitation provided by s 14 should be applied by analogy to a claim of this nature. However, the cause of action in issue in this proceeding is a statutory one. A claimant who can bring circumstances within the requirement of the section is entitled to have the Court exercise its discretion in her or his favour. Prima facie, any limitation defence that is available to such a statutory cause of action should be found in the provisions of the legislation that has created it or within the provisions of some other legislation of more general import such as the Statute of Limitations. There is nothing in the Act that allows any defence to be raised on the basis of delay in initiation of proceedings, which might otherwise circumscribe the jurisdiction of the Court. 72 It seems to me that the matter should be approached on the basis that there is a statutory entitlement to commence proceedings, which is not affected by any limitation legislation. The question of delay is relevant only to the form of relief that might be awarded where, in appropriate circumstances, undue delay may render it inappropriate that a particular form of relief be available. 73 On that basis, it may that the doctrine of laches, also relied upon by SBS, does not form part of the substantive law to be considered in dealing with claims brought under the Act. The doctrine of laches may not be applicable to prohibit a claim for relief being initiated or prosecuted, at least on an interlocutory basis, although it may be appropriate that such relief be available in the context of any relief granted, the form of any final orders. However, again, I do not need to decide this question. 74 It may be that delay of itself is a reason why the discretion might be exercised against an applicant. That, however, is a different matter from saying that the application is barred. Delay of itself might be a reason that could be taken into account in determining whether or not the arrangement complained about was unfair. It should, perhaps, be said that, in the present case, the applicant has not stood by for eight years, albeit that eight years elapsed from the events in question before the commencement of this proceeding. The applicant may well have had poor advice in relation to her complaint. Again, it is not appropriate that I form any judgment on that matter. However, since it has been litigated, I will indicate briefly the circumstances relied on by the applicant as an answer to SBS's contentions relating to delay. 75 As I have already said, the applicant appeared in the proceeding before Commissioner Smith in the AIRC. Following Commissioner Smith's decision, the applicant was advised that there was nothing she could do about that decision. She then spoke to a firm of solicitors and sent letters to various agencies seeking their assistance in obtaining a review of the way in which her application to SBS had been treated. 76 A number of letters between 16 October 1992 and 28 January 1997 were written by her in that regard. She made application under the Freedom of Information Act 1982 (Cth) for access to materials relating to the decision. As a consequence, she received the assessment relating to Mr Mattas in late 1994. She was subsequently advised to pursue an application relating to unfair dismissal under the New South Wales Industrial Relations Act before the New South Wales Industrial Relations Commission. She subsequently withdrew an appeal in relation to that application. She subsequently made an application before the Chief Industrial Magistrate. That application was unsuccessful. She lodged an appeal to this Court against that decision but, subsequently, on legal advice, withdrew the appeal. It was not until 2000 that she commenced this proceeding. 77 The applicant has certainly been energetic in pursuit of her complaint. As I have said, I do not have the material before me to form any view that any complaint that she makes was well founded. What is clear to me is that the application to this Court is misconceived and in my view should not have been brought. I should add that the statement of claim also contains an assertion that the original contract for services was unfair in its operation and in its result. The particulars of that claim were that the applicant was not paid the "language allowance" pursuant to certain awards. No submissions were addressed in support of that contention and, when counsel for the applicant was reminded, he indicated that the claim was abandoned. That claim was made in the face of a determination that the applicant was not an employee of SBS. It is a claim that should never have been made. 78 It follows from what I have already said that the application should be dismissed. A question, however, arises as to whether it is appropriate to make an order for costs in relation to the matter. Section 347 of the Act provides as follows: "A party to a proceeding in a matter arising under the Act is not to be ordered to pay costs incurred by any other party unless the first mentioned party instituted the proceeding vexatiously or without reasonable cause." 79 The mere fact that an applicant fails to make out a case for the relief sought in a proceeding cannot render the proceeding something other than one in a matter arising under the Act. Careful scrutiny will be required to ascertain whether the claim made was vexatious or without reasonable cause at its inception. Clearly enough, the words of the Act must be allowed to speak for themselves. It is not helpful to substitute different words for those of s 347. 80 I do not consider that the claim made under s 127A was instituted vexatiously in any subjective sense. Indeed, it would, in my view, not be open to SBS to contend that the applicant acted vexatiously in a subjective sense. While she swore an affidavit setting out the circumstances of her alleged grievance, she was not cross-examined in relation to the commencement or institution of the proceeding. A proceeding might be seen to be instituted "vexatiously" in the circumstances that are the subject of numerous decisions in relation to that term when used in the rules of the Court relating to summary dismissal. 81 I consider the expression, "without reasonable cause", is one apt to describe a proceeding that is capable of being disposed of summarily. I consider that this proceeding is of that nature. I consider that the claims that have been made have no substance in fact and law. I consider that the proceeding was therefore instituted without reasonable cause in the sense that I do not consider that the case advanced was arguable. In those circumstances, I consider that it is an appropriate case to order that the applicant pay the costs of SBS of the proceeding. I certify that the preceding eighty-one (81) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett . Associate: Dated: 30 October 2001 Counsel for the Applicant: Mr J Berwick Solicitor for the Applicant: Turner Whelan Counsel for the Respondent: Mr A Ashburner Solicitor for the Respondent: Toomey Pegg Drevikovsky Date of Hearing: 24-26 September 2001 Date of Judgment: 26 September 2001	13,235
federal_court_of_australia:fca/single/1996/1996fca0463	decision	commonwealth	federal_court_of_australia	text/html	1996-05-31 00:00:00	Clarendon Homes (Aust) Pty Ltd v Homeworld III Pty Ltd & Anor [1996] FCA 463	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1996/1996fca0463	2024-09-13T22:53:01.685960+10:00	CATCHWORDS CONTRACT - formation - whether any of several documents passing between parties constituted an offer - whether offer accepted within its terms. Trade Practices Act 1974 (Cth) Masters v Cameron (1954) 91 CLR 353 CLARENDON HOMES (AUST) PTY LIMITED v HOMEWORLD III PTY LIMITED and NEW SOUTH WALES LAND & HOUSING CORPORATION (t/as LANDCOM) No. NG 356 of 1996 CORAM: FOSTER J DATE: 31 MAY 1996 PLACE: SYDNEY IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 356 of 1996 ) GENERAL DIVISION ) BETWEEN: CLARENDON HOMES (AUST) PTY LIMITED Applicant AND: HOMEWORLD III PTY LIMITED First Respondent NEW SOUTH WALES LAND & HOUSING CORPORATION (t/as LANDCOM) Second Respondent JUDGE MAKING ORDERS: FOSTER J DATE: 31 MAY 1996 PLACE: SYDNEY MINUTE OF ORDERS THE COURT ORDERS THAT: 1. Paragraphs 1, 2, 3, 6, and 7 of the amended application be dismissed. 2. The issues pleaded in paragraphs 17 to 32 of the amended statement of claim be tried separately. 3. The applicant pay the first respondent's costs of the separate trial. 4. Leave be granted to the applicant to discontinue the application in paragraphs 4(a) and 5(a) of the amended application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. NG 356 of 1996 ) GENERAL DIVISION ) BETWEEN: CLARENDON HOMES (AUST) PTY LIMITED Applicant AND: HOMEWORLD III PTY LIMITED First Respondent NEW SOUTH WALES LAND & HOUSING CORPORATION (t/as LANDCOM) Second Respondent CORAM: FOSTER J DATE: 31 MAY 1996 PLACE: SYDNEY REASONS FOR JUDGMENT (Extempore) FOSTER J: The applicant in these proceedings, Clarendon Homes (Aust) Pty Limited, is a project home builder. The first respondent is a company engaged in the construction of a display village known as "Homeworld III" ("the display village"). The second respondent, commonly referred to as Landcom, has entered a submitting appearance in these proceedings; it is the owner of the land upon which it is contemplated that the display village will be constructed. Annexed to an affidavit of Peter David Campbell sworn in these proceedings, he being a Director of the applicant, are documents indicating the nature of the agreements into which project home builders were required to enter if they were to participate in the display village. In so participating they acquired title to land upon which their respective project homes were to be built. There is no need for me to set those documents out in these short reasons, or indeed to make any particular reference to the very elaborate provisions that they contain. Stated broadly, the structure of the commercial operation between the parties was that builders wishing to participate in the display village project were required to purchase shares in the first respondent. The purchase of those shares entitled them to acquire title to selected building sites provided by the second respondent in the display village area, upon which they were to erect their display homes. In addition to the bare acquisition of shares, the builders were required to enter into a number of obligations set out in a document titled "Exhibition Village Management and Promotion Agreement". This was a very lengthy document containing a large number of terms to be observed by the parties. The conduct of the project by the first respondent involved a promotion under which a large number of lots of land made available by the second respondent were allocated to applicant builders by way of ballot. It appears that, when that aspect of the promotion had been completed, there remained some 20 lots which were not allocated and which were still available for allocation. The first respondent then set about the allocation of those remaining lots, by what can be described as the second limb of the main promotion. It is quite clear that the applicant had been aware of the promotion from the start. Indeed, it took exception to a particular clause of the agreement that the applicant builders were required to sign, and regarded that clause as being a restraint of trade and in breach of the Trade Practices Act 1974 (Cth). Furthermore, that clause, if applicable, would apparently have had a detrimental effect upon a similar promotion that the applicant itself wished to make, in respect of a large area of land, near the area where Homeworld III was being promoted. Those matters appear to be the subject of aspects of the litigation which has been brought by the applicant against the respondents. It is only a part of that litigation which the Court is being asked to decide today. The applicant seeks specific performance of an agreement it alleges it made with the first respondent for the purchase of three blocks of land in what I have described as the second limb of the overall promotion. They are described as blocks 63, 64 and 65. The issue between the parties can be stated quite simply. The applicant, for its part, alleges that it had entered into a firm and binding contract for the acquisition of those three blocks. This is denied by the first respondent, who asserts that the matter never went beyond the stage of its making a firm offer subject to a time limit. That offer is alleged to have lapsed before the purported acceptance of it by the applicant. The matter for the most part falls for determination upon a consideration of certain documents that passed between the parties, together with a consideration of certain conversations deposed to in affidavit evidence and in oral testimony as to certain events which occurred after the date upon which the first respondent alleged the offer lapsed. I turn then to the documents that form the basis of the contentions between the parties. On 16 February 1996, the applicant, having apparently decided that it wished to acquire three of the remaining blocks, sent by facsimile a communication to the first respondent. It did so under the name of Bellevale Homes Pty Limited, which company is apparently an associate or a subsidiary of the applicant company. No issue is taken in these proceedings as to the difference between these two companies, and I shall continue to refer to the applicant company simply as the applicant, whether or not the correspondence in question emanates from it or from Bellevale Homes Pty Limited. That facsimile communication was sent to the secretary of the first respondent. It stated that the applicant was aware that 20 additional blocks of land were available in the Homeworld III project, and wanted to take three of those blocks. The letter concludes with this request:- "Would you please fax to us today ... location plan, prices and terms for the available blocks to enable us to make our selection and commitment." On 21 February a further facsimile communication was sent by the applicant to the first respondent. It referred to the first communication, and confirmed that the applicant had:- "read Special Condition Clause 12(5)(b) of the HWIII Builder's Agreement and accept that we must sign this agreement in its entirety if we are to participate in HWIII." It concluded with a request that the site plan, prices, terms and a full copy of the builder's agreement be sent to the applicant, again, "so we might make our selection and commitment". Although there is no direct evidence on the point, it is quite clear that some conversation must have occurred between the dates of these two communications, in which the question of the special condition clause had been raised and insistence expressed on the part of the first respondent that the agreement containing it must be signed, presumably without any deletion of that clause. On 22 March the solicitors for the first respondent forwarded to the applicant a letter which enclosed, for the information of the applicant: "A Notice to Prospective Homeworld III Builders, Price List and Plan to assist you in selecting your lot or lots." There was also enclosed a document described as a "builders/investors particulars form", which was for completion and return "to enable the appropriate documentation to be prepared". On 2 April 1996 the applicant wrote to the respondents' solicitors, apparently in response to the last communication, enclosing the completed builder's particulars form and requesting that appropriate documentation for the purchase of lots 63, 64 and 65 be prepared. On 4 April 1996, in a letter, which, in my opinion, is of major importance in this litigation, the respondents' solicitors replied to the last letter. In their letter in reply they referred to the receipt of the builders/investors particulars form. That form, I should interpolate, is one of the annexures to Mr Campbell's affidavit. It is clearly a pro forma that all builders or investors were required to fill in if they wished to participate in this project. It is a form which provides extensive information as to the nature and substance of the builder and investor, providing in effect detailed information that the first respondent might well wish to consider when contemplating whether or not to enter into a significant commercial transaction with any such builder or investor. The letter enclosed a number of documents for execution by the builder under common seal, with an admonition that all the pages were to be initialled at the bottom. Those documents were, first, detailed in the letter as being the "Exhibition Village Management and Promotion Agreement" to which I have already made a reference. Clearly enough it is the same agreement used in the first part of the promotion, being used again in the second part. The second document was an application for allotment of shares. The third document was an authority to complete blanks in the documents, and the fourth, a particular notice. Elaborate instructions were provided as to how the documents were to be signed, with particular reference to the affixing of company seals and the use of powers of attorney. The letter then required that there be returned to the office of the respondents' solicitors those documents duly completed, and in addition a series of cheques to be made payable to the promoter and the solicitor. There was an indication that as soon as practicable the promoter would allocate shares in accordance with the application for allotment of shares and forward the appropriate share certificate. The letter went on to indicate that, as the overall scheme clearly enough required, when those matters were attended to the matter of the entering into of appropriate contracts with Landcom for the purchase of the lots was to be dealt with. That latter contractual relationship has, in my view, no bearing upon the question of whether or not there was a concluded contract between the applicant and the first respondent. It is the applicant's contention that, in effect, this letter of 4 April 1996 should properly be regarded as an acceptance by the first respondent of an offer previously made by the applicant. Reliance in this regard is placed on the well‑known case of Masters v Cameron (1954) 91 CLR 353. It was submitted that a contract contemplated by what is generally described as the second limb of the statement of principles set out in that case (at 361) had come into existence. It is the submission of the respondent, however, that no such contract came into existence at that point of time. Instead, it is submitted, the letter of 4 April should be characterised as simply a firm offer made by the first respondent to the applicant which provided within its terms for the means by which it should be accepted. In my view, that submission correctly characterises this document. What I have to determine is whether an acceptance of it took place or not. This requires that consideration be given to a further letter dated 24 April 1996, forwarded by the first respondent to the applicant. It is not difficult to infer that some concern was being experienced as to the delay which was occurring in relation to the return of the executed documents together with the cheques which had been required in the letter of 4 April. The letter of 24 April reads as follows: "The Homeworld III Pty Limited board of directors have advised me that the offer which has been extended to Bellevale Homes to take up Lots 63, 64 and 65 in Homeworld III will expire at 5 pm on Friday 26 April 1996. The board believes you have had ample time to return the documentation to us following your telephone advice of same to me last Wednesday 17 April. Please ensure that your completed Registration of Interest Form is received by me no later than 5 pm on Friday, otherwise the land will be made available to other interested builders." The document is signed by Mr Price, who, I believe, is the secretary of the first respondent. It has but faintly been argued that the use of the term "Registration of Interest Form" in the last sentence which I have quoted, in some way has an invalidating effect on this letter as a letter imposing a condition upon the acceptance of the offer which had previously been made. In my view, it does no such thing. There is, as part of the overall documentation involved in the Homeworld project, a document described as a "registration of interest form". The simple position is that at no stage was this form one of the documents relevant to what these parties were doing in respect of the second round of allocation of lots in the project village. It was plainly a slip, and would plainly have been viewed as a slip by anyone receiving the letter. The significant words in the letter, in this regard, are the words "return the documentation to us". They can only have been a reference to the documentation forwarded in the letter of 4 April, the execution and return of which was the form of acceptance stipulated for the offer made in that letter. In my view, the letter of 24 April legitimately limited the time for acceptance of the offer embodied in the letter of 4 April to 5 pm on Friday 26 April 1996. The result was that the offer previously made was held open until that time, after which, unless it were further extended, it would lapse and could no longer be accepted. It has been conceded that, had the offer been accepted by the forwarding of the documents and the cheques by 5 pm on that day, a concluded agreement for the allocation of shares would have come into existence. However, the fact of the matter is that the relevant completed agreements, applications for shares and cheques were not provided to the first respondent until 29 April. The view was then taken and expressed that that form of acceptance had come too late, the offer having already lapsed. I should add that a letter obviously came into existence in the offices of the applicant on 26 April. That letter is an annexure to the affidavit of Mr Campbell. It in fact is addressed, relevantly, to the respondent's solicitors, and purports to enclose those very executed documents and cheques to which I have made reference, and it asks that a signed copy of the agreement be provided in due course. In my view, it was clearly contemplated that the letter would be delivered on 26 April, together with the documents, in order to conform with the time of expiry of the offer. It may be noted that on the same day a letter was sent by the applicant's solicitors to the first respondent's solicitors referring to the outstanding dispute as to the validity of the clause of the agreement to which I have already made reference. That letter says "our client will exchange today." The use of the word "exchange" in that letter clearly conveys that the solicitors for the first respondent accepted that a contract would come into existence upon the provision to the applicant of the documents and cheques stipulated for in the letter of 4 April, and which in fact were intended to be forwarded on 26 April under cover of the letter to which I have previously made reference. In my view, although the argument has been forcefully put, when one looks at the situation as it pertained at the time, it was not the view of those advising the applicant that they already had a second limb Masters v Cameron type contract and were merely in effect performing that contract by the execution of these documents. It was clearly understood that there would be no contract unless the offer was accepted within the time limit, and all efforts were being bent towards that being done. The fact that it did not occur appears to have resulted from the relevant documents and covering letter being placed in the hands of an overnight courier rather than an on-the-spot courier, with the result that they were delivered after the offer had in fact lapsed. Some evidence was given which was directed to the establishment that there had either been a waiver of the imposed time limit or an extension of it. That evidence was given by affidavit. Two conflicting points of view were advanced, one through an employee of the applicant, and one through an employee of the respondent's solicitors. Both these ladies have given evidence before me. I am more than satisfied to accept the version of Ms Buckton, the employee of the respondent's solicitors, particularly as her recollection was supported by a contemporaneous note that she made. I am satisfied that there was an intention at all times on all sides that the method of acceptance stipulated for would in fact be carried out and consummated before the expiry of the time limit, and that in the circumstances there was a failure to do this. The offer had lapsed, it could not be accepted and no contract came into existence. I therefore dismiss that part of the current proceedings which seeks specific performance of that contract simply on the basis that there was no such contract. I certify that this and the preceding twelve (12) pages are a true copy of the reasons for judgment herein of the Honourable Justice M. L. Foster. Associate: Date: 31 MAY 1996 A P P E A R A N C E S COUNSEL FOR THE APPLICANT: N. A. COTMAN INSTRUCTED BY: MALCOLM McDONALD & CO COUNSEL FOR THE RESPONDENT: N. C. HUTLEY INSTRUCTED BY: VAUGHAN BARNES DATE OF HEARING: 31 MAY 1996 DATE OF JUDGMENT: 31 MAY 1996	3,819
federal_court_of_australia:fca/single/2013/2013fca0315	decision	commonwealth	federal_court_of_australia	text/html	2013-04-09 00:00:00	Jordan v HLB Mann Judd Wealth Management (NSW) Pty Ltd [2013] FCA 315	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca0315	2024-09-13T22:53:02.716958+10:00	FEDERAL COURT OF AUSTRALIA Jordan v HLB Mann Judd Wealth Management (NSW) Pty Ltd [2013] FCA 315 Citation: Jordan v HLB Mann Judd Wealth Management (NSW) Pty Ltd [2013] FCA 315 Parties: VICKI JORDAN v HLB MANN JUDD WEALTH MANAGEMENT (NSW) PTY LTD (ACN 106 772 696) and LONSDALE FINANCIAL GROUP LIMITED (ACN 006 637 225) File number: NSD 2070 of 2011 Judge: FOSTER J Date of judgment: 9 April 2013 Catchwords: NEGLIGENCE – whether professional financial advisers were guilty of negligence or misleading or deceptive conduct when they included in a diverse portfolio of recommended investments, developed as part of an overall investment plan, two particular hedge funds given the total amount to be invested ($5.2 million–5.5 million), the particular circumstances of the investor and the relative risks of the funds and products within the recommended portfolio (including the risks inherent in the two hedge funds in question) Legislation: Australian Securities and Investments Commission Act 2001 (Cth), s 12DA and s 12GF Corporations Act 2001 (Cth), ss 761A, 761G, 766B, 913B, 944A(6), 945A, 1041H and 1041I Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9 Corporations Regulations 2001 (Cth), reg 7.1.19 Date of hearing: 28–30 May 2012 Date of last submissions: 1 June 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 136 Counsel for the Applicant: Mr JJ Hyde Solicitor for the Applicant: Slater and Gordon Limited Counsel for the Respondents: Mr GKJ Rich Solicitor for the Respondents: Norton Rose Australia IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2070 of 2011 BETWEEN: VICKI JORDAN Applicant AND: HLB MANN JUDD WEALTH MANAGEMENT (NSW) PTY LTD (ACN 106 772 696) First Respondent LONSDALE FINANCIAL GROUP LIMITED (ACN 006 637 225) Second Respondent JUDGE: FOSTER J DATE OF ORDER: 9 APRIL 2013 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The applicant have leave to amend her Amended Fast Track Application filed on 11 April 2012 by filing and serving a Further Amended Fast Track Application in accordance with MFI-2 marked as such on 28 May 2012. 2. The Application and the whole of the proceeding instituted thereby be dismissed. 3. The applicant pay the respondents' costs of and incidental to the said proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2070 of 2011 BETWEEN: VICKI JORDAN Applicant AND: HLB MANN JUDD WEALTH MANAGEMENT (NSW) PTY LTD (ACN 106 772 696) First Respondent LONSDALE FINANCIAL GROUP LIMITED (ACN 006 637 225) Second Respondent JUDGE: FOSTER J DATE: 9 APRIL 2013 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant, Vicki Jordan, has sued HLB Mann Judd Wealth Management (NSW) Pty Ltd (HLB) and Lonsdale Financial Group Limited (Lonsdale) for damages in respect of financial losses suffered by her when two investments made by her upon the recommendation of HLB and Lonsdale both failed. 2 Lonsdale is a financial services licensee. HLB is Lonsdale's authorised representative. Together, Lonsdale and HLB carry on business providing financial services. Lonsec Limited (Lonsec), a corporation associated with Lonsdale, carries out research and provides analyses and reports in respect of potential investments that might be undertaken by clients of Lonsdale and HLB. 3 Ms Jordan approached HLB in 2005 to act as her financial adviser in relation to the investment of a substantial sum of money paid to her as a matrimonial property settlement upon divorce from her ex-husband. In that property settlement, Ms Jordan received $7 million. After purchasing a family home in which she and her two children were to live, Ms Jordan intended to invest approximately $5.21–5.5 million with the assistance of HLB. 4 Ms Jordan is not well educated and had little experience of financial matters when she approached HLB. She relied entirely upon Mr Michael Hutton of HLB to help her articulate her goals and objectives and to identify and recommend appropriate investments. 5 In broad terms, Mr Hutton recommended that Ms Jordan invest $1 million in a BT-Managed Superannuation Fund and $4.21 million in a diverse investment portfolio. 6 Mr Hutton is a very experienced financial planner. He has a Bachelor of Economics and is a Chartered Accountant (Financial Planning Specialist). He holds a Diploma of Financial Planning, is a Certified Financial Planner and a Member of the Financial Planning Association of Australia, the Australian Institute of Company Directors and the Self-Managed Super Fund Professionals Association of Australia. 7 Mr Hutton commenced employment with HLB in 1984 as an Accountant/Financial Adviser. He then worked in a number of overseas postings before returning to Australia. In 1996, he established HLB's Self-Managed Super Fund Division. In 1999, he established HLB's integrated Personal Wealth Management Division and has worked as a Financial Planner within that Division ever since. 8 Since about 1999, Mr Hutton's principal duties and responsibilities have been to oversee HLB's Self-Managed Superannuation and Financial Planning Divisions. 9 As at November 2006, HLB had approximately $140 million of funds under advice and 150 financial planning clients. 10 In a letter dated 16 November 2006 with which was enclosed a detailed Statement of Advice dated the same day (the first Statement of Advice), Mr Hutton recommended a number of investments to Ms Jordan. Before finalising that letter, he had given a great deal of thought to her circumstances with a view to determining an appropriate set of recommended investments for her. Included within the recommended investments were investments in two Basis Funds being: (a) The Basis Aust-Rim Opportunity Fund (Basis Aust-Rim Fund); and (b) The Basis Capital Yield Fund (Basis Yield Fund). 11 In July 2007, it became apparent that the two Basis Funds in which Ms Jordan had invested were in financial difficulty. Not long thereafter, it was clear that Ms Jordan had lost all of the funds which she had placed into those two Funds ($537,500.00). 12 Ms Jordan contends in this proceeding that HLB should never have recommended that she invest in either of the Basis Funds or, alternatively, should not have done so without explaining more fully than it did the risks, features and historical performance of both of the Basis Funds. Ms Jordan does not criticise the overall investment strategy recommended by HLB nor does she complain about any of the other investments recommended by HLB in the first Statement of Advice. 13 Ms Jordan alleges that HLB and Lonsdale breached contractual and tortious duties of care owed by each of them to her. She also claims that they engaged in misleading or deceptive conduct or conduct that was likely to mislead or deceive by representing to her in the first Statement of Advice that the investment recommendations which they made in that letter were suitable for her having regard to her risk profile when clearly they were not. She also argues that both HLB and Lonsdale breached s 945A of the Corporations Act 2001 (Cth) (the Corporations Act) as it then stood by making the recommendations which they did without having a proper basis for doing so. Section 945A was repealed on 1 July 2012. 14 Ms Jordan lost her capital ($537,500.00) plus interest. She also claims the quantum of returns that she would have derived had she invested in certain alternative fixed securities instead of investing in the two Basis Funds. The assumption behind this approach to damages is that all of the other investments recommended by HLB were satisfactory and are to be included in Ms Jordan's postulated investment portfolio. The only change involves the two Basis Funds. 15 Ms Jordan does not distinguish between HLB and Lonsdale in terms of liability for the losses which she suffered. The respondents, on the other hand, do make a distinction between the position of HLB and that of Lonsdale. In due course, should I find for Ms Jordan, it will be necessary to determine whether the respondents' contentions are correct. The Parties' Pleaded Cases The Applicant's Case 16 Ms Jordan's case, as pleaded in her Amended Fast Track Statement dated 11 April 2012, may be summarised as follows: (a) Lonsdale was a financial services licensee within the meaning of s 761A of the Corporations Act and held an Australian Financial Services Licence granted pursuant to s 913B of the Corporations Act. (b) HLB was the authorised representative of Lonsdale within the meaning of s 761A of the Corporations Act; (c) Lonsdale and HLB carried on business providing financial services within the meaning of s 761A of the Corporations Act, including financial product advice within the meaning of s 766B of the Corporations Act; (d) Ms Jordan was an unsophisticated investor with no formal financial training or experience who had, until her divorce in 2006, relied entirely on her ex-husband to deal with the family's financial matters; (e) Upon her divorce, Ms Jordan received approximately $7 million by way of a property settlement. When she approached HLB in November 2006, she wanted to invest $5.21 million, being the cash which she then had available after purchasing a family home after her divorce; (f) Ms Jordan wanted to invest the $5.21 million so as to provide for her children on her death and for her to have a regular monthly income; (g) Ms Jordan was risk averse and wanted relatively secure investments so as to ensure as far as reasonably possible her future and the wellbeing of her children; (h) In November 2006, Ms Jordan retained HLB to provide financial planning and advisory services. The retainer was wholly oral. The retainer included the following material terms: a. HLB would exercise all reasonable care, skill and diligence required of a professional financial advisor; b. HLB would recommend investments that were appropriate having regard to the Applicant's personal circumstances, risk profile and investment objectives; c. HLB would recommend investments that did not put at substantial risk any part of the Investment Amount [referring to the $5.21 million mentioned in subpar (e) above]; d. it would fully and properly inform the Applicant of the risks attendant on any investment proposed by HLB; and e. HLB would conduct annual reviews to assess the progress of the Applicant's investments and the structure of the Applicant's portfolios. (As to which see par 16 of Ms Jordan's pleading.) (i) Ms Jordan also claimed that HLB owed her a common law duty of care in the same terms as the contractual duty of care imported into the retainer upon which she relied; (j) On 16 November 2006, HLB provided a detailed written Statement of Advice in which it made a number of investment recommendations to Ms Jordan. Included within those recommendations was a recommendation that, as part of the hedge fund component of the recommended portfolio, Ms Jordan should invest in the Basis Aust-Rim Fund and the Basis Yield Fund; (k) In providing the Statement of Advice to Ms Jordan, HLB represented that the investment recommendations contained in it, including the recommendation to invest in the two Basis Funds, were suitable investments for Ms Jordan, taking into account her personal circumstances, risk profile and investment objectives; (l) In late November 2006 and in reliance upon the representation articulated in sub-par (k) above, Ms Jordan instructed HLB to make the recommended investments in accordance with the Statement of Advice which included the following investments: (i) $207,500 in the Basis Aust-Rim Fund; and (ii) $330,000 in the Basis Yield Fund. (m) In July 2007, both Basis Funds failed leaving Ms Jordan with investments in those Funds which are now worthless; and (n) By recommending that she should invest in the two Basis Funds, HLB breached its contractual duty of care, common law duty of care, s 945A of the Corporations Act, s 12DA of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act) and s 1041H of the Corporations Act. These latter two provisions provide that a corporation in trade or commerce shall not engage in conduct that is misleading or deceptive or is likely to mislead or deceive in relation to a financial service. 17 At par 38 of her existing pleading, Ms Jordan set out the breaches on the part of HLB which she contended constituted the relevant breaches of the contractual and tortious duty of care owed to her by HLB and the alleged contraventions of s 945A of the Corporations Act. 18 Paragraph 38 is in the following terms: 38. HLB breached the material terms of the Retainer in that: a. it failed to properly consider the Applicant's personal circumstances as described in paragraphs 7–14 above; b. it failed to make the appropriate enquiries as to the Applicant's appetite for risky investments; c. it failed to ascertain that the Applicant was risk averse and did not want any part of her investment portfolio in investments that had a relatively high risk of failure; d. it recommended investing in the Hedge Funds when these were high risk investments and which had a relatively high risk of failure; e. failed to take into account the levels of risk in the funds; f. failed to make alternative recommendations in relation to the Hedge Funds investments; g. failed to adequately or at all to explain the substantial risk of the Hedge Funds. h. Failed to adequately or at all advise the Applicant on her level of risk in investing in the Hedge Funds. i. Failed to adequately or at all advise the Applicant on the quality of the underlying Investments to which the Hedge Funds were exposed. 19 At pars 41–44 of the pleading, Ms Jordan alleged that, when HLB represented that the investments in the two Basis Funds were suitable for Ms Jordan, taking into account her personal circumstances, risk profile and investment objectives, HLB engaged in conduct that was misleading or deceptive or was likely to mislead or deceive in that the investment in those two Funds was not a suitable investment for Ms Jordan, taking into account her personal circumstances, risk profile and investment objectives. 20 Ms Jordan claims damages, being the loss of the total amount invested in the two Basis Funds ($537,500), plus interest, and the amount that she would have earned in an appropriate alternative investment from the date of the investment in the two Basis Funds to the date of judgment. The postulated alternative suitable investment, as pleaded, was the Dimensional 5 Year Fixed Investment Trust, which is said to have provided an annual return of 7.10% for the period between February 2006 and February 2011. Ms Jordan accepted that she had to bring to account by way of credit amounts received by her from her investment in the two Basis Funds. According to her pleading, those amounts totalled approximately $68,490.00. At the trial, Ms Jordan put forward different alternative investments for the purposes of assessing and calculating her damages. The Respondents' Case 21 The respondents deny breaching any duties which either they or either of them owed to Ms Jordan. Further, they deny having engaged in misleading or deceptive conduct or conduct that was likely to mislead or deceive. The respondents also contest the way in which Ms Jordan has approached her damages claim. 22 In addition, the respondents rely upon two other specific matters. These are: (a) The provisions of s 945A of the Corporations Act are not engaged at all in the circumstances of the present case. This is because Ms Jordan was not a "retail client" within the meaning of that section because the value of the financial products to which the relevant financial service or advice related exceeded $500,000.00 (as to which see s 761G(7)(a) of the Corporations Act and reg 7.1.19(2) and (5) of the Corporations Regulations 2001 (Cth) (the Corporations Regulations)); and (b) Ms Jordan was guilty of contributory negligence. Any compensation or damages awarded to Ms Jordan should be reduced to such extent as the Court thinks just and equitable having regard to Ms Jordan's share and responsibility for the damage, pursuant to the general law, s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 1041I of the Corporations Act and s 12GF of the ASIC Act. The Proposed Further Amended Fast Track Statement 23 On the first day of the trial, Counsel for the respondents submitted that Ms Jordan was endeavouring to rely upon a claim which did not fairly arise on the pleadings as they then stood. After brief argument, I indicated to Counsel for Ms Jordan that I was of the opinion that the point being made by his opponent was a good one. In light of that indication, Counsel sought leave to amend the Amended Fast Track Statement dated 11 April 2012 by adding a further misrepresentation case and clarifying, for the purposes of that case and generally, that it was Ms Jordan's contention that HLB had represented that the Basis Yield Fund was a fixed interest investment. The critical paragraph sought to be added by the amendment is par 26 which is in the following terms: The Representation [referring back to the definition of that expression in par 25] included the description of: (a) The Basis Yield Fund as a fixed interest investment and the Basis Aust-Rim Opportunity Fund as a defensive hedge fund at p 14 of the Statement of Advice; and (b) The fixed interest component of the portfolio and the Hedge Funds (defensive) component of the portfolio at pages 13 and 14 of the Statement of Advice. 24 The proposed amendment has the effect of expanding that which was alleged to have been represented in the first Statement of Advice thereby also expanding the statutory causes of action based upon misleading or deceptive conduct. 25 When Ms Jordan sought leave to amend her Amended Fast Track Statement, Counsel for the respondents suggested that I should defer ruling on the proposed amendment until delivery of judgment. He indicated that he was in a position to conduct the case without the need for any adjournment should I be willing to proceed in that fashion. I agreed to proceed as suggested by Counsel for the respondents. Notwithstanding his suggestion, Counsel for the respondents submitted that I should now refuse leave to amend because the proposed amendment was futile. 26 Although the proposed amendment arose very late in the piece and is difficult to understand, I do not think that there is any good reason to disallow it. It is quite obvious that the respondents are not prejudiced by the making of the amendment. While it does expand the case slightly, it has not had such a serious impact as to warrant being refused. 27 For these reasons, I propose to grant leave to the applicant to amend her Amended Fast Track Statement filed on 11 April 2012 in accordance with the proposed Further Amended Fast Track Statement dated 28 May 2012 which became MFI-2. HLB's General Approach to Investment 28 In 2002, a group of HLB employees (Messrs Hutton, Christopher Hogan, Stephen Preen and Jonathon Philpot) established the "HLB Mann Judd Investment Committee" (HLB Investment Committee). From that time, the HLB Investment Committee has met every three to six months. Mr Hogan has been the head of HLB's Investment Committee since 2002. 29 At some stage before June 2003, the HLB Investment Committee compiled a model balanced portfolio for HLB's wrap clients (HLB model portfolio). The make-up of the HLB model portfolio has been varied by the HLB Investment Committee on a number of occasions since 2003. 30 HLB's wrap clients are clients who make most of their investments via an individual wrap account. For that reason, those clients have to decide where their funds ought to be invested and in what proportions. The other main investment pathway employed by HLB is to make investments via a "manager of managers" (such as MLC) who would make investment decisions on the client's behalf. According to Mr Hutton, the HLB model portfolio was to serve as a firmwide starting point which HLB's financial planning staff would then vary on a case by case basis, depending on the circumstances and objectives of the particular client. The thinking behind the creation of such a portfolio was to ensure that there was a degree of consistency in the advice being given by the staff of HLB and that the funds and products being recommended to HLB's clients were specifically considered and approved by the HLB Investment Committee before client funds were invested. 31 The HLB Investment Committee meetings were intended to monitor the performance of the HLB model portfolio; to decide which of the funds or products approved by Lonsec ought to be included in HLB's model portfolio; and to decide what the appropriate allocation was, as between those funds and products. Mr Philpot said that he had always worked on the assumption that the hypothetical investor for whom the HLB model portfolio had been designed had a risk profile of between 4 (Balanced) and 5 (Growth) applying the Lonsec Risk Profile Definitions (70% growth, 30% income). 32 At some stage prior to October 2003, the HLB Investment Committee had decided to include within the HLB model portfolio a 10% allocation to Hedge Funds of Australia's Diversified Fund (HFA Diversified Fund). HFA was a manager of managers and the HFA Diversified Fund invested in a number of different hedge funds, each of which followed a different investment strategy. 33 At a meeting of the HLB Investment Committee held on 28 October 2003, the Committee decided to reduce the HFA Diversified Fund's allocation within the HLB model portfolio from 10% to 5% and to allocate the 5% thereby made available to the Basis Aust-Rim Fund. 34 Both Mr Hutton and Mr Philpot gave evidence as to their reasons for selecting the Basis Aust-Rim Fund to be included in the HLB model portfolio. Each of them also gave an account of what they had done to satisfy themselves that this was an appropriate step to take. 35 At par 4.8 of his affidavit sworn on 15 May 2012, Mr Philpot said: 4.8 In making that decision, I particularly relied on what I had read in the Lonsec research reports, and on the fact that the Basis Aust-Rim Fund: (1) Had been researched and was recommended by Lonsec; (2) Employed a number of different investment strategies, which reduced overall risk; (3) Was managed by people who (I believed) understood and were focused on the risks; in particular, how macro events might impact the portfolio; (4) Aimed to provide positive returns from both upward or downward movements in other areas, and from pricing discrepancies; (5) Complemented the HFA Diversified Fund quite well, in that the Basis Aust-Rim Fund had a significant exposure to the Asian region and fixed interest assets; whereas the HFA Diversified Fund had more of a US focus and a higher exposure to equities; (6) Had a consistent and positive performance record. Exhibited and marked JP11 is a copy of a document that Basis provided to me in April 2007, which details the monthly returns of the Basis Aust Rim Fund from August 2000 to April 2007. xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxx 36 Mr Hutton said that he did not believe that allocating 5% of the HLB model portfolio to the Basis Aust-Rim Fund involved a high degree of risk. He said that the Fund had been highly recommended by Lonsec, had a very good track record and provided diversity within the absolute return/hedge fund sector of the portfolio. In his view, it was a hedge against poor performance in other sectors (especially equities). He also formed the view that, because the weighting within the portfolio was small, the risk overall was not significant. 37 In September 2004, the HLB Investment Committee again revised the HLB model portfolio, on this occasion by allocating 10% of that portfolio to the Basis Yield Fund. They explained their reasons for this in evidence before me. 38 Both Mr Hutton and Mr Philpot gave evidence to the effect that the HLB Investment Committee met regularly and that at those meetings the performance and composition of the model portfolio were reviewed and discussed. They also said that, in the periods between meetings, regular informal discussions were held among committee members. 39 Mr Philpot testified that, as he understood it, the principal risk associated with the Basis Funds was credit risk. He said that, up until July 2007, he believed that Basis Capital had put a lot of thought into the credit risk question and had sufficiently addressed it. He had been told that Basis Capital had carried out stress tests in order to ensure that their management of these funds was effective. HLB's Dealings with Ms Jordan 40 When Ms Jordan first approached HLB in 2005, she was almost 49 years of age. At that time, she was in the throes of divorce from her husband of 25 years whom she had first met in 1972. 41 Ms Jordan completed Year 9 at Warilla High School and three years later completed Year 10 at night school at Gymea TAFE. After leaving school, she trained as a secretary and completed secretarial courses in the evening at Gymea TAFE. Ms Jordan was employed as a secretary for approximately twelve years, commencing in 1973. She said that she had had "… no accounting or finance experience" as at November 2006. 42 In 1985, Ms Jordan ceased full-time work as a secretary. In March 1985, she gave birth to her first child, a daughter. She had her second child, a son, in May 1987. She has not worked in paid employment outside the home since early 1985. 43 At pars 12 to 15 of her affidavit sworn on 30 March 2012, Ms Jordan said: 12. During the course of our marriage I paid the household bills, including the food bills and utility bills from my husband's wages. I was aware of mortgages over the property of the marriage, because I was named on them and I knew that my ex-husband owned some shares. During the course of our marriage, I assumed that all of the assets and investments of the marriage were in my husband's name, apart from the houses that we lived in over the years, which were in both of our names and a small investment in Macquarie shares that was made in my name the late 1980's. 13. Robert Jordan [Ms Jordan's ex-husband] is currently the Managing Director of Australia and New Zealand division of the Westfield Group and he also manages that company's interests in the United States. As the MD of Westfield, I believe that Robert Jordan had a large amount of experience in making investments and in business and finance generally. 14. During the course of my marriage, I did not ask my husband about the family finances or the nature of and extent of our assets. He was never interested in discussing finances with me and I was happy to let him manage them. I believe that I lacked experience and consequently he handled all of the family investments. I really had no idea about the extent of the family assets during the time that I was married to Robert Jordan, apart from the fact that during the course of my marriage, I became aware that Robert Jordan had shares in Westfield. I knew this because from time to time I would see dividend cheques come into the house and I would have to bank them at his request. 15. I was aware, however, that Robert Jordan used the services of a financial advisory firm, HLB Mann Judd for our taxes. I recall Robert Jordan telling me that he used two other accountants for his share investments, but I do not now recall who those accountants were. 44 Ms Jordan said that she was introduced to HLB by her best friend, Ruth Preen. Ruth Preen's husband, Stephen, worked at HLB. Coincidentally, he was a member of the HLB Investment Committee. Also, Ms Jordan's ex-husband had used the services of HLB over the years and she said that, if HLB was good enough for her ex-husband, they would be good enough for her. 45 Ms Jordan said in her evidence-in-chief that she first approached HLB in about November 2006. She said that, at that time, she agreed on the terms of a property settlement with her ex-husband. She received $7 million in cash in that property settlement. She used approximately $1.5 million of that $7 million to purchase a home for her children and herself at Taren Point and placed the remaining $5.5 million with HLB to invest on her behalf. At pars 19 to 21 of her 30 March 2012 affidavit, Ms Jordan said: 19. Prior to receiving the funds, I spoke to Ruth Preen about retaining a financial advisor, given that I had very limited experience with financial affairs and had just come into a large sum of money. I had to decide who was going to be my financial advisor. I needed someone I could trust given that there were a lot of accountants and financial advisors in Sydney. I had no experience in these matters and I had just come into a lot of money. 20. I decided that I wanted to retain Stephen Preen at HLB Mann Judd. I trusted Stephen to look after my financial affairs and was very comfortable because I knew him so well. I also felt that if HLB Mann Judd were good enough for my ex-husband, Robert, they would be good enough for me. 21. I recall that in or around November 2006, Ruth Preen had a conversation with me in which she said: "Stephen said that he does not want to look after your finances directly but Michael Hutton is an expert in investing and will be able to help." 46 In her affidavit, Ms Jordan did not mention having met with Mr Hutton in September 2005. Nor did she refer in that affidavit to any telephone conversations which she had had with him in the months of August, September and October 2006. 47 In his affidavit sworn on 11 May 2012, Mr Hutton gave a detailed account of a meeting which he had with Ms Jordan on 26 September 2005. He also recounted the substance of six telephone conversations between Ms Jordan and him in the months of August, September and October 2006. Mr Hutton's evidence of these discussions was based upon and supported by contemporaneous file notes made by him. 48 Counsel for the respondents cross-examined Ms Jordan about the 2005 meeting and the six telephone conversations. Despite being closely questioned about these discussions, Ms Jordan said she was unable to remember any of them. She went on to deny having had six telephone conversations in the months of August, September and October 2006. She accepted that she may have had one conversation but said that she had definitely not had six. 49 I pause to observe that, during her oral testimony, which occupied approximately 1¾ hours, Ms Jordan said "I can't remember", "I can't recall", or words to that effect, more than 90 times. The frequency with which she used that expression was very noticeable. I will set out a few questions and answers from the early part of her cross-examination in order to illustrate the point. At Transcript p 14 ll 26–39, the following exchange took place: Well, but you accept that you may have had at least one telephone conversation with Mr Hutton before the end of October 2006?---I really can't recall. I can't recall, I'm sorry. I think, earlier this morning, you were asked some questions about discussing financial goals with Mr Hutton. Am I right in recalling that you can't remember whether that was one discussion or more than one discussion?---No, I can't recall if it was more than one discussion. It may have been more than one discussion, correct? And those discussions or – let me withdraw that. You discussed your financial goals with Mr Hutton before you handed over the cheque to which you refer in mid November 2006, correct?---Well, I don't – can't remember if I handed it – said that after I handed over the cheque or just in that meeting but I did say it. 50 I have no difficulty accepting that Ms Jordan is unsophisticated. I also appreciate that she did not remain at school beyond Year 9 and has not received any tertiary education beyond the TAFE courses she attended in 1972 and 1973. In 2005, she lacked experience in managing her own financial affairs: Until her divorce she had relied entirely on her husband and trusted him to obtain appropriate advice when required. On the other hand, she did not appear to me to be incapable of grasping even difficult concepts and did not present as a person of low intelligence. I formed the impression that she had decided to say "I don't recall" in many of her answers in order to forestall cross-examination on the topics about which she was being questioned. This was particularly so when the September 2005 meeting and later telephone conversations were raised with her. It was also the case when the written advices and monthly reports given to her by HLB were mentioned. In the end, however, it does not matter whether her answers were a deliberate attempt to deflect difficult questions or just the result of poor memory. The result is the same. There is no contest of any importance between Ms Jordan's evidence and that of Mr Hutton as to the substance of their dealings or the timing of them. 51 Ms Jordan did not file any evidence in reply to Mr Hutton's affidavit nor did her Counsel challenge any part of Mr Hutton's account of his dealings with Ms Jordan. 52 In those circumstances, I accept all of Mr Hutton's evidence and find that his dealings with Ms Jordan took place as he said. He did not have a perfect recollection of those dealings but he did have quite a good recollection of them. He was also aided by file notes. My acceptance of Mr Hutton's evidence extends to his account of the reasoning process which he employed when putting together Ms Jordan's investment portfolios in November 2006. 53 Mr Hutton said that he met with Ms Jordan on 26 September 2005 and that the duration of the meeting was 1.7 hours. He used his diary and time record to refresh his memory. At pars 3.5 to 3.15 of his affidavit, Mr Hutton said: 3.5 I do not remember everything that was said during the September 2005 Meeting. However, having refreshed my memory by reading the Fact Sheet, I recall that, during the September 2005 Meeting, I asked a number of questions and Ms Jordan told me words to the following effect: (1) "I am going through a divorce. I have been married for 24 years." (2) "I need you to complete my 2005 tax return and give me financial advice regarding my divorce settlement once it comes through. (3) "The divorce process has taken 1½ years so far. At the moment it's a 45:55 split, with me getting $5.2 million and my husband Robert getting $5.8 million. I will try for a 50:50 split." (4) "Robert has been at Westfield for about 17 years. He's the Chief Operating Officer for Australia and New Zealand." (5) "I'm living in the same house as Robert at present. My aim is to buy a new place with a water view for $1.5 million to $1.8 million." (6) "I was born on 18 October 1956 and am 48 years old. Robert was born on 26 November 1953." (7) "Robert owns Westfield shares worth about $7 million. I've got about $100,000 in the Commonwealth Bank. We jointly own our home. It's worth about $3 million. I don't want to keep the house: it's too big a block. I also own a Mercedes E240. Robert owns an Audi TT." (8) "I don't have any debts, apart from credit card bills and lawyer's fees for the divorce." (9) "I don't have any super or personal insurance." (10) "I have two children. My daughter, Carlie, is aged 20. She's studying Arts/Psychology at Wollongong Uni. She also works at K-mart 4 days a week. My son Andrew is doing the HSC at Newington. He wants to do Commerce/Law at Macquarie." (11) "I am thinking of retraining and going back to work, but I haven't worked for 20 years." (I recall thinking it was unlikely that Ms Jordan would return to the workforce). (12) "My main priorities are to buy a house for myself and the children, and to generate an income to live on. I don't want something that requires me to do a lot of administration. It should be tax efficient." 3.6 During the September 2005 Meeting, l also showed Ms Jordan a number of printed "slides" which I kept within a folder and was in the habit of using when first meeting with a new client. Exhibited and marked MGH19 are copies of the "slides" that I showed Ms Jordan during the meeting (Slides). 3.7 As I showed Ms Jordan the Slides, I spoke about the matters referred to in each of them. I cannot remember everything that I said to Ms Jordan about the matters referred to in the Slides. However, amongst other things, I said words to the following effect: (1) "You're only 49, which means you're going to need a good long-term portfolio that maintains value after allowing for the impact of inflation, and generates enough income for you to live off it for the next 30 years or more." (2) "It is important to have a portfolio of investments that is diversified, so that you don't have all your eggs in one basket. You don't want to be overly reliant upon the success of a single investment or asset class." (3) "We have designed a model balanced portfolio, which has diversification across asset sectors and is diversified within each asset sector, by investing in more than one fund manager or product. It is designed to generate income and growth over the long term from a range of shares and managed funds." (4) "The model portfolio is summarised on this slide [slide 9 at MGH19]. It invests 25% in income related assets, 65% in growth assets (split up into 40% Australian shares, 20% international shares and 5% in Property), and the remaining 10% is invested in Absolute Return or Hedge Funds. The aim of the Growth component is to invest in Australian and International shares, both through managed funds and directly, with a view to matching or exceeding the performance of the share indexes. The Absolute Return Funds aim to produce a positive return even when the capital market is failing or fluctuating: they are intended to stabilise the overall portfolio returns when other sectors are experiencing adverse market conditions." (5) "The portfolio can be made more or less aggressive by increasing or reducing the income component above or below 25%." (6) "An alternative way to go is to invest the lot with a company such as MLC, which then spreads the money between a variety of different fund managers across different investment sectors. This slide [slide 10 at MGH19] shows the sector allocations and fund managers used by MLC in its Horizon 4 fund. The funds go from Horizon 1 (which is all cash) to Horizon 6 (which is all shares)." 3.8 The last of the Slides (slide 15 at MGH19) refers to a "client pack", including a "Financial Services Guide" and a "client questionnaire". At my first meeting with any financial planning client, it was in 2005 (and it remains) my practice to provide the client with a "pack" of documents which included a brochure about HLB, HLB's Financial Services Guide, and a client questionnaire. I cannot remember giving those documents to Ms Jordan at the September 2005 Meeting, and I may not have given her a copy of the client questionnaire. However, I believe that I did provide Ms Jordan with the HLB Brochure and Financial Services Guide. A copy of the Financial Services Guide current as at September 2005 is exhibited at MGH20. Although HLB's Financial Services Guide has been updated (e.g. for contact details and fee scales) over the years, I do not recall any substantial amendments being made to the content of it after September 2005, apart from ownership details for Lonsdale. 3.9 xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx I update the Asset Class Returns Chart that I use about once a year, after 30 June. I showed the Asset Class Returns Chart to Ms Jordan during the September 2005 Meeting. Exhibited at MGH21 is the version of the Asset Class Returns Chart that I showed Ms Jordan during the September 2005 Meeting. 3.10 When showing Ms Jordan the Asset Class Returns Chart, I said to her words to the following effect: "This chart shows the different asset sectors you can invest in. The yellow squares highlight the best performing sector in each year. You can see that each sector has a different level of return each year, and the returns can vary a lot from year to year. We believe it's a good idea to have investments in each of the sectors to give a steadier level of return. There will still be volatility – same good years and some bad years – but you reduce the volatility overall by having a range of investments." 3.11 I also said words to the following effect to Ms Jordan during the September 2005 Meeting: (1) "Because you probably won't have any other income, it's best to set up a direct credit arrangement where a fixed amount gets deposited into a bank account every month for you to live on. If you just wait until there's a dividend payment or income distribution from the investment portfolio, it's a bit unpredictable and uneven: you won't really know how much cash you'll have (from month to month." (2) "We should also consider making superannuation contributions to minimise the tax on your portfolio." (3) I also explained to Ms Jordan, with reference to a slide in my presentation pack, how our fees are charged. There was to be no charge for our initial meeting, but should we go ahead and provide a Statement of Advice, and if she accepts that and we implement the recommendations, then at that point there would be a charge of 1.1% or the first $1,000,000 invested ($11,000). From then on our monthly fees would be charged on the basis of the portfolio value, at a sliding % age rate, as shown on the chart in the presentation pack. 3.12 At no time during the September 2005 Meeting (or at any time thereafter) did Ms Jordan say words to the effect that she was risk averse, preferred a conservative investment approach or wanted investments that were secure. She never said words to the effect that she was uncomfortable with or did not understand the portfolio of investments I had discussed with her. I understood Ms Jordan to be comfortable with a model balanced investment portfolio, and with holding a mix of shares and managed funds across different sectors. 3.13 Nor did Ms Jordan tell me during the September 2005 Meeting (or at any time thereafter) that one of her goals was to double her money by the time she died; or that she wanted to make sure that there was enough money for her children to live comfortably after she died. 3.14 Ms Jordan did say wards to the effect: "I'm not sure Robert will provide for the kids, so I'll have to provide a home and living expenses for them. I feel responsible." I understood this to be a reference to her children's accommodation and living expenses for the next few years, while they were studying and establishing themselves. However, I understood that the average life expectancy for females in Australia was about 84 years, which meant that Ms Jordan's children were likely to be in their 50s by the time she died. 3.15 I understood from the September 2005 Meeting that Ms Jordan was not an experienced or sophisticated investor. However, she did not express or appear to have difficulty understanding what I was telling her. I believed that she had raised high achieving children, had been married to a successful husband, was relatively well off and was not suffering from any disability or incapacity, and understood that a large portion of her family's wealth was tied up in Westfield shares. 54 Mr Hutton said that he had a telephone discussion with Ms Jordan on 10 August 2006 which lasted approximately half an hour. It was in that conversation that Ms Jordan told Mr Hutton of her divorce settlement and the quantum thereof: $7 million in cash plus cars. She said that she currently spent $14,000 per month on living expenses and needed funds to cover her contribution to her children's university fees. At par 4.4 of his affidavit, Mr Hutton said: 4.4 Having refreshed my memory by reading my file note, I also recall that during the telephone conversation on 10 August 2006, I said to Ms Jordan words to the following effect: (1) "If you're currently spending around $14,000 per month, let's start off with a drawing of $15, 000 per month into your bank account, for living expenses, and we'll see how things are going once you've settled in to the new house. This can be reduced later, when the kids are more in charge of their own finances" (Ms Jordan said words to the effect that she agreed). (2) "If you can invest $5 million, you will be in very good financial position. If you're spending $14,000 per month, that's $168,000 per year. Before tax – (assuming we use super and have a tax rate of 15% – you'll need your portfolio to generate about $200,000 a year. That's under 5% of $5 million, so it's achievable." 55 On 28 August 2006, Mr Hutton and Ms Jordan again spoke by telephone. She mentioned in that conversation that she was, at that time, looking for a house for her and her two children in the price range of $1.2 million to $1.3 million. 56 On 8 September 2006 and again on 14 September 2006, there were further telephone discussions. 57 On 16 October 2006, Ms Jordan told Mr Hutton that her divorce settlement would be completed on 13 November 2006 and that, after she had purchased a house, there would be approximately $5.5 million remaining for investing. 58 On 17 October 2006, Mr Hutton prepared an action sheet and a plan note in respect of Ms Jordan. He gave a copy of these documents to Chris Hogan. At pars 5.2 to 5.7 of his affidavit, Mr Hutton said: 5.2 I refer to my Plan Note and say that, based on my discussions with Ms Jordan up to that time, it was my opinion that: (1) $1 million of Ms Jordan's divorce settlement ought to be deposited in a Superannuation Wrap Account with BT, and those funds invested in the Russell Balanced Fund (a multi-manager fund with a 70/30 asset allocation between Growth and Income sectors). (2) $4.2 million of Ms Jordan's divorce settlement ought to be deposited in a Personal Wrap Account, and those funds invested in accordance with HLB's model balanced portfolio. (3) The remaining $1.8 million of Ms Jordan's divorce settlement would be required to fund the purchase of a house, stamp duty, set-up costs and legal costs. 5.3 The principal reasons why I concluded that HLB's model balanced portfolio (as opposed to a more "conservative" portfolio) was suitable for Ms Jordan were: (1) Her age and the long-term nature of her investment. Ms Jordan was under 50 years of age and on normal life expectancies could be expected to live for another 34 years or more. This led me to believe that it was essential to have a portfolio that could deliver long-term capital growth in excess of inflation. (2) Her lack of any other source of income. This led me to believe that the portfolio would have to generate regular income sufficient to fund Ms Jordan's living expenses for another 34 years or more. Largely for this reason, I decided that it was appropriate to invest a large portion of Ms Jordan's Australian equities allocation (nominally part of the Growth component of the model balanced portfolio) into the Lonsec Model Income Share Portfolio, which comprised a select group of shares that were expected to deliver a high yield (dividend income), as opposed to high capital growth. (3) The need to ensure the portfolio was tax effective. Since most of the portfolio would (to begin with) be held by Ms Jordan personally (i.e., not in superannuation or a trust structure), I believed that it was unwise for her to derive unnecessarily high amounts of personal income (on which a marginal tax rate would be payable), as opposed to deriving capital gains (only half of which are taxed at the marginal rate and only when realised) and earning imputation credits from equities. (4) The fact that she would own her own home, had no substantial liabilities, and her children were attending university. I believed that it was reasonable and prudent for a person in Ms Jordan's position to accept a level of investment risk that would not have been appropriate if, for example, she had very young or disabled children, did not own her own home or had substantial liabilities. (5) I regarded it as a fairly standard portfolio for long-term investors. I also believed that quite a lot of thought had been given to the composition of the model balanced portfolio; that each of its components had been researched and recommended by Lonsec; and that, considered as a whole, it constituted a diversified, sound and tax effective approach to long-term investing. 5.4 In arriving at my opinion that HLB's model balanced portfolio was suitable for Ms Jordan, I considered the Risk Profiles Definitions published by Lonsec (with which I was very familiar) and concluded that Ms Jordan fell between Risk Profile 4 (Balanced) and Risk Profile 5 (Growth). Exhibited at MGH29 is a copy of the Risk Profile Definitions that were current as at October 2006. I refer to those Risk Profile Definitions and say: (1) I believed that Ms Jordan did not fall within Risk Profile 1 (Secure) because that is not an appropriate approach for long-term investors. It offers no capital growth and therefore does not provide sufficient protection against inflation. It is also likely to deliver a relatively low return over the long term; and it would not be tax effective. (2) I believed that Ms Jordan did not fall within Risk Profile 2 (Defensive) for similar reasons. That approach is suited to short-term investors whose main emphasis is on generating an income. It would also not be very tax effective. (3) I believed that Ms Jordan did not fall within Risk Profile 3 (Conservative), having regard to the matters I mentioned in paragraph 5.3 above; and because it was my view that a Conservative approach was suited to medium-term investors who were primarily seeking an income stream, and was not very tax effective. (4) I believed that Ms Jordan fell between Risk Profiles 4 (Balanced) and 5 (Growth). My view was that she was an investor who needed to produce capital growth in the long-term and generate a tax effective income stream, which pointed to Risk Profile 5. On the other hand, her need for a regular income stream of about $15,000 per month, her lack of prior investment experience, and the lower level of risk associated with greater diversification pointed to Risk Profile 4. (5) I believed that Ms Jordan did not fall within Risk Profile 6 (High Growth), primarily because of her need for a regular income stream and the higher level of risk associated with investing 100% in growth assets. 5.5 On or about 17 October 2006, when I gave him the Action Plan and the Plan Note, I spoke to Chris Hogan about Ms Jordan and instructed him to draft a Statement of Advice in accordance with the Plan Note. I also discussed Ms Jordan's portfolio and circumstances with Mr Hogan at that time and later when he was preparing the Statement of Advice, but I cannot remember what was said. 5.6 I remember giving consideration, at about that time, to establishing a family trust or a self-managed super fund for Ms Jordan, and I believe I discussed those alternatives with Mr Hogan. I decided against those alternatives due to the extra cost and complexity involved, for insufficient benefit. I also decided that gearing was not required or appropriate for Ms Jordan. I wanted to keep the investment structure relatively simple, in line with Ms Jordan's wish to have minimal administration, and I considered that this best suited Ms Jordan's needs. 5.7 I also considered whether I should recommend Ms Jordan invest the personal component of the portfolio with a "manager of managers" (such as MLC), rather than using an individual wrap account, but I decided against it, primarily for reasons of cost and flexibility. The fees charged by MLC and the like tended to be relatively cheap for investments of under $1 million, but less competitive for larger investments. I did, however, decide to recommend the Russell Balanced Fund (which followed a "manager of managers" approach) for the $1 million super component of the portfolio. 59 Ms Jordan made available to HLB the residue of her divorce settlement funds on 10 November 2006. The amount handed over was $5,510,007. 60 Ms Jordan also testified that, prior to retaining HLB, she had never sought financial advice. She said: I basically gave them a cheque straight from the property settlement and relied on them to manage my financial affairs for me. I do not recall completing any forms or answering any questions about risk. 61 Ms Jordan suggested in her evidence that she wanted to double her money before she died and that she had informed Mr Hutton of this. Mr Hutton doubted that he was ever told by Ms Jordan that she wanted to "double her money". She said that she also wanted to have enough money to live on each month. $15,000 per month was the figure ultimately discussed as the amount she required for living expenses. 62 On 16 November 2006, Mr Hutton met with Ms Jordan and handed her a letter and the first Statement of Advice which were both dated that day. At pars 5.10 to 6.8 of his affidavit, Mr Hutton said: 5.10 I refer to the Lonsec reports annexed to the First Statement of Advice and say that I had read each of them by 16 November 2006. I had also read many prior Lonsec reports relating to the same funds in the past. 5.11 Exhibited at MGH31 are copies of documents recording the recent past performance of the "HLB Model Portfolio" and the "Lonsec Model Portfolio" as at September 2006. I had also reviewed those documents (and earlier versions of them) by 16 November 2006. 5.12 By 16 November 2006, based on the discussions I had previously had with Ms Jordan, I believed that I had sufficient knowledge of her personal circumstances and requirements to make the recommendations set out in the First Statement of Advice. 6 Presenting the First Statement of Advice 6.1 On 16 November 2006, I met with Ms Jordan (November 2006 Meeting) and I provided her with a copy of the First Statement of Advice at the commencement of that meeting. The meeting lasted about 1½ to 2 hours plus preparation time. Mr Hogan was also present xxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. I do not recall him saying anything during the November 2006 meeting. Exhibited at MGH32 is my diary entry of the meeting appointment with Ms Jordan. 6.2 During the November 2006 Meeting, Ms Jordan had her copy of the First Statement of Advice in front of her. I sat facing Ms Jordan and I turned pages within her copy of the First Statement of Advice, pointing to various paragraphs and sections, as I explained them to her. I did not read the First Statement of Advice to Ms Jordan, but I endeavoured to explain the substance of the document to her. 6.3 I first pointed out the Personal Details section on page 3 of the First Statement of Advice and asked Ms Jordan to confirm that those details were correct. I believe she did so, as no changes are made to those details, although Mr Hogan's notes on page 2 indicate that Ms Jordan mentioned additional matters. 6.4 I then proceeded to take Ms Jordan through the First Statement of Advice and summarised various parts of the document and, as is my habit, I marked some key points on Ms Jordan's copy of the document. I cannot remember what words I used when summarising the First Statement of Advice. However, it took us about 1 hour to run through the whole document. During that time, I at least drew Ms Jordan's attention to and summarised the split between the personal investment account and the superannuation account that is referred to on page 4 of the First Statement of Advice; the 6 asset classes referred to in the Investment Portfolio section on page 5 with a particular focus on the defensive hedge funds, fixed interest and cash components (as shown by my handwritten markings on Ms Jordan's copy of the first SOA); the Monthly personal payment section on page 6 (also reflected by my underlining of the amount $15,000); the undeducted contributions sections on page 9; the Investment Recommendations section on pages 13 to 15. My markings record the fact that I paid particular attention to that section, particularly the hedge funds and fixed interest and cash sections; the fund descriptions on pages 16 to 17; the Investment Structure diagram on pages 21 and 22; the information about the Russell Balanced Fund on page 20; as well as the Fees and Disclosure information on pages 26 to 28. I also corrected the disclosure information to correctly identify that I was a "director" of Lonsdale at page 28. I also pointed to the annexed Lonsec Research Reports (but I only did so briefly, so as to show Ms Jordan they were there if she wished to read them). During the November 2006 Meeting, I told Ms Jordan words to the effect that the investments we were recommending were "not capital guaranteed" and the earnings were "not guaranteed." I ran through the annexures projecting the portfolio value highlighting that these were not guaranteed and assumed an earnings rate of 8% pa – as shown by my marking of the 8% on Annexure 1 of Ms Jordan's copy. I also told her words to the effect that HLB's model portfolio "invests in sectors and funds with varying levels of risk, but it is diversified so that you will not be overexposed to any one area." 6.5 Towards the end of the November 2006 Meeting, Ms Jordan and I signed an "Acceptance and Authority to Proceed" form (Acceptance) which included confirmation that we had her details correctly recorded. Exhibited at MGH33 is a copy of the Acceptance, signed by Ms Jordan and me. 6.6 It was my practice in 2006 (and still is) to have Product Disclosure Statements for each fund that I am recommending available for the client and to offer the client a copy to take home. Many clients take them home, but others do not. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Exhibited at MGH34 and MGH35 are copies of those documents. I cannot remember whether Ms Jordan took them home with her following the November 2006 Meeting. 6.7 At no time during the November 2006 Meeting did Ms Jordan say that she was uncomfortable with my recommendations or the level of risk involved. She did not say words to the effect that she was risk averse, preferred a conservative investment approach or wanted secure investments. Nor did Ms Jordan say that she did not understand the First Statement of Advice, or what was proposed. 6.8 Ms Jordan did not tell me during the November 2006 Meeting that one of her goals was to double her money by the lime she died; or that she wanted to make sure that there was enough money for her children to live comfortably after she died. 63 In her 30 March 2012 affidavit, Ms Jordan said that she did not recall being taken through the first Statement of Advice. She accepted she was given the Statement of Advice but claimed that she did not read it. The Statement of Advice comprises 28 pages of text and eight annexures. 64 On p 5 of the Statement of Advice, the following was said: Personal Investment Account We recommend you establish a personal investment account with $4,210,000 (including Macquarie CMT balance). $ Personal investment account 4,150,000 Macquarie CMT 60,000 4,210,000 We will organise the following cash movements from your Macquarie CMT. $ Current Macquarie CMT balance 5,510,000 Less Setup of new home & legal fees 300,000 Establishment of superannuation account 1,000,000 Personal investment account 4,150,000 5,450,000 Remaining CMT balance 60,000 • Investment portfolio We recommend your personal investment account be invested in a diversified investment portfolio. Diversification will be achieved by investment in the following asset classes: • Australian shares. • International shares. • Property. • Defensive hedge funds. • Fixed interest. • Cash. See the Investment Recommendations section of this report for our suggestion of an appropriate investment portfolio. 65 HLB recommended that the portfolio pay $15,000 per month to Ms Jordan. HLB said that Ms Jordan's portfolio would derive the following primary earnings: • Earnings Your personal investment portfolio will derive the following primary earnings: • Australian dividend income with attached imputation credits that reduce your income tax liability on the income. • International dividend income with attached foreign tax credits that reduce your income tax liability. • Capital growth on Australian shares, international shares, hedge funds and property. • Interest income. We recommend all the above earnings are re-invested within your personal investment account. If the above earnings were paid to you directly you would receive payments at irregular intervals and for irregular amounts. 66 At pages 13 to 19 of the Statement of Advice, HLB discussed the investments which it recommended to Ms Jordan. 67 At pages 13 to 15, the following was said: Investment Recommendations We have provided you with a recommended personal portfolio and superannuation account. • Personal investment portfolio Asset Allocation Our model asset sector allocation of 65% to growth assets (Australian & international shares and property), 25% to income assets (fixed interest and cash) and 10% to defensive hedge funds is suitable for your personal investment portfolio: Asset Sector Australian equities 35% International equities 25% Property 5% Hedge funds – defensive 10% Fixed interest 20% Cash 5% Total 100% This allocation provides the opportunity for strong capital growth whilst being focused on capital preservation. Our model portfolio is well diversified. It is diversified at the asset sector level, the regional level, the fund manager level and the individual asset level. Diversification reduces volatility and increases the likelihood of capital preservation. The portfolio will thus never be over exposed to an underperforming asset. Growth Assets – Equities and Property The portfolio has an Australian equity bias. This takes advantage of imputation credits attached to dividends which increases the after tax return of Australian equities. We advocate the use of both direct equities and managed funds. The portfolio is also significantly invested in international equities. This recognises the vast stock opportunities available globally. The portfolio has only a minor weighting to property. This is a reflection of our view that local listed property is not as attractive as equities on a risk/return basis going forward. Income Assets – Fixed Interest and Cash The fixed interest allocation acts to reduce volatility in the portfolio. We use a wide array of fixed and floating interest investments, with varying levels of risk, This provides the opportunity for strong stable returns whilst still providing capital protection in down times. Cash is kept at a minimum to cover short term expenses. This recognises the inferior returns of cash compared to other asset classes. Hedge Funds (Defensive) Defensive absolute return or hedge funds aim to provide positive returns (usually high single-digit or low double-digit) regardless of market conditions. These funds do not attempt to follow any index but rather aim to produce consistent returns irrespective of rising and falling markets. These funds not only purchase and hold stocks and fixed interest instruments but use various other strategies such as short· selling and identifying and exploiting arbitrage situations to produce returns. We employ hedge funds to reduce volatility in the portfolio and to provide greater asset diversification. Investment Portfolio The following is the portfolio we recommend for your personal investment to be established with an amount of $4,150.000. Investment Amount Invested Lonsec Rating $ Australian Equity Lonsec Model Income Share Portfolio 800,000 Refer below Ausbil Aust Active Equity Fund 200,000 Highly Recommended BT Imputation Fund 200,000 Recommended IML Australian Share Fund 200,000 Highly Recommended EleyGriffiths Group Small Companies Fund 52,500 Highly Recommended International Equity Credit Suisse International Shares Fund 280,000 Recommended Russell Global Opportunities Fund 280,000 Highly Recommended PM Capital Absolute Performance Fund 280,000 Recommended JB Were Global Small Companies Fund 197,500 Recommended Property AMP Core Property Fund 207,500 Highly Recommended Hedge Funds Basis Aust-Rim Opportunity Fund 207,500 Highly Recommended HFA Diversified Investments Fund 207,500 Highly Recommended Fixed/Floating Interest Basis Yield Fund 330,000 Highly Recommended Credit Suisse Global Hybrid Income Fund 250,000 Recommended Mariner Mortgage Trust 250,000 Recommended Cash Management Wrap Cash Account 207,500 4,150,000 Lonsec Model Income Share Portfolio Lonsec have constructed a model income share portfolio which has been in existence since August 2002. It consists of 8 stocks each with an equal weighting of 12.5% of the portfolio. The aim of the portfolio is to deliver an attractive fully-franked income yield together with some capital growth, over the medium to long-term. The fund invests in the ASX Top 150 and is bench marked against the ASX 100 Accumulation Index. Since inception the portfolio has outperformed the benchmark. The Lonsec Model Income Share Portfolio is currently as follows: Amount $ Estimated Yield Franking Portfolio Stocks Alinta Ltd 100,000 4.6% 100% ANZ Bank Ltd 100,000 4.4% 100% Healthscope Ltd 100,000 3.5% 100% Promina Group Ltd 100,000 4.5% 100% St George Bank Ltd 100,000 4.8% 100% Tabcorp Holdings Ltd 100,000 5.5% 100% Ten Network Holdings Ltd 100,000 6.8% 100% Westpac Banking Corporation 100,000 4.6% 100% Total 800,000 100% There are several advantages of using the Lonsec Model Income Share Portfolio over a more traditionally operated share portfolio: • The portfolio is defensive in nature however positioned to achieve some capital growth. Lonsec includes its best income stock ideas in the portfolio and does not 'punt' on any stocks. Stocks are picked to achieve medium to long term performance rather than for short term price speculation. • The portfolio is diversified with the 8 stocks covering 8 minimum 4 industry sectors. • The portfolio's operation is cost effective. Trades are placed directly through the investment platform at a discounted rate ($39 or 0.1 % whichever is greater). • The portfolio operates in a similar way to an Individually Managed Account (lMA). If you give us authority all portfolio changes can be made immediately once announced by Lonsec, and we can then notify you of the change. • The portfolio is only ever 8 stocks. This prevents building up too many stocks which can create monitoring and administration hassles and potentially a drag on performance. • As the portfolio recommendations are made by Lonsec and implemented by us emotional decisions are not made which may be detrimental to performance. • Attached franking credits will reduce your personal income tax. We have enclosed at Annexure 5 a recent monthly report from Lonsec which indicates the performance of the portfolio since inception. Please note that past performance is no guarantee of future performance. In terms of the managed funds included in the portfolio we comment as follows: 68 At pages 16 and 17, HLB described the other investments which they recommended. At page 18, HLB explained the BT Wrap Asset Choice investment platform. 69 The advice contained a detailed analysis of the asset allocation of the recommended investments. The weighting of the recommended investment portfolio was as follows: Property 4.9% International equities 24.6% Australian equities 34.5% Hedge funds 9.9% Fixed interest 19.7% Cash 6.4% 70 On the same day as she received the Statement of Advice, Ms Jordan signed an Acceptance and Authority to Proceed in the following terms: VICKI JORDAN SOA 16 NOVEMBER 2006 ACCEPTANCE & AUTHORITY TO PROCEED It is confirmed by the signature below that: • The details in relation to personal circumstances, financial position and lifestyle and financial objectives have been accurately summarised in this document, and no correction is required • The basis of the advice and recommendations given have been expressed in such a way that I have understood these matters • I have familiarised myself with the way in which my adviser will receive remuneration • I understand that any projected returns or outcomes cannot be guaranteed • I have received the Product Disclosure Statements for the investments recommended in this advice. • I have received a copy of your Financial Services Guide. • Lonsec Model Income Share Portfolio–- I hereby give authority to you to implement the changes to my own portfolio contemporaneously with the changes made by Lonsec to its model. In providing this authority I acknowledge that I will not be notified of the changes before they are implemented (delete by crossing this part out if you do not wish to give this authority.) Accordingly I wish to instruct you to proceed in the matter set out in this document. Investment Name Approximate Amounts $ Establish BT Wrap AssetChoice Account 4,150,000 Buy Lonsec Model Income Share Portfolio 800,000 Purchase Ausbil Aust Active Equity Fund 200,000 Purchase BT Imputation Fund 200,000 Purchase IML Australian Share Fund 200,000 Purchase EleyGriffiths Group Small Co's Fund 52,500 Purchase Credit Suisse International Shares Fund 280,000 Purchase Russell Global Opportunities Fund 280,000 Purchase PM Capital Absolute Performance Fund 280,000 Purchase JB Were Global Small Companies Fund 197,500 Purchase AMP Core Property Fund 207,500 Purchase Basis Aust-Rim Opportunity Fund 207,500 Purchase HFA Diversified Investments Fund 207,500 Purchase Basis Yield Fund 330,000 Purchase Credit Suisse Global Hybrid Income Fund 250,000 Purchase Mariner Mortgage Trust 250,000 Vicki Jordan Date: ______/______/______ Accepted for an on behalf of Lonsdale Financial Group Limited by: Signed: _______________________ Michael Hutton Date: ______/______/______ 71 She also signed a similar document for her superannuation investment of $1,000,000 with a BT-managed superannuation fund. That document was in the following terms: VICKI JORDAN SOA 16 NOVEMBER 2006 ACCEPTANCE & AUTHORITY TO PROCEED It is confirmed by the signature below that: • The details in relation to personal circumstances, financial position and lifestyle and financial objectives have been accurately summarised in this document, and no correction is required • The basis of the advice and recommendations given have been expressed in such a way that I have understood these matters • I have familiarised myself with the way in which my adviser will receive remuneration • I understand that any projected returns or outcomes cannot be guaranteed • I have received the Product Disclosure Statements for the investments recommended in this advice. • I have received a copy of your Financial Services Guide. Accordingly I wish to instruct you to proceed in the matter set out in this document. Investment Name Approximate Amounts $ Establish BT SuperWrap Assetlink Account 1,000,000 Purchase Russell Balanced Fund 1,000,000 Signed: ______________________ Vicki Jordan Date: ______/______/______ Accepted for an on behalf of Lonsdale Financial Group Limited by: Signed: _______________________ Michael Hutton Date: ______/______/______ 72 On 22 November 2006, HLB reported to Ms Jordan that, in accordance with their recommendations, it had placed $3,945,116 from her Investment Wrap cash account into the following investments: Name Amounts $ Lonsec Model Share Portfolio (see below) 802,616 Ausbil Aust Active Equity Fund 200,000 BT Imputation Fund 200,000 IML Australian Share Fund 200,000 EleyGriffiths Group Small Co's Fund 52,500 Credit Suisse International Shares Fund 280,000 Russell Global Opportunities Fund 280,000 PM Capital Absolute Performance Fund 280,000 JB Were Global Small Companies Fund 197,500 AMP Core Property Fund 207,500 Basis Aust-Rim Opportunity Fund 207,500 HFA Diversified Investments Fund 207,500 Basis Yield Fund 330,000 Credit Suisse Global Hybrid Income Fund 250,000 Mariner Mortgage Trust 250,000 Total 3,945,116 Listed Securities Units Price Total Consideration $ Alinta Ltd 9,416 10.75 101,323 ANZ Bank Ltd 3,529 28.25 99,794 Healthscope Ltd 18,726 5.36 100,658 Promina Group Ltd 14,880 6.71 99,945 St George Bank Ltd 2,962 33.75 100,067 Tabcorp Holdings Ltd 6,027 16.49 99,485 Ten Network Holdings Ltd 28,901 3.50 101,255 Westpac Banking Corporation 4,161 24.03 100,089 Total 802,616 73 On p 2 of its letter, HLB said: Receipts of the above transactions are attached for your records. Once these transactions have been completed the balance of the cash account will be approximately $204,884. AssetLink SuperWrap In accordance with our recommendations we have placed $980,000 into the Russell Balanced Fund. A receipt of this transaction is attached for your records and once complete the balance of the cash account will be approximately $20,000. Periodic Monthly Payments In order to establish your monthly periodic payments of $15,000, to be transferred from your Investment Wrap account to your Macquarie CMT account and then into your CBA account, please sign the enclosed form where indicated and return to us in the reply addressed envelope provided. Your first periodic payment should appear in your CBA account on or around the 20th of December and then on the 20th of each month thereafter. If you have any queries in relation to the above please do not hesitate to contact me. 74 Ms Jordan had invested $207,500 in the Basis Aust-Rim Fund and $330,000 in the Basis Yield Fund. 75 In this proceeding, Ms Jordan does not complain about any of the other investments recommended by HLB to her. The only investments about which complaint is made are the two investments totalling $537,500 in the two Basis Funds. Although she said that, at the time the above investments were made, she had no real idea about asset classes, Ms Jordan did not say that she did not understand the contents of the first Statement of Advice or the explanations of HLB's recommendations given to her by Mr Hutton on 16 November 2006. She did, of course, say that she did not read the first Statement of Advice. Having regard to the terms of the two acknowledgements which she signed on that day and to my assessment of her capabilities, I find that Ms Jordan understood the substance of the first Statement of Advice as it was explained to her on 16 November 2006. In particular, I think that she appreciated that some of the recommended investments involved greater risk than others but that some degree of greater risk was necessary if she was to achieve her fundamental goals and objectives. 76 Thereafter, HLB sent regular reports to Ms Jordan in which were set out details of the performance and current state of her investment portfolio. 77 On 20 July 2007, Mr Hutton sent a letter to Ms Jordan. It was headed "Basis Funds" and was in the following terms (omitting formal parts): Basis Funds We have enclosed an interim report for the period 1 July 2006 to 31 May 2007 for your Wrap portfolio. We are still waiting on 30 June prices and distributions for some fund managers. We will send your 30 June 2007 quarterly report in the next few weeks. We are sending this interim report to bring to your attention an issue regarding your holding in the Basis Yield Fund and Basis Aust-Rim Opportunity Funds. Basis advised us on 11 July 2007, that for the month of June the fund's had a significant loss, as follows. Month to Date 12 Months Yield -13.69% -33.39% Aust-Rim -9.20% -1.57% These large falls were due to the valuation of loan investments known as Collaterialised Debt Obligations (CDO's) being reduced across the board by US investment banks. This is as a result of some having exposure to the US sub prime loans market which has experienced a rising number of defaults. The Basis funds have minimal exposure and they have actively avoided exposure to this sector. However, as the whole CDO market has been downgraded, this has affected the asset value of the Basis portfolio. As a result of the decline in the asset value, some banks that have lent money to Basis have now called on them to repay outstanding loans which would force Basis to sell some assets at low valuations and realise significant losses. Basis has indicated that if enforced to sell at distressed sale prices then this could result in a reduction in the net asset value of the units for the Basis Yield Fund to below 50% of the level as at 31 May. Basis is currently in negotiations with the eight lending banks and is hopeful that the lending consortium will realise the underlying quality of the investment assets and that the asset valuations will recover after a review of the CDO market by Standard & Poor. The impact on the Aust-Rim fund is expected to be lower than for the Yield fund due to a reduced exposure to the CDO market. Lonsec (and other leading research houses) have had a Highly Recommended rating on both the Yield Fund and Aust-Rim Opportunity Fund for approximately 3 years and they have been part of our model client portfolios for most of that period. The performance over the 3 year period has been as follows: Basis Yield Fund 14.5% p.a. Basis Aust-Rim Opportunity Fund 13.0% p.a. Lonsec have now placed both funds on "Fund Watch" and all applications and redemptions to and from both funds have been suspended indefinitely. You may have read or heard in the media that Basis funds are on the brink of collapse. From our two telephone conferences with Basis this week, they do not foresee the collapse of either fund. We have enclosed this week's Lonsec fund update on the Basis Yield fund. We will keep you wonned as further information comes to light. If you would like to discuss the above, please contact me. 78 Mr Hutton gave evidence that, before sending the letter of 20 July 2007 to Ms Jordan, he telephoned her to discuss its contents. He said: 8.2 Exhibited at MGH38 is a copy of a letter I sent to Ms Jordan on 20 July 2007 regarding the Basis Funds. I telephoned Ms Jordan before sending that letter to forewarn her. At the time of making the call I had the letter in front of me. This included a portfolio performance report and a Lonsec Update. During that call, I told Ms Jordan words to the effect: "There has been a problem with 2 of your investments. The Basis Funds have advised us that they are likely to suffer a large decline in value. All redemptions have been suspended so we are unable to cash in your investment. I am sending you a letter to provide information regarding this. You have $330,000 in Basis Yield fund and $207,500 in Basis Aust Rim Fund. We have spoken to Basis and they are hopeful that valuations will recover." I believe that telephone conversation (which occurred prior to or on 20 July 2007) to be the phone call referred to in paragraph 38 of Ms Jordan's Affidavit, wherein she recalls me saying words to the effect that she had "lost money." xxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 79 Ms Jordan's investments in the two Basis Funds are now virtually worthless. 80 In early 2008, Ms Jordan instructed HLB to sell some of her investments in order to finance a loan and gift which she intended to make to her son. $730,000 was made available to her son at this time. 81 On 6 March 2009, Ms Jordan was given a second Statement of Advice dated that day. On p 4 of that Advice, HLB stated her goals and objectives in the following terms: Goals & Objectives We have recorded the following as being your key financial objectives: • To receive an income stream sufficient to cover your living expenses. • To preserve and build your overall wealth. • To distribute sums to your children to assist them over time. Andrew has been gifted $100,000 to assist him with the purchase of his unit and you expect to do the same for Carlie in due course. • To minimise the amount of administration you are required to do. • To minimise tax. We will discuss with you other financial objectives you may have. 82 Those goals and objectives did not include doubling Ms Jordan's capital. They were broadly consistent with the goals and objectives Mr Hutton believed were Ms Jordan's goals and objectives in 2005 and 2006. 83 Mr Hutton described Ms Jordan's risk profile in the second Statement of Advice as 4.5 (Balanced to Growth). 84 Ms Jordan did not complain to HLB about her losses in the two Basis Funds until late 2011—4½ years after the losses first became apparent. Ms Jordan attempted to dilute the impact of these circumstances by suggesting that she did not appreciate that she had lost money in the Basis Funds until about April 2010. I do not accept that evidence. The letter dated 20 July 2007 informed Ms Jordan of the fact and extent of the losses as they were then known. Further, Mr Hutton had spoken with her by telephone on the same day and explained the problems to her. Later regular reports kept her informed of developments and they also reinforced the decline in the value of the Basis Funds. 85 Ms Jordan testified that: (a) She accepted HLB's investment recommendations because she relied on the judgment of Mr Hutton to recommend investments that were suitable for her needs; (b) She believed that he would do or obtain the necessary research and recommend all investment decisions for her to make; and (c) She would accept his investment recommendations and advice even if it involved investing in products she did not understand. 86 Ms Jordan did not give any evidence at all as to what she would have done had she been more explicitly warned of the risks inherent in the Basis Funds or had she been told all of the things that she now contends in this proceeding she should have been told. Her case was built on the fundamental proposition that she would have done whatever Mr Hutton advised her to do. In order to succeed, therefore, Ms Jordan must demonstrate that HLB was negligent or otherwise acted wrongfully by recommending to her that she should invest in the two Basis Funds as part of a diverse portfolio of investments designed to produce substantial income for the rest of her life while, at the same time, preserving and growing her capital. This is why, in par 1 of her Outline of Opening Submissions, Ms Jordan submitted that: The applicant's case is, quite simply, that she should never have been advised to invest in either the Basis Aust Rim Opportunity Fund or the Basis Yield Fund. Both investments were: (a) entirely unsuitable for her risk profile; (b) were misrepresented in the Statement of Advice (SOA). 87 Nor did Ms Jordan testify that she read the first Statement of Advice carefully and interpreted the information concerning the two Basis Funds in any particular way. She said that she could not recall discussing the Basis Funds with Mr Hutton. She did not even accept that she read the first Statement of Advice. 88 Mr Hutton said that he spent about an hour explaining the first Statement of Advice to Ms Jordan. He remembered telling her that the investments which he recommended were not "capital guaranteed" and "not guaranteed". The first Statement of Advice also made this very clear. He told Ms Jordan that HLB's model portfolio invested in sectors and funds with varying levels of risk but was diversified so that she would not be overexposed to any one area. 89 Ms Jordan probably did not understand or absorb everything that she was told on 16 November 2006 both orally and in writing. But she must have appreciated that the investments which she was about to make were not risk free. She was content to leave it to HLB (particularly Mr Hutton) to select the particular investments for her to make having regard to her circumstances and to her goals and objectives. The Basis Funds The Basis Aust-Rim Fund 90 On p 17 of the First Statement of Advice, HLB described this Fund as a hedge fund. It continued its description in the following terms: • Fixed interest hedge fund manager. • Invests predominantly in the Asia-Pacific region. • Several underlying strategies primarily focussed on fixed income and hybrid securities. 91 According to this Fund's Product Disclosure Statement (PDS) dated July 2006, 38.5% of the Fund was invested in CDO and CLO securities, 41.5% of the Fund was invested in the US and the rest of the Fund was invested in at least 22 other countries. The Fund was permitted to invest in all forms of securities and obligations including those below investment grade. The assets of the Fund were available to acquire leveraged trading positions. The PDS included a statement to the effect that any purchase or sale of a leveraged investment may result in losses in excess of the amount initially deposited as margin for the investment. The PDS also included a statement to the effect that the Fund may employ investment techniques such as short sales, leverage, securities lending, option transactions and forward transactions (among others) which could, under certain circumstances, magnify the impact of any negative market, sector or investment outcome. The PDS also made clear that, in the Fund's opinion, as at July 2006, global levels of volatility in all asset classes were on the rise. It was said that the instruments used by the Fund have a high price volatility which might impact adversely on the value of the Fund's assets. 92 Against these theoretical statements of risk had to be balanced the Fund's actual performance over several years prior to November 2006. It had out-performed the cash index by 5.6% p.a., had achieved high annual returns and had a Sharpe Ratio of 2.3 over the three years to June 2006. In its report concerning this Fund dated August 2006, Lonsec rated the Fund as "Highly Recommended". It commented very favourably upon the management skills of those key personnel who made investment decisions on behalf of the Fund. 93 The evidence as to the collapse of this Fund that was tendered before me was essentially confined to disclosure notices given by the Fund itself. Those notices suggested that the difficulties for the Fund were caused by the devaluation of assets within the Fund leading to margin calls from financiers to the Fund. The losses in this Fund may also have been contributed to by its exposure to the Basis Yield Alpha Fund which was the underlying Fund for the Basis Yield Fund. 94 These events occurred only a few months before the worst period of the US subprime crisis. That crisis was having a significant impact in the latter half of 2007 and ultimately contributed to what has become known as the global financial crisis which is generally accepted to have impacted the financial systems of the world in the period from late 2007 into early 2009 and perhaps beyond. The Basis Yield Fund 95 In the first Statement of Advice, this Fund was described as follows on p 17 of that Advice: • Relatively new fund commencing in December 2003, with highly experienced team. • Alternative income fund investing in relatively complex structured credit securities such as collateralised debt obligations (CDO's). • A positive performance result has been achieved in every month since commencement. 96 Most of this Fund's assets as at April 2006 were below investment grade. This Fund was permitted to leverage thereby magnifying the risk to investors. It also employed similar trading techniques as were being employed by the Basis Aust-Rim Fund. 97 This Fund is said to have been described by HLB as a fixed interest investment. Ms Jordan argues that it was no such thing because it did not display any of the secure characteristics of a traditional fixed interest investment. 98 This alleged misdescription of this Fund is at the heart of the case being sought to be litigated by Ms Jordan as a result of the amendment which was sought on the first day of the trial and which I have now allowed. 99 The collapse of this Fund was, according to the reports released by the Fund itself, caused by essentially the same factors as the collapse of the Basis Aust-Rim Fund. 100 The Lonsec report provided to Ms Jordan as part of the first Statement of Advice made clear that the Basis Yield Fund was the highest credit risk offering in the Lonsec alternative income sector. Nonetheless, it received a "Highly Recommended" assessment because of its sound performance up to that time and its high returns. The critical factor in Lonsec giving that recommendation in respect of this Fund was the high regard which it had for the expertise within Basis in the segment of the income sector in which this Fund was operating. The Lonsec report provided to Ms Jordan provided a fair amount of detail as to the identity of and capabilities of the key personnel managing the assets of this Fund. Nonetheless, that report made very clear that this Fund was a relatively high risk form of investment. Consideration 101 The following matters are not in dispute: (a) Ms Jordan had between $5.2 million and $5.5 million to invest after securing a satisfactory residence for her and her children. (b) She wished to generate $15,000.00 per month as income from investing the amount referred to in (a) above. (c) She wished to have sufficient capital over the balance of her life (expected for assessment and calculation purposes to be approximately 34 years) in order to generate the income which she said she required. 102 Ms Jordan may also have informed Mr Hutton that she wished to have some flexibility in the future to bestow reasonably substantial sums of money by way of gift or loan upon her children in order to assist them with their future commitments. 103 Ms Jordan gave no evidence to the effect that she was "risk averse" or wished to take no risks with her capital. She did testify that she wished to "double her money" but I very much doubt that she informed Mr Hutton of this. Even if she did, a goal such as that would require a reasonably aggressive investment program given that she also wanted to derive $15,000.00 cash or its equivalent in future dollars every month for the rest of her life. Mr Hutton did some calculations for the purposes of this proceeding which addressed this topic and, although the expert called on behalf of Ms Jordan originally took issue with those calculations, in the end, there was little difference between them as to the rate of return that would be required to enable Ms Jordan to double her money. 104 Mr Hutton assessed Ms Jordan's risk profile at 4.5 (between 4 and 5) on the Lonsec risk profile scale. By reference to the definitions in that scale, he came to the view that he needed to position her non-superannuation investment portfolio approximately half way between a balanced portfolio and a growth portfolio. 105 The provision of investment advice requires a good deal of judgment and, although based upon information which may to some extent be described as objective, is largely a subjective exercise. A critical factor in providing reasonable investment advice is making a reasonably accurate assessment of the goals and objectives of the investor who has come to the adviser for that advice. The process is interactive in the sense that there are no absolutes. What might suit one investor's circumstances, goals and aims may not suit those of another investor. Different investors have different levels of tolerance of risk. 106 Once the adviser has developed a reasonably accurate appreciation of the client's goals and objectives, he or she can then set about compiling an appropriate portfolio by reference to those goals and objectives. 107 In the present case, Mr Hutton and his colleagues went about the task of compiling a set of recommendations for Ms Jordan in an entirely conventional manner. The recommendations that resulted from the work that Mr Hutton and his colleagues did, are criticised by Ms Jordan, not as a whole, but in a highly selective manner. 108 It is Ms Jordan's case that both Basis Funds were high risk investments and completely inappropriate as investments for Ms Jordan having regard to her risk profile and her goals and objectives. It is Ms Jordan's case that she was risk averse and conservative, although she gave no evidence to that effect and did not inform Mr Hutton that that was her investment strategy. Propositions to that effect can form no part of Ms Jordan's profile for present purposes. 109 The PDS in each case made clear that both of those Funds were: (a) Hedge funds; (b) Highly geared; and (c) Able to invest in highly speculative securities. 110 However, balanced against these statements of observable risk, both Funds had performed well for three or so years prior to November 2006 and had provided excellent returns to investors. 111 Counsel for Ms Jordan questioned both Mr Hutton and Mr Philpot at considerable length about the PDSs for the two Basis Funds and about the Lonsec reports which assessed those Funds, all of which comprehensively set out the risks involved in investing in those two Funds. 112 Although the PDSs for the two Funds may not have been provided to Ms Jordan, the Lonsec recommendations in respect of both Funds were provided to her. 113 Counsel for Ms Jordan established that each of Mr Hutton and Mr Philpot were well aware of and understood the risks involved in investing in the two Basis Funds because each of them had read the relevant Lonsec reports and had also read the PDS for each of the Funds. He also established that, before HLB made its recommendations to Ms Jordan on 16 November 2006, Lonsdale's compliance auditors had suggested to HLB that, in the future, HLB should provide a more detailed explanation of these two Funds with a view to highlighting in greater detail the risks involved in investing in them and that HLB had not followed that suggestion. In particular, Counsel emphasised that HLB had not adopted the Lonsdale compliance auditor's recommendations in respect of the advice and recommendations which it made to Ms Jordan. 114 It was submitted on behalf of Ms Jordan that: (a) Mr Hutton had not made sufficient enquiries to determine Ms Jordan's risk profile. The "mind map" produced in 2005 was, so it was submitted, an insufficient basis for determining HLB's investment recommendations for Ms Jordan. (b) Mr Hutton had not sufficiently investigated Ms Jordan's income needs. (c) HLB breached the duty of care owed by it to Ms Jordan because it recommended to her that she should invest in the two Basis Funds when it knew or ought to have known that those Funds were highly speculative investments and contained assets which were below investment grade to a significant degree. (d) It was misleading or deceptive for HLB to describe the recommended investments as appropriate and consistent with Ms Jordan's risk profile as HLB did in the first Statement of Advice. She was actively misled by this misdescription. Mr Hutton had not made sufficient enquiries to enable him to determine her risk profile. 115 Ms Jordan relies upon several causes of action. At the heart of each of them, however, is the following simple proposition: No ordinary skilled financial adviser should have recommended to Ms Jordan that she invest $537,500.00 out of investment funds of $5.2–5.5 million in the two Basis Funds. This was approximately 10% of her investment capital. It was submitted that this proposition was virtually self-evident since, when due regard is paid to Ms Jordan's circumstances and to her goals and objectives, both investments were entirely unsuitable for her because of the level of risk involved in them and the speculative nature of the Funds' investment activities. 116 The alleged shortcomings in the conduct of HLB all concern the initial recommendations made by it to Ms Jordan in November 2006. There is no allegation that HLB failed to monitor her investments satisfactorily after November 2006. Whether the alleged shortcomings are regarded as breaches of a duty of care or are said to fall short of being a satisfactory basis for the investment advice and recommendations provided by HLB does not really matter. 117 I have set out at [28]–[31] above the evidence given by Messrs Hutton and Philpot concerning the formation of the HLB Investment Committee and the subsequent creation of the HLB model portfolio. The HLB Investment Committee met regularly and monitored and reviewed the make-up of the HLB model portfolio. True it was that the HLB operatives relied upon Lonsec's research and reports but the fact that they would do so was made clear to Ms Jordan and was, in any event, a reasonable approach to take in all of the circumstances. Further, the circumstances in which the Basis Funds were introduced into the HLB model portfolio are recounted at [32]–[39] above. It is important to remember that the HLB model portfolio was intended to be a portfolio of investments which was weighted 70% growth and 30% income and was also intended to produce growth over the long term. In order to achieve that kind of outcome, it was necessary to invest a portion of the available funds in investments which were higher risk than government bonds or what Counsel for Ms Jordan termed "traditional fixed interest securities". 118 Explanations of HLB's general investment strategies and of the HLB model portfolio were given to Ms Jordan by Mr Hutton in a lengthy conference which took place in September 2005. It is not suggested in this proceeding that those explanations were inadequate or misleading nor is it suggested in this proceeding that the fundamental approach taken by HLB as explained to Ms Jordan at that time was in some way deficient. It is clear that, at the September 2005 meeting, Mr Hutton gave a preliminary explanation to Ms Jordan of the need to invest in different asset sectors in order to spread the risk. He also explained that there will always be volatility in investments and that it was necessary to have a diverse range of investments in order to reduce the impact of such volatility. 119 When, in November 2006, Mr Hutton turned his attentions specifically to developing an overall investment strategy for Ms Jordan, he gave careful consideration to her relevant circumstances. 120 Those relevant personal circumstances were the matters set out at [101] above coupled with the fact that she had no liabilities and did not intend to resume full time paid work outside the home. Mr Hutton gave specific and detailed consideration to the Risk Profile Definitions published by Lonsec and reasonably concluded that risk profiles 4(Balanced) and 5 (Growth) best described Ms Jordan. This assessment made by Mr Hutton was not challenged in cross-examination. Although it is not necessary for HLB to establish that Mr Hutton was correct in the assessment which he made, I conclude that his assessment was a reasonable one. Adjunct Professor McMaster, who was an expert qualified by Ms Jordan and called in her case, agreed that Ms Jordan had attributes falling within the Lonsec definitions of risk profiles 4 and 5. In particular, Professor McMaster agreed that Ms Jordan was an investor who was able to bear some investment risk. 121 Although it has been submitted on behalf of Ms Jordan that Mr Hutton never really determined Ms Jordan's risk profile, the evidence establishes the contrary proposition. Mr Hutton said that he met with her for 1.7 hours in September 2005 and subsequently spoke with her on the telephone. He managed to ascertain the matters which I have summarised at [101] and [120] above from the discussions which he had with Ms Jordan. It is not clear to me what it is about Ms Jordan's true risk profile that Mr Hutton failed to ascertain. If it is suggested, as I think it must be, that he failed to ascertain that she was risk averse or conservative in her outlook, the evidence adduced in the present case does not make that proposition good. As I have already mentioned, Ms Jordan did not give evidence to the effect that she was risk averse or conservative in outlook and did not give evidence to the effect that she told Mr Hutton of this. 122 In my judgment, Mr Hutton made a reasonable and substantially accurate assessment of Ms Jordan's risk profile according to the Lonsec Risk Profile Definitions which were both reasonable and pertinent to the assessment of Ms Jordan's risk profile. 123 Having determined Ms Jordan's risk profile, Mr Hutton proceeded to compile a set of recommendations for Ms Jordan. Those recommendations are reflected in the first Statement of Advice. It is important to note that Mr Hutton and HLB recommended that Ms Jordan set aside $1 million in a BT-Managed Superannuation Fund and invest approximately $4.2 million across a range of funds, products and asset sectors which conformed with the fundamental characteristics of the HLB model portfolio. In evidence before me, Mr Hutton gave a detailed explanation of the reasoning which led him to the selection of the particular investments which he recommended to Ms Jordan. Given Ms Jordan's risk profile as determined by Mr Hutton and the explanations which he gave in evidence as to why he selected the investments which he recommended to her, there is no basis, in my judgment, for suggesting that the inclusion of the two Basis Funds in the recommendations made by HLB was, in and of itself, and without more, negligent or wrongful. The Basis Funds had both performed well up to November 2006. They had delivered stable returns on a monthly basis over a considerable period. Both of the Basis Funds were highly regarded in the market place. There is no suggestion in the material before me that HLB, or any of its operatives, were aware or ought to have been aware of particular information which should have led them to arrive at a different assessment of those Funds and of the future prospects of those Funds. Furthermore, the inclusion of the Basis Funds in Ms Jordan's portfolio was the result of only one (or perhaps two) decisions made in respect of the portfolio which HLB recommended for her. Had those two Funds been removed from the mix, consideration would have had to have been given to replacing them and to otherwise altering the remaining investments. It is highly artificial to focus on the two Basis Funds and to assume that all other recommendations would have remained the same. 124 In its reports in respect of the two Basis Funds, Lonsec had stated that those Funds were suitable for investors with a risk profile of 3, 4 or 5 with the allocation ranging from 5% for those in risk profile 3, to 10% for those in risk profiles 4 and 5. Professor McMaster agreed that it would not be unreasonable for a financial adviser to rely upon the assessments made by Lonsec in those reports. At Transcript p 146 l 11 to p 149 l 7, the following exchange took place: If you could kindly go to the next page, page 298, I draw your attention to the top left hand corner, second arrow. There's a reference to the fund [referring to the Basis Aust-Rim Fund] displaying historically low volatility and it is then said: Lonsec considers this product spans both the alteratives-conservative for some risk profiles and alternatives-aggressive components of a balanced portfolio. Do you see that, sir?---I do. The fund is suitable for mid to high risk profile investors with a three plus year investment time horizon. Do you see that?---I do. Lonsec considers an allocation of up to 5 per cent at risk profile 3 but not 2, 10 per cent at risk profiles 4 and 5 per cent at risk profile 5 to be suitable for this fund. Do you see that, sir?---I do. And you understand that to be a statement by Lonsec as to the suitability of this fund for investors fitting particular risk profile definitions, don't you?---Yes. And you would agree with me that it would not be unreasonable for a financial advisor in the position of Mr Hutton to act in accordance with that recommendation?---No. I'm sorry?---I'm agreeing. You agree? So that if Mr Hutton assessed a client's risk profile as a three, then you agree it would be reasonable for him to recommend up to 5 per cent investment in this fund?---Based on Lonsec's advice, yes. Well, and you agree that it would have been reasonable for him to base his recommendation on that advice?---Subject to assessing it for reasonable, yes. Yes. But if he though it was reasonable?---Then the answer is yes. And if Mr Hutton assessed a client as having a risk profile of four or five, then you agree that it would be reasonable for him to recommend a 10 per cent allocation to the risk – sorry – to the Aust-Rim Fund?---Yes. And Ms Jordan's allocation to the Aust-Rim Fund, as you understand it, represented 5 per cent of the personal investment component of the portfolio, didn't it?---Yes. And if you included the superannuation component, it was about 4 per cent, correct?---Yes. And according to Lonsec's advice, that allocation would have been appropriate for anybody who had – I withdraw that. Now, could I next ask you to go, please, sir, to page 306A in this same bundle. Do you see that if you look on the right hand side towards the top, Lonsec Opinion of the Fund? Do you have that?---Yes. And they describe the Basis Capital Yield Fund as an offering in the alternative income sector. Do you see that?---Yes, I do. If you go over the page for me to page 306B, do you see the second arrow: This fund should be used to complement existing fixed interest exposure in client portfolios. ?---Yes. And that's a recommendation which you agree a financial adviser would be entitled to rely upon in giving advice?---Yes. And in the third bullet point: Lonsec refers – recommends that advisors consider how the risk return profile of the Yield Fund differs from other income products. There's a mention of its heavy exposure to high yielding structured credit instruments, etcetera, and the last sentence in that paragraph: Advisors must consider the appropriateness of the risk return profile of the fund in relation to the risk return profile of their client before making an allocation. Do you see that?---Yes, I do. And, as you understand it, Lonsec have said that the individual advisor must turn his mind to and consider the appropriateness of the profile of the fund in relation to their client's profile?---Yes. It's a judgement that the advisor makes or should make on a case by case basis. Do you agree?---I do. Now, do you still have volume 1 there with you, Professor?---Yes. Might you turn to page 208 for me. Now, do you see there a Lonsec document described as Core Model Portfolio Structure Review June 2006?---Yes. And you understand, don't you, that research houses like Lonsec often prepare model portfolios as a guide to financial planners so that they can see what particular funds the research house would recommend clients be invested in?---Yes. And that the research house tends to pick the funds that they think are the best picks in particular asset areas, correct?---Yes. And that is then often relied upon by financial planners because they see which funds have been specially selected by the research house and they often rely upon that selection for their own purposes, correct?---Yes. And you see on this model portfolio structure as at June 2007, that if you look on the right hand side, the second choice funds referred to, the Basis Yield Fund appears. If you look down, there's income assets and across on the right hand side you see Basis Yield Fund?---Yes. And you would understand that to be a nomination of the Basis Yield Fund as a suggested alternative to the UBS Hybrid Income Fund or one of the other income funds over on the left hand side, correct?---Yes. Now, have you still got volume 2?---Yes. All right. Can I ask you to just put volume 1 aside for a moment and pick up volume 2 again and I would like to take you, if I may, to page 327. I'm sorry. First, 326, page before. Now, you see towards the bottom of page 326, there's a heading Income Assets, Fixed Interest and Cash?---Yes. And it's said: Fixed interest allocation acts to reduce volatility in the portfolio. Do you see that?---I do. And you understand that to be a reference to volatility in the portfolio as a whole, correct?---Correct. And you would agree that – I withdraw that. Now, if you then go over the page you will see on page 327 under the heading, hedge funds defensive. There's a reference, in particular in the last sentence of the first paragraph, "We employ hedge funds to reduce the volatility in the portfolio as a whole." Do you see that?---I do. And you understand that to be a reference to the volatility considered as a whole portfolio basis?---I do. And you agree with me, don't you, that the negative – the fact that both of the basis funds were negatively correlated to traditional assets meant that they did act to reduce volatility in the portfolio as a whole because they were negatively correlated to what was happening in the equities component, for example?---Correct. 125 In addition, Lonsec assessed each of the Basis Funds as "Highly Recommended". 126 In my judgment, Ms Jordan has failed to make out the core contention which is at the heart of her case, namely, that no reasonable financial adviser called upon to advise her in November 2006 and to make investment recommendations to her at that time should have included within his or her recommendations for investment, investment in either of the Basis Funds. 127 The misleading and deceptive conduct cases raised by Ms Jordan depend upon the Court making findings that it was misleading for HLB to suggest that the recommendations which it made were suitable for Ms Jordan and misleading for HLB to describe the Basis Yield Fund as a fixed interest investment. 128 The first of the ways in which the statutory causes of action based upon misleading and deceptive conduct are relied upon by Ms Jordan must fall with the negligence cases in contract and tort. This first case depends upon Ms Jordan making good the core proposition to which I have referred at [126] above and she has failed to do so. 129 As to the misdescription contention referred to at [127] above, it is necessary for Ms Jordan to satisfy the Court that, on the assumption that the product was misdescribed, if it had been accurately described, she would have acted differently. There are very substantial obstacles in the way of the Court making such a finding. First, Ms Jordan testified that she would accept the investment recommendations of Mr Hutton, even if she did not understand the products or funds in respect of which the recommendations were being made. Second, consistent with the first point, she testified that she did not read the first Statement of Advice. She even said that she did not remember receiving it. Third, she gave no evidence that she had interpreted the first Statement of Advice in any particular way. Specifically, she did not give any evidence that she noticed the commentary contained in the first Statement of Advice concerning the two Basis Funds. If she did not understand the Statement of Advice as asserting that which is now said to have been a misdescription, how can she have been misled? Fourth, Ms Jordan gave no evidence to the effect that, had she known or been told certain matters, or had particular disclosures been made in the first Statement of Advice, she would have acted differently. Specifically, she did not give evidence to the effect that, had the Basis Yield Fund been accurately described (that is to say, described in the manner that is now contended for by Ms Jordan) she would have acted any differently. The misdescription case must fail. 130 I should add that, in any event, I am not convinced that the Basis Yield Fund was misdescribed in the first Statement of Advice. However, for the reasons explained at [129] above, I do not think that it matters whether it was or was not so misdescribed. 131 No submissions were addressed to former s 945A of the Corporations Act by Counsel for Ms Jordan in closing address. In November 2006, s 945A(1) provided: 945A(1) The providing entity must only provide the advice to the client if: (a) the providing entity: (i) determines the relevant personal circumstances in relation to giving the advice; and (ii) makes reasonable inquiries in relation to those personal circumstances; and (b) having regard to information obtained from the client in relation to those personal circumstances, the providing entity has given such consideration to, and conducted such investigation of, the subject matter of the advice as is reasonable in all of the circumstances; and (c) the advice is appropriate to the client, having regard to that consideration and investigation. Note: Failure to comply with this subsection is an offence (see subsection 1311(1)). 132 Counsel for the respondents submitted in his written Opening Submissions that s 945A was not engaged at all in the present case because Ms Jordan was not a "retail client". Section 945A is only engaged if the financial advice or principal services are provided to a person as a "retail client". A retail client is someone whose investment the subject of the advice or service is $500,000 or less (see ss 944A(6), 761A and 761G(7)(a) of the Corporations Act and reg 7.1.19(2) and (5) of the Corporations Regulations). 133 The respondents' submission is sound and should be accepted. 134 In any event, for reasons already explained, had s 945A(1) been engaged in the present case, HLB complied with it. Damages 135 Given my findings on liability, it is not necessary for me to consider the question of damages. However, I wish to record that, had it been necessary for me to assess damages, I would have had considerable difficulty in accepting Ms Jordan's approach to the task. In my view, given that HLB's retainer was to advise and to make recommendations in relation to Ms Jordan's investment sum ($5.2 million–$5.5 million) and given that HLB performed that retainer by making the recommendations in the first Statement of Advice, any assessment of loss suffered by Ms Jordan as a result of the breach of that retainer or otherwise based upon the causes of action relied upon by her in the present proceeding must involve an assessment of the recommendations made by HLB as a whole and may also involve an analysis of the performance of all of the investments the subject of such recommendations over the period from 2006 to (at least) the date of the trial. I do not think that the requirements of causation in a case such as the present can be met by focussing all attention on two so-called bad investments and ignoring all other investments. Conclusions 136 For all of the above reasons, Ms Jordan has failed to make out her case. Her Application must be dismissed with costs. I certify that the preceding One hundred and thirty-six (136) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 9 April 2013	25,530
federal_court_of_australia:fca/full/2010/2010fcafc0005	decision	commonwealth	federal_court_of_australia	text/html	2010-02-08 00:00:00	Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2010/2010fcafc0005	2024-09-13T22:53:03.062663+10:00	FEDERAL COURT OF AUSTRALIA Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 Citation: Howards Storage World Pty Ltd v Haviv Holdings Pty Ltd [2010] FCAFC 5 Appeal from: Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652 Parties: HOWARDS STORAGE WORLD PTY LTD (ACN 094 719 490), PLAZA HOME-IMPORTS PTY LTD (ACN 069 891 201) and DIRK SPENCE v HAVIV HOLDINGS PTY LIMITED (ACN 101 265 730) and PAUL AGHION File number: NSD 665 of 2009 Judges: GRAY, LINDGREN AND EDMONDS JJ Date of judgment: 8 February 2010 Catchwords: COSTS – multiple claims – where applicant succeeded on only one claim – whether costs should follow the event – whether it was appropriate to apply the "rule of thumb" to apportion costs between the parties – the award of costs is in the discretion of the Court – no error has been identified in the manner in which costs were awarded. Held: the appeal be dismissed. Legislation: Trade Practices Act 1974 (Cth) Federal Court of Australia Act 1976 (Cth) s 43(2) Cases cited: Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232considered Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127considered Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 referred to Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373referred to House v R (1936) 55 CLR 499 applied Haviv Holdings Pty Limited v Howards Storage World Pty Ltd (2009) 254 ALR 273 cited Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652 cited Hughes v Western Australia Cricket Association (1986) ATPR 40-748 referred to Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited v Rickard Constructions Pty Limited [2009] HCA 43 cited Korner v H Korner & Co Ltd [1951] Ch 10considered Milne v Attorney General (Tas) (1956) 95 CLR 460 referred to Oshlack v Richmond River Council (1998) 193 CLR 72considered Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 referred to Date of hearing: 20 November 2009 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 75 Counsel for the Appellants: Mr M Christie SC with Mr L Shipway and Mr D Klineberg Solicitor for the Appellants: Diamond Conway Lawyers Counsel for the Respondents: Ms J Baird SC and Mr A Connolly Solicitor for the Respondents: Aron I Mucsnik IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 665 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: HOWARDS STORAGE WORLD PTY LTD (ACN 094 719 490) First Appellant PLAZA HOME-IMPORTS PTY LTD (ACN 069 891 201) Second Appellant DIRK SPENCE Third Appellant AND: HAVIV HOLDINGS PTY LIMITED (ACN 101 265 730) First Respondent PAUL AGHION Second Respondent JUDGES: GRAY, lindgren and EDMONDS JJ DATE OF ORDER: 8 FEBRUARY 2010 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellants' pay the respondents' costs of the appeal. Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 665 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: HOWARDS STORAGE WORLD PTY LTD (ACN 094 719 490) First Appellant PLAZA HOME-IMPORTS PTY LTD (ACN 069 891 201) Second Appellant DIRK SPENCE Third Appellant AND: HAVIV HOLDINGS PTY LIMITED (ACN 101 265 730) First Respondent PAUL AGHION Second Respondent JUDGES: GRAY, lindgren and EDMONDS JJ DATE: 8 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT GRAY J: The nature and history of the proceeding 1 The question in this appeal is whether the primary judge was in error in making the orders her Honour made in relation to the costs of the proceeding at first instance. The orders were made because of the peculiar circumstances of the parties to the case and the outcome of the proceeding at first instance. 2 There are three appellants, Howards Storage World Pty Limited ("Howards"), Plaza Home-Imports Pty Limited ("Plaza") and Dirk Spence. Howards and Plaza are related corporations. Mr Spence is a director of both. The respondents to the appeal are Haviv Holdings Pty Limited ("Haviv") and Paul Aghion. Mr Aghion is a director of Haviv. 3 In the proceeding at first instance, Haviv and Mr Aghion were the applicants. They sued in respect of a franchise agreement. In the initial negotiations for the franchise agreement, it was contemplated that Plaza would be the franchisor. When the franchise agreement was finalised, Howards was the franchisor. Plaza was responsible for the supply of products to Haviv under the franchise agreement. Mr Spence negotiated the franchise agreement on behalf of Plaza and Howards. Mr Aghion was the negotiator for Haviv. 4 Central to the proceeding at first instance were allegations that there were representations, or there was agreement, to the effect that Haviv would be the exclusive franchisee in an area within a radius of 5 kms around a particular store of Haviv. Subsequently, Howards granted another franchise within this radius. The causes of action on which Haviv and Mr Aghion relied were misleading and deceptive conduct, in contravention of s 52 of the Trade Practices Act 1974 (Cth) ("the Trade Practices Act"), and breach of contract. The claims made in the application were for declarations, injunctions, the payment of specified sums of money and damages, as well as for interest and costs. 5 On 18 March 2009, the primary judge delivered reasons for judgment, dealing with the substance of the case. Those reasons are published as Haviv Holdings Pty Limited v Howards Storage World Pty Ltd (2009) 254 ALR 273. On that occasion, her Honour adjourned the proceeding for further directions. On 7 May 2009, her Honour made some substantive orders. She granted a declaration that Howards had breached the franchise agreement by granting another franchise on a specified date. She ordered that Howards pay Haviv $591,983 in damages, plus interest. Except for the issue of costs, she dismissed the application otherwise. The effect of these orders, in light of her Honour's earlier reasons, was that Haviv succeeded only in its claim for breach of contract and only against Howards. Howards, Plaza and Mr Spence all succeeded in resisting the claims of Mr Aghion. Plaza and Mr Spence succeeded in resisting the claims of Haviv against them. 6 The question of costs was then argued. On 17 June 2009, the primary judge delivered judgment on that question and made orders. See Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652. Her Honour made three specific orders as to costs. First, Howards, Plaza and Mr Spence were ordered to pay costs incurred by Haviv and Mr Aghion by reason of the adjournment of the hearing of the proceeding on 30 October 2008. Second, Haviv and Mr Aghion were ordered to pay the costs of Howards, Plaza and Mr Spence in so far as those costs were incurred in relation to two specific claims that had been abandoned by Haviv and Mr Aghion. Third, Haviv and Mr Aghion were also ordered to pay the costs of Plaza and Mr Spence, but only in so far as those costs were incurred solely by reason of the joinder of Plaza and Mr Spence to the proceeding. Such costs were not to include any costs jointly incurred by Howards, Plaza and Mr Spence. Subject to those specific orders, her Honour ordered Howards to pay the costs of the proceeding of both Haviv and Mr Aghion. 7 The power of the Court to award costs in a proceeding is conferred by s 43(1) of the Federal Court of Australia Act 1976 (Cth). Section 43(2) provides expressly that "the award of costs is in the discretion of the Court or Judge." This appeal is therefore from the primary judge's exercise of that discretion. It is not for this Full Court to ask itself what order it would, or might, have made in respect of costs. The principles on which an appeal from an exercise of discretion is to be dealt with are well understood. They are set out in a passage in the judgment of Dixon, Evatt and McTiernan JJ in House v The King (1936) 55 CLR 499 at 504-505. That passage has been cited so often that it is unnecessary to set it out in these reasons for judgment. The issues on appeal 8 The tension in this appeal is between two different ways of approaching the question of costs in the circumstances of the case. The approach for which counsel for Howards, Plaza and Mr Spence contended is to treat the proceeding at first instance as if it were really six separate proceedings. This approach breaks down the proceeding into an action by Haviv against Howards, an action by Haviv against Plaza, an action by Haviv against Mr Spence, an action by Mr Aghion against Howards, an action by Mr Aghion against Plaza and an action by Mr Aghion against Mr Spence. Counsel for Howards, Plaza and Mr Spence then pointed to the fact that only one of these six actions was successful, that of Haviv against Howards. They contended that the ordinary principle, that costs follow the event, should lead to the conclusion that the successful parties should have orders for costs in their favour. They invoked the principles discussed by Einstein J in Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 at [89]-[95], which deal with cases of multiple parties, some successful and others unsuccessful. In particular, they referred to what is called the "rule of thumb", discussed by Einstein J at [95]. As his Honour said, the principle is designed: to achieve substantial justice in the awarding of costs as between a partially successful plaintiff and variously successful and unsuccessful defendants. The rule operates upon the premise that defendants are proportionately responsible for and liable for the joint costs involved in mounting the defence. Thus, a successful defendant cannot claim from the plaintiff more than a proportionate share of the joint costs of the action in addition to any costs separately referable to that defendant. Conversely, the partially successful plaintiff is prevented from looking to each of the unsuccessful defendants for more than an equal proportionate share of the costs not solely referable to the plaintiff's case against one or other of the defendants individually, in addition to the costs which are so referable. In this way, the rule of thumb prevents both the unjust enrichment of the partially successful plaintiff or successful defendant and the casting of an unfair burden on the unsuccessful defendants. Where the premise is falsified or the rule does not achieve its intended effect, it finds no application. 9 Thus, counsel for Howards, Plaza and Mr Spence claimed that all three of their clients should have proportionate costs orders against Mr Aghion, who had been totally unsuccessful against any of the three. In addition, Plaza and Mr Spence should have costs orders against Haviv, which had been unsuccessful against both of them. With respect to costs as between Haviv and Howards, counsel for Howards, Plaza and Mr Spence contended before the primary judge that there should be no order as to costs, because Haviv had succeeded against Howards only in respect of one of its two main causes of action. The argument was bolstered by reference to the fact that there were two separate main causes of action in each of the actions, and by reference to the fact that the amount of damages awarded to Haviv on the single cause of action on which it succeeded involved a very substantial diminution from the amount of damages claimed in the proceeding. 10 The alternative approach, taken by the primary judge and supported by counsel for Haviv and Mr Aghion in this appeal, was to aggregate the parties and the causes of action, so as to view the contest in the primary proceeding as being essentially one between two entities about a single dispute (save for some subsidiary causes of action that are not of concern in this appeal). The primary judge's reasons for judgment 11 In the course of summarising the submissions of the respective parties, the primary judge said at [16] of her reasons for judgment of 17 June 2009: During the hearing on costs I observed that the practical effect of the respondents' submissions is that the respondents would obtain orders entitling them to claim all of their costs from one or other of the applicants. In other words, irrespective of the circuitous route by which the outcome was achieved, the respondents were in fact claiming the usual order as to costs in their favour despite the fact that Haviv succeeded in obtaining a substantial award for damages on its claims for breach of the franchise agreement. 12 At [18]-[19], her Honour justified the aggregation of the parties by reference to the relationships between them, their representation in the proceeding and their involvement in the transactions the subject of the proceeding. Mr Aghion is a director of Haviv and the two were represented by a single solicitor. Mr Spence is a director of Howards and Plaza, which are related companies, and all three were represented by a single solicitor. Mr Aghion and Mr Spence were the negotiators on behalf of their respective companies and the decision to grant the franchise that constituted the breach of the franchise agreement between Haviv and Howards was made by Mr Spence. At [20]-[21], her Honour justified the aggregation of the causes of action. Haviv's claim for breach of the franchise agreement was in relation to the exclusivity of Haviv's territory. The claims of Haviv and Mr Aghion for misleading and deceptive conduct also concerned alleged representations about Haviv's exclusive territory. The quantum of damage claimed by Haviv against Howards for breach of the franchise agreement was the same as that claimed by Haviv and Mr Aghion against Howards and Plaza for misleading and deceptive conduct. Howards was substituted for Plaza as the franchisor after the negotiations had been completed, because of a restructure of the corporate group of which they were part. In addition, as her Honour pointed out at [22], the claims of Haviv and Mr Aghion against Mr Spence were that he was an accessory in respect of claims against Howards and Plaza under the Trade Practices Act. Further, at [24], her Honour pointed out that, because Howards ultimately admitted breach of the franchise agreement, the reasons for judgment of her Honour given on 18 March 2009 were concerned principally with assessment of damages. Her Honour did not accept all of Haviv's case on damages. Nor did she accept Howard's case that Haviv had suffered no loss or minimal loss. Haviv obtained a substantial order for damages. 13 At [29] of her reasons for judgment, the primary judge held that the rule of thumb had no application to the particular case. At [32], her Honour again referred to the necessity "to give weight to the applicants' success in obtaining a substantial award of damages." Her Honour's reference to both Haviv and Mr Aghion in this context (even though Mr Aghion had not succeeded in relation to any claim) is justified by the aggregation of parties, to which I have referred above. 14 Her Honour then proceeded at [34] to reject the approach for which Haviv and Mr Aghion advocated at first instance, that costs should follow the event, with the exclusion only of costs relating to the two claims Haviv and Mr Aghion abandoned at the start of the trial. Her Honour said that this approach failed to recognise not only that the two claims had been abandoned at the start of the hearing after Howards, Plaza and Mr Spence had incurred costs of meeting those claims, but "the applicants" succeeded only in the claim for breach of the franchise agreement and failed altogether against Plaza and Mr Spence. 15 At [36]-[37], her Honour dealt in more detail with the aggregation of causes of action. The evidence in respect of damages for the alleged representations about exclusive territory was the same as for the assessment of damages for breach of the franchise agreement, on which "the applicants" succeeded. There was only one set of submissions on the quantum of damage by Haviv and Mr Aghion. The quantum of damage was the most significant issue in terms of evidence and hearing time. The evidence in relation to the alleged exclusive territory representations overlapped substantially with the evidence relating to the breach of the franchise agreement, which Howards ultimately conceded. Evidence of the circumstances in which the franchise agreement was negotiated and executed, and the opening of the new franchise that constituted the breach of the franchise agreement, was relevant to both claims. The evidence relating solely to the exclusive territory representations could not fairly be described as dominant or separable in the context of the proceeding as a whole. As a result, her Honour did not accept that there should be any apportionment of costs on the basis that Haviv and Mr Aghion failed on the exclusive territory representations. 16 At [38], her Honour dealt with the discrete issue of alleged misleading and deceptive conduct in relation to rebates and financial benefits, the subject of paras 3(a) of the orders her Honour made on 17 June 2009. Her Honour reached the conclusion that Howards, Plaza and Mr Spence should be compensated for their successful defence of that claim, as well as the abandoned claims. At [39], her Honour said that Plaza and Mr Spence, having been wholly successful in their defences, should be compensated in respect of costs referable solely to their joinder as parties. Accordingly, her Honour made orders in favour of Haviv and Mr Aghion, subject to the exceptions to which she referred in her reasons for judgment of 17 June 2009. The appropriateness of the costs orders 17 The overriding principle that costs are in the discretion of the Court can also be expressed in terms of the negative proposition that no rule or principle should be applied mechanically in the determination of the question where costs should lie in any particular case. Attention must always be paid to the particular circumstances of the individual case. The aim is to do substantial justice in relation to costs, based on the outcomes of the various issues in the proceeding, as between the entities that are parties to that proceeding. In the circumstances of this case, there was ample justification for the primary judge taking the view that aggregation of parties, and of causes of action, was appropriate. The artificiality of the result that would have been achieved if the submissions on behalf of Howards, Plaza and Mr Spence had been adopted, to which her Honour referred in [16] of her reasons for judgment of 17 June 2009, and to which she returned in [32], provided ample justification for the adoption of the aggregation approach. It was that approach that produced substantial justice between the parties, whereas the adoption of the approach advocated by Howards, Plaza and Mr Spence would have produced substantial injustice. 18 Submissions made in the appeal by counsel for Howards, Plaza and Mr Spence, to the effect that a failure to allow the appeal would set a very bad precedent in respect of costs are unpersuasive. The outcome of the argument about the proper approach to costs is dictated by the specific circumstances of the case. To extrapolate that outcome into a principle, and to attempt to apply it to other cases, would be to produce error. In the same way, the mechanical application of the principle that costs follow the event, or of the principles expounded in Currabubula, would have produced injustice in the present case. The primary judge avoided such injustice. Her conclusion should be upheld. This appeal should be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gray. Associate: Dated: 3 February 2010 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 665 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: HOWARDS STORAGE WORLD PTY LTD (ACN 094 719 490) First Appellant PLAZA HOME-IMPORTS PTY LTD (ACN 069 891 201) Second Appellant DIRK SPENCE Third Appellant AND: HAVIV HOLDINGS PTY LIMITED (ACN 101 265 730) First Respondent PAUL AGHION Second Respondent JUDGES: GRAY, lindgren and EDMONDS JJ DATE: 8 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT LINDGREN J 19 I have had the benefit of reading drafts of the reasons for judgment of Gray J and Edmonds J. 20 I agree that the appeal should be dismissed with costs for the reasons given by their Honours, but wish to add the following two observations. 21 First, it is opportune to set out [16] and [17] of the primary Judge's reasons for judgment which illustrate the problems associated with treating the "rule of thumb" as a rigid rule of universal application: During the hearing on costs I observed that the practical effect of the respondents' submissions is that the respondents would obtain orders entitling them to claim all of their costs from one or other of the applicants. In other words, irrespective of the circuitous route by which the outcome was achieved, the respondents were in fact claiming the usual order as to cost in their favour despite the fact that Haviv succeeded in obtaining a substantial award for damages on its claims for breach of the franchise agreement. The respondents did not embrace this description. Nevertheless, I remain unable to adopt any different characterisation of the respondents' submissions and proposed orders. The effect of the orders sought by the respondents would be for one or the other applicant to pay each of the three respondents one third of the respondents' total costs whilst leaving the applicants to meet their own costs. By this route, the respondents would be wholly compensated for having defended a proceeding over ten hearing days which culminated in an order that HSW pay Haviv nearly $600,000 by way of damages for HSW's wrongdoing in breaching the franchise agreement. The injustice of this result confirms two matters. First, the award of costs involves a discretionary, not a mathematical exercise (…). Second, close attention to the circumstances of the individual case, part of which includes an evaluation of the real degrees of success and failure, is required. ... I agree with her Honour. 22 The second matter is this. Her Honour dismissed the proceeding in so far as it was brought by Mr Aghion. The only claim that he made was the Trade Practices Act claim. That claim was pleaded as being made by "the applicants" (the present respondents) and was dismissed in its entirety. Mr Aghion therefore had no success at first instance and the appellants submit that he should have been ordered to pay their costs of resisting his claim against them. For the reasons given by the primary Judge, and by Gray J and Edmonds J, that order should not be made. 23 Arguably, however, her Honour should have made a fifth order as follows: 5 The second applicant [Mr Aghion] is to pay any costs of the respondents [present appellants] as agreed or taxed but only in so far as such costs were incurred solely by reason of the joinder of the second applicant as a party to the proceeding (and for avoidance of doubt, such costs are not to include any costs incurred by the respondents in defending claims made by the first applicant [Haviv]). 24 As can be seen, such an order would be modelled on order 4 that was made by her Honour (set out at [42] of the reasons of Edmonds J). 25 One searches the statement of claim in vain for a particularised claim that Mr Aghion suffered loss or damage that would support an award of damages in his favour as claimed in para 12 of the application. The statement of claim simply alleges that the misleading and deceptive representations were made to "the applicants" and that "the applicants" entered into the Franchise Agreement in reliance on those representations and suffered loss. However, the losses alleged were losses in Haviv's business. 26 The joinder of Mr Aghion as an applicant was superfluous. 27 In accordance with the principled approach that her Honour took in respect of the unwarranted joinder of Plaza and Mr Spence, arguably Mr Aghion should have been ordered to pay any additional costs incurred by the appellants solely by reason of his joinder. 28 Apparently, however, the inclusion of Mr Aghion as an applicant did not cause the appellants to incur any additional costs, that is to say, any costs additional to those that they would have incurred in defending the Trade Practices Act claim made by Haviv. The appellants did not suggest otherwise. So far as the statement of claim reveals, Mr Aghion was simply the person through whom Haviv believed the pleaded representations and acted in reliance on them. 29 In these circumstances I approach the matter on the basis that the appellants incurred no costs solely by reason of Mr Aghion's having been included as an applicant and that an order 5 as outlined above would have no work to do. I am therefore content to join in the orders proposed by Gray J and Edmonds J, namely, that the appeal be dismissed and that the appellants pay the respondents' costs of the appeal. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 8 February 2010 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 665 of 2009 ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA BETWEEN: HOWARDS STORAGE WORLD PTY LTD (ACN 094 719 490) First Appellant PLAZA HOME-IMPORTS PTY LTD (ACN 069 891 201) Second Appellant DIRK SPENCE Third Appellant AND: HAVIV HOLDINGS PTY LIMITED (ACN 101 265 730) First Respondent PAUL AGHION Second Respondent JUDGES: GRAY, lindgren and EDMONDS JJ DATE: 8 FEBRUARY 2010 PLACE: SYDNEY REASONS FOR JUDGMENT EDMONDS J 30 This is an appeal from a judge of this Court against orders as to costs: Haviv Holdings Pty Limited v Howards Storage World Pty Limited (No 2) [2009] FCA 652 ('the costs judgment'). There was no appeal from the anterior judgment: Haviv Holdings Pty Limited v Howards Storage World Pty Ltd (2009) 254 ALR 273 ('the substantive judgment'). BACKGROUND TO THE SUBSTANTIVE JUDGMENT 31 The relevant facts are summarised in [2] – [4] of the reasons in the substantive judgment: [2] Howards Storage World is a specialty retailer of household storage items. The franchise agreement, made on 18 July 2002 between Howards Storage World Pty Ltd (HSW) (as franchisor) and Haviv Holdings Pty Limited (Haviv) (as franchisee), related to a Howards Storage World business in a store within the Westfield shopping centre at Burwood (the Burwood store). Paul Aghion is a director of Haviv and negotiated the franchise agreement on Haviv's behalf. Plaza Home-Imports Pty Ltd (Plaza) is a company related to HSW, initially proposed to be the franchisor and subsequently responsible for the supply of products to Haviv under the franchise agreement. Dirk Spence is a director of HSW and Plaza. He is responsible for the day-to-day operations of both companies and negotiated the franchise agreement on their behalf. [3] By the franchise agreement HSW granted to Haviv an exclusive franchise territory for a radius of 5 kilometres around the Burwood store. However, in August 2004 HSW entered into another franchise agreement for a Howards Storage World business in a store within the Rhodes shopping centre (the Rhodes store). The Rhodes store, and indeed the whole of the Rhodes shopping centre, is within the exclusive franchise territory HSW granted to Haviv (the Rhodes store being between 4837 and 4843 metres from the Burwood store). Haviv vacated the Burwood store on 17 August 2007 leaving it to HSW to operate. Haviv and HSW each purported to terminate the franchise agreement in early 2008, some three years after the opening of the Rhodes store in late November 2004. [4] Haviv claimed to have suffered loss and damage by reason of HSW's breach of the franchise agreement (the contract claims). Haviv and Mr Aghion also claimed to have suffered loss and damage by reason of two representations by HSW and Plaza allegedly in breach of the Trade Practices Act 1974 (Cth) concerning: - (i) the true position with respect to Haviv's exclusive franchise territory, and (ii) the lack of any financial benefit to Plaza for the supply of goods to Haviv (the trade practices claims). Haviv and Mr Aghion claimed further that Mr Spence is liable as an accessory of HSW and Plaza with respect to the trade practices claims. 32 The primary judge found that the first appellant ('HSW') had breached the contractual promise of an exclusive franchise territory which it gave the first respondent ('Haviv Holdings') in the franchise agreement by granting the franchise for, and permitting the operation of, the Rhodes store. Her Honour was satisfied that Haviv Holdings suffered loss caused by HSW's breach of the franchise agreement. The claims made by both respondents under the Trade Practices Act 1974 (Cth) ('Trade Practices Act') against all three appellants were not accepted by her Honour. THE COSTS JUDGMENT The Submissions Below 33 Before the primary judge, the respondents submitted that there were no special circumstances justifying the displacement of the ordinary principle that costs follow the event. As for the rejected Trade Practices claims, it was submitted that as these claims were based on the same substratum of facts as the breach of franchise agreement claim, the failure of the claims should not affect the award of costs. The respondents did, however, accept that the two claims abandoned at the hearing (with respect to rebates and GST) should be excluded from any costs order in their favour. 34 The appellants submitted to the primary judge that: (i) Haviv Holdings should pay each of the second and third appellants ('Plaza' and 'Spence' respectively) one third of the appellants' total costs; (ii) the second respondent ('Aghion') should pay the appellants one third of the appellants' total costs; and (iii) as between Haviv Holdings and HSW, each party should pay its own costs or HSW should pay one half of Haviv Holdings' costs. The appellants relied on the 'rule of thumb' as described in Currabubula Holdings Pty Ltd v State Bank of New South Wales [2000] NSWSC 232 at [89] – [95]. From the outset, the primary judge observed that the practical effect of the appellants' submissions was that the appellants would obtain orders entitling them to claim all of their costs from one or other of the respondents: [16]. The appellants were in fact claiming the usual order as to costs in their favour despite the fact that Haviv Holdings succeeded in obtaining a substantial award for damages on its claim for breach of the franchise agreement. The Primary Judge 35 The relationship between the parties and the causes of action in the present case was outlined in [18] – [24] of her Honour's reasons: [18] I do not have any evidence about the arrangements between the parties and their respective solicitors with respect to their joint or individual liability to pay costs (be it their own costs or that of any opposing party). However, I do know the following matters: - (i) Mr Aghion is a director of Haviv and hence the applicants are related in that sense, and were represented by a single solicitor, (ii) HSW and Plaza are related companies forming part of a group of companies which is managed as a group, (iii) Mr Spence is a director of HSW and Plaza, and (iv) hence, HSW, Plaza and Mr Spence are related in that sense, and were also represented by a single solicitor. Nothing I have said is intended to undermine the fact (emphasised by the respondents) that corporations have separate legal identities. Nevertheless, when dealing with a discretionary issue such as costs, it is relevant to consider the relationships between the parties and whether they share a common interest or not. [19] I also know that: - (i) Mr Aghion negotiated the franchise agreement for Haviv, (ii) Mr Spence negotiated the franchise agreement, first, for Plaza and, second, for HSW, after a corporate restructuring of the group, and (iii) Mr Spence decided to grant the franchise agreement for the Rhodes store in breach of the contractual promise that Haviv would enjoy an exclusive franchise territory within a certain area. [20] The principal causes of action in the proceeding may be described as follows: - (i) Haviv claimed damages against HSW for breach of the provisions of the franchise agreement relating to Haviv's exclusive territory, and (ii) Haviv and Mr Aghion claimed damages from HSW and Plaza for breach of the Trade Practices Act in respect of allegedly misleading and deceptive conduct about Haviv's exclusive franchise territory. [21] Importantly, from the outset of the hearing (and, indeed, from the evidence as filed) it was clear that the quantum of damage claimed by Haviv against HSW for the breach of the franchise agreement was the same as the quantum claimed by Haviv and Mr Aghion against HSW and Plaza for the allegedly misleading and deceptive representations about Haviv's exclusive franchise territory. Further, and as disclosed in [2] of my principal reasons, Plaza was initially proposed to be the franchisor under the franchise agreement and thus all negotiations before the restructure of the group of companies of which Plaza and HSW form part involved Mr Spence on behalf of Plaza. The restructure occurred before the franchise agreement was signed with the result that HSW, not Plaza, was the contracting party to the franchise agreement. [22] The subsidiary causes of action in the proceeding were that: - (i) Haviv and Mr Aghion claimed damages from HSW and Plaza for breach of the Trade Practices Actin respect of alleged misleading and deceptive conduct about Plaza's entitlement to financial benefits from the supply of goods to Haviv under the franchise agreement; these damages, unlike the damages sought under the principal causes of action, were additional damages, and (ii) Haviv and Mr Aghion claimed that Mr Spence was liable as an accessory in respect of all of the claims under the Trade Practices Act. [23] I have characterised the causes of action as "principal' and "subsidiary" based on my evaluation of the importance of the claims in the context of the overall proceeding, the amount and nature of the evidence relevant to the claims, the time taken in the proceeding to deal with the claims, and the nature of the relief sought. This characterisation, I note, generally accords with the way in which I dealt with the claims in my principal reasons. [24] As HSW ultimately admitted the breach of the franchise agreement, the majority of the principal reasons concerned the many issues arising on the evidence and submissions relating to the assessment of damages (at [6]-[87]). While I did not accept all of Haviv's case on damages, I also did not accept HSW's case that Haviv had suffered no or minimal loss. Haviv succeeded in obtaining a substantial order for damages. I dealt with the trade practices claims in [88] - [108] and Mr Spence's accessorial liability in [109] of the principal reasons. Haviv and Mr Aghion failed on all the trade practices claims. 36 At [25] – [29] the primary judge considered the utility and suitability of applying the 'rule of thumb' in the circumstances described above. The present case was not an 'ordinary or straightforward' case in which to apply the rule of thumb as between successful and unsuccessful respondents to ensure the costs were not unfairly borne. Further, her Honour did not accept that the rule had application to the present case which involved multiple applicants, respondents and claims, both as a matter of principle (for the reasons given by Einstein J in Currabubula) and on the facts of the present case: [28] and [29]. 37 Notwithstanding, her Honour recognised that the usual order as to costs, save for the two claims which the respondents abandoned at the start of the proceeding, was also not appropriate: [34]. Such an order would fail to recognise that: (i) the respondents simply abandoned two claims at the start of the hearing (after the appellants incurred costs in meeting those claims); (ii) the respondents succeeded in obtaining an award of damages by reason only of the breach of the franchise agreement claim, and (iii) the respondents failed against Plaza and Spence. 38 In relation to the abandoned claims, her Honour observed that due to the 'proper demands of the community for greater economy and efficiency in the conduct of litigation' (Dodds Family Investments Pty Ltd (formerly Solar Tint Pty Ltd) v Lane Industries Pty Ltd (1993) 26 IPR 261 at 272), the appellants should have the benefit of an order for costs in their favour in relation to these claims: [35]. 39 Her Honour, at [36] – [39], sought to identify whether the two Trade Practices claims pursued by the respondents, which were ultimately rejected, were clearly dominant or separable so as to warrant displacement of the usual order as to costs in the respondents' favour. The evidence for the exclusive territory representation could not be fairly described as dominant or separable in the context of the proceeding as a whole and therefore could not provide a basis for the displacement of the ordinary principle: [37]. 40 The position was not as straightforward in relation to the financial benefits representation. This issue was not clearly dominant in terms of the amount of evidence or the time taken at the hearing. It was, however, clearly separable. As the respondents were unsuccessful with respect to this discrete issue, her Honour was of the opinion that departure from the usual order as to costs was appropriate. In common with the abandoned claims, the respondents should be compensated for their successful defence of this claim: [38]. 41 Subject to the above considerations, her Honour concluded at [40] that the present respondents should have the benefit of an order for costs against HSW. At [41], her Honour concluded it would be impossible for her to attempt to synthesise all of her conclusions and impose a percentage apportionment and that the fairest course was for the orders to be framed by reference to the claims, with the actual apportionment to be left to taxation. 42 The primary judge then made the following orders in relation to costs: 1. Subject to the orders below, the first [appellant] is to pay the [respondents'] costs of the proceeding as agreed or taxed. 2. The [appellants] are to pay any costs incurred by the [respondents] by reason of the adjournment of the hearing on 30 October 2008 as agreed or taxed. 3. The [respondents] are to pay the [appellants'] costs of the proceeding as agreed or taxed insofar only as those costs were incurred in relation to the claims that: (a) the second [appellant] received rebates and other financial benefits from the supply of goods as set out in paragraph 27 of the statement of claim; and (b) the first [respondent] overpaid GST as set out in paragraphs 39 to 46 of the statement of claim. 4. The [respondents] are to pay the costs of the second and third [appellants] as agreed or taxed but only insofar as such costs were incurred solely by reason of the joinder of those parties to the proceeding (and, for the avoidance of doubt, such costs are not to include any costs jointly incurred by the [appellants]). AMENDED NOTICE OF APPEAL 43 On the hearing of the appeal, the appellants sought leave to file and rely on an amended notice of appeal. The amended notice of appeal contained a further ground of appeal and included minor amendments to the remaining grounds. Leave was not opposed by the respondents and was granted. GROUNDS OF APPEAL 44 On the hearing of the appeal, the appellants relied on the following grounds: 1. (a) The primary judge, in exercising the discretion as to costs, erred in principle by ordering that HSW pay Aghion's costs of the proceeding; (b) The primary judge, in exercising the discretion as to costs, erred in principle in not ordering that Aghion pay the appellants' costs related to Aghion's claim against the appellants. 2. The primary judge, in exercising the discretion as to costs in accordance with principle, ought to have ordered that the respondents pay Plaza and Spence's costs of the proceeding. 3. The primary judge, in exercising the discretion as to costs in accordance with principle, ought to have: (a) held that the costs payable to Plaza and Spence as contended in the second ground of appeal be determined on the premise that each of the three appellants was proportionately responsible and liable for the appellants' joint costs of mounting the appellants' defences; and (b) ordered that the respondents pay each of Plaza and Spence one third of the appellants' joint costs of the proceedings. 4. The primary judge, in exercising the discretion as to costs in accordance with principle, ought to have ordered that HSW pay Haviv Holdings one third of the total costs of both respondents (such total costs to exclude those disallowed by the primary judge in Order 3). The fifth ground in the amended notice of appeal was not pressed on the hearing of the appeal. 45 The appellants seek the following orders in lieu of the orders made by the primary judge: (1) Haviv Holdings pay Plaza and Spence's costs of the proceedings below. (2) The costs payable pursuant to (1) be, in the case of each of Plaza and Spence, one third of the total costs of the appellants. (3) HSW pay Haviv Holdings' costs of the proceedings below, being one third of the total costs of the respondents. (4) Unless otherwise payable under order (1), the respondents pay the appellants' costs of the proceeding insofar as those costs were incurred in relation to the claims that: (a) Plaza received rebates and other financial benefits from the supply of goods as set out in para 27 of the statement of claim; and (b) Haviv Holdings overpaid GST as set out in paras 39 – 46 of the statement of claim. (5) The total costs referred to in (3), part of which are recoverable by Haviv Holdings from HSW pursuant to (3) above, are not to include the costs of the matters referred to in (4) above. (6) Aghion to pay the appellants' costs exclusively related to Aghion's claim against them. First Ground of Appeal Appellants' Submissions 46 The appellants submitted that as Aghion failed completely against all three appellants, the primary judge erred in ordering that HSW pay the costs of both Haviv Holdings and Aghion. 'It is a general rule that a wholly successful defendant should receive his costs unless good reason is shown to the contrary': Milne v Attorney General (Tas) (1956) 95 CLR 460 at 477; Ruddock v Vadarlis (No 2) (2001) 115 FCR 229 at [35]. Only in the most extraordinary circumstances would a court order a successful respondent to pay the costs of an unsuccessful applicant. No such circumstances arose in this case and therefore the order made by the primary judge does not conform to the principled exercise of the Court's discretion. The order is unreasonable and plainly unjust: cf, House v R (1936) 55 CLR 499 at 505. 47 The appellants further submitted that Aghion, given the rejection of his claims, should pay the appellants' costs related to his claim against them. Absent a finding of any disentitling conduct on behalf of the appellants, it was an error of law to depart from the usual course that costs follow the event. Respondents' Submissions 48 The respondents submitted that the appellants' approach is equivalent to the imposition of a rigid rule as to the award of costs without allowance for the individual circumstances of each case. The relevant circumstances in this case were: (i) costs order 1 was in favour of both respondents, not just the second respondent; (ii) the primary judge found that the respondents could be considered as one for the purpose of costs (including those payable by them); (iii) costs order 1 is expressed to be subject to other costs orders; and (iv) even if the second respondent had any separate costs in relation to the remaining Trade Practices claim (the exclusive territory representation claim), they did not warrant separate treatment. Further, in relation to ground 1(b) of the amended notice of appeal, the respondents drew the Court's attention to the primary judge's order that Aghion pay the appellants' costs related to two of his three claims against the appellants (see costs order 3) and that costs order 4 requires both respondents to pay Plaza and Spence's costs insofar as those costs were incurred solely by reason of their joinder. Accordingly, the order accords with the principled exercise of discretion and in all the circumstances does not produce a result that is unreasonable or unjust. Second and Third Grounds of Appeal Appellants' Submissions 49 The appellants submitted that the primary judge erred in limiting Plaza and Spence's recovery of costs to those incurred solely by reason of joinder, notwithstanding that all claims by the respondents against Plaza and Spence failed completely. There is no basis in principle for depriving them of their costs and the primary judge's application of the principles in Currabubula was incorrect. Given that the primary judge concluded that 'the question of the quantum of damage … was by far the most significant issue in the proceeding in terms of both evidence and hearing time', it would be factually wrong to conclude that the application of the rule of thumb in the present case, as her Honour did, would 'fly in the teeth of the generally accepted principle … "that a successful party is to be recompensed the liability he has reasonably incurred in defending himself".' The circumstances of the present case cannot be characterised in such a way as to bring the case within the scope of the exception recognised in Korner v H Korner & Co Ltd [1951] Ch 10and Dansk Rekylriffel Syndikat Aktieselskab v Snell [1908] 2 Ch 127. Her Honour, therefore, erred in principle in concluding that Plaza and Spence were not entitled to their proportionate share of costs. Respondents' Submissions 50 The respondents submitted that it is incorrect to suggest that Plaza and Spence will receive only their costs referable solely to their joinder. Rather, in addition to the costs related to their joinder, Plaza and Spence are to receive their costs of the rebate and financial benefits representations claims: costs order 3 and [35] and [38] – [39] of her Honour's reasons. The primary judge's approach to the costs of the Trade Practices claims was in accordance with the principles pronounced in Dodds Family Investments and Elite Protective Personnel Pty Ltd & Anor v Salmon (No 2) [2007] NSWCA 373. The orders appropriately reflected Haviv Holdings' success on the exclusive territory claim, which was its primary claim. 51 In relation to the third ground of appeal, to the extent that a 'rule of thumb' is to be applied, it is only to be applied in an ordinary and straightforward case and where it would not produce an unjust result: Korner at 17 – 18. It was submitted that the primary judge was correct in her rejection of the application of the 'rule of thumb' to the present case on the basis that it did not achieve a just result and that the present case involved multiple applicants, respondents and claims and was therefore not the kind of ordinary or straightforward case to which it was convenient to apply the rule of thumb. 52 The appellants' approach would see the respondents subsidise HSW's costs of its unsuccessful defence of the claim for breach of contract. Further, insofar as the rule of thumb depends on the presumption that defendants will have several liability for their costs, the primary judge had reason not to adopt such a presumption in this case due to the relationships between the parties. Fourth Ground of Appeal Appellants' Submissions 53 The appellants submitted that, in accordance with Einstein J's decision in Currabubula at [95], the partially successful applicant is prevented from looking to each of the unsuccessful defendants for more than an equal proportionate share of the costs (not being costs solely referrable to the applicant's case against one or other of the defendants individually). 54 By ordering HSW to pay all of Haviv Holdings' costs, the primary judge has created a situation where HSW is required to pay Haviv Holdings' costs in unsuccessfully pursuing its claim in the quantum of in excess of $7 million against Plaza and Spence. There is nothing in Dansk and Korner to support this conclusion. Respondents' Submissions 55 The respondents submitted that the extension of the rule of thumb to the apportionment of costs between multiple applicants, as contended for by the appellants in this ground of appeal, should not be accepted by the Court. Even if the rule of thumb can apply to one of multiple applicants, the Court is not bound to apply it in that or any other circumstance: Korner at 17 – 18. 56 To uphold this approach would deprive Haviv Holdings of proper compensation for the cost of vindicating its rights, by reducing the costs it may recover to one third of the costs relating to its successful claim in the proceeding; such an outcome would be unjust. Further, the appellants' approach fails to take into account that each side can properly be treated as a single entity. 57 In addition, the appellants' submission that the primary judge has ordered HSW to pay all of Haviv Holdings' costs ignores the express wording of costs order 1. The order against HSW is expressly subject to the other costs orders. Costs orders 3(a) and (b) may account for more than 40% of the appellants' costs: [38] of her Honour's reasons below. APPLICABLE LAW 58 Section 43(2) of the Federal Court of Australia Act 1976 (Cth) provides that '[e]xcept as provided by any other Act, the award of costs is in the discretion of the Court or Judge.' Like all discretions it must be exercised judicially and not against the successful party except for some reason connected with the case: Ruddock v Vardalis at 234. 59 In Hughes v Western Australia Cricket Association (1986) ATPR 40-748 at 48,136, Toohey J suggests that three principles as to the exercise of the discretion are evident from the cases: (1) Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. (2) Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which it has failed. (3) A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, 'issue' does not mean a precise issue in the technical pleading sense but any disputed question of fact or law. 60 To these considerations, the Court in Dodds added the following observations (at 271 – 272): The propositions enunciated in that case are subject to the further consideration that justice may not be served if parties are dissuaded by the risk of costs from canvassing all issues which might be material to the decision in the case… … Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation. 61 In Oshlack v Richmond River Council (1998) 193 CLR 72, McHugh J, at 97, expanded on the justification for the general principle that costs follow the event: [S]ubject to certain limited exceptions, a successful party in litigation is entitled to an award of costs in its favour. The principle is grounded in reasons of fairness and policy … The primary purpose+-+e of an award of costs is to indemnify the successful party. If the litigation had not been brought, or defended, by the unsuccessful party the successful party would not have incurred the expense which it did. As between the parties, fairness dictates that the unsuccessful party typically bears the liability for the costs of the unsuccessful litigation. As a matter of policy, one beneficial by-product of this compensatory purpose may well be to instil in a party contemplating commencing, or defending, litigation a sober realisation of the potential financial expense involved. Large scale disregard of the principle of the usual order as to costs would inevitably lead to an increase in litigation with an increased, and often unnecessary, burden on the scarce resources of the publicly funded system of justice. These comments were cited with approval by Hayne J in Jeffery & Katauskas Pty Limited v SST Consulting Pty Ltd; Jeffery & Katauskas Pty Limited [2009] HCA 43at [55]. 62 The general rule, that costs follow the event, becomes somewhat complicated where there are multiple applicants or respondents who are variously successful and unsuccessful. In Currabubula, Einstein J recognised that one device that has been developed to overcome these difficulties is the principle of taxation called the 'rule of thumb': [95]. The 'rule of thumb' is that where a solicitor acts for more than one defendant, each defendant (if successful) is entitled to its proportion of the costs jointly incurred and any costs incurred solely on its behalf. At [95] Einstein J observed: These decisions reveal that the concern of the rule of thumb is to achieve substantial justice in the awarding of costs as between a partially successful plaintiff and variously successful and unsuccessful defendants. The rule operates upon the premise that defendants are proportionately responsible and liable for the joint costs involved in mounting the defence. Thus, a successful defendant cannot claim from the plaintiff more than a proportionate share of the joint costs of the action in addition to any costs separately referable to that defendant. Conversely, the partially successful plaintiff is prevented from looking to each of the unsuccessful defendants for more than an equal proportionate share of the costs not solely referrable to the plaintiff's case against one or other of the defendants individually, in addition to the costs which are so referable. In this way, the rule of thumb prevents both the unjust enrichment of the partially successful plaintiff or successful defendant and the casting of an unfair burden on the unsuccessful defendants. Where the premise is falsified or the rule does not achieve its intended effect, it finds no application. 63 Einstein J discussed two situations where the application of the 'rule of thumb' was inappropriate: Korner and Dansk. In Korner, the plaintiff had brought an action against eight defendants, but only succeeded against one. The issue on which the plaintiff was ultimately successful was the primary issue. Wynn-Parry J upheld the decision of the Taxing Master not to apply the rule of thumb because to apportion the costs equally in a situation where the issue on which the plaintiff was successful, was the most substantial issue and was distinct from the issues on which the plaintiff failed against the other defendants, was to apply the rule to achieve an unjust result. In Dansk, a plaintiff succeeded in his action against two defendants, but succeeded against one summarily and succeeded against the other after the trial of the action. Neville J held that in these circumstances it would be unjust to apportion the costs equally, for to do so would be to require the defendant who did not proceed to trial to bear the costs of the trial over which they had no control. Accordingly, Neville J altered the award of costs to require the Taxing Master to determine how much of the costs were incurred for the defendants jointly and how much were attributable to each defendant separately. 64 In Elite Protective Personnel,Beazley, McColl and Basten JJA discussed the apportionment of costs in these terms: [6] Where there are multiple issues in a case the Court generally does not attempt to differentiate between the issues on which the appellant was successful and those on which it failed. Unless a particular issue or group of issues is clearly dominant or separable it will ordinarily be appropriate to award the costs of the proceedings to the successful party without attempting to differentiate between those particular issues on which it was successful and those on which it failed: Waters v P C Henderson (Aust) Pty Ltd (Court of Appeal, 6 July 1994, unreported). [7] As the appellants submit, the commencing position is that costs follow the event so that a successful party is entitled to costs. In relation to trials it has been said that it may be appropriate to deprive a successful party of costs or a portion of the costs if the matters upon which that party was unsuccessful took up a significant part of the trial, either by way of evidence or argument: Sabah Yazgi v Permanent Custodians Limited (No 2) [2007] NSWCA 306 (at [24]). A similar approach is adopted in the Court of Appeal. If the appellant loses on a separate issue argued on the appeal which has increased the time taken in hearing the appeal, then a special order for costs may be appropriate which deprives the appellant of the costs of that issue: Sydney City Council v Geftlick & Ors (No 2) [2006] NSWCA 374 (at [27]). ANALYSIS 65 The award of costs involves a discretionary, not a mathematical exercise. Review of such a discretionary exercise requires the identification of an error of the kind described in House v R. Dixon, Evatt & McTiernan JJ observed at 504 – 505: The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. 66 The primary judge was in the best position to know how the trial ran, how the case was conducted and what might or might not have been any additional costs. The question is not, therefore, whether I would have made different orders as to costs. Rather, for the appeal to be allowed an error must be identified. 67 Her Honour was correct in identifying, at [17], that 'close attention to the circumstances of the individual case, part of which includes an evaluation of the real degrees of success and failure, is required' when awarding costs. An examination of the relationship between the parties is necessary to ensure that cost orders do not bring about a situation where a successful applicant winds up with a costs order against it and an unsuccessful applicant is awarded costs. The primary judge correctly identified that the relationship between the parties was such that the parties could be divided into groups; each side could properly be treated as a single entity. On the hearing of the appeal, the appellants did not challenge her Honour's description of the relationship between the parties. Rather, it was contended that her Honour did not rely on aggregation in awarding costs. I cannot accept this submission. The primary judge's reliance on the aggregation of the parties is evident from [32] of the reasons below: The difficulty with the second aspect of this submission is that it fails to give weight to the applicants' success in obtaining a substantial award of damages. (Emphasis added). Indeed, this is the principal difficulty with the appellants' appeal. Where the appellants sought to separate the parties, her Honour sought to aggregate the parties. This aggregation, which was open on the facts before the primary judge, shaped the way in which her Honour applied the principles described at [58] – [64] above to the present circumstances. First Ground of Appeal 68 This ground of appeal concerned her Honour's apparent rejection of the principle that costs follow the event in ordering that HSW pay both respondents' costs despite Aghion failing in all of his three claims. Her Honour was perfectly aware of the general principle but for the reasons she gave, formed the opinion that the ordinary principle should not apply in the present circumstances. The effect of this order was not, as Counsel for the appellants' submitted, to give a 'free ride to a co-plaintiff [Aghion] who has failed entirely on matters different to those which his co-plaintiff [Haviv Holdings] succeeded on.' Not only was the first order as to costs made subject to other orders which recognise the necessity of compensating the appellants for abandoned claims but there are circumstances in this case that differentiate this from a simple case in which Aghion sued the three respondents and failed against all three of them. Given the nature of the relationship between the parties outlined at [67] above, an order against one respondent was tantamount to an order against the other. This order was consistent with her Honour's attempt to indemnify the successful party. As McHugh J identified in Oshlack, at 97, such indemnity is the primary purpose of an award of costs. Second and Third Ground of Appeal 69 The second and third grounds of appeal concern the costs of Plaza and Spence and the applicability of the 'rule of thumb'. As the respondents submitted, the cost orders must be viewed together rather than isolation. When viewed together, it is apparent that Plaza and Spence will receive more than merely the costs referable solely to their joinder. In relation to the Trade Practices claims, I agree with her Honour's observation that the evidence for 'the exclusive territory representations … could not fairly be described as dominant or separable in the context of the proceeding as a whole' and therefore could not provide a basis for the displacement of the ordinary rule: Elite Protective Personnel at [6]. It was appropriate, therefore, that her Honour did not order that there should be any apportionment of costs on the basis that the appellants failed on the exclusive territory representations. 70 As for the applicability of the 'rule of thumb', it is evident from the cases referred to at [62] – [64] above that to the extent that a 'rule of thumb' is to be applied in apportioning costs, it is only to be applied in ordinary and straightforward cases. It is a convenient guide, rather than a rigid device to be applied irrespective of the individual circumstances. Mechanical application of the 'rule' without careful consideration of the individual circumstances could bring about the very injustice the rule is designed to remedy. The primary judge recognised, and I agree, that the present circumstances, with a multiplicity of parties and claims together with the nature of the relationships between the parties, are not the kind of ordinary or straightforward case to which it was convenient and appropriate to apply a 'rule of thumb' in the apportionment of costs. Fourth Ground of Appeal 71 The appellants' submission on this ground of appeal once again ignored both the reality of the relationship between the parties and the totality of the orders made by her Honour. HSW was not ordered to pay the entire costs of Haviv Holdings. The order is expressly subject to the other costs orders. Indeed, as the respondents submitted, cost orders 3(a) and (b) may account for more than 40% of the appellants' costs: [38]. 72 As for whether the rule of thumb extends to situations involving successful and unsuccessful applications, I agree with the observations of Einstein J in Currabubula at [104] that: 'There is no logical reason why a defendant who is sued by several plaintiffs who are variously successful and unsuccessful should be in a more advantageous position qua joint costs … than would be an unsuccessful defendant sued by one successful plaintiff alone.' 73 Even if the 'rule of thumb' extends to situations involving multiple applicants, it would still be limited to situations where its application fulfils the purpose of the rule. In the present circumstances, the relationship of the parties and multiplicity of claims makes its application inappropriate. CONCLUSION 74 The primary judge exercised her discretion to award costs in a judicial, principled and well-reasoned manner with reference to the relevant authorities. The appellants have been unable to identify an error in the primary judge's decision to award costs in the manner in which she did. The appellants' approach, if adopted, would unduly fetter the Court's discretion as to costs and produce an unjust result. 75 Accordingly, the appeal must be dismissed. The appellants must pay the respondents' costs of the appeal. I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 8 February 2010	14,616
federal_court_of_australia:fca/single/1997/1997fca0422	decision	commonwealth	federal_court_of_australia	text/html	1997-05-21 00:00:00	Mr B v Minister for Immigration & Multicultural Affairs [1997] FCA 422	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca0422	2024-09-13T22:53:03.183989+10:00	CATCHWORDS Migration - Criterion for the grant of a Class 816 permit that the application for refugee status must have been recorded by Immigration as having been received - Departmental officer omits to record an application for refugee status which is not proceeded with as a result of incorrect advice given by the officer to an applicant - Consideration of principles relevant to construction of a requirement as mandatory or directory - Whether the criterion is mandatory or directory - Whether non-compliance with the criterion prevents the grant of the permit - Whether the Minister is estopped from relying upon non-compliance with the criterion - Whether the criterion is invalid on the ground of unreasonableness - Whether a failure to call witnesses is a failure to accord substantial justice. Migration Act 1958 (Cth) ss.33(2), 34(4), 353, 476(2) Migration Regulations 1993 (Cth) Reg.816.72 Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186 Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13 Howard v. Bodington (1877) 2 PD 203 Australian Broadcasting Corporation v. Redmore Pty Ltd (1989) 166 CLR 454 The State of Victoria v. The Commonwealth and Connor (1975) 134 CLR 81 Hunter Resources Limited v. Melville (1988) 164 CLR 234 Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349 Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 Plunket v. Malley (1863) 8 Irish Jurist (N.S) 83 Wang v. Minister for Immigration and Multicultural Affairs Merkel J, unreported, 13 February 1997 Saraswati v. The Queen (1991) 172 CLR 1 Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193 Minister for Primary Industries and Energy v. Austral Fisheries Pty Ltd (1993) 40 FCR 381 Li v. Minister for Immigration and Multicultural Affairs Foster J, unreported, 24 April 1997 Servos v. Repatriation Commission (1995) 56 FCR 377 VG950/1995 - MR B V. THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS MERKEL J MELBOURNE 21 MAY 1997 IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG No. 950 of 1995 BETWEEN MR B Applicant - and - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent COURT: MERKEL J PLACE: MELBOURNE DATE: 21 MAY 1997 ORDERS 1. The application is dismissed. 2. The applicant pay the respondent's taxed costs of and incidental to the application. NOTE: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG No. 950 of 1995 BETWEEN MR B Applicant - and - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent COURT: MERKEL J PLACE: MELBOURNE DATE: 21 MAY 1997 REASONS FOR JUDGMENT Introduction The applicant is a citizen of the People's Republic of China. Since 15 April 1990 he has resided in Australia pursuant to extended student entry permits. On 25 July 1992 the applicant attended the office of the Department of Immigration, Local Government and Ethnic Affairs (DILGEA) for the purpose of lodging an application for refugee status but was persuaded by a departmental officer not to proceed with his application. On 8 November 1993 the applicant lodged an application for refugee status. On 20 July 1994 the applicant lodged an application for a Class 816 (Special (Permanent)) Entry Permit. The application was refused on the ground that the applicant did not meet one of the requirements set out in Schedule 1, Part 816 of the Migration (1993) Regulations ("the regulations"). The particular requirement, which was contained in reg.816.721(5)(a), was that an application by the applicant for refugee status: "must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993" On 21 November 1995 the Immigration Review Tribunal ("the IRT") affirmed the decision refusing the application. The IRT decided that, as the requirement was mandatory and there was no record of an application by the applicant for refugee status prior to 1 November 1993, the application for a Class 816 permit must fail. The applicant applied to the Court to review the decision of the IRT under Part 8 of the Migration Act 1958 ("the Act"). The facts In its decision the IRT summarised the applicant's evidence: The Principal submitted to the Department that he failed to lodge his application for a determination that he was a refugee prior to 1 November 1993 due to certain circumstances. These circumstances were outlined in a statement submitted to the Department dated 16 July 1994. ...The idea of applying refugee status in Australia first occurred to me after my arrival in Australia, in view of the many well-know reasons, especially the unchanging human rights status of[sic] china under C.P.C'S consistent policy. But I noticed the Australia government had not set up a clear-cut policy regarding those applicants who lodge their refugee applications as early as the June 1989 period. My application was delayed also due to language barrier, and I was told that I could only choose either a either a students visa or refugee application, not both. On May 22 1992, the fifth issue of Chinese Migrant Bulletin published a speech of ex-immigration Minister Gerry Hand, which also mentioned students hoping to keep their visas must at least give up refugee application. [sic] on May 25, I went to the DILGEA office with my friend[sic] at 10.30 AM, A officer greeted us and advised that if we lodge refugee application, our student's visas could not ensure the extension, and if our applications were refused, the student's visa would expire automatically. Such being the case, I really think there exist a lot of unfair situations in the refugee processing procedures in Australia. At that time, I believed keeping my student visa was the best way for future decision as when to lodge my already completed forms. I was really shocked to learn of the so-called 'November 1st' Decision of the Australia Government. To be more exact, I feel to have been left out, misled and fooled. Many Chinese students never interested in real studying, are eligible for normal working and protection as they Lodged refugee applications as early as possible, some of them have even gone back to China and withdrawn their refugee applications, yet, they are still eligible for the criteria of 'class 816' while a person of similar background like me, who always try to learn something and to maintain my student visa as the Australia Government, expect is excluded for protection. I, therefore, have to take legal proceedings to ask a fair treatment of my case from the Australia Government. The Principal's oral evidence is essentially the same as his written submission. The Principal told the Tribunal that in 1992 he went to the King Street office of the Department with three friends. He stated that he and two of his friends had completed an application for a determination that they were refugees prior to their attendance at the office, which they took with them to the office. A third friend assisted with interpreting. The Principal said he was told that he could not keep his student entry permit if he lodged an application for a determination that he was a refugee. The Principal took back his application. The Principal's submission is that he had attempted to lodge an application which was rejected by the Department. The Principal then recalled hearing on the Chinese radio in November 1993 about the government's decision to introduce a number of Classes of visas including the Class 816. He told the Tribunal he went to the Department's Preston office about one week later and lodged an application for a temporary protection visa and an application for a determination that he was a refugee. This was the application lodged on 8 November 1993. The IRT's findings in respect of the applicant's case, in so far as is relevant, were: The major issue in this application is whether the Principal lodged an application for a determination that he was a refugee which was recorded as being received by the Department on or before 1 November 1993. The Principal's application was recorded as having been received on the 8 November 1993. The Principal does not dispute this fact. However he submits that he attempted to lodge an earlier application for a determination that he was a refugee at an office of the Department in May 1992. He was dissuaded from doing so, according to his evidence, by a Departmental Officer. This issue was extensively discussed in Re Pei (IRT Decision 5689, 21 August 1995) and the Tribunal adopts the reasoning outlined in that decision which found the Tribunal has no discretion in determining whether an application was recorded as received by the Department, on or before 1 November 1993. In Re Pei the IRT concluded that the question of determining whether, and if so when, an application for refugee status was recorded as having been received by the Department was a question of fact in respect of which there was no scope for discretionary considerations. The IRT concluded: It has been submitted by the applicant that there were extenuating circumstances as to why he failed to lodge his application for refugee status, which was not recorded as being received by the Department until after 1 November 1993. However, the Tribunal has no power to consider the circumstances which led to the lodgement of the Principal's refugee application after 1 November 1993. The Tribunal is bound to apply the Migration Regulations as they relate to this particular entry permit. It is a question of fact that the Principal lodged an application for a determination that he was a refugee which was recorded as being received by the Department on 8 November 1993, that is after 1 November 1993. It is clear therefore that the application for a Class 816 (special (permanent)) entry permit cannot succeed. In his written submissions to, and evidence before, the IRT the applicant appeared to accept that he did not lodge his refugee application on 25 May 1992. However, in the course of his oral evidence the applicant said that he handed the application to an unnamed departmental officer who read it and then told him that if the applicant proceeded with the application he could not keep his student visa. The applicant says that as a consequence of that advice he withdrew his application. The following passages in the transcript reflect the substance of the applicant's evidence to the IRT in support of his present case that he lodged, but withdrew, his application for refugee status on 25 July 1992: THE INTERPRETER: Because as early as 1992 I already submitted my application for refugee status but my application was knocked back. MS SCOTT: What do you mean you submitted your application for refugee status? THE INTERPRETER: Because it was in a decision that only those who have submitted this application for refugee status were qualified to apply for 816. MS SCOTT: Are you saying, Mr [B], you had already lodged an application? THE INTERPRETER: That is right. MS SCOTT: So you had lodged your application before 1 November 1993? THE INTERPRETER: Yes, but it was refused, it was knocked back. MS SCOTT: So when did you lodge the application? THE INTERPRETER: Well at the time because of my poor English I had to go there with a friend who accompanied me to go there and where I submitted my application but I was told that if I lodged my application for refugee status I could not keep my student visa, so it is either/or situation in which he asked me to choose, and as I could not keep my student visa I could not submit that application, I had to keep my student visa in order to stay in Australia as a student, that is how I was rejected. MS SCOTT: So you did not actually get to lodge your application with the Department? THE INTERPRETER: Well I did give it over to him but he insisted that if you really want to lodge it you have to lose your student visa so he just gave that back to me. (T7) and MS SCOTT: But you had not lodged an application before 1 November 1993, Mr [B]? THE INTERPRETER: But I did go to the office and he did tell me that I could not keep my student visa, and effectively he rejected my application then and there. MS SCOTT: He refused to accept your application? THE INTERPRETER: Well, he did not literally refuse to accept my application, but his advice is if you want to keep your student visa I cannot take your application. MS SCOTT: So you took your application away with you, Mr [B]? THE INTERPRETER: At the time I had two copies, one copy - one original form and the other one was a copy. He was still trying to recall details. Well, he said I could take your application, but you have to think about it, because your student visa might be affected. Then I said something like this: that - what if I insist in having my student visa? Then he said, in that case I have to refuse to accept your application. On the basis of that evidence the main case put to the Court on behalf of the applicant, but not to the IRT, was that: • the applicant made application for refugee status on 25 May 1992; • DILGEA received the application on 25 May 1992; • DILGEA omitted to record the receipt of the application; • the applicant withdrew the application as a result of receiving incorrect advice from a departmental officer; • the requirement under the regulations that the application be recorded as having been received is directory, not mandatory; • as the requirement is directory - (a) the failure to record the application as having been received does not have the consequence that the applicant failed to meet the relevant requirement; (b) the Minister can be and, in the present case, is estopped from relying upon any departmental omission to record the receipt of the refugee application as a ground for refusing the application for a Class 816 permit. It was central to the applicant's case that the applicant had satisfied the criterion that an application for a determination of refugee status be made on or prior to 1 November 1993 and that the IRT failed to consider his case on that basis. His Counsel conceded that the application for review under Part 8 must fail if the Court concluded that no application for refugee status was made on 25 May 1992. On a fair reading of the decision of the IRT it is accurate to say that the IRT dealt with the case on the basis that no application for refugee status was lodged prior to 1 November 1993. That is not surprising as that was the case put by the applicant. Further, the factual basis for the applicant's present case that he made an application for refugee status on 25 May 1992 was slender, was inconsistent with the applicant's written statement and submissions, and was not articulated before the IRT. Nevertheless the fact that the applicant's present case was not put to the IRT is not fatal. In such circumstances there can be reviewable error of law if the point is of sufficient significance and is fairly open on the evidence: see Kuswardana v. Minister for Immigration and Ethnic Affairs (1981) 35 ALR 186; 54 FLR 334 and Secretary, Department of Social Security v. Cooper (1990) 26 FCR 13 at 18. The legislative framework Sections 33(1) and 181 of the Act empower the Governor-General to make regulations, inter alia, prescribing the conditions which are to be satisfied in relation to entry permits. At the relevant time ss.33(2) provided: (2) Regulations made under subsection (1) may provide: (a) for different classes of entry permits; and (b) that, subject to sections 40 and 45, a person is entitled to be granted an entry permit of a particular class if that person satisfies all the prescribed criteria in relation to that class. Reg.2.22(2) provided, inter alia, that the prescribed criteria for a Class 816 permit were the criteria set out in Part 816. Section 34(4) provided: (4) Where it appears to the Minister that the applicant is not, under the regulations, entitled to be granted an entry permit of the class concerned, the Minister shall refuse to grant such an entry permit. On 1 November 1993 the Department of Immigration and Ethnic Affairs announced the creation of a Class 816 permit to provide access to permanent residence for "some better qualified asylum seekers" temporarily in Australia, provided, inter alia, that they had sought refugee status on or before 1 November 1993. A Class 816 permit was provided for in Part 816 of the regulations. One of the express purposes of the Part was to provide for permanent residence in Australia for certain persons "who have applied for determinations that they are refugees" (reg.816.12). The regulations set out the criteria which were required to be satisfied at the time of an application for a Class 816 permit; the permit had to be applied for on or before 1 August 1994. The relevant criteria in respect of an applicant who had applied for refugee status were set out in reg.816.72: 816.72 Criteria to be satisfied at time of application (entry permit - after entry) 816.721 (1) The applicant is: (a) a person who: (i) had not turned 45 before 1 November 1993; and (ii) meets the requirements of subclause (2) or (3); and (iii)meets the requirements of subclause (4) or (6); .... 816.721 (4) An applicant meets the requirements of this subclause if: (a) the applicant applied in accordance with subclause (5) for a determination that the applicant was a refugee (whether or not the application has been withdrawn, and whether or not the application, if not withdrawn, has been decided, and whether or not the decision, if made, was adverse to the applicant); .... (5) For the purposes of paragraph (4)(a), an application for a determination that the applicant is a refugee: (a) must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993; and (b) if the application was recorded by Immigration as having been received on or after 1 February 1993 - must have been made on the approved form. Reg.816.721(6), which may be contrasted with reg.816.721(5)(a), provides for a Class 816 permit for nationals of Sri Lanka and the former Yugoslavia who had "applied, on or before 1 November 1993" for certain specified permits. The provisions in the Act and the regulations dealing with the grant of entry permits to persons determined to have refugee status have varied from time to time. On 25 May 1992 reg.117A(1) of the Migration Regulations 1989 provided for a domestic protection temporary entry permit to be granted to persons satisfying certain criteria which included the criterion (under paragraph (b)) that "the applicant has been determined by the Minister to have refugee status". As at 25 May 1992 neither the Act, nor the regulations made under it, contained any provision for the making or recording of applications for refugee status. The procedure within DILGEA for refugee applications at the time was said on behalf of the Minister to be as follows: In May 1992, there were a number of Departmental forms provided by DILGEA for the purpose of making an Application for Refugee Status and associated applications. An Application for Refugee Status in Australia was made on a Form 306, for which there was no prescribed fee. Such forms were usually but not always accompanied with a Form 908, which was an application for a Domestic Protection (Temporary) Entry Permit for which there was a prescribed fee of $30.00. Whenever an application was made [to DILGEA] by the lodging of an Application For Refugee Status in Australia, either with or without an application for a Domestic Protection (Temporary) Entry Permit, the applicant would be issued with a receipt. If money were paid for the lodging of the application, the receipt would contain a code which identified the officer who received the application form and handled the transaction. A new file would then be opened unless there was an existing file for the Applicant. The applicant's evidence disputed that all refugee applications were the subject of a receipt. However, I am satisfied that the usual practice within DILGEA involved some recording of refugee applications, when made, whether by a receipt, the opening of a file or otherwise. Prior to 25 May 1992 the Government had created a special category of four year temporary entry permits for students from the People's Republic of China who were in Australia in June 1989. A significant number of Chinese students, who arrived on student visas after June 1989, wished to apply for refugee status but were concerned that the application might affect their student visas. The concern was not unwarranted. The reason for it was that an applicant for a student visa might be regarded by DILGEA as lacking in bona fides and as attempting to circumvent the provisions for such visas if the applicant intended to apply for refugee status. The problem was stated in the following terms by a Senior Adviser to the Minister in a letter to the Chinese Students and Graduates Association sent in April 1994: I note your fears that your student entry permits could have been put in jeopardy by lodging refugee applications. When people inquire about applying for refugee status, it is appropriate to explain to them their position under the law. An application for refugee status is accompanied by an application for permanent residence. Students who make any application for permanent residence may put the continuation of their student status in jeopardy. People legally in Australia who are considering applying for refugee status are therefore, faced with a choice about when to lodge an application. At no time, however, would they be prevented from doing so. Although the Domestic Protection visa available to refugees in May 1992 was not a permanent visa, a similar view was apparently held, within DILGEA, as to the potential inconsistency between applications by the same person for an extension of a student visa and for refugee status. It would appear that on 25 May 1992 that view led a departmental officer to proffer the incorrect advice to the applicant which led him not to proceed with his refugee application. The problem in the present case arises from the fact that a criterion for a Class 816 permit for persons in the applicant's position was not that the application for refugee status must have been made prior to 1 November 1993. Rather, it was that the application "must have been recorded by Immigration as having been received by Immigration on or before 1 November 1993;" (reg.816.721 5(a)). The applicant's application for refugee status The applicant submitted that the IRT erred in law in not determining whether the applicant had made an application for refugee status on 25 May 1992. In my view the IRT, in its decision, proceeded on an assumption that no application for refugee status was made prior to 25 July 1992 but made no finding to that effect. Although the evidence in support of a finding in favour of the applicant on that issue was, at best, slender, there was some evidence before the IRT which might have entitled it to find that an application was made, but withdrawn, on 25 May 1992. Whilst I have grave doubts as to whether the evidence relied upon would warrant such a finding, particularly having regard to the substantial oral and written evidence in support of the contrary view, I have concluded that this issue is an issue of fact for the IRT, rather than the Court, to determine. Accordingly, if the IRT omitted to make a finding of fact it was legally required to make, the IRT would have erred in law and it would be appropriate to remit the matter to the IRT: see Waterford v. The Commonwealth (1987) 163 CLR 54 at 77-8 per Brennan J. However, the issue of fact only arises if the requirement that the application be recorded as having been received is not a criterion which must be satisfied as a precondition for the grant of a Class 816 permit. Mandatory and directory requirements In Statutory Interpretation in Australia, D.C. Pearce and R.S. Geddes, 4th Edition, 1996 at 264 it is suggested that the problem of classifying provisions as mandatory or directory is one of the most intractable problems encountered by the courts in the interpretation of legislation using words such as 'shall', 'must', or 'is required'. The general principle was stated in Howard v. Bodington (1877) 2 PD 203 at 211 by Lord Penzance: I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory. Strict compliance with a requirement that is imperative or mandatory is a precondition to the action taken. Originally substantial, rather than strict, compliance was considered to be sufficient for a directory or merely procedural provision. However, in more recent cases it has been accepted that non-compliance with a directory provision does not necessarily result in invalidity. Ultimately, the effect of non-compliance with a statutory requirement is not a question of categorisation into the mandatory/directory dichotomy. Rather, it is a question of legislative intent to be discerned in the words of the relevant statutory provision construed in the context of the statute as a whole: see Australian Broadcasting Corporation v. Redmore Pty Ltd (1989) 166 CLR 454 at 457 per Mason CJ, Deane and Gaudron JJ. In The State of Victoria v. The Commonwealth and Connor (1975) 134 CLR 81 at 179 Stephen J explained the underlying principle: A directory construction will not assist in securing validity unless, despite the non-compliance which is the occasion for invoking that construction, there may nevertheless be seen to be substantial compliance with the general object at which the statutory provision aims. Sometimes the stipulation which has not been complied with is, in its context, so relatively unimportant to the attainment of that general object that, although there has been total non-compliance, a directory construction may be appropriate. In such cases it may not matter that the non-compliance is complete, not partial. Indeed the stipulation in question may be of a kind which is incapable of partial compliance; to give to such a stipulation a directory interpretation recognizes that it may be wholly disregarded without prejudice to validity because of its relative unimportance in the attainment of the general statutory object and also, perhaps, because of the far-reaching and undesirable consequences of treating its non-observance as invalidatory. Where, on the contrary, a stipulation may be seen to be of importance in attaining the general object of the statute its total non-observance cannot be sought to be excused, and its intended effect circumvented, by the adoption of a directory construction. A directory construction may none the less be given to such a stipulation if it is of a kind capable of degrees of non-compliance and if some degree of non-compliance can be seen as not necessarily prejudicing the substantial carrying into effect of the general object. If in such a case a directory construction be adopted, the extent of non-compliance in the particular case must then be examined to determine whether what has in fact occurred nevertheless gives effect to the general object of the statute. At 284-5 Professor Pearce and Mr Geddes explain the present position as follows: The only guiding principle will be the statute and from it the court will have to glean one of three intentions in regard to the designated procedure: (a) that strict compliance is necessary; (b) that substantial compliance is necessary together with the degree of 'substantiality'; or (c) that compliance is not a precondition to the action taken. Breach of (a) or (b) will result in invalidity but no adverse consequences will flow if (c) is found to apply (unless some separately designated penalty is included in the legislation). The cases dealing with mandatory/directory problems generally fall into two broad categories: see Pearce and Geddes at 265. The first relates to cases in which a statute empowers a person or body to carry out a certain act subject to conditions. The second relates to cases where a procedure is specified in a statute for the carrying out of a particular function or for the exercise of a particular power. The ultimate issue in each category is whether, construing the relevant provisions in their context (including their scope and purpose), there is a legislative intent that either strict or substantial compliance with the relevant requirement is a precondition to the validity of the action taken: see Pearce and Geddes at 265, Hunter Resources Limited v. Melville (1988) 164 CLR 234 at 241, 245, 248-9, 251, 256-7 and Hamilton v. Minister for Immigration and Ethnic Affairs (1994) 53 FCR 349, 358-61. Is the requirement as to the recording of the receipt of a refugee application a criterion which must be satisfied? It was submitted on behalf of the applicant that the criterion as to recording was a procedural rather than a substantive or mandatory requirement. It was contended that Hamilton's case supports the submission. Hamilton was concerned with a Class 806 entry permit which, under the regulations, "must" have been applied for "in accordance with" a specified form. A criterion for the visa was that a relative, falling within a specified category, had nominated the applicant for the grant of the entry permit at the time of the application for the permit. As a result of incorrect information from DILGEA the applicant had not completed a nomination form at the time of her application. Consequently, the application was not in accordance with the prescribed form. Davies J, in a judgment which was concurred in by Sheppard and Burchett JJ, concluded that the requirement as to the form of the application was merely procedural, therefore requiring only substantial compliance, but that the requirement that there be a nomination at the time of the application was a substantive requirement which must be complied with. In my view Hamilton does not assist the applicant. The equivalent procedural requirement in the present case is reg.816.711(1) which requires that a class 816 permit application must be made in accordance with a specified form. The requirement in reg.816.721(5)(a) that a refugee application be recorded as having been received is stipulated as one of the criteria to be satisfied at the time of the application. In that regard it is analogous to the substantive criterion in Hamilton that there be a nomination at the time of the application. It was also submitted on behalf of the applicant that it is now well accepted that a given requirement may be mandatory as to some integers therein and directory as to others: see Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at 123 per Davies and Gummow JJ. Applying that principle the applicant contended that the requirement that a refugee application be made and received by DILGEA prior to 1 November 1993 is mandatory but the further requirement that it be recorded as having been received is merely directory. The applicant supported the submission by referring to the decision in Plunket v. Malley (1863) 8 Irish Jurist (N.S) 83 at 86 which stated as a principle of statutory construction that: so far as the Acts prescribe things to be done by the parties themselves, they are construed as mandatory and imperative; but so far as they require things to be done by the public functionary they are held to be only directory, and the default or mistake of the officer will not destroy the rights of the parties. Accordingly, it was said, so far as reg.816.721(5)(a) required "things to be done by the public functionary [i.e. recording] they are held to be only directory and the default or the mistake of the officer will not destroy the rights of the parties". Although the submission has superficial attraction there are two problems with it. The first is that, as already pointed out, the issue is always a question of construction of the particular statute. Whilst case law, including Plunket, can offer some guidance, ultimately one must return to construing the particular statutory provision in the context in which it is found. Secondly, Plunket was concerned with a statute which required that an entry be recorded in a manner required by the statute. Accordingly, the Court was not prepared to construe the statute in a manner which resulted in invalidity when the applicant had done all that the statute required of him but the public official had acted in breach of duty in failing to record the entry. In such circumstances one may discern a legislative intent that the acts required of the applicant be mandatory but those of the public official be directory. However, in the present case there was no statutory requirement for the recording of refugee applications in May 1992. Accordingly, a failure to record such an application did not have any effect on whether it was validly made. In my view the criterion of the recording of the receipt of the refugee application is a criterion which must be complied with. The following matters have led me to that conclusion. 1. Part 816 of the regulations was enacted in the context of ss.33(2)(b) and 34(4) and reg.2.21(2). Under s.34(4) a failure to meet the prescribed criteria in relation to a particular class of permit "shall" have the result that the application for the permit is refused. The context to which I have referred leaves little, if any, scope for the grant of a permit when there has been no compliance with a criterion for that permit. 2. As a matter of construction, reg.816.7 deals separately with procedural and substantive requirements. Reg.816.711 sets out the procedural matters that are to be complied with in relation to an application for a Class 816 permit. Reg.816.721 sets out substantive requirements in the form of the criteria to be satisfied at the time of the application for the permit. The terms of reg.816.721 are precise and leave little scope for substantial compliance. 3. Regs.816.721 differentiates between the recording of the receipt of an application and the making of an application. Reg.816.721(4)(a) and (5)(a) require that an application for refugee status be made and be recorded as having been received. However, reg.816.721(6), which is the equivalent of reg.816.721(4)(a) for nationals of Sri Lanka and the former Yugoslavia, only requires that the relevant classes of permit had been "applied" for on or before 1 November 1993. There is a discernible legislative intent to add, as a substantive criterion in reg.816.721(5)(a), the requirement that the receipt of a refugee application be recorded. 4. It is difficult to disregard the requirement for the recording of the receipt of the refugee application without emasculating or substantially re-writing the regulation. In effect, the submission on behalf of the applicant that the requirement for the recording be treated as directory results in it being read out of the regulation altogether. By its nature and specificity the requirement is not one in respect of which substantial compliance can occur. Either there is, or there is not, a relevant record. 5. I accept that a purposive approach is appropriate in respect of statutory construction: see Wang v. Minister for Immigration and Multicultural Affairs Merkel J, unreported, 13 February 1997 at 15-21. For present purposes that approach may be taken to have been summarised by McHugh J in Saraswati v. The Queen (1991) 172 CLR 1 at 22: Moreover, once a court concludes that the literal or grammatical meaning of a provision does not conform to the legislative purpose as ascertained from the statute as a whole including the policy which may be discerned from its provisions, it is entitled to give effect to that purpose by addition to, omission from, or clarification of, the particular provision.... The regulation states that its purpose is, inter alia, to provide for permanent residence to certain persons who have applied for refugee status. However, the terms of reg.816.721(4)(a) and (5)(a) make it quite clear that a person to whom these regulations apply is to be treated as having applied for refugee status only if the application is recorded as having been received. The recording requirement was drafted for the specific purpose of avoiding the kind of dispute that has arisen in the present case. Accordingly, to read the recording requirement out of the regulation would be to defeat, rather than give effect to, the legislative purpose. The applicant submitted that I should not construe reg.816.721(5)(a) in a manner that gives it a retrospective, unreasonable, capricious or arbitrary operation. However 816.721(5(a) does not state that the record must have been made when the application for refugee status was received or before 1 November 1993. The criteria set out under 816.72 are criteria to be satisfied "at the time of application" for a Class 816 permit. In my view the requirements of reg.816.721(4)(a) and (5)(a) are satisfied if the application for refugee status was made and received on or before 1 November 1993 and was recorded as having been so received at the date of the application for a Class 816 permit. It is open to an applicant, at any time up to the date of his application for a Class 816 permit, to request that a record is made of the earlier receipt of the application for refugee status. The construction I have given to the regulation gives effect to the relevant words in a manner which is not retrospective, unreasonable, capricious or arbitrary as suggested on behalf of the applicant. Whilst it may be possible to conceive of some circumstances in which the regulation might operate unfairly, that does not afford a reason for doing violence to the language used. On its face the requirement of recording, which I have found would occur in the usual course, was an understandable, although not necessarily always a fair, way of resolving a dispute over receipt of a refugee application. Hunter Resources (supra) supports the conclusion I have reached. That case concerned a requirement that a mining tenement be marked out by fixing pegs in the ground "at intervals not exceeding 300 metres along each of the boundary lines". An applicant for a prospecting licence had marked out a tenement with pegs at intervals which in three places slightly exceeded 300 metres. The mining warden refused the application because of non-compliance with the regulation. Wilson J, Dawson J and Toohey J each held that under the legislation compliance with the regulation was required. The pegging either exceeded or did not exceed 300 metres. In such circumstances there was no scope for substantial compliance. Mason CJ and Gaudron J held that, construing the relevant provisions in their context, including the scope and purpose of the Act, it was open to the warden to grant a prospecting licence notwithstanding non-compliance with the regulation. All members of the Court accepted that the problem was one of construction rather than categorisation into a mandatory/directory dichotomy. However, at 251-2 Dawson J (with whom Wilson J generally agreed) discussed the difference between enactments dealing with statutory requirements in relation to performance of a public duty and those concerned with private rights: If the concept of a directory enactment is extended to private rights, the question whether a provision is mandatory or directory must nevertheless be one of intent to be gleaned from the scope and object of the statute: Caldow v Pixell. It is a question of what consequences, if any, were intended to flow from the failure to comply with the statutory requirement and even if the difference between the performance of a public duty and the acquisition or exercise of a private right is not conclusive, that distinction does at least provide some guidance in distinguishing those provisions with which strict compliance was intended from those with which it was not. That point was made in Clayton v. Heffron: "But in them all [the decided cases] the performance of a public duty or the fulfilment of a public function by a body of persons to whom the task is confided is regarded as something to be contrasted with the acquisition or exercise of private rights or privileges and the fact that to treat a deviation in the former case from the conditions or directions laid down as meaning complete invalidity would work inconvenience or worse on a section of the public is treated as a powerful consideration against doing so." No public function is imposed upon an applicant for a prospecting licence and no public inconvenience is worked by holding him to strict compliance with the prescribed conditions to be performed before the making of an application.... The discussion is relevant to the issues arising under the regulations. As with the pegging requirement, the requirement relating to the making and recording of a refugee application relates to the exercise of a private right rather than the performance of a public duty. No public function is imposed in relation to the application and no public inconvenience is worked by requiring compliance with the prescribed criteria before a Class 816 entry permit can be granted. Whilst the dichotomy between public duty and private rights is not determinative, as in Hunter Resources, it offers a helpful indicator against treating a prescribed criterion as one which may be ignored. For these reasons I am of the view that the main ground for challenging the IRT decision fails. As the criterion requiring the recording of the receipt of the refugee application must be satisfied, it follows that the issue of fact for the IRT was whether the application was recorded as having been received. If that requirement was not satisfied that was sufficient to dispose of the application for review to the IRT. In these circumstances there was no need for a further finding as to whether an application was made. Accordingly, the IRT did not err in law in not making a finding of fact on that matter. Other submissions Several other submissions were also put on behalf of the applicant. They may be dealt with briefly. (a) Estoppel It was contended that the Minister is estopped from relying on non-compliance with the recording requirement, as the failure to record was an omission which arose as a result of the erroneous advice of the departmental officer. It was submitted that estoppel can operate in respect of procedural or directory requirements: See Minister for Immigration and Ethnic Affairs v. Kurtovic (1990) 21 FCR 193 at 212 per Gummow J. I doubt that the factual basis for an estoppel is present as the Minister is not resiling from or relying on the erroneous advice of his departmental officer. However, there is a more fundamental answer to the submission. As I said in Wang at 10: ...the doctrine of estoppel cannot be relied upon by a Court so as to relieve against non-compliance with a requirement that the statute intends be satisfied: see s.478(2), Formosa v. Secretary, Department of Social Security (1988) 46 FCR 117 at 124-5 per Davies and Gummow JJ and Minister for Immigration and Ethnic Affairs v. Polat (1995) 57 FCR 90 at 104-107 per Davies and Branson JJ and at 111 per Whitlam J. (b) Invalidity of reg.816.721(5)(a) It was submitted that the recording requirement was not within the scope of, or a real exercise of, the delegated legislative power on the ground that it was so unreasonable that it is manifestly arbitrary or unjust: see Williams v. Melbourne Corporation (1933) 49 CLR 142, 150, 155 and Minister for Primary Industries and Energy v. Austral Fisheries Pty Ltd (1993) 40 FCR 381, 384, 401. It was also said that as there was no duty to record applications for refugee status, the regulation operated on a fiction as it wrongly presumed a duty to record. In my view these submissions are without substance. The construction I have placed on the regulation does not give it an unreasonable, arbitrary, unjust or retrospective operation. The power conferred to make regulations and impose criteria is expressed in the widest terms. It is a power which can be lawfully exercised from time to time to give effect to government immigration policy. Reg.816.721(5)(a) clearly falls within the power conferred under ss.181 and 33(1). Further, the regulation is not based on a fiction as I have found that the recording referred to in the regulation occurs in the usual course. (c) Failure of the IRT to call witnesses It was submitted that the IRT failed to call the witnesses required by the applicant and thereby did not act fairly and in accordance with the substantial justice of the applicant's case as was required by s.353 of the Act. It was contended that the evidence would have corroborated the applicant's version of his meeting with the DILGEA officer on 25 May 1992. Legal and factual difficulties confront the submission. On the view I have taken of the operation of reg.816.721(5)(a), evidence corroborating the applicant's evidence as to the events of 25 May 1992 is not relevant. In any event I am not satisfied that the evidence could or would have added to the evidence already before the IRT. Further, as the applicant's evidence was not rejected it is difficult to accept any unfairness on the part of the IRT in not calling a corroborating witness. There may be some doubt as to whether the failure by the IRT to call the witnesses requested by the applicant can constitute a ground of review under the Act: see Li v. Minister for Immigration and Multicultural Affairs unreported, Foster J, 24 April 1997 at 25-27 cf Minister for Immigration and Ethnic Affairs v. Surjit Singh 7 May 1997 at 12-14 per Black CJ, von Doussa, Sundberg and Mansfield JJ. In any event in my view the applicant's submission, in substance, if not in form, is that there was a denial of natural justice (rather than a failure to accord substantial justice) which is not a ground of review under Part 8: see s.476(2)(a). Accordingly, the present case does not require consideration of the possible tension between s.353 (which is equivalent to s.420 for the Refugee Review Tribunal) and s.476(2)(a): see Tranh Phat Ma v. Billings (1997) 142 ALR 158 per Drummond J; cf Foster J in Li and Surjit Singh (supra); De Motte v. The Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal unreported, Tamberlin J, 8 May 1997; Sun Zhan Qui v. Minister for Immigration and Ethnic Affairs unreported, Lindgren J, 6 May 1997. (d) DILGEA Policy It was submitted that the erroneous advice was given to the applicant as part of a general policy to wrongfully dissuade Chinese students from applying for refugee status. This ground is misconceived. The applicant's evidence is that he relied upon the advice he received from the departmental officer on 25 May 1992. In so far as his case relied upon the advice he received it cannot go beyond the advice he personally relied upon. Whether or not there was, in addition to that advice, other advice proffered on other occasions is not relevant to and cannot advance the applicant's case. Further, there are obvious difficulties in seeking to review a decision of the IRT on the ground of error of law on the basis of material that was not before it: see Servos v. Repatriation Commission (1995) 56 FCR 377. In any event, for the reasons set out above DILGEA policy or advice to the applicant is not an issue relevant to the present application. Conclusion For these reasons the application is to be dismissed with costs. Before departing from the present case I would add that, as I pointed out in Wang (supra) at 10, a person who has acted to his or her detriment on the faith of misleading advice is not necessarily without a remedy; an appropriate remedy may be compensation. I certify that this and the preceding 27 pages are a true copy of the Reasons for Judgment of the Honourable Justice Merkel Associate: Dated: Heard: 5 & 6 May 1997 Place: Melbourne Judgment: 21 May 1997 Appearances: Mr J Dwyer Q.C. with Mr T Hurley instructed by Erskine Rodan & Associates appeared on behalf of the applicant Mr R Tracey Q.C. instructed by the Australian Government Solicitor appeared on behalf of the respondent	10,544
federal_court_of_australia:fca/single/2002/2002fca0222	decision	commonwealth	federal_court_of_australia	text/html	2002-03-08 00:00:00	Wilkes v State of Western Australia [2002] FCA 222	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2002/2002fca0222	2024-09-13T22:53:03.953814+10:00	FEDERAL COURT OF AUSTRALIA Wilkes v State of Western Australia [2002] FCA 222 RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS, ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY, WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY AND GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY and CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS V STATE OF WESTERN AUSTRALIA AND OTHERS NO. WAG 142 OF 1998 NO. WAG 141 OF 1998 NO. WAG 137 OF 1998 NO. WAG 138 OF 1998 NO. WAG 139 OF 1998 NO. WAG 140 OF 1998 NO. WAG 149 OF 1998 BEAUMONT J 8 MARCH 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS JUDGE: BEAUMONT J DATE OF ORDER: 8 MARCH 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The trial hearing dates fixed to commence on 4 June 2002 be vacated. 2. SWAL&SCAC be directed to file and serve a preliminary anthropological report by 4 June 2002. 3. Fix 4 June 2002 as the date for hearing the following: (a) Mr Bodney's evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis; (b) SWAL&SCAC's motion to strike out the Bodney Applicants; (c) Any claim by any respondent for appropriate declaratory relief; (d) Any application by any party for any directions, including any direction necessary as a consequence of the contents of SWAL&SCAC's preliminary anthropological report; (e) Any application by any party for summary disposal of the whole, or any part, of the proceedings. 4. Liberty reserved to any party to apply on three days' notice. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY WAG 142 OF 1998 WAG 141 OF 1998 WAG 137 OF 1998 WAG 138 OF 1998 WAG 139 OF 1998 WAG 140 OF 1998 WAG 149 OF 1998 BETWEEN: RICHARD WILKES AND ALBERT CORUNNA ON BEHALF OF THE DARBARLYUNG NYOONGARS OF THE DERBAL YERRIGAN AND THE SWAN RIVER PLAINS FIRST APPLICANTS ROBERT CHARLES BROPHO ON BEHALF OF THE SWAN VALLEY NYUNGAH COMMUNITY SECOND APPLICANTS WILLIAM WARRELL ON BEHALF OF THE WARRELL FAMILY THIRD APPLICANTS GREGORY LAWRENCE GARLETT AND KELVIN PATRICK GARLETT ON BEHALF OF THE GARLETT FAMILY FOURTH APPLICANTS CORRIE CHRISTOPHER BODNEY ON BEHALF OF THE BODNEY FAMILY BALLARUKS BODNEY APPLICANTS AND: STATE OF WESTERN AUSTRALIA AND OTHERS RESPONDENTS JUDGE: BEAUMONT J DATE: 8 MARCH 2002 PLACE: PERTH REASONS FOR JUDGMENT (ON APPLICATION TO VACATE HEARING DATE) BEAUMONT J: 1 The hearing of this application for a determination of native title was fixed in 1999 for hearing in September 2001. In March 2001, upon the application of the Noongar Land Council, that hearing date was vacated and fresh hearing trial dates in this month were fixed. In December 2001, again upon the application of the Noongar Land Council, this month's hearing was vacated, and a fresh hearing, to commence on 4 June 2002, was fixed. 2 A recognised Representative Body, The South West Aboriginal Land & Sea Council Aboriginal Corporation ("SWAL&SCAC"), which was joined in February 2002 as a party to the proceedings, now seeks an order vacating the June hearing. 3 The basis for the request for vacation of the June hearing appears from the affidavits of Mr D D Pearce sworn 5 February 2002 and 7 March 2002. Mr Pearce is CEO of SWAL&SCAC and was previously CEO of the Noongar Land Council, its predecessor in this matter. According to Mr Pearce's evidence, both representative bodies have experienced serious funding and constitutional problems, with the consequence that grave difficulties have been encountered in progressing these claims, beyond engaging in "a structured anthropological and historical research program …" during early and middle 2001 (par 10, affidavit sworn 5 February 2002). 4 On the material before the Court, it seems that by 4 June 2001, SWAL&SCAC will be able to file and serve a preliminary anthropological report. I will so direct. 5 However, it is apparent SWAL&SCAC will be unable to do anything more than this by 4 June, given its recent involvement in what is plainly complex litigation. This is hardly satisfactory from anybody's perspective (given especially the fact that, already, several potential witnesses have died), but, for the moment, it is unavoidable. 6 There are, however, a number of matters that ought to be dealt with during the period commencing on 4 June 2002, namely – (a) the taking of Mr Bodney's evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis; (b) the determination of SWAL&SCAC's motion to strike out the Bodney Applicants; (c) the determination of any other claim by any respondent for declaratory relief of the kind considered in these proceedings in the case of the University of Western Australia; (d) the giving of any directions required, generally; and specifically, as now suggested by SWAL&SCAC, arising of its preliminary anthropological report, a direction that a joint case management conference be held in respect of the several native title claims pending in the South West Region of Western Australia; (e) Any application by any party for summary disposal of the whole, or any part, of the proceedings. ORDERS 7 I make the following orders: 1. The trial hearing dates fixed to commence on 4 June 2002 are vacated. 2. Direct SWAL&SCAC to file and serve a preliminary anthropological report by 4 June 2002. 3. Fix 4 June 2002 as the date for hearing the following: (a) Mr Bodney's evidence, and any other further evidence to be called by any other party which is appropriate to be received on a preservation basis; (b) SWAL&SCAC's motion to strike out the Bodney Applicants; (c) Any claim by any respondent for appropriate declaratory relief; (d) Any application by any party for any directions, including any direction necessary as a consequence of the contents of SWAL&SCAC's preliminary anthropological report; (e) Any application by any party for summary disposal of the whole, or any part, of the proceedings. 4. Reserve liberty to any party to apply on three days' notice. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont. Associate: Dated: 8 March 2002 Solicitor for First Applicant: Mr Corunna appeared in person Solicitor for the Second Applicants: Mr Bropho appeared in person Solicitor for the Bodney Applicants: Mr Bodney appeared in person Counsel for the State of Western Australia: Mr Stephen Wright Solicitor for the State of Western Australia: Crown Solicitors Office Counsel for Commonwealth of Australia: Mr Andrew Beech Solicitor for Commonwealth of Australia: Australian Government Solicitor Solicitor for Local Government Bodies: Minter Ellison Counsel for WAFIC: Mr Marshall McKenna Solicitor for WAFIC: Hunt & Humphrey Solicitor for Alcoa of Australia Pty Ltd, Curtin University of Technology & others: Freehills Counsel for Roman Catholic Archbishop of Perth: Mr David Thompson Solicitor for Roman Catholic Archbishop of Perth: Phillips Fox Counsel for Various Local Government Bodies Mr Peter Wittkuhn Solicitor for Various Local Government Bodies: McLeods Counsel for South West Aboriginal Land & Sea Corporation: Mr Michael Rynne Solicitor for South West Aboriginal Land & Sea Corporation: Black & Co Date of Hearing: 7 March 2002 Date of Judgment: 8 March 2002	2,344
federal_court_of_australia:fca/single/2023/2023fca0706	decision	commonwealth	federal_court_of_australia	text/html	2023-06-27 00:00:00	Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) (No 2) [2023] FCA 706	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca0706	2024-09-13T22:53:04.016594+10:00	Federal Court of Australia Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) (No 2) [2023] FCA 706 File number(s): VID 590 of 2022 Judgment of: O'CALLAGHAN J Date of judgment: 27 June 2023 Catchwords: COSTS – plaintiffs sought removal of first and second defendants as external administrators on multiple grounds – plaintiffs succeeded on one ground and failed on, or did not press, all others – plaintiffs sought their costs on a lump sum basis – defendants submitted that there be no order for costs or an order apportioning costs – costs apportioned Legislation: Federal Court of Australia Act 1976 (Cth) s 43 Federal Court Rules 2011 (Cth) r 40.02) Cases cited: Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 346; (1993) 26 IPR 261 Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) [2023] FCA 647 Division: General Division Registry: Victoria National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 12 Date of last submission 22 June 2023 Date of hearing: Determined on the papers Counsel for the Plaintiffs: MD Wyles KC with L Currie Solicitor for the Plaintiffs: Hall & Wilcox Counsel for the Defendants: MJ Galvin KC Solicitor for the Defendants: FAL Lawyers ORDERS VID 590 of 2022 IN THE MATTER OF ALLIBI PTY LTD ACN 124 066 717 (IN LIQUIDATION) BETWEEN: JOHN GADSDEN First Plaintiff DANIEL LINDSAY Second Plaintiff AQUEDUCT NOMINEES PTY LTD ACN 158 285 255 (AS TRUSTEE FOR THE GADSDEN FAMILY TRUST) Third Plaintiff AND: HAMISH ALAN MACKINNON (IN HIS CAPACITY AS JOINT & SEVERAL LIQUIDATOR OF ALLIBI PTY LTD ACN 124 066 717 (IN LIQUIDATION)) First Defendant NICHOLAS GIASOUMI (IN HIS CAPACITY AS JOINT & SEVERAL LIQUIDATOR OF ALLIBI PTY LTD ACN 124 066 717 (IN LIQUIDATION)) Second Defendant ALLIBI PTY LTD ACN 124 066 717 (IN LIQUIDATION) Third Defendant order made by: O'CALLAGHAN J DATE OF ORDER: 27 June 2023 THE COURT ORDERS THAT: 1. The defendants pay 50% of the plaintiffs' costs of the proceeding. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT O'CALLAGHAN J: 1 On 15 June 2023, I made the following orders that were sought by the plaintiffs: 1. Pursuant to ss 90-10, 90-15 and 90-20 of the Insolvency Practice Schedule (Corporations), Mr Hamish MacKinnon and Mr Nicholas Giasoumi cease to be external administrators of Allibi Pty Ltd (ACN 124 066 717) (in liquidation) (Allibi). 2. Mr Craig Crosbie and Mr Robert Ditrich each a registered liquidator be appointed liquidators of Allibi. 3. The parties file and exchange written submissions about costs not exceeding three pages within 7 days. See Gadsden v MacKinnon (Liquidator), in the matter of Allibi Pty Ltd (in liq) [2023] FCA 647. 2 These brief reasons address the question of costs, and assume familiarity with those earlier reasons. 3 The parties filed brief and helpful written submissions about costs, in accordance with my orders. 4 The plaintiffs submitted that an order should be made that the first and second defendants, the removed liquidators, pay their costs of the proceeding to be assessed in a lump sum pursuant to r 40.02(b) of the Federal Court Rules 2011 (Cth). They submitted that such an order is appropriate because they succeeded in obtaining the removal order, and that costs should follow that event. 5 The defendants, on the other hand, submitted that there should be no order as to costs, or that: [t]he party/party costs which the defendants may be ordered to pay should be reduced by an amount or percentage which fairly reflects the success they have had on all grounds, other than the $69m demand ground, the plaintiffs' late capitulations on some grounds, their failures with respect to the other grounds and their late withdrawal of the application for summary judgment. 6 The crux of the defendants' submission was that: In the present case, both the plaintiffs and the defendants have had a measure of success which justifies a departure from the usual course … Of particular significance is the plaintiffs' abandonment of their summary judgment application on the eve of its hearing, the mercurial nature of their case both before and during trial and the service of expert evidence the day before trial. The plaintiffs advanced nine grounds in support of the application, four of which were withdrawn on 9 May 2023 (the day prior to trial), 10 May 2023 (during trial) and 18 May 2023 (in closing submissions). Only 5 grounds remained. … Ultimately, the plaintiffs failed on all grounds except the demand. Whilst the Court held that it was strictly unnecessary to deal with them in detail in the reasons, it found that the other grounds, even had they been made out, were not sufficient to warrant removal … (Citations omitted.) 7 The award of costs is in the discretion of the court. See s 43(2) of the Federal Court of Australia Act 1976 (Cth). 8 That discretion extends to making an order apportioning costs. The exercise of this discretion is based on the court's impression and evaluation, not mathematical precision. See Dodds Family Investments Pty Ltd v Lane Industries Pty Ltd [1993] FCA 346; (1993) 26 IPR 261 at 272 (Gummow, French and Hill JJ). 9 The general rule is that costs follow the event. The "event" may be characterised in more than one way. Generally it refers to the result of the claim and may be understood as referring to its practical result. See Doppstadt Australia Pty Ltd v Lovick & Sons Developments Pty Ltd (No 2) [2014] NSWCA 219 at [15] (Ward, Emmett and Gleeson JJA). 10 Where there has been a mixed outcome, and it is appropriate to entertain the process of apportioning costs as between different issues in the proceedings, in general such an exercise will be carried out on a relatively broadbrush basis, and largely as a matter of impression and evaluation by the court. See Doppstadt at [19]. See too Dodds Family Investments at 272. 11 In this case, given that the plaintiffs failed on, or at the last moment abandoned, a number of alternative grounds for the removal application, it is appropriate to make an order apportioning costs. I agree with the defendants' submission that the award of costs in favour of the plaintiffs should be reduced fairly to reflect (i) the extent to which grounds of the plaintiffs' case were either not pressed or failed and (ii) the time and expense which it can sensibly be assumed was taken up in addressing those elements in the course of preparation for, and at, the trial. 12 In my view, and recognising that it is necessary to apply a broadbrush and impressionistic approach to the matter, the appropriate order is that the defendants pay 50% of the plaintiffs' costs of the proceeding. I will make an order accordingly. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Callaghan. Associate: Dated: 27 June 2023	1,819
federal_court_of_australia:fca/single/2002/2002fca1652	decision	commonwealth	federal_court_of_australia	text/html	2002-12-20 00:00:00	Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1652	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2002/2002fca1652	2024-09-13T22:53:04.744868+10:00	FEDERAL COURT OF AUSTRALIA Cisinski v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1652 MIGRATION – detention of an unlawful non-citizen pending deportation – whether interlocutory orders should be granted for release from detention – delay in executing deportation order – whether arguable case that no real likelihood or prospect of removal in the reasonably foreseeable future Migration Act 1958 (Cth) ss 200, 253 Federal Court of Australia Act 1976 (Cth) s 23 Minister for Immigration & Multicultural & Indigenous Affairs v VFAD (2002) 125 FCR 249 cited KASCHIMIER CISINSKI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS W317 of 2003 LEE J 20 DECEMBER 2002 PERTH IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W317 OF 2003 BETWEEN: KASCHIMIER CISINSKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE OF ORDER: 20 DECEMBER 2002 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The applicant is to be released from detention until further order and subject to compliance with each of the conditions set out below: 1.1 Within 24 hours of Mr Cisinski's release from detention, Mr Cisinski give notice in writing to his solicitors, Christie & Strbac, Level 2 Law, 524 Hay Street Perth, Western Australia 6000 and to Mr Peter Corbould at the Australian Government Solicitor, 2 The Esplanade, Perth, Western Australia of his address and contact details and thereafter notify forthwith his solicitors and the Australian Government Solicitor at the above address of any change of address and contact details. 1.2 In the event that Mr Cisinski receives notice in writing from the Australian Government Solicitor or an officer of the Department of Immigration and Multicultural Affairs (DIMIA) as to arrangements made for his deportation from Australia pursuant to s 200 of the Migration Act 1958 (Cth) he shall take all reasonable steps in his power to comply with those arrangements in order to facilitate his deportation and, in the event of a specific arrangements being made for his deportation from Australia at a specified time, that he submit to the custody of the respondent for that purpose. 1.3 In the event that Mr Cisinski receives any request in writing from the Australian Government Solicitor or an officer of DIMIA to complete any documents to facilitate his deportation, that he promptly complete and submit to any department of the Australian Government any application or applications for travel documents as the respondent reasonably considers may facilitate his deportation from Australia. 1.4 Mr Cisinski report in person to the Albany Police Station or any other place to be agreed between the parties by their solicitors on Monday, Wednesday and Saturday each week and by telephone to an office of the Compliance Section of DIMIA on every other week day between the hours of 9.00 am and 5.00 pm, or in such other manner as the parties by their solicitors may agree. 1.5 Mr Cisinski attend in person any hearing in the Federal Court of Australia or in the High Court of Australia of which he is given reasonable notice in writing by the Australian Government Solicitor, provided that, if such attendance is required at a city in which Mr Cisinski is not residing he may so attend by attending the Registry of the Court before which any such application is listed for hearing in the capital city in which he is then residing or nearest to where he is then residing. 2. There be liberty to apply. 3. Costs be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY W317 OF 2003 BETWEEN: KASCHIMIER CISINSKI APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT JUDGE: LEE J DATE: 20 DECEMBER 2002 PLACE: PERTH REASONS FOR JUDGMENT LEE J: 1 The applicant was born in Germany on 10 July 1951. His father was born in Poland and his mother was born in Germany. The applicant arrived in Australia in February 1982 with German travel documents that indicated he was stateless. He was granted a "temporary entry permit" under the Migration Act 1958 (Cth) ("the Act") as it then stood. In December 1982, whilst in Australia, the applicant married a person who held "permanent resident status" under the Act. In 1989 the applicant was granted an entry permit unrestricted as to the period in which he may reside in Australia. 2 On 12 October 1992 the applicant was convicted of two counts of aggravated sexual assault and two counts of sexual assault, each offence involving his step-daughter, and was sentenced to a term of imprisonment to expire on 11 June 2000. Under that sentence the applicant was permitted to apply for parole from November 1997. On 23 July 1997 the respondent ("the Minister") ordered that the applicant be deported pursuant to s 200 of the Act. As a result of that order the applicant was not released on parole and served the whole sentence of imprisonment. On 11 June 2000 the applicant was not released from the State prison in which the sentence of imprisonment had been served. From that date the applicant was a person "detained" under the Act in a place of "immigration detention". In November 2001 he was taken from the State prison to a Commonwealth detention centre at the Perth Airport. 3 On 21 November 2002 the applicant filed an application in this Court, seeking the issue of a writ of mandamus directing the Minister to carry out the order that the applicant be deported, or, alternatively, the issue of a writ of habeas corpus. A notice of motion was filed on 28 November 2002 seeking an interlocutory order that the respondent be restrained from detaining the applicant in "immigration detention" pending hearing and determination of the substantive application. 4 The Court has a discretionary power to make such an interlocutory order under s 23 Federal Court of Australia Act 1976 (Cth). (See: Minister for Immigration and Multicultural and Indigenous Affairs v VFAD (2002) 125 FCR 249). 5 When the interlocutory application came on for hearing on 10 December 2002, counsel for the applicant submitted that the available evidence indicated that the several countries contacted on behalf of the Minister were not willing to accept the applicant as a deportee from Australia and that such circumstance was not likely to change in the reasonably foreseeable future. In particular it was submitted that an inference could be drawn from the absence of any evidence as to what steps had been taken since June 2000 to deport the applicant, that he had been kept in detention for an ulterior purpose since that date and thereafter his detention had become unlawful. 6 On 17 December 2002 the Minister filed further material setting out the efforts made to remove the applicant from Australia between February 2000 and April 2002. On the material before the Court it became clear that any prospect that the applicant could be deported to Israel or Poland had become unlikely by June 2000 and August 2001 respectively. In respect of deportation of the applicant to Germany, it appeared that in June 2000 German authorities rejected the contention that the applicant was a citizen of Germany, a response reaffirmed by that country early in 2002. After April 2002 the Minister considered making a direct submission to his German counterpart to request that Germany review its position but by December 2002 no decision had been made as to the appropriateness of that course of action. 7 Having regard to the circumstances as a whole, I am satisfied that an interim order should be made for the release of the applicant. The material before the Court shows the conclusion to be open that there is an absence of evidence to establish the imminence, or even the reasonable prospect, of deportation of the applicant being arranged in the reasonably foreseeable future, and that there is a serious argument that insofar as the Act empowers the Minister to keep a person in detention pending deportation, such a provision is to be construed as subject to a qualification as to reasonableness that would apply in the circumstances of this case. 8 Having regard to the strength and content of the conditions that have been agreed between the parties to be terms of any order for the release of the applicant, I am satisfied that the interlocutory order for release sought should be made on the conditions proposed. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lee. Associate: Dated: 7 April 2004 Counsel for the Applicant: H.N.H. Christie, S. Strbac Solicitor for the Applicant: Christie & Strbac Counsel for the Respondent: M.T. Ritter, P. Corbould Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10, 17 and 20 December 2002 Date of Judgment: 20 December 2002	2,045
federal_court_of_australia:fca/full/2017/2017fcafc0220	decision	commonwealth	federal_court_of_australia	text/html	2017-12-20 00:00:00	Singh v Minister for Immigration and Border Protection [2017] FCAFC 220	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2017/2017fcafc0220	2024-09-13T22:53:05.709654+10:00	FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Border Protection [2017] FCAFC 220 Appeal from: Singh v Minister for Immigration and Border Protection [2017] FCCA 721 File number: VID 433 of 2017 Judges: TRACEY, MORTIMER AND MOSHINSKY JJ Date of judgment: 20 December 2017 Catchwords: MIGRATION – appeal from a decision of the Federal Circuit Court – where the trial judge dismissed an application for judicial review of a decision of the then-Migration Review Tribunal – where the Tribunal affirmed a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant a Skilled (Provisional) (Class VC) visa – where the Tribunal found that Public Interest Criterion 4020 was not satisfied on the basis of information that indicated that an imposter had sat the applicant's English test – where the Tribunal received an e-mail from an investigations manager which indicated that she was unable to provide any further information about the fraud – whether the trial judge erred by failing to find that the Tribunal committed a jurisdictional error by breaching s 362A of the Migration Act 1958 (Cth) by not giving the applicant access to that e-mail – whether the trial judge erred by finding that s 362A required the making of a request for specific documents before an entitlement arose – whether the trial judge erred by drawing an analogy between the searching of a court file and obtaining access to material under s 362A – whether the trial judge erred by failing to find that the Tribunal had deprived the applicant of a fair hearing under s 360(1) of the Migration Act 1958 (Cth) Legislation: Migration Act 1958 (Cth) ss 20, 26(2), 268BG, 268CZ, 268CQ, 306G, 353, 357A, 357A-367, 357A(1), 357A(3), 359, 359AA(1), 360, 360(1), 362A, 366A, 374, 436, 487S, 487U, Pt 5 Div 5 Privacy Act 1988 (Cth) Cases cited: Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Singh v Minister for Immigration and Border Protection [2017] FCCA 721 Date of hearing: 14 August 2017 Date of last submissions: 18 August 2017 (The Appellant and the First Respondent) Registry: Victoria Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 59 Counsel for the Appellant: Ms G Costello Solicitor for the Appellant: Erskine Rodan & Associates Counsel for the First Respondent: Mr P Gray QC with Mr L Brown Solicitor for the First Respondent: Sparke Helmore Counsel for the Second Respondent: The Second Respondent filed a submitting notice, save as to costs ORDERS VID 433 of 2017 BETWEEN: AMRITPAL SINGH Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent ADMINISTRATIVE APPEALS TRIBUNAL Second Respondent JUDGES: TRACEY, MORTIMER AND MOSHINSKY JJ DATE OF ORDER: 20 December 2017 THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs of the appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT THE COURT: 1 This appeal arises from decisions which rejected an application by Mr Amritpal Singh for a Skilled (Provisional) (Class VC) visa. In order to obtain the visa it was necessary for Mr Singh to establish that he was competent in the English language. In his application he asserted that he had successfully undertaken an International English Language Testing System ("IELTS") test in July 2011 in India. He provided a reference number from the organisation which had conducted the test. 2 While a decision on the visa application was pending the Department of Immigration and Border Protection ("the Department") received advice from the International Development Programme Education Pty Ltd Audit and Investigation Unit ("the IDP") that it appeared that an imposter had undertaken the English language test on behalf of Mr Singh and that, as a result, IDP had cancelled the results of the test. 3 Mr Singh was given an opportunity to comment on these allegations but did not respond. 4 A delegate of the Minister refused the application on the basis that Mr Singh did not satisfy Public Interest Criterion 4020 ("PIC 4020") and that, as a result, he had not satisfied one of the criteria for the grant of a visa. 5 Mr Singh then appealed to the former Migration Review Tribunal (now the Administrative Appeals Tribunal) ("the Tribunal"). 6 Before the Tribunal hearing Mr Singh made a written submission which was headed "Request for evidential conclusion forming the basis of the refusal of my visa application." It was dated 24 June 2014. In the submission he asserted that he had taken the IELTS test himself and complained that he had "not been given a chance to look at any evidence which forms the basis of my refusal of the application and for which my whole lot of hard work has been rejected." He continued: I would like to make a humble request to you for kindly giving me a fair opportunity by letting me witness any investigation which has been conducted so as to form the basis of the refusal of my visa application. … I deserve to get a chance to know about the evidence which forms the reason of the refusal of my visa application. I would be very thankful to you for providing me with a chance by producing any investigated factual information which stands against the genuine standing of my IELTS … 7 The first of two hearings conducted by the Tribunal took place in July 2014. Mr Singh again said that he had sat the test and asked how the IDP could have concluded otherwise. "[H]ow", he said, "can they find it out? Like is there any proof at least? Like is there any proof I can see like it wasn't me?" 8 Following the hearing the Tribunal asked the Department to supply "any further information in relation to [the] advice from the IDP, including on what basis they reached that conclusion." The response came in tabular form: IS No Point of Suspicion First Name Surname Date of Birth Gender Candidate No 319 AFTER THE TEST FROM IELTS VERIFICATION AMRITPAL SINGH 07.02.1991 M 018648 Module Centre Preferred Test Report Type of malpractice Suspected ACADEMIC BHOPAL NA 11IN018658TA120A Impersonation CONFIRMED 9 Under a "remarks" column the following was recorded: "Test results cancelled". 10 The Tribunal conducted a second hearing in October 2014. Mr Singh was provided with a copy of the advice from the IDP. He challenged the "impersonation" notation. Among other things he told the Tribunal that: Yeah, just a reason. Like what does it mean? The reason they are cancelling. Like, they are saying like a criteria in this sense. I mean just so like they got any photographs of it because I'm pretty sure I was in the test. I was the one who sat in the test and then I am not sure like – or like what's happened. … But I'm the only person like who gave the test. So that's why I am trying to find – like, have they got any proper evidence? I mean just so like they can show me a photo so that I can prove like it wasn't me, but its exactly me. … Like, I'm trying to find out like how they can say like what kind of proper evidence, proper proof they've got like it wasn't me. 11 After further protestations to like effect the Tribunal member told Mr Singh that the Tribunal would write to the IDP with a view to the organisation providing "some sort of basis that they reached that conclusion." The member advised Mr Singh that if the IDP didn't reply or reply satisfactorily she would proceed to make a decision. She also said that if advice was forthcoming and it was adverse or potentially adverse information, she would send it to Mr Singh for comment before she made any decision. 12 As promised the Tribunal contacted the IELTS investigations manager at the British Council Scotland. Relevantly, the Tribunal's e-mail read: I currently have before me a case in which information the Department of Immigration and Border Protection received from IDP advised that the applicant's IELTS test results were cancelled due to impersonation. I have checked the test report form on www.ielts.org/trf and the results for each component are 0. … Could you please provide us with the following information: On what basis did you reach a conclusion that an imposter sat an IELTS test (11INO18658TA120A) in Bhopal, India on 30 July 2011, not the applicant? If possible, could you please respond by 27 October 2014? Thank you for your assistance. (Emphasis in original.) 13 After a delay of almost two months the response came. It was that: As this test was from 2011 we no longer hold the test materials for this candidate and therefore cannot offer you a conclusive response to your question. 14 This advice was sent by e-mail dated 15 December 2014. 15 Without further contact with Mr Singh the Tribunal proceeded to make its decision. On 2 January 2015 it affirmed the delegate's decision. 16 Having reviewed the sparse evidence before it the Tribunal summarised its reasons for its decision as follows (at [22]): The Tribunal has considered the applicant's response to this information, as well as his other relevant submissions on his case, including his insistence that he sat the test in question. However, his assertions do not overcome the doubts raised by IDP and in the Tribunal's view the more likely explanation is that someone else sat the test on 30 July 2011. As a result it found that Mr Singh did not satisfy criterion PIC4020. It further held that, in the circumstances of the case, compliance with the criterion should not be waived. THE FEDERAL CIRCUIT COURT'S DECISION 17 Mr Singh sought judicial review of the Tribunal's decision in the Federal Circuit Court ("the FCC"). 18 He alleged that the Tribunal had made three jurisdictional errors. Only two of these allegations remain relevant on this appeal. 19 The first allegation was that the Tribunal had breached s 362A of the Migration Act 1958 (Cth) ("the Act") by failing to give Mr Singh access to the e-mail dated 15 December 2014. 20 The other allegation of jurisdictional error was related to the first. It was that the Tribunal had failed to comply with the obligations imposed on it by ss 357A and 360 of the Act by depriving Mr Singh of access to the e-mail. 21 The FCC rejected both allegations of error. 22 In dealing with the first it recorded a concession made by the Minister that, although s 362A did not, in terms, impose a requirement that the Tribunal provide access to written material in its possession, such a requirement was to be implied having regard to the applicant's entitlement to have access to such material. It was also common ground that an applicant could seek access to relevant material by making a request. It was not necessary that such a request be made in any particular form. It was further agreed that the material covered by s 362A could be either favourable or unfavourable to the interests of the applicant. The FCC rejected a submission by the Minister that Mr Singh's 24 June 2014 request only picked up written material then in the possession of the Tribunal. We interpolate at this point that the Minister did not seek to contest this aspect of the FCC's decision on this appeal. The terms of the request were, it held, wide enough to include a request that the Tribunal obtain relevant documents and then provide them to him. 23 The FCC did, however, accept submissions by the Minister that neither the written request, made on 24 June 2014, nor the oral request, made during the hearing on 7 October 2014, constituted a request for access to material of the kind contained in the 15 December 2014 e-mail. 24 The FCC further held that an applicant's right to access material pursuant to s 362A depended on the making of a request and the terms of that request. The Court drew an analogy with Court documents. Although a Court is under no obligation to provide litigants with a copy of every document filed in proceedings to which they are a party, litigants could ask to inspect the Court file and are, normally, permitted to do so. No such request had been made by Mr Singh in relation to the Tribunal file. 25 The trial judge found that the failure to provide Mr Singh with a copy of the e-mail had not given rise to any practical injustice. This was because the Tribunal had told Mr Singh, at the hearing on 7 October 2014, that it had limited evidence that he had not sat the test and that it was possible that the request for further information might not elicit any additional material. No additional information had been forthcoming. THE APPEAL TO THIS COURT 26 Mr Singh appealed to this Court from the FCC's judgment. He relied on four grounds. 27 The first three were related. They were founded on s 362A of the Act. He contended that the FCC had erred by rejecting his claim that the Tribunal had breached s 362A by not giving him access to the e-mail sent by the IELTS. He also challenged the trial judge's finding that s 362A required him to make a request for specific documents before an entitlement arose for him to have access to evidence held by the Tribunal and the drawing of the analogy between the searching of a Court file and obtaining access to material under s 362A. 28 The fourth ground was that, by not providing him with access to the e-mail, the Tribunal had deprived him of the fair hearing to which he claimed to be entitled under s 360(1) of the Act. THE LEGISLATION 29 Sections 360 and 362A provide: 360 Tribunal must invite applicant to appear (1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. (2) Subsection (1) does not apply if: (a) the Tribunal considers that it should decide the review in the applicant's favour on the basis of the material before it; or (b) the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or (c) subsection 359C(1) or (2) applies to the applicant. (3) If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal. … 362A Applicant entitled to have access to written material before Tribunal (1) Subject to subsections (2) and (3) of this section and sections 375A and 376, the applicant, and any assistant under section 366A, are entitled to have access to any written material, or a copy of any written material, given or produced to the Tribunal for the purposes of the review. (2) This section does not override any requirements of the Privacy Act 1988. In particular, this section is not to be taken, for the purposes of that Act, to require or authorise the disclosure of information. (3) This section does not apply if the Tribunal has given the applicant a copy of the statement required by subsection 368(1). 30 Both these sections appear in Part 5 of the Act. When conducting reviews under Part 5 the Tribunal is not bound by technicalities, legal forms or the rules of evidence and is required to act according to substantial justice and the merits of the case: see s 353. 31 Section 357A(1) of the Act provides that the provisions of Division 5 of Part 5 (ie, ss 357A to 367) are taken to be an exhaustive statement of the requirements of natural justice in relation to matters with which those provisions deal. By s 357A(3) the Tribunal is required, in exercising its powers under Division 5, to "act in a way that is fair and just." 32 Section 359 empowers the Tribunal to "get any information that it considers relevant." If the Tribunal obtains such information it is required to have regard to it in making its decision. 33 Section 359AA(1) provides that, if an applicant appears at a hearing because an invitation has been extended under s 360, the Tribunal may provide oral particulars to the applicant "of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review", explain to the applicant the significance of the information and provide the applicant with an opportunity to comment on it. 34 Section 368(1), to which reference is made in s 362A(3), relevantly requires the Tribunal to make a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of facts; and (d) refers to the evidence or any other material on which the findings of fact were based; and (e) … ; and (f) records the day and time the statement is made. THE APPELLANT'S CASE 35 Mr Singh submitted that the 15 December 2014 e-mail fell within the terms of his requests for evidence which had been submitted on 24 June 2014 and 7 October 2014. He had an entitlement to access to the e-mail, pursuant to s 362A of the Act, and the Tribunal's failure to provide him with a copy, prior to making its decision, constituted jurisdictional error. 36 Mr Singh disputed the FCC's finding that any entitlement, conferred by s 362A, only arose if a request was made. In this context he challenged the efficacy of the analogy drawn by the FCC relating to access to documents held on court files. 37 Mr Singh also complained that the Tribunal had breached s 360 of the Act by depriving him of what he said was his right to give evidence and make submissions about the contents of the e-mail. The failure to give him the document had unfairly deprived him of an opportunity to make further submissions or provide further evidence to support his case. CONSIDERATION 38 The first issue which falls for consideration is the construction of s 362A(1) of the Act. This subsection provides applicants in the Tribunal with an entitlement "to have access to any written material … given or produced to the Tribunal for the purposes of the review." The subsection does not, in terms, impose any obligation on the Tribunal. It does not prescribe a means or a process whereby an applicant might obtain access to documents which have been given to the Tribunal. 39 The subsection is plainly intended to be of assistance to applicants, many of whom will not have legal or other assistance in prosecuting their appeals to the Tribunal. A construction which furthers this objective is to be preferred to one which would render the provision of little practical assistance to applicants. 40 The principal meaning attributed to the word "entitle" in the Macquarie Dictionary is: "to give (a person or thing) a title, right, or claim to something; furnish with grounds for laying claim." The existence of the entitlement is separate from the process whereby the entitlement (in this case access to documents) might be secured. 41 The word "entitled" appears in many other provisions of the Act. A review of these provisions confirms the importance of identifying precisely what entitlement is being conferred. This is because, as the Minister, correctly in our view, accepts, an entitlement may give rise to a correlative obligation on some other party and the nature and scope of such an obligation will depend on the relevant entitlement. 42 A number of sections (see, for example, ss 20, 268BG, 306G, 374 and 436) provided that a person is entitled to payments by way of compensation in respect of expenses incurred in complying with obligations imposed by the Act. The sections are silent as to the processes whereby payment of the compensation is to be obtained. It is implicit in these provisions that, before any payment can be obtained, some calculation of the quantum of the compensation is undertaken and advised to the person or institution who is under the obligation (express or implied) to make the payment. 43 The word "entitled" is also used in various sections which deal with procedural protections such as entitlements to be heard in support of or against applications for extensions of time (ss 268CQ and 487S), having the assistance of another person when presenting arguments to the Tribunal (s 366A) and entitlements to observe the execution of warrants (ss 268CZ and 487U). The person on whom entitlements of this kind are conferred must assert the right before an obligation falls on some other party to facilitate its exercise. 44 A further example is provided by s 26 of the Act which empowers the Minister to take and retain documents about unlawful non-citizens which have been produced pursuant to notices given under s 18. Section 26(2) provides that: The person otherwise entitled to possession of the document is entitled to be supplied, as soon as practicable, with a copy certified by the Minister to be a true copy. 45 In both instances the word "entitled" is used in the sense of "right". The person who has produced the document under a coercive process is the person who would otherwise be entitled to possession of the document. He or she is also the person who is entitled to be supplied with a copy of the document. That right carries with it, in the context of s 26(2), an obligation on the Minister to supply a certified copy of the document to the person otherwise entitled to possession of the original. 46 No equivalent obligation to supply documents falls on anyone under s 362A(1). Such obligation as does arise is an obligation to facilitate access. Unless the Tribunal, on which the obligation falls, is aware that an applicant wishes to have access to a document which has been given to it, it will not be aware that access is desired and will not know that the occasion for the facilitation of access has arisen. There is no general obligation (express or implied) on the Tribunal to supply or provide all documents it holds relating to a particular review. 47 The next question which arises is whether Mr Singh had sought access to documents of the class into which the e-mail fell. 48 The terms of Mr Singh's request for information, which was made in June 2014, is set out above at [6]. In particular he asked for the assistance of the Tribunal in "producing any investigated factual information which stands against the genuine standing of my IELTS …". The factual information (such as it was) which was in the Tribunal's possession, on which the Tribunal's decision was based, is set out above at [8]. At the October 2014 hearing Mr Singh asked the Tribunal to make further enquiries to see whether there was any additional evidence to support the view that someone else had sat the IELTS. The Tribunal said that it would make further enquiries and advise him if such enquiries yielded any information which was adverse to his interests. The Tribunal made the enquiries. The response was a non-response. All that was contained in the 15 December 2014 e-mail was advice that no further information could be provided because the IELTS no longer held any relevant materials. That non-response did not contain any factual information relating to the question of who had sat the test. There was nothing in the e-mail which was material to the outcome of the review, even if it be accepted that the e-mail should have been treated as falling within the terms of Mr Singh's request for information made orally at the second Tribunal hearing. 49 The analogy, drawn by the trial judge, between access to Tribunal files and court files may not be considered to be entirely apt but nothing turns on it for the purpose of this appeal. 50 Mr Singh has not established any appealable error by the FCC. Grounds 1 to 3 must be rejected. 51 The remaining issue relates to the complaint that the Tribunal breached s 360 of the Act by conducting an unfair hearing. 52 The principal authority relied on by Mr Singh was Minister for Immigration and Border Protection v Dhillon (2014) 227 FCR 525; [2014] FCAFC 157. In that case the applicant had requested that the Tribunal provide him with its entire file "including file notes, case notes etc, including investigation file if any": at 529 [7] (Allsop CJ, Murphy and Pagone JJ). The material was provided but some documents had been redacted purportedly because of a need to comply with provisions of the Privacy Act 1988 (Cth). At first instance the trial judge quashed the Tribunal's decision on the ground that the applicant had been denied procedural fairness as required by s 360 of the Act because he had not been given the redacted material. 53 The Minister's appeal succeeded on another ground but the Full Court held, obiter, that the trial judge had been correct to hold that the Tribunal had breached s 360. 54 The Full Court identified the purpose of s 360(1) as being to ensure that an applicant "is given a proper opportunity to present his or her case": at 540 [22]. Their Honours referred to the dictum in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 at 362; [2013] HCA 18 at [61] (Hayne, Kiefel and Bell JJ) that s 360(1) requires that "the invitation be meaningful, in the sense that it must provide the applicant for review with a real chance to present his or her case". The Full Court then continued (at 540 [22]): The extent of the duty imposed upon the Tribunal under s 360(1) must, however, be understood in light of the express terms of s 357A that the provisions of Pt 5, Div 5 are taken to be "an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with". 55 The Full Court went on to hold that the Tribunal had contravened s 360 by refusing to provide access to the redacted material. Their Honours said (at 543 [25]) that: The Tribunal's decision not to give [the applicant] access to the redacted material (by wrongly deciding not to provide access under s 362A(1)) meant that the Tribunal decided the Public Interest Criterion without the fair hearing to which [the applicant] was entitled under s 360 of the Migration Act 1958 (Cth). 56 For the reasons which we have already explained, the Tribunal did not, in the present case, do anything which breached s 362A of the Act. The adverse information, on which the Tribunal's decision was based, was available to Mr Singh at the second of the two hearings which it conducted. He had the opportunity to make any submissions which he wished in relation to that information. He drew attention to what he said was the inadequacy of that material. 57 There was nothing in the 15 December 2014 e-mail which in any way supplemented the information which was before the Tribunal and available to Mr Singh in October 2014. No practical injustice was suffered by Mr Singh when the Tribunal proceeded to make its decision on his appeal on the basis of the material which it had before it in October 2014 and on which Mr Singh had had the opportunity to make submissions. 58 This ground has not been made out. DISPOSITION 59 The appeal will be dismissed with costs. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Tracey, Mortimer and Moshinsky. Associate: Dated: 20 December 2017	6,081
federal_court_of_australia:irc/1995/1995irca0603	decision	commonwealth	federal_court_of_australia	text/html	1995-11-02 00:00:00	Gary Sinclair v Anthony Smith & Associates Pty Ltd [1995] IRCA 603	https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1995/1995irca0603	2024-09-13T22:53:06.301724+10:00	C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - redundancy - failure to consult with Applicant or Union - reinstatement. INDUSTRIAL RELATIONS ACT 1988, ss.170DE, 170DC, 170EE GARY SINCLAIR -V-ANTHONY SMITH & ASSOCIATES PTY LTD No. SI1260 of 1995 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 2 NOVEMBER 1995 INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI1260 of 1995 B E T W E E N: GARY SINCLAIR Applicant AND ANTHONY SMITH & ASSOCIATES PTY LTD Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 2 NOVEMBER 1995 THE COURT ORDERS THAT: 1. The Respondent reinstate the Applicant by appointing the Applicant to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of employment. 2. The Respondent pay to the Applicant the remuneration lost by the Applicant because of the termination of his employment. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SI1260 of 1995 B E T W E E N: GARY SINCLAIR Applicant AND ANTHONY SMITH & ASSOCIATES PTY LTD Respondent BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 2 NOVEMBER 1995 REASONS FOR JUDGMENT This is an Application pursuant to Section 170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement. The Applicant was employed by the Respondent from January 1990 as a shift supervisor. His employment is governed by the Metal Industry (South Australia) Award. His employment was terminated on 15 June 1995. The reason his employment was terminated was because the job he had been doing was being made redundant. The Applicant gave evidence that the termination of his employment came as a surprise to him. All previous indications from the Respondent were to the effect that no jobs would be lost on the factory floor. The Applicant is the father of five children, aged between 14 years and 6 months. He continued to work for the Respondent despite the fact that over the last few years he has not wanted to do shift work because of difficulties with his teenage son and despite the fact that he would receive payments from Social Security in excess of what he earned from his employment. He was given no warning that his employment was to be terminated. He was given no opportunity to work out his notice period. The employer did not consult with the Applicant or the relevant Union regarding the matter. No attempt was made to find an alternative position for the Applicant within the Respondent's business operation. The Applicant was not counselled about his impending dismissal. In my view if the employer had consulted with the Applicant and the Union and considered the alternatives available to it, it is likely that the Applicant's employment would have continued. In my view the termination of the Applicant's employment was harsh unjust and unreasonable and breached the Industrial Relations Act 1988. Reinstatement is the primary remedy in this jurisdiction. The applicant gave evidence of his desire to be reinstated and expressed his desire to hold himself out as a role model for his teenage son. None of the evidence adduced by the Respondent satisfies me that reinstatement is impracticable. A number of positions at the Respondent's business are currently filled by casual contract labour. I am satisfied that reinstatement to some other position in the Respondent's business is not impracticable. I therefore order the Respondent to reinstate the Applicant by appointing the Applicant to another position on terms and conditions no less favourable than those on which he was employed immediately before the termination of employment and the pay to the Applicant the remuneration lost by the Applicant because of the termination of his employment. I certify that this and the preceding page is a true copy of the reasons for my judgment. DATE OF HEARING : 19 and 23 October 1995 FOR THE APPLICANT : Mr S Blewett FOR THE RESPONDENT : Mr G Coppola	986
federal_court_of_australia:fca/single/2016/2016fca1470	decision	commonwealth	federal_court_of_australia	text/html	2016-11-01 00:00:00	Gregg v Fairfax Media Publications Pty Limited [2016] FCA 1470	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2016/2016fca1470	2024-09-13T22:53:07.232185+10:00	FEDERAL COURT OF AUSTRALIA Gregg v Fairfax Media Publications Pty Limited [2016] FCA 1470 File number: NSD 553 of 2016 Judge: RARES J Date of judgment: 1 November 2016 Catchwords: DEFAMATION – trial by jury – whether to be ordered – Federal Court of Australia Act 1976 (Cth) ss 39, 40 – whether limitations to power to order trial by jury under s 40 – whether "expedient" under s 40 to order trial by jury PRACTICE AND PROCEDURE – where application for trial by jury filed out of time fixed in case management orders and without explanation for delay – Federal Court of Australia Act 1976 (Cth) – whether granting trial by jury consistent with overarching purpose and party's duties under s 37M – whether in the interests of justice to grant trial by jury Legislation: Civil Law (Wrongs) Act 2002 (ACT) Constitution s 80 Corporations Act 2001 (Cth) s 184, 233 Crimes Act 1914 (Cth) s 4J Criminal Code Act 1995 (Cth) Defamation Act 2005 (NSW) ss 11, 21, 22, 30 Federal Court of Australia Act 1976 (Cth) ss 39, 40 Federal Court Rules 2011 r 16.02 Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 Campbell v Backoffice Investments Pty Limited (2009) 238 CLR 304 Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 Helton v Allen (1940) 63 CLR 691 McDermott v Collien (1953) 87 CLR 154 Owners of "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 Ra v Nationwide News Pty Ltd (2009) 182 FCR 148 Rejfek v McElroy (1964) 112 CLR 517 Roozendaal v Fairfax Digital Australia and New Zealand Pty Limited (2015) 232 FCR 487 Tamaya Resources Limited (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 Date of hearing: 1 November 2016 Registry: New South Wales Division: General Division National Practice Area: Other Federal Jurisdiction Category: Catchwords Number of paragraphs: 44 Counsel for the Applicant: Mr B McClintock SC with Ms ST Chrysanthou Solicitor for the Applicant: Mark O'Brien Legal Counsel for the Respondents: Ms LE Barnett Solicitor for the Respondents: Banki Haddock Fiora ORDERS NSD 553 of 2016 BETWEEN: PETER GREGG Applicant AND: FAIRFAX MEDIA PUBLICATIONS PTY LIMITED (ACN 003 357 720) First Respondent THE AGE COMPANY PTY LTD (004 262 702) Second Respondent THE FEDERAL CAPITAL PRESS OF AUSTRALIA PTY LTD ACN 008 394 063 Third Respondent JUDGE: RARES J DATE OF ORDER: 1 NOVEMBER 2016 THE COURT ORDERS THAT: 1. The respondents' interlocutory application dated 5 October 2016 be dismissed. 2. The respondents pay the applicant's costs of the interlocutory hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 On 5 October 2016, the respondents, Fairfax Media Publications Pty Limited, The Age Company Pty Limited and The Federal Capital Press of Australia Pty Limited, filed an interlocutory application for an order under s 40 of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act) directing a trial by jury of these defamation proceedings in accordance with the roles of judicial officers and juries set out in s 22 of the Defamation Act 2005 (NSW). Background 2 Peter Gregg, the applicant, commenced these proceedings on 18 April 2016 by filing his originating application and statement of claim in which he alleged that the various respondents had published defamatory matter of and concerning him on 11 separate occasions, not necessarily involving each of the respondents. It is convenient to refer to the respondents cognately, as Mr Gregg alleged that the 11 publications conveyed similar defamatory imputations and the joint defence raised common defences to all of the 11 alleged torts. 3 On 12 May 2016, the proceedings were listed for a first case management hearing. On that occasion, I stood the proceedings over for further directions on 22 July 2016 and made orders that the respondents file and serve their defences by 17 June 2016, that Mr Gregg file and serve any reply by 1 July 2016, and relevantly that: 3. The respondents file and serve any interlocutory application and evidence in support of any application for a trial by jury by 15 July 2016. 4 On 20 June 2016, the respondents filed their defence, pleading justification of each of the imputations alleged by Mr Gregg. However, the respondents did not file any such interlocutory application. On 22 July 2016, I made directions for the filing of an amended defence and an amended reply and listed the proceedings for argument about the pleadings on 2 September 2016. 5 On 2 September 2016, I heard argument concerning a number of allegations that the respondents had pleaded in their defence in support of their pleas of justification of the serious imputations that Mr Gregg had alleged the matters complained of conveyed of and concerning him. He alleged that the matters complained of carried imputations, among others, that in effect, he had engaged in corrupt conduct whilst the chief financial officer of a public listed company, Leighton Holdings Limited, by authorising payment of a $15 million bribe to a company run by an allegedly corrupt Indian businessman, Mahesh Khemka, and that Mr Gregg took part in a global bribery racket by authorising that payment. In essence, the respondents' defence had alleged that, on or about 1 August 2011, Mr Gregg had contravened s 184(1) of the Corporations Act 2001 (Cth) by failing with intentional dishonesty to exercise his powers and discharge his duties as a director and officer of Leighton for a proper purpose by authorising a payment of $15 million. 6 As a result of the argument, the respondents undertook to re-plead their defence in a way that formally pleaded the substance of their allegations of Mr Gregg's criminal wrongdoing having regard to the relevant physical and fault elements in accordance with the provisions of the Criminal Code in the Schedule to the Criminal Code Act 1995 (Cth). In their original defence the respondents had pleaded in a generalised way, without regard to the physical and fault elements constituting the alleged criminal offences. 7 I also required Mr Gregg to reply responsively to each of the detailed pleaded material facts on which the respondents would rely in their to be re-pleaded defence so as to be able to identify the real issues that will have to be resolved at trial. I did that rather than permitting Mr Gregg to file a reply that merely joined issue on matters which he did not admit in accordance with the usual form of pleading in defamation actions in New South Wales. 8 In my view, it was essential that the issues in the proceedings be pleaded in accordance with r 16.02 of the Federal Court Rules 2011. I intended that each of the re-pleaded defence and the reply would identify the issues that the party pleading wanted the Court to resolve and would state the material facts on which the party relied that were necessary to give the opposing party fair notice of the case to be made against that party at trial, in a manner that was not evasive or ambiguous, or likely to cause prejudice, embarrassment or delay in the proceedings. 9 The proceedings came before me again on 27 September 2016 for further directions. I then made orders, substantively by consent and I fixed the proceedings for hearing with an estimate of four weeks, commencing on 4 September 2017. During the course of argument on 27 September 2016, counsel for the respondents said that one reason for giving an estimate that the case would run longer than about two weeks was that the respondents were considering an application for a trial by jury and that her clients: … had previously instructed us that they did not want to make that application. Through the process we've been going through of starting to prepare the evidence, it appears to us that it might be a case more amenable to a trial by jury … my client has not given us those instructions yet, but that's something that we're following up, and if those instructions are we will make that application. (emphasis added) 10 In light of that indication, I ordered on 27 September 2016 that by 12 October 2016 the respondents file and serve any interlocutory application for a trial by jury and evidence in support and made directions for the preparation of any such application for hearing today. 11 On 28 September 2016, the respondents filed a further amended defence. 12 As I have noted, the respondents filed the present interlocutory application on 5 October 2016, but they filed no evidence and, in particular, gave no verified explanation of why they had changed their instructions to their lawyers or why they had not availed themselves of the earlier opportunity to apply for a trial by jury pursuant to order 3 made on 12 May 2016. The nature of the current pleadings 13 For the purposes of these reasons, it suffices to say that it is obvious from the imputations that Mr Gregg alleged were conveyed by the 11 matters complained of and the nature of the defence of justification that there is likely to be a very large amount of evidence, principally documentary, on which the respondents will rely at trial in order to seek to prove the justification defence. Moreover, they have also relied on other defences, including the defence of statutory qualified privilege under s 30 of the Defamation Act. In order to make good that defence, s 30(1) of that Act provides that a defendant must prove that the recipient, being, here, the readers of the 11 matters complained of, have an interest, or apparent interest, in having information on some subject, each matter complained of was published to the recipient in the course of giving to the recipient information on that subject, and, relevantly: (c) the conduct of the defendant in publishing that matter is reasonable in the circumstances. 14 There is, apparently, a live issue as to whether ss 22(2) and (5)(b) of the Defamation Act alters the common law that the question whether defamatory matter is published on an occasion of qualified privilege is a question of law for the judge and not one for the jury. It suffices to note that, in Daniels v State of New South Wales (No 6) [2015] NSWSC 1074 at [34], McCallum J held that the issue whether the conduct of a defendant in publishing the matter complained of was reasonable in the circumstances, so as to establish a defence of qualified privilege under s 30(1)(c) was a matter that, pursuant to s 22(2), the jury, and not the judge, had to determine. The parties' submissions 15 The parties engaged in a detailed and considerable debate as to the authorities on whether a trial by jury should or should not be ordered under s 40 and its analogue, the subject of decisions of the High Court such as McDermott v Collien (1953) 87 CLR 154. 16 Mr Gregg opposed the application for a trial by jury, relying on Roozendaal v Fairfax Digital Australia and New Zealand Pty Limited (2015) 232 FCR 487. He pointed to the insufficiency of the reasons that the respondents had given for making their application at this stage. He argued that they had made an election not to seek a trial by jury when they decided not to file an interlocutory application pursuant to order 3 made on 12 May 2016. He noted that s 21 of the Defamation Act provided a procedure for the making of an election by any party to defamation proceedings to have a jury in New South Wales proceedings. Nonetheless, Mr Gregg accepted that the present application was made under s 40 of the Federal Court Act and that the statutory provisions in relation to the ability of a party to elect under s 21 of the Defamation Act did not apply in proceedings in this Court by reason that ss 39 and 40 of the Federal Court Act governed the circumstances in which such an order could be made. 17 Mr Gregg argued that the ordinary mode of trial in this Court by judge alone should not be displaced. He pointed to the complexity of the issues and the substantive prejudice that he could suffer at a jury trial were he to split his case in chief, or elect not to give evidence in chief as to his hurt to feelings and the impact of the defamatory publications on him, so as not to be subject to the likelihood that he would be cross-examined twice on issues relating to the justification defence, once before the respondents went into evidence and, secondly, in reply to their case. 18 Moreover, he argued that, if the decision of McCallum J in Daniels [2015] NSWSC 1074 were correct, the respondents could call evidence to the reasonableness of their journalists' states of mind in publishing the matters complained of, when that evidence would be irrelevant to the issue of justification. He contended that such evidence could cause considerable prejudice to his case, since the journalists would then be giving evidence as to their own conduct and issues going to why they asserted that it was reasonable for them to have published the imputations, when that evidence bore no relationship to the issue of justification. 19 Mr Gregg also submitted that he might have to call evidence as to damages before the jury in a cognate trial on all issues, even though the assessment of damages under s 22(3) of the Defamation Act is a matter that must be determined by a judge and not a jury. He submitted that, potentially, this would create a bifurcation of roles in the tribunals of fact that, in the circumstances of this case, would not be expedient. Mr Gregg argued that merely because his imputations and the justification defence raised serious allegations that he had engaged in criminal conduct, that circumstance did not require that a jury, rather than a judge, should be the tribunal of fact to determine them. He noted that civil trials of allegations of criminal conduct had to be conducted on the civil, not criminal, onus of proof and that, analogously, such civil trials did not need to be heard by a jury. He called in aid cases such as Helton v Allen (1940) 63 CLR 691 and Rejfek v McElroy (1964) 112 CLR 517 in which civil courts must decide, on the civil onus of proof, questions of whether a party had committed a crime. 20 He argued that the expression, "the ends of justice appear to render it expedient", in s 40 required that it be made to appear to the Court that it was necessary, or necessary in the interests of justice, to order a jury. In any event, he fell back on the submission that the authorities required that an applicant for the trial by jury demonstrate "substantial" or "special" reason to justify the making of an order under s 40. He also contended that, while, in theory, juries are required to, and judges must assume that juries, obey directions of the trial judge, on matters of law as to how they have to approach their task, there was a real risk in a trial by jury in complex proceedings, such as these, things could miscarry. 21 The respondents argued that they had not made any election and that they had retained a right to make a subsequent application under the Federal Court Rules after the time fixed by order 3 made on 12 May 2016. 22 The respondents noted that, were Mr Gregg to have been charged with a contravention of s 184(1) of the Corporations Act, although the Director of Public Prosecutions had power to elect under s 4J of the Crimes Act 1914 (Cth) to proceed with a summary trial of such a charge, ordinarily the charge would be prosecuted on indictment. Accordingly, the respondents argued it would be expedient to order trial of these proceedings by jury, being the ordinary tribunal by whom guilt or innocence of criminal charges of the nature forming the basis of their defence of justification would be determined. 23 The respondents also argued that the factual decision as to how ordinary reasonable readers of the matters complained of would have understood them in relation to whether those publications convey the alleged defamatory meanings on which Mr Gregg relies would be best determined by a jury. Consideration 24 I have come to the firm conclusion that this is not an appropriate case in which to exercise my discretion to grant the respondents' application for a jury trial. That is because I am satisfied that the respondents made a considered decision not to apply for a trial by jury after they had had a fair and sufficient opportunity to consider that question on or before 15 July 2016, pursuant to order 3 made on 12 May 2016. 25 In exercising the Court's case management powers, Pt VB of the Federal Court Act imposes obligations on the Court, the parties and their lawyers to facilitate the achievement of the overarching purpose of the civil practice and procedure provisions prescribed in s 37M(1), namely, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. 26 While it is true, as the respondents argued, that the Rules do not prescribe any particular time by which an application under s 40 may be made, order 3 made on 12 May 2016 did. In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 at 215 [103], Gummow, Hayne, Crennan, Kiefel and Bell JJ said that: Generally speaking, where a discretion is sought to be exercised in favour of one party and to the disadvantage of another, an explanation will be called for. (emphasis added) 27 In Tamaya Resources Limited (in Liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 at 226 [154]-[157], Gilmour, Perram and Beach JJ emphasised the importance of the giving of an explanation by a party who seeks a favourable exercise of a discretion to be afforded a further forensic opportunity to do something in the proceedings that the party had not done or failed to do earlier. They said: [154] Just what explanation is called for will necessarily depend upon the particular case. The explanation will be given by, or on behalf of, the moving party. Affidavit evidence may or may not be necessary. In Cement Australia [Pty Ltd v Australian Competition and Consumer Commission (2010) 187 FCR 261], for example, as the explanation was that the error was one of judgment by senior counsel for the ACCC, a statement by him from the bar table, to which no objection was taken, was accepted by the Court as sufficient. [155] It must be borne in mind that the explanation required is that of the moving party, not merely their solicitor or counsel. The client may very well know of matters relevant to the explanation for delay which are not known by the lawyers. [156] Evidence as to the explanation for delay will often be given by an applicant's solicitor from their own knowledge but that may, in some cases, not be sufficient. This is such a case. The primary judge was correct to conclude that the explanation offered by Tamaya was deficient because Ms Banton could not explain why she did not know of the Chilean audit issues until she was told by Mr Basford. Her Honour's approach does not involve any error of principle. [157] We observe, in this respect, that in Aon the plurality had regard to letters which were in the possession of the ANU one year or so before proceedings commenced and which bore on the issues the subject of the amendment application as relevant to the consideration of the adequacy of the explanation for the delay: Aon at [54] and [106]. (emphasis added) 28 I accept that the lawyers for the respondents gave consideration to the making of an application for trial by a jury at, or shortly before, their counsel made the statement during the course of the directions hearing on 27 September 2016 to which I have referred. However, that does not explain, in any way, what reasoning process the respondents themselves adopted earlier when they decided not to make an application in accordance with the order made on 12 May 2016, or, why they subsequently changed their minds. 29 This is not a case in which the respondents' lawyers suggested that they or their clients had made some error of judgment at that earlier stage of the proceedings, or that some new circumstance had occurred so as to warrant their change of course. Nor is there any explanation as to why the respondents gave instructions to make the present application. The respondents had filed their original defence on 20 June 2016, that pleaded justification, a month before 22 July 2016, being the time fixed by order 3 made on 12 May 2016 for them to apply for a trial by jury. 30 At this stage neither party has exchanged any outlines of evidence of the witnesses whom each proposes to call, in accordance with orders 11 and 12 that I made on 27 September 2016. Those orders required the respondents, as the parties alleging serious criminal and civil wrongdoing by Mr Gregg, to serve outlines of their witnesses' evidence first, and then for Mr Gregg to serve his witnesses' outlines in reply. Nonetheless, if I were to order a trial by jury, it would be necessary to revisit precisely how the evidence would be called at trial and probably to make rulings in advance of the trial as to substantive disputes concerning admissibility, in order that the trial could proceed with the jury in as smooth and convenient way as possible. 31 Were I to order a trial by a jury at this time, I am of opinion that it would be necessary to make substantive further procedural directions as to how the proceedings should be prepared for trial and to have significant preliminary hearings as to the admissibility of evidence proposed to be led in relation to the justification defence. In addition, there would be a need to craft careful directions relating to the way in which evidence was to be called before the jury. A jury trial potentially would take significantly longer than the four weeks estimate given for a trial by a judge alone. 32 The factor that a jury trial may involve greater complexity, may or may not ultimately weigh in determining whether or not a trial by jury ought be ordered under s 40 of the Federal Court Act in particular cases. However, s 80 of the Constitution requires trials on indictment for serious criminal offences against the laws of the Commonwealth to be heard by juries, and trials of that nature are heard every day in the nation's criminal courts. Indeed, experience has shown that often civil trials by juries are shorter and more efficient for the reason that parties need to tailor their cases appropriately to the real issues in dispute so as not to lose the attention and potential sympathy of the jury in determining the outcome of the proceedings. Frequently, a trial by a judge alone involves the judge being deluged with an overwhelming amount of unnecessary evidence in the thought that, if all is given to the judge, somehow that will make things clearer rather than more obfuscated. 33 Section 11 of the Defamation Act 2005 (NSW) and its analogues in every State and Territory provide that in cases of multiple publications, the law of the Australian jurisdictional area with which the harm occasioned by the publication as a whole has its closest connection, will be the substantive law for determining all of the rights and liabilities of the parties. 34 I reviewed the authorities that I considered to be relevant to the exercise of the discretion under s 40 of the Federal Court Act in Ra v Nationwide News Pty Ltd (2009) 182 FCR 148. Besanko J, in Roozendaal 232 FCR 487 declined to follow my decision and held that the historical mode of trial in defamation actions at common law and in New South Wales, as the venue of the trial, was largely irrelevant to the exercise of the discretion under s 40. He considered that the general policy of trial by judge alone was settled by the words of ss 39 and 40 of the Federal Court Act. He said that the respondents in that case had not established a sufficient reason to depart from the normal mode of trial (232 FCR at 495 to 496 [26]-[27]). 35 It is important that applications under s 40 are not hamstrung by the artificial development of implications, or unstated limitations, that the words of the section do not themselves convey, in the context in which they appear in connection with the general policy evinced by s 39 of the Federal Court Act. In Owners of "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404 at 421 Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ said: It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words. 36 Those principles were echoed by Gummow, Hayne, Heydon and Kiefel JJ in Campbell v Backoffice Investments Pty Limited (2009) 238 CLR 304 at 361 [178] where they said that a power given to a Court under s 233(1)(d) of the Corporations Act, in relation to an oppression action, "should not be hedged about by implied limitations". 37 The Parliament has conditioned the exercise of the power, in s 40 of the Federal Court Act, to direct a trial with a jury of a suit or issue of fact in circumstances "in which the ends of justice appear to render it expedient to do so". The ordinary natural meaning of the word "expedient" includes: conducive to advantage in general or to a definite purpose; fit proper or suitable to the circumstances of the case; something that helps forward or that conduces to an object, a means to an end (Oxford English Dictionary online); and tending to promote some proposed or desired object, fit or suitable for the purpose, proper in the circumstances, conducive to advantage or interest as opposed to right (Macquarie Dictionary online). 38 Those meanings convey the sense in which "expedient" is used in s 40, namely that, the moving party for a trial by a jury must satisfy the Court that the ends of justice appear to render a trial by a jury convenient or likely to promote the overarching purpose of the civil practice and procedure provisions. To the extent that Besanko J expressed a different view in Roozendaal 232 FCR 487, I respectfully disagree with his Honour. 39 The issue is whether the moving party has satisfied the Court or, perhaps, the Court itself is satisfied, that the ends of justice render it expedient to order a trial by a jury. That discretion must be exercised having regard to, among other things, the general policy in s 39 that the Parliament has selected, namely that, ordinarily, trials in this Court should be by a judge alone without a jury. 40 Nonetheless, where the law of the place at which the Court is sitting is the substantive law to be applied in the way in which, as s 11 of the Defamation Act operates, that law is relevant to, but not determinative of, the selection of the mode of trial for the purposes of s 40 of the Federal Court Act. I have written on this elsewhere: S Rares: Defamation and Media Law update 2006: Uniform National Laws and the Federal Court of Australia (2006) 28 Aust. Bar Review 1: S Rares: The Jury in Defamation Trials (2010): 33 Aust. Bar Review 93. 41 It is likely that the publications in The Age have their closest connection in Victoria, where the Defamation Act 2005 (Vic) is materially identical to the New South Wales Act, including in requiring a trial by jury where a party makes an election for that mode of trial, and that the publications in The Canberra Times have their closest connection with the Australian Capital Territory where the Civil Law (Wrongs) Act 2002 (ACT) does not provide for any civil trials by jury, in particular in Ch 9, in respect of defamation actions. However, the extent of publication in The Canberra Times is likely to be much smaller than those for The Sydney Morning Herald and The Age. 42 Nonetheless, for the reasons I have given earlier, in my opinion in this matter, the respondents have not persuaded me that it is expedient in the interests of justice to order a trial by jury, having once had and, for unexplained reasons, recanted from their opportunity to make this application at an earlier stage of the proceedings. It is not desirable to encourage parties to proceedings who do not advance, at least, some substantive explanation for doing so, to seek to change their course in proceedings, after having made a deliberate choice of how they wish them to proceed. A mere change of heart as to whether such a choice may or may not suit the party forensically in a way in which he, she or it declines to explain, is calculated to result in the Court being unpersuaded to exercise the discretion in the party's favour. 43 Whether I would have ordered a trial by jury under s 40, had the respondents made a prompt application in accordance with the orders of 12 May 2016, is not necessary for me to decide. Nor is it necessary for me to resolve the many disputed arguments, as to whether these proceedings should have been heard by a jury, which each of the parties addressed on the particular factual circumstances of this matter. Conclusion 44 For these reasons, I dismiss the respondents' interlocutory application with costs. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 7 December 2016	6,494
federal_court_of_australia:fca/full/2018/2018fcafc0107	decision	commonwealth	federal_court_of_australia	text/html	2018-07-06 00:00:00	Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/full/2018/2018fcafc0107	2024-09-13T22:53:08.595714+10:00	FEDERAL COURT OF AUSTRALIA Construction, Forestry, Maritime, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2018] FCAFC 107 Appeal from: Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd [2017] FCA 991 File number: NSD 1644 of 2017 Judges: REEVES, RANGIAH AND O'CALLAGHAN JJ Date of judgment: 6 July 2018 Catchwords: INDUSTRIAL LAW – appeal from decision of single judge – where s 490(2) of the Fair Work Act 2009 (Cth) confers right for union representatives to access work premises to hold discussions with employees "during mealtimes or other breaks" – whether holding discussions before an employee's shift is permitted under s 490(2) – meaning of the term "breaks" – finding that ordinary meaning of the term "break" necessarily implies an interruption in continuity – discussions to occur during, not before or after, a work shift STATUTORY INTERPRETATION – whether the phrase "mealtimes or other breaks" is ambiguous – whether appropriate to have regard to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) – where Explanatory Memorandum includes "holding discussions before or after an employee's shift" as an example of a "break" – finding that the phrase "mealtimes or other breaks" is unambiguous – finding that recourse to the Explanatory Memorandum is not merited – appeal dismissed Legislation: Acts Interpretation Act 1901 (Cth) Fair Work Act 2009 (Cth) Fair Work Bill 2008 (Cth) Cases cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389 Bowtell v Goldsbrough Mort & Co Ltd (1905) 3 CLR 444 Catlow v Accident Compensation Commission (1989) 167 CLR 543 Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384 Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 268 IR 355; [2017] FCA 991 Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190 Lorimer v Smail (1911) 12 CLR 504 Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 R v Sharma (2002) 54 NSWLR 300 Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548 Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 Sea Shepherd v Commissioner of Taxation (2013) 212 FCR 252 Macquarie Dictionary (6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013) The Oxford English Dictionary (2nd ed, Clarendon Press, 1989) Date of hearing: 7 March 2018 Registry: New South Wales Division: Fair Work Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 67 Counsel for the Appellant: R Reitano with P Boncardo Solicitor for the Appellant: CFMMEU – Legal Branch Counsel for the Respondents: IM Neil SC with AM Hochroth Solicitor for the Respondents: Herbert Smith Freehills ORDERS NSD 1644 of 2017 BETWEEN: CONSTRUCTION, FORESTRY, MARITIME, MINING AND ENERGY UNION Appellant AND: BHP BILLITON NICKEL WEST PTY LTD First Respondent STACEY SCAFFARDI Second Respondent MICHAEL CONSTABLE Third Respondent JUDGES: REEVES, RANGIAH AND O'CALLAGHAN JJ DATE OF ORDER: 6 July 2018 THE COURT ORDERS THAT: 1. The appeal is dismissed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT REEVES J: 1 This appeal raised a narrow issue of statutory construction concerning the expression "mealtimes or other breaks" in s 490(2) of the Fair Work Act 2009 (Cth) (the FW Act). That section of the FW Act determines when a permit holder may exercise the right of entry under s 484 to enter premises for the purposes of holding discussions with one or more employees who perform work on the premises, whose industrial interests the permit holder's organisation is entitled to represent, and who wish to participate in those discussions. Both of these provisions appear in Part 3-4 of the FW Act, which is the Part dealing with "Right of entry". 2 It is unnecessary to rehearse the relevant provisions of the FW Act and the factual background to this appeal because they are more than adequately set out in the reasons of O'Callaghan J, which I have had the benefit of reading. I agree generally with his Honour's reasoning. I therefore agree with the conclusions he has reached and the orders he has proposed. My brief reasons for this agreement are as follows. 3 In the first ground of its notice of appeal, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) claimed that: "[t]he primary judge was in error in failing to construe the words 'other breaks' in ss.490(2) of the [FW Act] as meaning those times during the working hours of the premises when employees are not working at those premises". Thus, the CFMMEU's primary contention in this appeal was that the periods before an employee commences work and after he or she has completed work fall within the expression "other breaks" during which a permit holder may hold discussions under s 484 of the FW Act. 4 The primary judge did not agree with this contention. In the primary reasons (see Construction, Forestry, Mining and Energy Union v BHP Billiton Nickel West Pty Ltd (2017) 268 IR 355; [2017] FCA 991), his Honour held that "the natural and ordinary meaning of the phrase 'mealtimes or other breaks' … [was] those times when an employee may be at work but not physically engaged in discharging the responsibilities for which he has been employed" (at [35], third dot point). Further, and more importantly, his Honour held that the term "'breaks' … conveys the notion that there is a 'break' in something which is otherwise happening, it not being possible to have a 'break' during the working hours of an employee before the working hours of that particular employee or class of employee commences of [sic – or] after they have finished" (at [35], fourth dot point). 5 In my view, this construction accords with the natural and ordinary meaning of the phrase "mealtimes or other breaks" and is correct. According to The Oxford English Dictionary (2nd ed, Clarendon Press, 1989), the pertinent natural and ordinary meaning of the word "break" is (at item 8b) "an interruption of continuity … in a course of action or time". Similarly, according to the Macquarie Dictionary (6th ed, Macquarie Dictionary Publishers Pty Ltd, 2013), the word "break" relevantly means (at item 63): "an interruption of continuity; suspension; stoppage"; and (at item 65) "a brief rest, as from work, especially a midmorning pause, usually of fifteen minutes, between school classes". 6 The word "breaks" in the phrase "mealtimes or other breaks" in s 490(2) of the FW Act therefore refers to an interruption, suspension or stoppage to, or of, an employee's work. That interruption, suspension or stoppage may occur for any number of reasons, including: a rest break; a tea or coffee break; or a break to smoke a cigarette, hence the colloquial expression "smoko". However, since the word "mealtimes" precedes the expression "or other breaks", one form of break is excluded, for contextual reasons, namely a break to take a meal such as lunch or dinner. On the other hand, the period before an employee commences work is not, in my view, a period where the employee is taking a break from work. That is so because the employee's work has not yet begun, such that there can be said to be any interruption, suspension or stoppage to, or of, it, and this similarly applies to the period after an employee ceases work. 7 For these reasons and those expressed by O'Callaghan J, I do not consider the primary judge committed any error in his construction of the phrase "mealtimes or other breaks". It follows that the CFMMEU's first ground of appeal has no merit. 8 The other three grounds of appeal raised by the CFMMEU can also be disposed of briefly. First, contrary to what is stated in the second ground of appeal, in fact, the primary judge did construe s 490(1) of the FW Act as meaning that a permit holder who has complied with all the relevant provisions of Part 3-4 of the FW Act may enter premises during working hours. However, his Honour correctly held that the "purpose for which the right has been exercised, namely to hold discussions, may go unfulfilled", for example because the employee with whom the permit holder wished to hold discussions was not present on the premises, or because no mealtimes or other breaks were then taking place, or even because the employees concerned did not wish to hold discussions with the permit holder (at [28] of the primary reasons). It follows that the primary judge did not make an error to the effect stated in that ground of appeal. 9 The third ground of appeal was abandoned during the hearing. 10 The fourth and fifth grounds of appeal both depend on there being some ambiguity in the text of s 490(2) of the FW Act. For the reasons given above, I do not consider any such ambiguity exists. Neither of these two grounds of appeal therefore manifests any error on the part of the primary judge. 11 Since none of the CFMMEU's grounds of appeal has any merit, its appeal must be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Reeves. Associate: Dated: 6 July 2018 REASONS FOR JUDGMENT RANGIAH J: 12 I gratefully adopt the summary of the facts and background set out in the reasons of O'Callaghan J. 13 Section 484 of the Fair Work Act 2009 (Cth) (the FW Act) allows permit holders to enter premises for the purpose of holding discussions with certain employees who work on the premises. Section 490(2) of the FW Act then provides that, "The permit holder may hold discussions under section 484 only during mealtimes or other breaks." 14 The issue in the appeal concerns the meaning of the phrase "during mealtimes or other breaks". The appellant contends that permit holders may hold discussions with employees at all times, during the working hours of the premises, when the employees are not working; including before they have started their shifts. The respondent submits that the primary judge correctly construed the phrase as allowing permit holders to hold discussions only at times when the employees are not working during their working hours; and does not extend to times before or after their shifts. 15 The appellant seeks to draw support from the Explanatory Memorandum for the Fair Work Bill 2008 (Cth), which states that: An example of other breaks would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. 16 However, s 15AB of the Acts Interpretation Act 1901 (Cth) only permits extrinsic material to be considered where, relevantly, the statutory provision being construed is "ambiguous or obscure". That was made plain by the High Court in Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416 at 420: Reliance is also placed on a sentence in the second-reading speech of the Minister when introducing the Consequential Provisions Act, but that reliance is misplaced. Section 15AB of the Acts Interpretation Act 1901 (Cth), as amended, does not permit recourse to that speech for the purpose of departing from the ordinary meaning of the text unless either the meaning of the provision to be construed is ambiguous or obscure or in its ordinary meaning leads to a result that is manifestly absurd or is unreasonable. 17 The appellant submits that the phrase "during mealtimes or other breaks" is at least ambiguous – it could refer, not just to breaks within a period of work, but also to breaks between periods of work. It submits that this ambiguity allows the Explanatory Memorandum to be considered. 18 In R v Sharma (2002) 54 NSWLR 300, Spigelman CJ (with whom Mason P, Barr, Bell and McClellan JJ agreed) said at [55]: The use of the expanded phrase "ambiguous or obscure" indicates that the Parliament did not intend to adopt a narrow definition of "ambiguous". Not without irony, the word "ambiguous" may itself be used in different senses. "Ambiguity" is not limited to lexical or verbal ambiguity and syntactic or grammatical ambiguity. It often extends to circumstances in which the meaning is, for whatever reason, doubtful. [See also Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc and Others (2000) 48 NSWLR 548 at [116]]. 19 In R v Sharma at [57], Spigelman CJ cited the following passage from the judgment of O'Connor J in Bowtell v Goldsbrough Mort & Co Ltd (1905) 3 CLR 444 at 456–457: It has been contended in this case that an ambiguity must appear on the face of a Statute before you can apply the rules of interpretation relating to ambiguities. In one sense that is correct, and in another sense it is not. You will frequently find an Act of Parliament perfectly clear on the face of it, and it is only when you apply it to the subject matter that the ambiguity appears. That ambiguity arises frequently from the use of general words. And wherever general words are used in a Statute there is always a liability to find a difficulty in applying general words to the particular case. It is often doubtful whether the legislature used the words in the general unrestricted sense, or in a restricted sense with reference to some particular subject matter. 20 The respondent submits that there is no ambiguity in s 490(2) of the FW Act. The respondent argues that the phrase "mealtimes or other breaks" must be considered as a whole and that it would be artificial to construe "other breaks" as if those words were not linked with "mealtimes". The argument continues that, in this context, the phrase must refer only to breaks within a period of work. The respondent submits that as there is no ambiguity, the applicant cannot resort to Explanatory Memorandum. 21 The respondent's approach seeks to read down the general words "or other breaks" by reference to the preceding word "mealtimes". The very necessity to read down the general words by reference to their context confirms that more than one meaning of the text is open. In my opinion, the phrase is, on its face, capable of being interpreted as encompassing breaks between periods of work, as well as breaks within a period of work. It is ambiguous. 22 However, s 15AB of the Acts Interpretation Act has been construed as restricting the use that may be made of extrinsic material, even where there is ambiguity on the face of a statutory provision. In Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, the plurality of the High Court said at [33]: As was pointed out in Catlow v Accident Compensation Commission it is erroneous to look at extrinsic materials before exhausting the application of the ordinary rules of statutory construction. 23 In Catlow v Accident Compensation Commission (1989) 167 CLR 543, Brennan and Gaudron JJ observed at 550: If the meaning which would otherwise be attributed to the statutory text is plain, extrinsic material cannot alter it. It is only when the meaning of the text is doubtful (to use a neutral term rather than those to be found in s 15AB(1) of the Acts Interpretation Act), that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material. 24 In Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, the High Court said at [47]: This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy. (Citations omitted). 25 There may be some inconsistency between these authorities and CIC Insurance Limited v Bankstown Football Club Limited (1997) 187 CLR 384. In that case, the plurality, after referring to s 15AB of the Acts Interpretation Act, said at 408 that, "the modern approach to statutory interpretation…insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise". Their Honours explained that "context" encompasses the mischief the statute is intended to cure and that a court may refer to extrinsic material to ascertain that mischief. That approach suggests that extrinsic material may be considered in the first instance as part of ascertaining the context in order to resolve an ambiguity. A similar approach was taken in R v Sharma at [58]. However, the more recent judgments of the High Court are binding. It must be concluded that the correct approach precludes consideration of extrinsic materials before exhausting the application of the ordinary rules of statutory construction. 26 Accordingly, the respondent's approach, which begins by attempting to construe s 490(2) of the FW Act by reference to its text and context without recourse to the Explanatory Memorandum, is correct. Only if ambiguity remains, can the Explanatory Memorandum be considered. 27 The appellant's construction of s 490(2) of the FW Act focuses on the words "other breaks" and tends to ignore the word "mealtimes". But, as Gordon J (with whom Besanko J agreed) observed in Sea Shepherd v Commissioner of Taxation (2013) 212 FCR 252 at [34]: The task is not to pull apart a provision, or composite phrase within a provision, into its constituent words, select one meaning, divorced from the context in which it appears, and then reassemble the provision. 28 The phrase "during mealtimes or other breaks" must be construed as a whole. The word "mealtimes" gives context to the words "other breaks". Mealtimes are breaks from work that occur within a period of work. The coupling of "other breaks" with "mealtimes" suggests that the former expression refers to breaks that are of a similar type to the latter. In other words, "other breaks", like mealtimes, are breaks from work that occur within a period of work. 29 That construction is supported by s 492(3) of the FW Act, which allows a permit holder to hold discussions in any room or area of the occupier's premises in which the employees "ordinarily take meal or other breaks" and which is provided "for the purpose of taking meal or other breaks". The "meal or other breaks" envisaged are limited to those that are, or may be, spent at the occupier's premises. Such breaks are, therefore, envisaged to be taken within a period of work, rather than between periods of work. The phrase "mealtimes or other breaks" in s 490(2) is not distinguishable from "meal or other breaks" in s 492(3). The provisions should, accordingly, be interpreted consistently with each other. 30 Further, if the appellant's argument were accepted, its logical extension would be that a permit holder could enter an occupier's premises to hold discussions with an employee, not just immediately before or after a period of work, but, for example, if an employee were to visit the premises during a period of annual leave or long service leave. That would be an incongruous result which would not easily fit within any ordinary conception of a permit holder's entitlement to enter premises to hold discussions with employees "during mealtimes or other breaks". 31 When s 490(2) of the FW Act is construed according to its text and context, no ambiguity remains. Therefore, there is no basis to have recourse to the Explanatory Memorandum. In any event, even if the Explanatory Memorandum could be considered, its content could not displace the strong countervailing considerations. 32 For these reasons, I consider that the primary judge was correct to hold that s 490(2) of the FW Act only permits a permit holder to enter premises for the purpose of holding discussions with employees during mealtimes or other breaks from work that occur during their working hours. I agree that the appeal should be dismissed. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rangiah. Associate: Dated: 6 July 2018 REASONS FOR JUDGMENT O'CALLAGHAN J: Summary 33 The Fair Work Act 2009 (Cth) (the FW Act) establishes a regime by which union representatives are given permits allowing them to gain access to work premises in certain circumstances. One provision of the FW Act gives a permit holder the right to enter work premises during working hours to "hold discussions" with employees. Those discussions may be held, pursuant to s 490(2) of the FW Act, "only during mealtimes or other breaks". The issue that arises on this appeal is whether a discussion held at work premises between an employee and a permit holder before the employee commences work is held during a "break" for the purposes of the relevant FW Act provision. 34 The appellant contends that the entitlement to enter premises "during mealtimes or other breaks" [emphasis added] means that permit holders may enter premises to hold discussions with employees at any time that the employee is at work and not working. The appellant contends that "break" means not only a break within working hours (such as morning tea, lunch, afternoon tea, "smoko" or "crib") but a break between periods of work, such as times at which an employee is present at work, but not working. The appellant says, in the alternative, that the phrase "only during mealtimes or other breaks" is ambiguous and that regard must therefore be had to the Explanatory Memorandum to the Fair Work Bill 2008 (Cth) (the Explanatory Memorandum) that gives, as an example of "other breaks," "holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises". 35 The primary judge rejected those contentions and dismissed the appellant's application for declarations that the respondents had contravened s 501 of the FW Act, which provides that a person "must not refuse … entry onto premises by a permit holder who is entitled to enter the premises in accordance with [Part 3-4 of the FW Act]." 36 In my view, the appellant's construction of s 490(2) is untenable because a "mealtime or other break" is, as matter of ordinary English, an interruption in the continuity of the employee's employment. Therefore, it must necessarily occur during, not before or after, working hours. There being no ambiguity, the point about the Explanatory Memorandum must also fail. 37 For the reasons that appear below, the primary judge was correct to dismiss the application and the appeal should be dismissed. The Fair Work Act 2009 (Cth) 38 Before turning to the facts, it is convenient to set out the relevant provisions of the FW Act. 39 Part 3-4 of the FW Act is headed "Right of entry". The object of Part 3-4 is contained in s 480 and reads: Object of this Part The object of this Part is to establish a framework for officials of organisations to enter premises that balances: (a) the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of: (i) this Act and fair work instruments; and (ii) State or Territory OHS laws; and (b) the right of employees and TCF award workers to receive, at work, information and representation from officials of organisations; and (c) the right of occupiers of premises and employers to go about their business without undue inconvenience. 40 Subdivision B is headed "Entry to hold discussions". Section 484 provides: Entry to hold discussions A permit holder may enter premises for the purposes of holding discussions with one or more employees or TCF award workers: (a) who perform work on the premises; and (b) whose industrial interests the permit holder's organisation is entitled to represent; and (c) who wish to participate in those discussions. 41 Section 490 relevantly provides: When right may be exercised (1) The permit holder may exercise a right under Subdivision … B only during working hours. (2) The permit holder may hold discussions under section 484 only during mealtimes or other breaks. (3) The permit holder may only enter premises under Subdivision … B on a day specified in the entry notice or exemption certificate for the entry. The facts 42 Mr Troy Smart and Mr Doug Heath are employed by the Construction, Forestry, Maritime, Mining and Energy Union, the appellant (the CFMMEU). Each of them was issued with an entry permit under s 512 of the FW Act. On 12 October 2015, pursuant to the FW Act, they gave written notice of their intention, to "hold discussions with any employee who performs work on the premises," being the refinery at Kwinana (the refinery), on 14, 15 and 16 October 2015. The refinery was operated by the first respondent, BHP Billiton Nickel West Pty Ltd (BHPBNW), whose employees' industrial interests the CFMMEU is entitled to represent. The notice also requested BHPBNW to "[p]lease make the necessary arrangements to ensure that these employees have easy access to the arena allocated for the discussions during their mealtimes and other breaks in accordance with section 492 of the Act." 43 The refinery operates 24 hours a day, seven days a week. There are two shifts: 6am to 6pm and 6pm to 6am. Day shift employees generally arrive at the refinery and go to their allocated crib room (or "donga") at about 5.30am to prepare for their upcoming shift and to attend a pre-start meeting with their supervisor. At this meeting, among other things, safety incidents, concerns or issues are discussed. Night shift employees do the same things at the other end of the day, before they start their shift. Standard break times at the refinery were "smoko" at 9am and 3pm, and lunch at midday. 44 Upon receipt of the notice, BHPNW's Manager, Employee Relations, Ms Scaffardi, emailed Mr Heath asking whether he and Mr Smart wanted to hold discussions with BHPBNW employees or with contractors, and, if so, which ones. Mr Heath responded that the "intent at this stage is to … visit members and potential members for the period 0515 and 0630 and during their crib and meal breaks." Ms Scaffardi replied, telling both Mr Smart and Mr Heath that "there are no breaks, crib or meal times between 0515 – 0630 and you will not be able to facilitate a [right of entry] at this time". They were also told that "crib times for employees" were "Smoko – 9am, 3pm. Lunch Midday". 45 Mr Heath responded on 13 October 2015, invoking the terms of an Explanatory Memorandum, relevantly in these terms: [CFMMEU] Officials can exercise their right of entry before employees commence their shift. The Fair Work Act 2009 (Act) makes clear that a right of entry may be exercised during working hours and during mealtimes or other breaks. For guidance as to what is meant by 'other breaks' I refer you to the Explanatory Memorandum to the Fair Work Bill 2008, and specifically para. 1962. Here it makes clear that other breaks, would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. I have been advised that work for our members starts at 6:00 and we have no reason to doubt this, nevertheless, the premises are quite clearly in operation prior to this as a multitude of people on the premises have commenced work for the day. Given our intention to have our first meeting with members and prospective members at 0515, Mr Smart and I will be on site at 0500 for our visitor induction. Can you please advise site personnel of this to ensure we are inducted in time for us to exercise our Right of Entry. (Emphasis in original). 46 Ms Scaffardi responded later on 13 October 2015: BHP Billiton agree that you may exercise right of entry and hold discussions with your members "only during mealtimes or other breaks". However, we do not agree that, in the case of this site, the period before and after the relevant employee's shift is an "other break" for the purposes of section 490(2) of the Fair Work Act 2009 (Cth). It is the text of the Act that is relevant, and it is clear and unambiguous in this case. One can obviously not be on a "break" from work, if one has not started work. The Explanatory Memorandum provides an example which may apply in some cases. However, there is no designated break before or after the relevant employee's shifts on this site. Therefore, you and Mr Smart may attend the site to perform your inductions at 5.00am. However, you may only hold discussions between the mealtimes and other breaks of the relevant employees, being 9.00am, 12.00pm and 3.00pm as referred to in my previous letter. If you wish to hold discussions with the relevant employees outside of those times, you may of course do so separately and not on site, this includes the car park and smoking hut. (Emphasis added) 47 Mr Heath and Mr Smart arrived at the refinery on 14 October 2015 at about 5am. The second and third respondents, on behalf of BHPBNW, refused them entry at that time. One or other, or both, of Mr Heath and Mr Smart returned to the refinery later at or about 9am. They were granted entry and held discussions with employees during crib or smoko breaks at 9am and midday on 14 October 2015 and then again at midday, 3pm and 9pm on 15 October 2015. The proceeding below 48 In March 2017, the CFMMEU commenced a proceeding in this court seeking the imposition of penalties and declarations that the respondents had contravened s 501 of the FW Act, in substance, by refusing entry in the circumstances set out above. 49 The primary judge dismissed the application, principally because "the constraint implicit in the term "breaks", namely a term which implicitly conveys the notion that there is a "break" in something which is otherwise happening, it not being possible to have a "break" during the working hours of an employee before the working hours of that particular employee or class of employee commences [or] after they have finished". 50 The relevant clauses of the Explanatory Memorandum upon which the CFMMEU relied in its letter to BHPBNW, and before the trial judge, provide as follows: Clause 484 – Entry to hold discussions [1938] This clause authorises a permit holder to enter premises for the purpose of holding discussions with persons at the premises if one or more of those persons: • perform work on the premises; • are entitled to be represented by the permit holder's organisation; and • wish to participate in those discussions. [1939] The Bill limits when discussions can be held to mealtimes or other break periods. Discussions cannot occur during paid work time (see subclause 490(2)). … Clause 490 – When right may be exercised [1960] This clause specifies the time during which entry rights under this Division can be exercised. [1961] Entry to premises to hold discussions or to investigate a suspected contravention may only occur during working hours (see subclause 490(1)). Working hours refers to the actual operating hours of the premises that the permit holder wishes to enter. In addition, permit holders may only enter on a day specified in the entry notice or the exemption certificate for the entry (see subclause 490(3)). [1962] When entering for discussion purposes under Subdivision B, a permit holder may only hold the discussion during mealtimes or other breaks (subclause 490(2)). Discussions cannot occur during paid work time. An example of other breaks would include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises. [1963] If a permit holder seeks to hold discussions outside break times, she or he would not be authorised to enter or remain on the premises because of the operation of clause 486. 51 The primary judge, after noting that the CFMMEU sought to place particular reliance on paragraph [1962], said this: [41] … The facts presented in the current proceeding, it was submitted on behalf of the Applicant, was the very example contemplated in para [1962] as being a lawful exercise of the right of entry. So much may be assumed. [42] There are nevertheless two difficulties confronting reliance being placed upon the Explanatory Memorandum in the present circumstances, namely: • although it is not necessary to first ascertain an ambiguity before recourse may be had to secondary material (cf. CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Australian Securities and Investments Commission v National Exchange Pty Ltd [2005] FCAFC 226 at [11], (2005) 148 FCR 132 at 136 per Tamberlin, Finn and Conti JJ), reliance may be placed upon secondary material such as the Explanatory Memorandum to "determine the meaning" (for example) of a provision which is "ambiguous or obscure" (Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)). In the present case it is not considered that there is any ambiguity or obscurity in meaning and the meaning and application of ss 484 and 490 can be resolved by reference to the natural and ordinary meaning of the words employed by the Legislature; and • reliance cannot be placed upon secondary material to alter the meaning to be given to the natural and ordinary meaning of the words employed by the Legislature. The words of an Explanatory Memorandum or the "words of a Minister", it has been said, "must not be substituted for the text of the law" (Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 517 to 518 per Mason CJ, Wilson and Dawson JJ. In the case of an Explanatory Memorandum, see: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v QR Ltd (No 2) [2010] FCA 652 at [22] per Logan J). "The function of the Court is to give effect to the will of Parliament as expressed in the law": Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 per Mason CJ, Wilson and Dawson JJ. See also: Power Rental Op Co Australia, LLC v Forge Group Power Pty Ltd (in liq) (rec and mgr appointed) [2017] NSWCA 8 at [90] per Ward JA (Bathurst CJ and Beazley P agreeing). [43] Reliance, it is thus respectfully concluded, cannot be placed upon the Explanatory Memorandum, or even if it can, such reliance cannot displace the natural and ordinary meaning of the words employed by ss 484 and 490 so as to authorise the entry upon the premises sought by Messrs Heath and Smart. The appeal 52 The CFMMEU relied on the following inter-related grounds of appeal: (1) The primary judge was in error in failing to construe the words 'other breaks' in s 490(2) of the [FW Act] as meaning those times during the working hours of the premises when employees are not working at those premises. (2) The primary judge was in error in failing to construe [s] 490(1) so as to permit a permit holder to enter premises for any of the purposes in Subdivisions A, AA or B of the Part 3-4 of the [FW Act] during working hours. (3) [Abandoned at the hearing] (4) The primary judge erred in finding that the words 'other breaks' in [s] 490(2) were not ambiguous. (5) The primary judge was in error in failing to have regard to the Explanatory Memorandum to the Act in circumstances where the words 'other breaks' were ambiguous and, in any event, so as to elucidate upon the policy of the provision and the mischief that the provision was designed to address. 53 In substance only one point arises from the grounds of appeal – what is the proper meaning of the phrase "other breaks" for the purposes of s 490(2) of the FW Act? 54 It is to that question that I now turn. The proper construction of s 490(2) of the Fair Work Act 2009 (Cth) Plain and ordinary meaning 55 The word "break" must be construed in the context of the phrase "mealtimes or other breaks": see Lorimer v Smail (1911) 12 CLR 504 at 510 ("It certainly is not a satisfactory mode of arriving at the meaning of a compound phrase to sever it into its several parts and to construe it by the separate meaning of each of such parts when severed", Barton J quoting Lord Halsbury LC in Mersey Docks and Harbour Board v Henderson Bros (1888) 13 App Cas 595 at 599); Deputy Commissioner of Taxation v Dick (2007) 242 ALR 152, [2007] NSWCA 190, [13] ("The relevant sub-principle for present purposes is the maxim propounded by Lord Bacon: copulatio verborum indicat acceptationem in eodem sensu – the linking of words indicates that they should be understood in the same sense. As Lord Kenyon CJ once put it, where a word "stands with" other words it "must mean something analogous to them". (Evans v Stevens (1791) 4 TR 224; 100 ER 986 at 987).) 56 In my view, the CFMMEU'S contention that "break" means not only a break within working hours, but also includes a "break" between periods of work, including times at which an employee is at work preparing to start work, is untenable. It flies in the face of the ordinary English meaning of the word when the word is linked to the word "mealtimes", and must therefore be understood in the same sense as the word "mealtimes". 57 Of course, as counsel for the CFMMEU submitted, we speak, when telling someone of our holiday plans, of taking a "break" from work. "Break" can, in that context, mean a time at which one is not at work. But "break" in that sense cannot sensibly be linked with mealtimes. In this case, as counsel for BHPBNW, Mr Neil SC, submitted, the ordinary meaning of the word "break" in the context of the phrase "mealtimes or other breaks", means an interruption in the continuity of an employee's work. That is what the relevant definitions in the dictionaries say. See, for example, the Oxford English Dictionary, 2nd ed, which defines the noun "break" to mean "[a]n interruption of continuity … in a course of action or time". 58 Mr Neil submitted in oral argument that "[t]he expression 'mealtimes or other breaks' is a composite expression. The word 'other' indicates that the two nouns are in the same class. A mealtime is break that is axiomatically taken … after the commencement of scheduled working hours and before its conclusion – during the working day, during the shift – and it wouldn't be sensible … to read it as meaning anything else". 59 I agree. It follows that a "break" within the meaning of s 490(2) must likewise, just as axiomatically, be taken to refer to an period of rest after work has commenced and before it has finished. It is telling, in my view, that counsel for the CFMMEU (Mr Reitano, who appeared with Mr Boncardo) were driven by the inexorable logic of their principal contention (that the entitlement to enter premises "during mealtimes or other breaks" means that permit holders may enter premises to hold discussions with employees at any time that the employee is at work and not working) to say that "breaks" must, on that construction, include all times at which employees are away from work, whether on nights or days between periods of work (here, shifts), on weekends or on holidays. In my view, with respect to counsel, that is an untenable contention and it highlights the absurdity of the principal contention. 60 Section 484 and s 490(2) of the FW Act must obviously be read together. Apart from anything else, s 490(2) says that the discussions contemplated are "discussions under section 484". As the primary judge said, correctly in my view, it follows that "[t]he right conferred by s 484 is not a right conferred at large; it is a right relevantly confined to holding discussions with a confined class of employees, namely those whose industrial interests the permit holder is entitled to represent, and further is a right confined to holding discussions with that class of employees 'during [their] mealtimes or other breaks'". Explanatory Memorandum 61 As for the Explanatory Memorandum, I would, with great respect, adopt without elaboration the reasoning of the learned primary judge on the point at [42]-[43]. There is no ambiguity in the phrase "mealtimes or other breaks", and to read the phrase to "include holding discussions before or after an employee's shift, provided the discussions are held within the working hours of the premises" (the example used in the Explanatory Memorandum is impermissible for the reasons given by the primary judge. 62 That is sufficient to dispose of the grounds of appeal. Other reasons of the primary judge 63 The primary judge also said that the construction of the phrase "mealtimes and other breaks" that he preferred is supported by the fact the legislature sought (as s 480 says) to balance the interests of permit holders and occupiers, including because the rights conferred by s 484 are conferred only on those persons to whom a permit has been granted (who must be "fit and proper" person) (s 512); can only be exercised for stated purposes, such as "holding discussions" with those employees "whose industrial interests the permit holder's organisation is entitled to represent" (s 484); may be the subject of conditions imposed (ss 507 and 515); and requires the giving of notice (s 487): see judgment at [36]. The primary judge also said, at [37], that another reason to prefer BHPBNW's construction of the phrase was that, because it diminished the rights of an occupier, s 484 should not be construed as conferring any greater right than is necessary to achieve its stated purpose, citing Australasian Meat Industry Employees' Union v Fair Work Australia [2012] FCAFC 85; (2012) 203 FCR 389. Speaking for myself, I am not persuaded that either of those considerations to which the primary judge referred is of assistance in this case, where the only issue is the meaning of the phrase "mealtimes and other breaks" in the context of s 490(2). 64 The primary judge also said that, acceptance of the construction sought to be placed upon s 490(2) by the CFMMEU "could be seen as running contrary to the observations" of Tracey and Reeves JJ in Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43 at [35]. I agree with the CFMMEU's submission that the passage to which the primary judge referred (albeit by way of an aside) does not bear on the issue of construction in this case. Conclusion 65 Given that Mr Heath and Mr Smart were, in accordance with their request, allowed access to the refinery on multiple occasions on 14 and 15 October 2015 after they were refused entry in the early hours of 14 October, and given that there was no evidence about why it was important for them to meet employees between 5.15am and 6am, rather than a few hours later, it is difficult to understand why this matter should have occupied the court's time. 66 Mr Heath and Mr Smart in their capacity as permit holders had no right to enter the refinery premises in the early hours of 14 October 2015, and they were rightly refused entry, because their stated purpose – being to hold discussions with employees at a time other than a mealtime or other break – was to propose to hold discussions under s 484 that s 490(2) did not allow. 67 For those reasons, I would dismiss the appeal. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan. Associate: Dated: 6 July 2018	10,157
federal_court_of_australia:fca/single/2004/2004fca0938	decision	commonwealth	federal_court_of_australia	text/html	2004-07-09 00:00:00	Jeans v Commonwealth Bank of Australia [2004] FCA 938	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca0938	2024-09-13T22:53:12.814809+10:00	FEDERAL COURT OF AUSTRALIA Jeans v Commonwealth Bank of Australia [2004] FCA 938 JOHN ANTHONY JEANS v COMMONWEALTH BANK OF AUSTRALIA N 7372 OF 2003 STONE J 9 JULY 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7372 OF 2003 BETWEEN: JOHN ANTHONY JEANS APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: STONE J DATE OF ORDER: 9 JULY 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant pay the respondent's costs of today's proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 7372 OF 2003 BETWEEN: JOHN ANTHONY JEANS APPLICANT AND: COMMONWEALTH BANK OF AUSTRALIA RESPONDENT JUDGE: STONE J DATE: 9 JULY 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 By notice of motion filed in Court the applicant seeks a stay of orders made by Conti J on 8 July 2004 and leave to appeal from those orders. Justice Conti ordered that the Commonwealth Bank of Australia, the respondent to the notice of motion, be released from an undertaking given to the Court on 21 January 2004 subject to a fresh undertaking being given to the Court. Background 2 The background to the notice of motion can be summarised briefly. In 1998 the applicant, Mr Jeans, entered into certain guarantees in favour of the Commonwealth Bank. In May 2003 Mr Jeans' application to set aside the guarantee was dismissed and judgment on the guarantee was entered for the Bank in the sum of $4,749,813.30 (see Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 470). On 16 December 2003 the Bank served a bankruptcy notice on Mr Jeans who then applied for an extension of time for compliance with the notice. With the consent of the parties, that application was dismissed on 21 January 2004 by Deputy District Registrar Hedge who noted the Bank's undertaking that it would not present a creditor's petition for a sequestration order until Mr Jeans' application to the High Court for special leave to appeal (and any subsequent appeal) had been finalised. 3 Mr Jeans did not comply with the bankruptcy notice and, as a result, he committed an act of bankruptcy on 21 January 2004. In April 2004 however, the High Court registry advised the Bank that the special leave application was listed for hearing in December 2004.It was accepted by both parties that, pursuant to s 44(1)(c) of the Bankruptcy Act 1966 (Cth), this act of bankruptcy can only be relied on to support a creditor's petition that is presented by 21 July 2004. For this reason the Bank sought to be released from its undertaking subject to it giving a new undertaking to the effect that it would consent to an adjournment of the proceedings under petition until the appeal process in the High Court was exhausted. The primary judge's decision 4 The primary judge accepted that, at the time it gave the undertaking referred to above, the Bank expected the special leave application made by Mr Jeans would be heard within six months of the date on which the application for an extension of time was dismissed, that is the date on which the act of bankruptcy occurred. 5 Justice Conti granted the relief sought by the Bank. His Honour noted that the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 ('Adam P Brown')held that the Court has power to release a party from an undertaking given to the Court without the consent of the other party even when there was no mistake operative at the time it was given. The High Court held, at 178, that a court must 'remain in control of its interlocutory orders' and specifically stated that such an order would be 'appropriate whenever, inter alia, new facts come into existence or are discovered which render its enforcement unjust'. 6 His Honour regarded the unanticipated delay in the High Court hearing the special leave application as a new fact that would render the maintenance of the original undertaking unjust. He rejected Mr Jeans' submission that the Bank was seeking to negate its undertaking completely. In his Honour's view the Bank was only seeking to maintain the status quo 'constituted by the Full Court's judgment, and the act of bankruptcy of Mr Jeans subsequently committed by virtue of his non-compliance with the bankruptcy notice based on that judgment'; Jeans v Commonwealth Bank of Australia [2004] FCA 841 at [14]. 7 His Honour held that Mr Jeans had not identified any material detriment that would or might result from the relief sought by the Bank. In particular, Mr Jeans had not identified any creditor who might be able to take advantage of his non-compliance with the Bank's bankruptcy notice. On the other hand his Honour noted that counsel for Mr Jeans acknowledged that if relief were denied: 'the Bank would thereafter find itself compelled to issue and serve a fresh bankruptcy notice after denial of the application for special leave, with the consequential disadvantage thereby conversely occasioned to the Bank of an act of bankruptcy of Mr Jeans no longer crystallising until some time in 2005.' Leave to appeal from an interlocutory order 8 When considering an application for leave to appeal from an interlocutory decision, the utility of granting leave is a significant consideration. If there is little or no prospect of an appeal succeeding leave should not be granted; Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. 9 Furthermore, where the interlocutory decision involves an exercise of the primary judge's discretion, the basis on which an appeal court may interfere is governed by established principles. The Court is not entitled to substitute its discretion for that of the primary judge unless the primary judge made an error such as was described in House v The King (1936) 55 CLR 499 at 505 per Dixon, Evatt and McTiernan JJ: 'If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of discretion is reviewed on the ground that a substantial wrong has in fact occurred.' 10 In addition, there is a need for particular caution where the orders of the primary judge involve matters of practice and procedure. An interlocutory order releasing a party from an undertaking given to the Court is a matter of practice and procedure. It is well established that a court considering an application for leave to appeal from such an order should grant leave sparingly; Adam P Brown at 177; Bright v Femcare Ltd 195 ALR 574 ('Femcare') at 575 per Lindgren J. An appellate court should not merely substitute its own view as to the appropriate exercise of the court's discretion for that of the primary judge. This application 11 The thrust of the applicant's claim at the hearing of the leave application was that the primary judge had failed to take into account a material consideration. Senior Counsel for the applicant, Mr Ireland QC, drew my attention to a further notation on the orders made by Deputy District Registrar Hedge. It is as follows: 'The Court also notes the statement made by Mr Butler, the solicitor for the applicant that if, at the conclusion of proceedings in the High Court, it becomes necessary for the respondent to serve a fresh bankruptcy notice, then Mr Butler will obtain instructions from the applicant to accept service of such fresh bankruptcy notice.' 12 I have some difficulty in understanding what was intended by this statement. It is hard to see how Mr Butler could deliver on a promise to obtain instructions if the applicant were not willing to give those instructions. Perhaps it was intended to be a promise by the applicant, through his solicitor, that he would co-operate with the Bank if a fresh bankruptcy notice turned out to be necessary. In any event, the meaning is irrelevant for present purposes. Mr Ireland raised the issue, not because of the content of the promise or undertaking, but to show that when the Bank gave its undertaking to delay presenting a creditor's petition it was in the contemplation of both parties that a fresh bankruptcy notice might be required. 13 Mr Ireland pointed out that although Conti J discussed the undertaking given by the Bank at some length, nowhere does his Honour refer to this additional statement made by Mr Butler. He submitted that the statement was a material consideration that 'slipped through the cracks' and that, if leave to appeal were granted, the applicant on such appeal would have a strong argument that the Bank should not be allowed to withdraw its undertaking in circumstances that were anticipated when the undertaking was given and provided for by the parties. 14 If his Honour had overlooked the fact that the parties had provided for the consequences of delay in the High Court hearing the special leave application, Mr Ireland's argument would, in my view, have some merit. However, it was not in dispute that the statement was drawn to Conti J's attention. The fact that his Honour does not refer to it in his reasons for judgment does not necessarily indicate that he overlooked the point. Given its opaque nature and the uncertainty as to what the statement was intended to achieve, it is likely that his Honour attributed little weight to it. In these circumstances I am not prepared to infer that his Honour overlooked the matter. 15 The other issue raised by the applicant on the notice of motion relates to what was referred to as the contract between the parties underlying the orders made by the Court and the undertaking given. It was suggested that the Court ought not interfere with this contract. I attach no weight to this argument. An agreement between the parties may explain why the parties consented to the dismissal of the proceedings and why the undertaking was given. However, the contract was not argued before the primary judge and, in other than in exceptional circumstances (which have not been pleaded here), the Court's interest in keeping control of its interlocutory orders does not require it to go beyond those orders and the material that was before it when those orders were made. 16 Ultimately for the primary judge the question came down to the parties' respective disadvantage. His Honour expressed the view that, given the substitute undertaking proffered by the bank, the presentation of a creditor's petition would not effect any change in the legal status of the applicant. Mr Ireland has pointed to the fact that there is some disadvantage to a person in merely having a creditor's petition issued against them. I accept that submission, just as I accept the submission that there would be a significant disadvantage to the Bank if it were not able to rely on the act of bankruptcy that occurred on 21 January of this year. 17 However, the weight to be attributed to these factors was a matter for the primary judge. His Honour's decision was made in the exercise of his discretion made after careful consideration of the competing views of Mr Jeans and the Bank. There was no dispute as to the applicable principles. While, with hindsight, it might have been preferable for his Honour to have mentioned the statement attributed to Mr Butler, I see no reason to infer that his Honour failed to exercise that discretion properly. 18 Bearing in mind the caution advised in Adam P Brown and reiterated in Femcare, the application for leave to appeal is denied and the applicant on the motion is to pay the respondent's costs of today. In the circumstances it is not necessary to consider the application for a stay of the primary judge's order pending the determination of an appeal. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone. Associate: Dated: 19 July 2004 Counsel for the Applicant: Mr J Ireland QC Solicitor for the Applicant: Robert H Butler Counsel for the Respondent: Mr DA McClure Solicitor for the Respondent: J K O'Sullivan Date of Hearing: 9 July 2004 Date of Judgment: 9 July 2004	2,750
federal_court_of_australia:fca/single/2024/2024fca0030	decision	commonwealth	federal_court_of_australia	text/html	2024-01-29 00:00:00	Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed) [2024] FCA 30	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2024/2024fca0030	2024-09-13T22:53:14.048703+10:00	FEDERAL COURT OF AUSTRALIA Sev.en Gamma a.s. v IG Power (Callide) Pty Ltd (Administrators Appointed) [2024] FCA 30 File number: QUD 541 of 2023 Judgment of: DERRINGTON J Date of judgment: 29 January 2024 Catchwords: CORPORATIONS – company in administration – whether leave to commence proceedings should be granted nunc pro tunc under s 440D(1)(b) of the Corporations Act 2001 (Cth) – where proceedings are not brought to assert an antecedent right against the company or the property – where proceedings are for specific relief that does not target or diminish the company's assets – leave granted CORPORATIONS – standing under s 447A(4) of the Corporations Act 2001 (Cth) – whether plaintiff is an "other interested person" under s 447A(4)(f) – where plaintiff holds economic interest in company derived from sequential shareholdings – where plaintiff also holds economic interest as a creditor of one of its subsidiaries which is a substantial creditor of the company – each interest sufficient to accord plaintiff standing CORPORATIONS – application for appointment of special purpose administrators under s 447A(1) of the Corporations Act 2001 (Cth) – where company has potential valuable claims which do not appear to have been adequately investigated – whether special purpose administrators should be appointed to conduct investigations into those claims – whether appointment of special purpose administrators is appropriate – where company has been in administration for ten months – where company's potential claims are at risk of being undervalued or lost – where claims are significant to determination to be made by the creditors – special purpose administrators appointed Legislation: Administrative Appeals Tribunal Act 1975 (Cth) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Evidence Act 1995 (Cth) Insolvency Practice Rules (Corporations) 2016 (Cth) Cases cited: Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 4) [2019] FCA 1846 Adelaide Brighton Cement Ltd v Concrete Supply Pty Ltd (subject to deed of company arrangement) (2018) 124 ACSR 389 Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587 Apollo Shower Screens Pty Ltd v Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561 Attard v James Legal Pty Ltd (2010) 80 ACSR 585 Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 Australian Securities and Investments Commission v Marco (No 5) [2020] FCA 1512 BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612 Britax Childcare Pty Ltd v Infa Products Pty Ltd (2016) 115 ACSR 322 Clean Energy Regulator v E Connect Solar & Electrical Pty Ltd [2023] FCA 1082 Commonwealth of Australia (Department of Education, Skills and Employment) v Phoenix Institute of Australia Pty Ltd (in liq) [2020] FCA 937 Easey v Grosvenor Constructions (NSW) Pty Ltd (2005) 54 ACSR 820 GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 Habrok (Dalgaranga) Pty Ltd v Gascoyne Resources Ltd (2020) 149 ACSR 1 Hill v Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to a deed of company arrangement) [2018] NSWSC 478 Hopkins v AECOM Australia Pty Ltd (2012) 91 ACSR 391 In the matter of ACN 004 410 883 Ltd (formerly Arrium Limited) (in liq) [2023] NSWSC 461 J F Keir Pty Ltd v Priority Management Systems Pty Ltd (admin apptd) [2007] NSWSC 748 Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed) (No 2) [2019] FCA 382 Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 285 ALR 207 Linen House Pty Ltd v Rugs Galore Australia Pty Ltd [1999] VSC 126 Mediterranean Olives Financial Pty Ltd v Loaders Traders Pty Ltd (No 2) (2011) 82 ACSR 300 Medtel Pty Ltd v Courtney (2003) 130 FCR 182 Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123 Mehan v Arrium Ltd (Formerly Onesteel Ltd) [2016] NSWSC 1680 Melhelm Pty Ltd v Boka Beverages Pty Ltd (in liq) (2019) 138 ACSR 95 MXJ v Company X (admin apptd) [2023] VSC 42 Northwalker Realty Pty Ltd v TFM Chatswood Land Pty Ltd [2022] NSWSC 1407 Public Trustee (Qld) v Octaviar Ltd [2009] QSC 202 Pybar Mining Services Pty Ltd v Challenger Gold Operations Pty Ltd [2018] SASC 156 Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 Re Nillumbik Community Church Incorporated (In Administration) [2010] VSC 136 Re Senvion GmbH (No 2) (2019) 140 ACSR 20 Re Windows on the World Steel Windows Pty Ltd (In Administration) [2020] VSC 880 Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 2) [2023] NSWCA 246 Sanders v Probuild Constructions (Aust) Pty Ltd [2023] WASC 317 Sev.en Gamma a.s v IG Energy Holdings (Australia) Pty Ltd [2023] NSWSC 1032 Shangri-La Construction Pty Ltd v GVE Hampton Pty Ltd (in liq) (2021) 152 ACSR 19 Sparks (Administrator), in the matter of IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) [2023] FCA 403 Sparks, in the matter of IG Energy Holdings (Australia) Pty Ltd (No 3) [2023] FCA 1002 Sparks, in the matter of IG Energy Holdings (Australia) Pty Ltd [2023] FCA 538 Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 8) [2020] FCA 1344 Toll Holdings Ltd v Stewart (2016) 338 ALR 602 Tucker as joint and several administrator of Allegiance Mining Pty Ltd (Recs and Mgrs Apptd) (Subject to Deed of Company Arrangement) v Su [2022] WASC 178 Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702 Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 Zervas v Burkitt [2019] NSWCA 112 Division: General Division Registry: Queensland National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Number of paragraphs: 227 Date of hearing: 22 – 23 January 2024 Counsel for the Plaintiff: Mr C Withers SC with Mr M Gvozdenovic Solicitor for the Plaintiff: Quinn Emanuel Urquhart & Sullivan Counsel for the Defendants: Mr SK Dharmananda SC with Mr CEA Hibbard Solicitor for the Defendants: Gilbert + Tobin ORDERS QUD 541 of 2023 BETWEEN: SEV.EN GAMMA A.S. Plaintiff AND: IG POWER (CALLIDE) LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 First Defendant RICHARD J HUGHES IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 Second Defendant GRANT D SPARKS IN HIS CAPACITY AS JOINT AND SEVERAL ADMINISTRATOR OF IG POWER (CALLIDE) PTY LTD (ADMINISTRATORS APPOINTED) ACN 082 413 885 Third Defendant order made by: DERRINGTON J DATE OF ORDER: 29 January 2024 THE COURT ORDERS THAT: 1. Pursuant to s 440D(1)(b) of the Corporations Act 2001 (Cth) (the Act), the plaintiff be granted leave, nunc pro tunc, to begin these proceedings. 2. Pursuant to s 447A of the Act, John Richard Park and Benjamin Peter Campbell of FTI Consulting be appointed as additional administrators of the first defendant (the Special Purpose Administrators). 3. Pursuant to s 447A of the Act, the Special Purpose Administrators appointed under Order 2 be empowered to carry out the functions specified in Annexure A to these Orders. 4. The Special Purpose Administrators be entitled to exercise, solely for the purposes of carrying out the functions specified in Annexure A to these Orders, all the powers conferred on an administrator by s 437A and Div 8 of Pt 5.3A of the Act. 5. Pursuant to s 447A of the Act, the second and third defendants (in their capacity as primary administrators of the first defendant): (a) subject to these Orders, must refrain from exercising any of the powers of the Special Purpose Administrators specified in Annexure A to these Orders, except with the prior written consent of the Special Purpose Administrators or by leave of the Court; and (b) must use their reasonable endeavours to assist the Special Purpose Administrators to exercise the powers given to them by Order 4, including by providing documents or information previously prepared or obtained by them in investigating or pursing any claim in relation to the matters set out in Annexure A to these Orders. 6. Pursuant to s 447A of the Act, ss 443D – 443F of the Act do not apply in the appointment of the Special Purpose Administrators and the Special Purpose Administrators: (a) are not entitled to be indemnified out of the first defendant's property; and (b) do not have a lien over the first defendant's property. 7. The Special Purpose Administrators and the parties have leave to apply to the Court for any further or other order or other relief to which they might be entitled arising from the reasons for judgment delivered herewith. 8. Despite the content of Annexure A to these Orders: (a) nothing therein prevents the second and third defendants from making an application to the Court to extend the period for convening the second meeting of the creditors of the first defendant; and (b) the Special Purpose Administrators must give to the second and third defendants: (i) copies of any reports that they produce in relation to any investigations undertaken in relation to the matters referred to in Annexure A; (ii) written advice as to the progress of any investigations being undertaken as is reasonable requested by the second and third defendants. 9. The parties are to be heard on the question of costs. 10. The parties have liberty to apply. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. Annexure A 1. Conduct investigations into the cause or causes of the two catastrophic incidents at the Callide C power station, specifically, the explosion of the unit C4 turbine on 25 May 2021 and the partial collapse of the unit C3 cooling tower on or around 31 October 2022 (the Incidents), and any claims available to the first defendant against any party arising out of, relating to or in any way connected with the Incidents. 2. Prepare, make an application for, and conduct with the assistance of legal representatives of their choosing, such examinations under ss 596A and 596B of the Act and obtain such orders for production pursuant to s 579(9) of the Act as are necessary or desirable for the purposes of the investigations referred to herein. 3. Engage a suitably qualified technical expert or experts to assess the cause or causes of the Incidents to the extent that it is necessary or desirable to do so for the purposes of the investigations referred to herein. 4. Give consideration to the claims available to the first defendant or its administrators in relation to the Incidents arising from the investigations and examinations referred to in this Annexure, and from examination of the books and records of the first defendant, including obtaining and considering legal advice in respect of any such claims. 5. Commence and prosecute any legal proceedings in the name of the first defendant or as administrator of the first defendant arising from the investigations and examinations referred to herein, and from the examination of the books and records of the first defendant. 6. Commence and/or defend any legal proceedings in the name of the first defendant or as administrator of the first defendant that concern a third party seeking to acquire IGPC's Interest in the joint venture, as that term is defined in the Joint Venture Agreement dated 11 May 1998. 7. Take possession of such books and records of the first defendant as the Special Purpose Administrators deem necessary for the purpose of the investigations and examinations referred to herein, subject to the proviso that the Special Purpose Administrators will provide the second and third defendants all reasonable access to those books and records and the second and third defendants are permitted to make such copies of them as they see fit. 8. Undertake such further or other matters in relation to the administration and affairs of the first defendant as the Court considers appropriate and so orders. This includes, for the avoidance of doubt, making an application to extend the administration of the first defendant. 9. Make an application pursuant to ss 442A and/or 447A of the Act, and/or s 90-15 of Sch 2 to the Act, that they be justified in executing, on their own behalf as Special Purpose Administrators and on behalf of the first defendant, a funding and indemnity deed. REASONS FOR JUDGMENT DERRINGTON J: Introduction 1 The Callide Power Station, located at Biloela, is one of Queensland's major power stations. It is a coal-powered electricity generator comprised of two power plants, Callide B and Callide C, each of which has two generating units. At Callide C, those units are referred to as units C3 and C4. On 25 May 2021, the turbine of unit C4 suffered a kinetic disintegration that resulted in an explosion. Following that, unit C4 went offline and ceased exporting power to the grid. It has remained offline since. About 18 months later, on 31 October 2022, part of the unit C3 cooling tower suffered a significant structural failure. As a result, it went offline as well. It also has not yet resumed electricity production. 2 Callide C is operated by an unincorporated joint venture between the first defendant, IG Power (Callide) Ltd (IGPC), and Callide Energy Pty Ltd (CEPL). CEPL is wholly owned by CS Energy Limited (CSEL), which is ultimately owned by the Queensland Government. Pursuant to a Joint Venture Agreement dated 11 May 1998 (as amended over time), IGPC and CEPL each had a 50% interest in the business operations. Needless to say, the cessation of the two power units has caused substantial loss to both. 3 The plaintiff, Sev.en Gamma a.s. (which, for convenience, will be referred to as Sev.en), has an economic interest in IGPC, albeit one derived from sequential shareholdings through a number of companies. Broadly speaking, it has a 25% economic interest in IGPC. It also has an economic interest as a creditor of one of its subsidiaries which is, in turn, a substantial creditor of IGPC. There was no dispute between the parties that Sev.en held these interests, though a question was raised as to whether they were sufficient to accord Sev.en standing to make the present application. 4 By this application, Sev.en seeks the appointment of special purpose administrators pursuant to s 447A of the Corporations Act 2001 (Cth) (the Act) to conduct investigations into the failures at the Callide C plant. At the epicentre of Sev.en's application is the somewhat unsurprising proposition that, in the ordinary course of events, one would not have expected the catastrophic failures of units C3 and C4 to have occurred but for some negligent or inappropriate maintenance or operational control. Relevantly, at the material times, CSEL was contracted as the "Operator" of Callide C. By its contract, referred to as the "Operation and Maintenance Agreement", it had responsibility for the operation, maintenance and repair of the Callide C units. Its obligations under its contract of engagement were what one might expect for such an important piece of infrastructure. There is a not unreasonable inference that CSEL, as the entity having the management and control of the units, may have breached its contractual obligations or common law duties, and those breaches may have been, in some way, causative of the two units going offline. 5 It must be stressed that it is far from certain that CSEL bears any responsibility for the damage to the units, or the loss of generation and any subsequent economic loss suffered by the joint venture participants. That is a matter to be determined, if at all, in the future. Nevertheless, for present purposes, it is possible to draw an inference that failures of the kind that ultimately took place are unlikely to have occurred, in the ordinary course, to power generating units that were properly maintained and operated. 6 Sev.en is naturally interested in ascertaining whether IGPC is entitled to recover damages from CSEL in respect of the losses that have occurred consequent upon the failures of units C3 and C4. 7 Whether such claims exist is particularly important, as IGPC has now been placed into administration and any such claims will add to its value should the company, its business or its assets be sold pursuant to a deed of company arrangement (DOCA). More significantly, CEPL has sought to enforce its right under the Joint Venture Agreement to acquire ICPC's interest. Again, the value of any claim against CSEL will or may be relevant to the price at which IGPC's interest is transferred. 8 Necessarily, ascertaining whether such claims exist will involve identifying the cause of the incidents that occurred in relation to units C3 and C4 and determining whether any party, such as CSEL, has any legal liability for their occurrence. Further, the valuation of any such claims necessitates some investigation into the possibility of recovery and any impediments thereto. 9 Sev.en alleges that IGPC's administrators have failed to perform their statutory obligations to investigate the cause of the two catastrophic failures and the existence of any claims against CSEL. In particular, it is concerned that those administrators have been funded by CEPL whose parent company, CSEL, is obviously the potential defendant for any claim. 10 Sev.en also asserts that the consequences of the administrators' failure to investigate to date are compounded by CEPL's assertion of its claimed right to acquire compulsorily IGPC's "Interest" in the joint venture. On 30 May 2023 or 1 June 2023, CEPL gave notice that it was exercising its right to acquire that Interest. Upon receipt of that notice, the administrators of IGPC engaged valuers to undertake a valuation. The value that they derive is to be used as the price in the compulsory acquisition process, which is now drawing to completion, and Sev.en is concerned both that the administrators have capitulated to CEPL's assertion of a right to acquire IGPC's interest and that the administrators' failure to investigate IGPC's claims against CSEL will result in IGPC's Interest being transferred at an undervalue. 11 The administrators have indicated that they expect to conclude their investigation into any potential claims available to IGPC by the time that they issue their statutory report to creditors, which is intended to be released on 23 February 2024. It was submitted by Sev.en that this was a startling revelation, given that the administrators have failed to use their statutory powers to investigate the causes of the catastrophic incidents and thus to identify and assess the value of any potential claims that IGPC may have. 12 It is in these circumstances that Sev.en seeks the appointment of special purpose administrators who are to be tasked with investigating the causes of the failures of units C3 and C4, as well as any claims that IGPC may have arising out of or relating to those incidents. By this relief, it seeks to remedy what it says was the current administrators' failure to perform their duties. 13 The matter was brought before the Court on an urgent basis, and it was necessary for it to be determined with some haste: evidently, if it was found to be appropriate to appoint special purpose administrators, then any delay in doing so would tend to imperil the assets of IGPC and, necessarily, its creditors. The production of these reasons has been expedited and, accordingly, they are issued subject to correction and revision. Leave to proceed 14 Sev.en requires leave to proceed pursuant to s 440D(1)(b) of the Act. As it has already commenced the action, that leave must be granted, if at all, nunc pro tunc. 15 Ultimately, there is no basis upon which to refuse the application for leave. The present action is brought to correct what is seen to be some delinquency in the administrators' conduct. It is not brought to assert an antecedent right against the company or its property, which would hinder the due process of administration, involve the administrators in complex litigation, or amount to an attempt to circumvent the administration process. 16 Where circumstances exist that demonstrate that the administrators, who are tasked with performing the duties imposed by Pt 5.3A of the Act, are failing to meet the required standards, it is for the benefit of all creditors that an application be made to ensure that the statutory process is fulfilled. This is such a case and, as the discussion that follows shows, the application is well founded. Further, the action is for specific relief, which does not involve the targeting or diminution of IGPC's assets. 17 It follows that the present application is an archetypical instance in which leave to proceed should be granted. 18 At the hearing, counsel for the defendants placed reliance on the recent decision of Gleeson JA in Rialto Sports Pty Limited v Cancer Care Associates Pty Limited; CCA Estates Pty Limited; Davjul Holdings Pty Limited; Armmam Pty Limited (No 2) [2023] NSWCA 246 [18] – [24] (Rialto Sports). There, his Honour noted (at [18]) that there are "two general themes" underlying the need for leave under s 440D of the Act. First, the undesirability of an administrator being distracted from his or her statutory duties and being required to incur the expense associated with litigation. Secondly, the undesirability of permitting one creditor to advance his or her own interests in respect of some disputed matter at the expense of, or at least ahead of, the interests of creditors more generally; that includes to prevent the creation of preferences and interference in the disposition of the property of the company whilst under administration. 19 Drawing upon this first theme, the defendants submitted that the Court should remain cautious when exercising the discretion under s 440D(1)(b), so as to avoid creating a distraction for the administrators in the performance of their statutory obligations: Zervas v Burkitt [2019] NSWCA 112 [16]. Whilst that general proposition can be accepted, it is more relevantly applied to claims that are made against the company under administration in respect of antecedent rights and liabilities. It does not apply with anywhere near the same force where the question is one concerning the conduct of the administration itself. 20 In relation to the second theme, counsel for the defendants submitted that, by this application, Sev.en, which is not even a creditor, seeks to impose its own particular point of view as to how the administration should be conducted. He suggested that, in their report to creditors, the administrators will address matters of relevance so that they may decide whether any available proposal is one that they view as sensible and appropriate for the resolution of the administration. There are difficulties with this proposition. First, the suggestion that the administrators will adequately address all matters of relevance in their report to creditors, which must be taken to include IGPC's potential causes of action, is difficult to accept. As the ensuing reasons reveal, the administrators provided scant evidence to the Court concerning the work that they have undertaken or the views they have formed in relation to IGPC's causes of action. Whilst the general proposition offered by Gleeson JA is no doubt correct, it is, again, not so relevant in this case. By seeking the appointment of the special purpose administrators, Sev.en does not attempt to advance its own interests at the expense of IGPC's creditors, or impose its own particular view as to how the administration should be conducted. As these reasons reveal, Sev.en's concerns about the adequacy of the administrators' investigations are valid. In addition, the proposed investigations will come at no cost to the company or its creditors, and IGPC's creditors stand to benefit from an adequate investigation into the failures that occurred and a valuation of the company's potential causes of action. 21 The defendants submitted that, in approaching the exercise of the power under s 440D(1)(b), the Court should consider the factors identified by Tobias JA (with whom Beazley and Giles JJA agreed on this point) in Attard v James Legal Pty Ltd (2010) 80 ACSR 585 at 614 [146] – [147] (Attard). The factors identified in the first of those paragraphs were drawn expressly from the judgment of Rein AJ in J F Keir Pty Ltd v Priority Management Systems Pty Ltd (admin apptd) [2007] NSWSC 748 (J F Keir) at [8]. However, Tobias JA specifically recognised that the factors were "to be taken into account in respect of an application for leave under s 444E(3)" — that is, a different "leave to proceed" provision of the Act. 22 Section 444E(3) is analogous to ss 471B and 500(2) of the Act, and essentially the same principles apply to all three provisions: see Clean Energy Regulator v E Connect Solar & Electrical Pty Ltd [2023] FCA 1082 [8] – [9]. However, the provision the subject of present concern, s 440D(1)(b), has received different treatment. In Meehan v Stockmans Australian Cafe (Holdings) Pty Ltd (1996) 22 ACSR 123, Lehane J stated as follows (at 125) in dealing with s 444E(3): So far as counsel and I have been able to discover, there is no reported authority as to the principles to be applied on an application for leave under subs 444E(3). Counsel proceeded on the basis that the principles applicable are those which the court applies when considering a similar application in a winding up by the court, under s 471B. No doubt deeds of company arrangement may take many forms, and different considerations may apply in other cases, but in this case (and I shall return to the general effect of the present deed) I think the basis on which counsel proceeded was right. Particularly I do not think that the very strict approach which may be apt where an administrator has been appointed under Div 2 of Pt 5.3A, having regard to the interim character of such an appointment (Foxcraft v Ink Group Pty Ltd (1994) 15 ACSR 203), is appropriate here. 23 His Honour's judgment has been cited in subsequent cases as authority for the proposition that the test to be applied in determining applications for leave to proceed against a company in administration under s 440D is more stringent than the test to be applied in the context of an application under s 444E: see, eg, Easey v Grosvenor Constructions (NSW) Pty Ltd (2005) 54 ACSR 820, 821 [4]; Mehan v Arrium Ltd (Formerly Onesteel Ltd) [2016] NSWSC 1680 [11]; Adelaide Brighton Cement Ltd v Concrete Supply Pty Ltd (subject to deed of company arrangement) (2018) 124 ACSR 389, 396 [22]; Hill v Esplanade Wollongong Pty Ltd ACN 141 133 708 (subject to a deed of company arrangement) [2018] NSWSC 478 [19]; Sanders v Probuild Constructions (Aust) Pty Ltd [2023] WASC 317 [21] – [28]. 24 Nevertheless, the list of factors set out in Attard has been applied from time to time in the context of applications under s 440D(1)(b): see, eg, Hopkins v AECOM Australia Pty Ltd (2012) 91 ACSR 391, 396 [20]; Toll Holdings Ltd v Stewart (2016) 338 ALR 602, 615 [55]; Pybar Mining Services Pty Ltd v Challenger Gold Operations Pty Ltd [2018] SASC 156 [16]; Re Senvion GmbH (No 2) (2019) 140 ACSR 20, 33 [48]; Australian Securities and Investments Commission v Marco (No 5) [2020] FCA 1512 [20]; Northwalker Realty Pty Ltd v TFM Chatswood Land Pty Ltd [2022] NSWSC 1407 [8]. In light of the authorities set out above, the correctness of that approach is perhaps arguable, as is the correctness of the statement in the headnote to Attard (as reported in the Australian Corporations & Securities Reports) that "[t]he factors to be considered in an application for leave to continue proceedings against a company in administration are summarised in J F Keir Pty Ltd v Priority Management Systems Pty Ltd (admin apptd) [2007] NSWSC 748 at [8]: at [146], [147]". In this respect, it is important to have regard to what was said by way of background at 596 – 597 [62] of Tobias JA's judgment, as follows: The Orlando proceedings were listed for hearing in the District Court for 4 days commencing 26 November 2001. Mr Jacobs was briefed to appear instructed by Ms Cunningham. The proceedings did not conclude in the 4 days allocated and were adjourned to 21 January 2002. Her Honour noted (at [51]) that according to Mr Attard's evidence, he drew attention to the fact that CMG was subject to the deed and that, by reason of s 440D of the Corporations Act, proceedings could not be commenced or continued against CMG without the leave of the Supreme Court or without the written consent of Mr Hillig, the administrator under the deed. In fact, s 444E(3) applied, as CMG was then subject to the deed. Section 440D(1) had applied from the commencement of CMG's administration until the entry into the deed, and referred to the administrator's written consent or the leave of the court. Section 444E(3) referred only to the leave by the court. This prompted Mr Jacobs to notify the District Court judge who then adjourned the hearing, apparently indefinitely. (Emphasis added). 25 The apparent effect of this passage is that the provision properly to be applied in the case was s 444E(3), and this would explain the later reference to the factors summarised by Rein AJ in J F Keir. Although Tobias JA subsequently remarked (at 600 – 601 [83]) that an erroneous reference to s 440D rather than s 444E in the reasons of the primary judge did not matter because "their effect was relevantly the same", it should not be thought that his Honour intended by these passing words to equate the principles relevant to an application under the former provision to those relevant to an application under the latter. 26 Ultimately, it is unnecessary for present purposes to draw any final conclusion as to the appropriateness of having resort to the factors listed in Attard to an application for leave under s 440D(1)(b). As explained below, those factors are met in this case. If a more stringent test is to be applied — and it is arguable whether or not it ought to be: see, generally, Larkden Pty Ltd v Lloyd Energy Systems Pty Ltd (2011) 285 ALR 207, 214 – 215 [33] – [39] — then I find that it, too, is met. The present circumstances justify displacement of the stay for which s 440D(1) provides by default. 27 The first of the factors identified in Attard is whether the claim has a solid foundation and gives rise to a serious dispute. Here, as the reasons that follow demonstrate, there is a solid claim — indeed, it is one on which Sev.en should succeed. 28 The second factor is whether the administrator "would be unreasonably distracted from his or her statutory duties and be obliged unnecessarily to incur substantial legal costs". The present application is confined both in terms of its scope and its length. The administrators were entitled to file a submitting appearance to it, had they been so minded. Given that the application appears to originate from disputation between two joint venturers and their associated companies, the administrators could well have left it to those parties to engage in the relevant contest. In any event, the result of the application is that it affords the administrators relief in relation to the performance of their statutory duties: the special purpose administrators will undertake a separate and distinct part of the administration at no cost to the administration generally. 29 The third factor referred to in Attard is "whether the company is insured against the liability that is the subject of the proceedings". This factor emphasises that the requirements under consideration are usually directed to claims that are made against the company in relation to its pre-administration obligations, rather than claims that are directed to the administration itself. 30 The fifth factor (the fourth not being relevant) is whether the applicant will suffer any disadvantage if leave is not given. That would most certainly be the case here, where Sev.en is likely to face adverse financial consequences if IGPC's potential claims are not adequately investigated. Coincidently, IGPC is likely to benefit from the relief that Sev.en seeks, as it will receive some certainty as to the identity and value of its assets. 31 The sixth factor is "whether there are good reasons for allowing a creditor to depart from the general intention of Pt 5.3A, which is that a creditor ought not be able to take action against the company in such circumstances". This factor emphasises that the concerns about the grant of leave to proceed are generally directed to the bringing of proceedings by those with antecedent claims against the company, originating prior to the administration. That is not the case here. 32 The factors identified in Attard confirm that leave ought to be granted. 33 The defendants suggested that there was "substantial and unexplained" delay on the part of Sev.en in commencing these proceedings, which in their submission must tell against the grant of leave. As the reasons below reveal, however, there was no relevant delay on the part of Sev.en in making this application that ought properly to impact upon the grant of leave. 34 Accordingly, an order should be made granting leave nunc pro tunc for Sev.en to bring the current proceedings. Relief sought 35 By its originating process, Sev.en seeks the appointment of special purpose administrators to conduct investigations into the causes of the two catastrophic failures at the Callide C power plant. Those investigations include: making an application for public examinations as necessary, engaging suitably qualified technical experts, considering the claims available to IGPC, and commencing and prosecuting any proceedings. Sev.en undertakes to fund that process in the event that its application is successful. Other orders are sought which are intended to create a regime in which the special purpose administrators might carry out their activities unhindered by the current administrators. The evidence and factual background 36 Sev.en relied upon five affidavits, being the affidavits of: Petr Šlechta affirmed 28 November 2023 (First Šlechta Affidavit); Elan David Sasson affirmed 29 November 2023 (Sasson Affidavit); John Richard Park affirmed 29 November 2023 (Park Affidavit); Nicholas Jacob Lennings affirmed 8 December 2023 (Lennings Affidavit); and Petr Šlechta affirmed 9 January 2024 (Second Šlechta Affidavit). 37 At the hearing, the defendants relied upon four affidavits, being the affidavits of: Megan Bridget Lowe affirmed 2 January 2024 (Second Lowe Affidavit); Grant Dene Sparks affirmed 8 December 2023 (First Sparks Affidavit); Grant Dene Sparks affirmed 2 January 2024 (Third Sparks Affidavit); and Grant Dene Sparks affirmed 17 January 2024 (Fourth Sparks Affidavit). 38 Whilst, to a large extent, the factual background was not in dispute, it is appropriate to set it out in some detail. The following facts are taken substantially from the "amended agreed factual background" prepared by Sev.en. Although the defendants initially complained that this factual background had improperly been characterised as having been "agreed", they did not ultimately dispute that the facts were correct at least for the purposes of this application (save for certain specific points, which have been incorporated into the below reproduction of those facts). Sev.en's relationship with IGPC and Callide C 39 As mentioned above, Sev.en's interest in IGPC is indirect. There exists an intermediate holding structure, within which it is the ultimate shareholder. In summary, that structure is as follows: (a) Sev.en holds a 50% interest in InterGen N.V. (IGNV), a company incorporated in the Netherlands. The other 50% shareholder of IGNV is Huaneng-Yudean NV (HY), also incorporated in the Netherlands; (b) HY is 60% owned and controlled by China Huaneng Group Co Ltd (CHG), a State-owned electricity company based in the People's Republic of China. HY's minority non-controlling interest of 40% is owned by Guangdong Energy Group Co Ltd, which itself is co-owned by CHG; (c) IGNV (through a series of intermediate holding companies including Emberock Australian Holdings (UK) Limited, which was at the time of the administrators' appointment named InterGen Australian Holdings (UK) Limited) holds a 50% interest in OzGen (UK) Limited (OzGen) with the other 50% held by Union Star Development Limited, being a wholly owned subsidiary of CHG; (d) OzGen owns Genuity Pty Ltd (Genuity), which is the Australian parent of IG Energy Holdings (Australia) Pty Ltd (IEHA), IG Power Holdings Limited (IGPH), IG Power Marketing Limited (IGPM) and IGPC. All those subsidiaries of Genuity are in administration under the control of Mr Sparks and Mr Hughes of Deloitte Financial Advisory Pty Ltd; (e) through the intermediate holding structure described above, Sev.en has a 25% economic interest in IEHA which owns 100% of the shares in IGPH, and IGPH owns 100% of the shares in IGPC, which has a 50% interest in Callide C through the joint venture; and (f) from this, it can be discerned that Sev.en has a 25% economic interest in IGPC, and an effective 12.5% interest in the joint venture. 40 Sev.en is also a major creditor of IEHA. On about 25 April 2022, those parties entered into a Credit Agreement pursuant to which the former advanced to the latter a line of credit of up to EUR 25 million in order to allow the latter to lend funds to IGPC for financing certain margins on Callide C hedging contracts. The credit limit was subsequently increased to EUR 75 million. 41 The evidence indicated that, as at 31 March 2023, the total amount payable under the Credit Agreement was $88,428,433 (approximately EUR 54.4 million), with the result that Sev.en remains a creditor of IEHA in at least that amount. IEHA on-lent to IGPC the funds that it received, and the evidence suggests that none has been repaid to date. The Callide Power Project contractual framework 42 The contractual framework that supports the operations of Callide C can be summarised as follows: (a) Callide C is owned and operated by an unincorporated joint venture between CEPL and IGPC. The parties' rights and obligations are set out in the Joint Venture Agreement; (b) pursuant to the parties' agreement, Callide Power Management Pty Ltd (CPM) was appointed as the "Manager" of Callide C. Each of IGPC and CEPL own 50% of the shares of CPM; (c) the Operation and Maintenance Agreement was entered into by CPM, as agent for the joint venture participants, and it engaged CSEL, as Operator, to operate and maintain Callide C; (d) the services that were to be provided by CSEL under the Operation and Maintenance Agreement, as set out in its Schedule 3, included: (i) operating, maintaining, and repairing the Facility in accordance with the standards and requirements of the Operation and Maintenance Agreement; (ii) providing the skills and resources necessary for the provision of the Services; (iii) optimising the effective life of the Facility; (iv) undertaking reviews of and (where appropriate) updating the methods of operation and maintenance employed having regard to world best practice; (v) performing routine maintenance and testing of plant and equipment; (vi) maintaining operating and maintenance records for plant and equipment; (vii) reporting on the performance of the Facility and providing forward projections on operations and maintenance; (viii) maintaining sufficient personnel, expertise, and resources and using best endeavours to maximise returns to the Station Owner; (e) pursuant to a Station Services Agreement, CPM (as agent for the joint venture participants) also engaged CSEL to provide certain station services required for the operation of Callide C. The catastrophic failures at Callide C and its present lack of generation capacity 43 On 25 May 2021, the unit C4 turbine suffered a kinetic disintegration which resulted in an explosion at the power station. As a result, C4 went offline and ceased exporting power to the grid, with the consequence that power generation from Callide C was reduced to approximately 400 MW. C4 has been offline ever since, such that it is now nearly three years since it was properly operational. It is not expected to return to unrestricted operations until at least July 2024. 44 On or about 31 October 2022, part of the unit C3 cooling tower suffered a significant structural failure, as a result of which the Callide Power Station lost connectivity to the electrical grid and unit C3 went offline. Unit C3 has been offline since 31 October 2022, and is not expected to return to unrestricted operations until at least February 2024. 45 The cost of restoring units C3 and C4 to full capacity is estimated to be in the vicinity of $390 million, with one of the major contributing factors being that the cooling towers for both units C3 and C4 had to be demolished. 46 There did not appear to be any real doubt that returning units C3 and C4 to service is important to the Queensland electricity market, given Callide's historical contribution to the overall electricity supply. 47 It was also not doubted that returning both units to service is important to IGPC, which has been unable to generate any income, given that its only source of revenue was the electricity generated from Callide C. 48 On 18 October 2023, the Australian Energy Regulator (AER) announced that CSEL had operated the Callide Power Station without the required regulatory approval at the time the failure of unit C4 occurred and issued CSEL with a $67,800 fine for the breach. The report of Dr Brady 49 In June 2021, CSEL commissioned a forensic engineer, Dr Sean Brady, to conduct an investigation into the causes of the unit C4 failure. Despite the passage of more than 30 months, no report by Dr Brady has been published by CSEL, and Sev.en has not been provided with any information about the progress of the report, nor any interim drafts. 50 In the course of the hearing, it became apparent that the stage of review reached by Dr Brady is presently unclear. It may be that he has finalised his report and delivered it to CSEL, or he may still be in the course of completing it. The fact that the administrators were not in a position to give any clear evidence about that matter suggests that they have no real control over its production and no direct knowledge of how it might be produced, or what it might say. IGPC's rights in relation to Callide C JVA Sale Process 51 Under the Joint Venture Agreement between IGPC and CEPL, a participant becomes a "Defaulting Participant" if, inter alia, it becomes insolvent: cl 7.2(a). 52 IGPC became a Defaulting Participant on 8 April 2023 for the purposes of cl 7.2(a) — that date being 14 days after it appointed Mr Hughes and Mr Sparks as administrators. 53 Upon IGPC becoming a Defaulting Participant, CEPL (as a "Non-Defaulting Participant"): (a) had exclusive power to make decisions at meetings of the Management Committee; and (b) immediately had a right (though not the obligation) to compulsorily acquire IGPC's "Interest" following service of a "Notice of Election": cl 7.8. This was referred to by the parties as the "JVA Sale Process" or "NOE Process". 54 On 30 May 2023 or 1 June 2023, CEPL gave notice to IGPC that it was exercising its rights to acquire IGPC's Interest in the Callide Power Project pursuant to the JVA Sale Process. 55 Upon the giving of that Notice, the procedure contained in cls 7.8 – 7.19 of the Joint Venture Agreement was enlivened, pursuant to which the acquisition of IGPC's Interest must be completed within 180 days following the Notice, or such further time as is reasonably allowed by CEPL: cl 7.9. 56 The purchase price payable by CEPL is the amount equal to the lesser of the "Book Value" (as calculated in accordance with cl 7.14) and the "Fair Value" (as calculated in accordance with cl 7.13) less all "Valuation Costs", with that assessment to be completed within 60 days: cls 7.8(a), (f), (g); 7.9; 7.12(b); 7.13; 7.14. 57 The administrators have engaged expert valuers and auditors to calculate the above values. The auditor firm, RSM, is to perform certain calculations in relation to the Book Value and Fair Value. 58 The difference between the Book Value and Fair Value could be significant. The administrators' submissions to the valuers (appointed under the Joint Venture Agreement) demonstrate the potential for a substantial difference in those values of IGPC's Interest. [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] [Redacted] 59 Once the Book Value and Fair Value figures are determined, the "Sale Price" will be generated (being the lesser of the two values): cl 7.12(c). Thereafter, IGPC and CEPL must move promptly to complete the sale: cl 7.9. 60 The valuations under the JVA Sale Process are due on 25 January 2024, though CEPL has extended that date to 8 February 2024 to allow it to obtain the necessary approvals, authorisations, and consents. It can be assumed that the JVA Sale Process will complete between 25 January 2024 and 8 February 2024. The NBIO Process 61 The process referred to in these proceedings as the "NBIO Process" involves the administrators seeking non-binding indicative offers (NBIOs) for the restructure or recapitalisation of each of the companies in the IG Group (being IGPC, IEHA, IGPH and IGPM). 62 In general terms the following matters are important to note: (a) CEPL's intention is to advance the JVA Sale Process while, contemporaneously, considering the NBIO Process; (b) the latter process may be implemented through a DOCA, but the options are not limited to such an arrangement; (c) the deadline for submission of any NBIOs was 14 December 2023; (d) the administrators received three proposals, each of which was requested by the proponent to be kept confidential; (e) on 22 December 2023, the administrators notified the proponents of the three NBIOs that they intended to extend the timeframe for the process to enable negotiations to take place with them from 14 December 2023 to 24 January 2024, with exclusive negotiations with the preferred bidder to continue thereafter; (f) after that date, the administrators may proceed by DOCA, or may proceed in some other way; and (g) the NBIO Process plainly includes the benefit of any claims that IGPC may have, with offerors to indicate what they think the claims are worth. This was made clear in the administrators' letter of 27 October 2023, which indicated that any offer should include the value assigned to any claims of IGPC arising from the failures of units C3 and C4. 63 This process has also caused Sev.en some concern, as it is apparent that the administrators have not investigated, for themselves, what those claims are worth. 64 At present, the negotiations under the NBIO Process appear to be ongoing. In relation to the proposals received, the administrators expressed the view that, if the conditions precedent to them were satisfied, and they were accepted at the second meeting of creditors, at least two of them would result in the creditors of IGPC being paid in full. Steps taken by the administrators in the administration 65 On 24 March 2023, being the date that the administrators were appointed to IGPC, Mr Sparks and Mr Hughes were also appointed as the administrators of three related companies: IEHA, IGPH and IGPM. 66 The administrators have been in office for about 10 months. The specific steps that they have taken since their appointment (which were summarised in the Third Sparks Affidavit) include the following: (a) on 5 April 2023, they held the first meeting of creditors of each of the companies under their control; (b) on 11 April 2023, Sev.en entered into a Deed of Cooperation with the administrators under which the latter agreed to cause IGPC to progress the rebuild of Callide C as expeditiously as reasonably practicable. Under the Deed, they have obligations to (inter alia) provide Sev.en with any information or documents relating to the administrations which it reasonably requests; (c) on 21 April 2023, they filed an originating process in this Court seeking orders pursuant to ss 439A(6) and 447A(1) of the Act that the period within which they must convene the second meeting of creditors under s 439A be extended to 1 September 2023. The Court made the orders sought on 28 April 2023 (Sparks (Administrator), in the matter of IG Energy Holdings (Australia) Pty Ltd (Administrators Appointed) [2023] FCA 403); (d) on 22 May 2023, the administrators filed a further interlocutory process seeking directions under ss 443A and 447A of the Act that they would be justified and acting reasonably in entering into, and limiting their liability in respect of, the proposed funding arrangements and other contracts relating to the rebuilding of Callide C. The Court made the orders sought on 25 May 2023 (Sparks, in the matter of IG Energy Holdings (Australia) Pty Ltd [2023] FCA 538). In an affidavit of Mr Hughes on which the administrators relied, it was deposed, inter alia, that they and CEPL had discussed an alternative solution to the funding term sheet, which included CEPL issuing a letter of comfort. Sev.en has not seen the terms of the letter of comfort in relation to the rebuilding of Callide C; (e) on 8 August 2023, they filed a further interlocutory process seeking, inter alia, orders to further extend the period within which they must convene the second meeting of creditors until 1 March 2024; judicial advice that they were justified and acting reasonably in entering into, and causing IGPC to enter into, a remittance deed; and orders pursuant to s 447A(1) of the Act limiting any liability incurred with respect to their obligations arising out of the remittance deed. The Court made the orders sought on 11 August 2023 (Sparks, in the matter of IG Energy Holdings (Australia) Pty Ltd (No 3) [2023] FCA 1002); and (f) they accepted a settlement offer from IGPC's insurers for $102.34 million as a final payment (in addition to $2.5 million that had already been paid) in full and final satisfaction of all relevant claims covered by the particular policy. 67 The defendants also drew attention to several other steps taken by the administrators, which were expressed in more general terms. Those are: (a) progressing the "Staged Return to Service", being the rebuild works to units C3 and C4, which are to occur in order to enable operations of the Callide C Power Station to resume. This involves the demolition and rebuild of the power station; (b) defending proceedings commenced by Sev.en in relation to the Credit Agreement between it and IEHA; (c) cooperating with the investigations of the AER; (d) investigating, considering and taking advice on the company's significant contractual obligations (under the Joint Venture Agreement), liaising with the company's shareholders and joint venture partner in relation to the JVA Sale Process and identifying and engaging experts to conduct the relevant valuations; (e) conducting the NBIO Process; and (f) managing "complex arrangements" associated with the sale of electricity, such as IGPM's hedging arrangements. 68 Mr Sparks also deposed that he and Mr Hughes have reviewed the books and records of IGPC and identified multiple reports (many of which were treated as confidential) that have been generated by experts engaged by stakeholders in the Callide Power Project. It is not possible to set out the contents of those reports, or the conclusions that might be drawn from them, in circumstances where the administrators gave no detailed evidence on the matter. 69 Further, Mr Sparks deposed to certain "investigations" conducted by him and Mr Hughes. Amongst other things, that included "participat[ing] in multiple discussions with" certain staff members of Genuity in relation to the incidents at Callide C and undertaking tasks in connection with the insurance proceedings, such as quantifying business interruption losses and property damage suffered as a result of the incidents. 70 Despite these apparent investigations, there was no dispute that the administrators have not commissioned any independent parties to conduct investigations into the failures of either units C3 or C4. There was no explanation proffered by the administrators as to how they might form a view regarding IGPC's potential causes of action without any information surrounding the causes of the failures. Remarkably, counsel for the defendants was unable to reveal, when asked, whether the administrators had even formed a view at this late stage of the administration about the cause of the incidents. 71 On 1 September 2023, Sev.en, through its solicitors, wrote to CEPL's solicitors, expressing its belief that the damage to units C3 and C4 was caused or contributed to by CSEL's breaches of the Operation and Management Agreement and its failure to properly operate and maintain Callide C. Sev.en requested an undertaking from CEPL that it would not seek to complete the JVA Sale Process without first providing it with at least 10 clear business days' prior notice. 72 On or around 7 September 2023, Sev.en put forward a DOCA to the administrators of IEHA. Apparently, it was not accepted. 73 On 14 September 2023, CEPL's solicitors stated that it would not give the undertaking sought by Sev.en on 1 September 2023. 74 On 29 September 2023, Sev.en's solicitors wrote to the administrators' solicitors, expressing Sev.en's concern over their apparent lack of investigation into both the causes of the two catastrophic incidents and the causes of action that IGPC may have against CSEL. The letter stated, in part, that: … in circumstances where the breaches of CEPL's parent company likely caused the failures at the Power Station which resulted in the administration of [IGPC], it would plainly be unconscionable for CEPL to take advantage of those breaches in order to acquire [IGPC]'s interest in the JV pursuant to the JVA Sale Process. However, instead of investigating whether [IGPC] may have claims against CEPL for unconscionable conduct, the Administrators are actively pursuing the JVA Sale Process and are even collaborating with CEPL to amend the terms of the JVA so that the JVA Sale Process can proceed more efficiently. 75 On 18 October 2023, the administrators' solicitors sent a letter to Sev.en's solicitors stating, inter alia, that: (a) the review by Dr Brady was ongoing and the administrators had no detail as to when that report would be delivered; (b) the administrators were receiving legal advice in relation to potential claims arising from the failures of units C3 and C4 which is (or, would be, when provided) confidential and privileged; (c) the administrators had no intention, without the benefit of further investigations, advice, and information, of releasing CEPL or CSEL from any claims that may exist as a result of the incidents. Specifically, it was stated that: We confirm that the Administrators have no intention, without the benefit of further investigations, advice and information, of releasing [CEPL] or CSEL from any claims that may exist as a result of the incidents. The Administrators are aware that such claims will have a bearing on both the value of CEPL's claim against [IGPC] and the value of the assets of [IGPC]. 76 Again, it is worthy of observation that the administrators appeared to place substantial weight on the report of Dr Brady — an expert who had been engaged by the entity most likely to carry responsibility for the damage to units C3 and C4. 77 On 27 October 2023, the administrators wrote to Sev.en, inviting it to submit an offer (an NBIO) for the restructure or recapitalisation of each company in the IG Group, which may be in the form of a DOCA. The process required Sev.en to submit its NBIO by 14 December 2023. The administrators expressly told bidders that the "Offer Value" should provide details: … of the value assigned to any claims of IGPC arising from the incidents at the Callide C Power Station and extensive damage to the Unit C4 and Unit C3 in May 2021 and October 2022 respectively, including any material assumptions made in relation to same. 78 On 2 November 2023, Sev.en's solicitors wrote to the solicitors for the administrators, stating, among other things, that: (a) the administrators had only described the work they had done at a very high level, leaving one to infer that they had not progressed (or not materially progressed) the investigation of the two incidents; and (b) Sev.en had given instructions to commence proceedings seeking orders for the appointment of a special purpose administrator. 79 On 8 November 2023, the administrators, by their solicitors, responded to the letter of 2 November 2023. 80 On 9 November 2023, CEPL advised the administrators that it will exercise its compulsory acquisition right if the administrators put forward a NBIO proposal that is not acceptable to CSEL and CEPL. Further, if the administrators put forward a NBIO proposal that includes the acquisition of IGPC's interest in the joint venture, CEPL will require the administrators to first make an offer to it on the same terms to purchase the interest under cl 9A of the Joint Venture Agreement. 81 In Sev.en's view, this correspondence suggests that CEPL intends to acquire IGPC's interest either through: (i) making its own NBIO offer; (ii) exercising its compulsory acquisition right; or (iii) exercising its first right of refusal under the Joint Venture Agreement. 82 On 30 November 2023, the defendants' solicitors received an email from Sev.en's solicitors which attached unsealed copies of the originating process and Sev.en's evidence. 83 On 5 December 2023, Sev.en's solicitors wrote to the defendants' solicitors, confirming that the proceedings had been listed for hearing on 11 December 2023 and requesting confirmation as to whether the administrators consented to the appointment of the special purpose administrators on the terms set out in the originating process and to the interlocutory orders sought. Sev.en sought an urgent and expedited hearing of its application. 84 On 6 December 2023, the defendants' solicitors wrote to the solicitors for Sev.en, stating that: (a) they opposed the orders sought in the proceedings; (b) they were prepared: … to provide an undertaking substantially in the form of paragraph 5 [of the originating process] until no earlier than 15 January 2024 and thereafter on five business days' notice (c) the final formal proposal by any preferred bidder under the JVA Sale Process was due by 15 January 2024 (though it was later extended), and the convening period of IGPC was extended to 1 March 2024. 85 On that same date, Sev.en, by its solicitors, rejected the defendants' proposed undertaking and proposed an undertaking in the terms set out in paragraph 5 of the originating process, subject to the following amendment (with emphasis added): The first, second and third defendants undertake that they will not grant any releases to any party in connection with, or sell, assign or otherwise dispose of, any claims or potential claims arising out of, relating to or in any way connected with the Incidents (as defined in Item 1 of Annexure A to the originating process) until the determination of the relief sought in the originating process. 86 Later that same date, the defendants' solicitors wrote to Sev.en's solicitors, stating that the defendants rejected Sev.en's proposed amendments to the undertaking, and that any interlocutory order should be conditional upon Sev.en giving the "usual undertaking as to damages". 87 At a case management hearing on 11 December 2023, the Court made timetabling orders for the final hearing to be heard on 22 and 23 January 2024. 88 On 14 December 2023, the administrators provided a copy of IGPC's Valuation Submissions for the JVA Sale Process to Sev.en to allow it an opportunity to provide any feedback. 89 On 18 December 2023, the administrators' solicitors wrote to the solicitors for CEPL and CSEL. They noted that "it is apparent from the NBIOs received by the Administrators … that it will inevitably be necessary to seek an extension of the convening period in the administration of the Company", and that "a short extension of the convening period will facilitate the progression of the DOCA proposals received and may obviate the need for an expedited hearing of the SPA Application in January". For these reasons, the administrators sought agreement from CEPL and CSEL that "they will not take any further steps in the NOE process for the duration of the proposed extension of the convening period (or at least for a period which is substantially coextensive with the proposed extension)". 90 On 19 December 2023, the solicitors for CEPL and CSEL replied to the above letter, rejecting the administrators' requests. Specifically, CEPL and CSEL considered that: (a) the matters set out in the above letter did not provide any (or any sufficient) basis for the contention that it would inevitably be necessary to seek an extension of the convening period; (b) they are not necessary parties to the present proceedings; and (c) any extension would cause significant prejudice to them, including because: (i) CEPL has ongoing obligations pursuant to the NOE Process including the provision of information, and participating in the "Q&A process" with the independent experts engaged by CEPL and IGPC in accordance with the Joint Venture Agreement; and (ii) the extension would also extend the timeframe for which CEPL is required to pay, pursuant to cl 7.11(a) of the Joint Venture Agreement, all of the called sums becoming due and payable by IGPC. An extension of that timeframe is likely to increase the amounts payable by CEPL "by tens of millions of dollars". Sev.en's standing under s 447A(4) of the Act 91 It was not doubted that Sev.en has an economic interest in the outcome of IGPC's administration. That interest derives from Sev.en's shareholding in companies with an interest in IGPC, and because it is a creditor of IEHA, which is a major creditor of IGPC. On the basis of those interests, Sev.en claimed that it fell within the expression "any other interested person", as used in s 447A(4)(f), which provides that such a person may apply for orders under s 447A(1). The defendants, however, submitted that Sev.en's interests were insufficient to make it an interested person for those purposes. 92 The expression "interested person" is not defined and must take its meaning from the context in which it is used. That said, there is nothing in the legislation that suggests that the expression should be given any limited or restricted meaning. So much was recognised by Austin J in Allatech Pty Ltd v Construction Management Group Pty Ltd (2002) 41 ACSR 587 (Allatech). There, Allatech Pty Ltd had brought proceedings under Pt 5.3A (specifically, s 445D) seeking an order terminating a DOCA. Its standing to do so was challenged. Relevantly, standing under s 445D was conferred in materially identical terms to s 447A(4). In these circumstances, Austin J held (at 591 [18]) that the words "other interested person" are "words of wide scope", and that the legislature intended to give standing to apply for relief to a broad class of applicants. His Honour then observed (at 591 – 592 [20] – [21]): In my view, the words "other interested person" in s 445D(2) are intended to encompass applicants whose material rights or economic interests are or may be affected by the operation or effect of the deed of company arrangement which they seek to challenge, at least where the effect is substantial. … An applicant whose substantial economic interests are at stake would be a person whose "interests are affected" … It is enough to say that when material legal rights or pecuniary or other economic interests of the applicant are or may be substantially affected by the matter in issue, the applicant is an "other interested person", however much further those words may extend, … 93 There is a close relationship between ss 445D and 447A, and no reason presents itself as to why Austin J's reasoning in respect of the former provision does not apply equally to the latter. In Re Nillumbik Community Church Incorporated (In Administration) [2010] VSC 136 (Re Nillumbik), Davies J cited Austin J's observations with approval in the context of the application of s 447A. Her Honour observed (at [30]) that "the expression 'interested person' is of wide scope and should be construed liberally in the context of s 447A". See also Habrok (Dalgaranga) Pty Ltd v Gascoyne Resources Ltd (2020) 149 ACSR 1, where Beach J said (at 53 [401], 54 [403]): But in any event, Habrok has standing to bring the application as "any other interested person" pursuant to s 445D(2)(c). The expression "any other interested person" is to be interpreted broadly. And the test is that laid down by Austin J in Allatech, namely, whether the person's material rights or economic interests are or may be affected by the operation or effect of the deed of company arrangement that they seek to challenge. … Further, for similar reasons, Habrok has standing as "any other interested person" under s 447A(4)(f) and as "a person with a financial interest in the external administration of the company" under s 90-20 of the Insolvency Practice Schedule. 94 The decision in Re Nillumbik has been applied or cited with approval in a number of decisions, including: MXJ v Company X (admin apptd) [2023] VSC 42, where it was said (at [40]) that a company director was an "interested person"; Re Windows on the World Steel Windows Pty Ltd (In Administration) [2020] VSC 880 [36], where it was accepted that any unitholder of a trust of which the company in administration was trustee was an "interested person" for the purpose of the section; and In the matter of ACN 004 410 883 Ltd (formerly Arrium Limited) (in liq) [2023] NSWSC 461, where Black J left open the possibility (at [210]) that an "interested person" might be wide enough to include the credit insurer of trade creditors of the company in administration. 95 There is much force in the view that the concept of an "interested person" under s 447A should be accorded a wide application and extend to persons whose economic interests are substantially affected, rather than being limited to those whose legal rights are directly affected. When a company is placed into administration, it is not only creditors or shareholders whose interests are affected. Whilst the denial or alteration of the rights of such persons is no doubt immediate and direct, the detrimental impact on those entities can often have a consequential effect on the economic interests of others. That is especially so when the insolvency of one entity becomes a contagion which spreads to immediate creditors and possibly beyond, thereby financially preventing those immediately affected from taking any action. It may be left to those who are more indirectly affected to seek to remediate any infelicities in the application or use of Pt 5.3A. Similarly, it may be that the entities directly affected by an administration will not take action under s 447A because of their association with interested parties or the administrators. The present case is, perhaps, an exemplar. The main creditors are generally associated with CSEL or the administrators and, as such, are not interested in bringing an application such as the present. The wide wording of s 447A(4) suggests that the legislature recognised that, in the world of commerce, where an almost infinite variety of circumstances might exist, no significant limitation should be imposed on the class of persons who might make an application for relief. 96 On behalf of the defendants, detailed reference was made to the decision in Tucker as joint and several administrator of Allegiance Mining Pty Ltd (Recs and Mgrs Apptd) (Subject to Deed of Company Arrangement) v Su [2022] WASC 178 (Tucker v Su). There, an application was made by the deed administrators of a company, Allegiance Mining Pty Ltd (Allegiance), that they have leave to transfer all of the existing shares in Allegiance to a company referred to as Mallee Resources Limited, which was a condition of a DOCA entered into by Allegiance. Mr Su relevantly sought to be joined as an "interested person" pursuant to s 444GA(2)(c) of the Act, but his joinder was opposed. He was the holder of approximately 13% of the shares in Dundas Mining Pty Ltd (in liquidation) (Dundas), which was the holding company of Allegiance. He was also a related party creditor of Dundas in an amount of $200,000. In essence, Mr Su sought to prevent the DOCA's terms and conditions being carried out because he believed that alternative proposals were available to Allegiance and the members of Dundas would be better off under those proposals than they would be under the existing DOCA. 97 In his reasons refusing to grant Mr Su leave to intervene, Sanderson M identified (at [21]) that the parties had agreed that "subject to modification to reflect the difference in subject matter, Allatech elucidates the proper interpretation of the descriptor 'any other interested person'". The "modification" in question is that concerned with the subject matter of the section giving rise to the Court's exercise of power in respect of which the person is seeking to be a party. For instance, the class of "interested persons" for a section concerned with the setting aside of a DOCA might properly be narrower than the class of persons interested in preventing a DOCA from being entered into. Although Sanderson M ostensibly agreed with the observations of Austin J in Allatech, he sought to narrow the scope of the concept of an "interested person" by the observation (at [27]) that: The better view may be that the reference to 'substantially' refers to materially or significantly impact. In other words, as the interested parties in this case would have it, there must be a direct rather than reflective impact on the party seeking to be joined. … 98 A "reflective" loss is, apparently, a loss sustained by reason of another person sustaining a loss from a wrong — in contrast to a loss that is sustained from wrongful conduct directly. Master Sanderson said (at [29]) that: … With respect, I think that is a proper formulation of the position Mr Su finds himself in. Hartree submits Mr Su's situation, so far as his shareholding in Dundas is concerned, is analogous to one of reflective loss. The reflective loss principle precludes a shareholder from independently seeking to recover loss in an action against a wrongdoer where the claimed loss derives from, and is not independent of, loss suffered by the company which the company itself could recoup in a separate action against the wrongdoer: see Minerology Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105 [260] - [261]. 99 In the result, Sanderson M held (at [39]) that Mr Su's interest was indirect or reflective, with the consequence that he had no standing for the purpose of the application. 100 It is not irrelevant to note that Sanderson M made reference to the decision of the Queensland Supreme Court in Public Trustee (Qld) v Octaviar Ltd [2009] QSC 202 (Octaviar), where the following was observed by McMurdo J (at [8]): It is not disputed that the Public Trustee is a creditor of OL. Accordingly, he has standing to apply for the termination of its deed. The Public Trustee claims to be a creditor of OA. The administrators disagree. But they, and all other parties here, apparently accept that the Public Trustee has standing to apply for the termination of the deed for OA on the basis that he is an "interested person" within the meaning of s 445D(2)(c). As will appear, the interest of the Public Trustee as a substantial creditor of OL makes him an interested person because of the potential impact of the DOCA for OA upon the amount of funds to be distributed to creditors of OL. 101 There, it was accepted that a creditor (the Public Trustee) of a company (OL) was an "interested person" in the setting aside of a DOCA entered into by another company (OA) on the basis that OL would receive an amount from the DOCA entered into by OA. In other words, it was accepted that a creditor of a creditor of a company under a DOCA was an "interested person" when it was asked whether or not the DOCA ought to be set aside. It is, with respect, difficult to see how that scenario can be any different, in the present context, to the example of reflective loss sustained by a shareholder consequent upon a loss to a company. It is also difficult to see how that position is different to that of Mr Su. Moreover, the observations of McMurdo J are consistent with the approach in Allatech. 102 As the submissions of Sev.en identified, Tucker v Su has been neither followed nor cited subsequently. No other court has sought to limit the entitlement to seek relief under s 447A to those whose financial and legal interests are directly affected. With respect, there is no compelling basis upon which to read the expression as involving any analogy to the right to bring a cause of action for loss sustained by a company, in accordance with the reasons of Sanderson M. In keeping with the modern approach to statutory construction, it is inappropriate to impose any judicial exegesis upon the wide words that the legislature has used. In the present context, to do so would be inconsistent with the effect of Austin J's decision in Allatech. 103 Ultimately, due respect should be accorded to the observations of Austin J and his Honour's purposive construction of the statutory language, which concluded that a sufficient impact on economic rights was enough to demonstrate standing, in apparent contrast to a direct impact on legal rights. There is no warrant for reading down the observations of Austin J or for reading into s 447A (or any cognate provision) any word or words of limitation. 104 The decision in Tucker v Su would have the Court read s 447A(4)(f) as if it said "any other directly interested person". It is a significant step to read words into a statutory provision that have the effect of limiting its obvious operation. Here, the application of Sanderson M's approach would effect a substantial limitation on the class of persons who might apply under s 447A for relief in relation to an administration. With respect, no principled basis for doing so was identified in Tucker v Su, and it is difficult to ascertain why the legislature would have intended that a person whose economic interests were significantly and substantially affected by an abuse of the Pt 5.3A process should be denied a remedy under the section, merely because their immediate legal interests or rights were unaffected. Instead, the legislature should be seen as having intended to provide protection from the abuse of Pt 5.3A. Given the wide range of persons who might be impacted by an administration, there is no reason to limit the class of persons who might seek relief. 105 The defendants submitted that to construe liberally the scope of s 447A(4) would be to open the floodgates and allow every single intermediate company in a corporate group to make an application. However, no legitimate reason was advanced as to why the scope of the section should not extend that far — albeit that is not to say that it necessarily does. In any event, it is likely that it will be those entities that are most directly affected by an administration, and that are financially capable, that will seek relief when it is available. Entities whose interests are derivative upon those more immediately affected, meanwhile, will likely stand back and obtain the benefit of any successful action. It is unreasonable to assume that all entities that might have suffered loss from the same original source will reflexively each apply for relief. 106 At the hearing, both parties referred to the New South Wales Court of Appeal's decision in BE Australia WD Pty Ltd v Sutton (2011) 82 NSWLR 336. In that case, the Court had cause to consider Austin J's decision in Allatech. Justice of Appeal Campbell (with whom McColl JA agreed) stated (at 376 [168]) that: In my view, Allatech and Commonwealth v Rocklea Spinning Mills were correctly decided so far as who is an "interested person" within s 445D(2) is concerned. Some statements in them need modification to be applied to the present case. That is because in the context of s 445D(2) an "interested person" is a person who has an interest in whether the court makes an order terminating a DOCA. By contrast, in the context of s 447A an "interested person" is a person interested in whether the court makes the order that is sought under s 447A. 107 Relevantly, the defendants relied on Campbell JA's reference to a passage from Allatech in which Austin J quoted the following statement made by Davies J in the context of ss 27 and 30 of the Administrative Appeals Tribunal Act 1975 (Cth), which permits a person whose "interests are affected" by a decision to seek review of that decision: … a person seeking joinder must be able to identify a relevant interest which is his. In other contexts, dicta in cases have used the adjectives 'real', 'genuine' and 'direct' to describe the relationship required between the decision and the interest. Sections 27(1) and 30(1) do not make use of adjectives but they do require that the applicant demonstrates genuine affection of an interest which attaches to him. 108 They suggested that this passage "identif[ies] some adjectival assistance to qualify the nature of the interest that would satisfy the issue of standing" for the purposes of s 447A(4). They also submitted that both Campbell JA and Austin J recognised that there is an "additional ingredient" that needs to be demonstrated in order to establish that a plaintiff is an "interested person". With respect, these submissions are not quite accurate. For the reasons expressed above, there is no principled basis for reading adjectives into the provision that have the effect of qualifying the nature of the interest required. As to their Honours' observations regarding the need for an "additional ingredient", each observed that, where the plaintiff is a creditor, there must be something beyond the "bare claim" of being a creditor before it can be sensibly said that the plaintiff is an interested person. It can be accepted that the words "other interested person" in s 447A(4) are unlikely to be intended to encompass any possible entity with an interest in the orders sought, however remote that interest may be. The assessment of whether a plaintiff is an "interested person" must be made in the circumstances of each case. 109 As a matter of both principle and authority, the expression "interested person" in s 447A(4) is to be read in much the same manner as the cognate expression in s 445D(2). It is intended to encompass entities whose "material rights or economic interests are or may be affected". 110 Here, the administration substantially affects Sev.en's economic interests — specifically, in its capacity as, effectively, the sole creditor of IEHA, which is in turn a substantial creditor of IGPC. Sev.en therefore falls within the scope of the expression "any other interested person" for the purpose of s 447A. It has standing to make the present application. That conclusion follows from the position accepted by McMurdo J in Octaviar and the principles referred to by Austin J in Allatech. It was submitted by the defendants that the debt owed to IEHA was controlled by Mr Sparks and Mr Hughes as administrators, and that this negated Sev.en's interest. However, it was not explained how that was so or why their control of IEHA's indebtedness was relevant to Sev.en's economic interest. That is important here, where Sev.en is the only real creditor of IEHA, and that company's administrators should act in a manner that enhances Sev.en's chances of being paid. 111 It is also quite possible that Sev.en has standing arising from its 25% economic interest in IGPC. Although that interest arises by a somewhat unusual corporate structure, and it is derived through shareholdings in nine companies, the evidence of the shareholdings does at least show it to exist. As the holder of such an interest, Sev.en may be detrimentally affected by the conduct of IGPC's current administrators if the company's entitlement to recover from CSEL is not appropriately explored and/or valued, or is otherwise diminished by a release of any claims. It is not irrelevant to note that the administrators have previously dealt with Sev.en on the basis that it held a major "interest" in IGPC's administration. They entered into a Deed of Cooperation with Sev.en for the purpose of sharing information or documents relating to the administration that might be relevant to Sev.en and might keep it informed of the rebuilding of the C3 and C4 units. It is unusual that the administrators would deal with Sev.en in that way, apparently on the basis that it had a substantive interest in units C3 and C4, and then purport to deny that interest for the purposes of this application. 112 The defendants submitted that Sev.en's position as an "indirect shareholder" was not sufficient to establish it as a person whose material or economic interests were affected. That proposition was advanced on the basis that it was unknown whether the interest of IEHA in IGPC was diminished by the financial position of the companies between IEHA and Sev.en. It was suggested that the financial circumstances of the intermediate companies might be such that not all, or perhaps not any, of the economic benefit of IEHA's shareholding would pass to Sev.en. The difficulty here is that there was no evidence of the financial standing of the intermediate entities and, as was submitted on behalf of Sev.en, this had not been raised as an issue in the proceedings. That latter proposition is correct. Moreover, Sev.en had sought to establish its standing, in part, by reliance on a sequence of shareholdings and adduced evidence of that. In the absence of any challenge to the financial standing of those companies, it is not open to the defendants to raise the issue during addresses. In the absence of evidence to the contrary, it is open to conclude that Sev.en derived an economic interest in IGPC via the sequential shareholdings. 113 The defendants' submissions on this point are further undermined by the evidence adduced by the administrators themselves. An exhibit to the Fourth Sparks Affidavit is an email of 8 March 2023 sent on behalf of IGPC's directors to persons who were apparently interested in that company. It concerned the growing problems with the cashflow of the company consequent upon the failures of units C3 and C4. Notably, the recipients of the letter included three persons at Sev.en: A Němcová, A Svoboda and P Šlechta. The terms of the letter indicate that it was mostly directed to the "ultimate owners of the Callide project", which were referred to as the "shareholders", though that latter term was not referring to the actual shareholders of IGPC but, inter alia, Sev.en. An important issue raised in the letter was the question of whether an offer from an insurer of unit C4 should be accepted. In that discussion, reference was made to Sev.en's position in relation to the offer which indicated that, as a matter of commercial reality, it had substantial influence on IGPC. The letter also identified that Sev.en was influential in relation to the financing that IGPC might pursue, and that it had relevant control over the identity of the company's directors. This provides some evidence that Sev.en's economic interest in IGPC was not seriously diluted by the financial position of the intermediate companies. In such circumstances, it is unrealistic to suggest that Sev.en does not have a direct and significant economic interest in IGPC, through the sequential shareholdings, that is sufficient to give it standing in the present action. 114 It was further submitted that Sev.en's interest would have been insufficient to qualify it to bring a derivative action in the name of IGPC or to seek relief under s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Act) (IPS), though the relevance of that point is unclear where no such application is made. 115 It follows that the defendants' challenge to Sev.en's standing fails. That company's legal and economic interests have been detrimentally affected by the administration and are further imperilled by the apparent future conduct of the administrators. It therefore has a substantial interest in ensuring that IGPC's potential claims against CSEL are appropriately investigated, preserved and pursued. Alleged delay on the part of Sev.en 116 The defendants submitted that Sev.en's delay in bringing the application, which was said to be substantial and unexplained, should tell against the grant of leave and (if leave was granted) the application to appoint special purpose administrators. The alleged delay was said to be apparent from the fact that the incidents involving units C3 and C4 occurred on 25 May 2021 and 31 October 2022 respectively, that the administrators were not appointed until 24 March 2023, and that a further eight months passed before this application was made. It was suggested that Sev.en ought to have taken steps earlier to pursue its interest in and concerns with the investigation of the incidents, given that it had access to "key documents" regarding those incidents, and had previously threatened to remove the administrators for a perceived lack of independence. It was also said that Sev.en has not explained its failure to make this application earlier in circumstances where it would now interfere with the NBIO Process or the JVA Sale Process. 117 The defendants' submissions lack merit. The concern of Sev.en is the administrators' continued failure to perform their statutory duty. At all times, the administrators' duty to investigate remained extant, and it was for them to perform it. It was not Sev.en's obligation to supervise them or to oversee all that they did. Additionally, the administrators' non-fulfilment of their duty has led to some urgency, given that the NBIO Process and the JVA Sale Process are both approaching completion. The import of conducting the appropriate investigations was to identify whether IGPC has a cause or causes of action in relation to the failures of units C3 and C4 and, if so, what may be the value of any such claims. These matters are critical to any disposition of IGPC's assets, business, or interest in the joint venture. It is the administrators' determination to progress with the disposition of IGPC's assets without appropriately undertaking the investigations that has necessitated the making of the application. 118 Sev.en rightly submitted that it was reasonable for it to assume that, from the date of their appointment, the administrators were appropriately investigating the causes of the two failures and whether IGPC may have claims against third parties arising out of those incidents. After CEPL gave notice to IGPC in May 2023 that it was exercising its rights to acquire IGPC's interest under the JVA Sale Process, Sev.en's concerns about IGPC losing the value of any potential claims were apparently allayed by the administrators in various pieces of correspondence between September and October 2023. It was not until the materials relating to the administrators' proposed application for remuneration in October 2023 became available to Sev.en, and subsequent correspondence with the administrators indicated the possible undervaluing or lack of investigation into IGPC's claims, that the necessity to make the present application arose. 119 Counsel for the defendants took issue with Sev.en's assertion that it assumed that the administrators were undertaking appropriate investigations, given that Sev.en took a "rather aggressive position" against the administrators shortly after they were appointed. 120 The defendants were correct to observe that the relationship between Sev.en and the administrators was fractious from time to time, and it is apparent that Sev.en lacked confidence in them. For example, on 1 April 2023, Sev.en wrote to the administrators stating that it intended to apply to have them removed from their office "for perceived or actual lack of independence". 121 Further, after the appointment of the administrators to IEHA, Sev.en sought orders compelling IEHA to execute a general security deed that it was, allegedly, contractually obliged to execute: Sev.en Gamma a.s v IG Energy Holdings (Australia) Pty Ltd [2023] NSWSC 1032. Justice Ball refused the application, holding (at [27] – [30]) that the deed would not benefit the creditors or the company as a whole. The effect of the deed would have been for Sev.en to be converted from an unsecured creditor to a secured creditor. The defendants sought to rely on Ball J's observations in that application as somehow supporting their position with respect to delay. However, a distinct application by Sev.en in relation to a different company in administration does not have any bearing upon the present application. 122 Further, as mentioned above, even if Sev.en did have doubts about the administrators early into their appointment, it was for the administrators to perform their duty, and the urgency of the present application only heightened as the administration progressed. Sev.en was not obliged to make a pre-emptive application on the assumption that the administrators would not fulfil their duty to investigate. Had any such application been made, it would surely have been met with the defence that it was premature. 123 There is nothing to suggest that Sev.en did not act promptly once it became aware that there was a need to make the present application. Even if Sev.en might have brought this application earlier, the administrators cannot now rely on that delay to avoid the consequences of their own failures. 124 The defendants also suggested that a range of other steps might have been taken by Sev.en to ensure the preservation of IGPC's potential causes of action. However, the reference to those matters is an attempted distraction from the real issue, which is the administrators' own failure to fulfil their statutory duties. 125 There was no relevant delay by Sev.en in making this application. It follows that it is not a relevant consideration in relation to the grant of leave to proceed, or the exercise of the discretion to appoint the special purpose administrators. The appointment of special purpose administrators 126 The power of the Court under s 447A(1) to make such orders as it thinks appropriate about how Pt 5.3A is to operate in relation to a particular company is broad. It is remedial, and is to be applied to the unlimited circumstances that might arise in relation to companies and administrations. 127 It was not doubted that the power is sufficient to permit a Court to appoint a special purpose administrator: Jahani, in the matter of Northern Energy Corporation Ltd (Administrators Appointed) (No 2) [2019] FCA 382 [28] (Jahani). In that case, Farrell J held that the Court had power to make such an order under either s 447A or s 95-15 of the IPS. Her Honour went on to observe as follows (at [29]): Without in any way seeking to be restrictive, the Court accepts that special purpose administrators may be appointed in circumstances similar to those which Courts have found sufficient to justify the appointment of special purpose liquidators. Examples of those circumstances are set out in Gleeson J's reasons in Deputy Commissioner of Taxation, in the matter of ACN 154 520 199 Pty Ltd (in liq) v ACN 154 520 199 (in liq) [2017] FCA 444 at [64]-[85] and they include: (1) Where there are matters that require investigation with a view to possible recovery for the benefit of creditors. (2) Where the current administrators have insufficient funds and insufficient prospects of obtaining funds to pursue an investigation. (3) Where a creditor is prepared to fund an investigation and recovery action, but only on condition that another administrator is appointed. (4) Where such appointment would be beneficial in the administration (or subsequent winding up) to the creditors as a whole. 128 The matters identified by Gleeson J, as set out by Farrell J above, are relevant considerations which may or may not apply on a particular occasion. When they do apply, the weight attributed to them will vary as that occasion requires. However, they do not impose any limit on the matters that might be taken into account, nor should they be taken to establish any fixed regime in which the power to appoint a special purpose administrator should be exercised. In general, they are matters that courts might regularly consider when reaching a state of satisfaction that it is appropriate to make the relevant order in the light of the particular circumstances of the case. Within those circumstances, the advancing of the interests of creditors and members in one way or another is a not insignificant underpinning consideration. 129 The defendants sought to distinguish Jahani from the circumstances of this case. However, the differences to which they pointed were immaterial. Here, Sev.en is effectively a substantive creditor of IGPC and the application that it makes will most likely inure for the benefit of all creditors. Though the time suggested for the extension of the administration for the purpose of allowing the special purpose administrators to make inquiries is longer in the present case than it was in Jahani, the underlying circumstances are different. Here, there is only scant evidence as to the extent of the work undertaken by the current administrators, such that it is not known from what foundation the special purpose administrators will have to start. Had the current administrators wished to limit the scope of the appointment, they ought to have been rather more open about the nature and extent of the investigative work that they have performed to date. Further, the purpose of the appointment is to investigate a not insignificant matter, which has a degree of complexity. It is not, as it was in Jahani, the mere examination of a transaction. Matters requiring investigation 130 Central to Sev.en's application for the appointment of special purpose administrators is the proposition that such an appointment is required so that there can be a proper investigation into, and preservation and/or valuation of, any claims that IGPC may have against CSEL. The appointment is also required so that proper consideration can be devoted to whether there are good defences to CEPL's claimed right to a transfer of IGPC's interest in the joint venture. The claims against CSEL are essential to the value of IGPC's interest in the joint venture and the price for which that interest might be acquired under the JVA Sale Process, or the price that might be offered under the NBIO Process. 131 On the available evidence, it is sufficiently apparent that the administrators, who have in part been funded by CSEL, have failed to make any substantial assessment of any claim that IGPC might have against CSEL in relation to the latter's possible failure to meet its contractual or tortious obligations in relation to the maintenance of units C3 and C4. The evidence shows, further, that they have not adequately considered what defences they may have to CEPL's attempt to acquire compulsorily IGPC's joint venture interest. There is some vague evidence that the administrators have turned their minds to those issues, but nothing to show that they have seriously pursued them. The lack of action by the administrators has been left unexplained. Of greater concern is the fact that the administrators have no plan in place to do anything to further any such investigations. Their present intention appears to be to wait and see if any further information comes to light that might assist them to form a view, which they might then insert into their report to creditors. The scope of the administrators' investigations 132 Despite the obvious importance of determining the cause of, and responsibility for, the failures of units C3 and C4, the administrators have not undertaken any appropriate investigations. The evidence in their affidavits tends to obfuscate rather than clarify what work they have performed in this respect. Overall, their approach in this hearing was to dissemble rather than be open and straightforward about the state of any investigations and the state of their knowledge. The engagement of an expert to assess and report 133 It is concerning that the administrators have not engaged their own suitably qualified technical expert to assess and report on the causes of the two failures and to identify what conduct or omissions may have been responsible for the circumstances in which the failures occurred. There is no suggestion that they were unable to finance the production of such a report or that there was no person suitably qualified, and neither suggestion would have been tenable. As indicated, in the circumstances of IGPC's administration, it is obviously in the interests of IGPC and its creditors and members to know what caused units C3 and C4 to go offline and who was responsible. The omission to engage an appropriate expert to report on these matters indicates a lack of attention to the requirements of the administration. 134 That failure has the result that the administrators have no expectation of receiving any further information prior to the time of the second meeting of creditors or, more importantly, the time of the attempt by CEPL to require a transfer of IGPC's interest under the joint venture. They have no ability to inform the valuers engaged for that process of the worth of claims that might exist, and that should be taken into account. What steps have the administrators taken? 135 The dissembling nature of the administrators' evidence in relation to the steps that they have taken to ascertain the causes of the failures of units C3 and C4 renders it difficult to discern the real or effective nature of their investigations. 136 In the Third Sparks Affidavit, Mr Sparks claimed that the administrators had investigated IGPC's affairs but that they were concerned to reveal too much information for confidentiality reasons. That explanation for the absence of any satisfactory evidence is insufficient. There are myriad ways in which evidence can be adduced in court without unnecessary publication, and it is axiomatic that the administrators and their legal representatives would have known that. The explanation in that respect lacks substance. The Court must proceed on the basis of the evidence produced and, if the administrators choose not to adduce evidence that might rebut an otherwise necessary inference, they have to bear the consequences of any adverse finding. 137 In his affidavit, Mr Sparks asserted that the administrators had reviewed the books and records of IGPC and identified reports that had been generated by experts engaged by stakeholders in the Callide Power Project in relation to the failure of unit C4. Thereafter, a number of reports were referred to, though the oblique references to their contents do not suggest that they informed the administrators of the causes of the failures of units C3 and C4. Whilst some of the reports referred to might touch upon the causes of the failures, many were initiated by CSEL, and the administrators claimed that they are now privileged by reason of common interest privilege. Some reports were also said to have been acquired by the compulsory production processes in the course of litigation and, therefore, could not be disclosed. Others were simply claimed to be "confidential", though what that means in the current circumstances is unclear. 138 Mr Sparks further stated that he and Mr Hughes have undertaken reviews and held multiple discussions with several persons about the background of the incidents and technical issues relating to them. 139 From the foregoing, Mr Sparks claimed that the administrators have considered the legal position of IGPC in relation to the incidents and its position under the Joint Venture Agreement. They have also considered and advanced claims against insurers, which process has involved their undertaking an assessment of the losses that have been sustained and the cost of rebuilding units C3 and C4. 140 In circumstances where Mr Sparks gave evidence that he has considered a number of reports that are (in his apparent view) relevant to the failures of units C3 and C4, it is strange that he omitted from his evidence any opinion that he or Mr Hughes formed as to the causes of those failures. He did not say that any opinion has been formed, or that there is insufficient evidence on which to base a conclusion. He did not even venture to opine as to what further information might be required, if any. He made no statement whatsoever as to the sufficiency of the available information. These omissions were sought to be excused by the claim that the investigations are ongoing. 141 That claim is insufficient. It suggests that the administrators anticipated further investigations that were incomplete. However, it has subsequently become clear that there were no anticipated further investigations, and the administrators have no plan to undertake further investigations. Rather, all that was meant was that further reports from other sources may be received and considered by the administrators prior to the preparation of their second report to creditors. In other words, the administrators have had no plan in place to acquire information that they considered necessary to formulate appropriate opinions for the purposes of the report to creditors. 142 That is obviously inadequate. It is made more so by their uncritical reliance on reports produced by CSEL. That company, more than any other entity, is likely to have some responsibility for the failures at units C3 and C4. It had the contractual obligation to manage, maintain and operate the power units and, in the ordinary course, it is unlikely that such catastrophic failures would have occurred without some wrongful act or omission on its part. That is not to make a finding that it is culpable or liable, of course. It is merely to point out that there is a significant possibility that it might subsequently be found to be, in the circumstances as they are presently known. That being so, it is passing strange that the administrators would seek to rely upon reports produced on its behalf for the purpose of determining whether it failed to meet its contractual obligations or is otherwise liable to IGPC. 143 In that latter respect, it can be observed that the report of Dr Brady, in particular, was referred to repeatedly in the evidence. The administrators appeared to rely upon that report as the solution to their omission to make their own investigations. As mentioned, Dr Brady was engaged by CSEL in June 2021 to investigate the incident involving the failure of unit C4. The terms of reference given to Dr Brady have not been produced, and they have not been described in even the most general sense. It does not seem likely that the administrators have seen them or know their contents. 144 Despite two and a half years having passed since it was commissioned, no report from Dr Brady has been seen by the administrators. A statement in a media release of CSEL on 25 May 2023 indicated that the independent investigation by Dr Brady into the failure of unit C4 was entering its final stages. Yet, still, it has not been produced. It is not known whether the report has been given to CSEL or whether it remains incomplete. The administrators had no evidence about that. On 18 October 2023, their solicitors informed the solicitors acting for Sev.en in a letter that they had no detail as to when the report would be delivered. In particular, the letter provided: 1. The independent review by Sean Brady to which you refer is ongoing and the Administrators currently have no detail as to when that report will be delivered. We understand that the Callide Power Project itself (through the manager) has also engaged a separate expert for the purposes of a separate individual review. The Administrators investigations as to the scope and adequacy of the investigations are continuing. 145 The impression that one might gather from this passage is that the administrators were not actually pursing any investigations themselves, but instead were merely considering the scope and adequacy of investigations conducted by others. 146 A consideration of the scope and adequacy of the investigations being carried out by others could only prove relevant if the administrators were to receive some conclusions or results from those investigations. Here, it appears that the administrators merely have a hope that Dr Brady's report might be produced in time for them to consider it before forming an opinion about the causes of the unit C4 incident, and the potential causes of action that might flow from it. That said, they have no right or entitlement to see the report. It is being prepared for CSEL, which commissioned it and, presumably, paid for it. On that basis, the administrators' hope is effectively that CSEL will gratuitously provide to them a report that it has commissioned about the incident, in circumstances where there is a likelihood that CSEL will bear some responsibility for it. If that is indeed their position, it is not one that reasonably competent administrators who are seeking to comply with their obligations would adopt. 147 The administrators also relied upon an investigation being conducted by the AER into the incident in relation to unit C4 and the potential liability of CEPL, IGPC and Callide Power Trading Pty Ltd (a company that is apparently a registered participant and intermediary under the National Electricity Law for the Callide Power Project). They have been required to cooperate with that investigation and have sought legal advice about it. However, investigations into whether certain entities met statutory requirements may not necessarily be concerned with the causes or consequences of the failure to meet them. In this case, the AER's investigation may not entail any detailed consideration of the circumstances leading to the failure of unit C4, but rather may be limited to whether certain standards were met. 148 In his evidence, Mr Sparks again observed that the AER's investigation into the unit C4 failure is ongoing. By that, he seemed to suggest that the final report may be of use to the administrators. If that is true, it is again a mere hope — not a realistic expectation. The administrators have no right to be briefed on the results of the AER's investigation, and it may be that they never will be. It is not immediately apparent why the administrators believe that the AER's investigation will assist them to understand the causes of the failure of unit C4. There is also not a scintilla of evidence that the report will be available to them within any suitable timeframe. 149 It should be remarked that, in the Third Sparks Affidavit, there exists a not insubstantial amount of material about the investigations of others, including the AER. Much of it is irrelevant. It has the appearance of having been included merely to "pad" the affidavit with material that ostensibly identifies some investigative work on the part of the administrators. However, as the suggestion that the material served only that purpose was not put squarely to them, I refrain from making any finding about it. 150 Whatever steps might be said to have been taken by the administrators to ascertain the causes of the failures of units C3 and C4, they have been inadequate. The administrators have failed to initiate investigations that they would be able to control, regulate and rely upon. Instead, they have conditioned their ability to understand the causes of the failures and the responsibility for them on the work of others. It is only a possibility that this work will even be provided to them. To exacerbate their failure to perform their statutory function, they have put themselves in a position whereby they might have to rely upon a report produced for CSEL, specifically — an entity that has an obvious interest in deflecting blame away from it. 151 In around October 2023, the administrators gave notice of their intention to apply for approval of their remuneration for the period between March and July 2023, as well as prospective remuneration from 1 August 2023. They filed material in support of that application. As was submitted on behalf of Sev.en, the material fails to disclose any work undertaken in the investigation of the causes of the failures of units C3 and C4. A cryptic reference is made, in respect of the work intended to be performed in the period from 1 August 2023 to the end of October 2023, to "undertaking investigations". However, on the evidence, that apparently does not refer to investigations in relation to the causes of the failures of the units. This supports the conclusion referred to above that little or no relevant investigation has been undertaken and, indeed, the administrators do not intend to conduct any such investigation. 152 It should also be observed, for what it is worth, that much of the consideration in the material seems to have related to the failure of unit C4 and very little has concerned the failure of unit C3. 153 If the administrators have in fact undertaken sufficient investigations into the failures of units C3 and C4, then they must necessarily have the means and ability to establish as much. However, evidence of those matters is lacking. As was said by Branson J in Medtel Pty Ltd v Courtney (2003) 130 FCR 182, s 140 of the Evidence Act 1995 (Cth), relating to the standard of proof in civil proceedings, incorporates "the common law rule that evidence is to be weighed according to the proof which it was in the power of one party to produce and in the power of the other to contradict": see also Apollo Shower Screens Pty Ltd v Building & Construction Industry Long Service Payments Corporation (1985) 1 NSWLR 561, 565; Blatch v Archer (1774) 1 Cowp 63, 65; 98 ER 969, 970; Vautin v BY Winddown, Inc (formerly Bertram Yachts) (No 4) (2018) 362 ALR 702, 743 [193]. Here, the scant and obscure evidence adduced by the administrators is indicative of their inability to establish that they have undertaken appropriate investigations. 154 Prima facie, therefore, the work undertaken by the administrators to ascertain the vital information concerning the causes of, and responsibility for, the incidents in question has fallen below the standards required. Those matters are critical to the interests of IGPC and the interests of its creditors in relation to both the potential sale of IGPC or its assets under a DOCA, or the compulsory acquisition by CEPL. The inadequacy of the investigations is compounded by the administrators' (related) failure to form any view whatsoever about the cause of, and responsibility for, the incidents. Their unrealistic hope that some other information may happen to come their way before knowledge of the true value of IPGC becomes pivotal also demonstrates conduct falling well short of the standards ordinarily to be expected of administrators. Legal advice 155 In the Fourth Sparks Affidavit, Mr Sparks asserted that a barrister "was indeed briefed to provide the Administrators with advice in relation to potential claims arising out of the Callide C Incidents, the contents of which is subject to legal professional privilege". The defendants' written submissions stated, relatedly, that: The Administrators sought and considered legal advice, including advice from [a barrister] in relation to potential claims arising out of the Callide C Incidents. While the exact parameters of the advice sought and obtained are privileged, the fact that advice has been sought is not. 156 There is nothing in the affidavit of Mr Sparks that indicates that he has obtained advice from the counsel concerned, or that he had considered it. Even if it is assumed that advice has been obtained and considered, a question arises as to its value in the present context, where there is no disclosed report as to how the incidents involving units C3 and C4 occurred. One might expect that the advice is about the liability of various parties (including CSEL) generally but, absent knowledge of the causes of the failures, it is difficult to see how the advice would assist the administrators in providing any information to creditors about the available causes of action or their value. 157 It is relevant to note that the administrators have failed to express any opinion as to the existence or otherwise of any causes of action that IGPC might have. All that has been said is that, based on their experience in assessing the value of contingent claims, there are several issues and risks that may reduce the value of any choses-in-action. That statement is, with respect, somewhat meaningless. The omission to mention that it was based on the legal advice received (if that was in fact the case) is unusual. 158 In any event, in circumstances where the administrators are not sufficiently informed about the incidents to know how they occurred, there seems to be little value in whatever legal advice might have been obtained. Were the administrators required to carry out the investigations? 159 Part of an administrator's role is to prepare a report to creditors in accordance with s 439A of the Act, and r 75-225 of the Insolvency Practice Rules (Corporations) 2016 (Cth) (IPR), about the company's business, property, affairs and financial circumstances, which provides appropriate information on which the creditors can act when exercising their vote at the second meeting. Usually, the report will include commentary and observations about the potential causes of action that the company under administration might have, and their potential value. Some investigation by the administrators is necessary in order to facilitate the inclusion of those matters. Here, the evidence sufficiently demonstrates that the required investigations have not been performed. 160 Nevertheless, a central tenet of the defendants' submissions was that administrators are not required to undertake the same type of investigations as are required of liquidators. They claimed that Sev.en sought to impose upon them too high a standard of investigation, and that the substance of the application was to appoint quasi-liquidators who might undertake the more in-depth investigation. 161 That submission should be rejected. The requisite level of investigation will necessarily vary with the circumstances of each case — including the time in which the administrators must undertake it. Here, the administrators have held their office for more than 10 months and there is nothing to suggest that an adequate investigation could not have been done in that time. 162 It was not doubted that administrators have a duty to undertake investigations and make inquiries where the circumstances call for them, keeping in mind the need for efficacy in the process. In Adelaide Brighton Cement Limited, in the matter of Concrete Supply Pty Ltd v Concrete Supply Pty Ltd (Subject to Deed of Company Arrangement) (No 4) [2019] FCA 1846, Besanko J identified the need to satisfy the balance between speed and accuracy where he said (at [1206]): Nevertheless, there is a duty on an administrator to make inquiries where the circumstances call for such inquiries. The "delicate balance" between speed and accuracy was discussed by Austin J in Portinex (at [125]–[127]). The passage is lengthy, but, with respect, it is helpful to set it out in full: 125 If an insolvent company is to be saved and restored to health, the commercial reality is that decisions about its future must be taken speedily after its insolvency has been identified. Additionally, speed is required because rights of enforcement against the company are suspended during the period of administration, and it would be unfair to extend the period of suspension for longer than is absolutely necessary. Therefore Part 5.3A sets a very short timetable for the creditors' decision about the future of the company. It is an unfortunate but unavoidable consequence of the scheme established by Part 5.3A that the creditors must make their decision on the basis of information that is likely to be imperfect … 126 The balance between speed and accuracy is a delicate one. An administrator who accepts the company's information uncritically and without exercising judgment, cutting corners to complete the administration and receive his fee, will be treated harshly by the Court, since the whole scheme of Part 5.3A depends on the independence, competence, professionalism and hard work of the insolvency practitioners who accept appointments as voluntary administrators. 127 The distinction between an adequate preliminary investigation, leading to the conclusion that there are grounds for suspecting insolvent trading and unfair preferences but going no further, and an inadequate preliminary investigation which fails to assemble available information with respect to insolvent trading and unfair preferences, is a matter of degree. If the administrator has conducted an adequate preliminary investigation in accordance with the principles in the Hagenvale case, his obligation is to bring the results of the investigation to creditors so that they can decide what is to be done next. If the administrator's preliminary investigation has been adequate, he is entitled to decline to embark upon further substantial investigations unless funds are made available to cover his fees and expenses of doing so. 163 However, as his Honour also noted, that does not mean that an administrator is entitled to neglect the undertaking of an appropriate investigation into the company's affairs. At [1207], he said: The duty of an administrator to carry out proper inquiries was, with respect, forcefully articulated by Gillard J in Linen House Pty Ltd v Rugs Galore Australia Pty Ltd [1999] VSC 126 at [75]–[79]. The passage is lengthy, but again, with respect, it is helpful to set it out in full: 75 The extent of the investigation is in the end a matter for the administrator. Hence the importance of his impartiality, independence and requirement to act carefully in the interests of the creditors. 76 Whilst there are strict time limits and the administration is intended to proceed speedily there is no excuse for failing to carry out a full and proper investigation. What is a full and proper investigation will depend on all the circumstances but matters of concern to creditors are preferences, possible directors' breach of duty, possibility of recovering compensation from directors who conduct the company's business knowing it is insolvent, and recovery of compensation from de facto directors. Another matter of importance is the recovery of any of the corporation's property which has been unlawfully transferred. 77 In my opinion it is no excuse to limit a full and careful investigation by reference to the time limits set out in the Law. Time limits require expedition, and a full investigation may require further resources being used and if necessary the second meeting be adjourned or an application for extension of time be made. Further resources would include the employment of enough personnel to adequately perform the task. The fact that the second meeting can be adjourned from time to time supports the view that the administrator should not refuse to investigate fully a matter because of time constraints. In the end result the creditors must know. They are entitled to a thorough investigation. They rely on the administrator performing his task. Failure to properly investigate puts at risk the whole object of Pt5.3A which ultimately leaves the decision to the creditors making an informed decision. If the administrator is unable to make a proper investigation in respect of matters of importance to the creditors' decision he should tell them. He should alert them that there are matters relevant to their interests which should be further investigated. Much can be gained by shareholders, directors and others from a deed of company arrangement "wiping the debts" and putting beyond the reach of the law the delinquencies of directors and others involved with the company's business. It behoves an administrator to properly fulfil his duty. 78 There are dicta in the cases suggesting that the time limits imposed for the convening of the second meeting can affect the amount of information that should be provided to the creditors. An administrator should not take those observations as being an excuse for failing to properly, adequately and carefully investigate matters which are material to the decision of the creditors or failing to inform the creditors on material matters. 79 The administrator has extensive powers and it is no excuse not to fully, carefully and adequately investigate a matter which would bear on the decision of the creditors. There is a tendency to assume that if any money is available to a creditor pursuant to a deed of company arrangement which is in excess of any amount that would be recovered on a liquidation, that is a proper basis for opining the view that company arrangement is the best alternative. Therefore there is no necessity to concern the creditors about other issues. The argument is the bottom line is money, and irrespective of how much, a receipt of something is better than nothing. But there are other factors which may influence creditors. They should have the benefit of a proper investigation. 164 The observations of Gillard J in Linen House Pty Ltd v Rugs Galore Australia Pty Ltd [1999] VSC 126 at [77] – [79] are particularly relevant to the present case. Any investigations must be proper, adequate and careful, such that the creditors can be appropriately informed. That is especially so in this case, where the time for the convening of the second meeting of creditors has been extended previously, allowing more than sufficient opportunity for a thorough investigation to take place. This is not a case where it can be said that only abbreviated inquiries could have been undertaken because of the limited time available. Here, the difficulty is that the required investigations have not occurred at all, and the administrators have not acted in a manner that is likely to furnish the creditors with sufficient information from which they may decide how to exercise their vote. 165 At the hearing, counsel for the defendants emphasised that an administration is intended to be swift and practical, and that the Court should be slow to impugn the business and commercial judgements of the administrators. The defendants relied upon a line of cases, including Britax Childcare Pty Ltd v Infa Products Pty Ltd (2016) 115 ACSR 322, Mediterranean Olives Financial Pty Ltd v Loaders Traders Pty Ltd (No 2) (2011) 82 ACSR 300, Bovis Lend Lease Pty Ltd v Wily (2003) 45 ACSR 612 and Strawbridge, in the matter of Virgin Australia Holdings Ltd (administrators appointed) (No 8) [2020] FCA 1344. Those decisions broadly establish that an administrator's investigation is necessarily a preliminary investigation, which is carried out in accordance with the short timeframes imposed by Pt 5.3A of the Act. In that context, the Court must not assess the steps taken by administrator in an overly critical light. 166 None of the propositions drawn from that line of cases is in any doubt. Nor is any of the propositions in conflict with the position stated above. As Besanko J and Gillard J made clear in the passages extracted above, the requirements under Pt 5.3A are also flexible and take into account the myriad circumstances in which companies may find themselves. Any investigations expected of an administrator must be within what is practical and proportional in the circumstances. Here, however, the administrators have determined on two occasions to seek an extension of the convening period. The claims that IGPC may have are expected to carry a not insignificant value, and are properly regarded as being significant to the creditors' decision as to what to do with the company. The period of time that the administrators have had is more than sufficient to accommodate the calibre of investigation that the circumstances of this case warranted, as has been identified above. Unfortunately, for whatever reason, the necessary investigation simply does not appear to have been conducted. 167 In this case, the essential issues as to the cause of the failures of units C3 and C4 and the responsibility for them are critical to the determination to be made by IGPC's creditors. Even if the time for the conducting of investigations had been more limited, the administrators' omission to act with reasonable haste to ascertain appropriate answers should not be allowed now to "prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders": Re Diamond Press Australia Pty Ltd [2001] NSWSC 313 [10]. The creditors are entitled to that critical information before deciding whether to vote in favour of a DOCA or to cause IGPC to be wound up. The appointment of special purpose administrators with appropriate powers would allow that to occur. 168 The defendants submitted that there was no basis for the suggestion that they would not call the attention of the creditors to the potential claims that IGPC might have in relation to the failures of units C3 and C4 in their report to creditors. That, however, avoids the real point: that is, without the results of a proper investigation and analysis of the potential claims, the creditors will have no real understanding of their value. The present circumstances are far removed from those prevailing in many cases, where the potential claims are relatively small compared to the anticipated value of the company. Here, the value of the claims may well be in the tens or hundreds of millions of dollars and form a substantial portion of IGPC's value. 169 The authorities referred to above merely serve to emphasise that the administrators in this case have fallen well short of the standard ordinarily to be met in the performance of their statutory duties. That has put IGPC and its creditors in a difficult position in relation to the sale or disposition of the business or its assets. The appointment of the special purpose administrators has the potential to alleviate, or remedy, that detriment. Delay 170 Again, it is worthy of remark that the administrators have not explained the unfortunate delay in their investigation into the potential claims against CSEL. The absence of an explanation when one is called for is, necessarily, a significant matter to be taken into account. It becomes more relevant in circumstances where the administration is progressing toward a conclusion or, alternatively, toward the forced acquisition of IGPC's joint venture interest. The administrators' delay in this case is especially regrettable, as it risks a situation in which IGPC might be deprived of valuable choses-in-action without appropriate compensation. Their omission to explain that delay is even more concerning, and indicates a failure to appreciate one of the most fundamental aspects of their obligations. 171 The concern raised by the above matters is compounded by the administrators' opposition to the appointment of the special purpose administrators. In circumstances where, for whatever reason, there has been inadequate investigation into IGPC's claims, it seems counterintuitive that the existing administrators would oppose the appointment of persons who are able to consider those claims specifically, and who are independently funded to do so. There was no sufficient explanation as to why the administrators opposed the proposed appointment. 172 Sev.en relied on the further proposition that the administrators have accepted funding from CSEL and/or CEPL but have not disclosed the terms and conditions on which it was provided. That is a not unimportant point, as it may be that a term of the funding provided by CEPL was that the administrators were not to investigate any potential claims against CEPL or CSEL. If that were the case, it would explain the absence of any real investigation in that respect. Whilst the administrators took objection to the raising of this inference, they were best positioned to dispel it and yet they chose not to give evidence about it. That is entirely a matter for them. However, having received funding from the subsidiary of an obvious target of litigation, it seems to be incumbent on them to explain the inference that arises. 173 By itself, the administrators' failure to investigate the potential claims against CSEL and/or CEPL, despite having had sufficient time to do so, supports the granting of the relief sought by Sev.en, if that could be achieved without detriment to IGPC. If the current administrators are left to pursue whatever investigations they may currently be pursuing, then there is a serious risk that an extremely valuable claim that IGPC may well have against CEPL and/or CSEL may be lost or diminished in value. 174 It can be accepted that the administrators have attended to most of the usual tasks required in an administration. Those tasks were identified broadly in the affidavits and submissions filed in these proceedings. However, the question in the present case is not what general matters have been attended to, but rather what has been done to ascertain the cause of and responsibility for the failures of units C3 and C4. It is not expected that the administrators will necessarily undertake the inquiries themselves. The appropriate step here would have been for the administrators to engage an expert to make inquiries and to provide the expert with the information and material relevant to that process. This should not have involved a great deal of time and effort by the administrators or their staff. Financial support for the special purpose administrators 175 Other factors relevant to the appointment of special purpose administrators, as referred to by Farrell J in Jahani, include whether the existing administrators have insufficient funds and insufficient prospects of obtaining funds to pursue an investigation and, conversely, whether a creditor is prepared to fund an investigation and recovery action, but only on the condition that another administrator is appointed. 176 In the present case, the first of these factors is irrelevant. While the administrators are possessed of sufficient funds to undertake the required investigations, they have not indicated any intention to expedite any investigation and, unfortunately, it must be concluded that they are, seemingly, not prepared to do what is required. 177 On the other hand, there is no risk that IGPC will be burdened with additional costs or that the appointment of special purpose administrators will negatively impact its creditors: see Shangri-La Construction Pty Ltd v GVE Hampton Pty Ltd (in liq) (2021) 152 ACSR 19, 34 [87]. Sev.en is prepared to fund the investigation and any recovery action on the condition that the special purpose administrators are appointed. It has produced a funding agreement, which it is prepared to enter with the special purpose administrators as is appropriate. It shows that the special purpose administrators' costs will be met by Sev.en so as to avoid any duplication of costs with the administrators. The funding will be available for the remuneration of the special purpose administrators and for their legal expenses. If the initial limit of funds is reached, a request can be made for additional funding and the parties will consult in good faith, and the same applies in relation to subsequent limits. The actual amounts that will be payable have been redacted, but there is nothing sinister in that. That is necessarily confidential information. It can be assumed that the amounts will be adequate, given Sev.en's commercial interest in the matter. The special purpose administrators' obligation to repay Sev.en is limited to the recoveries received by IGPC in connection with the investigation, subsequent proceedings, or any appeal. 178 An important aspect of the funding arrangement offered is that the special purpose administrators will be unrestrained in the use of the funds, save that they are to be used generally for the purposes for which they are advanced. A further aspect is that, if the special purpose administrators consider that it is appropriate to commence proceedings, the parties will consult with a view to funding that litigation. That may be somewhat optimistic, given that the time remaining in the administration may be limited. 179 In the course of the hearing, some aspects of the funding agreement were rightly criticised by the defendants and Sev.en agreed not to pursue them. 180 For the purposes of this application, it is sufficient to conclude that, if the special purpose administrators make an application in relation to entry into a funding agreement, then there exists a likelihood that Sev.en will propose an agreement that is acceptable to the Court. Although the final terms cannot now be known, there is enough material before the Court to conclude that there is a satisfactory assurance that the appointment of special purpose administrators will not financially burden IGPC or otherwise diminish the funds available to the current administrators. In this way, the appointment will neither adversely affect the current administration nor diminish whatever funds may be available to the company's creditors. 181 In his first affidavit, Mr Šlechta indicated that Sev.en had lost faith in the current administrators, with the consequence that it was only prepared to fund alternative and independent administrators. For the reasons that have been referred to above, Sev.en's position is understandable and should be accepted. The evidence in these proceedings objectively justifies Sev.en's position that, even if it funded the current administrators, it is unlikely that the required investigations would be carried out. Whether the appointment will benefit the administration and creditors as a whole 182 A further relevant factor is that the appointment of the special purpose administrators will likely benefit the administration and the company's creditors as a whole. At the very least, the appointment will allow for a fulsome and appropriate investigation of IGPC's available choses-in-action against CEPL or CSEL arising from the failures of units C3 and C4. It is also likely that it will enable a proper valuation of those claims, which is relevant to any sale of IGPC's interest in the joint venture or of its interests pursuant to a DOCA. The investigations come at no cost to the company or its creditors. Further, if proceedings are brought by IGPC following the special purpose administrators' investigations, IGPC's creditors stand to benefit from any amounts recovered. 183 The appointment of special purpose administrators will also permit the current administrators to focus on other areas of the administration, allowing for those matters to be attended to with greater timeliness and efficiency. In this respect, it is noted that the orders that are sought expressly separate the powers granted to the special purpose administrators from those of the existing administrators. Such an order allows for clarity in the performance of the duties of the two sets of administrators and, to some extent, avoids disagreement as to their respective responsibilities. Such orders are common in circumstances akin to the present: see, for example, the orders made in GDK Projects Pty Ltd, in the matter of Umberto Pty Ltd (in liq) v Umberto Pty Ltd (in liq) [2018] FCA 541 and Commonwealth of Australia (Department of Education, Skills and Employment) v Phoenix Institute of Australia Pty Ltd (in liq) [2020] FCA 937. Even though both cases concerned the appointment of special purpose liquidators, the pragmatic considerations contained in them are applicable to the present case. 184 Such orders are unlikely to cause any difficulty for the present administrators. Certainly, the administrators have not adduced any evidence to the contrary, nor have they expressed any opinion to that effect. Pursuant to the orders sought, the special purpose administrators are to have exclusive power with respect to several identified matters. The orders have sufficient clarity to allow reasonable people, acting honestly, to ascertain that which is within their scope and that which is not. If the unfortunate circumstance arises where the administrators and the special purpose administrators are in disagreement, then either party may make an appropriate application to the Court. 185 There is one matter that requires some more specific treatment, and that is the entitlement to make an application to the Court for an extension of the convening period for the second meeting of creditors. That power should be held by each set of administrators independently. It is likely that such an application will be required, and there is no reason why it should not be made as soon as one set of administrators is satisfied that it is necessary. 186 It cannot be doubted that, in order to benefit the creditors as a whole, any relevant report prepared by the special purpose administrators should be made available to the existing administrators prior to the second creditors' meeting. That would enable the existing administrators to consider it and advise the creditors about its findings. It will also enable them to identify to the creditors the impact that any such report has on their own views. A similar approach was taken by Farrell J in Jahani at [71]. 187 The defendants submitted that the appointment of special purpose administrators would "create significant uncertainty in relation to the finalisation of the administration of IGPC and the timing of any payment of creditors" and would extend beyond current expectations the time required to conclude the administration. Even if this is accepted, the compromise is that the creditors will acquire substantially more useful information with the result that they will be better informed as to the manner in which they might exercise their vote at the second meeting. Additionally, the exposure of the true value of the claims available to IGPC is likely to force any DOCA proponents to offer greater consideration, as some of the uncertainty around the value of IGPC's assets will be removed. 188 It was also said that the appointment of the special purpose administrators will add costs to the administration, in that an application for an extension of the convening period will be required and resources will have to be applied to accommodate the requirements of the new administrators. Whilst it is likely that those costs may be incurred, in the absence of any sufficient information about the costs of the administration to date, it is difficult to ascertain the relative burden that they would impose. In the present context, where the administrators have received in excess of $100 million on one of their insurance claims, it is unlikely that the costs referred to will be significant. Moreover, it might be pointed out that this is an unusual complaint for the current administrators to make in circumstances where it has been their failures that have created the need for the appointments. The possible release or transfer of IGPC's claims 189 A further issue that arose was whether any of IGPC's potential claims against CSEL or CEPL could be acquired by the latter pursuant to the compulsory acquisition process, if that course is pursued. In that regard, the question is whether any such claims are part of IGPC's interest in the joint venture. There are arguments both ways, and that is best exemplified by the current administrators having expressed both opinions in recent times. In his initial affidavit, Mr Sparks expressed the conclusion that any claim IGPC had against CSEL was joint venture property, which would pass to CEPL if the transfer under the Joint Venture Agreement occurred. Conversely, at around the same time, the administrators, in their submissions to the valuers for the purposes of the transfer of the joint venture interest, expressed the opposite opinion — that is, that the claims that IGPC might have against CSEL did not form part of IGPC's interest under the Joint Venture Agreement. Inconsistently with that position, in the course of the hearing, counsel for the defendants submitted that some causes of action might be transferred whilst others might not be. This point is somewhat significant in circumstances where the administrators have made submissions to the valuer, which could have the result that IGPC's valuable causes of action might be lost for no consideration. The administrators have failed to explain their inconsistent positions, notwithstanding the serious consequences that may result. 190 In its written submissions, Sev.en advanced the position that any such claims would remain the property of IGPC. Whether that is correct in relation to each of the possible contractual, tortious or statutory claims need not be decided on this application. However, there are some strong arguments in support of the proposition that some of the statutory causes of action will not be transferred. 191 Sev.en submitted that, assuming IGPC had claims against CSEL that were not transferrable under the Joint Venture Agreement, there was a risk that they would be extinguished as a result of either the JVA Sale Process, or through a DOCA or other process in the administration. It further submitted in relation to the former process that CSEL has asked the administrators to waive any claim by IGPC in relation to Callide C (which would include claims against CSEL and CEPL) and that the administrators have not ruled out granting such releases. For the latter proposition, Sev.en relied upon a letter of 18 October 2023 sent to its solicitors from the administrators' solicitors, wherein it was stated that: We confirm that the Administrators have no intention, without the benefit of further investigations, advice and information, of releasing Callide Energy Pty Ltd (CEPL) or CSEL from any claims that may exist as a result of the incidents. The Administrators are aware that such claims will have a bearing on both the value of CEPL's claim against the Company and the value of the assets of the Company. 192 Whilst that statement might suggest that the administrators could, on some occasion in the future, release or waive the claims, it does not suggest that they will release them prematurely or without adequate compensation being paid. Rather, it suggests that the administrators were at that time awaiting the results of investigations and advice before consideration of such matters could occur. Whilst this tends to diminish the suggestion that IGPC's causes of action might readily be lost or devalued, it also emphasises that, as of 18 October 2023, the urgency in obtaining advice as to the causes of and responsibility for the catastrophic failures in units C3 and C4 was patent. This urgency did not seem to motivate the administrators at the time. Again, this reveals the adoption of an approach on the part of the administrators that supports the appointment of special purpose administrators. Injunctive relief against the current administrators in relation to IGPC's causes of action 193 Although the issue as to the injunctive relief sought by Sev.en does not bear on the question as to whether the special purpose administrators should be appointed, it is conveniently dealt with at this juncture. By its proposed orders, Sev.en sought the imposition of a restraint on the administrators to prevent them from releasing any of IGPC's claims in relation to the failures of units C3 and C4. That relief was sought in the originating process as interlocutory relief and, whilst no application to amend was made, the defendants did not appear to object to it being sought as final relief. 194 Nevertheless, such relief should not be granted. It is not needed, as there appears to be no risk that the administrators will release any of IGPC's claims without sufficient reason. Any attempt to do so could be enjoined in the future. It may be that, if CEPL seeks to enforce the compulsory acquisition of IGPC's joint venture interest, a number of causes of action might be transferred. That, however, would be a consequence of the operation of the parties' agreement, rather than any independent action by the administrators. Presently, there is no articulated claim that might be relied upon to prevent CEPL from enforcing its rights. That is not to say that such a claim does not exist, and counsel for Sev.en identified some causes of action that might, with a bit of work and elaboration, be called in aid to justify injunctive relief. 195 The defendants pointed out the absence of any undertaking as to damages by Sev.en. However, that is not a relevant consideration where the injunctive relief sought is final. 196 For the foregoing reasons, the injunctive relief should be refused. The potential claims that IGPC may have against CEPL or CSEL 197 As mentioned, and as was observed in Melhelm Pty Ltd v Boka Beverages Pty Ltd (in liq) (2019) 138 ACSR 95 at 105 [59], it is neither necessary nor appropriate for this Court to make findings in relation to the potential claims that a company in administration may have against third parties. Nevertheless, Sev.en made substantial submissions as to the nature of the possible causes of action and, to some extent, their strength. It did so in an apparent effort to support the making of the orders sought. 198 Despite Sev.en's desire to secure some findings as to the potential causes of action, little should be said other than that the evidence establishes that there is a degree of likelihood that a number of causes of action may exist, even if their merits are unable to be ascertained at this point. Necessarily, those causes of action arise from the failures of units C3 and C4 at a time when CSEL was responsible for their maintenance and operation, and the not unreasonable prima facie inference that the failures would not have occurred in the absence of some neglect or default on its part. It must be stressed that it may well be that the failures occurred in the absence of any act or omission by CSEL, or it may well have conclusive defences to any claim that might be made. Indeed, those defences may arise from the Operation and Management Agreement itself, and the terms therein limiting its liability. Whether those clauses are sufficient to exclude claims made under the Australian Consumer Law (being Sch 2 to the Competition and Consumer Act 2010 (Cth)), however, is a question that will need to be determined: see Viterra Malt Pty Ltd v Cargill Australia Ltd [2023] VSCA 157 [450], [712]. 199 It was also submitted that IGPC may have a claim for unconscionability, which might prevent CEPL from exercising its rights of compulsory acquisition under the Joint Venture Agreement. It was said that, if the wrongful conduct of the parent company caused damage to IGPC which, in turn, triggered the compulsory acquisition clause, those circumstances may prevent its enforcement. At first blush, such a claim under s 21 of the Australian Consumer Law might seem to have no more than moderate chances of success. However, a consideration of the several reasons for judgment in the High Court's decision in Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1 reminds one that the section is extremely wide and may require only a departure from acceptable commercial behaviour. Necessarily, whether that has occurred in this case is dependent upon the particular circumstances. An initial hurdle for Sev.en is that it was CSEL that allegedly caused IGPC's loss, not CEPL (which is the joint venture partner seeking to enforce the agreement). Nevertheless, a quick perusal of the documents relating to the parties' interactions suggests the possibility that the operation of units C3 and C4 occurred via groups of economic interests, rather than through the operation of individual companies. If that were the case, and it is far from clear, then it might follow that any wrong committed by CSEL that caused IGPC's insolvency could bar CEPL's reliance on the strict terms of the Joint Venture Agreement. 200 Whether a claim based on s 21 of the Australian Consumer Law can be advanced is far from certain. However, it is also far from improbable — at least, as the facts are currently known. 201 Overall, the evidence supports the conclusion that there may well be several claims that IGPC might pursue, which might serve to protect its interest in ensuring that: (a) its assets, including its causes of action, are correctly valued; (b) its interest in the joint venture is not improperly appropriated; and (c) if its interest in the joint venture is taken, it receives the value to which it is entitled. The absence of any evidence of urgency under the JVA Sale Process 202 A further issue in these proceedings concerned the exigencies of the circumstances of CEPL's enforcement of its rights under the Joint Venture Agreement. It was common ground that CEPL has sought to enforce a transfer of IGPC's interest in the joint venture and that the agreed process of valuing IGPC's interest has begun. It was suggested that this created an urgency relevant to the exercise of the Court's discretion. Whilst that should be accepted, each party asserted that this supported their position. For the defendants, it was submitted that, as the acquisition under the Joint Venture Agreement is likely to conclude in the near future, there is insufficient time for special purpose administrators adequately to investigate and consider whether any claims exist and, if so, what they are worth. Though there is some force in this, it is, as Sev.en submitted, ameliorated because it was the administrators' failure to perform their duty which has caused the problem in the first place. In any event, though the time to investigate may be short, if, as the administrators say, they have numerous reports that have accumulated over time, that should work to hasten the special purpose administrators' assessment. 203 Conversely, the current administrators have not adequately, or at all, sought to ascertain what claims IGPC may have against CSEL or what relief might obtain in relation to CEPL's attempt to enforce the transfer under the Joint Venture Agreement. They are seemingly prepared to capitulate to CEPL's demands, despite the absence of any sufficient consideration of the relevant issues. In this context, whilst it may be that the timeframe for achieving an outcome is limited, there exists a possibility that some claims can be ascertained and used to preserve IGPC's position. Even if the possibility was not significant, some substantial benefit could still be achieved if claims were identified and valued. 204 Further, the attitude of the current administrators discloses that they are not prepared to pursue any relief in relation to CEPL's asserted claim to IGPC's joint venture interest. It was on this basis that Sev.en sought orders that the special purpose administrators have wide powers to commence and prosecute proceedings arising from their investigation. It also sought orders that the special purpose administrators have power to defend any legal proceedings in which any third party seeks to acquire IGPC's interest in the joint venture. Whilst, initially, such orders might seem excessive, the administrators' conduct in this case has, on the basis of the material presently before the Court, left IGPC in a very difficult position. It is potentially exposed to significant loss. Whilst these conclusions arise on limited material before the Court, the current administrators did have the opportunity to provide a fulsome explanation for their actions. As has been described above, they chose not to do so. 205 In any event, in the circumstances of urgency and risk of loss created by the current administrators, it is appropriate that the special purpose administrators have sufficient power to protect the assets of IGPC as best as they now might be able to. 206 Another issue arising from the exigencies of the particular circumstances is that, whilst the transfer of IGPC's interest remains outstanding, CEPL is required to meet IGPC's unpaid called sums under the Joint Venture Agreement. However, to the extent that it is so required, it is entitled to recoup any amount paid from IGPC and no doubt that will result in a reduction in the sale price of any transfer of the joint venture interest. In any event, once the transfer occurs, CEPL will be required to pay 100% of the called sums, with the result that any delay does not truly impact it. Other factors 207 There was a suggestion, albeit unsupported by evidence, that the appointment of the nominated special purpose administrators funded by Sev.en will give rise to a difficulty of impartiality. However, there is no reason to believe that is so. First, there is nothing in the conduct of the proposed administrators to suggest that they would not be impartial and fair in dealing with the creditors of the company. The indemnification by Sev.en is important because it protects the assets of IGPC generally and that has been recognised as an important consideration. The mere fact that the special purpose administrators are to be paid by Sev.en for their work does not call their impartiality into question. There is a need for them to be paid and, where a creditor is prepared to make finance available for the benefit of all creditors, no immediate conflict of interest arises. If it were to transpire that their conduct was genuinely called into question, the fact that Sev.en was paying them might be relevant. Presently, no such issue arises. 208 It was alleged that the appointment of special purpose administrators to investigate possible claims against CEPL and CSEL was prejudicial to them. Though it is true that these two companies are the likely targets of investigation, and in that sense the appointment is detrimental to them, that is only in their capacity as potential wrongdoers and not in their capacity as creditors of IGPC. That is no basis for rejecting the application. 209 Sev.en has expressed confidence in the proposed special purpose administrators. That is appropriate, and no evidence has been adduced to query whether that confidence is well founded. Both of the proposed administrators, Mr Park and Mr Campbell, are well known to the Court as respected and experienced insolvency practitioners. 210 The appointment of the special purpose administrators will probably necessitate an extension of the convening period for the holding of the second meeting of creditors or its adjournment. That is unfortunate, but it is a consequence of the current administrators having failed, over an extended period of time, to acquire sufficient information as to the failures of units C3 and C4 which is crucial to the creditors' decision at the second meeting. 211 Necessarily, the extension of the administration should not be indefinite. However, the present difficulty is that the current administrators have chosen not to provide the Court with any clear picture of the extent of their investigations to date, and it is not known what work may be available to the special purpose administrators to build upon. It is, therefore, preferable not to set limitations on them. Rather, they and the current administrators can make appropriate applications to the Court as the circumstances require. At each application for an extension, the Court can consider whether further time should be allowed. 212 It was submitted that the appointment will not impact the JVA Sale Process because there is agreement that IGPC's claims do not form part of the interest transferred under that process. It is, with respect, not entirely clear that the potential claims do not form part of that interest. As mentioned, the administrators have adopted differing positions on this topic. Impact on the NBIO Process 213 Whilst there is a risk that the appointment of the special purpose administrators will delay the NBIO Process or the JVA Sale Process, that concern is offset by the likely benefits of a proper investigation into the failures of units C3 and C4. It is also not immediately clear that the NBIO Process will be delayed. The speed at which it progresses is a matter determined by reference to the contractual rights contained in the Joint Venture Agreement and whatever rights, if any, IGPC might have to restrain their enforcement. The powers granted to the special purpose administrators are apt to enable them to deal with any relevant litigious issue which arises. The position of creditors 214 It is relevant that there is no support for the making of the orders from the creditors of IGPC. CSEL, which is the largest creditor, opposes the making of the orders, though that is understandable given that it is the obvious target of the investigations that are proposed to be undertaken. IGPC's second largest creditor, IEHA, also appears to oppose the orders, but it is under the control of the administrators and its opposition does not carry much weight. Sev.en is the major creditor of IEHA, and it obviously supports the application. It was not explained why the administrators in their capacity as the controllers of IEHA opposed the application when Sev.en was its proponent. 215 The defendants submitted that a risk associated with the appointment of special purpose administrators was that offers made under the NBIO Process which were currently available, and which would enable the creditors to be fully paid, may be lost. It was not explained why parties who were prepared to make significant payments to acquire the assets or business of IGPC would not be prepared to maintain their offer in the future in circumstances where they have greater certainty as to the causes of action that they might acquire. Underlying the administrators' submission in this respect is the suggestion that the investigations are likely to yield information that will alter IGPC's value or, at least, the perception of its value. If that were so, one would have thought that they would have expressly identified it, even if it be in a confidential affidavit. In any event, as the circumstances are, it is unlikely that any sale will eventuate via the NBIO Process. CEPL has insisted on exercising its rights to compulsorily acquire IGPC's interest and, absent a change of heart on its part, the acquisition is likely to proceed — subject to any action by IGPC to restrain it. The terms of the appointment 216 The defendants raised an objection to the terms of the appointment, being that the proposed funding deed not only permits but requires the special purpose administrators to "consult in good faith concerning the availability and commencement of any Recovery Proceeding" with Sev.en (see cl 5.1(a)) and to provide it with regular reports (see cl 7.4). This creates a situation in which Sev.en will receive information gathered in the administration of IGPC to which it would otherwise have no entitlement, as it is not a creditor of IGPC. 217 It was not explained why, given its obvious economic interest in the administration and the outcome of the investigation, and its preparedness to financially support any future litigation, Sev.en ought not to have access to the results. Necessarily, the administrators will have access to the report and will be able to disclose its contents as they see fit. The pursuit of any recovery action is likely to be in the interests of all creditors, and this complaint has no relevance to the Court's exercise of power. 218 The defendants' complaint that some delay will arise and extra expense will be incurred when the special purpose administrators seek approval of a funding agreement is unmeritorious. Even if there is such a delay and expense, it will be minimal in the scheme of this matter. It will likely be greatly outweighed by the benefits possibly to be derived from the appointment of the special purpose administrators. The practical difficulties 219 The defendants submitted that the Court should decline to make the orders sought because of several practical difficulties arising from them. Before considering them, it ought to be made clear that there is no doubt that this application has been made in the late stages of the administration, with the inevitable result that there will be some practical limitations to the appointment of special purpose administrators. However, this application has been brought in an to attempt to mitigate the potential losses that might occur for IGPC and its creditors because of the failure by the current administrators to undertake any investigations into the causes of the failures at the Callide C plant. Many of the alleged practical concerns have been dealt with or are covered by earlier findings and conclusions. Of the remainder, whilst some of them might superficially raise some concern, on closer inspection any real hindrance is chimerical. 220 The defendants submitted that it would be possible that the special purpose administrators might be converted to special purpose liquidators, which would generate difficulties. However, whether that occurs is a matter for IGPC's creditors and, in the present circumstances, it is something that is unlikely to occur. 221 The defendants rightly complained of the restriction contained in one of the orders proposed by Sev.en, to the effect that the administrators would not have access to reports prepared by the special purpose administrators. Such a restriction would prevent the administrators from discharging their obligations under r 75-225(3)(a) of the IPR to report to creditors in relation to the causes of action or to make any relevant recommendations. This has been referred to above and resolved by the making of orders that the special purpose administrators provide copies of all reports of their investigations to the current administrators. 222 A third practical difficulty was said to be that there is no indication of when or how an application for an extension of the convening period would be made. It was said that this stands in contrast to the position in Jahani, where the application for an extension was properly made at the same time as the application for the appointment of the special purpose administrators and their work was to coincide with the duration of the administration. That, with respect, is overcome by the grant of power to both sets of administrators to make the relevant application or applications. Undoubtedly, each set of administrators will be proper parties to any such application and may make such submissions as they see fit. As professional persons, it might be accepted that reasonable attitudes and stances will be adopted for the purpose of ensuring that the objective of providing appropriate advice to the creditors is achieved. 223 It was submitted that the special purpose administrators would require the approval of the creditors for the bringing of any claim and, because the power of the creditors is controlled by CEPL or the administrators, that approval will not be granted. However, an administrator's capacity to bring proceedings is not so constrained and s 442A of the Act specifically grants power to bring any proceedings. There is nothing in that purported concern. Conclusions 224 The foregoing discussion leads inevitably to the conclusion that the special purpose administrators should be appointed for the purposes of investigating the claims that IGPC might have against CEPL and CSEL. The failure of the current administrators to investigate such claims adequately, notwithstanding the fact that they might add substantially to IGPC's value, is central to that conclusion. 225 The orders that should be made are somewhat different to those originally sought by Sev.en, but not substantially so. 226 The appropriate orders are those accompanying these reasons. Costs 227 The parties will be heard on the question of costs. I certify that the preceding two hundred and twenty-seven (227) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Derrington. Associate: Dated: 29 January 2024	34,552
federal_court_of_australia:fca/single/1999/1999fca0154	decision	commonwealth	federal_court_of_australia	text/html	1999-02-19 00:00:00	Gore v Montague Mining Pty Ltd [1999] FCA 154	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1999/1999fca0154	2024-09-13T22:53:14.274641+10:00	FEDERAL COURT OF AUSTRALIA Gore v Montague Mining Pty Ltd [199] FCA 154 PETER L GORE & ORS TRADING AS CLAYTON UTZ v MONTAGUE MINING PTY LIMITED NG 563 of 1997 HILL, LEHANE AND HELY JJ 19 FEBRUARY 1999 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 563 OF 1997 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: PETER L GORE & ORS TRADING AS CLAYTON UTZ Appellant AND: MONTAGUE MINING PTY LIMITED Respondent JUDGES: HILL, LEHANE AND HELY J DATE OF ORDER: 19 FEBRUARY 1999 WHERE MADE: SYDNEY CORRIGENDUM Please note that the names of the Appellant and Respondent were incorrect in the the Reasons for Judgment handed down on 19 February 1999. A copy of the amended judgment is attached herewith. Joanne Harland Associate to the Honourable Justice Hill 27 April 1999 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 563 OF 1997 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: PETER L GORE & ORS TRADING AS CLAYTON UTZ Appellant AND: MONTAGUE MINING PTY LIMITED Respondent JUDGES: HILL, LEHANE AND HELY J DATE OF ORDER: 19 FEBRUARY 1999 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG 563 OF 1997 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT BETWEEN: PETER L GORE & ORS TRADING AS CLAYTON UTZ Appellant AND: MONTAGUE MINING PTY LIMITED Respondent JUDGES: HILL, LEHANE AND HELY J DATE: 19 FEBRUARY 1999 PLACE: SYDNEY EX TEMPORE REASONS FOR JUDGMENT 1 HILL J: The appellant, Peter Gore, seeks leave to appeal against what are said to be orders made by Wilcox J in a judgment delivered by his Honour on 23 October 1998. 2 In that judgment his Honour indicated that liability had been made out as against the appellant but that, as damage was one of the elements of the tort of negligence, it was necessary to proceed to an assessment of damages. The orders actually made by his Honour appear in the short minutes at the commencement of the published version of the judgment and relate only to matters concerned with the subsequent management of the litigation. 3 It is my view, a view which is shared by the respondent and the appellant, that no orders have been made by his Honour to the effect that the appellant was liable in negligence. In these circumstances, there is no interlocutory order in respect of which leave to appeal can proceed. Consequently, the application for leave should be dismissed with costs. 4 LEHANE J: I agree 5 HELY J: I agree. 6 HILL J: The order of the Court accordingly will be that the application for leave to appeal be dismissed and that the appellant pay the respondent's costs of that application. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Hill, Lehane and Hely. Associate: Dated: 19 February 1999 Solicitor for the Appellant: Cashman & Partners Counsel for the Respondents: Mr A Spencer Solicitor for the Respondents: Corrs Chambers Westgarth Date of Hearing: 19 February 1999 Date of Judgment: 19 February 1999	959
federal_court_of_australia:fca/single/2013/2013fca1250	decision	commonwealth	federal_court_of_australia	text/html	2013-11-22 00:00:00	Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2013/2013fca1250	2024-09-13T22:53:14.547686+10:00	FEDERAL COURT OF AUSTRALIA Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 Citation: Russell v Institution of Engineers Australia t/a Engineers Australia [2013] FCA 1250 Parties: BRONWYN RUSSELL v THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA File number: ACD 111 of 2013 Judge: FOSTER J Date of judgment: 22 November 2013 Catchwords: INDUSTRIAL LAW – whether the Court should order the interim reinstatement of the applicant as a senior employee of the respondent – relevant principles discussed – whether, upon the true construction of the applicant's employment contract, the term of the applicant's employment was to end on 2 February 2014 by effluxion of time Legislation: Fair Work Act 2009 (Cth), ss 44, 97, 340, 351, 352, 361, 545(2)(a) and 546 Cases cited: Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 applied Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 applied Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 applied Sanders v Snell (1998) 196 CLR 329 cited Date of hearing: 15 November 2013 Place: Sydney (via video link to Canberra) Division: FAIR WORK DIVISION Category: Catchwords Number of paragraphs: 86 Counsel for the Applicant: Mr J Macken Solicitor for the Applicant: Badgery & Rafferty Lawyers Counsel for the Respondent: Mr M Irving Solicitor for the Respondent: Bradley Allen Love IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION ACD 111 of 2013 BETWEEN: BRONWYN RUSSELL Applicant AND: THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA Respondent JUDGE: FOSTER J DATE OF ORDER: 22 NOVEMBER 2013 WHERE MADE: SYDNEY (VIA VIDEO LINK TO CANBERRA) THE COURT ORDERS THAT: 1. The applicant's application for interim relief be dismissed. 2. There be no orders as to the costs of the said application. 3. The proceeding be listed for directions at 9.15 am on 6 December 2013 before the A.C.T. List Judge. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY FAIR WORK DIVISION ACD 111 of 2013 BETWEEN: BRONWYN RUSSELL Applicant AND: THE INSTITUTION OF ENGINEERS AUSTRALIA TRADING AS ENGINEERS AUSTRALIA Respondent JUDGE: FOSTER J DATE: 22 NOVEMBER 2013 PLACE: SYDNEY (VIA VIDEO LINK TO CANBERRA) REASONS FOR JUDGMENT 1 Until 4 September 2013, the applicant was employed by the respondent in a senior position as its General Manager, Northern Division (previously called "Director, Northern Division"). She had occupied that position continuously since 13 October 2003. In the ten year period during which she was employed by the respondent, she entered into three formal employment contracts, the last of which was signed by the parties on 2 February 2009 although that contract was expressed to be effective from 13 October 2008. The applicant is 63 years of age. She will turn 64 next Monday. 2 On 4 September 2013, the respondent purported to terminate the applicant's employment. Notice of that purported termination was given to the applicant by email sent by Mr Ben Leaver who is the Executive General Manager, Member Delivery, of the respondent at 1.13 pm on that day. Mr Leaver had been appointed to that position in July 2012. 3 The applicant has not accepted the termination of her employment. 4 The parties referred their dispute to Fair Work Australia for conciliation. The dispute was not resolved by that organisation. 5 On 11 November 2013, the applicant commenced the current proceeding by filing an Originating Application under the Fair Work Act 2009 (Cth) (FWA) in which she alleges that she was dismissed in contravention of certain general protection provisions found in the FWA and in breach of her current employment contract. On the same day, she also filed a Statement of Claim and an affidavit sworn by her on 10 November 2013. In this proceeding, she seeks declaratory relief, statutory compensation, damages for breach of her current employment contract and the imposition of a pecuniary penalty on the respondent. She also seeks reinstatement. 6 In her Originating Application, the applicant made a claim for interim relief in the following terms: [The applicant claims] an order in the nature of an interim injunction pursuant to section 545(2)(a) of the FW Act that the Respondent by itself, its servants or agents treat as invalid and of no force and effect its termination of the Applicant's employment on 4 September 2013, such order to remain in effect until the determination of these proceedings or until the Court orders otherwise. 7 It is the applicant's claim for reinstatement which is said to be the final relief which supports the application for interim relief with which these Reasons for Judgment are concerned. 8 The applicant sought an urgent hearing of her application for interim relief. I heard that application last Friday (15 November 2013). 9 These Reasons for Judgment determine the applicant's application for interim relief to which I have referred at [6] to [8] above. The Applicant's Case 10 The applicant brings several claims based upon contraventions of the FWA and also alleges that the respondent has breached her current employment contract. The applicant relies upon all of the causes of action pleaded in her Statement of Claim as supporting her claim for interim relief. However, Counsel who appeared for the applicant at the interlocutory hearing submitted that the "weight" of his case at the moment was to be found in the applicant's case under the FWA. 11 First, the applicant alleges that her employment was terminated by the respondent because she was absent from work on sick leave. She says that she was genuinely ill for several days prior to and on 4 September 2013 and that she had availed herself of her entitlement to sick leave for that reason. She complains that the respondent terminated her employment because she was on sick leave and that her employment was therefore terminated for a prohibited reason in contravention of s 352 of the FWA. 12 Second, the applicant alleges that, under her contractual arrangements with the respondent, she was entitled to make a complaint in relation to her employment including in relation to any consideration being given by the respondent to terminate that employment. The applicant alleges that her employment was terminated on 4 September 2013 in order to prevent her from making a complaint to the Northern Division President of the respondent in relation to the respondent's proposal to terminate her employment and thereby contravened s 340(1)(b) of the FWA (adverse action to prevent the exercise of a workplace right by the applicant). 13 Third, the applicant alleges that her employment was terminated because of her age and that, by terminating her employment for that reason, the respondent contravened s 351 of the FWA. 14 Fourth, the applicant alleges that she was entitled to take paid personal leave on account of illness under the National Employment Standards and that, when the respondent terminated her employment because she was absent on sick leave (as she alleges), the respondent contravened s 44 and s 97 of the FWA. 15 Fifth, the applicant alleges a breach of her current employment contract. The applicant alleges that, as at 4 September 2013, none of the grounds upon which the applicant's employment by the respondent could be terminated existed. For this reason, so she claims, there was no basis upon which the respondent could validly have terminated her employment on 4 September 2013. 16 In addition to the above matters, the applicant claims that her current employment contract included an implied obligation that the term of her employment would be extended beyond the end date specified in that contract. She also argues that, by terminating her employment in the manner which he did, Mr Leaver acted in breach of the by-laws and regulations of the respondent. These additional matters are pleaded at pars 28 to 31 of the applicant's Statement of Claim in the following terms: 28. The contract of employment included an implied obligation that, if the employment was not terminated, the contract would be extended at the end of the period of the contract on the same terms, or such other terms as agreed, unless the Respondent had given the Applicant 4 months' notice of its intention to not extend the contract ("the obligation to extend the contract"). PARTICULARS a. It is reasonable and equitable that where no grounds exist for terminating the employment and the position and the employment are ongoing and no notice has been given of intention to not extend the contract, the terms of employment are to be extended, or varied by agreement. b. The obligation to extend the contract is necessary to give efficacy to: i. the ongoing nature of the position and the employment; ii. the requirement at clause 7 of the 2009 Contract to give notice of the intention to not extend the contract; c. The obligation to extend the contract is self-evident. d. The obligation to extend the contract is not contrary to any term of the 2009 Contract. 29. By its conduct in terminating the Applicant's employment as alleged at paragraphs 23 to 27 the Respondent deprived the Applicant of the benefit of [sic] obligation to extend the contract. Termination of employment was contrary to law 30. The Respondent's termination of the Applicant's employment was contrary to law. PARTICULARS a. The Respondent's Council is empowered to make Regulations giving effect to its by-laws (Institution of Engineers Australia 2011 By-laws; by-law 32) b. The by-laws and Regulations made under them are binding on members of the Respondent (By-law 12.2) c. By Regulation 4.2.3 of the Division Regulations, the Chief Executive must consult with the Division President on the appointment, staff appraisal and termination of the Division Director. 31. The Respondent's Chief Executive was obliged by the Respondent's Division Regulations at 4.2.3 to consult with the Northern Division President about the proposed termination, but did not do so. 17 In her Statement of Claim, the applicant also specifically addresses the question of whether damages are likely to be an adequate remedy in the present case and also the balance of convenience in respect of her application for interim relief. In her pleading, she claims that she has suffered reputational damage as a result of the termination of her employment and has lost the intangible benefits of being employed by the respondent. She alleges that, given her age, her prospects of future employment are limited and have been seriously damaged by the conduct of the respondent in terminating her employment in the manner in which it did. The Applicant's Employment Contract 18 As I mentioned at [1] above, the applicant's current employment contract was signed by the parties on 2 February 2009. It comprises an Offer of Appointment of nine pages which consists of the following items: (a) A letter of offer of five pages signed by the then Chief Executive of the respondent (Mr Taylor). That letter of offer contains detailed terms and conditions; (b) A schedule in which the applicant's Remuneration Package is specified; (c) A single page constituting the applicant's Acceptance of the offer made to her; and (d) A set of principles of two pages in length entitled "Our People" which is said to have been included in order to provide guidance as to the behaviour expected of the respondent's employees. 19 Clauses 5 to 11 of the Offer of Appointment in the applicant's current employment contract are in the following terms: Terms of Employment 5. Your reappointment continues your employment with Engineers Australia which commenced on 13 October 2003. 6. This contract shall remain in force for a period of 5 years up until 2 February 2014. 7. The contract may be extended by mutual agreement at any time during the last year of its term. At least 4 months notice is to be given by either party of its intention not to extend the Contract, and this may be shortened by mutual agreement. Responsibilities 8. Engineers Australia expects the highest standards of professional and personal behaviour from every member of staff. This includes showing proper respect for other staff, as well as the members of Engineers Australia, and valuing the contributions that all can make, regardless of their role or position in the organisation. 9. Engineers Australia will not tolerate unacceptable behaviour, including any form of discrimination, harassment or bullying, and will take strong action to remove such behaviours from the workplace. Performance 10. You will be expected to continue to carry out your duties as described in your Position Description, in accordance with the requirements of Engineers Australia's Strategic and Operational Plans. 11. A performance review plan will be developed, which will form the basis of your ongoing performance review, as part of Engineers Australia's Staff Development Scheme. In addition, you will also be judged as to how you have performed against the competencies required for your position. 20 Clauses 26 to 30 deal with the applicant's leave entitlements. Clauses 27 and 28 are in the following terms: 27. Personal leave, covering sick and carers leave, on 15 working days per annum may be granted at full pay. Personal leave may accumulate, but unused leave will not be paid out on termination of employment. As part of personal leave you have access to 10 days leave per annum as carers leave to care for immediate family members. This will come out of personal leave entitlements. 28. If you are absent from duties for more than two consecutive days for sick or carers leave purposes, you must provide a medical certificate for the total period of your absence. 21 Clauses 34 to 36 deal with termination of the applicant's employment. Those clauses are in the following terms: Termination 34. Engineers Australia may terminate your employment immediately without notice (or payment in lieu of notice) if you are guilty of serious misconduct. 35. Your employment can cease if, following formal counselling, your performance is not up to the required level. Also, in the event that the position ceases to exist as a result of changed organisational arrangements within Engineers Australia, employment can be terminated with the entitlement to redundancy provisions in accordance with Engineers Australia policy. 36. Engineers Australia may terminate employment by giving written notice. In these circumstances, Engineers Australia will make a payment of between 1 to 4 weeks salary (pro rata), depending on the period of continuous service, in lieu of notice for some or all of the notice period. The Respondent's Royal Charter, Regulations and By-Laws 22 The current version of the respondent's Royal Charter was approved by the Governor-General on 26 September 2011. The original Charter had been approved by King George VI on 10 March 1938. 23 Clause 6 of the Royal Charter provides that the by-laws made under the Royal Charter must regulate membership of the respondent. 24 The respondent's by-laws do, in fact, regulate membership including by specifying various grades of membership. Those by-laws also regulate various organs of the respondent, including its Council. 25 The Council has made regulations pursuant to the respondent's by-laws. They are called "Division Regulations" and are designed to regulate the workings of the various divisions of the respondent. The current version of the respondent's Division Regulations was adopted by the respondent's Council on 23 November 2010. 26 Clauses 4.2.3 and 4.2.4 of the Division Regulations are in the following terms: 4.2.3 Division staff members are appointed by and are accountable to the Chief Executive. Subject to any confidentiality and legislative or legal requirements, the Chief Executive is to consult with the Division President on the appointment, staff appraisal and termination of the Division Director. 4.2.4 The Chief Executive or delegate is to consult with the Division Committee on: a) the preparation of an annual division operational plan and budget; b) significant division premises investment and planning decisions; and c) other matters of significance to the overall business and conduct of Engineers Australia at the division level. 27 Under the respondent's by-laws, the Chief Executive is to conduct the ordinary business of the respondent. A Division Director is the prime staff point of contact for division office bearers and manages staff, assets and finance in accordance with the Chief Executive's delegations (By-Laws 40.3 and 40.5 and Regulation 4.1.2). The Relevant Facts 28 The applicant alleges that she has always been a satisfactory employee of the respondent and has always been well-regarded by other members of staff and professional colleagues who dealt with her from time to time over the years. She tendered in evidence several of her performance reviews and a number of testimonials which, for present purposes, are sufficient to provide an evidentiary foundation for the applicant's contentions in this regard. 29 In April 2013, the applicant became involved in a contretemps with the Chief Executive of the respondent (Mr Durkin) and Mr Leaver concerning whether the applicant was responsible for circulating a rumour amongst the respondent's staff to the effect that Mr Durkin was planning to reduce the number of divisions of the respondent from nine to five. The applicant believed that, after some discussions involving Mr Durkin, Mr Leaver and others, her superiors were satisfied with her explanations and denials in respect of this matter. 30 In May 2013, Mr Leaver commenced reviewing the salaries of senior staff. As part of that process, Mr Leaver sought the views of Ms McCormick, the President of the Northern Division, as to the applicant's performance in the year to June 2013. In response to Mr Leaver's request, Ms McCormick gave a very favourable assessment of the applicant and her performance. 31 By letter dated 7 June 2013 which was sent by Mr Leaver to the applicant under cover of an email dated 19 June 2013, the respondent informed the applicant of the terms of her salary review which was to come into effect at the end of June 2013. The salary review letter was signed by both Mr Durkin and Mr Leaver. The letter was a formal communication dealing with the applicant's performance and salary. It contained no criticism of the applicant's performance. Furthermore, Mr Leaver endorsed the letter with a personal note which, although not expressed in glowing terms, nonetheless conveyed the message that Mr Durkin and Mr Leaver were content with the applicant's performance. 32 The email sent on 19 June 2013, however, contained a number of criticisms of the applicant's performance. It is not necessary to refer to those criticisms in detail. They focussed on the applicant's manner of dealing with others and her communication skills. At the very end of the email, Mr Leaver drew the applicant's attention to the fact that he was still hearing rumours about the closure of some divisions of the respondent and that those rumours appeared to have their source in comments made by the applicant. 33 The applicant testified that, on 18 June 2013, she spoke with Mr Leaver by telephone. She said that he informed her then that she was receiving only a 1% increase in her salary because her performance had not met the respondent's expectations. This was the lowest salary increase given to employees of the respondent at the level at which the applicant was employed (Divisional General Manager). 34 The applicant was unhappy with the quantum of her salary increase and expressed her unhappiness to Mr Leaver. Mr Leaver responded by suggesting that he and another staff member responsible for "People Development" within the respondent (Merisha Percival) should come to Darwin in early August to discuss the applicant's employment with the applicant. 35 In August 2013, the applicant registered her concerns about being bullied by Mr Leaver with Ms Percival. 36 A further incident involving the applicant and Mr Leaver arose in mid-August 2013. It concerned other rumours allegedly circulated by the applicant which were, according to Mr Leaver, untrue. 37 Relations between the applicant and Mr Leaver thereafter deteriorated even further. 38 The applicant claims that, on 1 September 2013, she fell ill. She did not give any evidence before me as to the nature of her illness. On the same day, she informed a co-worker that she would not be at work in on Monday, 2 September 2013. On 2 September 2013, she attended her General Practitioner's clinic and obtained a medical certificate which stated that she was suffering from a medical condition and would be unfit to attend work from 2 September 2013 to 9 September 2013. 39 On 3 September 2013, Mr Leaver sent an email to the applicant in which he informed her that he would be travelling to Darwin the next day (4 September 2013) with Ms Percival. The applicant did not inform Mr Leaver that she was at home on sick leave and would not be in the office at work on 4 September 2013. 40 Mr Leaver and Ms Percival did travel to Darwin on 4 September 2013 and endeavoured to meet with the applicant. In the period from 11.16 am to 1.00 pm on that day, Mr Leaver and the applicant exchanged text messages. Mr Leaver wanted to arrange a meeting with the applicant. She declined to meet with Mr Leaver. She said she could not do so because she was ill. The last text message was sent by the applicant to Mr Leaver at 1.00 pm on 4 September 2013. It was in the following terms: Ben, i am sick and not at work. It is not appropriate that i attend to work matters when i am home on sick leave. Happy to speak with you when I am back at work. 41 At 1.13 pm on 4 September 2013, Mr Leaver sent an email to the applicant which included the following: Dear Bronwyn, Subject: Termination of Employment As you know Merisha Percival from People Development and I have come to the Northern Division Office in Darwin today, 4 September 2013 to meet with you and your team. You did not inform us of your leave of absence and therefore we were unaware that you were not going to be in the Darwin office today. The purpose of this visit was to provide you with notice of termination of employment effective Wednesday, 4 September 2013. You are not required to work out your notice; therefore your last day of duty will be today, 4 September 2013. As per your contract dated 2 February 2009, Engineers Australia will provide payment in lieu to the end of your fixed term contract date of 2 February 2014. 42 The balance of the email dealt with the mechanics of organising the applicant's termination. The last paragraph of the email was expressed as follows: On behalf of Engineers Australia and the team, thank you for all your efforts during your time with us. 43 The applicant was subsequently paid her salary and other entitlements for the period up to 2 February 2014. 44 I understand that there may be some difference of opinion between the parties as to whether she has been paid all of those entitlements. However, it was the respondent's intention to pay all of those entitlements and it remains willing to do so. 45 On 10 September 2013, the respondent advertised for a replacement for the applicant. The applicant became aware of that advertisement soon after it was placed. 46 The respondent has engaged a replacement employee who is to commence employment in the Darwin office of the respondent on 25 November 2013. 47 At par 53 of her affidavit sworn on 10 November 2013, the applicant said that, had she been told that the respondent did not intend to extend her employment, she would have had an opportunity to seek to have that decision reversed by discussing the matter with the Northern Division President (Ms McCormick) with a view to enlisting the President's aid and support in trying to keep her employment. At pars 56 to 60 of the same affidavit, the applicant made the point that the termination of her employment deprived her of an opportunity to salary sacrifice larger amounts into superannuation over the next two years. At pars 61 to 63 of the same affidavit, she also said that she would have difficulty in obtaining suitable alternative employment because of her age but also because of the circumstances of her termination. 48 The applicant also gave evidence of two discussions which she had had in 2012 concerning her retirement plans. She said that she told Mr Durkin on one occasion and Mr Leaver on another occasion that she planned to retire in December 2015. As recounted by the applicant, there was nothing said by either Mr Durkin or Mr Leaver that could be construed as constituting acceptance on behalf of the respondent of the proposition that the applicant's employment was secure until December 2015. The evidence rose no higher than the applicant expressing her intentions. No commitment was made by either Mr Durkin or Mr Leaver that the applicant would be employed until December 2015. 49 Mr Leaver gave evidence at the hearing of the applicant's application for interim relief. He was not cross-examined so that his evidence has not yet been tested. In the first of two affidavits sworn by him, he explained the concerns which he held about the applicant's performance in the year ended June 2013. He said that the applicant had abused her work travel entitlements, had engaged in out-of-work activities during work time, had behaved badly towards Mr Durkin and himself and had been engaged in untrue gossip about the closure of the Northern Division and the termination of another staff member's employment. Mr Leaver denied that he had terminated the applicant's employment for any prohibited reason or as a result of any adverse action within the meaning of the FWA. In particular, he said that the applicant's age had not been a factor in his decision to terminate her employment. Nor had the circumstance that she was on sick leave when he travelled to Darwin in early September 2013 been a factor in his decision to terminate her employment. He also denied that her decision not to attend the work meeting which he tried to arrange on 4 September 2013 had been a factor in his decision to terminate her employment. 50 It was Mr Leaver's evidence that he had made a decision to terminate the applicant's employment by no later than 21 August 2013, after discussing the prospect of that termination with Mr Durkin and Ms Percival. He also said that Mr Durkin had informed him that he (Durkin) had raised with members of the respondent's Council at the Council meeting held on 21 August 2013 the prospect of terminating the applicant's employment and had received strong support for Mr Leaver's decision to do so from all Council members. Mr Leaver said that he did not communicate his termination decision to the applicant while she was in Canberra in late August 2013 because he thought that it was insensitive to do so when she was there amongst her peers and away from home. He said that he knew that she was on leave the following week so that the earliest point in time at which the decision could be communicated was the first week of September 2013. 51 Mr Leaver made the obvious point that, in light of the fact that the applicant's position had been advertised and filled with the new employee to start next Monday, it would be extremely difficult for the respondent to manage any reinstatement of the applicant, particularly if it was only for a short period. 52 Mr Leaver also said that, given that he was based in Melbourne and the applicant was employed in Darwin, it would be very difficult for him effectively to supervise her should she be reinstated. He also said quite bluntly that he no longer trusted her to perform her job in the best interests of the respondent. The Relevant Legislative Provisions 53 Sections 44, 97, 107, 340, 341, 351(1), 352 and 361 of the FWA are in the following terms: 44 Contravening the National Employment Standards (1) An employer must not contravene a provision of the National Employment Standards. Note: This subsection is a civil remedy provision (see Part 4–1). (2) However, an order cannot be made under Division 2 of Part 4–1 in relation to a contravention (or alleged contravention) of subsection 65(5) or 76(4). Note 1: Subsections 65(5) and 76(4) state that an employer may refuse a request for flexible working arrangements, or an application to extend unpaid parental leave, only on reasonable business grounds. Note 2: Modern awards and enterprise agreements include terms about settling disputes in relation to the National Employment Standards (other than disputes as to whether an employer had reasonable business grounds under subsection 65(5) or 76(4)). 97 Taking paid personal/carer's leave An employee may take paid personal/carer's leave if the leave is taken: (a) because the employee is not fit for work because of a personal illness, or personal injury, affecting the employee; or (b) to provide care or support to a member of the employee's immediate family, or a member of the employee's household, who requires care or support because of: (i) a personal illness, or personal injury, affecting the member; or (ii) an unexpected emergency affecting the member. Note 1: The notice and evidence requirements of section 107 must be complied with. Note 2: If a female employee has an entitlement to paid personal/carer's leave, she may take that leave instead of taking unpaid special maternity leave under section 80. 107 Notice and evidence requirements Notice (1) An employee must give his or her employer notice of the taking of leave under this Division by the employee. (2) The notice: (a) must be given to the employer as soon as practicable (which may be a time after the leave has started); and (b) must advise the employer of the period, or expected period, of the leave. Evidence (3) An employee who has given his or her employer notice of the taking of leave under this Division must, if required by the employer, give the employer evidence that would satisfy a reasonable person that: (a) if it is paid personal/carer's leave—the leave is taken for a reason specified in section 97; or (b) if it is unpaid carer's leave—the leave is taken for a permissible occasion in circumstances specified in subsection 103(1); or (c) if it is compassionate leave—the leave is taken for a permissible occasion in circumstances specified in subsection 105(1). Compliance (4) An employee is not entitled to take leave under this Division unless the employee complies with this section. Modern awards and enterprise agreements may include evidence requirements (5) A modern award or enterprise agreement may include terms relating to the kind of evidence that an employee must provide in order to be entitled to paid personal/carer's leave, unpaid carer's leave or compassionate leave. Note: Personal information given to an employer under this section may be regulated under the Privacy Act 1988. 340 Protection (1) A person must not take adverse action against another person: (a) because the other person: (i) has a workplace right; or (ii) has, or has not, exercised a workplace right; or (iii) proposes or proposes not to, or has at any time proposed or proposed not to, exercise a workplace right; or (b) to prevent the exercise of a workplace right by the other person. Note: This subsection is a civil remedy provision (see Part 4–1). (2) A person must not take adverse action against another person (the second person) because a third person has exercised, or proposes or has at any time proposed to exercise, a workplace right for the second person's benefit, or for the benefit of a class of persons to which the second person belongs. Note: This subsection is a civil remedy provision (see Part 4–1). 341 Meaning of workplace right Meaning of workplace right (1) A person has a workplace right if the person: (a) is entitled to the benefit of, or has a role or responsibility under, a workplace law, workplace instrument or order made by an industrial body; or (b) is able to initiate, or participate in, a process or proceedings under a workplace law or workplace instrument; or (c) is able to make a complaint or inquiry: (i) to a person or body having the capacity under a workplace law to seek compliance with that law or a workplace instrument; or (ii) if the person is an employee—in relation to his or her employment. Meaning of process or proceedings under a workplace law or workplace instrument (2) Each of the following is a process or proceedings under a workplace law or workplace instrument: (a) a conference conducted or hearing held by the FWC; (b) court proceedings under a workplace law or workplace instrument; (c) protected industrial action; (d) a protected action ballot; (e) making, varying or terminating an enterprise agreement; (f) appointing, or terminating the appointment of, a bargaining representative; (g) making or terminating an individual flexibility arrangement under a modern award or enterprise agreement; (h) agreeing to cash out paid annual leave or paid personal/carer's leave; (i) making a request under Division 4 of Part 2–2 (which deals with requests for flexible working arrangements); (j) dispute settlement for which provision is made by, or under, a workplace law or workplace instrument; (k) any other process or proceedings under a workplace law or workplace instrument. Prospective employees taken to have workplace rights (3) A prospective employee is taken to have the workplace rights he or she would have if he or she were employed in the prospective employment by the prospective employer. Note: Among other things, the effect of this subsection would be to prevent a prospective employer making an offer of employment conditional on entering an individual flexibility arrangement. Exceptions relating to prospective employees (4) Despite subsection (3), a prospective employer does not contravene subsection 340(1) if the prospective employer makes an offer of employment conditional on the prospective employee accepting a guarantee of annual earnings. (5) Despite paragraph (1)(a), a prospective employer does not contravene subsection 340(1) if the prospective employer refuses to employ a prospective employee because the prospective employee would be entitled to the benefit of Part 2–8 or 6–3A (which deal with transfer of business). 351 Discrimination (1) An employer must not take adverse action against a person who is an employee, or prospective employee, of the employer because of the person's race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer's responsibilities, pregnancy, religion, political opinion, national extraction or social origin. Note: This subsection is a civil remedy provision (see Part 4 1). … 352 Temporary absence—illness or injury An employer must not dismiss an employee because the employee is temporarily absent from work because of illness or injury of a kind prescribed by the regulations. Note: This section is a civil remedy provision (see Part 4 1). 361 Reason for action to be presumed unless proved otherwise (1) If: (a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and (b) taking that action for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise. (2) Subsection (1) does not apply in relation to orders for an interim injunction. 54 Section 342(1) (Item 1) provides that an employer takes adverse action against an employee if (amongst other things) the employer dismisses that employee. 55 Section 545(1) and s 545(2)(a) provide that this Court may make any order that the Court considers appropriate if the Court is satisfied that a person has contravened, or proposes to contravene, a civil remedy provision, including granting an interim injunction to prevent, stop or remedy the effects of such a contravention. Section 539 provides that each of ss 44(1), 340(1), 351(1) and 352 is, for the purposes of s 545 of the FWA, a civil remedy provision. Section 546 gives this Court power to impose pecuniary penalties. Section 361(1) operates to reverse the onus of proof at a trial in relation to the state of mind of the relevant decision-maker. Section 361(2) provides that that reversal of the onus of proof does not apply to the hearing of an application for an interim injunction. Nonetheless, the existence and impact of the provision has to be weighed by the Court when determining such an application. Consideration 56 In Samsung Electronics Co Ltd v Apple Inc (2011) 286 ALR 257 (Samsung) at 271–278 [44]–[70], the Full Court collected and summarised the principles which generally govern the grant of interlocutory injunctive relief. For present purposes, it is sufficient to note that the essence of those principles was summarised by Mason ACJ (in Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 [13]: … In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. 57 Also of present relevance are the remarks of the Full Court in Samsung made at 278 [69] where the Court said: In Patrick at [65] and [66] (pp 41–43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997) (at pp 402–403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. 58 In submissions made on her behalf, Counsel for the applicant concentrated upon the pleaded causes of action based upon the FWA. He did not abandon the applicant's breach of contract case but placed greater emphasis upon the applicant's statutory claims. 59 There is no doubt that the respondent's action through Mr Leaver of dismissing the applicant from her employment and terminating her employment contract constituted adverse action within the meaning of s 342(1) of the FWA. 60 The provisions particularly relied upon by the applicant (ss 44, 97, 340, 341, 351 and 352 of the FWA) all use the expression "because" or "because of" as describing the necessary causal link between the adverse action and the relevant prohibited reason for that action. 61 In Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 290 ALR 647 at 657 [44]–[45], French CJ and Crennan J said: There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression "because" in s 346, or the statutory presumption in s 361, as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?" (Purvis v New South Wales (2003) 217 CLR 92 at 163 [236] per Gummow, Hayne and Heydon JJ; [2003] HCA 62.) This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer (See, for example, General Motors-Holden's Pty Ltd v Bowling (1976) 51 ALJR 235 at 241 per Mason J; 12 ALR 605 at 617). Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker (See, for example, Pearce v W D Peacock & Co Ltd (1917) 23 CLR 199 at 208 per Isaacs J, 211 per Higgins J; [1917] HCA 28) or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity (See, for example, Harrison v P & T Tube Mills Pty Ltd (2009) 188 IR 270 at 276 [31]-[33]). 62 To similar effect were the observations of Gummow and Hayne JJ made in the same case at 676 [126]–[128], where their Honours said: The relevant frame of reference in this case is a statutory provision in which neither the words "objective" nor "subjective" appear. There is an inherent risk of misguidance when seeking to imply tests or requirements in the application of a statutory provision absent some persuasive basis to do so. Nothing was put in argument, nor are there any decisions of this Court, to provide such a basis. Indeed, no direct challenge was made to what had been said by Mason J in Bowling. In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee. In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decision maker at the time the adverse action was taken which was the focus of the inquiry. Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration. As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out ((2011) 191 FCR 212 at 258 [226]). This proposition should be accepted. To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee. 63 It is not necessary for an applicant to establish that the only reason or the dominant reason that adverse action was taken was a prohibited reason. It is sufficient if the prohibited reason is one of several reasons for the taking of the action although it may be that the prohibited reason must have operated as a substantial and operative factor in the taking of the adverse action. 64 In the present case, there is no dispute as to what occurred on 4 September 2013 when Mr Leaver and Ms Percival travelled to Darwin. However, there is a serious and live contest as to whether the respondent was justified in dismissing the applicant and, in particular, whether the respondent's dismissal of the applicant was for one of the prohibited reasons relied upon by the applicant in her pleading. At the hearing before me, Mr Leaver gave evidence flatly denying that his decision to terminate the applicant's employment was for any of the prohibited reasons relied upon by the applicant. In addition, he endeavoured to explain his real reasons for taking that decision. He also testified that the decision was taken in August 2013, a week or two prior to 4 September 2013. He said that he travelled to Darwin in order to terminate the applicant's employment rather than to discuss her performance with her with a view to counselling her to improve that performance. 65 If, at the trial, the evidence of Mr Leaver is accepted, the applicant will not succeed in her claims under the FWA. 66 It is not necessary for me at this stage of the proceeding to resolve the question of whether the applicant's dismissal was taken for a prohibited reason and it would be inappropriate for me to do so. There is a sufficient temporal connection between the termination of the applicant's employment on 4 September 2013 and her being absent from work on account of illness for me to conclude for present purposes that the applicant has raised a serious question to be tried as to whether her dismissal was taken for the reason that she was absent from work on sick leave. The fact that Mr Leaver did not give any reasons for terminating the applicant's employment at the time that he did so also supports the applicant's case that she was dismissed for one or more of the prohibited reasons upon which she relies. 67 The applicant also relies upon her breach of contract case in support of her current application for interim relief. 68 Counsel for the applicant submitted that the applicant's current employment contract was not a contract for a fixed term but rather was a contract which, in the absence of being terminated by the giving of a notice in accordance with cl 7, would continue indefinitely. He did not, however, submit that the contract had, in fact, been extended by mutual agreement. He did argue, however, that the contract would be automatically extended if no four-month notice were given by the respondent pursuant to cl 7. 69 At the moment, I have considerable difficulty accepting these arguments. Clause 6 provides that the contract is a five year contract which will terminate by the effluxion of time on 2 February 2014. Clause 7 is a provision which permits the term of the contract to be extended but only by mutual agreement. The notice provision contained in the second sentence of cl 7 is merely a machinery provision requiring that party which does not wish to extend the life of the contract to give notice of that fact at least four months prior to 2 February 2014. I do not think that this notice requirement alters the fundamental nature of the contract as a fixed term contract. 70 Clauses 34 to 36 deal with termination. Neither party suggested that either cl 34 or cl 35 had any application in the circumstances of the present case. 71 Counsel for the applicant also submitted that cl 36 did not give to the respondent a general right to terminate the applicant's employment on notice or otherwise during the life of the current employment contract. I think that this submission is probably correct. 72 If the above propositions concerning the applicant's current employment contract are sound, the respondent's actions in terminating the applicant's current employment contract and thus her employment constituted breaches of her employment contract. This does not mean, however, that the termination of the employment relationship between the applicant and the respondent was not effective nor does it mean that her current employment contract is still on foot (see Sanders v Snell (1998) 196 CLR 329 at 338 [19] per Gleeson CJ, Gaudron, Kirby and Hayne JJ). As was the case in Sanders v Snell, the payment that was made by the respondent to the applicant in the present case was a payment in lieu of notice in the sense of being a payment made after the contract was brought to an end and intended to be set off against, and to extinguish, the damages that ordinarily would be payable for the wrongful termination of the applicant's current employment contract. 73 In my judgment, the applicant has also established a prima facie case that Mr Leaver's actions constituted a breach of her current employment contract. 74 As part of the final relief claimed by her, the applicant seeks reinstatement. Her application for interim relief directly relates to that claim for relief. 75 I do not think that the applicant's current employment contract contains the implied term which I have extracted at [16] above. Such a term would be inconsistent with the express terms of the contract (it being for a fixed term) and need not be implied in order to give business efficacy to the contract. 76 I also think that the applicant cannot rely upon regs 4.2.3 and 4.2.4 of the respondent's Division Regulations. She is not a member of the respondent. She is not entitled directly to enforce those regulations. They cannot sensibly be imported into her current employment contract. The question of Mr Leaver's authority to dismiss the applicant may be investigated at trial. At the moment, however, the applicant has not satisfied me that Mr Leaver did not have authority to dismiss her or that the termination of her employment was ineffective because Mr Leaver had no authority to dismiss her. 77 I note that the applicant has proffered the usual undertaking as to damages and also agreed to refund to the respondent the amounts paid to her as a result of the termination of her employment as a condition of the grant of interlocutory relief. 78 I now turn to deal with the balance of convenience and justice. 79 The applicant points to alleged damage to her reputation as well as other financial consequences resulting from the dismissal. I have to say that, as far as reputational damage is concerned, most of that damage has already been done and is unlikely to be significantly repaired by any interim order. Also, I do not think that the applicant's plans concerning superannuation should influence the outcome of the current application before me. She can always ameliorate the effect of the termination of her employment on her superannuation plans by making a lump sum contribution. The applicant also says that she was precluded from exercising her right to consult the Northern Division President with a view to saving her job. I do not think that this was as valuable a right as the applicant would have me accept. On the evidence at the moment, Messrs Durkin and Leaver were determined to remove the applicant. Mr Durkin had also apparently consulted with Council members about that prospect and received their support. The prospect of a process of consultation changing the outcome was remote. 80 There are several factors which militate against interlocutory relief. 81 First, the applicant has failed to demonstrate that damages will not be an adequate remedy. Indeed, there is good reason for thinking that the provisions of the FWA which govern the giving of compensation under that Act provide a foundation for an ample and generous award of compensation to the applicant which will not be confined to paying out the balance of her contract and other statutory entitlements. 82 Second, the relationship between the applicant and senior executives of the respondent has deteriorated to such a point that there is no trust and confidence remaining on either side of that relationship. 83 Third, the respondent has employed a replacement for the applicant who, on the evidence, has to relocate to Darwin from Brisbane and is required to commence employment next Monday, 25 November 2013. The respondent's new employee has resigned from his former employment and the respondent has taken steps to integrate the new employee into the business and affairs of the Northern Division. 84 Fourth, the applicant has been guilty of serious delay. She was well aware that the respondent had advertised for a replacement soon after the advertisement was placed on 10 September 2013. She has not explained her delay in making the current application. She submitted that it was reasonable for her to endeavour to conciliate the dispute in Fair Work Australia. However, the fact that she was conciliating that dispute did not prevent her from commencing proceedings in this Court and does not provide any real explanation as to why she did not move earlier. The delay has been significant. The respondent has moved to replace the applicant, as it was entitled to do and the grant of an injunction at this stage would cause great disruption to the respondent. Applications for interim reinstatement of employment must be brought very promptly after termination. 85 Fifth, the applicant's current employment contract has only two and a half months left to run. It is unlikely that the final hearing of her application in this Court will take place and be determined prior to the end of that contract term on 2 February 2014. The effect of any interim order at this stage would be to extend her employment beyond the fixed contractual end date. In my judgment, there is no warrant for such an outcome. Conclusion 86 In all the circumstances, I refuse the applicant's application for interim relief. The parties reminded me that I should not make any order for costs given that the applicant's case is primarily one which has been brought under the general protection provisions of the FWA. Accordingly, I make no order as to costs. I certify that the preceding eighty-six (86) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 22 November 2013	11,685
federal_court_of_australia:irc/1997/1997irca0089	decision	commonwealth	federal_court_of_australia	text/html	1997-03-06 00:00:00	LLOYD AND THE AUSTRALIAN NURSING FEDERATION (VICTORIAN BRANCH) -v- MILDURA BASE HOSPITAL [1997] IRCA 89	https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1997/1997irca0089	2024-09-13T22:53:14.614865+10:00	DECISION NO:89/97 C A T C H W O R D S INDUSTRIAL LAW - termination of employment - serious misconduct - employer's honest belief of misconduct held on reasonable grounds after sufficient enquiry - Applicant responsible for management of nursing home - Applicant not personally involved in any patient abuse or in any other inappropriate conduct directly involving residents of nursing home, reasonable grounds for concluding that Applicant involved in mismanagement to a degree which constituted misconduct Workplace Relations Act 1996 ss.170DB, 170DC, 170DE, 170EA CASES: Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J) Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224. Puccio v Catholic Education Office and Another (unreported, IRCA, von Doussa J, 17 May 1996) Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 and 373. DIANNE JUDITH LLOYD AND THE AUSTRALIAN NURSING FEDERATION (VICTORIAN BRANCH) -v- MILDURA BASE HOSPITAL No. VI-1262 of 1996 Before: Ryan JR Place: Melbourne Date: 6 March 1997 INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1262 of 1996 B E T W E E N : LLOYD & THE AUSTRALIAN NURSING FEDERATION Applicant AND MILDURA BASE HOSPITAL Respondent MINUTES OF ORDERS Judicial Registrar Ryan 6 March 1997 THE COURT ORDERS: 1. That the application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. INDUSTRIAL RELATIONS COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VI-1262 of 1996 B E T W E E N : LLOYD & THE AUSTRALIAN NURSING FEDERATION Applicant AND MILDURA BASE HOSPITAL Respondent Before: Ryan JR Place: Melbourne Date: 6 March 1997 REASONS FOR JUDGMENT THE APPLICATION This is an application for relief in respect of termination of employment. The application was lodged by the Australian Nursing Federation (Victorian Branch) (the Union) on behalf of Dianne Lloyd (the Applicant). THE DISMISSAL On 3 February 1996 the Chief Executive Officer of the Mildura Base Hospital advised the Applicant in writing that her employment as a Charge Nurse had been terminated immediately "for serious and wilful misconduct". The grounds for the decision were stated in the letter to be: · failure to fully investigate issues when presented and include residents and/or relatives in the process of investigation and failure to act as a Charge Nurse · failure to address and appropriately deal with standards of professional behaviour including conveyor belt showering · failure to act on allegations of aged abuse · failure to ensure that award conditions and entitlements of staff were appropriately monitored · failure to appropriately manage gross insubordination and harassment by members of staff THE CLAIM The Applicant claims unlawful termination of employment and asserts that: · there was no valid reason for the termination · the termination was harsh, unjust and unreasonable · the hospital did not afford her any opportunity to respond to the allegations made against her · the hospital failed to give her four weeks notice of termination which, she claims, was required under s170DB THE APPLICANT'S BACKGROUND The Applicant trained as a nurse at the Mildura Base Hospital. From 1978 to 1996 she worked in Raechel Willson House, a nursing home attached to the hospital. For seventeen years, from early 1979 to early 1996, she was the charge nurse responsible, on her own admission, "for the management of Raechel Willson House". THE COMPLAINT On 23 November 1995 the Secretary of the Resident/Relative Group at Raechel Willson House wrote to the Director of Nursing at Mildura Base Hospital. She described herself as "a concerned relative and Secretary of the .....Group". She raised "concerns as to nursing practices in Raechel Willson House" and requested that "the source of complaints be kept strictly confidential, even from the unit coordinator, as we fear retribution against our residents." The Secretary of the group also enclosed what she described as "four letters written by relatives". Three of these letters are handwritten and signed. Two are from women complaining about treatment of their husbands, both residents at Raechel Willson House. One is from a woman complaining about treatment of her mother, a resident at Raechel Willson House. The fourth "letter" (if it be a letter) is a typed, unsigned, anonymous note which alleges that "if an inmate dares make a complaint some of the nurses penalise them with minimal care and a complete lack of T.L.C." The anonymous note provides the first names of four State Enrolled Nurses then working at Raechel Willson House. One of the signed letters provides the first names of five State Enrolled Nurses then working in the nursing home. THE INVESTIGATION The Applicant gave evidence that the Deputy Director of Nursing at the hospital, Mr Bill Brown, approached her on 7 December 1995 about "some complaints from relatives". She deposed that she discussed the complaints at a meeting with Mr Brown on 8 December and at a second meeting on 11 December. The Director of Nursing, Mrs Ella Lowe, was present at the meeting on 11 December. Mrs Lowe gave evidence that she directed Mr Brown to speak to Human Resources Manager, Mr Caulfield and the Assistant Director of Nursing (Human Resources), Ms Beaumont, and the Applicant and "get in train an investigation of the complaints". Mrs Lowe stated that she briefed the Chief Executive Officer, Mr Duckett, on 13 or 14 December . In fact, Mr Duckett gave evidence that he was first advised of the complaints on 11 December. A number of staff appear to have been interviewed between 12 and 14 December and on 14 December Mr Duckett directed a panel comprising Mr Caulfield, Mrs Lowe and Mr Brown to conduct a more detailed investigation. On 15 December Mr Corboy, Principal Human Resources Consultant, Victorian Hospitals Industrial Association was telephoned by Mr Caulfield. Mr Corboy remained in telephone contact with Mr Caulfield and attended at the hospital on 20 December. On that day he read the statements that had been taken and signed by various staff members and his evidence is that the allegations were sufficiently serious to justify standing down the Applicant and several State Enrolled Nurses. Mr Duckett confirmed in his evidence that the Applicant and several State Enrolled Nurses were stood down on 21 December. THE SUSPENSION On 21 December the Chief Executive Officer for the hospital wrote to the Applicant in the following terms: "Please be informed that very serious allegations of misconduct have been made about you and your professional performance in your employment with Mildura Base Hospital. The seriousness of these allegations is such that I have decided to stand you down with pay immediately. Please note that a thorough and immediate investigation into these allegations will be conducted by the Hospital. As part of these preliminary investigations you will be given every opportunity to respond to the allegations made. A written communication will be forwarded to you not later than the 2nd January 1996, detailing these allegations and you will be directed to respond in writing to these allegations within a defined period. In addition I direct that you be available to attend the hospital at 9.00a.m. on the 5th January 1996, to be interviewed by senior management representative. Please be at the Director of Nursing's office at the above time. I advise that you may wish to bring an observer to this meeting. I should also inform you that should any form of intimidation or harassment be carried out against any person or persons who have advised the hospital of the allegations, such action itself will be regarded by the hospital as serious and wilful misconduct and will result in the instant dismissal of those involved." On 2 January 1996 the Chief Executive Officer wrote to the Applicant again and detailed a series of "allegations concerning your conduct and performance at the Raechel Willson House Nursing Home". The letter stated that "copies of individual statements are attached". The eighteen page attachment did not comprise identifiable individual statements but appears to be a compilation of unsourced extracts from signed and dated statements by persons most of whom appear to be staff who have witnessed certain events and are complaining about them. The letter concludes as follows: "Given the severity of these allegations, I direct you to consider and respond in writing. Further I advise that you are required to attend the Mildura Base Hospital at 9.00am on Monday the 8th January, 1996." On 3 January the Applicant replied to the Chief Executive Officer stating that "to reply to the allegations...it is essential...(to) have access to various documents that relate to the alleged incidents.". The Applicant nominated various categories of documents and asked that they be made available as soon as possible. She also indicated that union representation was unavailable until Thursday 11 January and that she had been advised not to participate in any meetings until representation was available. The Applicant concluded her letter by asking for details of why it was necessary to attend the hospital on Monday 8 January. The Chief Executive Officer replied immediately the same day (i.e. 3 January). He indicated that in general terms the documents requested by the Applicant had been made available or would be made available to her. His letter continued as follows: "With regard to ANF representation not being available until Thursday 11th January 1996, the Hospital can not hold up its inquiry on this account. I am advised that there are other able local ANF union representatives that are available. Your position of being stood down with pay will continue until the Hospital has completed its inquiry and a decision made in regard to the allegations and your response to these allegations. The Hospital is most anxious, for these reasons, that the inquiry be completed as soon as possible. Your attendance at the Hospital on Monday 8th January 1996, at 9.00am is to attend the inquiry and address the panel with your response to the allegations that have been made against you. This panel will consist of the Director of Nursing, Mrs Ella Lowe, Deputy Director of Nursing, Mr Bill Brown, and the Human Resources Manager, Mr Bruce Caulfield. Your written response addressing and answering the allegations prior to 9.00am on the 8th January 1996, is expected." About the time the above letter was written the union appears to have suggested that there should be "an independent element" on the panel of inquiry. Mr Duckett confirmed in evidence that a former councillor of the Shire of Mildura, Mrs Elizabeth Maffei replaced Mr Brown as a member of the panel. In fact Mrs Maffei was appointed as Chairperson although the report of the panel ("the Inquiry") records Mr Brown as present at the inquiry on 10 and 11 January 1996 in the role of "Secretary". By letter dated 4 January an Industrial Officer of the union requested that the meeting scheduled for 8 January be deferred to 10 January on the basis that the Applicant needed more time to respond to serious allegations and on the basis that a nominated union officer would be available to attend on 10 January. On 7 January the Chief Executive Officer wrote to the Applicant again and advised that "the Hospital has rescheduled the inquiry to Wednesday 10 January 1996 at 2pm to enable you to further consider allegations made against you". The letter continued as follows: "You will be required to attend this inquiry and you will be given an opportunity to defend yourself against the allegations that have been made against you. This opportunity is available to you under Section 170DC of the Industrial Relations Act 1988 (copy attached). Should you decline this offer or opportunity, the Hospital will decide on the allegations on the evidence that has been presented to it. I have also attached further particulars relating to the serious allegations made against you and the possible contravention of various Standards, Rules, Policies and Acts and Regulations. Please note that these further particulars may have caused these allegations to vary slightly from those sent to you on 2nd January, 1996. This may have happened because of the original witnesses supplying more and further particulars in regard to their statements. The seriousness of these allegations are such that the Hospital is protecting the identity of the people who have made these allegations as they fear that they may be subject to reprisals, intimidation or harassment type action. Please be advised that as indicated in these further particulars, the incidents that have been set out have been properly identified and witnessed by one or more witnesses. Again, I should inform you that should any form of intimidation or harassment be carried out against any person, or persons who have advised the Hospital of the allegations, such action itself will be regarded by the Hospital as serious and wilful misconduct and will result in instant dismissal of those involved." THE INQUIRY INTO ALLEGATIONS OF MISCONDUCT - 10 AND 11 JANUARY 1996 The report of the inquiry (Exhibit R20) indicates that · Mrs Maffei, Mrs Lowe, Mr Caulfield and Mr Brown were present and that the Applicant was accompanied by Mr Reid, a Union Industrial Officer and Ms Smith, a Union Job Representative · on 10 January the inquiry sat between 3:05 pm and 3:25 pm, 3:57 pm and 4:50 pm, 4:54 pm and 5:45 pm, 6:40 pm and 7:20 pm, 7:30 pm and 9:15 pm · the Applicant was allowed to consult separately with her Union representatives between 3:25 pm and 3:57 pm, between 4:50 pm and 4:56 pm, between 5:45 pm and 6:40 pm and between 7:20 pm and 7:30 pm It is not necessary to go into the detail of the numerous allegations made against the Applicant. The allegations and extracts from relevant statements signed by staff and residents were provided to the Applicant in writing with Mr Duckett's letter of 7 January. The Court is satisfied that the Applicant and the union had access to signed statements and access to the smaller number of statements where the identity of the complainant was suppressed. At the inquiry on 10 January eleven of fifteen specific allegations were read out to the Applicant and the Applicant responded to each of the eleven allegations. The allegations to which the Applicant responded included allegations of · failure to investigate rough handling of a resident · failure to investigate the leaving of a resident on a toilet for an excessive period of time · failure to take action to correct conveyor belt showering after it was brought to attention · failure to provide appropriate orientation to staff · failure to address complaints of excess noise · failure to investigate an incident in which a resident was allegedly required to beg for a towel to dry her hair · failure to take action to correct the practice of staff taking extended breakfast breaks · failure to take action to correct abusive behaviour by State Enrolled Nurses in the vicinity of residents · failure to take action in respect of alcohol allegedly consumed by staff while on duty At 9:15 pm on 10 January the panel agreed to reconvene at 9:15 am on 11 January. At 9:37 am on 11 January Mr Reid apologised for being late and stated that the Applicant "had only 3 hours sleep and was not able to go on". In the panel's final report of 31 January (Exhibit R25), a report signed by Mrs Maffei on her own behalf and on behalf of Mrs Lowe and Mr Caulfield, Mrs Maffei reported that · "attempts to set more appropriate dates for the panel were unsuccessful" · the Applicant's written responses to the allegations were considered and in many cases inconsistencies in the written responses and the oral responses on 10 January were noted · "further information sent to (the Applicant) for clarification was responded to with a brief letter" In this respect the Court notes that on 11 January the Chief Executive Officer wrote to the Applicant (Exhibit R22) and indicated that the panel wanted to raise certain allegations which it had been unable to put on 10 January. The allegations put to the Applicant in this letter were to the following effect · an allegation by a State Enrolled Nurse, confirmed by another State Enrolled Nurse and by an acting Charge Nurse, of failure on the part of the Applicant to issue a proper direction or seek direction from a more senior supervisor in relation to "gross insubordination (to the Applicant) and harassment (of the Applicant) by members of....staff" · an allegation by an unnamed registered nurse, confirmed by a named acting Charge Nurse that the Applicant "was aware of the staff practice of watching television during paid working hours" · an allegation by an unnamed relative of a resident and confirmed by another unnamed relative of a resident that complaints brought by relatives were "dismissed" or "belittled" and later found to be "legitimate" The Court also notes that on 12 January an Industrial Officer of the Union wrote to Mr Corboy (the V.H.I.A. Consultant) and outlined the Union's "intended process for response to the additional questions posed to (the Applicant) by letter dated 11 January". This letter (Exhibit R23) contained the following statement: "Ms Lloyd is extremely upset by the events of yesterday and has sought medical attention. Ms Lloyd does intend to provide further details to the panel and will do so, in writing, on Monday 15 January 1996. It is the view of ANF (Vic Branch) that this information, in addition to Ms Lloyd's original written statement concludes our response to the allegations at this stage. There will therefore be no requirement for further attendance before the panel at 3.00 p.m. on Monday. ANF (Vic Branch) will await formal advice of the Hospital's determination of the allegations against our member once their investigation is concluded." The Court further notes that the Applicant wrote to Mr Duckett on 14 January (Exhibit R24) in response to his letter of 11 January (Exhibit R22) and stated "I am unable to provide any further information in regard to the allegations made." The final report to Mr Duckett by Mrs Maffei on behalf of the panel of inquiry contained the following findings 1. "serious deficiencies in investigating, following up and documenting the handling of issues and incidents" 2. "standards of nursing care have been seriously compromised over a prolonged period of time" 3. "aged abuse has occurred on repeated occasions and...the failure to act on..complaints when presented has exposed residents to ongoing abuse" 4. "available staff hours were considerably reduced because of extended and unauthorised breaks...this compounded the poor work practices of some staff, further reducing the standard of care" 5. "failure to appropriately manage gross insubordination and harassment (of the Applicant) by members of staff" THE RESPONDENT'S POSITION This is a case in which the Respondent relies on the failure of the Applicant to manage Raechel Willson House. The Respondent asserts that · it had reasonable grounds for concluding that a series of incidents and practices occurred · the incidents and practices breached hospital policies, Commonwealth Nursing Home Outcome Standards, Nursing Quality Assurance Committee Standards, the Equal Opportunity Act and the Occupational Health and Safety Act · a number of State Enrolled Nurses under the direct control and supervision of the Applicant were involved in the incidents and practices · the Applicant failed to address the incidents and practices In more specific terms the Respondent asserts the Applicant failed to · investigate the incidents and practices · act on complaints · supervise staff under her direct control · manage Raechel Willson House adequately · ensure adequate standards of nursing care The Respondent did not attempt to establish the occurrence of any or all of the incidents and practices by calling evidence from those who made statements or from those who investigated the complaints or, with one exception, from those who sat on the panel of inquiry. Mrs Lowe sat on the panel of inquiry and directed the earlier investigations. She was an important witness for the Respondent. The Respondent's position was based in no small measure on Sangwin v Imogen Pty Ltd (IRCA, unreported, 8 March 1996, von Doussa J) and on Bi-Lo Pty Ltd v Hooper (1994) 53 IR 224. In Bi-Lo at 229-230 the Full Bench of the South Australian Industrial Relations Commission said: "An employee is entitled to both substantive and procedural fairness in respect of a dismissal. Substantive fairness will be satisfied if the grounds upon which dismissal occurs are fair grounds. Broadly speaking a dismissal will be procedurally fair if the manner or process of dismissal and the investigation leading up to the decision to dismiss is just. Where the dismissal is based upon the alleged misconduct of the employee, the employer will satisfy the evidentiary onus which is cast upon it if it demonstrates that insofar as was within its power, before dismissing the employee, it conducted as full and extensive investigation into all of the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances; it gave the employee every reasonable opportunity and sufficient time to answer all allegations and respond thereto; and that having done those things the employer honestly and genuinely believed and had reasonable grounds for believing on the information available at that time that the employee was guilty of the misconduct alleged; and that, taking into account any mitigating circumstances either associated with the misconduct or the employee's work record, such misconduct justified dismissal." In Imogen at 10 von Doussa J states: "It has been held that a "valid" reason exists where the employer had a "sound, defensible or well founded" reason for termination of the applicant's employment: see Selvachandran v Peteron Plastics Pty Ltd, (1995) 62 IR 371 and 373. These dictionary definitions for the word "valid", whilst wide enough to include a reason based on an honest belief held on reasonable grounds, do not assist in determining whether on the true interpretation of the section such a belief, if later shown to be erroneous, could nevertheless still constitute a "valid reason" for a dismissal, The expression "valid reason" must be read in the full context of the Act. The reason must be a "valid reason connected with the employee's capacity or conduct or based on the operational requirements of the undertaking, establishment or service." In virtually every situation of termination of employment, hardship to a greater or lesser degree is likely to come to the employee. Often the economic and personal hardship to the employee and to his family will be considerable. But in considering the application of Division 3 of Part VIA of the Act, it must be recognised that its provisions are intended to operate in the practical arena of commercial activity, and that in the endeavour to achieve industrial fairness it is necessary to balance the interest and well being of an individual employee against the interests of the employer, and also to have regard to matters of wider public interest which may be involved. The construction of the Act is not to be considered only from the viewpoint of the employee." In Imogen at 11 von Doussa J states: "Section 170DE(1) should not be construed so as to exclude from the notion of a "valid reason" an honest belief held on reasonable grounds by the employer, after inquiry of the type envisaged in Bi-Lo Pty Ltd v Hooper, that a state of fact exists which justifies termination of the employment. In my opinion if the employer honestly believes on reasonable grounds after sufficient inquiry that the employee has been guilty of serious misconduct a valid ground within the meaning of s170DE(1) exists for terminating the employment of the employee." In Sangwin and also in Puccio v Catholic Education Office and Another (unreported, IRCA, von Doussa J, 17 May 1996) the Court focused on the investigation by the employer and the reasonableness of its belief that its operational requirements required the termination of an employee believed by the employer to have been guilty of misconduct. The court noted the need for an appropriate investigation to ascertain relevant facts, and then the need to put the matters of concern to the employee. Provided such a reasonable approach is taken and the employer has an honestly held belief that its operational requirements require the termination of employment, then the employerhas satisfied the requirements of s170DE(1) of the Act. Von Doussa J said in Sangwin at 11: "An employer of a health worker or child care provider against whom was made an allegation of serious physical abuse that threatened the health and safety of those in that person's care would be duty bound to act to protect those under care. If, after sufficient inquiry, the employer honestly believed on reasonable grounds that the allegation was correct the employer would be in dereliction of duty to those in care if the employee were allowed to return to duty. Again, would not the employer have a sound or well founded reason connected with the operational requirements of the undertaking, establishment or service for terminating the operator's employment even if, after dismissal, a tribunal or court held that it was not satisfied that the misconduct alleged had occurred, or that it did not occur?" In Sangwin the employer was ultimately unable to satisfy the court that it had a sound reason. Puccio (above), in contrast, was a case analogous to the "health worker or child care provider" referred to as an example in Sangwin. The case dealt with a teacher dismissed for alleged misconduct. Von Doussa J held that the respondent had a valid reason because he was satisfied that the inappropriate conduct alleged did in fact occur. He said: "The school has a clear duty at law to take steps to guard its students against foreseeable risks adverse to their safety and welfare and will be held liable if it fails to do so and a claim is made against the school. So important is the duty of care resting on an employer where safety issues are involved, that the employer may have a valid reason relating to an employee's capacity or conduct within the meaning of s170DE(1) of the Act to dismiss an employee even where reported misconduct is disputed by the employee." The Respondent does not accuse the Applicant of personal involvement in patient abuse or in any other inappropriate conduct directly involving the residents of Raechel Willson House. The Respondent asserts that the Applicant failed to stop abuse, failed to adequately investigate and report complaints about the conduct of nurses under her control and failed to manage Raechel Willson House. THE APPLICANT'S POSITION The Applicant, through Counsel, attacks the dismissal of the Applicant as without valid reason. Counsel for the Applicant points out that no evidence was put to the Court from those who made complaints against the State Enrolled Nurses or from those who brought information of the incidents to the attention of the Applicant. It is asserted that the Court cannot be satisfied that there was or could be a valid reason for termination of the Applicant's employment without hearing direct evidence from the complainants and, more importantly, direct evidence from those who advised the Applicant of the various incidents. It is further asserted that the Court must determine what happened and determine whether the response of the Applicant was adequate. Counsel for the Applicant put it as follows: "The Respondent must lead admissible evidence to enable the Court to appreciate the circumstances which warranted investigation and action. The Court cannot say the response of the Applicant was inadequate without admissible evidence of what happened. The only evidence was that of the Applicant herself." The attack on "validity of termination" was extended to embrace (i) the reliance of the Respondent on Sangwin v Imogen Pty Ltd (ii) alleged lack of assistance to the Applicant and managerial responsibility at levels above that of Charge Nurse (iii) defects in the panel of inquiry process leading to breaches of s170DC The Sangwin argument was as follows. The test is honest belief on reasonable grounds after adequate inquiry. The Court cannot determine whether the Respondent held an honest belief on reasonable grounds without having direct evidence of the circumstances of the incidents and practices which are said to justify the termination of the Applicant's employment because of the Applicant's failure to investigate and act in respect of the incidents and practices. The "higher responsibility" argument was put as follows. The Applicant may not be without fault but the difficulties in the management of Raechel Willson House and in the control and supervision of nursing staff below the Applicant were indicative of problems "more fundamental than those which can be properly visited on the Applicant". The claim that the Respondent had breached s170DC and failed to give the Applicant adequate opportunity to respond to the allegations seems based on an attack on the composition of the panel of inquiry. It is suggested that a panel of inquiry involving the Director of Nursing and the Director of Human Resources and with the Deputy Director of Nursing as secretary led inevitably to blaming the Applicant and absolving the higher nursing managerial structure. FINDINGS Dealing with these matters in reverse order the Court finds that: 1. the Applicant was given extensive, numerous and adequate opportunities to respond to the allegations made and there was no breach of s170DC 2. the Court is dealing with a claim by the Applicant and action taken by the Respondent to terminate the Applicant's employment. The possibility that some responsibility and culpability might lie above the Applicant (e.g. her immediate superior), does not absolve the Applicant from responsibility and does not in this case detract from any valid reason for termination 3. the Respondent held an honest belief on reasonable grounds after adequate investigation. The belief was that the Applicant was responsible for · serious deficiencies in the investigation, documentation and handling of issues and incidents · seriously compromised standards of nursing care · continuation of "aged abuse" · reduction of available staff hours because of extended and unauthorised breaks · mismanagement including failure to manage gross insubordination and harassment of the Applicant herself 4. the Applicant was not personally involved in any patient abuse or in any other inappropriate conduct directly involving the residents of Raechel Willson House 5. there was a valid reason for the termination of the Applicant's employment and this was a sound, defensible and well founded reason and was based on the Respondent's honest belief the Applicant had failed to manage Raechel Willson House and had failed to adequately discharge her duties as Charge Nurse The Court notes in conclusion that it is satisfied that the Applicant failed to manage Raechel Willson House and to adequately discharge her duties as a Charge Nurse and in the circumstances was guilty of misconduct of a kind such that it was unreasonable to continue the employment during the notice period prescribed in section 170DB(2). It follows that the application under s170EA must be dismissed. In reaching this conclusion the Court took account of the totality of the evidence presented in the hearing and in particular (i) the statements taken during the preliminary investigation and provided to the Applicant and her advisers (ii) the responses made in writing by the Applicant (iii) the responses reportedly made by the Applicant when she appeared at the Panel of Inquiry (iv) the evidence of the Applicant given in Melbourne on 6 December 1996 The evidence of the Applicant in the hearing was sufficient of itself to convince the Court that the Applicant failed to adequately investigate, report and record complaints about alleged incidents and practices and that her admitted failure to investigate, report and record constituted mismanagement at a level which amounted to serious misconduct. MINUTES OF ORDERS THE COURT ORDERS: 1. That the Application be dismissed. NOTE: Settlement and entry of orders is dealt with by Order 36 of the Industrial Relations Court Rules. I certify that this and the preceding 14 pages are a true copy of the reasons for judgment of Judicial Registrar Ryan. Associate: Dated: 6 March 1997 Solicitors for the Applicant: Ryan Carlisle and Thomas Counsel for the Applicant: Mr R Niall For the Respondent: Victorian Hospitals Industrial Association Counsel for the Respondent: Mr L Kaufman Date of hearing: 3, 4, 5 September 1996 6 and 9 December 1996 Date of judgment: 6 March 1997	6,833
federal_court_of_australia:fca/single/2019/2019fca2102	decision	commonwealth	federal_court_of_australia	text/html	2019-12-13 00:00:00	BFA17 v Minister for Immigration and Border Protection [2019] FCA 2102	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2019/2019fca2102	2024-09-13T22:53:14.659023+10:00	FEDERAL COURT OF AUSTRALIA BFA17 v Minister for Immigration and Border Protection [2019] FCA 2102 Appeal from: BFA17 v Minister for Immigration [2019] FCCA 1229 File number: NSD 870 of 2019 Judge: ABRAHAM J Date of judgment: 13 December 2019 Catchwords: MIGRATION – appeal from orders of the Federal Circuit Court dismissing application for judicial review of a decision of the Immigration Assessment Authority refusing the grant of a SHEV to the appellant – whether the Authority misconstrued the appellant's claims amounting to jurisdictional error – where finding of inconsistent evidence – whether alleged error was material – whether factual error infected the decision with jurisdictional error – where leave to rely on a new ground of review is sought – held: appeal dismissed Legislation: Migration Act 1958 (Cth), s 5H(1), 36(2)(aa) Cases cited: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 Chan v Minister for Immigration and Border Protection [2018] FCA 1323 CGA15 v Minister for Home Affairs [2019] FCAFC 46 ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117 Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 Gill v Immigration and Border Protection [2017] FCAFC 51 Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 ESU17 v Minister for Home Affairs [2019] FCA 300 Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 163 ALD 469 Date of hearing: 19 November 2019 Date of last submissions: 22 November 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 60 Counsel for the Appellant: Mr D Godwin Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 870 of 2019 BETWEEN: BFA17 Appellant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent JUDGE: ABRAHAM J DATE OF ORDER: 13 December 2019 THE COURT ORDERS THAT: 1. The name of the first respondent be changed to "Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs". 2. Leave to rely on a new ground of appeal is refused. 3. The appeal is dismissed. 4. The appellant to pay the first respondent's costs as agreed or taxed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT ABRAHAM J: 1 The appellant is a citizen of Sri Lanka who arrived in Australia on 26 September 2012 and on 1 July 2016 applied for a Safe Haven Enterprise Visa (SHEV), which was refused by a delegate of the Minister on 15 December 2016. On 15 February 2017 the Immigration Assessment Authority affirmed that decision, and on 15 May 2019 the Federal Circuit Court dismissed an application for judicial review of that decision. This is an appeal from that decision. 2 This appeal raises the issue of whether the Federal Circuit Court erred in not finding that the Authority had misconstrued the appellant's claims and in not finding that the Authority's decision was legally unreasonable as it relied upon inconsistencies in the appellant's evidence that did not exist. Leave to rely on a new ground in relation to the Authority's consideration of two letters relied on by the appellant, is also sought. 3 For the reasons given below, leave to rely on the new ground is refused and the grounds of appeal have not been established. Background 4 In summary, the appellant claimed to fear harm in Sri Lanka as a Tamil from the Eastern province. He claimed that he feared harm from the Karuna group because he refused to work for them, and they will suspect he is a member of the Liberation Tigers of Tamil Eelam (LTTE) and that he made a complaint about them. He also claimed to fear harm from the Sri Lankan authorities because they will suspect he is an LTTE member, because he is a Tamil from the Eastern province, and because he departed Sri Lanka illegally and applied for asylum in Australia. 5 The appellant accepts that the Federal Circuit Court accurately summarised his claims for protection at paragraphs [2]-[6]. The claims of significance to the grounds of appeal are based on the appellant's SHEV statement, and are as follows: 8. The LTTE required at least one member of every family to work for LTTE to fight against the SLA. On the other side, in the SLA controlled area, there were heavy restrictions on civil life as the SLA was suspicious of Tamils working for the LTTE. … 11. From January 2000 to 21 September 2003 l did not have a stable address and moved between addresses in Colombo, Pankudaly, Kallady and Thirupulugamam to avoid being targeted by the LTTE and the SLA army. This is because the LTTE required me to serve in their ranks and fight against the SLA and the SLA on the other hand was suspicious of me being a member of the LTTE as we moved from an LTTE controlled area to the SLA controlled area (Pankudaly - LTTE controlled area; Kallady SLA controlled area, Thirupulugamam - both). 12. To avoid being targeted by both the LTTE and SLA I went to Dubai. I was also working while I was in Dubai as a labourer in a Carton factory. … 15. After LTTE dismembered in 2009, the KARUNA group, being formerly part of the LTTE became dominant. The KARUNA group worked with the army and the government. 16. The KARUNA group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. As I had fled to Dubai to avoid service I was fearful that they might take revenge by kidnapping and torturing me. The Authority 6 The following summary is largely taken from the respondent's submission, no issue having been taken by the appellant to its accuracy. The two matters to which the grounds of appeal are directed are discussed in more detail in the consideration of the grounds. 7 The Authority accepted on the basis of the appellant's evidence and country information that the appellant had a subjective fear of being forcibly recruited by the LTTE, and that this was the reason he travelled to Dubai and overstayed his visa. It did not accept, however, that the LTTE had ever sought actively to recruit him. The Authority had difficulties with aspects of the appellant's claim that he had been threatened by the Karuna group. The Authority noted that the appellant had provided inconsistent evidence as to which political party was threatening him, in that he said in his entry interview that he was forced to work by the "SK" but never mentioned the party again. The Authority recited the claim to fear harm from the Karuna group, and stated that the answers the appellant had given to the delegate on this claim did not clarify why the group would target him. The Authority found that the claim was inconsistent with his other evidence that he went to Dubai to avoid the LTTE. The Authority noted that the Karuna group did not exist at the time the appellant went to Dubai. 8 The Authority considered two letters purporting to have been written by members of the TMVP and a police report. The Authority did not accept them as credible. The Authority rejected the claim that the TMVP or Karuna group had sent letters to the appellant or his father, and it rejected the claim that supporters of the Karuna group, TMVP or any unknown armed men went to the appellant's father's home and made threats against the appellant. The Authority found this claim to have been fabricated. 9 The Authority was not satisfied that the appellant would face harm for reason of being a failed asylum seeker, having regard to country information and noting the lack of any LTTE profile that might expose the appellant to harm. The Authority also was not satisfied the appellant would face harm amounting to serious harm for having departed Sri Lanka illegally. 10 The Authority considered the appellant's claims relating to his brother who he said was threatened by the CID in 2014. The Authority accepted that the appellant's brother had gone to Switzerland. However for reason of inconsistencies in the presentation of the claims, and the fact that the CID had made no attempt to contact any other members of his family after 2014, the Authority did not accept the CID had questioned the appellant's brother about him in 2014. The Authority found this claim to have been fabricated. The Authority took into account other claims made by the appellant in his entry interview, but not repeated in his SHEV application. The Authority considered the claims but was not satisfied they gave rise to a real chance that the appellant would suffer serious harm. 11 The Authority concluded that the appellant did not meet the requirements of refugee in s 5H(1) of the Migration Act 1958 (Cth). Having regard in particular to the appellant's claims of having departed Sri Lanka illegally, and the prospect that the appellant as a Tamil would suffer societal discrimination, the Authority was also not satisfied the appellant was entitled to protection under s 36(2)(aa). Federal Circuit Court 12 The appellant relied on two grounds of appeal in the Court below, only the second of which (ground 4 in the Federal Circuit Court) is repeated in this Court. It is therefore unnecessary to recite the reasoning in respect to the first of those grounds. The Court's reasoning in relation to ground 4 is discussed in detail below in considering ground 1 of this appeal. Suffice to say at this stage, the Court below found that the grounds were not established and dismissed the appeal. Consideration 13 As noted above, the appellant relies on four grounds of appeal, the first three relate to the same issue, and the fourth of which he needs leave to rely on as it was not raised in the Court below. Ground 1 and 2: there is no basis for the Authority's finding as to why the appellant went to Dubai, the Authority misconstrued the claims 14 These appeal grounds centred on a particular claim which the appellant submitted was clear from the statement he provided in support of his SHEV application: that he had been selected as the family member who was to join the LTTE. At that time the LTTE and the Karuna group were the same body, but it was the idea of the Karuna group that a family member from every family be conscripted. The appellant travelled to Dubai to avoid conscription by the LTTE. By the time he returned to Sri Lanka the Karuna group had split from the LTTE. He feared the Karuna group as he had avoided subscription at the time they had been enforcing that within the LTTE. 15 The appellant submitted that the material before the Authority established that the Karuna group had been part of the LTTE until 2004 and therefore did not have an independent existence until 2004. The appellant departed for Dubai in 2003. 16 The particular finding by the Authority which was challenged in the Court below was at paragraph [14]: In his SHEV statement, he claimed to fear harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. When the delegate questioned the applicant regarding this part of his claims, he stated because Karuna worked with the army, that was why the army sometimes questioned him. I consider that explanation does not clarify why the Karuna group would target the applicant for harm because he went to Dubai. As discussed above, his evidence elsewhere is he went to Dubai due to a subjective fear of forced recruitment by the LTTE, not to avoid the Karuna group. The country information I referred to above indicates too that the Karuna group did not exist at the time the applicant went to Dubai. I consider the applicant has provided materially inconsistent evidence as to his fearing the Karuna group on return to Sri Lanka from Dubai and I consider that inconsistent evidence undermines the credibility of his claims. 17 The appellant submitted that the first sentence of paragraph [14] was incorrect, because the appellant's claim was that he went to Dubai to avoid being threatened by the LTTE and the SLA. In that respect the appellant relied on paragraph [12] of his statement, recited above at [5]. The appellant submitted that this error infected the reasoning in this paragraph. It was submitted that the Authority used an inconsistency between a claim the appellant did make - going to Dubai to avoid subscription by the LTTE - and a claim he did not make - going to Dubai to avoid serving with the Karuna group - as a basis for an adverse credibility finding. It was submitted that this finding was legally unreasonable and materially affected the decision. 18 The appellant submitted that the findings of the Court below in paragraphs [25] and [26] of its reasons, which rejected this submission, ignores the plain words of the first sentence of paragraph [14] of the Authority's reasons. The appellant submitted that the conclusion of the primary judge that it was reasonably open to find that a claim was made (by implication from the SHEV statement) is not open because the appellant plainly and expressly said in that statement that he went to Dubai to avoid being threatened by the LTTE and the SLA. 19 The respondent submitted that it was at least open to the Authority to interpret the appellant's claims in the way that it did. It submitted that paragraph [14] must be read in the context of the preceding paragraph which it submitted showed the Authority was mindful of the historic background of the various political entities in Sri Lanka. In oral submissions it was submitted that the preceding paragraph raised concerns which were essentially to the effect that the Authority was concerned that the appellant was providing inconsistent evidence about which political party was threatening him at which particular time, and there was some inconsistency in relation to the TMVP and the SK which are described in that paragraph. The respondent pointed to paragraph [16] of the appellant's statement, recited above at [5]. From that it was submitted it was open to the Authority to reach the conclusion in the first sentence of paragraph [14]. It was the appellant who volunteered that it was the Karuna group that was behind the idea of compulsory service for the LTTE, which was the very service the appellant claims he was trying to avoid by fleeing to Dubai. He appears to have volunteered that it was the Karuna group that was behind the idea of compulsory service in order to support the claim that he feared harm in the future from the Karuna group because he had evaded that service by fleeing to Dubai. It was submitted that having sought to articulate the claim in this way, the appellant cannot now complain that the Authority should read paragraph [16] of his statement consistently with his earlier expressed claim that he fled to Dubai to avoid being targeted by the LTTE and the SLA. The respondent submitted that the fact that the appellant also claimed at paragraph [12] of his statement that he went to Dubai to avoid being targeted by the LTTE and the SLA does not warrant difficulties that emerge from paragraph [16] of the statement to be overlooked. The respondent submitted that it was evident from its findings at [13] that the Authority was concerned that the appellant was confused about the political groups from which he claimed to fear harm. Its concerns and findings expressed at [14] are of a similar kind; the appellant was inconsistent in his presentation of claims as to which entity he feared. 20 The impugned conclusions of the Federal Circuit Court are in paragraphs [25] and [26] of its reasons which are as follows, (the paragraphs of the appellant's statement referred to therein are recited above at [5]): 25. I do not accept the Authority was incorrect in stating that in the Statement the applicant claimed he feared harm from the Karuna group, because he went to Dubai to avoid serving the Karuna group. At the very least it was reasonably open to the Authority to consider that the applicant did make such claim in the Statement. That appears from paragraph 16 of the Statement: The KARUNA group was behind the idea of compulsory service for one person in the family during the LTTE fight against the SLA. As I had fled to Dubai to avoid service I was fearful that they might take revenge by kidnapping and torturing me. 26. That in paragraph 15 of the Statement the applicant states that the LTTE "dismembered in 2009" and that the Karuna group became dominant does not imply that the applicant claimed the Karuna group had no separate identity. Paragraph 15 of the statement asserts the Karuna group had an identity; and the applicant claims the Karuna group was "formerly part of the LTTE". And to claim, as it is claimed in paragraph (c)(ii) of the particulars to ground 4, that the applicant did not claim in paragraph 16 of the Statement that the Karuna group was a separate entity, but was only a faction within the LTTE, does not gainsay that the applicant claimed the Karuna group had a distinct identity; that in paragraph 16 of the Statement the applicant claimed the Karuna group – not the LTTE in general – was behind the idea of compulsory service for one person; and that it was the "they", the Karuna group, the applicant claimed he feared might take revenge on him by kidnapping and torturing him. 21 When the appellant's claims (extracted at [5] above) are properly read together, it cannot be said that the Court below was in error to conclude that it was reasonably open to the Authority to make the finding it did in the first sentence of paragraph [14]. As explained by the Federal Circuit Court in the passage cited above, paragraph [16] of the appellant's statement, in the context in which it appears, is the basis for that first sentence. It was, after all, as the appellant claimed, the Karuna group who was behind the idea of compulsory service. It was the appellant who raised the Karuna group in his statement, and why he claimed he feared them on his return. That reasonable minds might differ as to the interpretation of the appellant's statement is not a proper basis on which to find jurisdictional error: Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 at [131], [135] per Crennan and Bell JJ. 22 This ground is not established. Ground 3: the finding of inconsistency 23 The appellant submitted that there was no basis for the Authority, in paragraph [14] of its reasons (extracted at [16] above), to find that the appellant had provided inconsistent evidence. The appellant relied, in part, on the finding of the primary judge at paragraph [27] where the Court recognised that a strong case could be made that it was not open to the Authority to consider the claims to be inconsistent because the appellant claimed the Karuna group formed part of the LTTE, and it was the Karuna group, while it was part of the LTTE that was behind the idea of compulsory service. The primary judge did not determine this issue as it was considered to be outside the ground of appeal as pleaded. 24 The appellant submitted that the finding of inconsistency when there was none, was material, relying particularly on SZTFQ v Minister for Immigration and Border Protection [2017] FCA 562 (SZTFQ) at [44]-[45]. The appellant challenged the reasoning of the Court below, that if there was an inconsistency any error was not material. 25 The respondent submitted that the impugned finding by the Authority was that the appellant had provided "materially inconsistent evidence" that he feared the Karuna group on return to Sri Lanka from Dubai. It submitted that the Authority based its finding not only on the claims advanced by the appellant, but the answer he gave to a question from the delegate at the SHEV interview concerning this part of his claim, referring to paragraph [14] where the Authority referred to the delegate's questions. The Authority further relied upon country information that the Karuna group was a faction within the LTTE that split in 2004 to form the TMVP, and which then split again from the TMVP in 2008. The Authority found, as a fact, that the Karuna group as an entity did not exist at the time the appellant went to Dubai in 2003. This conclusion was open on the material available. 26 While not necessarily endorsing all the reasoning of the primary judge as to materiality, the respondent submitted that the impugned finding was not material. The respondent relied particularly on AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; (2018) 361 ALR 227 (AVQ15) at [40]-[41] and SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 (SZWCO) at [64]. 27 As a preliminary observation, the approach adopted by the Court below that it did not need to decide the question of inconsistency because it was not within the ground of appeal appears to be incorrect. The ground in that Court did encompass this aspect of the argument. The respondent in this Court does not suggest otherwise. 28 The findings in paragraph [14] must be read with the preceding paragraphs in the Authority's reasons. The inconsistent evidence provided by the appellant is said to relate to his fearing the Karuna group on his return to Sri Lanka from Dubai. From paragraph [13] the Authority expressed concerns about what it described as inconsistent references to various groups by the appellant, and it concluded that paragraph with the finding that "I consider the applicant providing inconsistent evidence as to which political party was threatening him undermines the credibility of his claims". In paragraph [14] the Authority referred to answers given by the appellant when questioned by the delegate on the topic being addressed, and it appears that it took into account those answers in reaching the conclusions it did. The transcript of that interview was clearly before the Authority but has not been provided to this Court. In particular the appellant has not relied on anything in that interview to submit that the Authority's statements about it are incorrect, or not reasonably open. In the absence of the evidence of the interview (or any challenge based on it), the finding by the Authority as to inconsistency, which plainly is based in part on the interview, is difficult to fault. The appellant has not established that finding by the Authority was not reasonably open for it to make. 29 In any event, even if the finding of inconsistency involved error the appellant must establish materiality in order to establish jurisdictional error: AVQ15 at [41(d)]; Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 359 ALR 1 at [30] – [31] per Kiefel CJ, Gageler and Keane JJ. The appellant has not established materiality. 30 Initially there was no real attempt made by the appellant to demonstrate materiality, save for submitting that based on his submission as to the first sentence of paragraph [14], the conclusion in the last sentence of that paragraph, that there was materially inconsistent evidence which undermined the credibility of his claim, was very difficult to sustain. However, I have not accepted the submission as to the first sentence. 31 The appellant submitted by reference to SZTFQ that even small matters in a credibility finding can make a difference and it is too difficult to know what effect it might have had on the overall finding. The appellant did not address the findings of the Court below, where it addressed the issue of materiality in paragraph [28], until asked specifically to do so. 32 After the hearing, as a result of the respondent referring to the two authorities AVQ15 and SZWCO the appellant was given leave to file a further brief submission addressing those authorities. That further submission did not address those authorities in any detail, but rather made submissions as to materiality in this case. The appellant relied on the finding in paragraph [20] of the Authority's reasons that "[o]n the credible evidence before me I am not satisfied the [appellant] faces a real chance of serious harm from the TMVP, Karuna group and/or Pillaiyan group due to any imputed political opinion, now or in the reasonably foreseeable future if he returns to Sri Lanka," to demonstrate materiality. It was submitted that paragraph [20] was premised on being based on the credible evidence before the Authority and that to the extent that the Authority excluded evidence based on the impugned credibility finding this limited the evidence on the ultimate conclusion. 33 The appellant's submission was really twofold: first, the Court cannot know that the Authority would have reached the same result if the evidence and claim about being fearful of the Karuna group on his return had been taken into account and it would be an impermissible merits review for the Court to make its own assessment of the weight; and second, in any event, there is no putative alternative basis for the finding in paragraph [14]. The Karuna group claim was found not to be credible because of the inconsistent evidence, and therefore it has not been taken into account by the Authority in reaching its conclusion in paragraph [20] and there is no independent basis for not taking into account this claim apart from the finding of inconsistency. 34 As a preliminary observation, the Authority in paragraph [14] did not reject the claim as to the appellant's fear of the Karuna group on return, but rather concluded that the inconsistent evidence undermined his credibility as to the claim. It follows that the appellant's submission that as a result of that finding the appellant's claim was not considered is also incorrect. 35 The Authority then referred to other evidence relevant to the claims that led to the conclusion in paragraph [20], in the paragraphs which followed. As is clear from paragraph [15] which is recited below at [52], the Authority made findings in relation to the two letters. However, in paragraph [16] the Authority also addressed the police report relied on by the appellant in support of his claim and found that it was inconsistent with the appellant's claims. The police report stated the father made a complaint that armed men, unknown to the father made threats against the appellant. This was found to be inconsistent with the appellant's claim that the men were known to him and his father as being from the TMVP/the Karuna group. It placed weight on the fact the report did not bear any identifying features to demonstrate it was a genuine police document. The Authority found that the police report, as with the two letters, were not credible. It also found that providing such documents undermined the appellant's credibility. In paragraph [17] the Authority addressed the appellant's claims that he had been approached by supporters of the Karuna group to assist with the election campaigning. It recited the appellant's evidence on the topic, which has not been the subject of challenge. The Authority in paragraphs [18] and [19] referred inter alia to the country information, and findings as to what it accepted and did not accept in relation to the appellant's claims. For example, the Authority accepted that the appellant was asked by the Karuna group to assist with election campaigning and that he sought to avoid this; that he had a subjective fear arising from that which in part was his motive to travel to Colombia and India. However it did not accept that the Karuna group sent him or his father letters or that their supporters went to his father's home and made threats against him. Based on the country reports the Authority found that the Karuna and Pillaiyan groups had significantly reduced influence and power since 2015 and it rejected the appellant's claim that because the Karuna group was once aligned with the Sri Lankan military they remain powerful. It was in light of all these findings that the Authority made the finding in paragraph [20]. 36 In that context, even if, contrary to my conclusion that there was no error established in relation to paragraph [14], the appellant has not established that any error was material. 37 An error of fact is not, without more, jurisdictional error: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 at [53]; ESU17 v Minister for Home Affairs [2019] FCA 300 at [17]. The "fundamental question must be the importance of the material to the exercise of the Tribunal's function and thus the seriousness of any error": Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99 at [111] per Robertson J. Circumstances giving rise to jurisdictional error do not arise in this case. 38 The appellant referred principally to the observations in SZTFQ at [44]-[45] where Lee J stated: It is not realistic to put the various aspects of the appellant's evidence into hermetically sealed boxes or to approach the reasoning of the Tribunal member on the basis that this is how the evidence was approached. The assessment of credibility is necessarily an impressionistic one, which, if properly formed, takes into account all of the evidence. As the Full Court (Hill, Sundberg and Stone JJ) observed in VAAD v Minister for Immigration & Multicultural Affairs [2005] FCAFC 117 at [79] "an assessment of credibility is not necessarily linear". Put another way, although it is not accurate to say that the Hospital Evidence was minor, as Gleeson CJ commented in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at 89, "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive." The finding that the appellant had been deceitful about the hospital was plainly not an issue the Tribunal member had considered to be peripheral to assessing his creditworthiness. To be too confident that emphatic disbelief on one issue would not inform, even subconsciously, the approach taken to weighing other evidence of the person disbelieved is, to my mind, to underplay the complexity of the anatomy of decision-making. As Kirby J observed in Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1 at 23 [81]: …decision-making is a complex mental process. Disbelief of a litigant or witness on one point might carry over to affect the decision-maker's disbelief of the same person on other points. Contrary-wise, establishing that an initial disbelief of a person's credibility on one matter was erroneous might convince a decision-maker of the need to revisit other conclusions and to look at the person's entire evidence in a new light. 39 The appellant relied on these passages to submit that even small matters in a credibility finding can make a difference and it is difficult to know what effect the matters in this case had. He submitted that there were a number of reasons that led to a credibility finding is not an answer to his submission the finding was material. 40 It may be accepted, as Gleeson CJ said in Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [4], that "[d]ecisions as to credibility are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive": and see: Minister for Immigration and Border Protection v CPA16 [2019] FCAFC 40; (2019) 163 ALD 469 at [39]. 41 Nonetheless, the relevant principles guiding judicial review of credibility findings are conveniently summarised in AVQ15 at [41]. Relevantly for present purposes, the Full Court observed that: (b) while findings as to credit are generally matters for the administrative decision-maker, they may be amenable to judicial review on several grounds including legal unreasonableness, reaching a finding without a logical, rational or probative basis, failure to perform the required statutory task of review, and failure to take into account material critical to the formation of the requisite state of satisfaction (c) whether or not a credibility finding is affected by jurisdictional error is a case specific inquiry, and should not be assessed by reference to fixed categories or formulae. Merely because a decision-maker has ignored "relevant material" does not always give rise to jurisdictional error in the present context. The importance or cogency of the material, its place in an assessment of the appellant's claim and in the performance of the statutory task are matters of fundamental importance in a protection visa case. Those matters inform an assessment of the seriousness or gravity of the error; (d) even if an aspect of reasoning, or a particular finding of fact, is shown to be irrational or illogical, jurisdictional error will generally not be established if that reasoning or finding of fact was immaterial, or not critical to, the ultimate conclusion or end result (such as, for example, where it is but one of several findings that independently may have led to the ultimate decision) and … (f) considerable caution must be exercised before concluding that errors in an adverse credibility assessment result in the decision being affected by jurisdictional error, in order to avoid judicial review transgressing into the impermissible area of merits review. 42 Against that background, the Court's conclusion on the lack of materiality of any alleged error was correct, namely that: [T]he Authority relied on a number of matters for finding the applicant was not a credible witness; and it also found that the power of the Karuna group has been significantly reduced after the change of government in 2015. 43 I note also that other matters which the Authority concluded undermined the appellant's credibility, (as is apparent from the summary at [35] above) related to documents and statements made by him in support of his claim of being fearful of the Karuna group, and other groups. 44 On the appellant's reasoning, any error relating to an adverse finding as to credibility would necessarily result in jurisdictional error on the basis that its effect is unknown. This submission cannot be correct in light of the relevant authorities cited above, including SZTFQ which was the basis of the appellant's submission. 45 The appellant has not established that the alleged error in the finding of inconsistency in paragraph [14], was material to the Authority's ultimate decision. The reasoning of the Authority leading to the conclusion in paragraph [20] involved a number of different factual findings, including findings as to the relevant country information and separate adverse findings to credibility than those in the impugned paragraphs. Jurisdictional error has not been established. Ground 4: the two letters 46 This is the ground on which the appellant requires leave to rely. 47 The relevant principles for the grant of leave are well established and are summarised in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]–[48] where the Full Court said: In our view, the application for leave to rely upon the sole ground of appeal now raised should be refused. Leave to argue a ground of appeal not raised before the primary judge should only be granted if it is expedient in the interests of justice to do so: O'Brien v Komesaroff [1982] HCA 33; (1982) 150 CLR 310; H v Minister for Immigration & Multicultural Affairs; and Branir Pty Ltd v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 at [20]-[24] and [38]. In Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, Gibbs CJ, Wilson, Brennan and Dawson JJ observed, in their joint judgment, at 7: It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. The practice of raising arguments for the first time before the Full Court has been particularly prevalent in appeals relating to migration matters. The Court may grant leave if some point that was not taken below, but which clearly has merit, is advanced, and there is no real prejudice to the respondent in permitting it to be agitated. Where, however, there is no adequate explanation for the failure to take the point, and it seems to be of doubtful merit, leave should generally be refused. In our view, the proposed ground of appeal has no merit. There is no justification, therefore, for permitting it to be raised for the first time before this Court. 48 The respondent opposed leave being granted, principally on the basis that the appellant was legally represented in the Federal Circuit Court, and that the arguments sought to be raised in this Court could have been raised below. The appellant relied particularly on observations of the Court in Chan v Minister for Immigration and Border Protection [2018] FCA 1323 at [43] – [44] and CGA15 v Minister for Home Affairs [2019] FCAFC 46 (CGA15) at [37], each of which addressed the grant of leave in circumstances where the appellant was represented in the Court below. It is plain that while that fact is a relevant consideration which can be seen as weighing against the grant of leave, it is not decisive: CGA15 at [37]. The merit of the proposed ground will also be an important consideration: ARK16 v Minister for Immigration and Border Protection [2018] FCA 825 at [25]. 49 The respondent does not suggest that it was in any way prejudiced by the application. Given the grant of leave to rely on the new ground of appeal is heavily influenced by whether there was merit in it, the ground was fully argued on the appeal. 50 Against that background I turn to consider the ground. 51 The appellant submitted that the Authority in paragraph [15] found that he gave inconsistent evidence as he had asserted that the TMVP had written to him twice and his father once, yet the two letters he had produced to the department were both addressed to his father. The appellant submitted this is incorrect as the first letter of 3 May 2012 (which the Authority refers to as being dated 5 May) was addressed to the appellant. It was submitted that the error is significant as the Authority has relied upon an alleged inconsistency that did not exist to discredit the appellant. It was submitted that an error of fact which relates to a matter which the decision maker treats as being a critical aspect of the appellant's claims can infect a decision with jurisdictional error, relying on a number of authorities in support of this proposition, including VAAD v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 117; Minister for Immigration and Citizenship v SZRKT [2013] FCA 317; (2013) 212 FCR 99; SZWCO v Minister for Immigration and Border Protection [2016] FCA 51; Gill v Immigration and Border Protection [2017] FCAFC 51 at [72]. 52 Paragraph [15] was in the following terms: I have had regard to the two letters purportedly from TMVP and the police report. In assessing those letters and the police report, I am mindful of the information in the new DFAT report and 2015 DFAT report regarding the prevalence of fraudulent documents in Sri Lanka. The applicant claims the TMVP sent him two letters and his father one letter, he has provided two letters (and English translations), one dated 5 May, the second dated 28 May 2012. Contrary to the applicant's claims, neither letter is addressed to him. They are both addressed to his father and indicate the TMVP wish to discuss matters with his father, although both letter request the father bring the applicant too. Nowhere in the applicant's claims does he state the TMVP/Karuna group were interested in his father. His evidence elsewhere is the Karuna group came to his father's home while the applicant was in India and made threats against the applicant to his father. It appears implausible to me if the Karuna group/TMVP were inviting the applicant's father to attend meetings to discuss matters, that the Karuna group would not have made any threats towards the applicant's father given the father did not respond to the letters. I further consider it implausible the Karuna group/ TMVP would know to send the second letter to the applicant's father because the applicant was in India. I consider these inconsistencies and implausibility undermine the credibility of the applicant's claims. 53 The respondent accepted that the letter dated 5 May 2012 was (apparently) addressed to a person who could be the appellant, and that the letter dated 28 May 2012 was addressed to a different person. The respondent submitted that each letter contained the following request: "Please bring your son without disregarding this letter". The Authority could only interpret the letters by reference to the translations, which were provided by the appellant himself. The respondent submitted that it was open to the Authority in light of the contents of the letters to find that each of them was addressed to the appellant's father, and not to him personally. In addition the respondent submitted that whether one letter was addressed to the appellant or to his father did not matter in light of the Authority's reasoning. The Authority did not find the appellant not to be credible for this reason. Rather, the Authority reasoned that it was implausible that the Karuna group or TMVP were inviting the appellant's father to attend meetings to discuss matters when the groups had not made any threats towards the appellant's father given that he had not responded to the letters. The Authority further found it implausible that the groups would have known to have sent the second letter to the appellant's father because the appellant was in India. The Authority noted the prevalence of document fraud in Sri Lanka. The respondent submitted that the Authority found for those reasons that the credibility of the appellant's claims were undermined. 54 The respondent submitted that even if the Authority made an error concerning one of the letters in respect of its intended recipient, it was a mere factual error that did not go to jurisdiction. Alternatively the error was not jurisdictional because it was not material in that the error did not deprive the appellant of the possibility of a successful outcome: Minister for Immigration and Border Protection v SZMTA [2019] HCA 3; (2019) 93 ALJR 252. 55 As the respondent submitted, the evidence provided by the appellant to the Authority in relation to the letters is rather unsatisfactory. As both parties recognised, the oddity about the letters is that while they appeared to be addressed to different persons, even accepting one is to the father and one the appellant, both letters contain the words, "[p]lease bring your son without disregarding this letter". Plainly the content of each of the letters is directed to the father. That is inconsistent with the letters being addressed to different persons, one being the appellant. Even accepting there are different names on the two documents, the Authority correctly summarised the content of the letters as being directed to the father. In this context, the respondent's submission that it was open to the Authority by reference to the content of the letter as a whole to find that they were both addressed to the father, should be accepted. 56 Regardless, the respondent's submission as to the use made by the Authority of that finding must be accepted on a proper reading of paragraph [15]. It being accepted that at least one of the letters was addressed to the father, the Authority noted that the appellant had not made any claim about the TMVP/Karuna group being interested in his father and there was no claim of threats against the father even though he had not responded to the letters. The Authority also found it implausible that the TMVP/Karuna group knew to send a second letter to his father as he was in India (the respondent noted that there was no dispute that the second letter dated 28 May 2012 was addressed to the father). The Authority was mindful of the prevalence of document fraud. While the Authority, contrary to the appellant's claims, made a finding that both letters were addressed to his father, the reasoning thereafter focuses on the implausibility of such a letter being sent to his father. As at least one letter was addressed to his father that reasoning stands regardless of the impugned finding. 57 In that event, the finding could not be said to be material in the requisite sense. 58 Leave to rely on this ground is refused. Conclusion 59 Leave to rely on the new ground is refused. 60 As none of the grounds of appeal have been established the appeal is dismissed. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Abraham. Associate: Dated: 13 December 2019	9,774
federal_court_of_australia:fca/single/1998/1998fca1241	decision	commonwealth	federal_court_of_australia	text/html	1998-09-01 00:00:00	Campbell, Keith Malcolm & Anor v Metway Leasing Ltd & Ors Campbell, Keith Malcolm v The Official Trustee in Bankruptcy & Anor Campbell, Lois Audrey v Official Trustee in Bankruptcy & Anor [1998] FCA 1241	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1998/1998fca1241	2024-09-13T22:53:17.910766+10:00	IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NG7787 of 1997, NG 7788 of 1997 and NG 757 of 1997 BETWEEN: KEITH MALCOLM CAMPBELL NG757 of 1997 First Applicant And LOIS AUDREY CAMPBELL Second Applicant AND: METWAY LEASING LIMITED First Respondent ANTHONY GAVAN and 7 ORS trading as PIGOTT STINSON STUART THOM, Solicitors Second Respondent ARONYA HOLDINGS PTY LIMITED (IN LIQUIDATION) Third Respondent INSOLVENCY AND TRUSTEE SERVICE OF AUSTRALIA Fourth Respondent and METWAY BANK LIMITED Fifth Respondent BETWEEN: KEITH MALCOLM CAMPBELL NG7787 of 1997 Applicant AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY First Respondent and metway leasing limited Second Respondent BETWEEN: LOIS AUDREY CAMPBELL NG7788 of 1997 Applicant AND: THE OFFICIAL TRUSTEE IN BANKRUPTCY First Respondent and METWAY LEASING LIMITED Second Respondent JUDGE: WILCOX J DATE: 1 September 1998 PLACE: SYDNEY EXTEMPORE REASONS FOR JUDGMENT WILCOX J: On 29 January last three matters came before me. They consisted of two applications for annulment of sequestration orders, being applications by Keith Malcolm Campbell and Lois Audrey Campbell respectively, and a separate proceeding, NG 757 of 1997, which was commenced by Mr and Mrs Campbell and named various respondents. The respondents included Metway Leasing Limited and Metway Bank Limited, apparently associated companies who were financiers of Mr and Mrs Campbell and Aronya Holdings Pty Ltd (in liquidation) a company controlled by them. The respondents also include the members of a firm of solicitors (Pigott Stinson Stuart Thom) who acted for the Metway interests in litigation between those interests and Mr and Mrs Campbell. I do not propose to recount the history of the earlier litigation. There has been considerable litigation in the Supreme Court of New South Wales. A notable feature of this litigation was a hearing by Barr AJ, as he then was, that culminated in a judgment delivered on 26 April 1995. As I understand the position, at least two separate proceedings were consolidated for the purposes of that hearing. I have been informed it extended over some 24 days. Numerous issues were raised and investigated at length. Barr AJ gave judgment in favour of Metway Leasing against Mr and Mrs Campbell and a company controlled by them, Baystan Pty Limited, in the sum of $104,569, plus costs. Apparently costs were subsequently assessed in the sum of $212,000. Mr and Mrs Campbell and Arnoya Holdings Pty Limited, another defendant before Barr AJ, filed a notice of appeal against his judgment. They made application for a stay of his orders pending determination of the appeal. This was considered by Sheller JA on 17 July 1995. The stay was refused. Subsequently, there was an application before Newman J in the Supreme Court, being for the appointment of a receiver to certain strata units known as "Metro Units" at Chippendale. The application was made by Metway Leasing and it appears Newman J acted on the basis that Metway Leasing was the holder of a second mortgage over those units. In bankruptcy proceedings in this Court, an officer of Metway Leasing conceded this was not so; he said the basis of the application for the appointment of a receiver was the issue of a Writ of Execution. If that is so, I can only say it appears from Newman J's reasons for judgment that he had a different understanding of the situation. Metway Leasing filed a bankruptcy petition against Mr Campbell on 4 April 1996. On 6 June 1996 Hill J made a sequestration order. It is not clear to me what happened on that occasion. Mr Campbell, who appears for himself and his wife today, said he was not present before Hill J but his son and daughter represented him. It seems evidence was taken by Hill J. Nonetheless, his Honour made a sequestration order. Subsequently Metway Leasing filed a petition against Mrs Campbell. This resulted in a sequestration order being made against her. In the meantime Arnoya Holdings Pty Limited was ordered to be wound up and a second Supreme Court action was commenced by Mr and Mrs Campbell. This action was based on s 55 of the Fair Trading Act (NSW) which provides as follows: "A person shall not use physical force or undue harassment or coercion in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer." Application was made to Master Malpass, in the Supreme Court, for an order striking out the Statement of Claim filed in the second Supreme Court proceeding. The Master acceded to the application but, on 9 April 1997, his order was set aside by McInerney J. I have read his Honour's reasons. It seems he shared the Master's view that the Statement of Claim, as pleaded, was unsatisfactory; but he differed with the Master's refusal to allow the filing of an Amended Statement of Claim. His Honour gave leave to file an Amended Statement of Claim. This was done on 17 April 1997. For some reason, of which I am not aware, no defence was immediately filed. Mr and Mrs Campbell entered default judgment; however, after a contested hearing, this was set aside. In September 1997, Master Malpass stayed further proceedings on that action; I gather because of the applications which had by then been made in this Court for annulment of the sequestration orders. The Supreme Court seems to have adopted the position of waiting for the litigation in this Court to be resolved before allowing any further action in that Court. Not only was this the attitude of Master Malpass in respect of the second Supreme Court action. Appeal books have been filed in relation to the appeal against the decision of Barr AJ. However, the Registrar of the Court of Appeal recently determined to take no action to list the appeal pending the outcome of proceedings in this Court. Having regard to the fact (as I now know) that the Supreme Court proceedings were being held up pending determination of the applications before this Court, it is perhaps unfortunate that I decided, on 29 January 1998, to refer the matters for mediation. I did so because there then seemed some prospect that mediation would resolve the litigation engulfing the parties. Unfortunately, the mediation took longer than I expected. Even more unfortunately, it failed to achieve any agreement. I am therefore back where I was on 29 January. I must determine the applications before me. Mr Campbell has taken me through the history of the matter with great care and in considerable detail. He raised many matters which are not for me to determine. One matter he emphasised is that incorrect information was apparently given to Newman J, on which he relied in deciding to appoint a receiver to the assets of Arnoya Holdings Pty Limited. As I have indicated, the documents do suggest Newman J proceeded on a misapprehension. However, I make no findings about the matter because it is not something that calls for findings in this Court. The two questions I have to decide are, first, whether it is appropriate to annul the sequestration orders, and second, whether I should yield to Mr Campbell's submissions that his action NG 757 of 1997, which effectively repeats the claims made in the second Supreme Court action, should be heard in this Court. As to the first question, the relevant provision is section 153B of the Bankruptcy Act 1966. That section reads: "If the court is satisfied that a sequestration order ought not to have been made or in the case of a debtors petition that the petition ought not to have been presented or ought not to have been accepted by the official receiver the court may make an order annulling the bankruptcy." In the present case, I am not concerned with a debtor's petition. The question is whether I am satisfied the sequestration order ought not to have been made. I emphasis I am not dealing with a situation of annulment on payment of debts. That situation is separately dealt with in the Act: see s 163A. Nor am I talking about an application for discharge from bankruptcy. That, also, is dealt with by a separate provision of the Bankruptcy Act. One situation in which the Court can be satisfied a sequestration order ought not to have been made would be where it is demonstrated that relevant documents were not served on the person subsequently made bankrupt, so there was a denial of procedural fairness. Another situation would be where it is demonstrated there was not a debt of the requisite minimum amount ($2,000) at the date of the hearing of the petition. No doubt there are many other situations to which s 153B may have application. When I asked Mr Campbell to identify the basis upon which he said that these sequestration orders, or either of them, ought not to have been made, he mentioned two matters. First, he said there was a dispute as to the quantum of the debt owed by himself and his wife to Metway Leasing, the petitioning creditor. However, he conceded the debt was not less than $2,000. As to this matter I make two observations. First, it is open to a person on whom a bankruptcy petition is served to raise grounds of opposition. One available ground of opposition is that there is not the requisite minimum debt. If that ground of opposition is raised, the Court must inquire into the position and, unless it is satisfied there is the minimum debt, there can be no sequestration order. There is no evidence before me as to the submissions that were put on behalf of Mr Campbell to Hill J at the time of the hearing of the petition against him. Either a submission as to absence of debt was put but rejected by his Honour, or no submission was put. If the former situation applies, his Honour's determination is binding on Mr Campbell, subject to any appeal. No appeal has been filed. If the latter situation applies, this is a case where a relevant submission was not put to the Judge who made the sequestration order. In a clear case, no doubt, this would not prevent a debtor subsequently demonstrating there was no debt at the time of the petition. But there is no evidence of absence of debt before me; as I have indicated, the opposite is conceded. I have even less information about the hearing of the petition against Mrs Campbell but the Court must have been satisfied of the existence of a debt. I have no evidence to the contrary. I would not be justified in annulling either of the sequestration orders on the first ground advanced by Mr Campbell. Mr Campbell's second contention is that Metway Leasing commenced the bankruptcy proceedings for an illegitimate purpose, namely, for the purpose of stopping the appeal brought against the decision of Barr AJ to the Court of Appeal. I am prepared to accept it would be open to this Court to find a sequestration order ought not to have been made in a case where it is satisfied the petitioning creditor took bankruptcy proceedings for an improper purpose. This would be a valid ground of opposition and, if the evidence comes to light after a sequestration order is made, I see no reason in principle why it should not be able to be raised as a ground of annulment. However, in this case there is no evidence of improper purpose. The only basis of the claim of illegitimate purpose is that it is said, no doubt correctly, that the Court of Appeal Registrar was informed that Mr and Mrs Campbell were now bankrupt. Metway Leasing may have asserted this meant the appeal could not proceed, something that is conceded by Mr Wheelhouse, who appears for Metway before me, to be an incorrect understanding of the position. However, even if that statement was made, this falls far short of showing the possession of an improper purpose. In order to make good that claim, it would be necessary to show Metway Leasing was actuated by the improper purpose when it decided to commence, or to continue, the bankruptcy proceedings. There is no evidence along those lines and, therefore, no basis upon which the Court can reach the satisfaction which is a necessary precondition to an annulment under s 153B of the Bankruptcy Act. The applications for annulment must be dismissed. In relation to proceeding NG 757 of 1997, I should mention that the relevant Application includes a prayer for an order annulling the bankruptcies. For the reasons I have mentioned, it is inappropriate to take that course and, to that extent, the claim must be rejected. More significant, I think, is the question whether the Court should entertain the complaints made in the Application and the Statement of Claim filed in that proceeding. In its present form, the Statement of Claim is obviously unsatisfactory. It would need to be revised, if the action is to proceed in this Court. The orders presently sought, on behalf of the respondents, in proceeding NG 757 of 1997 are that the Statement of Claim filed on 17 October 1997 be dismissed, as disclosing no reasonable cause of action and/or constituting an abuse of process and the applicants pay their costs of the motion. There is no present application for the summary dismissal of the action itself. As I regard the statement as being defective in form, I accede to the application to strike out the present Statement of Claim. That order leaves open the possibility of amendment and the orders sought from me today do not preclude that possibility. However, I should say it seems to me highly inappropriate for the matters sought to be raised in this action to be litigated in this Court. I say that for two reasons. First, they are already the subject of a proceeding earlier commenced in the Supreme Court of New South Wales. Although there is no fixed rule, where there is a question whether a particular dispute will be dealt with in one Court rather than another and there is no special convenience in handling the matter in a particular Court, the ordinary approach is that the action first commenced should be allowed to proceed and determine the dispute. Mr and Mrs Campbell have succeeded in overturning the decision of Master Malpass that, in effect, precluded them proceeding with the second Supreme Court action. They have amended their Statement of Claim. The further prosecution of the action has been stayed, but apparently only because of the proceedings in this Court. Once it is clear this Court will not intervene, the appropriate course would be for the Supreme Court to deal with the action in the usual way. This Court ought not take a course that would interfere with the prosecution in another superior Court of an earlier commenced proceeding. This is said on the supposition there is no strong case, in terms of convenience, in dealing with the dispute in this Court. I do not see any such case; indeed, the contrary. Most of the matters about which complaint is made relate to events that occurred earlier than the hearing before Barr AJ. Some relate to events said to have occurred during the course of that hearing. To the extent the complaints relate to matters that occurred before the hearing, I expect they would have been raised in the 24 days hearing by Barr AJ. It may become necessary for somebody to analyse exactly what were the issues before Barr AJ, in order to determine whether his decision precludes litigation about the earlier events. To the extent that complaints arise about things that occurred during the hearing before Barr AJ, it is important, as a matter of principle, that they be dealt with by the Court in which that hearing was conducted. For example, it is said that an intimidatory statement was made to Mr Campbell by a representative of Metway Leasing during the course of the hearing. If this allegation is made good, and I emphasise it is merely an allegation at this stage, it would seem to raise a question whether there has been a contempt of the Supreme Court. It is preferable for such a matter to be considered by the Supreme Court rather than this Court. Similarly, there is an allegation against the solicitors who acted for Metway Leasing of alleged intimidation of the solicitors then acting for Mr and Mrs Campbell. Once again, I say nothing about whether there is any merit in the allegation; but, if there is merit, it should be considered by the Court that was handling that litigation and whose processes may, and I emphasise the word "may", have been held in contempt. In short, in this case I see no advantage whatever in the Federal Court becoming involved in the merits of the conduct of Metway Leasing in relation to Mr and Mrs Campbell, and every reason why the Court should not become involved. I propose to make an order striking out the existing Statement of Claim. I am not asked to do more at this stage, and I will not do more. I will give leave to amend, in case Mr and Mrs Campbell wish to do so; but I indicate to them that, in my view, it is inappropriate for this Court to be invited to review matters that were raised in the Supreme Court. If any amendment seeks to re-agitate those matters, it may lead to my deciding to make an order striking out the proceeding generally. It is doubtful whether Mr and Mrs Campbell can frame a fresh Statement of Claim that avoids the situation I have mentioned; but I will give them the opportunity, for what it may be worth. The orders I make are as follows: (1) In relation to the applications for annulment of the sequestration orders made against Keith Malcolm Campbell and Lois Audrey Campbell, I refuse both applications; (2) In relation to proceeding NG 757 of 1977, I strike out the Statement of Claim filed on 17 October 1997. I give leave to the applicants to file an Amended Statement of Claim, if so advised, within 14 days. (3) I order Keith Malcolm Campbell and Lois Audrey Campbell to pay the costs of the applications incurred by Metway Leasing Limited, Anthony G. Gavin and others trading as Pigott Stinson Stuart Thom and Metway Bank Limited. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox Associate: Dated: 1 September 1998 First Applicant in NG757 of 1997 and NG7787 of 1997 appears in person and on behalf of the Second Applicant in NG757 of 1997 and the Applicant in NG7788 of 1997 Counsel for the First, Second and Fifth Respondents in NG757 of 1997: J S Wheelhouse Solicitor for the First and Fifth Respondent in NG757 of 1997: Lincoln Smith Solicitor for the Second Respondent in NG757 of 1997: Blake Dawson Waldron Solicitor for the Fourth Respondent in NG757 of 1997 and the First Respondent in NG7787 of 1997 and 7788 of 1997: S M Freidman of Freidman Reeves Date of Hearing: 1 September 1998	4,064
federal_court_of_australia:fca/single/2002/2002fca1156	decision	commonwealth	federal_court_of_australia	text/html	2002-09-17 00:00:00	Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd [2002] FCA 1156	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2002/2002fca1156	2024-09-13T22:53:18.113291+10:00	FEDERAL COURT OF AUSTRALIA Ford Motor Company of Australia Ltd v Arrowcrest Group Pty Ltd [2002] FCA 1156 CONTRACT – construction – incorporated terms – inconsistency with expressly agreed terms – manufacturer to strive for "cost competitiveness" – obligation to provide quotation for new product – falsa demonstratio non nocet - rescission – rescission in part Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133 applied Australia Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 referred to Beattie v Fine [1925] VLR 363 referred to Bunge SA v Kruse [1979] 1 Lloyd's Rep 279 referred to Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1 referred to Courtney & Fairbairn Ltd v Toliani Brothers (Hotels) Ltd [1975] WLR 297 referred to Hamilton and Co v Mackie and Sons (1889) 5 TLR 677 applied Heyman v Darwins Ltd [1942] AC 356 referred to King's Motors (Oxford) Ltd v Lax [1970] 1 WLR 426 referred to Mamedoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2001] 2 Lloyd's Rep 76 referred to May & Butcher v The King [1934] 2 KB 17 referred to Mitsui OSK Lines Ltd v AGIP SpA [1978] 1 Lloyd's Rep 263 referred to Modern Buildings Wales Ltd v Limmer & Trinidad Co Ltd [1975] 1 WLR 1281 applied Moschi v Lep Air Services Ltd [1973] AC 331 referred to Offshore International SA v Banco Central SA [1976] 2 Lloyd's Rep 402 referred to O'Keefe v Routledge 103 P2d 307 (1940) referred to Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827 referred to Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] Lloyd's Rep 205 referred to Randazzo v Goulding [1968] Qd R 433 referred to Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165 applied T W Thomas and Company Ltd v Portsea Steamship Co Ltd [1912] AC 1 applied Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32 applied Walford v Miles [1992] 2 AC 128 referred to 17A American Jurisprudence 2d Contracts (1991) 3 Black on Rescission and Cancellation 2nd ed. (1929) Norton on Deeds 2nd ed. (1928) Restatement (Second) of Contracts (1981) 5 Williston on Contracts 4th ed. (2000) FORD MOTOR COMPANY OF AUSTRALIA LIMITED v ARROWCREST GROUP PTY LTD V300 of 2002 FINKELSTEIN J 17 SEPTEMBER 2002 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 300 of 2002 BETWEEN: FORD MOTOR COMPANY OF AUSTRALIA LIMITED Applicant AND: ARROWCREST GROUP PTY LTD Respondent JUDGE: FINKELSTEIN J DATE: 8 OCTOBER 2002 PLACE: MELBOURNE THE COURT ANSWERS THE QUESTION STATED AS FOLLOWS: Q. Was Ford entitled as at 3 September 2001 to insist upon performance of the supply agreement in relation to wheels for the Grizzly model and entitled to terminate the supply agreement in relation to wheels for the Barra model? A. No. THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application including any reserved costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 300 of 2002 BETWEEN: FORD MOTOR COMPANY OF AUSTRALIA LIMITED Applicant AND: ARROWCREST GROUP PTY LTD Respondent JUDGE: FINKELSTEIN J DATE: 17 SEPTEMBER 2002 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 This case is about a contract for the supply of wheels for a Grizzly and a Barra. The parties to the contract are the Australian subsidiary of the Ford Motor Company, one of the world's largest motor vehicle manufacturers, and Arrowcrest Group Pty Ltd which, through its division ROH Automotive, manufactures steel wheels in Adelaide. In the early part of 2000 (the precise date is not known) the parties entered into a contract for the long-term (five year) supply by ROH to Ford of steel wheels for the Grizzly and Barra, code names for models in the Falcon range. The Grizzly was the current model and the Barra was to be introduced in 2002. Ford says that on 3 September 2001 it terminated the contract in so far as it related to the Barra wheels. Ford's action gave rise to this suit. The various issues that arise will be resolved if the parties have an answer to the question: Was Ford entitled as at 3 September 2001 to insist upon performance of the supply agreement in relation to wheels for the Grizzly model and entitled to terminate the supply agreement in relation to wheels for the Barra model? 2 The dispute arose in the following way. ROH had been supplying Ford with steel wheels for many years. In February 1999 it entered into an agreement to supply Ford with "100% of [Ford's] requirements of Products for both original manufacture and resale into the aftermarket … during the period 1/3/99 to Job 1 Barra." The products were a 15" black steel wheel and a 15" silver steel wheel. In mid 1999 Ford decided to change the wheel size for the Grizzly to a 16" steel wheel and to develop a 16" steel wheel for the Barra. It entered into a contract to obtain these wheels from ROH. This contract, which the parties refer to as a supply agreement, is the subject of this action. 3 The contract comprises a number of documents and it is necessary briefly to refer to each of them. The first, though not in point of time, is entitled "Memorandum of Understanding Relating to the Long Term Supply of Grizzly Steel Wheels". The heading is in error in confining the contract to Grizzly steel wheels. It also covers wheels for the Barra. The Memorandum recites that ROH will supply the wheels "specified in [Ford's] Purchase Order Number for 1R23 1087 GA/HA". The Memorandum bears the printed date 30 September 1999. It purports to have been signed by Ford on that day and by ROH on 5 April 2001 but the parties agree that it was in fact signed by Ford a little later than 30 September 1999. This notwithstanding it is clear that the Memorandum became a binding contractual document before it was executed by both parties. Until the end of March 2000 ROH manufactured 15" steel wheels for Ford under the February 1999 contract. It began supplying 16" steel wheels in April 2000. It is reasonable to infer that the Memorandum was adopted around that time. The mutual assent that is required to bring about a contract need not be manifested by an offer and acceptance. The existence of a contract can be inferred from conduct. Many of the relevant authorities are collected by Ormiston J in Vroon BV v Foster's Brewing Group Ltd [1994] 2 VR 32, 81-83. 4 The Memorandum is a five page document. It contains three recitals and eight conditions. The recitals refer to the purchase orders previously mentioned and record that ROH will supply Products (which are defined in schedule 1 as 16" steel wheels) at "world class quality levels and competitive prices", ensure timely delivery of the products, and support the products with "effective, efficient and high quality after-sale service". Some of the conditions are sufficiently important to be set out in full: "1. Subject to the terms and conditions set out in this Memorandum, the Seller shall sell to the Buyer and the Buyer shall purchase from the Seller 100% of the Buyer's requirements of Products for both original manufacture and resale into the after-market, and/or provision of a Service (as detailed on Purchase Order Number during the period from 1/3/99 to 31/3/2004 (the "Period") at the prices (the "Prices") in Schedule 1. … 3. The Seller will continue to strive for continuous improvement in product and/or service quality, cost competitiveness and timely delivery in accordance with the Buyer's requirements. … 7. While it is the intention and desire of the Buyer to purchase 100% of the Buyer's requirements for products and/or services from the Seller during the Period, if the Seller at any time during the Period is unable or unwilling for any reason whatsoever to supply products to the Buyer: (a) in such quantities as the Buyer requires, or at all; (b) in accordance with the Buyer's delivery and timing requirements; (c) at world class quality levels; or (d) at the agreed prices the Buyer may at its option: (a) purchase some or all of the Products and/or Services from another supplier; (b) suspend the operation of this Memorandum for such period as is reasonable in the circumstances; or (c) terminate this Memorandum. 8. The Buyer's purchase order terms and conditions will be adhered to in accordance with the spirit and intent of this Long Term Agreement." 5 The purchase orders referred to in the recitals were issued on 30 September 1999 and 4 October 1999 respectively and constitute the second and third of the contract documents. The purchase orders do not specify the quantity of wheels to be supplied. The quantity was recorded as "B.G." which I am told means "blanket order". The quantity of wheels acquired by Ford were ordered weekly in accordance with a schedule provided to ROH. 6 Each purchase order contains the following notation: "the seller agrees to sell and deliver the Supplies set out below, subject to the Buyer's terms and conditions clauses 1 to 22 set out in terms and conditions booklet dated June 1997 … and any terms and conditions set out below." The following term appears at the foot of each purchase order: "Subject to the buyers rights of termination under paragraphs 10 and 11 of the standard terms and conditions which form part of this purchase order and to the relevant provisions of any applicable statutory enactment. This purchase order shall remain in force and effect until terminated by the buyer or the seller by the giving of thirty days notice in writing (expiring at any time) to the other of them." By these words the parties incorporated into their contract, without the need to rewrite them, the standard terms and conditions published by Ford in June 1997. The meaning and effect of a number of the incorporated terms is a matter of controversy to which I will return. In the meantime I will deal with an issue that arises in relation to the referential incorporation. In May 2000 Ford published a new set of standard terms and conditions. The new terms differ in some material respects from those which they replaced. Ford contends that the new terms and not the 1997 standard terms form part of the contract with ROH. I do no agree. The cases show that prima facie a reference to standard terms and conditions is a reference to the terms and conditions current at the date of the contract: Smith v South Wales Switchgear Co Ltd [1978] 1 WLR 165, 171. There will be occasions when the incorporation includes amendments made from time to time: Offshore International SA v Banco Central SA [1976] 2 Lloyd's Rep 402; Mitsui OSK Lines Ltd v AGIP SpA [1978] 1 Lloyd's Rep 263. Usually this will only occur when the amendments are of a procedural, and not a substantive, type: Bunge SA v Kruse [1979] 1 Lloyd's Rep 279. Here, however, the 1997 standard terms were expressly incorporated, and there is no basis upon which the new terms could replace them. 7 The only provisions of the 1997 standard terms to which reference need be made at this point are those relating to termination, namely clauses 10 and 11. Clause 10 permits Ford to terminate "the performance of work under [a] Purchase Order" in whole or in part at any time by written notice. If a notice is given the seller must terminate all work under the contract, settle claims arising out of the termination and transfer title in all completed work and work in progress to Ford. For its part Ford is required to pay the seller all money due before termination together with the costs incurred by the seller in accordance with the purchase order. Clause 11 permits Ford to terminate the "Purchase Order in whole or in part" for breach if the breach is not made good after the service of a 10 day notice. The particular breaches to which the clause refers are a "failure to deliver supplies within time", a "failure to perform any other provisions of [the] Purchase Order", and a "failure to make progress so as to endanger the performance of [the] Order". Under this clause Ford has no obligation to pay for products already provided by the seller. In addition, it will be remembered that the purchase orders themselves also confer upon Ford a right of termination. The right is conferred by reference to clauses 10 and 11 of the 1997 standard terms, with the proviso that thirty days' notice of termination must be given. 8 Putting to one side cl 11, the termination clauses that appear in the purchase orders and cl 10 of the 1997 standard terms are inconsistent with the Memorandum. The inconsistency arises because the Memorandum specifies the period of the contract to be five years (cl 1) subject to the right to terminate for cause given by cl 7. Finding an inconsistency is not a novel situation when standard terms are incorporated into an agreement. The proper approach is to disregard those incorporated terms that conflict with the expressly agreed terms. In Modern Buildings Wales Ltd v Limmer & Trinidad Co Ltd [1975] 1 WLR 1281 (at 1289) Buckley LJ said, "if any of the imported terms in any way conflict with the expressly agreed terms, the latter must prevail over what would otherwise be imported": see also Hamilton and Co v Mackie and Sons (1889) 5 TLR 677; T W Thomas and Company Ltd v Portsea Steamship Co Ltd [1912] AC 1. It follows that on the proper construction of the contract Ford is not entitled to terminate the arrangement either at will under cl 10 of the 1997 standard terms or on giving thirty days' notice under the termination provisions in the purchase orders. 9 It is possible that cl 11 of the standard terms is also inconsistent with cl 7 of the Memorandum. Plainly there is an overlap between the two. A refusal or failure to deliver wheels, or to deliver them in due time, is covered by both. Under cl 7 Ford could take one of three courses: purchase some or all of its products elsewhere, suspend the operation of the Memorandum or terminate the Memorandum. On the other hand, if cl 11 applies only two courses of action are available: Ford could either terminate the contract in whole or terminate it in part. Ford's right to act under cl 11 is conditional upon the failure by ROH to comply with a written notice of default. How the inconsistency between these two clauses should be resolved is not an issue that requires resolution. 10 Here Ford acted as it did because it alleged that ROH "fail[ed] to perform [a] provision of [the] Purchase Order". The provision is said to be cl 3 of the Memorandum. The nature of the alleged breach, which I will explain in a moment, is not one that is caught by cl 7. It might, however, be covered by cl 11. In that case there is no direct inconsistency. There may, however, be indirect inconsistency, for example if the parties intended cl 7 of the Memorandum to cover the field of breaches which could lead to a suspension or termination of the contract. If that be so then cl 11 should be disregarded. This possibility notwithstanding, ROH did not invite me to adopt such a position so I will proceed on the basis that if there is a breach of cl 3 of the Memorandum Ford is entitled to the action under cl 11 of the standard terms. 11 I can now come back to the facts. Under the standard terms Ford was entitled to change the "specification applicable to the supplies … covered by the Purchase Order": cl 13(a). If the change affected the cost of manufacturing the supplies Ford was required to "negotiate with [ROH] for an adjustment to the Purchase Price": cl 13(b). As to the validity of a clause requiring parties to a contract to negotiate the price of goods or services see May & Butcher v The King [1934] 2 KB 17; King's Motors (Oxford) Ltd v Lax [1970] 1 WLR 426; Courtney & Fairbairn Ltd v Toliani Brothers (Hotels) Ltd [1975] WLR 297; Mamedoil-Jetoil Greek Petroleum Co SA v Okta Crude Oil Refinery AD [2001] 2 Lloyd's Rep 76; Beattie v Fine [1925] VLR 363; Randazzo v Goulding [1968] Qd R 433. If the obligation is expressly or by implication one which requires the parties to negotiate in good faith see Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] Lloyd's Rep 205; Walford v Miles [1992] 2 AC 128; Coal Cliff Collieries v Sijehama Pty Ltd (1991) 24 NSWLR 1; Australia Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104. 12 In November 2000 Ford advised ROH that it was considering a change in the specification for the 16" steel wheels, namely the substitution of a lightweight steel for the steel that was currently being used for the wheel's manufacture. The lightweight steel was produced by Nipon Steel Corporation of Japan. Ford believed that a reduction in the weight of the steel would reduce the cost of production of the wheels (by reducing the cost of raw materials) and produce a lighter vehicle resulting in lower fuel consumption and reduced noxious emissions. Arrangements were made for ROH to carry out a trial manufacturing run and provide costings for the lightweight steel wheel based on a number of design variations. 13 I now come to the events which are the immediate trigger for the dispute between Ford and ROH. In May 2001 Ford informed ROH that it intended to supply the lightweight steel for the new wheels in order to keep down the costs of manufacture. Previously all steel wheels had been manufactured from steel purchased by ROH. On 29 May 2001 ROH was asked to "provide the sell price for the 16" wheels excluding all [relevant] raw material costs" ideally by the following day. At this time it was proposed that lightweight steel only be used on Barra wheels. ROH refused to offer a price. On 16 June 2001 it provided its reasons: "In general terms, your proposal would weaken our bargaining and purchasing power with our other suppliers which would inevitably result in cost increases. It would also introduce a level of complexity that we believe would detract from our day-to-day operations. For example, your proposal raises many questions about who would be responsible for the steel, including stock discrepancies, yields, scrap recovery etc, and we simply do not have the resources necessary to devote to the kind of external reconciliation issues that would invariably arise. Processing of material issued to us by our customers is not our usual commercial practice and, as we assess the situation, such practice might ultimately prove contrary to Ford's own interests for reasons not dissimilar to the above." ROH was not against the use of lightweight steel. It advised Ford that it would submit a quotation for lightweight 16" steel wheels provided it could purchase the lightweight steel. 14 Two weeks later ROH submitted an indicative price for the 16" lightweight steel wheel based on its ability to obtain the steel from Nipon at a particular purchase price, which was mentioned in the quotation. Ford responded that at this stage it would "proceed with prototypes only" because it "wish[ed] to review these prior to making any final decision for the lightweight design." 15 If the proposal for the new wheels was to go ahead Ford still intended to purchase the lightweight steel. It wrote to ROH on 23 July 2001 advising that: "We have confirmed that we can purchase bulk steel at highly competitive rates. This makes it worthwhile for us to provide steel on consignment to many suppliers. For Barra steel wheels, it is our intention to use consignment steel to ROH (sic). At the moment, ROH have declined to quote. I ask ROH to re-consider their position on this quotation. We are conscious of time and would like to move ahead asap." This was ROH's reply: "As explained to you previously by Mr. Bill Davidson, it is not our policy to undertake manufacturing using consignment steel, for the reasons as detailed in Mr. Davidson's previous correspondence to Mr. Gargano." 16 Ford took this response to be a breach of cl 3 of the Memorandum. Accordingly on 21 August 2001, purportedly pursuant to the standard terms issued in May 2000, Ford gave "notice that unless [ROH] agree[s] to accept Ford's position regarding consignment steel within ten (10) days of this date, we will have no option but to terminate the Purchase Order and the MOU [a reference to the Memorandum of Understanding]." ROH still declined to submit a quotation. So on 3 September 2001 Ford notified ROH "that that Purchase Order and MOU have been terminated. ROH will not be our supplier of Barra Steel Wheels." 17 I will now come back to the question which the parties wish to have answered. The question has two components: (a) Was Ford entitled to insist upon performance of the supply agreement in relation to Grizzly wheels? and (b) Was Ford entitled to terminate the supply agreement in relation to Barra wheels? The answer to the first part of the question is dependant upon the answer to the second, so I propose first to deal with that part. 18 In order to decide whether Ford was entitled to terminate the supply agreement three issues must be considered: (a) Was ROH under an obligation to provide a quotation for a lightweight steel wheel manufactured from steel supplied by Ford? (b) If yes to (a), was the failure to provide that quotation a breach that entitled Ford to act under cl 11 of the 1997 standard term? (c) If yes to (b), was Ford entitled to terminate the contract only in respect of the Barra wheel. 19 According to Ford, cl 3 of the Memorandum is the source of the obligation to provide the quotation. To recapitulate, cl 3 relevantly requires ROH "to strive for continuos improvement in product and/or service quality, cost competitiveness and timely delivery." The meaning of this clause must be considered in the context of the Memorandum as a whole. In that regard it is necessary to draw attention to cl 4 which provides that Ford "will use reasonable endeavours to assist [ROH] in the implementation of such reasonable cost reduction actions in relation to the production, delivery and supply of the Products and/or Services as are initiated by [ROH]." Reference should also be made to cl 2 which deals with price changes during the currency of the agreement. Clause 2(i) provides for a reduction in prices "to reflect the productivity gains agreed to by [ROH] at the date of [the] Memorandum". The reductions, referred to as "cost down rates", are set out in item 1 of schedule 2. Clauses 2, 3 and 4 all show that it was important to Ford that, when it was reasonable to do so, ROH would take steps to keep down the cost of producing steel wheels. Ironically, however, there does not appear to be any mechanism by which cost savings could be passed on to Ford. It seems that there is at least this deficiency in the drafting unless some implication will save the day. 20 The more immediate problem is to determine the precise subject matter to which cl 3 is directed. The task may be assisted by reference to an hypothetical situation. We know that Ford requested ROH to conduct a trial manufacturing run for the proposed lightweight steel wheels. We also know that Ford contemplated the change to lightweight steel wheels in order to become more "cost competitive". ROH was willing to conduct the trials. What would have been the position, however, if ROH had refused to co-operate? Would that conduct have breached cl 3? 21 Let us examine what could be involved if ROH were directed to conduct a trial production run. First, ROH would need to tool up for the new wheel. Who would bear those costs, Ford or ROH? If they were to be paid by Ford, would they be confined to out of pocket expenses or would indirect costs and overhead expenses be included? As regards quantum would Ford be required to pay the actual cost incurred or only reasonable costs? Second, someone must decide when the trial run is to occur. Is this a matter for Ford or is to be left to ROH to decide? If Ford is able to specify when the trial is to occur, must the trial date be reasonable in all the circumstances? Third, there may be differences of opinion about how the production run should be conducted. Whose view is to prevail? Not one of these matters is covered by the contract. Are the answers to be found in implied terms? What an extraordinary contract that would be, and surely not one that was contemplated by the parties. 22 It is clear to me that cl 3 does not require ROH to conduct trials. I accept that Ford would not go ahead with the proposed lightweight steel wheel unless it was satisfied that the end product met its specifications, could be produced in an economic and efficient manner and would provide Ford with the cost benefits it desired. Therefore Ford must evaluate the wheel to see if it would meet its requirements. But ROH is not under any obligation to lend its assistance by conducting a trial production run, although a trial would help Ford in its evaluation, because trial production is beyond the scope of cl 3. Under the contract ROH is required to manufacture steel wheels in accordance with Ford's specifications, at "world class quality levels", and at "competitive prices". It must deliver the wheels in a timely fashion in accordance with Ford's requirements. It must also provide "effective, efficient and high quality after-sale service". It is these activities, and these activities alone, with which cl 3 is concerned. 23 Similar reasoning also applies to the question whether ROH was required to provide a quotation for lightweight steel wheels ex raw materials. Logically, of course, a quotation could only be given after tests (which ROH is not obliged to perform) have been completed. Moreover, ROH would incur costs in preparing the quotation. The provision of a quotation which might assist Ford in deciding whether to change the specifications for the wheels manufactured under the contract does not relate to the production, quality or delivery of wheels to Ford, or to any after-sales service which ROH is required to provide. For that reason it is beyond the scope of cl 3. 24 There is another consideration which detracts from Ford's construction of cl 3. Ford's construction is founded on the assumption that it has the right to compel ROH to take from Ford the steel required to manufacture the Barra wheels but this assumption appears not to be sound. Clause 13 of the standard terms permits Ford to make changes to the drawings, designs and specifications for the steel wheels, their method of shipment and packing and their place of delivery. But there is no provision which, in terms, permits Ford to nominate itself as the supplier of the raw materials to be used in manufacture of the steel wheels. Clause 14 of the standard terms contemplates that Ford may provide ROH with certain equipment "on consignment" (supplies, materials, facilities, tools, jigs, etc) so that ROH can perform its obligations under the contract. But the manner in which this equipment must be dealt with, including ROH's obligation to return it to Ford, shows that this clause cannot be applied to raw materials. So, if there is a right to instruct ROH to take its raw material from Ford on consignment, it must be found in cl 3 of the Memorandum. I do not read the clause as going that far. If it did bear that construction it would entitle Ford to give directions in relation to every aspect of the production and delivery of the steel wheels, provided the direction was designed to improve Ford's "cost competitiveness". No matter how important it may be to Ford to keep down the costs of the steel wheels, cl 3 does not give it the right to direct ROH how it should operate its business. 25 The construction of cl 3 that I prefer is confirmed by the absence in the contract of any provision which deals with matters such as the quantity of steel that Ford would be required to supply to ROH to enable ROH to meet its contractual commitments. The importance of this omission should not be underestimated. In simple terms a steel wheel is made up of two parts, a disc and a rim. The disc is cut from steel sheeting and the rim is formed by rolling a steel strip to form a circle which is welded at the join. The disc is then welded to the rim. The process of manufacture results in both wastage and, on occasion, defectively formed wheels. It is not always possible to estimate the precise number of wheels that will be produced from a given quantity of steel. Indeed, as the evidence here shows, the quantity of steel required for a particular quantity of wheels is dependent upon the efficiency of the manufacturing process, which may vary from time to time. It is unlikely that the parties contemplated a situation where ROH was required to manufacture a specified number of wheels, but Ford was not under a corresponding obligation to provide whatever steel was needed to produce that number. One could say that ROH would have taken leave of its commercial senses to make such an agreement. 26 Once it is accepted, as I think it must be, that ROH was not required to provide a quotation to enable Ford to evaluate the possibility of proceeding with a lightweight steel wheel, strictly it is unnecessary to consider whether Ford was entitled to act under cl 11 of the standard terms and, if it was, whether it could terminate only part of the contract, if that is what it purported to do. (Speaking strictly, Ford relied on cl 27 of the 2000 standard terms but that does not prevent it from now relying upon cl 11 of the standard terms which is substantially the same.) Nevertheless, because these points were argued I should briefly state my views on them. 27 As regards the applicability of cl 11, ROH's principal submission was that the clause was only concerned with a failure to comply with provisions in the "Purchase Order", and the breach alleged was of a condition in the Memorandum. I think that the answer to this point is to apply the principle falsa demonstratio non nocet to disregard "what is inaccurate and inapplicable and [proceed] upon that which is appropriate and intelligible and what are evidently intended to be the governing words": Modern Buildings Wales Ltd v Limmer & Trinidad Co Ltd [1975] 1 WLR 1281, 1288 per Buckley LJ; Adamastos Shipping Co Ltd v Anglo-Saxon Petroleum Co Ltd [1959] AC 133, 159; Norton on Deeds 2nd ed. (1928), 233-235. Here, the words "this Purchase Order" or "the Purchase Order" in the standard terms should be read as "this Memorandum" or "the Memorandum". 28 The last point concerns the ability of an innocent party to rescind part of a contract. In the absence of express provision, the right of a party to rescind or discharge a contract comes about where the other party renounces his obligations, by his own act makes performance impossible or fails to perform an obligation which goes to the root of the contract. The rule in England and Australia is that the innocent party must rescind the whole contract, although certain primary obligations, such as exemption and arbitration clauses, may survive. See generally Heyman v Darwins Ltd [1942] AC 356; Moschi v Lep Air Services Ltd [1973] AC 331; Photo Productions Ltd v Securicor Transport Ltd [1980] AC 827. 29 The Anglo-Australian doctrine is not favoured by all common law jurisdictions. For example in the United States, where the law of contract is in many respects more flexible, the position is different. The general rule is the same. A discharge must be of the whole contract. But where a contract is divisible into a number of elements or transactions, each of which is independent of the others, the contract may be rescinded in part, provided the ground of rescission relates to the severable part: 17A Am. Jur. 2d Contracts § 548 (1991); Restatement (Second) of Contracts § 383 (1981); 15 Williston on Contracts 4th ed. para 45.7. (2000) 3 Black on Rescission and Cancellation 2nd ed. (1929) section 585 puts the matter this way: "When a contract is separable or divisible into a number of elements or transactions, each of which is so far independent of the others that it might stand or fall by itself, and good cause for rescission exists as to one of such portions, it may be rescinded and the remainder of the contract affirmed. And it has been held that where a contract consists of parts so distinct and independent that each could be performed without reference to the others, a failure of one of the parties to perform one of the parts or terms of the contract does not authorise the other to rescind the whole contract, and refuse to accept a tender of performance of the remainder of the contract by the party in default. For instance, where one contracted to sell his stock of goods and his two stores and the lots on which they stood to the same purchaser, and both goods and land were sold at the same time and embraced in the same contract, but they were treated as distinct subjects of sale, the price of each being definitely fixed, it was held that an avoidance of the contract by the seller as to the land did not avoid it as to the stock of goods." (citations omitted) This passage was cited with approval in O'Keefe v Routledge 103 P2d 307 (1940), a decision of the Supreme Court of Montana. 30 In the instant case the right to rescind in part is conferred by the standard terms. Ford purported to exercise this right by rescinding the contract in so far as it related to all Barra wheels. There was some controversy about whether Ford's purported rescission related to the whole contract but, though the matter is not free from doubt, on balance I incline to the view that its notice of default and letter of rescission related only to the Barra wheels. I have arrived at this conclusion by reading all the relevant parts of the documents, including the headings. Ford's complaint related to the Barra wheel, but not the manner in which that wheel was manufactured. It acted because of ROH's refusal to provide information (price quotations) which Ford needed in order to decide whether it should use lightweight steel in the production of the Barra wheel, a decision which, as I apprehend it, has still not been taken. It follows, in my opinion, that the right of partial rescission, if it existed, was confined to the lightweight steel wheel. That is a severable part of the contract, and it is the part to which the alleged breach related. 31 I am now in a position to answer the stated question. The answer to the second part of the question – Was Ford entitled to terminate the supply agreement in relation to Barra wheels? – is no. The answer to the first part – Was Ford entitled to insist upon performance in relation to Grizzly wheels? – is also no, provided this part of the question is understood to be inquiring whether Ford was entitled to insist upon performance solely in relation to Grizzly wheels. 32 The applicant should within 7 days bring in short minutes of orders to give effect to these reasons. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein. Associate: Dated: 17 September 2002 Counsel for the Applicant: R Macaw QC M Moshinsky Solicitor for the Applicant: Allens Arthur Robinson Counsel for the Respondent: D Collins SC I Roberston Solicitor for the Respondent: Cosoff Cudmore Knox Date of Hearing: 1 July 2002 Date of Judgment: 17 September 2002	8,045
federal_court_of_australia:fca/single/2015/2015fca1312	decision	commonwealth	federal_court_of_australia	text/html	2015-11-26 00:00:00	Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2015/2015fca1312	2024-09-13T22:53:19.196704+10:00	FEDERAL COURT OF AUSTRALIA Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 Citation: Aggarwal v Minister for Immigration and Border Protection [2015] FCA 1312 Appeal from: Application for leave to appeal: Aggarwal v Minister for Immigration & Anor [2015] FCCA 504 Parties: NISHANT AGGARWAL v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and MIGRATION REVIEW TRIBUNAL File number: NSD 229 of 2015 Judge: WIGNEY J Date of judgment: 26 November 2015 Catchwords: MIGRATION – visas – application for a Skilled (Residence) (Class VB) Subclass 885 (Skilled – Independent) visa – refusal of visa application by a delegate of the Minister for Immigration and Border Protection – review of delegate's decision by the Migration Review Tribunal – where the Migration Review Tribunal held that the applicant did not satisfy the criteria in clause 885.221 of Schedule 2 to the Migration Regulations 1994 (Cth) – where the Migration Review Tribunal found that the applicant had procured and supplied bogus documents and false or misleading information regarding the applicant's employment – application filed in the Federal Circuit Court of Australia pursuant to s 476 of the Migration Act 1958 (Cth) for judicial review of the decision by the Migration Review Tribunal – where primary judge summarily dismissed the application – application for leave to appeal from the summary dismissal – whether arguable case that the Migration Review Tribunal failed to exercise its jurisdiction by failing to conduct inquiries at the request of the applicant – whether the Migration Review Tribunal has a duty to inquire or investigate Legislation: Federal Circuit Court Rules 2001 (Cth), r 44.12(1)(a) Migration Act 1958 (Cth), ss 92, 93, 94, 95, 96, 97, 359, 359A, 362, 361, 363(1)(d), 476 Migration Regulations 1994 (Cth), reg 1.03, Sch 2 cl 885.221 and 885.224, Sch 4 PIC 4020, Sch 6B Cases cited: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; 259 ALR 429 Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; 207 ALR 12 Date of hearing: 21 May 2015 Date of last submissions: 17 June 2015 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 89 Counsel for the Applicant: The applicant appeared in person with the assistance of an interpreter Solicitor for the First Respondent: Ms N Maddocks of DLA Piper Australia Counsel for the Second Respondent: The Second Respondent filed a submitting appearance save as to costs IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 229 of 2015 BETWEEN: NISHANT AGGARWAL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE OF ORDER: 26 NOVEMBER 2015 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The application for leave to appeal be dismissed. 2. The applicant to pay the first respondent's costs as agreed or assessed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 229 of 2015 BETWEEN: NISHANT AGGARWAL Applicant AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION First Respondent MIGRATION REVIEW TRIBUNAL Second Respondent JUDGE: WIGNEY J DATE: 26 NOVEMBER 2015 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The main issue raised by this application concerns whether the Migration Review Tribunal (the Tribunal) failed to exercise its jurisdiction because it failed to conduct various inquiries at the request or suggestion of the review applicant, Mr Nishant Aggarwal. The issue arose in the court below in the context of an application by the respondent, the Minister for Immigration and Border Protection (Minister), to summarily dismiss Mr Aggarwal's application for judicial review of the Tribunal's decision to affirm a decision to refuse Mr Aggarwal's application for a visa. The issue arises in this Court in the context of an application by Mr Aggarwal for leave to appeal the summary dismissal of his application in the court below. Background 2 On 11 August 2009, Mr Aggarwal applied for a Skilled (Residence) (Class VB) Subclass 885 (Skilled – Independent) visa (885 Visa) under the applicable provisions of the Migration Act 1958 (Cth) (the Act) and the Migration Regulations 1994 (Cth) (the Regulations). A delegate of the Minister refused that application on 19 November 2013. It is not clear why it took almost four years for the delegate to determine Mr Aggarwal's visa application. The Minister had no explanation for this delay. It would appear, however, that one reason for the delay may have been requests for further information by the Department of Immigration and Border Protection (Department). 3 The delegate was not satisfied that Mr Aggarwal met the criteria for the grant of an 885 Visa. At the relevant time, Part 885 of Schedule 2 to the Regulations set out the criteria to be met for the grant of an 885 Visa. Clause 885.221 contained mandatory criteria to be met at the time of the visa decision. In simple terms, the clause 885.221 criteria, when read together with ss 92 to 96 of the Act and Division 2.6 and Schedule 6B of the Regulations, required the visa applicant to satisfy a points test which involved the allocation of points in respect of certain occupational, age, language and employment qualifications. The pass mark for Mr Aggarwal was 120 points. The delegate assessed Mr Aggarwal as having achieved 110 points. 4 The main reason that Mr Aggarwal was unsuccessful in achieving the necessary points was that the delegate rejected Mr Aggarwal's claim that he was entitled to points arising from his having worked for 12 months as a cook, which was Mr Aggarwal's chosen skill category. Mr Aggarwal had claimed that, from 10 July 2008 to 10 July 2009, he had worked as a cook at an Indian restaurant named SriTaj Fine Indian Cuisine (SriTaj). Mr Aggarwal provided documentary evidence that he said supported that claim. For the reasons explained in detail in the delegate's decision, the delegate placed little or no weight on that documentary evidence. Suffice it to say that the delegate was concerned about the sufficiency, provenance and integrity of the documentation that Mr Aggarwal supplied. The delegate was not satisfied that Mr Aggarwal had been employed at SriTaj as he had claimed. The delegate awarded none of the 10 points that would have otherwise have been allocated to Mr Aggarwal in respect of his employment. 5 Mr Aggarwal applied to the Tribunal for a review of the delegate's decision. The Tribunal's decision 6 The main factual issue before the Tribunal was again whether Mr Aggarwal had in fact worked as a cook at SriTaj as he had claimed. This issue again mainly hinged on the sufficiency, provenance and integrity of the documentary evidence proffered by Mr Aggarwal. By the time the Tribunal was called upon to decide Mr Aggarwal's application, however, there was an additional element to this issue. This arose as a result of amendments to the Regulations which had the effect of adding an additional criterion to be met for the grant of an 885 Visa. That additional criterion (in clause 885.224(a) of Schedule 2 to the Regulations) was that the visa applicant satisfy public interest criterion 4020 (PIC 4020). PIC 4020 was set out in Schedule 4 to the Regulations and was in the following terms: (1) There is no evidence before the Minister that the applicant has given, or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to: (a) the application for the visa; or (b) a visa that the applicant held in the period of 12 months before the application was made. (2) The Minister is satisfied that during the period: (a) starting 3 years before the application was made; and (b) ending when the Minister makes a decision to grant or refuse the application; the applicant and each member of the family unit of the applicant has not been refused a visa because of a failure to satisfy the criteria in subclause (1). (3) To avoid doubt, subclauses (1) and (2) apply whether or not the Minister became aware of the bogus document or information that is false or misleading in a material particular because of information given by the applicant. (4) The Minister may waive the requirements of any or all of paragraphs (1)(a) or (b) and subclause (2) if satisfied that: (a) compelling circumstances that affect the interests of Australia; or (b) compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; justify the granting of the visa. (5) In this clause: information that is false or misleading in a material particular means information that is: (a) false or misleading at the time it is given; and (b) relevant to any of the criteria the Minister may consider when making a decision on an application, whether or not the decision is made because of that information. 7 Regulation 1.03 provides that the expression "bogus document" has the same meaning as in s 97 of the Act. At the relevant time, s 97 of the Act provides as follows: bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that: (a) purports to have been, but was not, issued in respect of the person; or (b) is counterfeit or has been altered by a person who does not have authority to do so; or (c) was obtained because of a false or misleading statement, whether or not made knowingly. 8 No doubt mindful of the concerns that had been expressed by the delegate about the sufficiency, provenance and integrity of the documentary evidence that he had provided to the Department in support of his visa application, Mr Aggarwal provided further documentation to the Tribunal that he said provided further evidence of his employment at SriTaj. The further documentation included pay statements that Mr Aggarwal said recorded payments made to him in relation to his employment at SriTaj. Mr Aggarwal's migration agent also provided written submissions on Mr Aggarwal's behalf which addressed the sufficiency and cogency of the documentary evidence. 9 The Tribunal was nevertheless not convinced. 10 Mr Aggarwal gave evidence before the Tribunal on 19 February 2014. That evidence included evidence about his employment at SriTaj. The Tribunal questioned Mr Aggarwal about his employment and the documents that he had supplied. Amongst other things, it asked Mr Aggarwal about the fact that the pay statements that he had provided to the Tribunal had not previously been supplied to the Department. The Tribunal also asked why Mr Aggarwal had not supplied any record of superannuation payments referable to his employment at SriTaj. 11 Following the hearing, the Tribunal wrote to Mr Aggarwal, as required by s 359A of the Act, and invited him to comment or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review (the s 359A letter). The operative parts of the s 359A letter are self-explanatory and, given the contextual importance of the letter and Mr Aggarwal's reply to it, should be set out in full: The particulars of the information are: • You provided a Skills assessment from Trades Recognition Australia (TRA) to the Department (TRA08/011228087), dated 11 November 2008, in the skilled occupation of Cook. • You made an application for a Skilled (Residence) (Class VB) visa on 11 August 2009. You nominated the skilled occupation of Cook. • You stated on the application form that you had been employed as a Cook at the SriTaj Fine Indian Cuisine between 10 July 2008 and 10 July 2009. • You indicated on the application form that you were claiming 10 points on the basis of your Australian work experience and 15 points on the basis of your employment in a Migration Occupation in Demand. • You provided an undated 'Job Offer' from the SriTaj Fine Indian Cuisine in Bronte Road, Bondi Junction. The Job Offer states that you will earn a gross salary of $14,560 paid in fortnightly instalments and that this will include superannuation; sick leave; vacation and personal days commencing on 10 July 2008. • On 31 October 2012, the Department wrote to you and requested that you provide supporting documentation relating to your employment at SriTaj Fine Indian Cuisine. You were invited to provide as much evidence as possible and various examples of the type of evidence that you could provide were listed, including bank records, superannuation documents, pay slips. • In response, your newly appointed representative provided the same documents that you had previously provided, as well as a Tax Assessment, PAYG statement and the reference provided to TRA which lists a more extensive range of duties as an Assistant Cook than the earlier references which relate to your paid employment as a Cook. • On 12 November 2012, the Department received an e-mail from a person who is aware of your circumstances and provided personal details of you. That person, who is identified, states that you came to Australia in 2007 on a Student visa and later arranged false documents in relation to your work experience. The person states that you worked full time for cash, despite the 20 hour work restriction and you obtained false documentation from the SriTaj Fine Indian Cuisine which you bought for $10,000 and 2 of your friends also bought false documents. The person states that you worked as a Theatre Cleaner, not a cook. Copies of your work references you had provided were attached to the e-mail. • SriTaj Restaurant has previously been the subject of allegations regarding false work references, and a large number of TRA assessments from that restaurant have been provided to the Department. • You provided copies of pay statements, commencing on 20 July 2008, stating that in every pay period for a one year period you grossed $560 each fortnight, paid $50 in tax, and superannuation of 9% was paid, amounting to $50.40. • The pay statements, indicate that superannuation YTD was $554.40 as at 7 December 2008, but for the period 7 December 2008 to 21 December 2008, your superannuation goes down to $304.80 and thereafter is miscalculated. • The records before the Tribunal indicate that you travelled to India between 30 April 2009 and 23 May 2009. However, the pay statements indicate that for the pay period 26 April to 9 May 2009, you were paid "Normal time" for 40 hours work and for the period between 10 May 2009 and 23 May 2009 you also worked 40 hours "Normal Time". The above information is relevant because the Tribunal may find that the fact that your pay statements indicate that you worked exactly the same amount of hours every week; do not record that you were on vacation in India; and the superannuation is incorrectly calculated. The Tribunal may find that this indicates that they are not genuine and have been manufactured following the Department's decision. The Tribunal may also find that it is not credible that you worked exactly the same number of hours as a Cook every week for a 52 week period and that this was determined in the Job Offer. The above information is also relevant because the Tribunal may find that the information from the source indicating that you did not work at SriTaj Restaurant is credible, probative and reliable, when it is combined with evidence indicating that the SriTaj restaurant has previously been the subject of allegations and a large number of persons have provided TRA documents based on their employment at that restaurant. The above information is in turn relevant because the Tribunal may find that you were not employed, either in a paid or unpaid capacity for the SriTaj Restaurant and that the information on the application form that you did so is false and misleading in a material particular, as it was given for the purpose of you satisfying cl.885.221 in relation to the qualifying score required for the grant of the visa. The Tribunal may also find that you have provided bogus documents to the Department in the form of the TRA assessment and that the work references and job offer and other documentation relating to your claimed employment are also bogus documents. The Tribunal may also find that the pay statements that were provided to the Tribunal are bogus documents. The definition of 'bogus document' is attached to this letter and includes a document that the Minister reasonably suspects is counterfeit or has been altered by a person who does not have authority to do so; or was obtained because of a false or misleading statement. The Tribunal may find that the pay statements, the work references and Job Offer are bogus because they are counterfeit. The Tribunal may also find that the TRA assessment that you provided to the Department is a bogus document because the Tribunal reasonably suspects that it was obtained because of a false or misleading statement, whether or not made knowingly. The totality of the above information is relevant because the Tribunal may find Public Interest Criterion 4020 applies in your case. The Tribunal may find that there is evidence that you have given, or caused to be given, to the Minister, an officer, the Tribunal, a relevant assessing authority, or Medical officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa or a visa that the applicant held in the 12 months before the application was made. The full extract of PIC 4020 is attached. It is subject to the waiver provision, which states that the requirement in PIC 4020(1) can be waived if there are certain compelling or compassionate reasons justifying the granting of the visa. The Tribunal may also find that you do not meet cl.885.221 in relation to the qualifying score for the grant of the visa as it may find that you are not eligible for any points in relation to your claimed work experience in Australia. The above information is also relevant because if the Tribunal finds that you do not meet PIC 4020(1) and decides that there are no compelling or compassionate reasons justifying the granting of the visa or that you do not meet cl.885.221, then it will find that you do not meet the criteria for the grant of a Skilled (Residence) (Class VB) visa. You are invited to give comments on or respond to the above information in writing. 12 Mr Aggarwal's migration agent replied to the Tribunal's letter within the specified time. The important parts of the reply letter should also be set out in full: We refer to the above matter and your letter of 26 February 2014. We have been instructed to send you a documentation supporting applicant claims; The applicant claims to have worked in the restaurant as a cook which is witnessed by number of applicant friends. The applicant has provided statutory declarations from friends to confirm applicant employment. The contact numbers for the friends who provided statutory declarations are as follows; 1) Jatin Sahni 0413 095 528 2) Richa Gupta 0430 723 753 3) Anil Balu 0433 024 500 4) Harivansh Gaurav 0481 350 694 The applicant has also provided a copy of individual tax return for year ending 30 June 2009 where the name of payer is same as of the applicant employer at the time i.e. "Sritaj Fine Indian". We note the tax return is of year 2008-2009 and has directly come from the applicant accountant "CNR Accounting & Taxation Trust". It is noted that the copy of the group certificate and assessment notice has already been provided to the tribunal. As explained before, the applicant has been victim of the personal enemy. The applicant close friend and flat mate Narinder Jit Singh or one of his close friends made a false allegations and dobbed the applicant. The applicant and his friend also had a tenancy dispute and as a result matter went to Consumer, Trader & Tenancy Tribunal. The copy of the notice from the Consumer, Trader & Tenancy Tribunal attached. We note that the number of evidence has been provided to tribunal the confirming applicant employment claims. Although the department has received adverse information against the applicant but the authenticity of the information is not known. It is also noted that the complainant in his complaint has provided number of documents to the department relating to applicant employment such as work reference letter. The complaint stole those documents from the applicant wardrobes and scanned those documents and forwarded to the department. The documents were obtained without applicant permission. We request tribunal to use its powers and resources to verify the authenticity of the allegations leveled against the applicant. The statutory declaration from Hassan El Merheby is also provided which supports the applicant work history as a cleaner with Civicorp Property Services Pty Ltd. The applicant commenced work as a cleaner in November 2009. The contact number for Hassan El Merheby is 0425 795 574. The applicant employer at Sritaj Fine Indian Cuisine, Muhammad Munir has confirmed applicant employment claims by providing the statutory declarations and has provided his telephone number in the declarations to address any enquiries the tribunal may have regarding applicant employment. The employer has confirmed that inadvertently the superannuation contribution was not paid and has apologized for this mistake. The superannuation contributions have now been paid. The employer has confirmed that he is willing to appear before tribunal if required. 13 The reply letter enclosed a statutory declaration from Mr Muhammad Munir which relevantly declared that Mr Aggarwal was employed at SriTaj as a cook on a part-time basis from July 2008 to July 2009, and that Mr Munir was the owner and head chef of SriTaj at the time of Mr Aggarwal's employment. Mr Munir's statutory declaration also stated that "[i]f you have any enquiry concerning this matter, please feel free to call me" on a specified mobile telephone number. The reply letter also enclosed four statutory declarations from persons who declared that they were friends or acquaintances of Mr Aggarwal and that they knew that Mr Aggarwal had worked at SriTaj. Other documents provided together with the letter included: a hearing notification from the Consumer, Trader and Tenancy Tribunal; a superannuation statement from REST Industry Super; an unsigned income tax return; and Mr Aggarwal's birth and marriage certificates. The superannuation statement was dated 4 March 2014 and stated that REST Industry Super had "recently received your first employer contribution" from SriTaj. 14 The Tribunal was not swayed by Mr Aggarwal's response to its concerns expressed in the s 359A letter or by the statutory declarations supplied with the response. It found that it was not satisfied that Mr Aggarwal was employed at SriTaj. It also found (at [27]) that Mr Aggarwal "ha[d] given or caused to be given false and misleading information and bogus documents in relation to the visa application". It accordingly found that Mr Aggarwal had not satisfied the criterion in clause 885.224 and PIC 4020. 15 The Tribunal's reasoning for so concluding included the following matters relevant to Mr Aggarwal's case as advanced in the court below and on appeal. 16 First, the Tribunal found that the pay statements that Mr Aggarwal had provided to the Tribunal were not genuine and had been manufactured after the delegate's decision to bolster Mr Aggarwal's claims. It did not accept Mr Aggarwal's explanations for why he had not previously provided those documents to the Department. It also pointed to discrepancies in the pay statements, including that they recorded that Mr Aggarwal had worked "[n]ormal time" during a period when Mr Aggarwal was in India, and discrepancies in relation to the calculation of superannuation payments that arose from Mr Aggarwal's employment. The Tribunal also considered it unusual that the pay statements recorded that Mr Aggarwal worked exactly the same number of hours every week/fortnight for the entire year. 17 Second, the Tribunal accepted that the superannuation statement provided by Mr Aggarwal was genuine, but reasoned (at [33]) that "the fact that the account was established in February 2014, some [five] years after the applicant's purported employment, raises further concerns as to the applicant's willingness to manufacture evidence in an attempt to support his claimed employment". 18 Third, the Tribunal noted that the tax return supplied by Mr Aggarwal was undated and there was no evidence as to when it was prepared or when, or if, it was lodged. 19 Fourth, the Tribunal reasoned as follows (at [35]) in relation to the allegations that had previously been made to the Department about SriTaj providing false work references to visa applicants and the information that had been provided to the Department by the unnamed person that Mr Aggarwal had never worked at SriTaj but had purchased false documentation to show that he had: As indicated above, the Department's file indicates that the SriTaj Fine Indian Cuisine has previously been the subject of allegations as a result of a number of skills assessments being provided by applicants for skilled visas. The evidence also indicates that a person has provided information to the Department that the applicant paid the owner of the restaurant for documentation to support his claimed employment at the restaurant. The Tribunal considers that these factors would, on their own, be insufficient to establish that the applicant was not employed at the SriTaj Restaurant as he has claimed. However, having regard to the problematic nature of the evidence discussed above, and in view of the lack of definitive and contemporaneous documentation confirming the applicant's employment, the Tribunal is satisfied that the allegation is consistent with other evidence which the Tribunal has referred to which raises serious doubts in relation to the applicant's employment at the SriTaj Indian Restaurant. The Tribunal is prepared to accept that he had a dispute with a former flatmate but is not satisfied that this establishes that the allegation was provided as a result of this dispute. The Tribunal has also had regard to the request that it "use its powers" to verify the authenticity of this information. However, the Tribunal considers it somewhat unclear how it would ascertain the authenticity of this information and in any event is not satisfied that any further inquiries in relation to the allegation is warranted. 20 Fifth, the Tribunal reasoned as follows (at [36]) in relation to the statutory declarations of Mr Munir and Mr Aggarwal's friends that had been supplied with the response to the s 359A letter: The Tribunal is also not satisfied that the statutory declarations provided by the applicant's friends and the employer overcome the problematic nature of the evidence discussed above. The Tribunal has had regard to the submission that the [sic] Mr Munir would be willing to provide evidence to the Tribunal. Although there is no statement by Mr Munir to this effect, the Tribunal is prepared to accept this submission. However, the Tribunal is not satisfied that this evidence would be truthful and has concerns that persons have been prepared to provide false evidence to assist the applicant. The Tribunal is not satisfied, therefore, that there is any utility in it having another hearing or taking evidence from Mr Munir or the other persons who have provided statutory declarations. 21 The Tribunal's conclusions in relation to clause 885.224 and PIC 4020 were in the following terms (at [38]-[39]): Having regard to all of the evidence, the Tribunal is not satisfied that the applicant was employed in a paid capacity between 2008 and 2009 for the SriTaj Indian Fine Indian Cuisine Restaurant. The Tribunal is not satisfied that the pay statements provided to the Tribunal and the work references and job offer provided to the Department in relation to the applicant's claimed employment at the SriTaj Indian Restaurant are genuine documents. The Tribunal instead reasonably suspects that they are bogus documents because they are counterfeit (see s.97(b) of the Migration Act). The Tribunal also considers that the information on the application form in which the applicant stated that he was employed at the SriTaj Indian Restaurant from June 2008 to June 2009 is false or misleading in a material particular because it was given for the purpose of the applicant satisfying cl.885.22l in order to assist him to achieve the qualifying score for the grant of the visa. The Tribunal is satisfied that the evidence set out above establishes that there is evidence that the applicant has given or caused to be given a bogus document and false or misleading information in relation to a material particular to an officer or the Minister and the Migration Review Tribunal. The Tribunal finds, therefore, that the applicant has given or caused to be given, to the Minister, an officer, the Migration Review Tribunal, a relevant assessing authority or a Medical Officer of the Commonwealth, a bogus document or information that is false or misleading in a material particular in relation to the application for the visa. The Tribunal finds, therefore, that the applicant does not meet PIC4020(1) of Schedule 4 to the Migration Regulations. (Footnote omitted.) 22 Importantly, the Tribunal also found that Mr Aggarwal did not satisfy the criteria in clause 885.221 of Schedule 2 to the Regulations because, like the delegate, it was not satisfied that Mr Aggarwal had worked as a cook at SriTaj as he had claimed. Mr Aggarwal was accordingly not entitled to any points in respect of that claimed employment. He therefore failed to meet the qualifying score of 120 points. In that regard, the Tribunal largely relied on its findings that Mr Aggarwal had procured and supplied bogus documents and false or misleading information about his employment at SriTaj. Proceedings in the Federal Circuit court of australia 23 Mr Aggarwal commenced proceedings for judicial review of the Tribunal's decision pursuant to s 476 of the Act. His application contained the following two grounds: 1. Migration Review [Tribunal] did not follow cl 885.221 of schedule 2 to the regulation. 2. I am eligible for 10 points under cl 885.221 of schedule 2. 24 Mr Aggarwal also filed an affidavit sworn by him which simply asserted that he had worked at SriTaj and annexed a number of the documents that he had relied upon in the Tribunal. No further particulars of the alleged failure by the Tribunal to follow clause 885.221 of Schedule 2 to the Regulations were supplied. 25 In the circumstances, it is perhaps not surprising that the Minister moved for an order under r 44.12(1)(a) of the Federal Circuit Court Rules 2001 (Cth) (the FCCR) that Mr Aggarwal's application be summarily dismissed on the basis that the application did not raise an arguable case for the relief claimed. 26 The primary judge acceded to this application. He found that the application did not raise an arguable case and dismissed Mr Aggarwal's judicial review application accordingly. 27 The primary judge found that the second ground in Mr Aggarwal's application did not raise an arguable case of jurisdictional error on the part of the Tribunal. It simply sought a finding that was different from the Tribunal's finding. 28 In relation to the first ground, the primary judge noted that, although unparticularised, that ground effectively claimed that the Tribunal did not correctly understand or apply clause 885.221 of Schedule 2 to the Regulations. As such, it was capable of raising a case of jurisdictional error. The question was whether any argument advanced by Mr Aggarwal in relation to that ground was capable of raising an arguable case that the Tribunal failed to correctly understand or apply clause 885.221 of Schedule 2 to the Regulations. The primary judge analysed each of the arguments advanced by Mr Aggarwal in his written and oral submissions, and answered that question in the negative. 29 The primary judge identified 11 arguments advanced by Mr Aggarwal. Those arguments, and the primary judge's reasons for ultimately dismissing them, may be summarised as follows. As will be seen, many of the arguments, and the primary judge's answers to them, hinged on whether the Tribunal was required to make certain inquiries or further investigations in relation to information supplied by Mr Aggarwal in his response to the s 359A letter. 30 Mr Aggarwal's first submission was that the Tribunal was required to, but did not, "use its powers and resources to verify the authenticity of the allegations leveled against" Mr Aggarwal. The allegations the subject of this submission were the allegations that SriTaj had previously supplied false work references to other visa applicants and the allegation that had been made to the Department, apparently by Mr Aggarwal's former friend, that Mr Aggarwal had never worked at SriTaj, but had paid the owner money to provide evidence that he had. 31 The primary judge found (at [30]) that this submission did not disclose any arguable case because the "Tribunal was under no obligation to exercise any power it had to verify the authenticity of allegations made" against Mr Aggarwal. The primary judge did not refer to any authority in support of that proposition. Nor did his Honour provide any, or any detailed, reasons for why, in the particular facts or circumstances, there was no obligation to investigate the specific matter identified by Mr Aggarwal. Aside from the issue relating to whether the Tribunal was obliged to conduct what amounted to further inquiries or investigations, the primary judge found that Mr Aggarwal's submission went no further than expressing disagreement with the Tribunal's rejection of his evidence that he had been employed at SriTaj. 32 Mr Aggarwal's second submission concerned the Tribunal's findings relating to the discrepancy in the superannuation calculations in the pay statements that he had supplied to the Tribunal. Mr Aggarwal submitted that this discrepancy was a miscalculation by Mr Munir and that the Tribunal should have taken up the invitation in Mr Munir's statutory declaration to contact him in relation to any inquiry "concerning this matter". 33 The primary judge found (at [32]) that there was no arguable case that the Tribunal was in error in not making inquiries of Mr Munir because "the Tribunal was not obliged to do so". The primary judge again cited no authority in support of the proposition that the Tribunal was not obliged to conduct this further inquiry. Nor did his Honour explain why the particular facts and circumstances did not give rise to any such obligation. Otherwise, the primary judge again characterised Mr Aggarwal's second submission as amounting to nothing more than a disagreement with the Tribunal's finding concerning the relevance and significance of the superannuation discrepancy. 34 It is unnecessary to consider Mr Aggarwal's third and fourth submissions in any detail. He submitted that he was not aware of the allegations that the owner of SriTaj had provided false work references to other visa applicants. He also submitted that the entries in the pay statements relating to payments made whilst he was in India were in fact annual leave payments. The primary judge found that those submissions amounted to no more than complaints about factual findings made by the Tribunal. They did not raise any arguable case of jurisdictional error. 35 Mr Aggarwal's fifth and sixth submissions again raised the issue concerning whether the Tribunal was under any duty to make inquiries of Mr Munir. It is sufficient to extract the paragraph of the primary judge's judgment (at [35]) that summarised the arguments and the primary judge's answer to them: The applicant's fifth and sixth written submissions relate to the Tribunal's conclusion that the pay slips were not genuine and were manufactured, and to the Tribunal's reference to the late payment of superannuation. The applicant refers to Mr Munir, the claimed employer at the SriTaj Restaurant, having provided a statutory declaration that the applicant had worked at SriTaj Restaurant, and that he had provided to the Department Mr Munir's contact number for any inquiries about the applicant's pay slips. There is no arguable case the Tribunal was obliged to make any inquiries of Mr Munir. (Footnotes omitted.) 36 Mr Aggarwal's seventh submissions addressed the fact that the Tribunal did not accept the statutory declarations from his friends to the effect that they were aware that Mr Aggarwal worked at SriTaj. The primary judge found (at [36]) that there was no arguable case that it was not reasonably open to the Tribunal not to accept as true those statements "having regard to the matters the Tribunal assessed as supporting its conclusion that the SriTaj Restaurant did not employ" Mr Aggarwal. The effect of this finding (after removing a double negative) was that it was open to the Tribunal not to accept or give any material weight to the contents of the statutory declarations for the reasons it gave. 37 Mr Aggarwal's eighth submission again related to whether the Tribunal was required to do anything further in relation to the fact that Mr Munir and Mr Aggarwal's friends had provided statutory declarations. Mr Aggarwal contended, in effect, that his migration agent had requested the Tribunal to take oral evidence from those persons. The primary judge rejected that contention and found, in any event, that there was no arguable case that the Tribunal was obliged to take oral evidence from Mr Munir or Mr Aggarwal's friends. 38 Mr Aggarwal's ninth submission was interpreted by the primary judge as being that the Tribunal was required to undertake investigations concerning the authenticity of the documents that Mr Aggarwal had submitted. In relation to that submission, the primary judge said (at [39]): There is no arguable case the Tribunal was obliged to undertake any such investigation. The Tribunal's obligation was to determine whether it was satisfied there was no evidence that the letters were not bogus documents and did not contain information that was false or misleading in a material particular in relation to the applicant's application for a Skilled Visa. 39 Mr Aggarwal's tenth submission related to the explanation Mr Aggarwal gave to the Tribunal for not having earlier provided copies of his pay statements to the Department. It is unnecessary to refer in any detail to that submission or the primary judge's conclusions in relation to it. Suffice it to say that Mr Aggarwal gave the primary judge a different explanation to that which had been provided to the Tribunal. The primary judge concluded that the explanation given by Mr Aggarwal was implausible. 40 Finally, Mr Aggarwal's eleventh submission was to the effect that the Tribunal was biased. Mr Aggarwal contended that, because the Tribunal decided his case within five days of its receipt of his response to the s 359A letter, the Tribunal's mind must have been closed. The primary judge found that there was no arguable case of bias. 41 Despite the fact that Mr Aggarwal's grounds of review did not refer to clause 885.224 and PIC 4020, the primary judge nevertheless considered whether there was an arguable case that the Tribunal had misunderstood or misapplied that criterion. The primary judge noted that the Tribunal did not approach the clause 885.224 criterion, as the text of clause 885.224 and PIC 4020 would suggest, by asking itself whether it was satisfied that there was no evidence that Mr Aggarwal had given it or the Department a bogus document or false or misleading information. Rather, the Tribunal had made a positive finding that Mr Aggarwal had provided bogus documents or false or misleading information. The question was whether it was arguable that this amounted to a jurisdictional error. 42 The primary judge found that there was no arguable case. He concluded (at [51]): By finding that the applicant had given a bogus document and had provided false or misleading information, it necessarily follows that the Tribunal was not satisfied there was no evidence that the applicant had given a bogus document or had provided false or misleading information. Leave to appeal grounds and submissions 43 Mr Aggarwal's application for leave to appeal and draft notice of appeal contained the following three grounds: 1. His Honour failed to consider that the material on file is not probative to conclude that documents provided are bogus or false. 2. The Migration Review Tribunal decision is affected by error of law as well as the judgment of His Honour Judge Manousaridis is affected by error of law. 3. I ask the Honourable Federal Court to allow me to present a transcript which was not previously presented to demonstrate that I have an arguable case. 44 None of these grounds provides a proper basis for the grant of leave to appeal. Nor were Mr Aggarwal's written and oral submissions squarely directed at these grounds. 45 The first proposed ground of appeal, at its highest, asserts that the primary judge erred in failing to find that there was no probative evidence before the Tribunal to support its findings that Mr Aggarwal had provided bogus documents. Whilst a decision by the Tribunal that is based on findings of fact that are not supported by any probative evidence might involve jurisdictional error, there plainly was some evidence before the Tribunal that was capable of supporting its finding concerning the provision of bogus documents. Mr Aggarwal did not raise any "no evidence" ground in the court below. His case before the primary judge was that the Tribunal should not have found that the documents were bogus. The primary judge correctly rejected Mr Aggarwal's arguments to that effect as simply amounting to a disagreement with factual findings made by the Tribunal. 46 The first proposed ground of appeal does not engage with the case advanced below or with the primary judge's judgment. It does not raise any arguable ground of appeal. 47 The second proposed ground of appeal simply asserts that both the decision of the Tribunal and the judgment of the primary judge were affected by errors of law. No particulars of the alleged errors of law were provided. In his submissions, however, Mr Aggarwal raised a number of arguments based on the primary judge's findings concerning whether the Tribunal had a duty to inquire or investigate. Those submissions, which will be addressed later, will be treated as being directed to this proposed ground of appeal. 48 The third proposed appeal ground is not a proper appeal ground. Mr Aggarwal did not tender, or attempt to tender, in the court below a transcript of the Tribunal hearing. When asked about this proposed appeal ground at the hearing of the leave to appeal application, Mr Aggarwal said that he had tapes of the Tribunal hearing, but not a transcript. He was not able to point to any particular argument or submission that would be advanced by the tender of the transcript. He was unable to indicate any particular part of the Tribunal hearing that he wanted the Court to consider. There was, in short, no proper basis to allow Mr Aggarwal to tender a transcript of the Tribunal hearing, even if one was available. 49 Mr Aggarwal's written and oral submissions focussed almost entirely on the primary judge's findings, in various different contexts, that the Tribunal was under no duty to conduct further inquiries or investigations. Mr Aggarwal submitted, in effect, that the primary judge's findings in that regard were in error. 50 Mr Aggarwal raised three specific arguments in relation to the Tribunal's duty to inquire. First, he submitted, in effect, that the Tribunal was required to, but did not, verify the adverse information or allegations that had been made against him. He referred, in particular, to the information that had been provided to the Department by his former friend. 51 Second, Mr Aggarwal contended that, if there were discrepancies in the pay statements or issues in relation to superannuation calculations or payments, they were clerical errors by his employer, Mr Munir. In this context, Mr Aggarwal pointed to the statement in Mr Munir's statutory declaration that he would answer any inquiries. Mr Aggarwal complained that nobody tried to contact Mr Munir. He contended that the Tribunal's failure to make inquiries with Mr Munir in this regard was an error. He referred in this context to s 362 of the Act. 52 Third, Mr Aggarwal contended, in relation to the discrepancies in relation to the superannuation calculations, that the Tribunal should have "check[ed] the papers" in relation to other employees of SriTaj. Should leave to appeal be granted? 53 It is well settled that an applicant for leave to appeal is generally required to show that there is sufficient doubt as to the correctness of the judgment at first instance to warrant appellate review and that, assuming that the judgment was wrong, the applicant would suffer substantial injustice if leave were refused: Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397. The main question in relation to Mr Aggarwal's application is whether there is sufficient doubt as to the correctness of the judgment below. If the judgment below was wrong, and leave were refused, it may be inferred that Mr Aggarwal would suffer substantial injustice. He would have no further recourse in relation to the adverse visa decision. He may, in those circumstances, be deported or otherwise required to leave Australia. 54 The only issues raised by Mr Aggarwal in his notice of appeal and submissions that warrant detailed consideration are those that concern the primary judge's findings that the Tribunal was not obliged to investigate, conduct further inquiries or take oral evidence in relation to various matters raised by Mr Aggarwal, either at the hearing or in Mr Aggarwal's response to the Tribunal's s 359A letter. The other issues raised by Mr Aggarwal in support of his leave application either do not raise proper grounds of appeal, or have no merit, or both. They amount, in substance to nothing more than arguments about the merits of the Tribunal's decision. The primary judge correctly held that those arguments raised no arguable case of jurisdictional error by the Tribunal. 55 The question whether the Tribunal was required to further investigate any aspects of Mr Aggarwal's case requires further exploration. The primary judge simply concluded that the Tribunal was not required to conduct any further investigations suggested by Mr Aggarwal in his submissions. His Honour did not cite any authorities or conduct any analysis of the facts and circumstances of the case in support of that conclusion. The question is whether that conclusion was correct. 56 There is no doubt that the Tribunal has wide powers to investigate an applicant's claims. For example, s 359 of the Act provides that the Tribunal may get any information that it considers relevant. Subsection 363(1)(d) of the Act provides that the Tribunal may require the Secretary of the Department to arrange for the making of any investigation. It is well established, however, that those provisions do not impose upon the Tribunal a general duty to make such inquiries: Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594 (SZGUR) at [20] (French CJ and Kiefel J, Heydon and Crennan JJ agreeing). Section 361 of the Act provides that the applicant may give the Tribunal written notice that the applicant wants the Tribunal to obtain oral evidence from a person or to obtain written evidence from a person or other written material. Subsection 361(3) makes it clear, however, that the Tribunal must have regard to that notice, but is not required to comply with it. Thus the section does not give rise to any general duty to inquire: Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALD 224; 207 ALR 12 at [43] (Gummow and Hayne JJ, Gleeson CJ agreeing); SZGUR at [20]. 57 In Minister for Immigration and Citizenship v Le (2007) 164 FCR 151 (Le), Kenny J conducted an exhaustive review of the authorities in this Court in relation to the existence of any general obligation for the Tribunal to initiate inquiries or to make out an applicant's case for him or her. Her Honour concluded (at [60]) that authorities that stretch back over the life of the Tribunal established that there is no such general obligation. Her Honour did, however, conclude that "there is authority for the limited proposition that, in certain rare or exceptional circumstances, the Tribunal's failure to enquire may ground a finding of jurisdictional error because the failure may render the ensuing decision manifestly unreasonable". 58 In Minister for Immigration and Citizenship v SZIAI (2009) 111 ALD 15; 259 ALR 429, the High Court referred to the judgment of Kenny J in Le and a number of the authorities that her Honour had referred to. The High Court said (at [25]): Although decisions in the Federal Court concerned with a failure to make obvious inquiries have led to references to a "duty to inquire", that term is apt to direct consideration away from the question whether the decision which is under review is vitiated by jurisdictional error. The duty imposed upon the tribunal by the Migration Act is a duty to review. It may be that a failure to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, could, in some circumstances, supply a sufficient link to the outcome to constitute a failure to review. If so, such a failure could give rise to jurisdictional error by constructive failure to exercise jurisdiction. It may be that failure to make such an inquiry results in a decision being affected in some other way that manifests itself as jurisdictional error. (Footnote omitted.) 59 Is there an arguable case that this is one of those rare and exceptional cases where the Tribunal's failure to inquire into any matter meant that the Tribunal's exercise of its jurisdiction was manifestly unreasonable? Was there any "obvious inquiry about a critical fact" the existence of which could "easily [have been] ascertained" by the Tribunal? If so, did the failure to make that obvious inquiry supply a sufficient link to the outcome of the Tribunal's review to constitute a failure to review? 60 The short answer to those questions is "no". The long answer requires some further consideration to be given to the matters that Mr Aggarwal suggested that the Tribunal should have, but did not, inquire into. 61 The first inquiry that Mr Aggarwal suggested that the Tribunal should have made was an inquiry directed at verifying the authenticity of the allegations concerning the previous supply of false work references by SriTaj and the specific allegations made against him by his former friend. Two points can be made concerning the proposed inquiry about those matters. 62 First, a fair reading of the Tribunal's reasons reveals that the allegations that had been made to the Department against SriTaj and Mr Aggarwal were not critical to the Tribunal's decision. At [35] of its reasons, the Tribunal states that those factors alone would be insufficient to establish that Mr Aggarwal was not employed at SriTaj as he had claimed. 63 Second, it could not be suggested that the authenticity or veracity of those allegations could easily have been ascertained by further inquiries. A further hearing would have been required and judgments formed about the credibility of conflicting claims and evidence. 64 It follows from those two points that it could not be concluded from the fact that the Tribunal did not conduct any further inquiries concerning the allegations against SriTaj and Mr Aggarwal that the Tribunal failed to exercise its jurisdiction, or exercised it in a way that was manifestly unreasonable. The primary judge was therefore correct to conclude that the Tribunal was not obliged to conduct any further inquiries into those matters and therefore there was no arguable case of jurisdictional error. 65 The second inquiry that Mr Aggarwal claimed that the Tribunal should have made was to have asked Mr Munir about the discrepancies in the superannuation calculations in the pay statements. The difficulty for Mr Aggarwal in relation to that suggested inquiry is that he could have asked Mr Munir to deal with this question in the statutory declaration that he obtained from Mr Munir and submitted to the Tribunal. He did not do so. In those circumstances, it could not reasonably be said that it was incumbent on the Tribunal to explore that issue with Mr Munir itself. The Tribunal was not obliged to make out Mr Aggarwal's case for him. 66 In any event, once again the discrepancy in the superannuation calculations could not be said to be a critical fact in the Tribunal's decision. It was but one of a number of matters that cast doubt on the authenticity of the pay statements and the veracity and credibility of Mr Aggarwal's claim that he was employed at SriTaj. Nor could it be said that the issue concerning the superannuation calculations could have been easily ascertained, particularly given the issues surrounding the credibility of Mr Munir. 67 For each of those reasons, the fact that the Tribunal did not ask Mr Munir about the superannuation calculation discrepancies does not support a finding that the Tribunal did not exercise its review jurisdiction, or exercised it in a manifestly unreasonable way. The primary judge was therefore again correct to conclude that the Tribunal was not obliged to conduct any such inquiry. There was no arguable case of jurisdictional error on this point. 68 The third suggested inquiry was very similar to the second. Mr Aggarwal contended that the Tribunal should have made inquiries of Mr Munir concerning the authenticity of the pay statements. Exactly the same observations can be made about that suggested inquiry as were made in relation to the superannuation calculation discrepancies. Mr Aggarwal submitted the pay statements in support of his case. The Tribunal gave Mr Aggarwal the opportunity to respond to its concerns about the authenticity of those documents. Mr Aggarwal could have asked Mr Munir to address that issue in his statutory declaration. Indeed, Mr Aggarwal could have given the Tribunal written notice under s 361(2) and (2A) of the Act that it wanted the Tribunal to take oral or written evidence from Mr Munir at the hearing. He did not do so. 69 In those circumstances, it was not up to the Tribunal to make Mr Aggarwal's case for him. The fact that the Tribunal did not make inquiries of Mr Munir about the pay statements in all the circumstances does not support a finding that the Tribunal did not exercise its review jurisdiction, or exercised it in a manifestly unreasonable way. Again, the primary judge was correct to find that the Tribunal was not obliged to conduct that further inquiry and that there was therefore no arguable case of jurisdictional error raised by Mr Aggarwal. 70 The fourth matter relied on by Mr Aggarwal was that the Tribunal should have taken oral evidence from Mr Munir and Mr Aggarwal's friends who had provided statutory declarations. A number of points can be made about that contention. 71 First, Mr Aggarwal well knew from the delegate's decision that the question whether he worked at SriTaj was critical to his review application. He could have, but did not, give the Tribunal written notice under s 361(2) of the Act that he wanted the Tribunal to take oral evidence from those witnesses at the hearing. Even if he had done so, the Tribunal would only have been required to have regard to that notice. It would not have been required to comply with it. 72 Second, the primary judge was correct in finding that Mr Aggarwal did not, in terms, ask the Tribunal to take oral evidence from those persons when he submitted the statutory declarations. 73 Third, the truthfulness or otherwise of the assertions by those witnesses was not a matter which could be said to be easily ascertained. To determine if the evidence of those witnesses was truthful and reliable, the Tribunal would have been required to conduct a further hearing and form a judgment about the credibility of the evidence of the witnesses, assuming that they gave evidence in accordance with their statutory declarations. 74 Fourth, given the findings made by the Tribunal in relation to bogus documentation, the very general evidence contained in each of the statutory declarations could not be said to have been critical to the Tribunal's decision. The statutory declarations could not, in the circumstances, be said to have supplied a sufficient link to the outcome such that any failure to make inquiries concerning them could amount to a failure by the Tribunal to conduct a review in accordance with its jurisdiction. 75 For each of these reasons, the fact that the Tribunal did not convene a further hearing to take oral evidence from those persons did not amount to jurisdictional error. It did not mean that the Tribunal did not exercise its jurisdiction, or exercised it manifestly unreasonably. The primary judge was correct to find that Mr Aggarwal did not raise an arguable case of jurisdictional error in relation to this point. 76 The fifth and final investigation that Mr Aggarwal claimed the Tribunal should have conducted was an investigation into whether the documents submitted by Mr Aggarwal were in fact bogus or false. There are a number of answers to that contention. 77 First, it was not necessary for the Tribunal to conduct this inquiry for the purposes of determining whether Mr Aggarwal had satisfied the criterion in clause 885.224 and PIC 4020. It was enough for the Tribunal to inquire into whether there was no evidence that the documents were bogus. The definition of "bogus document" in s 97 of the Act also meant that it was only necessary for the Minister to have a reasonable suspicion that the documents were counterfeit or otherwise false. That did not require a finding that the documents were in fact bogus. 78 Second, in any event, the Tribunal did investigate whether the documents were in fact bogus. It found that they were bogus on the basis of deficiencies and discrepancies on the face of the documents themselves, considered together with other inconsistencies arising from the surrounding facts and circumstances. Beyond making inquiries of Mr Munir, Mr Aggarwal did not suggest any specific investigations that the Tribunal should have conducted to determine whether the documents were in fact false. That suggested inquiry has already been dealt with. 79 In all the circumstances, the fact that the Tribunal did not do any more than it did to consider whether the documents were in fact bogus does not support a finding of jurisdictional error. It does not support a finding that the Tribunal did not exercise its jurisdiction or exercised it unreasonably. The primary judge was correct to find that the Tribunal was not obliged to conduct any further inquiry in relation to whether the documents were in fact bogus and that Mr Aggarwal's arguments to the contrary did not raise an arguable case of jurisdictional error. Conclusion and disposition 80 Whilst the primary judge's reasoning in relation to Mr Aggarwal's case based on failures by the Tribunal to conduct further inquiries was somewhat sparse, ultimately the primary judge was correct to conclude that Mr Aggarwal did not have an arguable case that the Tribunal made any jurisdictional error arising from any such failures. In all the circumstances, the Tribunal was not obliged to conduct the further inquiries suggested by Mr Aggarwal. The fact that the Tribunal did not make those further investigations does not support a conclusion that the Tribunal either failed to exercise its jurisdiction, or exercised it unreasonably. 81 Nor did any of the other submissions or arguments made by Mr Aggarwal before the primary judge establish that he had an arguable case that the Tribunal had made a jurisdictional error in dealing with his review application. The primary judge did not err in dismissing Mr Aggarwal's application pursuant to r 44.12(1)(a) of the FCCR. In these circumstances, Mr Aggarwal's application for leave to appeal must be dismissed. 82 Two further observations should perhaps be made. 83 First, it is doubtful whether it was ultimately appropriate for the Minister to pursue summary dismissal of Mr Aggarwal's application at a show cause hearing pursuant to r 44.12(1)(a) of the FCCR. Whilst the grounds of review in Mr Aggarwal's application were unparticularised and did not, on their face, reveal any arguable case, Mr Aggarwal's written and oral submissions at the show cause hearing did reveal some apparently substantive arguments that at least raised issues that warranted further exploration and careful consideration. That is demonstrated by the fact that the primary judge reserved his judgment on the summary dismissal application. Ultimately, Mr Aggarwal's arguments were found to have no merit. One would generally expect, however, that the show cause hearing procedure and summary dismissal pursuant to r 44.12(1)(a) of the FCCR should be reserved for clear and obvious cases. This was not such a case. 84 Second, the fact that summary dismissal at the show cause stage was pursued in this case gave rise to some issues and deficiencies at the hearing of the leave to appeal application in this Court. 85 First, it would appear that because the matter was an application for leave to appeal, not an appeal, no directions were made for the preparation of an appeal book. The arguments advanced by Mr Aggarwal were not able to be properly addressed by the Court without an appeal book. The Court did not, for example, initially have before it the s 359A letter, Mr Aggarwal's reply, or any of the disputed documents. Accordingly, at the hearing, the Minister was directed to produce the application book that was before the court below. 86 Second, again presumably because this was an application for leave to appeal, rather than an appeal, the Court did not receive the sort of assistance from the Minister that would ordinarily be expected of a model litigant. The written submissions filed by the Minister did not address the issue concerning the Tribunal's duty to inquire. Nor did the Minister's oral submissions on that issue greatly assist. The duty to inquire issue was obvious from the judgment of the primary judge. 87 Nor was the Minister in a position, at the hearing, to take the Court through the Regulations to clearly demonstrate that the Tribunal had addressed the correct visa criteria. Issues arose in that regard because of the delay between the visa application and its consideration by the delegate and the Tribunal. A number of amendments had been made to the Regulations during that period. As a result, it was necessary to carefully trace the history of the amendments and the operation of transitional provisions. Because the Minister was unable to adequately deal with this issue at the hearing, the Minister was given leave to file supplementary written submissions. That resulted in delay in determining the application. 88 Notwithstanding these observations, the Minister is nevertheless entitled to his costs. That is not only because the Minister was the successful party, but also because Mr Aggarwal did not comply with the Court's directions to file written submissions. He only produced written submissions on the day of the hearing. Those written submissions advanced his case based on the Tribunal's duty to inquire. His application for leave to appeal did not squarely raise that issue. 89 The orders of the Court are as follows: 1. The application for leave to appeal be dismissed. 2. The applicant to pay the first respondent's costs as agreed or assessed. I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wigney. Associate: Dated: 26 November 2015	13,455
federal_court_of_australia:fca/single/2022/2022fca1279	decision	commonwealth	federal_court_of_australia	text/html	2022-10-28 00:00:00	Chadwick v State of New South Wales (Costs) [2022] FCA 1279	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2022/2022fca1279	2024-09-13T22:53:19.411061+10:00	Federal Court of Australia Chadwick v State of New South Wales (Costs) [2022] FCA 1279 File number: NSD 1307 of 2020 Judgment of: CHEESEMAN J Date of judgment: 28 October 2022 Catchwords: PRACTICE AND PROCEDURE – where applicant and respondents both successful in interlocutory applications – whether costs should be costs in the cause – Held: costs to be costs in the cause. Legislation: Federal Court of Australia Act 1976 (Cth), ss 37M, 43 Cases cited: Calderbank v Calderbank [1975] 3 All ER 333 Taleb v GM Holden Limited [2011] FCAFC 168; 286 ALR 309 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 10 Date of hearing: Determined on the papers. Counsel for the Applicant: Ms M Dulhunty Counsel for the First and Second Respondents: Mr R Lee Solicitor for the First and Second Respondents: MinterEllison ORDERS NSD 1307 of 2020 BETWEEN: SANDRA-ANNE NGAONE CHADWICK Applicant AND: STATE OF NEW SOUTH WALES First Respondent NEW SOUTH WALES LAND AND HOUSING CORPORATION Second Respondent order made by: CHEESEMAN J DATE OF ORDER: 28 oCTOBER 2022 THE COURT ORDERS THAT: 1. The parties' applications for alternative costs orders pursuant to order 3 of the orders dated 27 September 2022 be dismissed. 2. The costs of the interlocutory applications the subject of the reasons for judgment in Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 be costs in the cause. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT CHEESEMAN J: introduction 1 There are two applications for costs before the Court which follow from the determination of two interlocutory applications in Chadwick v State of New South Wales (Amendment Application) [2022] FCA 1138 (Chadwick (Amendment Application)). 2 In Chadwick (Amendment Application), I made orders, relevantly, that subject to any party seeking to be heard on an alternative costs order, costs of the interlocutory applications the subject of the reasons for judgment be costs in the cause. For the purpose of these reasons, familiarity with that judgment is otherwise assumed. 3 The parties have since applied for alternative costs orders as follows: (1) Ms Chadwick seeks that the respondents pay the costs of the summary judgment application on an indemnity basis, and pay the costs of the points of claim application on the ordinary basis. (2) The respondents seek that Ms Chadwick pays the costs of the summary judgment application and points of claim application, and/or that costs be ordered on the basis of their "substantial success" in those applications. consideration The interlocutory applications 4 Pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth), the award of costs is at the Court or Judge's discretion. In exercising that discretion, I have had regard to the written submissions filed by the parties. In all but formal terms, the summary judgment application brought by the respondents was effectively overtaken by the points of claim application brought by Ms Chadwick. Ms Chadwick sought the indulgence of the Court to allow the proposed points of claim (PPOC) to supersede the concise statement. At the time the respondents' summary judgment application was filed in November 2021 by reference to the concise statement as it then stood in the proceedings the respondents had a proper basis for bringing the application. After Ms Chadwick sought leave to supersede the existing concise statement with the PPOC, the respondents adopted a pragmatic and efficient approach which facilitated the determination of the real issues between the parties. In these circumstances, I do not regard the respondents as in substance having failed to obtain the relief which they sought. 5 In order to determine the competing interlocutory applications, consistent with the overarching purpose pursuant to s 37M of the Act, the dispute between the parties reduced to an argument as to whether leave should be given for an amended concise statement to be filed based on the PPOC. Ultimately on that issue, leave to amend the concise statement was granted for certain paragraphs, and refused for others. For this reason, I am satisfied that in substance the reality is that each party achieved some level of success on their respective competing interlocutory applications. The Calderbank offer 6 In support of her submission that the respondents be ordered to pay the costs of the summary judgment application on an indemnity basis, Ms Chadwick relies on a letter sent by her counsel to lawyers for the respondents, dated 11 July 2022, which offered that the respondents withdraw the summary judgment application and for each party to pay their own costs of that application. The letter purported to be made pursuant to the principles in Calderbank v Calderbank [1975] 3 All ER 333. The respondents did not accept the offer. 7 The non-acceptance of a Calderbank offer can be relevant to the exercise of the discretion to award costs under s 43 of the Act on an indemnity basis in departure from the usual practice of ordering party-party costs if it was unreasonably rejected and is followed by a less favourable result to the offeree than the offer made: Taleb v GM Holden Limited [2011] FCAFC 168; 286 ALR 309 at [48]–[49]. 8 Ms Chadwick submitted that the respondents have not improved their position from the Calderbank offer. I reject that submission. In substance, the respondents improved their position on the offer. Indeed, shortly after making the Calderbank offer Ms Chadwick's counsel indicated to the respondents that Ms Chadwick no longer intended to rely on the concise statement in the proceedings, and would be seeking leave to rely on the PPOC instead as in effect an amended concise statement. This undoubtedly placed the respondents in a better position than the Calderbank offer. 9 In any event, I am not satisfied that the letter relied on in the context of the interlocutory dispute in this case was such as to attract the principles in Calderbank. conclusion 10 For these reasons, having considered the submissions made by the parties I am satisfied that the appropriate order is that costs be costs in the cause. I will make orders accordingly. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Cheeseman. Associate: Dated: 28 October 2022	1,468
federal_court_of_australia:fca/single/2004/2004fca1426	decision	commonwealth	federal_court_of_australia	text/html	2004-11-04 00:00:00	Peters v Administrative Appeals Tribunal [2004] FCA 1426	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca1426	2024-09-13T22:53:21.304844+10:00	FEDERAL COURT OF AUSTRALIA Peters v Administrative Appeals Tribunal [2004] FCA 1426 MIGRATION – Character test – Prohibited information – Information before Delegate which was not before AAT – Whether AAT performed its "review" role – Information before AAT to which the applicant did not have access – procedural fairness. Judiciary Act 1903 (Cth) Migration Act 1958 (Cth) Administrative Appeals Tribunal Act 1975 (Cth) Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585 Plaintiff S157/2002 v Cth (2003) 211 CLR 476 Nabe v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276 STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91 Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242 SONNY PETERS v ADMINISTRATIVE APPEALS TRIBUNAL SAD 145 OF 2004 SELWAY J 4 NOVEMBER 2004 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 145 OF 2004 BETWEEN: SONNY PETERS APPLICANT AND: ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SELWAY DATE OF ORDER: 4 NOVEMBER 2004 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application for leave to amend the grounds of review to raise a ground of perceived bias is refused. 2. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY SAD 145 OF 2004 BETWEEN: SONNY PETERS APPLICANT AND: ADMINISTRATIVE APPEALS TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: SELWAY DATE: 4 NOVEMBER 2004 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant has applied seeking orders of certiorari, prohibition and mandamus pursuant to s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the first respondent ("the AAT") given on 8 June 2004 (Peters and Minister for Immigration and Multicultural and Indigenous Affairs [2004] AATA 585). In that decision the AAT approved a previous decision of a delegate of the second respondent (the Minister) to cancel the applicant's visa pursuant to s 501 of the Migration Act 1958 (Cth) ("the Act"). The applicant says that the decision of the AAT is invalid. For the reasons given below the application must be dismissed. 2 The factual context is not in dispute. It is helpfully set out in the reasons of the AAT: 'The applicant was born on 12 June 1962 in Tamauranu, New Zealand, and is 41 years of age. He migrated to Australia with his wife and children in January 1992. He has three children, a daughter, Bianca, aged 18, a son Mark, aged 13, and a daughter, Hayley, aged 11. His wife and children are permanent residents. The applicant's oldest brother moved to Australia in the early 1980's and is a priest in the Uniting Church at Port Augusta. He has two other brothers in Australia who live in Geelong and Adelaide respectively. He has an older sister who lives in New Zealand, but he has not been in contact with her for many years. His mother lives at Port Augusta, and his late father also lived there until his death. His burial place is at Port Augusta. His youngest brother's only child is named after the applicant, and is now six years old. The applicant is very close to this nephew. The applicant applied for Australian citizenship on 4 June 2002. ..[His] application for citizenship … states that the applicant first arrived in Australia on 23 January 1992. Item 43 of the application form requires the applicant to disclose whether he or she has "ever been convicted of, or found guilty of, ANY offences". The applicant ticked the "Yes" box against this question, and later in the same question provided the following information regarding his previous convictions: "1. Elizabeth Court – 1994. Social Welfare overpayment. Money paid back before sentencing. 12 month suspended sentence. 2. Elizabeth Court – 1994. Assault charge. Suspended sentence, community service. 3. Elizabeth Court 1999. Item of disguise. $300 fine. 4. Adelaide Court. Demanding money by menaces. 2000. Charges were dropped." The assault conviction in Australia resulted in a penalty of 12 months imprisonment, which was suspended on his entering into a good behaviour bond. The Tribunal notes that it was not necessary for the applicant to disclose the last charge, because Item 43 of the form only refers to convictions and pending proceedings and not charges which were not proceeded with. It is also noted that a further conviction in 1998 for failing to register a motor vehicle was not disclosed. In his witness statement …the applicant refers to three convictions in New Zealand, including in particular a conviction for assault occasioning grievous bodily harm arising out of a "very wild brawl" in 1979 at a town, Moerewa, and after turning 17, he was sentenced to 6 years and 9 months in jail for that offence…. The convictions for assault in New Zealand and Australia meant that the applicant had a substantial criminal record for the purposes of s 501(6)(a) of the Act, since they each resulted in a sentence of imprisonment of 12 months or more: s 501(7)(c). On 5 February 2003 the Department for Immigration and Multicultural and Indigenous Affairs ("DIMIA") issued the applicant with a notice of intention to consider cancelling his visa pursuant to s 501(2) of the Act…..The notice advised, in effect, that the grounds on which the visa might be liable to cancellation related to the character test and, in particular, the matters referred to in sub-paragraph 501(6)(a) of the Act (the substantial criminal record ground), sub-paragraph 501(6)(b) (the association ground), sub-paragraph 501(6)(c) (the not a good character ground), and sub-paragraph 501(6)(d) (the ground entailing "significant risk of engaging in criminal conduct or other activities harmful to another person in Australia or to the Australian community"). The notice from DIMIA went on to say that the Department was in possession of information from the INTERPOL and the SAPOL showing that the applicant had a criminal record involving sentences of imprisonment of 12 months or more, and that he was a member of an outlawed group (which was presumably a reference to the applicant's then membership of the Bandidos Motorcycle Club….). It said further that the information was protected under s 503A of the Act and could not be divulged to him. The notice then invited the applicant to comment, and the applicant by his solicitors made submissions to DIMIA in response to the notice….) A delegate of the respondent decided on 29 October 2003 that there were grounds to cancel the applicant's visa pursuant to s 501(2) of the Act…., and a notice of visa cancellation was served on the applicant on 16 March 2004 (exhibit A1, pages 5 - 11). The applicant has been held in detention since then.' 3 Section 501 of the Act relevantly provides: 'Decision of Minister or delegate—natural justice applies (1) … (2) The Minister may cancel a visa that has been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test. … Character test (6) For the purposes of this section, a person does not pass the character test if: (a) the person has a substantial criminal record (as defined by subsection (7)); or (b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or (c) having regard to either or both of the following: (i) the person's past and present criminal conduct; (ii) the person's past and present general conduct; the person is not of good character; or (d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would: (i) engage in criminal conduct in Australia; or (ii) harass, molest, intimidate or stalk another person in Australia; or (iii) vilify a segment of the Australian community; or (iv) incite discord in the Australian community or in a segment of that community; or (v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way. Otherwise, the person passes the character test. Substantial criminal record (7) For the purposes of the character test, a person has a substantial criminal record if: (a) the person has been sentenced to death; or (b) the person has been sentenced to imprisonment for life; or (c) the person has been sentenced to a term of imprisonment of 12 months or more; or (d) the person has been sentenced to 2 or more terms of imprisonment (whether on one or more occasions), where the total of those terms is 2 years or more; or (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution. … (11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though: (a) it does not involve violence, or threatened violence, to the person; or (b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person. Definitions (12) In this section: court includes a court martial or similar military tribunal. imprisonment includes any form of punitive detention in a facility or institution. sentence includes any form of determination of the punishment for an offence.' 4 The applicant accepts that he did not pass the character test. He accepts that the delegate of the Minister, and subsequently the AAT, could, in the exercise of their respective discretions, determine to cancel his visa. 5 The applicant argues, however, that the process by which the Tribunal reached its decision to confirm the decision to cancel his visa was a breach of its duty under the Act, both in failing to perform its function of "review" and in failing to afford the applicant a fair hearing. This argument is based upon certain information which was before the delegate being withheld from the AAT until immediately before the AAT delivered its decision and some information that was before the delegate never having been provided to the AAT. 6 The relevant information was withheld under s 503A of the Act. Section 503A(1) relevantly provides that, if information is communicated to an authorised migration officer by a gazetted agencyon condition that it be treated as confidential information and the information is relevant to the exercise of a power under ss 501, 501A, 501B or s 501C, the officer must not divulge or communicate the information to another person, except where the other person is the Minister or an authorised migration officer and the information is divulged or communicated for the purposes of the exercise of a power under ss 501, 501A, 501B or 501C. Subsections (3) and (5)-(8) of s 503A provide: (3) The Minister may, by writing, declare that subsection (1) or (2) does not prevent the disclosure of specified information in specified circumstances to a specified Minister, a specified Commonwealth officer, a specified court or a specified tribunal. However, before making the declaration, the Minister must consult the gazetted agency from which the information originated. … (5) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3), the member or members of the tribunal must not divulge or communicate the information to any person (other than the Minister or a Commonwealth officer). (5A) If a person divulges or communicates particular information to a tribunal in accordance with a declaration under subsection (3): (a) the member or members of the tribunal must not be required to divulge or communicate the information to the Federal Court or the Federal Magistrates Court; and (b) the member or members of the tribunal must not give the information in evidence before the Federal Court or the Federal Magistrates Court. The information may only be considered by the Federal Court or the Federal Magistrates Court if a fresh disclosure of the information is made in accordance with: (c) a declaration under subsection (3); or (d) subsection 503B(6). (6) This section has effect despite anything in: (a) any other provision of this Act (other than sections 503B and 503C); and (b) any law (whether written or unwritten) of a State or a Territory. (7) To avoid doubt, if information is divulged or communicated: (a) in accordance with paragraph (1)(a) or (b); or (b) in accordance with a declaration under subsection (3); the divulging or communication, as the case may be, is taken, for the purposes of the Information Privacy Principles set out in section 14 of the Privacy Act 1988 , to be authorised by law. (8) If any Act (whether passed before or after the commencement of this section) provides for information to be given, that Act has effect subject to this section unless that Act expressly provides otherwise.' 7 In this case the relevant delegate was relevantly authorised and received the "protected information". The applicant was represented by solicitors. They were informed that protected information held by the delegate could not be disclosed pursuant to s 503A of the Act. No objection was taken. It would appear that the claim that s 503A of the Act applied was accepted by the applicant and his advisers. 8 Initially the AAT was not relevantly authorised to receive at least some of the "protected information". At least some of it was not provided to the AAT. It would seem clear that the AAT expressed some concern about this. The AAT conducted its hearings from 5 – 7 May 2004. On that occasion only some of the confidential material was put before the Tribunal. "Confidential submissions" were made on behalf of the Department in relation to it. The applicant and his advisers were not privy to this material or to the submissions. On 31 May 2004 the Australian Government Solicitor (acting for the Department) advised the AAT in writing that "a gazetted agency has now indicated that it may consent to the release of a summary of some of the other protected information to the Tribunal". The applicant's legal advisers objected to this course in a letter dated 2 June 2004. The basis of the objection was that the respective parties had closed their cases before the AAT and the Department should not be permitted to bring further "secret" information before the Tribunal. In response to this correspondence the AAT set out its position in writing. It thought that as much material as possible should be before it, but it wished to consider the extent to which the applicant would be prejudiced by the late receipt of the material. The AAT also expressed concern about receiving a summary only of the material that was before the delegate. The matter came on for hearing on 4 and 8 June 2004. It would appear that the legal advisers for the Department made an application to tender three documents. One, (R3) was a summary of "protected information", another (R4) was an affidavit by a lawyer from AGS deposing to the accuracy of the summary information and another (R5) comprised a declaration under s 503A(3) together with some other documents clarifying and expanding information in other exhibits. The application was heard in the absence of the applicant or his legal advisers. The AAT determined to receive the documents. Further submissions were then heard from both sides. The Tribunal delivered its decision later on the day of 8 June 2004. It is noted that if the AAT had not made its decision on that day, it would have been taken to have "affirmed the decision of the delegate" see s 500(6L) of the Act. 9 In relation to the protected information, the AAT commented as follows: 'As mentioned above, the Tribunal has received in evidence certain protected information, namely the information in exhibits R2, R3, R4 and R5. The respondent applied to tender exhibit R3 almost one month after the conclusion of the hearing, but explained that the gazetted agency from which the relevant information had come had only very recently, and of its own initiative, consented to the further protected information in this exhibit being made available to the four persons named in one of the declarations referred to in paragraph 3 above. Exhibits R4 and R5 were tendered on a further resumption of the hearing this day, and these provide further information as to matters included in exhibit R3. Counsel for the applicant strongly objected to the late tender of exhibits R3, R4 and R5, and to the Tribunal's indulgence in extending the time in which exhibits R4 and R5 were tendered. The Tribunal took the view that it should be as fully informed as possible before making its decision, and had asked the respondent to clarify certain aspects of the protected information. The Tribunal was told that the respondent was not able to tender the information earlier, because of the late receipt of the information from the relevant agency. The Tribunal is satisfied that the applicant has not been prejudiced by the lateness of the tendering of exhibits R3, R4 and R5. By virtue of s 503A(5) and s 503D(1) of the Act, the Tribunal must not divulge or communicate the information in these exhibits to any person other than the Minister or a Commonwealth officer. This means that neither the applicant nor the applicant's advisers can be made aware of the information in question. The prohibition on divulging the information would, apart from the provisions of s 503A(6), raise issues as to whether the non-disclosure of the information would constitute a breach of natural justice or procedural fairness. During the course of the proceedings and after hearing submissions from counsel for the applicant on whether this was appropriate, the Tribunal excluded all other persons from the hearing room and explored with Messrs Prince and Kennedy whether it was possible to inform the applicant at least of the generic nature of the information, in order to ensure that procedural fairness was observed as far as possible. However, after hearing submissions from the respondent's counsel, the Tribunal decided that it was not possible to provide any such generic information to the applicant or his advisers without infringing the relevant sections of the Act. … In the present matter, it appears that the delegate who made the original decision had access to additional protected information which has not been provided to this Tribunal on the hearing of these proceedings. This would appear to be inconsistent with the role of the Tribunal to review the primary decision, and to arrive at a correct or preferable decision. The Tribunal appreciates that the respondent must consult with the relevant law enforcement or intelligence agency from which the information originated before divulging it to this Tribunal. However, it would clearly be preferable for this Tribunal to receive all of the information possessed by the original decision-maker in all cases where that information is relevant to the issues before the Tribunal. The Tribunal suggests that DIMIA should explain this to the agency concerned whenever there is an application to this Tribunal to review a delegate's decision, so that the Tribunal will be fully informed as to the facts on which the delegate's decision was based. Counsel for the applicant submitted that in determining the weight and use to be made of the protected information, the Tribunal should assess the inherent quality of the information, and take into account that the material was untested, in the sense that there had been no opportunity for the applicant to comment on or contradict the information. By way of illustration counsel contrasted incontrovertible information, such as video tape evidence, with hearsay information from a police officer or informant, where there were risks of the information being untruthful, exaggerated or otherwise unreliable. As against this, counsel for the respondent submitted that if the Tribunal were to treat the protected information with less weight than the information would otherwise be entitled to, because it was not divulged or communicated to the applicant, then that would amount to an improper attempt to avoid the clear intention of Parliament by imposing sanctions in connection with the exercise of the Minister's discretion, and counsel cited Minister for Immigration and Multicultural and Indigenous Affairs v Ball (supra) per Dowsett J (dissenting) at [30], as well as other passages from Evans v Minister for Immigration and Multicultural and Indigenous Affairs (supra). The submission of the respondent's counsel seems to be taken primarily from Ball, where the issue depended on the application of s 503A in a case where the Minister personally made a decision under s 501(2) to cancel the respondent's visa, and the Court held that to require the Minister in those circumstances to provide the protected information to the respondent would be to impose sanctions in connection with the exercise of the Minister's discretion. The Tribunal accepts that it would defeat the clear intention of Parliament if the Tribunal were to disregard the protected information on the grounds that it could not be made available to the applicant or tested in the traditional forensic manner. However, whilst this extreme approach would not be permissible, the Tribunal is nevertheless required to evaluate all of the evidence before it, including the protected information. In performing this function the Tribunal considers that it would be appropriate to take into account whether it has been possible to give the applicant an adequate opportunity to comment on or if appropriate, challenge the protected information, and if this is not possible, the weight and evidentiary value of the information concerned will be affected, depending on its nature and whether the information is such that it is inherently reliable. It seems to the Tribunal that its task in the present matter is to evaluate all of the evidence before it, and that the evidence which is protected information should be evaluated in accordance with the above approach. The Tribunal is satisfied that the applicant had a sufficient opportunity in his evidence-in-chief to address the protected information, and that the cross-examination of the applicant in relation to the protected information was taken as far as it could be taken without infringing s 503A and s 503D of the Act.' 10 As already noted, these proceedings are brought pursuant to s 39B of the Judiciary Act 1903 (Cth). In order to succeed the applicant must show that there was a jurisdictional error in the process, reasoning or decision of the AAT. 11 It is noted that the applicant could have brought proceedings pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) ("the AAT Act"). Counsel for the applicant candidly admitted that the reason for not doing so was the view taken that such appeals were excluded by s 476 of the Act, usually called the privative clause. However, it is clear that the privative clause has no application if the relevant decision is a nullity by reason of a jurisdictional error: see Plaintiff S157/2002 v Cth (2003) 211 CLR 476. There are special procedural requirements applicable to "appeals" under s 44 of the AAT Act, including the requirement that some matters be heard by a Full Court: see s 44(3)(b) of the AAT Act. In this case no issue is taken with the use of the statutory writs rather than the procedure under the AAT Act. As nothing turns on the issue, it is unnecessary to deal with it further, except to note that an "appeal" under s 44 of the AAT Act may be the more appropriate procedure and that there is a discretion not to grant a statutory writ if a more appropriate procedure was available but was not used. 12 Both parties are agreed that I should proceed on the basis that the AAT was correct in its assessment that the delegate "had access to additional protected information which has not been provided to this Tribunal on the hearing of these proceedings". That additional information was additional to that in R2 to R5. The applicant says that the AAT had a duty to obtain the whole of the file that was before the delegate and that its failure to do so was a jurisdictional error. In the ordinary course this is undoubtedly correct. In the ordinary course a decision of a delegate to revoke a visa under s 500 of the Act must be notified in writing to the person affected and must be accompanied by two copies of every document in the delegate's possession or control which was relevant to the making of the decision: s 501G(2) of the Act. There is also an obligation upon the delegate to lodge with the AAT two copies of "every document or part of a document that is in the person's possession or under the person's control and is considered by the person to be relevant to the review …": s 37(1)(b) AAT Act. As counsel for the applicant correctly argued, the nature of the "review" process to be undertaken by the AAT must be understood in this context: see Nabe v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263at [42]-[43]; [48]-[51]. I accept that in circumstances where the duty to provide the relevant information (either to the person affected or to the AAT) has been breached and such breach results in unfairness then there may be a jurisdictional error: see Minister for Immigration & Multicultural & Indigenous Affairs v George [2004] FCAFC 276 at [52]-[56]; STKB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 546 at [21]‑[22]. 13 But these general propositions can only be understood in the statutory context. That context clearly includes s 503A of the Act. It is perfectly clear that the obligation upon the delegate to provide 2 copies of the material held by him or her to the person affected, does not apply to "protected information": see s 501G(2)(f) of the Act. Similarly, it is clear that the obligation upon the delegate to provide copies of the material to the AAT does not apply to protected information: see s 503A of the Act and see Minister for Immigration & Multicultural & Indigenous Affairs v Ball [2004] FCAFC 91. 14 That being the case it is clear that there is no breach by the AAT of its duty to conduct a "review" merely because it does not have access to "protected information". 15 It also follows that there is no breach of any duty upon the Tribunal to afford procedural fairness to the applicant merely because it could not give him access to the protected information. 16 This is not to suggest that I would necessarily have agreed with the procedure adopted by the AAT. However, that is not the issue before this Court. The only issue before this Court is whether there was jurisdictional error. 17 The applicant also argued that the AAT had a duty to ensure that the relevant documents properly fell within the terms of s 503A of the Act. There are cases where it is hotly contested that the relevant information is "protected information" within s 503A of the Act: see, for example, Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242. But in this case the relevant information had been claimed to be protected information from the very beginning. There was no dispute about it. No issue was raised before the Tribunal that the information was not properly protected information. The AAT proceeded on that basis. In my view there was no jurisdictional error in it doing so. 18 The applicant also argued that the "summary" provided to the AAT was not itself "protected information" with the consequence that that summary should have been made available to the applicant so that he would have an opportunity to answer it. The short answer to this argument is that "information" in s 503A does not refer to the physical document, but to the "knowledge" recorded within it. So understood, it is a breach of s 503A of the Act to impart that knowledge, or any part of it, whether or not the actual document is imparted. It follows that a summary of the information will still comprise "protected information" so long as it imparts knowledge communicated by a gazetted agency and otherwise falling within s 503A of the Act. 19 The applicant sought leave to amend his grounds of review so as to raise a question of perceived bias. The applicant said that the receipt by the Tribunal of the relevant information on the last day upon which it could give a decision, and after hearing submissions from the Department in the absence of the applicant or his advisers, would lead a reasonable observer to perceive that the AAT was not impartial. In the ordinary course confidential discussions by the trier of fact with only one party may well result in a claim for perceived bias. However, the issue must always be understood in the context in which it arises. In this case the information was "protected information". There was no choice about receiving it in confidence. If it was to be received it necessarily had to be in confidence. The only issue was whether it should have been received or not. The AAT was sensitive to the problem. It referred to the advantage of it receiving all available information – an advantage reflected in the AAT Act. Indeed, one of the grounds of complaint by the applicant is that the AAT did not receive all of the information. The AAT expressly referred to the potential unfairness to the applicant and concluded that it was "satisfied that the applicant [had] not been prejudiced by the lateness of the tendering of exhibits R3, R4 and R5". This may be little comfort to the applicant, but in my view a reasonable bystander, aware of these matters, would accept that the AAT was doing its best in a difficult situation. Of course, such situations are not unknown even for courts which are faced with issues of public interest immunity, legal professional privilege and so on. 20 In my view the argument that the AAT was affected by perceived bias cannot succeed. Leave to amend the grounds of review in order to raise that ground is refused. 21 For these reasons the application must be dismissed. Having reached this conclusion it is unnecessary for me to consider what effect s 500(6L) of the Act might have if the decision of the AAT was affected by jurisdictional error, and the time limit specified in that section has subsequently expired. That may involve a Constitutional issue. I make no comment on that question. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Selway. Associate: Dated: 4 November 2004 Counsel for the Applicant: A C Collett Solicitor for the Applicant: Hyams & Associates Counsel for the Respondent: S Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 15 October 2004 Date of Judgment: 4 November 2004	6,916
federal_court_of_australia:fca/single/2018/2018fca1518	decision	commonwealth	federal_court_of_australia	text/html	2018-10-11 00:00:00	K & S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca1518	2024-09-13T22:53:21.587628+10:00	FEDERAL COURT OF AUSTRALIA K&S Freighters Pty Ltd v McQueen-Thomas [2018] FCA 1518 File number: VID 973 of 2016 Judge: COLLIER J Date of judgment: 11 October 2018 Catchwords: COMPENSATION – statutory appeal pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) – claim for compensation under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – where the employee had a pre-existing shoulder injury – whether Tribunal erred in its interpretation of ss 5B and 14 of the Act – whether the Tribunal erred in its interpretation of s 7(7) of the Act Legislation: Administrative Appeals Tribunal Act 1975 (Cth), s 44 Safety, Rehabilitation and Compensation Act 1988 (Cth), ss 4, 5A, 5B, 7, 9, 14, 15 Cases cited: Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280 Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 Crick & Bennett [2018] FamCAFC 68 Gaffey v Comcare [2015] FCA 1024; (2015) 239 FCR 76 Ilsley v Wattly Australia Pty Ltd [1997] FCA 427 Date of hearing: 28 March 2018 Registry: Queensland Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: Mr A Berger Solicitor for the Applicant: Clarke Legal Counsel for the Respondent: Mr M Carey with Ms K Brady Solicitor for the Respondent: Maurice Blackburn ORDERS VID 973 of 2016 BETWEEN: K&S FREIGHTERS PTY LTD Applicant AND: ANDREW MCQUEEN-THOMAS Respondent JUDGE: COLLIER J DATE OF ORDER: 11 OCTOBER 2018 THE COURT ORDERS THAT: 1. The application be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT COLLIER J: Introduction 1 This is an appeal, pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth), against a decision of the Administrative Appeals Tribunal (the Tribunal), wherein the Tribunal set aside a decision of the applicant K&S Freighters Pty Ltd and substituted its decision that Mr McQueen-Thomson was entitled to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). 2 Appeals to the Federal Court from the Tribunal pursuant to s 44 are in the original jurisdiction of the Court and are confined to questions of law. K&S Freighters Pty Ltd, in summary, contends that the Tribunal made two fundamental errors of law: first, concerning s 14 of the SRC Act and, second, concerning s 7(7) of the SRC Act. It identifies the following alleged errors of law: 6. Did the Tribunal fail to consider a relevant factor or misapprehend the matters of which it had to be satisfied in order to find a liability to pay compensation pursuant to s 14 of the SRC Act? 7. Did the Tribunal misconstrue and misapply s 5A, 5B and/or s 14 of the SRC Act, in concluding Mr McQueen-Thompson's left shoulder condition(s) resulted in incapacity for work? 8. Did the Tribunal misconstrue the phrase 'purposes connected with his or her employment' in s 7(7) of the SRC Act? (Amendment formatting omitted, numbering as per original.) 3 K&S Freighters Pty Ltd seeks to have the matter remitted to a differently-constituted Tribunal to be heard and determined according to law. In doing so it relies on the following grounds of appeal: 1. The Tribunal erred in law by concluding Mr McQueen-Thomson suffered incapacity for work as a result of a left shoulder condition(s), without considering whether his incapacity for work was the result of 'an injury', within the meaning of ss5A (1), 5B (1) and 14 (1) of the SRC Act, as distinct from his non-employment related pre-existing left shoulder ailment that did not constitute such 'an injury'. … 5. The Tribunal erred in law by incorrectly interpreting the phrase 'purposes connected with' in s 7 (7) of the SRC Act in finding that a representation made on a worker's compensation claim form submitted to his employer was not a representation 'for purposes connected with' his employment. (Amendment formatting omitted, numbering as per original.) 4 I note the potential for confusion given that "the applicant" in the Tribunal was Mr McQueen-Thomson, but in the appeal "the applicant" is the employer K&S Freighters Pty Ltd (and, of course, there is similarly position reversal in respect of "the respondent"). It is convenient that I refer to Mr McQueen-Thomson as "the employee" and K&S Freighters Pty Ltd as "the employer", to avoid any confusion. Background 5 The employee was born in 1953, and has worked most of his life as a professional driver of vehicles including buses, trucks and taxis. He is left-hand dominant. The employee commenced working with the employer in 2005, although prior to then he had worked for a business which was taken over by the employer. The employee ceased working for the employer when he was dismissed on 29 July 2014 as result of a driving incident that had taken place in the preceding week. 6 At relevant times the employee worked at least 55 hours per week including overtime. The employee's work largely involved "mini bulk tank work", including the transportation of liquefied refrigerated carbon dioxide (also known as "dry ice"). 7 The employee generally worked with 4-tonne tankers but sometimes also worked with 8-tonne tankers. In the ordinary course the product on the tanker would be unloaded via a hose and pumped into a vessel at the delivery points. Relevantly, hoses used for unloading would be manually connected by the employee either at chest height or shoulder height, depending on the vessels at the delivery point. 8 The employee indicated that the hoses were heavy and that lifting them involved a deal of physical strain. A typical vessel at a delivery point could take between approximately 20 and 25 minutes to fill, and there would be up to four vessels at some delivery points. Once the vessels were filled, the hose would be disconnected and retracted. The employee frequently made up to eight metropolitan deliveries and an additional four country deliveries per day. 9 On 17 December 2012, the employee suffered an injury to his right shoulder. At the time of the injury, the employee was assisting a forklift operator offload a container containing approximately 300kg of product. Because of wet and slippery conditions the employee lost his footing while standing on the side of his truck, and fell onto concrete. The employee continued working and completed his deliveries for the day. At the end of the day, the employee attended at the company doctor, who advised the employee to take several days off work, which the employee did. 10 The employee returned to work throughout December 2012, January 2013 and February 2013, but the pain in his right shoulder persisted. The employee attended his general practitioner at a clinic at Coolaroo in Victoria. The general practitioner recommended that the employee undergo an ultrasound, and the employee did so on 27 February 2013. 11 The employee was subsequently referred to Dr Anita Boecksteiner, an orthopaedic surgeon, who advised the employee that he required surgery for a torn rotator cuff in the right shoulder. At about this time, the employee lodged a claim for compensation from the employer for the injury to his right shoulder. The employee underwent shoulder surgery on 2 May 2013. 12 The employee returned to work on light duties in early July 2013, but was still in pain. At the suggestion of his surgeon, the employee attempted full time driving duties. The employee at first drove trucks making refrigerated carbon dioxide deliveries, but was later put back on mini bulk tanker duties. The employee said that he found the hoses heavy to lift and would feel pain in his right shoulder. As a result, the employee said that he would rely mainly on his left shoulder to take the weight of the hoses and to do most of the lifting and dragging involved. The employee said that he previously had used both arms to perform these actions. 13 In May 2014, the employee developed pain in his left shoulder which he described as a "sharp tooth-ache like pain" while pulling himself into the cabin of a truck. The employee said that the pain would stay for a couple of minutes and then ease. The pain would occur when the employee used his left shoulder for lifting or when the employee was getting into the cabin of a truck. The employee reported the pain to his work in the week of 26 May 2014. The employee said that he was unclear about how to report his left shoulder injury because there was no specific event that had brought on the pain. 14 The employee lodged a claim for compensation in respect of his left shoulder on 5 June 2014. The employer denied the claim on 30 June 2014. By statement dated 26 June 2015 the employee sought review of the employer's decision in the Tribunal. medical evidence BEFORE THE TRIBUNAL 15 Numerous medical practitioners gave evidence before the Tribunal. 16 Dr Mui Kak Lim was the employee's general practitioner who worked at the Coolaroo clinic. Dr Lim gave evidence that his notes recorded a consultation with the employee on 29 June 2010, in which he noted that the employee had poor range of abduction in his supraspinatus and made a differential diagnosis of a rotator cuff injury. Dr Lim referred the employee for imaging, which revealed a full thickness tear in the supraspinatus. On 17 July 2010, Dr Lim referred the employee to an orthopaedic surgeon. 17 Dr Slesenger is a specialist occupational physician who was consulted by the employee from 2009. Dr Slesenger prepared a report on 13 December 2015 at the request of the employee's legal representative in which Dr Slesenger stated that the employee had sustained a left shoulder supraspinatus tear and acromioclavicular joint arthritis. Dr Slesenger also states that there was evidence of adhesive capsulitis. Dr Slesenger also reported on the condition of the employee's right shoulder, concluding that the employee had osteoarthritis at the acromioclavicular joint, a rotator cuff tear and bursitis and had responded reasonably well to surgical intervention. Dr Slesenger considered that the employee's left shoulder impairment dated back to 2006, and that the activities of 2012 aggravated this pre-existing left shoulder impairment. Dr Slesenger also opined that the employee's right shoulder impairment was secondary to the injury in December 2012, which in turn further aggravated his pre-existing left shoulder impairment. 18 Dr Michael Khan is an orthopaedic surgeon who examined the employee on 15 April 2015, and made reports dated 4 June 2015 and 1 December 2015. Dr Khan stated that the employee's left shoulder movement was limited at the time of the examination and also noted that the employee continued to experience symptoms in his right shoulder, despite the surgery. Dr Khan's opinion was that the employee had a left shoulder condition that was contributed to by his employment with the employer. Dr Khan noted pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint which gradually flared up when the employee returned to work after the surgery to his right shoulder as a result of mainly using his left shoulder in work activities. In his second report, after reviewing reports from Dr Powell and x-rays from 2010, Dr Khan's opinion was that the employee had pre-existing degenerative arthritis and a large bone spur which were further aggravated following the surgery to his right shoulder as a result of the employee's work with the employer. 19 Dr Gerard Powell is also an orthopaedic surgeon who examined the employee at the request of the employer on 27 April 2015 and made reports dated 27 April 2015 and 6 July 2015. Dr Powell was similarly of the view that the employee's employment with the employer played a significant role in the development of the pathologies in both shoulder conditions, especially because of the repetitive overhead use of the employee's arms during his work. Dr Powell further considered that the mechanism of injury was consistent with his conclusion of a full thickness tear of the supraspinatus being work related. Dr Powell additionally noted that there was no pre-existing history of symptoms relating to the left or right shoulders, other than a "niggle" of pain not requiring specific treatment. The decision of the tribunal 20 Before the Tribunal, the employee argued that the employer should be required to determine the employee's specific entitlements to compensation. The employer maintained that the employee was not entitled to compensation because of the operation s 7(7) of the SRC Act, which essentially precludes compensation in the event that an employee makes a wilful and false representation in relation to a disease suffered by an employee or an aggravation of such a disease. 21 In the Tribunal the employee gave sworn evidence, and medical evidence was given on his behalf. The employer called only medical evidence. 22 The Tribunal examined relevant legislative provisions and observed: 68. I should say at the outset that I am satisfied, on the balance of probabilities that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment. 69. As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness. 70. There are, however, a number of ways of characterising this condition within the terms of the Act. It could be characterised as an injury which is an injury (other than a disease). It could also be characterised as an injury which is a disease. If a disease it could be an ailment or an aggravation of an ailment. 71. However, even if the Applicant's left shoulder condition would otherwise be compensable under the Act on whatever basis, it could still fail to be compensable if the provision in section 7 (7) of the Act applies so as to exclude him. 23 The Tribunal noted that the employee had referred to two specific incidents of sharp pain occurring in May 2014, but also had regard to the employee's evidence that he was unclear as to how to report his injury because he could not pinpoint a specific event which precipitated it such as a fall or an accident in the ordinary sense (at [75]). The Tribunal was not satisfied that the incidents of May 2014 were occasions of an injury simpliciter. 24 The Tribunal relied in particular on the evidence of Mr Khan, whom the Tribunal described as an orthopaedic surgeon of great experience and ability, and said: 83. I accordingly find on the basis of Mr Khan's evidence that in May 2014 the applicant had pre-existing degenerative changes in the left acromio-clavicular joint and glenohumeral joint. These flared up when he eventually returned to work following right shoulder surgery. This is in accord also with the account given by the Applicant in his evidence. 84. As has been noted, Mr Khan is of the view that the Applicant has developed severe impingement of the supraspinatus tendon with a tear and a flare-up of degenerative tendinopathy in the supraspinatus, infraspinatus and the biceps tendons as well as flare-up of pre-existing asymptomatic acromio-clavicular joint degeneration. 25 At [88] the Tribunal found: 88. The conditions described by the medical witnesses, in my view, satisfy the definition of an injury as a disease and, on this basis, the Applicant suffered either an ailment or an aggravation of an ailment which, on whoever basis, is compensable if the provision in section 7 (7) of the act does not exclude his claim. 26 The Tribunal went on to consider the provisions relating to aggravation of the employee's ailment, and found that there was some degree of ambiguity in the medical evidence. The Tribunal member found at [94]-[95] that on one analysis, the left shoulder condition would qualify as an ailment arising out of or in the course of employment, being a physical ailment defect or disorder (whether of sudden or gradual development); however, on another analysis, the evidence supported a view that the employee suffered an aggravation of an ailment, namely by way of an acceleration or recurrence of a pre-existing condition in the left shoulder also arising out of or in the course of his employment. Notwithstanding this ambiguity, the Tribunal was satisfied that the medical evidence supported a finding that the employee's left shoulder condition was compensable as a disease under the SRC Act. The Tribunal stated: 97. The disease I have identified has led to the Applicant's incapacity, in that he cannot do his usual work, leaving aside the question of his later dismissal. I accept his evidence that he cannot drive trucks, which has been almost his lifelong pursuit. 98. For these reasons, the Tribunal concludes there is an injury within the meaning of the Act causing incapacity. The fact that this left shoulder condition arose out of or in the course of his employment, either as an ailment or as an aggravation of an ailment, seems plain beyond doubt on the evidence. 99. Reference need only be made to the nature of the Applicant's duties in unloading product from tankers visa hose. The hoses were heavy to lift and imposed a deal of physical strain on the Applicant. I expect the strain in lifting a heavy hose and placing it into position would be considerable. The Applicant could be doing this for as many as 20 or more deliveries a day. He would be using both hands and both shoulders before injuring his right shoulder and undergoing surgery. 27 The Tribunal was also satisfied that the contribution of the employee's work to his left shoulder condition was significant: that is, substantially more than material. The Tribunal observed: 105. The medical evidence in the case is, in my view plainly to this effect. Dr Slesenger is specific in saying that the Applicant's employment with the Respondent was a significant contributory factor to his left shoulder impairment. Dr Powell says that the Applicant's employment with the Respondent has played a significant roles in the development of the pathologies in both his shoulder conditions. 106. There is not, in my view any evidence in the case which would cause me to doubt that the degree of contribution was significant. 28 As the employee suffered a disease, s 7(7) of the SRC Act was potentially relevant. The employer's argument in this respect before the Tribunal was that the employee had falsely circled "No" to question 13 on his claim form dated 5 June 2014, which was a question as to whether the employee had ever experienced similar symptoms, injury or illness. 29 The employee conceded in evidence that he had provided an incorrect response to question 13 on his claim, because he had developed left shoulder pathology and had previously had investigations which revealed a full thickness tear of the supraspinatus. However, the employee gave evidence that when completing this part of the claim form he received assistance from an employee of the employer concerned with injury management, and that in in completing his claim form he had in mind his right shoulder injury which he had been discussing with that employee. The Tribunal noted that the employer did not call the employee. 30 In relation to s 7(7) the Tribunal observed: 116. The consequences of finding a case made out under section 7 (7) are serious indeed. Bearing that in mind, I consider a case should not be held to be made out under the section unless it is clearly established (Sullivan v Civil Aviation Safety Authority (2014) 226 FCR 555). 31 The Tribunal accepted the employee's contentions in this regard, finding: 117. The Applicant has an explanation for the answer he gave which, if accepted, is consistent with carelessness or confusion on his part. It does not show the making of a wilful and false representation. 118. I observed the Applicant carefully when giving his evidence and I am not satisfied I should reject his explanation as untrue, or find that he is lying. In my view, the Applicant was telling the truth, when he said he was confused when he filled out his claim form. 119. It is clear that the expression in section 7(7) is wilful and false, not wilful or false (Re Wilson and Comcare [1996] AATA 862 at [103]). The Applicant's answer No to question 13 is wrong, as conceded by him, but I am not satisfied that by merely being wrong, because of confusion, his answer was wilfully false. 120. I am satisfied with the explanation given by the Applicant, which I accept, and I reject the Respondent's submission that his answer was wilfully false. 121. I consider also that the Applicant's confusion is evident by him not proceeding to question 16 but answering questions 14 and 15, which he answered truthfully. I am unable to see that the Applicant would stand to gain anything out of a deliberately false answer to question 13. There is no the [sic] motivation for him to make a wilfully false answer. 32 Materially for the present application however the Tribunal also found as follows: 122. In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness. 33 In conclusion, the Tribunal was satisfied that the employee's left shoulder condition was compensable under the SRC Act, set aside the decision under review, and substituted a decision that the employee was entitled to compensation. The matter was remitted to the employer for calculation of that compensation. The legislative framework 34 It was common ground that s 14 of the SRC Act establishes liability on the part of the employer to pay compensation in accordance with that legislation in respect of an injury suffered by an employee if the injury resulted in death, incapacity for work, or impairment. 35 Section 4 of the SRC Act defines "incapacity for work" as follows: (9) A reference in this Act to an incapacity for work is a reference to an incapacity suffered by an employee as a result of an injury, being: (a) an incapacity to engage in any work; or (b) an incapacity to engage in work at the same level at which he or she was engaged by the Commonwealth or a licensed corporation in that work or any other work immediately before the injury happened. 36 Section 5A of the SRC Act defined "injury" for the purposes of the compensation under the SRC Act: (1) In this Act: injury means: (a) a disease suffered by an employee; or (b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or (c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee's employment. … 37 Section 5B defines "disease", which is one subset of potentially compensable injuries under the SRC Act, as follows: (1) In this Act: disease means: (a) an ailment suffered by an employee; or (b) an aggravation or such an ailment; that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee. (2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account: (a) the duration of the employment; (b) the nature of, and particular tasks involved in, the employment; (c) any predisposition of the employee to the ailment or aggravation (d) any activities of the employee not related to the employment; (e) any other matters affecting the employee's health. This subsection does not limit the matter that may be taken into account. (3) In this Act: significant degree means a degree that is substantially more than material. Further, "ailment" is defined in s 4 of the SRC Act as meaning "… any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). 38 Section 7 of the SRC Act contains various provisions concerning particular considerations for 'diseases'. Relevantly for present purposes s 7(7) provides: A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease. Consideration Ground of appeal 1 39 The first ground of appeal was that: 1. The Tribunal erred in law by concluding Mr McQueen-Thomson suffered incapacity for work as a result of a left shoulder condition(s), without considering whether his incapacity for work was the result of 'an injury', within the meaning of ss5A (1), 5B (1) and 14 (1) of the SRC Act, as distinct from his non-employment related pre-existing left shoulder ailment that did not constitute such 'an injury'. 40 In summary the employer submitted: There was no basis for the Tribunal's conclusion at [68] that the employee had suffered an injury to his left shoulder which had resulted in his incapacity for work or impairment The Tribunal erred at [69] in stating that the existence of an injury and subsequent incapacity was not in issue Section 14 of the SRC Act refers to an injury resulting in death, incapacity for work or impairment. Only incapacity is relevant in this case. The only comments in the Tribunal's decision concerning incapacity were at [30], [68], [69] and [97]. The Tribunal's finding at [97] that the employee cannot drive trucks is the only finding in respect of incapacity. While the employer accepts that the employee has an injury, and further that he suffers an incapacity for work, the Tribunal did not squarely engage with the question the Tribunal needed to ask itself under s 14 of the SRC Act read in light of s 4(9) of the SRC Act, namely whether the injury caused the incapacity. It was critical that the Tribunal find that link in light of the evidence of a strong underlying pre-existing problem with the left shoulder, and evidence that the employee continued to work full-time for two months after the workplace injury of May 2014. 41 The employee submitted that: In the Tribunal the key issue was whether the employee's condition was an injury simpliciter, a disease or the aggravation of a disease. In the Tribunal the employer argued that the condition of the employee should be regarded as a disease, and therefore he was precluded from claiming compensation by the operation of s 7(7). The employer did not argue any particular fact or circumstance relating to incapacity for work The connection between the injury to the employee and the employee's incapacity was not contested by the employer in the Tribunal. It was for this reason that the Tribunal observed that the issue was not in contention. At the end of the discussion concerning disease and in circumstances where the Tribunal rejected the submission that there was an injury other than a disease, the Tribunal made explicit findings at [97] that the employee's injury was not merely an aggravation of a prior symptomatic ailment, but the result of an employment contribution to the development and the worsening of an ailment. These findings were referable to the precise language of the SRC Act. 42 The employee relies on authorities including Ilsley v Wattly Australia Pty Ltd [1997] FCA 427. 43 In my view the Tribunal did properly engage with the issue required for determination under s 14 SRC Act, namely whether the employee's incapacity "resulted from" the relevant injury. I have formed this view for the following reasons. 44 First, and contrary to the claims of the employer, I am not satisfied that there was error in the statement of the Tribunal at [69] that "the question of the existence of an injury and subsequent incapacity was not in issue". Certainly at the hearing of the appeal Counsel for the employer accepted that the employee had an injury within the meaning of the SRC Act, and further that the employee suffered an incapacity within the meaning of the SRC Act (because he could not drive trucks): transcript page 7 lines 40-46. The Tribunal's use of the word "subsequent" is correct in a temporal sense – the Tribunal found on the material before it that the injury predated the incapacity. While the employer alleges an improper conclusion reached by the Tribunal in respect of the causal nexus between the injury and the incapacity, this is not strictly evidenced by comments of the Tribunal at [69]. 45 Second, and as alleged by the employee in the appeal, the primary contentions of the parties in the Tribunal concerned whether the employee had suffered an injury simpliciter to his left shoulder or whether he suffered from a disease, and whether s 7(7) operated to preclude the employee claiming compensation under the SRC Act. So, for example, I note at paragraph [3] of his written submissions dated 25 February 2016 the employee identified issues for determination as: (a) Whether the Applicant suffered "an injury (other than a disease)" arising out of his employment when, on or about a day in mid to late May 2014, he suffered the sharp pain while holding the gas hose with his left hand at or above shoulder height? (b) Whether employment, over time but particularly in 2014, contributed to the aggravation of the left shoulder ailment to a significant degree? (c) Whether those injuries resulted in incapacity for employment at the employee's normal level. (d) If the finding is that the injury by reason of "aggravation of an ailment" to the exclusion of "injury (other than as disease)" then the further question arises on the Respondent's submission, whether the Applicant made any relevant representation that was both wilfully and false, for the purposes of employment, that he did not previously suffer from a disease, aggravated by the employment in 2014? 46 Further, in written submissions dated 14 March 2016 the employer identified issues for determination as follows: 2. The Respondent notes and respectfully repeats those issues for determination specified by the Applicant in his Submissions at [3(a)] to [3(d)]. 3. The Respondent accepts that if the Tribunal concludes that the Applicant has suffered an injury simpliciter to his left shoulder (and not 'a disease', or 'the aggravation of a disease') then the only relevant inquiry will be as to whether that injury resulted in incapacity for work or impairment. 4. If the Tribunal concludes, as the Respondent submits it should, that the Applicant has suffered an ailment and therefore a disease (and not an injury simpliciter), the Tribunal must determine whether that disease was suffered in circumstances that attract the operation of s 7 (7) of the SRCA. 5. In such circumstances, only if it concludes that the provisions of s 7 (7) were not attracted will it be necessary to further determine if the disease resulted in incapacity for work or impairment so as to satisfy the compensable requirement in s 14. 6. As Counsel for the Applicant noted in opening the Applicant's case the above issues, depending upon the facts found, potentially make important the question of whether there has or not been suffered an "injury (other than a disease)". 7. However, significantly for the resolution of the issues in the Respondent's submission, the Applicant's submissions now accept that prior to the relevant period of employment there certainly existed an ailment that became aggravated by subsequent employment events. 8. Thus the condition for which s 14 liability is sought might be (if any): (a) an "injury (other than a disease)" [often referred to as 'a frank injury' or an 'injury simpliciter'] (b) a 'disease' or the 'aggravation' of a disease (c) a combination of (a) and (b) (Footnotes omitted.) 47 Paragraphs [9]-[21] of the employer's submissions related to the nature of the employee's injury. Paragraphs [22]-[36] related to the operation of s 7(7) SRC Act. 48 The manner in which the contentions of the parties focussed on these issues explains to a significant degree the Tribunal's focus on the proper characterisation of the employee's injury. Examining the Tribunal's decision, the Tribunal set out, at [6]-[30], relevant background facts including events relating to the development of the shoulder pain experienced by the employee and the employee's claim for compensation. At [31]-[57] the Tribunal explained, in detail, medical evidence before it. At [72]-[98] the Tribunal considered the nature of the employee's injury, and at [110]-[122] the Tribunal examined the application of s 7(7) SRC Act. This analysis was responsive to the manner in which it appears the parties conducted the case in the Tribunal. 49 Section 14 SRC Act required the Tribunal to determine whether there was a causal link between the injury and the incapacity: Ilsley. This was irrespective of the parties' focus on other issues in the conduct of the proceedings in the Tribunal. However, it is apparent that, in determining the application and considering the arguments before it, the Tribunal at all times had in mind the question whether there was a causal nexus between the injury and the incapacity, as required by s 14 SRC Act. The employer refers to paragraphs [30], [68], [69] and [97] of the Tribunal's decision, and it is useful to revisit them: 30. The Applicant says he kept working on full duties with the Respondent until he was dismissed at the end of July 2014. He says he is still in pain and has not worked since that time because he cannot drive trucks. This is due to his left shoulder being too painful. He does, however, still drive a car. On occasion he also suffers pain in his right shoulder. … 68. I should say at the outset that I am satisfied, on the balance of probabilities, that the Applicant has suffered an injury to his left shoulder and that this has resulted in his incapacity for work or impairment. 69. As I see the matter, the question of the existence of an injury and subsequent incapacity was not in issue. It was not suggested that the Applicant was fabricating his evidence. Nor was it suggested that the Applicant was exaggerating or overstating the nature of his injury. Indeed, the Applicant was described as stoical by one witness. … 97. The disease I have identified has led to the Applicant's incapacity, in that he cannot do his usual work, leaving aside the question of his later dismissal. I accept his evidence that he cannot drive trucks, which has been almost his lifelong employment pursuit. 50 While the Tribunal referred to the statutory language of causation in these paragraphs, a fair examination of the Tribunal's broader reasoning demonstrates that the Tribunal had regard to both lay and medical evidence supporting a finding that the employee's inability to drive trucks (that is, his undisputed incapacity) was caused by an ailment aggravated by his employment. I note for example the following observations of the Tribunal referable to that evidence: 79. I am not reasonably satisfied, therefore, that either the late May or the early May incident was the occasion of an injury simpliciter. The evidence seems to suggest a continuing issue in the left shoulder rather than a specific injurious hurt event. 80. Both incidents in May 2014 occur against a background of a number of other events including right shoulder surgery some 12 months before. Following this surgery the Applicant returned to work but continued to experience pain in his right shoulder, especially when lifting hoses. As a result, the Applicant said he was using his left shoulder to do the bulk of the lifting and dragging. The Applicant had previously done this using both arms. Using his left arm involved, of course, left shoulder movement. 81. The Applicant was using his left arm to compensate for a reduced ability to use his right arm. This was due to the right shoulder pain he was experiencing following the shoulder surgery and return to work. 82. This overuse, as I would describe it, in turn caused a flare up, to use Mr Khan's expression, of a pre-existing condition in the Applicant's left shoulder. This was the evidence of Mr Khan. Mr Khan impressed the Tribunal as an orthopaedic surgeon of great experience and ability, whose evidence I should accept. 83. I accordingly find on the basis of Mr Khan's evidence that in May 2014 the Applicant had pre-existing degenerative changes in the left acromio-Clavicular joint and glenohumeral joint. These flared up when he eventually returned to work following right shoulder surgery. This is in accord also with the account given by the Applicant in his evidence. (Emphasis added.) 51 Later, the Tribunal observed: 87. I am satisfied that, on the evidence, by the end of May 2014 the Applicant had a left shoulder condition best described in the terms set out by Mr Khan. I further conclude that this condition was affected by several incidents occurring in that month. It had, however, already been affected by the Applicant's overuse of his left arm, making up for loss of use in his right arm after shoulder surgery the year before. 88. The conditions described by the medical witnesses, in my view, satisfy the definition of an injury as a disease and, on this basis, the Applicant suffered either an ailment or an aggravation of an ailment which, on whichever basis, is compensable if the provision in section 7 (7) of the Act does not exclude his claim. (Emphasis added.) 52 The conclusory observation of the Tribunal at [97] concerning the employee's incapacity must be read against the background of the Tribunal's acceptance of the evidence of aggravation of his underlying disease by the employment. It would be artificial to read the Tribunal's reasons in any way other than that the Tribunal accepted the employee's arguments and evidence in support of the causal nexus between his injury and the incapacity. In light of those arguments and evidence, the Tribunal clearly concluded that the employee suffered incapacity for work as a result of a left shoulder condition. 53 The interpretation of the Tribunal's reasons suggested by the employer in this appeal requires an eye finely attuned to the perception of error, contrary to the well-settled approach explained in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [30]-[31]. Ground of appeal 5 54 The fifth ground of appeal was that: 5. The Tribunal erred in law by incorrectly interpreting the phrase 'purposes connected with' in s 7 (7) of the SRC Act in finding that a representation made on a worker's compensation claim form submitted to his employer was not a representation 'for purposes connected with' his employment. 55 In respect of this ground of appeal the employer relied on Commonwealth of Australia v Christoffelsz (1988) 18 FCR 415 and Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (Cth) (1981) 147 CLR 297 at 304-305. In particular, at 420-421 of Christoffelsz, Neaves J said: The Tribunal concluded that there was an ambiguity in the meaning of the relevant words in s 29(3). It considered whether there was any extrinsic aid to construction which would assist in resolving the perceived ambiguity but found none. The Tribunal's reasons for decision then proceeded: "Thus it is proper to interpret s 29(3) of the Act in accordance with its context in an Act to provide compensation 'by reason of injury or disease ...' On that interpretation s 29(3) has no application to a false statement made in circumstances unrelated to the liability of the Commonwealth to pay compensation. In my view the circumstances in which the false statement was made were circumstances related to admission to the superannuation fund and to permanency, although quite what permanency means was not made clear. They were not circumstances related to the liability of the Commonwealth to pay the applicant [respondent] compensation under the Act. I so find; thus s 29(3) of the Act is not relevant." In my respectful opinion, the Tribunal's approach to the question of construction of s 29(3) of the Act which arose for its consideration cannot be accepted…. 56 His Honour continued (at 422): In my opinion, there is no warrant for reading the relevant language of s 29(3) in the restricted sense adopted by the Tribunal. What the provision requires is that the wilful and false representation be made "for purposes connected with his [the employee's] employment or proposed employment by the Commonwealth". It is sufficient that the representation be made "at any time". The words of the provision are ordinary English words and, prima facie, are to be given their ordinary meaning. So read, the meaning of the provision is clear and unambiguous. To require that the representation be made in circumstances related to the liability of the Commonwealth to pay to the employee compensation under the Act is to do violence to the language of the provision in circumstances where there is nothing in the context to require such a departure from the intention of the legislature as disclosed by the ordinary meaning of the words used. To give effect to the unqualified words of the provision does not result in an irrational result calling for some limitation to be placed upon them. Nor does it result in any disharmony between s 29(3) and any other provision of the statute. 57 The employer also relied on observations of the Full Court in Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280 relating to the phrase "connected with", wherein the Court noted the ordinary meaning of the phrase to concern a relation between things, one of which is bound up with or involved in another. 58 In summary, the employer submitted: There is a clear recognition on the part of the legislature that the connection between the cause of a disease and the disease itself can be very difficult to determine, such that Parliament has enacted provisions to assist employees and employers to determine whether or not there is a necessary link to found compensation; The flipside of this recognition is that s 7(7) encourages candour or honesty or full disclosure on the part of an employee in relation to any prior incidents they have had of a disease so that the difficult task of establishing whether or not there is a sufficient link between employment and the contraction of a disease or sufficient link between the disease and incapacity can be properly determined; Section 7 is not to be read in a narrow way, and certainly not in such a way as to carve out from its reach representations made in the course of a claim form which is submitted for the sole purpose of determining whether compensation is paid and, if so, how much The Tribunal erred at [122] where it stated: I am not satisfied that, in answering no to question 13, the applicant was making any representation for purposes connected with his employment. As I see it, his purpose in reality had nothing to do with his employment except in the necessary factual sense but were connected with his injury or illness. The employee made a false statement on a form generated by the employer for the purposes of the employer deciding what, if any, compensation should be paid and what, if any, rehabilitation should be undertaken. 59 It is useful at this point to repeat the relevant observations of the Tribunal: 117. The Applicant has an explanation for the answer he gave which, if accepted, is consistent with carelessness or confusion on his part. It does not show the making of a wilful and false representation. 118. I observed the Applicant carefully when giving his evidence and I am not satisfied I should reject his explanation as untrue, or find that he is lying. In my view, the Applicant was telling the truth, when he said he was confused when he filled out his claim form. 119. It is clear that the expression in section 7 (7) is wilful and false, nor wilful or false (Re Wilson and Comcare [1996] AATA 862 at [103]). The Applicant's answer No to question13 is wrong, as conceded by him, but I am not satisfied that by merely being wrong, because of confusion, his answer was wilfully false. 120. I am satisfied with the explanation given by the applicant, which I accept, and I reject the Respondent's submission that his answer was wilfully false. 121. I consider also that the Applicant's confusion is evident by him not proceeding to question 16 but answering questions 14 and 15, which he answered truthfully. I am unable to see that the applicant would stand to gain anything out of a deliberately false answer to question 13. There is no the [sic] motivation for him to make a wilfully false answer. 122. In any event, I am not satisfied that, in answering No to question 13, the Applicant was making any representation for purposes connected with his employment. As I see it, his purposes in reality had nothing to do with his employment, except in a necessary factual sense, but were connected with his injury or illness. (Emphasis in original.) 60 The Tribunal's interpretation of the words "wilful" and "false" is not criticised by the employer. In light of that interpretation, at [117]-[120] the Tribunal made a factual finding that the employee had not made a wilful and false representation in circling the word "No" in answer to question 13, but rather had done so because of his confusion. At [121] the Tribunal noted that this confusion on the part of the employee was exemplified by the employee's answers to questions 14 and 15. The factual finding of the Tribunal in this respect is not appellable, because it does not involve an error of law. 61 Ground of appeal 5 relates to the reasoning of the Tribunal at paragraph [122]. In my view the criticism by the employer of paragraph [122] is understandable. It is difficult to see how the completion of the relevant form by the employee would not be for purposes connected with his employment, as the Tribunal observed, given that the relevant form concerned an application by the employee for compensation from the employer for an incapacity resulting from aggravation of an ailment in the workplace. However: Quite properly, the Tribunal focussed on the issue of wilfulness and falsity of the employee's conduct in answering "No" to question 13. This approach was entirely consistent with the terms of s 7(7) SRC Act, which primarily focuses on the question whether the employee has made a "wilful and false representation". The Tribunal's findings of absence of wilfulness and falsity at [117]-[121] were referable to the state of mind of the employee in answering question 13, not the purpose connected with the making of the relevant representation. This approach is consistent with the natural and ordinary meaning of the words "wilful" and "false". It is evident from the reasoning of the Tribunal that its comments in [122] concerning purpose were an addendum to its primary findings concerning the absence of wilfulness and falsity on the part of the employee in completing the form. With respect, the comments of the Tribunal at [122] were unnecessary to its decision, appeared to be by way of afterthought, and were obiter: see, for example, Gaffey v Comcare [2015] FCA 1024; (2015) 239 FCR 76 at [67], [79]; Crick & Bennett [2018] FamCAFC 68 at [67], [74]. I am not satisfied that any misconstruction by the Tribunal of "purposes of employment" within the meaning of s 7(7) of the SRC Act infected its findings concerning the absence of wilfulness and falsity in the employee's conduct. Indeed if the comments of the Tribunal in paragraph [122] were omitted, its factual findings in [117]-[121] would remain unaffected. The employer has indicated at [32] of its written submissions that a finding of error on the part of the Tribunal in respect of its interpretation of "purposes of employment" does not, of itself, give cause to remit that matter to the Tribunal. 62 Section 7(7) of the SRC Act is triggered in circumstances where the employee has made a wilful and false representation, and where that representation is made for purposes connected with his or her employment. As the employee has correctly submitted, any postscript error of law made by the Tribunal in interpreting the meaning of "purposes connected" with employment would not substantively affect the Tribunal's finding that s 7(7) was not applicable because of the absence of a wilful and false representation by the employee. In the circumstances this ground of appeal has no merit. Conclusion 63 The appropriate order is to dismiss the application with costs. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 11 October 2018	10,758
federal_court_of_australia:fca/single/2012/2012fca1191	decision	commonwealth	federal_court_of_australia	text/html	2012-10-22 00:00:00	Australian Communications and Media Authority v Bytecard Pty Ltd [2012] FCA 1191	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2012/2012fca1191	2024-09-13T22:53:22.316077+10:00	FEDERAL COURT OF AUSTRALIA Australian Communications and Media Authority v Bytecard Pty Ltd [2012] FCA 1191 Citation: Australian Communications and Media Authority v Bytecard Pty Ltd [2012] FCA 1191 Parties: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY v BYTECARD PTY LTD (ACN 052 315 812) and BRIAN ANDREW MORRIS File number: ACD 67 of 2011 Judge: FOSTER J Date of ruling: 22 October 2012 Legislation: Evidence Act 1995 (Cth), s 190, s 191, Pts 2.2, 2.3, 3.2–3.8 Date of hearing: 22 October 2012 Place: Canberra Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 8 Counsel for the Applicant: Mr AP Berger Solicitor for the Applicant: Australian Government Solicitor Solicitor for the Respondents: The Respondents did not appear IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 67 of 2011 BETWEEN: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY Applicant AND: BYTECARD PTY LTD (ACN 052 315 812) First Respondent BRIAN ANDREW MORRIS Second Respondent JUDGE: FOSTER J DATE OF ORDER: 22 OCTOBER 2012 WHERE MADE: CANBERRA THE COURT ORDERS THAT: 1. The Statement of Agreed Facts tendered before the Court this day (22 October 2012), together with all of the documents referred to in that Statement, be admitted into evidence and marked as Exhibit A at the final hearing of the proceeding. 2. The bundle of documents which was Exhibit A before Nicholas J on 26 September 2012 be admitted into evidence and marked as Exhibit B at the final hearing of the proceeding. 3. Pursuant to s 190(3) of the Evidence Act 1995 (Cth), the following provisions of the Evidence Act, namely, Pts 2.2, 2.3 and 3.2 to 3.8, do not apply to Exhibit A. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY GENERAL DIVISION ACD 67 of 2011 BETWEEN: AUSTRALIAN COMMUNICATIONS AND MEDIA AUTHORITY Applicant AND: BYTECARD PTY LTD (ACN 052 315 812) First Respondent BRIAN ANDREW MORRIS Second Respondent JUDGE: FOSTER J DATE: 22 OCTOBER 2012 PLACE: CANBERRA REASONS FOR RULING 1 On 26 September 2012, this matter was listed before the Court upon the application of the applicant in order to deal with a problem that had arisen concerning a Statement of Agreed Facts which, save for one matter, had been agreed between the parties but had by that time not been signed. The matter came before Nicholas J who dealt with the problem to which I have referred and also reprogrammed certain outstanding interlocutory steps with a view to retaining the hearing date for the matter which had previously been fixed for today. 2 The relevant order which his Honour made on 26 September 2012 was in the following terms: THE COURT ORDERS THAT: 1. Subject to any other order that may be made by Foster J, the hearing of this proceeding shall take place upon the basis of the document entitled "Statement of Agreed Facts" dated 26 September 2012 being the document forming part of Exhibit A. 3 Exhibit A before his Honour comprised a bundle of documents and a proposed Statement of Agreed Facts. 4 The evidence tendered before his Honour established beyond argument that, but for the one matter to which I have referred at [1] above, the respondents had, through their solicitors, agreed that the facts stated in the Statement of Agreed Facts then in circulation were agreed for the purposes of this proceeding. Notwithstanding that agreement, neither the respondents nor their legal representatives have signed the Statement of Agreed Facts. 5 There has been tendered before me this morning a folder marked "Statement of Agreed Facts". Included in that folder is the Statement of Agreed Facts which formed part of Exhibit A before Nicholas J on 26 September 2012 save that the one matter which was not by that date agreed has been excised from that Statement of Agreed Facts. Also included within Exhibit A as annexures to the Statement of Agreed Facts are all of the documents referred to in that Statement. 6 In the circumstances which I have outlined, I propose to admit at this final hearing the Statement of Agreed Facts tendered before me today (22 October 2012) together with all of the documents referred to in that Statement. I will mark the folder which contains those documents as Exhibit A. 7 To the extent that it may be necessary to do so, I rely upon s 191(1), (2) and (3)(b) of the Evidence Act 1995 (Cth), although I do not confine the basis upon which I have admitted Exhibit A to that section. Given that there is no real dispute as to the facts and matters proven by the documents contained in Exhibit A, I also propose to make an order pursuant to s 190(3) of the Evidence Act to the effect that Pts 2.2, 2.3 and 3.2 to 3.8 of the Evidence Act do not apply to Exhibit A. I note that the majority of the facts dealt with in Exhibit A have been admitted in the respondents' Defence, in any event. 8 The bundle of documents which was Exhibit A before Nicholas J on 26 September 2012 will become Exhibit B. I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 30 October 2012	1,367
federal_court_of_australia:fca/single/2023/2023fca1683	decision	commonwealth	federal_court_of_australia	text/html	2023-12-14 00:00:00	Deputy Commissioner of Taxation v Raptis (No 2) [2023] FCA 1683	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2023/2023fca1683	2024-09-13T22:53:22.435831+10:00	FEDERAL COURT OF AUSTRALIA Deputy Commissioner of Taxation v Raptis (No 2) [2023] FCA 1683 File number: QUD 310 of 2021 Judgment of: LOGAN J Date of judgment: 14 December 2023 Catchwords: PRACTICE AND PROCEDURE – where parties seek variation to orders by consent – where it was submitted that one respondent was not responsive to proceedings and has not provided consent to the variation (non-consenting respondent) – where applicant was earlier granted leave to make substituted service on the non-consenting respondent – whether in the circumstances a Registrar can make orders by consent consistent with r 39.11 Federal Court Rules 2011 (Cth) Held: absence of consent of all parties means registrar not empowered to make order under r 39.11 – variation a matter for a judge – order appropriate, taking into account that it was jointly provided by active parties to proceeding and that it sought to ensure that future pattern of conduct by parties in accordance with past practice conformed with court orders Legislation: Tax Administration Act 1953 (Cth) Federal Court Rules 2011 (Cth) r 39.11 Division: General Division Registry: Queensland National Practice Area: Taxation Number of paragraphs: 23 Date of hearing: 14 December 2023 Counsel for the Applicant: Mr P Looney KC Solicitor for the Applicant: K&L Gates Counsel for the Seventh Respondent: Mr D Marks KC with Ms B Mendelson Solicitor for the Seventh Respondent: Hopgood Ganim ORDERS QUD 310 of 2021 BETWEEN: DEPUTY COMMISSIONER OF TAXATION Applicant AND: JAMES RAPTIS First Respondent NORTHERNSON PTY LIMITED ACN 090 704 902 AS TRUSTEE FOR THE NORTHERNSON TRUST Second Respondent SEVINHAND COMPANY LIMITED (COMPANY NUMBER 02100771) (and others named in the Schedule) Third Respondent order made by: LOGAN J DATE OF ORDER: 14 DECEMBER 2023 THE COURT ORDERS THAT: 1. The freezing order made against the Seventh Respondent on 1 October 2021 (as set out in Annexure G of the orders of Collier J made on that date and varied by the orders of Thawley J made on 21 October 2021) is varied with effect from 14 December 2023 to read as follows: EXCEPTIONS TO THIS ORDER 10. This order does not prohibit you from: (a) paying your reasonable legal expenses; (b) dealing with or disposing of any of your assets in the ordinary course and proper course of your business, including paying business expenses bona fide and property incurred; (c) dealing with or disposing of any of the properties (or any part thereof) in a manner expressly agreed to by the applicant in writing; and (d) in relation to matters not falling within (a) to (c), dealing with or disposing of any of your assets in discharging obligations bona fide and properly incurred under a contract entered into before this order was made, provided that before doing so you give the applicant, if possible, at least two working days written notice of the particulars of the obligation. 2. The Applicant notify the Third Respondent of this order in accordance with the orders for service set out in Annexure C of the orders of 1 October 2021, plus any other methods of service known to the Applicant. 3. The costs of the hearing commenced at 11.30am AEST on 14 December 2023 be reserved. 4. There be no orders as to costs with respect to the further hearing commencing at 3.30pm AEST on 14 December 2023. 5. The parties have liberty to apply on 24 hours' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) LOGAN J: 1 On 1 October 2021, a judge of this Court, upon an ex parte application by Deputy Commissioner of Taxation (Deputy Commissioner), made what might – in a generalised way – be described as freezing orders in respect of Mr James Raptis and various other respondents. Those orders are, to say the least, detailed. 2 One of the respondents, the third respondent, Sevinhand Company Limited (company number 02100771) was the subject of a requirement, under the orders made on 1 October 2021, to be given notice in ways set out in that order. Such notice was given, as attested to in an affidavit made by Mr Thomas Bradley Trotman, filed on 20 October 2021: see [9]. The third respondent has not thereafter – notwithstanding that notice – filed any notice of acting, nor has there been otherwise any involvement whatsoever by or on behalf of that company in the proceedings to date. 3 The orders as made on 1 October 2021 have been varied from time to time. Earlier this week, a further variation particularly effecting the seventh respondent, Rosea Pty Ltd (ACN 119 837 455) was promoted to a registrar for the making of what was said to be a consent order. The registrar had a particular concern as to not only a registrar's power to make that order, but indeed, whether it was in terms of r 39.11 of the Federal Court Rules 2011 (Cth), one which could actually be described at all as a consent order. 4 The apprehension was that there was no signification of consent by or on behalf of the third respondent. Hence, in terms of that rule, it could not be said that the order was promoted by consent of the parties to the proceeding. That concern was one which, upon it being drawn to my attention by the registrar, as Duty Judge, I shared. I therefore directed the proceeding be listed for hearing, as if the promoted consent were a notice of motion for the variation in terms of the proposed orders of the order of 1 October 2021, as hitherto variant. 5 For their own respective reasons, the Deputy Commissioner, as applicant, and each of the other respondents (save the third respondent) who appeared today, promoted the making of the variation. It was put deliberately on behalf of each of the parties represented that the variations were, firstly, similar to those which had commended themselves earlier in respect of conduct of the eighth respondent, Kiedis Investments Pty Ltd (ACN 062 677 365) and would not materially affect the third respondent. 6 In support of the application, an affidavit of Mr James Raptis was filed by leave in Court. Of that affidavit the Deputy Commissioner took objection to particular parts, in which reference was made to what was described in [21] of that affidavit, as a "non-binding agreement" with the Deputy Commissioner as a sequel to the original freezing orders. 7 The basis of the objection, consistent with a disposition of the Deputy Commissioner not to waive, or be seen to waive, without prejudice privilege was that the references to the "non-binding agreement", were references to without prejudice discussions, which had had a particular result also reached without prejudice. The affidavit was prepared in circumstances of some urgency, resulting from my indication that I was not prepared to make an order by consent, because I did not consider it covered by the rule mentioned, and required an application in court supported by affidavit. 8 I rather think, that whatever transgression, if any, there has been to without prejudice discussions, was not an intentional subversion by Mr Raptis or those acting for him are of any without prejudice quality. Rather it was just an endeavour to put before me for the purposes of the application, that particular conduct had occurred as a sequel to the freezing orders as varied. Insofar as there are references to non-binding agreement or agreement, I uphold the objection and regard those references as inadmissible. Nonetheless, what I act on is the revelation that there has been a course of conduct engaged in as a sequel to the freezing orders. 9 I was informed by counsel for each of the represented parties that the parties had, in effect, agreed to disagree for quite pragmatic reasons as to whether or not that conduct did or did not fall within the terms of the orders as varied to date. It is noteworthy that there has been no application by the Deputy Commissioner to move the Court for any orders grounded in an alleged transgression of the freezing orders as varied to date. 10 The characterisation of the orders that are sought by application made today is that those orders are sought out of an abundance of caution, again, informed by – and with respect, commendably – pragmatic positions taken by each of the parties – particularly, perhaps, the seventh respondent – so as to ensure that there be no question as to whether conduct is or is not within the terms of orders made to date. That stands very much to the credit of the seventh respondent, and it also stands to the credit of the Deputy Commissioner, in terms of recognising the prudence and pragmatism that attends a variation in the terms sought. 11 I am persuaded by reference to Mr Raptis' affidavit, insofar as it is admissible, that there has been, at the very least, a spirit of cooperation between respondent companies associated with Mr Raptis and the Deputy Commissioner and for that matter in turn, by the Deputy Commissioner with those companies – in an endeavour to comply with the orders. 12 It makes eminent sense to me to make the variation so as to ensure there be no question that that disposition to cooperation falls not just within the spirit but the letter of the Court's orders. 13 There is a question as to what to do in relation to the third respondent. One answer would be, given its apparent indifference after having been given notice of the proceedings, to make no order. If only out of an abundance of caution, I rather think it is prudent to require the Deputy Commissioner to give notice of the variation of the orders to the third respondent by the means prescribed in the original order of 1 October 2021 and by such further means – be they postal address or email – as may be apparent to the Deputy Commissioner from information within the Deputy Commissioner's possession. 14 I put matters that way, taking into account an ability of the Deputy Commissioner under the Tax Administration Act 1953 (Cth), for other revenue law purposes, to use for the purposes of law service information which has come to the Deputy Commissioner's attention in the ordinary course of the public administration of the tax laws of this country. 15 For these reasons, then, the orders that I make are: (1) Firstly, orders in terms of those promoted by earlier short minutes of order to which I have referred, which were promoted as consent orders, together with the requirement for notice to the third respondent just pronounced. (2) So, the orders, then, will take up the terms of the consent so-called, which includes, also, the costs reserved and liberty to apply, as well as what I have announced and was pronounced in respect of notice. [FURTHER REASONS FOR JUDGMENT AFTER THE LUNCHEON ADJOURNMENT] 16 These reasons for judgment supplement those given earlier today in respect of the making of a variation to freezing orders, as hitherto varied, originally made on 1 October 2021. Upon returning to chambers, Mr Marks of King's Counsel and Ms Mendelson of counsel, who had appeared for all respondents – save the third respondent – became aware of an exchange which had occurred yesterday as between the third respondent and, in effect, those acting on behalf of other respondents. That takes the form of an email on 13 December 2023, which makes reference to today's hearing, directed to, apparently, someone acting in the interests of the third respondent and a responsive letter from under the hand of a director of the third respondent to a Mr Vara of Lubbock Fine in London. 17 That letter makes reference to the proposed consent order and to a request made of the third respondent to agree to consent to that order. It does, however, contain a proviso as to that consent, which is subject to there being no tax or money demand from Sevinhand, and so on. Counsel for the other respondents, having indicated that there hadn't been communication from the third respondent before lunch, quite properly – upon it coming to their attention on returning to chambers that there had, in fact, been an exchange – requested that the case be relisted as a matter of urgency, so as to fulfill an ethical obligation in terms of a representation earlier made to the Court. 18 I am quite satisfied that the statement earlier made was inadvertent and, indeed, the product of the urgency which had attended the listing of the case before me. 19 The question then becomes whether there is any occasion to revisit the variation order? Neither the Deputy Commissioner nor the respondents, save the third respondent, put that there is any such occasion. In effect, there is a consensual position put, which is that the third respondent has had notice for a very long time ago of the existence of freezing orders and has chosen not to file a notice of acting. 20 Further, insofar as there may, in ways not presently apprehended, be any adverse effect in relation to the third respondent arising from the variation order made earlier today, its interests are protected to the extent that, in accordance with those orders, it will be given notice of their making by the Deputy Commissioner. And further, there is a reservation of liberty to apply, such that, in the event that the third respondent were to apprehend any adverse effect, it would be open subject to the filing of a notice of acting – to make an application for such orders as may be just, varying in ways it put in an interlocutory application, on notice to the other respondents and the Deputy Commissioner, the freezing order as varied up to and including the variation made today. 21 I fully concur with that consensual position. Indeed, quite independently from it being put to me, taking into account the terms of that exchange of correspondence – which has become Exhibit 2 – I am well satisfied that there is presently no occasion to make any variation in respect of the orders pronounced earlier today. These reasons for judgment, then, supplement those earlier given, in respect of the variation orders. 22 As to the costs of the relisting after lunch, the occasion for that listing are, again, of the proceeding was the result of an inadvertent incompleteness of instructions. That might have seen the Deputy Commissioner entitled to an order, however modest that might be, in respect of the costs of the counsel and solicitor attending this afternoon. However, the Deputy Commissioner has – hardly unfairly – put to the Court that there should be no order as to costs. 23 In those circumstances, the appropriate order to make in respect of the further listing of the proceeding today is that there be no order as to costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Logan. Associate: Dated: 20 February 2024 SCHEDULE OF PARTIES QUD 310 of 2021 Respondents Fourth Respondent: HANSLOW HOLDINGS PTY LTD Fifth Respondent: KINGSRIVER SERVICES PTY LTD Sixth Respondent: PHILADELPHIA DEVELOPMENTS PTY LTD AS TRUSTEE FOR THE MAIN BEACH RAPTIS TRUST Seventh Respondent: ROSEA PTY LIMITED Eighth Respondent: KIEDIS INVESTMENTS PTY LTD Ninth Respondent: HS5 PTY LTD Tenth Respondent: HS6 PTY LTD Eleventh Respondent: KYROS STAGE 3 PTY LTD Twelfth Respondent: EDUCATION CORPORATION OF AUSTRALIA PTY LIMITED AS TRUSTEE FOR THE EDUCATIONAL GOLD TRUST	3,377
federal_court_of_australia:fca/single/1995/1995fca1031	decision	commonwealth	federal_court_of_australia	text/html	1995-12-15 00:00:00	Stephenson, Lydia as executrix of the Estate of the late Alyschia Dibble v Human Rights and Equal Opportunity Commission & Anor [1995] FCA 1031	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1995/1995fca1031	2024-09-13T22:53:23.029027+10:00	CATCHWORDS DISCRIMINATION LAW - HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION - Sexual Discrimination Act - complaints - complaint process - deceased complainant - whether claim abates - whether HREOC has power to terminate a complaint HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION - Sexual Discrimination Act - complaints - deceased complainant - survival of complaints - relevance of remedies available - relevance of common law on survival of actions HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION - Sexual Discrimination Act - complaints - deceased complainant - survival of complaints - whether Law Reform (Miscellaneous Provisions) Act (NSW) survival of action provisions can apply - consideration of HREOC's procedures. Administrative Decisions Judicial Review Act 1977 (Cth) Sex Discrimination Act 1984 (Cth) Law Reform (Miscellaneous Provisions) Act 1944 (NSW) De Facto Relationships Act 1984 (NSW) Judiciary Act 1903 (Cth) Anti-Discrimination Act 1977 (NSW) Workers' Compensation Act 1897 (UK) Public Health Act (UK) Rivers Pollution Prevention Act (UK) Increase of Rent and Mortgage Interest (Restrictions) Act 1920 Law Reform (Miscellaneous Provisions) Act 1934 (UK) Dramatic and Musical Performers' Protection Act 1958 Finlay v Chirney [1888] 20 QB 494 Marvel Skate Co. Pty Limited v Bright (1952) 52 FR NSW 277 R v Jefferies [1969] 1 QB 120 Smith v Williams [1922] 1 KB 158 Melkman v Commissioner of Taxation (1988) 20 SCR 331 Ardeshirian v Robe River Iron Associates (1993) 1016 ALR 173 Williams' Saunders (1) Wms. Saund. 240 Sollers v Lawrence (Willes) 414 Chamberlain v Williamson 2 M&S 408 Australian Postal Commission v Dao (1985) 3 NSWLR 565 Allders International Pty Limited v Anstee (1986) 5 NSWLR 47 Hall & Ors v A&A Sheiban Pty Limited & Ors (1988) 20 FCR 217 Elna Australia Pty Limited (No 2) 1987 75 ALR 271 Australian Iron and Steel Pty Limited v Najdovska (1988) 12 NSWLR 587 Bogeta Pty Limited & Anor v Wales & Ors [1977] 1 NSWLR 139 2. Peebles v The Oswaldtwistle Urban District Council [1896] 2 QB 159 Darlington v Roscoe & Sons [1907] 1 KB 219 United Collieries Limited v Simpson [1909] AC 383 Schlenert v H. G. Watson Contracting Co Pty Limited [1979] 1 NSWLR 140 Smith v Williams [1922] 1 KB 158 Ryan v Davies Bros Ltd (1921) 29 CLR 527 Dean v Wiesengrund [1955] 2 QB 120 Rickless & Ors v United Artists Corporation [1988] 1 QB 40 Australian Iron and Steel Pty Ltd v Banovic (1989 168 CLR 165) Nagasinghe v Worthington and Ors (1994) 53 FCR 175 GVR v Department of Health, Housing and Community Services (unreported, 23 August 1993) Stead v SGIC (1986) 161 CLR 141 Jones v National Coal Board [1957] 2 QB 55 at 67 Lower v Norton and Anor (1972) 4 SASR 162 Sugden v Sugden [1957] P 120; [1957 1 All ER 300 LYDIA STEPHENSON AS EXECUTRIX OF THE ESTATE OF THE LATE ALYSCHIA DIBBLE v HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & ANOR No. G444 of 1995 Beazley J 15 December 1995 Sydney IN THE FEDERAL COURT OF AUSTRALIA ) ) No. G444 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: LYDIA STEPHENSON AS EXECUTRIX OF THE ESTATE OF THE LATE ALYSCHIA DIBBLE Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent ST VINCENT'S HOSPITAL LIMITED Second Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 15 December 1995 MINUTES OF ORDERS The Court orders that: 1. The application be dismissed. 2. The applicant pay the respondents' costs of the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) No. G444 of 1995 NEW SOUTH WALES DISTRICT REGISTRY ) ) GENERAL DIVISION ) BETWEEN: LYDIA STEPHENSON AS EXECUTRIX OF THE ESTATE OF THE LATE ALYSCHIA DIBBLE Applicant AND: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION First Respondent ST VINCENT'S HOSPITAL LIMITED Second Respondent CORAM: BEAZLEY J PLACE: SYDNEY DATE: 15 December 1995 REASONS FOR JUDGMENT BEAZLEY J: This is an application under the Administrative Decisions Judicial Review Act 1977 (Cth) (ADJR Act) for an order for review of a decision of the Human Rights and Equal Opportunity Commission (HREOC) that an inquiry into a complaint lodged by Alyshia Dibble under the Sex Discrimination Act 1984 (Cth) (the SDA) against St Vincent's Hospital abated upon her death. The correctness of this determination is the principle matter in issue. The applicant also alleges she was denied natural justice by HREOC. Background facts Alyschia Dibble, who was born on 22 June 1944, was diagnosed HIV positive in 1990. During 1993 and the early months of 1994, she experienced a considerable downturn in her condition. In June 1994, St Vincent's Hospital was conducting clinical trials of the drug proteas inhibitios with HIV positive patients. Ms Dibble sought to participate in the trials. However, she was excluded as she was considered still capable of becoming pregnant. The applicant complained that there was no risk of her becoming pregnant because she had not engaged in sexual activity with men for many years and, in any event, she offered to undergo a tubal ligation. On 23 November 1994, Ms Dibble lodged a complaint with HREOC under s 22 of the SDA, alleging that, by being excluded from the drug trials, she had been discriminated against by St Vincent's Hospital on the ground of her sex in the provision of goods and services. St Vincent's Hospital's response to her claim was that it was only authorised to conduct the drug trial on the condition that it complied strictly with the drug manufacturer's protocol governing the tests. Ms Dibble was ineligible under this protocol as she was capable of becoming pregnant. The Hospital had requested the manufacturer to vary the protocol in relation to the deceased but the manufacturer had refused to do so. On 28 February 1995, Mr Dibble requested that her complaint be referred to HREOC for inquiry pursuant to s 57(1)(a) of the SDA. She advised HREOC at the time that her life expectancy was about 2 to 3 months. On 5 March 1995, the deceased died. On 14 March 1995, the Executrix of the deceased's Estate, the applicant herein, advised HREOC that the estate wished to proceed to a hearing. On 20 March 1995, the Sex Discrimination Commissioner referred the complaint to HREOC pursuant to s 57(1)(c). On 7 April 1995, the applicant was advised that the matter had been referred to HREOC. On 11 April 1995, HREOC advised the applicant's solicitors by letter that a directions hearing had been appointed for 28 April 1995. The letter stated that the President of HREOC had requested the parties to provide written submissions regarding the items raised in the agenda of the matters to be dealt with at the directions hearing by 24 April 1995. An agenda was enclosed. Item 2 on the agenda was: "Correct complainant - whether the Estate has standing to pursue the complaint or whether the complainant's cause of action is extinguished by her death? The applicant's solicitors lodged submissions in accordance with the President's request. At the directions hearing on 28 April, the applicant was represented by counsel. Dr Martin Mackertich, Director of Clinical Services, announced his attendance on behalf of St Vincent's Hospital. I will return to the manner in which the directions hearing was conducted later in these reasons. It is convenient at this point to turn to the relevant statutory provisions. RELEVANT LEGISLATION The relevant legislation in this matter is the SDA, s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW), and ss 79 and 80 of the Judiciary Act 1903 (Cth). It is convenient at this point to deal with the relevant provisions of the SDA. The SDA The objects of the SDA are to eliminate, so far as is possible discrimination against persons on the grounds of sex, marital status or pregnancy in various areas including, relevantly, in the provision of goods, facilities and services: s 3(b); and to promote recognition and acceptance within the community of the principle of the equality of men and women: s 3(d). Discrimination on the ground of a person's sex, marital status or pregnancy is, in specified situations, unlawful: see generally Part II. It is unlawful for a person who, whether for payment or not, provides goods or services or makes facilities available to discriminate against a person on the ground of that person's sex, marital status or pregnancy by refusing to provide the other person with those goods or services or to make those facilities available: s 22(1)(a). Discrimination may be direct or indirect: ss 5(1), 6(1) and 7(1) (direct discrimination); ss 5(2), 6(2) and 7(2) (indirect discrimination). The statutory complaint process is initiated by lodging a complaint: s 50. The persons who may lodge a complaint are: a person aggrieved by the act complained of (the alleged unlawful act), on the person's own behalf or on behalf of that person and another or others aggrieved by the alleged unlawful act: s 50(1)(a); two or more persons aggrieved by the alleged unlawful act on their own behalf, or on behalf of themselves or another or others aggrieved by the alleged unlawful act: s 50(1)(b); a person or persons included in a class of persons aggrieved by the alleged unlawful act, on behalf of the persons included in the class: s 50(1)(c); a trade union of which a person or persons, or persons included in a class, aggrieved by the alleged unlawful act is a member or members, on behalf of that person, those persons or persons included in the class: s 50(1)(d). Once lodged, a complaint relating to an alleged unlawful act is notified to the Sex Discrimination Commissioner who must inquire into the alleged act and endeavour by conciliation to effect a settlement: s 52(1). Section 52 provides another mechanism, independent of the complaints procedure, whereby HREOC may inquire into a matter. Under s 52(1)(b), if it appears to HREOC that a person has done an act that is unlawful under Part 11, HREOC shall notify the Commissioner and, subject to subsection 2, the Commissioner shall inquire into the act. The Commissioner has a discretion not to inquire into an alleged unlawful act or to cease inquiries in certain circumstances, for example, if she is satisfied that the act is not unlawful by reason of the provision of Part II: s 52(2)(a); or she is of the opinion that the person or persons aggrieved by the alleged unlawful act do not desire an inquiry to be made or continued: s 52(2)(b). In the case of a complaint, if the Commissioner decides not to inquire into an alleged unlawful act, notice must be given to the complainant who may, within 21 days, require the matter to be referred to HREOC: s 52(4)(a); or to the President: s 52(4)(b). Where notice is given under s 52(4)(b) the President must review the Commissioner's decision and either confirm or set aside that decision; s 52A. In cases where the Commissioner forms the opinion that a matter cannot be settled by conciliation; where a conciliation has not been successful; or where the Commissioner is of the opinion that the nature of the matter is such that it should be referred to HREOC, the Commissioner is obliged to refer the matter to HREOC, together with a report relating to any inquiries made by the Commissioner into the matter: s 57(1). In this case, the matter was referred because the Commissioner was of the opinion that the nature of the matter was such that it should be referred: s 57(1)(c). HREOC's functions include inquiring into and making determinations on matters referred to it by the Commissioner: s 48(1)(b). It has an obligation to hold an inquiry into each complaint or matter referred to it under s 57(1): s 59(1). If a complainant notifies HREOC that the complainant does not wish the inquiry to be held or continued, HREOC must not hold or must discontinue an inquiry into the complaint: s 59(2). HREOC may direct that a person be joined as a party to the inquiry: s 62. There are provisions for giving notice of the inquiry, for the rights of parties at an inquiry, and in respect of the right of appearance and to representation and the like: see, for example, ss 63 and 65. HREOC is not bound by the rules of evidence when conducting an inquiry and may inform itself on any matter in such manner as it thinks fit: s 77(1)(a). It is required to hold proceedings with as little formality and technicality as the Act and a proper consideration of the matters before it, permit: s 77(1)(b). It may give directions relating to procedure, including a direction as to procedure it considers appropriate or necessary to ensure that justice is done: s 77(1)(d). The Commission may, at any stage of an inquiry dismiss the complaint if it is satisfied that the complaint is frivolous, vexatious, misconceived, lacking in substance or relating to an act that is not unlawful by reason of a provision of Part II: s 79. After holding the inquiry, HREOC may dismiss the complaint: s 81(1)(a). It may find the complaint substantiated and make a determination, including making one of the declarations specified in s 81(1)(b). These include: a declaration that the respondent has engaged in conduct rendered unlawful by the SDA and that the respondent should not repeat or continue such unlawful conduct: s 81(1)(b)(i); and a declaration that the respondent should pay the complainant damages by way of compensation for loss or damage suffered by reason of the conduct of the respondent: s 81(1)(b)(iv). "Damage" for the purposes of the section includes injury to the complainant's feelings or humiliation suffered by the complainant: s 81(4). HREOC may also make a declaration that it would be inappropriate for any further action to be taken in the matter, notwithstanding that the complaint has been substantiated: s 81(1)(b)(vii). At the time this complaint was referred to HREOC the SDA provided that a determination made under s 81(1) was to be registered in the Federal Court and once registered was to have effect as if it was an order made by the Court: s 82B(1). The corresponding provisions in the Race Relations Act were declared invalid by the High Court in Brandy v HREOC (1995) 69 ALJR 191. The SDA has since been amended. Now, proceedings for the enforcement of a determination made under s 81(1) may be brought in the Federal Court by HREOC, the complainant or a trade union acting on behalf of the complainant. A hearing in the Federal Court is by way of a hearing de novo: see s83A. If the Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under the Act, the Court may make such orders, including a declaration of right, as it thinks fit. Findings of HREOC The President of HREOC, Sir Ronald Wilson found that the proceedings before it abated upon the death of the deceased and did not devolve upon her Estate. In coming to this conclusion, he found it helpful to regard the institution of a personal civil action by a plaintiff as analogous to the lodgement of a complaint under the SDA. He found, drawing principally upon Finlay v Chirney [1888] 20 QBD 494, that it was "a basic rule of the common law...that a personal action dies with the person." Sir Ronald held that, in contra-distinction to a right of action in rem, the rule applied to every personal right of action, whether the right of action had its origin in the common law or in statute. He observed that the operation of the rule may be modified or reversed by a relevant statutory provision. However, there was no provision in the SDA dealing with the survival of complaints. He considered that the decision of the Full Court of the Supreme Court of New South Wales in Marvel Skate Co. Pty Limited v Bright (1952) 52 SR (NSW) 277 and the decision of the Court of Appeal in R v Jefferies [1969] 1 QB 120 supported this view. Sir Ronald distinguished Smith v Williams [1922] 1 KB 158 and Melkman v Commissioner of Taxation (1988) 20 FCR 331, being cases which had been relied upon by the applicant. Sir Ronald considered that ss 79 and 80 of the Judiciary Act did not operate so as to apply s 2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) to a complaint under the SDA as s 79 refers only to "Courts exercising Federal jurisdiction." The Commission was not a Court exercising Federal jurisdiction: see generally Ardeshirian v Robe River Iron Associates (1993) 116 ALR 173 at 185. I deal with the provisions of these two Acts below. Sir Ronald also held that the Commission was not compelled by s 59 of the SDA to continue with the inquiry once it was instigated. He accepted that whilst s 59(1) was mandatory in its terms, the SDA contemplated the continued existence of the complainant: see ss 59(2), 64 and 65. Applicant's submissions Counsel for the applicant submitted that Finlay v Chirney was not authority for the proposition that a personal action dies with the person. Rather, it was authority for the proposition that the nature of the damages claimed was fundamental to the question whether the cause of action survived. It was further submitted that the President's reliance on Marvel Skate Co. Pty Limited v Bright was misplaced as that decision had been overruled in Bogeta Pty Limited & Anor v Wales & Ors [1977] 1 NSWLR 139 and that the decision of R v Jefferies, upon which the President also relied was expressly not followed by the Court of Appeal in Bogeta. Next, it was submitted, there was ample authority that statutory causes of action survive: see Peebles v The Oswaldtwistle Urban District Council [1896] 2 QB 159 and other cases cited below. It was further submitted that the complainant's case here arose out of contract in that it was alleged that there had been discrimination in the provision of goods and services. Accordingly, the damages were not personal or tortious damages so that the "actio personalis" principle did not apply to the complaint. Finally, it was submitted that, whatever the state of the common law in New South Wales, s 2 of the Law Reform (Miscellaneous Provisions) 1944 removed any doubt about the survival of the complaint. Application of the maxim "actio personalis" to a complaint under the SDA The applicant submitted first, that Finlay v Chirney was not authority for the proposition that a personal action dies with the person. Rather, it was authority for the proposition that the question whether a cause of action survived depended upon the nature of the damages claimed. Secondly, she submitted that damages under s 81 of the SDA are not necessarily to be treated as tortious, so that a claim under the SDA was not governed by the maxim and did not abate upon death. Thirdly, she submitted that Ms Dibble's claim was for discrimination in the provision of goods and services. Those goods and services were provided under contract. Thus, whilst the claim clearly had a personal element, it was not exclusively tort based. Finlay v Chirney Finlay v Chirney involved an action for breach of promise of marriage. It was held that in such a case, where no special damage was alleged, the cause of action did not survive against the personal representative of the promisor. In coming to this decision, Bowen and Fry LJJ reviewed the basis of the maxim "actio personalis moritur cum persona". Their Lordships referred to the statement in Williams' Saunders (1) Wms. Saund. 240 that: "The rule was never extended to such personal actions as were founded upon any obligation, contract, debt, covenant or any other duty to be performed." and the further statement of Willes CJ in Sollers v Lawrence Willes 413 at 421 that: "Actio personalis is always understood of a tort". They continued at 504: "Modern jurisprudence has...since the reign of Queen Elizabeth adopted a rough but convenient interpretation of the maxim...On the one side of the line of demarcation lie actions of tort. Remedies for wrongful acts, according to the present law, can only be pursued against the estate of a deceased person when property or the proceeds or value of property belonging to another have been appropriated by the deceased person and added to his own estate or moneys...On the other side of the line lie actions founded on any contract express or implied 'or any other duty to be performed'" Further at 504, referring to the nature of the cause of action of breach of promise, their Lordships stated: "The question which we have to decide...relates to a class of action, which, though in its form and substance contractual, differs from other forms of action ex contractu in permitting damages to be given as for a wrong." They referred to Chamberlain v Williamson 2 M&S 408, where Lord Ellenborough stated at 415: "Executors and administrators are the representatives of the temporal property, that is, the debt and goods of the deceased, but not of their wrongs, except where those wrongs operate to the temporal injury of their personal estate." Bowen and Fry LJJ stated that according to this decision, although an action for breach of promise was an action arising out of contract, the maxim "actio personalis" applied to so much of the damages as were a remedy for mere personal wrong, leaving to survive so much of the remedy as belonged to the ordinary category of actions "ex contractu". Their Lordships continued at 506: "In order accurately to draw the dividing line, it becomes necessary to analyse the damages which are recoverable in cases of breach of promise..." Counsel for the applicant relied upon this passage in support of her submission that, in order to determine whether a cause of action survived, it was necessary to have regard to remedy and not to the nature of the cause of action. I do not agree. To read the passage that way it to take it out of context. In particular, it divorces it from the passage at 504 to which I have referred, where the identification of damage was used to identify the nature of the cause of action. It is clear from the joint judgment, read as a whole, that, for the purposes of the "actio personalis" principle, there is a distinction between personal wrongs and actions in contract or under a covenant or involving an obligation. This is clear from the further passage at 507 where their Lordships state: "But where there is no special averment ...of pecuniary loss arising out of the breach, the general allegation of the breach of promise imports...only a personal injury. Lord Esher MR, in his separate judgment, said, at 498, of an action for breach of promise "It is clear that it is not a complaint of anything affecting property, whether personal or real; it is an injury; that is a cause of action purely personal on both sides." Lord Esher accepted, although it would appear reluctantly so, that where special damage was claimed, affecting the property of the plaintiff, an action could be brought against the legal personal representative for that damage only. His Lordship stated at 500: "I think [special damage] can only exist in cases where the plaintiff can show that, besides the promise to marry, there was at the time of the making of the contract another promise affecting the personal property of the one party or the other." In any event, a remedies based survival principle does not withstand scrutiny. A further reference to the applicant's submissions is necessary at this point. Counsel for the applicant submitted that as the question of remedy determined whether a complaint survived, it was necessary for HREOC to have "at least an idea of what remedy is being sought" to determine whether the complaint survived the death of the complainant. At the time that the deceased died, there had been no precise formulation of her claim, beyond the allegation of the hospital's unlawful conduct. It was submitted that a claim could be made for a declaration that the Hospital had engaged in unlawful conduct and should not repeat such unlawful conduct. A claim could also be made for damages. Clearly this is so. It would be necessary, according to the submission, to analyse the nature of the damages which might be awarded to determine whether they fell within the "actio personalis" principle. She submitted that some remedies under the SDA were clearly personal e.g. an apology. Others were not. For example, it was submitted that damages by way of compensation for loss or damage would, at common law, or under other legislation, devolve upon the estate. This latter submission cannot be sustained in the bald form in which it was put. Compensation for loss or damage may now be payable for the benefit of an estate under the Law Reform (Miscellaneous Provisions) Act. Workers' compensation entitlements may devolve, because as a matter of characterisation, they constitute a debt owing to the estate, or an obligation owed by the employer. These issues are discussed further below. Counsel for the applicant further submitted that in Ms Dibble's case, a possible remedy was a declaration under s 81(1)(b)(i), that is a declaration that the discriminatory conduct not be continued. It was submitted that such a remedy was not personal as it could have wide-reaching implications for women who had not made a complaint. The immediate difficulty with this submission is that there is not sufficient evidence to allow it to be adequately assessed. However, the difficulty in postulating what remedy HREOC might in fact give, highlights the difficulty in applying a remedies based test for determining whether a complaint survives. With a remedies based test, the survival of the complaint could too easily depend upon the drafting of the claim. It would be a simple task to draft a claim involving a non-personal remedy regardless of the appropriateness of the remedy. It may not be a simple task to determine that issue without a full hearing. Accordingly, accepting for present purposes that the 'actio personalis" principle has application to a complaint made under the SDA, I am of the opinion that the principle is directed to the cause of action involved and not to the remedies which are sought or which may be available. I am also of the opinion that a complaint under the SDA is personal in nature. It involves a claim by a person who alleges discrimination against that individual, on a ground personal to that individual (e.g. that person's sex) as a result of an act engaged in by another, which the statute has made unlawful. The provisions in the Act which permit representative complaints or complaints lodged by trade unions do not detract from the personal nature of the complaint. Indeed, those provisions reinforce the personal notion of a complaint. Accordingly, I am of the opinion, that to the extent that the "actio personalis" principle applies, either directly or by analogy, to a complaint under the SDA, a complaint abates upon the death of the complainant and does not devolve upon the personal legal representative of a complainant. Having regard to my view in this regard, it is not necessary to determine the nature of the damages claimed by Ms Dibble. However, as the matter was addressed, I should deal with it briefly. Nature of damages which may be awarded under the SDA There are judicial statements to the effect that a claim under the New South Wales Anti-Discrimination Act 1977 is an action in tort: Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604 per McHugh JA; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65 per Lee J where his Honour stated: "...there are sound reasons for treating an action under the Act as an action in tort and this, of course, permits a wider claim to damages being made than if the action is in contract. Hurt to feelings is recognised in many torts...and I see no reason why a tort of discrimination should not allow for that factor." However, in Hall & Ors v A & A Sheiban Pty Ltd & Ors (1988) 20 FCR 217 at 239 Lockhart J stated that whilst in most cases under the federal anti-discrimination legislation the measure of damages in tort would be appropriate: "[i]t is difficult and would be unwise to prescribe an inflexible measure of damage [in anti- discrimination legislation cases] and, in particular, to do so exclusively by reference to common law tests in branches of the law that are not the same, though analogous in varying degrees, with anti-discrimination law. Although...it cannot be stated that in all claims for loss or damage under the Act the measure of damages is the same as the general principles respecting measure of damages in tort, it is the closest analogy that I can find and one that would in most foreseeable cases be a sensible and sound test. I would not, however, shut the door to some case arising which calls for a different approach." Implicit in this approach is that claims under the anti-discrimination legislation are not actions in tort. Lockhart J referred at 238 to Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587 as supporting a flexible approach. (This decision was affirmed by the High Court on appeal on other issues: see Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165. French J in his judgment in Hall at 281 referred to Allders International v Anstee and Australian Postal Commission v Dao and stated that whether or not it was strictly correct to classify contraventions of anti-discrimination legislation as a species of tort, if the statute made provision for a particular head of damage: "the rules applicable in tort can be of no avail if they conflict with it." Section s 81(4) of the SDA expressly provides for damages for injury to a complainant's feelings or for humiliation suffered by the complainant. Accordingly, even though there may be some correspondence in the considerations involved in awarding damages for injury to feelings and humiliation in tort and under s 81(4), the statutory provisions of the SDA govern this head of damages. It was submitted that Hall was authority for the proposition that damages under the SDA were statutory in nature and not tortious. It was further submitted that, in any event, the complainant's action was founded on contract - namely that she was discriminated against in the provision of goods and services. It should be stated that there is no evidence of the basis upon which the medical services in question were, or were to be, provided. Leaving that aside, however, the fact that the discriminatory conduct arose out of contract does not alter the nature of the damages available. They remain statutorily based and are not converted into damages for, or damages in the nature of damages for, breach of contract. Marvel Skate Co. Pty Ltd v Bright and R v Jefferies It was submitted that the President fell into error by his reliance on Marvel Skate Co. Pty Limited v Bright and R v Jefferies as Marvel Skate was overruled by the New South Wales Court of Appeal in Bogeta Pty Ltd v Wales and R v Jefferies was not followed. Whilst this is correct, the point in Bogeta is that the well established principle that superior courts have the right to devise an appropriate procedure in cases where jurisdiction exists but where no procedure was provided by statute also applied to inferior courts. In this case, counsel for HREOC readily, and correctly, conceded that if the claim survived the death of the deceased, there was power in HREOC to join the legal personal representative. Survival of statutory rights Counsel for the applicant submitted that subject to any express words to the contrary in a statute, a statute based cause of action survives the death of the party in whom the cause of action was vested. She relied upon a number of authorities commencing with Peebles v The Oswaldtwistle Urban District Council in support of this submission. It is necessary to look at these authorities to determine whether they stand for the proposition asserted. Peebles involved a claim for mandamus to compel the Council to construct a sewer as allegedly required by statute. The plaintiff died after the claim was commenced but before it was heard. It was held the cause of action survived. The statutory duty to build the sewer was a "duty to be performed" within the actio personalis principle. A.L. Smith LJ stated at 161: "In the note to Wheatley v Lane 1 Wms Saund 2169 it is said: 'It was a principle of the common law, that if an injury were done either to the person or the property of another, for which damages only could be recovered in satisfaction, the action died with the person to whom, or by whom, the wrong was done'; but it is pointed out in the same note that this rule 'was never extended to such personal actions as were founded upon any obligation, contract, debt, covenant, or any other duty to be performed;' for there the action survived." (emphasis added) A number of cases involving workers' compensation legislation were also relied upon. They were Darlington v Roscoe & Sons [1907] 1 KB 219; The United Collieries Limited v Simpson [1909] AC 383; Schlenert v H. G. Watson Contracting Co Pty Ltd [1979] 1 NSWLR 140. In both Darlington v Roscoe & Sons and United Collieries Limited v Simpson a dependant of a deceased was entitled to monies under the applicable workers' compensation legislation. In Darlington, the dependant died after commencement of the action but before it was heard. The Court construed the legislation as imposing a statutory duty upon the respondent employer to pay compensation. The statutory entitlement thus survived. In United Collieries Limited, the dependant died before making a claim. In that case, the statutory requirement to pay compensation to a dependant was construed as a debt owed to the dependant. It thus fell outside the actio personalis principle and the dependant's claim survived her death. Lord MacNaughten observed at 391 that the actio personalis principle was "limited to actions in which remedy is sought for a tort, or for something which involves, at any rate, the notion of wrong-doing." United Collieries Limited was applied by the New South Wales Court of Appeal in Schlenret. In that case, a worker was entitled to the payment of a lump sum under s 16 of the New South Wales Workers' Compensation legislation for the loss of an eye. It was held that the right to make the s 16 claim devolved upon the deceased's legal personal representative. Peebles and Darlington were applied by the Court of Appeal in Dean v Wiesengrund [1955] 2 QB 120. In that case, the Increase of Rent and Mortgage Interest (Restrictions) Act 1920 gave a right to a tenant who had paid excess rent to recover it immediately. The legal personal representative of a tenant who had paid excess rent sought to recover the excess under the statute. Although the statute itself made no reference to a tenant's legal personal representative, it was held that the right of the tenant devolved. Essential to this finding was an analysis of the nature of the right which was conferred by the Act. Singleton LJ considered that the right conferred was an asset of the tenant, namely, a chose in action conferred by statute. As such, it was something which prima facie would, on death, pass to the tenant's legal personal representative and could only be taken away by clear words in the statute. Jennings LJ classified the right as a debt. He stated that had the legislature intended to give the tenant something less than the full rights of a creditor, the Act would have been framed to include some attempt at a definition of the nature and extent of the limited right which the tenant was to have. Morris LJ was of a similar view, stating at 137: "different wording would have been adopted if there had been the intention to create, for the benefit of a tenant, a debt or a right to recover a sum of money to which was attached the somewhat novel feature that the death of the creditor should destroy it." The Court also concluded in that case that the cause of action survived under the United Kingdom's Law Reform (Miscellaneous Provisions) Act 1934. Dean v Wiesengrund was applied by the Court of Appeal in Rickless & Ors v United Artists Corporation [1988] QB 40 where it was held that the Dramatic and Musical Performers' Protection Act 1958 gave a private right to performers to give or withhold consent to the use of their performances and conferred a right to enforce that right in the civil courts. It was held that the right survived the death of the performer. Browne-Wilkinson VC stated at 56: "[t]he question in every case is whether the right is personal and dies with [the performer]; if it is not personal it vests in [the performer's] personal representatives... It has been held that prima facie a right conferred...by statute survives...death and that clear words are required if it is to be held that the right dies with the person given that right: Dean v Wiesengrund...There are no such clear words in this case." The reliance on Dean v Wiesengrund must be read in context. The Act in question was construed as an Act to protect a performer's economic interests by ensuring that the performer was paid for the use of the performer's performances. The cause of action thus conferred was not merely a cause of action in respect of a personal wrong. Browne-Wilkinson VC classified the right as a quasi-property right akin to copyright. Once these cases are analysed, it is apparent that they do not support the applicant's submission that a statutory cause of action survives unless the statute provides otherwise. In each case, the statutory right was analysed to determine its nature. In each case it was characterised as falling into one of the categories outside the actio personalis principle. These cases are also to be distinguished from that line of authority that permits an appeal from a judgment on an actio personalis to continue as the original wrong merges in the judgment: see Ryan v Davies Bros Ltd (1921) 29 CLR 527 where it was held that upon the appeal, a new and different right has been substituted. See also Smith v Williams [1922] 1 KB 158. Application of the Law Reform (Miscellaneous Provisions) Act 1944 It was submitted that even if the claim did not survive the death of the deceased at common law, the terms of s 2 of the Law Reform (Miscellaneous Provisions) Act ought to guide HREOC in its determination as to whether the complaint survived. Counsel conceded that because of the express terms of ss 79 and 80 of the Judiciary Act s 2 of the Law Reform (Miscellaneous Provisions) Act did not apply as HREOC is not a court exercising federal jurisdiction: Brandy v HREOC; Ardeshirian v Robe River Iron Associates. Section 2 of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) provides: "(1)Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, at the case may be, for the benefit of, his Estate." Defamation claims and claims under Division 2 of Part 3 of the De Facto Relationships Act 1984 (NSW) are excepted from the subsection. Exemplary damages and damages for loss of future earnings are not recoverable under that section. Sections 79 and 80 of the Judiciary Act provide: "79.The laws of each State or Territory, including the laws relating to procedure...shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable. 80. So far as the laws of the Commonwealth are not applicable or so far as their provisions are insufficient to carry them into effect, or to provide adequate remedies or punishment, the common law in Australia as modified by the Constitution and by the statute law in force in the State or Territory in which the Court in which the jurisdiction is exercised is held shall, so far as it is applicable and not inconsistent with the Constitution and the laws of the Commonwealth, govern all Courts exercising federal jurisdiction in the exercise of their jurisdiction in civil and criminal matters." I do not agree with this submission. The complaint either survives as a matter of common law or pursuant to an express statutory enactment. Jurisdiction cannot be assumed by a tribunal or commission by application of the spirit of some inapplicable statutory provision. It was submitted by counsel for HREOC that, in any event, the right to bring a claim under the SDA was not a "cause of action" within the meaning of s 2 of the Law Reform (Miscellaneous Provisions) Act. In the first place, there was no right as such for an inquiry to be completed. Secondly, a determination of the Commission is not enforceable as such. The SDA merely provides a statutory right to seek redress for discriminatory conduct which is unlawful. The lodgement of a claim may result in a remedy, including damages, being awarded. However, the entire processes contemplated by the statutory scheme, including the inquiry and conciliation processes, the right in the Commissioner to refuse to or refuse to continue to inquire into a complaint, the right to inquire into matters regardless of the lodgement of a complaint, the right in HREOC to terminate complaints and the lack of enforceability of HREOC's determinations are not processes which are consistent with a cause of action. In Sugden v Sugden [1957] P 120; [1957 1 All ER 300 Denning LJ held that the English equivalent of s 2 only applied to "causes of action". that is: "rights which can be enforced - or liabilities which can be redressed - by legal proceedings in the Queen's courts...'Causes of action' extend to rights enforceable by proceedings in the Divorce Court, provided that they really are rights and not mere hopes or contingencies". Denning LJ stated that as, under the relevant matrimonial legislation, there was no right to maintenance, costs, or to a secured provision and the like until the court made an order, no cause of action arose until the order was made. His Lordship drew a distinction between the non-existence of a cause of action and the availability of a discretionary remedy. The position is similar under the SDA. There is no entitlement to a remedy. HREOC may find that a complaint is substantiated but refuse to make any declaration. More fundamentally, a finding or declaration made by HREOC cannot be enforced - either by HREOC or by a court: see Brandy. In other words, a complaint under the SDA is "in the nature of a claim yet to be made enforceable": see Premiership Investments Pty Ltd & Anor v White Diamond Pty Ltd (unreported Nicholson J; No WAG 81 of 1994, 17 November 1995); Sugden v Sugden. Right of HREOC to terminate a complaint properly brought before it It was submitted that the complaint having been properly referred to HREOC, there was no power to terminate the complaint other than to dismiss the complaint under ss 79 and 81 of the SDA. The consequence was that it was obliged to proceed to a hearing of the complaint notwithstanding the death of the deceased. Sections 79 and 81 contemplate the dismissal of a complaint as part of an inquiry. In the case of s 79, a complaint may be dismissed "at any stage of an inquiry" if it is considered the complaint is "frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful" under the Act. Under s 81, a complaint may be dismissed after an inquiry has been held. There is no definition of "inquiry" in the SDA. In my opinion, an inquiry encompasses all aspects of the matter, including preliminary steps such as the holding of a directions hearing. Section 77 of the SDA supports this construction. It provides: "(1)For the purposes of an inquiry, [HREOC]: ... (c) may give directions relating to procedure that, in its opinion, will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties; and (d) may give such directions as to procedure as it considers are appropriate or necessary to ensure that justice is done" In my opinion, a step relating to the determination of whether a complaint is properly before HREOC is a matter which falls within the court's powers under s 77. In any event, HREOC could make a direction in relation to the joinder of parties. A necessary precondition to the making of such a direction would be a determination as to the appropriateness of a party being joined. In the present case, had it been determined that the claim devolved upon the applicant as the legal personal representative, the next step would have been to make a direction joining the applicant as the deceased's legal personal representative. Sorting out this issue as part of the directions procedure was an integral part of the inquiry, albeit in respect of a preliminary issue. In Nagasinghe v Worthington and Ors (1994) 53 FCR 175, von Doussa J adopted at 178, the statement of Sir Ronald in GVR v Department of Health, Housing and Community Services (unreported, 23 August 1993) that: "The meaning of the term 'lacking in substance' has been considered in a number of decisions of this Commission. My view...is that a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim would ordinarily be found to be lacking in substance." The present case is different and accordingly this statement does not have direct application. However, I am of the opinion that a complaint is lacking in substance within the meaning of s 79 if there is a reason of substance which prevents the continuation of the complaint. At the time that the matter came before the President for the directions hearing, there was no complainant to continue the complaint. I have found that the complaint did not survive the death of a complainant. In my opinion, the absence of a complainant, whether by death or any other reason, is a reason of substance why the complaint cannot be continued and thus may be terminated under s 79. Thus Sir Ronald was empowered to dismiss the complaint under s 79. It was also submitted that HREOC had, by inviting the applicant to make submissions in respect of the standing issue, had recognised the right of the estate to continue the complaint. This submission is clearly misconceived. If it were correct, it would mean that upon any application of a party to be joined to proceedings, a court or tribunal, upon hearing that party on the application to be joined, would thereby be obliged to join the party. Breach of Natural Justice Finally it was submitted that the applicant had been denied natural justice as the President had relied upon authorities which had not been the subject of submission, either in the applicant's written submissions or during the argument at the directions hearing. A person is entitled to a fair trial with the opportunity to put her or his case properly: Stead v SGIC (1986) 161 CLR 141 at 145; Jones v National Coal Board [1957] 2 QB 55 at 67. In Stead v SGIC the High Court said that this principle was not without qualification. Even if a party had been denied the opportunity to put submissions on a question of law, a new trial would not be ordered if the question of law must clearly be answered against the aggrieved party. In the present case, the applicant was not denied that opportunity. The applicant was requested to address the issue of standing in written submissions. She did so. At the directions hearing, the applicant was represented by counsel who supplemented the written submissions by oral submissions. Whilst a court, tribunal or commission is usually assisted by submissions of counsel, it is not infrequent that relevant authorities are not cited to the court. There could be a number of reasons for this. Counsel may not have located the authority during the course of research. A view may have been taken that an authority was not relevant. Systems would become unworkable if a matter had to be referred back to parties for further submission if, on each occasion that a court, or other body applying legal principles, considered that an authority, not cited by the parties, was relevant to the issues argued before it. Counsel for the applicant also relied upon Lower v Norton and Anor (1972) 4 SASR 162. There, Walters J stated at 175 that: "...if a Judge or judicial officer, after reserving judgement, reaches a conclusion on the issues for ...determination, upon entirely new points which were not the subject of argument...the desirable course...is to restore the case to the list for further argument." (emphasis added) This statement is correct. However, his Honour was referring to a situation where the court's determination was reached upon a new point. That is not the case here. There is a conceptual difference between reaching conclusion on a new point which had not been argued and relying on authorities on the point argued but which had not been referred to. It was further submitted that neither party anticipated that the question of standing would be finally determined at the directions hearing. It was submitted that had that been the understanding, the applicant may have approached the hearing differently. There is nothing in the transcript of the directions hearing which reveals that the applicant was disadvantaged. Certainly, counsel did not make any submission to that effect. Indeed, the transcript bears the mark of counsel in command of her material. Further, counsel for the applicant conceded that it was clear from what was said by Sir Ronald during the course of the hearing that he was intending to decide whether there was an entitlement in the estate to continue the complaint. Counsel's responses to Sir Ronald clearly showed that she appreciated that this issue was to be determined. In any event, the President was entitled, had he considered it appropriate, to confine his consideration of the issue to the written submissions. HREOC's letter advising that the President had called for written submissions is capable of that interpretation. It was not argued that the applicant had not had an opportunity to canvass the issue as her legal representatives considered appropriate, in the written submissions. Accordingly, I do not agree that the applicant was denied procedural fairness. I certify that this and the preceding 32 pages are a true copy of the Reasons for Judgment of the Honourable Justice Beazley. Associate: Dated: 15 December 1995 APPEARANCES Counsel for the Applicant: S. Winters Solicitors for the Applicant: Inter City Legal Centre Counsel for the Respondent: M. Nicholls Solicitors for the Respondent: HREOC Dates of hearing: 6 November 1995	11,322
federal_court_of_australia:fca/single/1997/1997fca0816	decision	commonwealth	federal_court_of_australia	text/html	1997-08-01 00:00:00	Re Sarikaya, David; Ex Parte Victorian Workcover [1997] FCA 816	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1997/1997fca0816	2024-09-13T22:53:23.197779+10:00	FEDERAL COURT OF AUSTRALIA CATCHWORDS BANKRUPTCY - bankruptcy petition - judgment debt - order for compensation in proceedings by Accident Compensation Commission against debtor for obtaining property by deception - debtor's application for adjournment to enable an application for adjournment to enable to reopen the conviction - Court's discretion to go behind a judgment - whether final order - whether proven that the compensation ordered was payable to the Accident Compensation Commission Bankruptcy Act 1966 (Cth) s 51(1) Accident Compensation (WorkCover Insurance) Act 1993 (Vic) s 64(1) Sentencing Act 1991 (Vic) s 86(1) Re Verma; Ex Parte Deputy Commissioner of Taxation (1985) 4 FCR 181 Olivieri v Stafford (1989) 91 ALR 91 Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 Wren v Mahoney (1972) 126 CLR 212 Re Estate of Nashat Gamali; Ex Parte Gamali v The Victorian WorkCover Authority, (Federal Court of Australia, Heerey J, 15 July 1997, unreported) Re: DAVID SARIKAYA; Ex Parte: VICTORIAN WORKCOVER AUTHORITY VP825 of 1996 MERKEL J MELBOURNE 1 AUGUST 1997 IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VP 825 of 1996 ) GENERAL DIVISION ) BETWEEN: DAVID SARIKAYA Judgment Debtor AND: VICTORIAN WORKCOVER AUTHORITY Judgment Creditor JUDGE: MERKEL J PLACE: MELBOURNE DATED: 1 AUGUST 1997 MINUTES OF ORDER THE COURT ORDERS THAT: 1. The estate of the judgment debtor, David Sarikaya, be sequestrated. 2. The petitioning creditor's costs, including any reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VP 825 of 1996 ) GENERAL DIVISION ) BETWEEN: DAVID SARIKAYA Judgment Debtor AND: VICTORIAN WORKCOVER AUTHORITY Judgment Creditor JUDGE: MERKEL J PLACE: MELBOURNE DATED: 1 AUGUST 1997 EX TEMPORE REASONS FOR JUDGMENT The judgment creditor, the Victorian WorkCover Authority ("the Authority") has petitioned the Court for a sequestration order against the estate of the judgment debtor, David Sarikaya. The petition is founded on a final judgment in the sum of $24,290, together with interest of $9,618.84, pursuant to s 3 of the Penalty Interest Rate Act 1983 (Vic). The judgment was obtained in the Broadmeadows Magistrates' Court on 5 April 1993. The act of bankruptcy relied upon in the petition is the failure of the judgment debtor to pay or to secure payment of the judgment debt and interest as required by a bankruptcy notice dated 11 April 1996. The certified extract of the judgment records that, in a proceeding by Pearl Rogers of the Accident Compensation Commission against the judgment debtor for obtaining property by deception, the judgment debtor pleaded guilty, was convicted and given a suspended sentence and was ordered to pay $24,290 compensation and costs in the amount of $6,042. The judgment debtor applied to the County Court to reopen the conviction but that application failed. The order for compensation was made under s 86(1) of the Sentencing Act 1991 (Vic) which provides that, if a court convicts a person of an offence it may, on the application of the person suffering loss, order the offender to pay compensation for the loss. Extracts from the records of the Magistrates' Court have been adduced in evidence and show that the order was made in favour of the Accident Compensation Commission of which the Victorian WorkCover Authority is the successor in law. Initially I expressed some doubt as to the identity of the entity in whose favour the order for compensation was made, but I am now satisfied, on the totality of the evidence, that it is quite clear that the order was made in favour of and upon the application of the Accident Compensation Commission. I would add that, if there were any doubt whatsoever about that matter, it was open to the judgment debtor to adduce evidence to show that no order had been applied for or made in favour of the Commission or, alternatively, that the restitution which was the subject of the order was in truth and reality payable to some other entity or person. No such evidence has been adduced. The judgment debtor has once again asked for an adjournment of these proceedings. In the past, I refused applications for an adjournment by the judgment debtor and made directions for the filing of all material upon which the judgment debtor wishes to rely in opposing the petition. The primary ground put forward by counsel for the judgment debtor for the adjournment is that he wishes to issue proceedings in the Supreme Court to challenge the refusal by the County Court to reopen the conviction. At the present time no such proceedings have been issued notwithstanding that these proceedings have been on foot since August 1996 and the County Court's refusal to reopen the matter occurred early in 1997. Of equal or even greater concern is that the judgment debtor has filed virtually no material before the Court to establish that there are arguable grounds, or indeed any grounds, for seeking to reopen the conviction or to challenge the refusal of the County Court to reopen the conviction. The furthest the evidence goes is an affidavit sworn by the judgment debtor's solicitor, which states: "The basis of the Appeal is that sometime after 21/1/97, our client received anonymously new evidence impinging upon the prosecution case. Based on instructions I have received, it appears the debtor has an arguable case in the Supreme Court." The cases are fairly clear as to the manner in which the Court's broad discretion to adjourn a petition in such circumstances ought to be exercised. In Re Verma; Ex Parte Deputy Commissioner of Taxation (1985) 4 FCR 181 at 187-188, Beaumont J made it quite clear that the onus is on the debtor to show the existence of a genuine dispute based on substantial grounds by adducing evidence establishing the substantial nature of the grounds of challenge and not merely by relying on assertions contained in the notice of objection. In the present case a solicitor has sworn an affidavit stating the grounds for adjournment but, in my view, that affidavit goes no further than a statement of mere assertion. There is a well established jurisdiction in the Court to exercise a discretion to adjourn a petition to enable a substantive dispute to be determined elsewhere if one exists as to the debt. In some circumstances the dispute might be determined in this Court. In Olivieri v Stafford (1989) 91 ALR 91 at 102, Beaumont J said: "As has been said, a Court of Bankruptcy is concerned to inquire into the 'reality' of the matter in hand. Here, the 'reality' of the matter is that the merits of the respondents' claim have been demonstrated to the satisfaction of one judge of the District Court and another judge of that court has declined to disturb the judgment. As a matter of substance, it is appropriate, in all the circumstances, for a Court of Bankruptcy to treat what happened in the two hearings in the District Court as a trial of the merits of the respondents' claim. That is to say, a Court of Bankruptcy should, I think, accept that a process of adjudication in the District Court has established that the underlying transactions created a true debt which could, in turn, provide a proper foundation for the entry of a judgment in respect of which a bankruptcy notice could properly issue." The Court does have a broad jurisdiction to go behind a judgment: see generally Ahern v Deputy Commissioner of Taxation (Qld) (1987) 76 ALR 137 at 147-8 and Wren v Mahoney (1972) 126 CLR 212 at 224. The Full Court in Ahern at 148 said that it is: "... well established that in general a court exercising jurisdiction in bankruptcy should not proceed to sequestrate the estate of a debtor where an appeal is pending against the judgment relied on as the foundation of the bankruptcy proceedings provided that the appeal is based on genuine and arguable grounds." In the present case, there are three problems with the application for an adjournment. The first is that there is no appeal against conviction pending. The second, and probably the more important, issue is that there is no material upon which I could be satisfied that any proposed or prospective appeal is based on genuine and arguable grounds. This deficiency is exacerbated by the fact that the judgment debtor has pleaded guilty and has not adduced evidence suggesting that there is any proper basis for challenging the quantification of the restitution order which followed upon the plea. Further, there has now been an adjudication of the matter in the Magistrates Court and then in the County Court where that Court refused to exercise its discretion to allow an appeal out of time. In these circumstances, it seems to me that it is not an appropriate exercise of the discretion of the Court to adjourn the matter. It therefore follows that I propose to hear and determine the petition. I have heard full argument on the petition. The main submission advanced by the judgment debtor challenges the standing of the Authority to claim from the debtor an amount due to it on a final judgment. Heerey J recently considered a similar challenge in Re Estate of Nashat Gamali; Ex Parte Gamali v The Victorian WorkCover Authority, (Federal Court of Australia, Heerey J, 15 July 1997, unreported). His Honour concluded that a certified extract, almost identical to that in the present case, justified the issue by the Victorian WorkCover Authority of a bankruptcy notice when there was a failure to pay the judgment debt on the basis of the original order being a final order for the purposes of the Bankruptcy Act 1966 (Cth). His Honour rejected contentions similar to those put forward on behalf of the judgment debtor and in particular, that there was not a final order and that the Authority was not entitled to claim the amount of the judgment debt in the bankruptcy notice as the successor in law to the Accident Compensation Commission: see s 64(1) of the Accident Compensation (WorkCover Insurance) Act 1993 (Vic). I respectfully agree with and adopt the reasons given by Heerey J in Gamali. The main point argued before me today is the contention on behalf of the judgment debtor that the extracts in evidence do not establish that the compensation ordered to be paid was payable to the Accident Compensation Commission. I am satisfied, from those extracts, the supporting material and the absence of any material whatsoever that would raise any doubt, as to that matter, that the underlying debt and the judgment debt was payable to the Commission as the entity suffering loss as a result of the deception the subject of the conviction and also that the Commission was the entity applying for compensation under s 86 of the Sentencing Act. In my view, the judgment creditor has established the act of bankruptcy relied upon by it in its petition. I am also satisfied with the proof of the other matters of which s 51(1) of the Bankruptcy Act requires proof. I order that: (1) the estate of the judgment debtor David Sarikaya be sequestrated; and (2) the petitioning creditor's costs, including any, reserved costs, be taxed and paid in accordance with the Bankruptcy Act 1966. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel Associate: Dated: 1997 Counsel for the Judgment Debtor: Mr R A Fink Solicitor for the Judgment Debtor: David Tonkin Solicitor for the Judgment Creditor: Mr C C Hussey Solicitors acting for the Judgment Creditor: Hussey & Co Date of Hearing: 1 August 1997	2,647
federal_court_of_australia:fca/single/2018/2018fca0142	decision	commonwealth	federal_court_of_australia	text/html	2018-02-19 00:00:00	Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd [2018] FCA 142	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2018/2018fca0142	2024-09-13T22:53:24.685629+10:00	FEDERAL COURT OF AUSTRALIA Directed Electronics OE Pty Ltd v OE Solutions Pty Ltd [2018] FCA 142 File number: VID 1157 of 2017 Judge: BEACH J Date of judgment: 19 February 2018 Date of publication of reasons 22 February 2018 Catchwords: PRACTICE AND PROCEDURE – interlocutory injunction – where applicant alleges a supply agreement arising from long-standing conduct – where suppliers have notified intention to terminate supply – what constitutes a reasonable period of notice – application granted in part Cases cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1136 Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499; [1988] FCA 206 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 Metro Investments Holdings Pty Ltd v GM Holden Ltd [2017] FCA 1523 Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2013] WASC 375 Moonlighting International Pty Ltd v International Lighting Pty Ltd [1999] FCA 1872 Moonlighting International Pty Ltd v International Lighting Pty Ltd [2000] FCA 41 Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513 SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (No 1) [2011] FCA 1054 Date of hearing: 19 February 2018 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 63 Counsel for the Applicant: Mr M Wise SC and Ms N Hickey Solicitor for the Applicant: K&L Gates Counsel for the Fifth and Twelfth Respondents: Mr M Osborne QC and Mr T Warner Solicitor for the Fifth and Twelfth Respondents: Mills Oakley ORDERS VID 1157 of 2017 BETWEEN: DIRECTED ELECTRONICS OE PTY LTD (ACN 130 647 737) Applicant AND: OE SOLUTIONS PTY LTD (ACN 119 188 019) First Respondent HANHWA AUS PTY LTD (ACN 614 943 092) Second Respondent HANHWA HIGHTECH AUSTRALIA PTY LTD (ACN 153 718 435) (and others named in the Schedule) Third Respondent JUDGE: BEACH J DATE OF ORDER: 19 FEBRUARY 2018 UPON THE APPLICANT UNDERTAKING TO THE COURT BY ITS COUNSEL TO: (a) submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of order 1 below or any continuation (with or without variation) thereof; and (b) pay the compensation referred to in (a) to the person or persons there referred to. THE COURT ORDERS THAT: 1. The fifth and twelfth respondents be restrained from acting upon the Hanhwa Korea Notice as defined in paragraph 129 of the statement of claim dated 13 December 2017 in this proceeding until 17 May 2018. 2. The costs of and incidental to the applicant's interlocutory application dated 14 February 2018 be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BEACH J: 1 These reasons concern the applicant's application for an interlocutory injunction restraining certain conduct of the fifth and twelfth respondents. The application has been focused upon a very narrow aspect of the parties' dispute the subject of the principal proceedings. 2 The applicant, Directed Electronics OE Pty Ltd (Directed OE), is an Australian automotive electronics products and solutions developer and supplier, specialising in the development and distribution of in-vehicle electronics, hardware, telematics and related technologies. 3 The fifth respondent, Hanhwa Hightech Co., Ltd, and the twelfth respondent, Leemen Co. Ltd, both South Korean companies (together the Hanhwa Korea Parties), manufacture and supply audio visual units and accessories or component parts to Directed OE for supply by Directed OE to its customers. They have done so since 2009 in the case of the fifth respondent and since 2015 in the case of the twelfth respondent. Directed OE has contended that the supply to it from the Hanhwa Korea Parties has been under a supply agreement constituted predominantly by conduct over an extended period, particularly in relation to the fifth respondent. 4 Directed OE's customers include Isuzu, Fuso, Hino, Mercedes Benz, UD, International Trucks and CATepillar (Directed OE Customers). Products supplied by the Hanhwa Korea Parties to Directed OE for on-sale to Directed OE Customers presently account for approximately 95% of Directed OE's total sales. 5 On 17 November 2017, the Hanhwa Korea Parties informed Directed OE that they intended to cease supply and to terminate the supply arrangements, but the Hanhwa Korea Parties stated that they would continue to accept purchase orders from Directed OE up to 28 February 2018 and to supply products pursuant to any such orders placed before that date (Hanhwa Korea Notice). 6 By interlocutory application dated 14 February 2018, Directed OE has sought orders that the Hanhwa Korea Parties be restrained from: (a) acting upon the Hanhwa Korea Notice until 17 November 2018; (b) refusing to accept and otherwise supply products in accordance with orders placed by Directed OE for products in reliance upon the Hanhwa Korea Notice; (c) further or alternatively, refusing to accept orders and supply of products in accordance with orders placed with them by Directed OE on or before 30 June 2018 in reliance upon the Hanhwa Korea Notice. 7 Directed OE has submitted that the period of the restraint sought by the injunction is directed to enabling it to lodge its final purchase orders with the Hanhwa Korea Parties by 30 June 2018 with the supply of that product to occur between September and October 2018. It has said that this time period was required so that it could put alternative supply arrangements in place to enable continuity of supply to Directed OE Customers. It has said that without this time to put in place alternative suppliers, it was likely that the Hanhwa Korea Parties would appropriate Directed OE Customers after 28 February 2018. 8 Directed OE has contended that the premature termination of the supply arrangements with the Hanhwa Korea Parties would: (a) deprive Directed OE of a reasonable opportunity to maintain its business by making other supply arrangements; and (b) facilitate the commercial objectives of the Hanhwa Korea Parties in the broader proceedings that Directed OE alleges have been pursued by unlawful means. 9 On 19 February 2018 I granted an interlocutory injunction, but only in limited terms and only for the period to 17 May 2018. These are my reasons for that grant. Some principles 10 Directed OE has said that it is not uncommon for an interlocutory injunction to issue to prevent the termination of an ongoing relationship of the type existing in the present case. By way of example, Directed OE has pointed to the decision of Edelman J in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2013] WASC 375. 11 Directed OE has conceded that an injunction restraining the breach of a negative stipulation may have a similar effect to a mandatory injunction, but it has contended that the authorities show that this does not warrant any departure from the relevant balancing exercise. Further, it accepts that the court is to exercise a level of caution prior to granting an injunction if the effect may be akin to final relief; see for example Australian Rugby Union Ltd v Hospitality Group Pty Ltd [1999] FCA 1136 per Sackville J at [29] to [31]; Samsung Electronics Company Ltd v Apple Inc (2011) 217 FCR 238 per Dowsett, Foster and Yates JJ at [87]; Metro Investments Holdings Pty Ltd v GM Holden Ltd [2017] FCA 1523 per White J at [14]. 12 Directed OE has pointed to a large number of cases in various fields and industries in which an applicant has obtained an interlocutory injunction in order to restrain the purported termination of a contract. I do not need to refer to them, save to note that it has relied upon Moonlighting International Pty Ltd v International Lighting Pty Ltd [2000] FCA 41 (Moonlighting (No 2)). 13 Contrastingly, the Hanhwa Korea Parties have contended that the injunction sought although negative in form is mandatory in substance. Moreover, they have contended that to grant the injunction sought would be tantamount to granting relevant final relief in relation to the Hanhwa Korea Notice. 14 In the context of the present dispute, it is appropriate to make the following brief observations in terms of questions of principle. 15 First, in relation to the test in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 at [65] to [72] per Gummow and Hayne JJ and the prima facie case limb, it is necessary to show a sufficient likelihood of success to justify the grant of the injunction, with such sufficiency being dependent upon the nature of the right being asserted and the practical consequences that are likely to flow if an injunction was granted. The prima facie case formulation commanded majority support in ABC v O'Neill. It was expressly referred to by Gummow and Hayne JJ, supported by Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; further, Gleeson CJ and Crennan J agreed with the exposition of the principles set out by Gummow and Hayne JJ. Further, many decisions of this Court have used the prima facie case language. Contrastingly, the serious question to be tried formulation had its genesis with earlier authority where the bar might be perceived to have been set too low as a consequence of the use of such phraseology. Earlier authority did not colour such a formulation with the flexibility and nuance that is now expressly required. 16 Second, the relief sought by Directed OE in substance could be considered to have the effect of a mandatory injunction, that is, an obligation to continue to supply. But there is no separate test. The ABC v O'Neill test is equally applicable to mandatory injunctions in terms of the formulation of the test as distinct from its application in a particular case. The applicant for an injunction does not have to show anything additional, such as a "high degree of assurance". This has been discussed in earlier authorities, including by Gummow J in Businessworld Computers Pty Ltd v Australian Telecommunications Commission (1988) 82 ALR 499; [1988] FCA 206. 17 Sometimes, the approach in the context of mandatory injunctions has been to view the matter through the lens of taking the course that produces the lesser risk of injustice if it should turn out that the decision of the court is "wrong", in the sense of either granting an injunction where a party fails or would fail to establish its right at trial or failing to grant an injunction to a party who succeeds or would succeed at trial. It has been previously thought that, generally, a mandatory injunction will usually have the consequence of creating a greater risk of injustice if granted and the decision turns out to be "wrong", rather than if it were to be with-held. 18 Now several points. This lens is not, in form, how the second limb (balance of convenience) of the ABC v O'Neill test has been formulated, but some aspects of this lens are not mutually inconsistent with that second limb. Further, one cannot generalise in relation to mandatory injunctions in any event. But it may be that for a particular form of mandatory injunction in a particular case, if such a lens were to be used, that the strength of the prima facie case may be relevant to that lens; the stronger the prima facie case, the less the likelihood of being "wrong" if the injunction was to be granted. Now this is not a backdoor for some requirement for a "high degree of assurance" being necessary to be shown for mandatory injunctions in general, but rather suggests that the strength of the prima facie case should be in the mix in dealing with the balance of convenience at least. Moreover, even on the first limb, the strength of the probability required depends, in part, on the consequences likely to flow. If the consequences are more severe with respect to a particular mandatory injunction, then the probabilities required might rise. 19 Third, the balance of convenience looks at what the inconvenience, injury or injustice to Directed OE would be if the injunction were refused and seeks to weigh that against the inconvenience, injury or injustice to the Hanhwa Korea Parties if the injunction were granted. Only if the balance lies in favour of Directed OE, that is, if the inconvenience, injury or injustice to Directed OE if the injunction were refused outweighs the Hanhwa Korea Parties' prejudice, would an injunction be granted. It was submitted before me that I should assess the balance of convenience also in the context of considering the strength of the prima facie case: Samsung Electronics Co Limited Ltd v Apple Inc (2011) 217 FCR 238 at [67]. I agree that the stronger the prima facie case, then the less strong the balance has to weigh in favour of Directed OE (and, of course, vice versa). Putting it slightly differently, if the balance is more equally poised, but Directed OE has a strong prima facie case, then the interaction between the two limbs may tip the balance in favour of granting an injunction. Moreover, if mandatory orders are in substance sought, the relevance of the strength of the prima facie case may take on an additional dimension for the reasons previously discussed, but not in the previously discarded "high degree of assurance" threshold sense. 20 Let me now turn to the specific arguments. Prima facie case 21 Directed OE has said that the dispute between the parties concerns: (a) whether there is any form of binding agreement between the Hanhwa Korea Parties and Directed OE that might concern future supply; (b) if so, whether there is an implied term requiring reasonable notice of any termination of that agreement; and (c) what time period should be regarded as "reasonable notice" if there is any such implied term. 22 Directed OE has contended that it has a strong prima facie case in relation to the matters in (a) and (b). As to (c), Directed OE has submitted that reasonable notice would require the continuation of the supply of products for 12 months or the fulfilment of orders placed within 8 months which Directed OE has contended amounts in effect to the same period of time. 23 Contrastingly, the Hanhwa Korea Parties have submitted that Directed OE has not established a prima facie case as to the following matters. (a) First, the existence of an overarching agreement terminable on reasonable notice. (b) Second, that insofar as any notice of termination was necessary, which is disputed, the notification given on 17 November 2017 confirming that they would honour all purchase orders placed prior to 28 February 2018 was not reasonable in the circumstances. Is there a long-term agreement between the parties or an ad hoc supply arrangement? 24 Directed OE has contended that it has a strong prima facie case that there is a supply agreement, on a long term basis, rather than some kind of ad hoc supply arrangement based solely on purchase orders. It has said that so much was clear from the following context, background and dealings between the parties, relying upon the evidence of Mr Stavros Siolis, director of Directed OE: (a) The complex nature of the needs of Directed OE Customers. (b) A lead time of between 6 to 18 months in developing relevant products for supply, which involved design and development, working with employees of the Hanhwa Korea Parties who during periods of time worked at Directed OE's premises in Australia, the need to determine manufacturing costs, the engagement of sampling, testing and modifications and so forth. (c) The costs of tooling manufacture, samples and prototypes which were paid by Directed OE to the Hanhwa Korea Parties. (d) The period of the relationship, being 9 years in the case of the fifth respondent. (e) The large quantum involved in payments, in the context of the above matters. In the period 2009 to 2017 Directed OE paid the Hanhwa Korea Parties around AUD 106 million for products to supply to the Directed OE Customers. (f) In recent years, Directed OE has paid the Hanhwa Korea Parties substantial amounts for products to supply to Directed OE Customers: (i) in 2016 – AUD 22 million; (ii) in 2017 – AUD 21.5 million; and (iii) in 2018 to date – AUD 3 million. (g) Directed OE currently has AUD 3.6 million worth of products on order from the Hanhwa Korea Parties to supply to Directed OE Customers. (h) In the period 2009 to 2017 Directed OE made payments to the fifth respondent of AUD 2.3 million for tooling to manufacture products for Directed OE to its order. (i) Directed OE has paid the Hanhwa Korea Parties in advance USD 149,100 to secure the supply of 21,000 CLM7700 units for inclusion in the forecast 21,000 AV units to be supplied to Directed OE during 2018. And typically for AV units, the time between Directed OE placing an order with the fifth respondent and delivery has been about 3 to 4 months. 25 Directed OE has contended that with one exception, each of the Directed OE Customer's AV units and the accessory/component parts have been made to the specific requirements of each customer and are not substitutable for supply to another Directed OE Customer. It has said that Directed OE Customers typically order the particular design of an AV Unit exclusively from Directed OE for about 4 to 5 years before moving to an entirely new design or upgrade, and that they typically provide Directed OE with rolling orders 3 months in advance which vary depending on their forward supply requirements. Directed OE would then place orders with the Hanhwa Korea Parties on a back-to-back basis when such orders were received from Directed OE Customers. 26 Directed OE has said that it does not have committed forward orders from Directed OE Customers for their requirements beyond April 2018. However, Directed OE believes that Directed OE Customers will continue to order products as they have done in the past throughout 2018. Directed OE has said that the spreadsheet of Mr Kon Floudas that was provided to the Hanhwa Korea Parties detailed Directed OE's anticipated ordering requirements from the Hanhwa Korea Parties for AV units between February and September 2018. The anticipated total number of AV units set out in Mr Floudas' spreadsheet was for 21,000 AV units for supply to Isuzu, Hino, Fuso, UD and Mercedes Benz. However, the number of orders actually placed by Directed OE Customers with Directed OE has fallen below these expectations. 27 These additional circumstances were said to be further support for the existence of an ongoing supply agreement between the parties. 28 Contrastingly, the Hanhwa Korea Parties have submitted that Directed OE has pointed to no communications, written or oral, which established any legally enforceable arrangement beyond one where a separate supply contract came into existence upon the acceptance of each purchase order. They have said that the absence of mutuality supportive of such an arrangement is striking. Further, they have said that their arrangement with Directed OE has not been a distributorship whereby Directed OE has been distributing Hanhwa Korea branded products (which is different to the scenarios in Moonlighting (No 2) and Sanderson Motors (Sales) Pty Ltd v Yorkstar Motors Pty Ltd [1983] 1 NSWLR 513 per Yeldham J). Further, they have noted that Directed OE has not been bound to purchase from the Hanhwa Korea Parties particular quantities. Further, they have noted that there was no price list. Prices were not fixed (unlike in Moonlighting (No 2)) and prices were re-negotiated from time to time as commercial considerations arose. 29 Now I accept that there is some force to the Hanwha Korea Parties' submissions, but in my view Directed OE has shown sufficient to establish that it has at the least a reasonable prima facie case as to the existence of a legally enforceable supply agreement. Does the supply agreement contain an implied term of reasonable notice? 30 Directed OE has alleged that its agreement with the Hanhwa Korea Parties includes various implied terms that arise from the course of dealings between them in relation to the supply of products since 2009. It has contended that the following terms were express or implied in fact as necessary and in order to give it business efficacy: (a) That the Hanwha Korea Parties would source or manufacture components and products for Directed OE for supply to Directed OE Customers. (b) That Directed OE would pay to the Hanwha Korea Parties their costs for the manufacture of the tooling to manufacture products. (c) That Directed OE would provide future ordering forecasts and written orders for products in writing. (d) That Directed OE would pay 20% of the purchase price of products ordered as a deposit at the time of placing an order in writing. (e) That Directed OE would pay the balance of the purchase price prior to shipment. (f) That the Hanhwa Korea Parties would give reasonable notice to Directed OE of their intention to terminate the agreement or the supply of a particular product or component part. 31 Directed OE has said that terms (d) and (e) above have been expressly agreed as between the parties, relying on correspondence between the parties. Further, Directed OE has contended that once one accepts that there is more than an ad hoc supply agreement between the parties, then absent some express provision, such an agreement is subject to an implied term that the agreement may be brought to an end only upon either party giving the other reasonable notice of termination. 32 Now the Hanhwa Korea Parties did not respond to this specific contention, instead relying upon their submission that no ongoing supply agreement existed in the first place. 33 I consider that Directed OE has established at the least a reasonable prima facie case that the relevant supply agreement contained such an implied term dealing with termination on reasonable notice. The subject matter of the supply arrangements, the relationship between the parties including the length thereof, and the significance of the supply arrangements to the business of Directed OE well support such an implied term. What time period is reasonable notice? 34 Directed OE has submitted that the reasonableness of the period of notice must reflect the circumstances in existence at the time that the notice was given. It has said that the whole of the relationship between the parties as it stands when notice was given must be considered, not simply the circumstances at the inception of the contract (see Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 at 444 per McHugh JA (as he then was); Moonlighting International Pty Ltd v International Lighting Pty Ltd [1999] FCA 1872 at [10]; Moonlighting (No 2) at [4]). I quite agree and have nothing to add to the discussion on this aspect by McHugh JA in Crawford. 35 Directed OE has said that here, the factors outlined in Moonlighting (No 2) were apposite. It has said that the period of notice must be sufficiently long to enable the recipient to secure a replacement supplier if one is available, to fulfil existing contractual commitments, to carry out other commitments, to bring current negotiations to fruition, and to wind up the business relationship in a businesslike manner. Applying these factors to the present case, Directed OE has pointed to the following: (a) Mr Siolis has given evidence regarding the length of time required by Directed OE to address the said matters and why that amount of time was required. (b) Directed OE has said that it is entitled to have sufficient time to find an alternative supplier and to fulfil its commitments to Directed OE Customers. (c) Directed OE has said that the 28 February 2018 deadline for orders was not sufficient time for Directed OE to put alternative arrangements in place. It has said that there appeared to be no reasonable rationale for this deadline, given the commitments already made by the Hanhwa Korea Parties to supply 21,000 AV units in 2018. 36 Contrastingly, the Hanhwa Korea Parties have submitted that Directed OE has not established a prima facie case that the notification given on 17 November 2017 was unreasonable, or that 7.5 months (until 30 June 2018) was required, noting the following. First, they have said that no further period was required in order to allow Directed OE to supply products in respect of which it had accepted orders from customers. The 28 February 2018 deadline (3.5 months) was not unreasonable in the circumstances. Second, they have said that ordering prior to 28 February 2018 would allow Directed OE to supply committed orders from its customers up until 31 May 2018. Third, they have said that no further period was required in order to allow Directed OE to supply products in respect of which it could anticipate supply requirements and that Directed OE must bear the commercial risk that customers may not place orders with it in accordance with its forecasts. Finally, they have said that there was no evidence that further time was required in order to permit Directed OE to recover the costs and expenses of quoting for work to its customers. 37 In my view, and after considering the evidence, I consider that Directed OE has a reasonable prima facie case to establish a termination provision of around 6 months given the long term supply arrangement, the significance of the supplies to Directed OE and the other matters mentioned above. However, I consider that it has a weak case to establish a 12 month notification period. Of course, at this stage I am not deciding any of these matters. Balance of convenience 38 Directed OE has contended that the balance of convenience lies in favour of granting the relief sought. It has said that if no injunction was granted and Directed OE was successful in the main proceeding, Directed OE would suffer the irreparable and "catastrophic" damage described as a consequence of the unlawful termination of supply arrangements by the Hanhwa Korea Parties. Alternatively, it has said that if the injunction were granted, the Hanhwa Korea Parties would continue to supply to Directed OE and would continue to make the profits that they are currently making from the existing supply arrangements; that is, there would be no prejudice to the Hanhwa Korea Parties flowing from the grant of the injunction. 39 Contrastingly, the Hanhwa Korea Parties have contended generally that having regard to the weakness of Directed OE's prima facie case and to the offer by the Hanhwa Korea Parties to fill purchase orders placed by 28 February 2018, the balance of convenience favours the refusal of interlocutory relief. 40 Now I should say at the outset that I accept that the strength of the prima facie case is something to weigh in and with the balance of convenience. But I have not accepted that Directed OE's prima facie case is weak, at least in relation to the 6 month termination period as compared with the 12 month termination period. Are damages an adequate remedy? 41 Directed OE has said that it will suffer irreparable harm if the injunction sought was to be refused. Irreparable harm means injury "for which damages would not be adequate compensation" (SPAR Licensing Pty Ltd v MIS Qld Pty Ltd (No 1) [2011] FCA 1054 per Perram J at [6]). Directed OE has said that this was such a case, having regard to the consequences of termination, and to the practical difficulties involved in Directed OE enforcing a civil monetary judgment in South Korea. 42 Indeed, Directed OE has described the consequences of termination on its business as "catastrophic". It has said that termination was likely to result in the need to retrench at least 20 employees, the loss of up to approximately 95% of Directed OE's current income, the need to postpone and/or abandon plans to move by September 2018 into purpose built facilities in excess of 20,000 square metres proximate to Isuzu in Melbourne, and "huge long term reputational damage as a reputable and trusted supplier … from which it may never recover". 43 Directed OE has said that its practice of placing back-to-back orders with the Hanhwa Korea Parties to match orders received from customers (which has been the system and practice for 9 years) did not permit it to place orders for products from the Hanhwa Korea Parties more than 3 months in advance. It has said that requiring it to order all products for supply up to November 2018 by 28 February 2018 would place it at substantial risk of purchasing millions of dollars of stock that may never be purchased by its customers. It has said that because many products are of a bespoke design, it would render unsold products valueless. 44 Further, Directed OE has said that damages are not an adequate remedy because the enforcement of any court order for damages was likely to carry significant risk. The affidavit evidence of Directed OE's solicitor was to the effect that enforcing a civil monetary judgment in South Korea would be neither straightforward nor easy and could take a long time. Directed OE has said that there was also no evidence that the Hanhwa Korea Parties have any assets in Australia. 45 Contrastingly, the Hanhwa Korea Parties have submitted that damages are an adequate remedy, saying that the only damage to Directed OE if it places orders prior to 28 February 2018 is set out in Mr Siolis' affidavit evidence being: (a) the possible write-off (deductible expense) of obsolete stock of some undetermined amount. (b) a "finance" cost occasioned by having to pay for goods from the Hanhwa Korea Parties earlier than Directed OE wishes (circa USD 1.68 million), which Directed OE appears to have the capacity to meet. 46 The Hanwha Korea Parties also point to the fifth respondent's balance sheet which they say is strong. Further, contrary to Directed OE's evidence, they have also submitted that the South Korean legal system is "generous" in its recognition and enforcement of foreign monetary judgments. By this I understand them to have contended that an award of damages could be satisfied and that the enforcement process in South Korea would not be onerous. 47 Further, the Hanhwa Korea Parties have submitted that the evidence of Mr Siolis conflated on the one hand the damage that would be suffered by Directed OE if the injunction was not to be granted, and on the other hand the practical effect that it would be unable to secure replacement supply arrangements from manufacturers other than the Hanhwa Korea Parties and that it would be unable to secure long-term ongoing relationships with its own customers. They have said that the latter is the result of legitimate commercial competition. 48 On balance, in my view I do not consider that damages would be a sufficient and adequate remedy for the reasons advanced by Directed OE including reputational questions and also problems of enforcement, although I do note as a matter of interest that it was Directed OE who first chose to sue the Hanhwa Korea Parties in this jurisdiction. Undertaking as to damages 49 There was some dispute between the parties regarding whether the usual undertaking as to damages would be adequate. 50 As to its capacity to pay any damages under the undertaking it would be required to give, Directed OE referred to a confidential annexure comprising its balance sheet and financial statements as at 31 December 2017. It has said that these documents, along with the affidavit of Mr Floudas, establish that Directed OE and the related entities of Directed OE are in sound financial health. It has said that Directed OE is a company with substantial turnover and is very profitable, with a healthy balance sheet with readily realisable assets. 51 The Hanhwa Korea Parties have responded that where Directed OE was already exposed via an undertaking as to damages in respect of an earlier injunction I granted in the proceeding on another matter, there was real doubt as to the adequacy of any undertaking as to damages, and that its future manufacturing supply pipeline, much less the terms of any future supply, have not been secured. 52 On balance I consider that Directed OE, on the present material before me, has sufficient financial strength to support the usual undertaking as to damages. Other factors affecting the balance of convenience 53 First, Directed OE submitted that if the injunction was granted, the likely scenario was that the Hanhwa Korea Parties would continue to derive revenue and make profits for the supply of products ordered by Directed OE as they had done for the last 9 years. It noted that the Hanhwa Korea Parties have already committed to supply Directed OE through 2018 and in respect of which they have already purchased component parts for and at the cost of Directed OE. This is anticipated to be in the order of USD 8.4 million for products over the next 8 months. It has submitted that it is hard to conceive how the Hanhwa Korea Parties could suffer loss and damage should they be required to continue accepting orders from Directed OE for supply of products up to 30 June 2018 rather than if Directed OE is forced to place its anticipated orders for 21,000 AV Units all by 28 February 2018. It is said that it was likely that the same products would be ordered, manufactured and delivered by the Hanhwa Korea Parties to Directed OE over the same time period during 2018. The only difference would concern the payment of the 20% deposit (USD 1.68 million). The money would not be paid in advance, but rather on a staggered basis as had been the case for the last 9 years when orders were placed on a 3-monthly rolling cycle. 54 Second, Directed OE has submitted that it is unlikely that ongoing supervision by the court would be required if the injunction was granted. Further, it notes that even if this were required occasionally, it would not necessarily be fatal to the granting of the relief it seeks. In relation to the present case it has said: (a) The agreement has operated without any legal or court intervention for 9 years, and has operated after the commencement of this proceeding for 4 months. (b) It could be inferred that the Hanhwa Korea Parties consider that the supply agreement can operate for the balance of 2018 given that they are willing and able to accept and fulfil the orders that were set out in Mr Floudas' spreadsheet or indeed any orders if placed before 28 February 2018. Further, the Hanhwa Korea Parties have already purchased component parts for inclusion in relevant units at the cost of Directed OE. (c) Further, the specifications and design of all products which will be ordered is set and does not need to be altered. The only variable is how many units of each product type are ordered by Directed OE. (d) Further, there was no need for any new product development or negotiations regarding the payment for tooling as no new products will be designed or developed. (e) Further, there was no need for any negotiations regarding pricing of products as the existing pricing for products was set, and in the normal course would not be reviewed or revised by negotiation before June 2018. Further, payment terms were also set consistent with the arrangements that have been in place for the last 9 years. 55 Third, Directed OE says that concern has been expressed by Directed OE Customers relating to continuity of supply. It alleges that someone within the Hanhwa Korea Parties has advised Isuzu that Directed OE cannot obtain supply of products after 28 February 2018. It says that this is to the benefit of the Hanhwa Korea Parties. It says that as a consequence, certain customers are now becoming non-committal as to the placing of orders for supply of products beyond the end of February 2018, which is likely to result in those customers sourcing the supply of products elsewhere and most likely directly from the Hanhwa Korea Parties. Further, it says that there will be long term reputational damage to Directed OE as a reputable and trusted supplier in the Australian and New Zealand automotive markets, from which it may never recover. It says that the injunctions are necessary to protect Directed OE from the long term consequences of this conduct by the Hanhwa Korea Parties. 56 Fourth, Directed OE says that this is not the kind of case where there is uncertainty in relation to the prospect of successfully securing supply, such that there is a risk that any time extension would be arid. Rather, it says that it has been diligent in securing alternative sources of supply, but requires time to put these arrangements in place. 57 In summary, I consider that there is force in each of these points, although I have a residual concern relating to the potential supervision that may be necessary as to the ongoing contractual relationship during the termination period. But generally speaking, Directed OE's points, supported by the evidence, further fortify its position on the balance of convenience. 58 Contrastingly, the Hanhwa Korea Parties submit that it is plain that any necessary relationship of trust and confidence between the parties has gone. They say that regular communications are required between the parties, that no price had been agreed or set for the price of products beyond 28 February 2018, and that there are already apparent allegations by Directed OE of "slow" engagement and supply by the Hanhwa Korea Parties (these are denied). They say that in such circumstances it is likely that the Court will have to supervise the injunction, which is obviously undesirable, and a difficulty arguably exacerbated by the fact that the Hanhwa Korea Parties are foreign companies. Now I accept that all of this may be so and I have taken it into account. Nevertheless, it does not tip the balance in favour of the Hanhwa Korea Parties. 59 Second, the Hanhwa Korea Parties contend that, in reality, Directed OE seeks protection from competitive activity from the Hanhwa Korea Parties (and also the second respondent in the proceedings Hanhwa Aus Pty Ltd) for a sufficient period of time, so as to allow it to secure 3 year supply arrangements with its customers without the Hanhwa Korea Parties (or Hanhwa Aus) being able to compete with it for such business. They contend that such anticompetitive activity is: (a) harmful to the Hanhwa Korea Parties; (b) harmful and potentially "catastrophic" for Hanhwa Aus (and its employees); and (c) harmful to the end customers who are denied the potential benefit of commercial competition. 60 Now I have considered such matters and am alive to such concerns. But various points may be noted. First, the Hanhwa Korea Parties' concerns in some respects seem to be over-stated. Second, the consequences asserted in part may not be considered to be unjust given that Directed OE has established a prima facie case to be given reasonable notice of termination, and the asserted consequences may be said to flow from meeting such requirement. 61 Finally, I have also taken into account the Hanhwa Korea Parties' arguments that the effect of granting the injunction may be to in effect give final relief and also in substance to mandatory effect. But in all the circumstances, I do consider that Directed OE is entitled to an injunction that in essence pushes the termination period back from 28 February 2018 to 17 May 2018. This is a period of 6 months from 17 November 2017 rather than the 12 months sought by Directed OE, which in my view is a reasonable compromise in all the circumstances. 62 In summary, whilst I consider that the Hanhwa Korea Parties' submissions have some force, I consider that on balance Directed OE would suffer greater harm if I refused the injunction than the Hanhwa Korea Parties would suffer if I granted the injunction, and that it is problematic as to whether damages will be an adequate remedy. But mindful of the position of the Hanhwa Korea Parties, I have considered that a more limited form of injunction through and until 17 May 2018 (reflecting a period of 6 months) is more appropriate. Conclusion 63 It is for the foregoing reasons that I granted the injunction against the Hanhwa Korea Parties, albeit in more limited terms than that sought by Directed OE. I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beach. Associate: Dated: 22 February 2018 SCHEDULE OF PARTIES VID 1157 of 2017 Respondents Fourth Respondent: LEEMEN AUS PTY LTD (ACN 621 821 190) Fifth Respondent: HANHWA HIGHTECH CO., LTD Sixth Respondent: JOHNNY MENESES Seventh Respondent: CRAIG MILLS Eighth Respondent: KICHANG (RYAN) LEE Tenth Respondent: GRIDTRAQ AUSTRALIA PTY LTD (ACN 154 515 394) Eleventh Respondent: WEBHOUSE SOFTWARE SOLUTIONS PTY LTD (ACN 152 567 416) Twelfth Respondent: LEEMEN CO. LTD Thirteenth Respondent: QUANTUM TELEMATICS PTY LTD (ACN 159 485 051)	8,826
federal_court_of_australia:fca/single/2020/2020fca0459	decision	commonwealth	federal_court_of_australia	text/html	2020-04-07 00:00:00	A & S Powerseller Pty Ltd v Kovacic [2020] FCA 459	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca0459	2024-09-13T22:53:24.968186+10:00	FEDERAL COURT OF AUSTRALIA A&S Powerseller Pty Ltd v Kovacic [2020] FCA 459 File number: VID 1287 of 2019 Judge: KERR J Date of judgment: 7 April 2020 Date of publication of reasons: 8 April 2020 Catchwords: BANKRUPTCY AND INSOLVENCY – application for review of Registrar's decision to make sequestration order – whether "other sufficient cause" under s 52(2) of the Bankruptcy Act 1966 (Cth) for dismissing creditor's petition – no "other sufficient cause" established – application dismissed Legislation: Bankruptcy Act 1966 (Cth) s 52 Cases cited: Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 Wren v Mahoney [1972] HCA 5; 126 CLR 212 Date of hearing: 7 April 2020 Date of last submissions: 3 April 2020 Registry: Victoria Division: General Division National Practice Area: Commercial and Corporations Sub-area: General and Personal Insolvency Category: Catchwords Number of paragraphs: 33 Solicitor for the Applicant: Ms Allamby of MST Lawyers Counsel for the Respondent: Mr Kovacic appeared in person ORDERS VID 1287 of 2019 BETWEEN: A&S POWERSELLER PTY LTD Applicant AND: ZORAN KOVACIC Respondent JUDGE: KERR J DATE OF ORDER: 7 APRIL 2020 THE COURT ORDERS THAT: 1. The Respondent's application for review of the decision of Registrar Ryan to make a sequestration order dated 6 February 2020 be dismissed. 2. The Respondent pay the costs of the Applicant in the sum of $2,470.00. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) KERR J: 1 On 6 February 2020, Judicial Registrar Ryan in the exercise of the power of this Court ordered that the Respondent's estate be sequestrated. This is an application for review of that order. It was filed on 27 February 2020. For the reasons that follow, I refuse that application. I earlier made an interlocutory order that proceedings under that sequestration order be stayed until my hearing of the matter. Having regard to the conclusions I have reached, I decline to extend that stay. 2 I am satisfied that the formal preconditions required for Registrar Ryan to have made a sequestration order pursuant to the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) were complied with. On 2 September 2019, the Mr Kovacic had been personally served with an official copy of a bankruptcy notice. That notice had identified the basis of the debt the Applicant claimed the Respondent owed as being a default judgement made by the Dandenong Magistrates' Court on 25 February 2019, in proceeding J13101693 A&S Powerseller Pty Ltd v Zoran Kovacic. The asserted debt not having been paid, Mr Kovacic was subsequently served with a Creditor's Petition on 5 December 2019. The Creditor's Petition was returnable on 23 January 2020. 3 When this matter first came before Registrar Ryan on 23 January 2020 it was adjourned at the request of A&S Powerseller Pty Ltd for a hearing on 6 February 2020. When the matter then came before Registrar Ryan on that date, Mr Kovacic made an oral application for an adjournment. In his affidavit dated 27 February 2020 (the First Affidavit), read in support of his application for review, Mr Kovacic deposes at [22] that he advised Registrar Ryan that he needed an adjournment because he wanted to make an application to the Dandenong Magistrates' Court to set aside the default judgement. Mr Kovacic deposes that he told Registrar Ryan that he had not been served with a copy of the complaint, and that he had not comprehended that a default judgement had been issued against him until the day before that hearing. Mr Kovacic also deposes that he had been disadvantaged in making submissions because he had been required to attend the Sunshine Magistrates' Court on the same day. He had thus had to participate in the hearing before Registrar Ryan from that location by mobile telephone. 4 Registrar Ryan did not adjourn the hearing. Instead, it is uncontentious that after hearing submissions from the parties he made a sequestration order as had been sought by the Applicant. 5 A review of the decision of a Registrar is to be heard and determined de novo. It is a review of the decision: not of the reasons. 6 That principle has more than usual significance in this case. That is because on 11 February 2020, following the making of the sequestration order but before Mr Kovacic filed his application for review in this Court, Mr Kovacic filed an application in the Dandenong Magistrates' Court seeking a rehearing of proceeding J13101693 (A&S Powerseller Pty Ltd v Zoran Kovacic). That application was listed for hearing on 6 March 2020. 7 In filing that application, Mr Kovacic stated as his reason for not having appeared at the original hearing: I was not aware, notified or served with the original statement of claim and as a consequence I was unaware until a week ago when I contacted the registry to obtain further details and a copy of the paperwork related to this matter after a friend explained to me what had happened and the procedure in obtaining a default judgement in my absence and what I should do about it. 8 In an affidavit "in objection of the Respondent's application" affirmed on 25 March 2020 and read in this matter, Ms Allamby (a lawyer acting on behalf of A&S Powerseller Pty Ltd) deposes that she had appeared in opposition to that application. It was heard by Magistrate Burns. It was refused. 9 Ms Allamby deposes at paragraph [36] of her affidavit that when Mr Kovacic asked Magistrate Burns why his application had been refused, the Magistrate had remarked that he had found the Respondent's evidence to be untrue. 10 On 3 April 2020, Mr Kovacic filed a second affidavit in this Court (the Second Affidavit). It is in evidence, and has been read in this review. In the Second Affidavit, Mr Kovacic alleges that Ms Allamby deliberately misled Magistrate Burns by perpetuating a story that it was agreed between A&S Powerseller Pty Ltd and himself that he had issued personal cheques (later dishonoured) in purported payment for goods that had been supplied to him. He contends that it was clear that Magistrate Burns had already made up his mind, and was biased. 11 Mr Kovacic however confirms the substance of Mr Allamby's evidence that Magistrate Burns did find that Mr Kovacic's evidence could not be accepted. Mr Kovacic himself deposes (at paragraph [44] of the Second Affidavit) that when he had asked Magistrate Burns why he had declined his application he was told it was because "he did not believe my affidavit but believed Ms Allamby's". 12 At [48] of the Second Affidavit, Mr Kovacic deposes that he remains committed to making a further "fresh application" to the Dandenong Magistrates' Court for a rehearing. 13 I decline to be drawn into the correctness or otherwise of the decision of the Dandenong Magistrates' Court to refuse Mr Kovacic's application. For the purposes of these proceedings, that decision is relevant only insofar as it addresses and resolves the contention that Mr Kovacic had advanced before Registrar Ryan and originally pressed in his application to this Court as a ground of review: namely that he should have been granted an adjournment prior to the making of a sequestration order to permit him to apply to that court for that purpose. Hearing this review de novo, I proceed on the basis that whatever may have been the position before Registrar Ryan it has been established there is a regular, albeit default, judgment of that court that Mr Kovacic owes a debt to A&S Powerseller Pty Ltd in the sum claimed by it. 14 However, that is not dispositive of the duty of this Court. 15 Section 52(1) of the Bankruptcy Act provides: (1) At the hearing of a creditor's petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning creditor relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the debtor. 16 Section 52(2) then provides: (2) If the Court is not satisfied with the proof of any of those matters, or is satisfied by the debtor: (a) that he or she is able to pay his or her debts; or (b) that for other sufficient cause a sequestration order ought not to be made; it may dismiss the petition. 17 Thus, when a person's sequestration is sought, it remains open to the Court to look behind the form of a judgment should there be reason to doubt the truth and reality of the debt upon which his or her sequestration order has been sought: see Wren v Mahoney [1972] HCA 5; 126 CLR 212 per Barwick CJ at 224-225. 18 A narrow construction of the expression "other sufficient cause" is not to be applied. As the Full Court of this Court noted in Doggett v Commonwealth Bank of Australia [2019] FCAFC 19 (Doggett): 32. Any doubt regarding the breadth of that proposition was dispelled by the recent decision of the High Court of Australia in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28; 261 CLR 132 (Ramsay) where the plurality (Kiefel CJ and Keane and Nettle JJ) held: 68. For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings. Accordingly, a Bankruptcy Court will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability. 69. In Petrie v Redmond, Latham CJ, with whom Rich and McTiernan JJ agreed, said that the Bankruptcy Court: "is entitled to go behind the judgment and inquire into the validity of the debt where there has been fraud, collusion or miscarriage of justice. … Also the court looks with suspicion on consent judgments and default judgments. … The Bankruptcy Court does not examine every judgment debt. Special circumstances must be established before it will do so. It is impossible to lay down any general rule." 70. The first two sentences of that passage were cited with evident approval by Dixon, Williams, Webb and Kitto JJ in Corney v Brien. The passage was explicitly concerned with consent judgments and default judgments. As a matter of practical experience, these are the sorts of cases in which third parties can be expected to be disadvantaged by the making of a sequestration order based on a judgment which was not the outcome of the rigorous processes of adversarial litigation. The same concern may also arise in a case where the judgment was obtained in circumstances which suggest a failure on the part of the judgment debtor to present his or her case on its merits in the litigation that led to the judgment. 71. In the present case, the unexplained failure by Medichoice and Mr Compton to present and rely upon evidence of the kind on which the "reconciliation" is based before the trial in the Supreme Court is consistent with the possibility that the present was such a case. To say this is not to say that a suspicion of inadequate representation is of itself sufficient to give rise to a question worthy of investigation by a Bankruptcy Court. But in this case, there was evidence before the primary judge which, while it remained uncontradicted, was apt to suggest that the debt was not truly owing; and as noted above, the primary judge did not consider that this evidence was not adduced in good faith. If it were the case that this evidence was not adduced by reason of a failure on the part of Mr Compton or those representing him and Medichoice in the Supreme Court to present their case on its merits that failure should not enure to the disadvantage of persons who were not parties to those proceedings. Third parties, such as Mr Compton's creditors, should not have been prejudiced by the making of a sequestration order with that question unresolved. (Footnotes omitted.) 33. The breadth of what might constitute "other sufficient cause" extends beyond fraud, collusion and miscarriage of justice. It must be accepted that a decision, for example made in per incuriam of a binding decision or a statutory rule which makes a debt unenforceable, there would be sufficient cause to do so. It is not unknown for a critical statutory provision to be overlooked in proceedings. For example, albeit in a different context, see Fingleton v The Queen [2005] HCA 34; 227 CLR 166, where a critical statutory provision was not drawn to attention until well after very serious consequences had been brought to bear on a former Chief Magistrate of Queensland. 34. However the High Court's reasoning is not a warrant for the automatic re-litigation of propositions not advanced in the principal proceedings. A merely colourable point that may have been taken in prior litigation but was not will not, in our opinion, suffice to put in issue whether there "is in truth or reality" a debt upon which a person's sequestration has been sought. 19 However, while a narrow construction is not to be applied, a judgment debtor carries the onus of establishing that there is "other sufficient cause". Consistently with what was said in Doggett at [34], a merely colourable point or a contention so wanting in plausibility as to not warrant weight being placed upon it will be insufficient to put in issue whether there "is in truth or reality" a debt upon which a person's sequestration has been sought. 20 I therefore turn to evaluate the contentions and evidence relied on by Mr Kovacic to make good the proposition that notwithstanding the default judgement that has been entered against him, in truth or reality he is not indebted to A&S Powerseller Pty Ltd. In respect of that contention, I apprehend him to have advanced three propositions. 21 First, he asserts that the contract for goods supplied upon which A&S Powerseller Pty Ltd sued was not between himself and that company. Rather, it was between the Applicant company and ZNR Transport Pty Ltd. 22 Mr Kovacic is the sole member and director of ZNR Transport Pty Ltd. His case is that when purchasing the camper, he had informed a person whose name he does not recall then representing A&S Powerseller Pty Ltd (trading as "Mars Campers") that he had wanted it for business purposes. He gave evidence in that regard that this was why he had subsequently tendered a cheque for $15,499.00 drawn on ZNR Transport Pty Ltd's account as payment for the camper. Asked by Ms Allamby in cross-examination to explain to what business purpose he had proposed to put the camper, he said that it would have been used to permit him and his employees and drivers to rest after hard work. 23 It is uncontentious that Mr Kovacic did tender a cheque drawn on ZNR Transport Pty Ltd's account as payment for the camper. It is equally uncontentious that that cheque was dishonoured. I otherwise reject the evidence of Mr Kovacic as not rising to that degree of plausibility as to establish sufficient cause to find that in truth or reality he did not owe a debt to A&S Powerseller Pty Ltd. 24 In that regard: (a) It is uncontentious that the camper was supplied as an "on road" purchase. That is, it was to be fully kitted out and registered with VicRoads prior to ownership being transferred. The tax invoice for the supply of the camper by A&S Powerseller Pty Ltd was issued in the name of "Zoran Kovacic": Second Affidavit, Annexure ZK-16. (b) The road registration for the trailer was completed in Mr Kovacic's own name. Mr Kovacic does not dispute that he had provided his driver's licence for that purpose. (c) Mr Kovacic's account of a business purpose for a camper is inherently implausible, given that he gave evidence that he had attended Mars Campers with his 6 year old son. That suggest a domestic, rather than a business purpose. The implausibility of what he asserts to have been the business purpose on the purchase is also significant given that in his First Affidavit Mr Kovacic annexes a report from a clinical psychologist to the effect that since April 2018 he has had no work capacity: First Affidavit, Annexure ZK-9. Mr Kovacic bought the camper in October 2018, at a time when that certificate was applicable. (d) Mr Kovacic does not dispute that as early as 25 February 2019, he had been served with a summons to attend for an oral examination (Affidavit of Ms Allamby, Exhibit JMA-5). He did not attend as summonsed. (e) Other than the asserted conversation with an unidentified staff member of Mars Campers, Mr Kovacic does not suggest that he claimed that the contract had not been between him and A&S Powersellers Pty Ltd until after the proceedings before Registrar Ryan. (f) There is no such assertion in any of the correspondence sent by Mr Katsakis, acting on his authority, to the solicitors acting for A&S Powersellers Pty Ltd when seeking their agreement for staged repayments: Second Affidavit, Annexure ZK-18. 25 For those reasons, I find that the account given by Mr Kovacic is a recent invention upon which no weight can be placed. 26 Second, Mr Kovacic asserts that the camper that A&S Powerseller Pty Ltd provided was unfit for the purpose for which it had been supplied. Thus, he submits, even assuming that it was Mr Kovacic rather than ZNR Transport Pty Ltd who had purchased the camper, he was entitled to refuse payment for it until it was rectified or replaced. 27 For similar reasons as I have discussed above, I find Mr Kovacic's account that he had sought to return the camper to Mars Campers the day after he had collected it – after rain had entered it and soaked a mattress – to be a recent invention. Mr Kovacic does not assert there to have been any such defect in any of the extensive correspondence that was exchanged between him or his representative and the lawyers acting for A&S Powerseller Pty Ltd prior to these proceedings. Mr Kovacic does not suggest that he made any complaint to a consumer affairs organisation. He offers no explanation of why he concluded that the repairs (assuming, without accepting the truth of his account) would have him cost many thousands of dollars such that the camper was wholly unfit for his purposes. I reject his evidence in those regards. 28 Third, I take Mr Kovacic to submit – albeit faintly – that he was in a position of special disadvantage by reason of his physical and mental condition such that A&S Powerseller Pty Ltd should be denied the right to enforce its contract against him. 29 Mr Kovacic advances that proposition in paragraph [3B] of his "proposed defence" (Second Affidavit, Ex ZK-21). I have sufficiently dealt with the substance of his other proposed defences in my reasons above. What he submits at paragraph [3B] is as follows: 3B. Further and alternatively, if the Defendant did enter into an agreement with the Plaintiff (which is not admitted but specifically denied), he was under a special disability in dealing with the Plaintiff by reason of the following facts and circumstances: (a) Mr Kovacic was born in Serbia and came to Australia with his family in 1999 after being subjected to very difficult conditions as a result of the wars at that time in this region, his father was actively involved in the war and as a youngster he had to assume a protecting role over his mother and siblings which has had a lasting and detrimental impact on his psychological health in later years; (b) Mr Kovacic while having functional English for everyday purposes is unfamiliar with many everyday words used in the English language and is often prone to misinterpreting the subtle nuisances [sic], of more complex matters; (c) Mr Kovacic is on the whole unfamiliar with commercial transactions and financing documentation; (d) If there was an agreement signed which is not admitted but denied ,he was not advised to seek the advice of a lawyer or other independent person about the signing of or given the opportunity to do so; (e) No explanation was given to Mr Kovacic by the Plaintiff as to what he may have been signing; (f) Mr Kovacic suffered greatly both physically and mentally since his involvement in a car accident as a passenger in January, 2018 and as a consequence is under the care of several Doctors including a Clinical Psychologist Mr Kenna Rahmonovic who has assessed Mr Kovacic as having a Major Depressive Disorder, Generalised Anxiety Disorder and PTSD. (g) The injuries sustained as a result of the Motor Vehicle accident in early 2018 has meant that Mr Kovacic struggles with everyday life and the pressures of life in general as a father and husband and in providing for his family. Mr Kovacic often feels confused with extreme stress and anxiety and as a result can become confused and has trouble interpreting documentation such as legal documentation such as contracts and agreements and their implications. 30 Critically however, Mr Kovacic in his "proposed defence" does not assert – and there is no evidence before me to suggest – that he made known any of the asserted circumstances of his special disability to the sales staff at Mars Campers. While it is speculation on my part, it might be reasonable to infer that had he made those circumstances known the purchase might not have been approved. In any event, there is nothing to suggest that the sales staff were put on notice. It was not a transaction (such as a guarantee of another's liability) the nature of which should have put those dealing with Mr Kovacic on notice that they should refer him to seek independent legal advice. It was a routine transaction for the purchase of consumer goods of the kind usually purchased for recreational purposes: a camper. 31 I reject the proposition that on the facts of this case Mr Kovacic's assertion of having been subject to a special disability is a reason not to confirm Registrar Ryan's decision to make a sequestration order. I note in that regard that Mr Kovacic does not suggest that he lacked legal capacity to contract. 32 I dismiss Mr Kovacic's application. In consequence, the interim order I earlier made staying proceedings under that sequestration order until this hearing has no further operation. 33 After my delivering these reasons, Mr Kovacic accepted that he could not resist a lump sum order for costs calculated according to scale as Ms Allamby sought in the sum of $2,470.00. I will order accordingly. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kerr. Associate: Dated: 8 April 2020	5,151
federal_court_of_australia:fca/single/2011/2011fca1246	decision	commonwealth	federal_court_of_australia	text/html	2011-11-03 00:00:00	SZQBX v Minister for Immigration & Citizenship [2011] FCA 1246	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2011/2011fca1246	2024-09-13T22:53:27.828276+10:00	FEDERAL COURT OF AUSTRALIA SZQBX v Minister for Immigration & Citizenship [2011] FCA 1246 Citation: SZQBX v Minister for Immigration & Citizenship [2011] FCA 1246 Appeal from: SZQBX v Minister for Immigration & Anor [2011] FMCA 572 Parties: SZQBX v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL File number(s): NSD 1331 of 2011 Judge: KATZMANN J Date of judgment: 3 November 2011 Legislation: Migration Act 1958 (Cth) ss 36(2)(a), 91R, 425, 474, 476 Cases cited: Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553 Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 Date of hearing: 2 November 2011 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 25 Counsel for the Appellant: The appellant appeared in person with the assistance of an interpreter. Solicitor for the First Respondent: Mr I Temby of Minter Ellison Solicitor for the Second Respondent: Submitting appearance IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1331 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQBX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE OF ORDER: 3 NOVEMBER 2011 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the first respondent's costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 1331 of 2011 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZQBX Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: KATZMANN J DATE: 3 NOVEMBER 2011 PLACE: SYDNEY REASONS FOR JUDGMENT 1 A citizen of another country with a well-founded fear of persecution on one of the grounds contained in Article 1A of the 1951 Convention Relating to the Status of Refugees, (as amended by the 1967 Protocol) (together "the Convention") will qualify for a protection visa if certain other requirements set out in the Migration Act 1958 (Cth) ("the Act") and Regulations are satisfied. (See ss 36(2)(a) and 91R of the Act and Schedule 2 of the Regulations.) Religion is one of those grounds. 2 The appellant claims to be so qualified. He says he and his family were threatened for Christian religious practices in his country of citizenship, the People's Republic of China. He maintains that he is afraid to return to China. He left China using his own passport but entered Australia in January 2009 using a false passport and nearly 20 months later applied to the first respondent (the Minister) for a protection visa. In a statement attached to his application he claimed, amongst other things, to attend underground family gatherings where he prayed, sang psalms and studied the Bible. On one occasion in October 2008 he said he attended a gathering at the home of a "brother" in his village when it was raided by police who confiscated the Bibles of those in attendance and took all the attendees to the police station where they were detained for 24 hours. He said that during the detention police tried to force him to repent and, when he refused, he was beaten. He said he was visited the following week by a police officer who told his family that if they were caught attending any more such gatherings they would be sent to a detention centre and imprisoned. Consequently, he stated, arrangements were made for him to leave China for fear that he would be persecuted again. 3 After an interview with a delegate of the Minister, his application was rejected. The appellant then sought a review of that decision by the second respondent (the tribunal) but the tribunal affirmed the delegate's decision. It considered his knowledge about Christianity vague. It noted discrepancies between his evidence, what he said in the statement attached to his visa application and what he told the delegate. It was also troubled, amongst other things, by the delay in applying for a protection visa. It raised its concerns with the appellant but was unimpressed with his explanations. It described him as "a vague and, at times, unresponsive witness". It was particularly struck by an account of significant police interest in him and his family after the incidents in October 2008, which he had not mentioned in his statement or related to the delegate. It considered it was inconceivable that if his account were true he would not have mentioned these events before and found that the claim was a fabrication. It concluded that the appellant was an untruthful witness and the account upon which he based his refugee claim false. It decided that he was not a Christian and had not practised Christianity in China. For this reason it could not be satisfied that he would suffer persecution for a Convention reason upon returning to China. 4 The appellant then applied to the Federal Magistrates Court to have the decision quashed and the tribunal reconsider his case, but the application was dismissed for want of jurisdictional error. Absent jurisdictional error, the federal magistrate had no power to set aside the tribunal decision. This is the effect of ss 474 and 476 of the Act. See also Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. 5 This is an appeal from the federal magistrate's orders. 6 Appeals from the Federal Magistrates Court are in the nature of a rehearing, but error must still be shown: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11]. 7 Two grounds of appeal are pleaded: (1) The tribunal erred by denying the appellant natural justice. (2) The tribunal made an unfair statement. Was the appellant denied natural justice in the tribunal? 8 The claim that the appellant was denied natural justice was particularised in the grounds of appeal in this way: [The tribunal] said I can attend registered church in China for my Christianity. This statement totally ignored my personal situation and the practical circumstance of religion freedom in China currently. For my truthful belief, there is no alternative way to practice it but taking underground church meetings if I return back to China. Consequently, I am under the serious risk of persecution, which was ignored by the RRT. 9 I have been unable to find any reference to such a statement in the tribunal's decision record, which is the only material that was before the Court touching upon what happened at the tribunal. Indeed, it is highly unlikely the tribunal would have made such a statement since it said it was satisfied that the appellant was not a Christian and had no commitment to Christianity. It is possible that the appellant was confused. Unlike the tribunal, the Minister's delegate accepted that the appellant was a practising Christian and he noted that the appellant actually said to him that he had no objection to attending a registered church although he had not done so. The federal magistrate referred to this at [4] of his s reasons. 10 In any case, this is not a complaint about a denial of natural justice. Rather, it is a complaint about the fact finding, not amenable to review. 11 This claim was put a little differently in the Court below. 12 The second ground of the application pleaded that the tribunal discounted the risk of persecution by stating that he could practise his Christianity in a registered church. It went on to contend that this was a "judicial error" because the tribunal did not apply "the well-founded fear test as per [Minister for Immigration and Ethnic Affairs] v Guo Wei [Rong] & Anor (1997) 191 CLR [559]". 13 The federal magistrate said he was unable to identify any failure to apply the test in Guo. His Honour observed, citing Guo, that it was open to the tribunal, even necessary, for it to make findings about alleged past events in order to assist in its consideration of what will happen in the future. He concluded that there was no error in determining the appellant's claim by reference to his claimed history. He did not refer to the appellant's assertion that the tribunal stated that he could practise his Christianity in a registered church but, as I indicated earlier, there appears to be no foundation in fact for it. 14 The third ground of his application contended that the tribunal did not consider his application fairly, finding that he was not a reliable witness because he did not provide relevant and significant evidence to the Department when he did so at the tribunal hearing and when the tribunal did not provide "reasoning to this finding". The application went on to record (without alteration): Hence, it gives grounds to believe that the RRT did not weigh by evidence and taking my evidence into consideration. Therefore RRT has denied my procedural fairness. 15 The federal magistrate said he had some difficulty understanding this ground. His Honour rejected the contention that the tribunal did not provide reasoning. He observed that the ground appeared to challenge the tribunal's adverse conclusions on credibility, which were based on the omission of significant claims both from the visa application and the interview with the delegate. He found that the reasoning was open to the tribunal on the evidence before it and provided a rational basis for the assessment of the credibility of the appellant's entire history. He said that he was unable to find any jurisdictional error arising from the weight given by the tribunal to the appellant's "belated presentation of highly significant claims", no matter how that may be described, or, indeed, for any other reason. I entirely agree with his Honour. The allegedly unfair statement 16 The second ground of the appeal in full reads: The RRT made an unfair statement that because of the absence of persecution details of my parents in prior application, which I reported during the RRT review, the RRT decided it was "a fabrication and reflected poorly on the application's credibility." I fled from China and my whole family experienced fear and threat. The added evidence in the RRT review simply reflects the truth. There have been persecutions happening to my family since the day we accepted the truth from God. It is understandable that I may recall my memory about new events, which are sad for me and I tried to erase them from memory. 17 This ground raises no question of jurisdictional error. It was open to the tribunal to conclude that the belated account of heightened police interest in the appellant and his mother after the October 2008 was a recent invention. As the tribunal observed, the information was significant and, if true, would amount to evidence of a significant risk to the appellant if he were to return to China. The tribunal's finding that it is inconceivable that if this account were true he would not have mentioned it in his statement is neither illogical nor unreasonable. Submissions 18 The appellant filed no written submissions. At the hearing, when invited to explain the errors in the federal magistrate's reasons, he asked the interpreter to read from a document in Mandarin (which I marked for identification and placed in the Court file). 19 First, the appellant complained that the federal magistrate's judgment was unfair because the judge could not find the error in the tribunal's decision. He repeated his point that he could only attend underground Christian gatherings in China, not registered church gatherings. 20 Secondly, he said that the tribunal member thought he had no evidence to corroborate his parents having been persecuted in China. 21 Neither of these matters discloses any jurisdictional error on the tribunal's part. 22 The appellant's final submission was that tribunal member failed to consider that he was harmed emotionally and severely, and his memory was affected. He claimed he was under great pressure when he attended the hearing and the tribunal. He complained that the tribunal failed to consider the issue of his memory problem. 23 This issue is not raised in the notice of appeal and was not raised in the court below. Nowhere in the appeal book, the statement attached to his visa application, the record of the delegate's decision, nor the tribunal's decision record is there any reference to any problem with the appellant's memory or to him having suffered emotional harm. There is therefore nothing to suggest that the hearing was unfair either in a general sense or in a way that would indicate a failure to comply with the requirements of s 425 (cf. Minister for Immigration and Multicultural and Indigenous Affairs v SCAR (2003) 128 FCR 553). 24 None of these matters takes the appeal any further. Nothing said in the statement raised any appealable error. Conclusion 25 The appellant has been unable to show error on the part of the federal magistrate or jurisdictional error on the part of the tribunal. Accordingly, the appeal must be dismissed. The appellant should pay the Minister's costs. I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katzmann. Associate: Dated: 3 November 2011	2,958
federal_court_of_australia:irc/1996/1996irca0285	decision	commonwealth	federal_court_of_australia	text/html	1996-06-20 00:00:00	Rozaklis v Transadelaide [1996] IRCA 285	https://www.judgments.fedcourt.gov.au/judgments/Judgments/irc/1996/1996irca0285	2024-09-13T22:53:28.760206+10:00	DECISION NO: 285/96 C A T C H W O R D S INDUSTRIAL LAW - Termination of employment - whether termination unlawful INDUSTRIAL RELATIONS ACT 1988, ss. 170DB, 170DE, 170DC, 170EE rozaklis - v- transadelaide No. SA95/1719 JUDICIAL REGISTRAR: L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA95/1719 B E T W E E N: PETER ROZAKLIS Applicant AND TRANSADELAIDE Respondent MINUTES OF ORDER BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 THE COURT ORDERS THAT: 1. The Respondent pay the Applicant a sum equivalent to 4 weeks pay. NOTE: Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules IN THE INDUSTRIAL RELATIONS COURT ) OF AUSTRALIA ) SOUTH AUSTRALIA DISTRICT REGISTRY ) No. SA95/1719 B E T W E E N: PETER ROZAKLIS Applicant AND TRANSADELAIDE Respondent BEFORE: JUDICIAL REGISTRAR L FARRELL PLACE: ADELAIDE DATE: 20 JUNE 1996 REASONS FOR JUDGMENT This is an application pursuant to S170EA of the Industrial Relations Act. The Applicant claims that his employment was terminated unlawfully. He seeks reinstatement. I have summarised the background to this claim on the documentary evidence before me. No oral evidence was given on these matters - in fact the Applicant gave no evidence at all. The Applicant was employed as a maintenance cleaner by the Respondent. He suffered an injury at work on 6 December 1991 when he fell from the first step of a bus. He developed pain in his right leg about six weeks later. He was diagnosed as having a disc prolapse. On 5 June 1992 he underwent surgery. His main symptom throughout was pain that became chronic after time but was variable. He subsequently performed light duties in the bulk ticket area working no more than four hours per day. On 29 March 1995 a formal offer of work full time performing alternative duties was apparently made. Some attempt was made by the Applicant to perform those duties. On 2 May 1995 the Risk and Injury Manager wrote to the applicant advising him that he had determined that weekly payments would be reduced. The reasons given for the reduction were: 1) "The application of Section 35 that serves to reduce a worker's payments by 20% of his notional weekly earnings where the period of incapacity exceeds one year. 2) A medical expert has stated that there has been a reduction in the worker's incapacity for work by the compensable disability." The letter referred to facts relied upon as follows: · "Your notional weekly earnings are $468.06. · As the period of your incapacity has exceeded one year you are entitled to 80% of the difference between your notional weekly earnings and the weekly earnings you are earning. · That Mr R Bauze in his reports of 7 November 1994 and 28 November 1994 considers that you are capable of working full time hours performing duties in the Bulk Sales Office. · That Mr G McCulloch in his report of 8 March 1995 considers that you are fit to work 40 hours per week performing duties in the Bulk Sales Office. · By letter dated 29 March 1995, TransAdelaide made you a formal offer of fulltime work performing the duties in the Bulk Sales Office. · The offer of alternative duties which was made on 29 March 1995 required you to commence duties in the Bulk Sales Office on Monday, 3 April 1995, to work 7 hours and 36 minutes per day, 5 days per week. · The rate of pay for the work offered is $412.95 per week. · On and from 3 April 1995, you have not performed the full time work in the Bulk Sales Office as offered." The conclusions I have drawn from those facts are: · There has been a reduction in the extent that you are incapacitated for work by the compensable disability and you are now fit to perform the alternative duties offered to you on a full time basis being 7 hours and 36 minutes per day, 5 days per week, which would be at a weekly rate of $412.95. · That you are now entitled to 80% of the difference between your notional weekly earnings of $468.06 and the weekly earnings that you could earn being $412.95, therefore your weekly payments are to be reduced to $44.09." The Applicant apparently exercised his right to review the determination of Mr Wingrave. On 30 October 1995 the Application for Review came before Review Officer Meredith of the Workers Compensation Review Panel. During the hearing the Applicant was cross examined about things he had done in the recent past. The aim of the cross examination was to show that the Applicant could have performed the duties that had been offered to him. Film of the Applicant's activities in August/September 1995 was shown during that hearing. I will return to the evidence at that hearing later. On 9 November 1995 the Applicant was given notice of a disciplinary hearing in the following terms: ""Material has come to the attention of TransAdelaide which indicates that you are not undertaking to work the daily hours for which you have been medically assessed as being able to perform. The material before TransAdelaide indicates that you are able to perform certain activities outside the workplace that are inconsistent to your statements of restriction and the ability to do these activities strongly suggests that you are able to perform more hours of work per day for TransAdelaide. This material comprises medical reports from Orthopaedic Surgeons, Neurosurgeon, and your treating doctor. These are in addition to video film footage of you performing movements outside your previously stated restrictions and transcript text of your review hearing before the Workers' Compensation Review Panel. TransAdelaide has given preliminary consideration to this material and has formed the conclusion that a formal confidential disciplinary hearing is necessary"." The disciplinary hearing was conducted on 21 November 1995. Mr Moir, employee relations officer of the Respondent conducted the hearing. The Applicant was represented by his solicitor, Mr Favilla. Notes of the disciplinary hearing were tendered in evidence before me. They state as follows: ""The allegations made against you are about your apparent ability to undertake activities outside of your TransAdelaide workplace which appear to be equal to or more physical than the requirements to perform the work at the Bulk Ticket Office. The fact is that you work 4 hours per day, 5 days per week in the Bulk Ticket Office and you are aware that TransAdelaide wants you to increase these hours to 7.6 hours per day, 5 days per week. Given that you have made no apparent effort to increase your daily hours since April, but undertake activities of a greater physical nature outside the work area, amounts to conduct prejudicial to TransAdelaide's operation. This is a serious misdemeanour pursuant to TransAdelaide's Guide to Personnel Policies and Procedures Disciplinary Procedures - A serious misdemeanour may result in dismissal from employment." Steve then indicated that the evidence in regards to this matter amounted to doctors reports, reports from Quark Private Investigators, transcript of review hearings and video evidence. Steve continued to explain that he had visited the work area and examined the work and the conditions under which it was performed and had also spoken to the Supervisor of the area. Steve suggested that the proceedings start by reviewing the video. Mr Rozlakis (Sic) said that if we wanted to watch it, that was okay but that he had seen it before. Mr Rozlakis' Solicitor expressed concern about a denial of natural justice, believing that the matter should be held over until the WorkCover matter is further heard during December. He proposed that if Mr Rozlakis was prepared to agree to a discontinuance of weekly payments, will we delay the course of today's hearings. Steve indicated "No", indicating that this matter was an industrial matter and did not form part of a WorkCover matter. At this juncture Steve put to Mr Rozlakis that if he needed to consult with his Solicitor at any time, that that would be okay. It was then decided to proceed with matters and again, it was offered to look at the video, however, it was decided that the video would not be reviewed. A series of questions was put to Mr Rozlakis as follows: S "The period we are speaking about is 16 August to 19 September. You undertook to work 4 hours per day". R "Yes". S "7.30 to 11.30am". R "Yes". S "During the review hearing you stated that you needed to rest, using your machine and massage". R "Yes". S "Was it done every day?" R "Yes". S "For how long?" R "For approximately 1/2 an hour". S "During your work, did you experience pain?" This matter needed to be clarified to which Mr Rozlakis referred to stiffness in the lower back and pain in his right leg. S "Was it your practice to go home after your shift for treatment?" R "Sometimes I even had to stop on the way home to rest, but I always went home for treatment. If treated I could do things afterwards. At this stage at 10.30am there was a break in proceedings and we reconvened at 10.40am. Mr Rozlakis' Solicitor indicated that Mr Rozlakis was refusing to answer any further questions on the basis that he may incriminate himself. Mr Moir put that allegations had been put to Peter Rozlakis and that this was his opportunity to respond, however no response was forthcoming. At this time Mr Moir concluded the hearing, indicating that he would make his decision within 24 hours and would inform the parties accordingly." The applicant was subsequently notified by letter dated 22 November 1995 that his employment was being terminated. The letter referred to the allegations and the material (all of which was before me except for the Risk and Injury File). The letter set out the following reasons for the termination of the Applicant's employment. "The reason for your dismissal is that I view your actions to be of a serious nature given that you have made no apparent effort to increase your daily hours to the level of your contract of employment since April 1995, yet you undertake activities of a physical nature referred to above. This amounts to serious and wilful misconduct that is prejudicial to TransAdelaide operations and is a serious misdemeanour, pursuant to the Disciplinary Procedures of TransAdelaide's Guide to Personnel Policies and Procedures. You may appeal this decision in writing to the General Manager stating the grounds on which your appeal is made within 5 days from my decision, 22 November 1995. You will receive a weeks wages in lieu of notice. I am also obliged to inform you that you may have certain appeal rights pursuant to the state or federal industrial legislation. Please find attached a list of property that you have been issued. This property and any other TransAdelaide property will need to be returned before any final payment of wages or leave can be made." There can be little doubt following viewing of the video evidence, and medical reports that the Applicant's injury did not, at least by August 1995, incapacitate him from performing the duties which were offered to him in late March, and that he undertook activities outside work at least physically equal to if not greater than the work which was offered to him by the Respondent. . The Applicant argued that Respondent acquiesced in the matter, that between 2 May 1995 and 9 November 1995 the Respondent took no action. I do not accept that argument. The Applicant is required to offer himself to perform suitable duties for which he is fit. He did not do so. The Applicant held himself out as continuing to be unfit for work as a result of compensable injury. He has misrepresented his ability to perform duties. In the absence of any explanation by Applicant, for example, that he suffered from a psychiatric condition, that there was some other source of pain, or some misunderstanding at the Workcover hearing or at the Disciplinary Hearing, termination of his employment was warranted. I therefore find that the Respondent had a valid reason for the termination of the Applicant's employment. I am satisfied that the termination of the Applicant's employment was not harsh, unjust or unreasonable. Whilst I accept that the Applicant's conduct was a breach of the trust put in him by the Respondent, I am not satisfied that he is excluded from the notice provisions of S170DB. I therefore order that the Respondent pay the Applicant a sum equivalent to 4 weeks pay. I certify that this and the preceding 4 pages are a true copy of the reasons for my judgment. DATE OF HEARING : 9 May 1996 FOR THE APPLICANT : Mr A Martin FOR THE RESPONDENT : Mr J Hankin	2,835
federal_court_of_australia:fca/single/2014/2014fca0231	decision	commonwealth	federal_court_of_australia	text/html	2014-03-18 00:00:00	Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2014/2014fca0231	2024-09-13T22:53:32.009762+10:00	FEDERAL COURT OF AUSTRALIA Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 Citation: Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 Parties: ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #1 v STATE OF QUEENSLAND, THE COMMONWEALTH OF AUSTRALIA, CHARTERS TOWERS REGIONAL COUNCIL, FLINDERS SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, CITIGOLD CORPORATION LIMITED, RICHARD DUDLEY ANNING, HENRY JAMES ATKINSON, SUSAN ATKINSON, LESLIE ARTHUR BRAZIER, MARION LINDA BRAZIER, MICHELLE MAREE BURGE, JOHN DAVID BURGE, HELEN MARGARET COOK, PHILLIP LEONARD COOK, JACQUELINE OLGA CORE HEATH, WARREN ROBERT JACKSON, ROBERT CHARLES LAWRIE TRADING AS RC & JJ LAWRIE, ELIZABETH ANNE LYONS, GERARD FRANCES LYONS, JOHN DOMINIC LYONS, RONDA MARGARET LYONS, LYNETTE MARGARET MAITLAND, PERCY WILLIAM GEORGE MAITLAND, HECTOR EDMOND MOODY, MARGARET JEAN MOODY, NACRE PTY LTD, TREVOR TORKINGTON, VENETTA BAVERLEY TORKINGTON, DANIEL JOHN TURLEY, MARIE ANN TURLEY, JOHN NORMAN JAMES WEIR AND PRUE ANN WEIR and JAMES COOK UNIVERSITY ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #2 v STATE OF QUEENSLAND, CHARTERS TOWERS REGIONAL COUNCIL, FLINDERS SHIRE COUNCIL, ERGON ENERGY CORPORATION LIMITED, CITIGOLD CORPORATION LIMITED, GREAT MINES PTY LTD and ALLINGHAM HOLDINGS PTY LTD, KENNETH ERNEST DUDLEY ANNING, RICHARD DUDLEY ANNING, ATKINSON DEVELOPMENTS PTY LTD, CAMM ENTERPRISES (AUST) PTY LTD, LYDIA JANE DENNIS, ELIZABETH ANNE LYONS, GERARD FRANCES LYONS, LYNETTE MARGARET MAITLAND, PERCY WILLIAM GEORGE MAITLAND, MARYVALE HN1 PASTORAL COMPANY PTY LTD, JULIA CAROLINE ROSS, DANIEL JOHN TURLEY AND MARIE ANN TURLEY File numbers: QUD 80 of 2005 QUD 147 of 2006 Judges: LOGAN J Date of judgment: 18 March 2014 Corrigendum: 19 March 2014 Catchwords: NATIVE TITLE – consent determination – requirements under s 87 of the Native Title Act 1993 (Cth) – importance of legal representation of all parties in native title cases Legislation: Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth) Native Title Act 1993 (Cth) ss 55, 56, 57, 66, 87, 94A, 213A, 223, 225 Native Title Amendment Act 2009 (Cth) Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) Cases cited: Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 cited Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 cited Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 considered Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 cited Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249 cited Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800 cited King v Northern Territory of Australia [2011] FCA 582 followed Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474 followed Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422 considered Moses v State of Western Australia [2007] FCAFC 78 considered Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 considered Smith v State of Western Australia (2000) 104 FCR 494 considered Wik Peoples v Queensland (1996) 187 CLR 1 cited Date of hearing: 18 March 2014 Date of last submissions: 5 March 2014 Place: Charters towers Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 41 QUD 80 of 2005: Solicitor for the Applicant: North Queensland Land Council Solicitor for the First Respondent: Crown Law Solicitor for the Second Respondent: Australian Government Solicitor Solicitor for the Third and Fourth Respondents: Gilkerson Legal Solicitor for the Fifth Respondent: MacDonnells Law Solicitor for the Sixth Respondent: Gilkerson Legal Solicitor for the Seventh – Thirty-Third Various Respective Pastoral Respondents: Thynne & Macartney Solicitor for the Thirty-Fourth Respondent: Roberts Nehmer McKee Lawyers QUD 147 of 2006: Solicitor for the Applicant: North Queensland Land Council Solicitor for the First Respondent: Crown Law Solicitor for the Second and Third Respondents: Gilkerson Legal Solicitor for the Fourth Respondent: MacDonnells Law Solicitor for the Fifth and Sixth Respondents: Gilkerson Legal Solicitor for the Seventh – Twentieth Various Respective Pastoral Respondents: Thynne & Macartney FEDERAL COURT OF AUSTRALIA Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 3) [2014] FCA 231 CORRIGENDUM 1. In paragraph 5 of the Reasons for Judgment, in the first sentence the words "Western Queensland" should read "Northern Queensland". 2. In paragraph 5 of the Reasons for Judgment, in the second sentence, the word "Finders" should read "Flinders". 3. In paragraph 5 of the Reasons for Judgment, in the last sentence, the word "applicants" should read "applicant". 4. In paragraph 26 of the Reasons for Judgment, the word "Leichardt" in this paragraph should read "Leichhardt". 5. In paragraph 26 of the Reasons for Judgment, in the second sentence, the word "Gilbery" should read "Gilbert". 6. In paragraph 28 of the Reasons for Judgment, in the last sentence, the word "Warungu" should read "Warrungnu". 7. In paragraph 28 of the Reasons for Judgment, in the second sentence, the word "northern" should be deleted and the sentence should read "ceremonial exchange with their neighbours the Gugu-Badhun, Wulguru". I certify that the preceding seven (7) numbered paragraphs are a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 19 March 2014 IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 80 of 2005 BETWEEN: ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #1 Applicant AND: STATE OF QUEENSLAND First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent CHARTERS TOWERS REGIONAL COUNCIL Third Respondent FLINDERS SHIRE COUNCIL Fourth Respondent ERGON ENERGY CORPORATION LIMITED Fifth Respondent CITIGOLD CORPORATION LIMITED Sixth Respondent RICHARD DUDLEY ANNING, HENRY JAMES ATKINSON, SUSAN ATKINSON, LESLIE ARTHUR BRAZIER, MARION LINDA BRAZIER, MICHELLE MAREE BURGE, JOHN DAVID BURGE, HELEN MARGARET COOK, PHILLIP LEONARD COOK, JACQUELINE OLGA CORE HEATH, WARREN ROBERT JACKSON, ROBERT CHARLES LAWRIE TRADING AS RC & JJ LAWRIE, ELIZABETH ANNE LYONS, GERARD FRANCES LYONS, JOHN DOMINIC LYONS, RONDA MARGARET LYONS, LYNETTE MARGARET MAITLAND, PERCY WILLIAM GEORGE MAITLAND, HECTOR EDMOND MOODY, MARGARET JEAN MOODY, NACRE PTY LTD, TREVOR TORKINGTON, VENETTA BAVERLEY TORKINGTON, DANIEL JOHN TURLEY, MARIE ANN TURLEY, JOHN NORMAN JAMES WEIR AND PRUE ANN WEIR Seventh – Thirty-Third Various Pastoral Respondents JAMES COOK UNIVERSITY Thirty-Fourth Respondent JUDGE: LOGAN J DATE OF ORDER: 18 MARCH 2014 WHERE MADE: CHARTERS TOWERS BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth) BY CONSENT THE COURT ORDERS THAT: 1. There be a determination of native title in the terms set out below (the "determination"). 2. Each party to the proceedings is to bear its own costs. BY CONSENT THE COURT DETERMINES THAT: 3. The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1. To the extent of any inconsistency between the written description and the map, the written description prevails. 4. Native title exists in relation to that part of the Determination Area described in Parts 1, 2, 3 and 4 of Schedule 1. 5. The native title is held by the Gudjala People described in Schedule 3 (the "native title holders"). 6. Subject to paragraphs 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are: (a) other than in relation to Water, the rights to possession, occupation, use and enjoyment of the area to the exclusion of all others; and (b) in relation to Water, the non-exclusive rights to: (i) hunt, fish and gather from the Water of the area; (ii) take and use the Natural Resources of the Water in the area; and (iii) take and use the Water of the area, for personal, domestic and non-commercial communal purposes. 7. Subject to paragraphs 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) be buried and bury native title holders within the area; (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; (i) teach on the area the physical and spiritual attributes of the area; and (j) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 8. Subject to paragraphs 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 3 of Schedule 1 are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; and (c) teach on the area the physical and spiritual attributes of the area. 9. Subject to paragraphs 10, 11 and 12 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 4 of Schedule 1 is the non-exclusive right to access, be present on, move about on and travel over the area. 10. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; (b) the traditional laws acknowledged and traditional customs observed by the native title holders; and (c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4. 11. The native title rights and interests referred to in paragraphs 6(b), 7, 8 and 9 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 12. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 13. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4. 14. The relationship between the native title rights and interests described in paragraphs 6, 7, 8 and 9 and the other interests described in Schedule 4 (the "other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. DEFINITIONS AND INTERPRETATION 15. In this determination, unless the contrary intention appears: "land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Natural Resources" means: (a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and (b) any clays, soil or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include: (a) animals that are the private personal property of another; (b) crops that are the private personal property of another; and (c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; and (c) water from an underground water source. Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth). THE COURT DETERMINES THAT: 16. The native title is not held in trust. 17. The Ngrragoonda Aboriginal Corporation ICN 7982, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate. Schedule 1 — DETERMINATION AREA A. Description of Determination Area The Determination Area comprises all of the land and waters described in Parts 1, 2, 3 and 4 below, to the extent that they are within the external boundary described in Part 5 below, and depicted on the determination map, excluding the areas described in Schedule 2. Part 1 – Exclusive Rural Areas All of the land and waters described in the following table and depicted in dark blue on the determination map: Area description Determination map sheet number1 (as at date of determination) Lot 21 on Plan AP13523 7 Lot 30 on Plan AP13523 7 Lot 16 on Plan AP13526 33 Lot 521 on Plan AP15552 17 Lot 2 on Plan AP4715 13 Lot 20 on Plan AP7676 13 Lot 130 on Plan AP7676 13 Lot 1 on Plan AP9171 17 Lot 1649 on Plan AP9326 9 Lot 1650 on Plan AP9326 9 Lot 1651 on Plan AP9326 9 Lot 1 on Plan H5502 13 Lot 750 on Plan MPH20581 24 That part of Lot 6370 on MPH21172 excluding that part formerly subject to Exploration Mining Permit No. 8150 34 The area of road formerly described as Lot 7 on Plan MPH40879 * 25 The area of road formerly described as Lot 8 on Plan MPH40879 * 25 The area of road formerly described as Lot 9 on Plan MPH40879 * 25 The area of road formerly described as Lot 10 on Plan MPH40879 * 25 Lot 1 on Plan N25565 16 Lot 1 on Plan OC9 3 Lot 1 on Plan T6371 13 Lot 2 on Plan T6371 13 Lot 3 on Plan T6371 13 Lot 4 on Plan T6371 13 Lot 5 on Plan T6371 13 Lot 6 on Plan T6371 13 Lot 7 on Plan T6371 13 Lot 8 on Plan T6371 13 Lot 9 on Plan T6371 13 Lot 10 on Plan T6371 13 Lot 70 on Plan USL46812 34 Lot 32 on Plan USL46819 29 Lot 36 on Plan USL46820 17 Lot 47 on Plan USL46828 15 Lot 10 on Plan USL48053 13 Lot 15 on Plan USL48053 13 Lot 16 on Plan USL48053 13 Lot 17 on Plan USL48053 13 Lot 42 on Plan USL48163 9 1 Where an area is depicted on more than one sheet, only the first sheet number is referenced. * denotes areas to which s 24KA of the Native Title Act 1993 (Cth) applies Part 2 – Non-Exclusive Rural Areas All of the land and waters described in the following table and depicted in light blue on the determination map: Area description Determination map sheet number2 (as at date of determination) That part of Lot 275 on Plan DV706 excluding that part subject to Trustee Lease No. 602825079 16 Lot 9 on Plan AP11628 18 Lot 10 on Plan AP11628 18 Lot 68 on Plan AP11741 29 Lot 191 on Plan AP11756 18 The area of road formerly described as Lot 191 on Plan DV544 * 18 Lot 52 on Plan AP13685 31 Lot 53 on Plan AP13685 31 Lot 1349 on Plan AP9326 9 Lot 1350 on Plan AP9326 9 Lot 1351 on Plan AP9326 9 Lot 1437 on Plan AP9326 9 Lot 1438 on Plan AP9326 9 Lot 45 on Plan BKN802454 8 Lot 5 on Plan BKN96 8 That part of Lot 1 on Plan CLK40 that is within the external boundary 2 That part of Lot 551 on Plan CP843339 that is within the external boundary 2 Lot 3 on Plan CP858255 3 That part of Lot 4835 on Plan CP858256 that is within the external boundary 3 Lot 1 on Plan CP889408 17 Lot 235 on Plan CP894369 33 That part of Lot 3 on Plan CP898336 that is within the external boundary 3 Lot 2 on Plan CP902051 10 Lot 1 on Plan CP902051 10 Lot A on Plan AP20144 10 Lot B on Plan AP5720 10 Lot 1 on Plan PER4586 10 That part of Lot 9 on Plan CP903954 that is within the external boundary 20 Lot 126 on Plan D1141 9 Lot 21 on Plan D1241 8 Lot 9 on Plan DAL1243 6 Lot 7 on Plan DP21 11 Lot 1 on Plan DP52 6 Lot 2 on Plan DP53 6 That part of Lot 5 on Plan DP59 that is within the external boundary 11 Lot 2 on Plan DP60 6 Lot 1 on Plan DP9 5 Lot 2 on Plan DP9 6 That part of Lot 2 on Plan DV16 that is within the external boundary 16 Lot 4 on Plan DV17 18 Lot 33 on Plan DV278 17 Lot 39 on Plan DV30 15 Lot 104 on Plan DV323 16 Lot 106 on Plan DV325 16 Lot 17 on Plan DV354 19 Lot 213 on Plan DV360 15 Lot 207 on Plan DV369 15 Lot 3 on Plan DV383 20 Lot 10 on Plan DV383 20 Lot 6 on Plan DV467 20 Lot 12 on Plan DV474 19 Lot 215 on Plan DV52 10 Lot 21 on Plan DV555 12 Lot 1 on Plan DV557 13 Lot 87 on Plan DV57 17 Lot 88 on Plan DV57 17 Lot 89 on Plan DV57 17 Lot 90 on Plan DV57 17 Lot 91 on Plan DV57 17 Lot 92 on Plan DV57 17 Lot 93 on Plan DV57 17 Lot 94 on Plan DV57 17 Lot 95 on Plan DV57 17 Lot 200 on Plan DV577 33 Lot 202 on Plan DV579 10 Lot 97 on Plan DV58 17 Lot 216 on Plan DV6 10 Lot 11 on Plan DV601 17 That part of Lot 31 on Plan DV614 that is within the external boundary 19 Lot 7 on Plan DV667 6 Lot 265 on Plan DV676 16 Lot 266 on Plan DV676 16 Lot 25 on Plan DV704 9 Lot 19 on Plan DV800729 16 Lot 24 on Plan DV840973 6 Lot 26 on Plan GF124 13 Lot 21 on Plan GF125 13 Lot 34 on Plan GF128 12 Lot 1 on Plan GF199 13 That part of Lot 14 on Plan GF78 that is within the external boundary 12 That part of Lot 829 on Plan GF808564 that is within the external boundary 12 Lot 25 on Plan GF93 13 That part of Lot 14 on Plan LH8 that is within the external boundary 1 Lot 7900 on Plan MPH1118 20 Lot 1 on Plan MPH13820 17 Lot 181 on Plan MPH20327 17 Lot 1 on Plan MPH20471 18 Lot 1545 on Plan MPH20658 17 Lot 9810 on Plan MPH21320 17 Lot 125 on Plan NPW636 6 Lot 4 on Plan OC21 5 Lot 6 on Plan OC21 5 Lot 7 on Plan OC21 5 Lot 1 on Plan OC68 3 Lot 5231 on Plan PH1339 6 Lot 3967 on Plan PH140 5 That part of Lot 602 on Plan PH1444 that is within the external boundary 1 Lot 4897 on Plan PH1445 4 Lot 3602 on Plan PH167 5 Lot 5133 on Plan PH1714 3 Lot 483 on Plan PH1715 3 That part of Lot 4244 on Plan PH1716 that is within the external boundary 3 Lot 5369 on Plan PH1899 5 That part of Lot 575 on Plan PH219 that is within the external boundary 1 Lot 3639 on Plan PH2248 6 That part of Lot 5039 on Plan PH245 that is within the external boundary 1 That part of Lot 5014 on Plan PH260 that is within the external boundary 2 That part of Lot 3880 on Plan PH29 that is within the external boundary 2 That part of Lot 3578 on Plan PH30 that is within the external boundary 4 That part of Lot 3683 on Plan PH368 that is within the external boundary 4 Lot 4209 on Plan PH372 11 That part of Lot 2146 on Plan PH423 that is within the external boundary 11 That part of Lot 5094 on Plan PH563 that is within the external boundary 4 Lot 578 on Plan PH674 6 That part of Lot 4968 on Plan PH688 that is within the external boundary 11 Lot 4610 on Plan PH837 7 Lot 3655 on Plan PH838 6 That part of Lot 3 on Plan PP17 that is within the external boundary 5 Lot 4 on Plan PP19 4 That part of Lot 4 on Plan PP23 that is within the external boundary 4 The area of road formerly described as Lot 552 on Plan SP112746 * 17 That part of Lot 4 on Plan SP108012 that is within the external boundary 1 Lot 593 on Plan SP108231 13 Lot 594 on Plan SP108231 13 Lot 631 on Plan SP108232 13 Lot 632 on Plan SP108232 13 Lot 413 on Plan SP112742 19 Lot 416 on Plan SP112742 19 Lot 493 on Plan SP112744 33 Lot 553 on Plan SP112746 17 Lot 554 on Plan SP112746 17 That part of Lot 6 on Plan SP146633 that is within the external boundary 4 That part of Lot 3932 on Plan SP221799 that is within the external boundary 3 Lot 4896 on Plan SP232782 5 That part of Lot 8 on Plan SP248068 that is within the external boundary 4 That part of Lot 9 on Plan SP248068 that is within the external boundary 4 Lot 22 on Plan T6371 13 Lot 7 on Plan USL45987 20 Lot 15 on Plan USL46796 33 Lot 66 on Plan USL46796 33 Lot 6 on Plan USL46811 31 Lot 38 on Plan USL46811 31 Lot 40 on Plan USL46811 31 Lot 29 on Plan USL46812 31 Lot 33 on Plan USL46812 31 Lot 63 on Plan USL46812 34 Lot 69 on Plan USL46812 34 Lot 34 on Plan USL46813 34 Lot 61 on Plan USL46826 19 Lot 74 on Plan USL46826 19 Lot 72 on Plan USL48027 20 That part of Lot 1 on Plan WG193 that is within the external boundary 3 That part of Lot 3 on Plan WNG3 that is within the external boundary 4 Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary including but not limited to: the Burdekin River, the Clarke River, the Gregory River, the Basalt River, the Broken River, and the Star River 2 Where an area is depicted on more than one sheet, only the first sheet number is referenced. * denotes area to which s 24KA of the Native Title Act 1993 (Cth) applies. Part 3 – Non-Exclusive Urban Areas (Towers Hill) All of the land and waters described in the following table and depicted in yellow on the determination map: Area description Determination map sheet number3 (as at date of determination) Lot 31 on Plan AP11742 29 Lot 32 on Plan AP11742 29 Lot 33 on Plan AP11742 29 The areas of road described as Lots 1, 2 and 3 on Plan AP11742 * 29 3 Where an area is depicted on more than one sheet, only the first sheet number is referenced. * denotes areas to which s 24KA of the Native Title Act 1993 (Cth) applies. Part 4 – Non-Exclusive Urban Areas All of the land and waters described in the following table and depicted in tan on the determination map: Area description Determination map sheet number4 (as at date of determination) Lot 64 on Plan DV234 24 That part of Lot 256 on Plan SP238149 that is within the external boundary 28 Lot 13 on Plan SP185815 31 That part of Lot 128 on Plan USL46806 excluding that part formerly subject to Mining Homestead Perpetual Lease No. 9604 31 Lot 60 Plan SP171611 27 The area of road shown on Plan SP171611 between stations 4-5-19-20-21-23-13-4 * 27 Lot 1 on Plan AP11606 31 Lot 2 on Plan AP11606 31 Lot 3 on Plan AP11606 31 Lot 1 on Plan AP11610 24 Lot 164 on Plan AP11610 24 Lot 4 on Plan AP13507 31 Lot 38 on Plan AP13684 32 Lot 2 on Plan AP15748 28 Lot 1 on Plan AP4725 31 Lot 16 on Plan AP4725 31 Lot 33 on Plan AP4725 31 Lot 34 on Plan AP4725 31 Lot 38 on Plan AP4725 31 Lot 49 on Plan AP4725 31 Lot 71 on Plan AP4725 31 Lot 77 on Plan AP4725 31 Lot 154 on Plan AP4725 31 Lot 1 on Plan AP5088 29 Lot 2 on Plan AP5088 29 Lot 6 on Plan AP5088 29 Lot 7 on Plan AP5088 29 Lot 8 on Plan AP5088 29 Lot 9 on Plan AP5088 29 Lot 10 on Plan AP5088 29 The area of road formerly described as Lot 11 on Plan AP5088 * 29 Lot 12 on Plan AP5088 29 Lot 13 on Plan AP5088 29 Lot 14 on Plan AP5088 29 Lot 15 on Plan AP5088 29 Lot 16 on Plan AP5088 29 Lot 17 on Plan AP5088 29 Lot 18 on Plan AP5088 29 Lot 19 on Plan AP5088 29 Lot 20 on Plan AP5088 29 Lot 21 on Plan AP5088 29 Lot 22 on Plan AP5088 29 Lot 23 on Plan AP5088 29 Lot 24 on Plan AP5088 30 Lot 25 on Plan AP5088 30 Lot 26 on Plan AP5088 29 Lot 27 on Plan AP5088 29 Lot 28 on Plan AP5088 29 Lot 29 on Plan AP5088 29 Lot 30 on Plan AP5088 29 Lot 31 on Plan AP5088 29 Lot 34 on Plan AP5088 29 Lot 35 on Plan AP5088 30 Lot 86 on Plan AP5124 29 Lot 4 on Plan AP5667 27 Lot 6 on Plan AP5667 27 Lot 15 on Plan AP5667 27 Lot 25 on Plan AP5667 27 Lot 59 on Plan AP5667 27 Lot 65 on Plan AP5667 27 Lot 44 on Plan AP7691 28 Lot 45 on Plan AP7691 28 Lot 46 on Plan AP7691 28 Lot 48 on Plan AP7691 28 Lot 177 on Plan AP7691 28 Lot 159 on Plan AP9342 31 Lot 1 on Plan BIRD7 27 Lot 2 on Plan BIRD7 27 Lot 3 on Plan BIRD7 27 Lot 1 on Plan CP849622 28 Lot 25 on Plan CP850650 31 Lot 5 on Plan CP901158 27 That part of Lot 4 on Plan CP901158 that is within the external boundary 27 That part of Lot 46 on Plan CP901158 that is within the external boundary 27 Lot 218 on Plan CP910013 28 Lot 7 on Plan CT182113 26 Lot 14 on Plan CT182117 26 Lot 225 on Plan CT18215 26 Lot 226 on Plan CT18215 26 Lot 227 on Plan CT18215 26 Lot 259 on Plan CT1822 31 Lot 260 on Plan CT18236 26 Lot 261 on Plan CT18236 26 Lot 262 on Plan CT18236 26 Lot 188 on Plan CT1824 29 Lot 10 on Plan CT18250 24 Lot 40 on Plan CT18250 24 Lot 232 on Plan CT18259 22 Lot 22 on Plan CT18267 29 Lot 2 on Plan CT18293 27 Lot 3 on Plan CT18293 27 Lot 11 on Plan CT18297 26 Lot 29 on Plan DV327 28 Lot 146 on Plan DV441 22 Lot 153 on Plan DV460 27 Lot 155 on Plan DV464 34 Lot 219 on Plan DV475 30 Lot 33 on Plan DV480 31 Lot 222 on Plan DV482 28 Lot 163 on Plan DV483 28 Lot 102 on Plan AP15729 28 Lot 13 on Plan DV499 23 Lot 27 on Plan DV504 31 Lot 225 on Plan DV507 29 Lot 184 on Plan DV529 22 Lot 196 on Plan DV561 31 Lot 29 on Plan DV562 31 That part of Lot 210 on Plan DV610 that is within the external boundary 24 Lot 7 on Plan DV643 30 Lot 11 on Plan DV728 31 Lot 228 on Plan DV739 28 Lot 234 on Plan DV740 31 Lot 12 on Plan DV840956 24 Lot 32 on Plan M17510 32 Lot 405 on Plan M1756 32 Lot 502 on Plan M1756 32 Lot 503 on Plan M1756 32 Lot 506 on Plan M1756 32 Lot 507 on Plan M1756 32 Lot 508 on Plan M1756 32 Lot 605 on Plan M1756 32 Lot 702 on Plan M1756 32 Lot 801 on Plan M1756 32 Lot 803 on Plan M1756 32 Lot 804 on Plan M1756 32 Lot 805 on Plan M1756 32 Lot 37 on Plan M1759 31 Lot 88 on Plan MPH32368 27 Lot 1 on Plan MPH33088 30 Lot 2 on Plan MPH33088 30 Lot 159 on Plan MPH33474 31 Lot 26 on Plan MPH40658 24 Lot 27 on Plan MPH40658 24 Lot 139 on Plan MPH40660 29 Lot 195 on Plan MPH40915 30 Lot 196 on Plan MPH40915 30 Lot 1 on AP15921 24 Lot 2 on AP15921 24 Lot 3 on AP15921 24 Lot 4 on AP15921 24 The area of road formerly described as Lot 3 on Plan AP5088 * 29 The area of road formerly described as Lot 4 on Plan AP5088 * 29 The area of road formerly described as Lot 5 on Plan AP5088 * 29 Lot 27 on Plan RP865802 22 Lot 16 on Plan SP106208 27 That part of Lot 255 on Plan SP142524 that is within the external boundary 24 That part of Lot 152 on Plan SP143440 that is within the external boundary 27 Lot 31 on Plan SP144896 22 That part of Lot 17 on Plan SP144896 that is within the external boundary 22 Lot 3 on Plan SP146272 31 Lot 16 on Plan SP150173 27 Lot 77 on Plan SP156576 26 Lot 25 on Plan SP167325 23 Lot 14 on Plan SP185820 23 Lot 1 on Plan SP250470 27 The area of road shown on Plan SP250470 between stations 2-3-4-5-2 * 27 Lot 40 on Plan USL46769 24 Lot 96 on Plan USL46769 24 Lot 108 on Plan USL46769 24 Lot 180 on Plan USL46773 24 Lot 33 on Plan USL46774 26 Lot 36 on Plan USL46774 26 Lot 48 on Plan USL46774 26 Lot 67 on Plan USL46774 29 Lot 87 on Plan USL46774 29 Lot 62 on Plan USL46775 28 Lot 173 on Plan USL46775 28 Lot 174 on Plan USL46775 26 Lot 180 on Plan USL46775 32 Lot 182 on Plan USL46775 32 Lot 185 on Plan USL46775 28 Lot 68 on Plan USL46777 28 Lot 53 on Plan USL46782 27 Lot 63 on Plan USL46782 27 Lot 64 on Plan USL46782 27 Lot 71 on Plan USL46782 27 Lot 140 on Plan USL46782 31 Lot 166 on Plan USL46782 31 That part of Lot 65 on Plan USL46782 that is within the external boundary 27 Lot 17 on Plan USL46783 27 Lot 18 on Plan USL46783 27 Lot 19 on Plan USL46783 27 Lot 29 on Plan USL46783 27 Lot 30 on Plan USL46783 27 Lot 131 on Plan USL46783 27 Lot 127 on Plan USL46783 28 That part of Lot 54 on Plan USL46783 that is within the external boundary 27 Lot 65 on Plan USL46784 28 That part of Lot 1 on Plan USL46784 that is within the external boundary 27 Lot 55 on Plan USL46785 32 Lot 122 on Plan USL46785 32 Lot 124 on Plan USL46785 32 Lot 13 on Plan USL46786 28 Lot 84 on Plan USL46786 28 Lot 90 on Plan USL46786 28 Lot 190 on Plan USL46786 28 Lot 191 on Plan USL46786 28 That part of Lot 186 on Plan USL46786 that is within the external boundary 28 That part of Lot 25 on Plan USL46786 that is within the external boundary 28 That part of Lot 1 on Plan USL46787 that is within the external boundary 28 That part of Lot 58 on Plan USL46787 that is within the external boundary 28 That part of Lot 6 on Plan USL46787 that is within the external boundary 28 Lot 119 on Plan USL46788 22 Lot 113 on Plan USL46789 22 Lot 147 on Plan USL46789 22 Lot 161 on Plan USL46789 24 Lot 3 on Plan USL46790 24 Lot 5 on Plan USL46790 24 Lot 6 on Plan USL46790 24 Lot 13 on Plan USL46790 24 Lot 54 on Plan USL46790 24 Lot 2 on Plan USL46791 24 Lot 119 on Plan USL46791 25 Lot 133 on Plan USL46791 25 Lot 135 on Plan USL46791 25 Lot 139 on Plan USL46791 29 That part of Lot 142 on Plan USL46791 excluding those parts formerly subject to Gold Fields Homestead Lease No. 4359, Gold Fields Homestead Lease No. 5019, Gold Fields Homestead Lease No. 538, Gold Fields Homestead Lease No. 1700, Gold Fields Homestead Lease No. 1833, Miner's Homestead Lease No. 6448, Miner's Homestead Lease No. 3527, Miner's Homestead Lease No. 6856 and Miner's Homestead Lease No. 6220 25 Lot 143 on Plan USL46791 29 Lot 148 on Plan USL46791 25 Lot 154 on Plan USL46791 25 That part of Lot 155 on Plan USL46791 excluding those parts formerly subject to Gold Fields Homestead Lease No. 1354, Gold Fields Homestead Lease No. 3793 and Gold Fields Homestead Lease No. 985 25 Lot 262 on Plan USL46791 25 Lot 281 on Plan USL46791 24 Lot 12 on Plan USL46793 31 Lot 21 on Plan USL46794 27 Lot 98 on Plan USL46794 27 Lot 108 on Plan USL46794 19 Lot 2 on Plan USL46798 31 Lot 15 on Plan USL46798 31 Lot 61 on Plan USL46798 29 Lot 66 on Plan USL46798 29 Lot 72 on Plan USL46798 33 Lot 73 on Plan USL46798 29 Lot 79 on Plan USL46798 29 Lot 153 on Plan USL46798 30 Lot 168 on Plan USL46798 30 Lot 24 on Plan USL46799 31 Lot 34 on Plan USL46799 31 Lot 38 on Plan USL46799 31 Lot 43 on Plan USL46799 31 Lot 112 on Plan USL46799 31 Lot 117 on Plan USL46799 30 Lot 122 on Plan USL46799 30 Lot 129 on Plan USL46799 30 Lot 146 on Plan USL46799 30 Lot 13 on Plan USL46800 30 Lot 15 on Plan USL46800 30 Lot 43 on Plan USL46800 30 Lot 99 on Plan USL46800 30 Lot 116 on Plan USL46800 30 Lot 153 on Plan USL46800 30 Lot 155 on Plan USL46800 30 Lot 162 on Plan USL46800 30 Lot 164 on Plan USL46800 30 Lot 166 on Plan USL46800 30 Lot 280 on Plan USL46800 30 Lot 3 on Plan USL46801 29 Lot 27 on Plan USL46801 29 Lot 40 on Plan USL46801 29 Lot 62 on Plan USL46801 29 Lot 75 on Plan USL46801 29 Lot 77 on Plan USL46801 29 Lot 78 on Plan USL46801 29 Lot 79 on Plan USL46801 29 Lot 83 on Plan USL46801 29 Lot 84 on Plan USL46801 29 Lot 301 on Plan USL46801 29 Lot 9 on Plan USL46802 33 Lot 29 on Plan USL46802 33 Lot 70 on Plan USL46802 33 Lot 1 on Plan USL46805 31 Lot 2 on Plan USL46805 31 Lot 3 on Plan USL46805 31 Lot 5 on Plan USL46805 31 Lot 6 on Plan USL46805 31 Lot 9 on Plan USL46805 31 Lot 13 on Plan USL46805 31 Lot 15 on Plan USL46805 31 Lot 18 on Plan USL46805 31 Lot 20 on Plan USL46805 31 Lot 23 on Plan USL46805 31 Lot 33 on Plan USL46805 31 Lot 35 on Plan USL46805 31 Lot 47 on Plan USL46805 31 Lot 39 on Plan USL46806 32 Lot 70 on Plan USL46806 32 Lot 80 on Plan USL46806 32 Lot 2 on Plan USL46807 32 Lot 36 on Plan USL46807 31 Lot 1 on Plan USL46808 31 Lot 3 on Plan USL46808 31 Lot 10 on Plan USL46808 31 Lot 13 on Plan USL46808 31 Lot 25 on Plan USL46808 31 Lot 8 on Plan USL46809 31 Lot 71 on Plan USL46809 31 Lot 12 on Plan USL46810 31 Lot 15 on Plan USL46810 31 Lot 26 on Plan USL46810 31 Lot 29 on Plan USL46810 31 Lot 66 on Plan USL46810 31 Lot 109 on Plan USL46810 31 Lot 11 on Plan USL46827 22 Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary including but not limited to: Aberdeen Creek, Dearie Creek, and Millchester Creek 4 Where an area is depicted on more than one sheet, only the first sheet number is referenced. * denotes areas to which s 24KA of the Native Title Act 1993 (Cth) applies. Part 5 – External Boundary Description Commencing at a point north east of the town of Charters Towers on the centreline of the Burdekin River at Longitude 146.407413° East, also being a point on the north western boundary of native title determination application QUD6244/1998 Birriah People (QC1998/012), and extending generally south westerly and generally westerly passing through the following coordinate points: Longitude° (East) Latitude° (South) 146.403255 20.005354 146.394463 20.021747 146.387272 20.033821 146.372233 20.053391 146.361437 20.071216 146.351818 20.085023 146.341578 20.097687 146.330733 20.110927 146.327912 20.117028 146.232580 20.169100 145.959480 20.256431 145.793730 20.297741 145.626894 20.376012 145.532334 20.293396 145.317674 20.240676 145.227462 20.227089 145.147576 20.206978 145.031824 20.245570 144.920962 20.207523 144.704129 20.103708 144.594686 20.046709 144.462298 20.006961 then westerly to a point on the eastern boundary of an un-named road reserve and the western boundary of the second most north easterly severance of Lot 6 on Plan SP146633 (the severance being immediately west of the Kennedy Developmental Road reserve) at Latitude 19.982842° South; then generally northerly along the eastern boundary of that road reserve and the Kennedy Developmental Road reserve to Latitude 19.694482° South; then generally north easterly and generally south easterly passing through the following coordinate points: Longitude° (East) Latitude° (South) 144.325347 19.566703 144.345351 19.536735 144.351119 19.448476 144.434451 19.448475 144.469046 19.455856 144.499055 19.444968 144.596964 19.386766 144.607123 19.359052 144.644071 19.321176 144.692755 19.236545 144.963558 19.305256 145.044257 19.277876 145.076964 19.271831 145.121401 19.264720 145.160863 19.265787 145.184326 19.282854 145.204946 19.298853 145.238141 19.315069 145.464464 19.397699 145.607733 19.404810 145.927306 19.389862 146.167280 19.483737 146.179336 19.489603 146.262736 19.543014 146.292074 19.557061 146.307084 19.566282 146.323354 19.572376 146.331931 19.584786 146.348769 19.602358 146.365236 19.618097 146.369994 19.620740 146.425587 19.671857 146.438719 19.679959 146.456164 19.693178 146.475196 19.712741 146.506387 19.735475 146.527533 19.747636 146.560310 19.769314 146.573527 19.782004 146.578284 19.789406 146.599048 19.804043 146.605276 19.824879 then south easterly to a point on the western boundary of native title determination application QUD6244/1998 Birriah People (QC1998/012) at Longitude 146.614965° East, Latitude 19.846002° South; then generally south westerly along that native title determination application boundary passing through the following coordinate points: Longitude° (East) Latitude° (South) 146.601231 19.849477 146.563847 19.862509 146.523795 19.880315 146.473331 19.911258 146.429911 19.965524 146.416086 19.985842 then south westerly back to the commencement point. Data reference and source Native title determination application QUD6244/1998 Birriah People (QC1998/012) as accepted for registration on 14 August 2007. Mining tenement data sourced from the Department of Natural Resources and Mines (October 2013), unless otherwise indicated. Cadastre data sourced from Department of Natural Resources and Mines (August 2013). Reference datum Geographical coordinates have been provided by the National Native Title Tribunal Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94) in decimal degrees, and are based on the spatial reference data acquired from the various custodians at the time. Use of coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Prepared by Geospatial Services, National Native Title Tribunal (24 October 2013). A. Map of Determination Area Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA The areas described below do not form part of the Determination Area. Part A 1. Land and waters within the external boundary, as described in Part 5 of Schedule 1, that at the time at which the native title determination application was made: (a) were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth) (despite the fact that the areas, or parts of them, may have been subject to earlier acts that extinguished native title); and (b) to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, do not form part of the Determination Area on the basis that they could not be claimed, in accordance with s 61A of the Native Title Act 1993 (Cth). 2. Specifically, and to avoid any doubt, the land and waters referred to in Part A (1) above include the acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies and include, but are not limited to, the following areas: (a) Lot 4 on Plan DV450; (b) Lot 7 on Plan WG321; (c) Lot 2 on Plan PP18; (d) Lot 2 on Plan PP20; (e) Lot 4 on Plan DP57; (f) Lot 3 on Plan DP58; (g) Lot 5 on Plan OC69; (h) Lot 31 on Plan GF184; (i) Lot 5 on Plan BKN136; (j) Lot 52 on Plan DV308; (k) those parts of Lot 142 on Plan USL46791 formerly subject to Gold Fields Homestead Lease No. 4359, Gold Fields Homestead Lease No. 5019, Gold Fields Homestead Lease No. 538, Gold Fields Homestead Lease No. 1700, Gold Fields Homestead Lease No. 1833, Miner's Homestead Lease No. 6448, Miner's Homestead Lease No. 3527, Miner's Homestead Lease No. 6856 and Miner's Homestead Lease No. 6220; and (l) those parts of Lot 155 on Plan USL46791 formerly subject to Gold Fields Homestead Lease No. 1354, Gold Fields Homestead Lease No. 3793 and Gold Fields Homestead Lease No. 985. 3. Specifically, and to avoid any doubt, the land and waters described in Part A (1) above include the land or waters upon which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and / or s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth), including but not limited to the whole of the land and waters described as: (a) Lot 3 on Plan CP857094; (b) Lot 1 on Plan CT182116; (c) Lot 10 on Plan CT18282; (d) Lot 227 on Plan DV512; and (e) Lot 199 on Plan DV575. Part B Land and waters specifically excluded from the Gudjala People Core Country Claim #1 native title determination application filed on 12 December 2013, being: Lot 11 on Plan NPW348; Exploration Permit for Minerals No. 13653 (as at 11 April 2002); that part of Exploration Permit for Minerals No. 13650 (as at 11 April 2002) that is south of the centreline of the Clarke River; Exploration Permit for Minerals No. 13462 (as at 11 April 2002); Exploration Permit for Minerals No. 13655 (as at 11 April 2002); Exploration Permit for Minerals No. 13676 (as at 11 April 2002); Exploration Permit for Minerals No. 13700 (as at 12 July 2002); Mining Lease No. 10281; Mining Lease No. 10282; Mining Lease No. 10283; Mining Lease No. 10284; Mining Lease No. 10285; and Mining Lease No. 10290. Part C On the basis that native title has been extinguished and is not claimed, the parties have agreed that the Determination Area does not include any land or waters on which any permanent improvement consisting of: (a) a homestead, house, shed or other building; (b) an airstrip; (c) a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters' tank or other water storage facility; or (d) stock yards and trap yards, has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases: 1. Term Lease No. 235739 comprising Lot 1 on Plan CLK40 and commonly known as Porphyry Creek Holding; 2. Pastoral Holding No. 11/551 comprising Lot 551 on Plan CP843339 and commonly known as Maryvale; 3. Preferential Pastoral Holding No. 11/4835 comprising Lot 4835 on Plan CP858256 and commonly known as Spyglass; 4. Term Lease No. 231119 comprising Lot 3 on Plan CP898336 and commonly known as Mileslake; 5. Pastoral Holding No. 11/3732 comprising Lot 1 on Plan DP52 and commonly known as Hann; 6. Pastoral Holding No. 11/3703 comprising Lot 2 on Plan DP53 and commonly known as Wangaroo; 7. Pastoral Holding No. 11/2759 comprising Lot 5 on Plan DP59 and commonly known as Amarra; 8. Stud Holding No. 11/590 comprising Lot 2 on Plan DP60 and commonly known as Toomba Stud; 9. Pastoral Holding No. 11/3868 comprising Lots 1 and 2 on Plan DP9 and commonly known as Allingham; 10. Term Lease No. 232893 comprising Lots 90, 91, 92, 93, 94 and 95 on Plan DV57, and Lot 97 on Plan DV58, and commonly known as Featherby; 11. Pastoral Holding No. 11/5409 comprising Lot 202 on Plan DV579 and commonly known as Basalt; 12. Pastoral Holding No. 11/4293 comprising Lot 11 on Plan DV601 and commonly known as Gamma; 13. Pastoral Holding No. 11/5439 comprising Lot 31 on Plan DV614 and commonly known as Millchester; 14. Term Lease No. 234170 comprising Lot 829 on Plan GF808564 and commonly known as Thalanga; 15. Pastoral Holding No. 18/228 comprising Lot 14 on Plan LH8 and commonly known as Lyndhurst; 16. Term Lease No. 232893 comprising Lot 1 on Plan MPH13820, Lot 181 on Plan MPH20327, Lot 1545 on Plan MPH20658, and Lot 9810 on Plan MPH21320, and commonly known as Run 4265; 17. Term Lease No. 231118 comprising Lot 1 on Plan OC68 and commonly known as Hillgrove; 18. Pastoral Holding No. 11/5231 comprising Lot 5231 on Plan PH1339 and commonly known as Barkla; 19. Preferential Pastoral Holding No. 11/3967 comprising Lot 3967 on Plan PH140 and commonly known as Cuba Plains; 20. Pastoral Holding No. 11/602 comprising Lot 602 on Plan PH1444 and commonly known as Wando Vale; 21. Preferential Pastoral Holding No. 11/4897 comprising Lot 4897 on Plan PH1445 and commonly known as Newburgh; 22. Preferential Pastoral Holding No. 11/3602 comprising Lot 3602 on Plan PH167 and commonly known as Bubbling Spring; 23. Preferential Pastoral Holding No. 11/5133 comprising Lot 5133 on Plan PH1714 and commonly known as Spring Park; 24. Pastoral Holding No. 11/483 comprising Lot 483 on Plan PH1715 and commonly known as Bluff Downs; 25. Pastoral Holding No. 11/4244 comprising Lot 4244 on Plan PH1716 and commonly known as Allensleigh; 26. Pastoral Holding No. 11/5369 comprising Lot 5369 on Plan PH1899 and commonly known as Leonidas; 27. Preferential Pastoral Holding No. 11/575 comprising Lot 575 on Plan PH219 and commonly known as Shield Creek Holding; 28. Preferential Pastoral Holding No. 11/3639 comprising Lot 3639 on Plan PH2248 and commonly known as Myrrlumbing; 29. Preferential Pastoral Holding No. 18/5039 comprising Lot 5039 on Plan PH245 and commonly known as Barker; 30. Preferential Pastoral Holding No. 11/5014 comprising Lot 5014 on Plan PH260 and commonly known as Wade Holding; 31. Pastoral Holding No. 11/3880 comprising Lot 3880 on Plan PH29 and commonly known as Lolworth; 32. Pastoral Holding No. 11/3578 comprising Lot 3578 on Plan PH30 and commonly known as Turrets; 33. Preferential Pastoral Holding No. 23/3683 comprising Lot 3863 on Plan PH368 and commonly known as Porcupine; 34. Preferential Pastoral Holding No. 11/4209 comprising Lot 4209 on Plan PH372 and commonly known as Wall Creek Holding; 35. Preferential Development Holding No. 11/2146 comprising Lot 2146 on Plan PH423 and commonly known as Myola; 36. Preferential Pastoral Holding No. 23/5094 comprising Lot 5094 on Plan PH563 and commonly known as Clothes Peg; 37. Preferential Pastoral Holding No. 11/578 comprising Lot 578 on Plan PH674 and commonly known as Southwick West; 38. Preferential Pastoral Holding No. 23/4968 comprising Lot 4968 on Plan PH688 and commonly known as Strathtay; 39. Pastoral Holding No. 11/4610 comprising Lot 4610 on Plan PH837 and commonly known as Dillon Creek Holding; 40. Pastoral Holding No. 11/3655 comprising Lot 3655 on Plan PH838 and commonly known as Fern Spring; 41. Pastoral Holding No. 11/498 B comprising Lot 3 on Plan PP17 and commonly known as Cargoon; 42. Preferential Pastoral Holding No. 23/3576 comprising Lot 4 on Plan PP23 and commonly known as Reedy Springs; 43. Pastoral Holding No. 23/4335 comprising Lot 4 on Plan SP108012 and commonly known as Cheviot Hills Holding; 44. Pastoral Holding No. 23/5523 comprising Lot 6 on Plan SP146633 and commonly known as Mount Sturgeon Holding; 45. Preferential Pastoral Holding No. 44/3932 comprising Lot 3932 on Plan SP221799 and commonly known as Laroona; 46. Term Lease No. 234201 comprising Lot 4896 on Plan SP232782 and commonly known as Junction Creek Holding; 47. Term Lease No. 233527 comprising Lot 8 on Plan SP248068 and commonly known as Pretty Plains Holding; 48. Term Lease No. 233528 comprising Lot 9 on Plan SP248068 and commonly known as The Twins; 49. Preferential Pastoral Holding No. 11/3933 comprising Lot 1 on Plan WG193 and commonly known as Starbright; and 50. Term Lease No. 233526 comprising Lot 3 on Plan WNG3 and commonly known as Mount Kings Holding. Schedule 3 — NATIVE TITLE HOLDERS The native title holders are the Gudjala People. The Gudjala People are the descendants of one or more of the following people: (a) Alice Anning (also known as Alice White) of Bluff Downs station; (b) Cissy McGregor; (c) Maggie "Ton Ton" Thompson; (d) Topsy Hann; or (e) Zoe (mother of Hoya Siemon/Bowman). Schedule 4 — OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination: 1. The rights and interests of the parties under the following agreements: (a) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, the State of Queensland, and the Ngrragoonda Aboriginal Corporation RNTBC ICN 7982 as parties to the Gudjala protected areas indigenous land use agreement (body corporate agreement), which was authorised by the native title claim group on 5 September 2013 and executed by Elizabeth Dodd on 24 January 2014, Andrew (Smokey) Anderson on 23 January 2014, Gloria Santo on 21 January 2014, Christine Hero on 17 January 2014, Priscilla Michelle Huen on 21 January 2014, the Ngrragoonda Aboriginal Corporation ICN 7982 on 17 January 2014, and the State of Queensland on 3 and 5 February 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate; (b) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, Flinders Shire Council, and Charters Towers Regional Council as parties to the local government indigenous land use agreement (area agreement), which was authorised by the native title claim group on 8 November 2013 and executed by Elizabeth Dodd on 24 January 2014, Andrew (Smokey) Anderson on 23 January 2014, Gloria Santo on 21 January 2014, Christine Hero on 17 January 2014, Priscilla Michelle Huen on 21 January 2014, the Ngrragoonda Aboriginal Corporation ICN 7982 on 17 January 2014, Flinders Shire Council on 20 January 2014, and Charters Towers Regional Council on 28 January 2014, and that agreement once it becomes registered as an area ILUA following execution of the agreement by the registered native title body corporate; (c) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the indigenous land use agreement executed on 1 November 2013. 2. The rights and interests of Telstra Corporation Limited ACN 051 775 556: (a) as the owner or operator of telecommunications facilities installed within the Determination Area; (b) created pursuant to the Post and Telegraph Act 1901 (Cth), the Telecommunications Act 1975 (Cth), the Australian Telecommunications Corporation Act 1989 (Cth), the Telecommunications Act 1991 (Cth) and the Telecommunications Act 1997 (Cth), including rights: (i) to inspect land; (ii) to install and operate telecommunication facilities; (iii) to alter, remove, replace, maintain, repair and ensure the proper functioning of its telecommunications facilities; (c) for its employees, agents or contractors to access its telecommunication facilities in and in the vicinity of the Determination Area in performance of their duties; and (d) under any lease, licence, access agreement or easement relating to its telecommunications facilities in the Determination Area. 3. The rights and interests of Ergon Energy Corporation ACN 087 646 062: (a) as the owner and operator of any "Works" as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area; (b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); (c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including: (i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made; (ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and (iii) to inspect, maintain and manage any Works in the Determination Area. 4. The rights and interests of the State of Queensland and the Charters Towers Regional Council and Flinders Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads. 5. The rights and interests of Charters Towers Regional Council and Flinders Shire Council: (a) under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be their respective local government areas; (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area; (c) as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to: (i) undedicated but constructed roads except for those not operated by Council; (ii) water pipelines and water supply infrastructure; (iii) drainage facilities; (iv) watering point facilities; (d) to enter the land for the purposes described in paragraphs (a), (b) and (c) above by their employees, agents or contractors to: (i) exercise any of the rights and interests referred to in paragraph 5 above; (ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above; (iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management. 6. The rights and interests of Citigold Corporation Limited ACN 060 397 177 and its related bodies corporate (as that term is defined in the Corporations Act 2001 (Cth)) as a holder of the following: (a) permits, licences and leases granted under the Mineral Resources Act 1989 (Qld); and (b) permit to occupy PO15894 granted under the Land Act 1994 (Qld). 7. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act. 8. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld). 9. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) stock routes; and (d) areas that were public places at the end of 31 December 1993. 10. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State or the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 147 of 2006 BETWEEN: ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #2 Applicant AND: STATE OF QUEENSLAND First Respondent CHARTERS TOWERS REGIONAL COUNCIL Second Respondent FLINDERS SHIRE COUNCIL Third Respondent ERGON ENERGY CORPORATION LIMITED Fourth Respondent CITIGOLD CORPORATION LIMITED Fifth Respondent GREAT MINES PTY LTD Sixth Respondent Allingham Holdings Pty Ltd, Kenneth Ernest Dudley Anning, Richard Dudley Anning, Atkinson Developments Pty Ltd, Camm Enterprises (Aust) Pty Ltd, Lydia Jane Dennis, Elizabeth Anne Lyons, Gerard Frances Lyons, Lynette Margaret Maitland, Percy William George Maitland, Maryvale HN1 Pastoral Company Pty Ltd, Julia Caroline Ross, Daniel John Turley and Marie Ann Turley Seventh – Twentieth Various Pastoral Respondents JUDGE: LOGAN J DATE OF ORDER: 18 MARCH 2014 WHERE MADE: CHARTERS TOWERS BEING SATISFIED that an order in the terms set out below is within the power of the Court, and it appearing appropriate to the Court to do so, pursuant to s 87A of the Native Title Act 1993 (Cth) BY CONSENT THE COURT ORDERS THAT: 1. There be a determination of native title in the terms set out below (the "determination"). 2. Each party to the proceedings is to bear its own costs. BY CONSENT THE COURT DETERMINES THAT: 3. The Determination Area is the land and waters described in Schedule 1, and depicted in the map attached to Schedule 1. To the extent of any inconsistency between the written description and the map, the written description prevails. 4. Native title exists in relation to that part of the Determination Area described in Part 1 and Part 2 of Schedule 1. 5. The native title is held by the Gudjala People described in Schedule 3 (the "native title holders"). 6. Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 1 of Schedule 1 are the non-exclusive rights to: (a) access, be present on, move about on and travel over the area; (b) camp, and live temporarily on the area as part of camping, and for that purpose build temporary shelters; (c) hunt, fish and gather on the land and waters of the area for personal, domestic and non-commercial communal purposes; (d) take and use Natural Resources from the land and waters of the area for personal, domestic and non-commercial communal purposes; (e) take and use the Water of the area for personal, domestic and non-commercial communal purposes; (f) conduct ceremonies on the area; (g) be buried and bury native title holders within the area; (h) maintain places of importance and areas of significance to the native title holders under their traditional laws and customs and protect those places and areas from physical harm; (i) teach on the area the physical and spiritual attributes of the area; and (j) light fires on the area for domestic purposes including cooking, but not for the purpose of hunting or clearing vegetation. 7. Subject to paragraphs 8, 9 and 10 below the nature and extent of the native title rights and interests in relation to the land and waters described in Part 2 of Schedule 1 is the non-exclusive right to access, be present on, move about on and travel over the area. 8. The native title rights and interests are subject to and exercisable in accordance with: (a) the Laws of the State and the Commonwealth; (b) the traditional laws acknowledged and traditional customs observed by the native title holders; and (c) the terms and conditions of the agreements referred to in paragraph 1 of Schedule 4. 9. The native title rights and interests referred to in paragraphs 6 and 7 do not confer possession, occupation, use or enjoyment to the exclusion of all others. 10. There are no native title rights in or in relation to minerals as defined by the Mineral Resources Act 1989 (Qld) and petroleum as defined by the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld). 11. The nature and extent of any other interests in relation to the Determination Area (or respective parts thereof) are set out in Schedule 4. 12. The relationship between the native title rights and interests described in paragraphs 6 and 7 and the other interests described in Schedule 4 (the "other interests") is that: (a) the other interests continue to have effect, and the rights conferred by or held under the other interests may be exercised notwithstanding the existence of the native title rights and interests; (b) to the extent the other interests are inconsistent with the continued existence, enjoyment or exercise of the native title rights and interests in relation to the land and waters of the Determination Area, the native title continues to exist in its entirety but the native title rights and interests have no effect in relation to the other interests to the extent of the inconsistency for so long as the other interests exist; and (c) the other interests and any activity that is required or permitted by or under, and done in accordance with, the other interests, or any activity that is associated with or incidental to such an activity, prevail over the native title rights and interests and any exercise of the native title rights and interests. DEFINITIONS AND INTERPRETATION 13. In this determination, unless the contrary intention appears: "land" and "waters", respectively, have the same meanings as in the Native Title Act 1993 (Cth); "Laws of the State and the Commonwealth" means the common law and the laws of the State of Queensland and the Commonwealth of Australia, and includes legislation, regulations, statutory instruments, local planning instruments and local laws; "Natural Resources" means: (a) any animal, plant, fish and bird life found on or in the lands and waters of the Determination Area; and (b) any clays, soil or rock found on or below the surface of the Determination Area, that have traditionally been taken and used by the native title holders, but does not include: (a) animals that are the private personal property of another; (b) crops that are the private personal property of another; and (c) minerals as defined in the Mineral Resources Act 1989 (Qld) or petroleum as defined in the Petroleum Act 1923 (Qld) and the Petroleum and Gas (Production and Safety) Act 2004 (Qld); "Water" means: (a) water which flows, whether permanently or intermittently, within a river, creek or stream; (b) any natural collection of water, whether permanent or intermittent; (c) water from an underground water source. Other words and expressions used in this determination have the same meanings as they have in Part 15 of the Native Title Act 1993 (Cth). THE COURT DETERMINES THAT: 14. The native title is not held in trust. 15. The Ngrragoonda Aboriginal Corporation ICN 7982, incorporated under the Corporations (Aboriginal and Torres Strait Islander) Act 2006 (Cth), is to: (a) be the prescribed body corporate for the purpose of s 57(2) of the Native Title Act 1993 (Cth); and (b) perform the functions mentioned in s 57(3) of the Native Title Act 1993 (Cth) after becoming a registered native title body corporate Schedule 1 — DETERMINATION AREA Description of Determination Area The Determination Area comprises all of the land and waters described in Parts 1 and 2 below, to the extent that they are within the external boundary described in Part 3 below, and depicted on the determination map, excluding the areas described in Schedule 2. Part 1 – Non-Exclusive Rural Areas All of the land and waters described in the following table and depicted in light blue on the determination map: Area description Determination map sheet number (as at date of determination) That part of Lot 551 on Plan CP843339 that is within the external boundary 1 That part of Lot 3 on Plan CP898336 that is within the external boundary 2 Lot 11 on Plan NPW348 4 That part of Lot 602 on Plan PH1444 that is within the external boundary 1 That part of Lot 5039 on Plan PH245 that is within the external boundary 1 That part of Lot 3880 on Plan PH29 that is within the external boundary 4 That part of Lot 3578 on Plan PH30 that is within the external boundary 3 That part of Lot 3683 on Plan PH368 that is within the external boundary 3 Lot 4067 on Plan PH98 3 That part of Lot 3 on Plan PP17 that is within the external boundary 3 That part of Lot 4 on Plan PP23 that is within the external boundary 3 That part of Lot 6 on Plan SP146633 that is within the external boundary 3 That part of Lot 8 on Plan SP248068 that is within the external boundary 3 That part of Lot 9 on Plan SP248068 that is within the external boundary 3 That part of Lot 1 on Plan WG193 that is within the external boundary 2 That part of Lot 3 on Plan WNG3 that is within the external boundary 3 Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary including but not limited to: Porcupine Creek, the Clarke River, Glenmiddle Creek, the Burdekin River and the Star River Part 2 – Non-Exclusive Urban Areas All of the land and waters described in the following table and depicted in tan on the determination map: Area description Determination map sheet number (as at date of determination) Lot 74 on Plan AP15758 5 That part of Lot 4 on Plan CP901158 that is within the external boundary 6 That part of Lot 46 on Plan CP901158 that is within the external boundary 6 Lot 4 on Plan CP906665 5 Lot 11 on Plan CT182114 5 Lot 1 on Plan CT182119 5 Lot 2 on Plan CT182119 5 Lot 2 on Plan CT18239 5 Lot 150 on Plan DV459 5 Lot 226 on Plan DV510 5 Lot 186 on Plan DV540 5 Lot 190 on Plan DV546 5 Lot 195 on Plan DV552 5 That part of Lot 210 on Plan DV610 that is within the external boundary 5 Lot 1 on Plan DV840972 5 Lot 1 on Plan MPH32388 5 Lot 67 on Plan MPH40006 5 Lot 68 on Plan MPH40006 5 Lot 69 on Plan MPH40006 5 Lot 70 on Plan MPH40006 5 Lot 71 on Plan MPH40006 5 Lot 72 on Plan MPH40006 5 Lot 73 on Plan MPH40006 5 Lot 90 on Plan MPH40554 5 Lot 91 on Plan MPH40554 5 Lot 1 on Plan MPH590 5 Lot 151 on Plan SP112339 5 That part of Lot 255 on Plan SP142524 that is within the external boundary 5 That part of Lot 152 on Plan SP143440 that is within the external boundary 5 That part of Lot 17 on Plan SP144896 that is within the external boundary 5 That part of Lot 256 on Plan SP238149 that is within the external boundary 5 Lot 61 on Plan SP250466 5 Lot 62 on Plan SP250466 5 The area of road shown on Plan SP250466 between stations 3-4-13-11-3 and 11-13-14-10-11 * 5 Lot 111 on Plan USL46780 5 That part of Lot 65 on Plan USL46782 that is within the external boundary 6 Lot 33 on Plan USL46783 5 That part of Lot 54 on Plan USL46783 that is within the external boundary 5 That part of Lot 1 on Plan USL46784 that is within the external boundary 6 That part of Lot 186 on Plan USL46786 that is within the external boundary 5 That part of Lot 25 on Plan USL46786 that is within the external boundary 5 Lot 4 on Plan USL46787 5 Lot 5 on Plan USL46787 5 Lot 22 on Plan USL46787 5 Lot 118 on Plan USL46787 5 That part of Lot 1 on Plan USL46787 that is within the external boundary 5 That part of Lot 58 on Plan USL46787 that is within the external boundary 5 That part of Lot 6 on Plan USL46787 that is within the external boundary 5 Lot 173 on Plan USL46788 5 Lot 39 on Plan USL46795 5 Lot 141 on Plan USL46795 5 Save for any waters forming part of a lot on plan, all waterways, natural lakes, creeks and rivers within the external boundary including but not limited to: Mossman Creek * denotes an area to which s 24KA of the Native Title Act 1993 (Cth) applies Part 3 – External Boundary Description The external boundary encompasses land and waters within the following areas, which are further described as: • Lot 11 on Plan NPW348; • Exploration Permit for Minerals No. 13653 (as at 11 April 2002); • that part of Exploration Permit for Minerals No. 13650 (as at 11 April 2002) that is south of the centreline of the Clarke River; • Exploration Permit for Minerals No. 13462 (as at 11 April 2002); • Exploration Permit for Minerals No. 13655 (as at 11 April 2002); • that part of Exploration Permit for Minerals No. 13676 (as at 11 April 2002) that is north of a line extending between coordinate points located at Longitude 145.031824° East, Latitude 20.245570° South and Longitude 144.920962° East, Latitude 20.207523° South; • that part of Exploration Permit for Minerals No. 13700 (as at 12 July 2002) that is north of a line defined by the following coordinate points: Longitude° (East) Latitude° (South) 144.704129 20.103708 144.594686 20.046709 144.462298 20.006961 • Mining Lease No. 10281; • Mining Lease No. 10282; • Mining Lease No. 10283; • Mining Lease No. 10284; and • Mining Lease No. 10285. Data reference and source • Mining tenement data sourced from the Department of Natural Resources and Mines (October 2013), unless otherwise indicated. • Cadastre data sourced from Department of Natural Resources and Mines (August 2013). Reference datum Geographical coordinates have been provided by the NNTT Geospatial Services and are referenced to the Geocentric Datum of Australia 1994 (GDA94), in decimal degrees and are based on the spatial reference data acquired from the various custodians at the time Use of coordinates Where coordinates are used within the description to represent cadastral or topographical boundaries or the intersection with such, they are intended as a guide only. As an outcome to the custodians of cadastral and topographic data continuously recalculating the geographic position of their data based on improved survey and data maintenance procedures, it is not possible to accurately define such a position other than by detailed ground survey. Prepared by Geospatial Services, National Native Title Tribunal (24 October 2013). B. Map of Determination Area Schedule 2 — AREAS NOT FORMING PART OF THE DETERMINATION AREA The areas described below do not form part of the Determination Area. Part A 1. Land and waters within the external boundary, as described in Part 3 of Schedule 1, that at the time at which the native title determination application was made: (a) were the subject of one or more previous exclusive possession acts, as defined in s 23B of the Native Title Act 1993 (Cth) (despite the fact that the areas, or parts of them, may have been subject to earlier acts that extinguished native title); and (b) to which none of ss 47, 47A or 47B of the Native Title Act 1993 (Cth) applied, do not form part of the Determination Area on the basis that they could not be claimed, in accordance with s 61A of the Native Title Act 1993 (Cth). 2. Specifically, and to avoid any doubt, the land and waters referred to in Part A (1) above include the acts described in ss 23B(2) and 23B(3) of the Native Title Act 1993 (Cth) to which s 20 of the Native Title (Queensland) Act 1993 (Qld) applies and include, but are not limited to, the whole of the land and waters described as Lot 174 on Plan SP252359. 3. Specifically, and to avoid any doubt, the land and waters described in Part A (1) above include the land or waters upon which any public work, as defined in s 253 of the Native Title Act 1993 (Cth), is or was constructed, established, or situated, and to which ss 23B(7) and 23C(2) of the Native Title Act 1993 (Cth) and / or s 21 of the Native Title (Queensland) Act 1993 (Qld) applies, together with any adjacent land or waters in accordance with s 251D of the Native Title Act 1993 (Cth). Part B On the basis that native title has been extinguished and is not claimed, the parties have agreed that the Determination Area does not include any land or waters on which any permanent improvement consisting of: (a) a homestead, house, shed or other building; (b) an airstrip; (c) a constructed dam or any other constructed stock watering point, bore, turkey nest, squatters' tank or other water storage facility; or (d) stock yards and trap yards, has, at the date of the determination, been constructed (including any adjacent land the exclusive use of which is reasonably necessary for the enjoyment of the improvement) in accordance with the rights of the lessee under, and within the boundaries of the following pastoral leases: 1. Pastoral Holding No. 11/551 comprising Lot 551 on Plan CP843339 and commonly known as Maryvale; 2. Term Lease No. 231119 comprising Lot 3 on Plan CP898336 and commonly known as Mileslake; 3. Pastoral Holding No. 11/3880 comprising Lot 3880 on Plan PH29 and commonly known as Lolworth; 4. Pastoral Holding No. 11/3578 comprising Lot 3578 on Plan PH30 and commonly known as Turrets; 5. Pastoral Holding No. 23/4067 comprising Lot 4067 on Plan PH98 and commonly known as Upland; 6. Preferential Pastoral Holding No. 18/5039 comprising Lot 5039 on Plan PH245 and commonly known as Barker; 7. Preferential Pastoral Holding No. 23/3683 comprising Lot 3683 on Plan PH368 and commonly known as Porcupine; 8. Pastoral Holding No. 11/602 comprising Lot 602 on Plan PH1444 and commonly known as Wando Vale; 9. Pastoral Holding No. 11/498 B comprising Lot 3 on Plan PP17 and commonly known as Cargoon; 10. Preferential Pastoral Holding No. 23/3576 comprising Lot 4 on Plan PP23 and commonly known as Reedy Springs; 11. Pastoral Holding No. 23/5523 comprising Lot 6 on Plan SP146633 and commonly known as Mount Sturgeon Holding; 12. Term Lease No. 233527 comprising Lot 8 on Plan SP248068 and commonly known as Pretty Plains Holding; 13. Term Lease No. 233528 comprising Lot 9 on Plan SP248068 and commonly known as The Twins; 14. Preferential Pastoral Holding No. 11/3933 comprising Lot 1 on Plan WG193 and commonly known as Starbright; and 15. Term Lease No. 233526 comprising Lot 3 on Plan WNG3 and commonly known as Mount King Holding. Schedule 3 — NATIVE TITLE HOLDERS The native title holders are the Gudjala People. The Gudjala People are the descendants of one or more of the following people: (a) Alice Anning (also known as Alice White) of Bluff Downs station; (b) Cissy McGregor; (c) Maggie "Ton Ton" Thompson; (d) Topsy Hann; or (e) Zoe (mother of Hoya Siemon / Bowman). Schedule 4 — OTHER INTERESTS IN THE DETERMINATION AREA The nature and extent of the other interests in relation to the Determination Area are the following as they exist as at the date of the determination: 1. The rights and interests of the parties under the following agreements: (a) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, the State of Queensland, and the Ngrragoonda Aboriginal Corporation RNTBC ICN 7982 as parties to the Gudjala protected areas indigenous land use agreement (body corporate agreement), which was authorised by the native title claim group on 5 September 2013 and executed by Elizabeth Dodd on 24 January 2014, Andrew (Smokey) Anderson on 23 January 2014, Gloria Santo on 21 January 2014, Christine Hero on 17 January 2014, Priscilla Michelle Huen on 21 January 2014, the Ngrragoonda Aboriginal Corporation ICN 7982 on 17 January 2014, and the State of Queensland on 3 and 5 February 2014, and that agreement once it becomes registered as a body corporate ILUA following execution of the agreement by the registered native title body corporate; (b) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People, the Ngrragoonda Aboriginal Corporation ICN 7982, Flinders Shire Council, and Charters Towers Regional Council as parties to the local government indigenous land use agreement (area agreement), which was authorised by the native title claim group on 8 November 2013 and executed by Elizabeth Dodd on 24 January 2014, Andrew (Smokey) Anderson on 23 January 2014, Gloria Santo on 21 January 2014, Christine Hero on 17 January 2014, Priscilla Michelle Huen on 21 January 2014, the Ngrragoonda Aboriginal Corporation ICN 7982 on 17 January 2014, Flinders Shire Council on 20 January 2014, and Charters Towers Regional Council on 28 January 2014, and that agreement once it becomes registered as an area ILUA following execution of the agreement by the registered native title body corporate; (c) Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen on their own behalf and on behalf of the Gudjala People and Ergon Energy Corporation Limited ACN 087 646 062 as parties to the indigenous land use agreement executed on 1 November 2013. 2. The rights and interests of Ergon Energy Corporation ACN 087 646 062: (a) as the owner and operator of any "Works" as that term is defined in the Electricity Act 1994 (Qld) within the Determination Area; (b) as a distribution entity and the holder of a distribution authority under the Electricity Act 1994 (Qld); (c) created under the Electricity Act 1994 (Qld) and the Government Owned Corporations Act 1993 (Qld) including: (i) rights in relation to any agreement relating to the Determination Area existing or entered into before the date on which these orders are made; (ii) rights to enter the Determination Area by its employees, agents or contractors to exercise any of the rights and interests referred to in this paragraph; and (iii) to inspect, maintain and manage any Works in the Determination Area. 3. The rights and interests of the State of Queensland and the Charters Towers Regional Council and Flinders Shire Council to access, use, operate, maintain and control the dedicated roads in the Determination Area and the rights and interests of the public to use and access the roads. 4. The rights and interests of Charters Towers Regional Council and Flinders Shire Council: (a) under their local government jurisdiction and functions under the Local Government Act 2009 (Qld), under the Land Protection (Pest and Stock Route Management) Act 2002 (Qld) and under any other legislation, for that part of the Determination Area within the area declared to be their respective local government areas; (b) as the: (i) lessor under any leases which were validly entered into before the date on which these orders are made and whether separately particularised in these orders or not; (ii) grantor of any licences or other rights and interests which were validly granted before the date on which these orders were made and whether separately particularised in these orders or not; (iii) holder of any estate or interest in land, as trustee of any reserves, that exist in the Determination Area; (c) as the owner and operator of infrastructure, and those facilities and other improvements located in the Determination Area validly constructed or established on or before the date on which these orders are made, including but not limited to: (i) undedicated but constructed roads except for those not operated by Council; (ii) water pipelines and water supply infrastructure; (iii) drainage facilities; (iv) watering point facilities; (d) to enter the land for the purposes described in paragraphs (a), (b) and (c) above by their employees, agents or contractors to: (i) exercise any of the rights and interests referred to in paragraph 4 above; (ii) inspect, maintain and repair the infrastructure, facilities and other improvements referred to in paragraph (c) above; (iii) undertake operational activities in its capacity as a local government such as feral animal control, weed control, erosion control, waste management and fire management. 5. The rights and interests of the holders of any leases, licences, reservations, permits, easements or authorities granted under the Land Act 1994 (Qld), and any relevant regulations or subordinate legislation made under that Act. 6. The rights and interests of the holders of any permits, claims, licences or leases granted under the Mineral Resources Act 1989 (Qld), including (but not limited to) those held by Citigold Corporation Limited ACN 060 397 177 and its related bodies corporate. 7. So far as confirmed pursuant to s 212(2) of the Native Title Act 1993 (Cth) and s 18 of the Native Title Act (Queensland) Act 1993 (Qld) as at the date of this determination, any existing public access to, and enjoyment of, the following places in the Determination Area: (a) waterways; (b) beds and banks or foreshores of waterways; (c) stock routes; and (d) areas that were public places at the end of 31 December 1993. 8. Any other rights and interests: (a) held by the State of Queensland or Commonwealth of Australia; or (b) existing by reason of the force and operation of the Laws of the State or the Commonwealth. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 80 of 2005 BETWEEN: ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #1 Applicant AND: STATE OF QUEENSLAND First Respondent THE COMMONWEALTH OF AUSTRALIA Second Respondent CHARTERS TOWERS REGIONAL COUNCIL Third Respondent FLINDERS SHIRE COUNCIL Fourth Respondent ERGON ENERGY CORPORATION LIMITED Fifth Respondent CITIGOLD CORPORATION LIMITED Sixth Respondent RICHARD DUDLEY ANNING, HENRY JAMES ATKINSON, SUSAN ATKINSON, LESLIE ARTHUR BRAZIER, MARION LINDA BRAZIER, MICHELLE MAREE BURGE, JOHN DAVID BURGE, HELEN MARGARET COOK, PHILLIP LEONARD COOK, JACQUELINE OLGA CORE HEATH, WARREN ROBERT JACKSON, ROBERT CHARLES LAWRIE TRADING AS RC & JJ LAWRIE, ELIZABETH ANNE LYONS, GERARD FRANCES LYONS, JOHN DOMINIC LYONS, RONDA MARGARET LYONS, LYNETTE MARGARET MAITLAND, PERCY WILLIAM GEORGE MAITLAND, HECTOR EDMOND MOODY, MARGARET JEAN MOODY, NACRE PTY LTD, TREVOR TORKINGTON, VENETTA BAVERLEY TORKINGTON, DANIEL JOHN TURLEY, MARIE ANN TURLEY, JOHN NORMAN JAMES WEIR AND PRUE ANN WEIR Seventh – Thirty-Third Various Pastoral Respondents JAMES COOK UNIVERSITY Thirty-Fourth Respondent IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION QUD 147 of 2006 BETWEEN: ELIZABETH DODD, ANDREW (SMOKEY) ANDERSON, CHRISTINE HERO, PRISCILLA MICHELLE HUEN AND GLORIA SANTO ON BEHALF OF THE GUDJALA PEOPLE CORE COUNTRY CLAIM #2 Applicant AND: STATE OF QUEENSLAND First Respondent CHARTERS TOWERS REGIONAL COUNCIL Second Respondent FLINDERS SHIRE COUNCIL Third Respondent ERGON ENERGY CORPORATION LIMITED Fourth Respondent CITIGOLD CORPORATION LIMITED Fifth Respondent GREAT MINES PTY LTD Sixth Respondent Allingham Holdings Pty Ltd, Kenneth Ernest Dudley Anning, Richard Dudley Anning, Atkinson Developments Pty Ltd, Camm Enterprises (Aust) Pty Ltd, Lydia Jane Dennis, Elizabeth Anne Lyons, Gerard Frances Lyons, Lynette Margaret Maitland, Percy William George Maitland, Maryvale HN1 Pastoral Company Pty Ltd, Julia Caroline Ross, Daniel John Turley and Marie Ann Turley Seventh – Twentieth Various Pastoral Respondents JUDGE: LOGAN J DATE: 18 MARCH 2014 PLACE: CHARTERS TOWERS REASONS FOR JUDGMENT 1 Reasons for judgement in respect of consent determination in a native title application can have about them a similarity of language that might lead the uninformed to think that there is something glib or routine about them. Nothing could be further from the truth. All that is routine is the application of by now well settled principles the correctness of which, once explained in earlier authority, is not enhanced by paraphrasing. What is never routine are the customs, usages and affinity for particular land and the remarkable cherishing and preservation of them over so many generations, notwithstanding the impact of European settlement, which enables an Aboriginal people, in this case the Gudjala People, represented by Elizabeth Dodd, Andrew (Smokey) Anderson, Gloria Santo, Christine Hero and Priscilla Michelle Huen (the applicant) to establish native title. Also never routine is the opportunity offered by a determination, made with the agreement of all interested parties and by a public exercise of the judicial power of the Commonwealth, to evidence that objectives specified by the Commonwealth Parliament in the Native Title Act 1993 (Cth) (the Act) are being met in practice. 2 The applications being determined today, by consent, are QUD 80 of 2005, Gudjala People # 1 and QUD 147 of 2006, Gudjala People # 2. The determination under the Act is in favour of the Gudjala Native Title claimants in respect to the land and waters within the areas set out in Schedule 1 in each determination. 3 The State of Queensland, the Commonwealth of Australia, Charters Towers Regional Council, Flinders Shire Council, Citigold Corporation Limited, Ergon Energy Corporation Limited, Great Mines Pty Ltd, James Cook University and various Pastoralists are respondent parties to the applications. 4 The two applications in these proceedings are being determined together due to the geographic proximity and the application concerning similar materials and involving materially the same anthropological evidence. 5 The subject land today is generally known as Western Queensland, in the Regional Shire Councils of Etheridge, Finders and Charters Towers. Native Title rights are sought for determination by the applicants under the Act. 6 One of the Commonwealth Parliament's objectives in respect of the Act is the resolution of claims for the recognition of native title by agreement. That objective is borne out in s 87 of the Act by the Native Title Amendment Act 2009 (Cth). 7 Like many such claims, these claims have been long in their gestation. In earlier judgements in cases like the present, for example in 2012 in Hoolihan on behalf of the Gugu Badhun People # 2 v State of Queensland [2012] FCA 800; Archer on behalf of the Djungan People #1 v State of Queensland [2012] FCA 801 and Fisher on behalf of the Ewamian People #2 v State of Queensland [2013] FCA 1249, I observed that native title claims which linger unresolved on a court list are an affront to our system of justice. I related in those cases how Parliament's objective of consensual resolution had been met. The statements which I then made are just as applicable to this case. In this case, too, the achievement of Parliament's objective would not have been possible without much hard and dedicated work by experienced legal advisers, the responsible actions of the parties guided by their advisers and, especially latterly, intensive case management, particularly by the Court's registrars. I commend the parties and the legal practitioners involved in the cases being heard today for the work latterly undertaken in bringing them to final, consensual resolution. 8 In the aftermath of Wik Peoples v Queensland (1996) 187 CLR 1, the Executive Government of the Commonwealth made provision for legal assistance to be provided to pastoralists in relation to native title claims via a scheme known as the Native Title Respondent Funding Scheme under s 213A of the Act. Over the now almost six years during which I have been responsible for the management of the list of native title cases in this region, and as I have stated in other determinations, I have directly observed how, in combination with responsible legal representation of applicants, via the North Queensland Land Council, of the State, via the Crown Solicitor and of other respondents, this legal assistance to pastoralists has repeatedly and beneficially contributed to the administration of justice and thus to Parliament's goal of national reconciliation in this important area of the Court's jurisdiction. This legal assistance to pastoralists was terminated with effect at the end of 2012 by the then Commonwealth Executive Government. The current Executive Government announced late last year that funding of the legal assistance would be restored, with the eligibility criteria revised, on 1 January 2014. It has very recently come to my attention in the course of the management of native title cases in this region that this funding has yet to flow through to those representing and advising pastoralists and other primary producers with respect to native title claims. 9 Discretionary value judgments in respect of public monies appropriated by Parliament are for the Executive Government of the day to make. What I can say again, and have in earlier determinations stated, based on direct experience, is that the addressing of the hitherto "unacceptably long time" for the resolution of native title cases and the recent experience of "faster and better claim resolution" to which the then Attorney General made reference previously (Echoes of Mabo: AIATSIS Native Title Conference, 6 June 2012, Speech by the Honourable Nicola Roxon MP, Attorney-General, http://www.attorneygeneral.gov.au/ Speeches/Pages/2012/Second% 20Quarter/6-June-2012---Echoes-of-Mabo---AIATSIS-Native-Title-Conference.aspx Accessed 7 December 2012) is best achieved by a combination of responsible legal representation of all interested parties and intensive case management and proactive, targeted use of alternative dispute resolution where appropriate by the judges and registrars of this Court. As I noted last year in an interlocutory judgment concerning one of the current claims for determination, Dodd on behalf of the Gudjala People Core Country Claim #1 v State of Queensland (No 2) [2013] FCA 787 at [4]: [T]o my direct observation in court in respect of the regions of the State for which I have had case management responsibility, the collective representation of pastoral respondents enabled by that scheme greatly facilitated the responsible, consensual resolution of native title claims and removed much of the angst such claims might otherwise have occasioned such respondents. 10 I understand from submissions made in the course of case management of another native title case that, since the restoration of funding was announced, bids for the available funding have been submitted and that these may well exceed funds presently available. No interest group could expect any government uncritically to underwrite legal expenses from public funds. Even accepting this, the present absence of any decision in respect of the allocation of any funds is fraught with the imminent risk of inhibiting the Court's ability to conclude native title cases both efficiently and consensually, with all of the benefits such disposal entails. Absence of any decision is, I understand, also inhibiting the formulation of alternative means of funding at least some advice and representation for pastoralists and other primary producers generally. I further understand that local government, which is almost always an interested respondent party in a native title case is likewise being affected by a present absence of certainty as to funding from the Commonwealth. Here, too, there is an imminent risk of jeopardising the progress to finality of native title cases. The present situation is truly fraught with a risk of a return to "unacceptably long times" for the resolution of native title cases, with all of the adverse consequences for public and private interests that entails. 11 While it is for the Executive Government to propose and for Parliament to approve particular appropriations of public money, where that public money is directed to the provision of legal assistance to a party to a native title proceeding, be that party applicant, pastoralist or otherwise, so as to assist in the achievement of the objectives of the Act, it is for the judicial branch to ensure that the conduct of parties so assisted entails the responsible use of the benefit so conferred. That is a subject given regular attention by the Court via the intensive case management of native title claims. In this regard and truly there are secular inspirations to be drawn from scripture: "From those to whom much is given, much is expected" (Gospel of St Luke, Ch. 12, v 48, condensed and rendered in modern form). 12 In Baker on behalf of the Muluridji People v State of Queensland [2011] FCA 1432 (Muluridji) I adopted observations made in King v Northern Territory of Australia [2011] FCA 582 (King) per Mansfield J. His Honour made a number of observations about the preamble to the Act. I am in complete agreement not only with the substance of his Honour's observations in King but also with the manner in which he expressed them. They are exactly apposite in the present proceedings also. As I observed in Muluridji, I propose therefore to adopt them as my own in these reasons for judgment without further attribution. 13 The preamble to the Act recognised, on behalf of all people of Australia, that the Aboriginal peoples of Australia inhabited this country for many years prior to European settlement, and that the Aboriginal peoples had been progressively dispossessed of their lands. It recorded that, by the overwhelming vote of the people of Australia, the Constitution was amended to enable laws such as the Act to be passed, to facilitate the recognition by our shared legal system of the native title rights and interests in their land. This is an occasion when the Court is to make orders declaring that the groups of Aboriginal persons in the current applications have always been the traditional owners of the land. By the Court's orders, the Australian community collectively recognises that status. It is important to emphasise that the Court's orders do not grant that status. The Court is declaring that it exists and has always existed at least since European settlement. 14 The applicants have filed the following documents relevant to the consent determinations in the applications: (a) Dr Anthony Redmond (September 2009) Anthropologist's Report Gudjala, Gudjala #1 ((QUD80/05) Gudjala #2 (QUD147/06) Vol 1 and 2 (The Connection Report); (b) Historian Val Donovan (December 2010) Historical Report in relation to QUD80/2005, Elizabeth Dodd & Ors on behalf of the Gudjala People and QUD147/2006, Elizabeth Dodd & Ors on behalf of the Gudjala People #2 (Historical Report); (c) Dr Anthony Redmond (21 June 2011) Supplementary Anthropologist's Report: QUD80/205 (sic), Elizabeth Dodd & Ors on behalf of the Gudjala People and QUD147/2006, Elizabeth Dodd & Ors on behalf of the Gudjala People #2; (d) Dr Anthony Redmond (June 2011) Gudjala Table 2 Rights and Interests; (e) Dr Anthony Redmond (March 2012) Further information relating to Gudjala #1 and #2 arising from Experts Conference with State 13-14 February 2012; (f) Dr Anthony Redmond and Dr Alison Pembroke (March 2012) Native Title Rights and Interests in the Upper Burdekin Region; (g) Dr Anthony Redmond (4 September 2013) Gudjala #1 (QUD80/05) Gudjala #2 (QUD147/06) File note on Gloria Mitchell / Santo & Joe, mother of Hoya Siemons / Masso; (h) Affidavit of Gloria Santo, being annexure "CAT4" to the affidavit of Cheryl Ann Thomson filed on 20 November 2013; (i) Report of the Conferences Experts 13 February 2012; (j) A copy of the Conferences of Experts Report. SECTION 87 OF THE ACT 15 Section 87 of the Act provides that the Court may make a determination of native title by consent over an area covered by a native title application and without holding a hearing where: (a) the period specified in the notice given under s 66 of the Act has ended (s 87(1)); (b) there is an agreement between the parties on the terms of an order of the Court in relation to the proceedings (s 87(1)(a)(i)); (c) the terms of the agreement are in writing and are signed by or on behalf of the parties and filed with the Court (s 87(1)(b)); (d) the Court is satisfied that an order in, or consistent with, those terms would be within its power (s 87(1)(c)); and (e) having satisfied the criteria relevantly detailed, the Court considers the making of orders as it appears to the Court to be appropriate to do so pursuant to s 87(1A) of the Act. The Court may make a determination in accordance with s 87(2), as is relevant to these proceedings. 16 The focus of the Court in considering whether the orders sought are appropriate under s 87(1) and s 87(2) is on the making of the agreement by the parties. In Muluridji I cited observations of North J in Lovett on behalf of the Gunditjmara People v State of Victoria [2007] FCA 474. Such remarks are apt to be adopted in this case. His Honour stated: [36] … The Act is designed to encourage parties to take responsibility for resolving proceeding without the need for litigation. Section 87 must be construed in this context. The power must be exercised flexibly and with regard to the purpose for which the section is designed. [37] In this context, when the Court is examining the appropriateness of an agreement, it is not required to examine whether the agreement is grounded on a factual basis which would satisfy the Court at a hearing of the application. The primary consideration of the Court is to determine whether there is an agreement and whether it was freely entered into on an informed basis: Nangkiriny v State of Western Australia (2002) 117 FCR 6; [2002] FCA 660, Ward v State of Western Australia [2006] FCA 1848. Insofar as this latter consideration applies to a State party, it will require the Court to be satisfied that the State party has taken steps to satisfy itself that there is a credible basis for an application: Munn v Queensland (2001) 115 FCR 109; [2001] FCA 1229. 17 As such, the Court is not required to make its own inquiry of the merits of the applicants' claim to be satisfied that the orders sought are supportable and in accordance with the law: Cox on behalf of the Yungngora People v State of Western Australia [2007] FCA 588 at [3]. The Court may consider such evidence to determine whether the State is acting in good faith and rationally: Munn (for and on behalf of the Gunggari People) v Queensland (2001) 115 FCR 109 at [29]-[30]. 18 In Smith v State of Western Australia (2000) 104 FCR 494 at [38], Madgwick J stated: [38] … State governments are necessarily obliged to subject claims for native title over lands and waters owned and occupied by the State and State agencies, to scrutiny just as careful as the community would expect in relation to claims by non-Aborigines to significant rights over such land. SECTION 94A OF THE ACT 19 Section 94A of the Act requires that a native title determination order must satisfy the requirements of s 225 of the Act. Section 225 provides: A determination of native title is a determination whether or not native title exists in relation to a particular area (the determination area) of land or waters and, if it does exist, a determination of: (a) who the persons, or each group of persons, holding the common or group rights comprising the native title are; and (b) the nature and extent of the native title rights and interests in relation to the determination area; and (c) the nature and extent of any other interests in relation to the determination area; and (d) the relationship between the rights and interests in paragraphs (b) and (c) (taking into account the effect of this Act); and (e) to the extent that the land or waters in the determination area are not covered by a non-exclusive agricultural lease or a non-exclusive pastoral lease -- whether the native title rights and interests confer possession, occupation, use and enjoyment of that land or waters on the native title holders to the exclusion of all others. Note: The determination may deal with the matters in paragraphs (c) and (d) by referring to a particular kind or particular kinds of non-native title interests. [emphasis in original] 20 Section 223(1) of the Act defines 'native title' and 'native title rights and interests' as: (1) … the communal, group or individual rights and interests of Aboriginal peoples or Torres Strait Islanders in relation to land or waters, where: (a) the rights and interests are possessed under the traditional laws acknowledged, and the traditional customs observed, by Aboriginal peoples or Torres Strait Islanders; and (b) the Aboriginal peoples or Torres Strait Islanders, by those laws and customs, have a connection with the land or waters; and (c) the rights and interests are recognised by the common law of Australia. 21 In Members of the Yorta Yorta Aboriginal Community v State of Victoria (2002) 214 CLR 422, Gleeson CJ, Gummow and Hayne JJ (with McHugh J agreeing) stated the relevant principles with respect to s 223 of the Act, at [46] to [55] and [80] to [83]: (a) A traditional law or custom which is the source of native title rights and interests is one which has been passed from generation to generation of a society, usually by word of mouth and common practice. (b) The origins of the law or custom from which native title rights and interests stem must be found in the normative rules of the relevant Aboriginal or Torres Strait Islander society that existed before the assertion of sovereignty by the British Crown – it is only those rules that are "traditional" laws and customs. (c) That normative system must have a continuous existence and vitality since sovereignty. (d) If that society ceases to exist as a group which acknowledges and observes those pre-sovereignty laws and customs, those laws and customs cease to have continued existence and vitality. (e) Only native title rights or interests that existed at the time of the change in sovereignty will be recognised. However, some change to, or adaptation of, traditional laws or customs or some interruption in the enjoyment or exercise of native title rights or interests in the period between the Crown asserting sovereignty and the present will not necessarily be fatal to a native title claim. (f) In many cases, perhaps most, claimants will invite the Court to infer, from evidence led at trial, the content of traditional laws and customs at times earlier than those described in the evidence. 22 Further, there is authority of this Court, exercising appellate jurisdiction, which lends itself to a determinative conclusion that physical presence is not a necessary requirement for continuing connection. See, for example, Moses v State of Western Australia [2007] FCAFC 78 at [306] per Moore, North and Mansfield JJ. APpLICATION OF sECTION 223 and section 225 to THE gudjala people 23 Identification as part of the Gudjala People is based from principles of perpetual filiation to a small number of ancestors who were themselves owners of the country within the claim area. The ethnographic evidence indicates that Gudjala people are members of what senior anthropologist Professor Bruce Rigsby, terms "a single regional Aboriginal jural public, and the several beneficial titles to particular lands and waters are not constituted in isolation from that wider jural public" (2002/200). The traditional laws and customs are shared with their close neighbours the Gugu Badhun, Wulguru and Warungu to their north and east. 24 The area claimed is situated predominantly to the north and west of Charters Towers in regional north Queensland, which includes both lands and waters within the claim area. The terrain is comprised of open woodlands and sclerophyll forest that is bordered by the Clarke River to the north, the Burdekin River to the east, the Cape River to the south and the Einasleigh River to the west. Post settlement, the Gudjala People adapted their connection to their country as history evolved, with pastoral leases now covering the majority of country in the claim area. 25 It should be highlighted that the body of evidence establishing a body of traditional law and custom shared between Gudjala people and their near neighbours is of particular importance because in the current case, some commentators in respect of the Gudjala people consider that the ethnographic record is very thin (Hagen 2001, 2005; Brayshaw 1977).This notwithstanding, it is stated in the Connection Report at [127], that it is "well demonstrated in the exploration and archaeological record" that the "Aboriginal people in the claim region possessed a body of laws and customs." These laws and customs concerned the way in which the land was occupied, enjoyed, used and spoken for at sovereignty, despite the lack of written records relation to the period prior to sovereignty (The Historical Report at 7). 26 The first indication of an habitation in the region is from the Journals of Leichardt and Gilbery where presence of frequent camp sites on the Burdekin River was recorded in early 1845, Leichardt notes, 'the Aborigines themselves had remained hidden from sight until about fifty men, women and children were encountered at the Valley of Lagoons (1847"246; Gilbert, Journal May 11, 1845). 27 Despite forced dislocations, frontier conflict, coercive labour practices and draconian state interventions into Gudjala people's personal and social lives, the Gudjala native title claim group and their predecessors have continuously exercised their right of possession, occupation, use and enjoyment of their traditional country since before the assertion of British Sovereignty (26 January 1788 (the date of legal Sovereignty)). 28 The Gudjala people share linguistic features, the use of a distinctive type of section terminology, shared patterns of inter-marriage and ceremonial exchange with their northern neighbours the Gugu-Badhun, Wulguru and Warungu. 29 The material provides that, a major factor facilitating ongoing occupation of their traditional country by their predecessors and the contemporary members of the Gudjala claimant group has been their strategic alliances with various station owners in the post-contact period. Activities including the hunting, preparation and consumption of animals, plants and other materials taken from the claim area continue to be a marker of the claimants'. On the materials, Gudjala people build consubstantiality with country in a spiritual and physical nature through individual and group interactions with it. "Birth, residence and death places and events are constantly talked about and referred to by the wider group as part of their inscriptive practice on country" (See Rumsey 1994). 30 The recollection of stories concerning traditional locations in the claim area continued to be transmitted across the generations. Gudjala people place strong emphasis upon the narrator being properly "in place" because they believe that it adds legitimacy and authority to the stories themselves, with the stories told, continue to be a focus of belonging to country in the contemporary contact and concern the natural and supernatural events. 31 Anthropological records and linguistic literature from the twentieth century establish considerable evidence that antecedents of the Gudjala claimant group expressed a physical connection to the claim area through kinship, marriage, mortuary practices and spiritual beings. Particular mention is made of the Great Basalt Wall region north-west of Charters Towers and its use as a "veritable stronghold" in the mid to late 19th Century (the Connection Report at 130). 32 The material provides that the Gudjala People have an identity and a connection to the land through the application of a shared body of traditional laws and customs that forms part of the greater jural public. Evidence exists of a normative system of law and custom in regard to marriage laws and the observation of section protocols. These laws and customs are salient to the reproduction of the claimants' society. 33 Further evidence, in the form of oral histories of the claimants, indicates that the transfer of Gudjala cultural knowledge has continued throughout the 20th Century. The Gudjala People have maintained a physical connection, as well as an ongoing cultural and spiritual connection to their lands. 34 Accordingly, it is appropriate to make the proposed orders which recognise: (a) that the claim group comprises a society united in and by their acknowledgement and observance of a body of accepted traditional laws and customs; (b) that the present day body of accepted laws and customs of the society in essence is the same body of laws and customs acknowledged and observed by the ancestors or members of the society adapted to modern circumstances; (c) that the acknowledgement and observance of those laws and customs has continued substantially uninterrupted by each generation since sovereignty, and that the society has continued to exist throughout that period as a body united in and by its acknowledgement and observance of those laws and customs; and (d) that the claim group still possesses rights and interests under the traditional laws acknowledged and the traditional customs observed by them, and that those laws and customs give them a connection to the land. THE APPLICATION OF SECTION 87 to the GUDJALA people claims 35 The requirements of s 87 of the Act have been satisfied in the present case. In particular: (a) The period specified in the notice given under s 66 closed application on 13 March 2006 for Gudjala People (QUD 80/2005) and 2 February 2011 for Gudjala People #2 (QUD 147/2006). (b) The parties have reached agreement as to the terms of determinations of native title (s 87(1)(a)(i)). (c) The parties have recorded their agreement in short minutes of consent (s 87(1)(b)). (d) An order in terms of or consistent with the short minutes of consent would be within the Court's power (s 87(1)(c)) because: (i) the applications are valid and were made in accordance with s 61 of the Act; and (ii) the applications are for a determination of native title in relation to an area for which there is no approved determination of native title (s 13(1)(a)). The short minutes comply with s 94A and s 225 of the Act (s 87(1)(c)); and (e) It is appropriate that the Court make the orders sought because: (i) all parties are legally represented; (ii) it is consistent with objects in the Act that issues and disputes concerning native title are resolved by mediation; (iii) the State of Queensland has taken a real interest in negotiating the consent determination. In participating in these negotiations, the State of Queensland, acting on behalf of the general community, having had regard to the Act's requirements and having conducted a thorough assessment process, is satisfied that the determination is justified in all the circumstances; (iv) the connection material filed by the applicants satisfies s 223 of the Act and supports the making of the proposed determinations; (v) the requirements of ss 56, 94A and 225 of the Act are satisfied; and (vi) the proposed determinations are unambiguous and certain as to the rights declared. satisfying section 57 of the act 36 Under s 55 of the Act, the Court is required, either at the time of the Determination or as soon as practicable after it, to make such determinations as are required by s 56 and s 57 of the Act. They respectively relate to holding the native title on trust or otherwise and if not held on trust, the non-trust functions of the prescribed body corporate. 37 As to the proposed determinations, Ms Cheryl Ann Thomson has filed on 5 March 2014 that the native title is not to be held on trust and the Ngrragoonda Aboriginal Corporation is to be the prescribed body corporate under s 57 of the Act. The Ngrragoonda Aboriginal Corporation was registered on 8 November 2013 under the Corporations (Aboriginal and Torres Strait Islanders) Act 2006 (Cth). It will perform the functions mentioned in s 57(3) of the Act. 38 The Court notes that Ms Cheryl Ann Thomson has further filed on 5 March 2014 a Notice of Nomination and Consent of Ngrragoonda Aboriginal Corporation as the Prescribed Body Corporate, which satisfies the requirements of s 57(2) of the Act. 39 The Ngrragoonda Aboriginal Corporation satisfies the requirements of the Native Title (Prescribed Bodies Corporate) Regulations 1999 (Cth) because: (a) it is an Aboriginal and Torres Strait Islander Corporation: reg 4(1)); (b) its purpose, as set out in its Rules of the Corporation, satisfy reg 4(2)(b); (c) the eligibility requirements of the Rules of the Corporation operate to ensure that all members of the corporation at the time of the determination are included or proposed to be included in the determinations as persons who have native title rights and interests in relation to the determination area: reg 4(2)(b). 40 Finally, and at the risk of repetition, it needs to be understood that agreements of the kind that have brought about today's hearing and determinations do not just happen. They involve co-operation by all of the parties in the administration of justice, careful attention by them and their advisers to the requirements of the Act in relation to the proof of native title, related effort in the gathering of relevant evidence and the ready making of concessions as to whether on the evidence native title can be proved. They also involve the regular review by the Court at regional directions hearings, and in the intervals in between by the Court's registrars, to ensure that an application is both prosecuted with due diligence by an applicant and not unreasonably delayed by a respondent in its progress towards a hearing like today or, if needs be, a contested hearing. Ensuring that is important in any litigation but is especially so in a proceeding under the Act which serves a wider public interest recognised in the preamble and which, through the allocation of judicial and other court resources and via the provision of various forms of legal aid, involves a considerable investment of public money. 41 For the reasons given, the Determinations are now made. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 14 March 2014	31,921
federal_court_of_australia:fca/single/1998/1998fca1443	decision	commonwealth	federal_court_of_australia	text/html	1998-10-30 00:00:00	Horvath, Gabor & Anor v Pattison, Paul A (Trustee) [1998] FCA 1443	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/1998/1998fca1443	2024-09-13T22:53:33.302699+10:00	IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 615 of 1998 BETWEEN: GABOR HORVATH First Applicant agota horvath Second Applicant AND: PAUL A PATTISON (Trustee) Respondent JUDGE: weinberg J DATE: 30 OCTOBER 1998 PLACE: MELBOURNE EX TEMPORE REASONS FOR JUDGMENT There are before the court two applications brought by Mr and Mrs Gabor Horvath, who are bankrupts, to challenge the decision of their trustee to admit to proof a debt or debts claimed by the Commonwealth Bank of Australia ("the Bank"). Each challenge is brought pursuant to s 99(1) of the Bankruptcy Act 1966 ("the Act"). Each application is the subject of directions which have been made by judges of this Court that the application not be accepted for filing without the leave of the court. The first such direction was given by Marshall J on 23 October 1998. The second was given by myself on 29 October 1998. The reason why these directions were given stems from the lengthy history of this matter. Mr and Mrs Horvath have at every stage of the proceedings brought against them by the Bank challenged the existence of a debt claimed to be owing to that bank. Their position is, in substance, that the Bank, through its officers, defrauded them. They say that forged documents were used to obtain the original judgment against them which forms the basis for the judgment debt leading to their acts of bankruptcy, and to their subsequent bankruptcies. It is not necessary to recite the history of this matter in any great detail. It is sufficient to say that on 24 February 1995 the Bank, in Supreme Court proceedings number 9168 of 1994, obtained a judgment against Mr Horvath and his wife in an amount of $295,287.01 together with interest and costs. That judgment was obtained by default. It was obtained also against Mr Horvath's son, Gabor Horvath Jr, who was a minor at the time of the transaction which gave rise to the alleged debt. Mr and Mrs Horvath sought to set aside the default judgment. On 6 April 1995 Master Wheeler set aside the judgment against their son, but affirmed it against each of them. The basis upon which Master Wheeler set aside the judgment against their son was that he had been an infant at the time of the relevant loan transaction. The Bank appealed against Master Wheeler's order regarding the son. It was unsuccessful in that appeal. It was, however, partly successful in relation to a stay order which had been made concerning possession of the land which secured the loan. Ultimately, there were further proceedings regarding the position of the son but no further proceedings regarding the judgment debt which had been obtained by default against Mr and Mrs Horvath. Eventually a bankruptcy notice issued against them. That notice was based upon the default judgment of 24 February 1995. Mr and Mrs Horvath made application to extend the time for compliance with that notice. That application was dismissed by a registrar. They then sought to review that decision. On 29 May 1996 Northrop J dismissed that application. His Honour declined to go behind the judgment debt. Subsequently, the Bank presented a petition for bankruptcy. On 12 February 1997 Merkel J made sequestration orders against Mr and Mrs Horvath. His Honour, as had Northrop J, refused to permit Mr and Mrs Horvath to go behind the default judgment. Moreover, he declined to exercise the discretion vested in him to refuse to make the sequestration orders sought by the Bank. An appeal was brought to the Full Court against the decision of Merkel J. On 4 June 1997 the Full Court dismissed that appeal. The Court declined to go behind the default judgment that formed the basis of the petition. As well as bringing these proceedings in the Federal Court, Mr Horvath and his wife brought proceedings in the Supreme Court of Victoria seeking to file a defence and counterclaim in the original proceedings which had led to the default judgment. On 29 July 1997 McDonald J in the Supreme Court dismissed their application to file such a defence and counterclaim. His Honour held that the proceedings in question had ended in February 1995 and it was no longer possible to reactivate them. In the alternative, his Honour determined that any rights which Mr Horvath or his wife might have to bring such an action against the Bank had vested in the trustee, once the sequestration orders were made. At a later stage, in December 1997, the trustee caused proceedings number VG 7812 of 1997 to be brought in this Court. As a result, warrants were issued permitting search and seizure of various documents. While these proceedings were in train, the proceedings in the Supreme Court continued in tandem. On 7 January 1998, Beach J ordered Mr and Mrs Horvath not to file any document in the proceedings in that Court without the leave of a judge. In January 1998 the bankrupts commenced proceeding number VG 7030 of 1998 in this Court in which they sought leave to file a summons in the Supreme Court proceeding, claiming damages against the Bank. That application was dismissed by Finkelstein J on 21 January 1998, essentially for the same reasons as had commended themselves to McDonald J. On 23 June 1998, Mr and Mrs Horvath made yet another application by notice of motion, this time seeking to have their bankruptcy annulled, and also claiming damages in an amount of $30 million. That application was dismissed by Heerey J on 6 August 1998. On 11 September 1998 in proceeding number VG 7694 of 1998 in this Court the bankrupts each made application seeking orders requiring the trustee to call a meeting of creditors and to require the Bank to verify by statutory declaration its proof of debt lodged with the trustee. The bankrupts also caused various subpoenas to be issued, seeking a range of documents which they claimed to be relevant to this new proceeding. On 12 October 1998, Marshall J set aside the subpoenas which had been issued and dismissed these applications. His Honour required the bankrupts to pay costs on a solicitor-client basis. In essence, the material which Mr Horvath and his wife seek to rely upon in the present applications before me is the same as that which they have relied upon before numerous judges of this Court, and of the Supreme Court, for a number of years. The trustee, who is the respondent to these applications, submits that the leave of the court which Mr Horvath and his wife require in order to be able to proceed with their applications should not be granted. In substance, the trustee contends that these applications are an abuse of the process of the court. He submits that there are any number of reasons why the court should not, in the exercise of its discretion, grant the leave which is sought. Originally, it was submitted by the trustee that Mr and Mrs Horvath were required to satisfy the requirements of O 21 r 5 of the Federal Court Rules. Those requirements apply to persons who have been declared vexatious litigants in accordance with rules 1 and 2 of that order. That submission was not pressed, however, when it became clear to the trustee that neither Mr Horvath nor his wife had, at any stage, been declared vexatious litigants. The alternative submission advanced on behalf of the trustee was that each application failed not merely to demonstrate that there was any serious question to be tried, but also was "clearly seen to be foredoomed to fail". That language is, of course, taken from the judgment of the High Court in Walton v Gardiner (1993) 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ. In support of this submission counsel for the trustee noted that among the forms of relief sought by Mr and Mrs Horvath, pursuant to their applications under s 99 of the Act, are annulment of both their bankruptcies, (a remedy which is available pursuant to s 153B of the Act) and a claim for damages in the sum of $150 million. It was submitted, correctly, that relief of this type could not be obtained under s 99 of the Act. The claims made by Mr and Mrs Horvath, insofar as they sought these forms of relief, were not within the scope of the relevant provision pursuant to which their claims were made. That of itself, it was submitted, rendered the present proceedings an abuse of process. It was also submitted on behalf of the trustee that s 99 of the Act is, in effect, a provision which allows for an appeal from a decision of the trustee. An application brought pursuant to that section must establish error on the part of the trustee in admitting a proof of debt. In order to make good the contention that the trustee had so erred it would be necessary in the present circumstances to demonstrate a proper basis for going behind the judgment debt which had triggered the bankruptcy. Yet that judgment debt had already passed a high degree of judicial scrutiny before his Honour Merkel J on the occasion of the making of the sequestration orders, when it was attacked upon the same basis as is foreshadowed in the present applications. It was submitted on behalf of the trustee that there had been no material placed before the court which warranted the exercise of the court's discretion to permit a further challenge to be made to the judgment debt. It is clear that the matters which Mr Horvath seeks to agitate before me in the present application are matters which he has previously raised, in one form or another, before Northrop J, before Merkel J, before the Full Court of the Federal Court, before Marshall J and, in a different context, before Finkelstein J and before Heerey J. Mr Horvath has also sought to ventilate these matters in essentially the same form before a number of judges of the Supreme Court of Victoria. The principles which underlie the Act suggest that a substantial onus rests upon an applicant who, in proceedings brought under s 99 of the Act, seeks to go behind the very judgment which formed the basis of the sequestration order. The bankrupt has, after all, had available to him the opportunity to rely upon the broad discretion which the Court has to refuse to make a sequestration order pursuant to s 52(2) of the Act. Having failed at that level, he would scarcely be likely to be in a stronger position when challenging the decision of the trustee to admit to proof the very debt which led to the act of bankruptcy, and the sequestration order. It was not submitted by the trustee that Mr and Mrs Horvath were prevented by any issue estoppel from raising the same matters in the present proceeding as they had raised in opposition to the application for sequestration orders before Merkel J. It was, however, submitted that there was, in effect, an issue estoppel against Mr and Mrs Horvath by reason of the judgment of Northrop J when his Honour originally refused the applicants' application to set aside their bankruptcy notices. A number of authorities were cited in support of this proposition including, in particular, Makhoul v Barnes (1995) 60 FCR 572. I do not believe that it is necessary to determine whether there is in fact an issue estoppel of the type for which counsel contended. It is sufficient, it seems to me, to say that in the exercise of the court's discretion the fact that the same issue which the applicants seek to agitate before the court in the present proceeding has previously been determined adversely to them - and repeatedly - is a powerful consideration against granting the leave sought. I am satisfied that the applicants' claims as presently formulated, are clearly foredoomed to fail. Taken at their highest for the applicants, they certainly do not raise any serious question to be tried. The material which the applicants have filed in support of their applications is sparse, and does not condescend to particularity. Essentially that material calls upon the Bank to substantiate its proof of debt, and makes sweeping and general assertions of the Bank's complicity in a fraud against the applicants. Nothing has been put before me which would justify interfering with the trustee's decision to admit the Bank's proof of debt. No error has been identified in the approach taken by the trustee to the performance of his duties beyond the assertion, which the applicants have repeated for years, that they were the victims of a fraud by the Bank. When it was suggested to Mr Horvath in argument that if he or his wife had evidence of any such fraud he could refer that matter to the police, his response was that the police had told him that they would not act while the matter was still before the courts. He claimed that he needed to be permitted to proceed with these applications, and to subpoena the documents which he said he required to make good his case, before he could pursue his allegations of fraud any further. That of itself tends to suggest that there may be a collateral purpose on both his and his wife's part in bringing these proceedings. It also tends to suggest that the applicants may be engaged in an impermissible fishing expedition. It they are, it is not one which should be indulged at the expense of the trustee, or of the Bank. In all the circumstances, therefore, it seems to me that this is a case where leave to proceed with these applications should be refused. I propose to make orders to that effect. The orders of the court are: (1) In relation to each application before the court, leave to proceed upon that application be refused. (2) That the applicants pay the respondent's costs of these applications, such costs to be assessed upon a solicitor-client basis. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg Associate: Dated: 30 October 1998 Counsel for the Applicants: The First Applicant appeared in person Counsel for the Respondent: Mr S Glacken Solicitor for the Respondent: Coltman Price Brent Date of Hearing: 30 October 1998 Date of Judgment: 30 October 1998	2,987
federal_court_of_australia:fca/single/2020/2020fca1620	decision	commonwealth	federal_court_of_australia	text/html	2020-11-06 00:00:00	CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2020/2020fca1620	2024-09-13T22:53:33.372633+10:00	Federal Court of Australia CJE19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1620 Appeal from: CJE19 v Minister for Immigration & Anor [2020] FCCA 267 File number: NSD 305 of 2020 Judgment of: BEACH J Date of judgment: 6 November 2020 Catchwords: MIGRATION – appeal from the Federal Circuit Court – application for a temporary protection visa – refusal by delegate – decision of Immigration Assessment Authority to affirm delegate's decision – illogicality or irrationality – failure to give consideration to evidence – whether unreasonable failure to exercise power under s 473DC(3) of the Migration Act 1958 (Cth) – jurisdictional error established – appeal allowed Legislation: Migration Act 1958 (Cth) s 473DC(3) Cases cited: ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 APE16 v Minister for Home Affairs [2020] FCAFC 93 CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 103 Date of hearing: 16 October 2020 Counsel for the Appellant: Dr A McBeth Solicitor for the Appellant: Clothier Anderson & Associates Counsel for the First Respondent: Ms K Hooper Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The Second Respondent filed a submitting notice save as to costs ORDERS NSD 305 of 2020 BETWEEN: CJE19 Appellant AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS First Respondent IMMIGRATION ASSESSMENT AUTHORITY Second Respondent order made by: BEACH J DATE OF ORDER: 6 November 2020 THE COURT ORDERS THAT: 1. There be an extension of time within which to appeal. 2. The appeal be allowed. 3. Orders 2 and 3 of the judgment of the Federal Circuit Court given on 12 February 2020 be set aside and in lieu thereof it be ordered that: (a) The decision of the second respondent made on 14 May 2019 be set aside. (b) The matter be remitted to the second respondent for consideration and determination according to law. (c) The first respondent pay the applicant's costs of and incidental to his amended application for judicial review. 4. The first respondent pay the appellant's costs of and incidental to his appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT BEACH J: 1 The appellant appeals from a decision of the Federal Circuit Court which dismissed an application for judicial review of a decision of the Immigration Assessment Authority made on 14 May 2019 that had affirmed a decision of a delegate of the Minister not to grant to the appellant a temporary protection visa (the visa) under the Migration Act 1958 (Cth). 2 The appellant, who is a citizen of Iraq, left Iraq for Australia in January 2013. He applied for the visa on 26 May 2016, after the lifting of the statutory bar preventing protection visa applications from boat arrivals. He claimed a well-founded fear of persecution if he was returned to Iraq. The basis of his claim included his father's status as a former senior member of the Ba'ath Party and a former mayor in the Karbala area and the appellant's Sunni religion and membership of the Al-Janabi tribe, all of which he claimed led to him being targeted by Shia militants. 3 The appellant attended interviews with the Minister's delegate on 5 October 2016 and 7 November 2016. He also provided a statutory declaration made on 13 May 2016. The delegate refused the visa on 14 December 2016. 4 The Authority reviewed the delegate's decision and affirmed it on 6 February 2017. That decision was then quashed by the Federal Circuit Court on 11 February 2019. 5 Upon remittal to the Authority, which was differently constituted, the appellant provided a second statutory declaration made on 26 February 2019 regarding developments in his family's situation in Iraq since the time of the Authority's first decision some two years earlier. 6 In his second statutory declaration, the appellant explained that his family and his uncle's family in March 2017 had fled to Kirkuk in northern Iraq after a bomb had been placed at the rented house in Haswa where his family were then living that had killed his uncle. He further stated that his family continued to live in Kirkuk at the time of his second statutory declaration. 7 On 14 May 2019, the Authority again affirmed the decision of the delegate to refuse the visa. The appellant then sought judicial review of the Authority's further decision in the Court below. 8 On 12 February 2020, the primary judge dismissed the appellant's application for judicial review. The appellant appeals that decision, although he required an extension of time within which to appeal, which extension I granted at the commencement of the hearing. 9 For the following reasons, I would allow the appeal. FACTUAL BACKGROUND 10 The appellant was born in a city in the province of Karbala in southern Iraq. But his most recent address in Iraq before coming to Australia was in Baghdad, where he lived between November 2012 and 12 January 2013. For over a decade up to November 2012, the appellant lived at an address in Karbala. The appellant completed his schooling in Karbala. And he had been employed at a location in Karbala. 11 In an entry interview conducted on 23 May 2013, the appellant provided details of his mother and father, both then at the time of that interview residing in Baghdad. He also provided details of his two sisters residing in Karbala and his five brothers residing in Baghdad. 12 As I have said, the appellant applied for the visa on 26 May 2016. Consistently with the information provided by the appellant at his entry interview, the appellant indicated that he had lived, attended school and worked, from birth to November 2012, in Karbala. 13 The appellant claimed to fear harm in Iraq because of his Sunni Muslim religion, his father's status as a former Ba'ath party member and former mayor in the Karbala area, and the appellant being a member of the Sunni Al-Janabi tribe. 14 As I have said, the delegate refused the appellant's visa application on 14 December 2016. The delegate found that he was not in any danger in Karbala. The delegate's decision was referred for review by the Authority. 15 On 6 February 2017, the Authority affirmed the delegate's decision. Relevantly, the Authority found that the appellant's family had not left Karbala in 2007 as the appellant claimed, that the appellant had worked in Karbala all his life and had family and friends there, and that there was only a remote chance that the appellant would suffer harm in Karbala as a Sunni Muslim if he was returned there. 16 The Authority's decision was quashed by consent orders made by the Federal Circuit Court on 11 February 2019 and referred back to a differently constituted Authority. 17 On 26 February 2019, the appellant's representative provided the Authority with the appellant's second statutory declaration and additional documents. Relevantly, in his second statutory declaration, the appellant claimed that: (a) his family moved from Karbala to Baghdad in 2007 to live with the appellant's uncle; (b) the family was evicted from the uncle's house in Baghdad in July 2015, and they then moved from there to Haswa, south of Baghdad; (c) in March 2017, his uncle was killed in Haswa; and (d) after that, the appellant's remaining family members escaped the area to Kirkuk in northern Iraq. 18 On 17 April 2019, the Authority wrote to the appellant and invited him to comment on certain propositions that it had sourced from country information. In this invitation, the Authority referred to the situation in southern Iraq, which is where Karbala is located. The Authority explained the relevance of the information to its review. 19 On 1 May 2019, the appellant's representative provided a submission to the Authority in response to the Authority's invitation. The submission provided by the representative did not say in express terms that the appellant would not return to Karbala if he was returned to Iraq. 20 On 14 May 2019, the Authority again affirmed the delegate's decision. The Authority accepted that the appellant and his family were of the Sunni Muslim faith. It accepted that the appellant's father held the position claimed in the Ba'ath party and was the mayor of their area. The Authority also accepted that the family were well-known in their area, due to the father's position and because they were members of the Al-Janabi tribe. 21 The Authority accepted that the appellant's father was shot in the leg in 2007 by Shia militants identified as members of the Mahdi Army due to his Ba'athist links. But it did not accept that the father and family departed Karbala to reside in Baghdad in 2007 as claimed. Further, the Authority found that the appellant's father and family remained in Karbala at least until 2013, and that neither the appellant nor his father were being sought by the Mahdi Army or any other Shia militia after the father was shot in 2007. Further, the Authority did not accept the appellant's claims concerning incidents involving the Mahdi Army in 2009 and 2012. The Authority was not satisfied that the appellant's father or his family were of interest to the Mahdi Army or anyone else after the father's shooting in 2007. It was not satisfied that the appellant was the subject of any threats or attempts at extortion by the Mahdi Army or anyone else in 2009, 2012 or the intervening years, or that members of the Mahdi Army or anyone else tried to kidnap the appellant in 2012 for any reason. It did not accept that the Mahdi Army raided the appellant's aunt's home in Karbala looking for the appellant or his father. In summary, the Authority was not satisfied that the appellant was of any interest to the Mahdi Army for any reason. 22 Further, the Authority found that the appellant's father was living in Karbala as at 2013. But it had no evidence that he and the family lived there after then, and accepted as plausible that sometime after 2013 the family moved in with the appellant's uncle in Baghdad. Further, independent information before the Authority supported the proposition that the Asa'ib Al-Haq, a Shia militia, forced Sunni families to move out of their homes in mixed Sunni and Shia areas of Baghdad around that time. Accordingly, the Authority accepted that the family were evicted from the uncle's home in Baghdad, and moved to a farm in Haswa in 2015. 23 Further, the Authority also accepted the appellant's claim concerning his uncle's death in Haswa in March 2017, but found that this was as a result of sectarian violence and did not give rise to a real chance of serious harm to the appellant, particularly if he was likely to return to Karbala. 24 Moreover, the Authority accepted that the appellant's family had moved from Haswa to Kirkuk in 2017 after and as a result of the uncle's death. 25 In summary, the Authority considered but did not accept that the appellant faced a real chance of serious harm in Karbala in light of those aspects of his profile and circumstances that it had accepted. The Authority found that past abuse and threats that the appellant had experienced because of his Sunni religion and his relationship to his father, a former Ba'athist, did not constitute serious harm. It found that the appellant had an aunt in Karbala, and that the family continued to have a home there. The Authority also accepted that the appellant had attained skills in performing a range of jobs in the past and it was not satisfied that the appellant would not be able to find accommodation and employment on return to Karbala. 26 Accordingly, the Authority was not satisfied that the appellant faced a real chance of any harm in Karbala at the time of its decision or in the reasonably foreseeable future. 27 Now before the primary judge, the appellant's grounds in his amended application focused on the Authority's finding that Karbala was the location that the appellant would return to if he returned to Iraq. The primary judge dismissed the amended application. It is not necessary to linger on his reasons. GROUNDS OF APPEAL 28 By his amended notice of appeal, the appellant has raised the following grounds before me: 1. The Federal Circuit Court erred in failing to find that the IAA's finding that the appellant would return to Karbala was: a. irrational, in that it was inconsistent with the IAA's other findings regarding the relocation of the appellant's family to Kirkuk; or alternatively b. reached without giving proper consideration to the appellant's claims regarding his family's relocation to Kirkuk and the reasons for that move, in terms of identifying the place to which the appellant would return if removed to Iraq. … 2. The Federal Circuit Court erred in failing to find that the IAA's failure to exercise or consider exercising its power under s 473DC(3) of the Migration Act to interview or get new information from the appellant in relation to the place to which he would return was unreasonable. Particulars a) The appellant put on evidence, which the IAA accepted, claiming that his family had moved to Kirkuk to be safe from sectarian violence in March 2017, 5 months after the interview with the delegate. b) The IAA relied on the appellant's evidence being unchanged since the interview that the family still owned a family home in Karbala and that [the] appellant's aunt still lived there as the basis for its conclusion that the appellant would be returning to Karbala. c) The issue of the place of return had not been considered by the delegate. d) In those circumstances, it was unreasonable for the IAA to rely on supposedly unchanged evidence since the delegate interview for this finding without exercising its power to get new information regarding the place of return. 29 Let me deal with each ground of appeal in turn. Ground 1: The finding that the appellant would return to Karbala 30 The appellant submits that the primary judge erred in failing to find that the Authority's finding that the appellant would return to the former family home region of Karbala, notwithstanding the appellant's evidence that the family had fled to Kirkuk, was affected by jurisdictional error. 31 Two alternative bases for jurisdictional error were pressed before me. First, it was said that the finding was irrational in that it was inconsistent with other findings. Second, it was said that the finding was reached without giving proper consideration to the appellant's claims regarding his family's relocation to Kirkuk and the reasons for that move, in terms of identifying the place to which the appellant would return if removed to Iraq. 32 Now it is well accepted, as said in CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 at [45] per Tracey, Mortimer and Moskinsky JJ, that a decision-maker in assessing whether a person has a well-founded fear of persecution should identify the place to which that person was likely to return, and then assess the risks that would be faced in that place. 33 Further, in APE16 v Minister for Home Affairs [2020] FCAFC 93 at [51], Kenny, Wheelahan and Anastassiou JJ noted that the inquiry as to the place of likely return is not necessarily the same as identifying the person's "home area". So, "an [i]nquiry seeking to identify a "home area" should not take the place of, or distort, the [i]nquiry required by the statute, which is to identify the place to which the non-citizen is likely to return". 34 These principles are not in doubt. 35 Now according to the appellant, the appellant's circumstances and the evidence accepted by the Authority likely entailed that the appellant would be returning to a place other than the area that had historically been his "home area". 36 Let me say something about the evidence before the Authority. 37 In his first statutory declaration, the appellant had provided evidence of his claims to fear harm upon return to Iraq. His evidence was that he had been living in Karbala to care for his aunt until late 2012. But towards the end of 2012, there was an incident in which his coffee shop was raided by members of the Mahdi Army, after which he fled to Baghdad. He stayed there for approximately one month before departing for Australia in January 2013. 38 Apparently the appellant's family and his uncle's family also moved to Baghdad at some time in or after 2013. 39 In July 2015, the appellant's family and his uncle's family were forced to relocate from Baghdad to Haswa, which is south of Baghdad, after being targeted by Shia militia members who forced Sunni families to move out of their homes in mixed Sunni and Shia areas of Baghdad. 40 Let me note again at this point that the appellant gave oral evidence in an interview with the delegate on 5 October 2016; there was also an additional interview with the delegate on 7 November 2016 for the sole purpose of determining the appellant's religion. It is also to be noted at this point that the Authority, which made the decision on 14 May 2019, did not exercise its power to invite the appellant to an interview. I will return to this later when discussing ground two. 41 Following the delegate's decision of 14 December 2016 and the referral of the review to the first Authority, on 25 January 2017 the appellant provided written submissions to the Authority. At that point, the appellant's uncle had not yet been killed by militants and his family had not yet fled to Kirkuk from Haswa. 42 After the first Authority's decision on 6 February 2017, which was quashed and remitted back to the Authority, in 2019 the appellant provided further evidence that there had been a dramatic change in his family's circumstances since the first Authority's decision two years earlier. That evidence included: (a) the appellant's second statutory declaration; (b) a submission from the appellant's representative dated 1 May 2019; (c) a translated death certificate for the appellant's uncle's death dated 10 March 2017; and (d) a translated letter of reference from the Ministry of Immigration and Displacement in Kirkuk confirming that the appellant's father had been displaced from his former residence by armed groups and had been resident in Kirkuk since 15 March 2017. 43 In the appellant's second statutory declaration, he explained how his family had been living with his paternal uncle in the Haswa area south of Baghdad since July 2015, having been forced out of their original home area by Shia militia. Then on 10 March 2017 the appellant's uncle had been killed by a bomb that had been placed at the main door of the house in Haswa where the appellant's family had been living. The family then fled to Kirkuk. They chose this location because it was a predominantly Sunni area and was not subject to significant fighting between the government and ISIS. Apparently, it was controlled by Kurdish forces at the time. 44 Accordingly, at the time that the appellant's second statutory declaration was made, the appellant's family and his uncle's family had been living in Kirkuk since 15 March 2017 and remained there at that time. 45 Now the Authority accepted the appellant's evidence in relation to the issues raised by the second statutory declaration and supporting evidence. The Authority: (a) accepted that the appellant's uncle was killed in the manner claimed as a result of sectarian violence against Sunnis at the hands of a Shia militia; (b) accepted that the appellant's family was living with the appellant's uncle at the time his uncle was killed; and (c) accepted that the appellant's family had fled to Kirkuk when the appellant's uncle was killed and had been living in Kirkuk since March 2017, where they remained at the time of the Authority's decision. 46 Let me now turn to the appellant's principal criticisms of the Authority's approach and analysis. 47 Despite having accepted the events that caused the appellant's family to flee to Kirkuk, all of which occurred after the appellant's interviews with the delegate and the submissions to the first Authority, the Authority found that the appellant would nevertheless likely return to Karbala. 48 That finding, so the appellant complains, enabled the Authority to dismiss the relevance of the serious incidents of harm that it accepted had been suffered by the appellant's family since the appellant's arrival in Australia. The Authority apparently was able to do so by asserting (at [40]) that: The incidents of harm to the applicants family were in a different province to where the applicant will be returning, and occurred four and two years ago respectively and the situation in Iraq has changed since that time. I must consider whether the faces a real chance of harm on return to Karbala. I accept that: the applicant is Sunni; he is a member of the Al-Janabi tribe; his father is a former high ranking Ba'athist and Mayor of their area; and that the area to which he will be returning is a majority Shia area. 49 Importantly for present purposes, the basis of the Authority's finding that the appellant would return to Karbala was that the appellant had been born there and lived there for 20 years, and that his oral evidence in his interview with the delegate (October 2016), more than five months before the events causing the family to relocate to Kirkuk (March 2017), indicated that "his family still have their family house in Karbala, and his aunt continues to reside in that province" (at [21]). Further, the Authority relied on the assertion that in the material provided to it in 2019 the appellant had not changed his oral evidence from the October 2016 interview. The Authority stated (at [21]): I accept on the documentary and oral evidence before me that the applicant is a national of Iraq. He has provided evidence, which I accept, that his family are currently residing in Kirkuk, The applicant lived for one month in Baghdad prior to his departure from Iraq. However, he was born in Karbala in the southern governorates of Iraq and resided there for 20 years. His oral evidence at interview, which he has not changed in submissions to the IAA, was that his family still have their family house in Karbala, and his aunt continues to reside in that province. On the evidence before me, I find that this is the area to which he would return in Iraq. 50 Now the appellant has made two points concerning ground one. Let me deal with the irrationality aspect first. I should note that it is well accepted that a decision will be affected by jurisdictional error where a finding that was material to the ultimate decision was arrived at after an irrational or illogical step in the reasoning, or where there is no logical connection between the evidence and the inferences drawn by the decision-maker. Such a finding will be irrational if it could not rationally be drawn from the evidence on which the decision-maker purported to rely or if the finding reaches beyond the material before it. 51 The appellant says that the Authority's finding that the appellant would return to Karbala was irrational or illogical in light of the Authority's own findings in other parts of the decision. The appellant points out the following. 52 The Authority found that the appellant's family had fled their home area of Karbala sometime after the appellant left Iraq for Australia in 2013, finding that the appellant's father and his family had remained in Karbala until at least 2013 and finding that sometime in or after 2013 the appellant's family had moved in with the appellant's uncle in Baghdad. 53 Further, the Authority accepted that after moving in with the appellant's uncle in Baghdad some time in or after 2013, the appellant's family and his uncle's family were evicted again due to sectarian targeting in 2015 and moved to a farm in Haswa. 54 Further, the Authority accepted each family's move to Kirkuk in 2017. The event in Haswa in March 2017 that killed the appellant's uncle and caused them to flee to Kirkuk was described by the Authority as a targeted explosion at the family home. 55 Now according to the appellant, which I accept, the Authority did not have before it any up to date evidence regarding the ownership of the former family home in Karbala. Moreover, there was evidence before the Authority that even if the family still retained formal ownership of the home, they considered that they could not practically occupy it, having abandoned it in turn for Baghdad, then Haswa, then Kirkuk. I also accept this. Further, the appellant says that on the evidence accepted by the Authority, no member of the appellant's family had lived at the former family home in Karbala since 2013, six years before the Authority's decision. That also seems correct. 56 The appellant then says that the finding of the Authority that the appellant would return to Karbala, based on the assertion that the appellant had not changed his evidence that was given in the October 2016 interview that "the family still have their house in Karbala, and his aunt continues to live in that province", is irreconcilable with the Authority's findings that since the appellant left Iraq, the appellant's family had twice been driven out of the places they were living due to violent acts of Shia militants, and that they had fled to Kirkuk rather than returning to the family's former home area of Karbala. 57 Accordingly, the appellant says that the Authority's finding that the appellant would return to Karbala was irrational or illogical in light of the Authority's own findings in other parts of the decision record. 58 There is another aspect to the appellant's irrationality ground. The appellant says that the finding that the appellant would return to Karbala was also irrational in the sense that it went beyond the evidence on which the Authority relied for it. 59 According to the appellant, the Authority's assertion that the appellant had not changed the evidence that was given in the October 2016 interview disregarded the content and context of the appellant's second statutory declaration. The thrust of his second statutory declaration was that his entire extended family had been uprooted by the March 2017 attack, in which the family's home at Haswa was bombed and his uncle was killed, and that the family had fled to Kirkuk, which had been their home area from March 2017 until at least the time of the appellant's representative's May 2019 submission to the Authority. 60 The appellant says that it ought to have been clear to the Authority that the appellant considered that the significant events in March 2017 had overtaken his previous evidence about the location of his family, the nature of the threats that he and his family faced and the place to which he was likely to return if returned to Iraq. 61 Moreover, the appellant says that his silence in the May 2019 submission to the Authority in not correcting and updating each matter in his October 2016 interview, particularly on those matters that were overtaken by the events of March 2017 that were set out in his second statutory declaration, could not rationally support the conclusion that the appellant would return to Karbala. 62 Accordingly, the appellant says that the Authority's finding, based only on the non-update of the October 2016 evidence about the family's house and the whereabouts of the appellant's aunt, went well beyond any conclusion that could rationally have been drawn from that circumstance. So, the appellant says that the Authority's finding (at [21]) that the appellant would return to Karbala was not rationally open on the material before the Authority. 63 Let me now describe the second dimension to the appellant's first ground of appeal, which is that the finding that the appellant would return to Karbala was made without proper consideration of the appellant's 2019 evidence. Of course there is a considerable overlap between the ground of irrationality and the ground of a failure to give proper consideration to a party's claims or submissions, as was observed in Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 at [45] per Perram, Murphy and Lee JJ. 64 The appellant says that the Authority adopted an overly formalistic view of the appellant not having varied two specific statements from his October 2016 interview in his second statutory declaration. He says that in doing so, the Authority failed to have regard to the context of the second statutory declaration, and the submission and supporting evidence of the 2017 events they described, including by failing to appreciate the context of that evidence in overtaking the earlier evidence about the nature of the appellant's links to Karbala and the consequences for identifying the place to which the appellant would return. Accordingly, the appellant says that the Authority failed to give proper contextual consideration to the whole of the appellant's evidence in reaching the finding that the appellant would return to Karbala. And that failure constituted jurisdictional error. 65 I would reject the appellant's arguments on ground one. 66 Whether a particular region is the area or place that the appellant will return to is a question of fact. And in my view, although it is a closely run thing, the Authority's factual finding that the appellant would likely return to Karbala was reasonably open to the Authority for the reasons it gave. 67 Now illogicality or irrationality requires more than emphatic disagreement with the Authority's reasoning or findings. The appellant must show that the Authority's decision to affirm the delegate's decision refusing the visa was one which no rational or logical decision maker could have arrived at on the evidence that was before the Authority. In my view the appellant has not demonstrated such illogicality or irrationality. 68 First, as to the alleged failure to consider the reasons the appellant's family moved to Kirkuk, the Authority considered and found that this move was owing to sectarian violence, but that the incidents experienced by the family in Haswa did not evidence a real chance of harm to the appellant in Karbala. 69 Second, the reasons for why the family moved from Haswa to Kirkuk did not directly address the appellant's return to Karbala. The Authority did not find that the appellant would return to Haswa. Further, the Authority also did not find that the family had fled or had been driven out of Karbala. 70 Third, it was not necessarily clear that the family's move from Haswa to Kirkuk was significant to the location where the appellant was likely to return to in Iraq. Neither the appellant in his second statutory declaration nor his representative in the May 2019 submission, when addressing the family's move to Kirkuk, expressly said that the appellant would relocate to Kirkuk on his return to Iraq. 71 Fourth and relatedly, the appellant's representative's May 2019 submission did not state that the appellant would relocate to Kirkuk, in the context where the appellant and his representative had responded to an invitation to comment from the Authority that expressly referred to country information concerning the situation in Karbala, and explained that it may lead the Authority to find that the appellant did not face a real chance of serious harm in Baghdad or southern Iraq, including Karbala. 72 Fifth, the appellant affirmed in his second statutory declaration the correctness of his previous statements including his October 2016 interview. 73 For these reasons there was no illogicality or irrationality in the Authority's finding either by reference to its other findings or on the material before it. Further, it gave consideration to the appellant's 2019 evidence and material in a fashion, putting to one side ground two for a moment, that does not disclose jurisdictional error. 74 Let me say something about CSO15 as the appellant has referred to it. CSO15 establishes that the identification of a home region or area "will assist the decision-maker in identifying the region or place to which the decision-maker considers, as a fact finding exercise, a person is likely to return" (at [37]); the use of the phrase "home region" is not of itself erroneous (at [41]). Further, if the place to which the person is likely to return is one where they have a well-founded fear of persecution or face a real risk of significant harm, the decision-maker must determine whether there are any other places the person is likely to return to. Only when the places to which the person is likely to return to are places in which the person has a well-founded fear of persecution or faces a real risk of significant harm, does a decision-maker need to look to any other places in the country, which are new or unfamiliar to the person. 75 In my view, the Authority's approach was consistent with CSO15 in the sense that Karbala had been expressly identified by the appellant and the Authority considered that there was no well-founded fear of persecution or real risk of harm at that location. 76 Further, as the appellant has referred to APE16, I should say something about it. The present case is unlike APE16. The express premise of the appellant's visa application was that he faced harm if he returned to Karbala. And there was evidence before the Authority that Karbala was where the appellant would return to, if he were returned to Iraq. The appellant did not expressly claim otherwise. Moreover, in context it was not irrational for the Authority to place weight on the fact that Karbala was the appellant's birthplace and had been his home area for a significant time, in finding that Karbala was where the appellant would return to in Iraq. 77 In summary, the Authority's finding that the appellant would return to Karbala was logically and rationally open to it, and arrived at following a consideration of the relevant evidence. I would reject ground one of the appeal given that no jurisdictional error of the Authority has been established. Ground 2: The unreasonable failure to exercise the s 473DC(3) power 78 The Authority has discretionary power under s 473DC(3) to get new information where the circumstances of the case require. This power must be exercised reasonably. And where it is unreasonable for the Authority to have proceeded to make a decision without exercising its power under s 473DC(3) or considering the exercise of that power, the decision will have been affected by jurisdictional error (ABT17 v Minister for Immigration and Border Protection [2020] HCA 34 at [3], [19] and [20] per the plurality). 79 In the present case, the appellant says that the Authority was faced with a fundamental change in circumstances between the last interviews conducted with the appellant in October and November 2016 and the decision of the Authority on 14 May 2019. He contends that those changed circumstances were set out in the appellant's second statutory declaration and the submission and other supporting evidence, the substance of which was accepted by the Authority. 80 Further and in that context, the appellant points out that the sole evidentiary basis for the Authority's finding at [21] that the appellant would return to Karbala was that the appellant's evidence on certain matters had not changed. But the appellant says that the most that could be said about the status of the appellant's October 2016 interview evidence about the existence of the family's former home in Karbala and that one aunt lived in that province at that time is that it was unclear whether those facts remained true in May 2019, or whether they remained relevant to the question of to where the appellant would return in light of the March 2017 events that caused his family to flee to Kirkuk from Haswa. 81 The appellant says that like in Minister for Immigration and Border Protection v CRY16 (2017) 253 FCR 475 at [82] the Authority did not have information before it as to whether the statements about the family's house in Karbala and the appellant's aunt remained accurate and remained relevant following the family's flight to Kirkuk in March 2017. He says that it was apparent on the face of the appellant's 2019 evidence and material that those matters had likely been overtaken by events. 82 The appellant says that he would have been able to answer such questions if asked, and that fact would have been apparent to the Authority. 83 The appellant says that it was unreasonable for the Authority to assume that the appellant's evidence on those questions had not changed, or that the relevance of those matters to identifying the place to which the appellant would return had not changed following the events of March 2017, without considering to exercise the s 473DC(3) power or exercising it to make a straight-forward and obvious enquiry of the appellant. I agree for the reasons submitted by the appellant. 84 It would seem to me that the Authority did not consider the exercise of its power under s 473DC(3) to request the appellant to give it new information as to the location to which he would return in Iraq. And so not to consider was unreasonable. Alternatively, if it did so consider, its failure to exercise the power was unreasonable. 85 Now the Minister says that as the Authority has provided no reasons on the s 473DC(3) question, I am engaged in an "outcome-focused" analysis of legal unreasonableness. And in an outcome-focused challenge, the Minister says that it is erroneous in the context of judicial review for a court to assess what it regards as being a reasonable outcome and thereby conclude that any other view, namely, that of the decision-maker, necessarily involves error. I quite agree. But such a theoretical point is not an answer to the appellant's contentions. 86 Further, the Minister says that the test of legal unreasonableness is stringent. All true in generality. 87 Now the Minister says that the relevant outcome, being that the Authority did not request new information from the appellant, was not legally unreasonable. 88 First, the Minister says that the Authority had before it a body of evidence confirming the appellant's historical and continued ties to Karbala through his family home and his aunt who apparently continued to reside in the province. 89 Second, the Minister says that the appellant's own evidence as at February 2019 was that he confirmed the correctness of his previous statements. The Minister says that the Authority's finding at [21] that the appellant's evidence as to certain matters was unchanged was reasonably open to it. That may be so, but I am dealing with a slightly different question concerning the failure to exercise the s 473DC(3) power to clarify what should have been clarified. 90 Third, the Minister says that the previously constituted Authority found that the appellant would return to Karbala and the delegate also proceeded on this basis, finding that the appellant was not in danger in Karbala. The Minister says that it cannot be suggested that the proposition that the appellant would return to Karbala was in any way a new one. That is true so far as it goes, but it is not a complete answer to the appellant's point given the subsequent developments. 91 Fourth, the Minister says that the presently constituted Authority, in its invitation to comment, expressly referred to country information concerning the situation in southern Iraq, including Karbala. So, the Minister says that the appellant could have put to the Authority in response to its invitation to comment, new information to contradict the proposition that he would return to Karbala if he were returned to Iraq. That is also true, but it is not a complete answer. 92 Fifth, the Minister also points out that the appellant's family had not moved from Karbala to Kirkuk, but rather had moved to Kirkuk from Haswa. True, but again this is not a complete answer. 93 Sixth, the Minister says that there is no basis to support the proposition that the appellant would have been able to answer certain questions if asked to clarify the matter. I disagree. Clearly, the appellant could have updated and clarified his intention through a simple enquiry by the Authority. 94 In my view, the appellant has demonstrated legal unreasonableness affecting the non-consideration or non-exercise of the Authority's discretion under s 473DC(3). 95 It seems to me clear from the material provided to the Authority by the appellant's representative on 26 February 2019 including the second statutory declaration and also the May 2019 submission that the appellant was substantially elevating the significance of Kirkuk and the reasons for why his family had gone there. 96 One might ask why he did so if his position was that he was likely to return to Karbala. The material rather suggests that Kirkuk was a place that he could realistically have intended to go to if he returned to Iraq. Otherwise such material was of questionable relevance. 97 Further, there was evidence in the appellant's visa application which suggested that wherever the appellant's family was in Iraq, it was a real prospect that he would join them, in the absence of up to date evidence to the contrary. 98 Now I accept that the appellant's representative did not expressly draw this theme out. But nevertheless, it seems to me that the material placed before the Authority called for some enquiries of and clarification from the appellant as to the significance of Kirkuk and whether the appellant was intending to go there on his return rather than Karbala. 99 Further, the Minister made reference to the fact that the Authority had made reference to Karbala in its 17 April 2019 invitation. That is true. And one might have expected the appellant's representative to have expressly responded that the appellant would not return to Karbala. But the representative in the May 2019 submission did refer to Kirkuk and the second statutory declaration. 100 In my view, the Authority should have clarified the discrepancy by considering and then exercising its power under s 473DC(3), at least to seek written clarification. And this is all the more so given that it was likely that the October 2016 information needed to be updated. 101 Further, the statement by the Authority at [21] that the appellant's "oral evidence" at the October 2016 interview had "not changed in submissions" to the Authority in one sense was literally true (see the second statutory declaration at [1]). But then clearly in the second statutory declaration relevant circumstances were being updated. 102 In summary, the appellant has established that it was unreasonable for the Authority not to have considered exercising the s 473DC(3) power, alternatively failing to exercise it. Further, that failure was material. The primary judge was in error for not so finding. 103 The appellant's appeal must be upheld on this ground. Consequential orders should be made to reflect this conclusion. I certify that the preceding one hundred and three (103) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Beach. Associate: Dated: 6 November 2020	9,127
federal_court_of_australia:fca/single/2003/2003fca1441	decision	commonwealth	federal_court_of_australia	text/html	2003-10-27 00:00:00	Applicant S80 of 2002 v Refugee Review Tribunal [2003] FCA 1441	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2003/2003fca1441	2024-09-13T22:53:33.735892+10:00	FEDERAL COURT OF AUSTRALIA Applicant S80 of 2002 v Refugee Review Tribunal [2003] FCA 1441 APPLICANT S80 OF 2002 v REFUGEE REVIEW TRIBUNAL & ANOR N226 OF 2003 EMMETT J 27 OCTOBER 2003 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N226 OF 2003 BETWEEN: APPLICANT S80 OF 2002 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 27 OCTOBER 2003 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the second respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N226 OF 2003 BETWEEN: APPLICANT S80 OF 2002 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE: 27 OCTOBER 2003 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of Korea. He first arrived in Australia on 25 February 1993. He departed Australia on 8 April 1993 and returned to Korea, arriving for the second time in Australia on 30 April 1993 and departing on 19 January 1994, again returning to Korea. The applicant arrived for the third time in Australia on 21 February 1994 and departed Australia on 19 May 1994 for Japan. He arrived for a fourth time in Australia on 1 June 1994. 2 On 2 June 1995, he lodged an application under the Migration Act 1958 (Cth) ('the Act') for a protection visa. On 18 April 1997, a delegate of the second respondent, the Minister for Immigration and Multicultural and Indigenous Affairs ('the Minister'), refused to grant a protection visa and, on 28 April 1997, the applicant sought review of that decision by the Refugee Review Tribunal ('the Tribunal'). On 10 August 1998, the Tribunal affirmed the decision not to grant a protection visa. 3 On 11 March 2002, the applicant commenced a proceeding in the High Court of Australia seeking prerogative writ relief in respect of the Tribunal's decision. A draft order nisi was filed at that time. On 6 February 2003, Gaudron J ordered that the proceeding be remitted to this Court for hearing. 4 On 14 March 2003, I made orders standing the matter over for further directions on 2 May 2003. On 24 April 2003, Adrian Joel & Co, the solicitors who had commenced the proceeding in the High Court, filed a notice of withdrawal of solicitor. On 2 May 2003, I made orders standing the matter over for further directions on 6 June 2003. On that day, I ordered the applicant to file and serve a statement of claim and any affidavits on which he wished to rely on or before 18 August 2003. 5 On 4 August 2003, the applicant filed an affidavit to which there was annexed a document entitled 'Statement of Claim'. The statement of claim sets out the basis on which the applicant claimed a protection visa. It did not specify any grounds upon which there could be judicial review of the Tribunal's decision. The affidavit to which it was annexed did not make any attempt to establish facts that would support the grounds of review set out in the draft order nisi filed in the High Court. 6 The grounds specified in the order nisi are as follows: '1. On 18 April 1997, an officer of the Department … made a decision refusing to grant the [applicant] a protection visa …. The [applicant] applied to the [Tribunal] for review of the Department's decision. Section 418(3) of the [Act] provided at all relevant times that if an application for review is made to the [Tribunal] the Secretary of the Department must give to the Registrar of the [Tribunal] various documents that are in the Secretary's possession or control and are considered by the Secretary to be relevant to the review of the decision. The documents referred to in Part B of the Department's decision were in the possession or control of the Secretary. It appears that the Secretary did not give a number of those documents to the Registrar, giving rise to a contravention of s 418(3). The contravention of s 418(3) gives rise to jurisdictional error of a type for which relief can be granted under Part 8A of the [Act]. 2. By letter the [Tribunal] invited the [applicant] to come to a hearing before the [Tribunal]. The [Tribunal] stated in the letter that it "has looked at all the material relating to your application". In fact, the [Tribunal] had not looked at all the material relating to the [applicant's] application, giving rise to a denial of natural justice. Denial of natural justice is jurisdictional error of a type for which relief can be granted under Part 8A of the [Act].' 7 When the matter came before me on 19 September 2003, I gave leave to the Minister to file a notice of motion seeking summary dismissal of the application on the ground that no cause of action was disclosed. That notice of motion is fixed for hearing today. Order 51A r 5(1)(a) of the Federal Court Rules provides that, unless the Court or a judge otherwise orders, the procedure to be adopted by the Court, at a hearing of an application for an order nisi for a constitutional writ, remitted by the High Court, is to hear the parties at the same time on the application for an order nisi and on the question whether, if the order nisi were made, it should be made absolute. 8 In effect, the Minister seeks summary dismissal on the basis that no order nisi would be ordered on the hearing of an application for an order nisi. The Minister also contends that, because the applicant requires an enlargement of time within which to commence the proceeding, the order nisi should be refused. 9 In order to consider the question of an extension of time, the merits of the application are relevant. The first ground is, in my opinion, misconceived and, in any event, is unsupported by any evidence. Section 418(3) of the Act provides that the Secretary must, as soon as practicable, after being notified of an application for review, give to the Registrar of the Tribunal each document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision. 10 Even if there had been a failure to comply with s 418(3), it does not follow that an applicant is entitled to relief of the nature sought. The extreme technicality of non-compliance with s 418(3) would hardly provide a basis for relief in such circumstances as apply in this case. There is no evidence before the Court to establish that there has, in fact, been a breach of s 418(3). Simply because some documents referred to by the delegate were not cited by the Tribunal does not mean that the Secretary was in breach of the obligation imposed by s 418(3), or even that the documents were not conveyed to the Tribunal. There is no basis for drawing such an inference and I would not draw such an inference. There is no evidence before the Court that the Secretary considered that the documents referred to in the delegate's decision were relevant to the review of the decision. 11 The second ground is based on principles stated by the High Court in Muin v Refugee Review Tribunal (2002) 190 ALR 601. That case was decided by the High Court on the basis of a statement of agreed facts. There is no agreement by the Minister in this case as to the facts or circumstances that may be relevant to the decision that must be made. The onus is on an applicant to make out each of the elements of denial of procedural fairness on the basis that was considered in Muin. The affidavit by the applicant goes no way towards establishing the matters that were conceded by the Minister in Muin. 12 The assumed facts in Muin were: (a) the Tribunal had indicated to the plaintiff that it had asked the Minister's Department to send to it a copy of its documents about the plaintiff's case and that, when they were received, it would look at them along with other evidence on the Tribunal file to determine whether it could make a favourable decision; (b) the Tribunal subsequently indicated it had looked at the material relating to the plaintiff's application but was not prepared to make a favourable decision solely upon it; (c) the plaintiff believed that the Tribunal had received the documents referred to as 'the Part B documents'; (d) some of the Part B documents were favourable to the plaintiff; (e) the Part B documents had not been considered by the Tribunal; (f) the plaintiff had been misled into believing that it was unnecessary for him to draw the favourable information in the Part B documents to the attention of the Tribunal; (g) if he had not been misled and had known that the Part B documents had not been received, the plaintiff would have taken certain steps to correct the situation and he would have tendered additional evidence in support of his position, including decisions favourable to applicants in analogous situations. 13 There is not a skerrick of evidence in relation to those matters in the material that has been filed on behalf of the applicant in this case. If the matter were fixed for hearing, it could not possibly succeed. There is no suggestion that the applicant requires an opportunity to supplement his evidence with further material. In the circumstances, it appears to me that, if the traditional process for prerogative writs were to be adopted here, an order nisi would not be granted and any enlargement of time would not be allowed. It follows, in my opinion, that the application should be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 9 December 2003 Counsel for the Applicant: The applicant appeared in person with the assistance of a friend Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 27 October 2003 Date of Judgment: 27 October 2003	2,370
federal_court_of_australia:fca/single/2004/2004fca0902	decision	commonwealth	federal_court_of_australia	text/html	2004-04-30 00:00:00	S1089 of 2003 v Refugee Review Tribunal [2004] FCA 902	https://www.judgments.fedcourt.gov.au/judgments/Judgments/fca/single/2004/2004fca0902	2024-09-13T22:53:33.776866+10:00	FEDERAL COURT OF AUSTRALIA S1089 of 2003 v Refugee Review Tribunal [2004] FCA 902 S1089 OF 2003 v REFUGEE REVIEW TRIBUNAL & ANOR N1083 of 2003 EMMETT J 30 APRIL 2004 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1083 OF 2004 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S1089 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE OF ORDER: 30 APRIL 2004 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. Order 51A r 5(1) of the Federal Court rules not apply. 2. The application for an order nisi be refused. 3. The applicant pay the respondent's costs thrown away by non-compliance with the Court's directions. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1083 OF 2004 ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA BETWEEN: S1089 OF 2003 APPLICANT AND: REFUGEE REVIEW TRIBUNAL FIRST RESPONDENT MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS SECOND RESPONDENT JUDGE: EMMETT J DATE: 30 APRIL 2004 PLACE: SYDNEY REASONS FOR JUDGMENT 1 On 29 May 2003, a draft order nisi was filed in the High Court of Australia. An affidavit of Adrian Phillip Joel was filed on the same day purporting to set out the grounds upon which relief should be granted. It appears that relief was sought in relation to a decision of the Refugee Review Tribunal ('the Tribunal') made on 5 November 1997, confirming a decision of the Minister for Immigration & Multicultural & Indigenous Affairs ('the Minister') to refuse a protection visa to the applicant. The matter was remitted by the High Court of Australia to this Court. 2 On 27 October I made directions for the filing of a statement of contentions of relevant facts and law. That statement was to be filed by 20 January 2004. However, on 2 December 2003 the solicitors filed notice of withdrawal. On 9 December the Minister's solicitors wrote to the applicant informing him of the directions that I had made on 27 October 2003. The directions have not been complied with, notwithstanding an extension of time that was subsequently granted for compliance. 3 The draft order nisi and affidavit in support do not disclose any reasonable basis upon which any relief could be granted. The Minister asks the Court either to refuse an order nisi or to dismiss the application for non-compliance with the directions. Having regard to the fact that the applicant is unrepresented, and as I understand it, is in detention, it seems to me that the appropriate course is simply to refuse the order nisi. However, it is appropriate to order the applicant to pay the costs thrown away by his failure to comply with the directions. I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett. Associate: Dated: 12 July 2004 The applicant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 April 2004 Date of Judgment: 30 April 2004	861

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