case_text: It is convenient to consider the fate of the application, given its focus, by reference to the question as to whether at common law legal professional privilege can attend communications passing between experts or documents produced to experts for the purposes of providing an expert opinion. Authoritative guidance to the resolution of such a question is provided in the judgments delivered by Pincus JA and Thomas J, with each of whose judgments de Jersey J (as the Chief Justice then was) agreed, in Interchase Corporation Limited (in liq) v Grosvenor Hill (Qld) Pty Ltd (No 1) (1999) 1 Qd R 141. Suffice it to say, that case was decided in respect of a similar controversy in respect of legal professional privilege. 16 After a very searching analysis of prior authority, the view reached by Pincus JA at page 148 was that: The principle which emerges from these cases is that documents used by an expert to form an opinion are not the subject of legal professional privilege whether or not they emanated from the party claiming privilege. 17 There were five categories of document which were controversial and the subject of privilege claim in the Interchase case. They are set out in a table which appears at page 150 of the reasons for judgment of Pincus JA. That table was in the following terms: Date Document Description Various A Letters, facsimiles and enclosures passing between Feez Ruthning as solicitors for the plaintiff and Richard Ellis regarding the Retrospective Valuation, numbered 1 to 12 inclusive, contained in a folder marked with the letter 'A' and entitled 'Richard Ellis -- Writ of Non-Party Discovery'. Undated B Drafts of various parts of the Retrospective Valuation prepared by Richard Ellis, numbered 13 38 inclusive, contained in a folder marked with the letter 'B' and entitled 'Richard Ellis -- Writ of Non-Party Discovery'. Undated C Working papers produced by Brian Cox of Richard Ellis in the course of preparing the Retrospective Valuation, including copies of schedules, plans and other documents on which Brian Cox has made written calculations and notes, numbered 39 to 87 inclusive, contained in a folder marked with the letter 'C' and entitled 'Richard Ellis -- Writ of Non-Party Discovery'. Various D Copies of extracts from other Richard Ellis valuations of various properties (other than the Myer Centre) selectively collated and copied by Brian Cox of Richard Ellis for use in the preparation of the Retrospective Valuation, numbered 88 137 inclusive, contained in a folder marked with the letter 'D' and entitled 'Richard Ellis -- Writ of Non-Party Discovery'. Various E Copies of various other documents selectively collated and copied by Brian Cox from Richard Ellis for use in the preparation of the Retrospective Valuation, numbered 138 149 inclusive, contained in a folder marked with the letter 'E' and entitled 'Richard Ellis -- Writ of Non-Party Discovery' 18 Later on page 150, Pincus JA observed that it appeared to him that, prima facie, one would hold, following English authority, that documents within categories B, C, D and E were not privileged. As his Honour observed there: They are documents of various kinds used in preparing a witness's opinion, none of them obtained from Interchase's solicitors. 19 His Honour further observed that the documents in category A raised different considerations. In respect of that category his Honour stated as follows at page 151: The affidavit asserts that they are communications which passed between the Interchase solicitors and Richard Ellis after the action began "for the sole purpose of giving legal advice in relation to, or obtaining evidence to be used in, this litigation". The only question to which acceptance of the English position would give rise, as to category A, is whether it includes documents not in origin privileged, but used by the expert in forming an opinion; on the basis of the English cases, such documents would not be privileged, although supplied by the solicitor to assist in the expert's work. There is concealed in this issue a problem about the way in which a judge should proceed in considering the validity of a claim of privilege. Even if each document is precisely identified, it may not be possible to reach, merely from their description, a definitive conclusion on the validity of the claim with respect to each document; sometimes it may be that a sampling process may usefully be engaged in by the judge, to determine the credibility of a privilege claim designed to protect a large quantity of material; I do not accept that the judge must examine either all of the documents in question, or none of them. For practical reasons, it appears to me that the judge will ordinarily deal with challenged claims of privilege in accordance with categories, rather than individual documents. 20 That presents a difficulty in this case, if only in the sense that the privilege claim advanced on behalf of Termicide is, to put it charitably, of the most general in its description of the documents covered by the asserted claim. Later in his judgment in Interchase , Pincus JA considered whether the position which he thought obtained in light of English authority ought to be in any way altered or varied in light of authority in this country. Suffice it to say, his Honour did not consider that Australian authority compelled any different conclusion. In respect of letters of instruction to experts, his Honour observed at page 156 that: Unless the letter of instruction, improbably, gave the valuer some confidential instruction as to the desired content of the report it is difficult to understand what in the letter of instruction could be really confidential. 21 The view to which his Honour came, ultimately, was that documents in category A, being those passing between the plaintiff's solicitors and the valuer they engaged, relating to the valuation, are privileged, but the documents in categories B, C, D and E, being those which were brought into existence or were obtained by the valuer to assist in the preparation of the valuation report, were not privileged. His Honour's conclusion was that "witness document privilege" did not exist. In his separate reasons for judgment, Thomas J observed at page 160, in his discussion under the heading Application of the General Law as follows: The documents in categories A to E above are therefore subject to the general principles applicable to legal professional privilege. The question is whether they are properly protected from disclosure. The rationale of the protection of legal professional privilege is a perceived need to protect the confidences between clients and their legal advisers (Grant v. Downs [1976] HCA 63 ; (1976) 135 C.L.R. 674 , 685; Australian Federal Police v. Propend Finance [1997] HCA 3 ; (1997) 188 C.L.R. 501 , 551-552). Although marginal cases constantly arise, the courts have succeeded in identifying appropriate limits to the confidentiality of communications in dealings between client and solicitor. However more complex factors arise when the solicitor finds it expedient to enlist the assistance of other persons. In this context an expert is a third person from whom the client, represented by a solicitor, hopes to obtain an advantage. The extent of protection applying to communications between the solicitor and the expert concerning alleged facts or hypotheses which the expert is asked to assume is, I think, a grey area. The solicitor is deliberately converting the expert into a witness. The community has some interest in ultimately being able to ensure (through the courts) that this process is not abused. It is desirable that the rules be such that the courts, or the adversary, be able to explore fairly fully the circumstances of the formation of the opinion. It is also necessary in some cases to explore the circumstances and nature of the retainer. However, to the extent that communications of this kind (commonly called "instructions") are made solely for the purpose of use in litigation and are intended to be confidential, such instructions are generally thought to enjoy protection. 22 A little later, at pages 160 to 161, Thomas J continued: Whatever the limits of protection of the communications (both ways) between the solicitor and the third party may be, it is difficult to see any justification in principle or policy for protection of documents which the expert generates and the information which he or she collects in order to form an opinion. The important principle that there is no property in a witness means that an adversary party may subpoena an expert retained by the original party and require that expert to give all relevant information in his possession, including an expression of his opinion, to the court. It is perhaps curious that statements made by a plaintiff to, say, a doctor or engineer are not privileged, while similar or dissimilar statements made to such persons on the plaintiff's behalf by the plaintiff's agent, the solicitor, are. It is difficult to draw a tidy dividing line between the opinion and "the instruction" because the opinion of the expert is commonly premised on facts supplied by that means. 23 I interpolate that his Honour's observation in respect of the subpoena process is particularly germane in this case. Later, at page 161, his Honour observed: In the field of expert evidence it is difficult to sever an opinion from the information and process upon which it is based. It would seriously jeopardise the proper testing of such witnesses if privilege were extended to documents of the kind which are described in categories B, C, D and E in the present case. 24 Finally, at page 162, his Honour made the following statement by way of summative conclusion: I would hold that in general, when an expert is engaged by a solicitor for the purpose of giving evidence in a case, documents generated by the expert and information recorded in one form or another by the expert in the course of forming an opinion are not a proper subject for a claim of legal professional privilege. Privilege may however be claimed in relation to communications between the expert and the solicitor (both ways) when such communication is made for the purpose of confidential use in the litigation. Beyond this there is no sufficient reason why any material relevant to the formation of the expert's opinion should be subject to a claim of legal professional privilege. It is as well to add that an expert or solicitor may not artificially manufacture privilege by, for example, the expert sending in his or her file to the solicitor. Documents of this kind simply are not confidential. 25 Though reported in the authorised reports in 1999, the Interchase case was decided in 1997, that is prior to the decision of the High Court in Esso Australia Resources Limited v Commissioner of Taxation . Thus, that explains the reference by their Honours to a sole purpose test. The later decided Esso Australia Resources case holds that for Australia the test at common law for legal professional privilege in relation to documents is whether a communication was made or a document was prepared for the dominant purpose of a lawyer providing legal advice or legal services. Subject to that necessary qualification, the discussion of principle in the Interchase case is compelling. 27 Though brief, it is evident from his Honour's observation that, at least in respect of the communications to Mr Robinson in that case, he was of a similar view to that which is evident in the reasons for judgment of Pincus JA and Thomas J in the Interchase case. Thus, a pervasive claim or a blanket claim for privilege in respect of the documents produced on subpoena does not seem to be warranted. Indeed, there is every likelihood that it greatly overstates the basis upon which privilege might validly be claimed. The question becomes how best to deal with the question of privilege if any attaching to documents which have been produced on subpoena? 28 In the first instance, it would be a misuse of judicial resources for me to examine each and every document produced on subpoena to the end of determining whether privilege ought to be claimed. This task was nonetheless one which I was urged to undertake by Granitgard. I do not propose to undertake that task in the first instance. Instead, it seems to me that Termicide ought to do what a counsel of perfection might suggest it should have done before asserting a privilege claim to start with. In other words, it ought to identify with precision, seriatim, each and every document in respect of the subpoenaed documents, in respect of which a claim for privilege is pressed. 29 In so doing it will now have the benefit of the Court's reasons for judgment as to categories, in respect of which privilege is and is not available. It is unfortunate that Granitgard has had to bring such an application, but it having been brought, there ought to be relief granted to enable it to access documents in respect of which there is no basis for the making of a privilege claim. Further, the party which has asserted privilege, Termicide, needs to approach the task of identifying, with precision, documents in respect of which the claim is maintained with considerable expedition, given that the case is presently fixed for trial on 20 October 2008.


case_outcome: considered

case_text: All correspondence, file notes, memoranda and any other documents recording communications between the Respondent (or any person on its behalf) any other person in relation to the testing of crushed glass and/or the assessment of the Termiglass system as a physical termite barrier. 4 Order 15 r 8 of the Federal Court Rules is in these terms: 8 Order for particular discovery Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party: (a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and (b) to serve the affidavit on any other party. 5 By a letter dated 30 April 2008, Granitgard, by its solicitors, identified 29 types of document in respect of which it was alleged that Termicide's discovery was deficient. A response to that letter was made on behalf of Termicide by its solicitors on 16 May 2008. That response conveniently tabulates the impugned types of document, together with the response made on behalf of Termicide in respect of those documents which is outlined below: Applicant's Request of 30 April 2008 Status 1 The termiglass specification referred to in CSIRO appraisal No further documentation to be discovered 2 The summary of particle density dated 10 July 2003 referred to in letter from Vision Glass Recycling dated 11 July 2003 (document 1) This has already been discovered as part of document 17 3 All correspondence and documents provided to Dr French as referred to in Dr French's facsimile dated 5 November 2003 (document 5) There were no documents or correspondence referred to in Dr French's facsimile. Dr French referred to "the materials you kindly delivered". The materials delivered were samples of sintered glass and are no longer in the possession, custody or power of the Respondent and do not comprise a document. 4 All correspondence and documents provided to BLS Consulting and Barry Schafer in relation to termiglass for the purpose of obtaining the appraisal or draft appraisal as referred to in the facsimile from BLS dated 18 November 2003 (document 7) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 5 The termiglass installation manual and the Granitgarrd specifications as referred to in the letter from BLS to CSIRO dated 26 November 2003 (document 8) and also referred to in the affidavit of Dr Ewart dated 23 April 2008 The termiglass installation manual has already been put into evidence by the Applicant (annexed to the affidavits of Dr Don Ewart sworn 17 December 2007 and 23 April 2008). The Respondent has reasonable belief that the Granitgard specifications are already in the possession of the Applicant and is not required to discover that document under Order 15 Rule 2(4) 6 The documents attached to the email dated 1 December 2002 from Barry Schafer to Paul Jeynes relating to the sieve analysis (document 9) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 7 The grading specifications from the University of Hawaii as referred to in the email dated 1 December 2003 from Barry Schafer to Paul Jeynes (document 9) The Respondent has reasonable belief that the University of Hawaii specifications are already in the possession of the Applicant and is not required to discover that document under Order 15 Rule 2(4) Dr Ewart mentions in his affidavit of 17 December 2007 that he has read these specifications. 8 The appraisal certificate enclosed with the letter from CSIRO to Barry Schafer dated 11 December 2003 (document 10) This has already been discovered as part of document 11 9 The information provided by Termicide as referred to in the CSIRO Technical Assessment (document 11) together with the Techcon Management Pty Ltd report dated March 2003 referred to in the same document The information provided by Termicide is set out in 'Relevant Documents' and 'Basis of Appraisal' of the Technical Assessment (document 12) and comprised: • Termicide Installation Manual Nov 2003 (already in the possession of the Applicant as it is annexed to the affidavits of Dr Ewart) • Report from Techcon Management March 2003 (already discovered as part of document 17) 10 Any correspondence with NRA as referred to in the letter from Dr French to David Jeynes dated 5 November 2003 (part of document 11) No documentation to be discovered 11 Any correspondence from Dr French or documents regarding communications with Dr French in respect of Mr Jeynes' letter dated 19 December 2003 (document 12) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. We note that you have now issued a subpoena to Dr French. 12 The specification requirements referred to in Mr Jeynes' letter dated 19 December 2003 (document 12) No documentation to be discovered 13 All documents provided to LTD (Consultant) Services for the purpose of provided its opinion as expressed in its letter dated 26 May 2005 (document 18) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. We note that you have now issued a subpoena to Mr Langley. 14 All documents or notes of conversations relied up on by Termicide for the purposes of advising CSIRO that the testing quality assurance systems used in the manufacturing system of termiglass were of the highest standards and confronted to the original product specifications as per the letter dated 25 January 2006 (document 19) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 15 The original product specifications referred to in document 19 This has already been discovered as part of document 11 and document 15 16 The document containing the description of the manufacturing process and steps undertaken to ensure consistency as referred to in document 19 The description and steps are set out in document 19 17 All samples of Termicide and testing results taken from them as referred to in document 19 Samples of the termiglass product are not discoverable. Samples do not comprise a document. 18 Photos referred to in document 19 No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 19 The documents incorporating the quality management system and rules referred to in Termicide's declaration of design life dated 2 May 2006 (document 20) This has already been discovered as part of document 11 and document 15. 20 All correspondence and documents recording communications with Ehab Melek and SAI Global in respect of termiglass, including all samples of termiglass provided, as referred to in the email dated 13 December 2006 from Mr Melek to Dr French (document 21) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. Samples of the termiglass product are not discoverable. Samples do not comprise documents. We note that you have now issued a subpoena to Mr Melek and SAI Global 21 The installation manual and the termiglass specifications as referred to in the LTD (Consultant) Services report (document 25) The termiglass installation manual has already been put into evidence by the applicant (annexed to the affidavit of Dr Ewart) 22 Letter dated 26 Jun 2007 from CSIRO referred to in the Termicide letter to CSIRO dated 23 November 2007 (document 25) No further documentation to be discovered. Any documentation that was in the possession of the Respondent has been lost over time due to both changes in administration staff and the Respondent moving premises. 23 The Extrusion Technologies International Pty Ltd report referred to in the Termicide application for revalidation of CSIRO technical assessment 313 (document 25) This is not within the scope of Schedule B of the 15 February 2008 Orders. It refers to a component which is not the subject of this litigation. 24 Reports recording validation of Termicide sealant as referred to in the Termicide application for revalidation of CSIRO technical assessment 313 (document 25) This is not within the scope of Schedule B of the 15 February 2008 Orders. It refers to a component which is not the subject of this litigation. 25 Correspondence between CSIRO and Mr Chris Langley of LTD (Consultant) Services sent for the purpose of obtaining the opinions expressed by Mr Langley in the email dated 30 January 2008 to Mr Simon Hanson of CSIRO (document 26) The Respondent was not party to this correspondence and the correspondence is not in the possession, custody or power of the Respondent. We note that you have now issued a subpoena to both Mr Langley (LTD) and to the CSIRO. 26 Correspondence from Dr French concerning the opinions of Mr Langley expressed in the email to Mr Hanson dated 20 January 2008 (document 26) No further documentation to be discovered. 27 All correspondence and documents provided to Dr French in respect of his report dated 6 February 2008 (document 27) No further documentation to be discovered. 28 Report of Ecospan referred to in the CSIRO facsimile dated 19 February 2008 to Dell Shaw (document 29) This has already been discovered as document 27 29 All documents or notes of conversations relied upon by Termicide for the purpose of advising CSIRO that the product specifications of termiglass are the same as those tested in the laboratory and field as per the letter dated 18 February 2008 (document 30)) Report from Ecospan dated 6 February 2008 has already been discovered as document 27. No further documentation to be discovered. 6 In McIlwain v Ramsey Food Packaging Pty Limited (2005) 221 ALR 785 at 799, paragraph 25 Greenwood J observed as follows: Order 15 r 8 seems to embody the following process. A party dissatisfied with the completeness of discovery by another party might seek to identify either a document or class of document as the focus for an application. That document or class of document must relate to a matter in question in the proceeding. The grounds for a belief that some document or class of documents relating to a matter in question exists can be demonstrated to the court either from the evidence adduced by the applicant for an order or from the nature or circumstances of the case (reflected in the pleadings) or from any document filed in the proceedings. The applicant must then demonstrate that such a document or class of document either may be, or may have been, in the possession, custody or power of a party. Once those matters are demonstrated, the court may order such a party to file an affidavit stating whether that document or any document of that class is or has been in the possession, custody or power of the party. 7 On behalf of Granitgard, it is submitted that a good litmus test of Termicide's failure to address its duties as to discovery appears from a letter from its solicitors dated 27 August 2008. In that letter Termicide's solicitors identified and attached an email which, it was conceded, had been the subject of a claim for privilege, and which, it was conceded, ought not to have been subject to such a claim. The email concerned had two enclosures. When they were sought by Granitgard, the response made by the solicitors for Termicide was that: Both of the documents referred to in that email are available in the material provided by the subpoenaed parties. 8 Whilst that particular response might, with all due respect, be regarded as churlish, it does not at all follow that the further disclosure of the email, which, upon reflection, was regarded as not attracting a claim on behalf of Termicide for legal professional privilege, is in any way indicative a failure to observe discovery obligations. To the contrary, it shows an attention to the ongoing responsibilities that attend such an obligation. 9 To use the litmus test analogy favoured by Granitgard, it seems to me, on the material, that Granitgard's application is motivated by an unfortunate acidity in relations not just between the parties but between those who represent them, whereas, on a more objective analysis, the fact of voluntary further disclosure is alkaline in its character. By that I mean there is a quite benign view that one can take of that, which is that of a party, by its solicitors, taking care to observe a discovery obligation notwithstanding a position earlier taken and as soon as it is realised that that earlier position was taken in error. The discovery that was ordered by me on 15 February 2008 was by categories, not general. It is quite apparent from the letter sent in response to Granitgard's letter of 30 April 2008 that there has been reflective consideration by Termicide and those advising it of the adequacy of discovery in respect of the categories of discovery ordered. Having regard to the responses which were made and usefully summarised in the table, it seems to me that there ought not to be any order for further discovery. That is so even if, perchance, strictly, some of the documents identified in the 29 types or categories of document might have at one stage or another existed. 10 Further, I do not see any particular utility in requiring Termicide to verify on oath that which its solicitors have made on its behalf by way of response in that table. The response seems to me to be a complete answer to the request that was made. The application for further discovery, in any event, would enliven a discretion and, as I have indicated, even if, strictly, some documents may or may not at one stage have existed within those 29 classes of document, I am not disposed at this stage of the proceedings to order further discovery by Termicide of those on the basis of the material with which I have been provided for the purposes of hearing the application. And that is an alternative position; the primary one being it seemed to me that the responses made were a complete answer. The application for further and better discovery will therefore be dismissed.


case_title: CBFC Ltd v Sim [2006] NTSC 57

case_text: 3 August 2006, reasons for the orders made on 10 July 2006 were published: CBFC Ltd v Sim [2006] NTSC 57. This application under s 60(1) of the Bankruptcy Act was made immediately following the learned Supreme Court judge delivering reasons for the orders made on 10 July 2006. It seeks a stay of the proceedings in the NTSC, and a discharge of the orders made on 10 July 2006 including the warrant for Mr Sim's arrest. Section 60 of the Bankruptcy Act relevantly provides: '60(1) The Court may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: (a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor out of custody; or (b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the debtor: (i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; ...'


case_outcome: referred to

case_text: there is extant a creditor's petition for the making of a sequestration order against the estate of Mr Sim, there is no doubt that the Court has jurisdiction under s 60 of the Bankruptcy Act : see Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549. In my view the Absconding Debtors Act is a law to which s 60(1)(a) of the Bankruptcy Act refers. In my view, s 60 is directed to legislation which is intended to protect a creditor or creditors within a particular jurisdiction from adverse consequences of a debtor leaving the jurisdiction prior, or after, to the making of a sequestration order. Section 4(3)(c) of the Absconding Debtors Act indicates that the Absconding Debtors Act falls within that description. Those consequences may be the result of deliberate wrongful conduct by the debtor, or (as here) by innocent conduct of the debtor. The purpose of the law under which imprisonment may be imposed is the important feature, because s 60 is intended to provide relief in certain circumstances against the means of enforcement of a debt which is not consistent with the Bankruptcy Act: see Storey v Lane .


case_title: Commissioner for Motor Transport v Train [1972] HCA 62 ; (1972) 127 CLR 396

case_text: consequence of that decision was that the decision of Gibbs J (as a judge of the Court of Bankruptcy) in Re Hollis (1968) 15 FLR 386 was overruled. That decision concerned the Road Act. That it was overruled is not immediately significant. What is significant in that decision, in my view, are comments of Gibbs J about the operation of the then form of s 60(1) of the Bankruptcy Act. His Honour at 388-389 regarded s 60(1) as being directed to legislation which, by imprisonment and other orders, was a means of enforcing the payment of the debt. See also per Gibbs J in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 at 158. I do not think that either Barwick CJ or Stephen J in Train necessarily disagreed with those comments. They provide a different focus for determining whether the Absconding Debtors Act is a law relating to the imprisonment of fraudulent debtors. The Absconding Debtors Act is clearly directed to the enforcement, or the better enforcement, of the payment of a debt. It is perhaps surprising that legislation permits the issue of a warrant to arrest a debtor, to better secure the enforcement of a debt in the light of the trend evident even in the nineteenth century to abolish the practice of enforcement of payment of debt by imprisonment. The review of Australian legislation by Walsh J in Train indicates that trend. See also per Barwick CJ in Train at 402. The general approach of Gibbs J in Re Hollis to the scope of operation of s 60(1) of the Bankruptcy Act seems more consonant with its purposes, and with the role of the Bankruptcy Act as regulating the relations between a creditor and a debtor once the processes for which it provides are invoked.


case_outcome: discussed

case_title: Re Hollis (1968) 15 FLR 386


case_text: consequence of that decision was that the decision of Gibbs J (as a judge of the Court of Bankruptcy) in Re Hollis (1968) 15 FLR 386 was overruled. That decision concerned the Road Act. That it was overruled is not immediately significant. What is significant in that decision, in my view, are comments of Gibbs J about the operation of the then form of s 60(1) of the Bankruptcy Act. His Honour at 388-389 regarded s 60(1) as being directed to legislation which, by imprisonment and other orders, was a means of enforcing the payment of the debt. See also per Gibbs J in Re Caddies; Ex parte Stapleton (1962) 19 ABC 155 at 158. I do not think that either Barwick CJ or Stephen J in Train necessarily disagreed with those comments. They provide a different focus for determining whether the Absconding Debtors Act is a law relating to the imprisonment of fraudulent debtors.


case_outcome: cited

case_text: Absconding Debtors Act has the long title 'An Act to make Provision for and in respect of the Apprehension of Certain Debtors'. In my view, that is a factor to which regard may be had in determining whether it is legislation which has the character attracted by s 60(1)(a) of the Bankruptcy Act: see Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1907) 24 WN (NSW) 203 at 204 per Street J; Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193 at 199; Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555 at 563.


case_title: Clunies-Ross v Commonwealth [1984] HCA 65 ; (1984) 155 CLR 193


case_title: Northern Suburbs General Cemetery Reserve Trust v Commonwealth [1993] HCA 12 ; (1993) 176 CLR 555


case_title: Malouf v Prentice [1998] FCA 1427

case_text: importantly, I consider his initial imprisonment in Australia, and then his forced residence in the Territory, are not consistent with the policy of the Bankruptcy Act. Its policy in relation to such matters is indicated by s 78 (referred to above), and the learned judge found that Mr Sim's desire to return to Indonesia was not with a view to avoiding payment of his debts but for legitimate purposes. See also s 272 of the Bankruptcy Act. I note that, if a sequestration order is made, a bankrupt must then surrender his or her passport to the trustee: s 77. Permission to travel overseas from the trustee then becomes necessary. A decision of the trustee on such a matter is reviewable. In Malouf v Prentice [1998] FCA 1427 Sackville J said the withholding of permission to travel for apparently legitimate purposes should not be lightly exercised. In Re Tyndall (1977) 17 ALR 182, Deane J at 187 and 190 referred to the 'fundamental importance' of such applications for permission to travel overseas to pursue legitimate commercial or personal desires; and also in some cases to the financial rewards to be derived by the bankrupt's estate.


case_title: Re Tyndall (1977) 17 ALR 182


case_text: have not overlooked the expense which CBFC and the CBA have clearly incurred in the proceedings under the Absconding Debtors Act . It was their choice to bring those proceedings. They did so to take advantage of the different, and lower, threshold for a warrant for arrest under the Absconding Debtors Act . They did so in the light of the risk of Mr Sim applying for an order under s 60 of the Bankruptcy Act. That he did not bring this application earlier no doubt has increased the costs they have incurred, and that is a factor I have put into the balance. But I do not consider his defence of the proceedings in the NTSC involved him acting in a manner consistent only with Mr Sim having chosen not to exercise his right to apply under s 60 of the Bankruptcy Act, either generally or in the light of the reasons for judgment: cf Commonwealth v Verwayen [1990] HCA 39 ; (1990) 170 CLR 394. There is also no evidence from CBFC or from the CBA that they continued to conduct the proceedings under the Absconding Debtors act relying upon any assumption of fact induced by Mr Sim's continued defence of those proceedings. One matter which counsel for CBFC and the CBA raised, which I reject, is that there was insufficient opportunity to make an application to this Court or to the FMC for an order under s 78 of the Bankruptcy Act at or immediately after the hearing of the petition, and so the application was made under the Absconding Debtors Act . The Registry of this court is open during normal hours and has an after-hours number. It is well known that a judge of the Court can be available at very short notice, if necessary, to hear any urgent application. That is not to say that it was inappropriate to have instituted the proceedings in the NTSC under the Absconding Debtors Act that was a matter for CBFC and the CBA but simply to reject one explanation for having done so. The reason for having done so, as appears from the transcript of the hearing in the SCNT and in his Honour's reasons at [63], is the judicial advantage under the Absconding Debtors Act compared to s 78 of the Bankruptcy Act that, as his Honour accepted, the Absconding Debtors Act does not require proof that Mr Sim was about to abscond with a view to avoiding payment of his debts. However, as I have sought to point out, that judicial advantage also illustrates a difference from the policy of the Bankruptcy Act in circumstances such as the present. Another matter raised by counsel for CBFC and the CBA which I reject is that Mr Sim has improperly delayed in making this application. In fact, he did so within a day of the reasons for judgment of the SCNT being published. As the factual issues before his Honour included whether Mr Sim did intend to abscond so as to avoid paying his debts, it was sensible for Mr Sim to await the reasons to see what factual finding was made on the issue. I have also had regard to Mr Sim's preparedness to undertake to the Court to return to Australia (by inference within a reasonable time) to assist his trustee in the event that he is made bankrupt. He is prepared to offer a surety for his return, Thomas Winter, in the sum of $15,000 and Mr Winter too has deposed to his preparedness to offer that surety and to his having assets sufficient to meet it. I propose to accept that undertaking, but to impose upon Mr Sim the time limit of three calendar months from this date, or such later date as may be agreed in writing by his trustee. He will, upon his return to Australia, have to surrender his passport to his trustee. His trustee, assuming Mr Sim is made bankrupt, will then have sufficient time to investigate Mr Sim's affairs in such manner as the trustee may consider appropriate, and to arrange for Mr Sim to be examined under s 81 of the Bankruptcy Act. The trustee will control Mr Sim's capacity to travel overseas so as to allow an adequate time to complete with Mr Sim such inquiries as he wishes. I am more disposed to accept that undertaking, supported by the surety, as Mr Sim has extensive family in Australia: an elderly parent, three children and seven grandchildren. Finally, I note (largely by way of an aside) that the Chief Minister on 22 November 1978 said of the Absconding Debtors Bill: '[I]t is really only a power that is exercised when the person will not comply with the order of the court. It is virtually imprisonment for contempt of the court's orders, not imprisonment for debt.' (Northern Territory, Parliamentary Debates, 22 November 1978, p 428-432). As the decision in the NTSC indicates, the power is exercisable in much wider circumstances, but for that reason its exercise may be vulnerable to an order under s 60 of the Bankruptcy Act. For those reasons, I order under s 60(1)(a) of the Bankruptcy Act that upon the written undertaking of Mr Sim to the Court to be filed in a form approved by the District Registrar that, in the event that a sequestration order is made against his estate, he will return to Australia within three calendar months of the making of the sequestration order and will cooperate with his trustee in respect of all inquiries and procedures which his trustee requires in relation to his bankruptcy, and upon Thomas Harry Edward winter providing to and filing in the Court a surety in the sum of $15,000 in a form approved by the District Registrar to the effect that, in the event that Mr Sim does not fully comply in every respect with his undertaking, Mr Winter will forfeit to the Crown the sum of $15,000, and that process may be executed against his property for the said sum of $15,000, the orders of the NTSC made on 10 July 2006 and extended on 4 August 2006 under the Absconding Debtors Act in respect of Mr Sim be discharged.


case_text: Honour's reasons for making those orders are to be found in the reasons for judgment which he gave that day: see Re Felix Resources Pty Ltd [2009] FCA 1182. These reasons for judgment should be read in conjunction with those given by his Honour on 28 September 2009. The proposed scheme is more particularly described in his Honour's reasons for judgement. I do not, therefore, take time to recite again the nature of the scheme as proposed. Since 28 September 2009 there has been a further development. The explanatory memorandum, to which I have already referred, has been sent. Section 412 of the Corporations Act requires, inter alia, that the explanatory memorandum sent to shareholders contain: Any other information that is material to the making of a decision by a member whether or not to agree to the arrangement.


case_title: Re Coates Hire (No 2) [2007] FCA 2105

case_text: Resources apprehends, in light of a further development, that it is appropriate to seek court approval for the sending of a supplementary memorandum. There is no doubt that it is a prudent and appropriate course for Felix Resources to have taken to seek such approval, note the criticism voiced in Re Coates Hire (No 2) [2007] FCA 2105 at [7] in respect of a corporation that sent such material without first obtaining court approval. The original explanatory memorandum disclosed that Felix Resources would be declaring a second 50 cent dividend. What that memorandum did not disclose was the timing of the dividend and the circumstances relating to the way in which the company would pay that dividend. As it transpires, the directors of Felix Resources propose to fund that dividend with the use of funds borrowed from particular shareholders. It is that development and that proposal which has provided the occasion for the making of this application. On 10 November 2009, the board of directors of Felix Resources declared a fully franked 50 cent dividend payable to each share in the company. That dividend is payable on 9 December 2009. It is on the day after members met to vote on the scheme and the day before the hearing of the application for court approval. The material before me discloses, candidly, that Felix Resources does not presently have sufficient cash resources to meet the second 50 cent dividend payment on 9 December 2009 while at the same time complying with financing arrangements which it has with the Commonwealth Bank of Australia. It is against that background that Felix Resources proposes to borrow the full amount needed for the payment of the second dividend from its three largest shareholders. It has entered into loan agreements with each of those shareholders to that end. Pursuant to cl 4.3 of an implementation agreement in cl 6 of the deed poll Yanzhou Coal Mining Company Limited (Yanzhou), which I note is represented today by leave by its solicitors, and its subsidiary, Austar, have agreed to put in a place a letter of credit from the Bank of China's Sydney branch which will guarantee repayment of amounts outstanding under the shareholder loans to which I have referred.


case_title: Allstate Life Insurance Co v ANZ Banking Group (No 15) (unreported, Lindgren J, 22 August 1995)

case_text: This passage and the principle which underlies it were referred to with approval by Lindgren J in Allstate Life Insurance Co v ANZ Banking Group Limited (No 15) (unreported, Lindgren J, 22 August 1995) at pages 5-6.


case_text: The Court has power under O 15 r 8 of the Federal Court Rules to order particular discovery where there is a defect in compliance with an earlier order. The power conferred by O 15 r 8 is discretionary; see Australian Broadcasting Commission v Parish (1981) 48 FLR 292 at 295. 7 The orders which are sought go beyond the power conferred by O 15 r 8. However, it seems to me that I have power to make the orders under s 23 of the Federal Court of Australia Act 1976 (Cth) if I consider it to be appropriate.


case_text: In BT Australasia Pty Limited v State of New South Wales (unreported, Sackville J, 9 April 1998), his Honour ordered Telstra to discover emails and attachments from back-up computer tapes for certain identified persons. His Honour also directed Telstra to file a report setting out the steps taken to comply with that order. 11 In deciding to make orders for additional discovery, his Honour was satisfied that Telstra had failed to fully comply with its discovery obligations. His Honour was also satisfied that the tapes contained much material that was relevant to the issues in the proceedings.


case_outcome: followed

case_text: In my view, the exercise of the power is informed by similar considerations to those which underlie the power conferred by O 15 r 8. Thus, the Court may refuse to make an order if it would be unduly oppressive to the other party. As Mummery J said in Molnlycke AB v Procter & Gamble Limited (No 3) [1990] RPC 498 at 503: The Court takes account of such considerations as the value of the discovery to the person seeking it and the burden imposed on the party giving it, with a view to restricting the volume of documents and the labour and expense involved to that which is necessary for fairly disposing of the issues in the case.


case_text: In NT Power Generation Pty Limited v Power & Water Authority [1999] FCA 1669 , Mansfield J declined to limit discovery to email communications which existed in hard copy form at the time of the order. His Honour indicated at [2] that it would impose a very substantial burden on the respondents to restore and examine the back up tapes. 13 However, he was not satisfied that the material which might be recoverable electronically was sufficiently insubstantial to warrant the order sought by the Respondents limiting discovery to hard copy documents. His Honour said at [17]: As I have indicated, I am not persuaded that the e-mail communications retained only electronically are unlikely to contain any material communications which are discoverable in these proceedings. I have used the word "material" to indicate communications beyond those that are merely formal or insignificant. The applicant is entitled to discovery of them. I am not persuaded, in the interests of justice, that I should excuse the Respondents from giving discovery of that material notwithstanding the time, expense, and effort involved in doing so. 14 The evidence establishes that, as one would expect, both of the respondents used email at the relevant times. Nevertheless, very few emails have been discovered and those which have been discovered fall outside the critical time periods in the proceedings. 15 Most importantly, Quadrant has not discovered any emails from Mr Hadley or Mr Penklis for the whole of the year 2000 which is the most important year in the case. Nor has Quadrant discovered any emails from Mr Hadley or Mr Penklis for the first half of 2001 which is also an important time period in the proceedings. Moreover, Quadrant was able in February 2004 to generate electronic diaries for Mr Hadley and Mr Penklis from its computer systems. 16 Those diaries contain references to a number of important meetings but there are some significant gaps. Both diaries contain references to the meeting of 16 August 2000 between Mr Hadley, Mr Blom and Mr Seward. There is no reference to a meeting apparently planned on 17 or 18 September 2000 between Quadrant and Ms Addison nor is there any reference to the meeting which took place in Dallas on 25 September 2000.


case_outcome: affirmed

case_title: Internet Centre of Excellence 2000 Pty Ltd v Computer World (Victoria) Pty Ltd [2004] FMCA 765

case_text: On 5 November 2004, in an action for breach of trust, and misleading or deceptive conduct, McInnis FM found for Internet Centre of Excellence 2000 Pty Ltd ("ICE 2000") [2004] FMCA 765. ICE 2000 was the applicant below and is the respondent to this appeal. His Honour ordered Computer World (Victoria) Pty Ltd ("Computer World"), the appellant, to pay an amount of just over $62,000 by way of damages, together with costs fixed in the sum of $28,000. He dismissed a cross-claim filed on behalf of Computer World. 2 The trial occupied several days. It was conducted without pleadings. The facts were essentially quite simple. ICE 2000 conducted a retail computer sales outlet on behalf of the Computer World until approximately April 2002. Computer World permitted ICE 2000 to use its signage, and supplied it with stock. ICE 2000 would account to Computer World in relation to sales of stock, and receive commissions from it. 3 As part of the arrangement between the parties, ICE 2000 deposited an amount of $50,000 with Computer World pursuant to what was described as "a credit facility", dated 6 December 2001. It is unnecessary to set out the terms of that document in their entirety. However, the relevant parts are as follows: "Re credit facility, We, the undersigned, Computer World (Vic) Pty Ltd, agree to grant you credit facility for the purchase of computers and associated goods ("goods") on the following terms and conditions: 1. That you deposit an amount of $50,000 ("security amount") (the receipt of which is acknowledged) into a separate interest bearing account to be opened in the name of Computer World (Vic) Pty Ltd and titled Internet Centre of Excellence 2000 Pty Ltd Trust Account. 2. The security amount can only be drawn upon by Computer World (Vic) Pty Ltd in the event the Internet Centre of Excellence 2000 Pty Ltd fails to pay for goods purchased within the trading terms."


case_text: Computer World relies upon s 27 of the Federal Court Act 1976 (Cth) as the basis for the receipt by this Court of this further evidence. Pursuant to that section, the power of the Court to receive further evidence on appeal is discretionary. The discretion is a wide one, but must be exercised judicially: CDJ v VAJ [1998] HCA 76 ; (1998) 197 CLR 172 at 185. Factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.


case_text: His Honour regarded the evidence presented by both parties as unsatisfactory. He noted that ICE 2000 had not called Mr Hasturk as a witness. There was some hearsay evidence from Ms Anne Gardner, on behalf of ICE 2000, to the effect that Mr Hasturk had "since returned to his homeland of Turkey", and that his whereabouts at the time of the trial were unknown. In these circumstances, his Honour declined to draw a Jones v Dunkel inference against ICE 2000. 10 After judgment in this matter was delivered, Computer World discovered that Mr Hasturk had not in fact gone to Turkey, but had at all material times been in Melbourne and available to give evidence. Moreover, he was easily capable of being contacted by ICE 2000 because he retained the same mobile telephone number that he had used when employed by that company. 11 By notice of motion dated 11 April 2005, Computer World sought leave to lead further evidence on the appeal to this Court. Essentially, that further evidence is contained in an affidavit sworn by Mr Hasturk in which he deposed to his understanding of the arrangement he had entered into with Mr Yuvarajah at the time that the credit facility was signed. 16 Computer World submits that had the evidence of Mr Hasturk been led before his Honour, it may well have caused him to accept the evidence of Mr Yuvarajah, rather than rejecting that evidence. That in turn might have led his Honour to find that there was a collateral agreement of the type alleged by Computer World, rather than a trust, as his Honour ultimately found. Computer World also submits that, had his Honour been aware that Mr Hasturk was available to give evidence, but had not been called by ICE 2000, he may well have been prepared to draw a Jones v Dunkel inference against ICE 2000, rather than refusing to do so. 24 Ground three contends that his Honour erred in failing to draw a Jones v Dunkel inference in relation to the non-appearance of Mr Hasturk, and also of Ms Serif Memis, who was another employee of ICE 2000 at the relevant time. For the reasons set out above in relation to the further evidence ground, a Jones v Dunkel inference in relation to Mr Hasturk could not have assisted Computer World. Such an inference would not overcome the legal impediment to its claim created by the High Court's decision in Equuscorp . 26 As part of ground three, Computer World claims that his Honour erred in drawing a Jones v Dunkel inference against it in relation to a particular witness who prepared the spreadsheets exhibited to Mr Yuvarajah's affidavits, but was not called ("Pinky"). However, "Pinky" seems to have played a more central role in preparing the accounting documents that were tendered on Computer World's behalf. It was open to his Honour to distinguish between "Pinky" and Ms Memis in that regard. 27 Ground six complains that his Honour misconstrued the nature of the evidence by equating "stock transfers" with "invoices" when these are in fact different concepts. His Honour dealt with this issue at [24] of his reasons for judgment. Regardless of whether stock was transferred from Computer World to ICE 2000 for on-sale to customers, or for display purposes, the transaction and transfer of stock was evidenced by Computer World's "stock transfer" documents. These stock transfers were at times referred to as "invoices", which is effectively what they were, but the debate is somewhat sterile, and merely involves semantics. There is nothing to suggest any error of the kind alleged in his Honour's reasons. 28 Ground seven complains that his Honour misunderstood the nature of the evidence in that ICE 2000 was the only party in a position to generate invoices and associated documentation, and not Computer World. Once again, there is nothing in this point. His Honour was plainly aware of the distinction between Computer World's "stock transfer" documents, and the tax invoices generated by ICE 2000 for sales to customers. 29 Ground eight asserts that his Honour erred in finding for ICE 2000 on its claim pursuant to s 52 of the Trade Practices Act 1974 (Cth). In particular, it alleges that even assuming that Computer World engaged in misleading or deceptive conduct by representing that the security amount would be kept in a separate trust account in favour of ICE 2000, there was no evidence that ICE 2000 relied upon any such representation when Mr Hasturk handed over the cheque for $50,000. 30 There is some substance in this ground. Without Mr Hasturk's evidence, his Honour must have inferred reliance. There was little, if any, evidence upon which such an inference could be based. Mr Hasturk's evidence, if it were to be received, would tend to negate reliance because as he put it, he regarded the credit facility as nothing more than a formality. 31 The difficulty confronting Computer World in relation to ground eight is that it leads nowhere. His Honour found in favour of ICE 2000 primarily on the basis of breach of trust. No issue of reliance arises in relation to that cause of action. Any findings that he made in relation to the alternative claim under s 52 of the Trade Practices Act were dicta, as his Honour specifically noted at [88] of his reasons for judgment. The relief to which ICE 2000 was entitled in relation to its claim for breach of trust was exactly the same as the damages that might have been awarded under s 52. It follows that, irrespective of whether his Honour fell into error on this point, no appealable error is demonstrated. 32 Ground nine complains that his Honour erred in finding contrary to the evidence that Ms Gardner was at all material times the managing director of ICE 2000. Ms Gardner was the managing director from at least 1 April 2002, and possibly earlier, through to February 2003. By the time of the trial, she was a consultant. If his Honour erred in the manner alleged in this ground, it was an error of a minor kind. It did not infect his overall reasons for judgment with appealable error, and did not lead to an incorrect result. 33 Finally, ground ten complains that his Honour acted upon hearsay, particularly hearsay derived from the various affidavits of Ms Gardner. No objection was taken to those affidavits at the time that they were read. Subsequently, during cross-examination of Ms Gardner, counsel for Computer World purported to object to her affidavit evidence except for her analysis of business records which was conceded to be appropriate and unobjectionable. The hearsay objection was never properly particularised, and the matter was never thereafter pursued. This ground cannot succeed. 34 It follows that the application for leave to rely upon further evidence will be refused, and the appeal itself dismissed. The appellant must pay the respondent's costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg Associate: Dated: 16 June 2006 Counsel for the Appellant: Mr H.A. Aizen Solicitor for the Appellant: Andma Legal Pty Ltd Counsel for the Respondent: Mr A.R. Kirby Solicitor for the Respondent: Tony Hargreaves & Partners Date of Hearing: 14 June 2006 Date of Judgment: 16 June 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/752.html


case_text: This submission, despite its apparent force, nonetheless faces several difficulties. Even if it be assumed that Mr Hasturk's evidence may have led his Honour to accept Mr Yuvarajah's account of what had occurred, the legal consequences of accepting that evidence would still be problematic. On one view of Mr Hasturk's evidence, the $50,000 was paid to be held for a special purpose. It would therefore fall within the principles developed by the House of Lords in Barclays Bank Ltd v Quistclose Investments Ltd [1968] UKHL 4 ; [1970] AC 567 at 580-82 per Lord Wilberforce, and in Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164. Under those principles, the $50,000 would be trust money, as his Honour in fact found.


case_title: Twinsectra Ltd v Yardley [2002] UKHL 12 ; [2002] 2 AC 164


case_outcome: applied

case_text: More importantly, Mr Hasturk's evidence would have to overcome the difficult legal hurdle created by the High Court's judgment in Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 218 CLR 471 at [32] - [36] . In that case, the respondents alleged that the "operative agreement" was not contained in a written loan agreement, but was reached earlier, and was wholly oral. Yet it was not said that the written agreement should be rectified. Nor was it said that a defence of non est factum was available, or that the agreement was executed by mistake, or that its execution was procured by misrepresentation. 19 The High Court explained why the law does not permit reliance upon a collateral agreement of the type alleged in circumstances where a written agreement has been executed. First, this ensures that the legal rights and obligations of the parties turn upon what their words and conduct would reasonably be understood to convey, and not upon actual beliefs or intentions. Secondly, in the nature of things, oral agreements will often be disputable. Resolving such disputes can be difficult, time consuming, expensive and problematic. As a consequence, where parties enter into a written agreement, courts will generally hold them to the obligations which they have assumed by that agreement. The obligations of written agreements between parties cannot simply be ignored or brushed aside. 20 The High Court went on to state some general principles. It noted that some contracts are alleged to have been partly oral, and partly written. In such cases, evidence as to the oral terms can be given, but not if those terms contradict the terms of the written agreement. 21 Turning back to the present case, it is far from clear just how Computer World put its case at first instance. On one view, it submitted that the credit facility was nothing more than an acknowledgement of a loan, akin to a receipt. Unfortunately for Computer World, the credit facility simply does not read that way. Indeed, Mr Hasturk regarded it as a contract, albeit "a formality". Nor does the credit facility read as though it contains the terms of a contract that is intended to be partly written and partly oral. Even if it did, the supposed oral agreement between Mr Yuvarajah and Mr Hasturk would directly contradict the written term in paragraph one of the document that the security amount be deposited on trust for ICE 2000. I am unable to accept Computer World's submission that, in some way, it impliedly sought rectification of the written agreement before McInnis FM. Mr Yuvarajah's reference to a "mistake" does not, in context, suggest that any such application was being made. In accordance with the principles so clearly enunciated in Equuscorp (and also stated in earlier cases such as Hoyts v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 and BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266), contradiction of a written term, absent rectification, cannot be permitted. 24 Ground three contends that his Honour erred in failing to draw a Jones v Dunkel inference in relation to the non-appearance of Mr Hasturk, and also of Ms Serif Memis, who was another employee of ICE 2000 at the relevant time. For the reasons set out above in relation to the further evidence ground, a Jones v Dunkel inference in relation to Mr Hasturk could not have assisted Computer World. Such an inference would not overcome the legal impediment to its claim created by the High Court's decision in Equuscorp .


case_text: Turning back to the present case, it is far from clear just how Computer World put its case at first instance. On one view, it submitted that the credit facility was nothing more than an acknowledgement of a loan, akin to a receipt. Unfortunately for Computer World, the credit facility simply does not read that way. Indeed, Mr Hasturk regarded it as a contract, albeit "a formality". Nor does the credit facility read as though it contains the terms of a contract that is intended to be partly written and partly oral. Even if it did, the supposed oral agreement between Mr Yuvarajah and Mr Hasturk would directly contradict the written term in paragraph one of the document that the security amount be deposited on trust for ICE 2000. I am unable to accept Computer World's submission that, in some way, it impliedly sought rectification of the written agreement before McInnis FM. Mr Yuvarajah's reference to a "mistake" does not, in context, suggest that any such application was being made. In accordance with the principles so clearly enunciated in Equuscorp (and also stated in earlier cases such as Hoyts v Spencer [1919] HCA 64 ; (1919) 27 CLR 133 and BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266), contradiction of a written term, absent rectification, cannot be permitted.


case_title: BP Refinery v Hastings [1977] HCA 40 ; (1977) 180 CLR 266


case_text: I would refuse to grant leave in respect of those grounds which require leave. The test for whether leave to appeal is granted or refused is well established: Décor Corp v Dart Industries Inc (1991) 3 FCR 397 at [9]. I am of the opinion that none of them has any reasonable prospects of success. The Federal Magistrate's decision is not attended by sufficient doubt to warrant it being reconsidered by the Federal Court. No substantial injustice would result from my refusal to grant leave. It is not "expedient in the interests of justice" to allow these new grounds: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348 at [6] .


case_title: H v Minister for Immigration and Multicultural Affairs [2000] FCA 1348


case_text: The first and last of these require leave to be raised as they are not raised below. Again they are not particularised and the appellant did not advance any before me. I am satisfied that the Tribunal fully considered the appellant's claims and the material before it. I find that they are without merit. As to bias the applicant has not met the requirement that such an allegation be firmly and distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia Le Geng (2001 [2001] HCA 17 ; 205 CLR 507. No jurisdictional error has been made out. 17 In the fourth ground the appellant alleges that the Tribunal's decision was not based on rational and logical foundation. The Federal Magistrate correctly found that the Tribunal's decision was based on the paucity of detail and information, such that the Tribunal was unable to be satisfied that the appellant has a well-founded fear of persecution within the meaning of the Convention. This ground is not made out. 18 Lastly, the appellant contends that the Federal Magistrate did not fully consider the information provided. Again no particulars are provided. A reading of his Honour's reasons dispels such a ground. The appellant appeared before the Court assisted by an interpreter in the Mandarin language. He was invited to make oral submissions and did so speaking from a prepared document. These submissions were but a repetition, without particulars, of the grounds of appeal. There is nothing in the material before me to support such a ground.


case_text: The Tribunal, in my opinion, complied with its statutory obligations under the Act to invite the appellant to a hearing. When the appellant failed to appear at the hearing the Tribunal decided to exercise the power under s 426A(1) of the Act and proceeded to make a decision without taking any further action to allow the appellant to appear before it. No error resulted in the Tribunal proceeding in this manner: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [14] - [15] ; Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 ; (2006) 154 FCR 365 at [135] per Allsop J.


case_text: The Federal Magistrate considered the second ground outlined by the appellant and held that it was not information but rather the inability of the Tribunal to be satisfied that the applicant fulfilled the criteria for grant of a protection visa which was the basis of the decision of the Tribunal. The Tribunal did not rely on "information" for the purposes of s 424A: SZECI v Minister for Immigration and Multicultural Affairs [2005] FCA 1201 at [24] . Accordingly, both grounds for review were rejected by the Federal Magistrate. 10 The notice of appeal raises the following unparticularised grounds: 2. I was not given an opportunity to explain my case. 3. The Tribunal failed to consider my claims. The Tribunal had bias against me and did not consider my application according the s. 91R of the Migration Act 1958 . 4. The Tribunal's satisfaction that I am not a refugee was not based on a rational and logical foundation for this belief. 5. Federal Magistrates court did not fully consider the information provided and refused my application. (Transcribed from the original without alteration). 11 There are before me four grounds of appeal. I will adopt the paragraph numbering in the Notice of Appeal.


case_title: VNAA v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407


case_text: It is not apparent that the Full Court's judgment in the Lardil Peoples' case was drawn to the attention of either Marshall J or the Full Court in Murray's case. That does not mean, in my opinion, that the two Full Court decisions are irreconcilable. A proceeding under the AD(JR) Act is not a "proceeding" for the purposes of s 85A of the Native Title Act . In Brownley v Western Australia (No 2) [1999] FCA 1431 ; (1999) 95 FCR 172 , Lee J had reached just such a conclusion (at para 21). More recently, in O'Mara v Minister for Lands (2008) 167 FCR 145 , Reeves J reached a like conclusion. That does not mean that it is impermissible, in relation to the exercise of the discretion conferred by s 43 of the Federal Court of Australia Act , to take into account the "spirit" of s 85A. That is what I propose to do and it seems to me that, sitting in the original jurisdiction, I am in any event bound by Murray's case so to do. Taking that consideration into account is influential but certainly not determinative in this particular case.


case_text: Even in federal judicial review proceedings unconcerned with the Native Title Act , costs do not invariably follow the event. Duncan v Chief Executive Officer, Centrelink (No 2) [2008] FCA 667 (Finn J) offers a recent example. In that case, (at para 4) his Honour observed: Notwithstanding the ordinary principle of costs following the event, there are two considerations of potentially present relevance of which account properly can be taken in justification of a departure from that principle. These are the reasonableness of the applicant in bringing the application and where the respondent, as in this case, is a public authority, the general importance both of the clarification of the law for such an authority and of securing proper compliance with it: see eg Perrett v Commissioner for Superannuation (1991) 29 FCR 581 at 594; see also Wilderness Society Inc v Hon Malcolm Turnbull, Minister for Environment and Water Resources [2008] FCAFC 19 at [7] . 26 In this case, the Applicants did reasonably bring the judicial review proceeding. QWI was not a party charged with the administration of the registration of ILUAs under the Native Title Act . Its interests though could hardly be described as private. It is an emanation of the State of Queensland specifically charged with the construction of a project considered necessary for the supplementation of the water supply in South East Queensland. It had a very particular public interest in the due administration and construction of the provisions governing the registration of an area agreement in the Native Title Act . In that regard, and in the face of a submission by QWI to the contrary, the Applicants have at least secured this Court's guidance as to matters which the Registrar and delegates can and should take into account when deciding a registration application. 27 The factors for and against the making of an order for costs as sought by QWI are certainly not all one way. On the balance, in my opinion, in the particular circumstances of this case, there should not be an award of costs in favour of QWI against the Applicants. In voicing that opinion, I have taken into account whether, if not appropriate to award QWI all its costs, some percentage order might alternatively be made. 28 The further order that I make in the proceedings is therefore that there be no order as to costs, either in respect of the costs of the First Respondent or in respect of the costs of the Second Respondent. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 2 October 2008 Counsel for the Applicants: Mr Balzamo Solicitor for the Applicants: Black & Co Lawyers Solicitor for the First Respondent: Holding Redlich Lawyers Counsel for the Second Respondent: Ms Bowskill Solicitor for the Second Respondent: McCullough Robertson Lawyers Date of Hearing: 1 October 2008 Date of Judgment: 2 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1479.html


case_text: On 1 October 2008, the Court dismissed an application by the Applicants under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (AD(JR) Act) for an order of review in respect of a decision by the First Respondent, a Delegate of the Native Title Registrar (the Delegate), made on 14 April 2008 to register an Indigenous Land Use Agreement (ILUA) known as the Traveston Crossing Dam Indigenous Land Use Agreement on the register of Indigenous Land Use Agreements (the Register) pursuant to s 24CJ of the Native Title Act 1993 (Cth) (Native Title Act): Fesl v Delegate of the Native Title Registrar [2008] FCA 1469. The Delegate did not take an active part in the proceedings. Instead, and properly in the circumstances, she adopted the stance of abiding the order of the court and not wishing to be heard on any issue save as to costs. Upon the dismissal of the judicial review proceedings, the Delegate, through her solicitors, informed the Court that she sought no order as to costs against the Applicants. 2 The Second Respondent, Queensland Water Infrastructure Pty Ltd (QWI), did seek an order that the Applicants pay its costs of and incidental to the judicial review application. The Applicants had correctly identified QWI as a necessary respondent party in the proceedings. QWI took an active role as contradictor. 3 In deference to the helpful and comprehensive submissions in respect of costs made on behalf of QWI by Ms Bowskill of Counsel and by Mr Balzamo of Counsel on behalf of the Applicants, I did not make orders in respect of costs on 1 October 2008, but rather reserved my decision until today. It was common ground as between QWI and the Applicants that, strictly, the judicial review application was a proceeding under the AD(JR) Act not under the Native Title Act . There was though considerable debate as to the relevance, if any, in relation to the awarding of costs, of s 85A of the Native Title Act . That section provides as follows: Section 85A Costs (1) Unless the Federal Court orders otherwise, each party to a proceeding must bear his or her own costs. Unreasonable conduct (2) Without limiting the Court's power to make orders under subsection (1), if the Federal Court is satisfied that a party to a proceeding has, by any unreasonable act or omission, caused another party to incur costs in connection with the institution or conduct of the proceeding, the Court may order the first-mentioned party to pay some or all of those costs.


case_text: As to that discretion "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 For the State of Tasmania [1956] HCA 48 ; (1956) 95 CLR 460 , at 477. The discretion to award costs is nonetheless broad and unfettered, but it must be exercised judicially, not whimsically or capriciously, and that usually means that the proper exercise of the discretion will be that costs should follow the event.


case_text: The Applicants drew my attention to an unreported decision of Marshall J in Murray v Registrar of the National Native Title Tribunal [2003] FCA 45 and to the appellate sequel to that decision, Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 ; (2003) 132 FCR 402. Murray's case had a similar background to the present in the sense that it was an unsuccessful application pursuant to the AD(JR) Act for the Court to set aside a decision of a delegate of the Registrar of the National Native Title Tribunal to register an ILUA. At first instance (at para 9 and para 10), Marshall J stated: 9 Although not formally a matter arising under the Native Title Act , the proceeding was centrally concerned with provisions of that legislation. I therefore consider it appropriate to take into account the legislative intention that matters which raise for consideration the correct interpretation of the Native Title Act may be considered in a different context from what would otherwise ordinarily apply. In my view, this case is one where it is appropriate "to follow the spirit of subs [85A(1)] of the Act"; see The Ngalakan People v Northern Territory of Australia [2003] FCA 23 at [16] , per O'Loughlin J. 10 Having regard to the public interest in determining the correct construction of the provisions of the Native Title Act which deal with ILUAs, I consider it to be in the interests of justice that no costs orders be made against Ms Murray, other than in one respect; in my opinion, Blairgowrie should have its costs in respect of its application to be joined as a party to the proceeding. That application was opposed by counsel for Ms Murray. In my view, that opposition was unreasonable, having regard to the fact that Blairgowrie had an obvious interest in the outcome of the proceeding and also having regard to the absence, at that stage, of a "contradictor" in the matter to press for a different outcome to that contended for by Ms Murray.


case_title: Murray v Registrar of the National Native Title Tribunal [2003] FCAFC 220 ; (2003) 132 FCR 402


case_text: In Northern Territory v Doepel (No 2) [2004] FCA 46 , having referred to Murray's case both at first instance and on appeal, Mansfield J observed (at [17]): [17] It would clearly be remiss to adopt a rule, that where an application under legislation other than the Act involves the construction of provisions of the Act, generally speaking at first instance no order for costs should be made. Section 85A of the Act does not directly apply. Each case must be considered on its own merits and in its particular circumstances. I accept that the Court should have regard to the 'spirit' of s 85A in a matter such as the present. It concerned the validity of a function undertaken by the Registrar under the Acct, and involved consideration of the particular sections directly how that function was to be conducted. I have therefore included some consideration in the exercise of my discretion. I respectfully agree with His Honour's observation. 16 In the circumstances of that case, Mansfield J considered that costs should nonetheless follow the event. 22 I accept that the judicial review proceeding, although not under the Native Title Act , did involve a construction of important provisions of that Act relating to ILUAs. As in Doepel (No 2) , there is a public importance in some of the issues which arose in this case and those issues were novel. Further, it was, with respect, properly conceded by QWI that the judicial review application could not be described as frivolous or vexatious. There was an apparent disparity of resources available as between QWI and the Applicants. QWI (which is wholly owned by the State of Queensland) appeared by senior and junior counsel. The Applicants appeared by their solicitor, save for 1 October 2008 when junior counsel appeared to make submissions in respect of costs. My impression is that, within the limits of available resources, the Applicants prosecuted this application with due diligence. It is true, as QWI submitted, that the ground in respect of which the Applicants enjoyed a degree of forensic success, ground 2, was added relatively late in the course of proceedings and at a time when the bulk of QWI's preparatory costs must necessarily be regarded as having been incurred. Nonetheless, the addition of the ground did not extend the hearing of the application beyond one day. 23 The Applicants found themselves in a position whereby, because of what I have held to be an overly narrow conception on the part of the Delegate of what she could take into account in making a registration decision, they did not have the benefit of a considered decision, albeit from an administrative official, in respect of the worth of their submission that the "CHIMA" provisions found in Sch 3 to the Agreement had the effect, having regard to s 24CE(1) of the Native Title Act and the ACHA, of making that agreement unlawful either in whole or in part and hence incapable in that form of registration under s 24CJ of the Native Title Act . The issue was a novel one. It is also important to remember that a consequence of the registration of an ILUA is that future acts under such an agreement which affect native title are valid. A judicial review proceeding either under the AD(JR) Act or otherwise, challenging a registration decision on this basis was the only alternative left to the Applicants. The native title which they claimed to have would otherwise would subject to such effects as the dam building project may visit upon it. In making the observation, I do not ignore that none of the Applicants is a registered claimant much less that none has the benefit of a determination of native title in respect of any part of the project area. 24 The proceedings are nonetheless not wholly in the public interest. In a sense, the Applicants were seeking to preserve a private, albeit group, claim in respect of native title. Further, I do not ignore a remark by the Delegate in her reasons that one factor at least in the Applicants' opposition to the agreement was environmentally based, rather than based on a claim to native title alone.


case_title: O'Mara v Minister for Lands (2008) 167 FCR 145


case_text: A comprehensive discussion of the principle in respect of the awarding of costs in this Court pursuant to the power conferred by s 43 of the Federal Court of Australia Act is to be found in the joint judgment of Black CJ and French J (as the Chief Justice then was), in Ruddock v Vadarlis (No2) (2001) 115 FCR 229 at 234, para 9 at et seq. At para 11 in the joint judgment in the Vadarlis (No 2) the following observations are made: 11 Within the general discretion of the courts to award costs it is accepted by decisions in both Australian and English jurisdictions that: • Ordinarily costs follow the event and a successful litigant receives costs in the absence of special circumstances justifying some other order. • Where a litigant has succeeded only upon a portion of the claim, the circumstances may make it reasonable that the litigant bear the expense of litigating that portion upon which he or she has failed. • 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 parties' 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. See Hughes v Western Australian Cricket Association (Inc) & Ors (1986) ATPR 40-748 (at 48,136); approved by the Full Court in Queensland Wire Industries Pty Ltd v Broken Hill Co Ltd (1987) 17 FCR 211 (at 222). 10 QWI, unsurprisingly, adopted the position that costs should follow the event with the "event" being the dismissal of the application. 11 That usual, civil jurisdiction position normally governs the costs sequel to an unsuccessful judicial review application in federal jurisdiction. A like position prevails in respect of costs in judicial review proceedings in England and Wales: The White Book, 2006 Edn Vol 1 para 54.16.17. In neither jurisdiction is there a statutory intrusion into the general costs discretion such as is found in s 49 of the Judicial Review Act 1991 (Qld) .


case_text: QWI drew my attention to another decision of the Full Court, The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453. Materially in that case, Dowsett J, with whom in this regard French J agreed, had occasion to consider the meaning of the word "proceeding" for the purposes of the s 85A of the Native Title Act . His Honour reached the following provisional conclusion (at [157]): 157 If this construction is correct then with one possible exception, it follows that a "proceeding" for the purposes of s 85A is a proceeding within the jurisdiction conferred by s 81 and does not apply to proceedings within the jurisdiction conferred by s 213(2). The possible exception to this arises when a determination of native title is necessary as part of proceedings pursuant to the latter subsection. The Federal Court is then obliged to follow the procedure prescribed in the Act. See s 213(1. However that exception has no application for present purposes because the appellants have not sought to establish native title.


case_text: The way the issue arose in that case moved the court to invite the parties to make submissions in respect of that particular provisional conclusion. Submissions were made but did not result in any change to that conclusion: see The Lardil Peoples v State of Queensland [2001] FCA 464.


case_text: In De Rose v South Australia (No 2) [2005] FCAFC 137 at [8] - [10] , Wilcox, Sackville and Merkel JJ held that s 85A(1) is intended to remove any ground for anticipation or expectation that, unless cause were shown for another order, costs would follow the event. Nonetheless, s 85A acknowledges that the Court has an overriding discretion as to costs and does not expressly impose a limit on the scope of the discretion. They said that there was no requirement that a threshold condition be met before the Court is empowered to make a costs order. Thus, the exercise of the discretion under s 85A(1) does not require a finding of a fact or the formation of an opinion that there has been unreasonable conduct or that special circumstances exist.


case_text: However, they held that s 85A(2) of the Act puts beyond doubt the extent of the Court's discretion in cases where a party has acted unreasonably. That provision does not control or limit the discretion available to the Court under s 85A(1). Their Honours held that the matters to be taken into account in making a costs order were left to the Court's discretion, which had to be exercised judicially. They said that the starting point was that each party would bear its own costs unless the Court determined that it was appropriate in the circumstances to make an order for costs. They emphasised that the starting point was not that costs ordinarily followed the event. Their Honours followed what Lee J had said at first instance in Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305 at 311-312 [31] - [37] . A similar approach has been taken in McKenzie v South Australia [2006] FCA 891 at [8] per Finn J and Reid v South Australia [2007] FCA 1479 at [53] - [54] per Finn J. In Reid [2007] FCA 1479 at [54] Finn J said that it is not proper to use the power to award costs to punish either a successful or unsuccessful party or to use it to operate as a deterrent to other would-be applicants.


case_text: It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed. 25 There is no absolute rule that the sole purpose of a costs order made under a provision such as s 43 of the Federal Court of Australia Act is to compensate one party at the expense of another under the Judicature Act system: Oshlack 193 CLR at 89 [43]. The general power conferred by s 43 is not to be narrowly construed. However, where there has been some delinquency on the part of an unsuccessful party, the Court has power to order costs against that party, and sometimes on a scale greater than party/party costs: Oshlack 193 CLR at 89 [44]; Probiotic [2008] FCAFC 5 at [48] .


case_text: It is inappropriate to read a provision, such as s 43(2) of the Federal Court of Australia Act , which confers jurisdiction on, or grants powers to, a court, by making conditions or imposing limitations which are not to be found in the words used: Oshlack v Richmond River Council [1998] HCA 11 ; (1998) 193 CLR 72 at 81 [21] per Gaudron and Gummow JJ; see also Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 421. The section contains no positive indication of the considerations upon which the Court is to determine by whom or to what extent costs to be paid. The power must be exercised judicially, not arbitrarily or capriciously or so as to frustrate the legislative intent. In the absence of some positive indication of the considerations on which a grant or refusal of consent is to depend, the discretion is 'unconfined except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view' as Dixon J said in Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492 at 505; see also The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aicken and Wilson JJ; Oshlack 193 CLR at 81 [22]; Probiotic Limited v The University of Melbourne [2008] FCAFC 5 at [47] in my judgment, with which Finn J at [1] and Besanko J at [82] agreed.


case_text: The power to order costs under s 85A(2) is expressed in similar, but not identical terms, in the provisions of s 824(2) of the Workplace Relations Act 1996 (Cth) which were considered by Young J in Paras v Public Service Body Head of the Department of Infrastructure (No 3) [2006] FCA 745 ; (2006) 152 FCR 534. He gave that section a wide construction on its plain and natural meaning: Paras 152 FCR at 538 [16]. But Young J held that the applicant for the order had to satisfy the Court that, relevantly, the other party's conduct 'involved unreasonable acts or omissions that caused the [party applying for the order] to incur costs': Paras 152 FCR at 539 [19]. 28 At the hearing of the costs argument, counsel for the Birri-Gubba People argued that in preparing a matter for trial, the litigious landscape often changes. He pointed to the fact that it could be expected in ordinary litigation that some issues which were hotly contested at an interlocutory stage might fall away by the time of the trial as minds became focused on the real issues. And, he pointed out that since at least March 2007 all parties had been on notice that the description of the claim group would have to change in light of the latest anthropological research obtained by Birri-Gubba People as to the correct identity of the persons who could claim native title over the relevant lands and waters in the vicinity of Cape Upstart. Counsel for the Birri-Gubba People also argued that there were practical problems with the funding available to the land council. 29 The land council is presently the representative body under the Native Title Act . It was entitled to prioritise and make determinations as to the funding, staff, resources and complexity of this matter as one of a number for which it was responsible. Counsel argued that there was no basis on which the Court's discretion under s 85A of the Native Title Act was enlivened to warrant the making of a costs order against the Birri-Gubba People. He argued that the jurisdiction to award costs under s 85A should be only be exercised in circumstances where there were special or unusual features of the case, or where there had been conduct in the nature of an abuse of process, improper purpose, contempt or unreasonableness. In essence, that argument sought to confine the Court's power to award costs to circumstances which would warrant an order for costs on an indemnity basis in ordinary civil litigation (that is, in litigation where the Court's power to award costs does not have the constraint of s 85A(1) of the Act).


case_title: Probiotic Limited v The University of Melbourne [2008] FCAFC 5


case_text: The object of the Court is to decide the rights of the parties in and to resolve controversies. It is not to punish parties for mistakes they make in the conduct of their cases. Thus, the courts have developed principles as to when amendments may be made to pleadings to raise or change the form of the litigation, even at very late stages, provided that the other party can be compensated by an appropriate order for costs: Queensland v JL Holdings Pty Limited [1997] HCA 1 ; (1997) 189 CLR 146 at 152-155 per Dawson, Gaudron and McHugh JJ. 37 I consider that it was unreasonable of the Birri Gubba People to present a total of five lists, none of which, on final consideration, produced even one person whom they wished to call. The Birri Gubba People were represented by lawyers and the land council at all times. They were not in the position of litigants in person unable to make informed forensic judgments or to properly present their case to the Court. On the evidence before me, no proper, considered attention was given to the inclusion of any of the persons in the five lists that were provided by the Birri Gubba People for the purposes of identifying whose evidence ought be preserved. This is evident from the fact that the end result is that no such witness has been identified, although one person who was clearly an appropriate witness, has unfortunately passed away in the meantime. 38 On a number of occasions in open court the state of preparation of the land council was disclosed as being in disarray. I have no doubt that there was a sincere attempt to identify persons whose evidence might need to be taken on a number of occasions. But the attempt does not appear to have been undertaken by a lawyer familiar with litigation or with a view to determining whether or not any of those persons ought to be called to give evidence and what evidence he or she could give until, ultimately, the forensic decision was taken not to call any of them.


case_title: Reid v South Australia [2007] FCA 1479


case_title: The Queen v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45


case_title: Ward v Western Australia [1999] FCA 580 ; (1999) 93 FCR 305


case_title: Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21 ; (1947) 74 CLR 492


case_text: Subsequently, however, the High Court has held that despite having the burden of proof, the taxpayer is entitled to know the basis on which the Commissioner has made an assessment. In Bailey v The Commissioner of Taxation of the Commonwealth of Australia [1977] HCA 11 ; (1977) 136 CLR 214, the High Court discussed the Commissioner's obligation to provide particulars in the context of s 260 of the ITAA. Barwick CJ observed, at 217 - 218: The taxpayer should be told the taxable facts. This inevitably, in my opinion, requires the Commissioner to inform the taxpayer of the operation of s 260 which has warranted the adoption of his view of the taxable facts. This involves the identification and disclosure of the contract, agreement or arrangement which has been treated as avoided by s 260 .... [T]he Commissioner must, in my opinion, be specific in his identification of the contract, agreement or arrangement ... which justifies the amount of the assessment. 14 In the same case Aicken J commented at 227: The purpose of particulars is to assist in the defining of issues and there is in my opinion no reason why in appropriate cases the Commissioner should not give particulars where they are necessary in order that both the appellant and the court may understand the basis upon which the assessment has been made. ... It is not in the interests of the proper administration of justice that, when the matter comes before the court, the appellant should have to speculate about, and adduce evidence to negate, every possible kind of agreement ... 15 In Bailey, the High Court did not regard the obligation to provide particulars as inconsistent with, or in any way compromising, the taxpayer's burden of proof. Rather their view was to the contrary. Gibbs J commented at 219 that: The fact that the taxpayer bears the onus of proving that the assessment is excessive makes it all the more necessary that he should be given particulars of the basis of the assessment. At 221 Mason J said that because the taxpayer has to prove that the Commissioner's assessment is excessive: ... the relevant facts in the appeal include the view of the facts on which the Commissioner has based his assessment, the manner in which he arrived at his assessment. These facts are not within the knowledge of the taxpayer; they are within the knowledge of the Commissioner. More recently, Greenwood J expressed a similar view in Clark v Commissioner of Taxation [2007] FCA 1426 at [37] . Jacobs J acknowledged in Bailey that particulars are essentially factual rather than legal, however his Honour recognised that for a request for particulars to be appropriately directed to the matter in dispute the issues must be sufficiently defined. At 221-2, his Honour made the following comment: ... when there are no sufficiently defined issues it is not always possible to obtain particulars of facts without first ascertaining whether those facts will be relevant to questions which may be raised. In the present case it is therefore necessary for the taxpayer and the Court to know the basis of the assessments.