case_text: Absent any other statutory provision touching on this issue, it would be necessary to determine whether s 8(c) of the Acts Interpretation Act 1901 (Cth) operates to preserve any rights or obligations acquired, accrued or incurred under s 178 of the old Act. However, reg 2.19 of Ch 7 of the Workplace Regulations is a statutory provision that touches on this issue. Regulation 2.19 provides as follows: '(1) Unless the contrary intention appears in a provision of: (a) the Act [ie the new Act but not including Schedule 1 or regulations made there under: reg 1.3] ; or (b) the Work Choices Act; or (c) regulations made under the Act or the Work Choices Act; the amendments made by the Work Choices Act do not affect the enforcement in a court of rights and obligations that arose under the pre-reform Act. (2) Subregulation (1) applies whether or not proceedings had been commenced in a court before the reform commencement.' The Court's attention was not drawn to any provision of the new Act, the Work Choices Act or any other regulations made under those Acts that discloses a contrary intention to reg 2.19. 87 Support for the above approach is to be found in CPSU v Telstra Corporation Ltd [2001] FCA 267 ; (2001) 107 FCR 93. In that case the Full Court gave consideration to an email which the managing director of the employer's employee relations group had issued to managers and team leaders at a time when redundancies were imminent. After referring to the 'important values' inherent in individual employment contracts, the email stated: 'Managers will be held accountable to support the values of the Company's preferred model of individual employment.' The email stopped short of telling managers and team leaders to discriminate against employees employed under awards or certified agreements in the redundancy process. 88 The employer in CPSU v Telstra contended, that as the email had not been circulated to all managers involved in the redundancy process, it was akin to a proposal or a declaration of intention and did not itself change the selection criteria for redundancy. The Full Court at [14] rejected that contention. It found that it was open to the primary judge to conclude, as his Honour had done, that the selection process for redundancy could be influenced by senior management and that many managers would understand the email to be an instruction to give employees on individual contracts more favourable treatment in the redundancy process. The Full Court further held at [15] that (a) at the date of the email, redundancies were imminent and there could be little doubt that the email was to be taken into account in respect of them and (b) the email refined the criteria for redundancy by requiring preference to be given to employees who had signed Australian Workplace Agreements. The Full Court concluded at [16] that in the circumstances the email constituted an instruction that employees employed under awards or certified agreements were to be discriminated against in the redundancy process. 89 In the present case I am satisfied that the process for approving leave, and in particular flex leave, for Commonwealth employees for 15 November 2005 was influenced by the DEWR Advice. In particular, as discussed below, I am satisfied that the process for approving leave in the case of employees working in ACS, ATO, DVA and DEST was affected by the DEWR Advice. The DEWR Advice was reasonably open to be understood, and was understood by Ms Godwin, Ms Ellison and Ms Leggett amongst others, as an instruction not to grant employees leave to cover participation in the Day of Protest. 90 For the above reasons I am satisfied that the circulation to Agencies of the DEWR Advice altered the position of Commonwealth employees, and in particular Commonwealth employees who were members of the CPSU, to their prejudice because it gave rise to a real risk that any requests made by them to take leave on 15 November 2005 for the purpose of attending the Day of Protest would not be considered according to the usual practices of their respective Agencies but by reference to a more restrictive criterion. As the admissions and evidence referred to below concerning the individual applicants reveal, that risk eventuated in the case of each of the individual applicants. However, so far as Ms Clements is concerned, I am satisfied that her application to take leave was subsequently reconsidered by reference to the appropriate criterion (see [105] below). 91 The Commonwealth accepted that the email sent by Ms Ellison on 14 November 2005 to all ATO employees (see [81] above) and the email sent on the same day by the Personnel Branch of DEST to all DEST employees (see [84] above) altered the position of employees in those agencies or threatened to have that effect. It contended, however, that as the only memoranda produced by ACS and DVA were circulated to senior managers, and not to employees of the Agency generally, the memoranda did not themselves alter the position of any employee to his or her prejudice or constituted a threat to do so. I observe that this contention appears to overlook the staff notice issued by Mr Killesteyn on 11 November 2005 (see [83] above). 92 I turn to the memorandum issued by ACS. As mentioned above, at the relevant time Ms Godwin was National Manager, Staffing in the ACS. Ms Godwin gave evidence that on 14 November 2005, after the DEWR Advice was brought to her attention, she caused an email to be sent on her behalf to all National Directors, National Managers and Regional Directors regarding the Day of Protest. That email, which was sent at 11:37 am and marked as of high importance, stated: 'Any leave being applied for specifically to participate in the National Day of Action should not be approved. This position is the official position of the Department of Employment and Workplace Relations.' On 10 November 2005 Ms Godwin had given what she described as 'quick and dirty' advice to the same effect to a manager who was concerned about an application made by Mr McGill to take a day's flex leave on 15 November 2005.


case_outcome: referred to

case_text: In my view the words 'rights' and 'obligations' in reg 2.19(1) carry the meaning that has been attributed to them in s 8(c) of the Acts Interpretations Act. In Esber v The Commonwealth [1992] HCA 20 ; (1992) 174 CLR 430 at 440 Mason CJ, Deane, Toohey and Gaudron JJ stated that s 8 protects anything that may truly be described as a right including inchoate or contingent rights. I conclude that the right of the applicants to invoke the jurisdiction of the Court to impose a penalty pursuant to s 178(1) of the old Act, and the obligation of the Commonwealth to pay any penalty so imposed, survived the enactment of the Work Choices Act.


case_outcome: cited

case_title: Kelly v Fitzpatrick [2007] FCA 1080

case_text: Regulation 2.14 of Ch 7 of the Workplace Regulations provides support for this conclusion. As Tracey J observed in Kelly v Fitzpatrick [2007] FCA 1080 at [7] , that regulation authorises a workplace inspector to institute a proceeding in respect of an alleged breach of a matter under the old Act. I note incidentally that the maximum penalties prescribed by the old Act for a breach of s 178 are the same as the maximum penalties now prescribed by the new Act under which s 178 has been renumbered s 719. 21 CPSU is an organisation registered under the WR Act and an 'industrial association' within the meaning of Pt XA of the old Act. It is affiliated to the ACTU which is the peak trade union body in Australia. 22 It is not contentious that the individual applicants are all employed under the Public Service Act 1999 (Cth) ('the PS Act') and are thus APS employees (s 22 of the PS Act, s 15 of the Customs Administration Act 1985 (Cth) and s 4A of the Taxation Administration Act 1953 (Cth)). The Commonwealth is their employer. Their respective Agency Heads, on behalf of the Commonwealth, have all the rights, duties and powers of an employer in respect of them (s 20 of the PS Act). For those employees who work in DVA and DEST respectively, their Agency Head is the Secretary of their Department. For those who work in the ACS and the ATO respectively, their Agency Head is the Head of their Statutory Agency (s 7 of the PS Act).


case_text: As indicated above, I have concluded that each of Mr McGill and Mr O'Connell was refused approval to take leave on 15 November 2005 because he proposed to attend the Day of Protest. I also accept that a threat was made to dock Mr McAninly's pay for the time that he spent at the Day of Protest because he attended the Day of Protest. However, despite the link discussed above between attendance at the Day of Protest and membership of an industrial association, I am satisfied that the relevant determinations made by officers of ACS, ATO, DVA and DEST respectively were not made because employees affected by the determinations were members of an industrial association. Rather the evidence shows that the immediate or operative reason for the determinations was the circulation of the DEWR Advice ( Maritime Union of Australia v CSL Australia Pty Ltd (2002) 113 IR 326 at [54]). The determinations were a direct consequence of the contravention of s 298K(1) that resulted from the circulation of the DEWR Advice. They illustrate how the DEWR Advice altered the position of Commonwealth employees who were members of CPSU to the employees' prejudice. The officers concerned felt obliged to ensure that their respective agencies complied with the DEWR Advice.


case_outcome: applied

case_text: In McIlwain v Ramsey Food Packaging Pty Ltd (2006) 154 IR 111 at [355]-[357] Greenwood J gave consideration to whether conduct that applied generally to employees might nonetheless be conduct undertaken for a prohibited purpose so far as some of those employees were concerned. His Honour at [355] said: 'Dismissal of employees for a prohibited reason within a group of employees some of whom may be dismissed for a non-prohibited reason does not remove the individual or bilateral character of the prejudicial conduct on the part of the employer as against that employee. It would be an odd thing if the statutory quality of contravening conduct in respect of some employees could be dissolved amongst a group and remedial entitlements otherwise available to the affected individuals thereby lost.' 114 I conclude that the DEWR Advice was issued because a significant number of Commonwealth employees were members of CPSU and, as a consequence, it was recognised within DEWR that many of them might wish to attend the Day of Protest. For the reasons given by Greenwood J in McIlwain v Ramsey Food Packaging Pty Ltd it is immaterial that the DEWR Advice might additionally have impacted on the positions of Commonwealth employees who were not members of an industrial association. Although the DEWR Advice did not in terms refer to membership of an industrial association, it was issued because of the CPSU membership of a significant number of Commonwealth employees.


case_outcome: followed

case_text: Second, if leave were granted to allow that additional ground, it is understood that the First Appellant would wish to now contend that that explanation provided by the Tribunal also fails to correctly record what transpired before the Tribunal. Her contention is that she did not object to the interpreter provided on the first two occasions but did object on the re-scheduled hearing. Leave to amend to raise a new ground may be refused where the new ground requires additional evidence to be adduced. See: NAJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 134 at [77] , [2005] FCAFC 134 ; 147 FCR 51 at 68. 19 Not only do these two factors indicate that leave to amend should be refused; they also support a conclusion that no prejudice has been occasioned to the First Appellant by the learned Magistrate not considering the " main application ." Even had the " main application " been considered, it is not considered that there is any real prospect that the outcome would have been any different. Any real prospect of success would depend upon rejecting the account given by the Tribunal. There was no transcript of the Tribunal proceedings available before the Federal Magistrate and, in the absence of a transcript, it is unlikely that the account given by the Tribunal would have been rejected by that Court or, for that matter, this Court. 20 A further issue which at one stage arose for resolution was the fate of the Appellant husband's application. Had this issue been pursued, questions would have arisen as to whether the Tribunal and the Federal Magistrates Court should have entertained that application, being an application advanced by the husband for the first time before the Tribunal.


case_text: Tribunal ignored the risk factors that are conventional related the couple has to live in the Indian community after accepting the Sunni Muslim laws to avoid harassment, threats, kidnapping fear of rape from the hooligans, thugs and fear of getting killed . 8 The difference between the " main application " and the Amended Application was explained by the First Appellant this morning as being: (i) the fact that the Amended Application focussed attention more upon her husband's case than her own; and (ii) the fact that the " main application " raised as a discrete ground a failure to provide an interpreter and the absence of any such ground in the Amended Application . 9 A difficulty confronting the First Appellant is the statement by the learned Magistrate in her Honour's reasons that " [t]he Applicant wife confirmed that she relied upon an amended application filed on 27 February 2007 ". In the absence of any evidence upon which any contrary conclusion should be reached, this statement of the Federal Magistrate should be accepted. Indeed, even in the absence of any such statement, it would otherwise have been assumed that consideration would have been given by the Federal Magistrates Court to the content of what purported to be an " Amended Application ". 10 The First Appellant before this Court asserted, however, that the Federal Magistrate presented her with no choice other than to proceed upon the basis of her Amended Application. She asserts, as it is understood, that the Federal Magistrate indicated that in the absence of a transcript as to what occurred before the Tribunal, the " main application " could not succeed or be further entertained. No objection was rightly taken by the Respondent Minister to these statements made by the First Appellant being regarded as evidence as to what transpired before the Federal Magistrates Court. If accepted, the statements of the First Appellant do not challenge the statement made by the learned Magistrate; those statements merely provide an explanation as to why she " confirmed " her reliance upon the Amended Application . 11 The primary submission of the Respondent Minister was that there was no reason to not accept as conclusive the decision made by the Appellants as to the case they sought to advance before the Federal Magistrates Court. That submission is accepted. 12 In accepting the submission, however, it should be noted that it is of fundamental and obvious importance that there is certainty as to the case sought to be advanced for resolution. Unrepresented litigants present special difficulties both by reason of their being unrepresented and by reason of considerable uncertainty as to the effect of what are frequently badly drafted grounds of review or appeal and, it is suspected, inadequate or poor or erroneous advice. Difficulties being confronted may include a lack of familiarity with Court procedures and understandable stress and tension occasioned by attendance in court and the importance of the case being advanced. A lack of certainty at the outset may only occasion subsequent confusion or be productive of unnecessary later argument. 13 The acceptance of the Minister's primary submission necessarily dictates that the Notice of Appeal to this Court, as presently drafted, should be dismissed. The application as made to the Federal Magistrates Court in reliance upon the " amended application " was the application then in fact relied upon and then resolved. There has been no erroneous " dropping " of any application. Even had a ground of appeal been drafted which attempted to impugn the conclusions reached in respect to the challenge made by the " amended application ", any such attempt, it is considered, would also have been rejected. The conclusions of the Federal Magistrate were: [9] The Applicant wife made no meaningful submission in support of any of the paragraphs referred to in her amended application as disclosing any error capable of review by this Court. It is plain that the amended application is a disagreement with the findings and conclusions of the Tribunal and therefore seeks merits review which this Court cannot undertake. ... [16] The findings and conclusions made by the Tribunal were open to it on the evidence and material before it and for which it provided reasons. [17] The decision of the Tribunal is not affected by jurisdictional error and is therefore a private clause decision. Accordingly, pursuant to s.474 of the Migration Act 1958 (Cth) this Court has no further jurisdiction to interfere. These conclusions reached by the Federal Magistrate in respect to the " amended application " were conclusions open to her Honour and disclose no error. 14 Separate consideration, however, has been given to the oral explanation provided to this Court this morning by the First Appellant as to the manner in which the Federal Magistrates Court proceeded to resolve the Amended Application and not the " main application ". The " main application ", it has been concluded, was not advanced before the Federal Magistrate for resolution. But, with one possible exception, it is not considered that any different conclusion would have been reached even had it been pursued. Paragraphs (1) to (4) of the " main application " and ground (6) clearly invited the Federal Magistrate to impermissibly revisit the factual merits of the decision entrusted to the Tribunal. And, in any event, those grounds were largely embraced by the issues in fact resolved by the Federal Magistrate. A reading of the decision of the Tribunal discloses no " prejudice " or " bias ". A reading of the decision discloses nothing other than a careful and detailed consideration of the evidence and submissions raised for resolution. 15 The one exception is the contention that the alleged failure to provide an interpreter in some manner vitiated the proceedings before the Tribunal. A failure to provide an interpreter potentially could have been framed in terms of a denial of procedural fairness. The Respondent Minister did not oppose a course whereby that contention was to be now resolved by this Court. On appeal this Court can entertain a ground not previously relied upon. It can do so, in summary form, where it is " expedient in the interests of justice to do so ": VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 at [46] per Kiefel, Weinberg and Stone JJ. 16 Any possible prejudice to the First Appellant occasioned by the Federal Magistrates Court not resolving, for whatever reason, the contention as to the failure to provide an interpreter could be addressed by allowing the First Appellant to now raise a ground of appeal in the form of that previously set forth in her " main application ", namely a ground that the decision of the Tribunal was vitiated by a: Fail[ure] to provide an interpreter who understood her language and continued with the second interview even after the Applicant complained to the Member that she had difficulties in understanding and clearly answering to, the Member's questions through the interpreter. That application was made orally by the First Appellant. 17 The application to amend, however, is rejected for either of at least two reasons. First, it is considered that the ground is without substance. The reasons for decision of the Tribunal record: CLAIMS AND EVIDENCE The Tribunal has before it the Department's file relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources. The applicants appeared before the Tribunal as now constituted on 12 May 2006 to give evidence and present arguments. An Urdu-speaking interpreter was present. However the Tribunal adjourned the hearing because that interpreter's language abilities were inadequate. The hearing resumed later that day with another interpreter. Unfortunately, that interpreter also proved to be inadequate. The hearing was then re-scheduled to, and was completed on, 31 May 2006. [The First Appellant] expressed no objection to the new interpreter and the Tribunal was satisfied that his professional skills were of the required standard to enable the hearing to be conducted. This account by the Tribunal would indicate that any prejudice asserted by the First Appellant is without substance.


case_text: seems that a chattel which is brought onto land may: (a) remain a chattel; (b) become a fixture; or (c) become part and parcel of the land itself. I am aware that the third category has not yet been authoritatively recognised in Australia. It was approved by the House of Lords in Elitestone Ltd v Morris [1997] 1 WLR 687 at 690-691 (noted at (1997) 71 ALJ 820 and see Wessex Reserve Forces & Cadets Association v White [2005] 3 EGLR 127) and by the New Zealand Court of Appeal in Auckland City Council v Ports of Auckland Ltd [2000] 3 NZLR 614 at [74] [75]. Consider the bitumen, line paint and other materials that may be brought onto land and used in the construction of a road or carpark. They cannot be removed and converted back into worthwhile chattels. A similar observation may be applicable to a house that can be removed only by being destroyed. It is odd to classify them as chattels that are affixed to the land. I need not decide whether the third category forms part of Australian law.


case_text: second basis of the Court's jurisdiction is this: such claims as the Administrators assert on behalf of NFD depend upon their status as DOCA administrators under Pt 5.3A of the Act, and those claims, either alone or together with Vopak's own claim, constitute a "matter" arising under a law of the Commonwealth Parliament: see Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at [135] [147]; Austral Pacific Group Ltd (in liq) v Airservices Australia [2000] HCA 39 ; (2000) 203 CLR 136 at [10] .


case_text: manner, degree and object of annexation remain important considerations. In the oft cited case in this area, Australian Prudential Assurance Co Ltd v Coroneo (1938) 38 SR(NSW) 700 , Jordan CJ stated (at 712): A fixture is a thing once a chattel which has become in law land through having been fixed to land. The question whether a chattel has become a fixture depends upon whether it has been fixed to land, and if so for what purpose . If a chattel is actually fixed to land to any extent, by any means other than its own weight, then prima facie it is a fixture; and the burden of proof is upon anyone who asserts that it is not: if it is not otherwise fixed but is kept in position by its own weight, then prima facie it is not a fixture; and the burden of proof is on anyone who asserts that it is: Holland v Hodgson [(1872) LR 7 CP 328 at 335]. [My emphasis]


case_text: emerges from the authorities is that there is no single or even primary test as to whether a thing remains a chattel or has become a fixture, and each case depends on its own facts: see, in particular, NH Dunn Pty Ltd v LM Ericsson Pty Ltd (1979) 2 BPR 9241.


case_title: Elitestone Ltd v Morris [1997] UKHL 15 ; [1997] 1 WLR 687


case_text: submission raises indirectly a question that was referred to by Young CJ in Eq (as Young JA then was) in Eye Corp Australia Pty Ltd v Goliath Investments Pty Ltd (2006) 12 BPR 23, 949; [2006] NSWSC 159 at [26] [27]. His Honour posed the question as being which of two theories is correct: the theory that tenants' fixtures never become part of the freehold (his Honour referred to Mowats v Hudson (1911) 105 LT 400) , and the theory that they do but are subject to the tenant's right to detach them and thereby make them chattels again (his Honour referred to Horwitch v Symond (1914) 110 LT 106 (affirmed by the Court of Appeal (1915) 84 LJKB 1083)).


case_text: Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 , Hill J said (at 149): ...When it is said that an item is a "tenants' fixture", all that is meant is that the tenant has a right to remove the item at the expiration of the term of the lease or a reasonable time thereafter: cf D'Arcy v Burelli Investments Pty Ltd (1987) 8 NSWLR 317. If the item in question were not a fixture, a fortiori it would belong to the tenant and could be removed by the tenant at any time. Thus, the whole concept of tenants' fixtures assumes that the items in question have become fixtures but that the tenant has a right in equity in the land, co-extensive with the right of the tenant to come upon the land after the expiration of the lease and remove the fixture. The expression "tenants' fixtures" is apt to mislead unless adequately explained. The tenant does not own the freehold and a fixture does not belong to the tenant by virtue of being part of the freehold. Rather, fixtures are the property of the owner of the land, but in the case of "tenants' fixtures" they are subject to the tenant's right to remove them during the term of the lease or within a reasonable time thereafter and so convert them back into chattels. Under the general law, for the purposes of the limited exception to the quicquid plantatur maxim in favour of tenants' fixtures, the latter are things installed by a tenant for trade, domestic or ornamental purposes. If it matters, the fixtures with which I am concerned were all installed by NFD for the purpose of its trade. It may not matter because the right of removal is regulated by the Sublease which speaks generally of NFD's fixtures without reference to their purpose. In any event, so far as the evidence reveals, there were no fixtures installed by NFD for any purpose other than trade.


case_title: Mowats v Hudson (1911) 105 LT 400


case_text: cases on fixtures are numerous. As Windeyer J observed in Macrocom Pty Ltd v City West Centre Pty Ltd [1999] NSWSC 898 ; (2001) 10 BPR 18 ,631; [2001] NSWSC 374 at [19] , Conti J helpfully collected many of the authorities as to what constitutes a fixture in National Australia Bank v Blacker [2000] FCA 1458 ; (2000) 104 FCR 288 at [9] [17].


case_title: New Zealand Government Property Corporation v HM & S [1982] QB 1145

case_text: may be that there will be, vis-a-vis LDC, a deemed removal by Vopak, a sale, and a deemed reinstallation by Vopak or by the Buyer of NFD's fixtures. Deemed removal, or at least an ignoring of, tenants' fixtures is not unknown in the context of rent review clauses: see, for example, New Zealand Government Property Corporation v HM & S Ltd [1982] QB 1145 ; Young v Dalgety [1987] 1 EGLR 116.


case_title: North Shore Gas Co Ltd v Commissioner of Stamp Duties [1940] HCA 7 ; (1940) 63 CLR 52

case_text: Shore Gas Co Ltd v Commissioner of Stamp Duties [1940] HCA 7 ; (1940) 63 CLR 52 ( North Shore Gas Co ), concerned the mains and service pipes of a gas company that were laid in streets and other convenient places in the area where the company supplied gas. All members of the High Court agreed that they were fixtures and were not within a proviso in the Second Schedule to the Stamp Duties Act 1920 (NSW) that exempted from stamp duty an agreement for the sale of "goods, wares or merchandise". This was so notwithstanding that under the gas company's Act of Parliament the mains and pipes remained the property of the company which was given express power to remove, alter, repair, replace or relay them. Dixon J (as the Chief Justice then was) said (at 67 68): The question for decision is, I think, whether the pipes and mains, considered as in situ and as part of such an undertaking, have no longer the quality of chattels personal. It must be steadily borne in mind that the agreement relates to the undertaking as a going concern. It contemplates a transfer of the mains and services as they lie in the ground; not as separate or detachable articles, but as an integral part of an undivided plant or system and actually in use. Ordinarily when the chattel elements by which a permanent system or apparatus is formed are assembled and embedded in the soil or established as part of a building they lose their independent nature and for the purpose of the law take on the character of land. Thus, if the land in which the mains were laid had belonged to the company for an estate in fee simple or for any less estate or interest and the company had not acted under its special statutory powers, the mains until removed would have formed part of the realty. ... The primary consequence of so fixing such things in the soil that they are treated as forming part of it is that ownership of the articles follows ownership of the land. Though removable tenants' fixtures may during the term be detached and become chattels belonging to the tenant, yet the better opinion appears to be that unless and until the tenant exercises his right of removal they form part of the realty... and for this reason, subject to the exercise of the tenant's right to convert them again into chattels, pass with the land. Whether personal property has become part of real property by virtue of being a fixture is not a matter of the subjective intention of the affixer. If we must speak in terms of intention, the only relevant intention is one that is objectively "presumed" from the manner, degree and object of affixation.


case_title: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511


case_outcome: distinguished

case_text: Vopak Terminals Australia Pty Ltd v Commissioner of State Revenue [2004] VSCA 10 ; (2004) 12 VR 351 , it was decided for Victorian stamp duty purposes that certain petroleum storage tanks and other structures on leased premises were not fixtures. The decision, however, turned upon s 28(2) of the Landlord and Tenant Act 1958 (Vic) which provided that fixtures erected for any purpose by a tenant at his own cost and expense were to be the property of the tenant, and removable by him. It was held that this provision produced the result that eight storage tanks and other structures which, it was common ground, were fixtures under general law principles, were deprived of that characterisation by the statutory provision. The case is distinguishable as turning on the statutory provision. There is no comparable provision in the legislation of the Northern Territory. The small roadway constituting item (g) and the carpark constituting item (h) in [13] above are either part and parcel of the land itself or fixtures.


case_title: Wessex Reserve Forces & Cadets Association v White [2005] 3 EGLR 127


case_title: Young v Dalgety [1987] 1 EGLR 116


case_text: The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.


case_outcome: considered

case_text: Order 15A provides for " Preliminary Discovery ". And again the rules contain limiting conditions: cf Airservices Australia v Transfield Pty Ltd [1999] FCA 886 , 92 FCR 200. Finn J there made the following observations as to the features of both rr 3 and 6 of O 15A: [5] I would emphasise at the outset the following features of these rules. First, while r 3 for obvious reasons allows discovery against a person whether or not that person is a possible respondent to the projected proceeding, the discovery available under r 6 is limited to discovery against the person who is the "prospective respondent". Secondly, as has been emphasised by judges of this Court, r 6 prescribes significant limiting conditions to be satisfied before an order can be made... An applicant who can satisfy them, is allowed "to fish" for the purpose of ascertaining whether he has a case against the prospective respondent... But preliminary discovery cannot itself be used to remedy deficiencies in the satisfaction of the conditions themselves. It does not mandate mere rummaging through another's affairs. Thirdly, while an applicant does not have to make out a prima facie case for the purpose of satisfying the r 6(a) condition that he or she has reasonable cause to believe he or she has a right to obtain relief... an applicant will not necessarily be denied preliminary discovery because he or she "already has available evidence establishing a prima facie case for the granting of relief"... Fourthly, an order for discovery under r 6 can properly be characterised as an interlocutory order... Fifthly, in Kirella Pty Ltd v Hooper [1999] FCA 169 ; (1999) 92 FCR 90 ; 161 ALR 447 Tamberlin J held that the provisions of O 15A do not infringe the constitutional requirement that for this Court to have jurisdiction in relation to a proceeding there must be a "matter". ... Leave to appeal was granted and the appeal dismissed: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1.


case_text: Provision, of course, is made in O 15 r 5 of the Federal Court Rules for the making of an order that a party give general discovery. The fundamental policy behind discovery is to ensure that litigation is decided upon the merits and that cases are not decided by ambush and surprise: Ammerlaan v Distillers Co (Bio-Chemicals) Ltd (1992) 58 SASR 164 at 173 per Olsson J. Such discovery as is ordered is a matter for the discretion of the Court. As a general rule the Court will not order a party to give general discovery: Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd [2005] FCA 242 at [5] per Stone J. Subsequent to the amendments to this Court's Rules in 1999 and the promulgation of Practice Note 14 , discovery is normally limited to the circumstances of a particular case.


case_text: In that context, it is considered that the discretion to allow an applicant to inspect seized documents may be exercised to permit: (a) an assessment to be made as to whether or not there has been compliance with the order as made and (possibly) whether any further order pursuant to O 25B may be warranted; (b) the identification and separation from the entirety of those documents that were in fact seized, those documents which do or may provide evidence pending the hearing and determination of a proceeding; and (c) the identification and separation from the entirety of those documents that were in fact seized, those documents which do not provide such evidence so that those documents may be returned. And, in identifying those documents which should be preserved pending the final hearing and determination of a proceeding: (d) the search is not limited to those documents directly related to the precise cause of action then known: cf Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [6] [7] per Allsop J; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [4] per Jacobson J. There may well be other reasons for granting leave to an applicant to inspect seized documents. All of the purposes identified, however, have one thing in common -- they allow the documents which have been seized to be inspected in order to ensure that the search order has been complied with and to ensure that only evidence which should be preserved is in fact preserved pending the final determination of a proceeding.


case_text: In that context, it is considered that the discretion to allow an applicant to inspect seized documents may be exercised to permit: (a) an assessment to be made as to whether or not there has been compliance with the order as made and (possibly) whether any further order pursuant to O 25B may be warranted; (b) the identification and separation from the entirety of those documents that were in fact seized, those documents which do or may provide evidence pending the hearing and determination of a proceeding; and (c) the identification and separation from the entirety of those documents that were in fact seized, those documents which do not provide such evidence so that those documents may be returned. And, in identifying those documents which should be preserved pending the final hearing and determination of a proceeding: (d) the search is not limited to those documents directly related to the precise cause of action then known: cf Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [6] [7] per Allsop J; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [4] per Jacobson J. There may well be other reasons for granting leave to an applicant to inspect seized documents. All of the purposes identified, however, have one thing in common -- they allow the documents which have been seized to be inspected in order to ensure that the search order has been complied with and to ensure that only evidence which should be preserved is in fact preserved pending the final determination of a proceeding. 39 No submission was advanced on behalf of the Applicants contrary to the importance attached by the common law to protecting the privacy of individuals. Their submission was that the primacy attached to the administration of justice extended to conferring authority to access the materials as an adjunct to the discovery process. This contention was said by the Applicants to have been resolved by Jacobson J in Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707. An order pursuant to O 25B in that proceeding had previously been made by Allsop J (as he then was). Consent orders were made on 7 September 2006 which provided for inspection by the Applicants and their solicitors.


case_text: Although there may be no enforceable right to privacy presently recognised in Australian law (cf Australian Broadcasting Corp v Lenah Game Meats Pty Ltd [2001] HCA 63 , 208 CLR 199) , such compulsory powers of search and seizure as are conferred by both Commonwealth and State legislation should not be construed as authorising any greater intrusion into the private affairs of individuals than is unambiguously authorised.


case_text: Order 25 is likewise confined to the making of interim orders. Order 25 r 2, in particular, is confined to the making of orders as to the " preservation of property ". Those seeking orders pursuant to that rule do not need to satisfy the more onerous requirements imposed by O 25B: Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211 at 215 per Lockhart J. 34 It is considered that it is no part of the object or purpose of those provisions to facilitate the discovery processes otherwise authorised by the Rules or to facilitate the provision of further particulars . To construe those provisions as extending to such a purpose would erode both the importance attached by the common law to protecting the privacy of individuals and the constraints otherwise imposed by the Rules upon the discovery process.


case_text: The Federal Court Rules , however, were amended in 1999 with the intent of confining the ambit of documents to be discovered: Salim v Loh (No 2) [2005] FCA 1417. French J there summarised the position as follows: [3] The 1999 amendments to the Rules, which introduced the new O 15 r 2, manifested '... a quite new and restrictive policy in relation to the discovery to be allowed' in the Federal Court -- South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 per Finn J. The rule that the discovery obligation covered documents that did no more than relate in some way to a matter in issue or that might lead to a train of inquiry has been abolished. The categories required to be discovered under O 15 r 2(3) include documents that support or adversely affect another party's case or that adversely affect a party's own case. They do not extend to documents that might support or adversely affect a party's case. The search obligation is limited to 'reasonable search'. Similarly, in Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 Lindgren J observed: [10] The question arises: what are the principles which should guide the parties in identifying categories? They are the principles which guide the Court when ordering discovery. In ACCC v Advanced Medical Institute [[2005] FCA 366] , I attempted to explain (at [19] -- [21]) that rule amendments and Practice Note 14 (Discovery) of 1999 were intended to establish a régime under which discovery is more confined than it was under the former Peruvian Guano test (cf The Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55). Practice Note 14 para 3 states: To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15 rule 2(3). Consistent with the more confined extent of discovery which is required, the Federal Court Rules now confer an express power to limit discovery and to make orders " necessary to prevent unnecessary discovery ": O 15 r 3(2).


case_title: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373


case_title: Bugaj v Bates [2004] FCA 1260

case_text: The power conferred by O 25B is expressed to be " for the purpose of securing or preserving evidence ". The purpose, not surprisingly, is not confined to securing only that material which may thereafter be discoverable. But, to enable a party to obtain an order pursuant to O 25B and thereafter permit that party to " rummage through " the materials seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable, would defeat the perimeters within which discovery is to be made by a party, especially the more confined and restricted extent of discovery which this Court now permits. It would also endorse a course which courts have properly shunned, namely a course of improperly permitting the relief authorised by O 25B to become an " investigatory tool " ( Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [26] , [1999] FCA 754 ; 46 IPR 159 at 164 per Branson J; Bugaj v Bates [2004] FCA 1260 at [13] per Stone J) or a preliminary step that later facilitates such an investigation.


case_title: Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001 , 155 FCR 1

case_text: In consenting to an order requiring general discovery, it is not understood that the parties are merely consenting to an order requiring the discovery of only those documents as are contemplated by O 15 r 2(3): Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001 at [153] , [2006] FCA 1001 ; 155 FCR 1 at 22 3 per Collier J. It is understood that the parties are consenting to what was described by Beaumont J as an order in the " traditional form " requiring discovery of those documents which " may " -- not " must " -- either directly or indirectly enable a party to advance its own case or damage that of his adversary: Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109. Beaumont J there observed: [64] In their traditional form, rules of court required, under a general discovery order, that the party disclose any document in its possession, custody or control "relating to any matter in question" in the proceeding; that is to say, any document which may -- not which must -- either directly, or indirectly, enable the party requiring the discovery either to advance its own case, or to damage the case of its adversary, or which may fairly lead to a train of inquiry which may have either of those two consequences (see, eg Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 62 63). [65] The nature and extent of disclosure, in terms of the adjectival "relevance" of documents for the purposes of a general order for discovery in its traditional form is explained in Halsbury's Laws of England 4th ed, Vol 13 at [38] to the following effect: • So long as they are likely to throw light on the case, documents "relate to a matter in question", whether or not admissible in evidence. • A document may be "relevant" for discovery purposes by reason of its character (ie it is a document of a particular type); or by reason of its contents. • Discovery will not be ordered in respect of an allegation not made in the pleadings or particulars, nor will discovery be allowed to enable a party to "fish" for witnesses, or for a new case, ie to enable the party to frame a new case. • Each case must be considered according to the issues raised; but where there are numerous documents of slight relevance and it would be oppressive to produce them all, some limitations may be imposed. [66] The foregoing is also an accurate description of Australian practice and procedure (see, generally, Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23 24). [67] Under a traditional general discovery order, the following methods are available to obtain further disclosure where a party seeks to show that "relevant" documents have been omitted from the list: (1) It may require verification of the list; (2) It may apply for a further and better list, whether verified or not, either in general terms, or limited to certain classes of documents. (The power to order a further and better list is parallel with, and may be combined with, the court's power, on application, to order the disclosure of particulars of specific documents.); (3) It may apply for an affidavit as to specific documents or classes of documents; (4) In certain special circumstances, it may apply for leave to interrogate as to particular documents (Halsbury, op. cit. at [48]). His Honour there further observed that: [70] ... where, extraordinarily, the Court judges that it is, in the particular circumstances, appropriate to order general discovery, in the absence of any special (ad hoc) restriction, the traditional (broad) obligation to discover any document relating to any matter in question in the proceeding will continue to apply. It is this " traditional (broad) obligation " which has been relied upon as a discretionary reason -- should it be a matter for discretion -- to confine the tasks to be pursued by the Applicants' solicitors in their review of the seized documents.


case_title: Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 , 159 FCR 441

case_text: As a matter of principle, the common law has long been " jealous of the prima facie immunity from seizure of papers and possessions ": George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104. Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ were there addressing s 679 of The Criminal Code (Qld) which authorised the issue of a search warrant and observed at 110 11: A search warrant thus authorizes an invasion of premises without the consent of persons in lawful possession or occupation thereof. The validity of such a warrant is necessarily dependent upon the fulfilment of the conditions governing its issue. In prescribing conditions governing the issue of search warrants, the legislature has sought to balance the need for an effective criminal justice system against the need to protect the individual from arbitrary invasions of his privacy and property. Search warrants facilitate the gathering of evidence against, and the apprehension and conviction of, those who have broken the criminal law. In enacting s 679, the legislature has given primacy to the public interest in the effective administration of criminal justice over the private right of the individual to enjoy his privacy and property. The common law has long been jealous of the prima facie immunity from seizure of papers and possessions: see Holdsworth, A History of English Law, vol 10 (1938), pp 668 672. Except in the case of a warrant issued for the purpose of searching a place for stolen goods, the common law refused to countenance the issue of search warrants at all and refused to permit a constable or government official to enter private property without the permission of the occupier: Leach v Money [(1765) 19 State Tr 1001] ; Entick v Carrington [(1765) 19 State Tr 1029]. Historically, the justification for these limitations on the power of entry and search was based on the rights of private property: Entick [(1765) 19 State Tr, at p 1066]. In modern times, the justification has shifted increasingly to the protection of privacy: see Feldman, The Law Relating to Entry, Search and Seizure (1986), pp 1 2. State and Commonwealth statutes have made many exceptions to the common law position, and s 679 is a far-reaching one. Nevertheless, in construing and applying such statutes, it needs to be kept in mind that they authorize the invasion of interests which the common law has always valued highly and which, through the writ of trespass, it went to great lengths to protect. Against that background, the enactment of conditions which must be fulfilled before a search warrant can be lawfully issued and executed is to be seen as a reflection of the legislature's concern to give a measure of protection to these interests. To insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation. ... The importance of the rights protected by the common law has likewise been repeatedly recognised by all courts, including this Court: eg, Commissioner, Australian Federal Police v Oke [2007] FCAFC 94 at [36] [37], 159 FCR 441 at 448 per Branson and Lindgren JJ (Besanko J agreeing at [47]); Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 at [66] , [2002] FCAFC 392 ; 124 FCR 384 at 400 per French, Sackville and Nicholson JJ. See also: Rugs-a-Million (WA) Pty Ltd v Walker [2007] WASCA 23 at [35] [36] per Pullin JA (Wheeler and Buss JJA agreeing).


case_text: The traditional test for discovery, it will be recalled, was expressed in part in terms of whether a document would lead to a " train of enquiry " which could advance a party's case or damage that of his opponent: Mulley & Marney v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Menzies J there observed at 345: I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues--not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. See also: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55. 47 The Federal Court Rules , however, were amended in 1999 with the intent of confining the ambit of documents to be discovered: Salim v Loh (No 2) [2005] FCA 1417. French J there summarised the position as follows: [3] The 1999 amendments to the Rules, which introduced the new O 15 r 2, manifested '... a quite new and restrictive policy in relation to the discovery to be allowed' in the Federal Court -- South Sydney District Rugby League Football Club Ltd v News Ltd [2000] FCA 519 per Finn J. The rule that the discovery obligation covered documents that did no more than relate in some way to a matter in issue or that might lead to a train of inquiry has been abolished. The categories required to be discovered under O 15 r 2(3) include documents that support or adversely affect another party's case or that adversely affect a party's own case. They do not extend to documents that might support or adversely affect a party's case. The search obligation is limited to 'reasonable search'. Similarly, in Aveling v UBS Capital Markets Australia Holdings Ltd [2005] FCA 415 Lindgren J observed: [10] The question arises: what are the principles which should guide the parties in identifying categories? They are the principles which guide the Court when ordering discovery. In ACCC v Advanced Medical Institute [[2005] FCA 366] , I attempted to explain (at [19] -- [21]) that rule amendments and Practice Note 14 (Discovery) of 1999 were intended to establish a régime under which discovery is more confined than it was under the former Peruvian Guano test (cf The Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55). Practice Note 14 para 3 states: To prevent orders for discovery requiring production of more documents than are necessary for the fair conduct of the case, orders for discovery will ordinarily be limited to the documents required to be disclosed by Order 15 rule 2(3). Consistent with the more confined extent of discovery which is required, the Federal Court Rules now confer an express power to limit discovery and to make orders " necessary to prevent unnecessary discovery ": O 15 r 3(2). 62 In consenting to an order requiring general discovery, it is not understood that the parties are merely consenting to an order requiring the discovery of only those documents as are contemplated by O 15 r 2(3): Citrus Queensland Pty Ltd v Sunstate Orchards Pty Ltd (No 2) [2006] FCA 1001 at [153] , [2006] FCA 1001 ; 155 FCR 1 at 22 3 per Collier J. It is understood that the parties are consenting to what was described by Beaumont J as an order in the " traditional form " requiring discovery of those documents which " may " -- not " must " -- either directly or indirectly enable a party to advance its own case or damage that of his adversary: Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109. Beaumont J there observed: [64] In their traditional form, rules of court required, under a general discovery order, that the party disclose any document in its possession, custody or control "relating to any matter in question" in the proceeding; that is to say, any document which may -- not which must -- either directly, or indirectly, enable the party requiring the discovery either to advance its own case, or to damage the case of its adversary, or which may fairly lead to a train of inquiry which may have either of those two consequences (see, eg Compagnie Financière et Commerciale du Pacifique v The Peruvian Guano Co (1882) 11 QBD 55 at 62 63). [65] The nature and extent of disclosure, in terms of the adjectival "relevance" of documents for the purposes of a general order for discovery in its traditional form is explained in Halsbury's Laws of England 4th ed, Vol 13 at [38] to the following effect: • So long as they are likely to throw light on the case, documents "relate to a matter in question", whether or not admissible in evidence. • A document may be "relevant" for discovery purposes by reason of its character (ie it is a document of a particular type); or by reason of its contents. • Discovery will not be ordered in respect of an allegation not made in the pleadings or particulars, nor will discovery be allowed to enable a party to "fish" for witnesses, or for a new case, ie to enable the party to frame a new case. • Each case must be considered according to the issues raised; but where there are numerous documents of slight relevance and it would be oppressive to produce them all, some limitations may be imposed. [66] The foregoing is also an accurate description of Australian practice and procedure (see, generally, Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1 at 23 24). [67] Under a traditional general discovery order, the following methods are available to obtain further disclosure where a party seeks to show that "relevant" documents have been omitted from the list: (1) It may require verification of the list; (2) It may apply for a further and better list, whether verified or not, either in general terms, or limited to certain classes of documents. (The power to order a further and better list is parallel with, and may be combined with, the court's power, on application, to order the disclosure of particulars of specific documents.); (3) It may apply for an affidavit as to specific documents or classes of documents; (4) In certain special circumstances, it may apply for leave to interrogate as to particular documents (Halsbury, op. cit. at [48]). His Honour there further observed that: [70] ... where, extraordinarily, the Court judges that it is, in the particular circumstances, appropriate to order general discovery, in the absence of any special (ad hoc) restriction, the traditional (broad) obligation to discover any document relating to any matter in question in the proceeding will continue to apply. It is this " traditional (broad) obligation " which has been relied upon as a discretionary reason -- should it be a matter for discretion -- to confine the tasks to be pursued by the Applicants' solicitors in their review of the seized documents.


case_text: In some circumstances there may be a " tension " between common law privileges and " the efficient exercise of statutory powers ": Halliday v Nevill [1984] HCA 80 ; (1984) 155 CLR 1 at 20 per Brennan J; New South Wales v Corbett [2007] HCA 32 at [16] [22], [2007] HCA 32 ; 230 CLR 606 at 610 12 per Kirby J. Not in the context of the exercise of statutory powers facilitating the investigation of criminal offences, but rather in the context of construing that which is permitted by O 25B of the Federal Court Rules , there is not considered to be any such " tension ". The convenience of the position being advocated by the Applicants may well be understandable, but it is not a sufficient reason to depart from the importance accorded by the common law to an individual's right to preserve the privacy and confidentiality of his own documents. The interests in the administration of justice should not be understated or minimised; but those interests are adequately served by the preservation of the documents and materials properly seized.


case_title: Hart v Commissioner of Australian Federal Police [2002] FCAFC 392 , 124 FCR 384


case_title: Hooper v Kirella Pty Ltd [1999] FCA 1584 , 96 FCR 1


case_title: Kyocera Mita Australia Pty Ltd v Mitronics Corp Pty Ltd [2005] FCA 242


case_text: But that, it is respectfully considered, is all that His Honour decided. The decision does not stand as authority for the proposition that seized documents (in the absence of consent) may be inspected as an adjunct to the discovery process or to facilitate the provision of particulars. It is simply a decision as to what may be seized and, once seized, what may be looked for when inspecting those documents. Neither of the other decisions cited by the Respondents in this proceeding -- Remath Investments No 6 Pty Ltd v Savi World Transport Pty Ltd & Fraser (Unreported, VSC, Byrne J, 12 November 1997) and Liberty Financial Pty Ltd v Scott [2004] VSC 414 -- provide further assistance. No decision other than that of Jacobson J was able to be identified by any of the parties, or Citic Pacific, which provided any further guidance on the issues now to be decided.


case_text: The Respondents, by their Notice of Motion , seek the return of all documents seized and, it may safely be assumed, do not consent to any further inspection occurring. They may wish to reconsider their position, as may the Applicants, in light of the conclusions reached as to the limits of the right of inspection permitted by the Federal Court Rules . It may be noted that in Lifetime Investments Pty Ltd v Commercial (Worldwide) Financial Services Pty Ltd [2006] FCA 637 an order was made for the return of documents to the solicitor of a party apparently " to facilitate completion of discovery " . 69 Subject to the return of those documents which have no continuing relevance to the proceeding, it is not however considered that the remaining documents seized should be returned -- at least at this stage. No case has sought to be advanced by those from whom the documents were seized that the continued retention of those documents is causing them any inconvenience or prejudice. In the absence of any such contention, and notwithstanding the fact that a copy of the documents seized remains available to the Court, it is presently considered that the documents seized should remain available pending the resolution of the proceeding. 70 Pursuant to the terms of the orders made, records have also been kept of those who have inspected the seized documents and materials. Citic Pacific should be provided with a copy of those records that disclose the identity of those officers of the Applicants who have been given access to documents seized and the documents in fact inspected (if any).


case_title: Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545


case_title: Metso Minerals v Kalra [2007] FCA 2093

case_text: The search orders as made ex parte on 11 December 2007 ( Metso Minerals v Kalra [2007] FCA 2093) were executed on 12, 13 and 14 December 2007. 4 The persons against whom those orders were executed were the then Respondents, namely the First to Fourth Respondents. The " documents and materials " which were authorised to be seized were identified as being: 1. works recording, containing or including 'Plans for the building of grinding mills' and any other plans or other documentation which relates to the crushing, grinding or screening of materials which can be reasonably ascertained to have been created by or for Metso Minerals (Australia) Limited ACN 000 197 428 and/or Metso Minerals Industries, Inc including the documents listed in the table at paragraph 3 below; 2. works recording, containing or including 'Calculations for the building of grinding mills' and any other any other plans or other documentation which relates to the calculations for the crushing, grinding or screening of materials which can be reasonably ascertained to have been created by or for Metso Minerals (Australia) Limited and/or Metso Minerals Industries, Inc including the documents listed in the table at paragraph 3 below; [The "table" referred to identified documents being mainly drawings]. 4. E-Mails and correspondence between any one or more of the respondents and any other person, corporation or entity attaching copies of the works in paragraphs 1 2 above or otherwise referring to them. 5. Copies or parts of the Documents and Materials listed above. 19 The Amended Statement of Claim as now filed is a lengthy document which essentially pleads four causes of action, being: (a) breach of an equitable duty of confidence; (b) breach by the First, Second, Third and Fourth Respondents of employment consultancy agreements and confidentiality agreements; (c) breach of fiduciary duty by the First Respondent; and (d) infringement of copyright by all Respondents. As recounted in the reasons for decision when first making the order under O 25B ( Metso Minerals v Kalra [2007] FCA 2093) , the First and Second Respondents were former employees of the First Applicant, Metso Minerals (Australia) Ltd. The Third Respondent was a contractor to the First Applicant and employed the Fourth Respondent. When making the order, the case being advanced against the Respondents was that there had been a breach of the duties and the agreements now pleaded. The Respondents were said to now be employed with the " Citic Group of companies ", a competitor of the Applicants. The Fifth Respondent is said to be a company under the control of the First Respondent, Mr Kalra. 20 The search order as first made and as subsequently varied, the Respondents maintain, was relevantly made in advance of the detailed Amended Statement of Claim being filed and the Defences being filed. Those pleadings, they contend, define the ambit of the dispute between the parties and the ambit of evidence relevant or potentially relevant to the resolution of that dispute. 21 The Applicants want to continue to access the materials seized as an aid to the discovery process and in order to be able to further particularise their claims. Although not expressed in these terms, the application is presumably an application for leave to inspect (or to continue to inspect) the documents as envisaged by Practice Note 24 . Leave to continue to inspect the seized documents for the purposes identified is said by the Applicants to be desirable " in the interests of the administration of justice " and as a means to promote good " case management ".


case_text: Once the materials and documents had been seized, the order was thereafter first varied, with the consent of those from whom the materials had been seized, on 14 December 2007 ( Metso Minerals (Australia) Ltd v Kalra (No 2) [2007] FCA 2108). By consent, the parties' legal representatives were granted photocopy access to the hard copies of documents seized. Various other orders were thereafter made by consent in February and March 2008, including orders extending the time for reporting by the independent solicitor. 6 On 1 April 2008 the Applicants sought to further vary the orders made. A contested hearing followed. On 3 April 2008 orders were made that, relevantly, permitted the Applicants' solicitors to disclose documents to named officers of the Applicants. It was that variation which prompted the intervention in the proceeding of Citic Pacific on 4 April 2008. That company claimed that amongst the materials seized were documents which they believed may have contained their own documents, being documents which they believed may well have been commercially confidential and possibly privileged. The access regime, as varied, was consequently suspended. 7 Given the description of the " documents and materials " to be seized, such a contention was perhaps unexpected. Certainly when initially making the order, there then was no reason to believe that such documents as would be seized would potentially include the documents of Citic Pacific (or related entities). The very description of the documents and materials that were the subject of the order was an attempt to confine the seizure of materials to those belonging to the Applicants, being materials that improperly remained in the possession of their former employees and contractor, the then Respondents. The seizure of any documents and materials falling outside of the terms of the order obviously would not have been authorised. 26 As occurred in the present proceeding, where there is no longer a basis for believing that documents may be destroyed, O 25B cannot then be invoked as the source of a power to vary orders previously made. Thereafter, if those orders are to be varied, recourse must be had to O 25 r 2 of the Federal Court Rules or s 23 of the Federal Court of Australia Act 1976 (Cth): Metso Minerals (Australia) Ltd v Kalra (No 2) [2007] FCA 2108. 27 It was not disputed by any of the parties, or Citic Pacific, that leave may be granted to the Applicants to inspect the seized documents. But, other than the Applicants' submission that leave should be granted because it is necessary (or desirable) in the " interests of the administration of justice " -- and other than the competing submission that the Applicants should not be given leave to pursue inspection for the purposes relied upon -- none of the parties (or Citic Pacific) attempted to identify less controversial considerations relevant to the exercise of the discretion. The identification of such considerations may throw some light upon the outer limits of the discretion and how it is to be exercised.


case_title: Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 , 46 IPR 159

case_text: The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603. 49 The power conferred by O 25B is expressed to be " for the purpose of securing or preserving evidence ". The purpose, not surprisingly, is not confined to securing only that material which may thereafter be discoverable. But, to enable a party to obtain an order pursuant to O 25B and thereafter permit that party to " rummage through " the materials seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable, would defeat the perimeters within which discovery is to be made by a party, especially the more confined and restricted extent of discovery which this Court now permits. It would also endorse a course which courts have properly shunned, namely a course of improperly permitting the relief authorised by O 25B to become an " investigatory tool " ( Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [26] , [1999] FCA 754 ; 46 IPR 159 at 164 per Branson J; Bugaj v Bates [2004] FCA 1260 at [13] per Stone J) or a preliminary step that later facilitates such an investigation.


case_text: The traditional test for discovery, it will be recalled, was expressed in part in terms of whether a document would lead to a " train of enquiry " which could advance a party's case or damage that of his opponent: Mulley & Marney v Manifold [1959] HCA 23 ; (1959) 103 CLR 341. Menzies J there observed at 345: I now turn to the pleadings to determine what are the matters at issue between the parties, because discovery is a procedure directed towards obtaining a proper examination and determination of these issues--not towards assisting a party upon a fishing expedition. Only a document which relates in some way to a matter in issue is discoverable, but it is sufficient if it would, or would lead to a train of enquiry which would, either advance a party's own case or damage that of his adversary. See also: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55.


case_title: New South Wales v Corbett [2007] HCA 32 , 230 CLR 606


case_title: Reading Entertainment Australia Pty Ltd v Birch Carroll & Coyle Ltd [2002] FCAFC 109


case_title: Remath Investments No 6 Pty Ltd v Savi World Transport Pty Ltd & Fraser (Unreported, VSC, Byrne J, 12 November 1997)


case_title: Rugs-a-Million (WA) Pty Ltd v Walker [2007] WASCA 23


case_title: Salim v Loh (No 2) [2005] FCA 1417


case_text: The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603.


case_title: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 , 205 ALR 319

case_text: The extraordinary nature of such relief was not put in issue by any of the parties or Citic Pacific. Nor could it be. In Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [9] , [1999] FCA 754 ; 46 IPR 159 at 161 Branson J cited with approval the following observations of Powell JA (with whom Meagher and Handley JJA agreed) in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547: Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff's claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte. Her Honour went on to observe: [26] ... The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding. See also: Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [53] [58], [2004] FCA 183 ; 205 ALR 319 at 330 1 per Wilcox J. Leave to appeal from that decision was refused: Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270 , 63 IPR 373. In agreeing with the decision that leave to appeal should be refused, Emmett J there also observed that orders " in the nature of Anton Piller orders are a severe interference with the rights of citizens ": [2004] FCAFC 270 at [67] . The procedure is " obviously draconian in its results ": Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 at 291 per Browne-Wilkinson J. See also: Addison Wesley Longman Australia Pty Ltd v Kopystop Pty Ltd [2004] FCA 1518 at [12] . " Anton Piller orders " , it has been said, " are offensive weapons ": Dockray M and Laddie H, ' Piller Problems ' (1990) 106 LQR 601 at 603. 67 Such documents as have presently been identified as having no continuing relevance to the proceeding, together with any documents that have been seized which fall outside the terms of the order as made and as varied, should be returned to the persons from whom they were seized. "[I] ntrusions into personal privacy and commercial confidentiality " should be minimised: cf Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183 at [82] , [2004] FCA 183 ; 205 ALR 319 at 336 per Wilcox J.


case_text: Practice Note 24 stresses the importance of the role played by the " independent solicitor " and the qualified right of access of an applicant to the documents seized. It thus provides in part as follows: 11. The independent solicitor is an important safeguard against abuse of the order. The independent solicitor must not be a member or employee of the applicant's firm of solicitors. The independent solicitor should be a solicitor experienced in commercial litigation... 12. Ordinarily, the applicant is not permitted, without the leave of the Court, to inspect things removed from the premises or copies of them, or to be given any information about them by members of the search party. The importance of the role potentially to be played by an " independent solicitor " with appropriate experience has long been recognised, eg Universal Thermosensors Ltd v Hibben [1992] 1 WLR 840 at 861 per Nicholls VC. And, as Practice Note 24 makes clear, the applicant is not to inspect the seized documents " without the leave of the Court ". 16 What is not set forth in Practice Note 24 , and perhaps not surprisingly, is the basis upon which leave may be given. The bases upon which leave may be given should perhaps not be confined. Much may depend upon the circumstances of an individual case and much may also depend upon the precision with which the documents and materials that are authorised to be seized can be identified at the outset. Certainly, Practice Note 24 does not seek to confine the bases upon which leave may be granted or the purpose to be achieved in granting an applicant access to seized documents. 17 When the order was first made pursuant to O 25B, there had previously been filed an Application on 10 December 2007. A Statement of Claim was first filed on 22 April 2008. Again, in retrospect, directions should have been made for the filing of a Statement of Claim at a far earlier date. A specification by Senior Counsel for the Applicants of the proposed causes of action (albeit a fairly detailed exposition), should not have been endorsed by the Court as an appropriate way to proceed.


case_text: In the context of the issues raised on the appeal, the respondent contends that the above considerations provide a basis for the findings of Federal Magistrate Coker and result in the exercise of a discretion, conferred by s 30 of the Act, to fix the costs, charges, expenses and remuneration of the trustee on a basis thought appropriate. Consistent with the familiar passage in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 (and particularly the passage at p 505 of the judgment of their Honours Dixon, Evatt and McTiernan JJ), the exercise of the discretion ought not to be disturbed. The respondent in oral submissions also relied upon s 179 of the Act as the source of the power to fix the amount of the costs (expenses and remuneration) at $15,000.00. The appellant contends that s 179 was not relied upon by the respondent in the proceedings before Federal Magistrate Coker; was raised for the first time in oral submissions in the hearing of the appeal; and the respondent ought not to be allowed to now rely upon s 179 as that section contemplates a particular process which is inconsistent with the conduct of the respondent's application and had the respondent relied upon s 179 , the appellant would have conducted its response to the application differently. Supplementary written submissions have been directed to the question of s 179. 7 In resolving these competing contentions it has been necessary to closely examine considerable material concerning the precise chronology of events inherent in the administration and the various propositions put to the trustee and the trustee's response. In dealing with the questions raised on the appeal, it is not the role of the appellate court to resolve contested questions of fact. However, in determining whether the exercise of a power or discretion (if conferred) miscarried, it is necessary to look at the evidence before Federal Magistrate Coker and consider the material in the context of the matters that influenced his Honour to exercise the power in a particular way or to reach particular conclusions. 8 The appellant seeks leave to amend the notice of appeal and relies upon two affidavits of James Nicholas Conomos filed 23 November 2005 and 29 November 2005 respectively which exhibit an amended notice of appeal and a further amended notice of appeal. Although Mr Laurie, counsel for the respondent, objects to the lateness of the amendments, Mr Laurie concedes that the respondent has suffered no prejudice by reason of the late notice of the proposed changes. The proposed changes to the amended notice of appeal are not significant. Accordingly, leave is given to amend the notice of appeal in terms of the document described as Exhibit 'JNC1' to the affidavit of James Nicholas Conomos filed on 29 November 2005. 9 On 20 June 2003, the Registrar of the Federal Magistrates Court made an order for the sequestration of the estate of Ms Townsend. The application was made by Ms Townsend's former partner as a result of an unpaid costs order made against Ms Townsend in family law proceedings. It seems the solicitors for Ms Townsend's former partner were instructed to take all necessary steps to recover the amount of the assessed costs. The affidavit evidence suggests that Ms Townsend's former partner did not anticipate that such action would result in a sequestration order. Nevertheless, the amount of the costs remained unpaid after service of the certificate, service of a bankruptcy notice and service of an application for a sequestration order. The costs remained unpaid at the date of the hearing of the application. At the hearing, Ms Townsend contended that she was solvent as the value of her assets exceeded the amount due and payable to her creditors (including the amount of the costs order). 10 It is not clear whether any undertaking to discharge the debts within a particular period, or, by recourse to support from a third party, supported by an affidavit to that effect, was offered as an element of a request for an adjournment of the hearing of the application. In any event, the Registrar was satisfied that there was a proper basis for making a sequestration order presumably on the ground that the material in support of the application and the history of a failure to pay or compromise the unpaid costs claim established that Ms Townsend could not pay her debts as and when they fell due for payment notwithstanding the contended surplus of assets over liabilities.


case_title: Duncan v McVeigh & Anor FMCA 759

case_text: His Honour reached these conclusions: (a) his Honour was not satisfied that a declaration could be made that the trustee had deliberately contributed to the imposition of excessive charges [8]; (b) his Honour was of the view that 'there is certainly in my view, power to fix a sum in relation to costs in respect of the administration of the estate' [8]; (c) it is not possible to make an order pursuant to s 153A or direct the trustee to issue a certificate [10] [12]; (d) had the financial circumstances of the respondent been properly considered at the time of hearing the creditor's petition, there would have been some consideration given to adjourning the petition [16]; (e) the contention that the value of Ms Townsend's assets exceeded her identified liabilities makes it 'clear that the applicant was in a position of solvency'. His Honour relies upon the decisions of Reithmuller FM in Duncan v McVeigh & Anor FMCA 759 and Spender J in Re McDonald; ex parte The Deputy Commissioner of Taxation (1996) 33 ATR 1. Those decisions, of course, both recognise the importance of an undertaking to pay the costs of the trustee's administration and the need for the court to be satisfied that by reason of any asset surplus, the bankrupt is able to pay his or her debts [17] [22]; (f) within a short period of time, the debts due to creditors had been paid by the bankrupt and some clarification of the position with regard to securing an annulment was sought [22]; (g) during the administration, a fundamental breakdown in the relationship between the trustee and Ms Townsend occurred; (h) at [23], [24] and [25], his Honour quotes extensive passages from the trustee's letter dated 10 February 2004 to Ms Townsend and in reliance upon, at least in part, those passages, his Honour concludes that: 'it is most disturbing that a certificate has not issued pursuant to s 153A notwithstanding that the creditors have been paid [26] ; the trustee's position is that it is impossible to issue a certificate whilst the possibility of a private prosecution or complaint remains outstanding [26] ; the actions of the trustee are unprofessional [27] '; and as an apparent explanation of that conclusion, his Honour says the proper course on the part of the trustee 'would have been to bring the matter to a prompt finalisation' [27] and that result was not reached because the approaches by the applicant 'to a serious extent were unable to be dealt with as a result of the trustee's very determined efforts to ensure that no complaint could be brought in relation to the conduct by him of the administration' [27] ; (i) the trustee by reason of the letter of 10 February 2004 'quite obviously' attempted to 'force any consideration by the applicant of the proceedings now before the court, not to be brought because of the financial influence and effect of those proceedings' [28]. (j) 'extremely excessive costs have been incurred as a result of the failure to bring this matter to a successful conclusion' [29]; and (k) At [29] and [30], these observations: '[29] I am concerned as to further costs being incurred in relation to these proceedings and to what I consider to have been extremely excessive charges incurred, as a result of the failure to bring this matter to a successful conclusion. I am mindful of the terms of the letter of 10 February 2004 and, in particular, the indications as to costs expended and expectations in relation to future to costs. In my view, that was the appropriate time to bring this matter to an end. To suggest that the bankruptcy could never be annulled whilst there was some possibility of a disgruntled client complaining as to the administration of the estate, is bullying in the extreme and is inappropriate. [30] I intend to fix the trustee's costs in relation to the administration of the estate at $15,000.00 taking into consideration the amounts already paid and the estimates contained within the correspondence of 10 February 2004.' 73 His Honour concluded that the respondent was then and at all times solvent and the proper course was to annul the bankruptcy pursuant to s 153B of the Act. 74 The immediate difficulty with his Honour's conclusions and findings is that they do not arise out of an exposed analysis of the evidence no doubt because his Honour was seeking to expeditiously dispose of a controversy with a long history. 75 However, there are two reasons on the evidence why the trustee had refused to reach a state of satisfaction required by s 153A of the Act. The first was that notwithstanding the payment of $10,000.00 by Ms Townsend (or those assisting her) having regard to the letters of 25 November 2003 (see [33], [34] and [35]), 27 November 2003 [36], 28 November 2003 [37] and 10 February 2004 [41], a further amount as at 10 February 2004 of $2,300.00 would be required to meet the cost of work undertaken from 13 December 2003 to that date and the additional tasks necessary to finalise the administration. The second consideration involved the question of whether further costs would be incurred by the trustee in responding to complaints and allegations and a threatened private prosecution or other proceedings. 76 As to the first reason, the trustee on 10 February 2004 said that remuneration for work done from 13 December 2003 (having regard to the fact that the report to creditors was dated 12 December 2003 and the completion of the earlier billing period was 11 December 2003) was approximately $1,300.00 (plus GST), plus $580.00 for expenses (plus GST); that is, approximately $2,068.00. The trustee suggested a further amount of $2,200.00 would fairly represent the value of that work. 77 In addition, further identified steps to complete the administration would be necessary (see paragraph 3 of the letter of 10 February 2004 [41]). The trustee said in the letter of 10 February 2004 that he held $1,100.90 (being the $10,000.00 received, less remuneration of $8,099.10 and less the 8% ITSA realisation fee of $800.00) and upon receipt of a further $2,300.00 (including GST, the Government charges on re-transmitting Ms Townsend's land and the 8% ITSA charge) the trustee 'could draw down all or the major part of the cost to complete, prepare or lodge any land transfer forms and issue an annulment certificate under s 153A of the Bankruptcy Act )' . In other words, a total amount of $3,400.90 would complete the administration, satisfy all relevant costs, charges, expenses and remuneration and result in an annulment certificate. Having regard to the $10,000.00 already paid and its application, the additional $2,300.00 would result in an annulment certificate based upon costs, charges, expenses and remuneration (including GST, Government charges and ITSA charges) of $12,300.00, in all. 78 Ms Townsend refused to pay any further contribution and on 24 February 2004 filed the application the subject of these proceedings.