case_title: Gauci v Kennedy [2005] FMCA 1505

case_text: This is an appeal from a decision of Jarrett FM of 12 October 2005 ( Gauci v Kennedy [2005] FMCA 1505) where his Honour summarily dismissed a claim of Mr Gauci ("the appellant") for relief against the second respondent for a breach of Pt II Div 3 Sex Discrimination Act 1984 (Cth) ("SD Act"). 2 The claim was dismissed by the learned Federal Magistrate pursuant to Federal Magistrates Court Rules (FMCR) r 13.10, which reads as follows: The Court may order that a proceeding be stayed, or dismissed generally or in relation to any claim for relief in the proceeding, if it appears to the Court that: (a) no reasonable cause of action is disclosed in relation to the proceeding or claim for relief; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court. 15 The notice of appeal then contains several pages of submissions in relation to the issue of alleged sex discrimination by the second respondent (paras 7-12). The appellant is not however appealing against this part of the decision of his Honour - indeed, his Honour found in favour of the appellant on this issue in the context of the summary dismissal application brought by the second respondent: Gauci [2005] FMCA 1505 at [55] - [64] . In my view the issues raised by the appellant in paras 7-12 of his notice of appeal are not properly the subject of appeal, and are not relevant to the matter before me. 16 Finally however, the appellant does appeal against the finding of his Honour that the conduct of the first respondent was not sexual harassment of the appellant, and accordingly that even assuming that the first respondent was at all material times an employee or servant of the second respondent, there were no facts alleged that would or could amount to sexual harassment by the first respondent of the appellant ( Gauci [2005] FMCA 1505 at [68] ). 17 In relation to this issue, his Honour found as follows: [69] "His evidence is that the first respondent persistently pursued his romantic attention. There is no claim in his material, however, that the first respondent subjected him to an unwelcome sexual advance or made to him an unwelcome request for sexual favours. At best, she asked him to go for coffee on two occasions, pizza on one occasion and to a movie on a fourth occasion. Apart from the comment made soon after their first meeting that the applicant had nice eyes, the conversation between them was unremarkable. [70] The making of a complaint of sexual harassment against the applicant to the second respondent cannot in the circumstances relied upon by the applicant, amount to sexual harassment for the purposes of the SDA. It might be the case that the first respondent was intent on pursuing an intimate, indeed sexual, relationship with the applicant and when he spurned her she became difficult - but that is not prohibited by the Act. It might be the case that the first respondent's actions could amount to harassment within the ordinary meaning of that word, but that is not enough to establish a breach of the SDA. [71] Thus, even making the assumptions I have set out above in favour of the applicant, it seems to me that this aspect of the claim against the second respondent is bound to fail." 18 The grounds of appeal in this respect are that: 1. His Honour erred in his determination that the alleged acts against him by the first respondent did not amount to sexual harassment; and 2. His Honour did not properly interpret s 28A SD Act . 19 In response the second respondent submitted that: • Jarrett FM was correct in finding that the alleged conduct of the first respondent was not capable of amounting to sexual harassment within the meaning of s 28A SD Act , and accordingly there was no conduct in respect of which the second respondent could be liable • even if that were not so, the learned Federal Magistrate's orders should be upheld on the alternative basis that it is not alleged and it is not open on the facts to conclude that the university is vicariously liable for the alleged conduct of the first respondent under s 106 SD Act • the other matters that the applicant seeks to raise in the appeal are not properly the subject of the appeal. 20 The proceedings before me do not directly involve the first respondent. However the first respondent has also filed written submissions before me, in which she denies the alleged unlawful sexual harassment and submits that as the complaint of sexual harassment against her has been properly dismissed by Jarrett FM, there is no conduct in respect of which the second respondent can be liable. 21 While I concur with the observations of his Honour that the conduct of the first respondent could constitute harassment, I disagree with his Honour's conclusion in Gauci [2005] FMCA 1505 at [70] that the harassment was clearly such that it did not breach the SD Act . "Sexual harassment" is defined in s 28A of the Act as follows: (1) For the purposes of this Division, a person sexually harasses another person (the person harassed ) if: (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the person harassed; or (b) engages in other unwelcome conduct of a sexual nature in relation to the person harassed; in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the person harassed would be offended, humiliated or intimidated. (2) In this section: " conduct of a sexual nature " includes making a statement of a sexual nature to a person, or in the presence of a person, whether the statement is made orally or in writing.


case_outcome: related

case_title: Gauci v Kennedy [2006] FCA 869

case_text: On 6 July 2006 I granted the appellant leave to file and serve out of time a notice of appeal from the decision of Jarrett FM, and leave to appeal from the decision of Jarrett FM: Gauci v Kennedy [2006] FCA 869. The background and facts of this matter are set out in that decision, and I explained in some detail principles referable to summary dismissal. It is unnecessary to repeat those principles here, other than to acknowledge that the power to dismiss an application summarily must be exercised with great caution and only in the clearest of cases. 4 In relation to the application for summary dismissal by the second respondent, the learned Federal Magistrate recognised the caution with which such applications should be approached. His Honour examined the relevant legislation, in particular ss 5 , 14 , 28A , 28F , 94 , 105 and 106 of the SD Act . 5 His Honour was satisfied that: • no conduct of the second respondent constituted sexual harassment of the appellant; and • while conduct of the first respondent could amount to harassment of the appellant within the ordinary meaning of the word, that conduct was not enough to establish a breach of the SD Act . Therefore even assuming that the first respondent was at all material times an employee of the second respondent, this aspect of the claim against the second respondent was bound to fail. 6 However, his Honour did not accept the submissions of the second respondent that the appellant's claim of sex discrimination should be summarily dismissed, and this aspect of the appellant's claim remains currently before his Honour. 7 His Honour made the following substantive orders: (1) That the applicant's claim for relief against the second respondent for a breach of any provision of Part II Division 3 of the Sex Discrimination Act 1984 be dismissed; and (2) That otherwise the second respondent's application filed on 1 November 2004 be dismissed. 8 At the hearing before me the second respondent was represented by solicitors. Neither the appellant nor the first respondent were legally represented. 9 A number of the submissions of the parties went to the issues for determination before the Federal Magistrate rather than the issue of whether the learned Federal Magistrate was correct to summarily dismiss the application. The question before me is whether any submissions made at the appeal persuade me that this matter should not be revisited in full by the Federal Magistrates Court. 24 Consideration of the issue whether the conduct of the first respondent did constitute sexual harassment within the meaning of s 28A SD Act did, in my view, give rise to a real question to be determined between the parties. In this respect, I repeat the observations I made in Gauci [2006] FCA 869 at [44] . 25 Having heard the submissions of the parties I consider that the case against the appellant was not so very clear as to justify the summary intervention of the court to prevent him submitting his case for determination. Accordingly, in my view the learned Federal Magistrate should not have summarily dismissed the applicant's claim against the second respondent in respect of Pt II Div 3 SD Act , to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant. 26 The matter should be remitted to the Federal Magistrates Court to be heard in full by his Honour and determined on the submissions of the parties at trial. THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The decision of Jarrett FM delivered on 12 October 2005, that the appellant's claim for relief against the second respondent for a breach of any provision of Pt II Div 3 of the Sex Discrimination Act 1984 (Cth) be dismissed to the extent that no facts were alleged that would or could amount to sexual harassment by the first respondent of the appellant, be set aside. 3. The application be remitted to the Federal Magistrates Court for directions and determination. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 13 July 2007 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: The First Respondent appeared in person Counsel for the Second Respondent: TJ Bradley Solicitor for the Second Respondent: Brian Bartley & Associates Date of Hearing: 6 February 2007 Date of Judgment: 13 July 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1051.html


case_outcome: cited

case_text: Whether an act does constitute sexual harassment in terms of s 28A SD Act clearly depends upon the nature or the quality of the act: Cowdroy J in Obieta v New South Wales Dept of Education and Training [2007] FCA 86 at [238] , Cooke v Plauen Holdings [2001] FMCA 91 at [25] . It is not immediately clear to me that conduct of the first respondent which his Honour found was harassment of the appellant in the context of her wish to form a relationship with him, was not, in the absence of a hearing where relevant evidence and legal principles were considered, "unwelcome conduct of a sexual nature in relation to the person harassed". Conduct in the nature of persistent personal invitations has, in some cases, and in conjunction with other acts, been held to constitute sexual harassment (cf for example Doyle v Riley (1995) EOC 92-748). Further, it has been contemplated that aggressive conduct following a rejection could constitute harassment of a sexual nature (note comments of Driver FM in Cooke [2001] FMCA 91 at ([30]).


case_text: In Rana v University of South Australia [2004] FCA 559 ; (2004) 136 FCR 344 in considering an appeal from a decision of a Federal Magistrate to summarily dismiss an application, Lander J made a number of observations which are applicable to the case before me. His Honour said at 354-355: "The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action... There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. ... The Court, on hearing an application under FMC Rules 4.04 (1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action - not that on the evidence presently available the applicant will succeed on that cause of action. ... (Summary dismissal) should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self-represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant's claim."


case_text: The appellant's grounds of appeal from the decision of Jarrett FM are more akin to submissions than grounds of appeal. I note the disadvantage of a self-represented litigant in relation to court proceedings (cf Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 536, re Morton; ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497 at 514). To the extent that I can correlate the appellant's grounds of appeal and submissions at the hearing with his Honour's reasons for judgment, the following is apparent.


case_title: Wentworth v Rogers (No 5) (1986) 6 NSWLR 534


case_text: The essence of the Commissioner's appeal is that the exercise of discretion by the Tribunal miscarried by reason of one or more errors of law: House v R [1936] HCA 40 ; (1936) 55 CLR 499 at 505, Avon Downs Pty Ltd v Federal Commissioner of Taxation [1949] HCA 26 ; (1949) 78 CLR 353 at 360. With the exception of Question of Law (c), the common factor in the questions of law posed to the Court, and the grounds of appeal of the Commissioner, is that the Tribunal either took into account irrelevant considerations in exercising its discretion, or failed to take into account relevant considerations. Proceedings before the Tribunal miscarry due to error of law where the Tribunal fails to determine a matter before it by reference to relevant considerations: Sullivan v Department of Transport (1978) 20 ALR 323 (especially per Fisher J at 350).


case_text: Appeals to the Federal Court from decisions of the Tribunal are confined to questions of law: s 44(1) Administrative Appeals Tribunal Act 1975 (Cth). These appeals are not appeals in the strict sense as they lie within the original jurisdiction of the court: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 581, Birdseye v Australian Securities and Investments Commission [2003] FCAFC 232 at [1] .


case_text: As Lockhart J observed in Coco v Deputy Commissioner of Taxation (1993) 115 ALR 670 at 676 however, it will usually be easier to identify matters irrelevant to the power than it will be to establish that the decision-maker has failed to take into account a relevant matter. 30 In considering the nature of the discretion conferred by s 298-20 and relevant considerations it is useful to have regard to: • the legislative context; • a number of Explanatory Memoranda where the remission discretion was discussed; and • relevant authorities where the remission discretion in s 298-20 has been considered. 31 The uniform administrative penalty regime introduced by the A New Tax System (Tax Administration) Act (No 2) 2000 (Cth) was enacted to apply to all taxation laws for which the Commissioner had administration. The object of Div 284 Sch 1 to the Act , which imposes administrative penalties for, inter alia , making a statement that is false or misleading, is stated in s 284- 10 as being: ...to provide a uniform administrative penalty regime for all taxation laws to enable administrative penalties to apply to entities that fail to meet their obligations under those laws in relation to: (a) making false or misleading statements; and (b) taking a position that is not reasonably arguable; and (c) entering into schemes; and (d) refusing to provide documents to the Commissioner.


case_title: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577


case_outcome: considered

case_text: Counsel for the Commissioner helpfully referred me to a number of authorities where the Tribunal has reviewed the discretion of the Commissioner under s 298- 20 : • In Hobart Central Child Care Pty Ltd v Federal Commissioner of Taxation [2005] AATA 1027 ; 2005 ATC 2351 where the Commissioner took the view that tax shortfalls resulting from subsequently disallowed deductions were caused by the taxpayer's intentional disregard of the law, and a penalty was imposed, the Tribunal found that there were no grounds for remitting the penalties under s 298- 20 . The Tribunal said: "Section 298- 20 of Schedule 1 to the TA Act provides that the Commissioner may remit all or part of a penalty. It does not set out any guidelines as governing the exercise of the discretion. Given the provisions relating to the imposition of penalties, there would clearly need to be circumstances that could be regarded as mitigating the taxpayer's behaviour in some way while bearing in mind the purpose for which the income tax is imposed and paid and the role of the ITA Act and TA Act in supporting that purpose. I am satisfied that there are no circumstances that mitigate those in which HCCC finds itself." (at 2,385) • In Otway Pastoral Pty Ltd v Federal Commissioner of Taxation [2005] AATA 649 ; 2005 ATC 2219 the taxpayer had failed to lodge quarterly BASs on time for the periods ending 30 June 2001 through to 30 September 2003, and finally lodged them in early December 2003. The Tribunal stated that the remission power should only be granted where special circumstances exist (at 2221). It found that the failure to lodge the BASs by the due dates was due to factors outside the control of the taxpayer, namely the failure of the taxpayer's bookkeeper to discharge her duties and to disclose such failure, and the unavoidable absence (due to a stroke) of the manager employed by the taxpayer to supervise the bookkeeper's activities. The Tribunal was satisfied that the combination of factors was unusual and represented special circumstances. In relation to the claim of the taxpayer that the absence of a manager coupled with drought conditions, loss of stock and the cumulative cost of penalties would leave it in a very difficult financial position, the Tribunal noted that: "While not necessarily a special circumstance, the general financial losses caused by the mishaps to the farm manager also have some relevance to this decision."(at 2222) • In Kowadlo v Commissioner of Taxation [2004] AATA 786 the taxpayers' returns for the year ended 30 June 2002 were lodged late and a penalty was imposed. The Tribunal noted that returns for each of the three prior years were lodged late without penalty, but found: "As stated on behalf of (the Commissioner), the penalty regime is to penalise non-compliance with the requirements of the legislation. Loss of revenue is not the issue. While particular and unexpected problems of a tax agent may be appropriate grounds for remission of all or part of a penalty, I am of the opinion here that the consistent late lodgement of returns by the applicants without prior penalties has allowed already any appropriate remission. If the late lodgement is entirely the fault of the tax agent, and I had no clear evidence that it was, this is a matter between the tax agent and his client. I am not satisfied on the evidence before me that there is justification for any remission of the penalty."(at [10]) • In Re Taxpayer v Federal Commissioner of Taxation [2005] AATA 696 ; (2005) 60 ATR 1129 the Commissioner took the view that the taxpayer was not entitled to claim GST input credits in the relevant circumstances, and because the case involved intentional disregard of a taxation law, imposed a penalty of 75% under Div 284. The Tribunal affirmed the decision of the Commissioner not to remit the penalty or any part thereof in circumstances where the taxpayer had intentionally understated tax or knowingly over-claimed a credit. • In Re William Vazquez & Associates v Federal Commissioner of Taxation [2005] AATA 301 ; (2005) 58 ATR 1357 where a director of the taxpayer said that the taxpayer did not have the funds to make payment of outstanding amounts, and that he had been of the mistaken belief as to the time payments were due to be made, the Commissioner imposed a penalty for late lodgement. In allowing partial remission of the penalty on the basis that the penalty was excessive, it is useful to note the following comments of the Tribunal: "[14] Although the penalty imposed is described as an 'administrative penalty' it is still a penalty and normal sentencing principles must be kept in mind when exercising the discretion as to whether to mitigate the penalty of not. In particular apart from circumstances peculiar to the individual offending taxpayer the threefold purposes of punishment must be kept in mind. Those purposes are retribution, deterrence and reformation. In particular, see the discussion of sentencing principles in R v Kane [1974] VR 759 at 764-765. ... [26] At para 98.5.3 of [the ATO receivables policy document] it is stated that in determining penalty the Commissioner will have regard to the lodgement history of the taxpayer and the effort taken by the Tax Office to obtain lodgement. ... [28] In seeking to apply those principles to the individual circumstances of this taxpayer, I do not regard them as either derogating from or adding to general principles regarding mitigation of penalty. [29] Notwithstanding the comments in Re Kowadlo and FCT [2004] AATA 786 , I do regard any loss or potential loss or revenue as being part of the matrix of factors affecting a decision whether to remit penalty or not. [30] I accept that the applicant, by its directors was under a mistaken belief that payment had to accompany lodgement. What detracts from any mitigating factor is that the applicant made no attempt to contact the ATO and explain its difficulties and seek some arrangement. Further, even when 2 reminder letters were sent the approach of the directors of the company seems to have been one of ignoring the problem in the hope that it would go away. [31] On the other hand, there has apparently been no prior or subsequent breach. The company is apparently viable but subject to fluctuations in its income... [32] Quite clearly, the applicant has learnt a salutary lesson that time constrains must be obeyed and that difficulties with returns should be negotiated with the respondent at the outset. This can be classed as reformation. [33] So far as retribution and general deterrence are concerned, no doubt the applicant and its accountants and directors are now aware of the late lodgement provisions and will make others aware." • In Re Kizquart Pty Ltd v Federal Commissioner of Taxation [2005] AATA 582 ; (2005) 60 ATR 1112, the Tribunal followed Vazquez and found that in determining whether the discretion to mitigate should be exercised, normal sentencing principles should be taken into account (at 1116). In finding that the amount of the penalty was excessive, the Tribunal found it relevant that: o the taxpayer had reformed his practice and no longer lodged his statements late, and accordingly it was not necessary to punish him for his inadvertent failure in view of his difficulties during the period in question (at 1116) o there had not been any actual loss or realistically any potential loss of revenue which might affect a decision whether to remit penalty o the late lodgements were caused by a combination of the taxpayer's failure to understand the new system, pressure of work and personal difficulties, all factors amounting to a delay caused by circumstances beyond the control of the taxpayer o the taxpayer had a good tax record and contacted the ATO once he recognised that he had not understood his obligations. 42 As the Commissioner noted in his submissions, Hobart Central Child Care [2005] AATA 1027 ; 2005 ATC 2351, Otway Pastoral Pty Ltd [2005] AATA 649 ; 2005 ATC 2219, Kowadlo [2004] AATA 786 and Taxpayer v Federal Commissioner of Taxation [2005] AATA 696 ; 60 ATR 1129 are consistent with the Commissioner's submissions as to the factors to which a decision-maker may have regard in relation to the exercise of the remission discretion, whereas William Vazquez [2005] AATA 301 ; 58 ATR 1357 and Kizquart [2005] AATA 582 ; 60 ATR 1112 are not.


case_title: Kowadlo v Commissioner of Taxation [2004] AATA 786


case_text: Although s 298-20, which authorises the Commissioner to remit all or part of the penalty to the taxpayer, requires the Commissioner to notify the taxpayer of reasons for a decision to either not remit a penalty or remit only part of the penalty, the section does not specify the considerations the Commissioner must take into account in so doing. In these circumstances it is useful to note observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39-40 where his Honour said: "What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act . In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard... By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act ." (emphasis added)


case_title: Otway Pastoral Pty Ltd v Federal Commissioner of Taxation [2005] AATA 649 ; 2005 ATC 2219


case_title: Re Taxpayer v Federal Commissioner of Taxation [2005] AATA 696 ; (2005) 60 ATR 1129


case_title: Sullivan v Department of Transport (1978) 20 ALR 323


case_outcome: referred to

case_text: I will not discuss the legal principles governing the adequacy of a pleading: I discussed them in Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of New South Wales [1999] FCA 213 and Australian Automotive Repairers' Association (Political Action Committee) Inc v NRMA Insurance Ltd [2002] FCA 1568. Reference may be made also to Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd & Anor (1996) ATPR.


case_title: Collex Waste Management Pty Ltd v Waste Recycling & Processing Service of New South Wales [1999] FCA 213


case_text: ANZ seeks particulars in two categories: (a) particulars of the oral Representations pleaded in paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC; and (b) in respect of each of the subparagraphs of para 29D of the ASC, the factual matters said to give rise to the alleged failure on the part of ANZ. In Goldsmith v Sandilands [2002] HCA 31 ; (2002) 190 ALR 370 at 371, Gleeson CJ stated: The facts in issue in a civil action case emerged from the pleadings, which, in turn, are framed in the light of the legal principles governing the case. Facts relevant to facts in issue emerge from the particulars and the evidence. The function of particulars is not to expand the issues defined by the pleadings, but "to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial" ( Bruce v Odhams Press Ltd [1936] 1 KB 697 at 712-13). Particulars of the Representations pleaded in paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC 72 In relation to each of the Representations pleaded in the paragraphs identified, ANZ seeks an order that the applicants specify: (a) whether the Representation is alleged to have been made orally; and (b) if it is alleged that the Representation was made orally; (i) when it was made; (ii) by whom it was made; (iii) to whom it was made; (c) whether the Representation is alleged to have been of a present fact or as to an opinion. 73 I do not think that ANZ is entitled to require the applicants to categorise the alleged Representations as being as to present fact or as to an opinion. No doubt, there will be submissions on the final hearing as to the proper characterisation of particular Representations for the purpose of s 51A of the TP Act and s 12BB of the ASIC Act , but I do not think that characterisation at this stage is necessary in order to enable ANZ to file its defence.


case_text: In principle there is no difficulty in the applicants complaining that, having been induced by ANZ's misleading or deceptive conduct to enter into the Transaction, they lost all the money they paid at the time of doing so, and there is no difficulty in the applicants seeking to recover that money with interest, whether based on Hungerfords v Walker [1989] HCA 8 ; (1989) 171 CLR 125 or otherwise. However, the ASC should plead facts showing that the applicants claim that they got nothing in return for the money paid. It is not suggested, for example, that Newco did not become legally indebted to Geomar for the sum of $4,055,556 which it lent to Newco on 1 May 2003. I presume that immediately following the loan, Newco was able to repay it. Some facts to the effect that Newco ceased to be able to repay the loan at some time should be pleaded. The amounts claimed by the applicants 67 Paras 56 and 57 of the ASC set out the amounts claimed by "the Chapmans" (the ASC uses that expression to refer to the applicants). ANZ complains that para 57 of the ASC is embarrassing because it asserts that the applicants, without distinguishing between them, claim the amount of $13,183,682.38. 68 In their submissions, the applicants reply that the letter dated 21 November 2007 from Atanaskovic Hartnell, coupled with the Substitute Table (that is annexed to these reasons for judgment), adequately identifies the amounts claimed by the respective applicants.


case_title: Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd & Anor (1996) ATPR


case_text: It has been suggested that in contemporary commercial litigation, where there will inevitably be a direction for the filing and service of affidavits or witness statements, the necessity for lengthy particulars may be viewed with disfavour: Police and Nurses Credit Society Ltd v Burgess Rowson (WA) Pty Ltd [2006] FCA 1395 at [17] . 79 I have read carefully paras 19, 21A, 22, 24, 25, 26, 27, 28 and 29 of the ASC and I am of the view that the particulars already provided are adequate. In each case, it is said that in so far as the Representations in question were oral, they were made in "a conversation", "a discussion", "various discussions" or "several discussions", between a named person on behalf of ANZPE and one or more named persons on behalf of the applicants. As well, either a particular date or a confined period is stated. 80 I do not think that ANZ needs more to enable it to file its defence. Particulars of falsity subparagraphs of para 29D of the ASC


case_text: Peoplebank submits that the demands of justice require that the costs of the notice of motion be paid forthwith for the following reasons: 1. To prevent the frustration of prior Court orders. Peoplebank submits that the Court has made it clear to Cytel that the costs awarded to Peoplebank on 3 November 2006 must be paid, before Peoplebank is required to incur any further costs in this action. Peoplebank notes that the current costs order arises out of attempts by Peoplebank to secure this payment. 2. The application ought not to have been brought. Peoplebank submits that the notice of motion ought not to have been brought and that the application is devoid of merit. Peoplebank submits that ' propounding interlocutory applications of dubious merit is a relevant consideration in the exercise of the Court's discretion on costs '. In Life Airbag at 12 Branson J observed that the demands of justice may require a departure from the ordinary rule where a party has been required to incur significant costs over and above those it would have incurred had the opposing party acted with competence and diligence. Peoplebank says that this observation is apposite. 3. The end of the proceedings is still not in sight. Peoplebank: • notes that the proceedings are stayed until Cytel pays the amount of the 3 November 2006 costs order. • submits that the Court can infer that Cytel has no present intention to pay this debt and is aiming to postpone payment. • submits that the length of time until the proceedings can be concluded is a relevant factor in exercise of the Court's discretion ( Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 626 at [4] [5]). 4. Costs granted by the current costs order are discrete. Peoplebank submits that it is a relevant factor that the current costs order relates to a discrete issue, separate from the principal proceedings. 5. No evidence that a 'forthwith order' will stifle the proceedings. Peoplebank submits that there is no evidence to support Cytel's claim that it will be 'further prejudiced in prosecuting its claim'.


case_text: Both parties recognise that the Court retains a discretion ( McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [14] [15], [38] per Weinberg J; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 at 11 per Branson J; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] per Sackville J). The authorities provide that, in considering whether to depart from the ordinary rule, ' the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice... ' ( Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 per Olney J, cited in Life Airbag at 11 per Branson J; see also McKellar at [38] per Weinberg J).


case_text: On 22 April 2008 I delivered judgment in Cytel Pty Ltd v Peoplebank Recruitment Pty Ltd [2008] FCA 518 , pursuant to a notice of motion filed by Cytel ('the notice of motion'). Cytel sought orders, inter alia, that a costs order against it be set aside and that it be granted time to file a notice of objection to a bill of costs issued against it. The notice of motion was dismissed and Cytel was ordered to pay Peoplebank's costs on an indemnity basis. 2 Cytel did not appear when judgment was delivered. Peoplebank sought an order that the costs of the notice of motion be taxed and payable forthwith ('the current costs order'). As Cytel was absent, I directed that it provide written submissions on Peoplebank's application. Both parties have now provided submissions. Cytel opposes the making of the current costs order. 3 The background to these proceedings is set out in Cytel at [2] [13]. By way of summary: • On 3 November 2006 I made costs orders with the consent of Cytel and Peoplebank ('the 3 November 2006 costs order'). Those orders provided that Cytel pay Peoplebank's costs in respect of a number of different aspects of the current proceedings, some on a party party basis and some on an indemnity basis. The 3 November 2006 costs order included an order that the costs be taxed and payable forthwith. • Peoplebank filed a bill of costs in the Court on 29 March 2007. The bill of costs was assessed in accordance with O 62 r 46(3) of the Federal Court Rules and an estimate of costs was made for which, if the bill were to be taxed, the certificate of taxation would be likely to issue ('the estimate'). Cytel did not file and serve a notice of objection to the estimate. • Cytel received the certificate of taxation that followed. • No payment was made by Cytel within the 14 days of service of the certificate of taxation and Peoplebank arranged for the certificate of taxation to be entered as a judgment of the Court. In July 2007 an order was entered pursuant to O 62 r 45(3) of the Federal Court Rules that Cytel pay the relevant sum to Peoplebank ('the order'). A copy of the order was served on Cytel's solicitors. • Cytel did not pay the amount sought or any part therefore. Cytel sought to set aside the order on the basis of non-receipt of the estimate, pursuant to O 62 r 46(3)(cb) of the Federal Court Rules . Cytel also sought to set aside the certificate of taxation and asked to be granted time to file a notice of objection to the bill of costs. 4 In Cytel I determined that I was not satisfied that Cytel's solicitors had not received the estimate. Accordingly, O 62 r 46(3)(cb) did not apply (at [28]). Further, I concluded that there was no basis advanced by Cytel for the exercise of discretion to set aside the order or the certificate of taxation (at [27]). 5 At [31] I determined that it was appropriate that Cytel pay the costs of and incidental to the notice of motion on an indemnity basis for several reasons, including: • The notice of motion was filed some time after the service of the order and after an acknowledgement to pay those costs was made. There was no explanation of the delay between the time of service of the certificate of taxation in June 2007 and the filing of the notice of motion (at [27]). • No objection to the amount sought by Peoplebank had been notified or formulated by Cytel and there was no evidence of the nature of any such objection that might be made to the certificate or to the likely quantum of any further reduction sought. • Cytel had every opportunity to bring an application to set aside the certificate of taxation of which it had acknowledged receipt and did not do so. • Peoplebank had been forced to incur unnecessary costs in respect of an obligation to pay costs previously acknowledged. The costs owed to Peoplebank outlined in the 3 November 2006 costs order are still owed, despite the order that they be taxed and payable forthwith. 6 Cytel submits that, by reason of O 62 r 3 of the Federal Court Rules , the general rule is that the costs of an interlocutory proceeding are not taxed until the principal proceeding has been concluded ('the ordinary rule'). Cytel says that there should be no departure from the ordinary rule.


case_outcome: applied

case_text: Both parties recognise that the Court retains a discretion ( McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [14] [15], [38] per Weinberg J; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545 at 11 per Branson J; Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347 at [21] per Sackville J). The authorities provide that, in considering whether to depart from the ordinary rule, ' the discretion should be exercised in favour of a party who establishes that the demands of justice require that there be a departure from what appears to be the general practice... ' ( Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312 per Olney J, cited in Life Airbag at 11 per Branson J; see also McKellar at [38] per Weinberg J). 8 Peoplebank submits that the demands of justice require that the costs of the notice of motion be paid forthwith for the following reasons: 1. To prevent the frustration of prior Court orders. Peoplebank submits that the Court has made it clear to Cytel that the costs awarded to Peoplebank on 3 November 2006 must be paid, before Peoplebank is required to incur any further costs in this action. Peoplebank notes that the current costs order arises out of attempts by Peoplebank to secure this payment. 2. The application ought not to have been brought. Peoplebank submits that the notice of motion ought not to have been brought and that the application is devoid of merit. Peoplebank submits that ' propounding interlocutory applications of dubious merit is a relevant consideration in the exercise of the Court's discretion on costs '. In Life Airbag at 12 Branson J observed that the demands of justice may require a departure from the ordinary rule where a party has been required to incur significant costs over and above those it would have incurred had the opposing party acted with competence and diligence. Peoplebank says that this observation is apposite. 3. The end of the proceedings is still not in sight. Peoplebank: • notes that the proceedings are stayed until Cytel pays the amount of the 3 November 2006 costs order. • submits that the Court can infer that Cytel has no present intention to pay this debt and is aiming to postpone payment. • submits that the length of time until the proceedings can be concluded is a relevant factor in exercise of the Court's discretion ( Allstate Life Insurance Co v Australia and New Zealand Banking Group Limited (No 13) [1995] FCA 626 at [4] [5]). 4. Costs granted by the current costs order are discrete. Peoplebank submits that it is a relevant factor that the current costs order relates to a discrete issue, separate from the principal proceedings. 5. No evidence that a 'forthwith order' will stifle the proceedings. Peoplebank submits that there is no evidence to support Cytel's claim that it will be 'further prejudiced in prosecuting its claim'. 11 Cytel submits that, if the costs due under the 3 November 2006 costs order are paid and the stay on the proceedings is lifted, a hearing can take place. I am not satisfied that Cytel intends to comply with the 3 November 2006 costs order. If the stay remains in place, Peoplebank will not receive the benefit of the current costs order for a considerable period of time, if at all ( Life Airbag at 12 per Branson J). 12 Cytel also argues that there was no abuse of process in bringing the notice of motion. Cytel relies on the fact that its present solicitors were only retained in around October 2007 and the notice of motion was brought in November 2007. While I accept that Cytel retained new solicitors in 2007, these proceedings were commenced in 2003. Cytel has retained a number of different solicitors since that time. Cytel did not notify or formulate any objections to the amount sought in the certificate of taxation or provide evidence or particulars to support a reduction. Cytel had every opportunity to apply to set aside the certificate of taxation, of which it acknowledged receipt. It did not do so. Instead Cytel chose to file the notice of motion. Because of this, Peoplebank was forced to incur costs it would not have incurred had Cytel acted appropriately. These costs are discrete and separate from the principal proceedings. 13 The costs the subject of the 3 November 2006 costs order related to Cytel's continual amendments to the pleadings and Cytel's omissions to act, causing Peoplebank to incur costs. The current costs order arises from Cytel's attempt to defer and delay payment of costs the subject of that earlier costs order. The interests of justice require that there be a departure from the ordinary rule. The costs of the notice of motion should be taxed and payable forthwith.


case_title: McKellar v Container Terminal Management Services Ltd [1999] FCA 1639


case_title: Thunderdome Racetiming and Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297


case_text: one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court.


case_text: judgment on the substantive claims was delivered ( BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd (No 3) [2009] FCA 1087) several issues were left for later consideration. Those issues are: (1) on what claim will BHPB elect to take judgment; (2) in what currency should judgment be given; (3) interest; and (4) costs. The parties have filed written submissions on each issue. Some raise nice questions of principle. BHPB was successful in several of its claims against Cosco, including a claim that Cosco had breached a warranty that it had authority to act on behalf of New Century International Leasing Co Ltd (NCI) in the negotiations of the charterparty for the Global Hawk. BHPB elects to take judgment on that claim. In the originating application BHPB claimed damages in US dollars. At trial BHPB proved the value of its claim in US dollars. That value is US$1,063,316.19. This amount comprises unpaid hire, a ballast bonus, bunkers, port costs and miscellaneous expenses, less a payment of US$120,000. Although in its originating process BHPB claimed damages in US currency and established the quantum of that claim in US currency, it now seeks judgment for the Australian dollar equivalent calculated as at the date of entry of judgment.


case_title: Calderbank v Calderbank [1976] Fam 93

case_text: BHPB relies on what it describes as a Calderbank letter (after Calderbank v Calderbank [1976] Fam 93) , which it served on Cosco's lawyers before the trial. The relevant parts of the Calderbank letter read: "[I]n a genuine attempt to resolve its dispute with both Cosco and [Seawise, the second respondent], our client would be prepared to accept the total of US$725,000 plus interest and costs as follows: (a) as to Cosco: US$550,000 (plus interest and costs to be agreed or otherwise taxed); (b) as to [Seawise]: US$175,000 (plus interest, and costs to be agreed or otherwise taxed). Clearly this figure represents a considerable reduction of our client's principal claim, and we would encourage your client to take advantage of this opportunity to resolve the claim promptly and in its entirety. Further, should Cosco and [Seawise], as between themselves, consider that a different division of the total amount of US$725,000 plus interest and costs occur, we would invite you to deal with that as you may see fit, provided the total of our client's offer is met." For good reason BHPB was seeking to compromise its claims against both respondents. For that it wanted a total of US$725,000 plus interest plus costs. Accordingly, BHPB made an offer that could only be accepted by both respondents unless one agreed to pay the full claim with interest and costs, and the other respondent agreed to waive any claim for costs. According to the Calderbank principle, indemnity costs will not be ordered if a party acted reasonably in rejecting the Calderbank offer. Cosco's rejection of BHPB's Calderbank offer was reasonable. A party will be acting reasonably in rejecting a Calderbank offer if the offer is unclear or imprecise. In this case, BHPB's offer was imprecise in some respects. The offer did not specify a rate of interest, in circumstances where the applicable rate was open to argument. More importantly, it is unclear whether the offer was being made to Cosco alone, or Cosco and Seawise jointly. The offer appears to have been addressed to Cosco alone, but refers to both Cosco and Seawise making payments. If the offer was made to both Cosco and Seawise jointly, then this raises a further problem the offer was incapable of acceptance by Cosco alone. BHPB is not entitled to charge one offeree with indemnity costs for not having accepted an offer that was incapable of acceptance by that offeree alone. BHPB also seeks indemnity costs by reason of the abandonment by both respondents on the first and second days of the trial of several contentions raised in their respective defences on which BHPB had gone to the trouble of obtaining expert evidence from two lawyers. The particular contentions were that BHPB had failed to exercise rights of lien and possession with the consequence that it was the author of its own loss. These allegations made it necessary for BHPB to call expert evidence on English law (the law of the charterparty) and Thai law (the place where the Global Hawk was to discharge its cargo). The abandonment of part of the defence is not, without more, the occasion to award indemnity costs in respect of those costs which, in the event, have been unnecessarily incurred. Indemnity costs might be justified if the abandoned contentions were hopeless. That, however, is not what is argued here. What happened in this case was that BHPB filed the relevant expert reports around a month or so prior to the trial commencing. When BHPB's case in respect of the abandoned contentions was fully laid out, the respondents realised they could not meet it. So, by abandoning aspects of their respective defences, the respondents saved BHPB incurring unnecessary trial costs as well as saving court time. They should not be punished for that. Accordingly, up to the point where BHPB filed the expert reports, indemnity costs are clearly not warranted. Whether indemnity costs should be paid in respect of costs incurred after the filing of expert reports is more difficult. The respondents took more than a month after receiving the expert reports to indicate they were abandoning the contentions. During that period, BHPB may have incurred further costs regarding the abandoned contentions (although these costs may have been ameliorated by the fact that the experts were to give oral testimony via videolink). On balance, I consider that the respondents' delay in indicating their intentions to BHPB was not so great as to warrant the award of costs on an indemnity basis.


case_text: for example, where damages consist of expenses incurred in the currency of the contract, the award should be made in that currency: Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Martha Envoy) [1977] QB 324. If, on the other hand, the expenditure is incurred in another currency and in order to meet it the plaintiff uses his own currency, then the award should be made in the plaintiff's own currency: The Folias [1979] AC 685 , 699 at 702.


case_title: Gould v Vaggelas (1985) 157 CLR 215

case_text: last contentious matter is BHPB's application for a Bullock or Sanderson order so that Cosco will bear the costs of the successful respondent, Seawise. Such orders may be justified where the applicant has reasonably and properly incurred the cost of joining the successful defendant to establish his claim and it is just that the unsuccessful respondent should bear the costs of the joinder: see generally Gould v Vaggelas (1985) 157 CLR 215 at pp 230, 247, 260; Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179 at [127] - [136] ; State of Victoria v Hovarth [2003] VSCA 24. It will be just to make a Bullock or Sanderson order if the conduct of the unsuccessful respondent has rendered it appropriate to shift the incidents of the successful respondent's costs. That is the position here. BHPB was justified in joining Seawise after Cosco filed a defence denying responsibility for BHPB's losses and laying the blame at the feet of Seawise. That made it inevitable that BHPB would join Seawise and it is equally inevitable that Cosco should bear Seawise's costs.


case_title: Jean Kraut A.G v Albany Fabrics [1977] QB 182


case_text: to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.


case_outcome: followed

case_title: Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489


case_title: Miliangos v George Frank (Textiles) Ltd [1976] AC 443


case_title: Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564


case_title: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388


case_title: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25


case_text: this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent.


case_title: State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350


case_title: State of Victoria v Hovarth [2003] VSCA 24


case_title: Stevedoring Industry Finance Committee v Gibson [2000] NSWCA 179


case_title: Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515


case_title: Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63


case_title: The Arpad [1934] P 189


case_title: The Despina R [1979] AC 685

case_text: one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court. In breach of contract cases, the question is whether, expressly or by implication, the contract specifies in what currency payment for all obligations under the contract should be made: The Folias [1979] AC 685 , 699 at 700. That the contract requires some payments to be made in a particular currency does not lead to the conclusion that damages must be paid in the same currency. If the contract is silent the plaintiff should be compensated for losses in the currency which most truly expresses his loss: The Folias [1979] AC 685 , 699 at 701. So, for example, where damages consist of expenses incurred in the currency of the contract, the award should be made in that currency: Federal Commerce and Navigation Co Ltd v Tradax Export SA (The Martha Envoy) [1977] QB 324. If, on the other hand, the expenditure is incurred in another currency and in order to meet it the plaintiff uses his own currency, then the award should be made in the plaintiff's own currency: The Folias [1979] AC 685 , 699 at 702.


case_text: one time it was clear that an Australian court could only enter judgment in Australian currency: In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007 at 1068-1069. That is no longer the law. In some cases at least, a judgment can be given in a foreign currency. In Miliangos v George Frank (Textiles) Ltd [1976] AC 443 the House of Lords held that where a contract provides for a monetary obligation to be paid in foreign currency, the judgment ought be given in that currency. It is now also established that judgment can be given in foreign currency for damages in tort ( The Despina R [1979] AC 685) and for breach of contract ( Jean Kraut A.G v Albany Fabrics [1977] QB 182 ; The Folias [1979] AC 685 , 699). Miliangos has been followed in Australia: see eg Mitsui OSK Lines Ltd v The Ship Mineral Transporter [1983] 2 NSWLR 564 in New South Wales; ANZ Banking Group Ltd v Cawood [1987] 1 Qd R 131 in Queensland; Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135 in Victoria; and Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917 in the Federal Court. In this state of affairs BHPB should have judgment for the unpaid hire and ballast bonus in US dollars and the balance of its claim in Australian dollars. As to the US dollar portion, the order should follow the form suggested in Schorsch Meier GmbH v Hennin [1975] QB 416 at 427, namely that the judgment for the specific amount of US dollars or the Australian equivalent at the time of payment or execution cf Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Ltd (No 2) [1998] VSC 135. As regards the balance, the conversion should be determined on the rates existing when each debt fell due ( Stroms Bruks Aktie Bolog v Hutchison [1905] AC 515 ; The Arpad [1934] P 189) , which I will take to be the day on which the relevant invoice was sent. As to interest, the rule appears to be that as regards the judgment in the foreign currency, interest should be calculated at the rate applicable for that foreign currency. In Miliangos v George Frank (Textiles) Ltd (No 2) [1977] QB 489 at 497 Bristow J held that the plaintiff, who obtained judgment in Swiss francs, was entitled to interest at a rate at which someone could reasonably have borrowed Swiss francs in Switzerland at simple interest. The same approach has been adopted by Australian courts: see eg Maschinenfabrik Augsburg-Nurenburg AG v Altikar Pty Ltd (1984) 3 NSWLR 152 ; Swiss Bank Corporation v State Bank of New South Wales (1993) 33 NSWLR 63 affirmed on appeal State of New South Wales v Swiss Bank Corporation (2001) 39 NSWLR 350. In Vlasons Shipping Inc v Neuchatel Swiss General Insurance Co Limited [1998] VSC 135 , Byrne J applied the US prime borrowing rate in respect of a judgment in US dollars. This decision was reversed on appeal, but on other grounds: Neuchatel Swiss General Insurance Co v Vlasons Shipping Inc [2001] VSCA 25. I would also apply that rate calculated on a monthly basis. In the case of judgment for damages to be entered in Australian dollars, the practice is to adopt the rate prevailing in the Supreme Court of the State or Territory in which the Federal Court is sitting: Namol Pty Ltd v AW Baulderstone Pty Ltd (No 2) [1993] FCA 606 ; (1993) 47 FCR 388 at 389.


case_title: Westpac Banking Corp v MV 'Stone Gemini' [1999] FCA 917


case_text: Federal Magistrate Nicholls dismissed the application for review ( SZDWB v Minister for Immigration & Citizenship [2007] FMCA 1522). In dealing with the grounds of review and the matters raised in argument, his Honour considered that the Tribunal gave sufficient reasons for its conclusion (at [17]). His Honour also considered that the Tribunal's finding that the appellant's political profile was not such as to engage protection obligations pursuant to the Convention was open to the Tribunal on the material before it (at [24]). His Honour also concluded that the distinction drawn by the Tribunal between a high profile political member of the Awami League and an "ordinary member" was not a distinction applicable to the relevant test under s 91R of the Act but a distinction drawn from the factual circumstances of the appellant (at [52]). To the extent that the appellant took issue with that finding of fact, his Honour found that it amounted to impermissible merit review which does not found jurisdictional error. 7 As to an alleged breach of s 424A of the Act, while noting that the Tribunal had not been obliged to put the information in the 6 June letter to the appellant, Nicholls FM found that the Tribunal had plainly had regard to the information and the appellant's response to it (at [55]-[56]). 8 In this appeal, the appellant appeared in person assisted by an interpreter. He provided submissions in writing that addressed each of the grounds in his notice of appeal. He also emphasised in his oral submissions that his claim was that he was a high office holder in the Awami League and had been targeted on that basis.


case_text: Fifthly, the appellant asserts that the Tribunal committed jurisdictional error by referring to his evidence from the original Tribunal hearing where the matters were not put to him in accordance with s 424A(1) of the Act. Information given to the Tribunal by the appellant is an exception to the requirement in s 424A(1) by reason of s 424A(3)(b). The reference in the Act to the Tribunal does not depend on the identity of the particular member constituting the Tribunal. Until the Tribunal has made a valid decision on the review that has been initiated by valid application under s 414 , it has a duty to perform that particular review. The Tribunal as reconstituted still has properly before it the materials that were obtained when the decision that had been set aside was made ( SZEPZ v Minister for Immigration & Multicultural & Indigenous Affairs (2006) 159 FCR 291 at [39], [41]). 15 This ground of appeal does not point to any particular error on the part of the Federal Magistrate in reviewing the decision of the Tribunal other than a claim that the Federal Magistrate did not consider the appellant's arguments in relation to the Tribunal's decision. 16 In his written submissions, the appellant contends that the Tribunal did not assess his claim according to s 91R of the Act because it came to an incorrect factual finding as to his political profile. Contrary to the appellant's submissions, the Federal Magistrate did consider this ground. His Honour concluded that this was not, as submitted by the appellant, an impermissible limiting of the criteria of s 91R but a factual finding on the appellant's claims (at [52]). This was evident from the elaboration of this ground by the appellant at the hearing, when he explained that his political activity was at a "high level" which attracted attack and that the Tribunal had been wrong to conclude otherwise. The factual finding by the Tribunal to the contrary was open to it and a matter for the Tribunal. 17 The appellant has not shown that his Honour was in error in concluding that the Tribunal had properly discharged the functions conferred on it under the Act. 18 There is no evidence to support an assertion that the appellant was misled or "confused" or "misguided" by the 6 June letter. He responded to it in detail and did not assert in his reply that he failed to understand it. The Federal Magistrate did observe that there was ' one confusing or puzzling aspect in what the Tribunal has done in this regard ' (at [42]) but that related to his Honour's observation that the Tribunal was not obliged by s 424A(1) of the Act to invite comment in writing on the subject matter of the letter, being information given to the original Tribunal by the appellant or contained in country information, within the exceptions in s 424A(3). While his Honour also concluded that the letter may have been sent pursuant to s 424 rather than s 424A of the Act and was directed to the provision of additional information rather than being concerned with the opportunity to comment on information already before the Tribunal (at [43]), this does not support this ground of appeal and does not give rise to jurisdictional error. The Tribunal noted that it had regard to the information. 19 The appellant asserts that the Tribunal did not give any explanation regarding the letters. The Tribunal did in the 6 June letter indicate the relevance of the first two pieces of information. The third piece of information was country information which the Tribunal was under no obligation to explain. Further, it was apparent from the subject matter of the letter in the context of the claims that in each case the appellant was being asked to comment on information regarding aspects of his claims and the matters he had put to the Tribunal in support. 20 It follows that the appeal should be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 20 February 2008 The Appellant was self represented Counsel for the Respondent: A Mitchelmore Solicitor for the Respondent: Sparke Helmore Date of Hearing: 12 February 2008 Date of Judgment: 21 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/92.html


case_text: His Honour held as follows ( Donald Financial Enterprises Pty Ltd v APIR Systems Ltd [2008] FCA 1112 at [190] ): In the present case, while the number of shares that might be issued in discharge of the completion payment under the second heads of agreement has a floor 100,000 for each executive director it has no ceiling, so that the number of shares that might be issued is potentially unlimited depending on the value of the APIR shares at the relevant time. In context, such an event, post acquisition, is a cause inherent in the thing itself the second heads of agreement and not extrinsic or independent of it, and should be taken into account in any assessment of the real value of the shares at the time of acquisition. This makes any assessment of loss or damage, other than for the full subscription/purchase price, exceedingly difficult, if not impossible. 18 His Honour went on to hold that the most appropriate remedy to be granted to the respondent was an order avoiding the share purchase transactions with consequential orders requiring a full refund of all moneys paid to APIR and to Messrs Broso and Riley pursuant to those transactions together with interest thereon. 19 There were many subsidiary issues dealt with by his Honour in his Reasons, findings in respect of which underpin his Honour's ultimate conclusions. Necessarily involved in his Honour's factual findings were findings as to the credit of the main witnesses who gave evidence at the trial. It is not necessary for me to traverse the detail of his Honour's findings concerning the important witnesses at the trial. It is sufficient for present purposes for me to observe that, in general terms, his Honour found Mr Sharp, the principal witness for the respondent, to be a reliable and truthful witness whereas his Honour had serious reservations about the evidence of Mr Riley and Mr Broso. 20 APIR also brought a cross-claim against the respondent and against Mr Sharp. His Honour dismissed the cross-claim. There has been no appeal in respect of his Honour's conclusions on the cross-claim. 21 The Amended Notice of Appeal has been filed on behalf of all respondents in the proceedings at first instance although his Honour did not grant any relief against the fourth, fifth and sixth appellants. His Honour found in favour of those parties but did not consider it necessary to dismiss the proceedings as against them. The Amended Notice of Appeal contains 13 grounds of appeal. Most of those grounds are directed to overturning findings of fact made by his Honour. 22 Grounds 8, 9, 10 and 11 are in the following terms: 8. The learned Trial judge erred in concluding that the Respondent (Applicant at trial) had suffered any " loss or damage " [Judgment # 181] within the meaning of section 1041I(1) of the Corporations Act 2001 (Cth). Particulars The learned Trial judge erred in failing to conclude that the Respondent failed to prove that it had suffered any loss or damage. Further and alternatively, the learned Trial judge failed to take into account or proper account the expert evidence led by the Appellants (Respondents at trial) in the proceedings on the issue of whether any loss or damage could properly be said to have been incurred. 9. In the alternative, the learned Trial judge erred in law in making an order in the form of order 4 and that a proper form of order would have been that upon payment of the subscription price of the shares, the shares should be deemed to be cancelled. 10. In the alternative, the learned Trial judge erred in failing to exercise his discretion to order interest up to and including 27 March 2007 only and not after that date. 11. In the alternative, the Trial judge erred in exercising his discretion in failing to order that the Respondent/(Applicant at trial) pay the Appellants' costs of the Respondent's claim on: (a). An indemnity basis; or alternatively; (b). A party-party basis; or alternatively; (c). The basis that each party pay their own costs of the Respondent's claim; or alternatively (d). On a reduced, proportional or other basis from 27 March 2007 or such other time or basis as this Court considers just. (Original emphasis.) 23 In the Amended Notice of Appeal, the appellants seek to have all of the orders made by Edmonds J on 30 July 2008 set aside and the respondent's claim dismissed with costs. In the alternative, they seek to set aside the orders made by Edmonds J in respect of interest and costs and to substitute for those orders orders in the following terms: 4(b). ... (i). An order that the Respondent/(Applicant at trial) pay the Appellants' costs of the Respondent's claim on: 1. An indemnity basis; or alternatively 2. A party-party basis: or alternatively 3. The basis that each party pay their own costs of the Respondent's claim; or alternatively 4. A reduced, proportional or other basis from 27 March 2007 or such other time or basis as this Court considers just; (ii). An order that the First, Second and Third Appellants/(First, Second and Third Respondents at trial) pay the Respondent's/(Applicant's at trial) prejudgment interest up to and including 27 March 2007 only. 24 Under cover of a letter dated 22 August 2008, the appellants tendered to the respondent two bank cheques one for $530,000 and the other for $217,045.60. The appellants contend that they have thus attempted to comply with orders 2, 3, 4, and 5 of the final orders made by Edmonds J on 30 July 2008. 25 In the letter, under cover of which those cheques were tendered, the solicitor for the appellants said: Upon receipt of these cheques, kindly complete and return to our client APIR Systems Ltd the properly executed instruments of transfer for 281,904 shares pursuant to orders 4 and 5. APIR directs that all the shares be transferred to Dalton Consultants Pty Limited ABN 86 052 406 309, PO Box 3798 Weston ACT 2611, 15 25 Trenerry Street, Weston ACT 2611. Kindly ensure that this information is correctly transcribed as necessary on the transfer documents you return to APIR for completion. Finally, as you are aware, an appeal has been filed in this matter. This payment now is made without prejudice to our clients' appeal. 26 The respondent did not accept the tender of those cheques. 27 In a letter dated 25 August 2008 from the solicitor for the respondent to the solicitor for the appellants, the solicitor for the respondent said: Apart from the inherent conflict in your clients' actions in seeking simultaneously to stay all of the orders made by Justice Edmonds and to selectively enforce such of those orders which appear to suit your clients' tactical and commercial interests, this approach appears to be one designed to maximise the prejudice to my client's interests whatever the outcome of the appeal. Your clients' offer involves our client agreeing to the transfer of these shares to your clients' nominee. We assume the nominee is a third party. In the normal course, if your client were to succeed in the appeal, each party would need to make restitution. That restitution would involve: 1. my client refunding the $747,045.60 (and also perhaps interest); and 2. the shares being returned to my client. Otherwise, the parties are not returned to the position they would have been in had the orders made by the Full Court on appeal (assuming your clients are successful) been made at first instance. We understand that such restitution would not be possible in view of the proposed transfer of these shares being to a third party. Accordingly, there are significant and difficult issues that would need to be resolved if restitution was not possible by the return of these shares to our client. My client does wish to enforce all of the orders of Justice Edmonds without limitation. It is not willing to be in a position where it only receives back what was paid 41/2 years ago without any compensation for the loss of the use of that money for that period of time, in return for the shares. Otherwise, if your client were to succeed on the appeal, my client would be arguably in the worst position. Also if my client succeeds in the appeal it would be left chasing the balance of the orders with the prejudice of delay imperilling the recovery of interest and costs. My client does not trust your clients. This is a reasonable position for it to take in view of the findings of Justice Edmonds. My client, however, would be willing to agree to a transfer of the shares pending the appeal upon the following basis: 1. your client abandon its application for a stay of the orders of Justice Edmonds or any part thereof; 2. my client be paid in full the original purchase price of $747,045.60 plus interest in accordance with the orders of the Court calculated up to the time the money is paid; 3. there be an agreement between the parties that in the event of your client succeeding on the appeal: (a) it would not be under any obligation to return the shares to our client; (b) at the same time, your client would not be entitled to any refund of the abovementioned sums (the original purchase price of $747,045.60 plus interest); 4. my client agrees and undertakes not to pursue any of the orders with respect to costs until the reasons for judgment on the appeal are published by the Full Court. Alternatively, my client will await the outcome of the Court's determination of your client's application for a stay. In these circumstances, and consistent with the reasons outlined in this letter, the two bank cheques totalling $747,045.60 which were enclosed with your letter dated 22 August 2008 are returned herewith. 55 In any event, I think that there is real difficulty with the proposition that his Honour approached his consideration of the appropriate relief to be granted in the present case upon the basis that, were damages to be awarded, those damages would be expectation damages. His Honour's remarks at [188] of his Reasons ( Donald Financial Enterprises Pty Ltd v APIR Systems Ltd [2008] FCA 1112) have to be read in context and in light of the arguments advanced to his Honour by the appellants at trial. 56 It must be remembered that his Honour did not award damages to the respondent but, rather, reversed the transactions. His Honour did so because his Honour also held that any assessment of loss or damage which involved the respondent keeping the shares was "... exceedingly difficult, if not impossible" (see Donald Financial Enterprises Pty Ltd v APIR Systems Ltd [2008] FCA 1112 at [190] ). 57 The second ground of appeal developed by Mr Bennett in his oral submissions depends upon the appellants persuading the Full Court of two propositions. First, they will have to demonstrate that, within the bundle of papers offered to Mr Sharp but declined by him, there was material which amounted to appropriate and sufficient disclosure of that which his Honour found had not been disclosed. Second, they will have to persuade the Full Court that Mr Sharp's decision not to look at the material tendered to him operated in some way to relieve the appellants from liability. Both of these propositions are problematic. 58 The final grounds of appeal developed by Mr Bennett in his oral submissions concerned his Honour's discretionary orders in respect of interest and costs. Much will turn upon the Full Court's evaluation of the letter dated 27 March 2007. The offer contained in that letter did not address the payment of interest or the costs of the proceedings. The offer was made on behalf of unidentified persons or entities who were not parties to the litigation. Mr Bennett submitted that the respondent could have accepted the offer and gone back to the Court to argue about interest and costs. In this way, Mr Bennett sought to advance an argument that the offer made constituted, in substance, a satisfactory (albeit informal) Calderbank offer. My present view is that this is an extremely difficult argument, based as it is on a somewhat strained interpretation of the letter. 59 In the remaining grounds of appeal, the appellants seek to overturn findings of fact made by his Honour. Many of these were based upon his Honour's assessment of witnesses' credit. 60 It is for the above reasons that I consider the appellants' prospects in the appeal to be weak. This factor is, of course, only one factor to be considered. 61 In the present case, there are several other factors which militate against the grant of any stay. 62 There is no evidence to suggest that, should the appellants prevail in the appeal, the respondent would be unable to refund to the appellants the total acquisition consideration, together with any other monies that may be recovered by it pursuant to his Honour's orders pending the determination of the appeal. No submission was made by the appellants to the effect that the respondent may not be able to refund all relevant sums in due course, if required. 63 Further, in the evidence adduced in support of the present application, the appellants' solicitor said that the appellants were willing and able to "... continue to tender the two cheques for the judgement sum to the [respondent] ..." and that the appellants " ... remain willing and able to continue to tender the judgement sum to the respondent ...". In the submissions made on behalf of the appellants, both in writing and orally, the same sentiment was expressed. 64 What, then, is it about the prospect of the respondent enforcing his Honour's orders that is of real concern to the appellants? Apparently, they are content to refund to the respondent the whole of the acquisition consideration paid for the shares in 2004. They are even prepared to run the risk of the consequences of not being able to return the shares to the respondent should their appeal be successful in circumstances where those shares have been transferred to a third party which is not prepared to, and cannot be compelled to, return the shares. 65 The answer to the question which I posed in the preceding paragraph seems to be that the appellants want a stay in respect of the order for interest and possibly the order for costs made by his Honour. Until assessed, the order for costs cannot be enforced in any real sense. Assessment of those costs will, no doubt, take some months. Furthermore, the respondent will have to weigh up the wisdom of having the costs assessed whilst ever the appeal remains on foot. It seems to me that the appellants' real desire is to obtain temporary relief from having to pay the interest which his Honour ordered them to pay. 66 In support of their present stay application, the appellants submitted that they should not be deprived of both the principal sums paid for the shares and the shares themselves because that state of affairs would lead to their being unable to raise sufficient funds to pay all of the interest and costs which they have been ordered to pay. There was no evidence from the appellants to support this contention and I am not disposed to accept it in the absence of evidence. 67 Further, and in any event, if no stay at all is granted, the appellants would be free to on-sell or charge the shares once the orders for reversal made by his Honour were performed (something which the appellants have repeatedly said they are prepared to do) and the so-called difficulty in raising funds would disappear because the appellants would have control of the shares for that purpose. 68 In circumstances where the appellants are prepared to consummate the reversal of the share transactions of 2004 and take the risk on appeal in the event that they are successful that the shares cannot be returned to the respondent, the real focus of the present application has to be on his Honour's orders concerning interest and costs and whether or not the appellants have a sufficient basis for a stay in respect of those two matters.


case_text: Mr Bromwich relied upon Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281. In that case, a Full Court of this Court held at [17]: The general principles governing an application for a stay pending the determination of an appeal or application for leave to appeal are not in doubt. The party seeking a stay must demonstrate a reason, or an appropriate case, to warrant the exercise of a discretion in his or her favour. This requirement is not satisfied by the mere filing of an appeal or an application for leave to appeal: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (CA), at 694. The Court has a discretion whether or not to grant the stay, and if so, as to the terms that will be fair. In the exercise of the Court's discretion, it weighs consideration such as the balance of convenience and the competing rights of the parties, in particular whether prejudice will be caused by reason of the grant or withholding of a stay: Alexander, at 694; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84 ; (1986) 161 CLR 681 (Brennan J), at 685. Within this framework, the Court exercises a broad discretion, and the party seeking a stay does not have to establish "special" circumstances: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 (FC), at 66, per Burchett J. In general, a party which has succeeded at the trial is entitled to the benefit of a judgment and thus to commence with the presumption that the judgment is correct: Powerflex, at 66. The question on the present application is how these principles apply to the unusual circumstances of the present case. 47 Mr Bromwich also placed reliance upon Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 in support of two particular submissions made by him as follows: (a) a stay will be granted if, unless it is granted, the appeal will be nugatory there is no basis for that conclusion in this case; (b) although courts will not generally speculate about the appellant's prospects of success, this does not prevent some preliminary assessment about whether the applicant for the stay has an arguable case, a consideration which is protective of the judgment creditor where it may be plain that an appeal has been lodged without any real prospect of success and simply in the hope that of gaining a respite against immediate execution upon judgment. Mr Bromwich submitted that the appellants had poor prospects of success on appeal. 48 Mr Bromwich also directed some attention to the financial position of APIR. He submitted that the financial position of APIR was not such as to give confidence that it was going to be, or remain, in a position to meet the requirements of his Honour's orders. 49 There did not appear to be much dispute between the parties as to the principles which govern the present case. 50 Order 52 r 17 provides a specific basis upon which a stay pending appeal may be granted.


case_outcome: distinguished

case_text: In addition to the two authorities relied upon by Mr Bromwich, Mr Bennett relied upon Kalifair Pty Ltd v Digi-Tech (Australia) Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; especially at [16] [29]. In the passages in Kalifair 55 NSWLR 737 to which my attention was directed, the NSW Court of Appeal was concerned with the prospect that, because the appellants with whom they were dealing in those paragraphs had no assets, the respondent might move to wind them up and thus render their appeals nugatory. The present case, of course, is not such a case. Indeed, APIR appears to have net assets at its disposal. On one view of the evidence, it has sufficient assets to meet the whole of the judgment including interest and probably costs. There was no evidence as to the assets and liabilities of Messrs Broso and Riley. 52 In my view, the present case can be distinguished from the circumstances before the Court in Kalifair 55 NSWLR 737. 53 In my view, the appellants' prospects on appeal are weak. I express this view as a tentative or preliminary view and only for the purpose of giving appropriate weight to those prospects when considering the present application. 54 Further, I am not convinced that the Amended Notice of Appeal contains a ground of appeal which supports Mr Bennett's submission concerning his Honour's reasoning in respect of damages and relief generally. Ground 8 seems to raise a different point and no other ground of appeal seems apt to cover the matter. 69 His Honour's orders in respect of both interest and costs are discretionary orders. The reasons which his Honour gave for making the orders which he made in respect of interest and costs are not obviously wrong. The appellants' prospects of overturning those orders are weak. In my view, the appellants have not advanced any compelling reason or argument for staying his Honour's orders in respect of interest and costs. Unlike Kalifair 55 NSWLR 737, the evidence does not demonstrate that the appellants cannot pay the amounts reflected in the orders which his Honour made. The evidence does not support a conclusion that the appeal will be rendered nugatory if no stay is granted. There is no evidence to suggest that payments made by or on behalf of the appellants to the respondent in fulfilment of his Honour's orders will not be able to be refunded in the event that the appeal is successful. 70 Having regard to the fact that the appellants are quite content to take back the shares and refund to the respondent the principal sums which it paid to the appellants for the acquisition of the shares, there is no justification for a stay of the reversal orders in the present case. Once that conclusion is reached, it seems to me that there is no justification for a stay of his Honour's orders in respect of interest and costs. All of the factors considered above point to this conclusion. 71 Were I minded to grant a stay of his Honour's orders in respect of interest and costs, I would only consider doing so if adequate security were provided. But, since there is no suggestion that the respondent will not be able to restore all payments made to it in the event that the appeal is successful, I think that the Court's discretion to deprive the respondent of the fruits of its success at trial should not be exercised in the present case by granting a stay on condition that adequate security is provided. 72 The respondent expressed concerns in argument before me that, should the appeal be successful, it would wish to have the option of retaining the shares and not want to be left in the position where the question of what should happen to the shares is within the sole control of the appellants. Indeed, the respondent went so far as to submit that it should not have to execute share transfers pursuant to orders 2, 3, 4 and 5 of his Honour's orders until the appellants have paid to it the sums required to be paid pursuant to orders 2, 3, 4 and 5 as well as those sums required to be paid pursuant to orders 6 and 7 (which dealt with interest and costs). In my view, his Honour's orders do not permit such a stance to be adopted by the respondent. Further, in circumstances where the relief granted conforms to the relief sought and where there has been no appeal by the respondent against the orders made on 30 July 2008, the respondent's stance is untenable. 73 In my judgment, if the appellants' application for a stay is refused, the shadows at which the respondent has been boxing will disappear. 74 For all of the above reasons, the appellants' application for a stay will be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 23 September 2008 Counsel for the Appellants: Mr DMJ Bennett QC with Mr MJ Heath Solicitor for the Appellants: Williams Love & Nicol Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Gambin Legal Date of Hearing: 18 September 2008 Date of Judgment: 23 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1448.html


case_text: Mr Bromwich relied upon Philip Morris (Australia) Ltd v Nixon [1999] FCA 1281. In that case, a Full Court of this Court held at [17]: The general principles governing an application for a stay pending the determination of an appeal or application for leave to appeal are not in doubt. The party seeking a stay must demonstrate a reason, or an appropriate case, to warrant the exercise of a discretion in his or her favour. This requirement is not satisfied by the mere filing of an appeal or an application for leave to appeal: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (CA), at 694. The Court has a discretion whether or not to grant the stay, and if so, as to the terms that will be fair. In the exercise of the Court's discretion, it weighs consideration such as the balance of convenience and the competing rights of the parties, in particular whether prejudice will be caused by reason of the grant or withholding of a stay: Alexander, at 694; Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84 ; (1986) 161 CLR 681 (Brennan J), at 685. Within this framework, the Court exercises a broad discretion, and the party seeking a stay does not have to establish "special" circumstances: Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 (FC), at 66, per Burchett J. In general, a party which has succeeded at the trial is entitled to the benefit of a judgment and thus to commence with the presumption that the judgment is correct: Powerflex, at 66. The question on the present application is how these principles apply to the unusual circumstances of the present case.


case_text: impact, in part, of a requirement for leave notwithstanding, it remains the case that the Court at least has before it an application brought as of right for the winding up of the company on the just and equitable ground. Irrespective of the ground upon which it is brought, s 440D does not give rise to any separate requirement for a grant of leave to ASIC in order for it to bring the application: Australian Prudential Regulation Authority v Rural & General Insurance Ltd [2004] FCA 185 ; (2004) 136 FCR 149. That being so, the first issue which necessarily arises is whether ASIC's winding up application should be adjourned? Should the winding up application be adjourned? Subsection 440A(2) of the Act provides: (2) The Court is to adjourn the hearing of an application for an order to wind up a company if the company is under administration and the Court is satisfied that it is in the interests of the company's creditors for the company to continue under administration rather than be wound up. It was common ground that it fell to those who opposed the hearing of the winding up application to satisfy the Court that it is in the interests of Storm Financial's creditors for it to continue under administration rather than be wound up. If that satisfaction is engendered, the language of s 440A(2) dictates that the Court must adjourn the winding up application. The converse does not automatically follow. The Court would possess a discretion nonetheless to adjourn the winding up application.