case_text: Network Limited v News Limited (No 14) [2006] FCA 500 (5 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 500 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Seven Network Limited v News Limited (No 14) [2006] FCA 500 (5 May 2006) Last Updated: 5 May 2006 FEDERAL COURT OF AUSTRALIA Seven Network Limited v News Limited (No 14) [2006] FCA 500 EXPERT EVIDENCE whether report on the value of a lost economic opportunity satisfies the requirements of s 79 of the Evidence Act 1995 (Cth) admissibility of report Evidence Act 1995 (Cth) ss 79 , 135 HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 cited Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 ; (2000) 120 FCR 146 cited SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS NSD 1223 of 2002 SACKVILLE J SYDNEY 5 MAY 2006 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT PREMIER MEDIA GROUP PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 5 MAY 2006 WHERE MADE: SYDNEY THE COURT ORDERS: 1. The tender of Mr Salter's report be rejected. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT PREMIER MEDIA GROUP PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE: 5 MAY 2006 PLACE: SYDNEY RULING ON EVIDENCE THE EXPERT REPORT 1 Objection has been taken to the tender of a report prepared by Mr Roy A Salter. Mr Salter is a Principal of the Salter Group and is based in the Group's Los Angeles office, where he directs the firm's overall practice and project management efforts. The Salter Group is said to be: 'an independent financial and strategic advisory firm dedicated to the entertainment and media industry offering economic analysis, investment banking support, corporate development and other advisory services'. 26 In HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414, Gleeson CJ pointed out (at [39]) that the provisions of s 79 of the Evidence Act : 'will often have the practical effect of emphasising the need for attention to requirements of form. By directing attention to whether an opinion is wholly or substantially based on specialised knowledge based on training, study or experience, the section requires that the opinion is presented in a form which makes it possible to answer that question.' His Honour also observed (at [44]) that: 'in trials before judges alone, as well as in trials by jury, it is important that the opinions of expert witnesses be confined, in accordance with s 79 , to opinions which are wholly or substantially based on their specialised knowledge. Experts who venture "opinions" (sometimes merely their own inference of fact), outside their field of specified knowledge may invest those opinions with a spurious appearance of authority, and legitimate processes of fact-finding may be subverted.'


case_outcome: cited

case_text: Network Limited v News Limited (No 14) [2006] FCA 500 (5 May 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 500 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Seven Network Limited v News Limited (No 14) [2006] FCA 500 (5 May 2006) Last Updated: 5 May 2006 FEDERAL COURT OF AUSTRALIA Seven Network Limited v News Limited (No 14) [2006] FCA 500 EXPERT EVIDENCE whether report on the value of a lost economic opportunity satisfies the requirements of s 79 of the Evidence Act 1995 (Cth) admissibility of report Evidence Act 1995 (Cth) ss 79 , 135 HG v The Queen [1999] HCA 2 ; (1999) 197 CLR 414 cited Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 ; (2000) 120 FCR 146 cited SEVEN NETWORK LIMITED and ANOR v NEWS LIMITED and ORS NSD 1223 of 2002 SACKVILLE J SYDNEY 5 MAY 2006 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT PREMIER MEDIA GROUP PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE OF ORDER: 5 MAY 2006 WHERE MADE: SYDNEY THE COURT ORDERS: 1. The tender of Mr Salter's report be rejected. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD 1223 of 2002 BETWEEN: SEVEN NETWORK LIMITED (ACN 052 816 789) FIRST APPLICANT C7 PTY LIMITED (ACN 082 901 442) SECOND APPLICANT AND: NEWS LIMITED (ACN 007 871 178) FIRST RESPONDENT SKY CABLE PTY LIMITED (ACN 069 799 640) SECOND RESPONDENT TELSTRA MEDIA PTY LIMITED (ACN 069 279 027) THIRD RESPONDENT FOXTEL MANAGEMENT PTY LIMITED (ACN 068 671 938) FOURTH RESPONDENT TELSTRA CORPORATION LIMITED (ACN 051 775 556) FIFTH RESPONDENT TELSTRA MULTIMEDIA PTY LIMITED (ACN 069 279 072) SIXTH RESPONDENT PUBLISHING AND BROADCASTING LIMITED (ACN 009 071 167) SEVENTH RESPONDENT NINE NETWORK AUSTRALIA PTY LIMITED (ACN 008 685 407) EIGHTH RESPONDENT PREMIER MEDIA GROUP PTY LIMITED (ACN 065 445 418) NINTH RESPONDENT AUSTRALIAN RUGBY FOOTBALL LEAGUE LIMITED (ACN 003 107 293) TWELFTH RESPONDENT NATIONAL RUGBY LEAGUE INVESTMENTS PTY LIMITED (ACN 081 778 538) THIRTEENTH RESPONDENT NATIONAL RUGBY LEAGUE LIMITED (ACN 082 088 962) FOURTEENTH RESPONDENT FOXTEL CABLE TELEVISION PTY LIMITED (ACN 069 008 797) FIFTEENTH RESPONDENT OPTUS VISION PTY LIMITED (ACN 066 518 821) SIXTEENTH RESPONDENT AUSTAR UNITED COMMUNICATIONS LIMITED (ACN 087 695 707) SEVENTEENTH RESPONDENT AUSTAR ENTERTAINMENT PTY LIMITED (ACN 068 104 530) EIGHTEENTH RESPONDENT IAN HUNTLY PHILIP NINETEENTH RESPONDENT NEWS PAY TV PTY LIMITED (ACN 085 095 487) TWENTIETH RESPONDENT PBL PAY TV PTY LIMITED (ACN 084 940 367) TWENTY-FIRST RESPONDENT SINGTEL OPTUS PTY LIMITED (ACN 052 833 208) TWENTY-SECOND RESPONDENT JUDGE: SACKVILLE J DATE: 5 MAY 2006 PLACE: SYDNEY RULING ON EVIDENCE THE EXPERT REPORT 1 Objection has been taken to the tender of a report prepared by Mr Roy A Salter. Mr Salter is a Principal of the Salter Group and is based in the Group's Los Angeles office, where he directs the firm's overall practice and project management efforts. The Salter Group is said to be: 'an independent financial and strategic advisory firm dedicated to the entertainment and media industry offering economic analysis, investment banking support, corporate development and other advisory services'. 27 Similarly, in Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCA 1463 ; (2000) 120 FCR 146, the Full Court observed (at [23]) that the: 'further requirement [in s 79] that an opinion be based on specialised knowledge would normally be satisfied by the person who expresses the opinion demonstrating the reasoning process by which the opinion was reached. Thus, a report in which an opinion is recorded should expose the reasoning of its author in a way that would demonstrate that the opinion is based on particular specialised knowledge.' (Emphasis in original.) 28 In my opinion, the report in its present form does not meet the requirements of s 79 of the Evidence Act . In particular, it is impossible to ascertain whether the opinions expressed by Mr Salter quantifying losses sustained by Seven because of its inability to pursue an IMC strategy reflect his specialised knowledge, based on his training, study or experience. The report must therefore be rejected. 29 Because Mr Sheahan SC foreshadowed the possibility that Seven would seek to adduce further evidence from Mr Salter to cure the evidentiary defects in his report, I think it is appropriate to make some additional comments.


case_outcome: affirmed

case_text: is before me an Application for Leave to Appeal from a judgment of a Federal Magistrate delivered on 8 December 2008 ( SZMTM v Minister for Immigration and Anor [2008] FMCA 1642) in which the Federal Magistrate dismissed with costs an application for judicial review of a decision made by the second respondent, the Refugee Review Tribunal ( the Tribunal ) handed down on 19 August 2008. The Tribunal's decision affirmed a decision of a delegate of the first respondent ( the Minister ) dated 14 April 2008 not to grant a protection visa to the applicant. On 4 November 2008 Driver FM ordered that the applicant's application for judicial review be listed for a preliminary hearing under r 44.12 of the Federal Magistrates Court Rules 2001 ( the FMC Rules ). That hearing took place on 8 December 2008. On that day the learned Federal Magistrate dismissed the application pursuant to r 44.12(1)(a) of the FMC Rules. The effect of that order was that the decision of the Tribunal was affirmed. Rule 44.12 of the FMC Rules is in the following terms: 44.12 Show cause hearing (1) At a hearing of an application for an order to show cause, the Court may: (a) if it is not satisfied that the application has raised an arguable case for the relief claimed—dismiss the application; or (b) if it is satisfied that the application has raised an arguable case for the relief claimed—adjourn the proceeding and order a respondent to show cause at a final hearing why an order for the relief claimed should not be made on such of the grounds mentioned in the application as are specified by the Court; or (c) without making an order under paragraph (b), make final orders in relation to the claims for relief and grounds mentioned in the application. (2) To avoid doubt, a dismissal under paragraph (1) (a) is interlocutory.


case_outcome: followed

case_text: discretion which the Court has in respect of such an application for leave to appeal is a wide one. However, it must not be exercised idiosyncratically and ordinarily would be informed by the principles articulated and explained by a Full Court of this Court in Decor Corporation Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397. In that case the Court held that, in determining whether leave to appeal should be granted from certain interlocutory decisions made by a judge in a patent case: (1) The decision in question must be demonstrated to be attended with sufficient doubt to warrant it being reconsidered on appeal; and (2) The Court must be satisfied that substantial injustice would be visited upon the applicant if leave is not granted. This is the test which I propose to apply to the application before me in the present case. The applicant is a citizen of the People's Republic of China ( the PRC ). She arrived in Australia on 10 February 2008 on a subclass 456 business visa. On 7 March 2008, the applicant lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Citizenship. A delegate of the Minister refused the application for a protection visa on 14 April 2008 and notified the applicant of that decision by letter dated, incorrectly, 14 December 2007. The reasons which accompanied that letter were dated 14 April 2008. On 9 May 2008, the applicant applied to the Tribunal for a review of that decision. The protection claims which the applicant made originally were set out in a typed statutory declaration expressed in English. This statutory declaration accompanied her application for a protection visa. In that declaration, the applicant claimed that she had escaped from her husband, who was violent towards her, with the help of her friend, Ms Zhang, but that they were both later arrested for anti-revolutionary activities. In the proceedings before the Tribunal the applicant claimed to fear persecution in the PRC on the basis of her political opinions. She also claimed to have been a victim of domestic violence whose problems had been publicised in newspaper articles by a journalist from the Fujian Daily . She claimed that she had been accused of being a counter-revolutionary on account of these articles, and that she had been subsequently detained for one month during which time she had been tortured and interrogated. The applicant appeared at a hearing before the Tribunal on 9 July 2008. At that hearing, she had the assistance of an interpreter qualified to interpret as between Mandarin and English. On 10 July 2008, the Tribunal sent a letter dated that day to Ms Priscilla Yu who was then acting as the migration agent for the applicant. In that letter the Tribunal invited the applicant to comment on and/or respond to information which was then of concern to it and which it considered to be relevant to its consideration of the applicant's application. That letter was issued pursuant to s 424A of the Migration Act 1958 (Cth) ( the Act ).


case_text: On 12 March 2008 the Court accepted an undertaking given by the first defendant, Norman Carey, along with undertakings by the second defendant, Mr Rundle, the fifth defendant, Richstar Enterprises Pty Ltd (Richstar), the ninth defendant, Keypoint Developments Pty Ltd (Keypoint) and the tenth defendant, Silkchime Pty Ltd (Silkchime). The undertakings which had substantially the same effect as an extension of protective orders under s 1323 of the Corporations Act 2001 (Cth) (the Act) in respect of the assets of the various defendants, are in effect until 30 June 2008. At that time the undertakings will expire and these proceedings will effectively be at an end. The ex tempore reasons for judgment in relation to the acceptance of the undertakings have been published as: Australian Securities & Investments Commission; In the matter of Richstar Enterprises Pty Ltd v Carey (No 21) [2008] FCA 381. 2 In addition to accepting the undertakings proffered by Mr Carey the Court made certain substantive orders. One of those orders was in the following terms: The weekly allowance for ordinary living expenses fixed in respect of paragraph 7 of the undertaking proffered by the First Defendant be fixed at $4000 per week until 26 March, and thereafter at such rate as is fixed by the Court after consideration of affidavit evidence in relation to the appropriate rate, to be provided along with written submissions by 19 March 2008. 3 Paragraph 7 of Mr Carey's undertaking was in the following terms: I am also permitted to withdraw from My Accounts and, pay, ordinary living expenses of a weekly allowance as fixed by the Court from time to time.


case_outcome: referred to

case_title: Yap v Granich Partners [2008] FCA 1380

case_text: 13 December 2002, Granich & Associates made an application for leave to apply in the Supreme Court of Western Australia to have Mrs Yap declared a vexatious litigant under the Vexatious Proceedings Restriction Act (2002) (WA). In a judgment delivered on 31 October 2003, Heenan J made an order prohibiting Mrs Yap or any person acting on her behalf from instituting proceedings against Granich & Associates without leave of the Court or Tribunal in the manner prescribed in s 6 of the Vexatious Proceedings Restriction Act Granich Partners v Yap [2003] WASC 206. The history extends to proceedings in this Court. That was also summarised in Granich v Yap [2004] FCA 1567 at [4] : On 11 October 1997, Granich & Associates caused a bankruptcy notice to be served on Mrs Yap. The notice required payment of $33,184.11. The debt comprised taxed costs of $29,790.45 which Mrs Yap had been ordered to pay to Granich & Associates upon the dismissal of her claim by Commissioner Martin on 7 May 1996, and post-judgment interest of $3,393.66. The costs had been taxed on 12 August 1996. On 17 October 1997, Mrs Yap filed an application to set aside the bankruptcy notice on the basis that she had a counterclaim based upon the negligence of Granich & Associates. On 1 December 1997 the District Registrar of the Federal Court dismissed that application. Mrs Yap did not seek review of or appeal from that order. On 1 May 1998, Granich & Associates filed a creditor's petition seeking sequestration of Mrs Yap's estate. The act of bankruptcy relied upon was non-compliance with the bankruptcy notice served on 11 October 1997. On 13 May 1998, Mrs Yap filed a notice of intention to oppose the petition based on a pending application for special leave to appeal to the High Court of Australia in relation to her unsuccessful professional negligence action against Granich & Associates. She also alleged: "Deliberate concealment of facts relating to [Mrs Yap's] cause of action to conceal [Granich & Associates'] breach of duty to [Mrs Yap] pursuant to [Granich & Associates'] retainer/contract to [Mrs Yap]." The High Court dismissed Mrs Yap's application for special leave to appeal on 22 October 1998, stating amongst other things that her application was "entirely devoid of merit". Between the filing of the notice of intention to oppose the petition and 10 December 1998, the hearing of the petition was adjourned five times and Mrs Yap filed six affidavits. On 10 December 1998 the Registrar made a sequestration order against Mrs Yap's estate. The matter came before me as a result of a motion filed by Mrs Yap on 16 December 1998 seeking an order that the judgment of the Registrar be set aside, the sequestration order be annulled, and that Granich & Associates pay damages and costs. The motion to review and set aside the sequestration order was dismissed by me on 30 July 1999 - Granich & Associates v Yap Cheng See [1999] FCA 1039. Mrs Yap appealed against my decision to the Full Court which dismissed her appeal on 29 November 1999 Yap v Granich & Associates [1999] FCA 1867. On 6 October 2000, Mrs Yap lodged an application for the annulment of her bankruptcy. On the respondent's motion, RD Nicholson J dismissed the application on the basis, inter alia, that Mrs Yap was seeking in it to raise the same allegations which she had previously raised in the Full Court of the Federal Court Yap v Granich & Associates [2001] FCA 799. Mrs Yap applied to the Full Court of the Federal Court for leave to appeal against the decision of RD Nicholson J. Her application was dismissed by the Full Court on 29 November 2001 Yap v Granich & Associates [2001] FCA 1735. In dismissing her application for leave to appeal, the Full Court, per Gyles J, accepted that the primary judge was entitled to regard her proceedings 'as doomed to failure and so as an abuse of process and vexatious'. Mrs Yap was ordered to pay the costs of Granich & Associates. Mrs Yap sought again to set aside the sequestration order in proceedings commenced in the Federal Magistrates Court which were dismissed on 30 October 2002 by McInnis FM Yap v Granich & Associates [2002] FMCA 284. Mrs Yap appealed against the decision of the Federal Magistrate. Her appeal was heard by a single judge, Marshall J, who dismissed the appeal on 21 May 2004 Yap v Granich & Associates [2004] FCA 647. His Honour said that the learned federal magistrate was (at [11]): '... correct in characterising the proceeding before him as an abuse of process.' Mrs Yap sought leave earlier this year to institute proceedings for the reinstatement of Cheshire Securities Pty Ltd as well as other relief which was broadly similar to that which had been sought before French J in Yap v Australian Securities & Investments Commission [2009] FCA 831. McKerracher J refused leave dated 5 August 2009. Mrs Yap had relied heavily on the content of her extensive affidavit sworn in the previous proceedings before French J in 2007. The submissions before his Honour would appear were a reiteration of what had been put previously to French J. As his Honour McKerracher J observed at [7] each of the claims articulated had been previously pursued or alternatively depended upon other claims which had been previously pursued, sometimes on numerous occasions and in all cases were claims which had been rejected. McKerracher J was unable to identify any new material, new evidence or new or different arguments since the application had last been considered in Yap v Granich Partners [2008] FCA 1380. The application before me in respect of which leave is sought is in substance the same as the one which was before McKerracher J and which is the subject of judgment in Yap [2009] FCA 831. However two of the respondents in that case, Granich & Associates and State Government of Western Australia are not named as parties to the present application. Mrs Yap's aim, through the vehicle of the proposed application, is to unravel the many court orders made over the last 20 years and to obtain compensation from the respondents for loss and damage she says is a result of the orders made. The application before me also seeks by way of interlocutory relief an order for the annulment of Mrs Yap's bankruptcy. Mrs Yap is no longer bankrupt but submits that the annulment of her bankruptcy is necessary in order for her to revisit, in respect of litigation, the consequences of her having been declared bankrupt. In the proceedings before McKerracher J, Mrs Yap relied upon an affidavit of 37 pages with annexures of 55 pages. In this present application Mrs Yap relies upon her affidavit sworn 14 September 2009 which she described as "fresh evidence" to support the application. The affidavit is 38 pages long with a further 39 pages annexures. I have read this affidavit and the affidavit which was before McKerracher J. In her current affidavit Mrs Yap purports to also rely upon, as she did before McKerracher J, the lengthy affidavit sworn 5 November 2007 in the proceedings which were before French J. I am conscious of the injunction of Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 129 at 31-32 that, in such cases, particularly where the applicant is unrepresented that the judicial mind must remain open in the case of a person who has been rejected by the Court in the past as there maybe a good point, not previously seen and which may have merit hidden amongst the verbiage of the applicant's arguments. The supposed new material which I will turn to was, in the broad, a reventilation of allegations previously made by Mrs Yap going back to May 1987. Much of it is disjointed. It is difficult to discern any further reasoning upon which to understand Mrs Yap's claim. It contains what appears to be excerpts from the transcripts of various court hearings as well as reference to exhibits in cases in which she was a party. The allegations range widely and include negligence, misrepresentation, fraud, theft and perjury. The allegations were often made against legal practitioners and bank officers.


case_text: is required pursuant to an order of French J (as he then was) in Yap v Australian Securities & Investments Commission [2008] FCA 534. Mrs Yap in those proceedings sought the following relief: Cheshire Securities Pty Ltd ACN 009 264 082 be reinstated and ASIC to compensate the company for its wrongful deregistration on 20 June 2000. Curtin University of WA to reinstate the company's 50-years [sic] LEASE executed on 11 August 1988 between Curtin U (Lessor) Cheshire (Lessee) and CS Yap (Guarantor). Esanda F Ltd to reimburse the company all rents derived from its Student Housing "Don Watt House" from 17 November 1988 with interest compounded at Court rate till Judgment and to compensate its Guarantors (Arcola Pty Ltd and CS Yap) for wrongful seizure and sale of their properties. The Registrar of Titles to: a) revert Swan Loc 1978 in CT Vol 1794 Folio 145 back into the name of Yap Cheng See of 57 Whaleback Avenue Parkwood WA, b) revert Swan Loc 73 Lot 6 on Diagram 5694 CT Vol 1590 Folio 117 back into the name of Yap Cheng See of 57 Whaleback Av Parkwood. ANZ and Challenge Bank to reimburse Arcola Pty Ltd rents derived from 58 58A 58B and 60 Second Avenue Rossmoyne from 17 November 1988 with interest at Court rate till Judgment. Challenge Bank to reimburse CS Yap all rents derived from Lot 896/No 235 Preston Point Rd Bicton from 25.5.88 with interest at Ct rate till Judgment. a) Registrar of Titles to revert Lot 337 CT Vol 1773 Folio 274 and Lot 14 on Diagram 23627 CT Vol 1763 Folio 869 back into the name of Arcola Pty Ltd ACN 009 203 838 and b) revert Lot 896/No 235 Preston Point Rd Bicton back into the name of Yap Cheng See of 57 Whaleback Avenue Parkwood. On 31.10.93 CS Yap was declared a vexatious litigant pursuant to SC CIV 2722/02 by Granich & Asso ought to be rescinded for same reason as in par 10 evidence in CSY79. Mrs Yap's application was there supported by an extensive affidavit sworn by her on 5 November 2007. French J described it as "long and turgid (covering) events dating back to 1987 and which appeared to make allegations of fraud and improper conduct against a variety of parties: Yap [2008] FCA 534 at [2] . His Honour noted in that case that four earlier attempts had been made by Mrs Yap to reinstate Cheshire in the Supreme Court of Western Australia as well as two other unsuccessful applications which were brought by Mrs Yap's son, Mr Chong, again in the Supreme Court of Western Australia at [6-7]. His Honour observed that if Cheshire had any valid claims against any of the respondents before him then they must have accrued prior to Cheshire being deregistered on 13 April 1992 and any cause of action was likely now to be statute barred at [10]. His Honour described Mrs Yap's claims in the affidavit material before him as "almost unintelligible". The remedies sought in the application before French J as his Honour observed at [12] substantially depended upon the reinstatement of Cheshire. His Honour was of the opinion that that application had no reasonable prospect of success and was on its face an abuse of process seeking, as it did, to relitigate issues that had been litigated over many years. His Honour further observed that "if there be, buried in the mound of material that Mrs Yap submits to this Court, some issue which has not been litigated it is not the task of the Court to unearth it". Mrs Yap's application was then dismissed by his Honour under s 31A of the Federal Court of Australia Act 1976 (Cth) and alternatively on the basis that it was an abuse of process. His Honour, satisfied that Mrs Yap had habitually, persistently and without reasonable grounds instituted vexatious proceedings in this and the Supreme Court of Western Australia, directed under O 21, r (1)(b) of the Federal Court of Australia Rules that in future Mrs Yap may not institute a proceeding in this Court without the leave of the Court. The history of Mrs Yap's disputes in various courts is set out in Granich v Yap [2004] FCA 1567 at [3] : P Vivante & Co Pty Ltd obtained a default judgment against Mrs Yap in District Court action 1536 of 1989 on 10 April 1989. On 23 June 1992, District Court Registrar Kingsley set aside the default judgment and gave Mrs Yap leave to defend the proceedings provided she paid $39,000 into court by 7 July 1992. Mrs Yap failed to pay the money into court. Mrs Yap appealed the decision of District Court Registrar Kingsley to his Honour Judge Viol. The appeal was heard by his Honour on 3, 10 and 21 August 1992. His Honour dismissed the appeal with costs. Mrs Yap applied for leave to appeal the decision of his Honour Judge Viol to the Full Court of the Supreme Court. On 10 June 1993 the Full Court dismissed her application for leave to appeal and ordered that she pay the costs. Mrs Yap commenced proceedings against Granich & Associates for alleged negligence in District Court action 6202 of 1993. Her action related to the firm's conduct of the District Court proceedings. Her action was dismissed by Commissioner Martin QC on 7 May 1996. He found she failed to prove the firm had been negligent. The solicitors, Granich & Associates, were awarded the costs of the action. Mrs Yap instituted an appeal to the Full Court of the Supreme Court. That appeal was dismissed on 21 July 1997 for want of prosecution. Mrs Yap was ordered to pay the costs of the appeal. Granich & Associates initiated proceedings in the Local Court to recover legal costs from Mrs Yap. She brought a counterclaim in those proceedings and sought to have it transferred to the Supreme Court. On 24 October 1997, Master Bredmeyer dismissed the action for removal as an abuse of process. Mrs Yap applied for special leave to appeal the judgment of the Full Court to the High Court. The special leave application was dismissed on 22 October 1998 with costs. On 14 December 2001, Mrs Yap applied for judgment in the District Court action which had been dismissed by Commissioner Martin QC on 7 May 1996. The application for a judgment was allegedly based on admissions. It was dismissed with costs by his Honour Judge Wisbey. On 15 March 2002, Mrs Yap applied to the District Court for a retrial of the 1993 action against her solicitors based on alleged fresh evidence. Commissioner Greaves dismissed the application with costs on 22 March 2002.


case_title: Yap v Australian Securities & Investments Commission [2009] FCA 831


case_title: Granich v Yap [2004] FCA 1567

case_text: 31.10.93 CS Yap was declared a vexatious litigant pursuant to SC CIV 2722/02 by Granich & Asso ought to be rescinded for same reason as in par 10 evidence in CSY79. Mrs Yap's application was there supported by an extensive affidavit sworn by her on 5 November 2007. French J described it as "long and turgid (covering) events dating back to 1987 and which appeared to make allegations of fraud and improper conduct against a variety of parties: Yap [2008] FCA 534 at [2] . His Honour noted in that case that four earlier attempts had been made by Mrs Yap to reinstate Cheshire in the Supreme Court of Western Australia as well as two other unsuccessful applications which were brought by Mrs Yap's son, Mr Chong, again in the Supreme Court of Western Australia at [6-7]. His Honour observed that if Cheshire had any valid claims against any of the respondents before him then they must have accrued prior to Cheshire being deregistered on 13 April 1992 and any cause of action was likely now to be statute barred at [10]. His Honour described Mrs Yap's claims in the affidavit material before him as "almost unintelligible". The remedies sought in the application before French J as his Honour observed at [12] substantially depended upon the reinstatement of Cheshire. His Honour was of the opinion that that application had no reasonable prospect of success and was on its face an abuse of process seeking, as it did, to relitigate issues that had been litigated over many years. His Honour further observed that "if there be, buried in the mound of material that Mrs Yap submits to this Court, some issue which has not been litigated it is not the task of the Court to unearth it". Mrs Yap's application was then dismissed by his Honour under s 31A of the Federal Court of Australia Act 1976 (Cth) and alternatively on the basis that it was an abuse of process. His Honour, satisfied that Mrs Yap had habitually, persistently and without reasonable grounds instituted vexatious proceedings in this and the Supreme Court of Western Australia, directed under O 21, r (1)(b) of the Federal Court of Australia Rules that in future Mrs Yap may not institute a proceeding in this Court without the leave of the Court. The history of Mrs Yap's disputes in various courts is set out in Granich v Yap [2004] FCA 1567 at [3] : P Vivante & Co Pty Ltd obtained a default judgment against Mrs Yap in District Court action 1536 of 1989 on 10 April 1989. On 23 June 1992, District Court Registrar Kingsley set aside the default judgment and gave Mrs Yap leave to defend the proceedings provided she paid $39,000 into court by 7 July 1992. Mrs Yap failed to pay the money into court. Mrs Yap appealed the decision of District Court Registrar Kingsley to his Honour Judge Viol. The appeal was heard by his Honour on 3, 10 and 21 August 1992. His Honour dismissed the appeal with costs. Mrs Yap applied for leave to appeal the decision of his Honour Judge Viol to the Full Court of the Supreme Court. On 10 June 1993 the Full Court dismissed her application for leave to appeal and ordered that she pay the costs. Mrs Yap commenced proceedings against Granich & Associates for alleged negligence in District Court action 6202 of 1993. Her action related to the firm's conduct of the District Court proceedings. Her action was dismissed by Commissioner Martin QC on 7 May 1996. He found she failed to prove the firm had been negligent. The solicitors, Granich & Associates, were awarded the costs of the action. Mrs Yap instituted an appeal to the Full Court of the Supreme Court. That appeal was dismissed on 21 July 1997 for want of prosecution. Mrs Yap was ordered to pay the costs of the appeal. Granich & Associates initiated proceedings in the Local Court to recover legal costs from Mrs Yap. She brought a counterclaim in those proceedings and sought to have it transferred to the Supreme Court. On 24 October 1997, Master Bredmeyer dismissed the action for removal as an abuse of process. Mrs Yap applied for special leave to appeal the judgment of the Full Court to the High Court. The special leave application was dismissed on 22 October 1998 with costs. On 14 December 2001, Mrs Yap applied for judgment in the District Court action which had been dismissed by Commissioner Martin QC on 7 May 1996. The application for a judgment was allegedly based on admissions. It was dismissed with costs by his Honour Judge Wisbey. On 15 March 2002, Mrs Yap applied to the District Court for a retrial of the 1993 action against her solicitors based on alleged fresh evidence. Commissioner Greaves dismissed the application with costs on 22 March 2002. On 13 December 2002, Granich & Associates made an application for leave to apply in the Supreme Court of Western Australia to have Mrs Yap declared a vexatious litigant under the Vexatious Proceedings Restriction Act (2002) (WA). In a judgment delivered on 31 October 2003, Heenan J made an order prohibiting Mrs Yap or any person acting on her behalf from instituting proceedings against Granich & Associates without leave of the Court or Tribunal in the manner prescribed in s 6 of the Vexatious Proceedings Restriction Act Granich Partners v Yap [2003] WASC 206. The history extends to proceedings in this Court. That was also summarised in Granich v Yap [2004] FCA 1567 at [4] : On 11 October 1997, Granich & Associates caused a bankruptcy notice to be served on Mrs Yap. The notice required payment of $33,184.11. The debt comprised taxed costs of $29,790.45 which Mrs Yap had been ordered to pay to Granich & Associates upon the dismissal of her claim by Commissioner Martin on 7 May 1996, and post-judgment interest of $3,393.66. The costs had been taxed on 12 August 1996. On 17 October 1997, Mrs Yap filed an application to set aside the bankruptcy notice on the basis that she had a counterclaim based upon the negligence of Granich & Associates. On 1 December 1997 the District Registrar of the Federal Court dismissed that application. Mrs Yap did not seek review of or appeal from that order. On 1 May 1998, Granich & Associates filed a creditor's petition seeking sequestration of Mrs Yap's estate. The act of bankruptcy relied upon was non-compliance with the bankruptcy notice served on 11 October 1997. On 13 May 1998, Mrs Yap filed a notice of intention to oppose the petition based on a pending application for special leave to appeal to the High Court of Australia in relation to her unsuccessful professional negligence action against Granich & Associates. She also alleged: "Deliberate concealment of facts relating to [Mrs Yap's] cause of action to conceal [Granich & Associates'] breach of duty to [Mrs Yap] pursuant to [Granich & Associates'] retainer/contract to [Mrs Yap]." The High Court dismissed Mrs Yap's application for special leave to appeal on 22 October 1998, stating amongst other things that her application was "entirely devoid of merit". Between the filing of the notice of intention to oppose the petition and 10 December 1998, the hearing of the petition was adjourned five times and Mrs Yap filed six affidavits. On 10 December 1998 the Registrar made a sequestration order against Mrs Yap's estate. The matter came before me as a result of a motion filed by Mrs Yap on 16 December 1998 seeking an order that the judgment of the Registrar be set aside, the sequestration order be annulled, and that Granich & Associates pay damages and costs. The motion to review and set aside the sequestration order was dismissed by me on 30 July 1999 - Granich & Associates v Yap Cheng See [1999] FCA 1039. Mrs Yap appealed against my decision to the Full Court which dismissed her appeal on 29 November 1999 Yap v Granich & Associates [1999] FCA 1867. On 6 October 2000, Mrs Yap lodged an application for the annulment of her bankruptcy. On the respondent's motion, RD Nicholson J dismissed the application on the basis, inter alia, that Mrs Yap was seeking in it to raise the same allegations which she had previously raised in the Full Court of the Federal Court Yap v Granich & Associates [2001] FCA 799. Mrs Yap applied to the Full Court of the Federal Court for leave to appeal against the decision of RD Nicholson J. Her application was dismissed by the Full Court on 29 November 2001 Yap v Granich & Associates [2001] FCA 1735. In dismissing her application for leave to appeal, the Full Court, per Gyles J, accepted that the primary judge was entitled to regard her proceedings 'as doomed to failure and so as an abuse of process and vexatious'. Mrs Yap was ordered to pay the costs of Granich & Associates. Mrs Yap sought again to set aside the sequestration order in proceedings commenced in the Federal Magistrates Court which were dismissed on 30 October 2002 by McInnis FM Yap v Granich & Associates [2002] FMCA 284. Mrs Yap appealed against the decision of the Federal Magistrate. Her appeal was heard by a single judge, Marshall J, who dismissed the appeal on 21 May 2004 Yap v Granich & Associates [2004] FCA 647. His Honour said that the learned federal magistrate was (at [11]): '... correct in characterising the proceeding before him as an abuse of process.' Mrs Yap sought leave earlier this year to institute proceedings for the reinstatement of Cheshire Securities Pty Ltd as well as other relief which was broadly similar to that which had been sought before French J in Yap v Australian Securities & Investments Commission [2009] FCA 831. McKerracher J refused leave dated 5 August 2009. Mrs Yap had relied heavily on the content of her extensive affidavit sworn in the previous proceedings before French J in 2007. The submissions before his Honour would appear were a reiteration of what had been put previously to French J. As his Honour McKerracher J observed at [7] each of the claims articulated had been previously pursued or alternatively depended upon other claims which had been previously pursued, sometimes on numerous occasions and in all cases were claims which had been rejected. McKerracher J was unable to identify any new material, new evidence or new or different arguments since the application had last been considered in Yap v Granich Partners [2008] FCA 1380. The application before me in respect of which leave is sought is in substance the same as the one which was before McKerracher J and which is the subject of judgment in Yap [2009] FCA 831. However two of the respondents in that case, Granich & Associates and State Government of Western Australia are not named as parties to the present application. Mrs Yap's aim, through the vehicle of the proposed application, is to unravel the many court orders made over the last 20 years and to obtain compensation from the respondents for loss and damage she says is a result of the orders made. The application before me also seeks by way of interlocutory relief an order for the annulment of Mrs Yap's bankruptcy. Mrs Yap is no longer bankrupt but submits that the annulment of her bankruptcy is necessary in order for her to revisit, in respect of litigation, the consequences of her having been declared bankrupt. In the proceedings before McKerracher J, Mrs Yap relied upon an affidavit of 37 pages with annexures of 55 pages. In this present application Mrs Yap relies upon her affidavit sworn 14 September 2009 which she described as "fresh evidence" to support the application. The affidavit is 38 pages long with a further 39 pages annexures. I have read this affidavit and the affidavit which was before McKerracher J. In her current affidavit Mrs Yap purports to also rely upon, as she did before McKerracher J, the lengthy affidavit sworn 5 November 2007 in the proceedings which were before French J. I am conscious of the injunction of Kirby J in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 129 at 31-32 that, in such cases, particularly where the applicant is unrepresented that the judicial mind must remain open in the case of a person who has been rejected by the Court in the past as there maybe a good point, not previously seen and which may have merit hidden amongst the verbiage of the applicant's arguments. The supposed new material which I will turn to was, in the broad, a reventilation of allegations previously made by Mrs Yap going back to May 1987. Much of it is disjointed. It is difficult to discern any further reasoning upon which to understand Mrs Yap's claim. It contains what appears to be excerpts from the transcripts of various court hearings as well as reference to exhibits in cases in which she was a party. The allegations range widely and include negligence, misrepresentation, fraud, theft and perjury. The allegations were often made against legal practitioners and bank officers.


case_title: Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 129


case_outcome: applied

case_text: In Anderson v Hassett (No 2) [2007] NSWSC 1444 at [6] , Brereton J listed ten factors which are now commonly considered by judges of the Supreme Court of New South Wales in determining the proper punishment for contempt. 23 I adopt the factors listed by Brereton J in Anderson , and accepted by Emmett J in Pappas , as guiding principles for the determination of the appropriate penalty. The tenth factor referred to by Brereton J, namely denunciation of the contempt, was not included in Emmett J's list. However, in my opinion it is a factor to be taken into account.


case_outcome: distinguished

case_text: This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J.


case_text: As Emmett J remarked, in a different statutory context, in Australian Securities & Investments Commission v Pappas [2007] FCA 672 at [23] , the power to examine witnesses is a significant one which is conferred in the public interest. His Honour continued: Members of the public should understand that failure to comply with orders of the Court requiring compliance with the Commission's requirements in connection with investigation will not be treated lightly. 19 In my view, his Honour's remarks are equally applicable to the failure to comply with the Board's requirements, in the exercise of powers that are conferred on it in the public interest. 20 It follows from these authorities, and from the statutory regime to which I referred at [13] [21] of my principal judgment, that an appropriate penalty would be one which signifies to Mr Albarran and to the public, that failure to comply with the obligation to answer the Board's questions will be treated no less seriously than it would in the exercise of similar functions by a Court. 22 Eight of those factors were listed by Emmett J in Pappas at [2] as relevant to the question of determination of penalty in the case of failure to assist ASIC in connection with an investigation under s 19 of the ASIC Act . 23 I adopt the factors listed by Brereton J in Anderson , and accepted by Emmett J in Pappas , as guiding principles for the determination of the appropriate penalty. The tenth factor referred to by Brereton J, namely denunciation of the contempt, was not included in Emmett J's list. However, in my opinion it is a factor to be taken into account. 50 This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J.


case_title: Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited [1986] HCA 46 ; (1986) 161 CLR 98

case_text: Third, as was earlier observed by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited ("Mudginberri") [1986] HCA 46 ; (1986) 161 CLR 98 at 108, the punitive and remedial objects of the exercise of the contempt power are inextricably intertwined: Witham v Holloway at 533-534. 11 In Mudginberri their Honours referred to the "strong stream" of authority for the proposition that a fine may be imposed when the contempt consists of wilful disobedience of a court order, at least in the sense that the disobedience is not "casual, accidental or unintentional": 106-107, 109, 112-113. 12 Reference was also made in Mudginberri to the underlying rationale of every exercise of the contempt power, namely the need to uphold and protect the effective administration of justice. Their Honours quoted from the then current edition of the seminal work on the law of contempt, Borrie & Lowe's Law of Contempt (2 nd ed, 1983): if a court lacked the means to enforce its orders, or if its orders could be disobeyed with impunity, the administration of justice would be brought into disrepute.


case_text: In BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union [2001] FCA 336 , Kiefel J said at [3]: Penalties for contempt of Court orders necessarily recognise that the Court's authority must be vindicated, and that there is a public interest in compliance with all orders of the Court: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , 533 . Orders for penalties recognise the need to deter not only the defaulting party, but others who might be like-minded. 53 In BHP Steel , Kiefel J observed at [22] that persons who prosecute contempt cases are often recognised as performing a public duty and an order for indemnity costs is made so that they are not out of pocket in taking that role. 56 As Sir Robert Megarry VC said in EMI Records at 984, indemnity costs are commonly ordered in contempt cases. The same practice is adopted in Australia, for reasons which include those stated by Kiefel J in BHP Steel . I therefore propose to order Mr Albarran to pay the costs of the proceeding (including the costs incurred prior to the substitution of ASIC as plaintiff) on an indemnity basis. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 27 March 2008 Counsel for the Applicant: Mr R B S Macfarlan QC with Ms J S Gleeson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P Byrne SC with Mr M Thangara Solicitor for the Respondent: ERA Legal Date of Hearing: 5 March 2008 Date of Judgment: 27 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/386.html


case_text: In Deputy Federal Commissioner of Taxation v Hickey [1999] FCA 259 ; (1999) 99 ATC 5124 at [35] , Carr J said: Any contempt of court is serious. The seriousness transcends matters such as the personal dignity of the judiciary, or the rights in this case of the Commissioner as a litigant in this Court. The offence involves interference with the effective administration of justice, by impeding and perverting its course: Johnson v Grant (1923) SC 789 at 790 per Lord President Clyde. Contempt of court is a matter of basic and public significance. Unless the laws of contempt are properly enforced our whole system of justice is at risk.


case_text: Gillard J ordered costs on a solicitor and own client basis rather than indemnity costs but those two bases are "more or less equated": EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980 at 984, 989; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported) at 5-6. 56 As Sir Robert Megarry VC said in EMI Records at 984, indemnity costs are commonly ordered in contempt cases. The same practice is adopted in Australia, for reasons which include those stated by Kiefel J in BHP Steel . I therefore propose to order Mr Albarran to pay the costs of the proceeding (including the costs incurred prior to the substitution of ASIC as plaintiff) on an indemnity basis. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Date: 27 March 2008 Counsel for the Applicant: Mr R B S Macfarlan QC with Ms J S Gleeson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: Mr P Byrne SC with Mr M Thangara Solicitor for the Respondent: ERA Legal Date of Hearing: 5 March 2008 Date of Judgment: 27 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/386.html


case_text: Gillard J ordered costs on a solicitor and own client basis rather than indemnity costs but those two bases are "more or less equated": EMI Records Ltd v Ian Cameron Wallace Ltd [1982] 2 All ER 980 at 984, 989; Tetijo Holdings Pty Ltd v Keeprite Australia Pty Ltd (FCA, French J, 3 May 1991, unreported) at 5-6.


case_text: This is not a case in which I am asked to take into account the defendant's limited financial circumstances: cf Pappas at [24]; Australian Securities and Investments Commission v Wynhoven (2004) 51 ACSR 384 at [10] per Selway J. Here, there is no evidence as to Mr Albarran's financial circumstances. Accordingly, this factor can neither increase nor reduce the penalty: Four Seasons Gutter Protection Pty Limited v Leafbusters Pty Limited (No 2) [2004] FCA 1402 at [18] per Heerey J. 51 For reasons mentioned below, I will make an order for indemnity costs. This is said to be a mitigating factor: Four Seasons Gutter Protection at [17]. But it does not follow that there ought to be a mechanical process under which the level of fine is reduced to reflect the difference between indemnity costs and party and party costs. 52 Taking into account all of the factors mentioned above, in particular the seriousness of Mr Albarran's contempt, his knowledge of the consequences and his failure to show contrition, I consider that I ought to impose a fine of $20,000.


case_text: The authorities which record the history of the practice of ordering solicitor/client costs in contempt proceedings are set out by Gillard J in National Australia Bank Ltd v Juric (No 2) [2001] VSC 398 at [67] [68].


case_text: As a statutory analogue for the exercise of the power to punish for contempt, no question arises under s 219(7) as to the Court's power of punishment. In any event, the Court's power to punish for contempt is well-established: Siminton v Australian Prudential Regulation Authority [2006] FCAFC 118 ; (2006) 152 FCR 129 at [74] . 6 In Siminton , a Full Court observed at [74] that where a natural person is the contemnor, the Court has power to impose a fine, order that the person be committed to serve a term of imprisonment, or to order both a fine and imprisonment. The statutory sources of the power are s 31 of the Federal Court of Australia Act 1976 (Cth), s 24 of the Judiciary Act 1903 (Cth) and rule 11.04 of the High Court Rules.


case_text: The distinction between civil and criminal contempt is no longer of any practical significance: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 at 534. Nevertheless, a number of relevant principles are to be found in their Honours' analysis of the distinction that was previously thought to underlie the difference between the civil and criminal species of contempt. 8 First, disobedience to a court order or breach of an undertaking to a court amounts to a criminal contempt if it involves deliberate defiance or is contumacious: Witham v Holloway at 530. A contempt which is characterised in this way is therefore at the more serious end of the spectrum, although any contempt is a serious matter. 9 Second, proceedings for breach of an order or undertaking have the effect of vindicating judicial authority, and a remedial or coercive effect: Witham v Holloway at 533. 10 Third, as was earlier observed by the High Court in Australasian Meat Industry Employees' Union v Mudginberri Station Proprietary Limited ("Mudginberri") [1986] HCA 46 ; (1986) 161 CLR 98 at 108, the punitive and remedial objects of the exercise of the contempt power are inextricably intertwined: Witham v Holloway at 533-534. 14 In BHP Steel (AIS) Pty Limited v Construction, Forestry, Mining and Energy Union [2001] FCA 336 , Kiefel J said at [3]: Penalties for contempt of Court orders necessarily recognise that the Court's authority must be vindicated, and that there is a public interest in compliance with all orders of the Court: Witham v Holloway [1995] HCA 3 ; (1995) 183 CLR 525 , 533 . Orders for penalties recognise the need to deter not only the defaulting party, but others who might be like-minded.


case_text: It is unnecessary here to consider the law with respect to costs at any length. The power to make an order for costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth). The nature of this power has been discussed on numerous occasions: see, for example, Ruddock v Vardalis (No 2) [2001] FCA 1865 ; (2001) 115 FCR 229. Order 52 r 19(3) of the Federal Court Rules applies in the present circumstances. Order 52 r 19 states: (1) An appellant may file and serve a notice of discontinuance: (a) at any time before the hearing of the appeal, without the leave of the Court; or (b) at the hearing, or after the hearing and before judgment is pronounced or made, with the leave of the Court. (1A) If a notice of discontinuance is filed and served under subrule (1), the appeal is abandoned. (2) ... (3) A party filing a notice of discontinuance under subrule (1) shall be liable to pay the costs of the other party or parties occasioned by the appeal. (4) A party whose costs are payable under subrule (3) may tax the costs and if the taxed costs are not paid within 14 days after service of the certificate of taxation may enter judgment for the taxed costs.


case_text: As indicated earlier, Mr and Mrs Lababidi have filed a notice of discontinuance. If the notice is effective, then Mr and Mrs Lababidi are liable to pay the respondent's costs pursuant to O 52 r 19(3). They seek to be relieved from this liability on the basis of financial incapacity. There are, however, numerous decisions in this Court to the effect that financial hardship or claimed incapacity does not justify an order relieving a party of a costs burden that would ordinarily be imposed. In Akbar v Minister for Immigration and Multicultural Affairs [2002] FCA 209 , for example, the appellant filed a notice of discontinuance and subsequently asked to be relieved of the obligation to pay costs on the basis that he was impecunious. The Court refused his request stating that his inability to pay "may be of very great importance to any decision to recover costs by the respondent, but it does not have any effect in altering the operation of O 52 r 19(3)". There is no basis shown for depriving the respondent of the benefit of O 52 r 19(3). There is also no basis upon which this Court might vary the order for costs that has been made by the Federal Magistrate in respect of the proceeding in the Federal Magistrates Court. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny. Associate: Dated: 12 October 2007 Counsel for the Appellant: The appellant appears in person Counsel for the Respondent: Ms P Heffernan Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 October 2007 Date of Judgment: 12 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1568.html


case_text: In Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (in liq) (2007) 161 FCR 513 at [67-68], a Full Court pointed to the difficulties in determining an applicable range by reason of the wide variety of considerations arising in each case.


case_text: The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 117 Resale price maintenance was first made illegal in Australia in 1906, although the legislation did not refer to it in express terms: ACCC v High Adventure at [8]. 118 The policy which underlies s 48 of the Act is that competition is an important feature of the distribution of goods. Resale price maintenance, as a form of vertical price fixing, eliminates the competition which Part IV of the Act seeks to achieve: ACCC v High Adventure at [7]. 119 As the Full Court observed in ACCC v High Adventure , a number of reasons have been put forward to explain the undesirability of the practice. One of them is that resale price maintenance is often a manifestation of price fixing among retailers. Another is that it inevitably eliminates dealer competition, thereby restricting freedom of competition in the price of goods in the marketplace: ACCC v High Adventure at [7]. 132 I am not bound to accept statements merely because they have been agreed between the parties: Visy at [1]. I accept that Navman sought to avoid complaints from some of its larger retailers. The threats contained in the emails of Mr Baird and Mr King to non-compliant distributors suggest that this was so. But this also suggests that Navman's resale price maintenance conduct was a manifestation of price fixing among retailers: ACCC v High Adventure at [7].


case_text: It seems to me that these difficulties inform the approach which Spender J took in Australian Competition and Consumer Commission v Jurlique International Pty Ltd [2007] FCA 79. The effect of what his Honour said at [109] [111] is that the Court should only depart from the penalties agreed by properly informed and legally assisted parties where it is clear that it should do so. 127 Navman's contraventions of s 48 were serious. Its conduct was deliberate and was carried out over a lengthy period of time in relation to a range of expensive products. Navman's conduct extended over a period of more than three years in the distribution of marine products, and more than a year in the distribution of PCN products.


case_text: Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 124 Either approach raises broad questions of judgment because s 76 imports concepts of moral responsibility derived from the criminal law: Visy at [304]. 128 I am entitled to draw inferences and reach conclusions from the facts that have been agreed in the Joint Submissions: Visy at [1]. 129 The details of the contraventions show that Navman's conduct was not merely deliberate. It was pursued in an aggressive and high-handed way by the company's most senior managers. 130 Navman's corporate culture was not conducive to compliance with the Act . Mr Baird and Mr King did not receive any trade practices training from Navman. I would have thought that senior managers of a multi-national company would have, at very least, a basic understanding of the law even without the need for detailed training. In any event, the failure of the company to provide training and see that its senior managers arranged training for their subordinates reflects badly on Navman's corporate culture. 132 I am not bound to accept statements merely because they have been agreed between the parties: Visy at [1]. I accept that Navman sought to avoid complaints from some of its larger retailers. The threats contained in the emails of Mr Baird and Mr King to non-compliant distributors suggest that this was so. But this also suggests that Navman's resale price maintenance conduct was a manifestation of price fixing among retailers: ACCC v High Adventure at [7].


case_text: Nevertheless, the parties accept, as they must, that the Court is not merely a "rubber stamp" for the agreement reached between them. It is for me to determine the appropriate penalties having regard to all the circumstances: NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291 (per Burchett and Kiefel JJ); Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 (per Branson, Sackville and Gyles JJ). 116 Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 120 The reasons given by Burchett and Kiefel JJ in NW Frozen Foods contain an authoritative statement of the principles to be applied where the parties agree on the appropriate penalty. The Full Court in Mobil Oil set out at [51] the six propositions which emerge from the reasons in NW Frozen Foods. 121 In Mobil Oil , Branson, Sackville and Gyles JJ agreed at [79] with the principles stated in NW Frozen Foods . 122 It is unnecessary for me to repeat the six propositions enumerated in Mobil Oil . I referred at [3] [5] above to the principal factors to which I must have regard. I would add to this that the view of the regulator, as a specialist body, is a relevant consideration, but it is not determinative of the ultimate question of the appropriateness of the penalty: Mobil Oil at [51(iv)]. 123 It is open to the Court to commence its reasoning by referring to the proposed figure and then limiting itself to considering whether that penalty is within the permissible range. Alternatively, the Court may adopt the reverse process of addressing the appropriate range independently of the agreed figure and then determine whether the proposed penalty falls within the range: Mobil Oil at [54].


case_text: Nevertheless, the parties accept, as they must, that the Court is not merely a "rubber stamp" for the agreement reached between them. It is for me to determine the appropriate penalties having regard to all the circumstances: NW Frozen Foods Pty Limited v Australian Competition and Consumer Commission (1996) 71 FCR 285 at 290-291 (per Burchett and Kiefel JJ); Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd (2004) ATPR 41-993 (per Branson, Sackville and Gyles JJ). 5 The essential question which arises is not whether I would, without the assistance of the parties, have reached the precise figures set out above. Rather, it is whether those amounts are "within the permissible range" in all the circumstances: NW Frozen Foods at 291. 6 In answering that question, it is necessary to consider the following: (i) the parties (ii) the contraventions (iii) the principles which apply as to determination of the appropriate penalty (iv) the principles which apply to cases where the parties agree on the penalty (v) the particular considerations which apply in the present case as a consequence of the principles stated in those authorities. 7 In the period covered by the contraventions, ie. between 2001 and 2004, Navman supplied marine navigational equipment and personal and in-car navigational products ("PCN products") through selected retail dealers in Australia. 8 Mr Baird and Mr King were senior executives of Navman during the relevant period. Mr Baird was the General Manager of Navman's marine division. He was also a director of the company from November 2003. 9 Mr King held the position of National Sales Manager from about August 2003. Later, he became the Australasian Sales Manager for Navman's PCN division. He was the most senior manager in that division and was responsible for its operations in Australia. 112 The matters to which the Court may have regard under s 76(1) are not confined to the four matters enumerated in the sub-section. The authorities have identified a number of additional factors which the Court may take into account: Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152-52,153; NW Frozen Foods at 292-293. 113 The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 114 The penalty should take into account the deliberateness of the contravention and the period over which it occurred. The involvement of senior management and the corporate culture in which the conduct occurred are also relevant factors: CSR at 52,152-52,153; NW Frozen Foods at 292-293. 115 The penalty should constitute a real punishment which takes into account the size of the company and the overall commercial environment, but it should not be so high as to be oppressive: CSR at 51,152-52,153; NW Frozen Foods at 293. 116 Determination of the amount of a penalty is not an exact science. Each case turns on its own facts and limited assistance is to be obtained from considering the amounts imposed in other proceedings: NW Frozen Foods at 295; Mobil Oil at [51]; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 at [320] . 120 The reasons given by Burchett and Kiefel JJ in NW Frozen Foods contain an authoritative statement of the principles to be applied where the parties agree on the appropriate penalty. The Full Court in Mobil Oil set out at [51] the six propositions which emerge from the reasons in NW Frozen Foods. 121 In Mobil Oil , Branson, Sackville and Gyles JJ agreed at [79] with the principles stated in NW Frozen Foods .


case_text: The matters to which the Court may have regard under s 76(1) are not confined to the four matters enumerated in the sub-section. The authorities have identified a number of additional factors which the Court may take into account: Trade Practices Commission v CSR Limited (1991) ATPR 41-076 at 52,152-52,153; NW Frozen Foods at 292-293. 113 The principal, and probably the only, object of the penalties that are imposed by s 76(1) is deterrence, both specific and general: CSR at 52,152; NW Frozen Foods at 292-293; Australian Competition and Consumer Commission v High Adventure Pty Limited (2006) ATPR 42-091 at [11]. There are many other authorities to the same effect. 114 The penalty should take into account the deliberateness of the contravention and the period over which it occurred. The involvement of senior management and the corporate culture in which the conduct occurred are also relevant factors: CSR at 52,152-52,153; NW Frozen Foods at 292-293. 115 The penalty should constitute a real punishment which takes into account the size of the company and the overall commercial environment, but it should not be so high as to be oppressive: CSR at 51,152-52,153; NW Frozen Foods at 293.


case_text: There are perhaps greater difficulties in relation to the questions of bias and discrimination. There is little doubt that a denial of procedural fairness can amount to an error of law on the part of the Tribunal, and that the Court can receive evidence and make findings of fact in relation to such a denial. See Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143 (2003) 131 FCR 28 at [3] - [13] per Gray ACJ and North J. There is also little doubt that the Tribunal is bound by the Racial Discrimination Act 1975 (Cth) ("the Racial Discrimination Act ") and the Human Rights and Equal Opportunity Commission Act 1986 (Cth). Under the latter, of course, before a proceeding is taken in Court in respect of a complaint of discrimination, including a complaint of discrimination under the Racial Discrimination Act , it is necessary to make that complaint to the Human Rights and Equal Opportunity Commission, and to have the certificate of the Commission before the proceeding can be commenced in the Court. To the extent, therefore, that the applicant seeks to rely on those Acts, there is nothing to show that the proceeding is properly within the jurisdiction of this Court. 14 The orders that the applicant seeks in the notice of appeal, with the exception of the awarding of costs to the applicant for the proceeding in this Court if he should succeed, are manifestly orders that the Court could not make. The question whether the Social Security Appeals Tribunal decision should be set aside is a question entirely for the Tribunal and would not activate this Court's jurisdiction at all. For the Court to order that the Tribunal set aside the earlier decision would be for the Court itself to engage in merits review in a proceeding which can only be on a question of law. An order that the Tribunal apologise for racial discrimination would also be beyond the power of the Court, at least without a complaint having been lodged with the Human Rights and Equal Opportunity Commission as a preliminary to the proceeding in this Court. An order that the Tribunal award costs of the proceeding in the Tribunal to the applicant is likewise beyond the power of the Court. 15 The end result, it seems to me, is that if the applicant wishes to raise any question of bias on the part of the Tribunal, his obligation is to await the conclusion of the proceeding in the Tribunal. If he were to be successful in that proceeding, of course, he would have no right of appeal on the question of bias, and would be bound in any event to fail. If he were to fail in that proceeding, it would then be open to him to pursue, by way of appeal to this Court, any question of bias on the part of the Tribunal. In my view, I am bound by the authorities that say that, with limited exceptions, a decision for the purposes of s 44(1) of the AAT Act is only a final decision.


case_text: There is authority, some of it binding on me, establishing that, with minor exceptions, the phrase "any decision" in s 44(1) must be construed to mean a final decision constituting the effective determination of an application to the Tribunal for review of an administrative decision. In other words, it is not permissible to appeal under s 44(1) in respect of any decision at any interlocutory stage of a proceeding before the Tribunal. See Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593, per Deane J, with whom Fisher J concurred, and Lowth v Comcare [1999] FCA 1692 at [3] - [5] .


case_title: Lowth v Comcare [1999] FCA 1692

case_text: There is authority, some of it binding on me, establishing that, with minor exceptions, the phrase "any decision" in s 44(1) must be construed to mean a final decision constituting the effective determination of an application to the Tribunal for review of an administrative decision. In other words, it is not permissible to appeal under s 44(1) in respect of any decision at any interlocutory stage of a proceeding before the Tribunal. See Director-General of Social Services v Chaney (1980) 31 ALR 571 at 593, per Deane J, with whom Fisher J concurred, and Lowth v Comcare [1999] FCA 1692 at [3] - [5] . 4 I am advised by the solicitor appearing for the respondent that, on Friday 30 November, he sent by email to the applicant a brief letter, enclosing the notice of appearance of the respondent, as well as another letter dated 30 November 2007 and a copy of the judgment in Lowth v Comcare . The substantive letter notified the applicant that the respondent would argue at this directions hearing that the proceeding should be struck out, on the basis that it relates to an intermediate decision and not a final decision of the Tribunal. 5 The nature of the decision that the Tribunal is said to have made can be discerned in part from the notice of appeal itself. That commences with the words: TAKE NOTICE that the applicant appeals from the decision or determination of ( Administraive [sic] Appeals Tribunal ) constituted by ( Mr JR Handley, Senior Member ) given on ( 15 October 2007 ) at ( Melbourne ) by which the Tribunal decided or determined ( Adjournment of hearing and vexatious and frivolous and selective and racial discrimination ). 6 The questions of law are specified as follows: Judicial Bias: a. Administrative Appeals Tribunal Act 1975 : whether the AAT has the jurisdiction to seek evidence not presented to the Social Security Tribunal (SSAT) and outside the scope of the Appeals from SSAT; b. Human Rights and Equal Opportunity Act (Cth) 1986 and the Racial Discrimination Act (Cth) 1975: Whether the AAT can racially discriminate against the Applicant by running the case for the Respondent after the Applicant sought that the Respondent call witnesses to prove their case; frivolous and vexatious and racially discriminatory abuse of powers to waste Tribunal time and money as well as the witnesses' time and money; whether the affidavits and worn [sic] statements of Australian Citizen with South-East Asian descent is less valid than the lies and fabricated documents of the Commonwealth of Australia and its Departments;


case_outcome: related

case_text: applicant tendered in evidence before me the Reasons for Judgment of Driver FM dated 16 June 2009 in proceedings SYG 786 of 2009 ( Satchithanantham v National Australia Bank [2009] FMCA 562). At [3] [10] of those Reasons, the Federal Magistrate said: The background to the matter is somewhat detailed but has been dealt with in earlier proceedings in various courts. On 12 December 2007 the Supreme Court of New South Wales made a costs order against the applicant. An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008 the High Court refused special leave to appeal to that Court. On 14 May 2008, the respondent creditor served a bankruptcy notice on the applicant based on the judgment debt created by the costs order. The bankruptcy notice was not complied with. The bankruptcy notice was challenged in earlier proceedings in this Court and that application was dismissed on 1 July 2008 by Smith FM ( Satchithanantham v NAB Limited [2008] FMCA 940). The applicant appealed from that decision to the Federal Court and on 27 February 2009 his Honour Edmonds J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 198). A creditor's petition was then brought and was listed to be heard on 15 October 2008. There was some delay pending the resolution of the appeal before Edmonds J. The applicant did not attend the hearing of the creditor's petition which occurred on 11 March 2009. A sequestration order and other orders were made by Smith FM on that day ( NAB Limited v Satchithanantham (No 2) [2009] FMCA 229). The applicant appealed from those orders to the Federal Court. On 11 May 2009 her Honour Stone J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 501). I understand that the applicant is also seeking special leave to appeal to the High Court against both the judgment of Edmonds J and the judgment of Stone J. I understand that there are also continuing proceedings in the Supreme Court. The application is supported by three affidavits by the applicant filed on 3 April 2009, 26 May 2009, and 16 June 2009. That comprises a substantial volume of material, some of which was objected to by the respondent. I received all of the affidavit material on the basis that I would attribute appropriate weight to it and would treat as submissions those parts of it which were submissions rather than assertions of fact. The respondent relies upon the affidavit of Jane Heather Pike made on 7 May 2009. I also received as an exhibit a bundle of documents comprising the applicant's notice of opposition to the creditor's petition, his notice of appeal in the Federal Court earlier this year, and an amended notice of appeal. The fundamental problem facing the applicant is that he is seeking to re-agitate in these present proceedings issues that have already been dealt with in this Court and in the Federal Court. He invites the Court to again revisit the costs order of the Supreme Court. He also invites the Court to revisit the earlier decisions of Smith FM and the appeals dealt with in the Federal Court. I am, of course, bound by the two judgments of the Federal Court relating to the bankruptcy notice and the sequestration order. I gave the applicant an opportunity to explain to me whether there was any basis other than the issues which have previously been dealt with in the earlier Court proceedings to support the application for annulment, but having heard his oral submissions at some length, I have not discerned any issue that was not dealt with in the earlier proceedings or which could not have been. In his judgment at [20], Edmonds J found that the various attacks by the applicant on the debt underlying the bankruptcy notice were vexatious and frivolous and were correctly dismissed by Smith FM. In her judgment at [14] Stone J rejected the claims of procedural unfairness arising out of the applicant's non attendance before this Court when it made its sequestration order. For his part, Smith FM dealt at some length with the issues raised by the applicant concerning the adverse costs order in the Supreme Court in both of his judgments. Having regard to the earlier proceedings and the material now presented by the applicant, I have come to the view that the present application is an abuse of process. It is simply a vehicle being used by the applicant to re-agitate issues that have already been dealt with. The application should not have been brought and further like applications should be prevented. I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate.


case_text: [3] [10] of those Reasons, the Federal Magistrate said: The background to the matter is somewhat detailed but has been dealt with in earlier proceedings in various courts. On 12 December 2007 the Supreme Court of New South Wales made a costs order against the applicant. An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008 the High Court refused special leave to appeal to that Court. On 14 May 2008, the respondent creditor served a bankruptcy notice on the applicant based on the judgment debt created by the costs order. The bankruptcy notice was not complied with. The bankruptcy notice was challenged in earlier proceedings in this Court and that application was dismissed on 1 July 2008 by Smith FM ( Satchithanantham v NAB Limited [2008] FMCA 940). The applicant appealed from that decision to the Federal Court and on 27 February 2009 his Honour Edmonds J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 198). A creditor's petition was then brought and was listed to be heard on 15 October 2008. There was some delay pending the resolution of the appeal before Edmonds J. The applicant did not attend the hearing of the creditor's petition which occurred on 11 March 2009. A sequestration order and other orders were made by Smith FM on that day ( NAB Limited v Satchithanantham (No 2) [2009] FMCA 229). The applicant appealed from those orders to the Federal Court. On 11 May 2009 her Honour Stone J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 501). I understand that the applicant is also seeking special leave to appeal to the High Court against both the judgment of Edmonds J and the judgment of Stone J. I understand that there are also continuing proceedings in the Supreme Court. The application is supported by three affidavits by the applicant filed on 3 April 2009, 26 May 2009, and 16 June 2009. That comprises a substantial volume of material, some of which was objected to by the respondent. I received all of the affidavit material on the basis that I would attribute appropriate weight to it and would treat as submissions those parts of it which were submissions rather than assertions of fact. The respondent relies upon the affidavit of Jane Heather Pike made on 7 May 2009. I also received as an exhibit a bundle of documents comprising the applicant's notice of opposition to the creditor's petition, his notice of appeal in the Federal Court earlier this year, and an amended notice of appeal. The fundamental problem facing the applicant is that he is seeking to re-agitate in these present proceedings issues that have already been dealt with in this Court and in the Federal Court. He invites the Court to again revisit the costs order of the Supreme Court. He also invites the Court to revisit the earlier decisions of Smith FM and the appeals dealt with in the Federal Court. I am, of course, bound by the two judgments of the Federal Court relating to the bankruptcy notice and the sequestration order. I gave the applicant an opportunity to explain to me whether there was any basis other than the issues which have previously been dealt with in the earlier Court proceedings to support the application for annulment, but having heard his oral submissions at some length, I have not discerned any issue that was not dealt with in the earlier proceedings or which could not have been. In his judgment at [20], Edmonds J found that the various attacks by the applicant on the debt underlying the bankruptcy notice were vexatious and frivolous and were correctly dismissed by Smith FM. In her judgment at [14] Stone J rejected the claims of procedural unfairness arising out of the applicant's non attendance before this Court when it made its sequestration order. For his part, Smith FM dealt at some length with the issues raised by the applicant concerning the adverse costs order in the Supreme Court in both of his judgments. Having regard to the earlier proceedings and the material now presented by the applicant, I have come to the view that the present application is an abuse of process. It is simply a vehicle being used by the applicant to re-agitate issues that have already been dealt with. The application should not have been brought and further like applications should be prevented. I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate. The judgment to which Driver FM first referred at [8] of his Reasons is a judgment of Edmonds J delivered on 11 March 2009 ( Satchithanantham v National Australia Bank Limited [2009] FCA 198). That judgment contained his Honour's reasons for dismissing an appeal from Smith FM on 27 February 2009. Smith FM had declined to set aside the Bankruptcy Notice which was the foundation of the sequestration order ultimately made in respect of the applicant's estate. The underlying debt was $10,000.00, being the amount of a costs order made on 12 December 2007 in favour of the first respondent against the applicant by a Judge of the Supreme Court of New South Wales in proceedings in that Court. Leave to appeal from that order was refused with costs by the Court of Appeal on 16 June 2008. On 14 July 2008, a further attempt to challenge that order was also dismissed with costs by the Court of Appeal. The applicant's application to the High Court for special leave to appeal from the Court of Appeal's orders was refused. There is, therefore, no other avenue by which the applicant can have the costs order overturned. At [20] of his Reasons, Edmonds J said: Viewed in this context, the various attacks by the appellant on the debt underlying the bankruptcy notice are vexatious and frivolous and were correctly dismissed by his Honour. Edmonds J went on, in effect, to uphold the validity of the Bankruptcy Notice.


case_text: [3] [10] of those Reasons, the Federal Magistrate said: The background to the matter is somewhat detailed but has been dealt with in earlier proceedings in various courts. On 12 December 2007 the Supreme Court of New South Wales made a costs order against the applicant. An appeal against the costs order was dismissed by the New South Wales Court of Appeal on 14 July 2008. On 10 December 2008 the High Court refused special leave to appeal to that Court. On 14 May 2008, the respondent creditor served a bankruptcy notice on the applicant based on the judgment debt created by the costs order. The bankruptcy notice was not complied with. The bankruptcy notice was challenged in earlier proceedings in this Court and that application was dismissed on 1 July 2008 by Smith FM ( Satchithanantham v NAB Limited [2008] FMCA 940). The applicant appealed from that decision to the Federal Court and on 27 February 2009 his Honour Edmonds J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 198). A creditor's petition was then brought and was listed to be heard on 15 October 2008. There was some delay pending the resolution of the appeal before Edmonds J. The applicant did not attend the hearing of the creditor's petition which occurred on 11 March 2009. A sequestration order and other orders were made by Smith FM on that day ( NAB Limited v Satchithanantham (No 2) [2009] FMCA 229). The applicant appealed from those orders to the Federal Court. On 11 May 2009 her Honour Stone J dismissed that appeal ( Satchithanantham v NAB Limited [2009] FCA 501). I understand that the applicant is also seeking special leave to appeal to the High Court against both the judgment of Edmonds J and the judgment of Stone J. I understand that there are also continuing proceedings in the Supreme Court. The application is supported by three affidavits by the applicant filed on 3 April 2009, 26 May 2009, and 16 June 2009. That comprises a substantial volume of material, some of which was objected to by the respondent. I received all of the affidavit material on the basis that I would attribute appropriate weight to it and would treat as submissions those parts of it which were submissions rather than assertions of fact. The respondent relies upon the affidavit of Jane Heather Pike made on 7 May 2009. I also received as an exhibit a bundle of documents comprising the applicant's notice of opposition to the creditor's petition, his notice of appeal in the Federal Court earlier this year, and an amended notice of appeal. The fundamental problem facing the applicant is that he is seeking to re-agitate in these present proceedings issues that have already been dealt with in this Court and in the Federal Court. He invites the Court to again revisit the costs order of the Supreme Court. He also invites the Court to revisit the earlier decisions of Smith FM and the appeals dealt with in the Federal Court. I am, of course, bound by the two judgments of the Federal Court relating to the bankruptcy notice and the sequestration order. I gave the applicant an opportunity to explain to me whether there was any basis other than the issues which have previously been dealt with in the earlier Court proceedings to support the application for annulment, but having heard his oral submissions at some length, I have not discerned any issue that was not dealt with in the earlier proceedings or which could not have been. In his judgment at [20], Edmonds J found that the various attacks by the applicant on the debt underlying the bankruptcy notice were vexatious and frivolous and were correctly dismissed by Smith FM. In her judgment at [14] Stone J rejected the claims of procedural unfairness arising out of the applicant's non attendance before this Court when it made its sequestration order. For his part, Smith FM dealt at some length with the issues raised by the applicant concerning the adverse costs order in the Supreme Court in both of his judgments. Having regard to the earlier proceedings and the material now presented by the applicant, I have come to the view that the present application is an abuse of process. It is simply a vehicle being used by the applicant to re-agitate issues that have already been dealt with. The application should not have been brought and further like applications should be prevented. I will order that the application is dismissed as an abuse of process, pursuant to rule 13.10(c) of the Federal Magistrates Court Rules 2001 (Cth). No further application by this applicant in relation to the sequestration order made by this Court on 11 March 2009 be received for filing in this Court, except by leave of a Federal Magistrate. In the judgment of Stone J referred to at [8] of the reasons of Driver FM ( Satchithanantham v National Australia Bank Limited [2009] FCA 501) , her Honour dismissed an appeal from another judgment of Smith FM, who made the sequestration order against the applicant's estate on 11 March 2009. Once again the applicant attempted to go behind the costs order which was the foundation of the Bankruptcy Notice and Creditor's Petition, and once again failed in that endeavour. It is quite clear that the complexion on events given by Driver FM at [6] of his Reasons was an accurate one. Order 46 r 7A of the Federal Court Rules is in the following terms: 7A Refusal to accept document for filing (1) A Registrar may refuse to accept or issue a document (including any document which is, or if issued will become, an originating document) if the document appears to the Registrar on its face to be an abuse of the process of the Court or to be frivolous or vexatious. (2) A Registrar may seek the direction of a Judge who may direct the Registrar that a document (including any document which is, or if issued will become, an originating document): (a) is to be accepted or issued; or (b) is not to be accepted or issued; or (c) is not to be accepted or issued without the leave of a Judge.


case_title: Bahonko v Sterjov [2007] FCA 1556

case_text: is authority in this Court to the effect that a mere direction by a Judge of this Court to a Registrar of this Court pursuant to O 46 r 7A(2) (and its predecessor rule) is not a judgment of this Court able to be subjected to appeal by a person whose document has been rejected by a Registrar pursuant to the direction given by the Judge (see Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [11] [19] (pp 356 357) (per Lee, Whitlam and Jacobson JJ); Bahonko v Sterjov [2007] FCA 1556 at [16] (per Gordon J); and Bahonko v Sterjov [2007] FCA 1717 at [58] (per Lander J). See also Legal Aid Commission (WA) v Edwards (No 2) [1982] FCA 103 ; (1982) 61 FLR 419 ; 42 ALR 154 which is not directly in point but which contains reasoning to the same effect). In Bizuneh [2003] FCAFC 42 ; 128 FCR 353 , the Full Court said (at [15]) (p 357), that a rule substantially in the same form as the current rule " removed a clog on the Registrar's discretion ". The Full Court said that the Registrar can now act to refuse to accept or issue a document without first obtaining the authority from a Judge so to act. This power is intended to enable the Registrar to maintain the efficient operation of the Registry and thus, of the Court.


case_title: Bahonko v Sterjov [2007] FCA 1717