case_title: Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

case_text: The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295. 14 In Mobil Oil at 38, Hayne JA pointed out that ordinarily, the fact that documents are confidential is not a bar to inspection by the other party. He said, however, that where the parties are trade rivals, different considerations arise. 15 What underlies Hayne JA's analysis is his statement that the principles of a trade rival cannot forget the secret information once it is revealed. Thus, the value of the commercially sensitive information will be lost unless it is protected by an appropriate access regime. The implied obligation not to use the documents other than for the purpose of the proceedings is thought to be insufficient, as between trade rivals, to permit unrestricted access. 16 The balancing exercise to which Hayne JA referred in Mobil Oil at 39-40 involves weighing the needs of a party to litigation against the "legitimate concern" of a trade rival. 17 The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.


case_outcome: cited

case_title: Reebok v SOCOG [2000] NSWSC 295

case_text: The principles have been applied and explained in a large number of authorities. They include Mobil Oil of Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Macquarie Generation v Coal & Allied Industries Ltd [2001] FCA 1349 , C7 Pty Ltd v Foxtel Management Pty Ltd [2002] FCA 1189 and Reebok v SOCOG [2000] NSWSC 295. 17 The principal factors which inform the exercise of the discretion have been stated in the authorities. A party to litigation is entitled to know the case it has to meet and to properly instruct solicitors and counsel. The nature and content of the documents, the degree of confidentiality of the information and the risk that the rival will use it to the detriment of the other party are important factors to be weighed in the balance; Mobil Oil at 39-40; Reebok at [43]; Hadid v Lenfest Communications Inc (1996) 70 FCR 403 at 410-411.


case_outcome: followed

case_title: P v Australian Crime Commission [2006] FCAFC 54

case_text: The Board of the ACC is established by s 7B of the ACC Act. It comprises the Commissioner of the Australian Federal Police, the Secretary of the Department, the Chief Executive Officer of the Australian Customs Service, the Chairperson of the Australian Securities and Investments Commission, the Director-General of Security under the Australian Security Intelligence Organisation Act 1979 (Cth), the Commissioner or head of the police force of each State and of the Northern Territory and of the Australian Capital Territory, and the CEO of the ACC. A brief description of the governance of the ACC is given in P v Australian Crime Commission [2005] FCAFC 54 at [28] ( P v ACC ). 4 On 15 May 2003 the Board of the ACC made the Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) 2003 (the first Instrument). Clause 4 of the first Instrument expressly authorised the investigation of the specified matter until 31 May 2004 and requested a report by 31 May 2004. Clause 5 of the first Instrument expressly determined that the investigation should be a special investigation. It recorded that the Board had considered the matter required by s 7C(3) to have been considered. It also contained the information required by s 7C(4). The first Instrument on its face records that it was made at 8.02 am on 15 May 2003 and signed by the Chair of the Board on that date. 5 On 28 April 2004 the Board of the ACC made the Australian Crime Commission Special Investigation Authorisation and Determination (Established Criminal Networks) Amendment No 1 of 2004 (the second Instrument). The second Instrument comprised only three clauses: its name; its time of commencement (upon its making); and its operative clause. Clause 3 of the Second Instrument amended clause 4 of the first Instrument by substituting 31 May 2005 for 31 May 2004.


case_text: The Full Court in S v Australian Crime Commission [2006] FCAFC 5 has determined that issue adversely to the applicant. I must follow that decision. Consequently, I reject the challenge to the constitutional validity of s 4A. 19 The discrete challenge to the validity of the third Instrument (ground (a)) is that it does not comply with the requirements of s 7C(3) and (4) of the ACC Act because it does not itself express a determination in writing that the investigation is a special investigation, because it does not on its face record that the Board has considered whether ordinary police methods of investigation into the matters are likely to be effective, and because it does not itself contain the information required by s 7C(4).


case_text: The Full Court in P v ACC has decided those contentions adversely to the applicant. The third Instrument is to be read with the first Instrument and the second Instrument, and in that way it meets the requirements of s 7C(3) and (4). There is no requirement that a determination in writing must record that the Board has considered whether ordinary police methods of investigation into the matters are likely to be effective. There is no evidence to suggest, and so no reason to conclude, that the Board did overlook that issue at the time of making the second Instrument or the third Instrument, assuming that it was necessary for it to do so at those times bearing in mind that those Instruments extended the period of the authorisation under s 7C(1)(c) but may not have constituted a fresh determination under s 7C(1)(d). I must follow that decision. I note that Finn J in X v ACC [2004] FCA 1475 reached the same conclusion. 21 The challenge to the validity of the summons because it does not comply with the qualified obligation imposed by s 28(3) (ground (e)) must also fail. The obligation is to set out the general nature of the matters in relation to which the proposed questioning is to be directed, but only so far as is reasonably practicable to set out that information. The concept of reasonable practicability is part of the measure of the information required to be provided. The obligation to provide that information does not arise where the examiner who issues the summons is satisfied that setting out the required information would prejudice the effectiveness of the special ACC investigation. 22 In fact, the summons does contain some information. It identifies that the proposed evidence is to be of 'matters relating to federally relevant criminal activity, including your knowledge of the activities of [a described group] between [a specified year] and the present'. The reference to federally relevant criminal activity is, of course, necessarily rhetorical; it is a pre-condition to a valid determination and so to a valid summons. It does not usefully convey information about the topics of the proposed examination. The balance of that descriptive material does so. The use of the word 'including' might be read as suggesting that there are other matters to be the subject of questioning which have not been specified, but in context I think it merely preserves the position expressly permitted by s 28(3) that questions outside the scope of the nature of the specified matters is nevertheless permitted.


case_outcome: referred to

case_text: The affidavit of the third respondent set out in [12] above attracts some comment. Paragraph 3 (after the first sentence, which relates to s 28(1A)) asserts that the summons provides the information required by s 28(3). There would then be no need for the proviso in s 28(3) to be activated, but par 4 of the affidavit does so. It may do so because of the use of the word 'including' so as to refer to those matters which notice has not been given. If it does not, in my view, those paragraphs may not accurately reflect the operation of s 28(3) because the third respondent has treated the obligation to provide information about the general nature of the matters to be the subject of questions as qualified in a quantitative way by the proviso upon that obligation. In other words, the third respondent has treated the measure of reasonable practicability as dependent upon, or qualified by, any prejudice to the effectiveness of the special investigation. It is not clear that reasonable practicability is qualified in that way. The measure of reasonable practicability is an objective one, not in its terms dependent upon the satisfaction of the examiner, unlike the applicability of the proviso itself. see S v ACC at [16]. At a practical level, however, the determination of what is required to be disclosed is nevertheless made by the examiner: See S v ACC at [38]-[39]. 24 Be that as it may, in this matter, the summons in my view does disclose the general nature of the matters upon which the proposed examination is to occur. If, on the other hand, it does not adequately do so, the third respondent has formed the view that it should not do so. 25 The proviso in s 28(3), as I pointed out in S v ACC (2005) ALR 123 ( S v ACC at first instance ) at [38], puts the responsibility for deciding whether setting out the general nature of the matters in relation to which the examiner intends to question the examinee would prejudice the effectiveness of the examination upon the examiner. That is the meter by which is measured the existence of such prejudice. It is a meter which is to be used only after the examiner has been satisfied that the issue of the summons is reasonable in all the circumstances and has recorded in writing the reasons for the issue of the summons: see s 28(1A). 26 The applicant accepts that he bears the onus of proving the third respondent did not have the necessary satisfaction specified by s 28(3) and to which he has deposed. For the reasons I gave in S v ACC at first instance at [36]-[40], I am not persuaded that the third respondent did not have the level of satisfaction to which he deposed. No particular criticism of his affidavit was made in that regard. He gives a reason for his satisfaction. Although very generally expressed, it is comprehensible and rational. He was obliged to, and did (according to his affidavit), first satisfy himself that it was reasonable in all the circumstances to issue the summons. To form such a view necessarily involves a significant awareness of the nature and progress of the special ACC investigation. 27 Consequently, in my judgment, that line of attack upon the validity of the summons must also fail. 28 There remains the attack based upon the 'impermissible delegation' by the Board (grounds (b) and (c)). They can be dealt with together, as there is no claim by the respondents that the Board has delegated, or is entitled to delegate, its functions under s 7C(1)(e) of the ACC Act. 44 The ACC Act is the outcome of the substantial amendments to the National Crime Authority Act 1984 (Cth) effected by the Australian Crime Commission Act 2002 (Cth). The Second Reading Speech for the Australian Crime Commission Establishment Bill 2002 (Commonwealth Parliamentary Debates House of Representatives, 26 September 2002, pp 7328- 7330) indicates that the ACC was intended by the Commonwealth, the States and the Territories to replace the National Crime Authority, the Office of Strategic Crime Assessments and the Australian Bureau of Criminal Intelligence; and the ACC was intended to result in more effective national law enforcement operations in conjunction with state and territory police forces. The ACC was intended thereby to enhance law enforcement co-ordination at a national level, by setting up a co-ordinated national criminal intelligence framework, and to improve the ability to combat serious and organised crime across jurisdictional boundaries. See S v ACC at [6]. 45 It is clear that the Board is constituted to reflect and have regard to those various interests. It is to be no mere cypher. Its functions under s 7C indicate that it has overall control of the ACC in the performance of its functions. It decides on national criminal intelligence priorities and it provides strategic direction to the ACC and determines priorities for the ACC: s 7C(1)(a) and (b). Its functions under s 7C(1)(c) and (d) are referred to above. The Board may determine under s 7C(1)(d) that an authorised investigation is a special investigation only if at least nine Board members (including at least two eligible Commonwealth Board members) vote for it: s 7G(4). Correlative provisions addressing the ACC's functions in s 7A reflect that. The ACC may only conduct an intelligence operation or an investigation into federally relevant criminal activity when authorised by the Board: s 7A(b) and (c). It must provide reports to the Board on the outcomes of those operations or investigations: s 7B(d). It must provide strategic criminal intelligence assessments to the Board and its advice on national criminal intelligence priorities: s 7A(e) and (f). The Board in turn may disseminate to the appropriate agencies the strategic criminal intelligence assessments made by the ACC. 46 The Board must also report to the Inter-Governmental Committee on the ACC's performance: s 7C(l)(h). The Inter-Governmental Committee constituted under s 8 comprises the designated Ministers of the Commonwealth and of each participating State. Its functions include monitoring generally the work of the ACC and of the Board, and the oversight of their strategic direction: s 9(1)(a) and (b). It is notified promptly of a determination by the Board that an intelligence operation is a special operation or that an authorised investigation is a special investigation under s 7C(2) or (3) respectively in the performance of the Board's functions, and it may then seek further information concerning the determination, and it may revoke the determination: s 9(2) and (7). Its oversight of the Board and of the ACC is thus at Ministerial level, but it is nonetheless a significant role.


case_text: The respondents have not invoked s 16 of the ACC Act as a response to the claim. That is presumably because they accept (at least for the purposes of this matter) that the applicant is entitled to challenge the validity of the summons by claiming that there is no valid determination. In adopting that position, they accept (for the purposes of this matter) that s 7C(1)(e) places an inviolable restraint upon the exercise of the power to determine that an authorised investigation is a special investigation: see Plaintiff S157/2002 v The Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476 per Gaudron, McHugh, Gummow, Kirby and Hayne JJ at [76]. 32 The respondents' contention is that the Board did not, by cl 6 and Sch 2 of the first Instrument, delegate its function under s 7C(1)(e) but simply performed the function required by s 7C(1)(e). They accept for the purposes of this application that the function of determining the class or classes of persons to participate in the investigation is not delegable. 33 Consequently, the only issue is whether the Board by the first Instrument properly performed that function.


case_outcome: discussed

case_text: King Gee Clothing Company Proprietary Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 ( King Gee )concerned the process of price control by regulation during the Second World War. The issue was whether Prices Regulation Order No 1816 was a valid exercise of power by the Commissioner of Prices under the National Security (Prices) Regulations . Regulation 23(1) relevantly empowered the Commissioner of Prices by order 'to fix and declare the maximum price at which goods may be sold'. The Prices Order prescribed the prices at which certain items of men's clothing might be sold by a formula providing for an allowance of a percentage margin on cost; 'cost' was defined to include an amount for 'indirect labour', to be calculated as a percentage of the 'direct labour'; various terms then described how those elements were to be calculated. The High Court (Rich, Starke, Dixon and Williams JJ) held that the Prices Order was not a valid exercise of the power granted by reg 23(1) because it required estimates or discretionary apportionments as a matter of judgment. The controlling price could not itself be calculated. Obviously there is no direct analogy with the present issue. 39 In my view, the significant feature of the case is the observation for present purposes of Dixon J at 196 that the validity of the Prices Order depended upon the meaning and operation of reg 23(1). His Honour concluded at 197 that, in its context, reg 23(1) required that a Prices Order prescribe standards or criteria from which a price may be calculated. The context included the heavy criminal sanctions for its contravention, as well as reg 23(1A) which described various ways in which the fixing and declaring of maximum prices might be made. It therefore, as his Honour said at 197 required a 'certain objective standard'. 40 In Cann's Proprietary Limited v The Commonwealth (1946)71 CLR 210 the High Court (Latham CJ, Starke and Williams JJ) declared invalid a different Prices Order purportedly made under reg 23(1) of the National Security (Prices) Regulations for similar reasons, although Dixon J dissented in the result. I do not consider that the reasoning further informs my judgment in this matter, beyond the assistance to be derived from King Gee .


case_title: Cann's Proprietary Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210

case_text: In Cann's Proprietary Limited v The Commonwealth (1946)71 CLR 210 the High Court (Latham CJ, Starke and Williams JJ) declared invalid a different Prices Order purportedly made under reg 23(1) of the National Security (Prices) Regulations for similar reasons, although Dixon J dissented in the result. I do not consider that the reasoning further informs my judgment in this matter, beyond the assistance to be derived from King Gee .


case_text: Counsel for the applicant also referred to Brudenell v Nestlé Company (Australia) Ltd [1971] VR 225. In that case, the defendant had been charged with selling instant coffee which was adulterated, contrary to s 238 of the Health Act 1958 (Vic). The adulteration was alleged because the instant coffee did not comply with the standard prescribed by reg 48(8)(a) of the Food and Drug Standards Regulations 1966 (Vic) that instant coffee should contain no more than a specified percentage of residue in boiling water. The prescribed standard was held to be ultra vires because it did not prescribe a standard for, or define, a food, drug or substance. The scientific evidence showed the percentage of residue varied depending upon the proportions of the coffee and boiling water used, and the regulation did not define the proportions of coffee and boiling water to be used to determine the residue. Consequently, Menhennitt J concluded at 235 in the light of the evidence that no standard had been prescribed, because it was impossible to ascertain to what extent the addition of any substance was prohibited.


case_title: Racecourse Co-operative Sugar Association Limited v Attorney-General (Queensland) [1979] HCA 50 ; (1979) 142 CLR 460

case_text: Finally, counsel referred to Racecourse Co-operative Sugar Association Ltd v Attorney-General (Queensland) [1979] HCA 50 ; (1979) 142 CLR 460. The High Court held, inter alia, that in delegating to the Sugar Board the power to determine the value or price of certain acquired sugar by reference to discretionary matters, the Governor-in-Council had not 'determined and declared' the value or 'fixed' the price of the sugar as required by s 6 of the Sugar Acquisition Act 1915 (Qld). Gibbs J at 481 said: 'A power given to one person to determine a value or fix a price will not be validly exercised by allowing another to exercise a wide and unreviewable discretion in determining that price, although the person upon whom that power is conferred may, instead of fixing a money sum himself, "lay down a method of finding it which will produce the same result whoever applies it, so long as he uses it correctly" Cann's Pty Ltd v The Commonwealth [at 228]'. 43 The point which emerges from those cases relevant to determining present issue is that its resolution depends upon the proper construction of s 7C(1)(e) in its context.


case_outcome: applied

case_title: Ryder v Morley (1987) 16 FCR 257

case_text: In my opinion, the argument is not sustainable. In Ryder v Morley (1987) 16 FCR 257 (" Ryder v Morley "), the Full Court (Fox, Jenkinson and Wilcox JJ) rejected an identical argument in the context of s 22 of the NCA Act . The case concerned a search warrant that was issued to a detective sergeant in the Australian Federal Police. He had been seconded to the NCA to assist it with a particular investigation. The applicant argued that a search warrant that was to be executed for the purposes of the NCA investigation must be issued pursuant to, and subject to the restrictions of, the NCA Act , including in particular s 22 thereof, and that s 10 of the Crimes Act (the predecessor of s 3E) cannot be prayed in aid of the warrant.


case_title: Ryder v Morley (1986) 12 FCR 438

case_text: At trial in Ryder v Morley (1986) 12 FCR 438, Toohey J held that the attachment of the detective sergeant to the NCA did not deprive him of his status as a constable within the meaning of the Crimes Act , and nor did it deprive him of the right to seek the issue of a search warrant pursuant to s 10 of that Act. His Honour did not see anything to preclude recourse being had to s 10 of the Crimes Act , as he explained in the following passage at 441: "It is clear that he was invoking s 10 and not relying upon any provision of the National Crime Authority Act 1984 . Had a member of the Authority required a warrant for the purpose of a special function of the Authority, it was open to that member to apply to a judge of a prescribed court under s 22(1). But the warrant was sought by a member of the Australian Federal Police who satisfied a justice of the peace, by information on oath, that a warrant was justified in terms of s 10 of the Crimes Act 1914 ." Toohey J also said that s 22(10) was conclusive against the applicant's argument: "I agree with counsel for the respondents that the subsection simply means what it says and that there is no justification for reading it down. Counsel for the applicants argued that if a police officer seconded to the Authority could rely upon s 22(10) to justify the obtaining of a warrant under s 10 of the Crimes Act 1914 , the limitations in s 22 could be set at naught. But that is not so. The limitations in s 22 apply when the Authority relies upon a special investigation which it is conducting to obtain a search warrant in the terms of that section. But if a constable can satisfy a justice of the peace, in terms of s 10 of the Crimes Act 1914 , that a search warrant is justified, the justice may issue a warrant under that section. There is nothing uncertain or ambiguous about s 22(10) ; in my view the subsection is designed for the sort of situation that arose in the present case." I consider that his Honour's reasoning is compelling. 33 On appeal from Toohey J, the Full Court said at 263-264: "It is submitted that, bearing in mind relevant parts of s 22 , and other provisions in the Act protective of individuals being investigated by the Authority (see ss 28-32) it cannot have been intended that the protection could be subverted by reliance on s 10(1) of the Crimes Act 1914 . We have in what we have already said attempted to show the different purposes and functions of s 10(1) of the Crimes Act 1914 and s 22 of the Act. In our view, it is not to be assumed that the latter negatives the operation of the former. Indeed, the contrary is expressly provided for: s 22(10). We are of the view that the provisions of the Act referred to cannot properly be construed as involving any restriction on the use of s 10(1) of the Crimes Act 1914 for purposes such as those under discussion. On the contrary, once an offence is known or suspected, s 10(1) acts as a convenient corollary to s 22 and other powers of the Authority." 34 In the present case, the applicant attempted to distinguish Ryder v Morley on the ground that Toohey J and the Full Court did not know whether the search warrant was obtained in connection with an NCA special investigation. In my view, the supposed distinction is not made out. It is founded on a statement in the Full Court judgment that 'we do not know whether it was a "special investigation", which deals with a "matter relating to" a specified "relevant criminal activity", and is not confined to things used or believed to be intended to be used for the commission of a crime.' It is not clear whether the Full Court was saying that it did not know whether it was a special investigation at all, or whether it was saying that it did not know that the special investigation had the particular features it mentions. However, it does not matter. The applicant's whole argument in Ryder v Morley invited the Court to assume that a search warrant could have been issued pursuant to s 22 of the NCA Act . In other words, the argument invited the Court to assume that the search warrant in question had been sought in connection with a special investigation by the NCA. The Court was well aware that the power conferred by s 22(1) of the NCA Act could only be exercised in connection with a special investigation. The thrust of the argument the Court was addressing was that, as s 22 was available, the legislative intention was that it should apply to the exclusion of s 10 of the Crimes Act . Both Toohey J and the Full Court addressed the merits of this argument on the assumption that s 22 was available and that its conditions could have been satisfied. It follows that the observations made both by Toohey J and the Full Court concerning the relationship between s 22 of the NCA Act and s 10 of the Crimes Act were premised upon an assumption, favourable to the applicant in that case, that the warrant had been sought in order to advance a special investigation by the NCA and so could have been obtained under s 22 of the NCA Act .


case_title: Malubel Pty Ltd v Elder [1997] FCA 1535

case_text: For the foregoing reasons, I consider that Ryder v Morley is Full Court authority directly contrary to the argument that the applicant advances in this case. Ryder v Morley was followed by Moore J in Malubel Pty Ltd v Elder [1997] FCA 1535 (" Malubel) . One of the submissions made by the applicant in Malubel was to the effect that it was not open to the second respondent to make application under s 3E of the Crimes Act given the special provisions of s 22 of the NCA Act . His Honour dismissed the application and in doing so he referred with approval to Ryder v Morley . Moore J's decision was upheld on appeal by the Full Court (Burchett, RD Nicholson and Madgwick JJ): see Malubel Pty Ltd v Elder (1998) 88 FCR 242.


case_title: Malubel Pty Ltd v Elder (1998) 88 FCR 242


case_text: On the face of these provisions, it is impossible to confine them to evidential material that is for use in the criminal prosecution process. Material that assists the investigation of suspected offences, but which is incapable of being used in the criminal prosecution process, falls squarely within the definition of evidential material. Material of this kind would constitute something with respect to which an indictable offence has been committed or is reasonably suspected to have been committed. The expression "with respect to" has a wide meaning: see Abebe v Commonwealth [1999] HCA 14 ; (1999) 197 CLR 510 at 526-527 and 556; and as to the cognate phrase 'in respect of', see Federal Commissioner of Taxation v Scully [2000] HCA 6 ; (2000) 201 CLR 148 at 171.


case_title: Federal Commissioner of Taxation v Scully [2000] HCA 6 ; (2000) 201 CLR 148


case_title: Adler v Gardiner (2002) 43 ACSR 24

case_text: The definition of a 'thing relevant to an indictable offence' in s 3 refers to things that might 'afford evidence' as to the commission of an offence. This concept is not to be understood narrowly. In Adler v Gardiner (2002) 43 ACSR 24 at 29, in a passage quoted with approval by Branson J in Kennedy v Baker [2004] FCA 562 ; (2004) 135 FCR 520 at 543, Hely J rejected a submission that documents fell outside the scope of a warrant issued under s 3E because the documents could never be admitted into evidence at a trial in relation to the warrant offences. His Honour said: "The submission misconceives the reach of the expression 'afford evidence'. Bearing in mind that the power to issue a search warrant is in aid of a criminal investigation, a thing may afford evidence as to the commission of an offence, even though it may not be admissible in evidence at a trial: George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 at 119. A thing will afford evidence of the commission of an offence if it assists, directly or indirectly, in disclosing that an offence has been committed, or in establishing or revealing the details of the offence, the circumstances in which it was committed, the identity of the person or persons who committed it or any other information material to the investigation of those matters: George v Rockett (supra) at 120. The expression 'will afford evidence' does not import a requirement that the documents must necessarily be sufficient to achieve a conviction; it is sufficient that they have relevance to or probative connection with, an issue arising upon an allegation of the offence alleged: Parker v Churchill (1985) 9 FCR 316 at 326. That includes things which are adjectivally relevant as well as things which are of substantive relevance: Ozzy Tyre & Tube Pty Ltd v Chief Executive Officer of Customs [2000] FCA 891 at [30] - [31] ." The argument that evidential material cannot be made the subject of a s 3E warrant unless it is for use in the criminal prosecution process is similarly flawed.


case_text: In Hart v Commissioner of the Australian Federal Police [2002] FCAFC 392 ; (2002) 124 FCR 384 (" Hart ") at 399-403, the Full Court (French, Sackville and RD Nicholson JJ) explained the approach that should be adopted to the construction of Pt 1AA. The Court said: "64. The construction of statutes authorising the search of premises and the seizure of things from them begins with the ordinary meaning of the words considered according to their context and the legislative purpose. This reflects the primary object of all statutory construction which, according to Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 194 CLR 355 at 381 per McHugh, Gummow, Kirby and Hayne JJ, is 'to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute'. The importance of purpose and policy was emphasised in that case by reference to the observation of Dixon CJ in Commissioner for Railways (NSW) v Agalianos [1955] HCA 27 ; (1955) 92 CLR 390 at 397: 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.' 65. The purpose of search and seizure provisions is to provide for the gathering of information to determine whether offences have been committed and to facilitate proof of them: Rogers v Moore (1992) 39 FCR 201 at 217 per French J. Recognition of that purpose may yield a construction of the legislative words that is not necessarily narrowly defined. Remaining ambiguity or doubt whether of meaning or application will, in accordance with authority, be resolved in favour of the rights and freedoms of the subject. 66. There is a significant emphasis in the case law on the need to apply a 'strict' construction to such provisions. This is because, as a general rule, the search of premises and the seizure of goods therefrom has always been illegal unless authorised by law. The manifestation of that authority has traditionally been in the form of a warrant. ... ... 67. Where 'strict construction' is invoked it is necessary to keep in mind what that term means. In the context of penal statutes it was said, a long time ago, and yet consistently with contemporary doctrine ( Scott v Cawsey [1907] HCA 80 ; (1907) 5 CLR 132 at 155 per Isaacs J), to reflect nothing more than a requirement that: 'a Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed.' The invocation of 'strict construction' in penal statutes was described by Gibbs J as 'perhaps one of last resort': Beckwith v The Queen [1976] HCA 55 ; (1976) 135 CLR 569 at 576. It should not distract from the primary object of statutory construction enunciated in Project Blue Sky. The search and seizure provisions of the Crimes Act are not punitive. They are not to be treated as penal provisions. It is more appropriate to see them as subject to the general principles that govern statutory interference with established common law rights and freedoms: Potter v Minahan [1908] HCA 63 ; (1908) 7 CLR 277 at 304 per O'Connor J ; Bropho v Western Australia [1990] HCA 24 ; (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ; Coco v The Queen [1994] HCA 15 ; (1994) 179 CLR 427 at 437-438 per Mason CJ, Brennan, Gaudron and McHugh JJ. 68. Notwithstanding these general considerations, effect must be given to the importance attached by the legislature to the use of search warrants as an important and legitimate tool in the detection and prosecution of criminal offences. Where the language of the statute authorising their use offers choices between one construction requiring fine legal judgments in the issue and/or execution of warrants and another which is more likely to be consistent with operational realities then the latter construction is generally to be preferred. The need to recognise the operational realities in which warrants are executed was acknowledged by the learned primary judge, who referred in that connection to Dunesky v Commonwealth (1996) 89 A Crim R 372 at 382-383 per Lockhart J. See also Baker v Campbell [1983] HCA 39 ; (1983) 153 CLR 52 at 83 per Mason J. The tension between the public and private interests involved in the issue and execution of search warrants was referred to by Lockhart J in Crowley v Murphy (1981) 52 FLR 123 at 141-142 (Northrop J agreeing at 132)." 50 The Court concluded its discussion by observing that: "...there is no requirement that the Court approach that task armed with a prima facie hostility to the invasion of privacy that is necessarily involved in the exercise of investigative powers. Privacy is but one of the interests to be taken into account in construing legislation authorising the exercise of such power." 51 The applicant submitted that the Full Court's reference in par 65 to the 'gathering of information to determine whether offences have been committed and to facilitate proof of them' supports its argument. I disagree. When the relevant passages in the judgment of the Full Court are read as a whole, it is plain that the Full Court was not suggesting that information can only be gathered under a search warrant if it serves the dual purpose of both determining whether offences have been committed and facilitating proof of them in a criminal prosecution process. Moreover, I do not consider that the Full Court was referring to proof in a criminal prosecution process, as distinct from proof in the broader context of a criminal investigation that may or may not result in a prosecution.


case_text: The limitation that the applicant seeks to import into Pt 1AA is inconsistent with other authorities. In Harts Australia Ltd v Australian Federal Police (1997) 75 FCR 145 at 153, the Full Court (Hill, Cooper and Whitlam JJ) recognised that search warrants can be sought and issued at an early stage of an investigation when it is unclear whether any criminal prosecution will occur. In Jilani v Wilhelm [2005] FCAFC 269 at [55] - [58] , the Full Court (Dowsett, Jacobson and Greenwood JJ) approved the statements in Hart that I have extracted and added that statutes such as Pt 1AA should not be construed narrowly but consistently with the operational reality applicable to the issue and execution of warrants.


case_title: Jilani v Wilhelm [2005] FCAFC 269


case_text: The respondent submits that where notice in terms of s 41(5) was required, but not given, in respect to the alleged missed credits and payments, then the bankruptcy notice is nevertheless invalid and a nullity and is not saved by the operation of s 306 of the Act . This, he submits, is so on two separate grounds. First, the proper completion of item 5 in the Schedule to bankruptcy notices is a requirement made essential by the Act . Second, in this case, the missed payments and credits not reflected against item 5 could reasonably mislead a debtor in the position of Mr Cumins as to what is necessary to comply with the notice. The respondent, in this respect, relies upon Adams v Lambert [2006] HCA 10 ; (2006) 228 CLR 409 at [27] . He submits that as he had not personally made the garnishee and PAYG payments or done the ATO calculations for credits, he could have no idea of what was or was not comprised in the figure $33,456 in Item 5. 64 In Adams v Lambert, upon which the respondent relies, the bankruptcy notice was said to have been invalid because it referred to the incorrect statutory provision under which interest was claimed. It did not concern any asserted overstatement in the bankruptcy notice of the amount due. Section 41(5) had no application. Section 306 did have application but the case is of no assistance in dealing with the nature of the interrelationship between s 41(5) and s 306. 65 Alternatively, even if relevant notice under s 41(5) had been given, s 306 would have no application. I have found that there was no overstatement of the amount due under the bankruptcy notice. No other formal defect or irregularity is relied upon by the respondent. 66 In the present case, the applicant either obtains "the benefit" of s 41(5) because no notice was given, or alternatively, if notice was given she has rebutted the allegations of misstatements in the amount stated to be due under the bankruptcy notice. Section 306 relieves against the invalidating consequences of mistakes in the preparation of a bankruptcy notice: Adams v Lambert at [18] and [34]. There were no mistakes in the present bankruptcy notice. The section assumes the existence of a defect or irregularity. This much was conceded by counsel for the respondent. None exists here. Re Florance; Ex parte Turimetta Properties Pty Ltd [1979] FCA 58 ; (1979) 28 ALR 403 , cited by the respondent is of no assistance on this question.


case_text: In Australian Securities & Investments Commission v Infomercial Management Group Pty Ltd [2002] VSC 262 at [58] the Supreme Court of Victoria held that certain Infomercial schemes were a fraud on the investors, if not on the Australian Taxation Office. These schemes, so claims the respondent, were the ones in which he had invested. 9 Importantly, other than in relation to a very small sum comprised in the 1998 assessment, none of the November 2000 assessments concerned the respondent's investments in the Infomercial Schemes. The assessment for 1998 for $2,619,580.49 was subject to objections by the respondent. These objections failed, as did a subsequent review before the Administrative Appeals Tribunal (AAT). In February 2005 an appeal to this Court from the decision of the AAT was dismissed by consent. The November 2000 assessments for 1995 and 1996 have never been the subject of an application for review or legal challenge. 10 On 15 June 2005 the applicant obtained summary judgment in the Supreme Court of Western Australia against the respondent for the sum of $38,084,522.24, including interest. The respondent did not consent to the judgment but did not oppose it.


case_text: On 23 August 2006 the respondent filed an application in the Supreme Court of Western Australia for an extension of time to set aside the judgment on the basis that he was defrauded by the promoters of a tax avoidance scheme. In February 2007, the respondent's application was dismissed. The respondent filed an application for review by the Court of Appeal, which was ultimately dismissed: Cumins v Deputy Commissioner of Taxation for the Commonwealth of Australia [2007] WASCA 30.


case_text: However, it was not until the respondent's group certificate was lodged by his employer with the applicant on 14 August 2005, that the applicant was able to identify that the above PAYG instalments had been received on behalf of the respondent: Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 at [5] . The respondent submits accordingly that the effective date of payment of $9,516 on his behalf was 14 August 2005 and that this amount relating to the 2005 tax year should have been included in item 5 of the Schedule to the bankruptcy notice, as "payments made". 22 The last two payments were received after the date of the judgment and before the issue of the bankruptcy notice. 23 The general interest charge credits, said to have been omitted from item 5 of the Schedule to the bankruptcy notice, related to seven garnishee payments totalling $7,350 for each of the months November 2004 to May 2005 inclusive. Each garnishee payment was in the amount of $1,050 and was said to have been mailed by the respondent's employer about the beginning of each month from December 2004 to June 2005 inclusive, to the applicant to an address - GPO Box 4596SS Melbourne Vic 3000. Each payment, the respondent submits, was, by virtue of s 160 of the Evidence Act 1995 (Cth), deemed to have been received on the fourth working day after posting and thereby, in each case to have been received by the applicant for the purposes of s 8AAZM of the Taxation Administration Act 1953 (Cth) . However, the applicant says that the amount of these seven payments, totalling $7,350 was not received until 22 September 2005 and was then credited to the respondent's account on that date. 52 In any event, the applicant's considered view was that the PAYG payments of $9,516 in respect of the 2005 tax year did not give rise to any entitlement in the respondent to have that amount included in item 5 of the Schedule to the bankruptcy notice. That view was vindicated by Siopis J at first instance: Cumins v Deputy Commissioner of Taxation [2006] FCA 1847 and on appeal: Cumins v Deputy Commissioner of Taxation [2007] FACFA 207 in proceedings in which the respondent sought to have the bankruptcy notice set aside for this very reason. 53 The respondent's further and better particulars of its grounds of opposition assert, in effect, that he did not have, at the times of the hearings at first instance and on appeal, the evidence disclosing the details of the PAYG payments made. This is of no consequence. Both cases dealt with the total amount of $9,516. It matters not, in the result, that some payments were received before, and some after, the judgment date. 55 If I am wrong about the reach of para [36] and it is sufficient to embrace the alleged misstatements relied upon, I, nonetheless, am not persuaded that there were such misstatements in the bankruptcy notice as asserted. As to the $9,516 PAYG payments, the respondent submits that an issue estoppel does not arise between these parties in the petition proceedings by reason of the matters decided by Siopis J and the Full Court. It is unnecessary to decide that question. I have considered both cases and respectfully am in agreement with the reasons and conclusions of Siopis J, particularly at [11] where his Honour said: I reject the applicant's submission. In my view, the question of when the credit in respect of the PAYG deductions accrued to the applicant is to be assessed by reference to s 18 15(1) of Sch 1 of the TAA. There is no reason not to give effect to that statutory provision. It follows that the applicant only became entitled to the credit once the assessment was made for the tax year in respect of which the PAYG deductions were made. In those circumstances, I find that at the time of the issue of the bankruptcy notice on 17 March 2006, the sum of $9516 did not comprise an amount in respect of which a deduction should have been recorded in the bankruptcy notice, as either a payment made or a credit due. The bankruptcy notice did not, therefore, overstate the amount due and was not invalid. I decline to set it aside. 56 There was no challenge to this particular finding on appeal. Nonetheless, the Full Court at [39] noted its agreement with it. 57 The respondent further submits that the proper characterisation of the PAYG instalments in issue for the purposes of item 5 of the bankruptcy notice is as "payments made". This, he says, avoids the confusion generated by focusing on the phrase "credits allowed" and meshing that with the giving of administrative credits under the TAA when a tax assessment is made.


case_text: The respondent also failed in proceedings in this Court by which he had sought to set aside the bankruptcy notice. This culminated in the dismissal of his appeal to the Full Court in December 2007: Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207. 16 On 12 November 2007 the respondent's solicitors wrote to the AAT requesting it to reinstate the AAT proceedings abandoned by the respondent in 2005. This was shortly after the Court of Appeal dismissed the respondent's appeal against the decision refusing an extension of time within which to appeal. The Tribunal has yet to make a decision whether to reinstate the proceedings. The applicant has opposed the application for reinstatement. 17 Since then the respondent has filed a further application in the AAT. The application is to extend time for lodging an application for review of a decision. It concerns the sum of $9,375 which forms a part of the respondent's taxable income for the year ended 30 June 1998 and which was the subject of the amended tax assessment issued on 23 November 2000. It is yet to be determined. 50 The amount of $16,800 is included in the amount of $33,456 contained at item 5 of the Schedule to the bankruptcy notice. That figure also includes two other amounts according to an affidavit sworn by Nola Kathryn Rice, a public service employee with the ATO: Cumins v Deputy Commissioner of Taxation [2007] FCAFC 207 at [10] . The respondent acknowledges this in his affidavit sworn 6 May 2008. The amounts are set out under para [13] above. There was no reason, in my view, for the applicant to think that para [36] was directed to an overcharge of general interest charges related to seven of the garnishee payments totalling $7,350 allegedly made prior to the date of judgment. 51 Further, in my opinion, nothing in para [36] would have alerted the applicant to the matter of the PAYG payments.


case_text: The alleged misstatements, by reason of missed credits and payments in item 5 of the Schedule to the bankruptcy notice, originally fell into the following four categories. The third and fourth of these were the subject of an earlier decision in this matter: Deputy Commissioner of Taxation v Cumins [No 4] [2008] FCA 558. They are not pressed by the respondent, leaving only the first two categories for consideration: (a) PAYG payments totalling $9,516 received on behalf of the respondent by the applicant effectively on 14 August 2005; (b) general interest charge credits arising from garnishee payments totalling $7,350 made by the respondent before the date of judgment but not credited to his account until after the date of judgment, resulting in an unquantified overcharge of general interest charges. The overcharge relates to the periods from the respective dates of receipt, as contended for by the respondent, to the judgment date. The applicant did not claim interest in the bankruptcy notice for the post-judgment period; (c) missed credits amounting to $31,007.72; and (d) a rounding credit of four cents. 20 PAYG payments were made on the respondent's behalf by his employer for the 2005 tax year as follows: PAYG Period Date Received by the ATO Amount of PAYG Paid ($) July 2004 23/08/2004 793 August 2004 21/09/2004 793 September 2004 27/10/2004 793 October 2004 22/11/2004 793 November 2004 17/12/2004 793 December 2004 28/02/2005 793 January 2005 16/02/2005 793 February 2005 21/03/2005 793 March 2005 21/04/2005 793 April 2005 20/05/2005 793 May 2005 20/06/2005 793 June 2005 20/07/2005 793 44 Applying even the most benevolent constitution to the last sentence in para [36], I do not consider that it provides sufficient information to enable the applicant to identify the asserted misstatements presently relied upon. So far as concerns the alleged misstatements said to arise by reason of missed credits amounting to $31,007.72 as well as rounding credit of four cents I repeat what I said in Deputy Commissioner of Taxation v Cumins [No 4] , particularly at [16]. 45 The respondent then submits that para [36], taken as a whole, is sufficient to embrace the misstatements related to the PAYG and garnishee payments. He says that he was at a "severe informational disadvantage" during the period when a s 41(5) notice had to be given. I take this to mean, at least, that during the period in which notice was required to be given he did not have a copy of the taxation account maintained in respect to him by the applicant showing amounts received from him or on his behalf from time to time. A copy of this document was before the Court. It is discovered document No 1 in Part 1 of Schedule 1 in the applicant's list of documents made pursuant to orders 1 and 2 of District Registrar Jan made on 29 January 2008 filed on the 6 February 2008. It is described as the "Original income tax account history for Brian Cumins showing transactions and interest for the period 05.01.99 to 25.01.08" and is dated 31.01.08. 46 If the respondent had had a copy of this document during the period in which notice under s 41(5) might have been given by him to the applicant, he would have seen, for example, that, contrary to his understanding, the seven alleged garnishee payments of $1,050 each had not been recorded as received by the applicant in each month from December 2004 to June 2005 inclusive. Further, in relation to the $9,516 PAYG payments he would have seen that this amount in respect of the financial year ended 30 June 2005 was not credited to his account until 21 July 2006. This too would have been contrary to his understanding that it should have been credited to his taxation account in the period between the date of judgment and the date of the bankruptcy notice. He would have had sufficient information to give notice under s 41(5) in respect to both of those matters. 47 In this context the respondent submits that where a government body is involved and has the benefit of a statutory regime, the s 41(5) notice requirements should not be interpreted strictly or narrowly. There is, in my opinion, no basis to this submission. There is only one proper construction of the section. What will constitute sufficient notice will vary from one case to another. If a debtor does not have the necessary information to enable notice to be given under s 41(5) and could not have obtained it by reasonable endeavours, then this may well form a basis for seeking an extension of time under s 33(1)(c) for giving notice when that information, by whatever means, comes into the hands of the debtor: cf Deputy Commissioner of Taxation v Cumins [No 4] [2008] FCA 558 at [20] - [24] . I decided there that the respondent could, merely by making a request, have obtained a copy of his taxation account from the applicant. I would not revise that conclusion even after considering the content of paras [5]-[19] of the affidavit of Mr Kevin Dundo sworn on 29 April 2008. I do not accept that the respondent was at any disadvantage in this respect. If he was, it was occasioned by his own inaction. 48 The respondent points to the fact that the sum of $10,500 mentioned in para [36] is a multiple of $1,050 which was the amount garnisheed on a monthly basis in the hands of the respondent's employer. This, he submits, should have alerted the applicant to look closely at payments received and credits allowed in respect of the period after judgment and before the bankruptcy notice issued. I do not accept that submission. The onus is upon the respondent to sufficiently articulate the misstatements upon which it relies. 49 Even if para [36] were thought to have put the applicant on such a train of enquiry, it would have been unproductive. First, the period mentioned in para [36] concerning payments of $10,500 is said to be between May 2005 to 14 March 2006. However, what is now complained about concerns seven payments of $1,050 totalling $7,350 alleged to have been made between December 2004 to June 2005. This involves an overlap of but two months across a combined period of 15 months. Second, according to the applicant's records, the amount of $7,350 was received together with one other payment of $1,050, a total of $8,400, on 22 September 2005. This amount was included in the figure set out under item 5 of the Schedule to the bankruptcy notice. Paragraph [36] states that the $10,500 was paid to the applicant between May 2005 and 14 March 2006. Obviously 22 September falls between those two dates. The applicant did direct its attention to garnishee payments made by the respondent for the purposes of the bankruptcy notice and gave a credit in item 5 for $16,800, which amount includes the $7,350. The $16,800 comprises the following garnishee payments made according to the applicant's records, between the date of the judgment and the date of the bankruptcy notice. 59 As to the garnishee payments of $7,350, it is unnecessary to decide when they were received by the applicant, whether on 22 September 2005 as the applicant contends, or on various dates between December 2004 and 6 June 2005 according to the respondent. Accepting for present purposes only that they were received on the dates asserted by the respondent, the resultant overcharge of general interest charges extends only to the date of judgment. The applicant did not claim interest in the bankruptcy notice for the post-judgment period. Accordingly, it is the amount of the judgment debt which would, to the extent of those overcharges, be incorrect. Such amounts were not credits or payments required to be included in item 5 of the Schedule to the bankruptcy notice. What I said in Deputy Commissioner of Taxation v Cumins [No 4] [2008] FCA 558 at [26] is apt on this point. The fact of such an overcharge would not operate to render, as a matter of law, the amount due under the bankruptcy notice as incorrect. 60 The respondent, despite an invitation by counsel for the applicant to seek an extension of time under s 33(1)(c) of the Act for the giving of a notice under s 41(5) covering the alleged missed payments or credits, declined to do so. Accordingly, the position of the respondent is, as is evident also from his outline of closing submissions, confined to reliance upon para [36] of Mr Dundo's affidavit as constituting notice under s 41(5) for the purposes of the alleged missed payments and credits. 61 If the respondent had sought such an extension of time, I would have refused to grant it on discretionary grounds as being futile for the same reasons as are set out under paras [55]-[59] above. 73 The respondent further submits that even if it were to be accepted that he is presently facing an unshakeable claim of some $4.8 million in respect of the 1998 assessment, that figure raises very different issues in relation to possible payment or compromise of the claim than if he were to face the current $38 million claim in the bankruptcy notice. The figure of $4.8 million is, I infer, a reference to a finding made in an earlier decision that the total amount of the judgment debt which is not related to the AAT applications is in the order of $4.8 million: Commissioner of Taxation v Cumins [2008] FCA 353 at [63] . 74 Mr Kevin Dundo in his 29 April 2008 affidavit annexed a copy of the Outline of Submissions filed by the respondent in his application to the AAT seeking an extension of time for lodging an application to review the decision of the applicant made in an amended assessment in respect of the 1998 tax year pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) as well as his application in that matter for amendment or extension of the grounds of the objection lodged by him in respect of the amended assessment pursuant to s 14ZZK(a) of the Taxation Administration Act 1953 (Cth). 75 There was no argument before me as to the content of these submissions. I earlier refused to adjourn the hearing of this petition despite the currency of the respondent's two applications to the AAT. I was not then satisfied that the respondent had established genuine and arguable grounds in relation to either of his AAT applications: Commissioner of Taxation v Cumins [2008] FCA 353. That position has not altered. The respondent's submissions on the exercise of discretion are predicated upon his being successful, on the merits, before the AAT. The likelihood of that occurring has not been established.


case_text: I reject this submission. On 6 May 2008 the judgment debt was varied by the Supreme Court of Western Australia to reduce it by $31,007.72. This reflects the amount of certain payments and credits which, since the date of judgment, the applicant volunteered should be applied to the judgment debt by way of reduction. The bankruptcy notice claimed an amount that is calculated by reference to the amount of the original judgment. It is not to the point that the amount of that judgment has been reduced: Emerson v Wreckair Pty Ltd [1992] FCA 16 ; (1992) 33 FCR 581 at 587. The affidavit of Deborah Jayne Thiele sworn on 12 May 2008, on behalf of the applicant deposes that the amount of the outstanding debt as at that date was $37,983,152.29. This is the amount contained in the Amended Creditor's Petition less the amount by which the judgment debt was varied as well as the further amount of $17,940 in respect of credits applied after December 2007. It is the amount of the debt on which the applicant relies. This satisfies, as a matter of fact, the requirement under s 52(1)(c) of the Act .


case_text: The respondent submits that this paragraph constitutes notice for the purposes of s 41(5) and is wide enough to cover all of the missed credits and payments; alternatively, it is wide enough to cover at least the alleged misstatements related to the PAYG payments and garnishee payments. I am satisfied that notice for the purposes of s 41(5) could be given by means of an affidavit served on a creditor. The section is silent as to the method of giving notice and it is not necessary in giving notice to expressly refer to s 41(5): Hussain v King Investment Solutions [2006] FCA 905 ; (2006) 153 FCR 428 at [19] - [20] . 38 Such notice must, by virtue of s 41(5), be given by the debtor within the time allowed for payment under the bankruptcy notice. The bankruptcy notice was deemed to have been served on the respondent on 4 August 2006 pursuant to orders made by Registrar Gilich on 14 July 2006 in the matter of PEG 177 of 2006. It was then amended on 19 July 2006 by a delegate of the Official Receiver such that the respondent was required to comply with the terms of the notice within 21 days after 4 August 2006. The affidavit was served on the Commissioner on 14 August 2006. Accordingly, notice was given within the time allowed. 39 However, in my opinion it does not constitute notice which is wide enough to cover the asserted misstatements in the bankruptcy notice as a whole or alternatively the two related to the PAYG and garnishee payments.


case_title: Makhoul v Barnes (1995) 60 FCR 572

case_text: First the respondent submits that, even if the PAYG payments of $9,516 did not give rise to an entitlement to a credit for that amount in the bankruptcy notice, I should take into account, as a discretionary consideration, the fact that these payments were made. No issue estoppel arises in this respect: Makhoul v Barnes (1995) 60 FCR 572 at 582. However, the fact that payments were received which did not, as a matter of law, give rise to any entitlement to a credit in that amount for a tax debt in respect of which judgment was given, does not commend itself to an exercise of discretion not to make a sequestration order in the overall circumstances of the case. I would not exercise my discretion to that end.


case_text: The respondent submits that on this point the decision in Pedikaris v Deputy Commissioner of Taxation [No 2] [2007] FCA 2087 should be followed. Particular reliance is placed on para [99]. I do not agree. At that paragraph, Graham J was considering the relevance of PAYG payments in the context of recovery proceedings. Furthermore, his Honour, at paras [92]-[93], made findings on the issue of when the Commissioner was obliged to give credits for PAYG payments which are entirely consistent with the concurrent findings of Siopis J and the Full Court to which I have referred.


case_text: In the present case, the applicant either obtains "the benefit" of s 41(5) because no notice was given, or alternatively, if notice was given she has rebutted the allegations of misstatements in the amount stated to be due under the bankruptcy notice. Section 306 relieves against the invalidating consequences of mistakes in the preparation of a bankruptcy notice: Adams v Lambert at [18] and [34]. There were no mistakes in the present bankruptcy notice. The section assumes the existence of a defect or irregularity. This much was conceded by counsel for the respondent. None exists here. Re Florance; Ex parte Turimetta Properties Pty Ltd [1979] FCA 58 ; (1979) 28 ALR 403 , cited by the respondent is of no assistance on this question.


case_text: The respondent further submits that the requirement under s 52(1)(c) has not been met because the judgment, as varied, has not been extracted and is accordingly presently unenforceable. Reliance was placed upon the decision of Re Hanby; Ex parte Flemington Central Spares Pty Ltd (1967) 10 FLR 378 at 381. That case concerns a circumstance where the judgment debt relied upon in the bankruptcy proceeding had actually been set aside. That is not the case here. Indeed the respondent's application to set aside the judgment debt was dismissed on 6 May 2008. The respondent has filed an appeal notice against the judgment. The grounds of appeal are not disclosed in this. I was not taken to the merits of the proposed appeal. 70 The respondent submits that I should, in the exercise of my discretion, decline to make a sequestration order for "other sufficient cause": s 52(2)(b) of the Act . Three matters arise.


case_text: I do not accept these submissions. A bankruptcy notice is not liable to be set aside by reason only of an overstatement unless the debtor gives notice to the creditor under s 41(5). I have found that such notice was required but not given. Accordingly, in my opinion, s 306 does not arise for consideration. I agree with what Sackville J said in obiter in Re Murdoch; Ex parte Australia & New Zealand Banking Group Ltd [1994] FCA 737 at p 10 that where no notice under s 41(5) was given then the bankruptcy notice would not be invalid even if the overstatement of the amount due is capable of misleading the debtor. His Honour's remarks sat in the context of his consideration of s 306 of the Act in respect to an overstatement in a bankruptcy notice but where no notice under s 41(5) had been given. The parties had proceeded on the assumption that s 306 had application in those circumstances. His Honour doubted the correctness of the assumption but the case was decided on the basis of it. His Honour's doubt was in my opinion, soundly based.


case_title: Robert Hudson Junior v Thomas James Donald [1997] FCA 852

case_text: In Robert Hudson (Junior) v Thomas James Donald [1997] FCA 852 , decided before St George , Lindgren J also considered the application of s 41(5). The case concerned a bankruptcy notice, the form of which, as in this case, was that set out in Form 1, Schedule 1, prescribed under the Bankruptcy Regulations 1996 (Cth), reg 4.02.


case_text: I respectfully consider that the wider construction in Robert Hudson Jnr is to be preferred to the narrow construction in St George . It would appear that the decision in Robert Hudson Jnr was not brought to the attention of the Court in St George , nor does it appear from his Honour's reasons that there was full argument on the question. Accordingly, I would respectfully adopt the reasoning on this point in Robert Hudson Jnr . In doing so, I am conscious that St George was followed by the Federal Magistrates Court in SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625. Once again, however, Robert Hudson Jnr was not cited by the parties or considered by the Court. Furthermore, s 41(5), in contrast to s 306, is not expressed in terms of the existence of a "defect" in a bankruptcy notice. Rather, it concerns whether the amount specified in the bankruptcy notice as due to the creditor exceeds the amount in fact due. Inevitably any overstatement will broadly be for one or two reasons. First, there is an error or errors in one or more of items 1-5 set out in column 2 of the Schedule to the bankruptcy notice. Then, when items 1-5 are added up they produce an excessive total at item 6. Second, there is an arithmetical error in adding up items 1-5. Of course there could be errors of both kinds occurring in the one notice. The intent of s 41(5) is, in my opinion, to consider the question of whether the amount stated is excessive as well as why that is the case. This approach to its construction is consistent with the observations of the Full Court in Seovic at [36] to which I have referred concerning the need for the debtor, when giving notice under s 41(5), to provide sufficient information to enable the creditor to identify the nature of the misstatement. I apprehend that this was intended to mean that information needs to be provided disclosing not just that the amount stated as due is excessive but the reason(s) why that is said to be so. 40 The Full Court in Seovic Civil Engineering Pty Ltd v Groeneveld [1999] FCA 255 ; (1999) 87 FCR 120 in obiter set out what, in principle, is required to constitute notice of a "misstatement" for the purposes of s 41(5). In so doing it considered but doubted the correctness of both Re Charles Murray (1959) 18 ABC 152 at 156 upon which the respondent here relies, as well as Re Wilhemsen; Ex parte Gould (1986) 11 FCR 107 at 108. It said at [36]: The expression 'the misstatement' strongly suggests that the debtor must do more than merely assert that there is a misstatement in the bankruptcy notice. The subsection requires the debtor to provide sufficient information in the notice to enable a creditor to identify what is said to be the alleged misstatement. Only then does the debtor's notice displace the general rule established by s 41(5), that the bankruptcy notice is not invalidated only by reason that the sum specified therein as the amount due to the creditor exceeds the amount in fact due. (emphasis in original) The Court continued: The point of the notice is to draw to the creditor's attention the misstatement, thereby giving the creditor the opportunity to consider, for example, whether the bankruptcy notice should be withdrawn and a fresh notice, correcting the misstatement, issued. If the creditor is given no hint in the notice as to the nature of the misstatement, there is a considerable risk that the debtor will be able to take unmeritorious advantage of minor errors (such as the small mistake in the present case) and that unnecessary and wasteful litigation will eventuate. It is no answer to say that the creditor can ask for particulars, since the debtor would not be obliged to give any until after litigation had been instituted. Indeed, a debtor wishing to take advantage of the technicalities of the law of bankruptcy might be well-advised to say as little as possible for as long as possible about the true nature of the alleged misstatement in the bankruptcy notice. The requirement for some specificity did not, the Full Court considered, extend to require the identification of the misstatement with "complete precision" or that the debtor "specify the exact amount of the alleged excess". A debtor's notice should be given a "benevolent construction".


case_text: I respectfully consider that the wider construction in Robert Hudson Jnr is to be preferred to the narrow construction in St George . It would appear that the decision in Robert Hudson Jnr was not brought to the attention of the Court in St George , nor does it appear from his Honour's reasons that there was full argument on the question. Accordingly, I would respectfully adopt the reasoning on this point in Robert Hudson Jnr . In doing so, I am conscious that St George was followed by the Federal Magistrates Court in SGRO v Liberty Funding Pty Ltd (2004) 207 ALR 625. Once again, however, Robert Hudson Jnr was not cited by the parties or considered by the Court. Furthermore, s 41(5), in contrast to s 306, is not expressed in terms of the existence of a "defect" in a bankruptcy notice. Rather, it concerns whether the amount specified in the bankruptcy notice as due to the creditor exceeds the amount in fact due. Inevitably any overstatement will broadly be for one or two reasons. First, there is an error or errors in one or more of items 1-5 set out in column 2 of the Schedule to the bankruptcy notice. Then, when items 1-5 are added up they produce an excessive total at item 6. Second, there is an arithmetical error in adding up items 1-5. Of course there could be errors of both kinds occurring in the one notice. The intent of s 41(5) is, in my opinion, to consider the question of whether the amount stated is excessive as well as why that is the case. This approach to its construction is consistent with the observations of the Full Court in Seovic at [36] to which I have referred concerning the need for the debtor, when giving notice under s 41(5), to provide sufficient information to enable the creditor to identify the nature of the misstatement. I apprehend that this was intended to mean that information needs to be provided disclosing not just that the amount stated as due is excessive but the reason(s) why that is said to be so.


case_text: The second matter concerns the pending AAT proceedings. The respondent makes the following submissions. It cannot be said that the result of success by him in the proceedings before the AAT to have that matter re-opened and the interest deduction for borrowings in respect of the Infomercials allowed, would be that there was, in any event, still at least, part of the assessment, unaffected by the Infomercial interest, standing. If he succeeds in the AAT proceedings, the Commissioner must implement the findings of the AAT and a fresh assessment would have to be issued: s 14ZZL of the Taxation Administration Act 1953 (Cth) and s 170(1) of the Income Tax Assessment Act 1936 (Cth). Only if and when that assessment occurs would there be an enforceable liability against him. There is no liability on him to pay tax until the relevant notice of assessment has been given: White Industries Australia Ltd v Commissioner of Taxation [2003] FCA 599 ; (2003) 129 FCR 276 at [27] , 282.


case_text: Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'. 28 In relation to s 60(1)(f), his Honour referred to the test for distinguishing between final and interlocutory judgments described by Windeyer J in Hall v Nominal Defendant , above, at 443, and held that Master Ng's order of dismissal finally disposed of the matter between Dr Michael and Freehills, subject only to any appeal. 29 Seaman J also saw no obstacle in the 'costs only' rule. In dealing with the point, however, his Honour referred to Dr Michael's application as having been made to the Court 'in its inherent disciplinary jurisdiction over practitioners' (at 233). His Honour then said that Dr Michael's claim against Freehills had 'concerned indemnity' and was not an order 'as to costs only'. 30 When his Honour then turned to the 'final/interlocutory' issue arising under s 60(1)(f), he again referred to the inherent jurisdiction of the Supreme Court of Western Australia over its officers, stating (at 233): 'In my opinion O 66, r 5 sets out one set of circumstances in which the inherent power of the court invested in it by s 16(1)(a) of the Supreme Court Act is to be exercised.' 31 With respect, I do not think it was necessary, as Malcolm CJ apparently did not think it was, to refer to the 'inherent' jurisdiction over practitioners. A rule of the kind found in the English Ord 62 r 8(1), the Western Australian O 66 r 5(1), and the Federal Court O 62 r 9(1) itself refers to 'misconduct'. The fact that O 62 r 9(1) of the FC Rules singles out legal practitioners and refers to their 'misconduct or default' suggests a disciplinary purpose, but it suffices for present purposes simply to see it as setting out particular circumstances in which the power invested in the court by s 43 of the FCA Act may be exercised. 38 In my view, those cases are distinguishable, on the basis that the application by a party for a costs order against a legal practitioner is 'in the nature of a principal cause of action pending between them': Hall v Nominal Defendant above, at 443 per Windeyer J; Luck , above, at [4]. This is not so in the case of a subpoena dispute. 39 The party seeking a costs order against a non-party legal practitioner has a grievance against the legal practitioner. The allegation is that the legal practitioner is guilty of misconduct or default, which has caused loss or damage to the party or is about to do so, for which the party seeks a remedy that the law provides. These considerations seem to me to attract the description 'principal cause of action', in the sense used in Hall v Nominal Defendant and Luck (see [6] above). A subpoena dispute is different. There is no antecedent and underlying wrongdoing, or loss or damage, and no consequential seeking of a remedy that the law provides. Rather, the dispute is entirely procedural, concerning, as it does, the invoking of the subpoena procedure by a party against a stranger.


case_text: Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'.


case_title: Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246


case_text: Whether a judgment if final, rather than interlocutory, usually depends on whether it finally determines the rights of the parties in respect of the matter of dispute between them: Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 at 443 per Windeyer J; Licul v Corney [1976] HCA 6 ; (1976) 180 CLR 213 at 225; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 (' Carr ') at 248; Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck ') at [4]. In Carr at 248 and in Luck at [4], it was observed that in applying this test, the Court must have regard to the legal effect, as distinct from the practical effect, of the judgment. In those cases, the full expression used was 'finally determine[s] the rights of the parties in a principal cause pending between them'. 38 In my view, those cases are distinguishable, on the basis that the application by a party for a costs order against a legal practitioner is 'in the nature of a principal cause of action pending between them': Hall v Nominal Defendant above, at 443 per Windeyer J; Luck , above, at [4]. This is not so in the case of a subpoena dispute. 39 The party seeking a costs order against a non-party legal practitioner has a grievance against the legal practitioner. The allegation is that the legal practitioner is guilty of misconduct or default, which has caused loss or damage to the party or is about to do so, for which the party seeks a remedy that the law provides. These considerations seem to me to attract the description 'principal cause of action', in the sense used in Hall v Nominal Defendant and Luck (see [6] above). A subpoena dispute is different. There is no antecedent and underlying wrongdoing, or loss or damage, and no consequential seeking of a remedy that the law provides. Rather, the dispute is entirely procedural, concerning, as it does, the invoking of the subpoena procedure by a party against a stranger.


case_text: Since Re Bradford, Thursby and Farish (1883) 15 QBD 635 (' Bradford '), it has been consistently held that the 'costs only' rule did not catch an order that a party's legal practitioner pay costs. In that case, the rule was found in s 49 of the Judicature Act 1873 (UK) ('Judicature Act'). The order was made against a solicitor on the basis that he had made an application to the Court without his client's authority. The larger expression in s 49 was actually 'as to costs only, which by law are left to the discretion of the Court'. There was no provision comparable to O 62 r 9(1) of the FC Rules. The Court of Appeal held that it was not within the discretion of the primary Judge to 'punish' the solicitor unless he had been guilty of 'some misconduct or negligence', and that an appeal should lie as of right against such a finding. 12 The 'final or interlocutory' issue did not arise. In fact there was no requirement for the obtaining of leave to appeal from an interlocutory order (r 57 in a Schedule to the Judicature Act provided that no appeal from an interlocutory order should be brought after the expiration of 21 days except by special leave of the Court of Appeal, and that no other appeal should be brought after the expiration of one year). 13 By the time of Thompson v Fraser [1986] 1 WLR 17, there was a 'costs only' rule in s 18(1)(f) of the Supreme Court Act 1981 (UK) (the larger expression was 'relating only to costs which are by law left to the court or tribunal'). The Court of Appeal held, without referring to Bradford , that an order that a solicitor pay costs lay outside the 'costs only' rule, and that the solicitor had a right of appeal. 17 The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1). 27 In relation to the 'costs only' rule found in s 60(1)(e), the Chief Justice cited Re Bradford and Re Hardwick , and said that a claim under O 66 r 5(1) was founded on 'the misconduct of the solicitor'. In this way, he said, Re Hardwick was applicable. Macteldir's claim against the Solicitor and the Barrister, was based on O 62 r 9(1) of the FC Rules which also refers to 'misconduct'.


case_title: Thompson v Fraser [1986] 1 WLR 17

case_text: By the time of Thompson v Fraser [1986] 1 WLR 17, there was a 'costs only' rule in s 18(1)(f) of the Supreme Court Act 1981 (UK) (the larger expression was 'relating only to costs which are by law left to the court or tribunal'). The Court of Appeal held, without referring to Bradford , that an order that a solicitor pay costs lay outside the 'costs only' rule, and that the solicitor had a right of appeal. 17 The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1).


case_title: In Re Hardwick (1883) 12 QBD 148

case_text: The Barrister and the Solicitor submit that such cases are to be explained as turning upon the inherent disciplinary jurisdiction exercised by courts or general jurisdiction over their officers. I do not agree. It is true that in Bradford , the Court of Appeal cited In Re Hardwick (1883) 12 QBD 148, a disciplinary case, but nothing was made of the point in Thompson v Fraser , in which the application was treated simply as one under RSC Ord 62 r 8(1). 27 In relation to the 'costs only' rule found in s 60(1)(e), the Chief Justice cited Re Bradford and Re Hardwick , and said that a claim under O 66 r 5(1) was founded on 'the misconduct of the solicitor'. In this way, he said, Re Hardwick was applicable. Macteldir's claim against the Solicitor and the Barrister, was based on O 62 r 9(1) of the FC Rules which also refers to 'misconduct'.


case_text: It is unnecessary and irrelevant to distinguish, in the present context, between a court that admits persons to practise as solicitors or barristers or both, and has an inherent disciplinary jurisdiction over persons so admitted as its officers, on the one hand, and a statutory court such as this Court on the other hand. In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, a case that pre-dated O 62 r 9(1) of the FC Rules in its present form, French J held that s 43 alone empowered the court to make a costs order against a solicitor. His Honour said that the Court's power to do so was to be seen as part of a wider power under the section to make a costs order against non-parties generally, and referred to Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 (' Aiden ') and Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 ( 'Knight' ). In those cases, orders were made against non-parties other than legal practitioners under the general provisions conferring power to order costs (in Aiden , s 51(1) of the Supreme Court Act 1981 (UK); and in Knight , s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules of the Supreme Court of Queensland). A rule such as O 62 r 9(1) does not reduce the power to order costs conferred otherwise.


case_title: Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965


case_text: It is unnecessary and irrelevant to distinguish, in the present context, between a court that admits persons to practise as solicitors or barristers or both, and has an inherent disciplinary jurisdiction over persons so admitted as its officers, on the one hand, and a statutory court such as this Court on the other hand. In De Sousa v Minister for Immigration, Local Government and Ethnic Affairs (1993) 41 FCR 544, a case that pre-dated O 62 r 9(1) of the FC Rules in its present form, French J held that s 43 alone empowered the court to make a costs order against a solicitor. His Honour said that the Court's power to do so was to be seen as part of a wider power under the section to make a costs order against non-parties generally, and referred to Aiden Shipping Co Ltd v Interbulk Ltd [1986] 1 AC 965 (' Aiden ') and Knight v FP Special Assets Ltd [1992] HCA 28 ; (1992) 174 CLR 178 ( 'Knight' ). In those cases, orders were made against non-parties other than legal practitioners under the general provisions conferring power to order costs (in Aiden , s 51(1) of the Supreme Court Act 1981 (UK); and in Knight , s 58 of the Supreme Court Act 1867 (Qld) and O 91 r 1 of the Rules of the Supreme Court of Queensland). A rule such as O 62 r 9(1) does not reduce the power to order costs conferred otherwise. 19 In In Re Land and Property Trust Co Plc [1991] 1 WLR 601, a costs order was made, not against legal practitioners, but against a company's directors. The Court's power to make the order was said to reside in the general statutory provision placing costs within the discretion of the court. The provision was s 51(1) of the Supreme Court Act 1981 (UK). That provision contained additional words which are not in s 43 of the FCA Act, namely, 'and the court shall have full power to determine by whom and to what extent the costs are to be paid'. However, nothing turns on this. The additional words were not present in the Queensland provisions that were considered by the High Court in Knight v FP Special Assets Ltd , above.


case_text: In In Re Land and Property Trust Co Plc [1991] 1 WLR 601, a costs order was made, not against legal practitioners, but against a company's directors. The Court's power to make the order was said to reside in the general statutory provision placing costs within the discretion of the court. The provision was s 51(1) of the Supreme Court Act 1981 (UK). That provision contained additional words which are not in s 43 of the FCA Act, namely, 'and the court shall have full power to determine by whom and to what extent the costs are to be paid'. However, nothing turns on this. The additional words were not present in the Queensland provisions that were considered by the High Court in Knight v FP Special Assets Ltd , above. 20 The Court of Appeal, in In Re Land and Property Trust Co Plc , held that s 18(1)(f) of the Supreme Court Act 1981 (UK) did not stand in the way of the directors exercising a right of appeal. Nicholls LJ observed (at 604-5): 'It would indeed be remarkable if a "stranger" to proceedings could be ordered to pay the costs of a party to those proceedings and have no right of appeal against that order in any circumstances unless the judge who made the order saw fit to give leave to appeal.' 21 Similarly, it is difficult to accept that if Macteldir had obtained an order for costs against the Solicitor and the Barrister upon a finding against them of misconduct or default under O 62 r 9(1) of FC Rules, they would not have a right of appeal without leave.


case_outcome: distinguished

case_title: Wilkinson v Kenny [1993] 1 WLR 963

case_text: The last English case to which I was referred, Wilkinson v Kenny [1993] 1 WLR 963, is distinguishable. It concerned, not the order that the defendant's solicitors pay certain costs to the plaintiffs, but that they pay four-fifths of the plaintiffs' costs of the application for that order. The Court of Appeal held that the latter order fell within the 'costs only' rule.


case_text: I turn now to the three Australian cases to which I was referred. The first in time is Michael v Freehill Hollingdale & Page (1990) 3 WAR 223. Dr Michael was ordered to pay the costs of Monitronix Ltd ('Monitronix') which had been represented by solicitors ('Freehills'). He applied unsuccessfully for an order that Freehills indemnify him. His application for the order against Freehills was made under O 66 r 5(1) of the Rules of the Supreme Court 1971 (WA) which was comparable to the English Ord 62 r 8(1), and therefore to O 66 r 9(1) of the FC Rules. Section 60(1)(e) of the Supreme Court Act 1935 (WA) was a 'costs only' rule similar to s 18(1)(f) of the Supreme Court Act 1981 (UK) discussed above, while s 60(1)(f) of the Western Australian Act was a 'no appeal from interlocutory orders without leave' provision, similar to s 18(1)(h) of the English Act (and to s 24(1A) of the FCA Act). 24 The statutory setting was therefore similar to that in the present case except for the absence of a 'costs only' rule in the FCA Act. 25 On the appeal, Malcolm CJ and Seaman J delivered independent judgments. Franklyn J agreed with both of them. 26 Malcolm CJ likened Dr Michael's claim against Freehills to a third party proceeding in which an unsuccessful party in the principal proceeding seeks contribution or indemnity from a third party in respect of his liability. The Chief Justice said (at 228): 'As between Dr Michael and Freehills the former's aim for an indemnity was a principal cause and the order of Master Ng finally disposed of the matter between them subject to an appeal.'


case_text: Macteldir relies on Etna v Arif [1999] VSCA 99 ; [1999] 2 VR 353. In the Victorian Court of Appeal in that case, Charles and Callaway JJA agreed with Batt JA, who held that the Victorian 'costs only' rule did not apply to an appeal from an order for costs that had been made against a party's solicitors. The word 'only' did not appear in the Victorian provision, which was s 17A(1)(b) of the Supreme Court Act 1986 (Vic), but Batt JA said (at 379) that this did not render the course of authority to which I have referred inapplicable. Accordingly, the solicitors were entitled to appeal without leave. 33 His Honour also referred to the 'disciplinary jurisdiction of the court', but it is plain that he was referring to para (1) of r 63.23 of the Supreme Court Rules (Vic) Ch I, which was generally similar to O 62 r 9 of the FC Rules. His Honour did not use the word 'inherent'. 34 Again, apparently it did not occur to anyone to suggest that the solicitors needed leave to appeal by reason of s 17A(4)(b) and the costs order's being interlocutory.


case_title: Wentworth v Rogers [1999] NSWCA 403

case_text: The Solicitor and the Barrister relied on Wentworth v Rogers [1999] NSWCA 403. The New South Wales Court of Appeal had before it a summons seeking orders setting aside, relevantly, an order made by Sperling J. The relevant order was one dismissing Ms Wentworth's application for an order that Dr Rogers's counsel and solicitors personally pay, on an indemnity basis, certain costs incurred by Ms Wentworth. The Court stated (at [2]): 'The matters in question in this application, dealing as they do with the costs of the interlocutory proceedings before Sperling J, are accordingly also interlocutory. Leave to appeal is thus required. The summons of 11 September 1997 should therefore be treated as an application for leave to appeal. That matter was discussed during the argument and, subject to one qualification, that is the way the Court said that it would approach it.' So far as the judgment reveals, the present issue was not debated and none of the cases mentioned above are referred to in the judgment. 36 I do not regard Wentworth v Rogers as deciding the present question.


case_text: The Solicitor and the Barrister rely on authorities to the effect that an order made resolving a dispute between the issuer of a subpoena and a stranger to the proceeding to whom the subpoena is issued is classified as interlocutory; see, for example, Brouwer v Titan Corporation Ltd (1997) 73 FCR 241; Hudson v Branir Pty Ltd (2005) 15 NTLR 35.


case_title: Hudson v Branir Pty Ltd (2005) 15 NTLR 35


case_text: The order of dismissal, following a hearing on the merits and the giving of comprehensive reasons for judgment, had the practical effect of finally determining the rights of the parties (Macteldir and the legal practitioners) in respect of the one and only matter of dispute between them, namely, Macteldir's claim against the Solicitor and the Barrister under O 62 r 9 of the FC Rules. The Court is the more ready to grant leave to appeal in such circumstances. In Ex parte Bucknell [1936] HCA 67 ; (1936) 56 CLR 221 (' Bucknell ') the High Court stated in relation to a judgment for either party on a demurrer (at 226): 'Although such a judgment would often be interlocutory, it might be final in determining the issue between the parties, and, in such a case, leave would be granted almost as of course.' 43 Macteldir's delay from the expiry of the seven day time limit on 9 November 2005 and 23 November 2005 is explained in an affidavit of Mr Petrovski. On the day on which Allsop J delivered judgment (2 November 2005) there was a short conference on the question of whether there should be an appeal, and a further conference on 14 November 2005. Throughout the period from 2 to 14 November 2005, Mr Petrovski was discussing with Macteldir the question of the costs of an appeal. During that period, he sought orally the advice of counsel as to the prospects of success of an appeal. It was some time after the seven day period expired that he was advised by counsel, Ms Preston, that leave to appeal might be required. Mr Petrovski then took steps to file both a notice of appeal and a notice of motion seeking leave to appeal on 23 November 2005, the last day of the 21-day period for bringing an appeal as of right. Mr Petrovski states in his affidavit made on 27 March 2006: 'The delay in filing the Notice of Motion was due to a genuine view in the week following Allsop J's judgment that leave to appeal was not required. After further consideration it was determined that the client's position should be protected by filing a notice of motion seeking leave.' Clearly, Mr Petrovski and counsel advising him can hardly be blamed for having initially thought that leave to appeal was not required a view which is in accord with the conclusion reached by me above. 44 Allsop J's reasons for judgment are, with respect, comprehensive and detailed. The grounds of appeal are expressed in 25 paragraphs, although they can be grouped. The questions raised by the grounds of appeal are obviously important to Macteldir. Applying the 'low threshold' test suggested in Bucknell , I should grant leave 'almost as of course'. 45 Having regard to the matters mentioned above, in particular, the fact that the order of dismissal has the practical effect of disposing finally of Macteldir's claim under O 62 r 9, I would grant leave to appeal if it were required. 46 Macteldir has been proved correct in its contention throughout that the order of dismissal of its motion in the primary proceeding was final and that leave to appeal was not required.


case_outcome: considered

case_text: question of whether there was political motivation behind the incidents referred to by the appellant was considered and rejected by the Tribunal. In my opinion McInnis FM was correct in stating that the appellant is seeking to re-agitate facts considered by the Tribunal. Further, the Tribunal considered each of the relevant considerations as a matter of law that were put before it by the appellant: Abebe v Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510. In the circumstances, having considered the submission of 4 October 2006 of the appellant, which is annexure A, there is nothing in those submissions which indicate any error by the Tribunal. In my view, the second Tribunal decision does not evince any jurisdictional error. For the first time it was alleged by the appellant in his written submission of 6 October 2006, which is annexure B, and orally before me, that he did not receive a fair trial because of bias of the Tribunal. In reliance upon this allegation reference was made to a letter that was mentioned in the first Tribunal decision in relation to the health of the appellant's wife. Relevantly, the Tribunal made the following observation in its first decision: The applicant wife brought to hearing a letter from a GP stating that she could not be "questioned under pressure situation (sic) as it could make her anxiety level high, resulting (sic) her diabetes worse or make her depressed. In view of the above statement, provided only at hearing, and therefore unable to be confirmed with another doctor in this timeframe, the applicant was asked very few questions. She gave evidence that she had witnessed the attack in 1994, but could not recognise the people. She also said anonymous phone calls had occurred. She thought that this was because of her husband's involvement as chef for the President. In relation to the second Tribunal decision, it appears that the applicant wife was present at the hearing but did not give evidence. Before me there was some dispute about that but the record seems clear. In any event, the passage that is relied upon does not, in itself, suggest any bias on the part of the Tribunal particularly, whether it be the first Tribunal or the second Tribunal. But, relevantly, of course, it should only relate to the first Tribunal decision. In any event, there is no basis upon which I could find bias on the part of the second Tribunal.