case_text: Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437. 161 Dixon J said that uncertainty as a test of validity arises from the nature of the power: King Gee 71 CLR at 195-196. He distinguished between ambiguities and uncertainties bound to arise from forms of expression and intricacies of subject matter on the one hand, which could be resolved by construing and interpreting the instrument (here final determination). Dixon J pointed out that, on the other hand, when what is described in the instrument, however clearly, involves a matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation or apportionment resulting in the attribution of an amount or figure as a matter of judgment, then no certain objective standard is prescribed and the power has not been exercised in accordance with the statute: King Gee 71 CLR at 197; see also Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 ; (1979) 142 CLR 460 at 480-481 per Gibbs J with whom Stephen, Mason and Wilson JJ agreed.


case_outcome: referred to

case_text: In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30].


case_outcome: cited

case_text: Optus argued that the proper construction of par 10(a) required an assumption that the requirements of cl 11.4 of Code 569 were satisfied once the conditions set out in par 10(a) were met. In other words Optus argued that the final determination required Telstra to treat the provision of the information specified in par 10(a) by itself, as an ULLS transfer request with the necessary consequence that Telstra would then process it as if it were valid under cl 11.5 of Code 569. It contended that the final determination should be construed in a practical manner which required "... Telstra to modify its existing procedures to exclude the kind of validation processes that are specific to transfers between access seekers". It referred to the practical approach in construction of instruments enunciated by Lord Reid in Gill v Donald Humberstone & Co Ltd [1963] 1 WLR 929 at 933-934 and applied by Stone J in Australian Tea Tree Oil Research Institute v Industry Research and Development Board [2002] FCA 1127 ; (2002) 124 FCR 316 at 328-329 [37] - [38] ; see too per Stein and Giles JJA in Langton v Independent Commission against Corruption (2000) 49 NSWLR 164 at 167-168 [12]-[13]. Lord Reid had said that instruments which were addressed to practical people skilled in a particular trade or industry ought be construed in light of practical considerations rather than by a meticulous comparison of the language of their various provisions of the kind appropriate for the construction of a statute.


case_outcome: followed

case_text: I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR.


case_text: There is a danger, of course, in proceedings for judicial review that the reasons of a decision-maker can be over-zealously scrutinised. The reasons are meant to inform. They are the reasons of persons who are familiar with the subject matter, and who need not be lawyers. They are intended to provide an explanation of the reasoning processes of the decision-maker himself or herself. The Court must not turn a review of the administrative decision-making into a review of the merits of the decision: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ.


case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J. 119 Section 152CP(5) required the Commission to give its reasons for making the final determination. And pursuant to s 25D of the Acts Interpretation Act 1901 , that obligation extended to setting out its findings on material questions of fact including references to the evidence or other material on which those findings were based. Those requirements focus on the subjective thought processes of the decision-maker. It must set out its findings on those questions of fact which it considers to be material to the decision it has made and the reasons it had for reaching that decision as explained by McHugh, Gummow and Hayne JJ in Yusuf (2001) 206 CLR at 346 [68]. 120 The purpose of the arbitration was to determine whether Optus should be granted access to the ULLS in a manner different to its then current access. The subject matter, scope and purpose of ss 152CP(2) and 152CR(1)(d) required the Commission, in making a final determination about the subject matter of the arbitration concerning access by Optus to the declared ULLS service to have regard to the actual direct costs which Telstra would incur in providing the access to Optus as required by the final determination. 121 The Commission accepted that there were already direct costs incurred by Telstra in providing the existing access. But, the Commission, as decision-maker, had to have regard in addition to the direct cost to Telstra of effecting what it was considering as a final determination. This view is reinforced by the prohibition imposed by s 152CQ(1)(f). That directs the Commission not to make a final determination for access if in doing so Telstra would be required to bear an unreasonable amount of the costs of extending or enhancing the capability of a facility. Thus, not only was the Commission required to have regard to Telstra's actual direct costs for the purposes of arriving at a final determination, it was prohibited, if the costs of doing so were unreasonable, from making a final determination.


case_text: I am of opinion that while the Commission had taken the provisions of Code 569 and Guideline 587 into account (Reasons [202]), it did not treat Code 569 as providing model terms and conditions covering the ULLS for the purposes of s 152AQB(9). This was because it did not consider that the October 2003 determination included, relevantly, the whole of cl 11 of Code 569 as model terms and conditions. That was a misconstruction or misunderstanding of the purposes of Code 569 and its October 2003 determination in the sense that the Commission did not have regard the whole of to cl 11 as being a determination under s 152AQB(9) but rather had regard to it as a provision of lesser importance. This resulted in the Commission failing to exercise its powers in accordance with s 152AQB(9): cf: Minister for Immigration v Gray [1994] FCA 1052 ; (1994) 50 FCR 189 at 208B-D per French and Drummond JJ; Elliott v Minister for Immigration [2007] FCAFC 22 ; (2007) 156 FCR 559 at 572 [40] - [42] per Ryan, Tamberlin and Middleton JJ. The weight which the Commission accorded Code 569, and in particular cl 11, may have been different and more significant had it had regard to the Code in accordance with s 152AQB(9).


case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.


case_text: In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 381 [69] McHugh, Gummow, Kirby and Hayne JJ said that the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. 123 I am of opinion that the requirement in s 152CR(1)(d) that the Commission take into account the direct costs of providing access to the declared service in making a final determination must be read consistently with its obligation to refrain from making such a determination if, in doing so, a party would be required to bear an unreasonable amount of the costs of extending or enhancing the capability of a facility. 124 The Commission did not set out any findings as to the direct costs of Telstra providing access to the ULLS either generally (see Reasons at [118]) or specifically those which would be incurred by Telstra in providing the service required in the final determination. The Act required the Commission to have regard to those costs by giving them proper, genuine and realistic consideration in arriving at its final determination. A mere recitation of submissions to it and then the expression of an unreasoned conclusion, could not suffice to comply with the Commission's obligation, within the meaning of s 152CR(1)(d), to have regard to Telstra's direct costs of providing access and its claim that they would be about $1.7 million. It did not have regard to Telstra's direct costs of providing the access it required under its final determination. 175 For these reasons, I am of opinion that the final determination was uncertain both in expression and in operation. It was therefore unlawfully made: Project Blue Sky Inc (1998) 194 CLR at 393 [99]-[101]. 176 Telstra also argued that the final determination was unreasonable in the sense provided in s 5(2)(g) of the ADJR Act , namely an exercise of power that was so unreasonable that no reasonable person could so exercise the power, and that therefore, there had been an improper exercise of power ( ADJR Act , s 5(1)(e)). Telstra argued that the final determination was illogical in the sense that it did not depend upon the Commission's evaluation of evidence or the drawing of factual inferences. It also contended that the final determination was illogical because it required the parties to the arbitration to comply with rules that were inconsistent internally with one another. This, in essence, was another way of arguing the same issues as have been discussed above. 177 Optus argued that Telstra understood the practical implications of the proposed determination communicated by the Commission during the arbitration as indicating that it was not illogical. It contended that the result of the final determination was a reasonable outcome in the circumstances.


case_text: In Palme 216 CLR at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664).


case_text: Dixon J said that uncertainty as a test of validity arises from the nature of the power: King Gee 71 CLR at 195-196. He distinguished between ambiguities and uncertainties bound to arise from forms of expression and intricacies of subject matter on the one hand, which could be resolved by construing and interpreting the instrument (here final determination). Dixon J pointed out that, on the other hand, when what is described in the instrument, however clearly, involves a matter which is not an ascertainable fact or figure but a matter of estimate, assessment, discretionary allocation or apportionment resulting in the attribution of an amount or figure as a matter of judgment, then no certain objective standard is prescribed and the power has not been exercised in accordance with the statute: King Gee 71 CLR at 197; see also Racecourse Co-operative Sugar Association Ltd v Attorney-General (Qld) [1979] HCA 50 ; (1979) 142 CLR 460 at 480-481 per Gibbs J with whom Stephen, Mason and Wilson JJ agreed.


case_outcome: applied

case_text: Mason CJ, Wilson and Dawson JJ observed in Re Bolton; Ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 at 518 that the words of a Minister must not be substituted for the text of the law, particularly when the intention stated by the Minister was unexpressed in a law restrictive of the liberty of an individual. I am of opinion that this canon of construction also applies in circumstances where the text of the law imposes responsibilities and liabilities on persons, including corporations, who contravene it. Mason CJ, Wilson and Dawson JJ continued: "It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the Court remains clear. The function of the Court is to give effect to the will of Parliament as expressed in the law."


case_text: In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30]. 183 As McHugh and Gummow JJ identified in S20/2002 198 ALR at 76 [73] the principle in Melbourne Stevedoring 88 CLR at 120 does not depend upon unreasonableness but upon the absence of a factual basis in which the power could be exercised. For the reasons that I have given above, in reality, the Commission was not satisfied of the requisite matters upon which its power to make the final determination depended, namely, it acted on the misconception that the presence of a soft dial tone demonstrated the existence of an unconditioned communications wire or ULLS. This was because of its misunderstandings of the subject matter with which it purported to deal, that I have described. The Commission's determination was therefore unreasonable and an improper exercise of power.


case_text: Whether the Commission used $360,000 as Telstra's costs or not, it gave no reasons for its finding that Telstra's costs would be negligible. The Commission either made a mistake about what Optus submitted or it had no reasons for rejecting Telstra's estimate of $1.7 million. Optus' submission that the Commission had not used the $360,000 as Telstra's costs recognised at least implicitly, that such a use would be a failure by the Commission to have regard to Telstra's direct costs under s 152CR(1)(d). While I think that it is likely that the Commission was confused about Optus' estimate of $360,000 as being an estimate of Telstra's costs, it is not possible to decide one way or the other whether it did because of the Commission's lack of reasons on this matter: Palme 216 CLR at 223-224 [39] per Gleeson CJ, Gummow and Heydon JJ. 126 I am of opinion that the deficiencies in the Commission's reasons which I have just discussed show that it had no reasons for rejecting Telstra's estimate of $1.7 million and that it did not comply with the requirement of s 152CR(1)(d). 127 Telstra argued that the Commission's approach to Code 569 was reviewable under s 5 of the ADJR Act . It contended that the Commission had: • failed to observe the procedures required by s 152AQB(9) (s 5(1)(b) of the ADJR Act ); • improperly exercised its power in making the final determination because it had failed to take into account a relevant consideration (s 5(1)(e) and (2)(b) of the ADJR Act ). 178 In Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 ; (2003) 198 ALR 59 at 76 [73] McHugh and Gummow JJ said that one species of what is known as Wednesbury unreasonableness ( Wednesbury [1948] 1 KB at 230) was identified by Dixon CJ in Klein v Domus Pty Ltd [1963] HCA 54 ; (1963) 109 CLR 467 at 473. There, Dixon CJ said that if it appeared that the dominating or actuating reason for a decision was outside the scope of the purpose of the enactment, that vitiated the supposed exercise of a discretion. Dixon CJ said that the Court looks to the scope and purpose of a provision and what its real object is to determine whether a decision-maker has exercised a discretion in accordance with the purpose of the enactment. However, the Court must approach the exercise from the perspective that the real object of the legislature is to leave the scope for judicial or other officer who is investigating the facts and considering the purpose of the enactment to give effect to his or her view of the justice of the case: see too S20/2002 198 ALR at 75-76 [67]-[70]; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56 ; (2003) 216 CLR 212 at 221 [30] per Gleeson CJ, Gummow and Heydon JJ. A decision which is so unreasonable that it might almost be described as being done in bad faith or so absurd that no sensible person could dream that it lay within the powers of the decision-maker is affected by jurisdictional error: Palme 216 CLR at 221 [30]. 182 In Palme 216 CLR at 223-224 [39], Gleeson CJ, Gummow and Heydon JJ referred to this principle. They distinguished it from a situation where a decision-maker did not give any reason for his or her decision, when the Court may be able to infer that he had no good reason (cf: per Gibbs CJ in Public Service Board (NSW) v Osmond [1986] HCA 7 ; (1986) 159 CLR 656 at 663-664).


case_text: In Reg v Hunt; Ex parte Sean Investments Pty Ltd [1979] HCA 32 ; (1979) 180 CLR 322 at 329, Mason J, with whom Gibbs J agreed at 324, explained the significance of a statutory requirement that a decision-maker "have regard to" costs necessarily incurred in providing nursing home care in a particular nursing home when determining a scale of fees. Mason J said that the expression "have regard to" required the decision-maker to take the costs into account and give them weight "... as a fundamental element in making his determination": Sean Investments 180 CLR at 329. He explained that in that case there were two reasons for such a construction, first, that the costs were the only matter explicitly mentioned as a matter to be taken into account and, secondly, the scheme of the provisions was that once an approval were given, the proprietor of the nursing home was not permitted to exceed the scale of fees fixed by the decision-maker. 104 As Mason J pointed out the section did not require the decision-maker there to fix the scale of fees exclusively by reference to particular costs. The decision-maker was entitled to have regard, he said, to other relevant considerations. But, the function of the decision-maker was to determine a scale of fees for the particular nursing home, not all nursing homes. Thus the Act directed that regard be had to the costs incurred in providing care in that nursing home: Sean Investments 180 CLR at 329. 105 I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR. 108 Because s 152CR(1) required it to take into account each of the seven specified factors, the Commission had to give each of them appropriate consideration in arriving at its final determination. The number and variety of factors which a statute requires a decision-maker to take into account or to have regard to in arriving at a decision necessarily affects the weight any one of those factors must be given in the deliberative process. In Sean Investments [1979] HCA 32 ; 180 CLR 322 , the costs were fundamental - or foundational - because they were the only matter which the statute prescribed. The subject matter, scope and purpose of the statutory power provide a context in which to assess the duties it imposes on the decision-maker in any particular situation: cf: Foster v Minister for Customs [2000] HCA 38 ; (2000) 200 CLR 442 at 452 [22] - [23] per Gleeson CJ and McHugh J, Gaudron and Hayne JJ agreeing with their Honours at 454 [32].


case_title: SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724


case_text: Telstra argued that par 10 fails to specify terms and conditions with reasonable precision or in such a way that both Telstra and the Court can determine whether a particular request by Optus must be dealt with in a certain, identified way: cf: Herald-Sun TV Pty Ltd v Australian Broadcasting Tribunal [1985] HCA 32 ; (1985) 156 CLR 1 at 4 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. Telstra contended that par 10 was "... so vaguely expressed that either its meaning or its application is a matter of real uncertainty ..." and so was not "... reasonably certain", using the words of Kitto J in Television Corporation Ltd v The Commonwealth [1963] HCA 30 ; (1963) 109 CLR 59 at 70. Kitto J said there that the latter concept included both certainty of expression and certainty in operation. 167 I am of opinion that par 10 is uncertain for the reason given by Kitto J in Television Corporation 109 CLR at 71 when he said of conditions imposed in a licence by a Minister purportedly under a statutory power to do so: "After all, the power given to the Minister is to prescribe the conditions of his own authority to deprive a licensee of its licence. Is it really to be supposed that the Parliament intended that he might prescribe conditions in words of such dubious import that no one but himself would be sure how far he meant them to go? The Parliament did not give the Minister power to suspend or revoke licences at will. The course it took was to require him to describe in advance, by the formal method of imposing conditions upon a licence, what conduct of the licensee would expose the licence to suspension or revocation. I can see no justification for so loose an interpretation of the Act that a form of words which by reason of vagueness fails to perform that function may be held a condition within the intended scope of the authority." 168 The provisions of par 10 of the final determination must be read as a whole. This is because the whole of par 10 purports to specify what Telstra must do to order and provision so as to provide access. Thus, in pars 10(a) and (e), the Commission equated the presence of a soft dial tone as the signification that an ULLS exists that provides the connection over which the soft dial tone is transmitted. For the reasons that I have given, that is fallacious. And because it is fallacious, but fundamental to the requirement for Telstra under par 10(a) to treat the request as a valid ULLS transfer request, if Optus' construction is correct, I am of opinion that the final determination is uncertain and unworkable. 169 This view is reinforced by consideration of par 10(f) and (g). These deal with the situation where Optus has submitted an ULLS transfer request that meets the requirements in par 10(a). In the first case, Optus must accept any risk as to quality of connection "... on the existing copper path between the Telstra exchange and the end-user premises" (emphasis added). Again, this demonstrates the Commission presupposed that in every case the presence of a soft dial tone identified the existence of a copper path. What is Telstra to do if that assumption is, as it can be, incorrect? It cannot supply the service the subject of the request as an ULLS service because, even though the soft dial tone is transmitted by the path that exists, that path is not an ULLS path. And, if Optus and the Commission are correct, Telstra cannot reject the transfer request but must treat it as valid even though it does not relate to an ULLS. That is, the final determination commits Telstra to processing as an ULLS transfer request, a request based on no more than the existence of a soft dial tone and the provision of a telephone number to Optus' new subscriber's address.


case_text: Here, s 152CR(1) prescribes a number of matters for consideration. This is a sure legislative indication that these matters must be central matters for the Commission. But, because s 152CR(2) expressly widens the range of matters which the Commission may consider, it is authorised to arrive at a final determination, after due consideration, which accords more weight to some other factor or factors than those in s 152CR(1). Indeed, the factors in s 152CR(1) itself tend in different directions. The interests of a carrier (s 152CR(1)(b)) and those of all persons who have a right to use a declared service (s 152CR(1)(c)) more often than not will be opposed. If the Commission were to give fundamental weight to each in the sense which Telstra argued, how could it arrive at a decision favouring one at the expense of the other? cf Telstra Corporation Limited v Australian Competition and Consumer Commission [2008] FCA 1436 at [311] - [312] per Lindgren J. 111 In Telstra [2008] FCA 1436 at [122] Lindgren J held that s 152CR(1)(a) is the factor which should be given fundamental weight, namely, whether the determination will promote the long-term interests of end-users of services supplied by means of carriage services. This was because, he held, that factor reflected the sole object of Part XIC of the Act as expressed in s 152AB(1): see Telstra [2008] FCA 1436 at [17] . Of course, s 152AB(2)(e) supplements this concept by identifying an objective of encouraging the economically efficient use of, and economically efficient investment in, the infrastructure by which listed services are supplied. Often that objective may not be attained if an infrastructure investment is not economically feasible for the service provider to make or support. So, by dint of s 152AB(2)(e) the interests of end-users may well include that the service provider is not forced to act in a way which for it is economically unjustifiable. Possibly, a monopolist may be able to be forced to lower prices or make way for competition under s 152AB(2)(e), but not to run the business as a charitable exercise or at a loss. 112 Therefore, depending on the facts of a particular arbitration, one or more of the matters in s 152CR(1) may become of greater or lesser weight in the decision-making process. However, as a matter of law, none of the factors, including s 152CR(1)(d), is entitled to a fixed weighting in that process regardless of the subject matter of any arbitration and all other relevant factors: Peko-Wallsend 162 CLR at 41 per Mason J; Foster 200 CLR at 452 [22]-[24] per Gleeson CJ and McHugh J; cf: Telstra [2008] FCA 1436 at [118] per Lindgren J.


case_title: Telstra Corporation Ltd v The Commonwealth (2008) 243 ALR 1 ; [2008] HCA 7

case_text: Many MDUs have a main distribution frame ("MDF"). The MDF is used to connect the telephony wires of dwellings within the MDU to appropriate wires that, in turn, connect to a telephone exchange. A form of connection is by use of a copper or aluminium wire, which, as explained below, is defined as a "communications wire". One, but by no means the exclusive, means of connection between the exchange side of the MDF and the exchange itself is through an unconditioned communications wire. This form of communication is called an unconditioned local loop service ("ULLS"). Telstra Corporation Limited owns and maintains those local loops. It also owns over 5,000 local exchanges as explained in Telstra Corporation Ltd v The Commonwealth [2008] HCA 7 ; (2008) 243 ALR 1 at 3-4 [1] - [8] per Gleeson CJ, Gummow, Kirby, Hayne, Heydon, Crennan and Kiefel JJ. 3 The essential and defining characteristics of the ULLS are that it consists of an unconditioned communications wire (usually a twisted pair of copper or aluminium wires) between, in substance, the exchange side of the MDF and the telephone exchange itself. However, there are other means of connecting between the exchange side of the MDF and the telephone exchange, including using fibre optic cable. Thus, the mere fact that there may be wires physically present at the exchange side of the MDU does not mean that the whole path to the exchange from that wire will always be physically along a copper or aluminium communications wire or wires. 4 Other telecommunications providers than Telstra are able to offer telephony services to, among others, residents of MDUs. In September 2006, Optus Networks Pty Limited was such a provider. At that time, Optus notified a dispute to the Australian Competition and Consumer Commission concerning access to the ULLS provided by Telstra in MDUs under s 152CM(1) of the Trade Practices Act 1974 (Cth). Part XIC of the Act regulates, among other things, access to parts of the PSTN, and requires the Commission to act as an arbitrator of disputes between participants in the telecommunications industry concerning access to services.


case_text: This reflects a fundamental precept of constitutional law. When legislative power is used to create rights or impose liabilities and obligations, one consequence is that the freedom of those affected by the legislation is constrained or expanded by what the law provides. Where the law requires the executive branch of government, such as the Commission, to do something to give effect to the intention of the Parliament, the executive must obey the law, just like every other member of the community, be it a corporation or individual. This is because it is the duty of the executive branch of government to obey the law as laid down by the Parliament and the Courts, even if the executive does not agree with those decisions: The Commonwealth v New South Wales [1923] HCA 23 ; (1923) 32 CLR 200 at 214 per Isaacs, Rich and Starke JJ applying Eastern Trust Co v McKenzie, Mann & Co [1915] AC 750 at 759; see also Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536 at 540 [9] per myself.


case_text: Inadequacy of the material relied on by the administrative decision-maker, while not itself being a ground for prohibition is a circumstance which may support, in a case like the present, the inference that the Commission was applying the wrong test or was not in reality satisfied of the requisite matters: The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Limited [1953] HCA 22 ; (1953) 88 CLR 100 at 120. There, Dixon CJ, Williams, Webb and Fullagar JJ referred to the important distinction between a mere insufficiency of evidence or other materials to support a conclusion of fact when the function of finding the fact has been committed to a person or body by the Parliament and, on the other hand, the absence of any foundation in fact for the fulfilment of the conditions upon which, in point of law, the existence of the power depends. They said that it was not enough if the repository of the power, properly interpreting the section of the Act under which it was conferred and applying the correct test: "... nevertheless satisfies itself or himself on inadequate material that facts exist which in truth would fulfil the conditions which one or other or both of those paragraphs prescribe. The inadequacy of the material is not in itself a ground for prohibition. But it is a circumstance which may support the inference that the tribunal is applying the wrong test or is not in reality satisfied of the requisite matters. If there are other indications that this is so or that the purpose of the function committed to the tribunal is misconceived it is but a short step to the conclusion that in truth the power has not arisen because the conditions for its exercise do not exist in law and in fact." 183 As McHugh and Gummow JJ identified in S20/2002 198 ALR at 76 [73] the principle in Melbourne Stevedoring 88 CLR at 120 does not depend upon unreasonableness but upon the absence of a factual basis in which the power could be exercised. For the reasons that I have given above, in reality, the Commission was not satisfied of the requisite matters upon which its power to make the final determination depended, namely, it acted on the misconception that the presence of a soft dial tone demonstrated the existence of an unconditioned communications wire or ULLS. This was because of its misunderstandings of the subject matter with which it purported to deal, that I have described. The Commission's determination was therefore unreasonable and an improper exercise of power.


case_text: I am of opinion that when s 152CR(1)(d) required the Commission, in making a final determination, to take into account Telstra's direct costs of providing access to the ULLS in the manner the Commission proposed, it was required to take that matter into account, together with the other matters referred to in the section, and to give weight to them as a fundamental element in making its decision: The Queen v Toohey; Ex parte Meneling Station Pty Limited [1982] HCA 69 ; (1982) 158 CLR 327 at 333 per Gibbs CJ applying what Mason J had said in Sean Investments 180 CLR at 329 to a section requiring a decision-maker to take a variety of matters into account. Mason J said that the requirement to have regard to a matter meant that it would become a central element for the decision-maker in his considerations: Meneling Station 158 CLR at 338. And, as he later explained in his classic judgment in Minister for Aboriginal Affairs v Peko Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 41, in the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the Court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising a statutory power. Mason J said that the Court could set aside an administrative decision which had failed to give adequate weight to a relevant factor of great importance, or had given excessive weight to a relevant factor of no great importance, but the preferred ground on which that power was to be exercised was that the decision was "manifestly unreasonable". A person entrusted with a discretion must call his own attention to the matters which he is bound to consider: Peko-Wallsend 162 CLR at 39 per Mason J applying Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 at 228 per Lord Greene MR. 110 I am of opinion that the sense in which the High Court used the expression "fundamental weight" in this context is to require the decision-maker to treat the consideration of the factors, as opposed to the factors themselves, as a central element in the deliberative process: Meneling Station 158 CLR at 338 per Mason J. In this way the decision-maker will give appropriate weight to those factors. The Parliament sought to ensure that the Commission would give proper, genuine and realistic consideration to each of the factors it specified in s 152CR(1) but without confining it to those matters, as s 152CR(2) showed. Such consideration must be reflected in the Commission's reasons for its decision.


case_title: Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265


case_title: Tran v Minister for Immigration [2006] FCA 1229 ; (2006) 154 FCR 536


case_text: Optus argued that par 10 of the final determination had to be construed in accordance with the principle explained by Dixon J in King Gee Clothing Company Pty Limited v The Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 at 195 and Cann's Pty Limited v The Commonwealth [1946] HCA 5 ; (1946) 71 CLR 210 at 227-228. Gleeson CJ, Gummow, Kirby, Hayne and Heydon JJ in Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367 applied that principle to hold that where it was asserted that one of its terms was uncertain, an instrument or decision made under a statute was not construed as if it were a contract: cp Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436-437.


case_text: I am of opinion that par 10(e) could be severed because the rest of the final determination would not operate differently without it: Bank of New South Wales v The Commonwealth [1948] HCA 7 ; (1948) 76 CLR 1 at 371 per Dixon J; Victoria v The Commonwealth (Industrial Relations Act Case) [1996] HCA 56 ; (1996) 187 CLR 416 at 502 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. The relevance of par 10(e) is that it confirms the incorrect approach which the Commission took as to the significance of a soft dial tone in par 10(a). Severance of par 10(e) would not make the final determination any more meaningful or give it validity.


case_text: In Visa International Service Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 437-439 [659] - [666] , Tamberlin J admitted evidence of this kind in judicial review proceedings so that the Court was in the position to understand the particular meaning of words used in the specialised area concerned. He applied what Street J had earlier held in Ancher, Mortlock, Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd 2 [1971] NSWLR 278 at 286 that an argumentative process between experts enables the Court to proceed more readily and thus appreciate the relevant issue for decision. It can also illuminate the application of a specialised usage of words in the context.


case_title: Westfield Management Limited v Perpetual Trustee Company Limited [2007] HCA Trans 367


case_text: A decision-maker must give proper, genuine and realistic consideration to the merits of the case: Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457 ; (1987) 14 ALD 291 at 292 per Gummow J; Zhang v Canterbury City Council (2001) 51 NSWLR 589 at 601 [62] where Spigelman CJ collected the authorities; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at 367 [138] per Kirby J; NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at 92-93 [212] per Madgwick J, 96 [229] per Conti J; SZEJF v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 724 at [39] , [60] where I applied this principle. In Tickner v Chapman (1995) 57 FCR 451 at 462C-D, Black CJ said that where a decision-maker was required to consider material, the process of consideration "... involves an active intellectual process" directed at the nominated subject-matter: see too per Burchett J at 476F-477E, per Kiefel J at 495F-G and Tobacco Institute of Australia v National Health & Medical Research Council (1996) 71 FCR 265 at 277G per Finn J; Australian Retailers Association 148 FCR at 577 [526] per Weinberg J.


case_outcome: discussed

case_text: see no error on the part of the Federal Magistrate. The High Court's decision in Minister for Immigration and Citizenship v SZKTI These reasons were written prior to the decision of the High Court, handed down this morning, to allow the appeal in SZKTI ( Minister for Immigration and Citizenship v SZKTI [2009] HCA 30). The High Court there accepted (at [28]) the Minister's submissions (at [27] [28]) that s 424(2) does not operate to limit the general facultative power given by s 424(1) in aid of the inquisitorial functions of the Tribunal. The limitation on that general power is that the Tribunal ' must have regard ' to that information in making its decision (at [37]). Procedural fairness is assured by, inter alia , the requirements of s 424A. The High Court concluded (at [48]) that the procedural restrictions on the specific power to issue an invitation to give additional information do not qualify the Tribunal's general power in s 424(1) to ' get any information that it considers relevant '. It follows that the method adopted by the Tribunal to obtain the information did not give rise to jurisdictional error. It follows that the appellant has not demonstrated jurisdictional error on the part of the Tribunal or error in the decision of the Federal Magistrate. He has not made out the grounds of appeal in his notice of appeal.


case_text: appellant contends that this country information received from the High Commission was not valid and was not independent information. This, he says, was because the people who collected the information are controlled by ' the Minister ' or ' the Minister's officials '. There is no evidence to support this assertion and I reject it. I note that the Tribunal was not obliged to comply with s 424A in respect of this report from the High Commission as it was information in the nature of country information that comes within s 424A(3)(a) ( Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 ; (2004) 140 FCR 572).


case_text: for the status of the report, as information that the Tribunal was entitled to take into account, I note that s 424(1) provides that the Tribunal may get any information that it considers relevant, so long as it complies with the Act, which includes procedures considered sufficient to afford natural justice with respect to that information. That information does not, as the appellant contends, have to be verified or supported by an international authority. In accordance with s 424(1) , the Tribunal did have regard to the information in making its decision and was entitled to do so. There is no suggestion that the Tribunal was acting at the dictate of the High Commission and, despite the appellant's assertions, no evidence that the Tribunal or the High Commission were acting at the dictate of any person in Bangladesh ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253 ; (1994) 52 FCR 437 at 452). No other procedural unfairness is identified by the appellant. Otherwise, this aspect of the appellant's case seems to concern the fact-finding by the Tribunal. Other issues The Tribunal did not accept the situation described by the appellant as to the political situation in Bangladesh. The Tribunal accepted that politics in that country has always been accompanied by violence but found that the violence against political opponents has been largely random and lacked the systematic and purposive elements necessary to be called persecution, especially when involving minor figures such as the appellant.


case_text: 424(2) of the Act (as then in force) applies to a situation where the Tribunal invites a person to give additional information. It does not apply to additional information that may have been given by a person to the person invited by the Tribunal to provide information. In my view, s 424(2) and s 424(3) do not apply to an invitation from the Tribunal to an Australian Embassy or High Commission overseas to give additional information to the Tribunal. Although SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407 does not directly deal with this circumstance, such a conclusion is not inconsistent with the reasoning in that case and is consistent with SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141. It does not involve the "vice" that was a consideration in SZKTI v Minister for Immigration and Citizenship [2008] FCAFC 83 ; (2008) 168 FCR 256 , which concerned an unexpected invitation to a third party.


case_title: SZLPO v Minister for Immigration and Citizenship [2009] FCAFC 51 ; (2009) 255 ALR 407


case_title: SZMBS v Minister for Immigration and Citizenship (2009) 176 FCR 141


case_text: to s 91R of the Act, the Federal Magistrate observed that whether particular conduct amounts to persecution under s 91R is a matter of fact and degree for the Tribunal to determine in its fact-finding role ( VTAO v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 927 ; (2004) 81 ALD 332 at [67] ) and found no jurisdictional error. Accordingly, her Honour rejected the second ground in the application for review, that the Tribunal erred in its application of s 91R by failing to consider whether the appellant might suffer persecution as a result of false charges he claimed were filed against him. The grounds of appeal raised by the appellant are: The learned Magistrate erred by not holding that the Tribunal made jurisdictional error as it was not open for the Tribunal to make a finding that "Some of the statement made at hearing regarding the fate of party colleagues have been shown to be incorrect. His errors have been drawn to this attention on the Tribunal's letters but he has not addressed them in his replies" And the conclusion was made from this observation is quietly irrelevant with the observations. The Tribunal did not make comments on the applicant's reply. The learned Magistrate erred by not holding that the Tribunal made jurisdictional error that the Tribunal did not take into account the fear for harm in the future of the applicant for his political opinion. The Tribunal did not put any supporting evidence about its comment on false cases against the applicant because the false cases are investigated improperly and unfairly people are involved to persecute by the Government Agency. The applicant did not know that how the Australian High Commission in Dhaka made an investigation and made a report against the applicant. The investigation was not done properly. In summary, they seem to raise the following bases of appeal: The Minister says that these grounds do not relate to the grounds pleaded before the Federal Magistrate. The Minister submits that leave is required to rely on those grounds and opposes leave being granted, as there is no explanation why those grounds were not raised before the Federal Magistrate and as they are unmeritorious. Consideration of the grounds in the notice of appeal Ground one


case_text: CJ noted that there is authority for the proposition that an application for security for costs against a company in liquidation is not a "proceeding" for which leave of the court is required: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446; and BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339. However, his Honour observed that an application for security for costs can readily be distinguished from the continuation of a proceeding within the meaning of s 471B and therefore, I interpolate, s 500(2) as well. Ipp AJA agreed with Spigelman CJ that BPM was readily distinguishable. In his Honour's view an appeal was a "proceeding" within s 471B whereas an application for security for costs was not. In addition, the application for security for costs in BPM was regarded as a "defensive proceeding" and it was "open to argument" that the appeal in Skinner could not be so categorised. Powell JA, the third member of the Court of Appeal, though he did not express a concluded view upon the matter, was inclined to think leave to proceed was not required in the context of an appeal. He added that unless convinced that BPM was plainly wrong, which he was not, the object of uniformity in interpreting national legislation would suggest that the Court of Appeal should follow the interpretation of s 471B by the Full Court of the Supreme Court of Western Australia in BPM . By implication, he regarded BPM as supporting the conclusion that, in the case of an appeal, leave to proceed was not required.


case_text: is a vexed question whether leave is required to proceed against a company in liquidation in the context of an appeal. In Humber & Co v John Griffiths Cycle Company (1901) 85 LT 141, Lord Davey, the only member of the House of Lords to address the point, held that where a company was being wound up under the direction of the court, an appeal in which the company was a respondent, brought in an action in which the company was originally the plaintiff, was not a "proceeding against the company" within s 87 of the Companies Act 1862 (UK). Accordingly, leave to proceed was not required. However, in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal.


case_title: King v Yurisich [2006] FCAFC 136

case_text: 4 September 2006 the Full Court delivered judgment in this matter: King v Yurisich [2006] FCAFC 136. The appeal succeeded, and it was ordered that the appellants bring in short minutes of order reflecting the Full Court's reasons for judgment. On 20 September 2006 the Full Court ordered that the appeal be allowed and that there be judgment in favour of the appellants against Lane Moller Partners Pty Limited trading as Lane Moller Partners and against Robert Young, the third and fourth respondents to the appeal respectively, in the sum of $200,135, together with interest in the sum of $121,876.31. The parties were given further time to file submissions relating to costs. On 5 October 2006 liquidators were appointed to Lane Moller Partners Pty Limited on a creditors' voluntary winding up. The appellants, by notice of motion, seek leave to proceed against the third respondent, now described as Lane Moller Partners Pty Limited, trading as Lane Moller Partners (in liquidation), pursuant to s 500(2) of the Corporations Act 2001 (Cth).


case_text: CJ noted that there is authority for the proposition that an application for security for costs against a company in liquidation is not a "proceeding" for which leave of the court is required: Pasdale Pty Ltd v Concrete Constructions (1995) 59 FCR 446; and BPM Pty Ltd v HPM Pty Ltd (1996) 131 FLR 339. However, his Honour observed that an application for security for costs can readily be distinguished from the continuation of a proceeding within the meaning of s 471B and therefore, I interpolate, s 500(2) as well.


case_title: Re Aro Co Ltd [1980] Ch 196

case_text: 471B and 500 are silent as to the principles under which leave to proceed will be granted. In McPherson's Law of Company Liquidation (2006, 5 th ed), it is said (at [7.970]) that the courts have an absolute discretion in deciding whether or not they will grant leave to proceed: Re Aro Co Ltd [1980] Ch 196. It is also said that there is a presumption in favour of leaving those with claims against companies in liquidation to the ordinary proof of debt procedure which is, generally speaking, a cheaper and more efficient way of resolving their claims: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314. The reason given is that the liquidator's attention and resources should not be diverted into expending substantial funds on defending proceedings by those with claims against the company when there is a simpler procedure available, namely calling for and adjudicating upon creditors' proofs of debt, with a right of appeal under s 1321: Re Gordon Grant and Grant .


case_text: 471B and 500 are silent as to the principles under which leave to proceed will be granted. In McPherson's Law of Company Liquidation (2006, 5 th ed), it is said (at [7.970]) that the courts have an absolute discretion in deciding whether or not they will grant leave to proceed: Re Aro Co Ltd [1980] Ch 196. It is also said that there is a presumption in favour of leaving those with claims against companies in liquidation to the ordinary proof of debt procedure which is, generally speaking, a cheaper and more efficient way of resolving their claims: Re Gordon Grant and Grant Pty Ltd [1983] 2 Qd R 314. The reason given is that the liquidator's attention and resources should not be diverted into expending substantial funds on defending proceedings by those with claims against the company when there is a simpler procedure available, namely calling for and adjudicating upon creditors' proofs of debt, with a right of appeal under s 1321: Re Gordon Grant and Grant . Other factors said to be important in determining whether leave to proceed should be granted are the amount and seriousness of the claim, the degree of complexity of the legal and factual issues involved, and the stage to which the proceedings, if already commenced, may have progressed: Re Gordon Grant and Grant Pty Ltd at 317 (per McPherson J, with whom WB Campbell CJ and Sheahan J agreed). Plainly, this proceeding has now progressed to a very advanced stage. It is all but complete. I accept Mr Cawthorn's submission that it would now be inappropriate to require the proceeding to be the subject of a proof of debt in the winding up. Although there is a judgment debt in favour of the appellants, there remains outstanding an issue as to costs which the liquidators cannot resolve. In addition, it is unlikely that the liquidators will be distracted or diverted from their task by allowing this matter to proceed to finality before the Full Court, rather than having it stayed because the company is now in liquidation. It follows that, if leave to proceed against Lane Moller Partners is in fact required (a matter upon which I express no concluded view), such leave is granted. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg. Associate: Dated: 19 October 2006 Counsel for the Appellants: Mr P Cawthorn Solicitor for the Appellants: McCabe Terrill No appearance for the Respondents. Date of Hearing: 19 October 2006 Date of Judgment: 19 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1369.html


case_text: in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal.


case_text: in Skinner v Jeogla Pty Ltd (2001) 37 ACSR 106, which arose out of an application to the court for leave to proceed against a company in liquidation brought under s 471B of the Corporations Law , the New South Wales Court of Appeal doubted the correctness of Humber . It noted that the language of s 471B differed significantly from that of the provision under consideration in Humber . Spigelman CJ observed (at [16]) that Lord Davey's reasoning was "redolent of the language of waiver". He concluded that there were two points of distinction between Humber and the case before the Court of Appeal. The more important of these was that in 1901, when Humber was decided, the position was that leave to proceed against a company in liquidation had to be obtained from the court that had made the winding up order, and not the appellate court. The practice under the 1862 Act was said to have been set out by Jessell MR in Re International Pulp and Paper Co (1876) 3 Ch D 594. Given the jurisdictional limits upon the statutory power that then existed, Spigelman CJ considered it hardly surprising that the word "proceedings" would be read down so as not to encompass an appeal. Ipp AJA agreed with Spigelman CJ that BPM was readily distinguishable. In his Honour's view an appeal was a "proceeding" within s 471B whereas an application for security for costs was not. In addition, the application for security for costs in BPM was regarded as a "defensive proceeding" and it was "open to argument" that the appeal in Skinner could not be so categorised. Ultimately, in Skinner , the Court of Appeal did not find it necessary to determine whether, in the context of an appeal, leave to proceed was required. That was because the appellant in that case was prepared to proceed upon the assumption that such leave was necessary. In the event, leave was refused. In the present case, Mr Cawthorn, who appeared on behalf of the appellants, submitted that if leave to proceed were required, it should be granted.


case_text: The defendants submit that "if a measure of value is the amount that a person is willing to pay for something, then the offer documents themselves are key components in assessing the value of the Cambridge debentures". I do not accept that the amount one offeror is willing to pay for a debenture is, by itself, a proper measure of the value of that debenture. Rather, the value of a debenture would be its exchange value or the price that it would bring when exposed to competition. (I put to one side the situation, that sometimes arises, where it is necessary to value an item that is not marketable). The cases say that value is to be determined by reference to the amount that an hypothetical ordinary purchaser who is willing but not anxious to buy would be prepared to pay for the debenture, and an hypothetical ordinary seller who is also willing but not anxious to sell would be prepared to accept for it, assuming both parties were fully informed and had regard to all the circumstances which might affect value: see Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418, 432 and 440-441; Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494, 514; Holt v Cox (1994) 15 ACSR 313, 333-334; Gregory v Federal Commissioner of Taxation [1971] HCA 2 ; (1971) 123 CLR 547. Where there is a regular market for a product, the market price should reflect the exchange value of a product. Where, as here, there is no regular market for a product, it is necessary to estimate the (exchange) value.


case_title: Holt v Cox (1994) 15 ACSR 313


case_title: Marks v GIO Australia Holdings Ltd [1998] HCA 69 ; (1998) 196 CLR 494


case_title: Spencer v Commonwealth [1907] HCA 70 ; (1907) 5 CLR 418


case_text: I am satisfied that his conduct has been wilful and contumacious in the sense described in Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46 ; (1986) 161 CLR 98. In those circumstances, I am satisfied that the contempt to which he has pleaded guilty was deliberately wilful and contumacious rather than casual, accidental or unintentional. 60 In those circumstances, the only matter left is to determine the appropriate penalty for such a contempt. The District Registrar's counsel took me to the authorities which set out the penalties which may be imposed. 61 This Court has the same power to punish contempts as is possessed by the High Court of Australia in respect of contempts of that Court: s 31 of the Federal Court of Australia Act 1976 (Cth). The High Court of Australia, in turn, has the same power to punish contempts as was possessed in 1903 by the Supreme Court of Judicature in England: s 24 of the Judiciary Act 1903 (Cth).


case_title: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 132 ; (2003) 130 FCR 37

case_text: The Full Court noted that, because of the construction given in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 by of the majority of the Court to what is now O 8 r 3(2)(c), a finding that there was a prima facie case on one aspect of the claim against Mr Bangad has the consequence that he may be proceeded against on other bases as well. That is because it is only necessary that a prima facie case be established for any one of the causes of action relied on for the relief sought: Bray 130 FCR at [47]-[55] per Carr J, [176]-[191] per Branson J: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [45] - [46] .


case_text: I am satisfied that the allegations of fraud against Mr Bangad in the Suzlon companies' cross-claim, as well as the centrality of his role in the events on which the Suzlon companies rely to seek relief from the Headway companies' claims, make Mr Bangad a proper and necessary party to the proceedings: see News Ltd v Australian Rugby Football League Ltd [1996] FCA 1256 ; (1996) 64 FCR 410 at 523G-524F per Lockhart, von Doussa and Sackville JJ; see too Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291 at 316-317, [77] - [78] per McHugh J; Commonwealth Bank of Australia v Peto (No 2) [2006] FCA 516 ; (2006) 152 FCR 362 at 370-372 [27] , [30]-[33] per myself.


case_text: As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading.


case_title: Heilbrunn v Lightwood plc (2007)164 FCR 1


case_text: The Suzlon companies argued that the evidence before me (from the part-heard, but now resolved, motion which I dealt with on 4 November 2008, together with the additional emails provided with written submissions after the further hearing of this application on 12 November 2008) established a sufficient case for service outside the jurisdiction to satisfy the requirements of O 8 r 3(2)(b) and (c). These requirements were summarised by Finn and Weinberg JJ and myself in Ho v Akai Pty Ltd (in liq) (2006) 24 ACLC 1526 ; [2006] FCAFC 159 at [10] in the following terms: As has been observed on many occasions, the prima facie case requirement has to be met at the outset, usually on an ex parte basis, and without the advantage of discovery and other procedural aids to the making out of a case: see e.g. Merpro Montassa Ltd v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390. It "should not call for a substantial inquiry": WSGAL Pty Ltd v Trade Practices Commission (1992) 39 FCR 472 at 476; see also Sydbank Soenderjylland A/S v Bannerton Holdings Pty Ltd (1996) 68 FCR 539 at 549. For present purposes it is sufficient to say that a prima facie case for relief is made out if, on the material before the court, inferences are open which, if translated into findings of fact, would support the relief claimed: Western Australia v Vetter Trittler Pty Ltd (in liq) (1991) 30 FCR 102 at 110. Or, to put the matter more prosaically as Lee J did in Century Insurance (in provisional liquidation) v New Zealand Guardian Trust [1996] FCA 376: "What the Court must determine is whether the case made out on the material presented shows that a controversy exists between the parties that warrants the use of the Court's processes to resolve it and whether causing a proposed respondent to be involved in litigation in the Court in Australia is justified." 33 The Full Court noted that, because of the construction given in Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317 by of the majority of the Court to what is now O 8 r 3(2)(c), a finding that there was a prima facie case on one aspect of the claim against Mr Bangad has the consequence that he may be proceeded against on other bases as well. That is because it is only necessary that a prima facie case be established for any one of the causes of action relied on for the relief sought: Bray 130 FCR at [47]-[55] per Carr J, [176]-[191] per Branson J: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [45] - [46] . 44 I was satisfied that on the material before me, inferences were open which, if translated into findings of fact, would support the relief claimed on each of the bases in the claims falling within items 5, 6 and 18 described above: Ho [2006] FCAFC 159 ; (2006) 24 ACLC 1526 at [10] . 45 On the material before me, the inference was available that Mr Bangad was unable to explain to his employer, or to Mr den Hartog, the commercial justification for the impugned documents and the relationship they evidenced between the Suzlon and Headway companies. If Mr den Hartog gave evidence to the effect of the material in his emails, an inference could be drawn that he, on behalf of Beluga, had been misled into entering into the transactions for the carriage of goods to Port Kembla on the basis that he understood that the Headway companies were associated with, rather than independent and at arms length from, the Suzlon companies. That inference would be supported, in the absence of explanation, by the fact that Suzlon Infrastructure guaranteed Headway Shipping's performance of the time charter, apparently before it was even made. If the transactions were at arms length, an explanation would be needed, which is not presently before me, as to why Suzlon Infrastructure would guarantee a time charter entered into by Headway Shipping with Beluga for the time charter of the Beluga Fantastic . There was no evidence of any reward or benefit passing to Suzlon Infrastructure or any other Suzlon company for this guarantee. The inference was also open that the Headway companies would earn a profit from performing the time charter and carrying the Suzlon companies' goods. 46 It was difficult to see, in the absence of an explanation, the commercial rationale for the related company of the shipper and consignee (both Suzlon companies) guaranteeing the owners under a time charter of the vessel for its performance by the party (Headway Shipping) contracting with the shipper for the carriage of its goods to Australia.


case_title: News Ltd v Australian Rugby Football League [1996] FCA 1256 ; (1996) 64 FCR 410


case_text: I was satisfied that the Suzlon companies had asserted a maritime claim within the meaning of s 4(3)(f) of the Admiralty Act . That claim arose out of the existence of each of the contracts of affreightment, the time charter, the guarantee and the bills of lading for the MV Beluga Fantastic to carry the cargo to Port Kembla, and also out of the Suzlon companies' challenge to those transactions based on the allegations that they made against the Headway companies and Mr Bangad. The words "arising out of" and "relates to" in s 4(3)(f) are of wide import. They should not be read down: see Owners of "Shin Kobe Maru" v Empire Shipping Co Inc [1994] HCA 5 ; (1994) 181 CLR 404 at 420-421 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ. The claims made against Mr Bangad had the legal character of maritime claims within s 4(3)(f): Shin Kobe Maru 181 CLR at 426. 13 The Suzlon companies also relied on their claims against Mr Bangad being within the associated jurisdiction of the Court conferred by s 12 of the Admiralty Act as matters of Admiralty and maritime jurisdiction. That jurisdiction is "... concerned with the resolution of controversies relating to marine commerce and navigation": Shin Kobe Maru 181 CLR at 424. Contractual or business arrangements of a party to proceedings with third parties are capable of attracting the Court's Admiralty and maritime jurisdiction: Shin Kobe Maru 181 CLR at 425. I was of the opinion that, on the present materials, the claims which the Suzlon companies seek to bring against Mr Bangad were substantive rather than appearing to be remotely or tenuously related to matters of Admiralty or maritime jurisdiction pleaded by and against them: cf: The "Bass Reefer" 37 FCR at 381 per Foster J. I was satisfied that those claims raised a real controversy relating to marine commerce and navigation in which Mr Bangad occupied a central role.


case_text: Of course, one story is good until another is told: Pontifical Society for the Propogation of Faith v Scales [1962] HCA 19 ; (1962) 107 CLR 9 at 20 per Dixon CJ. There may well be explanations for this state of affairs. But, I was satisfied, prima facie, that it was appropriate to permit service on Mr Bangad in India. This was because of the present absence of any explanation of the apparently uncommercial nature of the guarantee of the time charter and Mr Bangad's apparent involvement with the Headway companies when the impugned documents and the transactions, which they evidenced, were made. The prima facie case asserted by the Suzlon companies was further strengthened by the material indicating Mr Bangad's inability to explain to his employer his purposes for his entering into the impugned transactions and his inability, when confronted by Mr den Hartog, to explain why he had told Mr den Hartog that the Suzlon and Headway companies were associated, rather than at arms length, and why Mr den Hartog's letter accepting appointment as a director of Headway Shipping had been backdated. 48 Of course, much of the material currently in evidence had been presented in circumstances of urgency and would not necessarily be admissible in its current form at a final hearing. However, I was satisfied that there was sufficient in the material before me to warrant drawing an inference that they were sufficient to support the exercise of the Court's power to permit service out of the jurisdiction on Mr Bangad. 49 I was fortified in this view because the Headway had accepted that, whatever the strengths and weaknesses of the allegations made by the Suzlon companies, they raised a tribal issue which ought be determined at a five day hearing early next year. That is not to suggest that the Headway companies have not vigorously denied the allegations, as they have. Rather, it revealed the underlying litigious reality that the Suzlon companies had raised a case to be answered against the Headway companies, which have appeared, raising their involvement in the serious claims against Mr Bangad that would, if their case were accepted, translate into findings of fact that would support the grant of the relief they claim. I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 26 November 2008 Counsel for the Second Cross-Claimants: Mr AW Street SC Solicitor for the Second Cross-Claimants: HWL Ebsworth Lawyers Dates of Hearing: 6, 12 November 2008 Date of Judgment: 26 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1770.html


case_text: As Allsop J pointed out in Heilbrunn v Lightwood plc (2007) 164 FCR 1 at 6-9 ([30]-[40]) s 4(3)(f) is to be given a wide and liberal construction in accordance with a similar view expressed by the House of Lords in The Antonis P Lemos [1985] AC 711 and Gatoil International Ltd v Arkwright-Boston Manufacturers Mutual Insurance Company [1985] AC 255. The Australian Law Reform Commission had referred to their Lordships' decisions in its Civil Admiralty Jurisdiction, Report No 33 (1986) (the ALRC report). Earlier, Foster J observed in Port of Geelong Authority v The "Bass Reefer" [1992] FCA 378 ; (1992) 37 FCR 374 at 380-382 showed the words of s 4(3)(f) are also similar to Article 1(1)(d) of the International Convention for the Unification of Certain Rules Relating to the Arrest of Seagoing Ships 1952 . In The St Elefterio [1957] P 179 at 183, Willmer J held that the English analogue to s 4(3)(f) encompassed a claim whether in contract or tort "arising out of any agreement relating to the carriage of goods in a ship" (emphasis added). In that case, he held that it gave the Court jurisdiction where a person allegedly made a fraudulent ante-dating of bills of lading. 13 The Suzlon companies also relied on their claims against Mr Bangad being within the associated jurisdiction of the Court conferred by s 12 of the Admiralty Act as matters of Admiralty and maritime jurisdiction. That jurisdiction is "... concerned with the resolution of controversies relating to marine commerce and navigation": Shin Kobe Maru 181 CLR at 424. Contractual or business arrangements of a party to proceedings with third parties are capable of attracting the Court's Admiralty and maritime jurisdiction: Shin Kobe Maru 181 CLR at 425. I was of the opinion that, on the present materials, the claims which the Suzlon companies seek to bring against Mr Bangad were substantive rather than appearing to be remotely or tenuously related to matters of Admiralty or maritime jurisdiction pleaded by and against them: cf: The "Bass Reefer" 37 FCR at 381 per Foster J. I was satisfied that those claims raised a real controversy relating to marine commerce and navigation in which Mr Bangad occupied a central role.


case_title: The Antonis P Lemos [1985] AC 711


case_title: The St Elefterio [1957] P 179


case_title: Victoria v Sutton [1998] HCA 56 ; (1998) 195 CLR 291


case_title: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1987) 147 CLR 589

case_text: Nicholls said that the evidence which would support the application for a review of the decisions, which had been impugned in the proceedings before Mansfield J was different than that which had been adduced before his Honour in the proceeding disposed of on 15 January 2009. He said he had obtained information during the currency of those proceedings and the proceedings disposed of by Mansfield J on 23 July 2009 and under the Freedom of Information Act , which would allow him to challenge those decisions on other evidential bases. In my opinion, that also is not a good reason to stay the orders of 23 July 2009 made by Mansfield J. The time for Mr Nicholls to adduce evidence in relation to the decisions in which he complained was in the proceeding brought before Mansfield J which was disposed of in his orders of 15 January 2009. It is not appropriate for the applicant to split his case or split his applications and rely upon different evidence for a review of the same decisions: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. In my opinion, the fact of the issue of the proceedings in the Federal Magistrates Court does not support the application for a stay. The application then for a stay of Mansfield J's orders of 23 July 2009 is refused. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 4 September 2009 Counsel for the Applicant Ms L Chapman Solicitor for the Applicant Australian Government Solicitor The Respondent appeared in person. Date of Hearing: 25 August 2009 Date of Judgment: 25 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1002.html


case_title: IW v Perth and Others [1997] HCA 30 ; (1997) 191 CLR 1

case_text: Having regard to the finding just referred to, the Federal Magistrate did not err in dismissing the appellant's application. However, for my part, a surer foundation for dismissing the application is found in s 5 and not s 24. The DD Act is beneficial legislation. As Dawson and Gaudron JJ observed in IW v The City of Perth and Others [1997] HCA 30 ; (1997) 191 CLR 1 at 22: In construing legislation designed to protect basic human rights and dignity, the courts "have a special responsibility to take account of and give effect to [its] purpose". For this reason, the provisions of the Act concerned with discrimination in the provision of goods or services, including s 66K(1), should be construed as widely as their terms permit.


case_text: Learned Federal Magistrate Wilson's decision and order are biased against the Applicant or Appellant. (emphasis in original) Mr Conde has sought orders including that the appeal be allowed, that the decision of the Federal Magistrate be set aside, costs on an indemnity basis and orders with respect to "disciplining of its officers". Orders sought by Mr Hunter In his notice of motion currently before me, Mr Hunter has sought the following orders: That the Appellant's Notice of Appeal filed 3 August 2009 be struck out forthwith as an abuse of process and as an appeal which has, on its face, no prospects of success. The Appellant pleads no valid ground of appeal, and each of the Grounds of Appeal 1 to 14 ought to be summarily struck out. The several allegations of unlawful and unprofessional conduct by Anthony James Macklin are vexatious, oppressive and an abuse of process, are wrong, have no proper or pleaded basis in law or fact, and Grounds 8 and 9 ought to be struck out on this basis as well. There is no basis for the allegation of bias pleaded in Ground of Appeal 14; the allegation is wrong in law and fact, is vexatious and oppressive, and is an abuse of process and ought to be struck out on that basis. An order, if necessary and required, that the time and date for the Directions Hearing set out in respect of the Appellant's Notice of Appeal be abridged, and that the date of Tuesday 22 September 2009 be vacated and a time and date for a Directions Hearing be allocated at an earlier time on the grounds of urgency, and on the further grounds that the Notice of Appeal is filed for the purposes of delay only, and is an abuse of process. An order that the Respondent, JOHN LAWRENCE HUNTER be at liberty to file and serve a Creditor's Petition forthwith upon MILTON ARNOLDO CONDE as Judgment Creditor, and further that the hearing and determination of the Creditor's Petition be heard and determined with, after or at the same time as, this Notice of Motion is heard and determined. An order that the Appellant pay the Respondent's costs of and incidental to the appeal on the full indemnity basis, and that such costs be fixed at the hearing of this Notice of Motion. An order that the Appellant be restrained and prevented from instituting any appeal against the dismissal of his appeal in these proceedings without first applying for and obtaining leave of this Honourable Court to bring such an appeal. Such further or other adjournments, enquiries, directions and other orders as to this Honourable Court seem appropriate. Issue 1 what is the nature of the Court's jurisdiction to strike out a notice of appeal pursuant to section 25(2B)(aa) of the Federal Court Act Section 25(2B)(aa) provides that a single judge or the Full Court may give summary judgment in an appellate matter. That a single judge may give judgment summarily dismissing an appeal from a decision of the Court is clear from decisions applying the section: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118. A question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.


case_text: this context a "final order" is an order which "finally disposes of the rights of the parties": Bozson v Altrincham Urban District Council [1903] 1 KB 547 at 548-549, Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423 per Taylor J at 439-440 (Owen J concurring), Windeyer J at 443-444; Licul v Corney [1976] HCA 6 ; (1976) 50 ALJR 439 at 444; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20 ; (1981) 147 CLR 246 at 253-254. It is clear however that an order may in one sense be interlocutory but in another sense final: re Black ex parte Jeffery (1932) 4 ABC 157 at 161. There is long-standing authority that a costs order made at an interlocutory stage during proceedings is nonetheless a final order for the purposes of the Bankruptcy Act : re Black ex parte Jeffery (1932) 4 ABC 157 , re McAlister ex parte McAlister (1936) 8 ABC 283 , Kayo Contractors v Fernandez (1984) 71 FLR 34 and Re Gibbs; Ex parte Triscott (1995) 65 FCR 80. This will be the case only if a certificate of taxation has been issued: Stec v Orfanos [1999] FCA 457 at [18] , Franks v Warringah Council, in the matter of Franks [2003] FCA 1047.


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


case_text: usual rule is that costs follow the event; accordingly the appropriate order is that Mr Conde bear Mr Hunter's costs in respect of this notice of motion. Mr Hunter has sought an order that the costs be awarded on an indemnity basis, however I am not prepared to make an order to that effect. The purpose of an order for costs is to indemnify or compensate the person in whose favour it is made, not to punish the person against whom it is made: Latoudis v Casey [1990] HCA 59 ; (1990) 170 CLR 534. A well-known summary of the principles relevant to the exercise of judicial discretion to award indemnity costs can be found in Colgate-Palmolive v Cussons [1993] FCA 536 ; (1993) 46 FCR 225 at 231-234 and InterTAN Inc v DSE (Holdings) Pty Ltd [2005] FCAFC 54 at [11] . Circumstances in which an award of indemnity costs may be warranted include commencement of proceedings where the litigant properly advised should have known there was no chance of success, allegations of fraud by the litigant knowing them to be false, evidence of particular misconduct in the litigant, and where the justice of the case justifies such an order. In this case, while I have found that Mr Conde's grounds of appeal have no arguable basis, it does not automatically follow that he should be liable to Mr Hunter for indemnity costs. The fact that a number of his claims required some consideration, and the absence of any apparent delinquency or extraneous or improper purpose in Mr Conde, in my view warrant an order for party-party costs only.


case_title: Conde v Hunter [2009] FMCA 751

case_text: Conde commenced proceedings in the Federal Magistrates Court to have the bankruptcy notice set aside and interim orders granting an extension of time for him to comply with the bankruptcy notice. The matter came before Wilson FM, who dismissed the application to set aside the bankruptcy notice ( Conde v Hunter [2009] FMCA 751). In his reasons for decision, his Honour found in summary as follows: Mr Conde made no attack on the form of the bankruptcy notice itself. Although Mr Conde contended that Mr Hunter did not have a final judgment or final order (the execution of which had not been stayed in terms of s 40(1)(g) of the Bankruptcy Act 1966 (Cth) (" Bankruptcy Act ")) the argument was misconceived. His Honour continued: A final order is one that disposes finally of an issue between the parties. The concept of what is a final order is discussed in cases such as Hall v Nominal Defendant [1966] HCA 36 ; (1966) 117 CLR 423. In this case, the issue was who should pay the costs of the application to set aside the applicant's pleading. The order made by Judge Searles was a final order, insofar as it concerned that issue. His Honour ordered that the applicant pay the respondent's costs. There is no merit in the first ground sought to be advanced by the applicant. (at [3]) Notwithstanding Mr Conde's prospective challenge to Orders 3 and 4 of Searles DCJ, it was clear on the material before his Honour that: because the order sought to be challenged on appeal was only as to costs, leave to appeal was required by the Court of Appeal; the application for leave to appeal was filed many months out of time and therefore required an order from the Court of Appeal granting an extension of time. The Federal Magistrate noted that no contest had been made against the Orders 1 and 2 made by Searles DCJ, namely to strike out Mr Conde's amended statement of claim and give leave to Mr Conde to replead in that Court. The Federal Magistrate considered that, in those circumstances and having read Mr Conde's application to the Court of Appeal and supporting affidavit, that application to the Court of Appeal has no prospects of success. It followed that no good reason was shown for either setting aside the bankruptcy notice or extending time for compliance with it to await the outcome in the Queensland Court of Appeal. Accordingly the Federal Magistrate dismissed the application to set aside the bankruptcy notice. Appeal from decision of the Federal Magistrate While failure of a Court to consider an issue before it and supporting submissions may constitute a miscarriage of justice ( QBE Insurance Ltd v Switzerland Insurance Workers Compensation (NSW) Ltd [1996] HCA 1 ; (1996) 134 ALR 433) I can draw no inference that his Honour had regard only to the submissions filed by Mr Hunter and ignored either the substance of Mr Conde's case or the provisions of the Bankruptcy Act and rules. It is clear from reviewing the decision of the Federal Magistrate ( Conde v Hunter [2009] FMCA 751) that his Honour:


case_text: application for leave to appeal from the order to which a bankruptcy notice relates can constitute "proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued" for the purposes of s 41(6A) and (6C) ( Jenkins v National Australia Bank Ltd [1999] FCA 1758 , Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201 at [20] ). However the exercise of the Court's power under s 41(6A) to extend time for compliance with the bankruptcy notice is discretionary: Conway v Jackson [2001] FCA 230 ; (2001) 107 FCR 201. In this case the Federal Magistrate refused to grant an order extending time to Mr Conde to comply with the bankruptcy notice. This is because, after consideration of the nature of the prospective application to the Court of Appeal of Queensland, the Federal Magistrate was satisfied that Mr Conde had no prospects of success in relation to either his application for an extension of time to apply for leave to appeal from the orders of Searles DCJ, or the actual application for leave to appeal. As is well known from the decision of the High Court in House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504 in respect of appeals against the exercise of judicial discretion: It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is reasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred. (at 504-505)


case_title: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995


case_text: question arises whether, in considering s 25(2B)(aa), it is necessary for the Court to also have recourse to s 31A. In a number of cases the Court has exercised power pursuant to s 25(2B)(aa) and given summary judgment without reference to s 31A: Druett v Department of Families, Community Services & Indigenous Affairs [2007] FCA 995 , Zambini v Secretary, Department of Employment and Workplace Relations [2006] FCA 1773 , Dunstan v Human Rights and Equal Opportunity Commission [2007] FCA 1326 , Rana v University of Adelaide (No 2) [2008] FCA 941. However in other cases the Court has linked the power under s 25(2B)(aa) to the jurisdiction of the Court under s 31A and summarily dismissed an appeal on the basis that the appellant had no reasonable prospect of success in prosecuting its grounds of appeal: Genovese v BGC Construction Pty Ltd [2007] FCA 923 , Bishop v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1118.


case_title: Franks v Warringah Council, in the matter of Franks [2003] FCA 1047


case_title: Genovese v BGC Construction Pty Ltd [2007] FCA 923