case_text: Deputy Commissioner of Taxation v LAI Corporation Pty Ltd (Receivers and Managers Appointed) [1987] WAR 15, the Full Court of the Supreme Court of Western Australia was concerned with the application of a statutory garnishee under the Sales Tax Assessment Act (No 1) 1930 (Cth) on a taxpayer's book debts and whether a pre-existing charge over those book debts was fixed or floating. Burt CJ said (at 23): nature of the security must depend upon the terms of the instrument creating it. ... But the nature of the charge is not finally determined by what the parties call it. It depends upon the terms of the agreement. In this case it was central to the agreement that [the debtor company] should continue to carry on its business and, with the consent of the Bank which in my opinion was given, that it could in the ordinary course of its business receive its book debts and deal with the proceeds in carrying on that business. In that context I think that, notwithstanding the statement that the charge given over future book debts was "specific", it should be held that for so long as the Bank consented to [the debtor company] receiving its book debts and using the proceeds to carry on its business, the Bank's security over the book debts was a floating security. The debenture contains no assignment of the book debts. Had it done so, the case for holding that the charge was a fixed charge would, I think, be considerably stronger.'


case_outcome: cited

case_text: Boambee Bay Pty Ltd (In liq) v Equus Financial Services Ltd (1991) 6 ACSR 532, the Court of Appeal of New South Wales considered a charge over a company's 'right, title and interest in any property either held by [the company] at the date hereof or acquired by [the company] during the term of this Agreement'. Mahoney JA said, at 537, that the fact that the charge attached not merely to property then held by the company but also to property acquired by it during the term of the agreement did not lead to the conclusion that the clause did not impose an immediate charge upon property then held. Despite that he held that the charge created was a floating charge. This was on the basis that the nature of the business of the company was such that if the charge was an immediate and fixed charge on all assets, the carrying on of its business would be difficult if not impossible.


case_text: Hanson Construction Materials v Vimwise Civil Engineering [2005] NSWSC 880 , Campbell J said (at [22]): 'The fundamental exercise which the Court is engaged in in deciding whether a charge is a fixed charge or a floating charge is a matter of the ascertainment of the intention of the parties. That intention can be ascertained both from the words which they used, and from surrounding circumstances known to both parties. In substance, what Mahoney JA decided in Boambee Bay Pty Ltd v Equus Financial Services Ltd ... was that, even though the words creating the charge were ones which were well able to refer to a fixed charge, so far as concerned property already owned by the chargor at the date of the grant, the surrounding circumstances were such that that could not have been what the parties intended.' It is noteworthy that most of the cases concerning the characterisation of company charges are concerned with their effects upon book debts. The drafter of the ING Charge was plainly alert to the difficulties which that class of property could create in characterisation of the charge. In cl 4.1 of the ING Charge, paragraph (a)(xiii) subjects 'Charged Debt' to the fixed charge. The term 'Charged Debt' is defined in cl 1.1 of the ING Charge as: actual or contingent debt or other monetary obligation from time to time forming part of the Secured Property.' There is however a specific provision in cl 4.2 for the collection of Charged Debts. The lender is required to permit the chargor to collect the Charged Debts. This is a matter of some significance as indicative of an intention to provide specifically for that class of Westpoint Corporation's property which it necessarily had to be able to deal with on an ongoing basis. Clause 8 of the ING Charge prohibited Westpoint Corporation from transferring, leasing or otherwise disposing of or dealing with any part of the Secured Property for the time being subject to the fixed charge or to allow any person to acquire any interest, except a Permitted Encumbrance in any such secured property. The prohibition was subject to the qualification in cl 8.1(b) that: chargor, subject to clause 8.1(c) may in the ordinary course of its ordinary trading business dispose of any estate or interest in that part of the secured property which is for the time being subject to the floating charge.' The prohibition so far as it is applicable to the Option would prevent it from being transferred or otherwise disposed of or dealt with. It would not prevent its exercise. Such is not a dealing in the Option. It is the exercise of the rights conferred by it. So with land which is the subject of the charge, the development of the land itself would not be prohibited under cl 8. Its sale or further encumbering is a different matter. It follows, in my opinion, that the creation of a fixed charge over the Option was not inconsistent with the ordinary course of Westpoint's business. I do not accept Mr Carey's description that the procedure of finding a special purpose vehicle for land development in particular cases negatives that construction. That was not a necessary aspect of the conduct of its business. In order to raise very substantial funds late in 2005 when it faced a considerable need for refinancing, Westpoint Corporation chose to grant a fixed charge in terms which were distributed over specified classes of assets. An option to purchase land fell within those classes. The express provision in the charge for Charged Debts indicates an alertness on the part of the drafter to the difficulties associated with creating fixed charges over book debts. It indicates an intention, by way of contrast, that the charge in respect of interests in land was to be fixed. To the extent that external circumstances might have any bearing on the nature of the Option property and whether it falls within the class attracting a fixed charge, it is notable that there was an offer for $1 million to acquire the Option. The Option was assigned to Bowesco for $100. The Option is a valuable property. I do not accept that the parties to the ING Charge are to be taken as having contemplated that property in that class could be disposed of for what appears to have been a mere bagatelle 'in the course of business' within the Westpoint Property Group.


case_text: These observations were approved by Cooper J (with whom Sheppard and Neaves JJ agreed) in Cummings v Lewis (1993) 41 FCR 559 at 602-603. See also Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [54] and Black and Decker Inc v GMCA Pty Ltd (No 3) [2008] FCA 932.


case_text: I gave judgment for Darrell Lea: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 4) [2006] FCA 446 ; (2006) 229 ALR 136. The Full Court upheld Cadbury's appeal, holding that I had wrongly excluded the evidence of the Cadbury experts but otherwise rejecting Cadbury's substantive grounds of appeal: Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd [2007] FCAFC 70 ; (2007) 159 FCR 397. The orders I made, including costs orders, were set aside and the matter was remitted to me for further hearing so that the evidence of the Cadbury experts could be received. 14 Further, while the first trial had been conducted on the mutual assumption that there was no relevant difference between the passing off and Trade Practices Act claims, the Full Court pointed out that this was not necessarily so and that, in particular, in the Trade Practices claims Cadbury did not have to establish an exclusive reputation in relation to the colour purple: [2007] FCAFC 70 ; 159 FCR 397 at [96] - [99] . 15 The conclusion is that, broadly speaking, while there was a certain amount of overlapping, the submissions at the first trial were not wasted. The submissions at the second trial understandably concentrated on the evidence of the Cadbury experts. 16 Moreover, virtually all the final submissions by Darrell Lea at the first trial were directed to arguments in effect upheld by the Full Court and, indeed, to a large extent ultimately not challenged by Cadbury (since the evidence of the Cadbury experts had already been excluded, it was not the subject of any discussion in those submissions). It would seem unreasonable to deprive the ultimately successful party of the costs of arguments which have been found to be correct. 18 This matter is discussed by the Full Court: [2007] FCAFC 70 ; 159 FCR 397 at [115] - [127] . Because there had been substantial default by Cadbury in complying with consent directions for the filing of affidavits I directed that Cadbury pay, on an indemnity basis, Darrell Lea's costs of preparing to meet such evidence. 19 Their Honours held that because there had been no explanation of the failure to apply for an extension of time to vary the timetable, there was no error of principle in my ordering indemnity costs for Darrell Lea's preparation related to Cadbury affidavits rejected on the grounds of lateness: [2007] FCAFC 70 ; 159 FCR 397 at [125] - [126] . However, their Honours considered there was an error insofar as that order extended to Darrell Lea's costs in respect of its expert Mr John Hall. His evidence, which was in the same field as that of the Cadbury experts, would have been relied on by Darrell Lea had I not rejected the evidence of the Cadbury experts on grounds unrelated to lateness (although their affidavits were a few days late).


case_text: Also, the real contest between the parties had been substantially narrowed by the intervening decision of the Full Court. As already noted, the Full Court had rejected Cadbury's appeal grounds other than those connected with the Cadbury experts and a costs issue. Some of those grounds were abandoned and others "pressed only formally at the hearing of the appeal": Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 3) [2007] FCAFC 119 at [8] . The Full Court ordered that Cadbury pay Darrell Lea's costs of and associated with grounds 1 to 14 (inclusive), 17 and 18 of the amended notice of appeal.


case_text: At the second trial, Darrell Lea decided not call Mr Hall. Nevertheless, costs in relation to the preparation of his evidence should be allowed to Darrell Lea: Clark, Tait & Co v Federal Commissioner of Taxation [1931] HCA 26 ; (1931) 47 CLR 142 at 146. But, consistently with the Full Court's ruling, those costs should not be on an indemnity basis, as Darrell Lea now concedes. 21 As to the issue of other costs in relation to the late filed evidence, I remain of the view, having once again considered the matter, that Cadbury's conduct as discussed in the Full Court's reasons warrants an order for indemnity costs. 22 The net result that is that there should be the same order for indemnity costs as made at the first trial, except in relation to the evidence of Mr Hall.


case_title: Cummings v Lewis (1993) 41 FCR 559


case_title: Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602


case_text: The relevant principles were summarised by Toohey J when a judge of the Federal Court in Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48,136: The discretion must of course be exercised judicially. There are decisions, both of Australian and English courts, that throw light on the way in which the discretion is to be exercised. I shall not refer to those decisions in any detail; I shall simply set out in a summary way what I understand to be their effect. 1. Ordinarily, costs follow the event and a successful litigant receives his costs in the absence of special circumstances justifying some other order. Ritter v Godfrey [1920] 2 KB 47. 2. Where a litigant has succeeded only upon a portion of his claim, the circumstances may make it reasonable that he bear the expense of litigating that portion upon which he has failed. Forster v Farquhar [1893] 1 QB 564. 3. A successful party who has failed on certain issues may not only be deprived of the costs of those issues but may be ordered as well to pay the other party's costs of them. In this sense, "issue" does not mean a precise issue in the technical pleading sense but any disputed question of fact or of law. Cretazzo v Lombardi (1975) 13 SASR 4 at 12. There is no difficulty in stating the principles; their application to the facts of a particular case is not always easy. Also it is necessary to keep in mind the caveat by Jacobs J in Cretazzo v Lombardi at 16. His Honour sounded what he described as "a note of cautious disapproval" of applications to apportion costs according to the success or failure of one party or the other on the various issues of fact or law which arise in the course of a trial. His Honour commented: But trials occur daily in which the party, who in the end is wholly or substantially successful, nevertheless fails along the way on particular issues of fact or law. The ultimate ends of justice may not be served if a party is dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. There are, of course, many factors affecting the exercise of the discretion as to costs in each case, including in particular, the severability of the issues, and no two cases are alike. I wish merely to lend no encouragement to any suggestion that a party against whom the judgment goes ought nevertheless to anticipate a favourable exercise of the judicial discretion as to costs in respect of issues upon which he may have succeeded, based merely on his success in those particular issues.


case_outcome: discussed

case_text: The respondents submit that neither s 72 of the Fair Trading Act nor s 87 of the Trade Practices Act permits such orders. I do not accept this submission. Unlike s 82 of the Trade Practices Act these sections specifically anticipate the situation where loss or damage is likely rather than specifically determined at the time the order is made. An example of the flexibility of sections in granting relief can be seen in Australian Competition and Consumer Commission v Global Prepaid Communications Pty Ltd (in liquidation) (No 2) (2006) ATPR |P42-104, where, pursuant to s 87 , Gyles J made orders having the effect of indemnifying a company from claims made by other persons; see [3]. The orders sought by the applicant have the advantage of avoiding further expense in what has undoubtedly already been a very expensive proceeding especially in relation to the amount in dispute between the parties. They allow for the applicant to be compensated only if he actually suffers a loss and, if he does not, for him to have no more than his fair share of the partnership profits. It seems to me that the orders do justice to the parties in a practical and cost-effective way. 14 The respondents object to proposed order 12, by which the applicant seeks to have the cross claim dismissed. They say that this order is inappropriate because the cross-claim, for all intents and purposes was successful. In fact, except in so far as it was premised on the agreement between the parties being a purchase of shares in the first respondent, there was never any real dispute between the parties as to what was being sought under the cross claim; see the earlier judgment at [165] [166]. The applicant has never disputed that the $50,000 that he was paid should be accounted for in the winding up of the partnership. The respondents did not succeed in their claim concerning an agreement to purchase shares. As this was the only issue in dispute in the cross claim it is appropriate that it be dismissed. The cross claim was not the subject of significant separate argument at the hearing and it should have no impact on the ultimate assessment of costs. 15 Relying on a letter of 31 July 2006, from his solicitor to the respondents' solicitor offering to settle the proceedings, the applicant seeks costs on a party/party basis until 31 July 2006 and thereafter on an indemnity basis. The letter, which was without prejudice except as to costs, offered to settle the matter "conditional upon mutual releases and the surrender of our client's interest in the business ... and the withdrawal of the caveat over the Narrabeen property" on payment by the respondents to the applicant of (a) the sum of $180,000 (without interest); and (b) the cost of the proceedings on a party/party basis to the date of the offer. The letter concluded with a reference to the applicant's intention to tender the letter on the question of costs "which we will seek on an indemnity basis from the date of this offer" and to the " Calderbank principles on which this offer is made".


case_outcome: applied

case_text: A major issue in contention is the proposed orders for distribution of the partnership assets and compensation for the applicant. The applicant does not seek, nor in my view would he be entitled to, rescission of the partnership contract. This does not preclude him from obtaining orders under s 87 of the Trade Practices Act 1974 (Cth) or s 72 of the Fair Trading Act 1987 (NSW) to compensate him for loss or damage ; Byers v Dorotea Pty Ltd (1986) 69 ALR 715.


case_text: The amount to which I have found the applicant to be entitled is significantly more than the sum mentioned in the letter of 31 July and is sufficient to raise the Calderbank principles as a live issue. It does not follow, however, that the applicant is automatically entitled to the indemnity costs it seeks. As Goldberg J pointed out in Dr Martens Australia Pty Ltd v Figgins Holdings Pty Ltd (No 2) [2000] FCA 602 at [17] , it is necessary to look at all the surrounding circumstances and not just at the fact that an offer has been made and rejected. The issue is whether it was reasonable in all the circumstances for the respondents to reject the offer, bearing in mind the competing principles in favour of sensible compromises of disputes and in favour of parties being able to pursue claims to which they reasonably believe they are entitled. 17 In opposing the applicant's claim for indemnity costs from the above date, the respondents relied on a letter dated 27 September 2005, also without prejudice except as to costs, sent by their solicitor to the applicant's solicitor. The letter, in which the respondents offered to settle for a total of $300,000, was one in an exchange of letters between the parties before the commencement of proceedings attempting to settle their dispute. The history of these offers is set out in the applicant's response to the letter of 27 September. It is not necessary for me to recount that history other than to say it appears that the second respondent had accepted an offer to settle for $350,000 and had failed to make the payment by the agreed date. The offer of 27 September was rejected and a counter-offer made in the applicant's solicitor's response of 28 September. 18 In my view, the offers and counter-offers made in 2005 fall into a different category from the offer made in the letter of 31 July 2006. Mr Sahade, counsel for the respondents, submitted that the fact that the offer of 27 September was made before the commencement of proceedings should not preclude the application of Calderbank principles. That may well be so, although it is not necessary for me to decide the point. In September 2005 the issues in the case had not crystallised and it is difficult to say that refusal of the offer at that stage was unreasonable. By the time of the letter of 31 July 2006 the position was quite different. This much is made clear in the opening paragraphs of the letter: We refer to the unsuccessful mediation on Thursday, 27 July conducted by the Hon Morton Rolfe QC. It is a mater [sic] of regret to our client that these proceedings have not been resolved. Given the amount of dispute we do not believe that the parties should be in a position where their differences cannot be resolved but through recourse to the court system. On 28 September 2005 we made, on behalf of our client, an offer which effectively provided for the dispute to be resolved in circumstances where our client would surrender all interest in the business for a payment by your client of $300,000 (including the $50,000 already paid to him). This offer was rejected. Two things have now occurred. First, the issues in the dispute have been defined by way of pleadings and evidence has been served. Accordingly, there can be no suggestion that all parties have not had access to sufficient material to make an informed decision about the resolution of proceedings. Secondly, our client has incurred and continues to incur significant legal costs that will escalate as the matter progresses to hearing. Against this background, we are instructed to make one final effort to resolve the proceedings. ...


case_text: It is necessary, however, that he has suffered or be likely to suffer loss or damage; I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41 ; (2002) 210 CLR 109. The applicant paid $300,000 for a 15% share in the partnership business. This indicates that, consistent with the valuation of Mr Magin, the business was valued at $2 million. Mr Philip Rennie, whose subsequent valuation both parties agreed to accept, and which I also accepted, (see the earlier judgment at [183] et seq) assessed the partnership business as being worth at most $900,000. On that basis a 15% share would be worth only $135,000. Mr Rennie's valuation did not take into account the value of the Supreme Court action referred to in [8] of the earlier judgment however I am not satisfied that any value can be attributed to that action. In accepting Mr Rennie's valuation I accepted that the applicant has suffered or is likely to suffer loss or damage. I say, "likely", because it is possible that on realisation of the partnership assets, the partnership will be shown to have made a profit. On Mr Rennie's valuation that is extremely unlikely but it is at least a theoretic possibility. This finding is sufficient to enliven the Court's power to make orders under s 87 of the Trade Practices Act 1974 (Cth) and under s 72 of the Fair Trading Act 1987 (NSW). 10 The orders sought by the applicant would provide for the assets of the partnership to be distributed in accordance with s 44 of the Partnership Act 1892 (NSW) with one exception, which relates to the distribution of the ultimate residue of the assets of the partnership referred to in s 44(b)(4) of the Partnership Act . Section 44(b)(4) provides that, after the other payments specified in s 44 have been made, the ultimate residue is to be "divided among the partners in the proportion in which profits are divisible". Central to the exception proposed by the applicant is the amount of $300,000 that the applicant paid to the second respondent for investment in the partnership. The applicant seeks to have that amount returned to him with interest (the "Applicant's Contribution Amount"). It is not in contention that, with interest calculated up to and including Thursday 27 September 2007, that amount is $357,629.25. 11 The applicant's proposal is as follows. The receiver should distribute the ultimate residue in the following order: (1) pay to the applicant his 15% of the ultimate residue (the "Applicant's Residue Amount"); (2) if the Applicant's Residue Amount is less than the Applicant's Contribution Amount, pay the difference between these two amounts to the applicant; and (3) pay the balance, if any, to the other partners. Finally, the applicant submits that the respondents should be ordered to pay to the applicant the amount, if any, by which the amount payable to the applicant by the receiver from the proceeds of the partnership is less than the Applicant's Contribution Amount.


case_title: Lewarne v Momentum Productions Pty Ltd [2007] FCA 1136

case_text: On 7 August 2007 I delivered a judgment (the 'earlier judgment') on the substantive issues in the above matter; [2007] FCA 1136. At the request of the parties I made no orders for relief or in relation to costs at that time but allowed them a reasonable time to bring in short minutes of order for the resolution of the matter in the light of my findings and reasons. The applicant has supplied short minutes of the orders for which he contends. 2 The respondents accept that some of those orders are appropriate in the light of the findings in the earlier judgment but oppose others. On 27 September 2007, the parties made oral submissions in support of their respective positions. The background to the matter is set out in sufficient detail in my earlier reasons and I do not propose to repeat it here. I propose to discuss only those orders that are in contention. The earlier judgment sufficiently explains the basis for those about which there is substantial agreement. 3 The first three orders proposed by the applicant are declarations that reflect my findings that: (a) the first respondent engaged in conduct in contravention of s 52 of the Trade Practices Act 1974 (Cth) in making certain representations to the applicant in relation to the purchase of the East Village Hotel in Darlinghurst, NSW; (b) the second respondent engaged in conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW) in making representations to the applicant in relation to the purchase of the hotel; and (c) at all material times, the applicant had a 15% share in the partnership operating the East Village Hotel business.


case_text: It is said on behalf of Mr Temple that these are proceedings for declarations of contraventions of the WR Act and the BCII Act and the imposition of pecuniary penalties. They are civil not criminal and the civil rules of evidence and procedure apply, albeit there is a need for "exactness of truth": Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 at 362-363 applied by Austen J in Australian Securities and Investments Commission v Vines (2003) 21 ACLC 159.


case_title: Australian Securities and Investments Commission v Vines Z(2003) 21 ACLC 159


case_text: It is submitted for Mr Temple that the respondents' case as pleaded simply puts him to proof. He says there is no privilege against self-incrimination or exposure to a penalty available to either the CFMEU or the CFMEUW. Having regard to the pleading, he is entitled to proceed on the basis that no respondent seeks to propound a positive defence not just that "no positive defence is currently advanced" as the respondents say in their joint submissions. Reliance is placed upon the observations of Gyles J in A & L Silvestri Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 226 ALR 247 at [17]. When the respondents suggest for the first time in their written submissions that there are "very live issues of credit [as to which] the applicant's case will succeed or fail" the applicant submits that it is hard to place much weight on such a statement in view of the absence of even a positive denial of a single fact pleaded against any respondent. 17 There is no doubt that the Court may permit the evidence-in-chief of a witness in civil proceedings to be given by that witness orally swearing to, or affirming, the truth of a statement previously made. It is immaterial whether the statement previously made was by way of a witness statement or the transcript of answers given to questions put in the course of an oral examination whether under some compulsory process or not. It follows that a witness may by way of affidavit swear to or affirm the truth of a previous statement exhibited to the affidavit or to the truth of a transcript of a previous interview so exhibited. The affidavit may be read in evidence provided that the witness is available, if required, for cross examination.


case_title: Platcher v Joseph [2004] FCAFC 68

case_text: In Platcher v Joseph [2004] FCAFC 68 , Tamberlin and Emmett JJ accepted at [101] that when an affidavit of a witness affirmed the truth and accuracy of a transcript of evidence given in an examination under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth), the transcript of that interview was "potentially admissible". Weinberg J said (at [163]): The approach of calling a witness to adopt a previous statement as true and correct is routinely followed in this Court. Indeed, that approach is expressly contemplated by s 37(3) of the Evidence Act 1995 (Cth) which allows a written statement or report to be tendered or treated as evidence in chief of its maker, pursuant to rules of court. 21 Buchanan J referred to s 37 of the Evidence Act 1995 (Cth) and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. A question arose whether the statements adopted by the witnesses were hearsay within the meaning of s 59 of the Evidence Act . His Honour held that if they were they would fall within an exception to the hearsay rule in s 63 and not be inadmissible for that reason. He referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act . I respectfully agree with his Honour's observations. His Honour rejected the objection taken to the admissibility of the statements. He also rejected a separate submission that the Court should require the evidence to be given orally in any event. He saw no reason to depart from earlier directions that the conduct of the proceedings be by affidavit. His Honour said (at [4 ]): In the circumstances, I will admit the statements in question in the sense that I will not exclude them from the evidence upon the basis which has so far been argued. However, it follows that if the statements are to be treated as part of the evidence in chief, as I think they should be, then they will be subject to objections in the ordinary way upon some other foundation if that appears to be available. Such objections will need to be dealt with as they are taken. I reject the objection so far taken in a general way to the statements in question.


case_title: Alfred v Lanscar [2007] FCA 833

case_text: Recently, a question very similar to that which arises in this case, arose before Buchanan J in an application for civil penalties by an Australian Building and Construction Commission inspector: Alfred v Lanscar [2007] FCA 833. As part of an investigation into alleged breaches of the WR Act statements were taken from a number of people. They were signed and witnessed. The Commission subsequently sought to rely upon affidavits sworn or affirmed by people from whom the statements were taken in which they deposed to the truth and accuracy of the statements and exhibited them to the affidavits. Eight statements adopted in that fashion were relied upon at the hearing before Buchanan J as part of evidence-in-chief in the applicant's case. 20 Buchanan J ruled that the witness statements were made admissible by their adoption in the affidavits. Although his ruling was made in the course of the hearing, his Honour subsequently reduced his reasons for decision to writing. 21 Buchanan J referred to s 37 of the Evidence Act 1995 (Cth) and in particular s 37(3) which contemplates the exercise by a court of power in the rules of court to allow a written statement or report to be tendered or treated as evidence-in-chief of its maker. A question arose whether the statements adopted by the witnesses were hearsay within the meaning of s 59 of the Evidence Act . His Honour held that if they were they would fall within an exception to the hearsay rule in s 63 and not be inadmissible for that reason. He referred to the decision of the Full Court in Platcher v Jones [2004] FCAFC 68. He did not read the observations of their Honours as turning on the requirements of s 19 of the Australian Securities and Investments Commission Act . I respectfully agree with his Honour's observations. His Honour rejected the objection taken to the admissibility of the statements. He also rejected a separate submission that the Court should require the evidence to be given orally in any event. He saw no reason to depart from earlier directions that the conduct of the proceedings be by affidavit. His Honour said (at [4 ]): In the circumstances, I will admit the statements in question in the sense that I will not exclude them from the evidence upon the basis which has so far been argued. However, it follows that if the statements are to be treated as part of the evidence in chief, as I think they should be, then they will be subject to objections in the ordinary way upon some other foundation if that appears to be available. Such objections will need to be dealt with as they are taken. I reject the objection so far taken in a general way to the statements in question.


case_outcome: affirmed

case_title: SZDDZ v MIMA [2006] FMCA 1174

case_text: This is an appeal from the Federal Magistrates Court: SZDDZ v Minister for Immigration & Multicultural Affairs [2006] FMCA 1174. The appellant, a citizen of India, applied for a protection visa which was refused. That decision was affirmed by the Refugee Review Tribunal but the Tribunal's decision was set aside by a consent order of the Full Court. On the second hearing of the review by a Tribunal differently constituted the refusal of the appellant's application was again confirmed. 2 On the appeal to the Federal Magistrate, it appears that the grounds relied on were, first, the appellant did not have a fair hearing before the Tribunal and, secondly, that the Tribunal made a jurisdictional error when it "took advantage of the situation created by the interpreter" which led to the appellant putting himself in a "scary situation". In essence, the Magistrate found that there was no evidence to support the allegations of the appellant. I shall not repeat the full discussion of the appellant's claims by the Magistrate which are set out in his decision which is obtainable on the Internet.


case_text: In any event, if the Tribunal wrongly assumed that the letter did not contain Rashed Khan Menon's telephone number that was not a jurisdictional error but an error made within jurisdiction. An error of fact made by the Tribunal when exercising its jurisdiction is not a jurisdictional error. An error of that kind does not provide this Court with jurisdiction to quash the decision: Abebe v The Commonwealth of Australia [1999] HCA 14 ; (1999) 197 CLR 510 at [137] . 46 In my opinion, the Tribunal was entitled in this review to take the view that it would not know to whom it was speaking if it were to make the telephone calls. In those circumstances, the Tribunal would have had difficulty attaching much weight to the evidence, even if that evidence was obtained. Moreover, it was never made clear to the Tribunal what evidence it was required to obtain, if possible, from the two witnesses. 47 The appellant provided written submissions in support of the appeal and in both those submissions and orally before me, the appellant asserted that the Tribunal had erred under s 424A due to the inclusion of incorrect factual material in the s 424A letter it sent.


case_text: That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] . 50 In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.


case_text: In any event, this Court has no jurisdiction to consider the merits of the appeal or interfere with any findings of fact made by the Tribunal, even if those findings are wrong: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35-36 per Brennan J; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59 at 61-62 per Gleeson CJ and at 85-86 per Kirby J.


case_text: That said, however, the Tribunal must, when requested so to do by an applicant, give genuine consideration to the request. That requires consideration of the evidence that is sought to be led, the person by whom the evidence is to be given, the current state of the evidence before the Tribunal and the potential impact that the evidence, if accepted, might have on the applicant's claims. Otherwise, the Tribunal would not be providing the applicant with a fair hearing which would demonstrate jurisdictional error: Minister for Immigration and Multicultural Affairs v Maltsin (2005) 88 ALD 304. In this case, the Tribunal was not aware that it had Rashed Khan Menon's telephone number and address. It cannot be criticised for not knowing that. The Tribunal was entitled to reason, having regard to the appellant's own evidence and the evidence of his three witnesses, that any further evidence would be of no assistance and not be capable of corroborating the unsatisfactory evidence already received: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 per McHugh and Gummow JJ at [49]; WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252 at [45] .


case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59


case_text: It found that the information contained in the reference letters was exempt from s 424A(1) of the Act and the information provided by the appellant: s 424A(3)(b) of the Act. In any event, it was not information in the light of SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. 37 Two grounds of appeal are raised. First, it is said that the Federal Magistrate erred in failing to find that the Tribunal had committed jurisdictional error by the Tribunal failing to obtain evidence from two named persons. Secondly, it is said, the Tribunal committed jurisdictional error by not providing the applicant with particulars of the information the Tribunal considered was a reasonable part of the reason for affirming the delegate's decision, contrary to s 424A of the Act. The notice of appeal does not particularise the information which the Tribunal failed to provide under that section. 38 The Tribunal said in its decision: At the hearing the applicant provided the names of two of these letter writers, Showkat Hossain Hiron and Rashed Khan Menon, as witnesses who the Tribunal could contact. He provided telephone numbers, apparently in Bangladesh, for this purpose. In view of the strong concerns about the evidence provided by other witnesses at the hearing, noted below, and the obvious inability to positively identify those two persons simply by the telephone numbers provided (none of which appear on the letters written by them despite the fact that such letters are on the official party letterhead) I am not satisfied that the Tribunal should attempt to obtain further evidence directly from them.


case_outcome: followed

case_text: It is clear from the Tribunal's reasons that it had regard to the appellant's request or wishes to take evidence from the two witnesses. It gave reasons why it declined to do so. I agree, with respect, with Stone J who said in SZDMC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 763 at [49] : Section 426 makes it quite clear that the Tribunal is not obliged to grant a review applicant's request that a witness be called to give evidence even where the request is made in accordance with the statutory procedure. That being so, there was no breach of the requirements of the natural justice hearing rule as set out in Div 4 of Pt 7 arising from the Tribunal's failure to make arrangements to hear [a witness] at some other time.


case_title: WADU v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1252


case_text: was satisfied on 6 March 2009 that, of course, in terms of the High Court's decision in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 229 ALR 457 , that there was a prima facie case made out in the sense that there was a sufficient threshold of success in the proceeding made out taking account of the balance of convenience. One of the influences at the time, in terms of making the order, apart from being satisfied of the integers in O'Neill's case was that dates could be found on 19 and 20 March 2009 for the hearing of the matter which, as I say, largely involved questions of construction, although, no doubt, there would be some questions of factual controversy to be resolved which would require findings of fact. Nevertheless, the scope of the proceedings seem to be reasonably well contained. On the hearing of the application, the respondents in proceeding QUD63 of 2009, as I said earlier, indicated that they may wish to commence their own proceedings. Those proceedings were in fact commenced on 11 March 2009. Directions orders were made for the orderly progression of both matters and, in particular, orders were made that the two proceedings would be heard together since they involved common issues and common factual questions, and that any question of pecuniary penalties to be determined in either proceeding on application by the relevant parties would be dealt with as a separate question. What emerged, of course, was that with the filing of the statement of claim in the related matter (QUD66 of 2009), the matters raised by the applicant parties in that proceeding were a little more complex than had been thought and the filing and serving of affidavits was likely to be more detailed than was first thought. As a result, the matter was brought back for a Directions Hearing and further orders were made. The dates of 19 and 20 March 2009 for the hearing of the trial were vacated and dates of trial were identified and allocated for 23 and 24 April 2009.


case_text: The background to this matter is set out in the reasons of the Federal Magistrate: see SZCXF v Minister for Immigration and Citizenship [2007] FMCA 1229 at [1] - [4] . In summary, I repeat those circumstances below. 3 The appellant is an Iranian citizen who first arrived in Australia in November 1998. Shortly after his arrival on a business trip he met and married a woman, who was an Australian citizen of Iranian background. She sponsored him for a Subclass 820 visa. The marriage foundered after the appellant allegedly discovered his wife had been unfaithful and, unknown to him, had been married three times previously. The appellant left the matrimonial home with only a few possessions and returned to Iran. Whilst in Iran he had the experiences which are the subject matter of his claim to be a person to whom Australia has protection obligations. On 13 August 2001, he returned to Australia and made an application for a protection visa on 21 September 2001. The application was refused by the delegate of the Minister, and the Tribunal affirmed that decision on 27 January 2004. On review, the Federal Magistrates Court set aside the decision and remitted the matter to the Tribunal to be determined according to law. On 12 September 2006, the Tribunal again affirmed the decision under review and handed that decision down on 5 October 2006. 4 The appellant says that his divorce from his former wife was handled appropriately and that she was given a sum of money which he understood was accepted as satisfactory. However, upon his return to Iran he was approached by her brothers, who indicated that the family was not happy with the arrangement and demanded further payment from him. When that was refused he was hit and they warned him that this was just the beginning. In relation to this period of time, the Tribunal stated: 'One afternoon as he was returning home from work he was stopped on the street near his home. Two men who identified themselves as being from the disciplinary forces demanded that he follow them to the local disciplinary forces' centre. [His former wife's] brothers had told the disciplinary forces that he was a political dissident and a proselytizer. She also wrote to the Iranian Embassy in Canberra and the disciplinary forces in Tehran saying that he had been involved in evangelical Christian practice in Australia. He did have some contact with Christians while in Australia. Whilst he was married to [his former wife] he attended a few church services with his friends. However he was not a Christian and still followed the Muslim faith. He knew that the accusations were serious. While detained he was interrogated about his business trips. He was asked about his link with some anti-Islamic groups. His denials were not believed. He was hit and called a deviant. He was told he should be careful and would be monitored. He was warned he would be severely punished if he stepped out of line. He did not know how he could prove to the authorities that he was not a Christian when they were convinced that the opposite was true. His business trips were increasingly monitored by the disciplinary forces. He was under suspicion and was constantly harassed by telephone calls from the security forces throughout the night. He was disturbed and disorientated and it became almost impossible to sleep.' 5 The appellant maintained that although he was not detained again until 2001 he was kept under constant surveillance, particularly in relation to his business trips. These trips were taken at the behest of a Bonyad (a powerful Iranian business organisation), one of whose employees he had paid off in order to obtain business from it. After the appellant returned from a business trip to Sweden in February 2001 he was arrested again. He claimed that he was beaten up during the course of his interrogation and was released because of the injuries that he suffered. The appellant stated that during his interrogation he saw a letter that had been written to the authorities in the handwriting of his former wife. He also claimed that he was being interrogated about certain photographs that had been taken by and of him in and around churches in Italy and Australia. He claimed that these had been provided to the authorities by his former wife. He claimed that those photographs were used to corroborate the statements made by his former wife and her brothers that he was a proselytizer. The appellant also claimed before the Tribunal that he was arrested on a third occasion, on which he was not asked about religious or political matters, but had been told to write his life story so that the authorities could verify it. 6 In its reasons, the Tribunal accepted that the appellant often travelled abroad for business purposes. It accepted that the appellant had been involved in corrupt activity with an employee of the Bonyad, which might lead him to face penalties if discovered. The Tribunal accepted that the appellant had been questioned by authorities after returning to Iran in 1999, that he was questioned again and possibly ill-treated in 2001. It stated that he may have subsequently faced charges, had the deeds to his home held as security and had access to his bank accounts denied.


case_outcome: referred to

case_text: The reference to SZBEL v Minister for Immigration (2006) 228 CLR 152 is a reference to the principle that an applicant before the Tribunal must be given the opportunity to ascertain the determinative issues in relation to the Tribunal's decision, and must be given sufficient opportunity to give evidence and make submissions in relation to them. I agree with the conclusion of the Federal Magistrate that this case is not analogous to SZBEL 228 CLR 152. The line of questioning pursued by the Tribunal in relation to the photographs adequately notified the appellant of the fact that this issue was relevant and determinative of some aspects of his claim. I am not persuaded that there has been any failure by the Tribunal to put this matter to the appellant. There is no denial of procedural fairness, as that right arises under ss 422B and 425 of the Act . 27 The final ground of appeal arising out of the appellant's Notice of Appeal claims that the Tribunal erred in not considering whether the appellant would suffer persecution as a result of his current wife not converting to Islam and joining him in Iran upon his repatriation. 28 This ground of appeal must also be rejected. After accepting the appellant's evidence that his wife would not join him in Iran if he was repatriated, the Tribunal found that the appellant's claim that he would suffer persecution due to being married to a Christian "must fail" because: '... the Iranian authorities would remain unaware that he has married a Christian, and therefore no adverse inferences about him might be drawn as a result of such a marriage.'


case_text: The learned Magistrate identified the appellant's principal contention on the review application as being that he was able to pay his debts as and when they became due, although his Honour recognised that solvency did not of itself entitle the appellant to have the petition dismissed: see St George Bank Ltd v Helfenbaum [1999] FCA 1337. On the issue of solvency, the evidence was then discussed in detail. His Honour was, ultimately, not satisfied that the appellant was able to pay his debts as and when they fell due. Included in the appellant's assets were 212 shares held in Manna Hill, which were found to be held on trust for the Moore Family Trust. It was accepted that the appellant was the trustee of the Moore Family Trust and a beneficiary, so that the shares in Manna Hill were treated as an asset of the appellant. However, his Honour was unable, on the evidence, to assign any value to that shareholding. 14 Nor was his Honour satisfied that other sufficient cause had been shown as to why the sequestration order should not be made. The two principal matters raised by the appellant as showing other sufficient cause for the petition being dismissed were his shareholding in Manna Hill, and the fact that the appellant (by his trustee) might not prosecute the appeal from the decision in the earlier proceedings. As to the latter point, his Honour proceeded on 'the basis that the appeal will ultimately be determined on its merits'. 15 Consequently, the review application was dismissed on 1 July 2005. 16 Those reasons for judgment also addressed the further evidence motion, dismissed on 17 June 2005. The learned Magistrate said that the appellant had been unable to identify any circumstances which had arisen since he reserved judgment on 13 May 2005 which warranted him being given leave to make further submissions (his Honour categorised the further evidence motion as one seeking to make further submissions rather than to adduce further evidence), and in particular submissions criticising the way the hearing of the review application had been conducted. Such criticisms, his Honour said, could be pursued upon any appeal. In reasons for decision given on 17 June 2005, the affidavit of the appellant in support of the further evidence motion was described as 'a reagitation of submissions' and suggestions of 'inadequacies relating to the conduct of the review application'. His Honour said then: '... there are no matters ... that relate to events that occurred since the reservation of my judgment which the justice of the case might require me to hear submissions about.' 17 On 1 July 2004, reasons were given for refusing the disqualification motion. The learned Magistrate pointed out that it was filed without a supporting affidavit. It was given a return date as the same date as the judgment on the review application, but called on only after that judgment. Hence, his Honour observed 'there would not appear to be any utility' in further hearing of that motion, and that any appeal from the decision on the review application would be the appropriate forum for agitating the appellant's concerns. 18 The appellant has been unrepresented at all times. His written documentation, whether in affidavit form or as submissions, and his oral submissions are argumentative, assertive, and often apparently repetitive. They are often extravagantly expressed, and he makes apparently unfounded but serious allegations. 19 The notice of appeal from the review application decision contains 29 grounds, but they are not clearly expressed and are repetitive. So far as I can determine, and omitting merely assertive claims (those where there is no particularity of the claim or of the error alleged such as unsupported claims of fraud or perversion of the course of justice), the notice of appeal claims that the learned Magistrate erred because: (1) there was no act of bankruptcy because the appellant was not served with the bankruptcy notice, because the bankruptcy notice was in a 'closed envelope'; (2) there was no service of the petition itself upon him, because the petition was also in a sealed envelope; (3) he found the appellant was not solvent (elsewhere in the notice of appeal the appellant refers to disputing his indebtedness to the second respondent and refers to the first respondent owing him $3106, the second respondent owing him $14,350 and $6333, and Manna Hill owing him $68,4000, and also claims that his shareholding in Manna Hill is worth $600,000; he apparently thereby identifies particular factual errors asserted, and complains that the learned Magistrate did not accept his evidence about why his statement of affairs was not accurate); (4) there were other sufficient causes for the petition to be dismissed, including (i) that he offered to repay the debt of $4600 but was not permitted by the respondents to do so; (ii) that the appellant had 'set-offs' against the respondents (referred to in (3) above); (iii) that he had an illness; and (iv) that the appeal against the earlier decision had not been resolved; (5) the appellant was not accorded procedural fairness because (i) he was not given sufficient time to present evidence and submissions, including by reason of the dismissal of the further evidence motion to adduce submissions and 'new' evidence regarding his 'real' statement of affairs, and because he received a very lengthy affidavit of the respondents on the afternoon of 5 April 2005 for the hearing on 8 April 2005; (ii) no weight was given to his state of health, namely his mental condition and its effect upon his capacity to conduct the hearing of the review application in a timely manner (the appellant did not claim that he was incompetent to conduct the hearing but that he should have been given more time to adduce evidence and to make submissions); (iii) he was not permitted to cross-examine the respondents' witnesses (whose evidence-in-chief was given by affidavit); (iv) he was not given an adjournment of the hearing of the review application to obtain legal representation (which he claims was available to him); (v) the hearing on 13 May 2005 was 'completed' whilst he was still in the course of making submissions; (vi) the learned Magistrate was ostensibly biased against him as indicated by (a) the general hostility he experienced during the hearing; (b) failing or declining to hear and determine the disqualification motion before delivering judgment; (c) commencing the hearing on 13 May 2005 before the listed commencement time in the presence of counsel for the respondents but in the absence of the appellant; (d) dismissing the further evidence affidavit (which the appellant claims, contrary to the assessment of the learned Magistrate, included evidence he wished to adduce and not simply submissions he wished to make); (e) selective use of evidence and failure to have regard to evidence favourable to the appellant in making the findings of fact. 20 The grounds of appeal in the draft notices of appeal attached to the two motions seeking leave to appeal from the dismissal of the further evidence motion and of the disqualification motion broadly speaking are included in the grounds of appeal from the dismissal of the review application. The only additional matter raised (which is itself comprehensible) is that the learned Magistrate should have treated the affidavit of the appellant of 14 June 2005 (filed in support of the further evidence motion) as also in support of the disqualification motion, so that his Honour erred in treating the disqualification motion as not complying with the Federal Magistrates Court Rules. 21 I have incorporated into the description of the grounds of appeal certain particularity which emerged from questioning the appellant during the course of the hearing of this appeal. I have not included certain matters which he raised in argument but which could not have led to the appeal (or other application) being successful (for example that certain evidence was apparently misplaced but then located in the course of the hearing at first instance, or that the result of the proceedings simply reflected the decision of 21 January 2005 under review without independent consideration, or that for a period during the hearing at first instance there was some misunderstanding about the foundation of the debt giving rise to the costs judgment).


case_text: In my view, the appellant was served with the bankruptcy notice and the petition by being given each of those documents. There was clear evidence to that effect. The appellant acknowledged that. There is no requirement that such documents at the time of service not be in a 'closed' or sealed envelope. The appellant pointed to no provision of the Act or of the Bankruptcy Regulations 1996 to support his contention, nor to any authority which does so. The service provisions under the Act are generally construed strictly: see, e.g. Re Ditfort; Ex parte Deputy Commissioner of Taxation (1988) 19 FCR 347. That reflects the need for certainty about if and when an act of bankruptcy has been committed, and the significance of a sequestration order. 23 There is no specific provision as to how service of a bankruptcy notice must be effected. Bankruptcy Regulation 16.01(1) provides a range of service options including personal service, and reg 16.01(b) then provides that personal service is effected when the document is delivered. There is no doubt the bankruptcy notice was delivered to the appellant. 24 As a Court process, service of the petition is governed by the relevant Court Rules. Rule 31.05 of the Federal Magistrates Court Rules required the petition to be served personally by giving a copy to the appellant: Rules 6.06(1) and 6.07(1) of the Federal Magistrates Court Rules. That was complied with.


case_text: The review application required a rehearing de novo of the petition: see s 104 of the FM Act. Under s 35A of the Federal Court of Australia Act 1976 (Cth), the review hearing therefore required the respondents to prove the various matters which they were also required to prove before the Registrar, including those specified in s 52(1) of the Act: see e.g. Martin v Commonwealth Bank of Australia (2001) 217 ALR 634; Meehan v Alfaro [1999] FCA 832 ; (1999) 93 FCR 201. The same approach applies under s 104 of the FM Act. There is no material difference in the two provisions. That approach has been adopted in the Federal Magistrates Court: see Adelaide Bank Ltd v Badcock [2002] FMCA 10 ; Clancy v Robinson [2002] FMCA 47.


case_title: Adelaide Bank Ltd v Badcock [2002] FMCA 10


case_title: Clancy v Robinson [2002] FMCA 47


case_text: The right to be heard is an important element of our system of justice. So too is the need for justice to be administered openly in the presence of the parties. The 'commencement' of the Court on 13 May 2005 was a little early and the appellant's arrival shortly afterwards understandably gave him cause for concern. However, as the material referred to above shows, the hearing of the review application had not commenced precisely because the appellant was not present and the time for its commencement had not been reached. The transcript reveals that. The appellant attended very shortly afterwards. I do not consider, in the circumstances, those events might reasonably cause a fair-minded lay observer to apprehend that the Magistrate might not bring an impartial and unprejudiced mind to the resolution of the review application: see Johnson v Johnson [2000] HCA 48 ; (2000) 201 CLR 488 at 492; Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at 344.


case_title: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337


case_text: Section 27 of the Evidence Act provides that a party may question any witness, except as provided by the Evidence Act . It is unclear that the common law position that there is no right of cross-examination (see e.g. per Young J in Eq in GPI Leisure Corp Ltd v Herdsman Investments Pty Ltd (No.3) (1990) 20 NSWLR 15 at 22) survives that provision. The practical outcome may be the same. Improper questioning may be disallowed: s 41. More importantly, s 11 of the Evidence Act preserves the power of a court to control the conduct of a proceeding, including with respect to abuse of its process. It is by the exercise of such a power that, in this instance, cross-examination of the process servers could have been precluded. It could have served no useful purpose, and would have added to the expense and length of the hearing for no valid reason. Similarly, the foundation for the costs judgment was a matter of record. There was clearly an act of bankruptcy committed by the appellant when he failed to comply with the bankruptcy notice based on the costs judgment. Cross-examination on the review application to endeavour to show that Lander J ought not to have made the orders in the earlier proceedings upon which the costs judgment was based would also have been pointless, and a waste of time and expense. See also Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293.


case_title: Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd [1998] NSWSC 293


case_title: Browne v Dunn (1893) 6 R 67

case_text: On the substantive issues raised in the review application under s 52(2) of the Act, it was a matter for the respondents as to whether they sought to cross-examine the appellant on his affidavits. They did not do so. The respondent's affidavits which preceded 30 March 2005 put the appellant on notice as to their case, and gave him the opportunity to respond. The judgment was made that the rule in Browne v Dunn (1893) 6 R 67 had been satisfied. The appellant has made no submission of unfairness in that regard. 78 The appellant's wish to cross-examine, in particular Ms Langford and the second respondent, related directly to the issue of solvency. To a significant degree, the learned Magistrate in fact avoided addressing contentious factual issues: he expressly assumed in favour of the appellant that the 212 shares in Manna Hill were the appellant's shares; he also disregarded the costs liability arising from the costs order following the outcome of the earlier proceedings. 79 The assessment of the appellant's debts as being between $75,000 and $100,000 was made, as the reasons for judgment show, upon the basis of the Statement of Affairs and the appellant's evidence (as distinct from his submissions) about that. The O'Riley 'debt' was about $12,000, so the reduction from the debts listed in the Statement of Affairs having regard to the appellant's evidence was of the order of $32,000-7000. That did not involve any assessment of the respective claims of the appellant and Ms Langford as to the amount of his debt to her; the disputed evidence was referred to and the Magistrate simply observed that the indebtedness is somewhere between $15,000 (the appellant's figure) and $67,000 (Ms Langford's figure). The reasons do not suggest an amount greater than $15,000 was taken into account. The learned Magistrate has therefore, on that contested evidence, taken the view based upon the appellant's own material. In that circumstance, he did not deprive the appellant of a fair trial by not permitting the appellant to cross-examine Ms Langford. There was no benefit to the appellant in him doing so, as the cross-examination would have legitimately sought to have the Magistrate accept the fact as to the amount of the indebtedness which the Magistrate assumed in any event.


case_text: Considering this evidence, I am not satisfied that 'Vessel's Final Accounts' or 'Final Accounts' are used exclusively, or even customarily, as terms of art. In light of this, I find that the expert evidence provides no special guidance to constructing the documents at issue in this case: see, e.g., Pepsi Seven-Up Bottlers Perth Pty Ltd v Commissioner of Taxation (1995) 62 FCR 289 at 296-297 per Hill J. Accordingly, I sustain the applicant's objection to Mr Swales's evidence and will exclude all of the expert testimony concerning the meaning of 'Vessel's Final Accounts' or 'Final Accounts'. 38 The applicant contends that the exchange of 3 August 1999 gave rise to a binding contract to compromise, for an amount of USD421,380.22, being Soufflet USA's claim for losses arising out of the delay in berthing and loading of the Panamax Star. In the applicant's submission, AWB's fax of that day is an offer and Soufflet Négoce's immediate reply is an acceptance.


case_text: The applicant contends that Pacific Carriers Ltd v BNP Paribas (2004) (" Pacific Carriers ") [2004] HCA 35 ; 218 CLR 451 articulates the approach the Court should take in this case. In Pacific Carriers , letters of indemnity were provided by the seller of a cargo of lentils to facilitate the delivery of the cargo without the production of a bill of lading. The letters were executed by both the seller and its bank. The High Court held that, considering all the surrounding circumstances, a "reasonable reader in the position of [the buyer] would have understood the document as a bank endorsed absent bills of lading indemnity, and would have understood that the bank was undertaking liability as an indemnifying party to support the liability undertaken by [the seller]": Pacific Carriers at 463 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. 40 In reaching this conclusion, the High Court emphasised that what is important is not the subjective intention of the author of a commercial document such as a letter of indemnity. Rather, "construction ... is to be determined by what a reasonable person in the position of [the buyer] would have understood them to mean": Pacific Carriers at 462 per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. This will require consideration of the surrounding circumstances of the transaction known to the parties and the purpose and object of the transaction, as well as the text of the relevant documents. 41 The applicant submitted that, when the text of AWB's fax of 3 August 1999 is considered in light of the surrounding circumstances, a reasonable reader would understand it to be an offer to compromise all the claims made by Soufflet USA. Moreover, under Pacific Carriers , the subjective intent of the author of the fax (Mr Welmillage) is irrelevant to its meaning and legal effect. 42 The applicant claims that a number of factors support its view. These allegedly include: (a) In letters dated 15 and 18 March 1999, Soufflet Négoce expressly informed AWB that Soufflet USA intended to hold AWB liable for costs incurred as result of the delay in loading the vessel. (b) Further notice of Soufflet USA claims was provided on 29 March 1999 when Soufflet USA deducted its delay related costs from its first payment to AWB. (c) Soufflet USA then acquiesced to AWB's request that delay related claims be treated as a "separate issue". (d) Thereafter, consistent with the course proposed by AWB, Soufflet USA submitted its claim for delay on 28 June 1999. The covering letter clearly referred to both the costs caused by delay and the freight balance. In particular, the applicant contended, "The evident purpose and object of the 28 June 1999 letter was to seek to finalise matters between AWB and Soufflet USA with respect to the charter of the Panamax Star ". (e) AWB said nothing, before the letter of 28 June 1999 and, indeed, prior to 16 September 1999, to indicate that it would dispute Soufflet USA's entitlement to recover from AWB the losses caused by the delay. (f) As AWB's response letter of 3 August 1999 addresses itself to the "Soufflet USA claim", a reasonable reader would assume that AWB was addressing the claim for USD394,296.22 in respect of the delay, and the freight balance. (g) AWB's letter then states "and [AWB] would only disagree with the load port despatch calculation", indicating that AWB disputed only the load port despatch calculation. (h) AWB's letter concludes with the request to Soufflet USA to "go through and confirm your concurrance [sic] for us to proceed with the balance settlements of this Vessel account", indicating to the reasonable reader that an agreement will be reached if Soufflet USA concurs with AWB's load port despatch calculation. 43 The applicant also claimed that there are important omissions from AWB's letter of 3 August 1999. In particular, the applicant noted that the letter does not say that AWB was only responding to part of the claim made in the 28 June 1999 letter. Similarly, it did not say that AWB disputed the claim for delay related costs and did not foreshadow any future correspondence from AWB regarding that matter.


case_text: As already indicated, AWB argued that the applicant's submissions suffered from a fundamental flaw. This flaw is that its fax of 3 August 1999 presents no consideration that could underlie an offer of accord and satisfaction. AWB cited McDermott v Black [1940] HCA 4 ; (1940) 63 CLR 161 at 183-185 per Dixon J, with whom Rich and McTiernan JJ agreed, for a classic statement of the law concerning accord and satisfaction: " The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. What he takes is a matter depending on his own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But, whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired. The accord is the agreement or consent to accept the satisfaction. Until the satisfaction is given the accord remains executory and cannot bar the claim. The distinction between an accord executory and an accord and satisfaction remains as valid and as important as ever. An accord executory neither extinguishes the old cause of action nor affords a new one. ... An executory promise or series of promises given in consideration of the abandonment of the claim may be accepted in substitution or satisfaction of the existing liability. Or, on the other hand, promises may be given by the party liable that he will satisfy the claim by doing an act, making over a thing or paying an ascertained sum of money and the other party may agree to accept, not the promise, but the act, thing or money in satisfaction of his claim. If the agreement is to accept the promise in satisfaction, the discharge of the liability is immediate; if the performance, then there is no discharge unless and until the promise is performed. " Applying these principles, for there to have been an immediate accord and satisfaction, AWB must have offered a promise in place of Soufflet USA's cause of action. In AWB's submission, its fax cannot be construed as an offer of a promise because it merely discusses calculations under a pre-existing contract. 53 During argument, AWB elucidated this point with the following example. Suppose a barrister agrees to charge $100 per hour. Subsequently, the barrister sends her instructing solicitor a $1,500 account stating that she worked for 14 hours. The solicitor might reply "I calculate that 14 hours should be $1,400". At that point, suppose the barrister says "I accept your offer of $1,400". In AWB's submission, no contract would have been formed. The solicitor's communication was simply an inquiry about what was properly owed under the contract. If the solicitor were to later discover that the barrister had not worked 14 hours as claimed, but 10, he could hardly be bound by an earlier 'offer' to pay $1,400. 54 In summary, the solicitor was not offering to accept the barrister's claim in exchange for a $100 reduction in the account; rather the solicitor was trying to establish what his true obligation was under the pre-existing contract. Similarly, in AWB's submission, AWB was not offering to accept Soufflet USA's damages claim in exchange for a reduction in the freight balance. Rather, AWB was simply disagreeing with Soufflet Négoce's calculation of the freight balance. There was no offer of compromise regarding the freight balance because AWB was only offering to pay what it claimed was the correct amount. AWB submitted that these considerations undermine any claim that AWB was requesting a reduction in the freight balance as consideration for it accepting the damages claim.


case_text: Before analysing the key documents, it will be helpful to review the distinction between accord and satisfaction and accord executory. Phillips JA (with whom Winneke P and Charles JA agreed) provides an excellent outline of the relevant principles in Osborn v McDermott [2001] VSCA 94 ; [1998] 3 VR 1 (" Osborn "). As Phillips JA explains, the fundamental distinction between accord executory and accord and satisfaction is that "the former does not operate to discharge existing rights and duties unless and until the accord is performed, whereas the latter operates as a discharge immediately the accord (or agreement) is achieved": Osborn at 7-8. Accord and satisfaction is the compromise of an existing cause of action in return for a promise while accord executory requires that something be done before the cause of action is compromised. 59 Somewhere between accord and satisfaction and accord executory "is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance": Osborn at 10. Accord and conditional satisfaction would be reached if a creditor agreed to forebear from suit for 30 days and to discharge the cause of action if the debtor paid a compromise amount within that time: see Bartlett v Mouncey [1998] FCA 418.


case_title: Bartlett v Mouncey [1998] FCA 418

case_text: Somewhere between accord and satisfaction and accord executory "is the accord and conditional satisfaction, which exists where the compromise amounts to an existing and enforceable agreement between the parties for performance according to its tenor but which does not operate to discharge any existing cause of action unless and until there has been performance": Osborn at 10. Accord and conditional satisfaction would be reached if a creditor agreed to forebear from suit for 30 days and to discharge the cause of action if the debtor paid a compromise amount within that time: see Bartlett v Mouncey [1998] FCA 418.


case_title: Murphy v Timms [1987] 2 Qd R 550

case_text: Forbearance is sometimes exchanged for security: see, e.g., Murphy v Timms [1987] 2 Qd R 550 at 551 per Kneipp J (with whom Vasta J agreed) and 556 per Connolly J (holding that forbearance to sue by a creditor at the express or implied request of a guarantor is sufficient consideration to support a guarantee). Also, forbearance might be consideration where quantum is uncertain. For example, a claimant might forbear to sue in exchange for an insurer accepting liability: see Newton v State Government Insurance Office (Qld) [1986] 1 Qd R 431 at 444-5 per McPherson J. In that situation, the insurer benefits by avoiding costly litigation while quantum is investigated and negotiated. This case is different. The applicant claims that AWB acknowledged both liability and quantum with respect to the damages claim. According to the applicant, AWB bound itself, without more, to pay the damages claim in full. If the applicant were correct, then, Soufflet USA would have exchanged its damages claim for AWB's unqualified promise to pay the exact same claim. This is inherently unlikely.


case_title: Newton v State Government Insurance Office (Qld) [1986] 1 Qd R 431


case_text: The right to question 'as though ... cross-examining' is limited by the word 'about'. Questioning may, however, be directed to establishing the probability of the factual state of affairs, covered by the relevant subparagraph, contended for by the party conducting the questioning or the improbability of the witness's evidence on those subjects (per Heydon JA in R v Le [2002] NSWCCA 186 ; (2002) 54 NSWLR 474 at [55] - [67] ).


case_title: Klewer v Walton [2003] NSWCA 308

case_text: In the case of s 38(1)(a) , that about which the questioning may so proceed is 'evidence given by the witness that is unfavourable to the party' who called the witness. In R v Souleyman (1996) 40 NSWLR 712 at 715 Smart J held that, where the evidence of a witness did not, in significant respects, come up to a prior statement, his evidence was unfavourable. I must say that I have some difficulty with the proposition that one can characterise evidence given as unfavourable if, to do so, one has to go beyond the pleadings and the evidence itself. I do not think that 'unfavourable' should be construed, as suggested by Smart J, as simply 'not favourable'. (see also R v Lozano , unreported, NSWCCA, 10 June 1997 per Hunt CJ at CL, R v Glasby [2000] NSWCCA 83 ; (2000) 115 A Crim R 465 at [59] and R v Taylor [2003] NSWCCA 194 at [74] ). As I see it, for evidence to be characterised as 'unfavourable' it would have to detract from the case of the party calling the witness. I would prefer the approach taken by Hodgson JA with which Meagher JA agreed, in Klewer v Walton [2003] NSWCA 308 at [20] (and [30]) where his Honour expressed the view that evidence which was simply 'neutral' did not come within the word 'unfavourable' as used in s 38(1)(a). In Adam v The Queen [2001] HCA 57 ; (2001) 207 CLR 96 at [27] Gleeson CJ, McHugh, Kirby and Hayne JJ seem to me to be suggesting that for evidence to be characterised as unfavourable, it must have an unhelpful quality about it, as opposed to a neutral quality.


case_text: The Member cited a decision of a Full Court of this Court in Fearnley v Australian Fisheries Management Authority [2006] FCAFC 3. This case also involved an application for review of a decision which had had an effect for a limited period of time which had long since expired. What was in issue was a quota of shark allocated to a fisherman in relation to the 2001 fishing season from 1 January to 31 December 2001. By contract made on 17 December 2001, the fisherman had sold the quota and transferred to the purchasers the fishing permits to which the quota was attached. In that case the Tribunal observed that the proceeding before it would lead to "no practical outcome for" the applicant, and was "futile" and "must be regarded as frivolous and vexatious". That decision was upheld by the Full Court. 9 In his notice of appeal to this Court the applicant states that "the questions of law raised on the appeal are": "(a) That the Tribunal erred in finding that the Applicant had available to him the avenue of complaint to the Ombudsman. (b) That the Tribunal erred in finding that the basis of the applicant's application for review was to give comfort to those who are disaffected by a decision, in circumstances where no orders can be made which can change what has occurred when such finding was inconsistent with the orders that the applicant was seeking in the Tribunal. (c) That the Tribunal erred in finding that the domestic issues underlying the applicant's concerns had now been resolved." 10 The Tribunal did not make a "finding" that the applicant had available to him an avenue of complaint to the Ombudsman (ground (a)), but merely noted that the solicitor of the Legal Aid Commission of New South Wales, who represented the applicant's wife, indicated that in his view the applicant still had available to him that avenue of complaint.


case_text: understand that the adverse information which the appellants say the Tribunal failed to provide to them in contravention of s 424A(1) of the Act, and which was used to make the decision to reject the application, was information which the appellants provided to the Department when the decision to refuse the visas was made. However, as the first respondent submitted, this information was also provided by the appellants to the Tribunal. This was not disputed by the appellants. As pointed out by Heerey J in VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851 at pars 49 and 50: 'Likewise, if an applicant says to the Tribunal "What I said in my visa application is true" and that application contains fact X, the normal meaning conveyed would be that the applicant is giving the information constituted by fact X to the Tribunal, as well as the further fact that fact X had been asserted by the applicant when he made the visa application. Such a reading of s 424A(1) and (3)(b) would be consistent with common law concepts of natural justice which require the decision-maker to give the person affected notice of relevant information obtained from another source but not, generally speaking, to invite comment on the evaluation of material submitted by the person himself: see Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591-592 and the cases there cited.'


case_text: FM found that there was no jurisdictional error in the way in which the Tribunal formulated its decision. His Honour at par 7 ( SZCJR & Ors v Minister for Immigration & Anor (No 2) [2006] FMCA 640) found that the Tribunal's decision in this case was simply one of failure of satisfaction due to the lack of detail in the appellants' submissions. The appellants sought to appeal to this Court by way of unparticularised notice of appeal filed by the appellants on 18 April 2006. The notice of appeal stated that the Federal Magistrate's reasons for judgment had not yet been received by the appellant and that grounds would be provided once the judgment was received. The notice of appeal was accepted for filing by the New South Wales Registry of the Federal Court. On 27 July 2006 the Registry contacted the appellants and advised them that grounds of appeal had not been received for filing. The appellants filed a document on 28 July 2006 which outlined their grounds and particulars of appeal. This document was also accepted by the Court. The appellants' grounds of appeal were, inter alia : • the Tribunal failed to provide the appellants with notice of the adverse information which was used to make the decision to reject the application • the Tribunal failed to provided the appellants with an opportunity to comment on the country information on India which was used to make the decision to reject the application • the Tribunal did not provide the appellants with an opportunity to comment on the inconsistencies between the information in the Department's decision and the Tribunal's decision • there was a denial of natural justice.


case_title: VWBF v Minister for Immigration and Multicultural Affairs (2006) FCA 851


case_text: Alternatively, even if it can be said that the present proceeding is based upon a cause of action that differs in certain respects from the case that was determined by Gray J, so that the doctrine of res judicata does not apply, it is at least arguable that principles of issue estoppel, or Anshun estoppel, prevent these claims from being pursued. See generally Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589; see also VWZG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1018 at [10] - [14] . 13 The applicant was not represented before me. She said that she had signed the 20 June 2003 letter indicating that she wished to withdraw her application for review in circumstances where she had not appreciated the effect of adopting that course. She was not legally represented at the time, and had merely been given informal advice by a migration agent. She claimed, in relation to this proceeding, that she had approached a lawyer to act for her, but had been told that there was some impediment to that lawyer doing so. She indicated that the lawyer had expressed concern about being personally liable for any costs that might be incurred in pursuing the litigation. 14 I must say that I have some difficulty in accepting this account in its entirety. Nonetheless, even if what I was told was correct, the applicant still faces difficulties in pursuing this application.


case_text: If the time limits set out in the High Court Rules are applicable to this proceeding, the principles that govern the exercise of the power to enlarge time under those rules were outlined with great clarity by McHugh J in Re Commonwealth of Australia; Ex parte Marks [2000] HCA 67 ; (2000) 177 ALR 491. In particular, his Honour observed that a case "would need to be exceptional" before the time for commencing proceedings was enlarged by many months. In deciding whether or not to enlarge time, the Court may take into account any explanation for the delay in commencing proceedings, and the applicant's prospects for success in the proceedings. Moreover, as the constitutional writs are directed at the acts or decisions of public bodies or officials, the public interest requires that there be an end to litigation regarding the efficacy of such acts or decisions. 20 At [16] of his reasons for judgment, McHugh J observed: "Independently of the merits of the case, I find it difficult to see how a person who, with knowledge of the decision, delays 17 months before seeking relief could ever be granted an extension of time to quash such a decision unless some conduct of the respondent or the public body or official had brought about the delay. As the Judicial Committee of the Privy Council said in Ratnam v Cumarasamy , "[t]he rules of court must prima facie be obeyed". The time for seeking certiorari is six times, and the time for seeking mandamus is twice, the period in which an application for special leave to appeal to this court can be brought against a judgment or decision. The periods for applying for certiorari and mandamus give a person affected by an adverse decision or judgment ample time in which to commence proceedings in this court. In all but very exceptional cases, they should be rigidly applied when, as here, more than one year has elapsed between the decision and the commencement of proceedings in this court." (footnotes omitted) 21 In Applicant M70 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 132 , a Full Court (Heerey, Dowsett and Bennett JJ) cited these comments of McHugh J, and said at [8]: "Applying those observations and, by analogy, the time limits in the High Court Rules to the present case, relief should be declined for reason of delay." 22 It may be noted that the expression "by analogy" in the passage set out above lends support to Gray J's view that the time limits set out in the High Court Rules do not ordinarily apply to matters that have been remitted to this Court. It is, of course, possible that the judge who remits the matter to this Court will order that those time limits do apply. However, that did not occur in this case. 23 I should add that although the applicant seeks an order nisi for a writ of prohibition, as well as an order nisi for a writ of certiorari, and there is no specific time limit in the High Court Rules in relation to prohibition, it is plain that she can gain no comfort from this. Prohibition is not an appropriate remedy when challenging a decision of the Tribunal that has already been made. There is nothing left to prohibit. Once the Tribunal has made its decision, it has no further function to perform.


case_text: If the order nisi for a writ of prohibition is directed to the Minister, seemingly with the intention of preventing her from giving effect to the Tribunal's decision, the remedy may, nonetheless, be inappropriate. In Re Ruddock; Ex parte Reyes (2000) 177 ALR 484 (" Reyes "), McHugh J held that even if certiorari was granted to quash the Tribunal's decision, there should be no order for prohibition against the Minister. His Honour said at [23]: "there is no ground whatever in a case such as the present for the issue of a writ of prohibition against the minister. As was conceded, as the law stands at the moment and on the facts of the case, the minister was under a duty, in accordance with s 198 of the Migration Act 1958 (Cth) (the Act ), to deport the applicant. No claim for prohibition could possibly be made on the basis of his personal fault or breach of the law or jurisdictional error." 25 McHugh J went on to say that the proper remedies in a case in which a decision of the Tribunal is challenged are certiorari and mandamus, both of which should be directed to the Tribunal. 26 The reasoning in Reyes seems difficult to reconcile with the later decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 in which his Honour accepted the possibility that prohibition might be an appropriate remedy in cases of this type.


case_text: The reasoning in Reyes seems difficult to reconcile with the later decision of Merkel J in Thayananthan v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1054 in which his Honour accepted the possibility that prohibition might be an appropriate remedy in cases of this type.


case_text: Crown also conceded before me that it had inadvertently misled his Honour when reference was made to a comparative case of AFP v Natcomp Technology Australia (unreported, Downing Centre Local Court, 18 July 2006). The Crown, when putting its submissions before the Magistrate, mistakenly stated that the penalty imposed in the Natcomp matter had been a total of $20,000, whereas in truth the total was $8,000. Mr Lancaster, who appeared for Interville, accepts that the concessions made by the Crown are correct, and accepts that the Crown misled the Magistrate, albeit quite inadvertently. I have before me the transcript of the proceeding before Magistrate McIntosh on 25 November 2008. His Honour dealt with the matter very late in the afternoon, after a lengthy day dealing with a large number of traffic offences. That is, of course, not to be taken as being criticism of his Honour, but rather it demonstrates the pressure under which the Magistrate was when he came to consider the question of sentencing. The transcript records that his Honour's initial reaction was to impose a fine of $7500 for sequence number 21 and $500 for each other matter. That would have brought the total sentence to a figure of $17,000. However, it was at that point that the Crown made reference to the Natcomp matter, and errantly described the total fine in the matter at $20,000. In light of this, the Magistrate said that he would "have to up the ante." His Honour then dealt with the matter, and made his remarks on sentencing which appear at pages 77 to 78 of the Appeal Book. I will not set out the remarks in full, but his Honour observed that these offences are becoming common in the film, television, and music industries, and call for heavy penalties to be imposed. His Honour observed that he was dealing with serious offences which call for heavy penalties to be imposed to "get the message out" that film and music piracy is not to be countenanced. His Honour took into account a number of matters which he was required to consider in determining the penalties to be imposed. His Honour took into account the fact that Interville had pleaded guilty at the very first opportunity; that copyright piracy was not the main part of Interville's business, which was the operation of an Internet café, and that the copyright infringements were "a by-product" of the business. His Honour also took into account the fact that he was asked to make a forfeiture order in relation to certain hardware, which was said to have a replacement value of $15,000. Moreover, he took into account the financial situation of the company which showed that it was a comparatively small business, with a net profit in its accounts for the year ending 30 June 2008 of approximately $21,000. As I have said, his Honour took into account in determining the penalty for sequence 21 the 20 matters set out in relation to section 16BA of the Crimes Act , and what he had been told about the effect of the decision in Natcomp . In considering the question of the severity of the sentence, I am required to have regard to the matters set out in Part IB of the Crimes Act and, in particular, the matters set out in section 16A. Section 16A(2) sets out a non-exhaustive list of matters which the Court is required to take into account.


case_text: have been a number of observations by the courts on the fact that a plea of guilty is ordinarily a matter to be taken into account in mitigation, because it is usually some evidence of remorse, and in particular, the community is spared the expense of a contested trial: see, eg, Siganto v the Queen [1998] HCA 74 ; (1998) 194 CLR 656 at 663-4, Cameron v The Queen [2002] HCA 6 ; (2002) 209 CLR 339 at [22] .


case_text: relevant principles have been referred to in a large number of cases. The decision of the NSW Court of Criminal Appeal in Director of Public Prosecutions Cth v Said Khoda El Karhani [1990] 21 NSWLR 370 contains useful discussion of the relevant principles commencing at page 377. The principle of general deterrence which should be taken into account in determining the sentence was discussed in that decision. Reference was also made to this in the decision of Von Doussa J in Hamm v Middleton [1999] FCA 777 ; (1999) 44 IPR 656.


case_text: relevant principles have been referred to in a large number of cases. The decision of the NSW Court of Criminal Appeal in Director of Public Prosecutions Cth v Said Khoda El Karhani [1990] 21 NSWLR 370 contains useful discussion of the relevant principles commencing at page 377. The principle of general deterrence which should be taken into account in determining the sentence was discussed in that decision. Reference was also made to this in the decision of Von Doussa J in Hamm v Middleton [1999] FCA 777 ; (1999) 44 IPR 656. Section 16A(2)(c) of the Crimes Act provides that one of the matters which the Court must take into account is whether the offence forms part of a course of conduct consisting of a series of criminal acts of the same or similar character. In that event, the Court is to take into account the course of conduct. This was referred to in Hamm v Middleton at [15]. That subsection is relevant in the present case, because the Crown submits that the appellant's offending conduct persisted throughout the period of 6 October 2005 to 18 December 2007. A further matter which the Court must take into account is set out in section 16A(2)(g) , under which the Court is required to take into account the fact that the person has pleaded guilty to the charge in respect of the particular offence.