case_text: At the hearing the principles upon which I was asked to exercise my discretion in granting leave to join Ms Nader to the Bank's proceedings, were set out in written submissions by the Bank which were accepted by Ms Nader's counsel. They are: ' Principles on Joinder 11. Order 6 rr.2 and 8 of the Federal Court Rules , permit the addition of parties. It is submitted with regard to the proposed causes of action against Ms Nader that there are clearly common questions of fact and law under O.6 r.2 which will arise in the proceedings and also relate to the proposed case against her. Under O.6 r.8 joinder is permitted where it is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. 12. Order 6 r.8 should be liberally construed so that all parties to disputes relating to the one subject matter may be dealt with at the one time: Montgomery v Foy, Morgan & Co. [1895] 2 QB 321 at 324; John Cooke & Co. Ltd v Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411. In order to obtain a joinder order under the rule, a party must only show an arguable case against the proposed respondent at least to the standard of being able to resist an application for summary judgment by the proposed respondent to have the proposed party being sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009. The phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings: it may also properly include those disputed issues of fact which are subjacent to the existing pleadings: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. Disputed issues of fact which underlie proceedings are subjacent to the pleadings: Fried v National Australian Bank Ltd [1999] FCA 737. As the joinder of Ms Nader is based upon affidavit evidence served in support of the existing pleadings, the case against Ms Nader is a matter currently in dispute in the proceedings.' 27 Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006. 28 The Bank relied on what Glass JA with the agreement of Samuels JA had said in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 37G-38B, 43D-E. Glass JA noted that the analogue of s 22 was also directed to avoid multiplicity of proceedings. He said that the fact that the constitution of the proceedings prior to the joinder of the new party by a plaintiff (or applicant) could not yield an order which directly affected that new party was no answer to the application. This was because r 2(a) and the analogue of s 22 sanctioned and encouraged the addition of a further defendant (or respondent) to avoid multiplicity of proceedings. He continued by construing r 2(a) as not being limited, on a plaintiff's (or applicant's) motion to join a new party, to the matters arising on the existing pleadings ([1981] 2 NSWLR at 38C-E) but he did not decide the case under r 2 ([1981] 2 NSWLR at 39A, E). 29 In the case before the Court of Appeal there was an issue on the existing pleadings as to whose default had caused a building to be unstable. Glass JA there said that where a plaintiff (or applicant) asserted on tenable grounds that such a matter of dispute could not be determined without the joinder of the builder as a party, the power to join that person as a party under r 8 was enlivened ([1981] 2 NSWLR at 38D-E). In Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34, the nomination of the builder as the person whose alleged default occasioned the building's instability, was to be seen as a joint or several tortfeasor along with the current defendants who were the architects and engineers. A claim in contract was also made ([1981] 2 NSWLR at 36A-G). 30 The Bank contended that this showed that Branson J's approach to O 6 r 8 was wrong and, moreover, it submitted that the approach of Glass and Samuels JJA had been approved by the Full Court in News Ltd v Australian Rugby Football League (1996) 64 FCR 410 at 523G-524B. But there, the Full Court referred simply to the decision in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 in the context of considering a different situation; viz , one in which the trial judge had made orders that affected the substantive rights of persons who had not been joined to the proceedings (see 64 FCR at 524E-F). Lockhart, von Doussa and Sackville JJ did say (64 FCR at 524A-B) immediately after their reference in the above context to the decision of the Court of Appeal and FCR O 6 r 8(1)(b): 'The post-Judicature Act rules of court also included provisions of the kind now found in FCR O 6, rr 1 and 2 for the joinder of multiple claims and multiple parties, either plaintiffs or defendants, where the subject matter of the proceedings is in respect of, or arises out of, the same transaction or series of transactions, involving some common question of law or fact. These provisions reflect an intention, which now receives more emphasis than in the past, to avoid where reasonably practicable a multiplicity of proceedings: Montgomery v Foy, Morgan & Co [1895] 2 QB 321; but see Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 378 per Devlin J.' 37 I am of opinion that O 6 r 8, on its proper construction, does not authorize the joinder of Ms Nader as sought. Her joinder would require, as is sought, substantive amendment of the Bank's statement of claim. Save for the assertion of her liability if the Bank's remedies against the guarantors in contract, pursuant to its interest in land the subject of its mortgages and its tortuous and statutory claims fail, Ms Nader has no interest in the subject matter of the Bank proceedings or the ASS proceedings. She is a discrete third party quite unlike the wool growers, for example, in John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 or the builder in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34.


case_outcome: referred to

case_text: In Birtles v Commonwealth [1960] VR 247 at 250 Adam J observed that an overly technical approach to the construction of an analogue to O 6 was "... out of harmony with the modern concept that litigation is no mere game of chess to be lost by one false move ..." and that errors are, usually, curable. That is certainly the case, and in instances involving the related, but distinct, discretion to permit amendment, the court takes a liberal and facultative approach to ensuring that the real issues are litigated. There, an amendment will be allowed in the ordinary case, no matter what kind of error or mistake occurred unless it was fraudulent or intentionally exaggerated: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-153; Cropper v Smith (1884) 26 Ch D 700 at 710.


case_outcome: followed

case_text: So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ). 61 Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).


case_outcome: applied

case_title: Reg v Lawrence [1982] AC 510

case_text: A delay of 21/2 years has occurred in a case where the basal events had happened in June 1997. This means that, even though Ms Nader now has sworn an affidavit, every witnesses' memory is likely to have been affected and that, in turn, may affect her position adversely. As Lord Hailsham of St Marylebone LC said, albeit in the context of a criminal trial but none less apposite to a civil trial, in Reg. v Lawrence [1982] AC 510 at 517B-C: '... it is a truism to say that justice delayed is justice denied. But it is not merely the anxiety and uncertainty in the life of the accused, whether on bail or remand, which are affected. Where there is delay the whole quality of justice deteriorates. Our system depends on the recollection of witnesses, conveyed to a jury by oral testimony. As the months pass, this recollection necessarily dims, and juries who are correctly directed not to convict unless they are assured of the reliability of the evidence for the prosecution, necessarily tend to acquit as this becomes less precise, and sometimes less reliable. This may also affect defence witnesses on the opposite side.' 77 His Lordship's observations apply a fortiori to the present application. The risk of injustice being done to the Bank, has to be balanced against the risk of injustice being done to Ms Nader in the context of this particular litigation and the way it has been conducted to the present time. The joinder of Ms Nader, if she is to have adequate time in which to prepare and investigate the case which she may or may not wish to pursue involving the ASS proceedings, does not appear to be one which can be regarded as a simple task. The whole history of the litigation has indicated that it is not. For Ms Nader to prepare fully in that respect will cause delay in the prosecution of the case against all of the other parties. It may cause her injustice by being hurried on. The Bank has only itself to blame for its inability to appreciate from March 2003 until October 2005 what appears to be plain in the defence of Marie and Josephine Saklaoui. 78 The fact that her affidavit evidence is available to be used, if the Bank so chooses, in the Bank proceedings reduces but does not entirely eliminate the potential prejudice to the Bank flowing from a decision to refuse the present application. Doing the best that I can on the evidence before me, the interests of justice will be better served by exposing the Bank to this prejudice rather than exposing Ms Nader to what I consider to be far more substantive prejudice to her.


case_text: At the hearing the principles upon which I was asked to exercise my discretion in granting leave to join Ms Nader to the Bank's proceedings, were set out in written submissions by the Bank which were accepted by Ms Nader's counsel. They are: ' Principles on Joinder 11. Order 6 rr.2 and 8 of the Federal Court Rules , permit the addition of parties. It is submitted with regard to the proposed causes of action against Ms Nader that there are clearly common questions of fact and law under O.6 r.2 which will arise in the proceedings and also relate to the proposed case against her. Under O.6 r.8 joinder is permitted where it is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. 12. Order 6 r.8 should be liberally construed so that all parties to disputes relating to the one subject matter may be dealt with at the one time: Montgomery v Foy, Morgan & Co. [1895] 2 QB 321 at 324; John Cooke & Co. Ltd v Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411. In order to obtain a joinder order under the rule, a party must only show an arguable case against the proposed respondent at least to the standard of being able to resist an application for summary judgment by the proposed respondent to have the proposed party being sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009. The phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings: it may also properly include those disputed issues of fact which are subjacent to the existing pleadings: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. Disputed issues of fact which underlie proceedings are subjacent to the pleadings: Fried v National Australian Bank Ltd [1999] FCA 737. As the joinder of Ms Nader is based upon affidavit evidence served in support of the existing pleadings, the case against Ms Nader is a matter currently in dispute in the proceedings.' 75 The delay of the Bank here in bringing any claim against Ms Nader is not sufficiently justified on the evidence to warrant the exercise of my discretion to permit her now to be joined. Not only did the Bank not act after it received amended defences in March 2003, but it did nothing until late October 2003 after receiving the affidavits of Marie and Josephine Saklaoui in November 2004. That is a sufficient reason to refuse the relief sought (cp: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd (2003) 58 IPR 366 at 372 [33] per Heerey J).


case_text: Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006. 33 As the passage just cited shows, the analogue of O 6 r 8 enabled the court to add a party, then limited to a defendant, where the interests of that party would be affected by the result of the proceedings as they were presently framed. Moreover, it enables the court to add a party where there are common questions of fact or law involved in different causes of action; but the context is, as Williams J said in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 601 (and see too at 593, 597-598) of an analogue of O 6 r 8, again limited to joinder of a defendant: 'It authorizes the joinder of defendants against whom the right to any relief is alleged to exist jointly, severally, or in the alternative. The causes of action upon which this right to relief could be founded have already been specified. The rule is therefore silent as to causes of action, because rule 1 has already dealt with those which can be combined in the one action. Rule 4 marks the arrival of the stage at which it becomes necessary to define the defendants who can be joined in such action.' His Honour emphasized that these rules are to be construed liberally to authorize the joinder of actions that can be conveniently tried together with safeguards to prevent defendants being prejudiced (65 CLR at 601). 34 And, this construction is reinforced by O 6 r 11(1)(b) which permits orders for amendment, in effect, consequent upon the joinder of a new party under O 6 r 8: see also Richardson v Trautwein (1942) 64 CLR at 601 per Williams J and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 745E-746C per Mahoney JA, see too at 749F-751C per Priestley JA. So, O 6 r 8 has to do, primarily, with ensuring that the rules of natural justice, entitling a person whose rights may be affected by a decision to be heard before the decision is made, and ensuring that any proper contradictor can be joined so as to assist in the court's discharge of its statutory obligation under s 22 of the Federal Court of Australia Act 1976 (Cth). That provides: 'The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.' 53 At first blush, the proposed claim against Ms Nader might have the requisite commonality under O 6 r 2(a) only with the Bank's cases against Marie and Josephine Saklaoui. But that argument does not stand examination, for the Bank's 'transactions' with Marie and Josephine Saklaoui are quite different from its transactions with the other guarantors, if for no other reason than the involvement of Ms Nader. But there are also other reasons for the distinctiveness of the transactions so as to entail that they do not satisfy O 6 r 2(a)(ii). The proposed claim against Ms Nader is framed against her as an individual who is alleged to be solely liable for her own alleged fraud and other tortuous and statutory liabilities, all of which depend on a finding that each of the transaction or transactions on the face of the guarantees, mortgages and certificates was not as it appeared, viz : valid, correct and enforceable (see too Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590 per Rich J, 593 per Starke J, 598 per McTiernan J, 601-602 per Williams J).


case_title: Stroud v Lawson [1898] 2 QB 44

case_text: That said, it is now necessary to consider the construction and application of O 6 r 2. It provides two bases, each again discretionary ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411), for joinder. The second basis, in r 2(b), is emphatic of this discretion which falls to be considered having regard to the subject matter, scope and purpose of O 6 as whole and as part of the Federal Court Rules : The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49. The first basis, in r 2(a) involves considerations which have been the subject of over a century of judicial decisions. It requires not just the existence of a common question of fact or law in each proceeding which might be brought separately against two or more persons, but also that ' all rights to relief claimed' are in respect of or arise out of the same transaction or series of transactions (cf: Stroud v Lawson [1898] 2 QB 44 at 52). 46 Here the rights to relief claimed by the Bank against Ms Nader are legally and factually independent of the claims by the Bank against the guarantors other than Marie and Josephine Saklaoui for the purposes of O 6 r 2(a) because none of the other guarantors participated in the transactions between each of Marie and Josephine Saklaoui, Ms Nader and the Bank. As Mason J said in Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609 at 618 (see too per Barwick CJ at 614-615, Stephen J at 615 and Aickin J, whose decision at first instance was affirmed, at 611) of the amendment to the English rules in 1898: 'The object of the amendment was to allow several plaintiffs to join separate causes of action where under the old rule as interpreted by judicial decision they could not do so. Subject to the two limitations expressed in pars. (a) and (b) of the rule, it permits the joinder of separate causes of action which have accrued to different plaintiffs. The effect of the rule was, in my opinion, correctly stated by Vaughan Williams L.J. in Stroud v Lawson when he said ([1898] 2 QB at pp 54-55): "I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point, and other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might joint their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief. Their remedies or damages might be different, but they would be claiming relief in respect of the same transaction or series of transactions." To these observations I would add the comment that the rule may well authorize the joinder of separate causes of action accruing to various plaintiffs against different defendants, so long as the causes of action arise out of the same transaction or series of transactions. The consequence is that under par. (a) of the rule joinder of separate causes of action accruing to different plaintiffs is authorized when the relief claimed is in respect of, or arises out of, the same or a particular series of transactions. Joinder is not authorized when the relief claimed is in respect of, or arises out of, two or more different series of transactions, when the participation of each individual plaintiff is limited to participation in one series of transactions, the other plaintiffs not participating in that series.' 47 In Stroud v Lawson [1898] 2 QB 44, the plaintiff sued four defendants, three individuals and a company. Two causes of action were pleaded; first that the three individuals had by deceit induced the plaintiff to become a member of the company. Secondly, the plaintiff sued all four defendants, not in his personal capacity but on behalf of himself and all other shareholders in the company, seeking to have the payment of a dividend declared ultra vires as being paid out of capital, not profits, and claiming that the individual defendants should pay the money back to the company. Chitty LJ observed that in substance there were two plaintiffs claiming on two separate and distinct causes of action ([1898] 2 QB at 51, 52) even though the payment of the impugned dividend was one of the fraudulent devices which were said to have induced the plaintiff to become a shareholder. The distinctness of capacities is now addressed by O 6 r 1 but the reasoning is still relevant for present purposes. 48 As AL Smith LJ said ([1898] 2 QB at 50-51), according to the terms of the analogical predecessor of O 6 r 2 the plaintiff could not join the two causes of action which he put in different capacities unless they both arose out of the same transaction. His Lordship continued: 'The right to relief which he claims in a representative capacity in the second part of the statement of claim is quite independent of any fraud on the part of the defendants. The two causes of action and the nature of the relief claimed are wholly distinct and separate.' 49 For present purposes, the reasoning of Chitty LJ is also helpful. He said ([1898] 2 QB at 52 and Vaughan Williams LJ took the same approach at 55): 'The mere circumstance that he makes the declaration and payment of a dividend out of capital an element in the fraud alleged as the basis of the first-mentioned cause of action does not in my opinion shew that the two causes of action arise out of the same transaction. It seems to me that they arise out of different transactions, though they have that one feature in common.'


case_text: That said, it is now necessary to consider the construction and application of O 6 r 2. It provides two bases, each again discretionary ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411), for joinder. The second basis, in r 2(b), is emphatic of this discretion which falls to be considered having regard to the subject matter, scope and purpose of O 6 as whole and as part of the Federal Court Rules : The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49. The first basis, in r 2(a) involves considerations which have been the subject of over a century of judicial decisions. It requires not just the existence of a common question of fact or law in each proceeding which might be brought separately against two or more persons, but also that ' all rights to relief claimed' are in respect of or arise out of the same transaction or series of transactions (cf: Stroud v Lawson [1898] 2 QB 44 at 52).


case_outcome: approved

case_text: Unfortunately, these principles do not address the considerations relevant for the exercise of the discretion to join Ms Nader in the factual context of this application. It is necessary to understand the purpose of and interrelation between the various relevant rules in Order 6. This has been explained in some detail by the High Court in Richardson v Trautwein [1942] HCA 5 ; (1942) 65 CLR 585 at 590, 593-594, 598, 601-602, and Mahoney JA in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 at 44C-56D in considering analogues, not wholly identical, of Order 6 in Judicature system court rules. More recently Branson J, in Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127 at [14] - [18] followed Sheppard J in Trade Practices Commission v Westco Motors (Distributors) Pty Ltd (1981) 58 FLR 384 at 388. Her Honour observed that the extent to which causes of action against different persons legitimately may be prosecuted is governed by O 6 r 2 of the Federal Court Rules . The parties did not make submissions on this question or refer to Branson J's judgment or the authorities on which it was based at the hearing. When I found her Honour's judgment after judgment was reserved, accordingly, I asked for further submissions which the Bank, the first to fifth respondents in the Bank proceedings and Ms Nader provided on 19 April 2006.


case_outcome: discussed

case_title: Warner Music Australia Limited v Swiftel Communications Pty Limited [2005] FCA 1127


case_text: The claims arising in the ASS proceedings are, of course, distinct from those in the Bank proceedings. Each of the guarantors, in the Bank proceedings, has pleaded a set off the quantification of which requires a decision in the ASS proceedings. So, in this way, there is a common question of fact in the two proceedings as presently constituted, namely what is the quantum, if any, due by ASS to the Bank both under the facility agreement and in light of the determination of ASS's claim for damages (see e.g. Wood v Cross Television Centre Pty Ltd [1962] NSWR 528 at 532 per Walsh J).


case_outcome: cited

case_text: The degree of annexation test looks to the manner in which the object is attached to the land. If the object is attached to the land, other than by its own weight, there is a rebuttable presumption that it forms part of the land. The greater the degree of annexation, the stronger the presumption. If on the other hand, the object is attached only by its own weight, there is a rebuttable presumption that it is not part of the land, even if it has become embedded in the soil. In such a case the onus lies upon the person claiming that the object forms part of the land to prove that it was erected with the intention that it should become part of the land: Reid v Smith [1905] HCA 54 ; (1905) 3 CLR 656 at 668, 673-4, 675-6; Belgrave Nominees Pty Ltd & Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 at 950-1. The courts will infer the degree of annexation from the surrounding circumstances including the nature of the object and the nature of the interest held in the land by the owner of the object. The test is objective, namely, what a reasonable person would consider to be the reason for attaching the object to the land. 70 Further the proper formulation of the test is not whether damages are an adequate remedy but whether it is just in all the circumstances that the plaintiff should be confined to his remedy in damages. The courts have recognised there may be cases in which it is unjust to confine a plaintiff to its remedy in damages because of, for example, the difficulty in estimating damages and damages which cannot be taken into monetary account such as loss of goodwill and trade reputation: Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947 at 954-5, citing Evans Marshall & Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349.


case_text: Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]; Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 at [50] - [51] .


case_text: In EPM Concrete Pty Ltd v Building and Construction Industry Long Service Leave Payments Corp (1985) 23 IR 430 the definition of "building and construction work" in s 4 of the Building and Construction Industry Long Service Leave Payments Act 1974 (NSW) was considered. The definition relevantly included the carrying out of the construction of "structures, fixtures or works".


case_text: The Court also has power to make interlocutory orders under s 23 of the Federal Court of Australia Act 1976 (Cth): Davids Distribution Pty Ltd v National Union of Workers [1999] FCA 1108 ; (1999) 91 FCR 463 at 480-1.


case_text: Further the proper formulation of the test is not whether damages are an adequate remedy but whether it is just in all the circumstances that the plaintiff should be confined to his remedy in damages. The courts have recognised there may be cases in which it is unjust to confine a plaintiff to its remedy in damages because of, for example, the difficulty in estimating damages and damages which cannot be taken into monetary account such as loss of goodwill and trade reputation: Belgrave Nominees Pty Ltd v Barlin-Scott Airconditioning Pty Ltd [1984] VR 947 at 954-5, citing Evans Marshall & Co Ltd v Bertola SA and Sherry Imports Ltd [1973] 1 WLR 349.


case_text: Section 39(3) is in the same terms as s 80(4) of the Trade Practices Act 1974 (Cth). In ICI Australia Operations Pty Ltd v Trade Practices Commission [1991] FCA 527 ; (1992) 38 FCR 248 Lockhart J (with whom French J agreed) said at 256-7: Subsections (4) and (5) of s 80 are novel because they empower the court to grant injunctive relief notwithstanding that the defendant has not previously engaged in the prohibited conduct or does not intend to engage in it again or to continue to engage in it or there is no imminent danger of substantial damage. Yet these are the traditional requirements for equitable injunctive relief. . . . In my opinion subss (4) and (5) are designed to ensure that once the condition precedent to the exercise of injunctive relief has been satisfied (ie contraventions or proposed contraventions of Pts IV or V of the Act), the court should be given the widest possible injunctive powers, devoid of traditional constraints, though the power must be exercised judicially and sensibly. . . . This does not mean that the traditional equitable doctrines are irrelevant. For example, it must be relevant to consider questions of repetition of conduct or whether it has ever occurred before or whether imminent substantial damage is likely: but the absence of any one or more of these elements is not fatal to the grant of an injunction under s 80. That is the effect of subss (4) and (5) (subs (4) in relation to the prevention of conduct and subs (5) in relation to a mandatory injunction). Their presence is not an indication of a new statutory house, rather an old house with some modern extensions. Gummow J at 267 came to essentially the same conclusion. 61 Section 49(1) and (3) of the BCII Act empower the Court to grant injunctions (including interim injunctions) in relation to a person who has contravened a civil penalty provision. Subsection 49(6) defines an eligible person to make an application under s 49(1) and (3) to include a person affected by the contravention. The applicant is a person affected by the alleged contraventions. Section 38 is a civil penalty provision as defined in s 4. Thus, s 49(1) and s 49(3)(a) empower this Court on the present application, to make an interim injunction in relation to a person who has contravened s 38.


case_text: In John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2005) 144 IR 418 the defendant submitted that because the industrial action had stopped the plaintiff needed to show that there was a "strong probability" that the defendants' conduct would be the cause of serious damage, the threat of injury was immediate and substantial, and damages would not be a sufficient or adequate remedy if the damage did occur. In rejecting that submission and granting an interlocutory injunction, Le Miere J said at [77]: The degree of probability of future injury is not an absolute standard. What is to be aimed at is justice between the parties, having regard to all the relevant circumstances: Hooper v Rogers at 50 per Russell LJ followed by the Full Federal Court in Magic Menu Systems Pty Ltd v AFA Facilitation Pty Ltd at 269-270. Provided that there is a real risk of wrongful conduct which would cause injury which is more than trivial, there may be no good reason to refuse quia timet relief . . .


case_text: In Johns v R [1980] HCA 3 ; (1980) 143 CLR 108 Stephen J said at 121: "Probable" may bear a variety of meanings. As Lord Reid observed in delivering the judgement of the Board in The Wagon Mound (No. 2) (1967) 1 AC 617, at pp 634-635: "It is used with various shades of meaning. Sometimes it appears to mean more probable than not, sometimes it appears to include events likely but not very likely to occur, sometimes it has a still wider meaning and refers to events the chance of which is anything more than a bare possibility." 56 In R v Thomson [1997] 1 Qd R 623 Fitzgerald P said at 627-8: "probable" is another word of variable import which takes its meaning from the context in which it is used . . . In Johns v. R [1980] HCA 3 ; (1980) 143 CLR 108 , Stephen J seemed to accept at 121 that "probable" might sometimes be satisfied by "anything more than a bare possibility"; while, as will be seen below, sometimes the degree of probability required must be "overwhelming"; however, the more usual debate is whether "probable" requires more than a "real or substantial possibility" . . . . To complete the circle, just as the meaning of "likely" is sometimes expressed by reference to what is "probable", the meaning of "probable" is sometimes related to whether an event or consequence is "more likely than not" . . . Sometimes "probable" and "likely" are treated as synonymous; sometimes "probable" is regarded as a stronger word than "likely"; and sometimes "likely" is regarded as a stronger word than "probable". [references deleted]


case_text: Similarly in United Group Infrastructure the Court granted interim injunctions notwithstanding that the employees had returned to work. Nicholson J said at [44] that he was particularly influenced by the judgment in Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [22] [30] particularly at [22], [28] and [30]. 79 In Kestrel Coal Chesterman J said at [30]: This is not a case of idle threats. The defendants have in the past acted unlawfully in violation of the plaintiffs' rights. This factor makes the case different from those in which an injunction is sought because of conduct which is only apprehended. The principles applicable to quia timet injunctions are not entirely applicable. The fact that unlawful conduct has occurred makes the court more disposed towards ordering relief. See Dean and Chapter of Chester v Smelting Corporation Limited (1901) 85 LT 67 at 69 and Attorney-General v Beck [1980] 2 NSWLR 77 at 94 95. 80 This also is not a case of idle threats. The respondents have made good their threat to engage in a week of industrial action and, on 13 October, threatened further industrial action if the Demand is not met. Further, the respondents have shown a preparedness to engage in industrial action in contravention of the AIRC Order. In all the circumstances, and having regard to the main object of the BCII Act, it is just that the respondents should be restrained from engaging in further industrial action until the application can be heard or further order. I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate: Dated: 31 October 2008 Counsel for the Applicant: Mr J Blackburn Solicitor for the Applicant: Mallesons Counsel for the Respondents: No appearance Counsel for the Intervener: Mr S D Harben Solicitor for the Intervener: Clayton Utz Date of Hearing: 28 October 2008 Date of Judgment: 28 October 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1629.html


case_text: In Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 154 IR 228 Le Miere J, in circumstances similar to the present, granted an injunction under the BCII Act, notwithstanding that the workers had returned to work:


case_text: Section 49(3) confers power to grant an interim injunction without reaching a final decision that a contravention has occurred: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299 at [7], [8]; Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 306 at [52].


case_title: Leighton Contractors Pty Ltd v Construction, Forestry, Mining and Energy Union (2006) 149 IR 299


case_text: The impact on third parties, in this case Woodside, is a relevant consideration: Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (1998) 82 IR 87 at 99-100.


case_text: The degree of annexation test looks to the manner in which the object is attached to the land. If the object is attached to the land, other than by its own weight, there is a rebuttable presumption that it forms part of the land. The greater the degree of annexation, the stronger the presumption. If on the other hand, the object is attached only by its own weight, there is a rebuttable presumption that it is not part of the land, even if it has become embedded in the soil. In such a case the onus lies upon the person claiming that the object forms part of the land to prove that it was erected with the intention that it should become part of the land: Reid v Smith [1905] HCA 54 ; (1905) 3 CLR 656 at 668, 673-4, 675-6; Belgrave Nominees Pty Ltd & Ors v Barlin-Scott Airconditioning (Aust) Pty Ltd [1984] VR 947 at 950-1. The courts will infer the degree of annexation from the surrounding circumstances including the nature of the object and the nature of the interest held in the land by the owner of the object. The test is objective, namely, what a reasonable person would consider to be the reason for attaching the object to the land.


case_title: R v Thomson [1997] 1 Qd R 623

case_text: In R v Thomson [1997] 1 Qd R 623 Fitzgerald P said at 627-8: "probable" is another word of variable import which takes its meaning from the context in which it is used . . . In Johns v. R [1980] HCA 3 ; (1980) 143 CLR 108 , Stephen J seemed to accept at 121 that "probable" might sometimes be satisfied by "anything more than a bare possibility"; while, as will be seen below, sometimes the degree of probability required must be "overwhelming"; however, the more usual debate is whether "probable" requires more than a "real or substantial possibility" . . . . To complete the circle, just as the meaning of "likely" is sometimes expressed by reference to what is "probable", the meaning of "probable" is sometimes related to whether an event or consequence is "more likely than not" . . . Sometimes "probable" and "likely" are treated as synonymous; sometimes "probable" is regarded as a stronger word than "likely"; and sometimes "likely" is regarded as a stronger word than "probable". [references deleted]


case_text: Consideration of the main object is a relevant consideration to the construction and application of the provisions of the BCII Act: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]; Cahill v Construction Forestry Mining and Energy Union (No 2) [2008] FCA 1292 at [50] - [51] . 66 While the power to grant an interim injunction under s 49(3) should be exercised having regard to the principles applied by a court of equity, the main object of the BCII Act is also relevant consideration in applying its provisions: United Group Infrastructure Pty Ltd v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (2005) 148 IR 399 at [23]-[25]. 67 In my view, the applicant has a strong prima facie case and the balance of convenience is all one way. 68 The effect on the applicant if there is further industrial action will be significant. The estimated wasted costs alone exceed $600,000 a week. There are further potential consequences of industrial action such as damage to the applicant's reputation and loss of production. 78 Similarly in United Group Infrastructure the Court granted interim injunctions notwithstanding that the employees had returned to work. Nicholson J said at [44] that he was particularly influenced by the judgment in Kestrel Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2001] 1 Qd R 634 at [22] [30] particularly at [22], [28] and [30].


case_text: Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form. His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given. Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright & Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992), at 799 800). Considerations of convenience all pointed towards the section being intended to allow this.


case_title: Christie v Permewan, Wright & Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693


case_text: Honour was referred to Le v Minister for Immigration and Citizenship [2007] FCAFC 20 ; (2007) 157 FCR 321 , where the Full Court referred to s 494D at [24] [27], however, his Honour could not find anything in these paragraphs to the contrary of his Honour's construction suggested in [18] above.


case_text: was not disputed that the email was received by the firm at that address on 17 January 2008. Nor was it disputed that, if Mr Yat Tan had been properly appointed and was still acting as the appellant's authorised recipient under s 494D of the Act, the decision was deemed to have been duly received on that day by Mr Tan on behalf of the appellant pursuant to s 494D(2) (see also s 494B(5) , and SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199 , and Lee v Minister for Immigration & Citizenship (2007) 159 FCR 181).


case_title: McRae v Coulton (1986) 7 NSWLR 644

case_text: Honour could see no reason for construing s 494D as preventing the adoption by the Minister of a form of internet application which included provision for the notification of the name of an authorised recipient in the same form. His Honour rejected the submission that s 494D must be read as requiring a written signature from the visa applicant appointing the authorised recipient. He observed that it may often be administratively appropriate for a written and signed notice to be required by the Department, before being satisfied as to a due appointment. However, he could can find nothing in the terms or objects of s 494D which confined the Minister as to the manner in which he was to be satisfied that notice of an authorised recipient has been duly given. Nor could he find in s 494D any intention to exclude the normal presumption that Parliament intends to allow a person to act for the purposes of a statutory provision through an agent (cf. Christie v Permewan, Wright & Co Ltd [1904] HCA 35 ; (1904) 1 CLR 693 at 700, McRae v Coulton (1986) 7 NSWLR 644 at 663, and AB v LB (Mental Health Patient) [1980] 1 WLR 116 at 121, cited in Bennion FAR, Statutory Interpretation — A Code (2nd ed, Butterworths, 1992), at 799 800). Considerations of convenience all pointed towards the section being intended to allow this. There is no requirement in s 494D (or elsewhere) for the notice appointing the authorised recipient to be in any particular form; any notice in writing meeting the elements of subs 494D(1) will suffice. There is no requirement for the notice under subs 494D(1) to be signed at all but even if there was a requirement that it be signed by the appellant, there would still be room for application of the presumption that the appellant could meet that requirement through an agent: McRae at 663D. In addition, there are a number of factual findings in the way of the appellant succeeding on this ground. His Honour found that the interactive form was completed by someone (unknown) at Tan & Tan with the full authority of the appellant: [17] and [40] of his reasons. His Honour also found that it was not a matter of concern for the appellant to know which person within the firm he dealt with or who within the firm was registered as a migration agent: [19] and [20] of his reasons. His Honour also found that the contract between the appellant and the firm envisaged it making electronic visa applications on his behalf and sending/receiving on his behalf communications with the Department: [22] of his reasons; and finally his Honour's rejection of the appellant's submissions that Mr Yat Tan (a registered migration agent) had not appropriately supervised and taken responsibility for his matter: his Honour's reasons at [27] and [28]. Ground 2 The learned Federal Magistrate made an error of law in failing to find that after Mr Yat Tan's name was stated in the electronic application lodged at the beginning Mr Yat Tan abandoned his role as migration agent where there was no evidence at all of this role in the furthering of the visa application from any of the records or the appellant's affidavit evidence before the Court. His Honour thus wrongly failed to hold that DIAC was on constructive notice that Mr Yat Tan was not the migration agent or the authorised recipient acting for the appellant. This ground seeks to re-agitate his Honour's findings under ground 4 below. It is not suggested that his Honour's findings at [48] and [49] of his reasons were not open on the evidence before him. That being so, his Honour's conclusion at [50] his refusal to accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate's decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt that currency of the appointment of the notified authorised recipient should not be disturbed. Ground 3 The learned Federal Magistrate made an error of law in misconstruing s 280 in relation to the difference between the right of a migration agent and a legal practitioner who is not a migration agent. His Honour erred by (i) referring to legal services in [49] where there was only migration services performed and no legal services performed (ii) failed to understand that there can not be a contract of engagement for migration network between an applicant and an entity as only a person can be a migration agent and an entity can not be licensed as migration agent. This misunderstanding led to his Honour to find that Mr Yat Tan did not fail to perform his duties as a migration agent. This ground has no foundation. His Honour did not misconstrue s 280 of the Act in the ways contended; rather, the appellant and his legal representatives have totally misconstrued his Honour's reasoning. His Honour showed no error as to his understanding of the role of a registered migration agent. Moreover, on his Honour's findings of fact: (a) the authorised recipient in this case, Mr Yat Tan, was a registered migration agent (although there is no requirement in the Act that an 'authorised recipient' must be a registered migration agent); (b) his Honour was not satisfied that Mr Yat Tan 'did not take responsibility under the Migration Act and within the firm of Tan & Tan for [the appellant's] migration work' [27] and [56]; (c) nor was his Honour satisfied that Mr Yat Tan was 'in any way derelict in his responsibilities as a registered migration agent under the relevant provisions of the Migration Act , in particular s.280(1) ' [28]; or that he was deficient in his 'supervision and responsibility' [29]. (Emphasis added) His Honour was not denying the role of a 'registered migration agent'. To the extent that he referred to the agreement between the appellant and the firm, his Honour was doing so only to examine whether the authority given by the appellant to partners and employees of Tan & Tan was wide enough to give the notice of the kind contemplated by subs 494D(1). He was not suggesting that 'the firm', as opposed to Mr Yat Tan, had the responsibilities of a registered migration agent. Ground 4 The learned Federal Magistrate made an error of law by finding at [63] that he is not satisfied on the evidence before him that Tan & Tan did fail to communicate the delegate's decision speedily, and in the manner that they claim in their correspondence with Mr Jalagam. This ground also has no foundation. The finding complained of was one of fact, well open to his Honour and no appellable error is shown.


case_text: Honour observed that the authorities subsequent to SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration & Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures. Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan & Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.


case_text: Honour observed that the authorities subsequent to SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration & Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures. Another difficulty was his Honour's acceptance of the submission of the Minister's counsel, that if he accepted all the evidence led by the appellant, it would support, at most, a conclusion only that there was a failure by Tan & Tan speedily to convey the delegate's decision to the applicant. At most, in his Honour's opinion, the appellant's evidence might support a finding of negligence in communicating with a client of the firm on a significant matter. However, on the above authorities this was not enough (reference was made to SZFDE at [53]). The appellant filed a notice of appeal on 13 October 2008 raising three grounds but in that notice foreshadowed the filing of an amended notice of appeal when the written reasons for judgment below became available. An amended notice of appeal raising six grounds was filed under cover of a supplementary notice on 23 October 2008. The appellant relies on the six grounds in the amended notice of appeal and the respondent took no objection to that course on the understanding that it was not to be taken as, or seen to be, consent to the appellant reformulating any allegation of fraud. The appellant also read an affidavit sworn 8 December 2008, without objection on the part of the respondent, which had been filed on 11 December 2008 annexing the transcript of the proceedings in the Federal Magistrates Court. Ground 1 The learned Federal Magistrate erred by misconstruing s 494D of the Act. This ground seeks to challenge his Honour's findings (under ground 1 below) that s 494D does not require that a signature from the appellant be part of the notice to the Minister envisaged by that section. His Honour's findings in this regard are set out at [40] and [41] of his reasons and summarised in [17] and [18] above. Plainly, SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan & Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement. That finding was open to his Honour and no appellable error is shown. It attracts what was said in SZFDE at [53] as to there being no jurisdictional error in mere bad or negligent advice or other mishap. In any event, the appellant has not shown the combination of elements required to make out jurisdictional error of the kind discussed in SZFDE and the other cases to which reference was made. No appellable error by his Honour or jurisdictional error by the Tribunal is established. The appeal must be dismissed, with costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 6 March 2009 Solicitor for the Appellant: Silva Solicitors Counsel for the First Respondent: Mr G Johnson Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 12 February 2009 Date of Judgment: 6 March 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/197.html


case_text: SZFDE required not only that there be fraud in the sense of dishonesty, but also that there be a causative connection between that and the Tribunal being 'disabled ... from the true discharge of its imperative statutory functions with respect to the conduct of the review': SZFDE at [51]; such that its decision was, in law, no decision at all: ( SZLIX at [18]; also [20]). If the appellant would in any event have been out of time, any dishonesty (assuming, contrary to his Honour's finding, that there was some dishonesty by anyone at Tan & Tan) would not have made any difference. There would be no link between the suggested 'fraud' and the Tribunal's decision-making process: SZFNX v Minister for Immigration & Citizenship [2007] FCA 1980 at [32] and [34] also speaks of this requirement.


case_title: SZFOH v Minister for Immigration & Citizenship (2007) 159 FCR 199


case_text: Honour observed that the authorities subsequent to SZFDE v Minister for Immigration & Citizenship [2007] HCA 35 ; (2007) 232 CLR 189 , for example, Minister for Immigration & Citizenship v SZLIX (2008) 245 ALR 501, SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170 and SZHVM v Minister for Immigration & Citizenship (2008) 170 FCR 211, emphasised the need for a careful formulation of allegations of fraud coming within the principles referred to by the High Court, as well as careful attention to the necessary causal relationships between the suggested fraud and the suggested inconsistency with statutory procedures.


case_title: SZLHP v Minister for Immigration & Citizenship (2008) 172 FCR 170


case_text: was his Honour persuaded that anything in the High Court's decision in WACB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] HCA 50 ; (2004) 210 ALR 190 required him to construe s 494D as being confined in the manner of a notification as was submitted. His Honour therefore agreed with the Tribunal's conclusion that there was an expiry of the time limit on an appeal to the Tribunal, which commenced from the date when Mr Yat Tan received the delegate's decision. Ground 4 of the further amended application made a similar argument, but by reference to events subsequent to the lodging of the visa application and appointment of Mr Yat Tan as authorised recipient. It contended: The Tribunal made jurisdictional error in that it should have held that the notification of the decision was defective as it was not sent to the correct authorised recipient. DIAC was on constructive notice that Mr. Yat Tan was not the migration agent or the authorised recipient acting for the applicant. His Honour did not accept that at any time between the lodging of the visa application with its notice of authorised recipient, and the emailing of the delegate's decision to Mr Yat Tan, there was anything which occurred which could or should have caused the Department of Immigration to doubt the currency of the appointment of the notified authorised recipient. His Honour could not find anything in the correspondence which, as a matter of law, deprived that appointment of its effect for the purposes of s 494D. His Honour, therefore, did not accept this ground, or its arguments, as a basis for finding that the Tribunal had jurisdiction in the matter. Ground 5 contended: The Tribunal's decision was affected by fraud on the Tribunal, on DIAC and the applicant because Yat Tan was not the migration agent acting for the client and as such in reality was not the authorised recipient but Tat [sic] & Tan and Yat Tan still gave the deceptive and fraudulent impression to DIAC that he was the migration agent for the applicant. In fact the work was carried out by other people under his name for benefit of Tan & Tan. A non-migration agent was not supposed to represent the applicant with the DIAC. The fraudulent conduct which was alleged was described in the appellant's written submissions: The applicant was misled as to who his migration agent was. The correspondence from Tan & Tan was carried out by people other than Yat Tan who should have acted for the applicant. Communication to the applicant was also carried out by people other than Yat Tan. There appears to be fraudulent effort by staff at Tan & Tan to give the impression that Yat Tan was to be and indeed was the migration agent. [Alt]hough the applicant believed that he was represented by a licensed and qualified migration agent that was not the case in reality.


case_text: authorities dealing with that provision establish that the intention of the provision is to place State courts exercising federal jurisdiction on the same general footing as the federal courts that could be created by Parliament. The leading authorities are Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367 and Australian Securities and Investments Commission v Edensor Nominees Pty Limited [2001] HCA 1 ; (2001) 204 CLR 559.


case_title: Felton v Mulligan [1971] HCA 39 ; (1971) 124 CLR 367


case_text: In Gallo v Dawson [1990] HCA 30 ; (1990) 93 ALR 479 at 480, McHugh J, citing Hughes v National Trustees Executors & Agency Co of Australia Ltd [1978] VR 257 at 262 observed that the discretion to extend time for an appeal was for 'the sole purpose of enabling the court [or a judge] to do justice between the parties' and stated, in that context, it is always necessary to consider the prospects of success. In that case, his Honour decided that the proposed appeal in the matter before him had no prospect of success with the consequence that leave to appeal out of time was refused. 5 The grounds of appeal in the draft notice of appeal were expressed as follows: "GROUNDS: 1. The Court has not allow the applicant an adjournment to obtain further evidence required. 2. The Court has ignored in principal the affidavit sworn by the applicant. 3. The appeal is of public importance. ORDERS SOUGHT: 1. To allow this appeal to go ahead. 2. Compensation for loss 3. Costs. 4. And any other remedy the Court will allow."


case_text: The appellant submits that the above conclusion is partly derived from information contained in the statement accompanying the appellant's application for a protection visa relating to the political activities of the appellant's family. The appellant's application for a protection visa was not provided to the Tribunal by the applicant and accordingly, s 424A(1) applied to that statement: Minister for Immigration and Multicultural Affairs v Al Shamry [2001] FCA 919 ; (2001) 110 FCR 27 . 14 The respondent submits that the reasons for decision suggest that the appellant provided this information to the Tribunal. The respondent points in particular to the Tribunal's comments that: 'At the hearing before me the Applicant repeated that all his family had been involved in the PPP.' 15 The respondent also refers to the following paragraph: 'The Applicant said that as a member of the students' union and the PPP he had been engaged in welfare work, helping poor people and poor students with books and money. He said that he had campaigned for the PPP in the general election which the PPP had won (in 1993, although the Applicant could not remember the year) and in the general election in 1997 which the PPP lost to the PML. He said that his local MNA had been from the PPP between 1993 and 1996 but that at the election in 1997 the PML candidate had been elected. The Applicant said that he himself had stood in the election for local bodies in the late 19990s, which he said had been held on a non-party basis. He said, however, that he had not been elected because the PML was in power.'


case_outcome: considered

case_text: The appellant submits that the Tribunal erred in failing to consider that elections were to be held in October 2002 in which the PML might have been successful, in which case the appellant may have faced a real chance of future persecution. The appellant submits that the word 'suggest' in Tribunal's statement that ' the Applicant did not leave Pakistan until the late 1990s, which does not suggest that he was being persecuted by reason of his involvement in the intervening period ' is indicative of a tentative finding by the Tribunal. The appellant relies upon a passage in Minister for Immigration and Multicultural Affairs v Rajalingam and Ors [1999] FCA 719 ; (1999) 93 FCR 220 at [55] - [56] in which Sackville J states: 'It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event had not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution ... If, on the other hand, it appears that the RRT had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong.' [original emphasis] 33 The appellant says that since the Tribunal observed that the PML had been ousted in a coup in 1999 in determining that there was no real chance that the appellant would be persecuted if he were to return to Pakistan now or in the reasonably foreseeable future, it was obliged to consider the possible changed circumstances following the election. 35 I do not consider that the word ' suggest ', in its context, shows that the Tribunal was ambivalent in its conclusion that the appellant had been persecuted between 1997 and the time when he left Pakistan by reason of his involvement in the PPP. I am satisfied that its finding was not attended by any significant doubt. Accordingly, I reject the submission of the appellant that the Tribunal should have adopted the approach referred to in Rajalingam . 40 With respect to the second ground (the Rajalingam argument), I am not satisfied that leave should be granted. The law relating to this ground was not uncertain at the time of the hearing before the Federal Magistrates Court, and the appellant was represented at that hearing. This point should have been taken before the Federal Magistrates Court if the appellant wished to challenge the Tribunal's finding on this ground. Further, for the reasons expressed above, I do not consider there is any merit in this ground of appeal. Accordingly, I refuse leave to rely upon the second ground in the amended notice of appeal. 41 It follows from the above that the appellant succeeds on the first ground of the amended notice of appeal. Accordingly I will remit the matter to the Tribunal for reconsideration, and award costs to the appellant in these proceedings. I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy. Associate: Dated: 21 July 2006 Counsel for the Applicant: B Zipser Counsel for the Respondent: J Mitchell Solicitor for the Respondent: Clayton Utz Date of Hearing: 10 July 2006 Date of Judgment: 21 July 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/927.html


case_text: The respondent says that the appellant did not argue before the Tribunal that the result of the election might lead to a greater risk of persecution in the future and that it would be an unreasonable standard to require the Tribunal to consider this claim in the absence of argument. The respondent refers to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [58] - [63] which sets out the extent of the obligation upon a Tribunal to consider unarticulated claims. At [58] the Court observed that: 'It has been suggested that the unarticulated claim must be raised "squarely" on the material available to the tribunal before it has a statutory duty to consider it: SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 129 FCR 137; 199 ALR 265; [2003] FCAFC 120 at [19] per Cooper J. The use of the adverb "squarely" does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the tribunal when it is apparent on the face of the material before the tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the tribunal.' The respondent says that the significance of the forthcoming election was not raised squarely as an issue by the material before the Tribunal.


case_outcome: distinguished

case_text: This raises the question whether, in these circumstances, the appellant was required to prove conclusively, by tendering the transcript, that he did not provide information orally to the Tribunal from which it could have gleaned his approximate departure date. The respondent says that, in the absence of a transcript, the Court cannot conclude that such information was not provided by the appellant to the Tribunal at the hearing. The respondent says that the onus lies upon the appellant to provide the transcript as proof that the information was not provided to the Tribunal orally, and in the absence of the transcript, it is not open to the Court to infer that the information was not provided: see NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241 at [21] per Beaumont, Merkel and Hely JJ. 26 The Full Court in NAOA was dealing with a claim of procedural unfairness, based upon the fact that certain matters had not been put to the appellant at the Tribunal hearing. The Full Court observed at [21]: 'For one thing, as the respondent submitted, the appellant's case is premised upon an assumption (that was also made by the learned Magistrate, albeit on a tentative basis), namely, that the Tribunal had not raised the issue of the authenticity of certain documents with the appellant at the hearing. However, his Honour did not make a finding in relation to this matter. Driver FM observed that this "appeared" to be the case "from the record of the [Tribunal] decision". On the evidence before his Honour, it was not open to him to have made a finding that this issue had not been canvassed. His Honour had no transcript. (As mentioned, the tape is before us and we refer to it below.) The appellant had not given any evidence (in affidavit form or orally) to the effect that this issue had not been raised. There was simply no basis upon which his Honour could properly have made this finding. His reasons should not be read as if he did so. In the absence of evidence about what occurred at the hearing, the appellant has no sufficient evidential basis for the grounds he seeks to raise, thus he has not, in our opinion, established that the Tribunal did not comply with the rules of natural justice.' 27 The situation in the present case is different from the position in NAOA . In NAOA , the Court found that there was no evidence which indicated whether the matter had been raised with the appellant by the Tribunal. In the present case, however, the Tribunal's reasons for decision clearly record that the appellant was questioned with respect to his departure date but was unable to provide that information to the Tribunal orally. The reasons specifically refer to information contained in the application form. The Tribunal's reasons themselves are evidence which suggests that the Tribunal did not receive the evidence orally from the appellant, but instead relied upon a document to which obligations under s 424A(1) and (2) applied. 28 I consider that the appellant was entitled to rely upon the reasons as evidence that the information had not been provided under s 424A(3)(b). The reasons directly touched upon the subject under dispute. If the transcript indicated a different position, then it was open to the respondent to tender it. However, in the absence of the transcript, the reasons of the Tribunal themselves provide, in my opinion, sufficient evidence for me to arrive at a conclusion that the information had not been provided to the Tribunal by the appellant as contemplated by s 424A(3)(b). 29 This is not to say that in all, or even most cases, it will be sufficient for the appellant to rely upon the reasons for the Tribunal alone. It is not the obligation of the Tribunal to refer in its reasons to the source of each part of the information upon which it relies. The present appeal is a rare case in which the Tribunal has specifically referred in its reasons to the very source of the information under consideration. Where the Court is unable directly to draw a conclusion from a Tribunal's reasons as to the source of the Tribunal's information, it is ultimately the responsibility of an appellant to ensure the transcript is provided if he or she wishes to argue that the information could only have been sourced from documents to which obligations under s 424A(1) and (2) applied. 30 Nonetheless, the Tribunal's reasons for decision themselves should not be ignored as evidence of the source of the Tribunal's information. The Full Court in NAOA , in noting that the appellant had not provided oral or affidavit evidence on the issue, explicitly recognised that there were forms of evidence other than the transcript which might enable a conclusion to be drawn about the oral evidence given at the Tribunal hearing. Since it may not always be clear when a conclusion can be reached upon the reasons alone, I consider it would be prudent to tender the transcript in all cases where a breach of s 424A is relied upon, or to incorporate the transcript into the appeal book where such a ground is raised.


case_text: The appellant acknowledges that he was represented by Counsel in the hearing before the Federal Magistrates Court, and that the points now sought to be raised by the amended notice of appeal were not raised before that Court. However, the appellant argues that the effect of s 424A of the Migration Act was uncertain at the time of the hearing before the Federal Magistrates Court. The appellant says when the Federal Magistrates Court hearing took place, no decision of the Federal Court had been given which upheld a challenge under s 424A based upon the combined effects of the decision in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and the decision in Al-Shamry . Further, the appellant says that leave was granted in a similar situation in each of the five appeals under consideration in SZEEU. 37 Counsel for the respondent says that the law was not uncertain at the time of the hearing before the Federal Magistrates Court. Al-Shamry was handed down in July 2001 and SAAP was handed down in May 2005, well before the hearing in the Federal Magistrates Court in August 2005. He submits that the Court is limited under s 24 of the Federal Court of Australia Act 1976 (Cth) to hear appeals on the ground of errors in a judgment of the Federal Magistrates Court.


case_text: In this case, however, the reasons themselves directly point to the conclusion that the Tribunal relied upon information from the application form, in circumstances where that information had not been provided by the appellant orally at the hearing. The Tribunal did not provide this information to the appellant in writing as required by s 424A(2)(a) and s 441A of the Migration Act . It follows that, in accordance with the decision in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 , the Tribunal did not comply with the requirements of s 424A. 36 The appellant acknowledges that he was represented by Counsel in the hearing before the Federal Magistrates Court, and that the points now sought to be raised by the amended notice of appeal were not raised before that Court. However, the appellant argues that the effect of s 424A of the Migration Act was uncertain at the time of the hearing before the Federal Magistrates Court. The appellant says when the Federal Magistrates Court hearing took place, no decision of the Federal Court had been given which upheld a challenge under s 424A based upon the combined effects of the decision in SAAP and Anor v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 215 ALR 162 and the decision in Al-Shamry . Further, the appellant says that leave was granted in a similar situation in each of the five appeals under consideration in SZEEU. 38 I am satisfied that the law relating to s 424A of the Migration Act had not been settled when the hearing in the Federal Magistrates Court took place. Since the hearing, the law has been clarified by the decision in SZEEU . The first issue relied upon by the appellant in the amended notice of appeal relies specifically upon the law as decided in SZEEU . I accept there would be some prejudice to the respondent by reason of the continuation of the proceedings if leave were granted. However if leave were not granted, the prejudice to the appellant, who would face removal to Pakistan without having had his application for asylum determined according to correct legal principles, would be greater. 39 For the reasons given above, I consider that one aspect of the appellant's claim under s 424A would succeed if leave were granted. Accordingly, I consider that leave with respect to the first ground of appeal in the amended notice of appeal should be granted.


case_text: The first respondent submitted that no grounds of appeal had been made out and that the appeal should be dismissed with costs. In an outline of submissions filed on 2 December 2005, the first respondent submitted that it was open to Riethmuller FM to refuse the appellant's application for an adjournment of the hearing in the Federal Magistrates Court for the reasons given by his Honour. I agree. Riethmuller FM was entitled to take the view that the most appropriate order in the interests of justice, bearing in mind the matters relied on by the appellant, the previous history of the proceedings, and the needs of other litigants and the Court, was to decline to adjourn the hearing: see SZBFL v Refugee Review Tribunal [2005] FCA 869 at [8] - [10] ; Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801 at [5] ; and NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17 at [22] - [26] . As to the substantive contentions which the appellant advanced in his written contentions, Riethmuller FM was also entitled to find that there had been no failure by the Tribunal to take relevant facts into consideration, and that the Tribunal had not erred by taking irrelevant facts into consideration. Further, his Honour was entitled to find that there was nothing to support the contentions that the decision was made in bad faith or that the Tribunal's decision was unreasonable: see Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 at [11] - [13] , [16]-[19].


case_title: Applicant MZQAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1801


case_title: NALM v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 17


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73


case_text: As his Honour pointed out, the Tribunal was required to determine whether the appellant had a well-founded fear of persecution for a Convention reason, based upon the appellant's particular claims. It was not required to make a determination based on the overall economic and social situation of the lower level castes in India in general: see Applicant NABD of 2002 v Minister for Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29 at [158] - [160] . On the evidence before it, the Tribunal was not satisfied that the appellant belonged to the scheduled tribe. More particularly, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason. Both these findings were open to the Tribunal: see NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287 at [5] ; and NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208 at [4] - [5] .


case_title: NAVX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 287


case_title: NAST v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 208


case_text: The power to award costs is conferred by s 43 of the Federal Court of Australia Act 1976 (Cth). The principles which govern the award of costs are well settled. It is open to the Court to make an order for indemnity costs where some special or unusual feature in the case justifies a departure from the ordinary practice: Colgate-Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225 per Sheppard J. Such circumstances include where a party is aware, having been appropriately advised, that it has little or no chance of success but nonetheless persists with its claim. This is subsumed under what his Honour described (at 233) as the commencement or continuation of proceedings "in wilful disregard of known facts or clearly established law". 4 The Bank submits that in this case the applicants were informed well before they commenced this proceeding that any claim they had against it in respect of the investments the subject of the proceeding was misconceived by reason of the fact that they had previously provided the Bank with a Deed of Release dated 25 March 2002 in respect of those investments. The Bank points out that in June 2003 it sent a letter to the applicants' former solicitors enclosing a copy of the Deed of Release executed by the applicants. The letter stated, in substance, that the applicants had released the Bank from any claims, and thus their claim for compensation was misconceived. 5 Notwithstanding this letter, and the information regarding the Deed of Release, the applicants elected to commence proceedings against the Bank in August 2004. Once the proceedings were commenced, the Bank again raised the Deed of Release, this time in the context of seeking security for costs. In October 2004 the Bank's solicitors wrote to the applicants' former solicitors reiterating that the applicants' claim against the Bank was hopeless as the applicants had executed a Deed of Release in 2002. 6 The Bank expressly pleaded the Deed of Release in its defence filed on 1 November 2004. There was then a period during which the matter was dealt with in the Federal Magistrates Court before it was transferred to this Court. In January 2007 the Bank filed a motion seeking summary dismissal on the basis that the latest of a number of statements of claim, as filed, still disclosed no cause of action. It was that motion that, ultimately, succeeded when I indicated, at the close of argument, on 18 October 2007, that I would order that the claim against the Bank be dismissed because the Deed of Release provided a complete defence. I published my reasons for judgment several weeks later. 7 The Bank submits that this is not a case where fine judgment needed to be exercised as to whether the evidence available in support of the applicants' claim warranted the institution of proceedings. It submits that, in wilful disregard of the Deed of Release, the applicants issued this proceeding and pursued it for over three years. During that time the case was listed for the hearing of various applications and directions on a number of occasions. The Bank argues that it actively attempted, throughout, to dissuade the applicants from pursuing their misconceived claim. It adds that it repeatedly pointed out the many procedural failings, on the part of the applicants, which made this proceeding almost unmanageable. 19 In Colgate-Palmolive Sheppard J alluded briefly (at 233) to the distinction between indemnity costs and solicitor and own client costs. In Thors v Weekes (1989) 92 ALR 131 Gummow J, while a member of this Court, stated (at 152): "The general power of the court to award costs under s 43 of the Federal Court of Australia Act permits the court in an appropriate case to order that costs be paid on a "solicitor and client" basis: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177; 71 ALR 287. This power will not, as that case illustrates, be exercised in every case where fraud is alleged and not proved; usually some further factor must be present such as dishonesty or the irrelevance of the allegations to the issues between the parties. No doubt in an appropriate case costs may even be awarded on an indemnity basis: Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354."


case_text: I should say something briefly about the Bank's submission that this Court can order either indemnity costs or solicitor and own client costs as alternatives to party and party costs. The distinction between indemnity costs and solicitor and own client costs has been recognised in England for many years. See EMI Records Ltd v Ian Cameron Wallace Ltd [1983] 1 Ch 59 at 64 65 per Megarry VC where his Lordship referred to a number of relevant authorities including, in particular, Giles v Randall [1915] 1 KB 290.


case_title: Giles v Randall [1915] 1 KB 290


case_title: Thors v Weekes (1989) 92 ALR 131

case_text: In Colgate-Palmolive Sheppard J alluded briefly (at 233) to the distinction between indemnity costs and solicitor and own client costs. In Thors v Weekes (1989) 92 ALR 131 Gummow J, while a member of this Court, stated (at 152): "The general power of the court to award costs under s 43 of the Federal Court of Australia Act permits the court in an appropriate case to order that costs be paid on a "solicitor and client" basis: Australian Transport Insurance Pty Ltd v Graeme Phillips Road Transport Insurance Pty Ltd (1986) 10 FCR 177; 71 ALR 287. This power will not, as that case illustrates, be exercised in every case where fraud is alleged and not proved; usually some further factor must be present such as dishonesty or the irrelevance of the allegations to the issues between the parties. No doubt in an appropriate case costs may even be awarded on an indemnity basis: Degman Pty Ltd (in liq) v Wright (No 2) [1983] 2 NSWLR 354."


case_text: In Amadio Pty Ltd v Henderson (1998) 81 FCR 149, an appeal from Heerey J, the Full Court noted that his Honour had ordered certain respondents to pay costs on an indemnity basis, and others to pay costs on a solicitor and own client basis only. The Full Court assumed, without discussion, that both types of costs orders were available in this Court. 21 In G E Dal Pont, Law of Costs (Butterworths, 2003) the learned author notes that there is conflicting authority in Australia as to whether indemnity costs differ from solicitor and own client costs. He observes that New South Wales, the Northern Territory, and Queensland have specifically removed any power there may once have been to order costs on a solicitor and own client basis, retaining only the power to order costs on either a party and party or an indemnity basis. However, the question whether solicitor and own client costs can be ordered as an alternative to indemnity costs remains live in all other jurisdictions.


case_text: In this Court, some judges have spoken of indemnity costs and solicitor and own client costs interchangeably: see, for example, Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397 per Woodward J at 400 401 and connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348 per Emmett J at 360 361.


case_title: connect.com.au Pty Ltd v GoConnect Australia Pty Ltd (2000) 178 ALR 348


case_text: there appear to be differences between the Australian and English approaches to the doctrines of unreasonableness, certain observations of Diplock LJ in Mixnam's Properties Ltd v Chertsey Urban District Council [1964] 1 QB 214 at 237-238 have been referred to in the authorities in this country and are of assistance: "The various special grounds upon which subordinate legislation has sometimes been said to be void—for example, because it is unreasonable; because it is uncertain; because it is repugnant to the general law or to some other statute—can, I think, today be properly regarded as being particular applications of the general rule that subordinate legislation, to be valid, must be shown to be within the powers conferred by the statute. Thus, the kind of unreasonableness which invalidates a by-law is not the antonym of 'reasonableness' in the sense of which that expression is used in the common law, but such manifest arbitrariness, injustice or partiality that a court would say: 'Parliament never intended to give authority to make such rules; they are unreasonable and ultra vires'." (Citation omitted.) On appeal, these observations were apparently approved: Chertsey Urban District Council v Mixnam's Properties Ltd [1965] AC 735.


case_text: Clements v Bull [1953] HCA 61 ; (1953) 88 CLR 572 , a regulation made under the Melbourne Harbour Trust Act 1928 (Vic) was challenged, and one of the matters discussed by the High Court was the doctrine of unreasonableness. Williams ACJ and Kitto J made the point that a regulation may produce unreasonable results in certain circumstances and yet still be valid, providing it is really legislation for the purposes authorised. Their Honours also made the point that to say delegated legislation is invalid on the ground that no reasonable mind could justify it by reference to the purposes of the power is only another way of stating the conclusion that there is no real connection with the purposes of the power.


case_text: summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169. Before leaving this brief review of the cases, I refer to the illuminating discussions of the relevant principles in De Silva v Minister for Immigration and Multicultural Affairs and Vanstone v Clark [2005] FCAFC 189 ; (2005) 147 FCR 299 at 331-343 [99] - [160] per Weinberg J. See also Pearce D and Argument S, Delegated Legislation in Australia (3 rd ed, LexisNexis Butterworths, 2005) at 253-267 [21.1]-[21.19]; Aronson M, Dyer B and Groves M, Judicial Review of Administrative Action (4 th ed, Lawbook Co, 2009) at 378.


case_text: summary, delegated legislation may be held invalid because it is an unreasonable exercise of the empowering provision or because the delegated legislation is not reasonably proportionate to the purposes of the empowering provision. There is considerable overlap between the two grounds of review (see De Silva v Minister for Immigration and Multicultural Affairs (1998) 89 FCR 502 at 510) (" De Silva v Minister for Immigration and Multicultural Affairs "). As the Court does not have authority to conduct merits review, the test in the case of each ground of review is a very demanding one and, in the final analysis, involves a question of whether the delegated legislation represents a real exercise of the power in the empowering section. Cases in which delegated legislation has been held invalid on either ground of review are rare. Examples of cases in which regulations under the Act have been held invalid on the unreasonableness ground are Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77 and Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219. Examples of cases in which delegated legislation has been held invalid on the reasonable proportionality ground of review are Re Gold Coast City Council By-laws [1994] 1 Qd R 130 , Paradise Projects Pty Ltd v Gold Coast City Council [1994] 1 Qd R 314 , Re Gold Coast City (Touting and Distribution of Printed Matter) Law 1994 (1995) 86 LGREA 288 and House v Forestry Tasmania [1995] TASSC 95 ; (1995) 5 Tas R 169.


case_title: Kruse v Johnson [1898] 2 QB 91

case_text: Widgee Shire Council v Bonney [1907] HCA 11 ; (1907) 4 CLR 977 , a local government by-law was challenged on the ground, among others, that it was unreasonable. The challenge was rejected by the High Court. Griffith CJ referred (at 982) to the English decisions of Slattery v Naylor (1888) 13 App Cas 446 (" Slattery v Naylor ") and Kruse v Johnson [1898] 2 QB 91 and formulated (at 983) the test of unreasonableness for delegated legislation in terms of "no reasonable man, exercising in good faith the powers conferred by the Statute, could under any circumstances pass such a by-law". Isaacs J referred with approval (at 986) to two statements in the advice of the Privy Council in Slattery v Naylor (at 452-453), namely, a by-law may be struck down as unreasonable where it is "a merely fantastic and capricious bye-law, such as reasonable men could not make in good faith" and a by-law will not "be treated as unreasonable merely because it does not contain qualifications which commend themselves to the minds of judges".


case_title: Li v Minister for Immigration and Multicultural Affairs [1999] FCA 1147 ; (1999) 94 FCR 219


case_title: Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 377 ; (2000) 98 FCR 77