case_text: party had an opportunity to put submissions to the Court in respect of the applications. Leave to appeal from interlocutory decision An appeal from an interlocutory judgment of a Federal Magistrate is not competent unless the Federal Court or a Judge of this Court gives leave to appeal: s 24(1A) of the Federal Court of Australia Act 1976 (Cth). It is not in dispute in this case that decision to refuse to adjourn a hearing is an interlocutory decision ( Aon v Australian National University [2009] HCA 27 at [150] ). Principles applicable to the issue of leave to appeal in this jurisdiction are well-settled. The key questions in determining such an application are whether the judgment was attended by sufficient doubt to warrant it being reconsidered, and whether substantial injustice would result if leave were refused: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 399 , Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539. In this case I am satisfied that leave to appeal from the decisions of his Honour should be granted. In my view his Honour's decisions are attended by sufficient doubt to warrant them being reconsidered, for the following reasons: The decision of his Honour to refuse to adjourn the trial was made without hearing submissions from the parties in support of the adjournment. While case management issues in the Court are of clear importance in managing the Court's workload, it is contrary to natural justice to make such an order without hearing the submissions of the parties in relation to the order. Neither applicant nor respondent are ready for trial. In my view the explanation for the delay in compliance with previous orders is reasonable namely that the parties were in lengthy settlement negotiations which have only recently proved unsuccessful. It is clear that the applicant had endeavoured to communicate with his Honour's chambers several days before the hearing and inform his Honour of the intention to file applications to vacate the proceedings, and that such applications were indeed filed several days before the substantive trial was listed to commence. While the applications were made late in the litigation only several days before the hearing in my view the conduct of the parties is not such that their wishes for the matter to be adjourned should be disregarded without allowing them to be heard. The application to adjourn the hearing was with the consent of both parties. This was a significant matter which his Honour should have but clearly did not take into account. I consider that the principles recently articulated in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27 are inapplicable in this case. In Aon the plaintiff sought an adjournment of a hearing three days into a four week trial in order to make significant amendments to its statement of claim. The judge at first instance granted the adjournment and gave leave to amend, a decision affirmed by the ACT Court of Appeal. The High Court allowed the appeal, on grounds including that the proposed amendments to the statement of claim did not fall into the category of amendments contemplated by the Court Procedure Rules 2006 (ACT) (namely amendments required to be made for the purposes of deciding the real issues in the proceeding, or for the purpose of avoiding multiple proceedings) the significant prejudice to the defendant, and the deleterious effects on other litigants whose trial dates would require postponement. In the proceedings before his Honour however none of these issues arise. The reason for the adjournment is not to permit an amendment to the pleadings after commencement of the trial, both parties support the adjournment, and the inconvenience to the Court is not clear (indeed even if the appeal were to be allowed and the matter returned to the Federal Magistrates Court for relisting, the reality is that the parties would need to fit into the Court's busy listing timetable, not the other way around).


case_outcome: applied

case_title: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 399


case_title: Telstra Corporation Ltd v AAPT Ltd (1997) 38 IPR 539


case_outcome: referred to

case_text: applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct. Applying these factors to the factual reference of 'reasonable practicability' in s 198(6) of the Migration Act I have reached the conclusion that it is not a jurisdictional fact. It is true that two of the factors suggest that it should be characterised as a jurisdictional fact, but the other two factors speak so strongly against it being a jurisdictional fact that the first two factors are clearly outweighed. Weighing in favour of the factual reference being a jurisdictional fact is that there is no reference to the officer's 'opinion', 'belief' or 'satisfaction' in s 198(6) of the Act, although (as Gummow J noted in Al-Kateb at 608 [121]) the use of the word 'reasonably' suggests that there is an element of judgment or assessment in the criterion. Also weighing in favour of the factual reference being a jurisdictional fact is that important interests of the unlawful non-citizen are at stake, although it must be remembered that those interests are at most concerned with the applicant's detention prior to his eventual deportation and the timing of that deportation, rather than any actual right to remain in Australia. On the other hand, the nature of the task may be a difficult and complex one and may involve a wide range of considerations; indeed, it may be impossible to come to any conclusion without a detailed consideration of a great deal of information, much of it of a political or diplomatic character. Whilst a Court may have little difficulty determining the unlawful non-citizen's fitness to travel it would be ill-equipped to consider other matters such as conditions in other countries. Furthermore, circumstances may change very quickly and require constant monitoring. A decision that the factual reference is a jurisdictional fact would produce considerable inconvenience because it would mean that an officer's decision that removal was reasonably practicable would be provisional until upheld by a Court in a context where circumstances may change very quickly. The applicant referred to the decision of Al-Kateb in this context, but in my opinion there is nothing in that case which suggests that the question of reasonable practicability is a jurisdictional fact. It is true that certain Justices of the High Court considered what was encompassed by the phrase 'reasonable practicability'; Gummow J at 608 [121]; Hayne J at 639 [227]; Callinan J at 658-662 [290]-[299] but the Court did not address the question of whether reasonable practicability was a jurisdictional fact. Although his Honour was concerned with different questions to those arising before me, in my respectful opinion the High Court's treatment of the phrase was accurately summarised by French J in WAJZ at [83]-[85].


case_text: my opinion, the question of reasonable practicability is not a jurisdictional fact. The question is whether 'reasonable practicability' is to be finally determined by the officer or only provisionally determined by him or her and finally determined by the Court. As I understand the authorities, that question is ultimately one of statutory consideration. The authorities have identified a number of relevant considerations: 1. If the factual reference (as it is sometimes called) is expressed in terms of the 'opinion', 'belief' or satisfaction' of the primary decision-maker then the factual reference is not a jurisdictional fact, although there will still be a jurisdictional fact, namely, the primary decision-maker's state of mind. The contrary does not follow, in that the absence of reference to 'opinion', 'belief' or 'satisfaction' of the decision-maker does not mean the factual reference is a jurisdictional fact (Aronson, Dyer and Groves, Judicial Review of Administrative Action (3 rd ed, 2000) pages 227-239). 2. The nature of the task is important. If the task is a difficult and complex one involving an assessment of complex facts and the forming of opinions on a wide range of matters then that suggests that the factual reference is not a jurisdictional fact because it is considered that Parliament intended that the decision be made by the primary decision-maker: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465-466 (High Court: Australian Heritage Commission v Mount Isa Mines Ltd [1997] HCA 10 ; (1997) 187 CLR 297); Cabal v Attorney-General of the Commonwealth [2001] FCA 583 ; (2001) 113 FCR 154. 3. If inconvenience results from holding that a factual reference is a jurisdictional fact then that will be considered a reason not to hold that it is a jurisdictional fact: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369; Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456 per Black CJ at 465-466; Cabal v Attorney-General of the Commonwealth (supra) per Weinberg J at 173 [74]. With respect, the clearest statement of the principle remains that of Dixon J (as he then was) in Parisienne Basket Shoes Pty Ltd v Whyte (supra) (at 391): 'It cannot be denied that, if the legislature see fit to do it, any event or fact or circumstance whatever may be made a condition upon the occurrence or existence of which the jurisdiction of a court shall depend. But, if the legislature does make the jurisdiction of a court contingent upon the actual existence of a state of facts, as distinguished from the court's opinion or determination that the facts do exist, then the validity of the proceedings and orders must always remain an outstanding question until some other court or tribunal, possessing power to determine that question, decides that the requisite state of facts in truth existed and the proceedings of the court were valid. Conceding the abstract possibility of the legislature adopting such a course, nevertheless it produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.' 4. The importance of the decision in terms of the nature of the rights affected by it is a matter to be taken into account. If the rights at stake are fundamental or important rights then that may suggest that the factual reference is a jurisdictional fact: Buck v Comcare (1996) 66 FCR 359 per Finn J at 364.


case_title: Australian Heritage Commission v Mount Isa Mines Ltd (1995) 60 FCR 456


case_title: Buck v Comcare (1996) 66 FCR 359


case_title: Cabal v Attorney-General of the Commonwealth [2001] FCA 583 ; (2001) 113 FCR 154


case_text: I have said, the orders sought in paragraphs 1 and 2 of the second respondent's notice of motion are that four paragraphs in the statement of claim be struck out as disclosing no reasonable cause of action (paragraphs 21, 22, 23 and 24) and for summary dismissal of one of the claims for relief (the second injunction). The claim for an order that the interlocutory injunction be discharged (paragraph 3) is said to follow from the making of the first two orders. The test I must apply is well known and it is a demanding one. I should only make the orders sought if I am satisfied that the claim for relief and the allegations which are the subject of challenge cannot possibly succeed. General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125 per Barwick CJ at 129; Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 per Dixon J at 91. It is to be assumed that, insofar as it is said that the paragraphs in the statement of claim to which I have referred do not disclose a reasonable cause of action, the allegations of fact made by the applicant can be made out.


case_title: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125


case_text: Full Court of this Court in M38/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 131 ; (2003) 131 FCR 146 ('M38/2002') made, with respect, some pertinent observations as to the nature of the obligation imposed on an officer by s 198(6), the meaning of the words 'reasonably practicable' and the question of whether removing an unlawful non-citizen from Australia is a privative clause decision within s 474. The Court noted that s 198(6) imposes a duty, but it is a duty which only arises upon the occurrence of certain events or the satisfaction of certain conditions. The matters in paragraphs (a)-(d) inclusive must occur or arise before the duty arises. Furthermore, the duty is not absolute in the sense that thereafter it only arises as soon as it is reasonably practicable to remove the unlawful non-citizen. The Court noted that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 the Full Court of this Court said that there was no duty to remove an unlawful non-citizen when removal was not reasonably practicable. The Court in M38/2002 considered the meaning of the words 'reasonably practicable' and noted various dictionary definitions and statements made in the authorities. The Court expressed the view that whether the removal of an unlawful non-citizen is practicable 'seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint' (at 165[65]). The Court expressed the view that the removal of a non-citizen may be practicable in the sense of feasible, but not 'reasonably practicable' as required by s 198(6) of the Act. The Court expressed the view that practicability and reasonableness may, on occasions, operate in opposing senses. The Court identified as matters an officer may taken into account in determining whether it is reasonably practicable to remove an unlawful non-citizen matters such as whether another country will admit the person, whether it can admit the person and the physical condition of a person facing removal (at 166[69]). There is no reason not to include in this list of matters, the mental condition of a person facing removal. In M38/2002 the Court said that in determining when it was reasonably practicable to remove an unlawful non-citizen it is not open to an officer to consider whether an unlawful non-citizen is a 'refugee' within the meaning of Art 1A(2) of the Refugees Convention as amended by the Refugees Protocol ('the Convention'): s 5 of the Migration Act . Nor is it open to an officer to consider whether the unlawful non-citizen's removal and return to a particular country is conformable with the obligation against refoulment is Art 33(1) of the Convention. In the context of considering the Court's supervisory jurisdiction, the Court addressed the question of whether removing or refusing to remove an unlawful non-citizen under s 198(6) was a privative clause decision within s 474 of the Migration Act . The Court said (at 171-172 [88]): 'Removing or refusing to remove an unlawful non-citizen under s 198(6) of the Act does, however, constitute a "privative clause decision" for the purposes of the Act. Section 474(2) provides that, in s 474: privative clause decision means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act ... (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5). There is no reference to s 198 in s 474(4) or (5). Section 474(3)(g) provides that a reference in s 474 to a "decision" includes a reference to "doing or refusing to do any ... act or thing". Removing or refusing to remove an unlawful non-citizen under s 198(6) is, by virtue of s 474(3)(g), a "decision" and, as such, a "privative clause decision" within the meaning of s 474(2). According to s 474(1), a privative clause decision: (a) is final and conclusive; and (b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and (c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.' Some of the issues considered by the Full Court in M38/2002 were considered again by the Full Court in the subsequent decision in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 (' NATB '). The Court qualified the statement of the Full Court in M38/2002 that in the context of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. The Court said that an element of reasonableness was inherent in practicability and the use of the word 'reasonably' may operate to extend the reasonableness notion, 'further along what may be described as "the continuum of reasonableness"' (at 516 [50]). The Court said that it would not attempt a definition of all the circumstances relevant to the concept of what was 'reasonably practicable'. It was impossible to foresee all the circumstances which may arise and the question involved a process of evaluation of the facts of each case. The Court said that physical considerations such as the health of the person to be removed and the availability of an operating airport in the place of destination were not the only relevant considerations. The willingness of a country to allow a person to enter its territory is at least one non-physical factor relevant to reasonable practicability. On the other hand, the limits on the matters relevant to reasonable practicability arise from the words themselves and the relevant considerations are practical considerations in the context of the proposed physical removal of a person from Australia. Subject to the one qualification which I have mentioned, nothing was said by the Full Court in NATB to suggest that the Court's observations and conclusions in M38/2002 were wrong and in particular the conclusion that to remove or to refuse to remove was a privative clause decision. The applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct.


case_text: Court noted that s 198(6) imposes a duty, but it is a duty which only arises upon the occurrence of certain events or the satisfaction of certain conditions. The matters in paragraphs (a)-(d) inclusive must occur or arise before the duty arises. Furthermore, the duty is not absolute in the sense that thereafter it only arises as soon as it is reasonably practicable to remove the unlawful non-citizen. The Court noted that in Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70 ; (2003) 126 FCR 54 the Full Court of this Court said that there was no duty to remove an unlawful non-citizen when removal was not reasonably practicable. The Court in M38/2002 considered the meaning of the words 'reasonably practicable' and noted various dictionary definitions and statements made in the authorities. The Court expressed the view that whether the removal of an unlawful non-citizen is practicable 'seems to be largely, if not entirely, concerned with whether the removal is possible from the officer's viewpoint' (at 165[65]). The Court expressed the view that the removal of a non-citizen may be practicable in the sense of feasible, but not 'reasonably practicable' as required by s 198(6) of the Act. The Court expressed the view that practicability and reasonableness may, on occasions, operate in opposing senses. The Court identified as matters an officer may taken into account in determining whether it is reasonably practicable to remove an unlawful non-citizen matters such as whether another country will admit the person, whether it can admit the person and the physical condition of a person facing removal (at 166[69]). There is no reason not to include in this list of matters, the mental condition of a person facing removal.


case_text: of the issues considered by the Full Court in M38/2002 were considered again by the Full Court in the subsequent decision in NATB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 292 ; (2003) 133 FCR 506 (' NATB '). The Court qualified the statement of the Full Court in M38/2002 that in the context of the Act, practicability and reasonableness may, on occasion, operate in opposing senses. The Court said that an element of reasonableness was inherent in practicability and the use of the word 'reasonably' may operate to extend the reasonableness notion, 'further along what may be described as "the continuum of reasonableness"' (at 516 [50]). The Court said that it would not attempt a definition of all the circumstances relevant to the concept of what was 'reasonably practicable'. It was impossible to foresee all the circumstances which may arise and the question involved a process of evaluation of the facts of each case. The Court said that physical considerations such as the health of the person to be removed and the availability of an operating airport in the place of destination were not the only relevant considerations. The willingness of a country to allow a person to enter its territory is at least one non-physical factor relevant to reasonable practicability. On the other hand, the limits on the matters relevant to reasonable practicability arise from the words themselves and the relevant considerations are practical considerations in the context of the proposed physical removal of a person from Australia. Subject to the one qualification which I have mentioned, nothing was said by the Full Court in NATB to suggest that the Court's observations and conclusions in M38/2002 were wrong and in particular the conclusion that to remove or to refuse to remove was a privative clause decision. The applicant referred to the decision of the High Court in Al-Kateb v Godwin [2004] HCA 37 ; (2004) 219 CLR 562 (' Al-Kateb ') a case I will need to refer to again in another context. There is nothing in that case that suggests that the decisions in M38/2002 and NATB are not correct.


case_title: Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7 ; (1938) 59 CLR 369


case_text: respondents submit that the relevant allegations in the statement of claim (ie, paragraphs 21, 22 and 23) do not support a conclusion that the removal of the applicant from Australia would constitute a failure to exercise jurisdiction or an excess of jurisdiction within the principles enunciated by the High Court in Plaintiff S157/2002 v Commonwealth [2003] HCA 2 ; (2003) 211 CLR 476. In other words, it is submitted by the respondents that the allegations in the statement of claim do not support the only challenge which may be made to a privative clause decision, namely, a challenge on the ground of jurisdictional error. Accordingly, the proposed removal of the applicant cannot be challenged. The applicant submits that even if the removal of the applicant from Australia is a privative clause decision within s 474 it can be challenged on the ground of error of jurisdictional fact. The respondents submit that if its first two submissions are correct, namely, that the decision to remove the applicant from Australia is a privative clause decision and as the allegations presently stand cannot be challenged, then the only possible federal claim is doomed to fail. The other claims in the proceedings are claims in tort which are not within the jurisdiction of this Court. The respondents submit that there is no room for the operation of the doctrines of associated or accrued jurisdiction.


case_text: original jurisdiction previously exercised by this Court in relation to migration decisions is, subject to certain exceptions, now vested in the Federal Magistrates Court. The matters removed from the jurisdiction of this Court are described by reference to subject matter and the nexus with the subject matter removed from the jurisdiction of the Court is identified by words of wide import, namely, 'in relation to' although I recognise that the precise nexus identified by those words will be determined by the provisions of the Act in which they appear: PMT Partners Pty Ltd (In Liq) v Australian National Parks and Wildlife Service [1995] HCA 36 ; (1995) 184 CLR 301 per Toohey and Gummow JJ at 331-332. I do not think this Court has original jurisdiction to grant an injunction restraining the second respondent from removing the applicant from Australia. The applicant sought to overcome the difficulties posed by s 476A by submitting that this Court has jurisdiction over his claim insofar as it involves a claim for an injunction against the first respondent who is alleged to be an officer of the Commonwealth (ie, the first injunction seeking to restrain a breach of a duty of care in tort) in relation to the detention of the applicant, and that the claim in tort against the Commonwealth in relation to both the detention and removal of the applicant and the claim that the removal of the applicant was beyond power and ultra vires are part of the accrued jurisdiction of the Court. The applicant submitted that s 476A is directed to the original jurisdiction of the Court and not the accrued jurisdiction of the Court. In this case the submission that this Court has accrued jurisdiction is a novel one because the claim said to fall within the accrued jurisdiction is in fact a federal claim. By reason of an express statutory provision it is within the jurisdiction of the Federal Magistrates Court and not this Court. This exposes the fallacy of the applicant's argument. I do not think there can be accrued jurisdiction over a federal claim removed from the original jurisdiction of this Court and entrusted to the Federal Magistrates Court. I do not think that it is appropriate to make orders in relation to the draft notice of objection to competency. Part of the applicant's claim is within the jurisdiction of this Court, namely, the claim for an injunction against the first respondent and I did not understand the respondents to argue that this claim was not arguable. The claims in tort for damages against the Commonwealth of Australia may be within the associated or accrued jurisdiction of the court and if necessary I will hear further from the parties on this question. It is appropriate to make orders on the second respondent's notice of motion. I will make the order sought in paragraph 1 of the notice of motion. Furthermore, it seems to me that it is also appropriate to make the orders sought in paragraphs 2 and 3, but because there was some uncertainty in the respondents' submissions as to whether I should make the order sought in paragraph 2, I will hear further from the parties (if they seek to be heard) as to the orders sought in paragraphs 2 and 3 of the notice of motion.


case_text: my conclusions to this point would not mean that the whole of the applicant's claim should be struck out. The claim against the first respondent for an injunction in relation to the detention of the applicant would appear to be within the jurisdiction of the Court ( Secretary, Department of Immigration and Multicultural and Indigenous Affairs v Mastipour (2004) 206 ALR 83; s 39B(1) Judiciary Act ) and the claim against the second respondent for damages for breach of a duty of care in relation to the detention of the applicant is arguably within the associated or accrued jurisdiction of the Court. Furthermore, it was not suggested that either of those claims are not arguable. More difficult questions arise in relation to the alleged claim for damages in tort against the second respondent in relation to the proposed removal of the applicant from Australia in light of the terms of s 474(1) of the Migration Act . In addition to those matters, had it not been for the provisions of s 476A of the Migration Act my conclusions to this point would have given rise to a question as to whether the applicant should be given leave to re-plead the allegations in paragraphs 21, 22 and 23 to raise (if he is able to) an arguable case of jurisdictional error of the relevant type. Even if an arguable case of jurisdictional error of the relevant type could be raised in relation to the proposed removal of the applicant from Australia, this Court does not have jurisdiction to consider such a claim by reason of s 476A of the Migration Act .


case_text: would follow these observations even if, as the applicant submits, they were not essential to the decision. They represent considered remarks of the Full Court and, moreover, in my respectful opinion they are correct. A 'decision' includes doing an act or thing (s 474(3)(g)) and a 'privative clause decision' includes a proposed decision ( WAJZ v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 84 ALD 655 per French J at [70] (' WAJZ '). The applicant referred to the decision of Al-Kateb in this context, but in my opinion there is nothing in that case which suggests that the question of reasonable practicability is a jurisdictional fact. It is true that certain Justices of the High Court considered what was encompassed by the phrase 'reasonable practicability'; Gummow J at 608 [121]; Hayne J at 639 [227]; Callinan J at 658-662 [290]-[299] but the Court did not address the question of whether reasonable practicability was a jurisdictional fact. Although his Honour was concerned with different questions to those arising before me, in my respectful opinion the High Court's treatment of the phrase was accurately summarised by French J in WAJZ at [83]-[85]. Although the question of reasonable practicability is not a jurisdictional fact, the proposed removal of the applicant from Australia can be challenged on the other grounds which constitute jurisdictional error: WAJZ per French J (at [70]). I do not think that there can be any doubt that a circumstance relevant to the question of reasonable practicability is the applicant's physical and mental condition. The difficulty for the applicant is that a jurisdictional error of the relevant type is not pleaded in paragraphs 21, 22 and 23 of the statement of claim. Those paragraphs proceed on the assumption that it is sufficient to allege that as a matter of fact it is not reasonably practicable to remove the applicant from Australia. For the reasons I have given, that is not sufficient. It is convenient if I state my conclusions to this point. Paragraphs 21, 22 and 23 must be struck out because the removal of the applicant from Australia is a privative clause decision and the paragraphs do not disclose an arguable case of jurisdictional error of the relevant type. It seems to me that it follows from the terms of s 474 that the removal of the applicant from Australia is not to be the subject of an injunction whether the claim is based on the allegation that removal is beyond power or on an alleged breach of a duty of care. It follows that the claim for an injunction based on an anticipated breach of a duty of care (paragraph 20(e)) cannot succeed. It must also follow that the somewhat novel claim (as far as I can see) in paragraph 24 cannot succeed. Furthermore, the claim for relief involving an injunction restraining the second respondent from removing the applicant from Australia (the second injunction) cannot succeed and the interlocutory injunction must be discharged.


case_text: For reasons set out below, I propose to grant a stay with liberty to apply. A stay is an interlocutory order and a court must remain in control of its own interlocutory orders: Adam P Brown Male Fashions Proprietary Limited v Philip Morris Incorporated (1981) 148 CLR 170 at 178. 118 There are two matters which have troubled me in exercising my jurisdiction to grant a stay. The first is the ordinary vicissitudes of litigation in another country. It may therefore be that, despite the views of Mr Smith, the US District Court will decline to apply the Trade Practices Act . If that were to occur, it may be appropriate to lift the stay. There may be other circumstances existing in the litigation in the United States which would also make it appropriate to consider such an application. 119 The second is that, in my view, Smurfit is in clear breach of the Agreement in two respects. First, it has refused to submit to the jurisdiction of New South Wales by filing an appearance in this proceeding. On any view, it was bound to do so.


case_text: I also accept that it is entirely possible that at the final hearing the alleged representations will add little if anything to the claim for breach of contract: see Apscore International Pty Ltd v Grand Canyon Technologies Pty Ltd [1996] FCA 1089. 54 However, the short answer to these submissions is to be found in Dr Bell's concession that the trade practices claim is not colourable. It follows from this that the Court has subject matter jurisdiction over the trade practices claim which has more than a trivial connection with the overall controversy. That is sufficient to warrant the grant of leave under O 8 r 3. The motion to set aside service thus ought to be refused. 55 Whether there ought to be a stay depends upon the answers to the remaining questions.


case_text: The fifth issue is, whether in the event that Smurfit is unsuccessful on its motion, I ought to grant Armacel's motion for an anti-suit injunction. The principal question which arises under this issue is the stage that the US District Court proceeding has reached and whether to restrain it: ...would be not only invidious but the reverse of comity: Aggeliki Charis Compania Maritima SA v Pagnan SpA ("the Angelic Grace") [1995] 1 Lloyd's Rep 87 at 95. 18 In early 2004 a representative of Smurfit made contact with Armacel in an email requesting information about Armacel's technology. At that time, Mr Frank Matich of Armacel was in discussion with a number of other American companies that were interested in licensing the technology. 19 The background to Armacel's discussions with potential American licensees appears to be that in late 2003 it won an award from an American association as technology innovator of the year in the United States. Details were published in various magazines and journals, as a result of which Armacel received enquiries from countries in North and South America for the exploitation of the technology.


case_text: Second, Smurfit is in breach of the Agreement to attempt to mediate the dispute in Sydney. In my view, that was an agreement to embark upon a process of dispute resolution and is enforceable as such: Aiton Aust Pty Ltd v Transfield Pty Ltd (1999) 153 FCR 236 at [59]. I accept that the Agreement does not nominate a particular person to be the mediator, nor does it establish the machinery for the appointment of such a person. However, the better view in this case is that if the parties cannot agree the identity of a mediator, the Court can do so with the assistance of its powers under s 53A of the Federal Court Act 1976 (Cth) and O 72 of the Federal Court Rules : see Booker Industries Proprietary Limited v Wilson Parking (Qld) Proprietary Limited [1982] HCA 53 ; (1982) 149 CLR 600 at 614-615.


case_title: Blair v Curran (1939) 62 CLR 464

case_text: The first requirement draws attention to the need to identify with precision the issue which was necessarily decided in the earlier proceeding to see whether it is identical with an issue sought to be raised in the later proceeding: Blair v Curran (1939) 62 CLR 464 at 531; Makhoul v Barnes (1995) 60 FCR 572 at 579. 59 The observations of Dixon J in Blair v Curran at 531 make it plain that the question which is the subject of the first requirement may be one of fact or law.


case_title: Booker Industries Proprietary Limited v Wilson Parking (Qld) Proprietary Limited [1982] HCA 53 ; (1982) 149 CLR 600


case_text: In an application to set aside service under O 9 r 7, the Court conducts, by way of a re-hearing, a review of the original decision to grant leave to serve the originating process out of the jurisdiction: Bray v F Hoffman-La Roche Ltd [2003] FCAFC 153 ; (2003) 130 FCR 317. 44 The rehearing is conducted on the basis that the respondent should have the opportunity to put before the Court any additional material which may suggest that leave ought not to have been granted under O 8 r 3: Bray at [53]; Clough v Oil & Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 at [12] .


case_text: Nevertheless, I am satisfied that the Trade Practice Act claim is not "colourable" in the sense referred to in Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at 219. Ultimately, Dr Bell conceded that this was so.


case_text: The High Court has adopted the formulation of Lord Guest in Carl Zeiss Stiftung v Rayner & Keeler Ltd (No 2) [1967] 1 AC 853 at 935, of three requirements for the creation of an issue estoppel: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363 at [21] . The requirements are: first, that the same question has been decided; second, that the decision was final; and third, that it was in proceedings between the same parties or their privies.


case_text: The second requirement may be satisfied even if the earlier judgment is interlocutory: Castillon v P&O Ports Ltd [2007] QCA 364 at [49] ff. The requirement of finality has been broken down into two separate conditions, namely that the decision must be "final and conclusive" and "on the merits": The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499. 62 This passage from Lord Brandon's speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112] ; Castillon v P&O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66] . 63 The need for caution in the application of the doctrine of issue estoppel is well established, especially where the estoppel is said to arise from a judgment of a foreign court, and in an interlocutory context: The Sennar (HL) at 500; Castillon v P&O Ports at [55]; Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 858. 65 The Sennar is also authority for that proposition as was accepted by Holmes JA in Castillon v P&O Ports at [54]. 66 Having approached the present matter with what, I hope, is the requisite degree of caution, I have come to the view that the present case is indistinguishable from The Sennar and that, accordingly, Armacel is barred by an issue estoppel from contending that cl 21.3.1 is an exclusive jurisdiction clause. In coming to this view, I have considered the decisions of the House of Lords, and the Court of Appeal in that case. The Court of Appeal decision is cited as "The Sennar" (No 2) [1984] 2 Lloyd's Rep 142. 67 It seems to me that the reasons for judgment of Kerr LJ and Sir Denys Buckley (Cumming-Bruce LJ concurring) make it clear that it is not possible to avoid the consequence of issue estoppel by simply re-characterising the issue as one which is sought to be litigated in accordance with the law of a different jurisdiction. 68 As Kerr LJ said at 149, it was not open to the plaintiffs to say, simply: What we seek to litigate here are issues under English law, and it does not matter that we litigated precisely the same issues under other systems of law in Holland. 69 The facts of The Sennar are of some importance. The plaintiffs, who were the holders of a bill of lading, invoked the jurisdiction of a Dutch Court by arresting a sister ship of The Sennar in Rotterdam. They brought an action for damages in the Dutch Court which held that their only cause of action lay in contract and that the Dutch court was bound to decline jurisdiction because the contract contained a clause under which the parties submitted to the exclusive jurisdiction of the Court of Sudan. 70 The plaintiffs then began an action in the Admiralty Court of England. However, although they succeeded on the jurisdictional question at first instance, the Court of Appeal held that they were barred from suing in the English Court by reason of an issue estoppel arising from the determination of the Dutch Court as to the construction and effect of the exclusive jurisdiction clause. 71 Kerr LJ observed at 148 that the classification of the plaintiffs' claim, as a matter of private international law, fell to be decided by Sudanese law as the proper law of the bill of lading. He said at 149 that by applying Sudanese law, the Dutch Court of Appeal had adopted the correct approach under the English rules of private international law. 72 However, as I have said, Kerr LJ at 149 also rejected the proposition that it was open to the plaintiffs to seek to re-litigate under English law the same issue that had been litigated under other systems of law in Holland. 73 His Lordship observed at 150 that to accept this proposition would altogether remove the possibility of an issue estoppel arising "from any decision by any Court" on the jurisdiction clause. It would permit uncontrolled forum shopping and run directly counter to the policy behind the doctrine of issue estoppel.


case_text: The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].


case_text: Plainly, the fact that the United States proceedings were first in point of time is a relevant consideration. Moreover, for the reasons referred to by Lord Woolf in Messier Dowty at [34]-[42], I do not consider that I should approach the question with an adverse pre-disposition to the claim for negative declaratory relief: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [42] [43]. This issue in the US District Court is not hypothetical. Our courts should be slow to criticise the approach of the foreign court to the question of negative declaratory relief. It must be a matter of discretion in all the circumstances. Moreover, the US District Court has held that it does have jurisdiction and no point was raised in the Pennsylvania proceeding about negative declaratory relief.


case_text: The rehearing is conducted on the basis that the respondent should have the opportunity to put before the Court any additional material which may suggest that leave ought not to have been granted under O 8 r 3: Bray at [53]; Clough v Oil & Natural Gas Corporation Ltd [No 3] [2007] FCA 2082 at [12] . 45 The onus remains on an applicant to satisfy the Court in light of the additional materials, facts and arguments that leave ought to have been granted: Voth at 564; Clough at [12]. 46 The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].


case_text: It is true that a distinction exists between choice of law and submission to the jurisdiction so that the mere choice of New South Wales law does not automatically point toward submission to that jurisdiction: eg Contractors Ltd v MTE Control Gear Ltd [1964] SASR 47 at 49.


case_text: The need for caution in the application of the doctrine of issue estoppel is well established, especially where the estoppel is said to arise from a judgment of a foreign court, and in an interlocutory context: The Sennar (HL) at 500; Castillon v P&O Ports at [55]; Desert Sun Loan Corp v Hill [1996] 2 All ER 847 at 858. 64 Nevertheless, in Desert Sun Loan , Evans LJ stated at 858 that an issue estoppel can arise from an interlocutory judgment of a foreign court on a procedural issue where there has been an express submission of the procedural or jurisdictional issue to the foreign court and the specific issue of fact has been raised and decided by that court.


case_text: I accept that at a final hearing, reliance upon these representations may not be made out having regard to the "entire agreement" clause contained in cl 21.1 of the Agreement: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601 at [40,517] [40,518]; see also Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211 at [75] - [76] , [81]; and see Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55 ; (2004) 211 ALR 101 at [35] .


case_text: Whether a jurisdiction clause is an exclusive jurisdiction clause is a question of construction of the particular contract, having regard to the relevant surrounding circumstances as far as is permissible: FAI General Insurance Co Ltd v Ocean Marine Mutual Protection and Indemnity Association (1997) 41 NSWLR 117 at 126. 85 The principles to be applied in determining the contractual intention of the parties were stated by Giles CJ Comm Div in FAI at 126-127. The absence of the word "exclusive" is not determinative. Other language in the jurisdiction clause and the overall nature and effect of the contract are to be considered. 88 However, cl 21.3.1 falls to be construed against the background that this was a contract made between business people negotiating at arms' length who must be presumed to have intended some certainty as to where their disputes would be litigated. The relevant courts, ie the courts of New South Wales or, subject to what I say below, the Federal Court, would have jurisdiction by reason of the choice of law clause. The parties agreed to mediate in Sydney. It is therefore difficult to see why they would not have intended that all their disputes be resolved in New South Wales: Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 at 591-592, cited in FAI at 121-122 and 127.


case_text: The effect of Smurfit's submission on the first issue is that, no prima facie case having been established under the Trade Practices Act , the claim for breach of contract does not fall within the accrued jurisdiction of the Court under the principles stated in Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570 at 608-609. 11 The second issue is whether the decision of the US District Court was final and conclusive and "on the merits", so as to give rise to an issue estoppel precluding Armacel from contending that cl 21.3.1 is an exclusive jurisdiction clause. 12 The third issue is the proper construction of cl 21.3.1. That is to say, the question is whether that clause provides for the exclusive jurisdiction of New South Wales. Also falling within this issue is the subsidiary question of whether a submission to the jurisdiction of New South Wales is a submission to the jurisdiction of the New South Wales Registry of the Federal Court. Senior Counsel for Smurfit submits that it is not. This issue only arises if Armacel is not bound by an issue estoppel . 50 Nor am I satisfied that the Trade Practices Act claims are "trivial or insubstantial" in their relationship to the overall controversy: Fencott v Muller at 609; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 597-599. 93 Nevertheless, in certain circumstances the Federal Court picks up the laws of the States under s 79 of the Judiciary Act 1903 (Cth) in the exercise of federal jurisdiction: John Robertson & Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 95. Thus, a matter heard in the New South Wales Registry of the Federal Court would pick up the rules of State law, at least in those instances in which the laws of New South Wales apply generally eg to matters of procedure. The federal jurisdiction also includes accrued jurisdiction over non-federal matters as referred to in Fencott v Muller . In addition, the Federal Court has jurisdiction in associated matters under s 32 of the Federal Court Act .


case_title: Henry v Henry (1996) 185 CLR 571

case_text: Alternatively, Smurfit seeks a stay of this proceeding on the ground that the Federal Court is a clearly inappropriate forum in accordance with the principles stated by the High Court in Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571. 13 The fourth issue, which only arises if I am satisfied that the jurisdiction of New South Wales is non-exclusive and that Armacel is not bound by an issue estoppel, is whether this Court is a clearly inappropriate forum, ie. whether this proceeding is vexatious or oppressive in the strict sense: Voth at 564-565; Henry v Henry at 587, 591-592. 95 It is prima facie vexatious and oppressive to commence a proceeding in an Australian court if another action is already pending between the same parties, raising the same issues in another country. The existence of simultaneous proceedings with respect to the same controversy is a highly relevant consideration but it does not necessarily follow that there should be a stay of the Australian proceedings: Henry v Henry at 591-592; CSR v Cigna at 389ff . 96 The test to be applied is whether having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense: CSR v Cigna at 401. The considerations include which forum can provide more effectively for complete resolution of the matters in controversy, which proceeding was commenced first and the stage that each of the proceedings has reached: Henry v Henry at 592. 123 The problems which arise if the same controversy is to be litigated in different countries which have jurisdiction with respect to the same matter are such that, prima facie , the continuation of one or other of them must be seen as vexatious or oppressive in the sense stated in Voth : see Henry v Henry at 591.


case_text: Nevertheless, in certain circumstances the Federal Court picks up the laws of the States under s 79 of the Judiciary Act 1903 (Cth) in the exercise of federal jurisdiction: John Robertson & Co Ltd v Ferguson Transformers Pty Ltd [1973] HCA 21 ; (1973) 129 CLR 65 at 95. Thus, a matter heard in the New South Wales Registry of the Federal Court would pick up the rules of State law, at least in those instances in which the laws of New South Wales apply generally eg to matters of procedure. The federal jurisdiction also includes accrued jurisdiction over non-federal matters as referred to in Fencott v Muller . In addition, the Federal Court has jurisdiction in associated matters under s 32 of the Federal Court Act .


case_text: Nor am I satisfied that the Trade Practices Act claims are "trivial or insubstantial" in their relationship to the overall controversy: Fencott v Muller at 609; Johnson Tiles Pty Ltd v Esso Australia Pty Ltd [2000] FCA 1572 ; (2000) 104 FCR 564 at 597-599.


case_title: Kuligowski v Metrobus [2004] HCA 34 ; (2004) 220 CLR 363


case_title: Leda Holdings Pty Limited v Oraka Pty Limited (1997) ATPR 41-601


case_title: Makhoul v Barnes (1995) 60 FCR 572

case_text: The first requirement draws attention to the need to identify with precision the issue which was necessarily decided in the earlier proceeding to see whether it is identical with an issue sought to be raised in the later proceeding: Blair v Curran (1939) 62 CLR 464 at 531; Makhoul v Barnes (1995) 60 FCR 572 at 579.


case_text: Smurfit also submits that, seen in this light, and having regard to the modern approach to the use of negative declarations is transnational litigation, the Court should find that the US District Court proceeding is consistent with the purpose of ensuring that the aims of justice are achieved: Messier Dowty Ltd v Sabena SA [2000] 1 Lloyd's Rep 428 at [34]ff. 97 Plainly, the fact that the United States proceedings were first in point of time is a relevant consideration. Moreover, for the reasons referred to by Lord Woolf in Messier Dowty at [34]-[42], I do not consider that I should approach the question with an adverse pre-disposition to the claim for negative declaratory relief: Challenger Group Holdings Ltd v Concept Equity Pty Ltd [2005] NSWSC 374 at [42] [43]. This issue in the US District Court is not hypothetical. Our courts should be slow to criticise the approach of the foreign court to the question of negative declaratory relief. It must be a matter of discretion in all the circumstances. Moreover, the US District Court has held that it does have jurisdiction and no point was raised in the Pennsylvania proceeding about negative declaratory relief.


case_title: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387


case_text: These principles reflect the ordinary rules of construction of contracts which are to be found in the observations of the High Court in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35 ; (2004) 218 CLR 451 at [22] , as reaffirmed in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165 at [40] .


case_title: Poulet Frais Pty Ltd v The Silver Fox Company Pty Ltd [2005] FCAFC 131 ; [(2005) 220 ALR 211


case_text: This passage from Lord Brandon's speech was referred to with apparent approval in Schnabel v Lui [2002] NSWSC 15 at [112] ; Castillon v P&O Ports Ltd at [54]; and Prestige Property Services Pty Ltd v Madzoski [2008] WASCA 58 at [66] .


case_outcome: distinguished

case_text: The position seems to me to be unlike that which existed in Reinsurance Australia Corporation Ltd v HIH Casualty & General Insurance Ltd (in Liquidation) [2003] FCA 56. There, it was established on the evidence that the trade practices claims could not be maintained in the United States and that the remedies which would have been available in the English court were more restricted than those that were available under the Trade Practices Act : see at [217]-[218], [322]. 111 Accordingly, I am not satisfied that Armacel is deprived of a legitimate forensic disadvantage in being forced to bring its claim in the United States. 112 There is some force in Dr Bell's submission that the dispute has a closer factual connection with the United States than it does with Australia. The principal issues in the contract claim appear to be the reasonableness of Smurfit's efforts to exploit the technology in the United States and whether it was entitled to disconnect Armacel's machine. The latter question may raise the application of United States environmental law issues including a complaint filed with the Occupational Health & Safety Administration: see Smurfit's Complaint in the US District Court [26].


case_title: Schnabel v Lui [2002] NSWSC 15


case_text: However, cl 21.3.1 falls to be construed against the background that this was a contract made between business people negotiating at arms' length who must be presumed to have intended some certainty as to where their disputes would be litigated. The relevant courts, ie the courts of New South Wales or, subject to what I say below, the Federal Court, would have jurisdiction by reason of the choice of law clause. The parties agreed to mediate in Sydney. It is therefore difficult to see why they would not have intended that all their disputes be resolved in New South Wales: Sohio Supply Co v Gatoil (USA) Inc [1989] 1 Lloyd's Rep 588 at 591-592, cited in FAI at 121-122 and 127.


case_text: The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14].


case_title: The Sennar (No 2) [1985] 1 WLR 490 (HL)

case_text: The second requirement may be satisfied even if the earlier judgment is interlocutory: Castillon v P&O Ports Ltd [2007] QCA 364 at [49] ff. The requirement of finality has been broken down into two separate conditions, namely that the decision must be "final and conclusive" and "on the merits": The Sennar (No 2) [1985] 1 WLR 490 (HL) at 499.


case_title: The Sennar (No 2) [1984] 2 Lloyd's Rep 142 (AC)


case_title: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52 ; (2004) 219 CLR 165


case_text: Alternatively, Smurfit seeks a stay of this proceeding on the ground that the Federal Court is a clearly inappropriate forum in accordance with the principles stated by the High Court in Voth v Manildra Flour Mills Proprietary Limited [1990] HCA 55 ; (1990) 171 CLR 538 and Henry v Henry (1996) 185 CLR 571. 13 The fourth issue, which only arises if I am satisfied that the jurisdiction of New South Wales is non-exclusive and that Armacel is not bound by an issue estoppel, is whether this Court is a clearly inappropriate forum, ie. whether this proceeding is vexatious or oppressive in the strict sense: Voth at 564-565; Henry v Henry at 587, 591-592. 45 The onus remains on an applicant to satisfy the Court in light of the additional materials, facts and arguments that leave ought to have been granted: Voth at 564; Clough at [12]. 46 The Court should not grant leave unless it is positively persuaded that it should do so: Voth at 564. However, the threshold is not high. The Court is not required to trawl through the material to determine the strength of the case. Rather, the Court's task is to determine whether the material presented shows that a controversy exists which warrants the use of the Court's processes in respect of litigation that brings a foreign respondent before an Australian court: Merpro Montassa Limited v Conoco Specialty Products Inc [1991] FCA 70 ; (1991) 28 FCR 387 at 390; State of Western Australia v Vetter Trittler Pty Ltd (In Liq) (1991) 30 FCR 102 at 109-110; Century Insurance Limited (In Prov Liq) v NZ Guardian Trust Limited (unreported, FCA, Lee J, 16 May 1996); Clough at [13]-[14]. 96 The test to be applied is whether having regard to the controversy as a whole, the Australian proceedings are vexatious or oppressive in the Voth sense: CSR v Cigna at 401. The considerations include which forum can provide more effectively for complete resolution of the matters in controversy, which proceeding was commenced first and the stage that each of the proceedings has reached: Henry v Henry at 592. 123 The problems which arise if the same controversy is to be litigated in different countries which have jurisdiction with respect to the same matter are such that, prima facie , the continuation of one or other of them must be seen as vexatious or oppressive in the sense stated in Voth : see Henry v Henry at 591.


case_outcome: followed

case_text: test to be applied in determining whether leave should be granted to advance new grounds of appeal is well known. That test is in short, whether it is expedient and in the interests of justice that such leave be granted. In the present circumstances the relevant facts underlying the decision on review are not controversial. In O'Brien v Komesaroff [1982] HCA 33 ; (1982) 150 CLR 310 Mason J (with whom the other members of the Court agreed) said at 319: "In some cases when a question of law is raised for the first time in an ultimate court of appeal, as for example upon the construction of a document, or upon facts either admitted or proved beyond controversy, it is expedient in the interests of justice that the question should be argued and decided (Connecticut Fire Insurance Co. v. Kavanagh (14); Suttor v. Gundowda Pty Ltd. (15); Green v. Sommerville (16))." In this appeal the relevant facts are not controversial and the particular ground now sought to be raised can be argued by both sides without the need for further factual investigation.


case_outcome: considered

case_text: Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1 , the majority of the High Court at 7-8 following this observation of Mason J drew no distinction between its application before an intermediate court of appeal and an ultimate court of appeal. Nevertheless, the majority of the High Court recognised the limitations which should be placed on raising new arguments on appeal. In that case the majority concluded that the respondents must be bound by the conduct of their case at trial. The majority said at 11: "It would not be fair to the appellants to subject them at this stage of the proceedings to what is virtually a new trial on an entirely different issue to that which has been litigated. In the pursuit of such a course, the interests of expedition, finality and justice are denied." I do not consider that the present appeal falls into the category of case identified by the majority in Coulton v Holcombe (supra).


case_title: Vishnumolakala v Minister for Immigration and Indigenous Affairs [2007] FCA 248

case_text: determining whether it is expedient or in the interests of justice to grant leave to raise a new ground, it is accepted that consideration needs to be given to the merits of the ground proposed to determine whether that ground has a reasonable prospect of success: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635 at [35] [37]; Vishnumolakala v Minister for Immigration and Multicultural Affairs [2007] FCA 248 at [5] .


case_title: MZWCL v Minister for Immigration, Multicultural and Indigenous Affairs [2006] FCA 635


case_outcome: cited

case_title: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57

case_text: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214 the Full Court observed that s 51A was intended to overcome the effect of the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The Full Court concluded at [66] that what was intended by the introduction of s 51A and related provisions into the Act was that Subdiv AB "provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule." The issues raised by the appellant in ground 2 of the notice of appeal do not identify any particular provision of Subdiv AB of Div 3 of Part 2 of the Act in respect of which there has been a contravention or a failure to comply.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Lat (2006) 151 FCR 214


case_text: decision of the delegate was a privative decision in accordance with s 474 of the Act. Nevertheless, s 474, does not preclude a court from determining that a decision does not fall within the privative provisions of s 474 if it involves a failure to exercise jurisdiction or is in excess of jurisdiction: Plaintiff s157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at 506. In my opinion, the delegate accordingly fell into jurisdictional error: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323 at [82] .


case_text: principles applicable in determining whether a new ground can be raised on appeal were reiterated by the majority of the High Court in Water Board v Moustakas [1988] HCA 12 ; (1988) 180 CLR 491 at 497: "More than once it has been held by this Court that a point cannot be raised for the first time upon appeal when it could possibly have been met by calling evidence below. Where all the facts have been established beyond controversy or where the point is one of construction or of law, then a court of appeal may find it expedient and in the interests of justice to entertain the point, but otherwise the rule is strictly applied. In deciding whether or not a point was raised at trial no narrow or technical view should be taken."


case_title: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 ; (2001) 206 CLR 323


case_text: In United Mexican States v Cabal [2001] HCA 61 ; (2001) 209 CLR 165, the High Court (Gleeson CJ, McHugh and Gummow JJ) considered the question of whether a person whose extradition is sought ought be admitted to bail under s 21(6)(f). Their Honours identified the tests which need to be applied in such an application as the present, notwithstanding that in that case it was the person whose extradition was sought who was seeking to challenge proceedings on appeal and had applied for bail under s 21(6)(f)(iv). Gleeson CJ, McHugh and Gummow JJ held ( Cabal 209 CLR at 192 [62]) that, before a judge granted bail, the person whose extradition was sought ordinarily would need to show three things: (1) the application for review had strong prospects of success; (2) special circumstances; (3) an absence of risk of flight. 8 In this case, Mr Tervonen need not address the first matter on which he carried an onus because he had succeeded before Gyles J. In my opinion, it is for Finland to show that it has prospects of success on its appeal. It has not been argued that the appeals have no merit. Indeed, they raise important questions of the construction of both ss 19 and 16 . So far as is relevant, the appeal under s 19 from Gyles J's decision, itself, raises questions of significance in the construction of s 19 and the review power. No submission has been made to me to suggest that the appeal is one which would not satisfy any relevant requirement that the extradition country would bear in an application of the present kind. It seems to me that, at least, there is a bona fide appeal with a reasonable basis. 9 The second and third matters upon which Mr Tervonen bears an onus are, as was explained in Cabal [2001] HCA 61 ; 209 CLR 165, somewhat interlinked. The special circumstances relied on must be of a different kind from the disadvantage that all extradition defendants have to endure. They need to be extraordinary and not factors applicable to all persons facing extradition. In addition, there must be no real risk of flight: see Cabal 209 CLR at 191 [61]. 10 As their Honours made clear, the Parliament had in mind that there was a very high risk of persons sought for extraditable offences absconding. They observed that the explanatory memorandum for the Extradition Bill 1987 (Cth) at p 18 noted that, in many cases, the person is in Australia to avoid arrest in the country where he or she is alleged to have committed the offence; that is, the person left the jurisdiction to avoid justice: Cabal 209 CLR at 191 [60]. Their Honours concluded ( Cabal 209 CLR at 194 [70]; see also at 195 [72] and [74]): 'The purpose of the extradition proceedings is set at risk if an applicant is entitled to bail upon proof of special circumstances and a probability that the applicant will not abscond. If there is a real risk that the applicant will abscond, the objects of the Act and the rationale of ss 15 and 21 require the refusal of bail in all but exceptional cases. Unless the special circumstances are so cogent and the risk so very low that the proper exercise of discretion requires the grant of bail, any real risk of flight should be decisive against the grant of bail.' (Their Honours' emphasis.) 11 As I have noted, the present case is somewhat unusual to the general one which their Honours were considering, namely: Mr Tervonen has succeeded, in front of two single judges of the court, in his applications under ss 16 and 19 . However, even if those factors amount to special circumstances, I am satisfied that there is a real risk that Mr Tervonen may abscond. 12 A passport was found in Mr Tervonen's possession when he was arrested. The evidence before me is that it was an Estonian passport in the name of Juri Moskov. Forensic examination suggests it had been altered by the substitution of a new photograph of the passport holder and a change to his date of birth without alteration of the machine readable data on the passport as issued, thereby demonstrating an alteration or unusual disparity between the details apparently recorded on the passport and those previously inserted by the country of issue. In addition, there was evidence in the material provided by Finland, in support of its request for extradition, that Mr Tervonen had made admissions that he had passports from several countries in another name, namely Urmas Murk, including one issued by Estonia. 13 I am positively satisfied that there is a real risk of Mr Tervonen's flight if he is granted bail. I am able safely to conclude that Mr Tervonen has not discharged the onus of showing an absence of risk of flight. 14 I am also mindful that, although he has spent a considerable period in custody since his original arrest in mid-2006, the two appeals will be heard in a reasonably short period of time. 15 In my opinion, I should order that Mr Tervonen be kept in custody until Finland's appeal against Gyles J's decision and the orders made by him on 20 December 2007 is heard. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 15 January 2008 Counsel for the Appellant (respondent on the application for bail): KC Morgan Solicitor for the Appellant: Commonwealth Director of Public Prosecutions Counsel for the First Respondent (applicant on the application for bail): DPM Ash Date of Hearing: 24 December 2007 Date of Judgment: 24 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/2107.html


case_text: The principles to be applied on such motions are well accepted and are not in dispute. The discretion to make an order under s 48 is unfettered, although it must be exercised judicially and in accordance with accepted principle. As to the latter it is only necessary that I refer to the Full Court decision in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 which has been followed repeatedly. The Court there indicated (at 162) that the discretion given should be exercised flexibly having regard to the circumstances of the particular case; the factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory or final hearings are numerous and include residence of parties and witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court; the balance of convenience will be a relevant consideration, but not necessarily determinative of each case; there is no onus of proof in the strict sense on the party seeking to have the proceedings conducted or continued in another place but the Court must be satisfied that there is sound reason to direct that the proceeding be conducted or continued elsewhere; the test to be applied, ultimately is: ... where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.


case_text: Given this test it is unsurprising that judges have observed that authorities on such motions tend not to be very helpful given the fact specific character of the question the s 48 discretion raised: see eg Inverness Medical Switzerland GMBH v Advance Chemical Systems Pty Limited [2002] FCA 1261 at [2] . 10 The matters relied upon in Mr Parker's affidavit in support of the motion are (i) the first respondent's principal place of business is at Broadbeach as is the place of residence of the majority of staff (past and present) who can be expected to be called to give evidence at trial; (ii) the legal practice conducted by Mr Parker and Mr Simmonds will be significantly affected if the trial (estimated by both sides to take two weeks) at which they necessarily must attend, is to be held in Adelaide (a) they are the firm's only principals; (b) their employees are junior solicitors without open practising certificates; (c) the practice consists predominantly of conveyancing and typically issues more than fifty trust cheques per week; (d) no employee of the firm has authority to execute a trust account cheque (in accordance with the Queensland Law Society Rules); and (e) the practice needs at least one of the partners to be readily accessible to clients and staff and for administrative matters. (iii) SCL employs three persons on a full-time basis and, if these are required to give evidence in Adelaide, there would be major disruption to the business; (iv) there would be far greater costs incurred in respect of the conduct of a trial in Adelaide than in Brisbane in respect of flights, accommodation etc; (v) the respondents' documentation is located in Queensland.


case_text: Save for the issues arising from Mr Parker's and Mr Simmonds' professional practice, the matters relied upon by Mr Bratton in his affidavit opposing the transfer mirror in considerable degree those referred to by Mr Parker, save in one important respect. That exceptional matter, to which I earlier referred, is that Tidswell's investment was solicited by the respondent Mr Benson who sought out Mr Bratton in South Australia with the consequence that the causes of action advanced arose in that State. Of itself, this not only makes Tidswell's choice of the South Australian District Registry an appropriate one in which to file its proceedings, it also provides real reason for pause in too readily acceding to a request to transfer the proceedings to Brisbane particularly at this stage: cf Optics Online Pty Ltd v Sunland Group Ltd [2006] FCA 1389 at [8] - [9] . 12 Otherwise Mr Bratton relies upon (i) Adelaide being Tidswell's place of business; (ii) the four witnesses two lay (himself and the company's managing director) and two expert all reside in South Australia; (iii) for him and the managing director to go to Brisbane for two weeks would cause significant disruption to the day-to-day management of Tidswell's business; and (iv) Tidswell's documentation is all in Adelaide. 13 Bearing in mind that I need a sound or good reason for ordering that the proceeding be conducted in Brisbane, I do not consider that such has been made out at this stage of the proceeding particularly when one has regard to the fact that the proceeding itself was properly and appropriately instituted in South Australia.


case_text: plea will have a tendency to cause embarrassment if it is ambiguous or irrelevant, or if it is inconsistent with another plea. The latter case is to be distinguished from a plea which is clearly put in the alternative to another plea which is permissible. For present purposes, it is sufficient to refer to Mayor, &c., of City of London v Horner (1914) 111 LT 512 at 514 per Pickford LJ and Bartlett v Swan Television and Radio Broadcasters Pty Ltd [1995] FCA 1429 ; (1995) ATPR 41-434 at 40,889 per Carr J.


case_outcome: discussed

case_text: his Lordship notes, there can be an overlapping between material facts and necessary facts, and as von Doussa J observed in Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466, the distinction between material facts and necessary particulars has tended to become more obscured as the years have gone by. Nevertheless, necessary particulars can be, but do not have to be, in the statement of claim (O 12 r 1) and a party is not required to plead to necessary particulars, although it is not uncommon for that to be done. In so far as the respondents' objections are based on a failure to provide necessary particulars, they must be taken to be asking for an order that particulars be provided even though a defence has not been filed. For their part, the applicants did not seek to identify paragraphs where the true basis of the objection was a failure to provide necessary particulars and then submit that the provision of particulars should be at least postponed until after a defence is filed. They sought discovery before particulars and seem to accept that if they are successful they would thereafter provide the necessary particulars even though a defence had not been filed.


case_text: the case of a number of pleas, counsel for the respondents' objection, as shown in the table, was that the plea was insufficiently particularised. In relation to those cases where the true basis of the objection is that the necessary particulars are not provided, it must not be overlooked that the Rules provide that, in the ordinary case, particulars will not be ordered before a defence is filed (O 12 r 5(3)). The Rules proceed on the basis that there is a clear distinction between the pleading of material facts and the provision of necessary particulars. The distinction between material facts and necessary facts was identified by Scott LJ in the well-known passage from Bruce v Oldhams Press Ltd [1936] 1 KB 697 (at 712-713): "The cardinal provision in r. 4 is that the statement of claim must state the material facts. The word 'material' means necessary for the purpose of formulating a complete cause of action; and if any one "material" fact is omitted, the statement of claim is bad; it is 'demurrable' in the old phraseology, and in the new is liable to be 'struck out' under Order XXV., r. 4: see Philipps v. Philipps ; or 'a further and better statement of claim' may be ordered under Order XIX., r. 7. The function of 'particulars' under r. 6 is quite different. They are not to be used in order to fill material gaps in a demurrable statement of claim - gaps which ought to have been filled by appropriate statements of the various material facts which together constitute the plaintiff's cause of action. The use of particulars is intended to meet a further and quite separate requirement of pleading, imposed in fairness and justice to the defendant. Their function is to fill in the picture of the plaintiff's cause of action with information sufficiently detailed to put the defendant on his guard as to the case he has to meet and to enable him to prepare for trial. Consequently in strictness particulars cannot cure a bad statement of claim. But in practice it is often difficult to distinguish between a 'material fact' and a 'particular' piece of information which it is reasonable to give the defendant in order to tell him the case he has to meet; hence in the nature of things there is often overlapping. And the practice of sometimes putting particulars into the statement of claim and sometimes delivering them afterwards either voluntarily, or upon request or order, without any reflection as to the true legal ground upon which they are to be given has become so common that it has tended to obscure the very real distinction between them." (Citation omitted.)


case_text: addition to the above authorities, I refer to the discussion by Warren J (as her Honour then was) in Computershare Limited v Perpetual Registrars Limited (2000) 1 VR 626 at 635-638. In my opinion, this is an appropriate case for an order for discovery before particulars. As I have said, there does not seem to be much doubt that the first respondent (and perhaps other respondents) acted as the applicants' agent, owed fiduciary obligations to them and, from time to time, had control of moneys belonging to the applicants. One such obligation was and is a liability to account and to provide information to the applicants. That seemed to be acknowledged by the first respondent because one of his arguments on the applicants' application was that he has already provided a proper reconciliation to the applicants. Secondly, the evidence established that the respondents are in possession of the relevant information and, in a relative sense at least, the applicants do not have the information, or at least all of the information. Thirdly, there is a prima facie case of unauthorised use in relation to a sum of $28,915.27 because it seems that this sum was used by the first respondent to discharge a liability for personal expenses. Both counsel took me through a number of financial and other documents relating to the transactions referred to in the statement of claim. The purpose of the exercise from the respondents' point of view was to establish that all moneys had been used for the applicants' benefit, or in accordance with their instructions, and that they had been provided with all the information to which they were entitled, or, which they had requested. The difficulties in engaging in such an exercise at this early stage are obvious. There are a number of transactions and they are complex transactions. I am not satisfied on the evidence before me that the respondents have established a sufficiently clear case of the type they advanced to overcome those reasons for making an order for discovery before particulars and, in my opinion, it is appropriate to make such an order. Conclusion


case_title: Edelston v Russell (1888) 57 LT 927

case_text: reasons I will give, I think this is an appropriate case for discovery before particulars. I do not think the fact that a defence has not been filed is an impediment to such an order at this stage ( Edelston v Russell (1888) 57 LT 927). For reasons I will give, I think that some paragraphs in the statement of claim should be struck out. The defects in the statement of claim are not sufficient to warrant an order that the statement of claim be struck out. I do not think the applicants should be required to replead before discovery is made, even in relation to those paragraphs struck out on grounds other than the ground of a failure to provide necessary particulars. That would be time-consuming and wasteful. I turn now to consider the particular objections to the statement of claim. In some cases, the same objection is taken to a number of paragraphs. It is convenient to deal with these paragraphs as a group. I start with the groups of paragraphs and then move to the objections to individual paragraphs.


case_title: Mayor, & c., City of London v Horner (1914) 111 LT 512


case_text: Lyons v Kern Konstructions (Townsville) Pty Ltd (1983) 7 FLR 135 , Fitzgerald J discussed in detail the circumstances in which discovery before particulars may be ordered in a case involving allegations of fraud (at 148-151) and the meaning of "fishing" in this context (at 151-152). It is clear from the authorities to which Fitzgerald J referred that discovery before particulars may be ordered even in cases involving allegations of fraud, although that will only be done where there is a special relationship between the parties or something in the nature of exceptional circumstances. His Honour also made it clear that discovery will not be ordered before pleading or particulars for the purpose of "fishing".


case_title: Millar v Harper (1888) 38 Ch D 110

case_text: before particulars may be ordered where the party against whom the order is sought has means of knowing the facts in dispute and the party seeking the particulars does not: Millar v Harper (1888) 38 Ch D 110.


case_text: meaning of "fishing" was considered by Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426. Lindgren J said (at 438): "What does the reference to a 'fishing expedition' mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd ; WA Pines Pty Ltd v Bannerman ; Barbarian Motor Cycle Club Inc v Koithan (1984) at 486; Nestle Australia Ltd v Commissioner of Taxation (1986) at 82-83; Mobex Pty Ltd v Comptroller-General of Customs (unreported, Federal Court, Foster J, 18 May 1994), at p 18. In WA Pines Pty Ltd v Bannerman at 181, Brennan J said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery'. On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult." (Citations omitted.)


case_text: WA Pines Pty Ltd v Bannerman [1980] FCA 79 ; (1980) 41 FLR 175 , the respondent applied to strike out an allegation in a statement of claim and the applicant sought discovery and leave to interrogate on the allegation. Brennan J (as his Honour then was) said (at 181): "Though the power to require discovery be acknowledged, how should it be exercised? It depends upon the nature of the case and the stage of the proceedings at which the discovery is sought. In the present case, discovery is sought before there is a tittle of evidence to suggest that the Chairman did not have the requisite cause to believe which par. 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim: cases such as Ross v. Blakes Motors Ltd ., but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made by par. 6 of the statement of claim and, the paragraph being denied, the applicant seeks to interrogate the Chairman and ransack his documents in the hope of making a case. That is mere fishing." (Citation omitted.) The meaning of "fishing" was considered by Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Limited (1995) 58 FCR 426. Lindgren J said (at 438): "What does the reference to a 'fishing expedition' mean? After all, ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware (similarly, the administering of interrogatories will often, if not always, reveal information of which the other party was not previously aware). What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists: see, for example, Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd ; WA Pines Pty Ltd v Bannerman ; Barbarian Motor Cycle Club Inc v Koithan (1984) at 486; Nestle Australia Ltd v Commissioner of Taxation (1986) at 82-83; Mobex Pty Ltd v Comptroller-General of Customs (unreported, Federal Court, Foster J, 18 May 1994), at p 18. In WA Pines Pty Ltd v Bannerman at 181, Brennan J said that what is required is that 'sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery'. On the facts of particular cases, the application of the distinction between 'fishing' and 'non-fishing' may well be difficult." (Citations omitted.)


case_text: In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33]. 33 In Tanning Research , Brennan and Dawson JJ said that the principles which determine the enforceability of a liability to which a proof of debt relates are, in the main, the same as the principles which would be applied in an action brought directly against the company to enforce that liability (at 339). Their Honours went on to explain the role played by a liquidator or administrator in an appeal brought under s 1321 or reg 5.6.54 (at 341): "In such a proceeding, a liquidator who defends his decision to reject a proof of debt is no longer acting in a quasi-judicial capacity; he is cast in the role of an adversary, defending the assets available for distribution against a liability which, according to the view he formed when acting quasi-judicially, is not legally enforceable. The liquidator may defend those assets against the creditor's claim on any ground on which the company might have defended the claim had it been sued by the creditor. If the liquidator relies on those special defences which allow him to go behind a judgment, an account stated, a covenant or an estoppel in order to ascertain the true liability of the company, he is none the less in the role of an adversary. The issue in the proceeding is whether the liability referred to in the proof of debt is a true liability of the company enforceable against it. The issue is contested between the putative creditor on the one hand and the liquidator on the other; the liquidator is a party litigant. And none the less so though the liquidator is required to act fairly in conducting the litigation."


case_text: In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33].


case_text: In hearing an application under s 1321 and/or reg 5.6.54, the Court conducts a hearing de novo : see Tanning Research Laboratories Inc v O'Brien [1990] HCA 8 ; (1990) 169 CLR 332 ( "Tanning Research" ) per Brennan and Dawson JJ at 339 and 341; Re North Sydney District Rugby League Football Club (2000) 34 ACSR 630 per Bryson J at 631 [3]; and Brodyn Pty Ltd v Dasein Constructions Pty Ltd [2004] NSWSC 1230 ( "Brodyn" ) per Young CJ at [29] [33]. 34 In a hearing de novo , the Court will act on the evidence that is placed before it. However, the onus remains with the party who challenges the decision to reject the proof of debt: see Westpac Bank Incorporation v Totterdell (1997) 25 ACSR 769 per Templeman J at 772 and 774. There is, however, no rule or practice whereby material that was placed before the liquidator or administrator is automatically material before the Court on the hearing of such an appeal: see Brodyn at [33].


case_title: Westpac Banking Corporation v Totterdell (1997) 25 ACSR 769

case_text: In a hearing de novo , the Court will act on the evidence that is placed before it. However, the onus remains with the party who challenges the decision to reject the proof of debt: see Westpac Bank Incorporation v Totterdell (1997) 25 ACSR 769 per Templeman J at 772 and 774. There is, however, no rule or practice whereby material that was placed before the liquidator or administrator is automatically material before the Court on the hearing of such an appeal: see Brodyn at [33].


case_outcome: related

case_text: On 28 August 2002 I delivered reasons for judgment in relation to four separate questions ordered to be determined in this proceeding pursuant to O 29 r 2 of the Rules of Court ( Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064). On 11 October 2002 I delivered reasons for judgment as to the orders to be made following the earlier reasons for judgment ( Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268). In the result, the orders made on 11 October 2002 were varied on 17 October 2002 and 21 October 2002. The answers to the separate questions related, in essence, to issues concerning copyright and intellectual property.


case_text: On 28 August 2002 I delivered reasons for judgment in relation to four separate questions ordered to be determined in this proceeding pursuant to O 29 r 2 of the Rules of Court ( Council of the City of Sydney v Goldspar Australia Pty Limited [2002] FCA 1064). On 11 October 2002 I delivered reasons for judgment as to the orders to be made following the earlier reasons for judgment ( Council of the City of Sydney v Goldspar Australia Pty Limited (No 2) [2002] FCA 1268). In the result, the orders made on 11 October 2002 were varied on 17 October 2002 and 21 October 2002. The answers to the separate questions related, in essence, to issues concerning copyright and intellectual property. 138 The scope of works set out as part of s 2 of the Specification included the following: '2. ... c. The contract works shall generally comprise but not necessarily be limited to the following: i. Manufacture of cast , ribbed, circular hollow base section of column: diameter and length to suit pole type. ii. Manufacture of extruded 150mm x 150mm square hollow steel section - lengths to suit pole type. iii. Manufacture of 'Unistrut' type P3300 channel lengths to suite pole type. iv. Manufacture of 200mm long 'Bracket' extrusion section for mounting to 'Unistrut' as 1200mm centres on upper part of column . v. Manufacture of 1200mm long corner extrusion sections. vi. Manufacture of access cover extrusion sections in 1200mm lengths. vii. Manufacture of column top cap finish. viii. Manufacture of all mounting bracket types. ix. Manufacture of all luminaire/banner/traffic light etc outreach arms including attachment brackets and connections. x. Manufacture and incorporation into pole base all proposed electrical equipment mounting brackets and fixings. xi. Assembly of complete lighting column including all screw fixing base plate mounting, welding and accessories to form a complete installation xii. Use of corrosion resistant materials, connection joints, screws fixings etc only either individually or the connection between materials with a minimum 10 year corrosion guarantee. xiii. Compliance with all Roads and Traffic Authority codes, Standards and design drawings. xiv. Compliance with all Energy Australia Codes, Standards and design drawings. xv. Compliance with Australian Standards for each material type/condition and use. xvi. Finishing of external surfaces, cleaning and delivery to site in nominated locations within the City of Sydney CBD. xvii. Testing and commissioning of-manufactured pole with and without accessories/outreach arm mounted. xviii. Manufactured Technical Drawings and bound Technical Catalogue of parts. xix. Provision of two pre-production prototype units including all accessories. d. The complete Installation shall conform with the latest Edition of relevant Australian Standards. In the event of new Editions being published during manufacture, the instruction of the Council Representative shall be sought and any modification of change made shall be carried out. e. The Supplier shall include for all fixings, boxes, supports, brackets and other items of sundry equipment in order to form complete pole arrangements ie Type A, B, C, & D. f. The works shall consist of the supply and installation of all materials, fixtures, fixings and equipment required to form a complete installation. g. All materials, fixings and equipment detailed shall be new before being installed. Under no circumstances shall any second hand/reclaimed materials be used on any part of the installation, without prior consent in writing of the Council Representative.' 139 Section 9 dealt with installation and was as follows: 'The installation portion of the contract requires the Supplier to: 1. Supply and install the street light luminaires to the outreach arms 2. Supply and install all cabling from the luminaire to RCD/fuses at the base of the pole 3. Supply and install terminal strip/DIN rail and plate RCD (Residual Circuit Breaker)/fuses including terminations 4. Installation of pole to site within CBD (to be nominated), position pole and provide concrete footing base with Rag Bolt assembly of a type recommended by an independent structural engineer The Supplier shall arrange for all necessary incoming underground cabling/conduiting and pay all fees associated/necessary to Energy Australia. 400 All electrical work shall be installed to AS3000, Energy Australia service rules and be carried out by a Licensed Electrician. The luminaires shall be equal to GEC Osram 250w metal halide Optispan Aeroscreen luminaire complete with integral 'Ultratech Australia' stop dimming control gear 3 stage 100%, 70%, 40%. The Supplier shall incorporate, in the design, slotting and other arrangements to achieve perfect horizontal and vertical alignment of the poles, outreach arms, luminaires, etc, having regard to the likely tolerances in the installation of the footings and rag bolt assemblies.' 140 The notice of termination relied upon three separate bases--the first was failure to show reasonable cause as required by the notice to show cause dated 23 February 2000 (the first show cause notice) (arising from the Council's Order No 1); the second was failure to show reasonable cause pursuant to another notice dated 23 February 2000 (the second show cause notice) (arising from the Council's Order No 2) (in each case relying upon cl 25(4)(b) of the contract); and the third was Goldspar since 19 October 1999 manifesting an intention not to be bound by the contract and thus having repudiated it.