case_text: It appears to follow from the Full Court's judgment that both the decision of the registrar to seek a direction of a judge, and the decision of the judge to direct the registrar, are decisions of an administrative character. Unfortunately, the Full Court does not seem to have had the benefit of citation of the apparently contrary view of Toohey J in Letts . In Paramasivam v Randwick City Council [2005] FCA 369 , Sackville J took the view that he was bound by Bizuneh to decide that both the registrar seeking a direction of a judge, and the judge giving the direction, pursuant to O 46 r 7A of the Federal Court Rules , made decisions of an administrative character. At [31]-[39], his Honour referred to Edwards , Letts and Bizuneh. At [40]-[41], his Honour drew attention to the fact that the Full Court had not referred to Letts , and expressed doubts about the correctness of the reasoning in Bizuneh , whilst acknowledging that it was binding on him. His Honour made orders adding as respondents to the proceeding before him the deputy registrar who had made the decision to seek the direction of a judge and the judge who gave the direction to refuse to accept the documents. Subsequently, in Paramasivam v Randwick City Council (No. 2) [2005] FCA 508 , effectively by consent, Sackville J set aside both the decision to seek a direction, and the direction, on the ground referred to in s 5(1)(d) of the ADJR Act , apparently on the basis that his Honour had foreshadowed in the first judgment at [43]-[51]. This was that both the registrar and the judge had taken into account other documents previously filed by the same applicant, whereas O 46 r 7A requires that the originating process "appears...on its face to be an abuse of the process of the Court or to be frivolous or vexatious."


case_outcome: distinguished

case_title: Paramasivam v Randwick City Council (No. 2) [2005] FCA 508


case_outcome: cited

case_text: In Loughnan (Principal Registrar, Family Court of Australia) v Altman [1992] FCA 580 ; (1992) 39 FCR 90 , the Full Court dealt with an appeal from a decision of the Tribunal, constituted by its then President, O'Connor J, in Re Altman and Family Court of Australia (1992) 27 ALD 369. Her Honour had reached the conclusion that an unrevised transcript of reasons for judgment pronounced in open court by a judge of the respondent was a document that the respondent was required to give access to under s 5 of the FOI Act . Because the unrevised transcript was produced by the agency responsible for providing transcript of court proceedings, the case turns largely on the meaning of the expression "a document of the court" in s 5 , and is therefore of little relevance to the present case. In the course of the Full Court's judgment, at 95, the Court did approve the conclusion of O'Connor J that the unrevised transcript was not a document of an administrative nature. Clearly, the giving of reasons for judgment and the practice of revising the transcript of those reasons for publication as the reasons for judgment are at the very heart of the judicial process, and the ready availability of the unrevised transcript to the public could undermine the independence of the judiciary.


case_text: Loughnan has since been discussed in a couple of decisions of the Tribunal. In Re O'Sullivan and Family Court of Australia (1997) 47 ALD 765 , Senior Member Dwyer dealt with a case in which access was sought to the handwritten notes of a Family Court counsellor. In her reasons, the learned senior member discussed Loughnan in the context of determining whether the counsellor's notes were documents of the court. Having concluded that they were, at [25] the senior member found that the notes were not a document relating to matters of an administrative nature, because of the professional duties of the counsellor. It is unnecessary to decide in the present case whether that conclusion was correct. In Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103 , Deputy President Walker dealt with a request for access to a document created in the course of dealing with an application for special leave to appeal to the High Court. The learned deputy president took the view that, because the document had been brought into existence within the chambers of a judge, as part of the judicial deliberative process, it was a judicial document, and not a document relating to matters of an administrative nature. The deputy president regarded Loughnan as not in point. At [19], the deputy president referred to the words "relates to matters of an administrative nature" in s 5 of the FOI Act in the following terms: The language used is relatively flexible and focuses on the general nature of the document rather than on the presence in the document of any administrative features whatever, however insignificant they might be in relation to the document's general nature. Even if the document in issue dealt incidentally with some administrative matters, and there is no evidence that it does, that would not necessarily detract from its overall quality as a document pertaining to the judicial role of the Court rather than to its administrative organisation.


case_outcome: discussed

case_title: Re Simring and High Court of Australia [2006] AATA 849 (2006) 44 AAR 103


case_title: Valente v The Queen [1985] 2 SCR 673

case_text: In [53] of his Honour's reasons, Gleeson CJ referred to judgments of the Supreme Court of Canada and the Constitutional Court of South Africa, and cited the reference to "matters of administration bearing directly on the exercise of [the] judicial function" from Valente v The Queen [1985] 2 SCR 673 at 708. His Honour then said: The adjudicative function of a court, considered as an institution, was seen as comprehending matters such as the assignment of judges, sittings of the court and court lists, as well as related matters of allocation of court-rooms and direction of the administrative staff engaged in carrying out that function. Judicial control over such matters was seen as an essential or minimum requirement for institutional independence. The distinction between adjudicative and administrative functions drawn in the context of discussions of judicial independence is not clear cut. Nevertheless, the powers conferred by s 10 of the Magistrates Act include powers that fall squarely within the rationale of the immunity in question. 64 Gleeson CJ therefore held that the words "under an Act" in s 21A of the Magistrates Act applied to the functions and powers given to the Chief Magistrate by s 10. Accordingly, s 30 of the Criminal Code was applicable to them and the appeal should be allowed.


case_text: Such considerations led Gummow, Hayne, Heydon and Crennan JJ to observe in their joint judgement in Commissioner of Taxation v Futuris Pty Ltd [2008] HCA 32 ; (2008) 82 ALJR 1177 at 1183, [10] that, "as a matter of discretion, relief under ss 75(v) and s 39B may be (and often will be) withheld where there is another remedy provided by Part IVC".


case_text: The making of a winding up order changes the control of the affairs of a corporation but does not affect its beneficial ownership of its assets: Commissioner of Taxation v Linter Textiles Australia Limited (In liquidation) [2005] HCA 20 ; (2005) 220 CLR 592 at 612-613, [54] . In this regard, the position with respect to corporate insolvency differs from that which prevails in respect of the administration of an individual's bankrupt estate. The effect of s 58(1)(a) of the Bankruptcy Act 1966 (Cth) is that, when a debtor becomes a bankrupt either by the making of a sequestration order or upon the acceptance of a debtor's petition by the Official Receiver, the property of the bankrupt vests forthwith in the Official Trustee or, if there be a registered trustee of the bankrupt's estate, in that registered trustee. 31 When on 5 July 2007 this Court ordered the winding up of PMD and appointed Mr Greig as its liquidator he did not become the beneficial owner of Lot 8. Title to that Lot remained vested in the corporation. It was PMD, not its liquidator, which came to sell Lot 8. Further, insofar as PMD might be thought then to have been in the business of property development, that business, after Mr Greig decided that it ought to be continued for a short time for the purpose of best preserving and then realising Lot 8 as an asset of that corporation, remained the business of the corporation: s 477(1)(a) of the Corporations Act . It did not upon liquidation become Mr Greig's business. Contrary to the submission of the Commissioner, there is no support for any contrary conclusion to be found in s 9-20 of the GST Act . It was no more Mr Greig's business than it was not that of the directors of PMD prior to the making of the winding up order. Indeed, I did not understand the Commissioner to suggest that, before the winding up order, s 9-20 made PMD's business that of its directors. The only business relevantly conducted by Mr Grieg was the practise of his profession as an official liquidator, which included undertaking the liquidation of PMD. As will be seen, when acting in that latter capacity, he constituted an "entity" and "you" for the purposes of the GST Act, If does not follow from his possession of that status that he is liable to GST in respect of the sale of Lot 8.


case_text: A description, which I gratefully adopt, of the general scheme of the GST Act in respect of liability to GST and a summary of some presently pertinent provisions is to be found in the recent judgement of the High Court in Commissioner of Taxation v Reliance Carpet Co Pty Ltd [2008] HCA 22 ; (2008) 82 ALJR 968 at 970-971, [3] to [9]: The GST 3 Provision respecting the assessment and payment of the GST is made by the statute styled A New Tax System (Goods and Services Tax) Act 1999 (Cth) ("the Act "). An important point respecting the nature of the GST was made as follows by the Full Court of the Federal Court in Sterling Guardian Pty Ltd v Commissioner of Taxation: [2006] FCAFC 12 ; (2006) 149 FCR 255 at 258: "In economic terms it may be correct to call the GST a consumption tax, because the effective burden falls on the ultimate consumer. But as a matter of legal analysis what is taxed, that is to say what generates the tax liability (and the obligations of recording and reporting), is not consumption but a particular form of transaction, namely supply ..." By way of contrast to the Australian system, counsel for the Commissioner referred to Art 2(1) of the first Council directive [Directive 67/227] on the harmonisation of legislation of member states of the European Community concerning turnover taxes; this indicates that VAT is a general tax on the consumption of goods and services. 4 Section 7-1 of the Act relevantly states that GST is payable on "*taxable supplies" [The use of the asterisk is a device to alert the reader to the presence of a definition in the Dictionary to the Act ]. Section 9-5 answers a question "what are taxable supplies?", posed by a hypothetical taxpayer, by stating that "you make a taxable supply " if, among other criteria not presently relevant, "you make the supply for *consideration". 5 The composite expression "a taxable supply" is of critical importance for the creation of liability to GST . In the facts and circumstances of a given case there may be disclosed consecutive acts each of which answers the statutory description of "supply", but upon examination it may appear that there is no more than one "taxable supply". 6 The meaning of "supply" is given in s 9-10 and in addition to the general words "any form of supply" in s 9-10(1), par (d) of s 9-10(2) includes "a grant, assignment or surrender of *real property", and "real property" is defined [In the Dictionary provision of s 195 -1].expansively as including: (a) any interest in or right over land; or (b) a personal right to call for or be granted any interest in or right over land; or (c) a licence to occupy land or any other contractual right exercisable over or in relation to land". Further, par (g) of s 9-10(2) includes "an entry into ... an obligation ... to do anything. 7 The term "consideration" is defined in par (a) of s 9-15(1) as including: "any payment, or any act or forbearance, in connection with a supply of anything". The payment, act or forbearance may be voluntary and need not be by the recipient of the supply (s 9-15(2)). 8 The amount of GST on a taxable supply is 10 per cent of "the value of the taxable supply" (s 9-70), and in the present case this was assessed as being the consideration represented by the forfeited deposit. 9 Division 29 lays down rules for the attribution to a tax period of the GST payable on a taxable supply. The general rule (s 29-5) is that the supplier becomes liable to pay GST on the earlier of two events, namely the receipt by the supplier of any of the consideration for the taxable supply, and the issue of an invoice relating to that supply; in the present case no invoice was issued by the taxpayer and the only relevant event was the receipt of the alleged consideration. [Emphasis added in quotation of paragraph 5; footnote references incorporated into text of quote for reasons of different style requirements] 34 Given its "critical importance for the creation of liability to GST", it is as well to set out in full the text of s 9-5 of the GST Act : 9-5 - Taxable supplies You make a taxable supply if: (a) you make the supply for *consideration; and (b) the supply is made in the course or furtherance of an *enterprise that you *carry on; and (c) the supply is *connected with Australia; and (d) you are *registered, or *required to be registered. However, the supply is not a *taxable supply to the extent that it is *GST-free or *input taxed. 35 Reading the passage quoted from Reliance Carpet and s 9-5, and seized with the knowledge that an order for the winding up of a corporation does not vest its property in its liquidator one might, without more, think that the answer to the question posed in this case was clear; the sale of Lot 8 could only be a supply by PMD, not by Mr Greig. That is because the "supply" of Lot 8 was, prima facie , made by PMD and it was that corporation, not Mr Greig, to which the consideration for the sale of Lot 8 was payable and paid under the contract. 36 This position is submitted by the Commissioner to be affected by the operation of Div 147 of the GST Act in a way which renders Mr Greig personally liable for the GST payable in respect of the sale of Lot 8. 37 The nature of the Commissioner's submission is such that the whole of Division 147 should be set out: Division 147--Representatives of incapacitated entities 147-1 What this Division is about Representatives of incapacitated entities may be required to register for GST purposes. 147-5 Representatives are required to be registered (1) A *representative of an *incapacitated entity is required to be registered in that capacity if the incapacitated entity is *registered or *required to be registered. (2) This section has effect despite section 23-5 (which is about who is required to be registered). 147-10 Cancellation of registration of a representative (1) The Commissioner must cancel the *registration of a *representative of an *incapacitated entity if the Commissioner is satisfied that the representative is not *required to be registered in that capacity. Note: Cancelling the registration of a representative under this subsection is a reviewable GST decision (see Subdivision 110-F in Schedule 1 to the Taxation Administration Act 1953 ). (2) The Commissioner must notify the *representative of the cancellation. (3) Sections 25-50 and 25-55 do not apply to the cancellation of the *registration of a *representative of an *incapacitated entity. 147-15 Notice of cessation of representation A *representative who ceases to be a representative of an *incapacitated entity must notify the Commissioner of that cessation, in the *approved form, within 21 days after so ceasing. 147-20 Adjustments (1) If: (a) an *adjustment relates to a supply, acquisition or importation that an *incapacitated entity made before a *representative of the incapacitated entity was appointed; and (b) the adjustment arises after that appointment; and (c) in the case of an *increasing adjustment--the representative gives the Commissioner written notice that: (i) states that the adjustment has arisen in these circumstances; and (ii) specifies the amount of the adjustment; the adjustment is to be treated as if: (d) the representative did not have the adjustment; and (e) the incapacitated entity had the adjustment. (2) This section has effect despite section 17 - 10 (which is about the effect of adjustments on net amounts). 147-25 Tax periods of representatives (1) If a *representative of an *incapacitated entity is required to be registered in that capacity, the tax periods applying to the representative in that capacity are the same tax periods that apply to the incapacitated entity. (2) This section has effect despite Division 27 (which is about how to work out the tax periods that apply).


case_text: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation [1981] HCA 26 ; (1980-1981) 147 CLR 297 was referred to in the course of the Commissioner's submissions as providing an alternative basis upon which to find that a liquidator was personally liable for post liquidation supplies. No doubt if the literal meaning of any of the provisions within Div 147 produced an irrational or absurd result this case might be called in aid so as to prefer an alternative construction, especially if that construction was evidently intended by an amending Act having regard to the history of the legislation. The difficulty here though is not with the literal meaning of statutory provisions but with the complete absence of basal deeming provisions necessary to achieve the end of rendering a liquidator personally liable in a way which is contrary to the position prevailing under both the general law and the ordinary position under s 9-5. 57 Within the GST Act it is s 9-5, not any of those in Div 147, which is the leading provision. The elements within s 9-5 are cumulative. To require a liquidator to register is to bring that official within but one of the four elements that cumulatively comprise a "taxable supply", so far as a post liquidation sale of property of the corporation is concerned. The registration requirement does not carry with it the other three. To regard Div 147 as achieving this is to give its provisions a weight that their language cannot bear, especially so as to create a counter intuitive taxation liability on the part of a liquidator. 58 As the GST Act presently stands, the effect of requiring a liquidator of a corporation to register will be that any supplies which the liquidator makes in that "representative" capacity in the event that any property of the corporation is ordered to be vested in him will become a "taxable supply" by him in that capacity; otherwise the disposal of the property of a corporation, insofar as that constitutes a supply for the purposes of the GST Act, will remain a taxable supply by the corporation and have to be accounted for and paid by it accordingly.


case_text: No assessment has been raised by the Commissioner in respect of the GST said to owed to the Commonwealth by the liquidator personally as a result of the post-liquidation sale of Lot 8. In these proceedings the tender of such an assessment would have been conclusive evidence of that liability: s 105-100 Sch 1, Taxation Administration Act 1953 ; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd [2008] HCA 41 ; (2008) 82 ALJR 1411 , at 1418 [33] and 1420 [40] to [45] .


case_text: An assertion as to its meaning and effect in an explanatory memorandum circulated by or with the authority of the Minister introducing a Bill into Parliament, like the Second Reading Speech in respect of that Bill, is not a substitute for the language employed by the Parliament in the Bill as enacted: Re Bolton; ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514 , at 518; Director of Public Prosecutions (Victoria) v Le [2007] HCA 52 ; (2007) 232 CLR 562 at 573, [29] and 586, [85]. It is the duty of the courts to construe enactments, not to make them. If, truly, the language of an enactment does not translate into law a meaning and effect that one might apprehend from secondary materials was intended it is for the Parliament to rectify that by further legislative provision.


case_text: These are not the only principles of statutory construction which are at large in this case. The GST Act is a taxing statute. Giving full measure to the reminders offered in Project Blue Sky v ABA , it remains the case, in my opinion, that the subjection of a person to tax by Parliament requires clarity of language, not inexactitude or indirect references. Especially that is so where the asserted subjection of a particular person to tax is counter intuitive to what one might expect having regard to the prevailing general law position and the otherwise usual incidence of the tax in question. I conceive that the following passage from the judgment of Deane J in Hepples v Commissioner of Taxation [1992] HCA 3 ; (1991-1992) 173 CLR 492 at 510-511 is indicative of the contemporary approach to take to the construction of a taxing statute: There has been a marked, and justifiable, tendency in recent times for the courts to construe taxation provisions as being directed to the substance as well as the form of transactions to an extent which previously would have been thought to be inconsistent with statements of high authority in cases such as Partington v. The Attorney-General (1869) LR 4 HL 100, at p 122, and Inland Revenue Commissioners v. The Duke of Westminster [1936] AC 1 , at pp 20, 24-25, 28, 31. Nonetheless, at least in cases where tax avoidance is not involved and where the substance of relevant transactions is not concealed by artificialities of form, the basic 'principles of statutory construction' of taxing provisions remain those identified and explained by Rich and Dixon JJ. in their joint judgment in Anderson v. Commissioner of Taxes (Vict.) [1937] HCA 24 ; (1937) 57 CLR 233 , at p 243. It is appropriate to repeat what their Honours there said: In Brunton v. Commissioner of Stamp Duties ((1913) AC 747 , at p 760), Lord Parker of Waddington, speaking for the Privy Council, says: "The intention to impose a tax or duty, or to increase a tax or duty already imposed, must be shown by clear and unambiguous language and cannot be inferred from ambiguous words." This rule he again emphasized in Attorney-General v. Milne ([1914] AC 765 , at p 781), where he said, in the House of Lords: "The Finance Act is a taxing statute, and if the Crown claims a duty thereunder it must show that such duty is imposed by clear and unambiguous words." In Ormond Investment Co. v. Betts ([1928] AC 143 , at p 151), Lord Buckmaster, although differing from the majority of their Lordships and holding that in the particular case the Crown had satisfied the burden lying upon it, described the rule as a "cardinal principle ... a principle well known to the common law that has not been and ought not to be weakened - namely, that the imposition of a tax must be in plain terms." He added: "The subject ought not to be involved in these liabilities by an elaborate process of hair-splitting arguments." Lord Atkinson, who agreed in the decision of the House, expressed the rule as follows (at p 162): "It is well established that one is bound, in construing Revenue Acts, to give a fair and reasonable construction to their language without leaning to one side or the other, that no tax can be imposed on a subject by an Act of Parliament without words in it clearly showing an intention to lay the burden upon him, that the words of the statute must be adhered to, and that so-called equitable constructions of them are not permissible". 28 Before proceeding to a more detailed consideration of the provisions of the GST Act it is instructive to consider some aspects of the general position of liquidators. 29 When a corporation is being wound up in insolvency, the liquidator's duty is to take into his custody or under his control all of the property to which the corporation is or appears to be entitled: s 474(1) of the Corporations Act . Control of the corporation concerned is removed from the hands of its director or directors and vested in the liquidator for the purposes of the winding up of the corporation in insolvency in accordance with the provisions of the Corporations Act : s 471A(1) of the Corporations Act .


case_text: Where an assessment has not been made, this Court has jurisdiction to grant declaratory relief in an appropriate case against the Commissioner in respect of a Commonwealth revenue law controversy: s 39B(1A)(c) of the Judiciary Act 1903 (Cth); Oil Basins Ltd v Commonwealth of Australia [1993] HCA 60 ; (1993) 178 CLR 643. Thus, even though the relief sought by the liquidator, insofar as declaratory relief is sought against the Deputy Commissioner, might be thought to extend beyond the bounds of the provision of directions under the Corporations Act , there is ample jurisdiction nonetheless to grant it. As to the cross-claim for declaratory relief made by the Deputy Commissioner, s 39B(1A)(a) of the Judiciary Act is a source of jurisdiction. 20 Jurisdiction to grant declaratory relief is one thing; whether or not as a matter of discretion such relief ought to be granted is another. The Taxation Administration Act 1953 makes comprehensive provision for the resolution of Commonwealth revenue law controversies. That Act contemplates that, ordinarily, the Commissioner's view of the meaning and application of a Commonwealth revenue law will be reflected in an assessment with the recipient of the assessment then being granted, by the provisions of Part IVC of that Act, a right of objection and, if dissatisfied with the Commissioner's objection decision, an ability to challenge the objection decision either by way of review in the Administrative Appeals Tribunal (AAT) or on a so-called "appeal" heard in the original jurisdiction of this Court. 21 Unlike income tax, where liability to pay that tax is not complete until the making of an assessment, liability to pay GST is not dependent on the making of an assessment by the Commissioner. Even so, by s 105-10 in Sch 1, the Taxation Administration Act anticipates that a person whom the Commissioner asserts to be subject to a liability to GST may require the Commissioner to make an assessment, thereby initiating the process that may lead to external merits review by the AAT or the exercise of original jurisdiction by this Court in a taxation appeal.


case_text: It is possible for a liquidator to secure from this Court or another invested with jurisdiction under the Corporations Act an order vesting in him in his official capacity some or all of the property of a corporation being wound up in insolvency: s 474(2) of the Corporations Act . However, as is noted in the definitive Australian text on corporate insolvency law, McPherson's Law of Company Liquidation, p 7-1053, such applications are uncommon given the wide powers conferred on liquidators by the Corporations Act . At least in some jurisdictions, one circumstance which might prompt a liquidator to seek such an order is a need in the course of a liquidation to lodge a caveat: Re Application by the Liquidator of Haupiri Courts Ltd [1969] NZLR 348; Muroa Pty Ltd v O'Meara (1997) 15 ACLC 1427.


case_text: In this case, exceptionally, it seems to me appropriate, as a matter of discretion, not to withhold the granting of declaratory relief. I do so for these reasons. The declaratory relief has been sought in this Court, which unlike these days a State or Territory Supreme Court, is the usual forum for the resolution of Commonwealth revenue law liability controversies. The point raised is novel, controversial not only between the parties but evidently also in academic literature (see Anderson and Morrison, GST and Insolvency Practitioner Liability: Who are you? (2001) 11 Revenue LJ 23) and one of pervasive significance to corporate insolvency administration. The latter factor was recognised by the Deputy Commissioner in submissions and evidenced by his disposition, exceptionally, to pay the liquidator's taxed party and party costs of and incidental to the application in any event and, equally exceptionally, by his obviously considered decision not to make and tender an assessment, which would be the usual course for the Commissioner to adopt in a proceeding such as this in either this Court or, a fortiori , in a State or Territory Supreme Court: see, e.g. Platypus Leasing Inc v Commissioner of Taxation (2005) 61 ATR 239 (NSW Court of Appeal). There is no evidentiary controversy. Further, and as was also conceded on behalf of the Deputy Commissioner in submissions, the point is one always destined for this Court even in the event of assessment with the raising of the same and determination of an objection and attendant delays and related expenses only serving, in the circumstances, further to diminish such funds as may be available for distribution to creditors (principally, the Commissioner on behalf of the Commonwealth). 25 I turn then to consider the substantive revenue law liability question raised in the proceeding.


case_text: In their joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 381-382, [69] to [71] McHugh, Gummow, Kirby and Hayne JJ offer an authoritative reminder that consistency as between the relevant statutory provision and the language and purpose of all provisions of the statute is the primary object of statutory construction and of the correlative need to construe a statute as a whole, not piecemeal, with careful regard to context, purpose and with the object of giving sensible meaning to all of the language employed by Parliament. Their Honours also remind that the reconciliation of conflicting provisions may well require the ascertainment of which is the leading provision to which others in apparent conflict should yield so as to achieve, if possible, a conformity of meaning. I accept readily the Deputy Commissioner's submission that these principles should inform the approach to deciding whether Division 147 of the GST Act renders Mr Greig personally liable for GST in respect of the sale of Lot 8.


case_title: Re Application by the Liquidator of Haupiri Courts Ltd [1969] NZLR 348


case_title: Re Bolton; ex parte Beane [1987] HCA 12 ; (1987) 162 CLR 514


case_text: I am satisfied that, in the events that have transpired, there is a justiciable "matter" with the present being a proceeding in that matter: In Re Judiciary and Navigation Acts [1921] HCA 20 ; (1921) 29 CLR 257.


case_text: To note this particular absence of s 9-5 reference quality in Div 147 is to note a resemblance between the provision in s 147-5 of the GST Act for the registration of representatives of incapacitated persons and the position which prevailed under the Goods and Services Tax Act 1985 (NZ) (the NZ GST Act) as originally enacted. Subsection 58(1) of the NZ GST Act originally allowed the Commissioner for Inland Revenue to deem such persons to be registered. Section 58 of the NZ GST Act was amended in 1992 by s 11 of the Goods and Services Tax Amendment Act (No 2) 1992 (NZ) so as to substitute a new subsection 1 and, tellingly, to add a new subsection, s 58(1A) which provided, materially that, "For the purposes of this Act ..., where any person becomes a specified agent [defined so as to include a liquidator] that person shall ... be deemed to be a registered person carrying on the taxable activity of the incapacitated person during [the agency period] and the incapacitated person shall during that period be deemed not to be carrying on that taxable activity" . Section 58 of the NZ GST Act has since been further amended so as to remove an anomaly in the operation of this subsection exposed in Case W59 (2004) 21 NZTC 11,551 (Willy DCJ constituting the Taxation Review Authority). Perhaps surprisingly, given the affinities between New Zealand's GST regime and Australia's, Div 147 contains no equivalent to s 58(1A) of the NZ GST Act .


case_outcome: related

case_text: applicant seeks an extension of time within which to file an Application for Leave to Appeal from a judgment of Emmett J, delivered on 26 August 2009 ( Budd v Secretary, Department of Housing, Families and Community Services and Indigenous Affair s [2009] FCA 961). In that judgment, pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth) ( the Federal Court of Australia Act ), his Honour dismissed an appeal brought by the applicant pursuant to s 44 of the Administrative Appeals Tribunal Act 1975 (Cth) from a decision of the Administrative Appeals Tribunal ( the Tribunal ) given on 25 June 2009. In the Tribunal, the applicant sought a review of a decision of the Social Security Appeals Tribunal given on 4 September 2008. That decision had affirmed earlier decisions by Centrelink to reject a claim for a crisis payment made by the applicant on 11 July 2008 pursuant to s 1061JH of the Social Security Act 1991 (Cth) ( His Honour was unable to discern any question of law that the applicant sought to have determined by him. His Honour looked at the contentions and arguments advanced by the applicant and held that the applicant's appeal before him had no prospect of succeeding. Emmett J carefully reviewed the decision of the Tribunal and the catalogue of complaints which the applicant sought to raise before him. His Honour referred to the terms of s 44(1) of the Administrative Appeals Tribunal Act and noted that the appeal to this Court under that section must be on a question of law. His Honour said ( Budd [2009] FCA 961 at [9] ): The existence of a question of law is not merely a qualifying condition to ground the appeal but is also the subject matter of the appeal itself (see TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation [1988] FCA 119 ; (1988) 82 ALR 175 at 178). In the absence of a question of law within the meaning of s 44(1) of the AA Tribunal Act, the jurisdiction of the Federal Court is not enlivened. His Honour then referred to s 31A of the Federal Court of Australia Act and moved on to consider the applicant's Notice of Appeal. At [18] and [19], his Honour said: The amended notice of appeal is clearly embarrassing. It is highly repetitious and quite incomprehensive [sic] in many respects. It repeats several times the contention that the AA Tribunal misconceived Ms Budd's complaint and misunderstood the medical report upon which she based her complaint. The documents of 19 August 2009 and 20 August 2009 are again repetitious of the complaint that the AA Tribunal failed to have regard to all of the evidence. The documents take issue with the matters considered by the AA Tribunal in concluding that Ms Budd failed in her contention that she had left or could not return to her home because of an extreme circumstance as is required by s 1061JH(1)(a) of the SS Act. The extensive further material that has been provided by Ms Budd serves only to confirm that she is seeking to invite the Court to canvass the factual conclusions reached by the AA Tribunal. His Honour then went on to hold that he could not discern a question of law raised by the applicant, and that, therefore, the appeal before him should be dismissed pursuant to s 31A of the Federal Court of Australia Act . The applicant must demonstrate that she has some prospects of succeeding in overturning his Honour's decision. In order to do that, the applicant must identify some error on the part of his Honour and demonstrate to a sufficient degree that she has a real prospect at a final hearing of establishing that the identified error was, in fact, made. The applicant has conspicuously failed to identify any error on the part of his Honour. All that she has done is to repeat her many complaints about the merits of the decision made by the Tribunal and the prior decision-makers. This is not a sufficient basis to ground an appeal in this Court from his Honour's decision. For these reasons, although I am satisfied that the applicant has explained the delay in making her application for an extension of time for leave to appeal, I am far from satisfied that she has any prospects of succeeding in any appeal that might be lodged were leave to be granted. In those circumstances, I propose to dismiss the application with costs. After I delivered the above reasons for judgment, the applicant became disconnected from the telephone link to the Court which she had enjoyed throughout the hearing. Perhaps she hung up. At about the time we lost communication, Mr Markus, who appears for the respondent, sought a lump sum costs order against the applicant in the amount of $500. The applicant has not had an opportunity to address that application. However, it seems to me that the costs order which I have made, if taxed, would result in a sum of money far in excess of $500 being awarded to the respondent. In those circumstances, and in order to avoid unnecessary waste of time, money and effort, I propose to accede to Mr Markus' application. I will amend the order for costs which I have made to add the words, "assessed at $500". The orders of the Court are: (1) That the application made by the applicant in her Notice of Motion filed on 21 September 2009 for an order extending the time within which she might have leave to appeal from the decision and judgment of Emmett J delivered on 26 August 2009 be dismissed. (2) I order that the applicant pay the respondent's costs of and incidental to that application, assessed at $500. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 8 October 2009 The Applicant appeared in person via telephone link Solicitor for the Respondent: Mr A Markus of Australian Government Solicitor Date of Hearing: 6 October 2009 Date of Judgment: 6 October 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1138.html


case_text: Tribunal, correctly, in my view, identified the basis of the claim and proceeded to deal with the merits of the claim, beginning at [9] of its Reasons for Decision. In particular, the Tribunal referred to and relied upon a decision of Heerey J in this Court in Arcibal v Secretary Department of Family & Community Services (2002) 36 AAR 53 , where his Honour discussed the meaning of the expression " extreme circumstances ". His Honour referred to and relied upon the Oxford English Dictionary's definition of the word " extreme ", ie, as meaning " presenting in the utmost degree some particular characteristic ". His Honour held that the Tribunal was entitled to look at the whole of the circumstances in which an applicant leaves his or her home, when considering an application under s 1061JH(1)(a). In the case before his Honour, those circumstances included the provision of alternative accommodation during the period of absence. At [16] of its Reasons, the Tribunal said: While it was necessary for the Applicant to leave her home while the bathroom renovations were carried out, unsatisfactorily in her view, I do not accept that that was an extreme circumstance because: (a) NSW Housing arranged for and paid for the alternative temporary accommodation at a hotel; (b) The Applicant was given cabcharges to transport herself from home to the hotel and from the hotel back to home; (c) The Applicant was not rendered homeless; and (d) During the renovations, the Applicant continued to receive disability support pension (DSP).


case_outcome: applied

case_text: dealing with such an application, the Court has a discretion which must be exercised judicially. The likelihood of leave to appeal being granted is a relevant consideration ( Deighton v Telstra Corporation Ltd [1997] FCA 1568). The applicant must also explain the delay (see Croker v Philips Electronics Australia Limited [2000] FCA 1731).


case_text: question of the prospects of success of the application for leave to appeal is to be decided in accordance with the well-known judgment of Décor Corp Pty Ltd v Dart Industries Inc [1991] FCA 655 ; (1991) 33 FCR 397 at 398 400. The test to be applied in most cases is two-pronged. The Court must be satisfied that the decision in respect of which leave is sought is attended with sufficient doubt to warrant its being reconsidered by an appellate court and that substantial injustice would result if leave were to be refused, supposing the decision to be wrong. The applicant has filed an affidavit in support of her Application. In that affidavit, she has referred to the fact that she suffers a number of mental illnesses. She has also referred to her dealings with an officer of the Court who works in the Registry. She mentioned both of these matters in order to explain the delay between the date when she should have filed her Leave Application and the date when she filed the Application with which I am presently dealing. The delay was a period of some two and a half to three weeks. I am of the view that the applicant has sufficiently addressed the question of delay and that the reasons which she has given provide a reasonable explanation for her failure to lodge her Application for Leave to Appeal within time. In her affidavit, the applicant also seeks to come to grips with the second part of the test articulated in Décor 33 FCR 39, that is to say, the prospects of her Application for Leave to Appeal. She asserts that the primary judge denied her procedural fairness. It seems that the basis of this assertion is that his Honour only allowed a very short time to the applicant to secure the services of a lawyer in order to assist her in arguing the application which she had brought before his Honour. The applicant did not provide further evidence in support of her assertion that she was denied procedural fairness. His Honour commenced the hearing of the application before him on 14 August 2009 and adjourned that hearing to 20 August 2009 in order to enable the applicant to secure the services of a lawyer, were she able to do so. In the events which happened, she was unable to do so, although she took advantage of the week's adjournment to furnish further materials to his Honour. There is nothing in the allegation that his Honour failed to accord procedural fairness to the applicant. The other group of matters relied upon by the applicant is to be found in the draft Notice of Appeal which she has annexed to her affidavit in support of the current application. It is extremely difficult to discern any particular point sought to be raised by the applicant by way of appeal. She asserts, both in the draft Notice of Appeal and in her oral submissions made today, that she has been dealt with unfairly. The gravamen of that complaint seems to be that the Tribunal made the wrong decision when it confirmed the Social Security Appeals Tribunal decision to reject the applicant's claim for a crisis payment. Doing the best I can with the text of the draft Notice of Appeal, I can see no other ground raised. The Tribunal had before it a claim for a crisis payment pursuant to s 1061JH of the Social Security Act . The ground for that claim was that the applicant had left, or could not return to, her home because of an extreme circumstance. The essential facts said to underpin that claim were not in dispute before the Tribunal. The Tribunal held that the applicant suffered from psychiatric conditions, including agoraphobia and social anxiety disorder. It noted that she receives a disability support pension and lives in accommodation provided by the New South Wales Department of Housing. On 16 June 2008, the applicant had to leave her home and stay in temporary hotel accommodation that was provided and paid for by New South Wales Housing, whilst it had renovations carried out to the bathroom of her home. She returned to her home on 24 June 2008. She made her claim for a crisis payment in respect of the period from 16 June 2008 to 24 June 2008, on account of the temporary move to which I have referred. During that period, she continued to receive her pension.


case_title: Deighton v Telstra Corporation Ltd [1997] FCA 1568


case_text: decision of his Honour was interlocutory (see Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117 at [32] [43]; Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 ; and Wills v Australian Broadcasting Corporation (2009) 173 FCR 284). For that reason, leave to appeal from that decision is required.


case_title: Kowalski v MMAL Staff Superannuation Fund Pty Ltd [2009] FCAFC 117


case_title: Wills v Australian Broadcasting Corporation (2009) 173 FCR 284


case_text: The federal magistrate had previously dealt with the matter in a way which was beneficial to the applicant. However, that initial determination was set aside by a Full Court of this Court in Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501. In the first of his judgments the learned federal magistrate had determined that the applicant was entitled to prerogative writs on the basis of the fraud of a migration agent. He was able to identify sufficient elements in the evidence before him to make good that determination of fraud. The Full Court held that the evidence which was before the federal magistrate could not, at the requisite Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 standard, make good the fraud allegation. The Court remitted the matter back to the federal magistrate to be determined in accordance with its reasons. The federal magistrate then conducted a rehearing. At the rehearing, some additional material was placed before the federal magistrate. Some of that material was accepted. Part of that material was rejected.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: The primary application before me is, of course, an application pursuant to Order 52 rule 15(2) of the Federal Court Rules to allow the filing and service of the notice of appeal out of time. That rule is only activated if there are present special reasons. What is connoted by the concept of special reasons is discussed in the Full Court's decision in Jess v Scott (1986) 12 FCR 187 at 195 in the following terms: ... an expression describing a flexible discretionary power, but one requiring a case to be made upon grounds sufficient to justify a departure, in the particular circumstances, from the ordinary rule prescribing a period within which an appeal must be filed and served. 9 I do not think that the explanation which has been proffered for the delay constitutes special circumstances. The affidavit material proffered by the applicant this morning did not disclose anything other than that he had missed the time limit because he had made an ongoing ministerial intervention request. That would not constitute a special reason. The mere fact that one avenue is being pursued does not justify not pursuing another. Certainly, even to the extent that it could, that extent could not be described as constituting special reasons. 10 When the matter came before me this morning the applicant also relied on some correspondence which was tendered. That correspondence does not establish anything other than that he sought to withdraw his application for a bridging visa. That does not constitute special reasons or, indeed, any reasons at all. In all those circumstances, but particularly having regard to the apparent futility of the proposed appeal, it is inappropriate to exercise the discretion in the applicant's favour. It follows that the application for an extension of time pursuant to Order 52 rule 15(2) must be dismissed.


case_outcome: referred to

case_title: Minister for Immigration and Citizenship v SZLIX [2008] FCAFC 171 ; (2008) 245 ALR 501


case_text: The applicant's solicitor has sworn that the applicant is impecunious. The Commonwealth submitted that, while this is not a decisive factor when the party is a natural person resident in Australia, it is a significant factor in its favour where, as here, the applicant resides outside Australia and has not established any assets against which a judgment for costs can be enforced (per Cooper J in Re Skase; Ex parte Skase v Abbott [1992] FCA 534 at 10) . The applicant submitted that it would be a curious result that an impecunious person within jurisdiction could not be ordered to pay a security, but one outside the jurisdiction could, when the place of residence does not affect the impecuniosity. In Barton v Minister for Foreign Affairs (1984) 2 FCR 463 (' Barton '), Morling J said (at 469): ' ...in my view...it would be an odd result if an impecunious plaintiff was ordered to give security merely because he was ordinarily resident outside Australia, although his absence from Australia had little, if any, prejudicial effect on the respondent's prospects of recovering his costs. ' 17 The Commonwealth submitted that any damages this Court may award the applicant in the event that he is successful will be less than the debts he allegedly owes the Commonwealth. The Commonwealth has given an undertaking to this Court that it will file a cross-claim for those debts should the matter proceed. Those debts arise from the costs incurred by the Commonwealth both in holding the applicant in custody as an unlawful citizen (although excluding the period for which the applicant now claims wrongful imprisonment), and in removing him to South Korea. In addition there is an unpaid order for costs in the sum of $4800 made by this Court in an unsuccessful challenge to the decision of the Immigration Review Tribunal to refuse him a bridging visa. The Commonwealth's evidence is that the debt is approximately $181 000 (not including costs attributable to the contested period). 21 The applicant submitted that the authorities establish that where there is reciprocal legislation for the enforcement of foreign judgments, any security ordered is to be limited to the costs of enforcement in the other jurisdiction: see Connop v Varena [1984] 1 NSWLR 71 (' Connop ') at 75 per Rath J; Barton at 470 per Morling J; D S Parklane Development Pty Ltd v Korea First Finance Ltd (unreported, Supreme Court of New South Wales, Santow J, 20 August 1997) at 6; Bou-Simon v Attorney-General of the Commonwealth of Australia [1998] FCA 1701 at 5-6; Ogawa v University of Melbourne [2004] FCA 491 at [42] - [43] per Marshall J; Mindshare Communications Ltd v Orleans Investment Pty Ltd [2000] FCA 251 at [33] - [40] per Katz J. 22 In Connop , Rath J said (at 74): '[T] here may be some delay, inconvenience and expense arising from registration and execution of a judgment in New Zealand; but apart from this I see no difference in regard to the costs of the ... defendants between the circumstances of this case and those of a similar case where a plaintiff is not ordinarily resident outside the State. ' 23 The Commonwealth furnished no evidence as to the potential costs of enforcing a judgment in South Korea or in Australia. The Korean lawyer's advice included a break down of the costs of registering a judgment in South Korea, which amounted to less than $1000. This amount covers the cost of registering the judgment, service fees, and court-assessed legal costs. 24 I accept that, as a practical matter, the apparent debt to the Commonwealth may and would be sued on as a cross-claim and, to the extent that such a claim may be made out, it could operate to reduce any judgment that might otherwise be given for damages recoverable by Mr Soh. There is no justification, however, for concluding that the applicant's claim against the Commonwealth will necessarily or even very likely be futile. There may be some defence to the projected cross-claim and it is too early to estimate Mr Soh's possible damages. Reference to other wrongful imprisonment cases is of dubious value. 28 The Commonwealth has, however, no valid claim to be put in a better position than if Mr Soh were present in Australia. Morling J's approach in Barton is in point here (see 469-470). If he were in Australia his impecuniosity should be taken as a given. If the Commonwealth assertions in the litigation are vindicated, the Commonwealth could take steps to establish the veracity of his claim to be impecunious and, if thought fit, to issue execution. It is certain that there would be some costs associated with this. 29 I accept that any costs order obtained by the Commonwealth would be enforceable in South Korea. The absence of expert evidence from a Korean lawyer to the contrary is telling. The inferences as to continuing reciprocity between Australia and South Korea, which arise from the terms of the Act and the fact and terms of the relevant Regulations, are the more easily drawn because of such absence. The consequence is that the only worsening of the Commonwealth's position would be in relation to attempted execution of the costs order in South Korea against the possibility that the applicant's claim of impecuniosity is false. It may well be that such costs would exceed the costs of execution in Australia to some unknown degree.


case_title: CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Ltd (1987) 72 ALR 270

case_text: In CBS Records Australia Ltd v Telmak Teleproducts (Aust) Pty Limited (1987) 72 ALR 270 (' CBS Records '), Bowen CJ said at 284-5: 'Counsel for the respondent also asked for an order for security for costs to be made ... in accordance with O 28, r3(1)(a). This rule certainly gives a discretion to the court to make an order for security. However, it appears to me that it is a discretion to be exercised upon rational grounds and any party applying for security carries the onus of establishing a case showing that security should be granted. The fact that an applicant is ordinarily resident outside Australia is a precondition to an application under that part of the rule but is not sufficient in itself, in my view, to induce the court to exercise its discretion to make an order, particularly in circumstances such as the present. No evidence was given to assist the court in relation to the amount which might be required for security. I am not persuaded that I should exercise the discretion conferred by O 28, r3(1)(a) to make an order for security for costs as asked by the respondent.' 6 Order 28 r 3 of the Federal Court Rules provides that, when considering an application for security for costs, the Court may take into account, among other things, that the applicant 'is ordinarily resident outside Australia'. The Commonwealth submitted that this is a factor to which great weight must be given in this case. 7 Whilst the applicant did not deny that his extra-territorial residence was a factor to be considered, he demurred as to the weight to be given to it, arguing that 'other circumstances' exist in this case. The applicant submitted that, by virtue of South Korean legislation and inferences to be drawn from the Foreign Judgments Act 1991 (Cth) ('the Act') and the Foreign Judgment Regulations 1992 (Cth) ('the Regulations'), the Commonwealth would be able to enforce any judgment for costs against the applicant in the District Court of South Korea. 8 Section 5(1) of the Act provides: ' If the Governor-General is satisfied that, in the event of the benefits conferred by this Part being applied to money judgments given in the superior courts of a country, substantial reciprocity of treatment will be assured in relation to the enforcement in that country of money judgments given in all Australian superior courts, the regulations may provide that this Part extends in relation to that country '. 9 Section 5 is in Pt 2 of the Act. The Regulations provide that South Korea is a country to which Pt 2 applies (see reg 3 and the Schedule to the Regulations). Regulation 4 provides that a court listed in the Schedule to the Regulations is a superior court for the purposes of the Act. The District Court of South Korea (the Republic of Korea) is so listed. 30 There is some evidence that the Korean costs would be under $1000. I agree with the Commonwealth that such evidence appears, on the face of it, not to be entirely persuasive. However the Commonwealth has avoidably left the Court to speculate about a proper or better estimate. That is very unsatisfactory. There are unavoidable occasions, for example in some cases of assessment of damages, where a court must engage in speculation in order to do a degree of justice, however imperfect. But courts should not seek out occasions to speculate nor should they do so to fill gaps which the litigant urging the speculation could readily have obviated. I consider it is inappropriate in the present case to act on an entirely speculative basis. If a party seeks security for costs it is reasonable for the Court to insist that at least the best practicable efforts at estimation of the relevant costs be made. CBS Records is in point here. What is at stake is a potential fetter, which may prove insuperable, to a party seeking relief being heard by the Court. 31 I accept that it is likely that there would be some costs in Australia associated with the Korean costs of execution but, again, I am disinclined to speculate about the extent of them. 32 It follows that there is no sound basis for a conclusion that the costs of executing in South Korea (including some 'double-handling' costs in Australia) would significantly exceed the costs of executing in Australia.


case_text: An order for security for costs is an exercise of discretion by the court in which the court must weigh all of the circumstances of the case: P S Chellaram & Co Ltd v China Ocean Shipping Co [1991] HCA 36 ; (1991) 102 ALR 321 per McHugh J at 323 ( 'Chellaram' ). However, as McHugh J said (at 323): '[F]or many years the practice has been to order [a non-resident] party to provide security for costs unless that party can point to other circumstances which overcome the weight of the circumstance that that person is resident out of and has no assets within the jurisdiction'.


case_text: The applicant also challenges the Commonwealth's prospect of substantial success on the cross-claim, foreshadowing an argument that the statutory imposition of the charges relied on contravenes s 55 of the Constitution . However Kenny J has ruled otherwise on a similar question: see Qureshi v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 11 ; (2005) 142 FCR 444 (' Qureshi' ). 26 In general it seems to me that, in principle, a case for security being ordered has been made out. Such is the strong prima facie position in relation to a claim brought by a person outside the jurisdiction of the Court. The major argument to the contrary is that the litigation, both as constituted and as projected (in the light of the intended cross-claim), involves important questions which it would be in the public interest to have determined. Whether under the guise of immigration detention it is lawful to incarcerate a detainee in a place of punishment, if that is what has occurred, is in my opinion, such a question. Whether there is no legal obstacle to the Commonwealth levying and conclusively quantifying the amount of the levy against a detainee the alleged costs of the detention is also such a question. (I understand Kenny J in Qureshi at [83]-[84] to have upheld the constitutionality of such a levy but not, by her judgment, necessarily to have foreclosed an argument about the legality of the conclusive quantification. In any case, Mr Soh wishes, if pressed, to challenge the correctness of her Honour's decision). 27 The public interest aspects of the matter do not, however, outweigh the strong presumption that an appropriate amount of security for costs should be ordered. Interesting and important as the questions may be, the Commonwealth is still in the position of a party faced with obviously considerable potential costs. I know little about the strength of the applicant's substantive arguments. Departures from the usual rule should not readily be made. Additionally, the good chance that the proceedings will not practically assist Mr Soh, because of the apparent debt to the Commonwealth, confirms such an approach.


case_text: In the circumstances, I am not satisfied that I can fairly estimate an appropriate amount for an order for security of costs. I decline simply to speculate and therefore will not make the order asked. In any case, my best guess is that any such amount would be quite modest. The likely relatively modest amount that might in any case be awarded also tells in favour of the course I propose. A somewhat similar approach was adopted by Cole J in Swain Investments Limited v Danumet Pty Limited & Anor (unreported, Supreme Court of New South Wales, Cole J, 5 May 1989). His Honour concluded that (at 7-9): '...if an order for security for costs is to be made, an appropriate order would be that the plaintiff provide security sufficient to cover the cost of registration in New Zealand of any judgment obtained by the defendant against the plaintiff in this Court. No material was placed before me as to an appropriate figure for such security. I was informed that Morling J. had ordered $2,000 as an appropriate sum, but, as is apparent from the judgment, that was in respect of registration in the United Kingdom. Rath J., in 1984, regarded $750 as an appropriate amount in relation to registration in New Zealand. No doubt there has been some increase in costs. I accordingly would have ordered that the plaintiff provide security for costs in the sum of $1,000... I am unable to accept that the circumstance that a successful defendant may have to expend a comparatively modest sum of, say $1,000, to obtain registration of a costs judgment to enable its enforcement is, in a commercial matter, sufficient to justify the making of an order for the provision of security for costs in the sum of, say, $1,000.' 'Commercial matters' do not stand in any special position. 34 There is little legitimate point to an order for security for costs if it would give the recipient scant, real security if complied with, but would otherwise simply shut out an impecunious person from seeking legal redress for an alleged wrong. 35 The application for security for costs is dismissed with costs. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick. Associate: Dated: 17 May 2006 Counsel for the Applicant: Mr N Perram/Mr A D Crossland Solicitor for the Applicant: PSK Legal Counsel for the First Respondent: Mr S Lloyd/Ms K Morgan Solicitor for the First Respondent: Australian Government Solicitor Counsel for the Second Respondent: There was no appearance for the Second Respondent Date of Hearing: 10 June 2005 Date of Judgment: 17 May 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/575.html


case_text: The applicant's application was heard on 8 April 1997 and was opposed by the respondent. On 11 April 1997 Lee J delivered his judgment ( Re; Mario Silverio Macchia Ex parte; Mario Silverio Macchia v Charles Philippe Louis Nilant as Trustee of the Bankrupt Estate of Mario Silverio Macchia [1997] FCA 246) and ordered that: '...the period of bankruptcy limited by s149 of the Act be abridged from 3 years to 1 year and 1 month from the date of filing of the statement of affairs. As a result, [the applicant] will be discharged from bankruptcy as at 22 February 1995.' 26 Lee J accepted that the date on which the statement of affairs had been filed with the Registrar in Bankruptcy was 21 January 1994. 27 The applicant was legally represented before Lee J. The case advanced by the applicant was that the applicant had provided to the trustee a statement of his affairs in July 1991 as part of the proposed Pt X composition, and in September 1991 as part of the debtor's petition, and that the respondent was therefore not prejudiced by the applicant's failure to provide a statement of affairs earlier than, on the applicant's version, 6 April 1993, or on the respondent's version, shortly before 21 January 1994. The applicant submitted that as the respondent had access to the July 1991 and September 1991 statements of affairs, he had sufficient information about the applicant's affairs to conduct the bankruptcy. No case was advanced on behalf of the applicant that the applicant had provided the trustee with a statement of affairs on 7 October 1991. 28 In his reasons, after reviewing the evidence, Lee J said at 4-5: 'On 6 October 1992 the Trustee advised Mr Macchia that he had not received a copy of Mr Macchia's statement of affairs as required by s 54 of the Act and informed Mr Macchia that pursuant to s 149 of the Act discharge from bankruptcy would not occur until 3 years from the filing of the statement of affairs. On 9 October 1992 Mr Macchia replied to the Trustee that he had provided a statement of affairs on 16 July 1991 and again on 4 September 1991 and asked that the Trustee obtain a copy of the statements from the Registrar as soon as possible. In a letter to the Trustee dated 23 October 1992 Mr Macchia again referred to his debtor's petition and the statement of affairs and that he had "lodged" with that petition... By letter dated 28 October 1992 the Trustee informed Mr Macchia that he had been made bankrupt on a creditor's petition...and not on the debtor's petition with which the statement of affairs had been supplied. The Trustee asked Mr Macchia to file a statement of affairs. On 3 December 1993 the Trustee applied to the Court for an order that Mr Macchia be committed for contempt pursuant to sub-s 54(3) of the Act for failure to file a statement of affairs as required by paragraph 54(1)(a). Before the application came on for hearing Mr Macchia filed a statement of affairs on 21 January 1994. Pursuant to s149 of the Act discharge from bankruptcy will occur on 22 January 1997 if the period of bankruptcy were not extended by an objection lodged by the Trustee.' 29 At 9-10 of his reasons, Lee J said: 'In the present case the bankrupt has been the author of his own misfortune in that he continued to maintain, in the face of the Trustee's advice that he was obliged to file a further statement of affairs, that he had complied with the requirements of the Act when he presented his own petition and by declining to comply with the Trustee's request that he do so.' 30 Apart from the statement of affairs, which was filed with the Registrar in Bankruptcy on 21 January 1994, Lee J referred in his judgment only to two statements of affairs, made by the applicant, namely, the statement of affairs of 16 July 1991 (provided as part of the attempts to reach a composition under Pt X) , and the statement of affairs of 4 September 1991 (provided with the debtor's petition). His Honour made the orders abridging the time relying upon the provisions of s 33(1)(c) of the Act and the case of Re; Rohde (1993) 42 FCR 149 ('Rohde') . 31 Before Lee J the applicant argued that there had in fact been compliance with s 54(1) of the Act in that the statement of affairs had been filed with the Registrar in Bankruptcy as part of the debtor's petition on 4 September 1991, being a date within 14 days of the sequestration order, albeit before the date of the sequestration order. Lee J rejected that argument, holding that on a proper construction, s 54(1) of the Act required that the statement of affairs be filed within 14 days after the date of the making of the sequestration order, and not 14 days before the making of that order. 32 The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act. 34 It is plain from the judgment that the reference to 'one or other of the statement of affairs' is a reference to the two statements of affairs which had been referred to by Lee J in his judgment, namely, the statement of affairs which was prepared and filed as part of the Pt X proceedings and the second statement of affairs which accompanied the debtor's petition presented to the Registrar in Bankruptcy by the applicant. 35 There is no reference in either of the decisions of Lee J or the Full Court referred to above, to any claim or argument being advanced by the applicant on the basis that he made and supplied the respondent with a statement of affairs on 7 October 1991. 36 After the Full Court decision in 1997, the applicant in March 1999 applied for and was given leave to file a further amended application. The application was heard on 12 October 1999. At that time, there were in existence further objections by the respondent to the discharge of the applicant from bankruptcy. The hearing was adjourned part heard. However, on 17 December 1999, and before the hearing of the application was resumed the respondent withdrew his objections to the applicant's discharge from bankruptcy. The withdrawal of the objections meant that the applicant was discharged from bankruptcy pursuant to s 149 of the Act with effect from 22 January 1997 - that being three years from the filing of the statement of affairs with the Registrar in Bankruptcy. However, as at 17 December 1999, the applicant had been treated as an undischarged bankrupt for almost three years beyond the date on which the bankruptcy terminated under the Act. 37 Thus, by the time the application came on for the resumed hearing before Lee J on 23 February 2000 the applicant had been discharged from his bankruptcy. At the resumed hearing the applicant further amended the application. In that amended application, the applicant relied upon s 30(1)(b) and s 306 of the Act to seek a declaration that a 'proceeding' under the Act had not been invalidated by a formal defect or irregularity. The 'proceeding' which the applicant sought to be validated was the statement of affairs prepared in relation to the Pt X proceedings, or alternatively the statement of affairs dated 4 September 1991 accompanying the debtor's petition. The declaration he sought was that either of those statements of affairs be deemed to have been filed in the office of the Registrar in Bankruptcy on 17 September 1991.


case_text: Apart from the statement of affairs, which was filed with the Registrar in Bankruptcy on 21 January 1994, Lee J referred in his judgment only to two statements of affairs, made by the applicant, namely, the statement of affairs of 16 July 1991 (provided as part of the attempts to reach a composition under Pt X) , and the statement of affairs of 4 September 1991 (provided with the debtor's petition). His Honour made the orders abridging the time relying upon the provisions of s 33(1)(c) of the Act and the case of Re; Rohde (1993) 42 FCR 149 ('Rohde') . 32 The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act.


case_title: Nilant v Macchia (1997) 78 FCR 419

case_text: The respondent appealed the decision of Lee J and the appeal was upheld by the Full Court. The decision of the Full Court is reported as Nilant v Macchia (1997) 78 FCR 419. The Full Court overruled the decision of Rohde and held that the Court does not have power pursuant to s 33(1)(c) of the Act to abridge the time limited by s 149(3) of the Act.


case_title: Macchia v Nilant [2000] FCA 353

case_text: On 27 March 2000, Lee J, granting relief under s 306(1) of the Act, ordered that the statement of affairs signed by the applicant on 4 September 1991 and presented to the Registrar in Bankruptcy on that date be deemed to have been made out and filed in the office of the Registrar in Bankruptcy, and a copy furnished to the trustee of the sequestrated estate of the applicant, on 16 September 1991 in compliance with the requirements of s 54(1) of the Act ( Macchia v Nilant [2000] FCA 353).


case_text: The respondent appealed that decision and the Full Court upheld the appeal finding that s 306 of the Act does not confer a power to treat a failure to comply with s 54(1) of the Act as compliance with it. The case is reported as Nilant v Macchia [2000] FCA 1528 ; (2000) 104 FCR 238. 40 The Full Court held that relief under s 306(1) of the Act was not available because the bankrupt had not made any attempt to comply with s 54(1) of the Act which required a filing of a statement of affairs after the date of sequestration. 41 Weinberg J said at 249, at [54]: 'In the present case, the plain fact is that the appellant did not file a statement of affairs in accordance with the requirements of s 54(1) of the Act, but assumed erroneously that a statement of affairs previously filed with the Registrar on a debtor's petition would serve that purpose. There was no act on the part of the appellant which could be described as even purported compliance with the requirements of the section. His failure to comply with the requirements of s 54(1) does not give rise to a "proceeding under this Act" which would be invalidated but for the fact that any defect or irregularity is merely formal. In these circumstances, there is no proceeding capable of being brought before the Court on an objection concerning that invalidity.' (original emphasis) 42 At 251, at [64] and [65], Weinberg J said: 'Where there has been an attempt to comply with the obligations of s 54(1) , whether within the fourteen day period specified, or on some other occasion thereafter, it is entirely apt to speak of that attempt being a "proceeding under this Act", and being capable of being regarded by the Court as "not invalidated" by reason of any formal defect or error. Section 306(1) in such a case is to permit the period of bankruptcy to run from the date of purported compliance with the Act, or perhaps some later date. It follows that the bankruptcy will not continue for an unconscionably long period merely because of some relatively minor failure on the part of the bankrupt to comply with the strict requirements of s 54(1). Regrettably, it seems to me that s 306(1) cannot be invoked in the circumstances of the present case, where no step whatever has been taken by the bankrupt in purported compliance with the requirements of s 54(1). There is simply no "proceeding" or "step" taken in the course of the bankruptcy which is capable of being the subject of an order that it not be invalidated.' 43 Carr J at 246, at [36] said: '3. In the present matter, where there has been no attempt to comply with s 54 until (at the earliest) 6 April 1993, there was no proceeding which by the operation of s 306 could escape invalidity due to formal defect or irregularity.' 44 There was no case made by the applicant at the hearing of the second application before Lee J in 2000, nor at the hearing before the Full Court in 2000, that the applicant had made a statement of affairs dated 7 October 1991 and delivered it to the respondent. Indeed, the finding by the Full Court that the applicant made no attempt to make a statement of affairs until 6 April 1993 at the earliest, is at the heart of the Full Court's decision. It was a crucial finding on which the whole decision rested. 45 In addition to the legal proceedings referred to above, the applicant also took proceedings against the respondent for compensation in respect of the manner in which the respondent had carried out his duties as trustee of the applicant's bankrupt estate. These proceedings included an action against the respondent in the Supreme Court of Western Australia for the negligent conduct of the applicant's bankruptcy administration. 46 On 20 May 2002, the applicant and the respondent entered into a deed of release in respect of mutual claims made by each of the parties against each other in the various proceedings then pending. Pursuant to the deed of release the respondent agreed to pay the applicant a settlement sum. Clause 4 of the deed of release is particularly relevant to these proceedings. Clause 4 provides as follows: ' 4. BAR TO PROCEEDINGS 4.1 Party not to take action Subject to clause 4.3, a Party must not at any time take or continue any action, suit or proceeding, or make any claim or demand of any nature against the other Party relating to, or arising out of, or connection with, the Dispute or Macchia's bankruptcy except that the terms of this Document do not affect, limit or restrict: (a) any issue between the Parties in relation to the estate of Macchia's mother; (b) the existing rights of any party to receive a distribution or benefit from that estate; or (c) any right of Nilant or Macchia's creditors in relation to any property or income of Macchia which Macchia failed to disclose to Nilant and which would have been vested in Nilant as his trustee in bankruptcy or been available to his creditors.' 47 The respondent sought the summary dismissal or a permanent stay of the claims made in the substantive application by relying on the inherent power of the Court to prevent an abuse of process, alternatively upon O 20 r 2(1) of the Rules. The gravamen of the respondent's argument is that by his current application the applicant is attempting to relitigate a matter which has already been litigated.


case_text: The respondent submitted further that the applicant is precluded from bringing the claims made in the application by reason of the principles enunciated in the case of Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 ('Anshun') . The respondent submitted that the claims now made properly belonged to the earlier proceedings. This is because the claims are based on a factual allegation, namely, that the applicant made and provided to the respondent a statement of affairs on 7 October 1991, which was of crucial significance to the issues in contention in the previous litigation, and that it was open to the applicant to have advanced such a claim because there was evidence available to be presented. It was further submitted that the legal representatives of the applicant elected not to advance any case founded on the existence of a statement of affairs allegedly made on 7 October 1991 in any of the previous proceedings. It was, therefore, unreasonable for the applicant not to have made the factual allegation now made in this application, as part of any one or more of the previous proceedings. 56 The respondent also submitted that the claims made in the substantive application rendered the application an abuse of process. 57 Further, the respondent submitted that the applicant's claim made by reference to s 33A of the Act in par 4 of the substantive application, was, in any event, misconceived. It was submitted that although s 33A of the Act was enacted after the conclusion of the proceedings in 2000, the section did not assist the applicant. This was because s 33A(3) of the Act contains a restriction which precludes the Court from making an order which would result in the discharge of the bankruptcy occurring at a date earlier than 30 days after the making of the Court order. It was not possible, therefore, for the applicant to obtain an order which would treat the alleged 7 October 1991 statement of affairs as having been filed in October 1991, because this would have the effect of backdating the discharge to a date in October 1994. Relief under s 33A of the Act was, therefore, only open to a bankrupt who had not yet been discharged from bankruptcy. 66 As to the respondent's arguments that these proceedings are res judicata, the claims made in these proceedings are founded upon a different allegation of fact which formed the basis for the claims which were considered by Lee J and the Full Court in 1997 and 2000. For this reason, I would also not summarily dismiss the application on the basis that the matter is res judicata ( Anshun at 597). No argument was addressed to me that there was an issue estoppel in relation to the date of the first attempt made to comply with s 54 of the Act after the date of sequestration. 67 The Anshun estoppel principles have recently been considered by the Full Court of this Court in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2005) 146 FCR 10 ('Wong') . The Full Court said that the doctrines of res judicata and issue estoppel are founded on the broad rules of public policy that a person ought not to be vexed twice for one and the same cause and that it was in the public interest that there be an end to litigation. At 17-18, at [36]-[37] the Full Court went on to say: '...It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceedings between the parties: Anshun at 602.'


case_title: Dumitrasku v Official Receiver in Bankruptcy [2003] FMCA 477

case_text: In relation to his claim at par 4 in the application, the applicant relied upon the case of Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477 ('Dumitrasku') in support of his submission that the Court has power to make an order under s 33A of the Act which would have the effect of backdating the date of his discharge to a date in October 1994. The applicant also relied on the authority of Baral v Official Trustee in Bankruptcy [1999] FCA 77 ('Baral') in support of that proposition. 91 I accept the submission by the counsel for the respondent that the Dumitrasku case does not assist the applicant. In that case, the applicant was still a bankrupt at the time that he brought the application. The applicant's primary ground of relief was founded on s 306 of the Act. The applicant sought declarations that a statement of affairs had been filed with the Official Receiver in compliance with s 54 of the Act on 3 October 2000; and that by the operation of s 149 of the Act he was discharged from bankruptcy on 4 October 2003. The Federal Magistrate granted the relief claimed pursuant to s 306 of the Act. 92 The Federal Magistrate also dealt obiter with the claim which the applicant had made in reliance on s 33A of the Act. He said that he would have been prepared to grant relief under that section had he been required to do so. However, what is significant in that case was that the applicant was still bankrupt at the time of the making and hearing of the application. Here the applicant had been discharged from bankruptcy for more than eight years when the application was made. It is plain from the terms of s 33A(3) of the Act that relief under s 33A of the Act would not be available to a person who has already been discharged from bankruptcy at the time of making an application for that relief. Accordingly, the case of Dumitrasku relied on by the applicant has no application to this issue. Further, the Baral case relied upon by the applicant deals with annulment of bankruptcy and has no application to the construction of s 33A of the Act.


case_text: In relation to his claim at par 4 in the application, the applicant relied upon the case of Dumitrasku v Official Trustee in Bankruptcy [2003] FMCA 477 ('Dumitrasku') in support of his submission that the Court has power to make an order under s 33A of the Act which would have the effect of backdating the date of his discharge to a date in October 1994. The applicant also relied on the authority of Baral v Official Trustee in Bankruptcy [1999] FCA 77 ('Baral') in support of that proposition. 92 The Federal Magistrate also dealt obiter with the claim which the applicant had made in reliance on s 33A of the Act. He said that he would have been prepared to grant relief under that section had he been required to do so. However, what is significant in that case was that the applicant was still bankrupt at the time of the making and hearing of the application. Here the applicant had been discharged from bankruptcy for more than eight years when the application was made. It is plain from the terms of s 33A(3) of the Act that relief under s 33A of the Act would not be available to a person who has already been discharged from bankruptcy at the time of making an application for that relief. Accordingly, the case of Dumitrasku relied on by the applicant has no application to this issue. Further, the Baral case relied upon by the applicant deals with annulment of bankruptcy and has no application to the construction of s 33A of the Act.


case_text: It is well established that the Court's power to grant summary relief should be exercised with great caution. In Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 at 91 Dixon J observed: '...A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination...' 65 I would not dismiss the applicant's application on the grounds that the claims made in the current application are within the ambit of cl 4 of the deed of release. It is arguable that on a proper construction of that clause, the applicant's substantive application relates to the applicant's right to receive a distribution or benefit from his mother's estate, and that the application is, therefore, not covered by the bar in the deed of release.


case_text: The Anshun estoppel principles have recently been considered by the Full Court of this Court in the case of Wong v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 242 ; (2005) 146 FCR 10 ('Wong') . The Full Court said that the doctrines of res judicata and issue estoppel are founded on the broad rules of public policy that a person ought not to be vexed twice for one and the same cause and that it was in the public interest that there be an end to litigation. At 17-18, at [36]-[37] the Full Court went on to say: '...It would be an abuse of process to allow parties to litigate repeatedly matters that have been finally determined by the Court. Also, quite apart from any psychological detriment that might flow from an individual having to undertake litigation of the same issue a second time, the State has an interest in ensuring that, once an issue has been determined according to law and all rights of appeal have been exhausted, that should be an end of the matter. The resources of the community ought not to be expended in the litigation, more than once, of the same issue. A plea in bar may be raised in respect of an issue, not only if the Court in the earlier proceeding was actually required by the parties to form an opinion and pronounce a judgment, but also in relation to every issue that properly belonged to the subject of the earlier litigation and which the parties, exercising reasonable diligence, might have brought forward at the time of the earlier litigation: Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 at 598 and 602. Anshun estoppel arises where the issue, now raised for the first time, properly belonged to the subject of the earlier proceeding but, by negligence, omission or accident, was not raised in earlier proceeding. In essence, where the issue was so relevant to the subject matter of the earlier action that it would be unreasonable not to have raised it at that time, it is an abuse of process to endeavour to raise that issue for the first time in a subsequent proceedings between the parties: Anshun at 602.' 69 What will be sufficient to constitute 'special circumstances' is not fixed and may involve a range of factors that bear upon the general discretion of the Court where justice requires the non-application of the general principle ( Wong at 18). 70 I do not accept the applicant's argument that the Anshun estoppel principles do not apply because the claims made in his current application would not conflict with any existing judgment as both of the decisions of Lee J in his favour were overturned on appeal. In my view, it is irrelevant to the operation of Anshun estoppel principles that the two first instance decisions were overturned on appeal. It does not follow that there are now no judgments with which the claims would conflict. Both of the Full Court decisions, and indeed, the decisions of Lee J, are based on findings of fact that during the period from the date of the sequestration order to 6 April 1993 at the earliest, there was no attempt made by the applicant to file a statement of affairs. As previously mentioned, this finding is central to the Full Court's decision in 2000. The claims made by the applicant in the application are directed at asking the Court to make factual findings which are directly contrary to the factual findings made in the previous proceedings, and to grant relief (previously denied) on the basis of that conflicting finding in the fact. 71 In my view, this is a circumstance where the Anshun estoppel principles are capable of applying.


case_text: In the case of Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1669 French J at 20 at [66] said: 'The doctrines of res judicata , issue estoppel and Anshun do not exhaust the circumstances in which a proceeding may be regarded as amounting to an abuse of process by way of attempted litigation of a dispute already judicially determined. As another Full Court said in Coffee v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 (at 443): "An attempt to litigate in the Court a dispute or issue which has been resolved in earlier litigation in another court or tribunal may constitute an abuse of process even though the earlier proceeding does not give rise to res judicata or issue estoppel; see Culture International v Scoles (1991) 32 FCR 275 at 279 and Walton v Gardiner [1992] HCA 12 ; (1993) 177 CLR 378 at 393-394. Whether it does depends on the facts of the particular case." ' 84 French J went on to say at 21 at [69]: 'The public interest considerations underlying the power of courts to stay or dismiss the proceedings for abuse of process extend to preventing the waste judicial resources and their use for purposes unrelated to the determination of genuine disputes. They include the necessity of maintaining confidence in, and respect for, the authority of the courts Sea Culture International v Scoles (1991) 32 FCR 275 (at 279 French J); Djaigween v Douglas (1994) 48 FCR 535 (at 54 Carr J). The power to strike out a statement of claim or to dismiss an application as an abuse of process is to be exercised sparingly and upon an examination of the relevant circumstances of the particular case before the Court...'


case_text: French J approved the following observations of Giles CJ in the case of State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Reports 81-423 at 64,089: '...whether proceedings are, or an aspect of proceedings is, an abuse of process because a party seeks to relitigate [an] issue already decided depends very much on the particular circumstances. The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice...' 86 French J also adopted as matters relevant to the determination of whether there was an abuse, a non exhaustive list set out by Giles CJ in that case. These factors were: '(a) the importance of the issue in and to the earlier proceedings, including whether it is an evidentiary issue or an ultimate issue; (b) the opportunity available and taken to full litigate the issue; (c) the terms and finality of the finding as to the issue; (d) the identity between the relevant issues in the two proceedings; (e) any plea of fresh evidence, from and including the nature and significance of the evidence and the reason why it was not part of the earlier proceedings; all part of - (f) the extent of the oppression and unfairness to the other party if the issue is relitigated and the impact of the relitigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and (g) an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process'. 87 I would, on the application of these factors, have found that the applicant's substantive application was an abuse of process. 88 Firstly, the factual issue as to the time at which the applicant first made a statement of his affairs for the purposes of the Act was of crucial importance in the earlier proceedings. Secondly, there was every opportunity available to the applicant to have advanced in the earlier proceedings a claim based on the factual assertion now made in the application. Thirdly, there are factual findings made in the earlier proceedings which are contrary to the factual position now being asserted in this application. As previously mentioned, the finding that no statement of affairs was made prior to 6 April 1993 at the earliest, was crucial to the Full Court's decision in 2000. Fourthly, the nature and the object of the relief claimed in the application, is substantially the same as in the earlier proceedings. Each of the earlier proceedings was concerned with the question of if, and when, the applicant had filed a statement of affairs under the Act. Fifthly, there is no plea by the applicant of fresh evidence, nor could there be such a plea. There was evidence available to the applicant and his legal advisers at the time of the hearing of the first application in 1997 before Lee J upon which the claims now made could have been advanced in the earlier proceedings. Sixthly, if the Court were now to make factual findings along the lines claimed in the current proceedings, the factual findings on which the courts acted and upon which decisions were made in the earlier proceedings would be undermined. This would have a tendency to adversely impact upon the finality of judicial determination and public confidence in the administration of justice. Further, the respondent has already been involved in four previous proceedings relating to the issue of the filing of the statement of affairs; and five years have elapsed since the Full Court decision in 2000.


case_text: I turn now to the respondent's argument that the applicant's claim in par 4 is, in any event, misconceived. It is also not necessary to decide this issue, but as the matter was argued and I will briefly set out the view to which I would have come. It is a well established principle that a court should not summarily dismiss an application on the basis that there is no reasonable cause of action unless it is clear that the case is bound to fail ( Webster v Lampard [1993] HCA 57 ; (1993) 177 CLR 598 at 602-603). In my view, the applicant's claim is bound to fail.


case_title: Adelaide Corporation v Australia Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481

case_text: While the Court must take these matters into account, they are not the only matters that may be taken into account: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 at [13] per Branson J; [135] per Kenny J, French J agreeing (concerning the construction and application of s 101(1A) of the Act which corresponds in terms to s 36(1A), in the context of infringement of copyright in sound recordings, films and the like). Both these sections are premised on the concept of "authorisation" developed by the High Court in University of New South Wales v Moorhouse [1975] HCA 26 ; (1975) 133 CLR 1; Cooper at [136]. The word "authorise" in the cases has been given its dictionary meaning of "sanction, approve or countenance": Falcon v Famous Players Film Company [1926] 2 KB 474; Adelaide City Corporation v Australasian Performing Right Association Ltd [1928] HCA 10 ; (1928) 40 CLR 481; Moorhouse at 12 (Gibbs J), 20-21 (Jacobs J); WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274, 285-286 (Gummow J); Cooper at [20] per Branson J, French J agreeing.