case_text: Luton v Lessels [2002] HCA 13 ; (2002) 210 CLR 333 , the High Court gave detailed consideration to the scheme. In that case, the plaintiff contended that the scheme was unconstitutional on two broad grounds, namely that: (a) It involved the imposition of taxation in contravention of s 55 of the Constitution ; and (b) Aspects of the scheme legislation constituted an impermissible attempt to vest the judicial power of the Commonwealth in the Registrar. No argument was advanced in Luton [2002] HCA 13 ; 210 CLR 333 that the scheme was invalid because it could not be supported by s 51(xxxi) of the Constitution . In any event, at least two members of the Court (Gleeson CJ and McHugh J) expressly held that the legislation was supported by the powers conferred by s 51(xxii) , (xxxvii) and (xxxix) and s 122 of the Constitution . The remaining members of the Court proceeded upon the basis that the legislation was valid. Before considering the precise questions raised before the Court in Luton [2002] HCA 13 ; 210 CLR 333 , at [4] [7] (pp 340 341) Gleeson CJ said: The legislative scheme The objects of the Assessment Act are set out in s 4. The principal object is to ensure that children receive a proper level of financial support from their parents. To that end, the Act provides for a level of support to be determined in accordance with legislatively fixed standards, and permits carers of children to have the level readily determined without the need to resort to court proceedings. There is an office of Child Support Registrar established by s 10 of the Registration and Collection Act. An application for administrative assessment of child support may be made, to the Registrar, under Pt 4 of the Assessment Act. Such an assessment is made in accordance with a statutory formula, unless the Registrar determines, or a court orders, that the provisions relating to administrative assessment of child support should be departed from (Assessment Act s 35). A parent's liability to pay child support arises on the acceptance by the Registrar of an application (s 31). The making of an assessment gives rise to a debt owing by the liable parent to the carer who is entitled to child support; the debt may be recovered in a court of competent jurisdiction (s 79). It may be observed that, although the legislation is enacted in furtherance of a clearly defined public policy, it creates a distinctly personal liability. The natural and moral obligation of a parent to support a child becomes, by force of the legislation, a legal obligation reflected in a debt, calculated in accordance with the Assessment Act, owing by a parent to a carer of the child. Although it is not directly relevant to the questions raised, the legislation was enacted following a referral of matters by a number of States, and is supported by the powers conferred by s 51(xxii), (xxxvii) and (xxxix) and s 122 of the Constitution . The principal objects of the Registration and Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis (s 3). Those objects are achieved by a system of registration and enforcement. The scheme is available to a carer who wishes to take advantage of it. Some carers may not. They can rely on private enforcement if they wish. If a liability has arisen under a child support assessment, it may be registered under the Registration and Collection Act (s 17). The effect of registration is that the carer is no longer entitled to enforce payment of the liability and, instead, there is a debt owing by the liable parent to the Commonwealth (s 30). The carer entitled to child support becomes entitled to payment of an amount equivalent to that collected by the Commonwealth from the liable parent or on account of that parent's liability (s 76). The debt owed by the liable parent to the Commonwealth must be paid in the manner prescribed by the Act, and may be collected from certain debtors of the parent. Amounts collected are paid into, and disbursed to carers out of, the Consolidated Revenue Fund. The Commonwealth does not benefit financially. Towards the end of his Honour's discussion of the taxation ground of challenge, at [14] [16] (p 344) his Honour also said: The Assessment Act creates a private or personal obligation, in the form of a debt payable by the liable parent to the eligible carer. The debt is recoverable by the carer. The creation of a legal obligation, enforceable by private action, in a parent, to pay for the support of a child, is not taxation. It is a scheme for the creation and adjustment of private rights and liabilities. But the existence of the obligation is of significance in considering the aspect of the legislative scheme upon which the plaintiff principally relies, which is in the Registration and Collection Act. What is alleged to be taxation is in substance no more than a mechanism for the enforcement of a pre-existing private liability. If a child support assessment is registered under the Registration and Collection Act the debt payable by the liable parent to the eligible carer is extinguished, and replaced by a debt payable by the liable parent to the Commonwealth. The Commonwealth, as necessary, collects the amount owing, and pays it into the Consolidated Revenue Fund. An amount equal to the amount collected is transferred to the Child Support Account. Payments of child support are then made to the carer from the Child Support Account. What is involved is a collection mechanism to facilitate the recovery of child support payments that a parent becomes liable to make under the Assessment Act. It enables the discharge of a personal obligation created by the Assessment Act. A multiplicity of payments may be involved, the amounts of payments are likely to be modest, and many carers would lack the means or the will to undertake private recovery proceedings. The practical advantages of such a scheme are obvious, but they do not include any financial benefit to the Commonwealth. The payment of moneys collected by the Commonwealth into the Consolidated Revenue Fund, is necessitated by s 81 of the Constitution , which refers to "revenues or moneys". The legislation does not have either the purpose or the effect of raising revenue for the Commonwealth. Its purpose is to create, and facilitate the enforcement of, private rights and liabilities. The Assessment Act creates a personal liability in a parent to the carer of a child; the Registration and Collection Act gives the carer the facility, in exchange for extinguishment of the liability to the carer, to have the Commonwealth recover the child support payments assessed and pay an equivalent amount to the carer. In the context of dealing with the second ground of challenge to the scheme, Gleeson CJ ultimately held that the exercise by the Registrar of the Registrar's powers to assess child support payments did not involve the determination of pre-existing rights and obligations but rather involved the creation of new rights and obligations for the future (see [18] [22] (pp 344 345)) and therefore did not amount to the exercise of the judicial power of the Commonwealth. His Honour then said at [23] [27] (p 346): Furthermore, the enforceability of such rights and obligations depends upon the intervention of a court and the independent exercise of judicial power [cf Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 ; (1995) 183 CLR 245 at 260-261; Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at 110-111 [42] [43]]. The Registrar cannot enforce his or her own assessments or determinations. In addition, neither an assessment nor a departure determination is conclusive. In the case of an assessment, after an objection made to the Registrar has been decided, an application may be made to a court for a declaration that an applicant is or is not entitled to an administrative assessment, or to appeal against the assessment (ss 106, 106A, 107, 110). In the case of a departure determination, following the disallowance of an objection either the liable parent or the carer may apply to a court (ss 115 118). In both cases, the court exercises original jurisdiction, and the court has broad powers to override decisions of the Registrar [cf Attorney-General (Cth) v Breckler [1999] HCA 28 ; (1999) 197 CLR 83 at 111 112 [46] 47]]. For those reasons, the Assessment Act does not purport to confer judicial power upon the Child Support Registrar. As to the Registration and Collection Act, if a person to whom a liability in respect of child support is owed chooses to seek registration, the Registrar is required to register the liability, with the legal consequences earlier described. If a payer or payee is dissatisfied with the registration, or the particulars entered in the register, there is a right of objection, and a person aggrieved with the Registrar's decision on the objection may "appeal" to a court. The registration of a child support liability does not involve a binding and conclusive determination of existing rights and liabilities. It creates rights for the future. Under s 113 of the Act, debts due to the Commonwealth may be recovered in a court of competent jurisdiction at the suit of the Registrar. The Registrar is involved in various ways in the collection and recovery mechanisms. These mechanisms include garnishment of wages and salaries. These functions do not involve the exercise by the Registrar of judicial power [cf Re Registrar, Social Security Appeals Tribunal; Ex parte Townsend [1995] HCA 32 ; (1995) 69 ALJR 647 at 650 [1995] HCA 32 ; ; 130 ALR 163 at 167, per Toohey J.]. In the same case, in a joint judgment, Gaudron and Hayne JJ at [32] [34] (pp 347 348) said: The Registration and Collection Act The Registration and Collection Act (originally enacted as the Child Support Act 1988 ) commenced operation on 1 June 1988. Its principal objects [ Registration and Collection Act , s 3(1)] include ensuring: "(a) that children receive from their parents the financial support that the parents are liable to provide; and (b) that periodic amounts payable by parents towards the maintenance of their children are paid on a regular and timely basis." Part III of the Registration and Collection Act (ss 17 42B) provides for the registration of certain liabilities of a parent, or step-parent, of a child to pay a periodic amount for the maintenance of the child. A person liable to make such payments is referred to in the Registration and Collection Act as "the payer". Section 17 identifies what is a registrable maintenance liability and Div 2 of Pt III (ss 20 32) provides for the registration of such liabilities. Section 30 of the Registration and Collection Act provides that, if a registrable maintenance liability is registered, first, the amounts payable "are debts due to the Commonwealth by the payer in accordance with the particulars of the liability entered in the Child Support Register" and, secondly, "the payee is not entitled to, and may not enforce payment of, amounts payable under the liability". Registered maintenance liabilities that are enforceable under the Registration and Collection Act are called "enforceable maintenance liabilities" (s 4). An amount that is a debt due to the Commonwealth under s 30 is called a "child support debt" (s 4). Part IV of the Registration and Collection Act (ss 43 65) provides for the collection of amounts due to the Commonwealth for enforceable maintenance liabilities. If the payer is an employee, the general rule is that, as far as practicable, the amount will be collected by deduction from the payer's salary or wages (s 43). Provision is made for the Registrar to give notice to the employer of such a payer (s 45) instructing the employer to make periodic deductions from salary or wages paid by the employer to the payer. Section 46 obliges the employer to make the necessary deductions; s 47 requires the employer to pay to the Registrar the amounts deducted. An amount payable to the Registrar under Pt IV of the Act (including, therefore, an amount payable under s 47) is a debt due to the Commonwealth (s 64). Until the amendment of the Registration and Collection Act in 2001 [ Child Support Legislation Amendment Act 2001 (Cth), Sch 5, Item 38], the Registrar was the Commissioner of Taxation [Registration and Collection Act, s 10(2)] and each Second Commissioner and Deputy Commissioner of Taxation was a Deputy Child Support Registrar (s 12). The amending legislation provided that the Registrar was to be "the person who holds, or is acting in, the position known as the General Manager of the Child Support Agency", or if there is no such position, the person holding, or acting in, a position specified by the Secretary of the Department of Family and Community Services. McHugh J agreed with Gleeson CJ. At [164] [174] (pp 380 382), Callinan J said: The Collection Act The objects of the Collection Act are to ensure that children receive from their parents the financial support that the parents are liable to provide, and that periodic amounts payable by non-custodial parents towards the maintenance of their children are paid on a regular and timely basis: s 3. Part III of the Act provides for the registration of "registrable maintenance liabilities", which include liabilities that arise under a child support assessment: s 19(2). Section 24A requires the Registrar to register liabilities arising under a child support assessment by entering particulars of the liability in the Child Support Register unless the payee elects in his or her application not to have the liability enforced under the Collection Act; or if the application for the child support assessment was made by the liable parent. When a child support liability is not registered, the payee may apply to the Registrar for the registration of the liability (s 25). When a child support liability is registered, the payee (either alone or jointly with the payer) may elect to have the liability no longer enforced under the Act: s 38A. The particulars that are required to be entered in the Child Support Register include the names of the payer and payee; details of the child support assessment; the name and date of birth of the relevant child or children; the periodic amounts payable by the payer; and the payment rate and payment period: s 26. When the Registrar amends a child support assessment under which a registrable maintenance liability arises, the Registrar must immediately make such variations to the particulars entered in the Child Support Register as are considered necessary or desirable to enable the amendment to be given effect under the Act (s 37A). The Registrar also has power to vary the particulars entered in the Child Support Register for the purpose of correcting a clerical error or mistake: s 42. Upon registration under s 30, amounts payable under the child support assessment become debts due to the Commonwealth by the payer and the payee is no longer entitled to, and may not enforce payment of the relevant amounts. Part IV of the Act makes provision for the collection of registered child support liabilities by the Commonwealth by deduction from the salary or wages of the payer. The Registrar may give a notice to an employer of the payer specifying the name of the payer and instructing the employer to make periodic deductions from the payer's salary or wages, and to direct payment to the Registrar: s 45. The employer is then under a duty to make such deductions, and to pay to the Registrar the amounts deducted (ss 46 and 47). The deduction and payment of an amount from the salary or wages of a payer operates, to the extent of the payment, as a discharge of the payer's liability to make payments to the Registrar, and as a discharge of the employer's liability to pay the amount to any person other than the Registrar: s 49. Part V makes provision for the payment and recovery of child support debts. It includes a provision which allows the Registrar to apply towards payment of such debts any amounts owing to the debtor by the Commonwealth under an Act of which the Registrar has the administration (either as Child Support Registrar or as Commissioner of Taxation): s 72. The Registrar may also garnishee debts owing by third parties to a child support debtor (s 72A), or make deductions from social security pensions or benefits (s 72AA). Part VI made provision for the payment of child support to payees from the Child Support Reserve. The Child Support Reserve was established as a component of the Reserved Money Fund, and comprised amounts transferred to the Reserve out of the Consolidated Revenue Fund equal to the amounts received by the Registrar in payment of child support debts. The money is now held and paid out of a special, differently designated account [See discussion by Gaudron and Hayne JJ at 350 [39] [40]]. The registration of a child support liability under the Act, or the variation of any particulars entered in the Child Support Register, must be notified to both the payer and the payee: s 80. Part VII confers rights of objection against decisions relating to registration, and of appeal to a court of competent jurisdiction against a decision of the Registrar in relation to an objection. Although there have been amendments made to both Acts since Luton [2002] HCA 13 ; 210 CLR 333 was decided, the Court's exposition of the legislation remains relevant to a consideration of the scheme in its present form. Of particular relevance to the present application are ss 72A, 104, 105, 106 and 113 of the Collection Act. Those sections are in the following terms: 72A Registrar may collect child support related debts from a third person (1) The Registrar may give written notice to a person: (a) by whom money is due or accruing, or may become due, to a child support debtor; or (b) who holds, or may subsequently hold, money for or on account of a child support debtor; or (c) who holds, or may subsequently hold money on account of some other person for payment to a child support debtor; or (d) who has authority from some other person to pay money to a child support debtor; requiring that person to pay to the Registrar: (e) if the amount of money is more than the maximum notified deduction total—an amount equal to the maximum notified deduction total; or (f) if the amount of money is equal to or less than the maximum notified deduction total—the amount of money; or (g) if the notice specifies an amount of money that is to be paid out of each payment that the notified person becomes liable, from time to time, to make to the debtor—that amount until the maximum notified deduction total is satisfied. (1A) A notice given under subsection (1) requires the notified person to continue to make payments in accordance with that subsection until the maximum notified deduction total is satisfied. (1B) For the purposes of subsection (1), maximum notified deduction total is an amount specified in a notice under that subsection that does not exceed the support debt of the child support debtor to whom the notice relates. (2) A person who refuses or fails to comply with a notice under subsection (1) is guilty of an offence. Penalty: $1,000. (2A) Subsection (2) does not apply if the person has a reasonable excuse. (2B) Subsection (2) is an offence of strict liability. (3) A notice: (a) must specify a day, not being a day before the money becomes due or is held, on or before which the money is to be paid; and (b) may be varied by the Registrar specifying a later day for making a payment under the notice. (4) Subsection 4K(1) of the Crimes Act 1914 does not apply in relation to anything required to be done under subsection (1). (5) If the Registrar gives a notice under subsection (1), the Registrar must provide a copy of the notice to the child support debtor. (6) A notice is taken to be provided under subsection (5) if the Registrar sends the notice to the last address of the person known to the Registrar. (7) A notice is taken to have been given to the Commonwealth, a State or a Territory if it is served on a prescribed person. (8) If a person is convicted of an offence against subsection (1), the court may, in addition to imposing a penalty on the person, order the person to pay to the Registrar an amount that is not more than the amount, or sum of the amounts (as the case may be), that the person refused or failed to pay to the Registrar. (9) A person who makes a payment in compliance with a notice under subsection (1) is taken to have made the payment under the debtor's authority or the authority of any other person concerned and is indemnified in respect of that payment. (10) If: (a) the Registrar gives a notice under subsection (1); and (b) before the person to whom the notice is given complies with it, payment of the amount due by the debtor is made; the Registrar must immediately give the person written notice of that payment. (11) For the purposes of this section, where: (a) a person has paid money to a co-operative housing society in respect of the issue of withdrawable shares in the capital of the society; and (b) the co-operative housing society has not repaid the money; the money is taken to be: (c) if the money is repayable on demand—due by the co-operative housing society to the person; and (d) in any other case—money that may become due by the co-operative housing society to the person. (12) For the purposes of this section, if, apart from this subsection, money is not due, or repayable on demand to a person unless a condition is fulfilled, the money is taken to be due, or repayable on demand (as the case may be), to the person even though the condition has not been fulfilled. (13) In this section: child support debtor means a person who is liable to pay a child support debt or a child support related debt. child support related debt , in relation to a person, includes: (a) the amount of penalty (if any) imposed under section 67 in respect of that debt; and (b) any costs ordered by a court to be paid to the Commonwealth in respect of an offence committed by the person against this Act or the Assessment Act; and (c) any amount ordered by a court, upon the conviction of a person for an offence against this Act or the Assessment Act, to be paid by the person to the Registrar. Co-operative housing society means a society registered or incorporated as a co-operative housing society or similar society under a law of a State or Territory. person includes a partnership and any Commonwealth, State or Territory public authority (whether incorporated or unincorporated). support debt means a child support debt or a child support related debt. ... 104 Jurisdiction of courts under Act (1) Jurisdiction is conferred on the Family Court and the Federal Magistrates Court and, subject to subsection (7), the Supreme Court of the Northern Territory, and each Family Court of a State is invested with federal jurisdiction in relation to matters arising under this Act. (2) Subject to subsections (5) and (7), each court of summary jurisdiction of each State is invested with federal jurisdiction, and jurisdiction is conferred on each court of summary jurisdiction of each Territory, in relation to matters arising under this Act. (3) The Governor-General may, by Proclamation, fix a day as the day on and after which proceedings in relation to matters arising under this Act may not be instituted in, or transferred to, a court of summary jurisdiction in a specified State or Territory. (4) A Proclamation under subsection (3) may be expressed to apply only in relation to: (a) proceedings of specified classes; or (b) the institution of proceedings in, or the transfer of proceedings to, a court of summary jurisdiction in a specified part of a State or Territory. (5) A court of summary jurisdiction shall not hear or determine proceedings under this Act otherwise than in accordance with any Proclamation in force under subsection (3) of this section. (6) The Governor-General may, by Proclamation, declare that a Proclamation under subsection (3) is revoked on and from a specified day and, on and from the specified day, this Act (including subsection (3)) has effect as if the revoked Proclamation had not been made, but without prejudice to the effect of the revoked Proclamation in relation to the jurisdiction of courts before the specified day. (7) Jurisdiction in relation to a matter arising under this Act in relation to which a proceeding is instituted under this Act is not conferred on a court of a Territory unless at least one of the parties to the proceeding (not being the Registrar) is, on the day of the institution of the proceeding or the day of the transfer of the proceeding to that court, ordinarily resident in the Territory. (8) The jurisdiction conferred on or invested in a court by this section includes jurisdiction in relation to matters arising under this Act in relation to which proceedings are transferred to that court under another law of the Commonwealth. (9) The jurisdiction conferred on or invested in a court by this section is in addition to any jurisdiction conferred on or invested in the court apart from this section. 105 Application of Family Law Act (1) The Family Law Act 1975 (other than Part X of that Act), the standard Rules of Court and the related Federal Magistrates Rules apply, subject to this Act and with such modifications as are prescribed by the applicable Rules of Court, to proceedings under this Act (other than proceedings under subparagraph 113(c)(i)) as if: (a) the proceedings were proceedings under that Act; (b) the proceedings were proceedings instituted under that Act; (c) a court having or exercising jurisdiction in the proceedings were a court having or exercising jurisdiction under that Act; (d) a decree made in the proceedings were a decree made under that Act; (e) matters arising in the proceedings were matters arising under that Act; and (f) any other necessary changes were made. (1A) In the application of subsection (1) to proceedings under this Act in relation to a child, references in paragraphs (1)(a) to (e) (inclusive) to the Family Law Act 1975 are to be taken to be references to Part VII of that Act. (2) Where any difficulty arises in the application of subsection (1) in or in relation to a particular proceeding, the court exercising jurisdiction in the proceeding may, on the application of a party to the proceeding or of its own motion, give such directions, and make such orders, as it considers appropriate to resolve the difficulty. 106 Appellate jurisdiction of Family Court under Act (1) The Family Court has jurisdiction with respect to matters arising under this Act in relation to which: (a) applications for leave to appeal referred to in section 107, 107A or 110 are made; and (b) appeals referred to in section 107, 107A or 110 are instituted. (2) Subject to section 110, in an appeal under section 107, 107A or 110, the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose and has power to draw inferences of fact and, in its discretion, to receive further evidence on questions of fact. (3) The further evidence may be given by affidavit, by oral examination before the Family Court or a Judge or in such other manner as the Family Court directs. ... 113 Recovery of debts etc. Debts due by a payer may be recovered by the Registrar or the payee (1) A debt due to the Commonwealth under this Act in relation to a registered maintenance liability: (a) is payable to the Registrar in the manner and at the place prescribed; and (b) may be sued for and recovered by: (i) the Registrar suing in his or her official name; or (ii) the payee of the liability suing in accordance with section 113A; and (c) may be recovered in: (i) a court having jurisdiction for the recovery of debts up to the amount of the debt; or (ii) a court having jurisdiction under this Act. Registrar to keep payee informed of action taken to recover debt (2) The Registrar may take such steps as the Registrar considers appropriate to keep the payee of a registered maintenance liability informed of action taken by the Registrar to recover debts due to the Commonwealth under this Act in relation to the liability. Section 4(1) of the Collection Act provides that, unless the contrary intention appears: (a) A child support debt means an amount that is a debt due to the Commonwealth under s 30 of the Collection Act; (b) The expression court exercising jurisdiction under this Act is defined as not including a court exercising jurisdiction in a proceeding under s 113(1)(c)(i) of the Collection Act; (c) The expression court having jurisdiction under this Act is defined as not including a court that has jurisdiction under the Collection Act only in relation to the recovery of amounts of child support; (d) The expression court order is defined as meaning an order: (i) that was made by, or registered in, a court under the Collection Act, the Assessment Act, the Family Law Act 1975 , the Matrimonial Causes Act 1959 or the law of a State or a Territory; and (ii) that has not been set aside or discharged and has not expired or otherwise ceased to be in force; and (e) The expression enforceable maintenance liability means a registered maintenance liability that is enforceable under the Collection Act. As explained by the High Court in Luton [2002] HCA 13 ; 210 CLR 333 , the Registrar must register in the Child Support Register kept under the Act a registrable maintenance liability once such a liability arises (see ss 23, 24 and 24A of the Collection Act). The obligation to register such a liability does not arise if the carer to whom the maintenance is owed elects to pursue his or her own remedies and not to take advantage of the Commonwealth's collection scheme under the Collection Act (s 23(3) and s 24A(2) of the Collection Act). Once the registrable maintenance liability is registered under the Collection Act, the underlying debt created by the child support assessment or Court order becomes a debt due to the Commonwealth from the payer in accordance with the particulars of the liability entered in the Child Support Register (s 30 of the Collection Act). The claim sought to be made in par 9B is that s 72A of the Collection Act is invalid because it impermissibly bestows upon the Registrar the judicial power of the Commonwealth in contravention of Ch III of the Constitution . In my view, when the Registrar issues a s 72A Notice, she does not exercise the judicial power of the Commonwealth. Section 72A provides for a collection mechanism in respect of debts already due to the Commonwealth under s 30. Those debts become due to the Commonwealth when they are registered in the Child Support Register. As Gleeson CJ pointed out in Luton [2002] HCA 13 ; 210 CLR 333 at [26] (p 346), there is a right of appeal in respect of such a registration. The registration of a child support liability does not involve a binding and conclusive determination of existing rights and liabilities. It creates rights for the future. In Luton [2002] HCA 13 ; 210 CLR 333 at [27] , Gleeson CJ stated very clearly that the Registrar's powers of collection in respect of registered child support debts do not involve the exercise by the Registrar of judicial power. The remaining members of the Court came to the same conclusion. Paragraph 9B is a re-hash of an old, defeated argument. In my view, the reasoning of the High Court in Luton [2002] HCA 13 ; 210 CLR 333 provides a complete answer to Mr Davis' claim. Furthermore, in Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] , a Full Court of this Court held that the decision in Luton [2002] HCA 13 ; 210 CLR 333 foreclosed any constitutional challenge. I agree.


case_outcome: applied

case_text: relevant principle was explained by Sackville J in Ly v Jenkins [2001] FCA 1640 ; (2001) 114 FCR 237 when, at [70] [71] (pp 258 259), his Honour said: It is "accepted constitutional doctrine" that the Commonwealth, when it invests the judicial power of the Commonwealth in a State court, must take that court constituted and organised from time to time: Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 ; (1996) 189 CLR 51 ; 138 ALR 577 at CLR 67 per Brennan CJ. The doctrine was stated by Knox CJ, Rich and Dixon J in Le Mesurier v Connor [1929] HCA 41 ; (1929) 42 CLR 481 at 496, as follows: "[T]he power is to confer additional judicial authority upon a Court fully established by or under another legislature. Such a power is exercised and its purpose is achieved when the Parliament has chosen an existing Court and has bestowed upon it part of the judicial power belonging to the Commonwealth. To affect or alter the constitution of the Court itself or of the organization through which its jurisdiction and powers are exercised is to go outside the limits of the power conferred and to seek to achieve a further object, namely, the regulation or establishment of the instrument or organ of Government in which judicial power is invested, an object for which the Constitution provides another means, the creation of Federal courts." Mr Roberts, in his oral submissions, seemed to suggest that this doctrine renders the Commonwealth constitutionally incapable of altering the jurisdictional limits of a State court by investing that court with federal jurisdiction. This is not so. The position was explained by Latham CJ in Peacock v Newtown Marrickville & General Co-operative Building Society No 4 Ltd (1943) 67 CLR 25 at 37: "This is a power to give new, additional, jurisdiction to State courts. The Parliament may select such State courts as it pleases. It may give them much or little new jurisdiction. It may make the jurisdiction as wide or as narrow as it pleases with respect to persons, localities or amounts involved; or, as in the Judiciary Act , s 39 , it may allow the State law to operate in respect of such matters. But the State court must be taken as it exists. The constitution or structure of the court cannot be changed by the Federal Parliament." (Emphasis added.) Parliament may therefore affect the functions of a State court, but the "court's organization and constitution are inviolate": Russell v Russell [1976] HCA 23 ; (1976) 134 CLR 495 ; 9 ALR 103 at CLR 531 per Stephen J; Adams v Chas S Watson Pty Ltd [1938] HCA 37 ; (1938) 60 CLR 545 at 554 555 per Latham CJ; at 559 per Starke J; at 560 per Dixon J. His Honour there illustrated the principle by referring to s 68(5) of the Judiciary Act 1903 (Cth) as an example of how the Commonwealth Parliament may permissibly affect the functions of a State court within the principle as explained by his Honour. Moore and Kiefel JJ agreed with the reasons of Sackville J on this point. Paragraph 9A (Serious Question to be Tried) Counsel for Mr Davis submitted that the claims made by Mr Davis in par 9A were supported by s 39B(1) and s 39B(1A) of the Judiciary Act 1903 (Cth). He did not rely upon the Administrative Decisions (Judicial Review) Act 1977 (Cth). Counsel submitted that the Notice was invalid and of no effect for two broad reasons, namely: (1) The Notice was bad in form; and (2) The decision to issue the Notice was invalid because the pre-conditions or jurisdictional facts founding its issue had not been established. In support of his first broad ground, Counsel for Mr Davis made a number of points about the Notice.


case_text: Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 I discussed the relevant principles to be applied by this Court in considering whether or not to grant an interlocutory injunction in aid of private rights. At [19] [31], I said: In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 , a majority of the High Court held that, where an interlocutory injunction is sought (inter alia) in respect of private rights, it is necessary to identify the legal or equitable rights which are to be determined at the trial and in respect of which the final relief is sought. Their Honours who comprised the majority made clear that the final relief sought need not be injunctive in nature. See [8] to [21] (pp 216 220) (per Gleeson CJ); [59] to [61] (pp 231 232) (per Gaudron J); and [86] to [92] (pp 239 242); [98] to [100] (pp 244 246); and [105] (p 248) (per Gummow and Hayne JJ). At [10] (p 216), Gleeson CJ also specifically cited with approval Spry, The Principles of Equitable Remedies , 5th edn, 1997 (pp 446 456). In his Reasons for Judgment, at [13] (p 218), Gleeson CJ expressly approved the following passage from the Reasons for Judgment of Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; (1986) 161 CLR 148 at 153: In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction. These remarks of Mason ACJ which were approved by Gleeson CJ echo the observations made by the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618 at 622 623. In Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at [65] (pp 81 82), when referring to the well-known passage in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 at 622 623, Gummow and Hayne JJ said: By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument [1968] HCA 1 ; [(1968) 118 CLR 618 at 620]. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal [1968] HCA 1 ; [(1968) 118 CLR 618 at 622]: "How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks." At [70] to [72] (pp 83 and 84), their Honours went on to explain the similarities and differences between the test expounded in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; 118 CLR 618 and the test articulated in American Cyanamid Co v Ethicon Ltd [1975] UKHL 1 ; [1975] AC 396 as follows: When Beecham and American Cyanamid are read with an understanding of the issues for determination and an appreciation of the similarity in outcome, much of the assumed disparity in principle between them loses its force. There is then no objection to the use of the phrase "serious question" if it is understood as conveying the notion that the seriousness of the question, like the strength of the probability referred to in Beecham , depends upon the considerations emphasised in Beecham . However, a difference between this Court in Beecham and the House of Lords in American Cyanamid lies in the apparent statement by Lord Diplock that, provided the court is satisfied that the plaintiff's claim is not frivolous or vexatious, then there will be a serious question to be tried and this will be sufficient. The critical statement by his Lordship is "[t]he court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried" [1975] UKHL 1 ; [[1975] AC 396 at 407]. That was followed by a proposition which appears to reverse matters of onus [1975] UKHL 1 ; [[1975] AC 396 at 408]: So unless the material available to the court at the hearing of the application for an interlocutory injunction fails to disclose that the plaintiff has any real prospect of succeeding in his claim for a permanent injunction at the trial, the court should go on to consider whether the balance of convenience lies in favour of granting or refusing the interlocutory relief that is sought. (Emphasis added.) Those statements do not accord with the doctrine in this Court as established by Beecham and should not be followed. They obscure the governing consideration that the requisite strength of the probability of ultimate success depends upon the nature of the rights asserted and the practical consequences likely to flow from the interlocutory order sought. The second of these matters, the reference to practical consequences, is illustrated by the particular considerations which arise where the grant or refusal of an interlocutory injunction in effect would dispose of the action finally in favour of whichever party succeeded on that application [See the judgment of McLelland J in Kolback Securities Ltd v Epoch Mining NL (1987) 8 NSWLR 533 at 535-536 and the article by Sofronoff, " Interlocutory Injunctions Having Final Effect ", Australian Law Journal, vol 61 (1987) 341.95]. The first consideration mentioned in Beecham , the nature of the rights asserted by the plaintiff, redirects attention to the present appeal. At [10] to [12] I have summarised Sebel's claim for final relief. At [13] I have set out the claim for interlocutory relief with which these Reasons deal. Sebel's application for interlocutory relief is in aid of the private rights to which I have referred in [10] to [12] above. The remaining questions identified by Mason ACJ in Castlemaine Tooheys Ltd v South Australia [1986] HCA 58 ; 161 CLR 148 require Sebel to show that: (a) it will suffer irreparable injury for which damages will not be adequate compensation unless an injunction is granted; and (b) the balance of convenience favours the granting of an injunction. The first of these matters involves an assessment by the Court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted (see the discussion of this aspect in Spry, The Principles of Equitable Remedies , 7th edn, 2007 at pp 383 389; at pp 397 399; and at pp 457 462). The second of these matters requires the Court to exercise a discretion. In exercising that discretion, the Court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the claimant if no injunction is granted. In determining this question, the Court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the claimant for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted. In order to address the irreparable injury question, the balance of convenience and the balance of justice in the present case, it is necessary to consider the nature and strength of Sebel's case and the circumstances in which the respondent decided to compete with Sebel by importing the Titan chair into Australia and by promoting and selling that chair in this country. It is also necessary to consider and evaluate the impact that the grant or refusal of an injunction will have or is likely to have on third persons and the public generally. In Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) (1998) 195 CLR 1 at [65] and [66] (pp 41 43), Brennan CJ and McHugh, Gummow, Kirby and Hayne JJ, in a joint judgment, expressly adopted a passage from Spry, The Principles of Equitable Remedies (5th edn, 1997, at pp 402 403), which may be summarised as follows: (a) In assessing the balance of convenience in an interlocutory injunction application, the interests of the public and third persons are relevant and have more or less weight according to other material circumstances; (b) Whether those interests tend to favour the grant or the refusal of an injunction in any given case depends upon the circumstances of that case; and (c) Hardship visited upon third persons or the public generally by the grant of an interlocutory injunction will rarely be decisive. I will apply these principles in the present case. The Application for Leave to Amend the Originating Process Mr Davis sought leave to amend his Application in the manner described in [8] and [9] above. His application for leave to amend was opposed by the Registrar on the ground that each of the additional claims sought to be added to the Application was bound to fail. In my view, the claims made in proposed new pars 9B and 9C are both bound to fail. For that reason, I refuse leave to amend insofar as the inclusion of those paragraphs is concerned. Paragraph 9A raises different considerations although I think that the claim made in that paragraph is barely arguable. The Registrar did not point to any particular prejudice (other than costs) if par 9A were included.


case_outcome: followed

case_text: 9B is a re-hash of an old, defeated argument. In my view, the reasoning of the High Court in Luton [2002] HCA 13 ; 210 CLR 333 provides a complete answer to Mr Davis' claim. Furthermore, in Whittaker v Child Support Registrar [2003] FCAFC 114 at [4] , a Full Court of this Court held that the decision in Luton [2002] HCA 13 ; 210 CLR 333 foreclosed any constitutional challenge. I agree.


case_outcome: cited

case_text: I have already noted that the Tribunal sent to the appellant the s 424A letter. This was done before the decision of the High Court in SZBYR v Minister for Immigration & Citizenship (2007) 185 ALR 609. In any event, it cannot be said that there was any failure to comply with any obligation that may have existed on the part of the Tribunal. The Tribunal set out all of the particulars of the matters of concern, explained to the appellant why those matters were of concern and gave the appellant the opportunity to respond. The introduction included the independent country information that the Tribunal had consulted concerning the Construction Corporation and its activities and a major earthquake that took place in the north of Jiangxi Province at a relevant time. That information comes within s 424A(3)(a) of the Act. In any event, the Tribunal put all of the material to the appellant and I can see no breach of s 424A(1). 25 During the hearing the appellant raised an allegation that the Tribunal failed to give him the opportunity to present all of his material. Specifically, he says that he was not given enough time to present his case to the Tribunal member. There is no evidence to support that allegation and I note that it was not made to Scarlett FM. As I have said, the Tribunal gave a very detailed discussion of all of the matters put to it, not only from the written material provided by the appellant but also from the oral evidence. The Tribunal's account of the hearing describes a detailed number of questions put to the appellant and responses from him. This indicates that the Tribunal member took the time to question the appellant during the course of the hearing. In addition, the hearing notes of the Tribunal, which are in evidence, indicate that the hearing took place over two and a half hours. I am not satisfied that the Tribunal improperly shortened the hearing or failed to give the appellant the opportunity to present his case. 26 I am not satisfied that any of the grounds of appeal, either as raised in the written notice of appeal or as raised at the hearing of this appeal, have been made out. I do not see that there has been any jurisdictional error on the part of the Tribunal or any error on the part of the Federal Magistrate. It follows that the appeal should be dismissed.


case_outcome: considered

case_text: The appellant's application for judicial review came before Scarlett FM ( SZKRK v Minister for Immigration [2007] FMCA 1384). 6 Three grounds were considered by his Honour. The first ground was that the Tribunal ignored or failed to consider important evidence submitted after the hearing, namely the appellant's reply to the s 424A letter (at [12]). His Honour concluded that the Tribunal did consider the material (at [17]). 7 The second ground was that the Tribunal failed to comply with its obligations under s 424A(1) of the Act (at [13]). His Honour concluded that the independent country information appeared to him to come within s 424A(3)(a) of the Act (at [18]) but noted that, in any event, all of the material was put to the appellant after the hearing in the s 424A letter (at [19]). 8 The appellant also alleged that there was bias or bad faith on the part of the Tribunal (at [20]). His Honour found that there was no evidence to support such an allegation, which, as he noted, must be strictly alleged and strictly proved and he declined to make a finding in that regard (at [20]). 9 The third ground was the appellant's claim that the Tribunal failed to comply with its obligations under s 425 of the Act (at [14]). His Honour could not find any such breach of the obligations under that section (at [21]). 10 His Honour considered each of the matters in the application and noted that he had himself read the decision and supporting materials and could not identify any other arguable ground of review. His Honour was satisfied that there was no jurisdictional error in the Tribunal's decision (at [17]). 11 The notice of appeal reflects the substance of the grounds that were raised before Scarlett FM. They are described as particulars of two grounds, being a claim that the Federal Magistrate erred in law and an assertion that the Federal Magistrate was wrong in his finding that the Tribunal acted properly. 12 The first particular asserts that the Tribunal ignored important evidence. What follows is a repeat of the appellant's response to the s 424A letter. No specific evidence is pointed to. 13 To the extent that this particular raises an attempt at merits review, that is not a matter for the Court. I do not see any matter raised in the response with which the Tribunal did not deal. The appellant, who appears before me in person assisted by an interpreter, has not pointed to any evidence set out in the particulars of his notice of appeal that he can say the Tribunal did not deal with. 14 The appellant now raises one additional matter. He claims that he was tortured while in detention and that he has physical scars that reflect that torture. He says that he did not show the scars to the Tribunal for what seems to be two reasons. First, he was not sure if it was appropriate to show the scars to the female Tribunal member. Secondly, he asserts that he wished to show those scars to the Tribunal member but that she did not give him the time or the opportunity to do so. I will return to the second matter. 15 If the appellant did not show the scars to the Tribunal member or make allegations specifically of torture, then it was not a claim made to the Tribunal and the Tribunal was not obliged to address it. Indeed, the Tribunal would not have known about it. I note that there is no reference to a claim of torture in the statutory declaration in support of his application for a protection visa, in the Tribunal's recitation of the case put by the appellant in writing or orally in the Tribunal, in the s 424A letter or in the Federal Magistrate's reasons. This is despite the fact that the appellant did set out in his written material what he said were the indices of his treatment while in detention. 16 There is no transcript of the hearing before the Tribunal in evidence that would assist in ascertaining whether or not the appellant attempted to make such a claim to the Tribunal. In the circumstances I am not satisfied that such a claim was made. 17 The second particular is simply an assertion that the Federal Magistrate erred in his conclusion that at least one of the appellant's claims was an attempt to conduct a merit review. This particular does not really represent a ground of appeal. I see it as a particular of the general ground that the Federal Magistrate erred in law.


case_text: To the extent that this particular may also assert illogicality or irrationality on the part of the Tribunal, such a ground is not made out. In any event, mere illogical reasoning does not of itself constitute jurisdictional error ( NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [30] ; VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286 at [18] ).


case_title: VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286


case_text: Counsel for Mr Asaad seeks a declaration that the above provision does not authorise Mr Asaad's removal from Australia in circumstances where the removal would pose a serious threat to his safety or that of other persons. Counsel says that because a substantial question of statutory construction is involved, there is a prima facie case to be tried and the status quo should not be disturbed: see Australian Broadcasting Corporation v O'Neill [2006] HCA 46 ; (2006) 227 CLR 57 at 82. This, it is said, and the balance of convenience in this case, together weigh in favour of Mr Asaad and warranted the making of the interlocutory orders he seeks. 4 Mr Asaad has filed an affidavit affirmed by Ms Paula Farrugia, a psychologist, who has known Mr Asaad for about four months while visiting the Villawood Detention Centre in which he is detained. Ms Farrugia has been informed by Mr Asaad that he suffers from acute epilepsy and has been informed by other detainees that they have observed him suffering from seizures. Ms Farrugia understands that Mr Asaad has epileptic seizures on an almost daily basis and that he has regularly had two to three epileptic seizures per day. She herself has observed his condition after a seizure, which lead to large bruises on his face and arms. 5 In January 2008, Ms Farrugia discussed Mr Asaad's condition with him and he indicated that he had previously been hospitalised at Canterbury-Bankstown Hospital, Liverpool Hospital and at a psychiatric unit at Bankstown Hospital. Ms Farrugia states that Mr Asaad had been on a hunger strike for 14 days in January 2008, and during March and April he had been on a further hunger strike for 35 days as part of an effort to have his request for relocation granted.


case_text: Counsel for the Minister submits that this Court does not have jurisdiction to deal with the application on the basis that the question of the reasonable practicability of removal is not a jurisdictional fact. Counsel refers to the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465 , which involved a decision under s 198(6) of the Act to remove from Australia an unlawful non-citizen in detention who suffered from mental illness. His Honour held that the proposed removal of Mr Beyazkilinc from Australia pursuant to the subsection was a "privative clause decision", as that term is defined in s 474 of the Act . The question of the reasonable practicability of the removal was held by his Honour not to be a jurisdictional fact. Counsel for the Minister says that, applying this ruling in the present case, the Court does not have jurisdiction and therefore the application to restrain the Minister must fail. 13 In the course of his judgment in Beyazkilinc [2006] FCA 1368 ; 155 FCR 465 , Besanko J referred at 475-476 to four relevant factors to be taken into account in determining whether there was an arguable challenge to removal. At 476-477, his Honour noted that, while two of the factors suggested that the question of reasonable practicability should be characterised as a jurisdictional fact, the other two factors spoke strongly against it and outweighed the first two factors. 15 Counsel for Mr Asaad contends that the relevant decision in this case is not a privative clause decision (see s 474 of the Act ), and as a result would not be a decision for the purpose of s 476A. This would in turn mean that there is room for argument that the reasoning of Besanko J is wrong. Counsel also contends that once the jurisdiction of the Court is invoked, then it has jurisdiction to do whatever is necessary to ensure that it determines the matter and does justice on the application. 16 In my view, it is reasonably arguable, at least sufficiently so for the purposes of granting interlocutory relief in the present case, that the reasoning and decision of Besanko J is wrong when his Honour weighed the various considerations leading to the conclusion concerning the jurisdictional fact. I am also of the opinion that there is sufficient room for argument in this case on the question of the application of the privative clause. Accordingly, in order to preserve the status quo and having regard to the balance of convenience (which, on the evidence, I am satisfied, clearly favours the non-removal of Mr Asaad from Australia), I grant the interlocutory relief sought by Mr Asaad. 17 The foregoing are the reasons for my decision to make the orders on 9 May 2008. I direct that the parties approach my Associate in chambers to arrange for the listing of this matter for further appropriate directions. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 4 June 2008 Counsel for the Applicant: Mr S. Prince Solicitor for the Applicant: SBA Lawyers Counsel for the Respondent: Mr. A. Markus Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 9 May 2008 Date of Judgment: 4 June 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/836.html


case_text: It is worth noting that in Beyazkilinc v Manager Baxter Immigration Reception & Processing Centre [2006] FCA 16 , Mr Beyazkilinc sought interlocutory relief against his removal from Australia and Mansfield J made an order that the Commonwealth of Australia be restrained from removing him until further order. His Honour's judgment in that case was not appealed.


case_text: a full search of Westport's records has been undertaken. Westport has no means of compelling brokers/agents to conduct searches on its behalf. Westport has done all that is within its power, and is confident that it has identified every policyholder contained within its own records. The diligence of the search that has been undertaken is a consideration relevant to the decision whether or not to grant a dispensation: Calliden Group Limited in the matter of Calliden Group Limited [2007] FCA 2019 ( Calliden Group Limited ) at [62]. Second, the evidence is that the direct policyholders who have not been identified are unlikely ever to make a claim. The policies that they hold are short-tail in nature, and it can be assumed that any claim would have been notified by now. The chance of the unidentified policyholders being affected by the scheme in reality, as distinct from theoretically, is therefore low. Re Insurance Australia Ltd involved the transfer of a portfolio of 72,500 compulsory third party motor accident insurance policies. I noted that, given the length of time since the expiration of the last period of insurance, it was unlikely that many further claims would be made. I considered that it would be "excessive" to require notice to be given to all 72,500 policyholders, and required that notice only be given to those policyholders in respect of whose policies there was a notified claim that was unsettled or was otherwise outstanding: see [26]-[27]. See also Calliden Group Limited at [62]. The fact that additional steps will be taken to draw the scheme to the attention of the affected policyholders (see [33]-[36] above) has been held to be a factor favouring the granting of a dispensation under s 17C(5) (or the equivalent provision of the Life Insurance Act 1995 ) in several cases, including GIO Personal Investment Services Ltd at [18], Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5], and Calliden Group Limited at [62]. Fourth, the proposed scheme is an "intra-group" scheme, that is to say, the policies are being transferred not from one corporate group to another, but within the Swiss Re group. Because the transfer will not involve any real change in the practices and "culture" of the insurer, there seems to be a reduced imperative for notification. This consideration has been relied upon as supporting the granting of a dispensation: MMIA Pty Limited and QBE Insurance (Australia) Limited [2008] FCA 1239 at [24] ; Calliden Group Limited at [62]. Fifth, APRA does not oppose the making of the order. The fact that APRA, which is charged with the responsibility of protecting the interests of policyholders, has raised no objection has been said to be a matter in favour of a dispensation: see, eg Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5]; Calliden Group Limited at [62].


case_title: Challenger Life Limited [2004] FCA 618

case_text: Court has said that the granting of a dispensation under s 17C(5) (or its analogue in the Life Insurance Act 1995 (Cth), s 191(5)) is a "matter of considerable importance and should not be regarded as a matter of course": Munich Reinsurance Company of Australasia Limited [2004] FCA 1391 at [4] , per Tamberlin J. See also Challenger Life Limited [2004] FCA 618 ( Challenger Life Limited ) at [2]-[3], per Gyles J. This is because, as Sackville J stated in The Application of Commonwealth Life Ltd & Anor [2003] FCA 501 ( Commonwealth Life Ltd ) at [8]: Clearly enough, the policy underlying the statutory requirement ... is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal. The fact that additional steps will be taken to draw the scheme to the attention of the affected policyholders (see [33]-[36] above) has been held to be a factor favouring the granting of a dispensation under s 17C(5) (or the equivalent provision of the Life Insurance Act 1995 ) in several cases, including GIO Personal Investment Services Ltd at [18], Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5], and Calliden Group Limited at [62]. Fifth, APRA does not oppose the making of the order. The fact that APRA, which is charged with the responsibility of protecting the interests of policyholders, has raised no objection has been said to be a matter in favour of a dispensation: see, eg Commonwealth Life Ltd at [6] and [10], Challenger Life Limited at [5]; Calliden Group Limited at [62].


case_title: The Application of Commonwealth Life Ltd & Anor [2003] FCA 501


case_text: In the matter of GIO Personal Investment Services Ltd and AMP Life Ltd [2000] FCA 1871 ( GIO Personal Investment Services Ltd ), Emmett J noted (at [16]-[18]) that, despite certain steps being taken to keep track of policyholders, the company did not have a current address for all its policyholders. His Honour observed that a notice of intention to make the application had been published in newspapers in all States and Territories, and that the notice included a telephone number by which policyholders could make enquiries and request copies of the scheme summary documents free of charge. Given the steps that the company had taken to locate its policyholders, and the alternative steps that the company had taken to draw the scheme to their attention, his Honour considered it appropriate to dispense with compliance with s 191(2)(c) of the Life Insurance Act 1995 : see [19].


case_text: term "affected policyholder" is defined in s 17C(1) of the Act as "the holder of a policy affected by the scheme". In Re Insurance Australia Ltd [2004] FCA 524 ; (2004) 139 FCR 450 ( Re Insurance Australia Ltd ) at [19]-[20], I held: that the expression "affected policyholder" referred to a policy that was affected by the scheme, not to a holder who was affected by the scheme; and that the holders of policies that had been issued by the transferee company, or that had been issued by the transferor company but were not to be transferred under the scheme were not "affected policyholders". In the present case, all of the direct insurance policies and all of the reinsurance policies of Westport are sought to be transferred to either SRI or SRCAU. It follows that all of Westport's policyholders are "affected policyholders". The policyholders of SRI and SRCAU, however, are not, and are therefore not required by s 17C(2)(c) to be provided with an approved summary of either scheme. The need for the dispensation Westport seeks a dispensation because it is not able to identify all of its policyholders, and is therefore unable to comply with s 17C(2)(c). There is an additional reason why a dispensation is sought. This additional reason applies to certain policyholders that Westport has been able to identify. Section 17C(2)(c) requires that the approved summary be "given" to affected policyholders. Section 121 of the Act provides various ways in which a document may be "given" to a person for the purposes of the Act. In the case of a body corporate other than Lloyd's (being the society of that name incorporated by Lloyd's Act 1871 (UK)) that is not incorporated in Australia, s 121 provides that the document may be given by being left at, or by being sent by registered post to, the body corporate at its address for service notified to APRA. Where no such address has been notified to APRA, the Act appears to require that the document simply be "given" to the body corporate, as distinct from being posted to it at its last known address, without explanation as to how it is to be "given" to the foreign body corporate. Re Insurance Australia Ltd involved the transfer of a portfolio of 72,500 compulsory third party motor accident insurance policies. I noted that, given the length of time since the expiration of the last period of insurance, it was unlikely that many further claims would be made. I considered that it would be "excessive" to require notice to be given to all 72,500 policyholders, and required that notice only be given to those policyholders in respect of whose policies there was a notified claim that was unsettled or was otherwise outstanding: see [26]-[27]. See also Calliden Group Limited at [62].


case_text: the proposed scheme is an "intra-group" scheme, that is to say, the policies are being transferred not from one corporate group to another, but within the Swiss Re group. Because the transfer will not involve any real change in the practices and "culture" of the insurer, there seems to be a reduced imperative for notification. This consideration has been relied upon as supporting the granting of a dispensation: MMIA Pty Limited and QBE Insurance (Australia) Limited [2008] FCA 1239 at [24] ; Calliden Group Limited at [62].


case_text: Court has said that the granting of a dispensation under s 17C(5) (or its analogue in the Life Insurance Act 1995 (Cth), s 191(5)) is a "matter of considerable importance and should not be regarded as a matter of course": Munich Reinsurance Company of Australasia Limited [2004] FCA 1391 at [4] , per Tamberlin J. See also Challenger Life Limited [2004] FCA 618 ( Challenger Life Limited ) at [2]-[3], per Gyles J. This is because, as Sackville J stated in The Application of Commonwealth Life Ltd & Anor [2003] FCA 501 ( Commonwealth Life Ltd ) at [8]: Clearly enough, the policy underlying the statutory requirement ... is to give every affected policyholder a summary of the scheme and, an opportunity, if he or she so desires, to make submissions to the Court in respect of any application for confirmation of the scheme. A right to be heard in relation to a proposed scheme may be of little value if a person does not know of the proposal.


case_text: am satisfied that the proposed procedure complies with the statute and with the applicable authorities. It is not proposed that ineligible foreign shareholders constitute a separate class ( Re Hills Motorway Ltd (2002) 43 ACSR 101 at 104; Re SFE Corporation Ltd at [8]). A particular order is required to deal with the publication of further financial results by both Promina and Suncorp prior to the scheme meeting. It is necessary that the independent expert consider the effect, if any, of those results upon the opinions expressed and that there be communication with the shareholders about that ( Re Hills Motorway Ltd at 106). I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles. Associate: Dated: 18 December 2006 Counsel for the Plaintiff: Mr F Gleeson SC, Mr RA Dick Solicitor for the Plaintiff: Freehills Counsel for Suncorp-Metway Limited: Mr TF Bathurst QC Solicitor for Suncorp-Metway Limited: Corrs Chambers Westgarth Date of Hearing: 14 December 2006 Date of Orders: 14 December 2006 Date of Reasons: 18 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1772.html


case_text: am satisfied that the structure of the scheme is effective and appropriately safeguards the interests of shareholders in the event that the scheme is approved. It effectively removes the performance risk to which I have referred in other cases (eg Re SFE Corporation Ltd (2006) 59 ACSR 82 ; [2006] FCA 670 ; Re Tempo Services Ltd (2005) 53 ACSR 523 at 524; [2005] FCA 410). I am satisfied that the proposed procedure complies with the statute and with the applicable authorities. It is not proposed that ineligible foreign shareholders constitute a separate class ( Re Hills Motorway Ltd (2002) 43 ACSR 101 at 104; Re SFE Corporation Ltd at [8]). The exclusivity period and break fee are not such as to cause concern ( Re SFE Corporation Ltd at [7]). The position of foreign shareholders, reset preference shareholders and participants in share plans has been explained. The directors recommend the scheme. Australian Securities and Investments Commission and Australian Prudential Regulatory Authority have indicated that no opposition is likely. The Scheme Booklet is in appropriate form to enable shareholders to make a commercial decision. It includes an independent expert report based upon valuations, an independent actuary's report and an accountant's report. The Court does not, of course, approve the merits of the contents of the Booklet.


case_title: Re Tempo Services Ltd (2005) 53 ACSR 523, [2005] FCA 410

case_text: am satisfied that the structure of the scheme is effective and appropriately safeguards the interests of shareholders in the event that the scheme is approved. It effectively removes the performance risk to which I have referred in other cases (eg Re SFE Corporation Ltd (2006) 59 ACSR 82 ; [2006] FCA 670 ; Re Tempo Services Ltd (2005) 53 ACSR 523 at 524; [2005] FCA 410).