case_text: The RRT was not in error when if failed expressly to consider the appellant's subjective state. It is true that, if the applicant were to succeed, then the Tribunal had to be satisfied that he subjectively held a fear of persecution if returned to Kenya and that his fear was well-founded. As the Federal Magistrate found, the Full Court decision in WAHK is contrary to the appellant's claim that the RRT was required to consider subjective factors. In WAHK , Lee and Tamberlin JJ said (at [12]-[14]) as follows (emphasis mine): " Where the RRT has accepted that an applicant had a well-founded risk of persecution at the time of their departure, a question arises concerning the approach that the RRT should take, in view of that finding, at the time it makes its decision concerning whether that applicant would have a well-founded risk of persecution, if they were returned. In [Chan] , Gaudron J, (at 415), accepted that the correct approach to a submission as to changed circumstances is as follows: " If an applicant relied on his past experiences it is, in my view, incumbent on a decision-maker to evaluate whether those experiences produced a well-founded fear of being persecuted. If they did, then a continuing fear ought to be accepted as well-founded unless it is at least possible to say that the fear of a reasonable person in the position of the claimant would be allayed by knowledge of the subsequent changes in the country of nationality. " The above view was not shared by Gummow J, who, in Minister for Immigration and Multicultural Affairs v Eshetu [1999] HCA 21 ; (1999) 197 CLR 611 at 659, said that the view of Gaudron J in Chan (quoted above) did not represent the view of the Court in Chan . Gaudron J accepted that this observation was correct in the case of Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57 at [69] . Her Honour considered that her approach was, nevertheless, correct. The relevant question is whether, as at 29 May 2002, the objective facts establish that the appellant had a well-founded fear of persecution. This is to be assessed on an objective basis , and not on the basis that the fear of a reasonable person in the position of the claimant would not be allayed by knowledge of subsequent changes in the country of nationality. The reference to a "well-founded fear" is a reference to the objective factual position at that time. " The majority's approach is directly contrary to the position of the appellant in this case. Consistently with WAHK , if the RRT is not satisfied, objectively speaking, that there was a real chance of persecution then it does not have to further consider an applicant's subjective fear. This is because, without a sufficient objective chance of persecution, the applicant cannot have a well-founded fear of persecution: see also WAKZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1065 at [46] - [49] and SVTB at [21].


case_outcome: referred to

case_text: Secondly, an examination of the material before the RRT makes manifest that the appellant clearly limited his claims to his past involvement in MwM. He did not refer to the position of other activists or liken his position to theirs, and he said nothing about his own activities or their curtailment if returned to Kenya. There is no factual basis in this case that would support an approach analogous to that in S395. Further, this is not a case in which it can be said that the RRT has failed to make a finding on "a substantial, clearly articulated argument relying upon established facts" such that there has been a failure to accord procedural fairness or constructive failure to exercise jurisdiction: see and contrast Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26 ; (2003) 77 ALJR 1088 at [24] per Gummow and Callinan JJ. This is because there was no such argument. To adapt the language of the Full Court of this Court in NABE , this was not a case that obliged the RRT to consider the claim as it is now formulated by the appellant because the claim did not clearly arise from the material before the RRT: see NABE at [58] and [60]-[62].


case_outcome: cited

case_text: The discretion to award costs pursuant to s 43(2) of the Federal Court of Australia Act 1976 (Cth) is a wide and comprehensive one attempts to narrow the discretion have not been successful: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496; Australian Competition & Consumer Commission v Black on White Pty Ltd [2002] FCA 1605 at [5] .


case_title: Gladstone Park Shopping Centre Pty Ltd v Ross Wills (1984) 6 FCR 496


case_text: The discretion is not unfettered it must be exercised judicially, not arbitrarily or capriciously, and it cannot be exercised on grounds unconnected with the litigation: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201; Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40-748 at 48, 136; Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480 at 485.


case_title: Ricegrowers Co-operative Ltd v ABC Containerline NV (1996) 138 ALR 480


case_title: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 28 ALR 201


case_text: On 26 October 2007, Tracey J delivered judgment in proceeding number VID 1607 of 2005. The judgment is published under the designation Australian Prudential Regulation Authority v Siminton (No 6) [2007] FCA 1608. In the proceeding in which that judgment was given, the Australian Prudential Regulation Authority ("APRA") sought, among other things, relief by way of a permanent injunction against the respondent, Mr Siminton, pursuant to s 65A of the Banking Act 1959 (Cth) ("the Banking Act "). Section 65A provides that the Court may grant an injunction restraining a person from engaging in conduct, or requiring the person to do a particular act or thing, in such terms as the Court thinks appropriate, if there is a contravention or threatened contravention of the Act. 2 The particular provision to which attention was directed in that proceeding was s 7 of the Banking Act , which effectively prohibits carrying on the business of banking without a licence. Tracey J was satisfied that Mr Siminton had collected money by way of deposits from members of the public, as a result of his solicitation of those deposits, and had promised returns at a very high level, 40 or 50 per cent, described as a "profit share", rather than interest. His Honour was satisfied that Mr Siminton did not fall within s 11 of the Banking Act , which would have entitled him to carry on banking business and that, therefore, he was in contravention of s 7. A significant part of his Honour's findings about the carrying on of the business of banking related to the proposition that Mr Siminton had lent money, in the sum of $100,000, from the moneys deposited with him, to an institution called Technocash, and had promised those from whom he solicited funds that moneys would be available for loans in the future. 3 In determining what relief should be granted, his Honour decided to make permanent some injunctions that had previously been granted on an interlocutory basis. At [72]-[75] of his reasons for judgment, his Honour also proposed that the case would be one appropriate for the appointment of a receiver, under either s 57(1) or s 23 of the Federal Court of Australia Act 1976 (Cth). His Honour invited submissions from the parties on a subsequent date, 7 November 2007, in relation to the terms of appropriate orders and any additional relief. Submissions were made. On 7 November 2007, his Honour made an order that included an order appointing a receiver to give effect to the judgment and orders of the Court in proceeding number VID 1607 of 2005, by ensuring that moneys, which the Court had found to have been received by Mr Siminton in contravention of the Banking Act , were returned to depositors. The order recited that the Court had found that the Terra Nova Cache that was established by Mr Siminton was a bank, operating in conjunction with an entity called the Principality of Camside, and that members of the public were encouraged to make deposits in Terra Nova Cache in return for promised high interest payments. 4 The order appointing the receiver is some 19 paragraphs long, including a reservation of liberty to apply. It is unnecessary for present purposes to recite all of the provisions of the order, but it is necessary to refer to some specific provisions. In para 4, the Court ordered that: The receiver shall have the following powers: (a) The power to do, in Australia and elsewhere, all things necessary and convenient to be done for or in connection with, or as incidental to, the attainment of the objectives of these orders; (b) The power to require, by request in writing, that Mr Siminton and any other person who has provided banking or financial services to Mr Siminton the Terra Nova Cache and or the Principality of Camside provide such reasonable assistance to the receiver as required from time to time; and (c) The power to deal with the Funds in such manner as he thinks most beneficial to ensure compliance with the orders made by this Court. 5 In para 5, the Court ordered that: On or before 21 November 2007, Mr Siminton provide to the receiver all bank statements, books of account, receipts, invoices, correspondence or any other document in his possession, custody, power or control relating to monies received from members of the public for deposit in the Terra Nova Cache. 6 In para 17 of the order, there appears the following provision: The following additional orders shall apply in relation to the receiver: (a) the receiver shall be entitled to reasonable remuneration and reasonable costs and expenses properly incurred in the performance of his duties and the exercise of his powers as receiver to be calculated on the basis of the time reasonably spent by the receiver, his partners and staff in accordance with the scale of fees provided to the Registrar, such fees to be paid out of the Funds as a first charge; and (b) the receiver shall deliver an account for all amounts drawn by him for his remuneration, costs and expenses to the court every month until the termination of the period of receivership or until further order and pay any balances as may be due to him or by him in such manner as the Court may direct. 7 On the same day as those orders were made, 7 November 2007, Mr Siminton, by his counsel, applied to Tracey J for a stay of those orders, pending appeal. His Honour adjourned that application to 15 November 2007, when submissions were made and his Honour rejected the application for a stay. The only indication of his Honour's reasons is in the transcript of the oral reasons for judgment delivered on that day, in which his Honour canvassed proposed grounds of appeal, and did not find that they would be likely to succeed. His Honour dealt with arguments that a stay ought to be granted on the basis that the receiver would incur expenses in the course of performing his duties, and that those expenses would be thrown away if and when the appeal were determined favourably to Mr Siminton. His Honour also rejected an argument that the power to require Mr Siminton to provide information and documents would amount to a denial of his right to the privilege against self-incrimination. 8 The application today for a stay of the appointment of a receiver is effectively the same application that was made to Tracey J. As a judgment dealing with an interlocutory application, his Honour's judgment refusing a stay gives rise to no res judicata estoppel or issue estoppel against Mr Siminton, but, in the circumstances, unless I am convinced that his Honour was fundamentally wrong, or unless any new material is raised before me, I ought to follow what his Honour said and refuse to grant the application.


case_outcome: followed

case_text: The proper test for the granting of a stay of orders made by the Court pending appeal is laid down by the Full Court in Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66, where the Full Court rejected the test of special circumstances, which had been applied by Victorian courts and adopted the test applied in New South Wales. That test is that the applicant for a stay needs to demonstrate a reason, or an appropriate case, to warrant the exercise of the discretion in favour of the applicant. 10 Counsel for Mr Siminton attempted to persuade me that Tracey J was fundamentally wrong in his reasons for judgment, given on 26 October 2007, in that there was no evidence that Mr Siminton was carrying on the business of banking. In particular, the argument was that there was no evidence of loans made by Mr Siminton. His Honour dealt with that issue at some length. His Honour certainly found as a fact that there was evidence of one loan to Technocash. His Honour also found as a fact that, in the course of soliciting deposits from members of the public at public meetings, Mr Siminton had made it clear that in due course loans would be available. Indeed, it is difficult to envisage that funds raised in this manner could be invested in any sort of a broad investment portfolio without loans to other institutions and parties being involved. Counsel for Mr Siminton said that returns of the magnitude proposed could be generated by investment in currency markets and commodity markets. Whether or not this is so, I still think that it is difficult to imagine that no loans would ever be involved. In any event, I cannot be satisfied that Tracey J was fundamentally wrong in the view that he took, or fundamentally wrong to take the view that injunctive relief and the appointment of a receiver were warranted. 11 The next argument on behalf of Mr Siminton was an argument that Tracey J also dealt with on 15 November 2007, when he rejected the application for a stay of the appointment of the receiver. This argument was that the expenses claimed by the receiver, and fees claimed by the receiver, under para 17 of the order, would diminish the amount made available to the depositors if the appeal were to be allowed. Counsel for Mr Siminton was inclined to put this in terms of an argument that the appeal would be rendered nugatory. Of course, it will not. Even if some money goes to the receiver, there will still be other money available to the depositors, or to be returned to Mr Siminton if his appeal succeeds. It is not possible to render an appeal partially nugatory. 12 The question is whether the appointment of a receiver can be justified in the circumstances. The circumstances are such that it is unknown to what extent there are funds that have been gathered by Mr Siminton in the course of his venture that is unlawful under the Banking Act . In schedule A to the order made on 7 November 2007 appointing the receiver, there is a list of the locations of funds that were known to the Court at the time that order was made. It does seem probable that there are other funds, but Mr Siminton will not say where they are. In the circumstances, that alone justifies the appointment of a receiver and is a strong argument against staying the order pending any appeal. 13 The privilege against self-incrimination is a privilege that can be either claimed or waived by a person. If the receiver were to put questions to Mr Siminton, the answers to which might incriminate him, or were to require him to produce documents, the information in which might incriminate him, he would, on a question by question or request by request basis, have the right to refuse to answer those questions or comply with those requests if he were able to say that to give an answer or to comply with the request might incriminate him. It is wrong to assume in advance that anything that the receiver might request, or any question that the receiver might ask, might require that Mr Siminton incriminate himself. Any issue of self-incrimination must be dealt with on a question by question or request by request basis, in the context of the reasonableness of the likelihood of criminal proceedings.


case_text: His Honour's Reasons reflect the following observations concerning his Honour's assessment of the evidence before him and the legal issues: (a) The Applicant applied for the Registered Design on 24 December 2001. The Registered Design was granted on 27 May 2003 and since September 2004 Midamarine has, through arrangements with a licensee, Britz Innovation Pty Ltd ('Britz Innovation') and a related company Kalinin Pty Ltd ('Kalinin'), a company trading as 'Britz Marketing', been selling an inflatable surfcraft described as the ' Wavestar '. The Applicant also sells another surfcraft article described as the ' Surfster '. (b) The Applicant contends that the Wavestar is an embodiment of the Registered Design. (c) In June 2005, Mr Russell Joel Binkin ('Mr Binkin'), 'an associate of the applicant, provided a sample of the Wavestar to Mr Corrick and endeavoured to persuade him that he should licence the design of the Wavestar from the applicant. Mr Corrick was provided with artwork, which came from the applicant. I am satisfied that the sample of the Wavestar and the artwork contained clear notification of a Registered Design, and the artwork and sample contained the Warning which presently appears on the physical exhibit of the Wavestar. It is to be expected, I would have thought, that there was copyright in somebody in that formulation of the Warning.' [6] (d) 'After the meeting and the supply of the sample and artwork, Mr Corrick indicated he was not interested in pursuing a licence for the product.' [7] (e) In January 2006, Midamarine and Britz Marketing entered into an exclusive distributorship in relation to the Wavestar surfcraft. In February 2006, Mr Corrick commenced negotiations with the National Rugby League ('NRL') and the Australian Football League ('AFL') to use the trade marks of NRL and AFL sporting teams on surfcraft or surf mats. (f) On 8 September 2006, a director of Midamarine, Mr Michael Arenson, learnt that DMC was supplying a surfcraft article to 'Amart All Sports' which was said by Mr Arenson to be strikingly similar to the Wavestar . (g) On 22 September 2006, Mr Arenson saw a reproduction of the DMC article. Mr Arenson spoke to Mr Corrick and wrote a letter to him on 24 September 2006 drawing his attention to the similarities in the design features between the Wavestar article and the DMC article. Mr Arenson drew Mr Corrick's attention to the fact that the warning label endorsed on the DMC article was a direct copy of the Warning Notice on the Wavestar article. In particular, Mr Arenson drew Mr Corrick's attention to the reproduction on the DMC article of the claim, 'The shape of this inflated product is a Registered Design' . (h) On 27 September 2006, the solicitors for DMC applied to register a design of a surfcraft in the name of DMC and, in that Application, Mr Corrick was described as the designer. His Honour observed that: 'No documents supporting his design exist, for the good reason that, in fact, the DMC product is a direct and complete copy of the Wavestar. ' [11] (i) His Honour noted: 'It is now conceded that the DMC surf mat is indeed a copy - and a deliberate copy of the Wavestar ' . This, in my view, had to be so. The visual comparison leads to that conclusion. The fact that the Wavestar was left with Mr Corrick, the comparison of the two and the identity of the words used in the Warning on the back of the DMC surf mat and, in particular, "the shape of this inflatable product is a Registered Design", lead inevitably to the conclusion that the DMC product is a direct copy of the Wavestar '. [12] 'The words on the Wavestar reflect the contention by Mr Arenson that the Wavestar is an embodiment of the Registered Design. The presence of those words on the DMC product is, in my opinion, damning evidence of copying by DMC of the Wavestar.' [13] (j) Counsel for DMC contended that the Wavestar is not an embodiment of the Registered Design and in any event, the Registered Design is invalid. As to the latter question, his Honour concluded that for interlocutory purposes, the Applicant is to be treated as the owner of a valid Registered Design having regard to differences in the features of shape reflected in the examples of prior art. 'Indeed, the attack on the validity of the Registered Design is seriously undermined by DMC's own application for registration of the design of the DMC product, which application is tainted with dishonesty and fraudulent claims. I accept that it has been acknowledged that the application will be withdrawn or otherwise expunged.' [16] (l) His Honour addressed Midamarine's contention that DMC had applied the Registered Design or a fraudulent or obvious imitation of the Registered Design to articles sold and offered for sale by DMC. At [23], the features of shape, configuration, pattern or ornamentation contained within the Registered Design, capable of being judged by the eye, are identified by his Honour. At [24], his Honour observes, 'I have inspected the inflated DMC product and compared it with the Registered Design. The inflated DMC product possesses each of the features identified in the Applicant's written submissions (those identified at [23]), with the exception that the handles do not protrude from the top of the surf mat as depicted in the Registered Design. The handles on the Wavestar also do not protrude from the top of the surf mat, as depicted in the Registered Design. His Honour concluded that, 'For present purposes, being the interlocutory purposes, I am satisfied that, to the eye, the shape of the DMC product is substantially the same as that of the Registered Design. It is, in my opinion, strongly arguable that the design, which has been applied to the DMC product, is an obvious imitation of the Registered Design. That is, in the words of the test in Malleys (Malleys Ltd v J W Tomlin Pty Limited [1961-62] 35 ALJR 352) , to be found at p 354 of the report: "Not the same but a copy apparent to the eye notwithstanding slight differences".' [27] (m) His Honour observed that even if the design applied to the DMC article is not an obvious imitation of the Registered Design, the test for fraudulent imitation is even more strongly arguable [28]. His Honour identified the tests approved by the High Court in Polyaire Pty Ltd v K-Aire Pty Ltd & Ors [2005] HCA 32 ; (2005) 221 CLR 287 and the High Court's approval of the observations of Lehane J in Koninklijke Philips Electronics NV & Anor v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167. His Honour concluded: 'I am satisfied that there is a strongly arguable case of fraudulent imitation. It seems inevitable that, if the Wavestar is an embodiment of the Registered Design, then the DMC product is a fraudulent imitation. The design of the Wavestar and the DMC product is almost identical. It could not have been independently created. It is now admitted that the DMC product is a copy of the Wavestar .' [31] 'So, also, is the embarrassing identity of the direct words of the warning label, including the imprinting of the words: "The shape of this inflatable product is a Registered Design". ' (n) At [33], his Honour said this: 'It is not denied that Mr Corrick was supplied with a sample of the Wavestar surf mat and had discussed obtaining a licence of the design. It seems plain that there is a strongly arguable case of obvious imitation or fraudulent imitation of the Registered Design.' (o) On the question of the balance of convenience, his Honour considered the observations of the High Court in Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618 at 625 and the principles affirmed by the High Court in Australian Broadcasting Corporation v O'Neill [2006] HCA 46 and weighed in the balance the implications arising out of a consideration that DMC had 'in the face of warnings' from Midamarine and 'with eyes wide open' embarked upon a course of importing, selling and offering for sale articles to which a fraudulent or obvious imitation of the Registered Design had been applied. At [39], his Honour said this: 'In my judgment, the balance of convenience strongly favours the grant of the injunction sought. The chronology of events, and in particular the history of the design of the DMC product that is to say no design, but a direct copy indicates that the respondents have decided to import and distribute the DMC product with their eyes open to the likely consequences of so doing.' (p) At [40], his Honour further referred to submissions by counsel for Midamarine and quoted this submission, 'No reasonable trader, having received the sales pitch from Mr Binkin [in June 2005] for the Wavestar , could reasonably ignore the existence of the rights [claimed in the design]' . (The words in the square brackets are explanatory words inserted into counsel's submission by his Honour). (q) As to the question of damage accruing to Midamarine, his Honour said this: 'In this particular case, the applicant is shown to be an established manufacturer and supplier of the Wavestar surf mats. It is strongly arguable that that product has the benefit of the protection of the Registered Design. It has been creating a market for its product and supplying its product to distributors since 2004. [35]. 'Earlier this year, the applicant entered into an exclusive distributor arrangement with Britz Marketing. I accept that its fortunes are tied to its ability to distribute its products via Britz Marketing. The Wavestar is now exclusively sold by Britz Marketing under the name Wahu Wavetube . That surf mat is sold in an extensive range of shops, including Toyworld, Big W, Rebel Sports, Target and Toy'R'Us. Mr Britz says the Wahu Wavetube has been heavily promoted'. [36] 'Since the First Respondent [DMC] began, in October 2006, to sell the DMC product, Amart All Sports has ceased all sales of the Wahu Wavetube and has acquired, instead, the DMC product. I accept that the inability to sell surf mats to the applicant's design to Amart has a significant impact on the ability of the applicant to make sales.' (r) On the question of an assessment of potential wider injury, his Honour concluded that, 'There is a serious over-statement of those risks in the evidence on behalf of the applicant'. [38] His Honour concluded that there was 'a deal of exaggeration in the injury inherent' in the contentions of Mr Britz that Britz Marketing would have to give serious consideration to sourcing surf mats from a different and cheaper source than Midamarine if DMC products continued to be sold. (s) At [41], his Honour reached this conclusionary observation, 'The strength of the applicant's case of deliberate copying by the first respondent favours the grant of the interlocutory injunction. The impugned DMC products are clearly and objectively a deliberate copy of the Wavestar . The person responsible for the design and manufacturer of the DMC product knew that the product was a copy of the Wavestar , and knew of the claim that the design of the Wavestar product was protected by a Registered Design. In those circumstances, it seems to me that DMC has embarked on a task of ordering and importing the impugned products with its eyes wide open as to the potential consequences of so doing, namely, that it will be exposed to the present application.'


case_title: Koninklijke Philips Electronics NV & Anor v Remington Products Australia Pty Ltd [1999] FCA 816 ; (1999) 91 FCR 167


case_title: Polyaire Pty Ltd v K-Aire Pty Ltd & Ors [2005] HCA 32 ; (2005) 221 CLR 287


case_outcome: considered

case_title: Beecham Group Limited v Bristol Laboratories Pty Limited [1968] HCA 1 ; (1967-68) 118 CLR 618


case_title: Australian Broadcasting Corporation v O'Neill [2006] HCA 46


case_text: The questions to be determined on this Application are whether, in all the circumstances, the decision of his Honour is attended with sufficient doubt so as to warrant the decision being reconsidered by the Full Court and whether substantial injustice would result if leave is refused, supposing the decision to be wrong ( Décor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991) 33 FCR 397 at 398 and 399 per Sheppard, Burchett and Heerey JJ). At pp 399 and 400, their Honours said this: 'In our opinion, the principles discussed in Niemann and in other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice ... and an interlocutory decision determining a substantive right where leave will more readily be granted. ... In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave.' In Yap Cheng See v Granich & Associates [2001] FCA 1735 per North, Merkel and Gyles JJ, the Court noted the distinction to be drawn between an interlocutory decision on a point of practice or procedure and an interlocutory injunction 'on a point of substance' [6].


case_text: The questions to be determined on this Application are whether, in all the circumstances, the decision of his Honour is attended with sufficient doubt so as to warrant the decision being reconsidered by the Full Court and whether substantial injustice would result if leave is refused, supposing the decision to be wrong ( Décor Corporation Pty Ltd & Anor v Dart Industries Inc. (1991) 33 FCR 397 at 398 and 399 per Sheppard, Burchett and Heerey JJ). At pp 399 and 400, their Honours said this: 'In our opinion, the principles discussed in Niemann and in other cases to which we have referred provide general guidance which a court should normally accept. However, there will continue to be cases raising special considerations, and the court should not regard its hands as tied in any case beyond this; that by s 24(1A) the legislature has evinced a policy against the bringing of interlocutory appeals except where the court, acting judicially, finds reason to grant leave. When the court comes to exercise its discretion on a particular application, an important distinction to be observed is that between the common interlocutory decision on a point of practice ... and an interlocutory decision determining a substantive right where leave will more readily be granted. ... In the present case, the interlocutory decisions in respect of which leave is sought are certainly attended with difficulty, and their correctness is open to dispute. If they are wrong, significant consequences will be suffered by the applicants. We regard this as a clear case for the grant of leave.' In Yap Cheng See v Granich & Associates [2001] FCA 1735 per North, Merkel and Gyles JJ, the Court noted the distinction to be drawn between an interlocutory decision on a point of practice or procedure and an interlocutory injunction 'on a point of substance' [6]. 32 Fourthly , Mr Corrick says that he first conceived of the possibility of marketing and selling inflatable surfcraft featuring the designs and logos of the NRL and AFL teams during the course of his holidays during December 2005 and January 2006 at Noosa in Queensland. Mr Corrick says that on his return to Sydney he proposed the notion to the NRL and AFL in February 2006 and then developed a concept and design but did so in circumstances where he was not aware of Midamarine's Registered Design. Mr Corrick says that he spent $30,000 developing the concept of the surfcraft endorsed with the designs, for approval of the NRL and AFL. In May 2006, licence agreements with the NRL and AFL were negotiated. Mr Corrick says that he does not have any documents in his possession, power or control in relation to the 'design process undertaken in developing the DMC surf mat' . DMC concedes that it copied the Wavestar article although DMC and Mr Corrick contend that that conduct occurred without any knowledge of or reference to the Registered Design or an assertion of such rights by Midamarine. That matter is the subject of controversy for the purposes of the action. 33 Fifthly , Mr Corrick in his affidavit says that Mr Binkin came to him with three product proposals for endorsement with NRL team graphics, 'a team branded rug or floor covering, wall hangings and the surf mat' . The surf mat was just one of a number. Mr Corrick says he did not proceed with any of the proposals. There was an existing licensee for floor mats and the NRL was not satisfied that the proposal concerning floor coverings and wall hangings was sufficiently differentiated. Although Mr Corrick mentioned the surf mat proposal to the NRL, 'the NRL was not interested' . However, by May 2006, Mr Corrick and DMC had established confidential licensing arrangements with each of the NRL, ARU and AFL to manufacture and supply inflatable surf mats displaying the names and logos of the various teams in the National football competitions administered by those bodies. 34 I am not satisfied that his Honour's decision is attended with doubt as to the conclusions he reached concerning these matters going to the strength of the arguable question to be determined at the trial of the action. 35 His Honour then considered where the balance of convenience lay and whether Midamarine had demonstrated that it had and would continue to suffer injury or damage not compensable by an award of damages. As to the question of irreparable harm, his Honour noted that Midamarine had embarked upon a process of developing the Wavestar and Surfster devices, had established a position as a manufacturer and supplier particularly of the Wavestar surf mats and had embarked upon a course of creating a market for the product and supplying the product to distributors since 2004. A part of that incremental process involved establishing an exclusive distribution arrangement with Mr Britz and his companies. His Honour also noted that the intervention of DMC had resulted in the loss of all future sales for the Wavestar article to an important buyer, Amart All Sports. His Honour accepted evidence that the loss of sales to Amart All Sports had a significant impact on the ability of Midamarine to make sales of its Wavestar product. His Honour formed the view that the impact of the conduct of DMC upon Midamarine's incremental development of the market for its product [35] was significant. The question seemed to be not one of just assessing lost sales but an assessment of the injury to the incremental development of the market by Midamarine and emblematic of that affect was the impact upon the purchasing behaviour of Amart All Sports and inferentially others. 36 It is correct that his Honour was critical of the evidence of Midamarine as to a wider injury or impact of the conduct of DMC. However, the assessment of the impact upon Midamarine in its development of the market was found, by his Honour, upon all the evidence to be a significant impact and thus injurious of Midamarine in a way difficult of assessment. 37 On the question of the balance of convenience, his Honour had regard to the strength of the arguable case established by Midamarine and the features of the conduct discussed in these Reasons which led to his Honour's conclusion that Mr Corrick had embarked upon a course of conduct astute to the assertions by Midamarine of rights derivative of its Registered Design. His Honour noted the exchanges between Mr Binkin and Mr Corrick, the submission of the two email graphic depictions, the copying of the Warning Instructions containing the reference to the shape of the inflated Wavestar product being a Registered Design, the lack of any evidence of independent design, the contention that DMC was at one point entitled to a Registered Design for its article although now to be discontinued. For interlocutory purposes, his Honour accepted Midamarine's evidence directed to the conscious quality of the conduct particularly the contentions, on all the evidence, that DMC adopted the features of shape, pattern and ornamentation in circumstances amounting to obvious imitation and, having regard to the evidence of knowledge, in a way amounting to fraudulent imitation. 38 I am not satisfied that his Honour's decision in support of the Orders in relation to irreparable damage and the assessment of the balance of convenience is attended by doubt. 39 DMC relies upon three further matters namely, the adequacy of Midamarine's undertaking as to damages, the imminent trial of the matter to commence during the early part of December (possibly 6 December 2006) and DMC's offer to keep proper records relating to importation and sale. 40 As to Midamarine's undertaking, DMC contends that any loss it suffers by reason of the Order will not realistically be recoverable having regard to the financial strength of Midamarine. Midamarine has provided the usual undertaking as to damages and there is a differentiation in the financial standing of Midamarine and DMC. However, in circumstances where Midamarine has satisfied the elements required to be discharged, according to principle, in the exercise of the discretion in the making of an interlocutory injunction Order pending trial, it seems to me that Midamarine ought not to be deprived of the benefit of the interlocutory Order on the ground that it is a corporation incrementally establishing in a market for its products and its financial standing is disproportionate to that of DMC. There is no evidence that Midamarine is in financial difficulty. 41 As to the imminence of the trial, DMC contends that because the trial of the action is to take place in the early part of December, the discretion ought to be exercised against making an interlocutory Order. However, because the trial is imminent, there is a real prospect that the period of the interlocutory restraint confronting DMC is likely to be short and the effect of the Order less burdensome. 42 As to the offer to keep proper records, two things should be said. Firstly, an undertaking to keep proper records is designed to preserve the evidence which would be relied upon by a successful applicant at trial in identifying the basis for an accurate calculation of its compensable loss in money terms. In circumstances where injury or harm not susceptible of compensation in money terms accrues to an applicant by reason of the respondent's conduct, an undertaking to keep proper records is less relevant. Secondly, as indicated in these Reasons, Spender J reached conclusions concerning the strength of the arguable case based upon evidence which suggests a strongly arguable case of fraudulent imitation of the Registered Design. In those circumstances, a question arises as to whether an applicant ought to be deprived of an interlocutory Order and put in a position of reliance upon an interlocutory undertaking of such a respondent. It seems to me that in the circumstances of this case, the Applicant ought not to be put in such a position. 43 Accordingly, I am not satisfied that by reason of the three further matters, his Honour's decision leading to the making of the interlocutory Order is attended by doubt. 44 Accordingly, I propose to dismiss the Application for leave to appeal and order DMC to pay Midamarine's costs of and incidental to the Notice of Motion. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 22 November 2006 Counsel for the Applicant: Ms Downes Solicitor for the Applicant: Mr Hall, Swaab Attorneys Counsel for the Respondent: Respondent appeared by its Solicitor Solicitor for the Respondent: Mr Philp, Bennett & Philp, Solicitors Date of Hearing: 9 November 2006 Date of Judgment: 22 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1591.html


case_text: Zinifex became aware of these proceedings when it was served with the application and statement of claim in December 2007. It sought a determination that the applicant was not empowered to bring the current proceedings. I decided that objection adversely to Zinifex: Smith v Zinifex Australia Ltd [2008] FCA 532. After that decision was handed down Zinifex co-operated with the enforcement authority and has agreed to these facts without the need for a trial. Although the Zinifex objection failed, it was clearly arguable and not an exercise in delay or obstruction. 29 In my opinion the foregoing facts would provide some mitigation for the contraventions by Zinifex. The contraventions were not the implementation of a deliberate policy, but rather arose out of a reaction to the particular circumstance created by the TIC decision. In the light of Zinifex's industrial history and the fact that it no longer has any connection with Smelter, there is not a substantial need for specific deterrence in this case. On the other hand, the contraventions are of a law regarded seriously by the Parliament, as the maximum penalties indicate. General deterrence is relevant. I think in all circumstances the penalties sought to be imposed are reasonable. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 5 December 2008 Counsel for the Applicant: C Rawson Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: S J Wood Solicitor for the Respondent: Minter Ellison Date of Hearing: 1 December 2008 Date of Judgment: 5 December 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1836.html


case_text: In Krampel Newman Partners Pty Ltd v Commissioner of Taxation [2001] FCA 976 ; (2001) 113 FCR 306 at 312, [15] , Ryan J concluded that s 14ZZN of the TAA does not evince an intention contrary to the effect of s 23 of the Acts Interpretation Act 1901 (Cth), which is that the singular includes the plural. I respectfully agree. Thus, there is nothing in s 14ZZN of the TAA which forbids the inclusion in the form of initiating application which is lodged with this Court of appeals against more than one objection decision. 10 Krampel Newman concerned objection decisions each of which related to objections against income tax assessments. Does it make any difference here that one of the primary tax liabilities is in respect of income tax and the other is in respect of a net amount for the purposes of the GST Act ? In my opinion it does not, for the following additional reasons. 11 Another feature of s 14ZZN is that it makes indifferent, generic provision for an appeal in respect of whatever constitutes an "appealable objection decision", as defined. That definition is to be found in s 14ZQ of the TAA. The effect of that definition is that, subject to an exception that is of no present relevance, an "appealable objection decision" is any "objection decision", another term defined by s 14ZQ. That definition, in turn, directs one to s 14ZY(2) of the TAA. Again subject to an exception of no present relevance, the effect of that subsection is that an "objection decision" is any decision of the Commissioner in respect of a "taxation objection". "Taxation objection", too, is a defined term (again, s 14ZQ) and that definition provides that a "taxation objection" has the meaning given in s 14ZL. I have already made some reference above to s 14ZL. It suffices to add that the effect of s 14ZL(2) is that an objection to which Part IVC of the TAA applies is a "taxation objection". 12 By this circuitous path the position reached is that each of the objection decisions with which Mr Russell is dissatisfied and to which he refers in the application he filed may be the subject of an appeal to this court under s 14ZZN of the TAA. Each is an "appealable objection decision". There is nothing in s 14ZZN which explicitly mandates that an "appeal" lodged with the Court is competent only if it concerns one or more assessments in respect of the same type of taxation liability.


case_text: There is also good reason not to imply any such intention. In Deputy Commissioner of Taxation v Brown [1958] HCA 2 ; (1957-1958) 100 CLR 32 , at 40-41 Dixon CJ noted, albeit as he acknowledged without at the time a judicial decision to that effect, that it was generally assumed that " under the Constitution liability for tax could not be imposed upon a subject without leaving open to him some judicial process by which he could show that he was not taxable or not taxable in the sum assessed ". As Dawson J later noted in Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168 , at 222, the general assumption to which Sir Owen Dixon referred did receive later judicial recognition: (His Honour referred to MacCormick v Federal Commissioner of Taxation [1984] HCA 20 ; (1984) 158 CLR 622 ; Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678 at 684 ; Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462 at 467). Section 14ZZN of the TAA therefore serves the important constitutional end of expressly providing for recourse by the person affected to the judicial power of the Commonwealth for a challenge to an administratively assessed taxation liability. Section 15A of the Acts Interpretation Act 1901 (Cth) counsels that Acts should be read and construed subject to the Constitution and so as not to exceed Commonwealth legislative power. Section 14ZZN provides for a fixed time limit within which to engage this constitutionally necessary right of challenge. In the face of language that did not expressly forbid the practice and whose language was broad enough on its face to permit it, it would be a strong thing to discern by implication a prohibition as to joinder which would foreclose by a technicality of form such an important and necessary right.


case_title: Deputy Commissioner of Taxation v Richard Walter Pty Ltd [1995] HCA 23 ; (1994-1995) 183 CLR 168


case_title: MacCormick v Federal Commissioner of Taxation (1984)158 CLR 622


case_title: Deputy Commissioner of Taxation v Truhold Benefit Pty. Ltd. [1985] HCA 36 ; (1985) 158 CLR 678


case_title: Air Caledonie International v The Commonwealth [1988] HCA 61 ; (1988) 165 CLR 462


case_text: Moreover, the prospect that out of a single investigation by the Commissioner's staff there might emerge controversies in respect of both a GST and an income tax liability is by no means remote. The present case apart, in Peerless Marine Pty Ltd v Commissioner of Taxation [2006] AATA 765 ; (2006) 63 ATR 1303 what emerged from the one investigation was a controversy as to whether the taxpayer was carrying on a business such that it was entitled to allowable deductions for expenditure incurred in the construction of what was alleged to be a prototype for a class of luxury motor cruiser and a related GST controversy as to whether, in respect of that same expenditure, it was entitled to input tax credits. The taxpayer elected to challenge the objection decisions in the Administrative Appeals Tribunal ("Tribunal") rather than in this Court and the Tribunal heard and determined the GST and income tax controversies together. Had it sought to appeal those decisions, s 14ZZN of the TAA would have permitted the joinder of those appeals in the one application, in my opinion. A construction of s 14ZZN which would facilitate such joinder has about it such an obvious convenience and practicality that it is to be preferred to one which would not. 15 Thus, the mere fact that Mr Russell has chosen to join in the one form of application appeals in respect of both income tax and GST assessments and related administrative penalty assessments does not, of itself render any of the appeals incompetent. 16 That is not to say that the adoption of such a course binds the Court to hear each of the appeals together. On some occasions it may be convenient to hear and determine a GST appeal together with an income tax appeal; on other occasions it may not be. Order 52B r 3 incorporates by reference, inter alia, the directions hearing provision made by O 52A r 13. Questions as to whether there ought to be separate hearings would be apt subjects for determination at a directions hearing.


case_text: Were a partner's liability for GST only joint, the Commissioner's submission might have some attraction. Under the general law of partnership (and prior to the death of any of the partners) every partner in a firm is liable jointly with the other partners for all debts and obligations of the firm incurred while a partner: s 12(1) of the Partnership Act 1891 (Qld). The rules of court provide that, subject to any grant of leave to the contrary, where an applicant claims relief to which any other person is entitled jointly with him, all persons so entitled shall be parties with him: O 6, r 3(1) of the Federal Court Rules . Further, O 42 r 2 of the Federal Court Rules permits a claim brought by two or more persons claiming as partners to be brought in the name of the partnership. When so brought any party may apply on notice to be furnished with the names and places of residence of those who were partners at the time when the cause of action arose: O 42 r 3 of the Federal Court Rules . It is possible for a partner to institute proceedings in the name of the partnership without the prior consent of his fellow partners but, if such a course of action is taken, the court may direct that the proceeding be stayed until that partner has given his fellow partners a full indemnity, together with security in respect of costs: Seal and Edgelaw v Kingston [1908] 2 KB 579, at 582.


case_text: As it happens, in Sutherland v Gustar (Inspector of Taxes) [1994] Ch 304 , an analogous controversy arose in the United Kingdom in respect of the competency of the purported institution of an appeal by one partner, against the wishes of his fellow partners (who had reached an agreement satisfactory to them with the Inspector of Taxes), in respect of a joint assessment of the partnership to income tax which had been confirmed by the general commissioners. Under the then applicable legislation in the United Kingdom, a partner's liability to income tax was joint. The then Vice Chancellor, Sir Donald Nicholls, who delivered the judgement of the Court of Appeal (Nicholls V-C, Leggatt and Henry LJJ) identified the problem raised in that case in a way which resonates in the present: "[Partners] do not always have the same interest in challenging an assessment. What is important to one partner may not matter to another. Similar divergences of interest, and differences of view about what is the best course for the partnership, can and do arise regarding other aspects of partnership business. Here, as elsewhere in the law, the courts evolved practical solutions. In the context of litigation, the courts devised procedures which protect a would-be plaintiff partner by permitting him to go ahead with court proceedings but also protect the partners who do not wish to become embroiled in the proceedings. The traditional means used to achieve this end was for the minority partner to be permitted to bring the proceedings in the name of the partnership. Every partner is an agent of the firm, a principle now enshrined in section 5 of the Partnership Act 1890 (53 & 54 Vict. c. 39). But the other partners had to be protected by an adequate indemnity." [1994] Ch at 310." 39 Section 5 of the Partnership Act 1890 (UK) finds its local analogue in s 8 of the Partnership Act 1891 (Qld). 40 The Court of Appeal solved the problem thus posed by construing the statutory procedural code for the institution of taxation appeals in a way which enabled any person assessed to tax to institute an appeal in respect of the assessment irrespective of whether he had been assessed alone or jointly with others. In the case of an appeal against a joint assessment, Their Lordships opined: "In the latter case, in contemplation of law the notice of appeal is given on behalf of all those assessed in the sense, but only in the sense, that the notice effectually triggers an appeal against the joint assessment. This does not enable the person giving the notice then to conduct the appeal as though he were acting for all the partners. He has authority only to act and speak for himself, unless his co-partners authorise him to act for them. If they do not, and if they wish to pursue a different line, they may do so. But an appeal against the joint assessment having been set in motion, they, along with the partner who gave the notice of appeal, are appellants for the purposes of the Act of 1970. Accordingly, notice of the hearing must be given to them, and their concurrence is needed if the appeal is to be settled or abandoned pursuant to section 54." [1994] Ch at 312. 41 Primacy must, of course, be given to the language of the applicable Australian legislation. Nonetheless, were liability in respect of a GST assessment joint, there would, with respect, be much to commend in the adoption of a similar approach to that adopted in Sutherland v Gustar to the construction of the right to appeal to this Court against an objection decision conferred by s 14ZZ of the TAA on a "person dissatisfied" and in related practice and procedure. The "person dissatisfied" with the Commissioner's objection decision in respect of a GST assessment might well, for just the reasons identified by the Court of Appeal in Sutherland v Gustar , be but one of a number of partners. 42 Yet a partner's liability in respect of GST and any related administrative penalty is not just joint, but rather joint and several. Within Schedule 1 to the TAA, s. 444-30 provides, materially: " 444-30 Partnerships (1) Obligations that are imposed under this Schedule or an indirect tax law on a partnership are imposed on each partner, but may be discharged by any of the partners. (2) The partners are jointly and severally liable to pay any amount that is payable under this Schedule or an indirect tax law by the partnership." 43 Prior to the introduction of this provision into Schedule 1 the now repealed provisions formerly found in ss 50(1) and 50(2) of the TAA made identical provision in respect of the GST liability of partners. It would seem incongruous in these circumstances to construe the right of appeal conferred by s 14ZZ of the TAA as being dependent upon the consent of each partner or even to require that each other partner be given notice of a challenge to an objection decision by one of them.


case_text: overlapping considerations affecting the exercise of the discretion whether to extend the convening period may be summarised as follows: (a) the Court should recognise the objective of speed of administration that was associated with the introduction of Part 5.3A by the Corporate Law Reform Act 1992 (Cth) as from 23 June 1993. The Court should also recognise the objectives stated in para 507 of the explanatory memorandum associated with the Bill for that Act, that it was expected that the power to extend the period would be exercised infrequently since it is an important objective of Part 5.3A that creditors be fully informed about the company's position as early as possible and have an opportunity to vote on its future as soon as possible: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 (Young J) at 612; Re Geraldton Building Co Pty Ltd (Administrators Appointed); ex parte Trevor [2000] WASC 320 (Owen J) at [5]; (b) the function of the Court is to strike an appropriate balance between the legislature's expectation that the administration will be a relatively swift and summary procedure, and the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders: Re Diamond Press Australia Pty Limited [2001] NSWSC 313 (Barrett J) at [10]; Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 (Lindgren J) ( Pan Pharmaceuticals ) at [42]; Re New Horizons Corporation; ex parte De Vries [2004] NSWSC 253 (Austin J) at [5]; (c) the prospects of a better outcome for creditors through a longer period of administration may outweigh the general expectation of a prompt resolution of the administration : Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192 (Barrett J) ( Fincorp ) at [18]; (d) a particular consideration against the too ready grant of an extension is the fact that while the voluntary administration continues there is an embargo or moratorium on the enforcement of remedies by secured creditors, lessors and others: Fincorp 62 ACSR 192 at [4]; Chamberlain, in the matter of South Wagga Sports and Bowling Club Ltd (Administrator Appointed) [2009] FCA 25 (Jacobson J) at [9]; (e) the application is to be assessed by reference to whether an extension is necessary to enable the administrators to prepare and provide the report and statements, and, in particular, to arrive at the opinion referred to in s 439A(4), in order to inform creditors adequately so that they will be in a position to decide whether to terminate the administration, execute a deed of company arrangement or place the company in liquidation : Pan Pharmaceuticals [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] ; ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No.7) [2009] FCA 454 (Emmett J) ( ABC Learning Centres) at [28]; (f) it is often desirable that any extension be accompanied by an order under s 447A, permitting the meeting to be held at any time during the convening period as extended: see the order made in Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446 ( Daisytek ) at [10] [18]. Lengthy extensions have been granted where the administrator's investigations are complex, see, for example Re AFG Insurances Ltd [2002] NSWSC 803 (Barrett J) (five months); Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154 (Le Miere J) (almost six months); ABC Learning Centres [2009] FCA 454 (Emmett J) (ten months).


case_text: overlapping considerations affecting the exercise of the discretion whether to extend the convening period may be summarised as follows: (a) the Court should recognise the objective of speed of administration that was associated with the introduction of Part 5.3A by the Corporate Law Reform Act 1992 (Cth) as from 23 June 1993. The Court should also recognise the objectives stated in para 507 of the explanatory memorandum associated with the Bill for that Act, that it was expected that the power to extend the period would be exercised infrequently since it is an important objective of Part 5.3A that creditors be fully informed about the company's position as early as possible and have an opportunity to vote on its future as soon as possible: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 (Young J) at 612; Re Geraldton Building Co Pty Ltd (Administrators Appointed); ex parte Trevor [2000] WASC 320 (Owen J) at [5]; (b) the function of the Court is to strike an appropriate balance between the legislature's expectation that the administration will be a relatively swift and summary procedure, and the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders: Re Diamond Press Australia Pty Limited [2001] NSWSC 313 (Barrett J) at [10]; Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 (Lindgren J) ( Pan Pharmaceuticals ) at [42]; Re New Horizons Corporation; ex parte De Vries [2004] NSWSC 253 (Austin J) at [5]; (c) the prospects of a better outcome for creditors through a longer period of administration may outweigh the general expectation of a prompt resolution of the administration : Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192 (Barrett J) ( Fincorp ) at [18]; (d) a particular consideration against the too ready grant of an extension is the fact that while the voluntary administration continues there is an embargo or moratorium on the enforcement of remedies by secured creditors, lessors and others: Fincorp 62 ACSR 192 at [4]; Chamberlain, in the matter of South Wagga Sports and Bowling Club Ltd (Administrator Appointed) [2009] FCA 25 (Jacobson J) at [9]; (e) the application is to be assessed by reference to whether an extension is necessary to enable the administrators to prepare and provide the report and statements, and, in particular, to arrive at the opinion referred to in s 439A(4), in order to inform creditors adequately so that they will be in a position to decide whether to terminate the administration, execute a deed of company arrangement or place the company in liquidation : Pan Pharmaceuticals [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] ; ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No.7) [2009] FCA 454 (Emmett J) ( ABC Learning Centres) at [28]; (f) it is often desirable that any extension be accompanied by an order under s 447A, permitting the meeting to be held at any time during the convening period as extended: see the order made in Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446 ( Daisytek ) at [10] [18].


case_text: Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).


case_title: In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633


case_text: Lombe re Australian Discount Retail Pty Ltd [2009] NSWSC 110 ( Lombe ), Barrett J noted the changes made by the 2007 Act to subss 439A(5) and (6), and the introduction of the new subss (7) and (8). His Honour observed (at [29]) that there is a question as to whether s 439A as amended has caused s 439A(6) to be available on successive occasions. The present application is the first application for an extension and therefore the question does not arise before me. Counsel submitted that s 439A(7) is applicable, but it is not. That subsection, which provides that the Court may extend the convening period only if satisfied that it would be in the best interests of the creditors to do so, applies only where the application for the extension is made after the convening period has expired. In the present case, the application was made during the convening period. In Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).


case_title: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611


case_title: Re AFG Insurances Ltd [2002] NSWSC 803

case_text: extensions have been granted where the administrator's investigations are complex, see, for example Re AFG Insurances Ltd [2002] NSWSC 803 (Barrett J) (five months); Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154 (Le Miere J) (almost six months); ABC Learning Centres [2009] FCA 454 (Emmett J) (ten months).


case_title: Re Chemeq Ltd (Administrators Appointed) ; ex parte McMaster [2007] WASC 154


case_text: overlapping considerations affecting the exercise of the discretion whether to extend the convening period may be summarised as follows: (a) the Court should recognise the objective of speed of administration that was associated with the introduction of Part 5.3A by the Corporate Law Reform Act 1992 (Cth) as from 23 June 1993. The Court should also recognise the objectives stated in para 507 of the explanatory memorandum associated with the Bill for that Act, that it was expected that the power to extend the period would be exercised infrequently since it is an important objective of Part 5.3A that creditors be fully informed about the company's position as early as possible and have an opportunity to vote on its future as soon as possible: Mann v Abruzzi Sports Club Ltd (1994) 12 ACSR 611 (Young J) at 612; Re Geraldton Building Co Pty Ltd (Administrators Appointed); ex parte Trevor [2000] WASC 320 (Owen J) at [5]; (b) the function of the Court is to strike an appropriate balance between the legislature's expectation that the administration will be a relatively swift and summary procedure, and the requirement that undue speed should not be allowed to prejudice sensible and constructive actions directed towards maximising the return for creditors and any return for shareholders: Re Diamond Press Australia Pty Limited [2001] NSWSC 313 (Barrett J) at [10]; Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77 (Lindgren J) ( Pan Pharmaceuticals ) at [42]; Re New Horizons Corporation; ex parte De Vries [2004] NSWSC 253 (Austin J) at [5]; (c) the prospects of a better outcome for creditors through a longer period of administration may outweigh the general expectation of a prompt resolution of the administration : Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192 (Barrett J) ( Fincorp ) at [18]; (d) a particular consideration against the too ready grant of an extension is the fact that while the voluntary administration continues there is an embargo or moratorium on the enforcement of remedies by secured creditors, lessors and others: Fincorp 62 ACSR 192 at [4]; Chamberlain, in the matter of South Wagga Sports and Bowling Club Ltd (Administrator Appointed) [2009] FCA 25 (Jacobson J) at [9]; (e) the application is to be assessed by reference to whether an extension is necessary to enable the administrators to prepare and provide the report and statements, and, in particular, to arrive at the opinion referred to in s 439A(4), in order to inform creditors adequately so that they will be in a position to decide whether to terminate the administration, execute a deed of company arrangement or place the company in liquidation : Pan Pharmaceuticals [2003] FCA 598 ; (2003) 46 ACSR 77 at [41] ; ABC Learning Centres Limited, in the matter of ABC Learning Centres Limited; application by Walker (No.7) [2009] FCA 454 (Emmett J) ( ABC Learning Centres) at [28]; (f) it is often desirable that any extension be accompanied by an order under s 447A, permitting the meeting to be held at any time during the convening period as extended: see the order made in Re Daisytek Australia Pty Ltd [2003] FCA 575 ; (2003) 45 ACSR 446 ( Daisytek ) at [10] [18]. In Daisytek [2003] FCA 575 ; 45 ACSR 446 , I noted that the granting of an extension of time left untouched the problem that s 439A(2) required that the meeting be held within five business days after the extended convening period. The 2007 Act altered the position to require that the meeting be held within five business days before or within five business days after the end of the convening period or that period as extended. The plaintiffs seek an order under s 447A of the Act that would permit the holding of the meeting at any time within the period of the extended convening period and five business days thereafter. It was my opinion that such a " Daisytek order" should be made. Such an order has often been made; cf Lombe [2009] NSWSC 110 , In the matter of Global Food Equipment Pty Ltd (Under Administration); Carter v Global Food Equipment Pty Ltd (2007) 25 ACLC 1173 ; [2007] NSWSC 901 (White J); In the matter of LED Builders Pty Ltd (Administrators Appointed) [2008] NSWSC 633 (Austin J).


case_title: Re Diamond Press Australia Pty Limited [2001] NSWSC 313


case_title: Re Fincorp Group Holdings Pty Ltd (2007) 62 ACSR 192


case_title: Re Geraldton Building Co Pty Ltd (Administrators Appointed); ex parte Trevor [2000] WASC 320


case_title: Re New Horizons Corporation; ex parte De Vries [2004] NSWSC 253


case_title: Re Pan Pharmaceuticals Ltd [2003] FCA 598 ; (2003) 46 ACSR 77


case_text: Under s 719(2) of the Act , and s 178(2) of the Act as it stood prior to 27 March 2006, where multiple breaches of an award provision arose out of a course of conduct by one person, those breaches, for the purposes of the section, constitute one breach. In Gibbs v Mayor, Councillors and Citizens of City of Altona [1992] FCA 374 ; (1992) 37 FCR 216 at 223, Gray J held that each separate obligation found in an award should be regarded as a term for the purposes of s 178. The same would now apply to s 719. Gray J went on to say at 233: The ascertainment of what is a term should not depend on matters of form, such as how the award maker has chosen to designate by numbers or letters the various provisions of an award, but on matters of substance, namely the different obligations which can be spelt out. 17 His Honour then said that he considered each separate obligation imposed by an award to be a "term" for the purposes of s 178. Importantly, he then said at 233: If the different terms impose cumulative obligations or obligations that substantially overlap, it is possible to take into account the substance of the matter by imposing no penalty, or a nominal penalty, in respect of breaches of some terms, but a substantial penalty in respect of others. 18 I agree, with respect, with the approach of Gray J to the question of "course of conduct" under s 719(2) and the former s 178(2). Tracey J applied the same approach in Kelly v Fitzpatrick [2007] 166 IR 14 at 17. I therefore reject the submission of counsel for Mrs Healey, Mr Green, that there was one single course of conduct which was constituted by Mrs Healey paying a flat rate of pay to her employees instead of the award rate plus loadings and allowances. 22 In accordance with the approach of Gray J in Gibbs , I consider it appropriate to examine the circumstances of each relevant employee and assess an appropriate penalty for each breach. This may mean that in many instances no penalty will be imposed for breaches. 23 Apart from Mr Whitton and Ms Jodi Buck, Mrs Healey employed the affected employees on a flat casual rate in breach of the award. In each of those 39 cases the critical offending conduct was the setting of a rate below the award rate. The failure to pay appropriate loadings and allowances flowed from the setting of the incorrect rates of pay for the relevant classifications. The 50% figure referred to above should apply to the maximum penalty available for all breaches of cl 18 of the award which is applicable, as at their commencement date, to all but seven employees. Those seven commenced as juniors. Clause 15.5.2 was breached in respect of them. In other words, depending on the time of commencement of the employee a fine of 50% of the maximum should be imposed 41 times. In seven of those cases the relevant breach will be that of cl 15.5.1 because seven of the 41 employees commenced as junior employees. 29 The total penalties for breaches of cls 15.5.1 (in respect of juniors) and 18 (in respect of adults) amount to $91,300. Putting to one side the non-payment of Ms Jodi Buck, the major transgression was the setting of a flat rate for all purposes for every employee, except Mr Whitton. Even Mr Whitton was not paid the amount due under the award. Accordingly, seven penalties will be imposed for breach of cl 15.5.2 and 34 for breach of cl 18. The failure to pay the correct casual loadings and allowances in breach of cl 15.2.2 involved Mrs Healey in a failure to comply with obligations which "substantially overlap" (in the words of Gray J in Gibbs at 233) with the obligation to set the appropriate adult or junior rate for the relevant classification as required by cls 15.5.1 and 18. Consequently, I impose no penalty for breaches of cl 15.5.2 of the award. I also impose no penalties for additional breaches of cls 15.5.1 and 18 in respect of payments made to employees in the weeks subsequent to the commencement.


case_title: Kelly v Fitzpatrick (2007) 166 IR 14

case_text: I agree, with respect, with the approach of Gray J to the question of "course of conduct" under s 719(2) and the former s 178(2). Tracey J applied the same approach in Kelly v Fitzpatrick [2007] 166 IR 14 at 17. I therefore reject the submission of counsel for Mrs Healey, Mr Green, that there was one single course of conduct which was constituted by Mrs Healey paying a flat rate of pay to her employees instead of the award rate plus loadings and allowances. 24 As set out by Tracey J in Kelly v Fitzpatrick at 16-17, prior to 10 August 2004, the maximum penalty for breach of s 178 was $2,200 for an individual. Since that time it has been $6,600 for breach of s 178 and, on and after 27 March 2006, s 719. 25 The following 20 former employees of Mrs Healey commenced employment with her prior to 10 August 2004: • Hannah Bereznicki (junior on commencement) • Luke Buck • Sandra Buck • John de Little • Rebecca Denton • George Friend • Tom Friend (junior on commencement) • Meika Gale • Skye Gargan • Iain Hickman • Felipa Jarzynka • Catherine Keygan • Glen Logan • Fiona McKenzie • Chani Rigby (junior on commencement) • Stephanie Semmens • Luke Sorrentino • James Stoessiger • Drew Underwood, and • Sian Williams (junior on commencement). 26 The balance commenced after 10 August 2004. Three of them commenced as juniors. They were: • Jennifer Dalwood; • Tegan Gale, and • Jessica Hodgson.


case_outcome: applied

case_text: Having determined an appropriate level of penalty for each of the contraventions of the award, I must now look at the aggregate of those penalties ($91,300) to form a view whether that figure is out of proportion to the overall conduct of Mrs Healey; see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8 at [23] per Gray J. This exercise may also be described as did Graham J in Australian Ophthalmic Supplies at [71] as ensuring that the figure provides an appropriate response to the conduct which led to their breaches. 31 The application of the totality principle does not mean that the figure arrived at before its consideration must be reduced. However, the Court must engage in what Gray J described in Australian Ophthalmic Supplies at [27] as an "instinctive synthesis" and arrive at a figure which Graham J said at [73] should be "just and appropriate". 32 The conduct which led to the breaches occurred over seven years. The only evidence before the Court to explain it is found in the agreed statement of facts at paragraphs 8 and 9 where reference is made to OWS receiving a complaint from Ms Tracey Pearce. At paragraph 9 the following is said: In her claim to OWS, Ms Pearce stated that during the course of her employment at the Theatre Royal Hotel, she was paid pursuant to wage rates contained in a purported AWA, and as a consequence believed that she had not been paid her correct rate of pay . 33 It is open to be inferred that, at least in the case of Ms Pearce, Mrs Healey attempted to apply an AWA which was inoperative for some reason relating to lack of compliance with legislative provisions concerning AWAs. There is no other evidence with respect to AWAs in which Mrs Healey is the employer. Even if the rates set were struck in accordance with incomplete AWAs, there is no evidence that any employee agreed to their terms. In any event, this does not explain other strange features of this matter such as the non-payment of Ms Jodi Buck, the downward adjustments in the rate applicable to Ms Hodgson and the attempt to give some loading to the rate of Mr Whitton but to no-one else.


case_outcome: discussed

case_text: SZIZO v Minister for Immigration and Citizenship (2008) 172 FCR 152, Lander J (with whom Moore and Marshall JJ agreed) stated in relation to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57 ; (2000) 204 CLR 82 and SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 ; (2005) 228 CLR 294 the following (at [97]): It should be only in exceptional circumstances that a Court should refuse to issue the constitutional writs once the Court has determined that the Tribunal had failed to comply with its imperative statutory obligations to an applicant seeking the review of a decision of the delegate refusing the applicant a protection visa. If it were otherwise, and the Court were required to inquire into the extent to which the failure by the Tribunal to comply with its statutory obligations to accord an applicant a fair hearing prejudiced the applicant, the imperative obligation imposed on the Tribunal might well be blunted. The appellant contended that on this approach relief would not be refused in the present case on the basis of inutility. Although the issue does not need to be determined I accept the first respondent's submission that the present case does not involve imperative statutory obligations within the meaning of that judgment. Further, I agree with the Federal Magistrate that there is a strong discretionary reason in favour of refusing relief. The inquiry which the appellant contended that the Tribunal should have conducted had to be undertaken by the Federal Magistrate in the context of the challenge to the Tribunal's decision. It would be odd, to say the least, if the Federal Magistrate had concluded that the appellant had not instructed the agent to include the political claim and yet remitted the matter to the Tribunal to determine that very same question. This is the more so when it is appreciated that both parties subpoenaed the agent to give evidence before the Federal Magistrate but neither side called on the subpoena. The agent answered the subpoena by filing an affidavit in which he set out his version of events. The appellant sought to tender the affidavit without calling the agent and intended to invite the Federal Magistrate to find that the contents of the affidavit were false. The Federal Magistrate upheld the first respondent's objection to such a course. Following discussion with the Court the appellant's counsel applied to amend the second ground of appeal. The application was refused as the proposed ground had no hope of success. It asserted that the Tribunal had failed to consider the appellant's risk of future persecution in Bangladesh when the reasons of the Tribunal on their face clearly showed that the Tribunal had given consideration to the very issue. Further reasons for dismissing the ground were given orally by the Court during the hearing. The original form of the ground alleged errors which on their face did not amount to jurisdictional errors. The written submissions similarly failed to identify any arguable jurisdictional errors. It is desirable that the first respondent move the Court prior to the hearing in such circumstances to have such groundless allegations rejected before written submissions are required.


case_text: appellant argued that the reference to "evidence as whole" included a reference to the evidence about the appellant's activities in Australia. If that were so the inclusion of consideration of evidence about the appellant's activities in Australia would be contrary to s 91R(3) which required such evidence to be disregarded where, as here, the Court has found that those activities were undertaken to strengthen the appellant's claim: see SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 ; (2008) 247 ALR 451. This argument should not be accepted. The reference to evidence as a whole read in context excludes the evidence of the appellant's Australian conduct. It is unreal to suggest that the Tribunal having just said that it disregards the appellant's conduct in Australia, in the next sentence contradicts itself. That this is not the case is confirmed by the reference in the concluding summary four paragraphs later where the Tribunal repeats: [I]t has disregarded his politically related conduct in Australia since July 2007 as it is not satisfied that he engaged in that conduct otherwise than for the purpose of strengthening his claim to be a refugee. It follows from these reasons that the appeal will be dismissed. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate: Dated: 9 June 2009 Counsel for the Appellant: Dr J Azzi Counsel for the First Respondent: Mr T Reilly Solicitor for the First Respondent: DLA Phillips Fox Date of Hearing: 21 May 2009 Date of Judgment: 22 May 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/622.html


case_text: is no merit in a challenge which would seek to overturn the Federal Magistrate's decision on the basis that the Tribunal's reasons were unreasonable and that the Federal Magistrates Court should have so found. It is important to recall, and the Appellant's submissions both written and oral as is frequently the case do not, and did not, evidence this, that it is no part of the role of the judiciary, either in the Federal Magistrates Court or on this Court, to engage in the making of value judgments or fact finding in relation to whether or not one is satisfied in terms of the Act that there is a claim for a protection visa. To do so is to violate the role consigned to the judiciary and to ignore the counsel provided by Brennan J, as his Honour was, in Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 30, about a threat to the legitimacy of judicial review by descending into matters that are consigned by the legislature to the value judgment of either the Minister, his delegates or the Tribunal. For these reasons then the appeal must be dismissed. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Logan. Associate: Dated: 25 February 2009 Counsel for the Appellants: The male Appellant appeared in person on his own behalf and on behalf of his wife, the female Appellant. Counsel for the Respondents: Mr P Cleary Solicitor for the Respondents: Sparke Helmore Date of Hearing: 16 February 2009 Date of Judgment: 16 February 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/144.html


case_text: sees in those written submissions what, in substance, is a challenge to the credibility findings made by the Tribunal. Such findings are uniquely, "par excellence", as McHugh J stated in Re Minister for Immigration; Ex parte Duraraijasingham [2000] HCA 1 ; (2000) 168 ALR 407 at para 67, matters for the Tribunal. When one reads the Tribunal's reasons those findings are logical and reasonable; reasonable in the sense that they are made upon a basis that is readily discernible from the findings of fact the Tribunal chose to make on the material that it had before it.


case_text: 422B of the Migration Act provides that the provisions found within Div 4 of Pt 7 are an exhaustive statement of the natural justice hearing rule. Those provisions include s 424A. In this instance it is at least arguable, having regard to the High Court's decision in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 ; (2007) 81 ALJR 1190 , that the Tribunal went beyond the obligation imposed on it by s 424A of the Act. I make that observation because it is possible to regard the letter which the Tribunal sent as disclosing the thought processes of the Tribunal. Be this as it may, it is certainly not a basis for a jurisdictional error case that the Tribunal exceeded the obligation imposed on it by s 424A. This otherwise is a case where there is no basis for concluding that the Federal Magistrates Court was in error insofar as any jurisdictional error in relation to s 424A is concerned. The first ground of appeal has about it a generality such that when one departs from an apprehension that lying behind it might be a s 424A based challenge, one is in the area of speculation. Having regard to the way in which the argument developed this morning it seems to me that the procedural fairness challenge may well be on the basis of a failure to take into account the translated document, exhibit 1. The Federal Magistrate dealt in what, in my opinion, is an unexceptional way with a challenge of that kind as the learned Federal Magistrate apprehended it. The short point is that the Appellants were given an opportunity to submit a translated document. It is just that, for whatever reason, that opportunity was not availed of. As it happens, the essence of the document, as the learned Federal Magistrate notes, is no different to a finding made in the male Appellant's favour; namely, membership of Shiv Sena in 2001.


case_text: second of the grounds of appeal, insofar as it goes beyond procedural fairness, is not only a ground which does not appear to have been a basis of challenge before the Federal Magistrates Court, but also, in any event, a ground which would not warrant leave to advance it in this appeal. The Tribunal, in the passage from which I have quoted, looked to and made an express finding in respect of the foreseeable future in the event of a return to India. In this regard, the Tribunal referred to findings it had already made. It suffices to note that those findings were based on a preference of independent country information as to an absence of a particular threat of prosecution. There is, in the Tribunal's reasons in this case, no error of the kind described by Allsop J (as his Honour then was) in SZGHS v Minister for Immigration and Citizenship [2007] FCA 1572 at paras 28, 29 and 30. What I have stated is sufficient to dispose of the appeal in respect of the grounds stated in the notice of appeal. Neither has any merit. On behalf of the Minister the course was taken, very properly, to engage with submissions advanced in the Appellant's written submissions, which did not find their way into the notice of appeal.


case_text: appellant submitted that the Tribunal would fall into jurisdictional error if it did not assess the appellant's claim as it was presented to the Tribunal. The appellant relied on the observations of Lander J in SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 , particular at [40]-[42]. As Lander J pointed out at [40]: "... The appellant claimed refugee status by reason of being a member of a particular social group. He was entitled to have his application assessed as against that claim, not as against some other claim." I would, with respect, adopt and follow and apply that observation. But in order to find jurisdictional error in respect of the particular social group identified by the Tribunal it is necessary to determine what was the appellant's claim and evidence as to his membership of a particular social group. The Federal Magistrate said at [26]: "The applicant had never articulated a social group of which he was said to be a member and therefore at risk of persecution." In my opinion, that observation is correct. I have read the transcript of the hearing before the Tribunal and in the context of the first ground of appeal, the relevant passages are found at pp7 and 8 of the transcript. The appellant's answers to the questions put to him by the Tribunal are set out in par [18] of the reasons for judgment of the Federal Magistrate. Although the appellant did not articulate a specific or particular social group of which he claimed to be a member it was appropriate for the Tribunal to determine whether it could distil out of the appellant's claims and evidence a particular social group of which he was a member which was the subject of persecution. The Federal Magistrate was correct in par [20] of his reasons when he said that the appellant did not say that he was a member of a social group "businessman in Sri Lanka". The key to the appellant's claim in relation to the Karuna group extortion incident is found in his answer to the Tribunal that: "The main purpose that they abducted me was because I am a Muslim and they didn't like the Muslim person growing his business in that area". The Tribunal found that the appellant: "... Has not been targeted in the past and that he would not be targeted in the reasonably foreseeable future for the essential and significant reason ... of his race, religion or his membership of a particular social group, namely businessmen in Sri Lanka, or his political opinion. The Tribunal finds that the extortion was directed at the applicant based on a perception of the applicant's person [sic] wealth and aimed at him individually". It can therefore be seen that the Tribunal found in relation to the Karuna group extortion incident that there was material before the Tribunal upon which it was open to the Tribunal to make these findings. Although the Tribunal may have been in error in identifying the particular social group as it did, it made a specific finding that the appellant had not been persecuted by reason of his religion, that is to say because he was a Muslim. These findings were responses by the Tribunal to the claims made by the appellant. Consistently with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]-[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it.


case_text: with the principles enunciated in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 ; (2004) 144 FCR 1 at 19 and SZBJH v Minister for Immigration and Citizenship (supra) at [40]-[42] the Tribunal responded to, and dealt with, the claims which the appellant had articulated and which also arose on the materials before it.


case_text: if the Tribunal had addressed the question whether the appellant was a member of a social group, namely Muslim businessmen in Sri Lanka, its reasoning discloses that it would have rejected that claim having regard to its findings that the appellant had not been targeted in the past and would not be targeted in the reasonably foreseeable future for the reason of his race or his religion or his political opinion and that the extortion was directed at him based on a perception of his personal wealth and aimed at him individually in respect of which there was material upon which it was open to the Tribunal to make these findings: see Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 ; (2003) 197 ALR 389 at 394-395. The ground of appeal based upon the Negombo incident does not disclose, in its terms, any jurisdictional error. In substance it challenges the Tribunal's fact finding process and conclusions. At the hearing of the appeal the appellant developed this ground by submitting that there was a constructive non-exercise of jurisdiction in that the Tribunal failed to consider the appellant's claim and instead looked at the Negombo incident in isolation. In short, the appellant submitted that the Tribunal did not address the substance of the appellant's case in relation to this incident. I reject that submission. The Tribunal articulated clearly the circumstances out of which the appellant's claim in relation to this incident arose. The appellant submitted that the Tribunal did not consider the incident in the context of the appellant's claim to be a refugee. That is not a correct analysis of the Tribunal's reasoning. In its reasoning, the Tribunal set out in some detail the claims made by the appellant in relation to this incident. The Tribunal also canvassed the incident with the appellant in the hearing as the transcript discloses. The Tribunal did not accept the appellant's evidence as to the circumstances involved with the incident as credible and did not accept his evidence. It was open to the Tribunal so to find on the material before it. The Tribunal then reasoned that even if it were to accept all the claims made by the appellant in relation to this incident it found that there was not an instance of "Convention persecution" since the appellant was detained as part of a sweep of the area following an explosion and was not targeted specifically, nor for any Convention reason. The Federal Magistrate found that the claim in relation to this incident fell squarely within the area of merits of review, and in my opinion, the Federal Magistrate did not err.


case_text: Section 78B of the Judiciary Act , it should be noted, is not considered to have any present application. Section 78B(1) requires a cause to be " pending " in a federal court. At present there is no such cause " pending ". All that is before this Court is a proposal to file an amended application. Even if this be not correct, s 78B has no application where a pleading raises trivial or unarguable points: Deputy Commissioner of Taxation v Warwick (No 2) [2004] FCA 918 , 56 ATR 371. In Pham v Secretary, Department of Employment and Workplace Relations [2007] FCAFC 179 it was further observed that the matters there sought to be raised were frivolous or vexatious. It is considered that the proposed application in the present proceedings raises issues which are frivolous or vexatious or unarguable. Accordingly, section 78B does not require this Court not to proceed further. 16 The orders of the Court are: 1. The proceedings be dismissed as against both Respondents. 2. The First Applicant is not to commence any proceedings in this Court without the prior leave of the Court, excluding any application to appeal or seeking leave to appeal from this decision. 3. The Applicants to pay the costs of the First Respondent of and incidental to these proceedings including any reserved costs. 4. The Applicants to pay the costs of the Second Respondent of and incidental to these proceedings including any reserved costs. I certify that the preceding sixteen (16 ) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 31 March 2008 Counsel for the First Applicant: The First Applicant appeared in person Counsel for the First Respondent: G Curtis Counsel for the Second Respondent: J Turnbull Date of Hearing: 31 March 2008 Date of Judgment: 31 March 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/430.html


case_text: Branson J said in Australian Competition and Consumer Commission v Chats House Investments Pty Limited (1996) 71 FCR 250 at 258: ' it is appropriate for the Court to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent '. The Court's task is to assess whether the compromise is fair and reasonable ( Lopez v Star World Enterprises Pty Limited (1999) ATPR 41-678 ; [1999] FCA 104 at [15] per Finkelstein J).