case_text: The PIP partial disability payments received by Mr Watson for the year ended 30 June 2004 are clearly part of his assessable income: see Federal Commissioner of Taxation v Smith [1981] HCA 10 ; (1981) 147 CLR 578. That is common ground. So too is the nature of Mr Watson's business activity during that year. It was that of a financial planner, although (as he says) that required administration and regulation compliance activities, each of which did not directly result in the earning of income. That was the activity he engaged in during the financial year ended 30 June 2004, and in earlier years, for the purpose of profit: cf Commissioner of Taxation v Murry [1998] HCA 42 ; (1998) 193 CLR 605 at [54] ( Murry ). 37 Whilst that contention has a superficial attraction, I think it over-simplifies the position. The PIP policy was clearly to diminish the adverse consequences of illness or accident. The benefits under the PIP policy provided protection against income loss from the inability to fully conduct the business, and so to earn income from it. So the benefits under the PIP policy are a partial indemnity for, and as a substitute for, the reduced commission and fee income which Mr Watson suffered by reason of his illness. There is no need for a direct monetary correlation between the amount of the benefits and the foregone or lost commission and fee income: Federal Commissioner of Taxation v Smith [1981] HCA 10 ; (1981) 147 CLR 578 at 583. That does not, however, mean that the benefits under the PIP policy are part of assessable income from the business activity for the year in issue. 38 One submission of Mr Watson acknowledged that. He accepted it was necessary to take the extra step of regarding the business activity as encompassing the "related or incidental activities" which, in turn, include his "insurance activities". 39 Counsel for Mr Watson then submitted that the business activity of Mr Watson included his "insurance activities" as well as the range of other incidental administrative and professional matters referred to in [12] above. Counsel further submitted that the "insurance activities", by which he relevantly meant Mr Watson taking out the PIP policy and regularly paying the premiums on it and in the event of an insured risk occurring receiving the benefit of it, had the "significant commercial purpose" of securing a stream of income as a substitute for the business income that could be at risk if Mr Watson were injured or became ill. He also said there was a purpose of profit or the prospect of profit, because the potential benefits if an insured event occurred could be up to 75% of Mr Watson's earnings from the business and were much greater than the premiums payable from time to time. Counsel also relied upon the fact that, as the material showed, the PIP policy was taken out by many authorised representatives of National Mutual/AXA and by many other self-employed persons.


case_outcome: followed

case_title: Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1966) 115 CLR 653

case_text: Whether particular payments in a particular year of income under an income protection policy are income from the business activity will depend upon the particular facts. In Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1996) 115 CLR 653 ( Carapark ), the benefits received by a holding company of an employer taken out on the life of an employee of a subsidiary company were part of its assessable income. The Court (Kitto, Taylor and Owen JJ) said at 663: ... in general, insurance moneys are to be considered as received on revenue account where the purpose of the insurance was to fill the place of a revenue receipt which the event insured against has prevented from arising, or of any outgoing which has been incurred on revenue account in consequence of the event insured against, whether as a legal liability or as a gratuitous payment actuated only by considerations of morality or expediency. The fact that it was the holding company which took out the policy and received the benefits, rather than the subsidiary employing company, did not alter that position. As that passage indicates, the purpose of the taxpayer entering into the contract of insurance which produced the payment is relevant to identifying the relationship of the payment with the business. See e.g. Federal Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 217; cf Murry at 626 [54]. 46 To draw that line is not to exclude from the business, or the business activities, related or incidental activities. There may be a range of income sources which qualify as assessable income from a business or from business activities even though they are in a sense incidental to its main activities. In Kidston Goldmines Ltd v Federal Commissioner of Taxation (1991) 30 FCR 77 , the Court held that the investment of surplus funds from sales of gold on the short-term money market was an incident of the taxpayer's goldmining business. That case also decided that the interest received was not, however, exempt from income tax under the then s 23(o) of the ITAA 1936 as it was not income "derived from the working of a mining property". It was not sufficiently proximate to the activities which directly generated income by gold mining. The result turned on the particular statutory provision. Other illustrations are provided by Carapark ; Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 ( Lees & Leech ); Warner Music Pty Ltd v Commissioner of Taxation (1996) 70 FCR 197 ; Federal Commissioner of Taxation v Dixon [1952] HCA 65 ; (1952) 86 CLR 540 and G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1989) 170 CLR 124. To draw that line requires an assessment of the material circumstances at the relevant time or for the relevant period. 49 The relevant distinction which is drawn by s 35 is between assessable income from the business activity in a particular year and assessable income which is not from the business activity in a particular year. Income from a business activity must clearly have a connection with it. Beaumont J (with whom Jenkinson and Heerey JHJ agreed) in BHP Petroleum at 170-171 applied the normal sense of a starting point, source or origin. Finn J in Watson at 569 contrasted income from the business of Mr Watson and income that was a surrogate or replacement for income which might otherwise have been received. As noted above, such income may include income from incidental activities even though they are not, or not likely to be, recurrent (eg the interest on a temporary cash surplus, as in Kidston ; or the proceeds of a life insurance policy, as in Carapark ; or the cash incentive paid to take a long term lease, as in Lees and Leech . In certain circumstances, and in relation to a particular period, the assessable income of a business activity might also include for a time disability payments under a personal income protection policy. I do not need to decide that question.


case_outcome: cited

case_text: Whether particular payments in a particular year of income under an income protection policy are income from the business activity will depend upon the particular facts. In Carapark Holdings Ltd v Commissioner of Taxation [1967] HCA 5 ; (1996) 115 CLR 653 ( Carapark ), the benefits received by a holding company of an employer taken out on the life of an employee of a subsidiary company were part of its assessable income. The Court (Kitto, Taylor and Owen JJ) said at 663: ... in general, insurance moneys are to be considered as received on revenue account where the purpose of the insurance was to fill the place of a revenue receipt which the event insured against has prevented from arising, or of any outgoing which has been incurred on revenue account in consequence of the event insured against, whether as a legal liability or as a gratuitous payment actuated only by considerations of morality or expediency. The fact that it was the holding company which took out the policy and received the benefits, rather than the subsidiary employing company, did not alter that position. As that passage indicates, the purpose of the taxpayer entering into the contract of insurance which produced the payment is relevant to identifying the relationship of the payment with the business. See e.g. Federal Commissioner of Taxation v Myer Emporium Ltd [1987] HCA 18 ; (1987) 163 CLR 199 at 217; cf Murry at 626 [54].


case_text: To draw that line is not to exclude from the business, or the business activities, related or incidental activities. There may be a range of income sources which qualify as assessable income from a business or from business activities even though they are in a sense incidental to its main activities. In Kidston Goldmines Ltd v Federal Commissioner of Taxation (1991) 30 FCR 77 , the Court held that the investment of surplus funds from sales of gold on the short-term money market was an incident of the taxpayer's goldmining business. That case also decided that the interest received was not, however, exempt from income tax under the then s 23(o) of the ITAA 1936 as it was not income "derived from the working of a mining property". It was not sufficiently proximate to the activities which directly generated income by gold mining. The result turned on the particular statutory provision. Other illustrations are provided by Carapark ; Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 ( Lees & Leech ); Warner Music Pty Ltd v Commissioner of Taxation (1996) 70 FCR 197 ; Federal Commissioner of Taxation v Dixon [1952] HCA 65 ; (1952) 86 CLR 540 and G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1989) 170 CLR 124. To draw that line requires an assessment of the material circumstances at the relevant time or for the relevant period. 49 The relevant distinction which is drawn by s 35 is between assessable income from the business activity in a particular year and assessable income which is not from the business activity in a particular year. Income from a business activity must clearly have a connection with it. Beaumont J (with whom Jenkinson and Heerey JHJ agreed) in BHP Petroleum at 170-171 applied the normal sense of a starting point, source or origin. Finn J in Watson at 569 contrasted income from the business of Mr Watson and income that was a surrogate or replacement for income which might otherwise have been received. As noted above, such income may include income from incidental activities even though they are not, or not likely to be, recurrent (eg the interest on a temporary cash surplus, as in Kidston ; or the proceeds of a life insurance policy, as in Carapark ; or the cash incentive paid to take a long term lease, as in Lees and Leech . In certain circumstances, and in relation to a particular period, the assessable income of a business activity might also include for a time disability payments under a personal income protection policy. I do not need to decide that question.


case_title: Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136


case_text: To draw that line is not to exclude from the business, or the business activities, related or incidental activities. There may be a range of income sources which qualify as assessable income from a business or from business activities even though they are in a sense incidental to its main activities. In Kidston Goldmines Ltd v Federal Commissioner of Taxation (1991) 30 FCR 77 , the Court held that the investment of surplus funds from sales of gold on the short-term money market was an incident of the taxpayer's goldmining business. That case also decided that the interest received was not, however, exempt from income tax under the then s 23(o) of the ITAA 1936 as it was not income "derived from the working of a mining property". It was not sufficiently proximate to the activities which directly generated income by gold mining. The result turned on the particular statutory provision. Other illustrations are provided by Carapark ; Lees & Leech Pty Ltd v Commissioner of Taxation (1997) 73 FCR 136 ( Lees & Leech ); Warner Music Pty Ltd v Commissioner of Taxation (1996) 70 FCR 197 ; Federal Commissioner of Taxation v Dixon [1952] HCA 65 ; (1952) 86 CLR 540 and G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1989) 170 CLR 124. To draw that line requires an assessment of the material circumstances at the relevant time or for the relevant period.


case_title: Federal Commissioner of Taxation v Dixon [1952] HCA 65 ; (1952) 86 CLR 540


case_outcome: considered

case_title: G.P. International Pipecoaters Pty Ltd v Federal Commissioner of Taxation [1990] HCA 25 ; (1989) 170 CLR 124


case_text: There is an undated note taken by Mr Watson of a discussion with an officer of the insurer: Therefore, there is a requirement to work if capable. If the insured person returns to work at a reduced capacity, the income protection is replacement income (business related income). If expenses exceed other business income (ie ignoring the Income Protection benefit itself) then to sell off the business is against the intent of the insurance act and the insurance company would cease benefit until other work was obtained. In a practical sense, Mr Watson should take reasonable steps to "mitigate his loss". That obligation is one applicable to the measure of damages in all contracts. It does not apply as a term of the policy. Section 13 of the Insurance Contracts Act 1984 (Cth) implies a term that each party to an insurance contract will act towards the other party with the utmost good faith. It could be expected that Mr Watson should therefore act reasonably in relation to the business activities or employment which he chooses to undertake: Dufty v City Mutual General Insurance Ltd [1977] Qld R 94. The element of reasonableness is also explained in cases such as Fidelity and Casualty Co of New York v Mitchell [1917] AC 592 ; Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150; and Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77. That obligation extends to an insurer in determining whether an insured was totally and permanently disabled: see Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453. Reference may also be made to regs 17 and 18 of the Insurance Contracts Regulations 1985 (Cth) and to the decision in QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270. Ultimately, the wording of the policy is the critical element.


case_title: Fidelity and Casualty Co of New York v Mitchell [1917] AC 592


case_title: Pocock v Century Insurance Co Ltd [1960] 2 Ll Rep 150


case_title: Sergent v GRE (UK) Ltd [2000] Ll Rep 1R 77


case_title: Beverley v Tyndall Life Insurance Co Ltd (1999) 10 ANZ Ins Cas 61-453


case_title: QBE Insurance Ltd v Jande (1995) 8 ANZ Ins Cas 61-270


case_outcome: referred to

case_title: Bahonko v Sterjov [2007] FCA 867

case_text: On 24 May 2007, following the closure of the respondents' evidentiary case on the two applications (see [2007] FCA 1555 at [4] ) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents' legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews. Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867.


case_title: Bahonko v Sterjov [2007] FCA 1341

case_text: In relation to other purported contempt claims made by Ms Bahonko about the evidence given by witnesses during the course of the trial before Jessup J, there is no basis for those allegations to be made, let alone heard and determined. The fact of the claim is referred to in para [25] of the reasons for decision of Jessup J reported at [2007] FCA 1341. The credibility of the witnesses was addressed by Jessup J in his reasons for decision and are reflected in the Substantive Orders and the Costs Orders which are the subject of the Appeal. The appeal process is the procedure to be adopted by Ms Bahonko if she seeks to challenge the findings made by Jessup J. 18 There is no basis for Ms Bahonko's purported contempt claims to be heard and determined. 19 Ms Bahonko is to be provided with a copy of the transcript of evidence before Jessup J in VID 114/2006 in an electronic form at the expense of the Court.


case_title: Bahonko v Sterjov [2007] FCA 1377

case_text: Goldberg J considered the question of a stay of the Substantive Orders in Bahonko v Sterjov [2007] FCA 1377. His Honour summarised the principles in the following terms at [6]: "The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders. Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay: See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498." 9 The primary matter relied upon by Ms Bahonko in support of a stay was that " there were and are not any costs due against me." That is an issue for the Appeal of the Substantive Orders. 10 The additional matters referred to by Ms Bahonko in her affidavit sworn on 20 September 2007 and in her oral submissions are properly described as scandalous and vexatious. They include allegations of criminal conduct and conduct constituting abuse of office. Those allegations are unsupported and insupportable. None of the matters relied upon by Ms Bahonko provides any basis for the grant of stay of the Costs Orders.


case_title: Bahonko v Sterjov & Ors [2007] FCA 1555

case_text: Appellant's claims of Contempt of the Court by Mr McKenney, Mr Vitiello, the Defendants and their witness Ms Esther Keji Matthew to be determined prior to the appeal hearing & the Contempt of the Court proceeding is deemed to commenced." 2 For the reasons below, subject to one qualification, I would dismiss the Notice of Motion. BACKGROUND Substantive Proceedings 3 The history of the substantive proceedings which give rise to this Notice of Motion are set out in the reasons for decision I delivered earlier today in VID 822 of 2007: see Bahonko v Sterjov & Ors [2007] FCA 1555 at [3] to [7]. I adopt the same defined terms in these reasons. ANALYSIS Application for leave to access transcripts: para 1 of the Notice of Motion 4 Ms Bahonko seeks an order that the Court make available to her a transcript in an electronic form or in a printed form of the substantive proceedings before Jessup J. 5 Having regard to the reasons for decision of Jessup J and the grounds of appeal, it appears to me to be inevitable that the Appeal Books before the Full Court of the Federal Court will need to include a copy of the transcript of the evidence given by Ms Bahonko and the respondents' witnesses. It would therefore facilitate the conduct of the Appeal if all participants in the Appeal were provided with a copy of the transcript of the evidence before Jessup J. Accordingly, in relation to the transcript of the substantive proceedings, the request for access to the transcript is granted but only in respect of evidence given viva voce before Jessup J. That transcript will be provided by the Court in an electronic form. 6 Ms Bahonko applies for a stay of the Costs Orders. 14 On 24 May 2007, following the closure of the respondents' evidentiary case on the two applications (see [2007] FCA 1555 at [4] ) before Jessup J, Ms Bahonko attempted to make a range of oral applications including an application to file a statement of charge for contempt of court against the respondent and the respondents' legal representatives, Mr McKenney and Mr Vitiello, and sought to challenge the competency of two of the witnesses called on behalf of the respondents, the fourth respondent and Ms Esther Matthews. Jessup J did not grant leave to file these applications: see [8] at paras (2) and (4) and [9] of Bahonko v Sterjov [2007] FCA 867.


case_outcome: applied

case_text: A direction under O 46 r 7A is not a judgment able to be subjected to an appeal by Ms Bahonko: Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 ; (2003) 128 FCR 353 at [19] per Lee, Whitlam and Jacobson JJ. See also Paramasivam v Randwick City Council [2005] FCA 369 at [40] and [41] per Sackville J. That application is dismissed.


case_title: Paramasivam v Randwick City Council [2005] FCA 369


case_title: Oxford Funding Pty Ltd v Oxford Asia-Pacific Investments Pty Ltd [2005] FCA 1637

case_text: The applicant brought an application for an interlocutory injunction. Upon the respondent giving undertakings that it would not use the name "Oxford" in connection with debt factoring, debt financing or debt collection services or outsourcing services in relation to accounts receivable administration, I dismissed the application and reserved the costs thereof: Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd [2005] FCA 1637. An important element was a consideration of the balance of convenience: see [14]. 3 Following protracted negotiations the parties have now resolved their differences and executed a deed of settlement. However, the question of the costs of the proceeding remains in issue. 4 The applicant submits that the respondent should pay all of its costs, or alternatively all of its costs up to and including the injunction application. The respondent's case is that the applicant should pay its costs of the injunction application or, alternatively, that each party should bear its own costs of the whole proceeding. All costs orders are sought on a party/party basis.


case_text: The Court has undoubted jurisdiction to make an order for costs notwithstanding that the proceeding has otherwise settled; see for example Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 at 201 (Hill J), Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625 (McHugh J), We Two Pty Ltd v Shorrock [2002] FCA 875 (Finkelstein J). While any question of costs always remains a matter of discretion, the approach in the cases is usually that the Court will not try a hypothetical action to decide which party would have won. Rather, the Court will assess the conduct of the parties including, in appropriate cases, the conduct prior to the commencement of proceedings, to see whether that conduct was "reasonable". This rather suggests that an order will only be made where the party seeking costs has acted reasonably and the other party has not. Where both parties have acted reasonably, or unreasonably, the costs should lie where they fall. "Unreasonableness" in this context could include rejecting a reasonable offer or an invitation to engage in discussions which hold out reasonable prospects of a compromise.


case_title: Re Minister for Immigration and Ethnic Affairs; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 at 624-625


case_title: We Two Pty Ltd v Shorrock [2002] FCA 875


case_text: In reaching the conclusion that there is jurisdictional error, it is recognised that an error of fact does not of itself normally constitute error of law, let alone jurisdictional error: Attorney-General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 35 6 per Brennan J. In a context where there are competing facts, the weight to be ascribed to particular pieces of evidence is a matter entrusted by the legislature to the Tribunal for resolution. Mere disagreement with the ultimate finding of fact made does not expose error of law. And what may be described as " illogical or irrational " inferences drawn from the facts before the Tribunal may often be an unhelpful characterisation of the reasoning process and may amount to no more than a conclusion that a Court may have reached a different factual conclusion: cf Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [8] [9] per Gleeson CJ; [2003] HCA 30 ; 198 ALR 59. See also: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22] [30] per Tamberlin, Emmett and Weinberg JJ.


case_text: That obligation, it is considered, is not confined to an obligation to advise an applicant " of any adverse conclusion which has been arrived at ". In Commissioner for ACT Revenue v Alphaone Pty Ltd [1994] FCA 1074 ; (1994) 49 FCR 576 at 591 2, Northrop, Miles and French JJ in an oft-cited passage observed: Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. ...


case_title: NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30


case_title: Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 , 177 ALR 473

case_text: The Respondent Minister opposes the grant of relief. He seeks to define, and confine, the " issues " to be addressed for the purposes of s 425(1) as those defined by the delegate's decision initially refusing to grant the protection visa and thereafter to rely on the adverse findings of credit as made by the reconstituted Tribunal. That Tribunal, it is submitted by the Minister, made its own findings of fact which were open to it and, if there be any error, such errors it is submitted are errors of fact which normally do not give rise to jurisdictional error: SZINP v Minister for Immigration & Citizenship [2007] FCA 1747 at [26] , [29]; VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231 at [77] . See also: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54 at 77 per Brennan J; Re Minister for Immigration & Multicultural Affairs; Ex parte Cohen [2001] HCA 10 at [36] , [2001] HCA 10 ; 177 ALR 473 per McHugh J.


case_text: But what does matter is whether such an error, when it does occur, can be characterised as a jurisdictional error. In the present circumstances it is considered that it can. In SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 , 77 ALD 402 Mansfield, Selway and Bennett JJ observed: [19] ... If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error ... And, in SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824 Greenwood J reviewed some of the authorities (including SFGB ) and concluded: [31] The central matter is this. [32] A determination of the Tribunal as to a state of satisfaction or otherwise, of the relevant criteria or criterion in question, that is based upon a finding of fact or inferences drawn from facts, not based on logical or rational grounds, will give rise to an error of jurisdiction if there is no evidence to support the finding or no proper basis for drawing the inference; or, if there be some evidence, although inadequate, reliance by the Tribunal upon that inadequate evidence gives rise to an inference that the Tribunal has misconceived the test or is not, in reality, satisfied of the requisite matters, as a result of which there has been only a purported, rather than a real, exercise of the power conferred upon the Tribunal.


case_title: SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 , 228 CLR 152

case_text: " Considerable care ", however, needs to be exercised in effecting a dichotomy between an " adverse conclusion ... which would not obviously be open on the known material" and " mental processes ": SZBEL v Minister for Immigration & Multicultural & Indigenous Affairs [2006] HCA 63 at [31] , [2006] HCA 63 ; 228 CLR 152 at 162. Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ there referred to the argument then being advanced seeking to advance such a dichotomy and then applying that dichotomy to the facts before the Court. Their Honours observed: [31] Stated in this way, the argument seeks to elucidate the content of the requirements of procedural fairness by setting up a dichotomy. There are two reasons to exercise considerable care in approaching the problem in that way. First, it is far from clear that the two categories that are identified (conclusions not obviously open on the known material, and mental processes of decision-making) encompass all possible kinds of case that may fall for consideration. Secondly, there is a very real risk that focusing upon these two categories will distract attention from the fundamental principles that are engaged. Their Honours continued: [33] The Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal. The applicant is to be invited "to give evidence and present arguments relating to the issues arising in relation to the decision under review" (s 425(1) (emphasis added)). The reference to "the issues arising in relation to the decision under review" is important. [34] Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa. The statutory language "arising in relation to the decision under review" is more particular. The issues arising in relation to a decision under review are to be identified having regard not only to the fact that the Tribunal may exercise (s 415) all the powers and discretions conferred by the Act on the original decision-maker (here, the Minister's delegate), but also to the fact that the Tribunal is to review that particular decision, for which the decision-maker will have given reasons. [35] The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 11 The Appellant in the present appeal has pursued a course whereby his application has been rejected by the delegate and thereafter considered by the Refugee Review Tribunal on two occasions -- the first being its decision in February 2004; the second being that of the reconstituted Tribunal in October 2006. 12 The delegate concluded in part as follows: 3.2.4 I accept that the applicant may have been a supporter of a political party in Bangladesh that is currently opposed to the present BNP led government. ... 3.2.5 ... The information above indicates that merely belonging to an opposition party does not attract persecution in Bangladesh. These and other findings led the delegate to conclude that the now Appellant did not have a real chance of being persecuted should he return to Bangladesh. 19 First, it is not considered that " the issues arising in relation to the decision under review " are to be defined in all cases by the decision of the delegate. Their Honours in SZBEL did observe: ... But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".... The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration & Citizenship [2008] FCA 308 at [37] [45] per Emmett J. But the object of s 425 is to ensure that an applicant is given an opportunity " to give evidence and present arguments ", being evidence and argument " relating to the issues arising in relation to the decision under review ". And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal. 24 To give the terms of s 425(1) the width of operation that naturally follows from the terminology employed by the Parliamentary draftsman does not transgress the qualifications recognised by their Honours in SZBEL , supra , namely that there are many ways in which a tribunal may indicate to an applicant that it questions the account being given and that there is no requirement upon a tribunal to give a " running account " of the evidence. 25 As to the former qualification, their Honours in SZBEL observed: [47] ... there may well be cases, perhaps many cases, where either the delegate's decision, or the Tribunal's statements or questions during a hearing, sufficiently indicate to an applicant that everything he or she says in support of the application is in issue. That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. The proceedings are not adversarial and the Tribunal is not, and is not to adopt the position of, a contradictor. But where, as here, there are specific aspects of an applicant's account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted. 26 Rather than narrowly confining the identification of those matters which may constitute " issues " to which s 425(1) applies, it is considered that their Honours were there recognising that the " issues " arising in relation to a decision may be many and various and were recognising that there had to be a practical manner in which tribunal members could extend to an applicant an opportunity to " give evidence and present arguments " in relation to those " specific matters " that may assume importance. 27 Third, reliance by the Respondent Minister in the current appeal upon the adverse findings made by the reconstituted Tribunal is also not considered persuasive. The obligation imposed by s 425 upon a Tribunal is to extend the invitation there set forth. If that invitation has not been extended, and it should have been, it matters not that the Tribunal has thereafter proceeded in a manner which necessarily involves it in making factual findings. Indeed, the importance of s 425 is to ensure that the process of making those findings of fact is a process informed by, or at least assisted by, the evidence and arguments presented by an applicant. 28 If the application of s 425 is not to be confined in the narrow manner being urged by the First Respondent, it remains to consider whether the reconstituted Tribunal did in fact put the now Appellant on notice that some " specific " issues which had previously been resolved in his favour remained matters in respect to which it had reservations. It remains to consider whether the reconstituted Tribunal did in fact extend to the Appellant a meaningful opportunity " to give evidence and present arguments " in respect to those " specific " issues. 29 It is considered that the reconstituted Tribunal did not give the Appellant such an opportunity. The manner in which the Tribunal as reconstituted discharged its task of giving the Appellant such an opportunity was a matter for it. But the failure of the Tribunal to extend the opportunity emerges because nowhere in the transcript of the proceedings is there any indication given to the Appellant that he could not proceed upon the basis that he was, in summary, a person with a long record of political activities and a person who remained politically active.


case_title: SZDTZ v Minister for Immigration & Citizenship [2007] FCA 1824


case_title: SZINP v Minister for Immigration & Citizenship [2007] FCA 1747


case_text: First, it is not considered that " the issues arising in relation to the decision under review " are to be defined in all cases by the decision of the delegate. Their Honours in SZBEL did observe: ... But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review".... The issues which a delegate considers dispositive of the application may well be the issues which an applicant has to confront and answer when an appeal is lodged with the tribunal, eg SZJKU v Minister for Immigration & Citizenship [2008] FCA 308 at [37] [45] per Emmett J. But the object of s 425 is to ensure that an applicant is given an opportunity " to give evidence and present arguments ", being evidence and argument " relating to the issues arising in relation to the decision under review ". And that is an obligation imposed upon the tribunal hearing the application before it, whether it be the tribunal initially hearing the application or any subsequent tribunal.


case_title: VWFP and VWFQ v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 231


case_title: Waterford v Commonwealth [1987] HCA 25 ; (1987) 163 CLR 54


case_text: The Federal Magistrate held that the choice of country information was a matter for the RRT, and could not give rise to jurisdictional error. His Honour referred to NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 where the Full Court stated (at [11]): "It is not, as the first appellant submitted, an error of law, or a jurisdictional error, for the Tribunal to base a decision on 'country information' that is not true. The question of the accuracy of the 'country information' is one for the Tribunal, not for the Court. If the Court were to make its own assessment of the truth of 'country information', it would be engaging in merits review. The Court does not have power to do that."


case_text: In relation to the ground regarding s 424A , the Federal Magistrate noted that a letter which he regarded as having satisfied the requirements of that section had been sent to the appellant by the RRT on 24 January 2000. He concluded that the fact that the s 424A letter had been sent by the RRT at the time of the first hearing, rather than at the time of the second hearing, was of no consequence. He observed that the letter had been sent to the appellant as part of the process leading up to the RRT's earlier decision, which was subsequently set aside, but that this did not affect its significance. He referred to SZEPZ v Minister for Immigration and Multicultural Affairs [2006] FCAFC 107 at [37] [44]; and SZJBE v Minister for Immigration and Citizenship [2007] FCA 190 at [16] [17].


case_title: SZJBE v Minister for Immigration and Citizenship [2007] FCA 190


case_text: His Honour further noted that in VTAG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 91 ; (2005) 141 FCR 291 the Full Court held (at [41]): "In any event, the choice of country information available was a matter for the Tribunal. The Tribunal was not required by law to accept more recent information even if it had been supplied. Such information might for example have come from a less reliable source than the old information. There was in the circumstances no obligation on the Tribunal to make enquiries: see VAO v Minister for Immigration and Multicultural Affairs [2002] FCA 161 at [25] . " 13 His Honour went on to state that it was plain that the RRT had not ignored the later country information because it had referred to that information in terms in its reasons for decision. The country information in question related to the position in 2004, while the earlier information went back to 1998 and 2001. His Honour concluded that the appropriate inference was simply that the RRT preferred the earlier country information to the later information. In his Honour's opinion, that was a matter for the RRT. The Court could not substitute its own view of the weight that should be accorded to this material for that of the RRT.


case_text: Counsel for Rosalind seek an order under s 175(1) of the Corporations Act 2001 (Cth) correcting the share register of the relevant companies to reflect her entitlement to shareholdings in them. Rosalind has standing to apply for such an order as "a person aggrieved", given that her interests are not correctly stated in the current share register. It is appropriate and just in this case to order a correction of the register. Rosalind has established an equity to be recorded on the Dalness Pty Ltd share register by virtue of the Deeds of Appointment made by Donald on 3 December 1986: see, Grant v John Grant [1950] HCA 54 ; (1950) 82 CLR 1. In relation to Rocklands Pty Ltd, the Family Rearrangement entered into in 1988 gave Rosalind a right to be registered as the owner of one A class share immediately and the B class share upon payment. Payment was eventually made by July 2005. Under s 175(3) the notice of correction must be lodged with ASIC and it is appropriate to so order.


case_text: Under s 234 of the Act, a person can apply for an order under s 233 if that person is a member of the company. Counsel for the defendants submit that Rosalind lacks such standing but concede that if the Court makes an order nunc pro tunc , finding her to be entitled retrospectively to be a member of the companies at a time prior to 10 October 2005, when the application was filed, the standing issue disappears. It is appropriate in this case to make an order nunc pro tunc as equity so requires. There has been unnecessary delay in registering Rosalind as a member of the companies and there is no apparent injustice to third parties if such an order were made: see, In re Sussex Brick Company [1904] 1 Ch 598. Rosalind was entitled to be recognised as a member of Rocklands Pty Ltd from at least 1 July 2005 on the payment of the price of those B Class shares and of shares in Dalness Pty Ltd from the time of the grant of probate on her father's estate on 21 June 2004. She was entitled to her A Class share in Rocklands Pty Ltd as from 7 October 1988. 55 Under s 233 of the Act, having regard to the facts and circumstances of this matter discussed above, it may be appropriate that the companies are wound up given the unlikelihood that Neil and Rosalind are capable of working together in the best interest of the companies. However, counsel do not oppose the Court deferring the question of winding up until after the parties (primarily Rosalind and Neil) can attempt to resolve outstanding issues concerning the companies between them, before the Court is required to consider the appointment of liquidators. An order under s 233 will be made, if necessary, because the failure of the other shareholders in the companies to recognise Rosalind's stake in them has denied her the opportunity to play a part in the functioning of those companies and is in that sense "oppressive". 56 Counsel for the defendants submit that the Court should invite counsel to provide, within a relatively short period, minutes of orders which the parties contend should be made to give effect to the Court's reasons. That request is a reasonable one. However, the preparation of those orders should reflect the Court's views on the plaintiff's application that: • Dalness Pty Ltd should correct its register of members to record the plaintiff as a member of the company and a beneficial holder of 22,625 ordinary shares, and the beneficial owner jointly with Neil of 1 ordinary share, and requiring Neil and Deidre to lodge a notice of correction with ASIC. • Rocklands Pty Ltd should correct its register of members to record the plaintiff as a member and the beneficial owner of 1 A Class share and the beneficial owner of 25 B Class shares, and requiring Neil and Deidre to lodge notices of correction with ASIC. • Otherwise the application under s 233 of the Corporations Act seeking winding up of the companies and other orders as set out in paragraph 5 of the application should be adjourned to a date to be fixed by the Court, in consultation with the parties. • The defendants' cross-claim should be dismissed as no such agreements as alleged were entered into by Rosalind. • As the plaintiff has wholly succeeded on the issues dealt with to date, the defendants should pay her costs of the application.


case_text: It is unnecessary to traverse the details of what occurred thereafter. The defendants contest Rosalind's entitlement to shares in the two companies based on what they contend was her agreement to give them up. According to the cross-claim, that agreement was constituted by the 18 January 2001 and 8 December 2001 agreements. The 18 January 2001 agreement was no more than an agreement to negotiate. So much was conceded from the bar table by the defendants' senior counsel in his final submissions. In closing, it was submitted by counsel for the defendants that the outcome of the 8 December 2001 meeting constituted a binding agreement on the authority of Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353. In that case, the High Court constituted by Dixon CJ, McTiernan and Kitto JJ said at 360: Where parties who have been in negotiation reach agreement upon terms of a contractual nature and also agree that the matter of their negotiation shall be dealt with by a formal contract, the case may belong to any of three classes. It may be one in which the parties have reached finality in arranging all the terms of their bargain and intend to be immediately bound to the performance of those terms, but at the same time propose to have the terms restated in a form which will be fuller or more precise but not different in effect. In such a case, as described in Masters , there is a binding contract. What is critical, in the current circumstances, is to establish the intentions of the parties viewed objectively to be bound immediately at the 8 December 2001 meeting. No such evidence of any probative value was advanced in that regard. The evidence of Rosalind and the actions of both Neil and Mr McKenzie demonstrate a contrary intention. There was no agreement on 8 December 2001 other than to consider the proposals contained in Mr McKenzie's paper. Rosalind did not commit herself to those proposals at that meeting. She had not ever had the opportunity to fully consider them before it occurred. Mr McKenzie's letter to Mr Sproal on 10 December 2001 was based on a false premise that Rosalind had agreed to the terms of his proposal on the previous Saturday. The better view of the evidence, considered as a whole, is that she had not done so. 46 Having regard to the foregoing there is no reason why Rosalind should not be recognised as the holder of shares in the two companies. In fact, in 1990, the relevant register of shares showed Rosalind registered as the owner of one A Class share in Rocklands Pty Ltd. The evidence offered no explanation for this change or for its subsequent removal. Neil, under cross-examination, agreed that in 1990, Rosalind was beneficially entitled to have the A Class share registered in her name. Neil also agreed with the proposition put to him that: As to Rocklands, the correct situation which should be reflected in the share register concerning the A class shares is one share to you and one share to your sister. 47 On 25 July 2005, Neil wrote to Rosalind saying that he would arrange the "transfer of shares in both companies" to her as soon as she paid certain amounts allegedly owing to her father's estate and to the partnership upon receipt of advice as to when she would pay.


case_text: Rosalind's application is also made under s 233 of the Act. Section 233 is found in Pt 2F.1 of the Act and entitled "oppressive conduct of affairs". Section 232 allows the Court to make an order under s 233 if the conduct of the company's affairs or an omission by the company is "oppressive to, unfairly prejudicial to, or unfairly discriminatory against, a member or members....". The failure of the other shareholders in the companies to recognise Rosalind's stake in them has denied her the opportunity to play a part in the functioning of those companies and is in that sense "oppressive": see, Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459; Morgan v 45 Flers Avenue Pty Ltd (1986) 5 ACLC 222. Further, it is evident that the conduct of Neil as a director of both companies has been oppressive where he unfairly used that position to deny Rosalind her right to be registered on account of purported debts owed to his father's estate and the partnership.


case_title: Wayde v NSW Rugby League Ltd [1985] HCA 68 ; (1985) 180 CLR 459


case_text: 171D was considered by a Full Court of this Court in Re Application of Gallagher; Re Federated Cold Storage & Meat Preserving Employees Union of Australia (1983) 6 IR 78. Smithers J observed (at 81) that: "Considerable novelty may be appropriate in a scheme submitted under s 171D. It would seem that the court should be guided not by any narrow interpretation of s.171D, but should respond to the purpose of that section in the context of the Act ... Section 171D is in the midst of the sections last mentioned and stems from the intention of parliament to revive the effective management and administration of organisations when governing bodies have become defunct or impotent or are unable to function effectively because the rules failed to speak effectively in the relevant current circumstances. Its provisions should therefore be liberally construed." See to like effect per Northrop J at 91 and cf the more cautious approach of Keely J at 100-101. By reason of the events which I have earlier summarised I am satisfied that the Branch has ceased to function effectively. Over the past year it has limped from one internal crisis to the next and the underlying causes of the Branch's dysfunction remain unresolved.


case_text: forerunner of s 323 is to be found in s 171D of the Conciliation and Arbitration Act 1904 (Cth). This provision was declared to be constitutionally valid by the High Court in Re Joske; Ex parte Shop Distributive and Allied Employees Association [1976] HCA 48 ; (1976) 135 CLR 194 at 218, notwithstanding the broad powers which it conferred on the Court.


case_text: I do not consider that the Tribunal's reasons leading to its finding that the applicant fabricated his claim to have been a Falun Gong practitioner from mid 2002 disclose jurisdictional error on its part in the way asserted. It was entitled to test the applicant's knowledge of Master Li's teachings, as relevant to that issue. It does not flow from its reasons, either explicitly or implicitly, that it was prescribing a specific level of doctrinal knowledge as a precondition to the applicant (or anyone) being accepted as a Falun Gong practitioner (cf Wang v Minister for Immigration & Multicultural Affairs [2000] FCA 1599 ; (2000) 105 FCR 548 at 551-552). I do not therefore need to determine whether such a prescription, especially if based upon the Tribunal's understanding of the particular religion which is not accepted by an applicant or not supported by identified material, might involve jurisdictional error. The applicant did not claim in the course of the hearing that the Tribunal's questions did not relate to Master Li's teachings, and accepted that he did not have a deep level of knowledge of those teachings. His explanation for that was that he had not been practising for a long time.


case_text: In my view, the Tribunal's finding of fact that the applicant had been untruthful, in particular about his claim to have been a Falun Gong practitioner since mid 2002 was reached without jurisdictional error. It was based upon the way the applicant responded to the Tribunal's questions on a number of matters, and upon his own evidence as to the nature of what he claimed to have done as a Falun Gong practitioner until mid 2004 and that he had a 'quite superficial' knowledge of Falun Gong. The foundations for its finding of fact were reasonably open to it. No jurisdictional error is demonstrated by the Tribunal making a finding on credibility reasonably available on the material available: Mashayekhi v Minister for Immigration & Multicultural Affairs [2000] FCA 321 ; (2000) 97 FCR 381 at 385. 14 The fact of that fabrication of his early involvement with Falun Gong, together with his limited knowledge of Falun Gong (as the applicant himself acknowledged), then lead the Tribunal not to be satisfied that the applicant's involvement in Falun Gong more recently was otherwise than for the purpose of strengthening his claim to be a refugee. Section 91R(3) of the Act directed the Tribunal, in those circumstances, to disregard the applicant's more recent Falun Gong involvement. It followed that the Tribunal was not satisfied of his grounds for seeking a protection visa. It was therefore required by s 65 to affirm the delegate's decision and to refuse the protection visa sought. 15 The second claim of jurisdictional error was based upon apprehended bias. It was initially argued that the Tribunal must reasonably be apprehended to have pre-judged the applicant's claim by assuming that each follower and believer of the Falun Gong would know and understand that level of doctrinal knowledge which the Tribunal expected. Counsel for the applicant in the course of submissions accepted that the contention limited in that way did not really advance the applicant's claim, as, if he did not succeed on the first ground, he could not succeed on the alternative ground. However, the contention was then developed by during to the course of the hearing.


case_text: In my judgment, the transcript does not indicate circumstances such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the application: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. The Tribunal's role required it to question the applicant, and entitled it to express doubts about aspects of the applicant's evidence or claims and to invite his comments upon those matters: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 at 269 ( NADH ). The Tribunal went no further than that. It put its concerns to the applicant. It gave him an opportunity to respond. It did not prevent him from responding, or cut off his answers. Its concerns were rational. It does not appear that its manner of questioning was inappropriate.


case_title: Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425


case_outcome: discussed

case_text: In my judgment, the transcript does not indicate circumstances such that a fair-minded and informed person might reasonably apprehend that the Tribunal might not have brought an impartial mind to the consideration of the application: Webb v The Queen [1994] HCA 30 ; (1994) 181 CLR 41 at 70-71; Re Refugee Review Tribunal; Ex parte H [2001] HCA 28 ; (2001) 179 ALR 425. The Tribunal's role required it to question the applicant, and entitled it to express doubts about aspects of the applicant's evidence or claims and to invite his comments upon those matters: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 214 ALR 264 at 269 ( NADH ). The Tribunal went no further than that. It put its concerns to the applicant. It gave him an opportunity to respond. It did not prevent him from responding, or cut off his answers. Its concerns were rational. It does not appear that its manner of questioning was inappropriate. 23 The alternative way the apprehended bias contention was developed is based upon the observations of Allsop J (with whom Moore and Tamberlin JJ agreed) in NADH at 284 where his Honour said: 'By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.' His Honour went on to ask rhetorically, in relation to the circumstances of that case, how else (the fair-minded observer might ask) can the steps taken by the decision-maker be explained. He then continued: 'The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.'


case_text: I do not consider the Tribunal's questioning of the applicant on his knowledge of the exercises and cultivation of Falun Gong is capable of indicating a closed mind on its part. It had to address his claim to have been a Falun Gong practitioner since mid 2002. It had reasons to doubt its accuracy, based upon other aspects of the applicant's evidence. Its questions then were directed to testing his knowledge of Falun Gong exercises and practice. It did so using material which it identified, and which the applicant acknowledged he was aware of. Members of the Tribunal in many instances develop a relatively detailed knowledge of the political or religious situation or of the political or religious beliefs of certain groups in many countries. So long as it acts consistently with the requirements of procedural fairness, the Tribunal informs itself as it thinks fit: s 420(2) and Pt 7 Div 4 of the Act; see also SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 77 ALD 402 at 408 ( SFGB ). This is not a case where the Tribunal did not disclose the source of its information: cf Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 at 210-211. Its questioning was not unreasoned or unreasonable. Its conclusions about the applicant's level of knowledge was not shown to be based on selective material, nor to lack a foundation in the material referred to. Indeed the applicant accepted at the conclusion of that sequence of questions that what the Tribunal had put to him was based on what committed practitioners of Falun Gong 'read again and again and again on a daily basis'. 30 If the Tribunal makes a finding which is a critical step in its ultimate conclusion, and there is no evidence to support the finding, there may well be jurisdictional error: SFGB at 407-408, and the cases there cited at [19]-[20]. If the reasons for decision lead to the inference that the Tribunal applied the wrong test, or was not in reality satisfied about the correct text, that too may constitute jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Such an inference might be drawn if there was no information before the Tribunal from which it could realistically or logically draw the conclusions which it did.


case_outcome: distinguished

case_text: I do not consider the Tribunal's questioning of the applicant on his knowledge of the exercises and cultivation of Falun Gong is capable of indicating a closed mind on its part. It had to address his claim to have been a Falun Gong practitioner since mid 2002. It had reasons to doubt its accuracy, based upon other aspects of the applicant's evidence. Its questions then were directed to testing his knowledge of Falun Gong exercises and practice. It did so using material which it identified, and which the applicant acknowledged he was aware of. Members of the Tribunal in many instances develop a relatively detailed knowledge of the political or religious situation or of the political or religious beliefs of certain groups in many countries. So long as it acts consistently with the requirements of procedural fairness, the Tribunal informs itself as it thinks fit: s 420(2) and Pt 7 Div 4 of the Act; see also SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 77 ALD 402 at 408 ( SFGB ). This is not a case where the Tribunal did not disclose the source of its information: cf Collector of Customs, Tasmania v Flinders Island Community Association (1985) 7 FCR 205 at 210-211. Its questioning was not unreasoned or unreasonable. Its conclusions about the applicant's level of knowledge was not shown to be based on selective material, nor to lack a foundation in the material referred to. Indeed the applicant accepted at the conclusion of that sequence of questions that what the Tribunal had put to him was based on what committed practitioners of Falun Gong 'read again and again and again on a daily basis'.


case_text: The alternative way the apprehended bias contention was developed is based upon the observations of Allsop J (with whom Moore and Tamberlin JJ agreed) in NADH at 284 where his Honour said: 'By and large fact-finding is a task within jurisdiction, though factual error is not necessarily mutually exclusive of jurisdictional error: Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59; 73 ALD 1; [2003] HCA 30. Where fact-finding has been conducted in a manner which can be described, as here, as in substantial respects unreasoned, and mere assertion lacking rational or reasoned foundation, at times as plainly and ex facie wrong and as selective of material going one way, these considerations may found a conclusion that the posited fair-minded observer might, or indeed would, reasonably apprehend that the conclusions had been reached with a mind not open to persuasion and unable or unwilling to evaluate all the material fairly.' His Honour went on to ask rhetorically, in relation to the circumstances of that case, how else (the fair-minded observer might ask) can the steps taken by the decision-maker be explained. He then continued: 'The answer to these questions might be that the tribunal lacked an appreciation of the need to weigh all the material. If that were the case it would itself support a conclusion of jurisdictional error. The answer might also be the lack of an ability or willingness to deal with the material before it with a mind open to persuasion fairly evaluating all the material.' 30 If the Tribunal makes a finding which is a critical step in its ultimate conclusion, and there is no evidence to support the finding, there may well be jurisdictional error: SFGB at 407-408, and the cases there cited at [19]-[20]. If the reasons for decision lead to the inference that the Tribunal applied the wrong test, or was not in reality satisfied about the correct text, that too may constitute jurisdictional error: Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59. Such an inference might be drawn if there was no information before the Tribunal from which it could realistically or logically draw the conclusions which it did.


case_text: And, this construction is reinforced by O 6 r 11(1)(b) which permits orders for amendment, in effect, consequent upon the joinder of a new party under O 6 r 8: see also Richardson v Trautwein (1942) 64 CLR at 601 per Williams J and Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 at 745E-746C per Mahoney JA, see too at 749F-751C per Priestley JA. So, O 6 r 8 has to do, primarily, with ensuring that the rules of natural justice, entitling a person whose rights may be affected by a decision to be heard before the decision is made, and ensuring that any proper contradictor can be joined so as to assist in the court's discharge of its statutory obligation under s 22 of the Federal Court of Australia Act 1976 (Cth). That provides: 'The Court shall, in every matter before the Court, grant, either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters avoided.'


case_text: In BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 at 422 [15] Gleeson CJ, McHugh and Heydon JJ said of a statutory discretion to be exercised according to the interests of justice: 'The interests of justice are not the same as the interests of one party, and there may be interests wider than those of either party to be considered.' 58 I am of opinion that because O 6 r 2(b) creates a similarly wide discretion, it is appropriate, to consider whether the Bank can bring itself within the terms of O 6 r 2(a) before considering the catch-all discretion in r 2(b).


case_outcome: approved

case_title: Birtles v Commonwealth [1960] VR 247

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


case_title: Bishop v Bridges (1990) 25 FCR 311

case_text: In Bishop v Bridges (1990) 25 FCR 311 at 314, Wilcox J said that as the discretion in r 2(b) is in terms unconfined it would be inappropriate to specify circumstances in which it might be applied. He said, and I agree, that ' [e]verything must depend upon the facts of the particular case '. His Honour continued (25 FCR at 314-315; see too per Austin J in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 72-74 [28] - [36] ; Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 220-221 [22] - [23] per Goldberg J): 'But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.'


case_title: Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988 unreported, Federal Court of Australia)

case_text: Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).


case_text: In Bishop v Bridges (1990) 25 FCR 311 at 314, Wilcox J said that as the discretion in r 2(b) is in terms unconfined it would be inappropriate to specify circumstances in which it might be applied. He said, and I agree, that ' [e]verything must depend upon the facts of the particular case '. His Honour continued (25 FCR at 314-315; see too per Austin J in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 72-74 [28] - [36] ; Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 220-221 [22] - [23] per Goldberg J): 'But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.' 63 In Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 221 [23] , Goldberg J approved what Wilcox J said adding that the court should also be concerned to determine what is the most efficient use of the resources of the parties and also of the court. In adopting the principles identified by each of Wilcox J and Goldberg J, Austin J ( Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 73 [31] ) said that '[t]his leads to a practical calculation of advantages and disadvantages'. Of course, one relevant consideration to which regard may be had in the exercise of the discretion under O 6 r 2(b) is that r 2(a) would have no work to do if r 2(b) were to be construed without regard to the fact that it is an alternative to r 2(a). Ordinarily, the exercise of the discretion under r 2(b) should be seen to be in the interests of justice having regard to the features of the case which have meant that the conditions in r 2(a) cannot be met.


case_text: Of course, it is possible, and indeed a commonplace to allege inconsistent matters in different counts against different parties based on a cause of action arising out of the one transaction. Indeed, s 2(1) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) specifically envisages that this may occur where it is uncertain which of two or more persons, if not all of them, is responsible for the relief for which the plaintiff or applicant claims ( Chadwick v Bridge [1951] HCA 11 ; (1951) 83 CLR 314 at 319 per Dixon J, Williams, Webb, Fullagar and Kitto JJ agreeing in separate reasons at 320-321). As Dixon J observed (83 CLR at 318) the words of the statutory right to bring an action in tort are similar to O 6 r 2(a). But the issue there was uncertainty as to what the identity of the vehicle which allegedly injured the plaintiff was (see: 83 CLR at 319-320). And there is no analogue to O 6 r 2(b) in that legislative provision which explicitly creates a general discretion in the court to grant leave (see the discussion concerning the relatively recent introduction of the analogues of O 6 r 2(b) in Newman v Hold Pty Ltd [2001] VSC 282 at [2] - [4] and the cases there cited by Mandie J). 55 Here it can be said that the Bank is uncertain as to who has caused it the loss or damage claimed. Dixon J said (83 CLR at 319): 'It is, I think, not a proper way of construing s 2 to take every paragraph of the section separately and deal with it as if each paragraph was to cover a different case. The purpose of the paragraphs is to make plain how the general policy of the provision operates and to ensure as far as language may do that plaintiffs are not to be defeated because of their uncertainty at the commencement of the action as to the correct party against whom they ought to claim.'


case_title: Cropper v Smith (1884) 26 Ch D 700


case_text: So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ). 62 In Bishop v Bridges (1990) 25 FCR 311 at 314, Wilcox J said that as the discretion in r 2(b) is in terms unconfined it would be inappropriate to specify circumstances in which it might be applied. He said, and I agree, that ' [e]verything must depend upon the facts of the particular case '. His Honour continued (25 FCR at 314-315; see too per Austin J in Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 72-74 [28] - [36] ; Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 220-221 [22] - [23] per Goldberg J): 'But it is appropriate to consider what principles ought to guide the exercise of such a discretion. The basic principle, as it seems to me, is that the Court should take whatever course seems to be most conducive to a just resolution of the disputes between the parties, but having regard to the desirability of limiting, so far as practicable, the costs and delay of the litigation. Considerations of costs and delay may often support the grant of leave under subr (b); but, in my opinion, leave ought not be granted unless the Court is affirmatively satisfied that joinder is unlikely to result in unfairness to any party. Secondly, regard must be had to practical matters. For example, it would normally be inappropriate to grant leave for the joinder of applicants who were represented by different solicitors. There must be a single solicitor, or firm of solicitors, who is accountable for the conduct of the proceeding on the applicants' side of the case. Similarly, although all applicants might propose to rely upon some common, or similar facts, there may be such differences between the evidence intended to be relied upon in support of the claims of particular applicants as to make it inexpedient to join the claims. The discrete material may overbear that which is common to all the claims. Again, there may be cases in which the sheer number of the claims, if joinder is permitted, will impose an undue burden on the respondent; although it seems to me unlikely that this will be so except in cases where separate evidence is proposed to be adduced in support of individual claims.' 63 In Carter v Commissioner of Taxation [2001] FCA 575 ; (2001) 109 FCR 215 at 221 [23] , Goldberg J approved what Wilcox J said adding that the court should also be concerned to determine what is the most efficient use of the resources of the parties and also of the court. In adopting the principles identified by each of Wilcox J and Goldberg J, Austin J ( Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 73 [31] ) said that '[t]his leads to a practical calculation of advantages and disadvantages'. Of course, one relevant consideration to which regard may be had in the exercise of the discretion under O 6 r 2(b) is that r 2(a) would have no work to do if r 2(b) were to be construed without regard to the fact that it is an alternative to r 2(a). Ordinarily, the exercise of the discretion under r 2(b) should be seen to be in the interests of justice having regard to the features of the case which have meant that the conditions in r 2(a) cannot be met.


case_text: As Gleeson CJ noted in Fernance v Nominal Defendant (1989) 17 NSWLR 710 at 722C-D the analogue of s 22 was relevant to the operation of O 6 r 8 and the phrase 'all matters in dispute in the proceedings' (see O 6 r 8(1)(b)) was not to be construed as limited to matters arising under the existing pleadings.


case_text: At the hearing the principles upon which I was asked to exercise my discretion in granting leave to join Ms Nader to the Bank's proceedings, were set out in written submissions by the Bank which were accepted by Ms Nader's counsel. They are: ' Principles on Joinder 11. Order 6 rr.2 and 8 of the Federal Court Rules , permit the addition of parties. It is submitted with regard to the proposed causes of action against Ms Nader that there are clearly common questions of fact and law under O.6 r.2 which will arise in the proceedings and also relate to the proposed case against her. Under O.6 r.8 joinder is permitted where it is necessary to ensure that all matters in dispute in the proceedings may be effectually and completely determined and adjudicated upon. 12. Order 6 r.8 should be liberally construed so that all parties to disputes relating to the one subject matter may be dealt with at the one time: Montgomery v Foy, Morgan & Co. [1895] 2 QB 321 at 324; John Cooke & Co. Ltd v Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411. In order to obtain a joinder order under the rule, a party must only show an arguable case against the proposed respondent at least to the standard of being able to resist an application for summary judgment by the proposed respondent to have the proposed party being sued in separate proceedings: Review Australia Pty Ltd v Redberry Enterprise Pty Ltd [2003] FCA 1009. The phrase "all matters in dispute in the proceedings" should not be construed as limited to matters arising on the existing pleadings: it may also properly include those disputed issues of fact which are subjacent to the existing pleadings: Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. Disputed issues of fact which underlie proceedings are subjacent to the pleadings: Fried v National Australian Bank Ltd [1999] FCA 737. As the joinder of Ms Nader is based upon affidavit evidence served in support of the existing pleadings, the case against Ms Nader is a matter currently in dispute in the proceedings.' 32 The structure of Order 6 is such that it gives primacy to O 6 r 2 over rules such as O 6 r 8, although cognately they have been held to give the Court very wide powers: John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411 per Knox CJ, Gavan, Duffy and Starke JJ. The only issue in that case was whether the vendors of skin wool, who were parties, were entitled to share equally with the vendors of shorn wool, who were not parties, in a wool fund held by the Central Wool Committee (31 CLR at 410). Their Honours continued in relation to analogues of the rules in O 6: 'These rules are practically the same as the English Judicature Rules, Order XVI., r. 11, and Order XXV., r. 5; and they undoubtedly give the Court very wide powers. But they are discretionary in their nature. (See Wilson, Sons & Co. v. Balcarres Brook Steamship Co. and Russian Commercial and Industrial Bank v. British Bank for Foreign Trade Ltd. .) Thus there is no doubt that the Court may "permit an action to go on, so that the rights of the parties before the Court may be determined even though all parties to the action are not before it" (see Robinson v. Geisel , at p. 689). The Rules, too, enable the Court to add parties who ought to have been joined or whose presence before the Court is necessary to enable it to effectually and completely adjudicate upon and settle all the questions involved in the cause or matter.' (footnotes omitted) 37 I am of opinion that O 6 r 8, on its proper construction, does not authorize the joinder of Ms Nader as sought. Her joinder would require, as is sought, substantive amendment of the Bank's statement of claim. Save for the assertion of her liability if the Bank's remedies against the guarantors in contract, pursuant to its interest in land the subject of its mortgages and its tortuous and statutory claims fail, Ms Nader has no interest in the subject matter of the Bank proceedings or the ASS proceedings. She is a discrete third party quite unlike the wool growers, for example, in John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 or the builder in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34. 43 That said, it is now necessary to consider the construction and application of O 6 r 2. It provides two bases, each again discretionary ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411), for joinder. The second basis, in r 2(b), is emphatic of this discretion which falls to be considered having regard to the subject matter, scope and purpose of O 6 as whole and as part of the Federal Court Rules : The Queen v Australian Broadcasting Tribunal: Ex Parte 2HD Pty Ltd [1979] HCA 62 ; (1979) 144 CLR 45 at 49. The first basis, in r 2(a) involves considerations which have been the subject of over a century of judicial decisions. It requires not just the existence of a common question of fact or law in each proceeding which might be brought separately against two or more persons, but also that ' all rights to relief claimed' are in respect of or arise out of the same transaction or series of transactions (cf: Stroud v Lawson [1898] 2 QB 44 at 52). 61 Last, the Bank seeks the exercise of my discretion pursuant to O 6 r 2(b). As already noted the discretion is very wide ( John Cooke & Co Pty Ltd v The Commonwealth [1922] HCA 60 ; (1922) 31 CLR 394 at 411; Caboolture Park Shopping Centre Pty Ltd v White Industries (Qld) Pty Ltd (25 May 1988, unreported, Federal Court of Australia) per Ryan J at 3; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989, unreported, Federal Court of Australia) per Hill J at [21]).


case_title: Marino v Esanda Ltd [1986] VR 735

case_text: So, if here, the only parties to the Bank proceedings had been Marie and Josephine Saklaoui the Bank's position may have brought it within the words of O 6 r 2(a)(ii). But because the Bank proceedings involve four other existing respondents this is not the case here because the 'transaction' or 'transactions' in which Marie and Josephine Saklaoui are involved is not related to and does not arise from the cases of the other guarantors (see too Marino v Esanda Ltd [1986] VR 735 at 740 per Tadgell J; Re The Thai Silk Company Ltd and Arkitex Fabrics Pty Ltd (31 May 1989 unreported, Federal Court of Australia) per Hill J at [22]-[23]; Dean-Willcocks v Air Transit International Pty Ltd [2002] NSWSC 525 ; (2002) 55 NSWLR 64 at 7-72 [21] - [27] ).


case_title: Newman v Hold Pty Ltd [2001] VSC 282

case_text: Of course, it is possible, and indeed a commonplace to allege inconsistent matters in different counts against different parties based on a cause of action arising out of the one transaction. Indeed, s 2(1) of the Law Reform (Miscellaneous Provision) Act 1946 (NSW) specifically envisages that this may occur where it is uncertain which of two or more persons, if not all of them, is responsible for the relief for which the plaintiff or applicant claims ( Chadwick v Bridge [1951] HCA 11 ; (1951) 83 CLR 314 at 319 per Dixon J, Williams, Webb, Fullagar and Kitto JJ agreeing in separate reasons at 320-321). As Dixon J observed (83 CLR at 318) the words of the statutory right to bring an action in tort are similar to O 6 r 2(a). But the issue there was uncertainty as to what the identity of the vehicle which allegedly injured the plaintiff was (see: 83 CLR at 319-320). And there is no analogue to O 6 r 2(b) in that legislative provision which explicitly creates a general discretion in the court to grant leave (see the discussion concerning the relatively recent introduction of the analogues of O 6 r 2(b) in Newman v Hold Pty Ltd [2001] VSC 282 at [2] - [4] and the cases there cited by Mandie J).


case_text: The Bank contended that this showed that Branson J's approach to O 6 r 8 was wrong and, moreover, it submitted that the approach of Glass and Samuels JJA had been approved by the Full Court in News Ltd v Australian Rugby Football League (1996) 64 FCR 410 at 523G-524B. But there, the Full Court referred simply to the decision in Qantas Airways Ltd v AF Little Pty Ltd [1981] 2 NSWLR 34 in the context of considering a different situation; viz , one in which the trial judge had made orders that affected the substantive rights of persons who had not been joined to the proceedings (see 64 FCR at 524E-F). Lockhart, von Doussa and Sackville JJ did say (64 FCR at 524A-B) immediately after their reference in the above context to the decision of the Court of Appeal and FCR O 6 r 8(1)(b): 'The post-Judicature Act rules of court also included provisions of the kind now found in FCR O 6, rr 1 and 2 for the joinder of multiple claims and multiple parties, either plaintiffs or defendants, where the subject matter of the proceedings is in respect of, or arises out of, the same transaction or series of transactions, involving some common question of law or fact. These provisions reflect an intention, which now receives more emphasis than in the past, to avoid where reasonably practicable a multiplicity of proceedings: Montgomery v Foy, Morgan & Co [1895] 2 QB 321; but see Amon v Raphael Tuck & Sons Ltd [1956] 1 QB 357 at 378 per Devlin J.'


case_text: In Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609 the High Court considered its analogical rule which, as Barwick CJ emphasized (145 CLR at 614) spoke of ' ... plaintiffs in whom any right to relief is alleged to exist'. The operation of O 6 r 2(a)(ii) is different and less liberal for it requires ' all the rights to relief ' to be in respect of or to arise out of the same transaction or series of transactions. 46 Here the rights to relief claimed by the Bank against Ms Nader are legally and factually independent of the claims by the Bank against the guarantors other than Marie and Josephine Saklaoui for the purposes of O 6 r 2(a) because none of the other guarantors participated in the transactions between each of Marie and Josephine Saklaoui, Ms Nader and the Bank. As Mason J said in Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609 at 618 (see too per Barwick CJ at 614-615, Stephen J at 615 and Aickin J, whose decision at first instance was affirmed, at 611) of the amendment to the English rules in 1898: 'The object of the amendment was to allow several plaintiffs to join separate causes of action where under the old rule as interpreted by judicial decision they could not do so. Subject to the two limitations expressed in pars. (a) and (b) of the rule, it permits the joinder of separate causes of action which have accrued to different plaintiffs. The effect of the rule was, in my opinion, correctly stated by Vaughan Williams L.J. in Stroud v Lawson when he said ([1898] 2 QB at pp 54-55): "I do not think that the rule means that the whole of a transaction must be involved in each of the causes of action joined. I think that, if there was a transaction or series of transactions in respect of which one plaintiff was interested up to a certain point, and other plaintiffs were interested, not only up to that point, but in respect of the entire transaction or series of transactions from beginning to end, under this rule they might joint their separate causes of action in one action, because there would be one transaction or series of transactions in respect of which the various plaintiffs all claimed a right to relief. Their remedies or damages might be different, but they would be claiming relief in respect of the same transaction or series of transactions." To these observations I would add the comment that the rule may well authorize the joinder of separate causes of action accruing to various plaintiffs against different defendants, so long as the causes of action arise out of the same transaction or series of transactions. The consequence is that under par. (a) of the rule joinder of separate causes of action accruing to different plaintiffs is authorized when the relief claimed is in respect of, or arises out of, the same or a particular series of transactions. Joinder is not authorized when the relief claimed is in respect of, or arises out of, two or more different series of transactions, when the participation of each individual plaintiff is limited to participation in one series of transactions, the other plaintiffs not participating in that series.' 50 The Bank argued that the requisite commonality was to be found in the fact that it sued all guarantors on a common debt which they jointly guaranteed or in which they were concerned and that this distinguished its case from Payne v Young [1979] HCA 39 ; (1980) 145 CLR 609. 51 But here, the Bank's claim against each guarantor and, in particular, against each of Marie and Josephine Saklaoui, depended on its having entered into relationships based in contract and in interests in land ( viz : its mortgages). That is, the Bank relies on the reality and validity of those dealings as its primary case. Next, the Bank has now been given leave to amend to allege against, inter alios , Marie and Josephine Saklaoui, that each was guilty of fraud in proffering her guarantee, mortgage and signature of the certificate when, on this alternative, there will be no real or valid guarantee or mortgage. 52 Obviously, the two above ways of the Bank putting its case against the guarantors are distinct and involve different transactions or series of transactions. This not just because of the legal distinction between a claim under a valid and binding guarantee and or mortgage, and a claim that the Bank was the victim of a fraud because those instruments have been avoided or were void ab initio . It is also because there are six different guarantors, each with his or her own circumstances and, in substance, cases within the overall context of the Bank proceedings.


case_text: It is not alleged that Ms Nader acted as an agent for the Bank, so the question will be, after a finding is made about what explanation, if any, was given, how that affects the Bank's entitlement in all the circumstances to enforce the guarantees and mortgages against Marie and Josephine Saklaoui. A myriad of other discretionary factors will fall to be considered. Indeed, even if Ms Nader gave no explanation, there may be circumstances in which the Bank could succeed in its claim to enforce its contractual and real property rights, such as if Marie and or Josephine Saklaoui from past experience knew what a guarantee or mortgage was and that she was executing such an instrument fully cognizant of the potential consequences for her in doing so. Relief under s 7 of the Contracts Review Act 1980 (NSW) is potentially available because the court can hold a contract to be unjust as Basten JA recently said in Perpetual Trustee Co Ltd v Khoshaba [2006] NSWCA 41 at [119] : '...by reliance on factors of which the other party was ignorant when the contract was entered into, but that such ignorance may be relevant in determining whether to grant relief.' (see too per Spigelman CJ at [90]) 41 In some cases it may be desirable or convenient to join as a party a person in Ms Nader's position, but that addition, in the present, complex, matter, in my opinion, is not necessary to ensure that all matters in dispute in these proceedings can be effectually and completely determined and adjudicated upon under O 6 r 8(1)(b). The enforceability of the guarantees and mortgages can be determined once for all, subject to any appeal, without the need to join, or the joinder of, Ms Nader. 42 Indeed, the significant amendments required if Ms Nader was joined, demonstrate that her addition as a party would expand the matters in dispute, albeit that this would occur because the claim against her is in the alternative to the principal claims against some of the guarantors.


case_text: Here, however, no circuity of action would be avoided by the joinder of Ms Nader. The claim against her is freestanding and depends on the Bank's other independent claims against the guarantors with whom it had relationships based in contract and the law of (real) property (cp Progressive Mailing House Pty Ltd v Tabali Pty Ltd [1985] HCA 14 ; (1985) 157 CLR 17 at 33-34 per Mason J). Of course, the Bank also now claims against the guarantors in tort and pursuant to statute. It is because these latter claims are made and the Bank also seeks to sue Ms Nader on a quite distinct, alternate, basis for like causes of action, that it applied to join her.