case_text: Without departing from the principles stated by the High Court in Coulton v Holcombe [1986] HCA 33 ; (1986) 162 CLR 1, and by a Full Court in Branir Pty Ltd v Owston Nominees (No 2) Pty Limited [2001] FCA 1833 ; (2001) 117 FCR 424, a Full Court in VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158 commented on the practice of raising arguments for the first time on appeals in migration matters. 29 The approach stated by the Court in VUAX at [48] is that leave may be granted if a point is advanced "which clearly has merit" and the respondent suffers "no real prejudice". An adequate explanation is also required for the failure to take the point at first instance. 30 Here, the appellant is represented for the first time by counsel. The Minister does not point to any prejudice other than costs. The essential question is whether the grounds have merit. I will deal with that when addressing each of the grounds. 51 I do not consider that there is sufficient merit in the second ground of appeal to grant leave in accordance with the approach taken in VUAX . Nevertheless, the question of whether the Tribunal's finding in relation to the confiscation of the land was flawed falls for consideration under grounds 3 and 4. 52 Grounds 3 and 4 may be considered together. Mr Mantziaris put three submissions in support of them: first, that the Tribunal failed to consider the appellant's claims in their totality; second, that the Tribunal looked only at the question of past conduct without considering whether it gave rise to a real chance of persecution in the future; third, that the Tribunal erred in law in inferring that the appellant's post 2003 inactivity meant that he had no fear of persecution.


case_outcome: referred to

case_text: This amounted to a constructive failure to exercise the Tribunal's jurisdiction: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597; NABE at [48] [49]; WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44].


case_outcome: cited

case_text: Upon the return of the motion on 30 January 2007 I ordered security for costs and dismissed the motion so far as it sought transfer of the proceedings: Lamb v Hog's Breath Company Pty Ltd (No 1) [2007] FCA 49 . I reserved judgment on the strike out motion until today. 7 For the reasons that follow, in my opinion, the statement of claim should be struck out and a substituted statement of claim filed. I propose also to give the respondents the opportunity to provide basic information about their respective roles in what I refer to as the "Hog's Breath" group and the ways in which the so-called Hog's Breath Works and/or the registered trade marks have been applied. I will not direct that they do so. In the event that they decline to do so and the applicant files a substituted statement of claim, adequately pleaded having regard to the information it has available to it, then I will entertain applications for specific discovery and/or leave to interrogate so that the statement of claim may be further reviewed prior to the filing of a defence. 8 The applicant is a citizen of the United States of America. He says that he is and was at all material times a prominent and well-known artist in the United States and is, and was at all material times "the owner of copyright in the 'Wave Hog Work'". A copy of the work is depicted in Schedule A to the application filed in these proceedings.


case_text: 3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates — the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.


case_text: that Part, s 353(1) provides that " [t]he validity of any election or return may be disputed by petition addressed to the Court of Disputed Returns ... ". Section 354(1) establishes the High Court of Australia as the Court of Disputed Returns. Jurisdiction to determine any dispute as to the validity of any election or return is vested exclusively in the Court of Disputed Returns: Bryant v Commonwealth of Australia (unreported, FCA, Tamberlin J, NG 1084 of 1998, 20 October 1998). Section 355 sets forth the " requisites " of a petition as follows: Requisites of petition Subject to section 357, every petition disputing an election or return in this Part called the petition shall: (a) set out the facts relied on to invalidate the election or return; (aa) subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief; (b) contain a prayer asking for the relief the petitioner claims to be entitled to; (c) be signed by a candidate at the election in dispute or by a person who was qualified to vote thereat, or, in the case of the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution or section 44 of this Act, by a person qualified to vote at Senate elections in the relevant State or Territory at the date of the choice or appointment; (d) be attested by 2 witnesses whose occupations and addresses are stated; (e) be filed in the Registry of the High Court within 40 days after: (i) if the polling day for the election in dispute is not the polling day for any other election — the return of the writ for the election; or (ii) if the polling day for the election in dispute is also the polling day for another election or other elections — the return of whichever of the writs for the election in dispute and that other election or those other elections is returned last; or (iii) if the choice or the appointment of a person to hold the place of a Senator under section 15 of the Constitution is in dispute — the notification of that choice or appointment.


case_text: commenting upon s 359, Brennan CJ in Free v Kelly [1996] HCA 42 ; (1996) 185 CLR 296 at 305 stated that: The Commission may be represented and heard under s 359 in at least four categories of case: cases where the Commission seeks to defend the conduct of an election or the conduct of an officer of the Commission in relation to an election; cases in which the Commission intervenes for the purpose of advancing a proposition for which it seeks curial confirmation to assist it in the discharge of its statutory functions; cases where the Commission adopts a partisan stance supporting one party or another; and cases where the Commission merely makes appropriate reference to the Act and to authority in order to assist the Court to determine a petition. It may be appropriate to make an order for or against the Commission in the first three categories of case, but in the fourth category the Commission is engaged in the proper performance of a statutory function in the public interest. The appearance of the Commission in such a case ought not to enlarge the risk of costs to the other parties to the proceedings. Being incidental to the proper performance of its statutory functions, the cost of being represented and heard ought properly to be borne as a cost of the Commission's administration. This is such a case. Expressing, as I do, appreciation of the considerable assistance that the Commission offered — not least in the preparation of an agreed statement of facts — it is appropriate to make no order with respect to the costs of the Commission. When the proceeding was before Gummow J, the Australian Electoral Commission sought to intervene in order to support the relief claimed by the Corporation that the petition be dismissed. His Honour, when making orders on 17 February 2009, ordered that the Commission be added as the Third Respondent to the proceeding. When seeking leave, the Commission foreshadowed that it sought to support the Corporation's contention that the petition fails to comply with s 355 and should be dismissed. It wished " to be available to assist the Court on any constitutional issues that might arise in the proceedings ". Section 359 further provides that where the Commission is given leave to enter an appearance, it " shall be deemed to be a party respondent to the petition ". As a " party respondent " it has all the entitlements of a respondent, including the prospect of an order for costs being made in its favour if successful. The role undertaken by the Commission in the present proceeding went beyond the mere task of making " appropriate reference to the Act and to authority in order to assist the Court to determine a petition ". The task undertaken was to support the relief sought by the Corporation; it adopted a " partisan stance " — to employ the language of Brennan CJ.


case_outcome: applied

case_title: Gunter v Hollingworth [2002] FCA 943

case_text: which a petitioner seeks to dispute by a petition, and the relief claimed, are thus " to be ascertained from the terms of the petition itself as a matter of construction ": Gunter v Hollingworth [2002] FCA 943 at [28] per Cooper J. Set forth in the petition under the heading " Statement of Facts " are contained (among others) the following statements: "If in Australia, where the Westminster System should be characterised by a career public service which 'impartially serves the government of the day' and the ABC is both an independent public service and Australia's national public broadcaster, then the ABC's performance during the campaign period breached its impartiality with particular respect to its content and program level on the one hand and its platform levels of ABC Television, ABC Radio and ABC Online on the other. ..." "The ABC was responsible for an inequitable candidate profile detailing the background of each candidate ..., gave inequitable broadcast time to each candidate (able to be verified by ABC political broadcasting requirements) and carried a link to the webpages of three of the candidates, one of which (that of the declared winner) carried no political authorisation statement as required of all political advertising by the Australian Electoral Commission. ..." "... the winner's website carried a You Tube attachment (again without authorisation statement) and media releases from the candidate's extensive 12 year state political career, each of which was a political advertisement and all of which was available during the mandatory, electronic media 'blackout period.'" It is also there stated: "Possibly a breach of both the Westminister System and the Australian Constitution , the ABC has an election coverage policy document that apportions 'free-to-air' radio coverage time to candidates ..." The statement as provided by the petition is a combination of assertions, submissions and conclusions based upon unstated facts and possibly a limited number of identifiable facts. So expressed, it is difficult to isolate " the facts relied on " from the balance of the other statements also made. Although it may be preferable for a petitioner to clearly isolate " the facts relied on " from such other statements as he may wish to make, s 355(a) itself does not expressly impose that obligation. But the present difficulty of identifying " those facts with sufficient particularity " does little to assist the identification of " the subject matter or matters on which " the Petitioner relies. But, whatever may be the other powers that the Court may have, it is not considered that it has power to make such orders as are sought in the petition in orders (1) and (2). In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 736 to 737, Hayne J made the following observations when declining like relief: The petition [10] In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election [ss 211 and 211A], and what has become known as voting above or below the line [s 209(1)]. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected. ... The claims for relief other than avoidance of the election [12] The petitioner says, at the start of his petition, that he is not a lawyer and asks the Court to give him whatever assistance is necessary to ensure "the lawful and democratic conclusion" of the matter. But even giving the most generous construction to his petition, it is plain that much of the relief sought is relief of a kind that cannot be given. ... The publicity claim [17] It is not clear what the petitioner means when he says that the Court should "informally instruct" the chiefs of staff of media bodies about how they should act in the future. If he seeks to have the Court give some advice to these persons, it is enough to say that this is not the Court's function. If he seeks to have the Court make some order about future conduct, there is no basis in the Act for concluding that the Court has any power to do so. There being no power to do so, the further questions that might then have arisen about framing an order with sufficient certainty need not be considered. The relief claimed cannot be given. This decision has since been applied to decline like relief in Gunter v Hollingworth [2002] FCA 943 at [44] per Cooper J.


case_title: Hudson v Entsch [2005] FCA 300

case_text: there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J.


case_text: even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J.


case_title: Kelly v Campbell [2002] FCA 1125

case_text: 355(a) requires a petition to " set out the facts relied on " and s 355(aa) further provides that (subject to s 358(2)) those facts are to be set out " with sufficient particularity to identify the specific matter or matters on which the petitioner relies ... ". These two requirements are directed to two different objectives — one objective is to require a petitioner to " set out the facts relied on "; the other objective is to ensure that from those facts " the specific matter or matters on which the petitioner relies " may be identified " with sufficient particularity ". The " question whether ... there are sufficient facts set out in " the petition is a question " distinct from the question whether there has been sufficient particularisation of the specific matters relied on to justify the relief sought, as required by s355(aa) ": Kelly v Campbell [2002] FCA 1125 at [15] per Madgwick J. The " very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned.


case_text: relationship between these two requirements, however, involves some " obscurity ". Dawson J in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 addressed the position as follows: It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on. The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity [references omitted]. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The court would then be required to try the petition even though on its face it could not succeed. Despite that " obscurity ", it is " clear from s 358(1) that no proceedings may be had on the petition unless it sets out the facts relied on to invalidate the election ": McClure v Australian Electoral Commission [1999] HCA 31 at [23] , [1999] HCA 31 ; 163 ALR 734 at 739 per Hayne J. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J. Moreover, inherent in the contention of the Petitioner is perhaps the further contention that the Corporation owed a duty to extend to him greater publicity than he maintains he received. But there is no such duty. In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 740 to 741, Hayne J concluded: [26] ... the petitioner makes essentially two complaints: the first about media coverage (or the lack of it) and the second about the "above the line" voting system. I deal with them in turn. [27] The first complaint depends upon the contention that there has been some breach of an implied freedom of communication in relation to the political and electoral process. As counsel for the respondent pointed out, much of this part of the petition is copied from the report of the argument of Sir Maurice Byers QC in Australian Capital Television Pty Ltd v The Commonwealth [(1992) 177 CLR 106 at 109 to 113]. Central to the petitioner's case in this respect is the assertion in his petition that representative and responsible government: requires that every person and every political candidate have the entitlement to make his or her views known on political issues not only between elections but also especially during election campaigns. It requires that all political candidates have an equal opportunity to be elected and that the voting process should unfairly disadvantage no political candidate. That assertion must then be understood in light of other provisions of the petition in which it is made plain that the conduct of which complaint is made is the decision of persons associated with radio or television stations not to give coverage to the petitioner's platform or press releases. [28] The short answer to this first complaint is that the freedom of communication implied in the Constitution is not an obligation to publicise. The freedom is a freedom from governmental action; it is not a right to require others to provide a means of communication [ Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520]. The petitioner's case depends upon him having some right to require others to disseminate his views. But as was said by the court in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; [(1997) 189 CLR 520 at 560]: " ss 7 and 24 and the related sections of the Constitution necessarily protect that freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors. Those sections do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power . As Deane J said in Theophanous [ Theophanous v Herald & Weekly Times Ltd [1994] HCA 46 ; (1994) 182 CLR 104 at 168. See also at 146 to 148], they are "a limitation or confinement of laws and powers [which] gives rise to a pro tanto immunity on the part of the citizen from being adversely affected by those laws or by the exercise of those powers rather than to a 'right' in the strict sense". In Cunliffe v Commonwealth [1994] HCA 44 ; [(1994) 182 CLR 272 at 326], Brennan J pointed out that the freedom confers no rights on individuals and, to the extent that the freedom rests upon implication, that implication defines the nature and extent of the freedom. His Honour said [1994] HCA 44 ; [(1994) 182 CLR 272 at 327]: 'The implication is negative in nature: it invalidates laws and consequently creates an area of immunity from legal control, particularly from legislative control.'" The petition as filed fails to comply with s 355(a) and the relief as sought in the Corporation's summons should thus be granted. Nor does it comply with s 355(aa). No occasion therefore arises to consider what relief may otherwise have been available to the Petitioner had he filed a petition which complied with s 355(a). But it may be of importance for the Petitioner to know that orders 1 and 2 as sought in his petition would not have been made even had he complied with what he may wrongly perceive to be the " technical " requirements imposed by s 355. But, whatever may be the other powers that the Court may have, it is not considered that it has power to make such orders as are sought in the petition in orders (1) and (2). In McClure v Australian Electoral Commission [1999] HCA 31 , 163 ALR 734 at 736 to 737, Hayne J made the following observations when declining like relief: The petition [10] In his petition, the petitioner makes two kinds of complaint. The first is a complaint about the lack of media coverage of his candidacy in the election and of his platform of policies. The second is a complaint that he was disadvantaged by the application of those provisions of the Act that govern group and individual voting tickets in a Senate election [ss 211 and 211A], and what has become known as voting above or below the line [s 209(1)]. He seeks declarations that the half Senate election for Victoria was void and that none of the six candidates returned was duly elected. ... The claims for relief other than avoidance of the election [12] The petitioner says, at the start of his petition, that he is not a lawyer and asks the Court to give him whatever assistance is necessary to ensure "the lawful and democratic conclusion" of the matter. But even giving the most generous construction to his petition, it is plain that much of the relief sought is relief of a kind that cannot be given. ... The publicity claim [17] It is not clear what the petitioner means when he says that the Court should "informally instruct" the chiefs of staff of media bodies about how they should act in the future. If he seeks to have the Court give some advice to these persons, it is enough to say that this is not the Court's function. If he seeks to have the Court make some order about future conduct, there is no basis in the Act for concluding that the Court has any power to do so. There being no power to do so, the further questions that might then have arisen about framing an order with sufficient certainty need not be considered. The relief claimed cannot be given. This decision has since been applied to decline like relief in Gunter v Hollingworth [2002] FCA 943 at [44] per Cooper J.


case_title: Mitchell v Bailey (No 2) [2008] FCA 692 , 169 FCR 529

case_text: 352(1) defines an " illegal practice " as meaning " a contravention of this Act or the regulations ". Given this definition, the continued use of the term " illegal practice " (it has been correctly observed) is " unfortunate " as " [i]t is apt to suggest conduct which involves moral turpitude and conduct which is criminal in nature ": Mitchell v Bailey (No 2) [2008] FCA 692 at [9] , [2008] FCA 692 ; 169 FCR 529 at 534 per Tracey J. The substance of the Petitioner's concerns seems to be, at least in part, that there has been a contravention of s 328A of the 1918 Act. So much seems to follow from his reference in his petition to the " link to the webpages of three of the candidates, one of which ... carried no political authorisation statement ... ". Section 328A provides as follows: Publication of electoral advertisements on the Internet (1) A person commits an offence if: (a) either: (i) the person publishes an electoral advertisement on the Internet; or (ii) the person causes, permits or authorises an electoral advertisement to be published on the Internet; and (b) the electoral advertisement is intended to affect voting in an election; and (c) the electoral advertisement is paid for by the person or another person; and (d) the name and address of the person who authorised the advertisement do not appear at the end of the advertisement. Penalty: 10 penalty units. (2) Subsection (1) does not apply if the matter published on the Internet forms part of a general commentary on a website. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code ). (3) Section 15.2 of the Criminal Code (extended geographical jurisdiction — category B) applies to an offence against subsection (1). (4) In this section: " address " of a person means an address, including a full street address and suburb or locality, that is located in Australia at which the person can usually be contacted during the day. It does not include a post office box. Though he does not identify the provision directly, the Petitioner's concern seems be that there has been a contravention of s 328A and that such a contravention constitutes an " illegal practice " as defined by s 352(1). If established, s 360(3) confers the power to declare the election void.


case_title: Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34


case_title: Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641


case_text: there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J. Order 3 stands in a different position. The order as sought is an order " that the election be declared null and void ", namely the election to which the petition relates — the by-election held in Lyne on 6 September 2008. It was not disputed that the Petitioner was enrolled and entitled to vote in that by-election. Although reference was made by the Petitioner in submissions to an election in another electorate, the Mayo electorate, no question arises as to declaring void the result in any election other than that of Lyne. It was not disputed that the Petitioner was entitled to claim the relief he sought in order (3): Muldowney v Australian Electoral Commission [1993] HCA 32 ; (1993) 178 CLR 34 ; Pavlekovich-Smith v Australian Electoral Commission [1993] HCA 37 ; (1993) 115 ALR 641 ; Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 Abbotto v Australian Electoral Commission (1997) 44 ALD 481. See also: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [8] to [9] per Kiefel J.


case_outcome: discussed

case_text: 20 April 2009, directions were made in this Court to accommodate the hearing of the summons in advance of the hearing of the petition. A like course, it may be noted, was pursued by Her Honour Justice Bennett in Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395. To entertain the Corporation's summons in advance of the hearing leaves outstanding a request made by the Petitioner for the production by the Corporation of a substantial number of documents. The production of those documents, upon the case for the Corporation, is unnecessary and irrelevant. Detailed written submissions have been filed, including submissions filed by the Australian Electoral Commission. The course pursued at the hearing of the summons on 30 April 2009 was to invite the Petitioner to put all such submissions as he thought appropriate in advance of hearing submissions from the Corporation. In that manner an understanding could be gleaned as to both the issues sought to be raised by the petition and how the Petitioner envisaged further materials could be called in aid of those issues. The primary submission of the Corporation and the Commission, it is considered, should prevail. As they correctly contend, two fundamental difficulties confronting the Petitioner are insurmountable, namely: (a) there is an absence of any statement of those facts necessary to establish any " illegal practice "; and, even assuming that such facts could be distilled from the petition; (b) there is an absence of any facts upon which the Court could be " satisfied that the result of the election was likely to be affected " within the meaning of s 362(3). Even such a rudimentary fact as the person who committed the " illegal practice " is left unidentified in the petition. Section 355(a) does not require that there be " set out " in the petition the particular provision of the Commonwealth Electoral Act which has been contravened; but it does require there to be " set out ": those facts which identify who it was that published or caused to be published, permitted or authorised the publication of the webpage (s 328A(1)(a)(i) or (ii)); and those facts which might establish that the electoral advertisement was intended to affect the voting in an election (s 328A(1)(b)). None of those facts, or facts relevant to the other elements of s 328A , are " set out ". During oral submissions, the Petitioner identified the person who it was said published the electoral advertisement as Mr Oakeshott — but the facts have to be in the petition and not oral submissions. And there is also an absence of any fact set forth in the petition upon which any view at all could be formed as to the effect of any such practice upon the election. Those facts must also be set forth in the petition: Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395. Bennett J there concluded: [15] Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied. [16] I accept the Commission's submissions that the statutory threshold has not been established. The petition does not set out the essential facts relied on to invalidate the election as required by s 355(a). Nor is there any further evidence upon which the Court could now be " satisfied that the result of the election was likely to be affected " by the illegal practice to which the Petitioner refers. An Affidavit as filed on behalf of the Corporation establishes that the results of the election for the seat of Lyne were that the First Respondent, being the candidate who won the election , polled 47,306 votes (63.8% of the vote); the Petitioner polled 400 votes (0.54% of the vote). The " very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned.


case_text: 360 sets forth the powers of the Court as follows: Powers of Court (1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: (i) To adjourn; (ii) To compel the attendance of witnesses and the production of documents; (iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents; (iv) To examine witnesses on oath; (v) To declare that any person who was returned as elected was not duly elected; (vi) To declare any candidate duly elected who was not returned as elected; (vii) To declare any election absolutely void; (viii) To dismiss or uphold the petition in whole or in part; (ix) To award costs; (x) To punish any contempt of its authority by fine or imprisonment. (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election. (4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so. Section 362 is directed to findings that may be made as to " bribery " or " undue influence " and " any illegal practice ". Those terms are defined by s 352(1). Section 368 provides that all decisions of the Court are to be " final and conclusive and without appeal " and are " not to be questioned in any way ". This section does not infringe s 73 of the Constitution : Sue v Hill [1999] HCA 30 , 199 CLR 462 ; Smith v Australian Electoral Commission [2009] FCAFC 43.


case_text: 360 sets forth the powers of the Court as follows: Powers of Court (1) The Court of Disputed Returns shall sit as an open Court and its powers shall include the following: (i) To adjourn; (ii) To compel the attendance of witnesses and the production of documents; (iii) To grant to any party to a petition leave to inspect in the presence of a prescribed officer the rolls and other documents (except ballot-papers) used at or in connexion with any election and to take, in the presence of the prescribed officer, extracts from those rolls and documents; (iv) To examine witnesses on oath; (v) To declare that any person who was returned as elected was not duly elected; (vi) To declare any candidate duly elected who was not returned as elected; (vii) To declare any election absolutely void; (viii) To dismiss or uphold the petition in whole or in part; (ix) To award costs; (x) To punish any contempt of its authority by fine or imprisonment. (2) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient. (3) Without limiting the powers conferred by this section, it is hereby declared that the power of the Court to declare that any person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connexion with the election. (4) The power of the Court of Disputed Returns under paragraph (1)(ix) to award costs includes the power to order costs to be paid by the Commonwealth where the Court considers it appropriate to do so. Section 362 is directed to findings that may be made as to " bribery " or " undue influence " and " any illegal practice ". Those terms are defined by s 352(1). Section 368 provides that all decisions of the Court are to be " final and conclusive and without appeal " and are " not to be questioned in any way ". This section does not infringe s 73 of the Constitution : Sue v Hill [1999] HCA 30 , 199 CLR 462 ; Smith v Australian Electoral Commission [2009] FCAFC 43. And, even if the requirement imposed by s 355(a) was to be met, s 362 " provides exhaustively as to the general grounds on which an election may be invalidated or declared void ": Hudson v Lee [1993] HCA 58 ; (1993) 177 CLR 627 at 631 per Gaudron J. Toohey J has observed that Her Honour's reasons for reaching this conclusion were " persuasive " but found it unnecessary to express a concluded view: Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409. See also: Sue v Hill [1999] HCA 30 at [209] to [210] [1999] HCA 30 ; , 199 CLR 462 at 540 to 541 per McHugh J. More recently, however, it has been observed that a submission proceeding " from the premise that s 362(3) is an exhaustive statement of the circumstances in which the court may declare an election void ... may very well be stated too broadly ": McClure v Australian Electoral Commission [1999] HCA 31 at [25] , [1999] HCA 31 ; 163 ALR 734 at 740 per Hayne J.


case_text: relationship between these two requirements, however, involves some " obscurity ". Dawson J in Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 addressed the position as follows: It would seem that the facts which para (a) requires to be set out are the essential facts from which, if proved, it might be concluded that the election or return was invalid. Although the precise distinction between para (a) and para (aa) of s 355 is a matter of some obscurity, it appears that under para (a) the essential facts may be stated with a degree of generality and it is para (aa) which requires sufficient particularity to identify the specific matter or matters relied on. The dividing line between what is essential and what amounts merely to particularity may sometimes be difficult to draw. What is clear, however, is that the facts which para (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity [references omitted]. That must be so for otherwise s 355(a) in conjunction with s 358(1) would achieve little. If it were not so, a petitioner might allege insufficient facts to justify relief under the Act but nevertheless contend that, as they were the only facts upon which he or she relied, the requirements of para (a) were satisfied. The court would then be required to try the petition even though on its face it could not succeed. Despite that " obscurity ", it is " clear from s 358(1) that no proceedings may be had on the petition unless it sets out the facts relied on to invalidate the election ": McClure v Australian Electoral Commission [1999] HCA 31 at [23] , [1999] HCA 31 ; 163 ALR 734 at 739 per Hayne J. But there is no power to relieve a petitioner of the requirements of s 355(a): Robertson v Australian Electoral Commission [1993] HCA 50 ; (1993) 116 ALR 407 at 409 per Toohey J. Nor is there any ability for the Petitioner to now seek to amend the petition to remedy his failure to comply with s 355(a). After the period nominated for the filing of the petition by s 355(e), there is thereafter no power to amend: Rudolphy v Lightfoot [1999] HCA 61 at [10] , [1999] HCA 61 ; 197 CLR 500 at 507. Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ there observed: [12] The provision with respect to the 40 day period plainly is designed to produce criteria which are objective and certain and reflect the public interest in resolving expeditiously and with finality questions respecting disputed elections and returns. Further, there is a body of authority which predates the 1989 Act and establishes that, once the 40 day period has expired, it is not possible thereafter to amend the petition which has been filed within time so as to cure any non-compliance with the requirement of s 355. The reasoning underlying those decisions is that to permit amendment would in effect permit evasion of the requirement that the petition in a final form be filed within the 40 day period. Those cases do not in terms specify the 40 day requirement as a jurisdictional requirement but ... that is how the matter should be understood. See also: Sykes v Australian Electoral Commission [1993] HCA 36 ; (1993) 115 ALR 645 at 648 to 649 per Dawson J; Hudson v Entsch [2005] FCA 300 at [4] per Dowsett J. If the essential facts necessary to the conclusion of invalidity of the election in question are not set out, no proceeding may be had upon the petition: Wheeley v The Australian Electoral Commissioner [2005] FCA 473 at [12] per Kiefel J. The primary submission of the Corporation and the Commission, it is considered, should prevail. As they correctly contend, two fundamental difficulties confronting the Petitioner are insurmountable, namely: (a) there is an absence of any statement of those facts necessary to establish any " illegal practice "; and, even assuming that such facts could be distilled from the petition; (b) there is an absence of any facts upon which the Court could be " satisfied that the result of the election was likely to be affected " within the meaning of s 362(3). Even such a rudimentary fact as the person who committed the " illegal practice " is left unidentified in the petition. Section 355(a) does not require that there be " set out " in the petition the particular provision of the Commonwealth Electoral Act which has been contravened; but it does require there to be " set out ": those facts which identify who it was that published or caused to be published, permitted or authorised the publication of the webpage (s 328A(1)(a)(i) or (ii)); and those facts which might establish that the electoral advertisement was intended to affect the voting in an election (s 328A(1)(b)). None of those facts, or facts relevant to the other elements of s 328A , are " set out ". During oral submissions, the Petitioner identified the person who it was said published the electoral advertisement as Mr Oakeshott — but the facts have to be in the petition and not oral submissions. And there is also an absence of any fact set forth in the petition upon which any view at all could be formed as to the effect of any such practice upon the election. Those facts must also be set forth in the petition: Smith v Australian Electoral Commission [2008] FCA 953 , 104 ALD 395. Bennett J there concluded: [15] Whether or not the requirements of s 355(a) are complied with is to be determined solely by reference to what appears on the face of the petition ( Wheeley v Australian Electoral Commission [2005] FCA 473 at [13] per Kiefel J). In the present case there are no facts set out or assertions made in the petition as to the likely outcome of the election other than the possibility that, because of a preference deal, the quota or a Senate position may have been achieved for some other, unspecified, group. The facts alleged emphasise the difficulty of "unscrambling" the Senate results if a group were to be removed. As Dawson J said in Sykes at 649, it is not sufficient for a petitioner to allege insufficient facts to justify relief under the Act but nevertheless contend that as they were the only facts upon which he or she relied, the requirements of paragraph (a) were satisfied. [16] I accept the Commission's submissions that the statutory threshold has not been established. The petition does not set out the essential facts relied on to invalidate the election as required by s 355(a). Nor is there any further evidence upon which the Court could now be " satisfied that the result of the election was likely to be affected " by the illegal practice to which the Petitioner refers. An Affidavit as filed on behalf of the Corporation establishes that the results of the election for the seat of Lyne were that the First Respondent, being the candidate who won the election , polled 47,306 votes (63.8% of the vote); the Petitioner polled 400 votes (0.54% of the vote).


case_text: " very minimum assertion necessary to constitute a fact which will 'invalidate [an] election or return' for the purposes of s 355(a) of the Act is one raising a matter or matters by which 'the election was likely to be affected' ": Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 at 225 per Gaudron J. See also: Smith v Australian Electoral Commission [2008] FCA 953 at [9] and [14], 104 ALD 395 at 397 and 398. For the purposes of s 362(3) and the phrase " likely to be affected ", in Kelly v Campbell [2002] FCA 1125 , Madgwick J observed: [20] ... It seems to me that the facts set out in the petition must be such, if true, as would indicate that there is a real chance that the result of the election would have been different if the allegedly illegal practice had not occurred. It is in that sense that I think the word "likely" should be understood. The present petition has not provided that " very minimum assertion " in respect to any fact or facts that may be discerned. Expressed more generally as a duty of impartiality or a duty to treat candidates fairly, rather than as an " illegal practice ", the requirement imposed by s 355(a) nevertheless remains — and has not here been satisfied. The statement that the Corporation " breached its impartiality " is considered to be more a conclusion than a fact. Even if it were characterised as a fact, there is no further particularisation or specification of those other facts necessary to establish a " breach ". The same conclusions may also be reached in respect to the statements that " [t]he ABC was responsible for an inequitable candidate profile " and " gave inequitable broadcast time to each candidate ". These statements are but " bare assertions " that are incapable of satisfying s 355(a). In Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 , Gaudron J, when addressing a petition which made allegations of undue influence, concluded at 227: None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act . There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition "set out ... facts" relied on to justify the relief sought. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a). See also: Whitby v Garlett [2000] FCA 245 at [28] , [2000] FCA 245 ; 98 FCR 585 at 594 to 595 per French J (as His Honour then was). The mere fact that one candidate's profile may be lengthier than another's does not of itself establish any " inequitable " treatment.


case_title: Whitby v Garlett [2000] FCA 245 , 98 FCR 585

case_text: more generally as a duty of impartiality or a duty to treat candidates fairly, rather than as an " illegal practice ", the requirement imposed by s 355(a) nevertheless remains — and has not here been satisfied. The statement that the Corporation " breached its impartiality " is considered to be more a conclusion than a fact. Even if it were characterised as a fact, there is no further particularisation or specification of those other facts necessary to establish a " breach ". The same conclusions may also be reached in respect to the statements that " [t]he ABC was responsible for an inequitable candidate profile " and " gave inequitable broadcast time to each candidate ". These statements are but " bare assertions " that are incapable of satisfying s 355(a). In Webster v Deahm [1993] HCA 38 ; (1993) 116 ALR 223 , Gaudron J, when addressing a petition which made allegations of undue influence, concluded at 227: None of the particulars given with respect to the allegation of undue influence reveals anything which is capable of being viewed as a contravention of s 327 of the Act or of s 28 of the Crimes Act . There is, thus, nothing more than a bare assertion of undue influence. It is well established that a bare assertion of that kind does not satisfy s 355(a) which requires that the petition "set out ... facts" relied on to justify the relief sought. So far as the petition consists of a bare assertion of undue influence, it must be dismissed for non-compliance with s 355(a). See also: Whitby v Garlett [2000] FCA 245 at [28] , [2000] FCA 245 ; 98 FCR 585 at 594 to 595 per French J (as His Honour then was). The mere fact that one candidate's profile may be lengthier than another's does not of itself establish any " inequitable " treatment.


case_text: Section 60 Trade Practices Act specifically applies to conduct in connection with the supply or possible supply of goods or services to a consumer or the payment for goods or services by a consumer, and therefore is founded in an existing (or possible) contractual relationship between the corporation and the consumer. In the event that the consumer becomes bankrupt, it follows that any legal action arising from the contractual relationship between the consumer and the corporation vests in the trustee in bankruptcy. Although there is little case law interpreting this section: • The word 'undue', which qualifies 'harassment', suggests that what is done must, having regard to the circumstances, extend beyond that which is acceptable or reasonable ( ACCC v Maritime Union of Australia [2001] FCA 1549 ; [2001] 114 FCR 472 per Hill J at 486). • 'Harassment' in this context means persistent disturbance or torment ( ACCC v Maritime Union of Australia at 485). 'Undue harassment' therefore means that conduct which amounts to harassment will only amount to a contravention of the section where what is done goes beyond the normal limits which, in the circumstances, society would regard as acceptable or reasonable and not excessive or disproportionate ( ACCC v Maritime Union of Australia at 485). Accordingly, it follows that the section contemplates that some harassment of a consumer by a corporation in connection with the supply or possible supply of goods or services or in respect of payment for goods or services by a consumer can be tolerated and is not unlawful. • 'Coercion' carries with it the connotation of force or compulsion or threats of force or compulsion negating choice or freedom to act ( Hodges v Webb [1920] 2 Ch 70 at 85-87 per Peterson J, ACCC v Maritime Union of Australia at 485-486).


case_text: A view has been expressed that the purpose of s 31A is to introduce a lower standard for summary dismissal and strikeouts under O 20 r 2 and O 11 r 6: cf Duncan v Lipscombe Child Care Services Inc [2006] FCA 458 at [5-8] ; Wearne v Southern Cross University [2006] FCA 1033 at [13] and Australian and International Pilots Association v Qantas Airways Limited [2006] FCA 1441 at [23] . It is unnecessary for me to decide this issue in the context of this matter. In my view the application of the applicant filed 7 April 2006 can be dismissed in accordance with either s 31A Federal Court Act or O 20 r 2 Federal Court Rules , and I should so order. ORDER 1. The proceedings in QUD130/2006 commenced by application filed 7 April 2006 by the applicant be dismissed. 2. The applicant pay the costs of and incidental to the proceedings to be taxed if not agreed. I certify that the preceding one hundred and forty-seven (147) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 7 December 2006 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: CD Coulsen Solicitor for the Respondent: Whittle Lawyers Date of Hearing: 4 August 2006 Date of Judgment: 7 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1708.html


case_text: Plainly, both s 51AA and 52 Trade Practices Act apply to conduct of a corporation in trade or commerce . The enactment of s 51AA introduced into the legislation statutory notions of unconscionable conduct founded in courts of equity (see for example Blomley v Ryan [1954] HCA 79 ; (1956) 99 CLR 362, Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447). As Kirby J said in Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd [2003] HCA 18 ; (2003) 197 ALR 153 at 173 in relation to s 51AA: 'Such equitable categories developed in order to protect the integrity of the contracting process where a party is induced to act or enter a transaction due to weakness or illegitimate pressure, and does so without full information or appreciation of the extent or nature of the transaction or the way it affects that party's interests and choices.'


case_text: This is not a case where parts of the pleadings could simply be struck out and the action remain on foot. As Lander J observed in A ustralian Competition and Consumer Commission v Fox Symes & Associates Pty Ltd [2005] FCA 1071: 'If a Statement of Claim is shown to disclose no reasonable cause of action, then it will be appropriate, rather than to strike out individual paragraphs of the Statement of Claim, to strike out the whole of the Statement of Claim.' (at [107]) 139 Although ordinarily a party should be given an opportunity to replead in accordance with the rules ( Turner v The Bulletin Newspaper Co Pty Ltd [1974] HCA 25 ; (1974) 131 CLR 69 per Barwick CJ (Mason J agreeing) at 81; cf Fox Symes at [95]) in my view it would be unjust to the respondents to allow the applicant yet another opportunity to re-plead. In particular I note: • Greenwood J had earlier dismissed an application by the applicant for interlocutory relief in this matter on the basis that, inter alia , the applicant lacked standing to bring the application, but noted that it was possible that the applicant could formulate a statement of claim involving rights which had not vested in the trustee in bankruptcy ( Rogers v Asset Loan Co Pty Ltd & Ors [2006] FCA 434 at [48] ) • on 15 June 2006 the applicant filed a Statement of Claim • on 19 June 2006 the applicant filed an Amended Statement of Claim, although this amended statement of claim was not provided to the respondents until 29 June 2006 when the parties appeared in Court • when this matter came before me for the notice of motion to be heard on 29 June 2006, it became apparent that the applicant would in fact need to file a further amended statement of claim. I ordered that the applicant be given 21 days in which to file a further amended statement of claim • the applicant did so in compliance with this order, but then also filed a second further amended statement of claim 10 days later. 140 As Mason CJ and Brennan and Toohey JJ observed in Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589: '... Although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end.' (cf Fox Symes at [109]).


case_text: In my view, to the extent that this is a cause of action under ss 51AA and 52 (and in my view the relevance of s 51AA is dubious) it is not one in respect of which the applicant has suffered personal injury within the meaning of s 116(2)(g) Bankruptcy Act . This is because, notwithstanding the claim that the applicant has suffered personal injury: a. Other than a statement that the applicant suffered personal injury, no injury is particularised or connection drawn between how a failure to warn and advise the applicant caused the applicant to suffer personal injury. A bare allegation that the applicant has suffered personal injury or wrong, without particularising the injury or wrong, or without stating the connection between the conduct complained of and the claimed personal injury or wrong, is not adequate to provide the applicant with standing to pursue litigation in the very limited circumstances of his bankruptcy. Particularising the damage and establishing the nexus would be necessary in any event. As explained in well-known comments of Bowen LJ in Ratcliffe v Evans (1892) 2 QB 524 at 532: 'The necessity of alleging and proving actual temporal loss with certainty and precision in all cases of the sort has been insisted upon for centuries... In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.' (note similar comments by Dillon LJ in Lonrho plc v Fayed (No 5) [1994] 1 All ER 188 at 194, Branson J in Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 at [15] , Ryan J in PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 682 at [18] - [19] , and Smart AJ in Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373 at [115] ) b. The respondents are entitled to know the case they are to meet ( Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517; Bare v Pulham [1982] 148 CLR 568; Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286, Barclays Bank v Boulter [1999] UKHL 39 ; [1999] 1 WLR 1919 at 1923; and note O 12 r 1(1) Federal Court Rules ) and the pleadings must be sufficiently clear, so that the case against the respondents is clear. c. If the claim is to be categorised as a claim in negligence which has resulted in financial loss, it properly lies with the trustee in bankruptcy: Faulkner v Bluett . d. If the claim is to be categorised as a breach of fiduciary duty or trust it properly lies with the trustee in bankruptcy. As pointed out by RD Nicholson J in Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 468: 'In relation to s 58(1)(a) 'the property of the bankrupt' as defined in par 116(1)(a) would include any choses in action which the applicants had to enforce equitable rights. Such rights, being property being divisible among the creditors of the bankrupt, would vest in the official trustee. If the equitable rights arose after the sequestration order it would for the same reasons be 'property that is divisible amongst the creditors of the bankrupt' within s 58(6) and thus property to which s 58(1)(b) applies so that again the exercise of the rights would vest in the official trustee...' (note also Wily (as Trustee of the Bankrupt Estate of Fuller) v Fuller [2000] FCA 1512 ; Pascoe, in the matter of Hudson [2006] FCA 785) e. If the claim is categorised as a breach of ss 51AA or 52 , it is claim with respect to a commercial transaction which has now vested in the trustee in bankruptcy.


case_title: Barclays Bank v Boulter [1999] UKHL 39 ; [1999] 1 WLR 1919


case_title: Bare v Pulham [1982] 148 CLR 568


case_text: In relation to the applicant's allegation that the respondents intentionally caused the applicant to become a bankrupt (par 456), it is clear from the statement of claim that the applicant bitterly resents conduct in which he alleges the respondents engaged which he believes caused his bankruptcy, and indeed bitterly resents the fact of his bankruptcy. However the applicant has become a bankrupt through lawful process in the Federal Court and has throughout that process had opportunities to challenge the circumstances leading to his bankruptcy. I respectfully adopt comments of McInerney J in Campbell v Metway Leasing Ltd (1998) ATPR 41-630. In that case the appellants pleaded undue harassment or coercion by the respondents in relation to, inter alia , issuing two bankruptcy notices where there were allegedly no debts due. His Honour said at 40,916-7: 'In my opinion, however, the institution of legal proceedings which are not themselves vexatious, frivolous or an abuse of process, and therefore liable to be summarily dismissed under Part 13 rule 5 of the Supreme Court Rules 1970 (NSW), cannot constitute "undue" harassment or coercion for the purposes of section 55 (Fair Trading Act 1987 (NSW), being the NSW equivalent of section 60 Trade Practices Act ) as a plaintiff, within these bounds, has a legitimate right of recourse to the Courts for the determination of their claim or grievance.' 85 To the extent that the third respondent allegedly threatened the applicant with 'a life long vendetta' (par 461), and in relation to the applicant's allegations concerning the alleged theft of files by the third and fourth respondents (par 470), the applicant has not pleaded: a. how the third and fourth respondents, who are individuals, are liable under s 60 Trade Practices Act (assuming that it this section the applicant is relying on in relation to this allegation). b. whether the applicant claims that the corporate respondents are liable in relation to this claim. c. if s 60 is relied on, how the conduct in question is relevant to the provision of goods and services or payment for goods and services as required by the legislation. 86 Further, in relation to the alleged theft of the applicant's files claimed in par 470, I repeat my comments earlier in relation to Count 6 concerning: a. whether this conduct constitutes undue harassment in breach of s 60 and b. the fact that unlawful access of the respondents to the applicant's home and his possessions potentially gives rise to cause of action in the State courts in tort.


case_title: Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 ; (1983) 151 CLR 447


case_text: Further, although the applicant complains of being 'starved' of working capital he needed for personal use, business use and expansion (par 450): (a) In the absence of contractual obligations of the respondents to provide the applicant with funds (as discussed earlier in relation to Count 10), they are not obliged to do so. The applicant has not, for example, pleaded that the only source of funding for his activities was the respondents and that accordingly the situation was such that their refusal to advance funds was unconscionable (cf Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988) or that the respondents had promised to advance the funding and then had not (cf Lorimer v State Bank of NSW , unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991, and Commonwealth Bank of Australia v Spira [2002] NSWSC 905). (b) Irrespective of any contractual obligation, any right of action in relation to the provision of working capital to the bankrupt is now a matter for the applicant's trustee in bankruptcy.


case_text: Further, although clearly s 52 Trade Practices Act is of broad application it is not open-ended. As pointed out by the High Court in Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 ; (1990) 169 CLR 594: '...the section is not intended to impose, by a side-wind, an overlay of Commonwealth law upon every field of legislative control into which a corporation might stray for the purposes of, or in connection with, carrying on its trading or commercial activities. What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character.' (Mason CJ, Deane, Dawson & Gaudron JJ at 604) 31 Sections 51AA and 52 Trade Practices Act apply to interactions between corporations and other parties in the commercial context, involving commercial transactions. To the extent that these legislative provisions are relevant in this context (and there are possible issues with respect to their relevance in respect of conduct in relation to financial services, which I need not discuss for the purposes of this judgment), it is difficult to comprehend a case where these sections would be relevant and where, in the event of the bankruptcy of a person complaining about breach of either section, the trustee in bankruptcy of the complainant would not be the appropriate party to institute litigation.


case_text: As Greenwood J noted in his judgment ([2006] FCA 434 at [4]) with respect to the claims of the applicant against the respondents, the most immediate difficulty confronting the applicant is the question of whether he has standing in connection with this litigation, on the basis that a sequestration order in respect of the applicant's estate was made on 23 February 2005. His Honour explained: • the effect of s 58 Bankruptcy Act , which vests the property of the bankrupt in the registered trustee (at [36]) • the meaning of 'property of the bankrupt' for the purposes of s 58 , which is defined as 'the property divisible among the bankrupt's creditors; and any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt' (at [36]) • the fact that property divisible amongst the creditors for the purposes in s 116 includes 'the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his discharge' (at [37]) • that only the trustee in bankruptcy is entitled to seek remedial orders in respect of property, contractual rights, security interests, and related entitlements (at [43]) • that the exemption in s 116(2)(g) with respect to wrongs done to the bankrupt is limited to those cases where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, as distinct from where the damages or part of them are to be estimated by reference to the bankrupt's rights of property (at [45]-[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601, Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Faulkner v Bluett (1981) 52 FLR 115 at 119) • that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by the bankrupt in respect of a recognised cause of action remains with the applicant under s 116(2)(g) Bankruptcy Act (at [46]) and • that in the case before his Honour the claims were not claims for damages founded upon immediate reference to the distress and anxiety caused to the bankrupt without reference to his rights of property (at [49]); further the applicant's claim for final relief was a consequential claim necessarily connected with the applicant's interests in property (at [50]).


case_title: Daemar v Industrial Commission of New South Wales (1988) 79 ALR


case_title: Duncan v Lipscombe Child Care Services Inc [2006] FCA 458


case_title: Ex parte Vine in re Wilson (1878) 8 Ch D 364

case_text: A claim in respect of defamation of the injured party so far as it concerns his credit, character and reputation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson (1878) 8 Ch D 364, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128, Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594. If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts.


case_title: Faulkner v Bluett (1981) 52 FLR 115

case_text: As Greenwood J noted in his judgment ([2006] FCA 434 at [4]) with respect to the claims of the applicant against the respondents, the most immediate difficulty confronting the applicant is the question of whether he has standing in connection with this litigation, on the basis that a sequestration order in respect of the applicant's estate was made on 23 February 2005. His Honour explained: • the effect of s 58 Bankruptcy Act , which vests the property of the bankrupt in the registered trustee (at [36]) • the meaning of 'property of the bankrupt' for the purposes of s 58 , which is defined as 'the property divisible among the bankrupt's creditors; and any rights and powers in relation to that property that would have been exercisable by the bankrupt if he or she had not become a bankrupt' (at [36]) • the fact that property divisible amongst the creditors for the purposes in s 116 includes 'the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his discharge' (at [37]) • that only the trustee in bankruptcy is entitled to seek remedial orders in respect of property, contractual rights, security interests, and related entitlements (at [43]) • that the exemption in s 116(2)(g) with respect to wrongs done to the bankrupt is limited to those cases where the essential cause of action is the personal injury done to the person or feelings of the bankrupt, as distinct from where the damages or part of them are to be estimated by reference to the bankrupt's rights of property (at [45]-[47]; cf Daemar v Industrial Commission of New South Wales (1988) 79 ALR 591 at 601, Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 at 721, Faulkner v Bluett (1981) 52 FLR 115 at 119) • that a claim with respect to a wrong done to the applicant characterised by reference to the anxiety, stress and pain felt by the bankrupt in respect of a recognised cause of action remains with the applicant under s 116(2)(g) Bankruptcy Act (at [46]) and • that in the case before his Honour the claims were not claims for damages founded upon immediate reference to the distress and anxiety caused to the bankrupt without reference to his rights of property (at [49]); further the applicant's claim for final relief was a consequential claim necessarily connected with the applicant's interests in property (at [50]). 38 In my view, to the extent that this is a cause of action under ss 51AA and 52 (and in my view the relevance of s 51AA is dubious) it is not one in respect of which the applicant has suffered personal injury within the meaning of s 116(2)(g) Bankruptcy Act . This is because, notwithstanding the claim that the applicant has suffered personal injury: a. Other than a statement that the applicant suffered personal injury, no injury is particularised or connection drawn between how a failure to warn and advise the applicant caused the applicant to suffer personal injury. A bare allegation that the applicant has suffered personal injury or wrong, without particularising the injury or wrong, or without stating the connection between the conduct complained of and the claimed personal injury or wrong, is not adequate to provide the applicant with standing to pursue litigation in the very limited circumstances of his bankruptcy. Particularising the damage and establishing the nexus would be necessary in any event. As explained in well-known comments of Bowen LJ in Ratcliffe v Evans (1892) 2 QB 524 at 532: 'The necessity of alleging and proving actual temporal loss with certainty and precision in all cases of the sort has been insisted upon for centuries... In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.' (note similar comments by Dillon LJ in Lonrho plc v Fayed (No 5) [1994] 1 All ER 188 at 194, Branson J in Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 at [15] , Ryan J in PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 682 at [18] - [19] , and Smart AJ in Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373 at [115] ) b. The respondents are entitled to know the case they are to meet ( Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517; Bare v Pulham [1982] 148 CLR 568; Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286, Barclays Bank v Boulter [1999] UKHL 39 ; [1999] 1 WLR 1919 at 1923; and note O 12 r 1(1) Federal Court Rules ) and the pleadings must be sufficiently clear, so that the case against the respondents is clear. c. If the claim is to be categorised as a claim in negligence which has resulted in financial loss, it properly lies with the trustee in bankruptcy: Faulkner v Bluett . d. If the claim is to be categorised as a breach of fiduciary duty or trust it properly lies with the trustee in bankruptcy. As pointed out by RD Nicholson J in Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 468: 'In relation to s 58(1)(a) 'the property of the bankrupt' as defined in par 116(1)(a) would include any choses in action which the applicants had to enforce equitable rights. Such rights, being property being divisible among the creditors of the bankrupt, would vest in the official trustee. If the equitable rights arose after the sequestration order it would for the same reasons be 'property that is divisible amongst the creditors of the bankrupt' within s 58(6) and thus property to which s 58(1)(b) applies so that again the exercise of the rights would vest in the official trustee...' (note also Wily (as Trustee of the Bankrupt Estate of Fuller) v Fuller [2000] FCA 1512 ; Pascoe, in the matter of Hudson [2006] FCA 785) e. If the claim is categorised as a breach of ss 51AA or 52 , it is claim with respect to a commercial transaction which has now vested in the trustee in bankruptcy. 50 The Court of Appeal therefore permitted the bankrupt to maintain the action. This decision was noted in Faulkner v Bluett at 119. 51 To the extent that the applicant has an action in respect of trespass to land and goods (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be the State courts.


case_title: Franklins Selfserve Pty Ltd v Austotel Pty Ltd , unreported, New South Wales Supreme Court, Needham J, 10 November 1988


case_title: Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490


case_title: Hodges v Webb [1920] 2 Ch 70


case_text: A claim in respect of defamation of the injured party so far as it concerns his credit, character and reputation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson (1878) 8 Ch D 364, Wilson v United Counties Bank Ltd [1920] AC 102 at 111 and 128, Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd (1984) 55 ALR 594. If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 107 At best, the only cause of action I can identify from this Count is a possible defamation action by the applicant against the respondents (pars 619-622). As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts. 112 As I explained earlier in this judgment in relation to Count 8, a claim in respect of defamation remains with the injured party as it relates to a personal injury: ex parte Vine in re Wilson; Wilson v United Counties Bank Ltd ; Holmes v Goodyear Tyre & Rubber Co (Aust) Ltd . If this did give rise to a cause of action (and I make no comment as to this), in the absence of a Trade Practices Act claim or any other matter which enlivens the Court's jurisdiction, the only place it could be pursued would be in the State courts.


case_text: Recently the Full Court in Humane Society International Inc v Kyodo Senpaku Kaisha Ltd [2006] FCAFC 116 observed that the Court will assume jurisdiction and adjudicate a dispute where: the jurisdiction of the Federal Court is engaged by an action in respect of subject-matter with which the Court can deal, and the action is instituted by an applicant who has standing, and the action is not oppressive, vexatious or otherwise an abuse of process... (per Black CJ and Finkelstein JJ at [10]) 134 In my view, the case before me exhibits none of these attributes. To the extent that the statement of claim pleads causes of action at all: • the applicant lacks standing in almost all Counts on account of his bankruptcy • even if the applicant did have standing under s 116(2)(g) Bankruptcy Act because he had rights to recover damages or compensation in respect of personal injuries or wrongs, throughout the statement of claim he has consistently failed to particularise the personal injury or wrong done to him and failed to draw a nexus between the conduct of the respondents and any personal injury or wrong done to him • such causes of action as the applicant retains personally including potentially damages for defamation and trespass are, in my view, pursuable only in the State Courts, not the Federal Court. 135 As I noted earlier in this judgment, the function of pleadings is to state with sufficient clarity the case that must be met.


case_title: Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223


case_title: Lonrho plc v Fayed (No 5) [1994] 1 All ER 188


case_title: Lorimer v State Bank of NSW , Court of Appeal, unreported, New South Wales Court of Appeal, Priestley, Handley JJA and Kirby P, 5 July 1991


case_title: Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373


case_text: As Mason CJ and Brennan and Toohey JJ observed in Munnings v Australian Government Solicitor [1994] HCA 12 ; (1994) 120 ALR 586 at 589: '... Although a plaintiff is often granted leave to replead if a statement of claim is struck out, there are some cases where the plaintiff so misconceives the cause of action that the action ought to be brought to an end.' (cf Fox Symes at [109]).


case_text: In my view the applicant lacks standing in respect of this claim. Any claims in respect of the matters pleaded are vested in the trustee in bankruptcy. My reasons are as follows: a. Sections 51AA and 52 Trade Practices Act apply to conduct of corporations. The only conduct referred to in this Count is that of the third respondent, Mr Hare who is obviously an individual. b. The statement of claim does not, in respect of ss 51AA or 52 , draw a nexus between the alleged conduct of Mr Hare and the corporate respondents. Unlike in relation to the claim that the applicant was harassed by Mr Hare acting as agent for all respondents in breach of s 60 , no responsibility for alleged unconscionable conduct or misleading or deceptive behaviour by Mr Hare is attributed to the corporate respondents. Accordingly, there is no evidence that the corporate respondents acted unconscionably towards the applicant within the meaning of s 51AA in terms of this Count. Similarly, to the extent that the applicant was misled by Mr Hare, this appears to be conduct for which the other respondents were not responsible (note Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44 ; (1982) 149 CLR 191 per Gibbs CJ at 199 and Mason J at 211). c. Although the applicant claims that the third respondent, as agent for all of the respondents, coerced him contrary to s 60 , the conduct in breach of s 60 is neither pleaded nor particularised. It is not possible to ascertain from the pleading how the respondents allegedly acted in breach of s 60 other than claims by the applicant that he was misled. This does not in my view in any way entail harassment or coercion. d. Similarly to Count 2 the claim of the applicant again is in substance in relation to financial injury. In a somewhat telling statement, the applicant in par 260 claims 'relief from the payment of principal and interest and costs claimed by the respondents due to the deception and unconscionable conduct of the respondents'. Again, this is illustrative of the fact that the applicant seems to fail to appreciate that he is now a bankrupt, and any payments of this nature are now the concern of his trustee in bankruptcy. e. Although the applicant claims compensation for personal injury in par 261, the nature of the personal injury is not particularised, nor is a nexus drawn between the alleged conduct of the respondents and any injury he has suffered. I refer to comments in this regard I made earlier in this judgment in relation to Count 1. 43 In my view this Count is embarrassing as: a. There is nothing to suggest that the person identified in the count was a witness in any matter before any court. b. There is nothing to suggest that the person identified in the count had anything of relevance to say in respect of any issues in contention between the applicant and the respondents. c. The 'court case' in par 271 is not identified. d. No personal injury or wrong suffered by the applicant is identified and accordingly it is impossible to comprehend the standing of the applicant in respect of this matter. 44 In my view the material in this Count does not give rise to any cause of action, including any cause of action in respect of which the applicant has standing. In relation to particularisation of damage, I refer to comments in this regard I made earlier in this judgment in relation to Count 1. 45 Similarly to Count 2, although the applicant claims that he suffered 'personal injury' in respect of this conduct of the respondents, the substance of this complaint is that he suffered financial injury in respect of transactions involving the Charles Street factory development site 'as a result of being the victim of fraud and deception' (par 295). Wrongs identified by the applicant in this Count include that contrary to promises and any authority 'the Trustees' sold the site (par 283); the respondents deprived the applicant of profit and his interest in the property (pars 284, 286-290); various deceptions prevented the applicant paying debts to the respondents (pars 284 and 292); the fifth and sixth respondents sold the property for $1.477 million; and had the respondents not deceived the applicant he would not have entered into the agreement (par 293). In my view the applicant lacks standing in respect of this claim because: a. Although the applicant claims that the respondents breached s 60 Trade Practices Act , conduct in breach of s 60 is not articulated. b. To the extent that a claim exists under ss 51AA and 52 Trade Practices Act in respect of these facts, it clearly belongs with the applicant's trustee in bankruptcy. c. No personal injury or wrong is articulated, no nexus is identified between the alleged conduct and personal injury or wrong suffered by the applicant, and I refer to comments I made earlier in respect of Count 1 in this regard. 46 Similarly to Count 2, although the applicant claims that he suffered 'personal injury' in respect of this conduct of the respondents, the substance of this complaint is that he suffered financial injury in respect of transactions involving the Robert Street house subdivision site 'as a result of being defrauded, tricked and the victim of crime' (par 315). Claims with respect to financial damage have clearly vested in the applicant's trustee in bankruptcy.


case_title: Pascoe, in the matter of Hudson [2006] FCA 785


case_title: PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 682


case_text: In my view, to the extent that this is a cause of action under ss 51AA and 52 (and in my view the relevance of s 51AA is dubious) it is not one in respect of which the applicant has suffered personal injury within the meaning of s 116(2)(g) Bankruptcy Act . This is because, notwithstanding the claim that the applicant has suffered personal injury: a. Other than a statement that the applicant suffered personal injury, no injury is particularised or connection drawn between how a failure to warn and advise the applicant caused the applicant to suffer personal injury. A bare allegation that the applicant has suffered personal injury or wrong, without particularising the injury or wrong, or without stating the connection between the conduct complained of and the claimed personal injury or wrong, is not adequate to provide the applicant with standing to pursue litigation in the very limited circumstances of his bankruptcy. Particularising the damage and establishing the nexus would be necessary in any event. As explained in well-known comments of Bowen LJ in Ratcliffe v Evans (1892) 2 QB 524 at 532: 'The necessity of alleging and proving actual temporal loss with certainty and precision in all cases of the sort has been insisted upon for centuries... In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.' (note similar comments by Dillon LJ in Lonrho plc v Fayed (No 5) [1994] 1 All ER 188 at 194, Branson J in Kirela Pty Ltd v Westfield Holdings Ltd [2002] FCA 1223 at [15] , Ryan J in PFD Food Services Pty Ltd v NAFDA Pty Ltd [2003] FCA 682 at [18] - [19] , and Smart AJ in Markisic v Dept of Community Services of New South Wales & Ors [2005] NSWSC 1373 at [115] ) b. The respondents are entitled to know the case they are to meet ( Gould and Birbeck and Bacon v Mount Oxide Mines Ltd (in liq) [1916] HCA 81 ; (1916) 22 CLR 490 at 517; Bare v Pulham [1982] 148 CLR 568; Banque Commerciale SA (en liquidation) v Akhil Holdings Ltd [1990] HCA 11 ; (1990) 169 CLR 279 at 286, Barclays Bank v Boulter [1999] UKHL 39 ; [1999] 1 WLR 1919 at 1923; and note O 12 r 1(1) Federal Court Rules ) and the pleadings must be sufficiently clear, so that the case against the respondents is clear. c. If the claim is to be categorised as a claim in negligence which has resulted in financial loss, it properly lies with the trustee in bankruptcy: Faulkner v Bluett . d. If the claim is to be categorised as a breach of fiduciary duty or trust it properly lies with the trustee in bankruptcy. As pointed out by RD Nicholson J in Pridmore v Magenta Nominees Pty Ltd (1999) 161 ALR 458 at 468: 'In relation to s 58(1)(a) 'the property of the bankrupt' as defined in par 116(1)(a) would include any choses in action which the applicants had to enforce equitable rights. Such rights, being property being divisible among the creditors of the bankrupt, would vest in the official trustee. If the equitable rights arose after the sequestration order it would for the same reasons be 'property that is divisible amongst the creditors of the bankrupt' within s 58(6) and thus property to which s 58(1)(b) applies so that again the exercise of the rights would vest in the official trustee...' (note also Wily (as Trustee of the Bankrupt Estate of Fuller) v Fuller [2000] FCA 1512 ; Pascoe, in the matter of Hudson [2006] FCA 785) e. If the claim is categorised as a breach of ss 51AA or 52 , it is claim with respect to a commercial transaction which has now vested in the trustee in bankruptcy. 48 To the extent that the applicant claims compensation on the ground that he was owed a fiduciary duty by the respondents which they breached, or on the ground that the respondents breached trust or contractual obligations by withholding money, the claim vests in his trustee in bankruptcy: Pridmore v Magenta Nominees Pty Ltd . Further, to the extent that a claim exists under ss 51AA and 52 Trade Practices Act in respect of these facts, it clearly belongs with the applicant's trustee in bankruptcy.


case_title: Ratcliffe v Evans (1892) 2 QB 524


case_text: The applicant also complains about the failure of the respondents to make payments to him pursuant to a Deed (pars 407-412). Refusal to advance funds in circumstances where a party is obliged to do so clearly falls into the realms of breach of contract: Rivkin & Co Ltd v Young (1996) 22 ACSR 589; Vision Telecommunications Pty Ltd & Ors v Australia and New Zealand Banking Group Ltd [2001] WASC 139 at [73] . There is no evidence before this Court supporting an allegation of breach of contract by the respondents. To the extent that there was such evidence, the claim would vest in the applicant's trustee in bankruptcy.