case_text: In Polyaire Pty Ltd v K-Aire Pty Ltd [2005] HCA 32 ; (2005) 221 CLR 287 the High Court considered the concept of fraudulent imitation under the 1906 Act. Their Honours held (at [36]) that in order to find a fraudulent imitation it was not necessary to show that the differences between alleged infringement and design had been made to disguise the copying. In this respect their Honours at [28] qualified the statement in Malleys Limited v J W Tomlin Pty Ltd [1961] HCA 77 ; (1961) 180 CLR 120 at 127. In Polyaire their Honours at [17] accepted the submission that the application of a "fraudulent imitation" requires that the application of the design be with knowledge of the existence of the registration and of the absence of consent to its use, or with reason to suspect those matters, and that the use of the design produces what is an "imitation" within the meaning of para (a) [of s 30(1)]. This... is the knowledge, belief or intent which renders the conduct fraudulent. In a footnote to that passage their Honours say: See as to the permissible inference by a jury of fraud against a party who "wilfully shuts his eyes" the judgment of Lord Esher MR in English and Scottish Mercantile Investment Co Ltd v Brunton [1892] 2 QB 700 at 707-708. 114 As the submissions of Black & Decker appear to accept, the knowledge, belief or intent which does or does not render the conduct fraudulent is that of the Chinese manufacturer. It is the manufacturer who is said to have "applied" the Design outside Australia. I see no reason to disbelieve the evidence of Mr Coates. It seems inherently unlikely that the Chinese manufacturer had knowledge of the Australian Designs Act; still less that the Design was registered under it. There is no basis for finding that the manufacturer had reason to suspect such registration. The onus on Black & Decker to establish fraudulent imitation has not been discharged.


case_outcome: cited

case_title: R v Wheeler (1819) 2 B & Ald 345

case_text: Much of this argument overlapped with GMCA's case on description, utility, novelty and obviousness. To the extent that it did not, it must be rejected. The alleged invention did not involve an abstract idea, like that considered in Grant v Commissioner of Patents (2006) 69 IPR 221. It concerned machines and their operation and thus "something of a corporeal and substantial nature": R v Wheeler (1819) 2 B & Ald 345 at 350, cited in Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) [2007] HCA 21 ; (2007) 72 IPR 447 at [66] ( Lockwood 2 ).


case_text: However, s 127(1) is not mandatory. Section 127(4) provides that the section does not limit the ways in which a company may execute a document (including a deed). As to authority to execute, persons dealing with BDA, including BDI, were entitled to assume that the company's constitution had been complied with and that a director had been duly appointed and had authority to exercise the powers customarily performed by a director of a similar company: s 129(1) , (3), the statutory equivalent of the Rule in Turquand's Case ( Royal British Bank v Turquand (1856) 6 E & B 327). Section 128(1) provides that a person is entitled to make the assumptions in s 129 and a person is not entitled to make an assumption under s 129 if they knew the assumption was incorrect. While there is no evidence in the present case as to the powers of a director of a similar company to BDA, the onus is on GMCA to establish the contrary. In any event, it seems inherently likely that a director of a company similar to BDA, a wholly owned subsidiary of an overseas company, would have authority to execute on the company's behalf a document of the kind executed by Ms Armstrong. A degree of informality is to be expected. The reality is that Ms Armstrong was not, in the time-honoured expression, engaged on a frolic of her own. 145 In relation to BDI, Mr Pratt was authorized, by virtue of his office, to execute the Deed. The Deed was clearly in the ordinary course of business of BDI in that it dealt with the licensing of intellectual property, which seems to have been BDI's only business. 146 Black & Decker's case is that because the December 2006 Deed made the March 2006 letter of termination "null and void ab initio", the 1987 Agreement, as varied by the 2005 Deed, continued uninterrupted. As a consequence, BDA is to be treated as having the status of exclusive licensee from at least the date of the 2005 Deed (its case that such status existed from the 1987 Agreement has been rejected for the reasons already given).


case_text: However, statutory rights to damages or an account of profits conferred on owners or exclusive licensees of intellectual property only have effect for the period that a plaintiff in fact has the relevant status. Thus in Colbeam Palmer Ltd v Stock Affiliates Pty Ltd [1968] HCA 50 ; (1968) 122 CLR 25 Windeyer J held (at 36) that an account of profits should be taken to terminate as at the date the plaintiff assigned the trade mark in question and (at 41) that the assignee, having been joined as a plaintiff, should be entitled to an account of profits from the date of assignment. Similarly in Stack v Brisbane City Council (1996) 35 IPR 296 at 302 Drummond J held that where an equitable title had been converted into legal title by assignment, the assignor would have the right to an account of profits made by the infringers in the period up to the assignment and that the assignee alone would have the right to any profits made by the infringers after that date. Likewise, if an election were made for damages the assignee is the proper claimant for that relief, but only as from the date its equitable ownership became converted by registration into full legal and beneficial ownership of the patent.


case_text: Section 17 of the Designs Act 1906 requires that a design be new or original to enable it to be registered. It must be "substantially novel or substantially original, having regard to the nature of the article to which the design is applied": Ullrich Aluminium Pty Ltd v Dias Aluminium Products Pty Ltd [2006] FCAFC 119 ; (2006) 153 FCR 437 at [3] . GMCA's expert Mr Brown considered nine prior saw blades as follows: (i) Canadian Patent No. 636160; (ii) US Patent No. 3,802,079; (iii) US Patent No. 2,621,689; (iv) Extract from "Popular Mechanics Encyclopaedia of Tools and Techniques" by Oldham, 1994, page 132; (v) "Power Hand Tool Handbook", pages 40 41, 1980 by Case; (vi) Bourke Patent US No. 5,755,293; (vii) Black & Decker European Patent No. 0949 032; (viii) pages 94, 95 and 106 from "The Complete Book of Tools" by Jackson and Day; (ix) Disston No. 12 and D23 lightweight saws. 105 With the exception of the Disston saw blades all of these references were provided to Mr Brown by GMCA's solicitors. None of the references contain a blade with a notch at the front or the same shape as the Design. The Disston blades lack the notch at the front of the Design and any shank at the rear and an angled front edge. 106 Black & Decker's expert Professor Redmond considered the references and was of the view that none were substantially similar visually to the Design. In my view none of the references showed blades which were substantially similar visually to the Design.


case_text: The principles are stated by Gummow J in Wanem Pty Ltd v John Tekiela [1990] FCA 372 ; (1990) 19 IPR 435 at 440, cited with approval by the Full Court in Foggin v Lacey (2003) 57 IPR 225 at [13]. Gummow J said: ...(i) first impressions are important in determining whether there is an infringement of a design, (ii) an obvious imitation is one which is not the same as the registered design but is a copy apparent to the eye notwithstanding slight differences, (iii) the question must be looked at as one of substance and by examining the essential features of the design, (iv) a closer correspondence between the registered design and the alleged infringing design is necessary to satisfy the test of obvious imitation than that of fraudulent imitation, (v) precise mathematical comparisons or matters of measurements or ratios, which form no part of the mental picture which the eye conveys to the brain of shape or configuration suggested by the design, are not to be applied as the test of infringement; appearance to the eye is the critical issue, and (vi) questions of infringement must not be determined by a narrow or overly technical approach in comparison between the design and the alleged infringement, lest the registration be sapped of its worth to the registered owner.


case_outcome: considered

case_text: ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] .


case_outcome: applied

case_text: power conferred by s 47A(1) of the Act is, subject to the Court and judge being satisfied that the conditions of s 47C(1) are met in relation to the video-link, an exercise of discretion that would not be ordered unless the Court or judge was satisfied that recourse to such a link was, in the particular circumstances of the case, appropriate. So understood, what was done in other cases is only of limited assistance, if any. So much was recognised by the Supreme Court of New South Wales (Austin J) in Australian Securities & Investments Commissioner v Rich & Ors (2004) 49 ACSR 578 at [16], although his Honour went on to observe that there are broadly two approaches exhibited by the observations in the cases one generally in favour of the use of audiovisual absent any impediment telling against its use; and the other a more cautious approach requiring good reason to be shown before leave to give evidence by means of video-link was granted. At [19] his Honour observed: Apart from dealing with obvious practical matters such as comparative costs and the difficulty created by differences in time zones, the cases touch upon some recurring themes: the appropriateness of audiovisual facilities for centrally important evidence, the assessment of credit where evidence is given by audiovisual link, difficulties raised by the use of documents for cross-examination in audiovisual evidence, technological difficulties due to lapse of time between transmission and receipt of questions and answers, and difficulties posed by the use of audiovisual facilities where the cross-examination is lengthy. There are also comments on the general approach to be taken by the court to a proposal for evidence to be adduced using audiovisual facilities. I shall refer briefly to each of these matters.


case_outcome: referred to

case_title: Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29


case_text: ACCC then made the following submissions as to the general principles against which the motion should be determined: (1) The power to make the direction is conferred by s 47A(1) of the Act. That subsection provides: The Court or a Judge may, for the purpose of any proceeding, direct or allow testimony to be given by videolink, audiolink or other appropriate means. (2) Section 47C provides: (1) The Court or a Judge must not exercise the power conferred by subsection 47A(1) or section 47B in relation to a video link unless the Court or the Judge is satisfied that the following conditions are met in relation to the video link: ... (b) the place at which the remote person is located is equipped with facilities (for example, television monitors) that enable all eligible persons present in that place to see and hear each eligible person who is present in the courtroom or other place where the Court or the Judge is sitting; ... (6) For the purposes of the application of this section to a particular proceeding, eligible persons are such persons as the Court or a Judge considers should be treated as eligible persons for the purposes of that proceeding. (Emphasis in original) (3) The discretion in s 47A is to be exercised judicially. (4) It is to be exercised recognising 'that there are deficiencies when evidence is taken by videolink when compared with evidence given viva voce' per Spender J in Australian Competition and Consumer Commission v World Netsafe (No. 1) [2002] FCA 526 ; (2002) 119 FCR 303 at 305. His Honour continued by quoting from Giles CJ of the Commercial Division of the Supreme Court of New South Wales, in Sunstate Airlines (Qld) Pty Ltd v First Chicago Australia Securities Ltd (unreported, NSWSC, 11 March 1997) at [4]: Cross-examination may be more difficult when video evidence is taken because documents have to be transmitted or produced in an unfamiliar manner, because of the delay in voice transmission, or for other reasons and the effectiveness of cross-examination as a weapon in the fight for truth should not be unduly hindered. And in many cases the court is assisted in fact by observance of what is misleadingly called the demeanour of the witnesses upon which the taking of video evidence may impact. Those observations of Spender J were cited with approval by a Full Court of this Court in Odhiambo v Minister for Immigration & Multicultural Affairs [2002] FCAFC 194 ; (2002) 122 FCR 29 at [97] . I agree with these observations. They illustrate the point that the choice in every case cannot be determined solely by reference to general principles because it is the application of those principles to the facts and circumstances of the particular case which must determine the choice; in the circumstances of a particular case, a matter may point one way and in another case it may point another way. At the end of the day, the exercise of the discretion as to what is appropriate in a particular case will involve a balancing exercise as to what will best serve the administration of justice consistently with maintaining justice between the parties: see Giles CJ in Sunstate Airlines at [4]. The Present Case In the present case, I have come to the conclusion that I should decline to make the direction for the following primary reasons: (1) There is no evidence before me that the Cooling Off Witnesses are not prepared to come to Sydney for the hearing or, through illness or otherwise, are unable to come. I accept that they are not compellable, but 9 of the 12 are still employees of StoresOnline and as StoresOnline will be bearing the cost of all travel and accommodation for all Cooling Off Witnesses, there is no financial disincentive for them in coming. References to their losing commission income while travelling and during their short stay here carries little weight, if any, particularly as it could no doubt be adjusted in their favour, by StoresOnline treating it as a 'one week off', in the 'two weeks on'/'one week off' arrangement for Sales Staff deposed to by Mr Klotz. (2) In my view, the overall savings in cost, by taking the evidence of the Cooling Off Witnesses by video-link rather than having them come here to give their evidence viva voce , will be at best marginal and at worst more expensive. The savings deposed to by Mr Klotz are, in the scheme of things, not significant and do not take into account all the costs associated with and all the costs which will arise as a result of, recourse to a video-link. It will, as submitted by the ACCC, require the ACCC to have an agent or agents at the remote location or locations to assist in the identification of documents during the course of cross-examination; it will undoubtedly lengthen the time it takes to complete the cross-examination of the Cooling Off Witnesses each day will at best be a half day due to time zone differences with attendant increase in the costs incurred for the additional time of counsel and instructing solicitors; and it would be common ground that these latter costs would quickly absorb and overtake any savings as between travel and accommodation costs on the one hand and the direct cost of utilising videoconference facilities on the other. (3) Clearly there are issues of credit involved as between the evidence in chief embodied in the affidavits of the Cooling Off Witnesses and the evidence in chief embodied in the affidavits of the ACCC's witnesses who purchased StoresOnline packages at the relevant Workshops in Australia going to the factual issue of whether or not the purchasers of such packages were told, at any time up to and including the point of sale, about the 'cooling off period'. In my view, it is in the interests of maintenance of justice between the parties that that evidence, from both sides, be given in person. (4) It is also clear that the cross-examination of the Cooling Off Witnesses will go beyond their evidence in relation to the 'cooling off period' issue. They will also be cross-examined in relation to other allegations of breaches contained in the statement of claim, as well as on the systems and procedures in place with a view to ensuring compliance with the Undertaking. So understood, their evidence is, contrary to the submission of StoresOnline, centrally important to the outcome of the case. (5) The anticipated size of the Court Book suggests that the Cooling Off Witnesses will be taken to a large number of documents in the course of their cross-examination. I accept that the management of such a task can be effectively handled whilst utilising videoconference facilities albeit, as mentioned above, at an additional significant cost. At one level then, this consideration is central. But where, as here, issues of credit are involved, it impels a conclusion in favour of the evidence being given in person. There are other matters which I have weighed into the balancing exercise in reaching the conclusion I have, in addition to the primary matters referred to in [15] above. On their own, they are not critical. However, as part of the balancing exercise they are, in my view, relevant; for example, the Cooling Off Witnesses are all people who regularly travel, both domestically and internationally, for or on behalf of StoresOnline. While having them travel from the United States to Australia and return will involve them in some 15 hours of travel each way within a relatively short timeframe, this is something to which they are accustomed in the course of their duties. It could not be seen as imposing on them an unusual personal or physical burden. The motion must be dismissed with costs. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Edmonds. Associate: Dated: 6 July 2009 Counsel for the Applicant: Mr S White SC with Mr T Brennan Solicitor for the Applicant: Corrs Chambers Westgarth Counsel for the Respondents: Mr D Fagan SC with Mr E Hyde Solicitor for the Respondents: Deacons Date of Hearing: 24 June 2009 Date of Judgment: 6 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/717.html


case_text: No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion.


case_outcome: followed

case_title: Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301


case_outcome: distinguished

case_title: Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475


case_title: James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442


case_title: State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146


case_text: The current position is that the Full Court on Thursday 1 June 2006 ordered that the first and third applicant provide security for the costs of the first and second respondent of the proceeding up to the end of the first day of the trial in the amount of $150 000 by way of unconditional bank guarantee in that sum or otherwise to the satisfaction of the District Registrar of the Queensland District Registry of the Court: Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93. I understand that security for costs was provided on Thursday 22 June 2006. 6 For the purposes of this judgment, I shall assume that the costs order of the Full Court was exhausted on Monday 17 July 2006 which was the first day of the trial, subsequently adjourned. 7 In his written submissions supplemented by oral submissions this morning in Court, Mr McQuade for the respondents submitted in summary as follows: 1. The sum sought by way of security for costs is referrable to the estimate of Mr James McLellan in his affidavit sworn 23 March 2006 and filed 27 March 2006. 2. Otherwise, the respondents rely on submissions and material previously before this Court and the Full Court. 3. The financial position of the first and third applicants is unchanged from April 2006. 4. There is no evidence that security would frustrate litigation and no evidence that those who stand behind the companies and who stand to benefit from litigation are also without means. 5. The onus is on the first and second applicants to raise impecuniosity of those whom litigation would benefit and to prove the facts upon which a contention is founded. 6. The trial will take two weeks. The parties are proposing to call 15 witnesses. 7. The respondents have not adduced any evidence that would weigh against an order for security. 8. There is evidence that the second applicant had an expectation of obtaining further funds to provide by way of security for costs. 9. There has been no delay by the respondents as to the notice of motion for security for costs. It was filed the day following an unsuccessful mediation between the parties. 11. No stay is sought if the first and third applicants fail to provide the security. Rather, if I were to order that security be provided, the applicants contend that the notice of motion should be adjourned to the day after the security is required to be provided, or later in the day upon which the security is required to allow the respondents to make further submissions regarding any further orders, which may be appropriate if that security is not provided. SUBMISSIONS OF THE APPLICANTS 8 In response, Mr Perry on behalf of the applicants has submitted, in essence: 1. Neither the first nor the third applicant has sufficient assets to meet any potential costs order, nor are they able to satisfy any order for security for costs. Accordingly the threshold for the making of an order has been established consistently with the decision of the Full Court in these proceedings. 2. However the question before the Court is whether the Court should exercise its discretion in this matter, and the key issue in relation to the exercise of discretion is the delay in serving the notice of motion for the security for costs on the applicants. In particular: (a) the notice was served on Friday 3 November 2006, and no notice had been given previously as to an intention to bring such an application (b) the impact of the delay is to be considered in a relative way, that is by considering its potential impact upon the hearing itself (c) if an order is to be made it cannot be satisfied by 4.00 pm Friday 10 November 2006 (d) notwithstanding that the motion does not seek a stay, it would be an extraordinary result for security to be ordered without there being some consequence attached to a failure to provide it (e) if a more realistic timeframe is given for the provision of security, the trial ought not to commence until the expiry of that time. SECURITY FOR COSTS 9 The Court has discretion under s 56 of Federal Court of Australia Act 1976 (Cth) to order an applicant to a proceeding to give security for costs, and, if security or further security is not given in accordance with an order under this section, the Court may order that the proceeding be dismissed (s 56(4)). As pointed out by the Full Court in Bell Wholesale Co Pty Ltd v Gates Export Corporation (1984) 2 FCR 1 the discretion to make orders under s 56 must be exercised judicially, but that is the only relevant limitation (at 3). Although O 28 r 3 sets out matters the Court may take into account in considering an application for security for costs, this is not an exhaustive statement of the cases in which an order for security for costs can be made ( Bell Wholesale at 3). THE CASE BEFORE ME 10 In my view in the case before me, relevant factors to take into consideration are as follows: 1. The fact that the Full Court on 1 June 2006 has previously ordered the applicants to pay security for costs in this matter, following broad agreement that the amount of $150 000 would be appropriate security for the costs of the respondent parties to the primary proceeding at the end of the first day of the trial ( Sunstate Orchards Pty Ltd v Citrus Queensland Pty Ltd [2006] FCAFC 93 at [5] ). 2. I note the submissions of Mr McQuade that there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means. In Bell Wholesale , the Full Court emphasised that it is for the party against whom security is sought to show the impecuniosity of those who stand behind the company or who will benefit from litigation. Although Mr Perry submitted that it would not be possible for the second applicant, who presumably will be funding the security for costs, to satisfy an order by tomorrow afternoon, there is no indication that the second applicant is impecunious or would be unable at all to satisfy an order by a later date. However: 3. The amount sought by way of security is substantial, namely $87 832, which, if I make the orders sought by the respondents, would need to be paid by tomorrow afternoon. This is a substantial sum to be raised and paid on such short notice. 4. The notice of motion has been filed in extreme proximity to the commencement of the trial without explanation. Indeed, the notice of motion was filed last Friday, mentioned on Monday and heard today in respect of an application for security for costs to be paid by tomorrow before a trial commences on Monday next. The fact that I can make reference to these days without dates illustrates the extreme tightness of the timing in the case before me. I note a similar matter which came before Toohey J in James v Australia and New Zealand Banking Group Ltd (1985) 9 FCR 442 when an application for security for costs was made one month before the commencement of the trial. His Honour said in that case: 'It is well established that an application for security for costs should be made promptly... The matter is now so close to a hearing and so much time and costs have been expended that it would be a grave injustice to the applicants if they were ordered to provide security for costs when it is apparent that they cannot comply with such an order.' (at 446) 5. The November trial date of this matter has been known by all parties since late July 2006. At the directions hearing of 28 July 2006 I indicated to the parties the importance of compliance with Court directions in this matter and the need to be prepared for trial in November. As pointed out recently by Jessup J in Acohs Pty L Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279 at [61] - [63] , citing authorities including Buckley v Bennell Design and Constructions Pty Ltd (1974) 1 ACLR 301 at 308, it is an accepted principle in the ordering of security for costs that such an application should be made promptly. Although I know that the respondents did not file an application for security for costs until after it was clear that a mediated settlement of this matter would not take place, the success or otherwise of the mediation would not have prevented the respondents applying at an earlier date for security for costs of the trial, particularly if payment was sought to be made after the date by which medication was ordered to take place. While I note that the respondents had earlier sought and obtained an order for security for pre-trial costs, no satisfactory explanation has been provided as to why an application for security for trial costs has been brought on what is, in effect, the eve of the trial. 6. There have already been other significant delays in this matter in such respects as the hearing of the trial itself (adjourned from July 2006 to November 2006) and mediation of the matter (orders for which were made on 9 August 2006 for the mediation to take place by no later than 20 October 2006, but which did not occur until 2 November 2006). Obviously, as pointed out by the High Court in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146, issues of case management do not take precedence over issues of justice. However, the fact that this case has already been characterised by significant delays is undesirable from the perspective of the parties and the Court, and there is an obvious risk that an order for security for costs which proves unrealistic for the applicants to comply with would delay the trial even further. 7. The respondents have sought no consequences as part of an order such as a stay in the event that security for costs are not paid before the commencement of the trial. As observed by Toohey J in James : 'Despite the submission of counsel for the first respondent, an order by way of security without a corresponding stay would be, in reality, no order at all, for no sanction would attach to non-compliance.' (at 446) 8. Although I said earlier in this judgment there is no evidence that the security would frustrate the litigation or that those who stand behind the companies and who stand to benefit from litigation are also without means, in cases where similar submissions have been successful (for example in Checked-Out Pty Ltd v Eagle Eye Inspections Pty Ltd [2001] FCA 1475 at [26] ) there were also no clear issues of delay or proximity to the hearing date as there are in this case. The issue here is not that there is a suggestion of impecuniosity of the second applicant, it is whether the delay in bringing the application for security for costs and the proximity of this application to the trial date militate against the exercise of my discretion to grant an order for security for costs in this case. 11 In my view, notwithstanding that the applicants have been ordered at an earlier date to pay security for pre-trial costs, the delays and the proximity to the hearing date of this application for trial costs in my view weigh against the exercise of a discretion in favour of the respondents in relation to this notice of motion.


case_title: Acohs Pty Ltd v Ucorp Pty Ltd & Ors [2006] FCA 1279


case_text: First, in my opinion, to relitigate the events of 27 March 2006 is an abuse of process and the pursuit of the claim for unlawful discrimination would involve a relitigation of the events of 27 March 2006. The Court has a wide jurisdiction to protect a party from an abuse of process constituted by an attempt to relitigate a case already disposed of: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378 at 392-393 per Mason CJ, Deane and Dawson JJ. It seems clear on the authorities that a proceeding may constitute an abuse of process because it involves an attempt to relitigate a dispute already judicially determined even though none of the doctrines of res judicata , issue estoppel in the strict sense or an Anshun estoppel are made out: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434 at 443 [25] ; Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [58] - [70] per French J; SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410 at 423 [37]-[39] per French J (with whom Tracey J agreed at 437 [114]); Brock v Minister for Home Affairs (2008) 170 FCR 434 at 447 [74] per Lindgren and Tracey JJ. The claim for unlawful discrimination represents an attempt to relitigate the events of 27 March 2006 and is an abuse of process. I am mindful of the fact that, as events transpired, the claim for unlawful discrimination could not have been brought in the earlier proceeding, but that does not dissuade me from reaching the conclusion that I have expressed. The fact is that it was the applicant who decided to institute the earlier proceeding the day after the relevant events, to lodge his complaint with the Commission about three weeks after the relevant events, and to wait until 14 July 2006 before advising the Court that he had lodged a complaint with the Commission.


case_text: An alternative ground for the conclusion that I should not disqualify myself from hearing the present application on the ground of apparent bias is this. The test for apparent bias is well-known and it is "whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide": Johnson v Johnson (2000) 201 CLR 488 at 492 [11] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. In this case, if there is apparent bias, it takes the form of prejudgment. That form of bias was considered by the High Court in Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288. In assessing that form of apparent bias in this case, the nature of the respondents' application is important. The respondents' application is not one in which I was called upon to make findings as to credit or, indeed, to make any findings of fact. The applicant's allegations of fact may be accepted for the purposes of the respondents' application. The questions raised by the respondents' application are, in substance, questions of law, and, having regard to all the circumstances, I do not think it can be said that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial and unprejudiced mind to the question I am required to decide: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19 ; Commonwealth Bank of Australia v Taylor [2008] VSC 3.


case_title: Coffey v Secretary, Department of Social Security [1999] FCA 375 ; (1999) 86 FCR 434


case_text: In Cox v Journeaux (No 2) [1935] HCA 48 ; (1935) 52 CLR 713 , Dixon J (as his Honour then was) considered the meaning of personal injury or wrong done to the bankrupt within s 63(3) of the Bankruptcy Act 1924-1933 (Cth). His Honour applied Wilson v United Counties Bank Ltd [1920] AC 102 and described (at 721) the relevant test in the following terms: The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property.


case_title: Johnson v Johnson (2000) 201 CLR 488


case_title: Livesey v The New South Wales Bar Association [1983] HCA 17 ; (1983) 151 CLR 288


case_text: Save and except for the alleged breaches of the deed of settlement (see the earlier judgment at [15]), all the causes of action in the present proceeding are different from those advanced in the earlier proceeding. Nevertheless, all the causes of action are based on the conduct of the second respondent acting for the first respondent on 27 March 2006 and its aftermath. The doctrine of res judicata may apply in relation to the cause of action in the present proceeding based on breaches of the deed of settlement but it does not apply to the other causes of action in the present proceeding. The doctrine of issue estoppel in the strict sense may apply to those causes of action, although it is difficult to be at all certain because of the lack of coherence in the applicant's pleadings in the present proceeding. The extended doctrine of issue estoppel as articulated in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589 ("Anshun estoppel") certainly applies in relation to all of the other claims and there is no reason they could not have been brought in the earlier proceeding. In the circumstances, the pursuit of the other claims is an abuse of process. 33 I turn now to consider the claim for unlawful discrimination. 34 In his amended statement of claim, the applicant alleges breaches or contraventions by the respondents of ss 5 , 6 , 22 and 24 of the DD Act . Section 22(1) plainly does not apply because, on any view, the alleged discrimination is not of a type which falls within the terms of that subsection. Subsection (2) provides: It is unlawful for an educational authority to discriminate against a student on the ground of the student's disability or a disability of any of the student's associates: (a) by denying the student access, or limiting the student's access, to any benefit provided by the educational authority; or (b) by expelling the student; or (c) by subjecting the student to any other detriment.


case_text: The applicant lodged an appeal against the order I made dismissing the proceeding but, on 4 December 2007, the Full Court of this Court dismissed the appeal and ordered that the appellant in the appeal pay the respondent's costs thereof: Rana v University of South Australia [2007] FCAFC 188. 12 The applicant then applied to the High Court for special leave to appeal against the orders made by the Full Court but, on 15 May 2008, that application was dismissed. 13 One other point to note about the earlier proceeding is this. Before the present proceeding was instituted, the applicant made a complaint about the respondent's conduct to the Human Rights and Equal Opportunity Commission ("the Commission") (as it then was). In the course of a directions hearing in the earlier proceeding held on 14 July 2006, I fixed 17 and 18 August 2006 for the trial of the earlier proceeding. Those dates were subsequently vacated and, as I have said, the proceeding was heard on 5 and 6 October 2006. The point to be made is that at the directions hearing held on 14 July 2006, the applicant said that he had a complaint of "disability discrimination on the same fact by the University". He said that the complaint had been lodged with the Commission. He said that the first respondent had asked for an extension of time to respond. The applicant raised the possibility of the proceeding then before the Court (that is, the earlier proceeding) being delayed so that it could be dealt with at the same time as any proceeding following the applicant's complaint to the Commission. In response, counsel for the first respondent said: Your Honour, we sought an extension of time from the Human Rights Commission. Perhaps we ought more properly have explained to them that these proceedings were on foot because, as I understand it, that would forestall the progression of any complaint stage in the Commission, and that is their policy, that is my understanding of their policy. The matter is only at the complaint stage; no proceedings have been issued. ... ... as I understand it the complaint stage needs to be worked through the Commission and examined by the Commissioner before formal proceedings are able to be initiated. We have undertaken mediation unsuccessfully. I think that the parties are some great difference apart in terms of the legal basis of the claim, but the mediation did crystallise some of the issues and we would seek that the matter be brought to trial as expeditiously as possible because we see that the trial is the only way to resolve those matters.


case_text: The trial of the earlier proceeding was held on 5 and 6 October 2006. On 31 May 2007, I made an order that the proceeding be dismissed and I delivered reasons for judgment: Rana v University of South Australia [2007] FCA 816. I will refer to those reasons as the earlier judgment. 9 One point to note, and the relevance of this will become apparent, is that in the course of the earlier judgment I said (at [4]) that I found the applicant "a most unsatisfactory witness" and that I did not accept his evidence except where it accorded with other evidence which I accepted. I said that the applicant's evidence as to important events changed during the course of the proceeding, that some of his evidence was highly improbable and a good deal of his evidence was inconsistent with evidence which I accepted.


case_text: On 19 June 2007, I made an order that the applicant pay the respondent's costs of the proceeding on an indemnity basis: Rana v University of South Australia (No 2) [2007] FCA 941. I said the following (at [6]): In my opinion, this is an appropriate case for the award of indemnity costs. Mr Rana made allegations about payment for the tickets and what occurred at the Convention Centre which were critical to his case and he must have known were untrue. Those allegations should not have been made. He claimed that he had suffered loss and damage of $1 million but he proved no loss or damage. He altered a document, namely, a receipt, so that his case would appear stronger. These circumstances alone justify an award of indemnity costs. A further and probably independent reason for awarding indemnity costs is that he refused an offer of $400 in relation to a claim which I dismissed. In all the circumstances, it is appropriate to order that costs be paid on an indemnity basis.


case_title: Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699


case_title: Sydney Refractive Surgery Centre Pty Ltd v Federal Commissioner of Taxation (2007) 68 ATR 19


case_title: SZAJB v Minister for Immigration and Citizenship (2008) 168 FCR 410


case_title: Walton v Gardiner [1993] HCA 77 ; (1993) 177 CLR 378


case_title: Wilson v United Counties Bank Ltd [1920] AC 102


case_text: The appellant filed on 2 March 2004 an application in the Federal Magistrates Court for judicial review of the Tribunal's decision. The appellant filed an amended application on 19 October 2004 which raised various grounds of review. The appellant claimed that the Tribunal overlooked some critical points of her case and did not address all the relevant issues she had raised, including whether she was considered a 'traitor' because of the anti-governmental views of her family. The appellant also claimed the Tribunal: failed to ask relevant questions, failed to determine whether the appellant was subject to persecution because of her imputed political opinion, failed to determine the 'particular social group' the applicant belonged to, and failed to enquire as to whether the appellant's past or future conduct would amount to persecution. The appellant also referred the Court below to the decision of SZARH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 615 , which was said by the appellant to raise similar issues to her proceedings currently before the Court. 10 The appellant's application below was heard on 22 May 2006, and a further submission was filed on 2 June 2006. Although the appellant did not seek leave to raise that further submission, the Federal Magistrate decided to consider the matters the subject thereof. That submission dealt in substance with the implications of the filing out of time of her application for review, and referred the Court below to judicial precedents purportedly supportive of the appellant's claims in that regard. 11 The Federal Magistrate was satisfied the appellant had established a reasonable excuse for the delay in bringing the application for review. In considering the appellant's substantive claims, the Federal Magistrate found that the Tribunal did consider the aspects of the appellant's claims and that there was no evidence that any claim to the effect that the appellant was a 'traitor' was ever made to the Tribunal. The Federal Magistrate considered the appellant's contention that the Tribunal did not properly consider her claim to be a member of a particular social group. His Honour found this ground could not rightly stand, pointing out at [31] as follows: "It is well established that a social group cannot be constituted by victims of crime, let alone potential victims of crime, which appears to be the applicant's claim. In any event, the nature of the particular social group claimed by the applicant in the submission was not put to the Tribunal, on the evidence before me". 12 In line however with what I have observed at [8] above, the Federal Magistrate found the Tribunal did adequately address the issue of effectiveness of state protection in the Ukraine of persons such as the appellant. In relation to the authorities cited by the appellant, his Honour distinguished the same on the facts. The Federal Magistrate found that no case for jurisdictional error was made out and dismissed the application. 13 The Federal Magistrate was also of the opinion that there existed strong compassionate reasons based upon and referrable to humanitarian grounds, which relate largely to the circumstances of the appellant's age, single status and family circumstances. 14 The notice of appeal filed in the Federal Court raised the following grounds: that the Tribunal failed to assess the appellant's 'claims against proper information' and that the Federal Magistrate and the Tribunal misunderstood the appellant's particular social group. 15 The appellant, by way of submissions dated 10 November 2006, submitted that the Tribunal assessed her claims against 'all women advanced in years and living alone in Ukraine'. The appellant contended that the Tribunal should have particularised her social group as 'aged, single women who had relatives overseas, who travelled overseas and who are considered as the ones who had money'. The appellant further submitted that had the Tribunal assessed her claims against that second particular social group, 'it would have no difficulty to accept that [her] claims are Convention-related because there would have been a great deal of independent information consistent with my claims'.


case_text: The Minister submitted that the Federal Magistrate's conclusion that a social group cannot be constituted by victims or potential victims of crime 'is consistent with authority that a social group cannot be defined merely by a shared fear of persecution'. In support of that proposition, the Minister referred to A pplicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387 at [36] , where Gleeson CJ, Gummow and Kirby JJ observed as follows: '...the determination of whether a group falls within the definition of "particular social group" in Art 1A(2) of the Convention can be summarised as follows. First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. Borrowing the language of Dawson J in Applicant A (59), a group that fulfils the first two propositions, but not the third, is merely a "social group" and not a "particular social group". As this Court has repeatedly emphasised, identifying accurately the "particular social group" alleged is vital for the accurate application of the applicable law to the case in hand (60).'


case_text: Reiterating the reasoning of Scarlett FM, the Minister made the further submission that 'the Tribunal is not obliged to deal with a case not put to it or that does not clearly arise on the material before it', and that the 'social groups suggested by the appellant before His Honour were never put to the Tribunal'. The Minister referred to NABE v Minister for Immigration and Indigenous Affairs (No2) [2004] FCAFC 263 ; (2004) 144 FCR 1 in support of that contention. 20 After articulating the Minister's case with his usual precision, and pointing out why no jurisdictional error in the Tribunal's reasons for decision could be distilled, in line of course with the Federal Magistrate's decision, counsel for the Minister concluded as follows: 'The social group that the appellant now suggests doesn't fall into either of those categories and, in any event, even leaving those two matters aside, the Tribunal's conclusions as to effective protection in the Ukraine would be another answer to them. Your Honour, plainly there are humanitarian aspects in this case. They were referred to by the learned Magistrate. I'm sure your Honour is fully cognisant of them, but all we can do is draw the remarks of the Magistrate and if your Honour makes any similar remarks, your Honour's remarks to the attention of the Department. Ultimately there is nothing more we can do because it's a matter purely for the Minister.' 21 I find the Minister's submissions persuasive and, consequently, find no error in the Tribunal's decision or that of the Federal Magistrate below. It is also my opinion that the observations made by counsel for the Minister were entirely apposite, and I would wholly endorse what he thus frankly and responsibly indicated. I would respectfully recommend to the Minister that there be a reconsideration of the evident plight of the appellant and the understandable concern and anxiety of her only close relatives, who now live in Australia as Australian citizens. The appellant's case is in my respectful view very strong on compassionate grounds, being an opinion in line with that of the Federal Magistrate below. 22 The appeal must be dismissed. I also make an order, nunc pro tunc, that the Refugee Review Tribunal, which was a party to the proceedings below, be joined as a respondent to the application. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti. Associate: Dated: 30 January 2007 Appellant appeared in person Counsel for the Respondent: Mr T Reilly Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 14 November 2006 Date of Judgment: 30 January 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/32.html


case_outcome: related

case_text: application relates to a purported appeal from a decision of Mansfield J delivered on 21 December 2005 ( Dunstan v Human Rights and Equal Opportunity Commission (No 2) [2005] FCA 1885). On 6 November 2006 I struck out the notice of appeal in ACD 4 of 2006 but granted leave to Mr Dunstan to re-plead by filing an amended notice of appeal on or before 2 February 2007, and the matter was stood over until today with costs reserved. I indicated to Mr Dunstan on that occasion that the notice of appeal simply did not comply with the Rules of Court in relation to the form and substance of such a document, and explained that it was fundamental that there be a notice of appeal in proper form. I then adverted to the fact that legal advice in a situation of this kind is very helpful, if not essential. I also mentioned the possibility of some pro bono assistance. I have given some consideration to that again but I do not think that it is appropriate to take any steps in relation to that. This is a very particular case which Mr Dunstan presented himself before the trial judge, and to bring anybody in to deal with this on a pro bono basis is, I think on reflection, not likely to be helpful.


case_outcome: affirmed

case_text: This is an appeal from a decision of the Federal Magistrates Court which dismissed an application for review of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister to refuse the appellant a protection visa. The nature of the appellant's protection visa application, the reasons of the Tribunal and the Federal Magistrate are set out in more detail in the Federal Magistrate's decision, SZJXC v the Minister for Immigration and Citizenship [2006] FMCA 545 , which is available on the internet. 2 The appellant is a citizen of the People's Republic of China and his claim to be a refugee rests on an alleged fear of persecution based on his involvement in the practice of Falun Gong. 3 In his protection visa application he claimed to have been a member of Falun Gong since 1999. He said that after Falun Gong was banned by the authorities he would transport members for meetings and gatherings and provide emergency transportation. He claimed that in March 2005 while assisting the leader to escape from detention he was caught by police and held and interrogated for eight days and suffered "serious mental and physical torment". He claimed to have been forced to attend re-education classes and be supervised by what was called the 610 office. His job was "interfered many times," [ sic ] the truck he drove was checked frequently, members of his family were questioned many times and "we all lost our freedom".


case_text: I am satisfied that in the circumstances disclosed in this matter a fair minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question the Tribunal was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63 ; (2000) 205 CLR 337 at [6] . Background 4 The facts are not in issue, the following being drawn largely from the applicant's submissions. 5 The applicant is a citizen of Bangladesh who was born on 2 June 1986. He first entered Australia on 23 April 1991 when he was 5 years old as a dependent of his father, who was employed with the Bangladesh Embassy in Canberra. On 27 April 2006 he lodged an application for a subclass 457 Business (Long stay) visa, as a dependent of his mother. 32 While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6].


case_text: While judges of the High Court have questioned the actual suitability to private and non-curial proceedings, of the test for reasonably apprehended bias that has evolved in curial settings: see Re Refugee Review Tribunal; ex parte H [2001] HCA 28 ; (2001) 179 ALR 425 at [27] - [28] ; it is that "double might" test that is to be applied, albeit with the understanding that the hypothetical fair-minded lay observer in question requires some informed appreciation of the nature of the processes and proceeding of the body whose judgment is being called into question. The test to be applied is whether a fair-minded lay observer might reasonably apprehend that the Tribunal member might not have brought an impartial mind to the resolution of the question to be decided: Ebner , at [6].


case_text: It is presently important to emphasise, as Hayne J did in Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507 at [184] that the development and application of the test of reasonable apprehension avoids the need for a court: ... to attempt some analysis of the likely or actual thought processes of the decision-maker. It objectifies what otherwise would be a wholly subjective inquiry and it poses the relevant question in a way that avoids having to predict what probably will be done, or to identify what probably was done, by the decision-maker in reaching the decision in question. 35 Because of the manner in which the case was originally put, it is appropriate to refer as well to the further observation of Hayne J in Jia Legeng (at [185]) that: Saying that a decision-maker has prejudged or will prejudge an issue, or even saying that there is a real likelihood that a reasonable observer might reach that conclusion, is to make a statement which has several distinct elements at its roots. First, there is the contention that the decision-maker has an opinion on a relevant aspect of the matter in issue in the particular case. Secondly, there is the contention that the decision-maker will apply that opinion to that matter in issue. Thirdly, there is the contention that the decision-maker will do so without giving the matter fresh consideration in the light of whatever may be the facts and arguments relevant to the particular case. Most importantly, there is the assumption that the question which is said to have been prejudged is one which should be considered afresh in relation to the particular case. 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity.


case_text: Because, as will be seen, the application of this test in this matter does require an examination, amongst other things of the Tribunal's reasons, it is important to emphasise that the lay observer would be scrutinising those reasons through a quite different prism and by reference to a quite different contingency, than a judge would be when scrutinising a decision-maker's reasons for decision for the purpose of discerning an error justifying judicial review: cf Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 at 271-272. To say this is not to accord the hypothetical observer licence to indulge in implausible or improbable interpretations of reasons for decision. The lay observer is expected first and foremost to be "fair minded".


case_text: While the evidence in the matter is that the Tribunal member who issued the listening device warrant was named in an AFP statement of facts given to the applicant in August 2008, it has not been suggested that he was aware at the time of the Tribunal hearing that the member hearing the review application was the person who issued the warrant. Neither did the Tribunal member disclose that fact if he was then actually aware of it. In consequence, and counsel for the Minister accepted, there was no issue of waiver of bias in this matter: see Vakauta v Kelly [1989] HCA 44 ; (1989) 167 CLR 568 at 572-573; see also Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211.


case_title: Shingles v Defence Force Retirement and Death Benefits Authority [2009] FCA 1211


case_title: R v Eastman (1994) 121 FLR 150

case_text: The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( Eastman ), or subsequently became ( George ), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George . In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case. (ii) Procedural Fairness 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 43 In light of what was said by Gallop J in Eastman , the applicant contends as well that, having made a decision to issue a warrant which required him to form a view of the applicant's recent charge, the Tribunal member ought to have disqualified himself from hearing the subsequent application which required him to form a view of the applicant's conduct and whether he was likely to re-offend. 44 For my own part, I again emphasise that the test to be applied does not require analysis of the likely or actual thought processes of the Tribunal. There is no evidence as to whether, if at all prior to his decision the member recalled issuing the warrant involving Mr Islam. Such view as the lay observer might take on that matter, provided it is reasonable, may well be mistaken. That is not to the point. 45 The Tribunal did not disclose at the hearing its participation in the issue of the warrant. The member may well have had no memory of that. The member, equally, may have known or have become aware of that participation but have considered he could or should neutralise the significance of it by determining the matter without taking into account "in any way" the 1 May 2008 allegations. Alternatively and despite the significance to be attributed to "general conduct" at the stage of exercising the s 501(1) discretion (which could include "unresolved charges pending a hearing": Direction No 21, the member may have been of the view that account ought not be taken of the 1 May charge in any event as the applicant had not been convicted as charged. I express no view on any of these speculations other than to say that they would be contingencies which a fair minded lay observer could reasonably canvas in forming his or her judgment of the matter. 51 As with the Eastman case, I regard the circumstances of this matter as distinctive. While they may be able to be pigeon holed within the four "elements" referred to by Hayne J in Jia Legeng as the applicant first contended, that process does not sufficiently accentuate what in my view are the essential concerns which the unusual course of conduct followed in this matter exposes. These are to maintain the integrity of the Tribunal's processes and procedures and to provide public reassurance of that integrity. 52 As Eastman illustrates, the potential is there for apparent compromise of an official's decision making whenever a close relationship or association exists between the subject matter of an administrative or judicial decision to be taken by that official, and adverse information obtained (or an adverse opinion formed) relating to that subject matter in the course of, or as a result of, a separate earlier decision taken by the same official for other purposes. Where it might reasonably be said that the having of (or having had) that information or opinion by virtue of a prior official decision might compromise the proper and impartial taking of the later decision, the same official ought not participate in the later decision. To do so would involve the member in the discharge, in the circumstances, of incompatible functions. Such was the case here. 53 It was inappropriate for the Tribunal member, having determined to authorise the issue of the warrant in relation to Mr Islam, to have then made the s 501(1) refusal determination given the association in subject matter of the two determinations or at least to have done so without the informed waiver of objection by Mr Islam to his so doing. Absent such waiver, I am satisfied that the "double might" test of the fair minded lay observer would inevitably be satisfied. 54 I have emphasised the complex of competing possible views, that the conduct of the Tribunal member, the course of the hearing and the Tribunal's decision, could reasonably engender in the lay observer. In my view, despite the Tribunal's and, for that matter, the Minister's disclaimers, such an observer could reasonably entertain an apprehension that the Tribunal's decision might have suffered from prejudgment. The closely associated decision-making that occurred here ought not be countenanced. The Tribunal should have procedures to guard against such a possibility.


case_title: R v George (1987) 9 NSWLR 527

case_text: The authorities most immediately relevant in a factual setting such as the present on the applicant's contentions are R v Eastman (1994) 121 FLR 150 and R v George (1987) 9 NSWLR 527. In each case, at some time prior to the criminal proceedings in question, the judge who respectively became the trial judge authorised the use of a listening device in relation to the person who was ( Eastman ), or subsequently became ( George ), the accused in the proceedings. In George the particular matter before the judge under the Listening Devices Act did not involve anything to do with the subject of the later charges. In Eastman the contrary was the case and, when the matter was drawn to his attention, the trial judge disqualified himself on the ground of reasonable apprehension of bias. As he said (at 153): What distinguishes this application from the application made in R v George is that the warrants were issued by me on the application of one or more police officers so as to facilitate the acquisition of evidence against the accused. In two instances the exercises were successful, because the Crown proposes to lead evidence of having installed listening devices under the authority of two warrants and the evidence thereby obtained. The ground for disqualifying myself is much stronger than that confronted by the trial judge in R v George . In George in contrast, an appeal challenging a conviction of the ground of apprehended bias was dismissed, the Court having regard to the nature of a criminal trial, the various activities in which judges may be involved in the administration of criminal justice and particularly "to the absence of any association [of the listening device matter] with this particular case. (ii) Procedural Fairness


case_text: It is unnecessary to refer separately here to the applicable principles other than to note, as I do below, the applicant's primary reliance on the decision of the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88. 39 As I earlier indicated, the two grounds of this application are that, first, the Tribunal's decision was affected by reasonably apprehended bias and, secondly, denial of procedural fairness. As to the latter ground, as formulated in the application it was that: 4.2.1 The issue of whether the applicant had committed a criminal offence on 1 May 2008 was credible, relevant and significant to the decision on whether or not to affirm the refusal of the visa. As such, the Tribunal was required, as a matter of procedural fairness, to give the applicant an opportunity to respond to information regarding the allegation that he had committed an offence on 1 May 2008. 4.2.3 During the hearing of the application before the Tribunal on 28 November 2008 the Tribunal repeatedly denied the applicant an opportunity to provide a detailed or adequate response to the allegation that he had committed an offence on 1 May 2008. 40 During the course of the hearing there was some movement in, and a coming together of, the grounds. This will become apparent in what follows. (a) Apprehended Bias 41 The applicant's case in its initial form and prior to its being brought within the shadow of Eastman , was founded upon the four "elements" propounded by Hayne J in Jia Legeng I have set out above. Put in terms of those elements, it was contended that, first the Senior Member had on 30 May 2009 formed an opinion on a relevant aspect of the matter in issue in the Tribunal; ie that the applicant had committed, or was suspected on reasonable grounds of having committed, a criminal offence on 1 May 2008. This was relevant to the issue of whether the applicant did not pass the character test. It was also relevant in addition by reason of para 1.10 of Direction No 21, as unresolved criminal charges as "general conduct", which the Tribunal was required to take into account under para 2.10 when considering whether it was likely to be repeated. Secondly , despite his protestations to the contrary, it is inconceivable that the Tribunal did not take such credible, relevant and significant material into account when it found that there was an unacceptable risk that the applicant would reoffend: cf Applicant VEAL of 2002 at [17]. Thirdly , it is apparent from the way in which the case was conducted that the Tribunal did not give this issue any fresh consideration in the light of whatever may have been the facts and arguments relevant to the particular case. To the contrary, the Tribunal member resisted receiving any further evidence from the applicant relating to the matter, thereby leaving the state of the evidence at the time of its decision being that presented to it by the AFP on 30 May 2008. Finally , it is contended that the Tribunal was required to consider the unresolved criminal charges as part of its overall consideration of whether his so-called general conduct was likely to be repeated. This much is apparent from Direction 21. 49 On both of these issues the reasonable and fair minded lay observer could well consider he or she was being asked to, but was unable to, accept that the Tribunal could satisfactorily bifurcate the information it might possess on both those matters, and that it could reach its conclusion on each by reference, for example, to the three bail breaches while not taking into account in any way the view it had of the significance and character of the 1 May 2008 charge derived from the listening device hearing. While the significance of "subconscious effect" is to be treated with circumspection in procedural fairness cases given the relevant inquiry in such cases: cf Applicant VEAL at [19]; the issues of appearance and judgment in apprehended bias cases are, in my view, differently appointed. They do involve an appeal to the good sense and experience of the reasonably informed and fair minded lay (not judicial ) observer. 50 If the lay observer might experience some difficulty or reserve in accepting the potential efficacy of a self imposed "Chinese wall" in containing a prior formed opinion, that would well be compounded by the somewhat Delphic character of the Tribunal member's concluding comment on the November 2007 warning from the Minister about "any further conduct bringing him within the provisions of s 501": Unfortunately this warning appears to have not been taken seriously. 59 Unlike in Applicant VEAL both the Tribunal and the applicant were aware of the charge and of its being disregarded. As Mr Islam indicated when told it would be so treated "I appreciate it" it was to his advantage. What Mr Islam did not know and was not told, was of the member's participation in the issue of the warrant. The non-disclosure of that participation did not of itself raise a procedural fairness issue. It did set the scene, though, for the applicant's apprehended bias challenge. 60 I will order that: 1. The application be allowed. 2. The decision of the Tribunal be set aside. 3. The matter be remitted to the Tribunal to be determined according to law. 4. The first respondent pay the applicant's costs of the application. I certify that the preceding sixty (60) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 18 December 2009 Counsel for the Applicant: Mr N Poynder Solicitor for the Applicant: VISA Lawyers Australia Pty Ltd Counsel for the First Respondent: Mr P Grey with Mr P Knowles Solicitor for the First Respondent: Clayton Utz Counsel for the Second Respondent: The Second Respondent did not appear. Date of Hearing: 21 October 2009 Date of Judgment: 18 December 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/1526.html


case_text: In light of the delegate's decision adverse to Mr Islam which, seemingly, relied upon the 1 May 2008 charge in relation to the likelihood of re-offending. Mr Islam ought have expected that that charge would be an issue arising in the Tribunal that was potentially prejudicial to him: cf SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 ; (2006) 228 CLR 152 at [35] (a Refugee Review Tribunal review under Part 7 of the Migration Act ). Accordingly he would have been entitled, if such was an issue against him, "to be given an opportunity of replying to it": Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 at 582. The existence of the charge was raised by the applicant and he asserted his innocence. The Tribunal member, first told him "we don't want to go into too much detail about that", but then later told Mr Islam that as he had not been convicted of it "I will not be taking that into account". Whether or not the Tribunal erred by so excluding this information (given the requirements of Direction No 21) is not in issue before me and I express no view on it.


case_text: Whatever may have been the Tribunal's obligation to Mr Islam in relation to the charge prior to the second of the above comments, the charge thereafter was not itself an issue potentially prejudicial to Mr Islam on the review. He could suffer no "practical injustice": Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6 ; (2003) 214 CLR 1 at [38] ; "[he] lost no opportunity to advance his case": ibid. The marginalisation of the charge did not in any way impede Mr Islam from advancing positive reasons for why the Tribunal's discretion should be exercised in his favour. He was not denied procedural fairness.


case_text: Kowalski v MMAL Staff Superannuation Fund Pty Ltd (2009) 178 FCR 401 the Full Court examined the origins, meaning and effect of s 31A of the FCA Act. The Full Court stated (at 408, [25]): The effect of s 31A was to soften the test for a successful application for summary judgment as stated by the High Court in Theseus Exploration NL v Foyster [1972] HCA 41 ; (1972) 126 CLR 507 ... and also the test for a successful application for summary dismissal as stated by Dixon J, as his Honour then was, in Dey v Victorian Railways Commissioners [1949] HCA 1 ; (1949) 78 CLR 62 and by Barwick CJ in General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69 ; (1964) 112 CLR 125.... See also Jefferson Ford Pty Ltd v Ford Motor Co of Australia Ltd [2008] FCAFC 60 ; (2008) 167 FCR 372 at [45] , [57], [63], [124].


case_title: White Industries Australia Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298

case_text: effect noted and by reference to secondary materials, the Full Court counselled that "a generally cautious approach should still be adopted to the exercise of the court's powers under s 31A" (at 408, [28]). The Full Court particularly endorsed an observation concerning s 31A made by Lindgren J in White Australia Industries Ltd v Commissioner of Taxation [2007] FCA 511 ; (2007) 160 FCR 298 at 310, [50] that the section is concerned with "the bringing and defending of proceedings, not just with pleadings, with substance, not just with form". Section 31A consigns to the Court a discretion as to whether the questions of law raised in a case are of such difficulty as to make it preferable not to resolve them summarily. It was not submitted that this was such a case in relation to issues related to the NTA. Rather, each of the parties invited the determination of them insofar as pertinent to the respondents' summary judgment application. In the event that I concluded that there was jurisdiction and standing, I was not asked to determine either summarily or as a separate question of law the merits of the State law issue as to the ability now of officers of the State under the Petroleum Act to grant petroleum leases on the strength of ATP 259P. For the purpose of the summary judgment application, the parties assumed that the factual foundation of the Applicants' case was as alleged in the amended statement of claim. I have done likewise.