case_text: was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49]. In response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy. Next it was said that in Dawson , Goldberg J articulated the principle in terms of a threshold issue (at [49]), in respect of which the applicants carried the onus. Here there was no threshold issue because there was no onus on Dr Windsor. For that reason, any principle coming out of Manning and Dawson is not apt. Third, it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R §90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.


case_outcome: referred to

case_text: example of an abuse of process is where interlocutory orders, though not truly able to found an issue estoppel, may be capable of finally determining an issue of fact or law if 'it is reasonable to regard the earlier decision as a final determination of the issue' ( Re Martin & Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438 per Cooper J at 443) or the parties have conducted the litigation 'upon the footing that this part of the proceedings is to be then determined, to that extent, finally' ( Leppington Pastoral Co Pty Limited v Commonwealth of Australia (1997) 76 FCR 318 per Beaumont J (with whom Jenkinson and Lehane JJ agreed)) or 'a reasonable construction of the interlocutory judgment shows that a point has been the subject of a final determination' ( Northern Star Agriculture Pty Ltd v Morgan and Banks Developments Pty Ltd [2007] NSWSC 98 per Young CJ in Eq at [42]).


case_outcome: considered

case_text: was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49]. In response, it was submitted on behalf of Dr Windsor that the principle articulated in Manning , to which I would merely observe, assuming a principle can be identified other than a preference for the view of Charles JA rather than the majority in D A Christie Pty Ltd v Baker (1996) 2 VR 582 , concerned, as did Dawson and Christie , the bringing of a second interlocutory application by an applicant or plaintiff; here, it was pointed out, on both occasions, Dr Windsor was resisting such an application and so, at best, any principle, if it can apply at all, could only be by way of analogy. Next it was said that in Dawson , Goldberg J articulated the principle in terms of a threshold issue (at [49]), in respect of which the applicants carried the onus. Here there was no threshold issue because there was no onus on Dr Windsor. For that reason, any principle coming out of Manning and Dawson is not apt.


case_text: it was submitted that if, contrary to the foregoing submissions, I was to find that any principle coming out of Manning can apply by way of analogy to the present case, there were four reasons why it was fair and just to reconsider the matter rather than be persuaded that SMS had established the amended statement of claim was an abuse of process. These were put as follows: (1) Dr Windsor was self-represented on the hearing of the 2007 notice of motion. (2) I applied impermissible criteria in deciding the 2007 notice of motion clearly a strike-out application rather than confining myself to the pleadings; had I done the latter, I would have dismissed the 2007 notice of motion. I have already accepted this submission at [12] and [13] above. (3) On the hearing of the 2007 notice of motion, the Court's attention was not drawn to the undecided question of law about whether post-contractual conduct and communications could be used to identify parties to the contract (see Dennis Pethybridge v Stedikas Holdings Pty Ltd [2007] NSWCA 154 ; (2007) Aust Contract R §90-263 at [59] per Campbell JA (Beazley JA agreeing); Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149 at [99] ff per Giles JA (Hodgson and Campbell JJA agreeing); County Securities Pty Ltd v Challenger Group Holdings Pty Ltd [2008] NSWCA 193 at [161] per McColl JA), and at least some of the Judgment Documents fall within that category. (4) The fact that on the hearing of the 2007 notice of motion my attention was not drawn to admissions that were relied upon on the hearing of the current motion and, even if I did have regard to them on the earlier occasion, there is no indication on the face of the reasons for judgment that I interacted with them.


case_title: Re Martin & Anor; Ex parte Amtron Australia Pty Limited (1996) 62 FCR 438


case_title: Sagacious Procurements Pty Ltd v Symbion Health Ltd (formerly Mayne Group Ltd) [2008] NSWCA 149


case_text: power to stay or dismiss a proceeding under O 20 r 5 of the Rules for an abuse of process is not limited to those cases in which proceedings are commenced or maintained where there is a res judicata or issue estoppel in respect of them. French J (as he then was) put it this way in Sea Culture International Pty Limited v Scoles [1991] FCA 523 ; (1991) 32 FCR 275 at 279: An attempt to litigate in court a dispute or issue which has been resolved in earlier litigation in this or another court or tribunal may also, according to the circumstances, constitute an abuse of process even if not attracting the doctrines of res judicata or issue estoppel. Nevertheless, the power to stay or dismiss must be 'very sparingly exercised and only in exceptional cases' (see Sea Culture International Pty Limited v Scoles at 279) and 'upon an examination of the relevant circumstances of the particular case before the Court' (see Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 at [70] per French J).


case_text: the power to stay or dismiss must be 'very sparingly exercised and only in exceptional cases' (see Sea Culture International Pty Limited v Scoles at 279) and 'upon an examination of the relevant circumstances of the particular case before the Court' (see Spalla v St George Motor Finance Limited (No 6) [2004] FCA 1699 at [70] per French J).


case_text: indicated my approval of these observations of Rares J in Spiteri v Nine Network Australia Pty Limited [2008] FCA 905 at [7] .


case_title: Walton v Gardiner (1993) 177 CLR 378

case_text: was nevertheless submitted on behalf of SMS that the amended statement of claim was a transparent attempt to re-litigate issues which have already been determined against Dr Windsor: '...proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances of the case do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings' ( Walton v Gardiner (1993) 177 CLR 378 per Mason CJ, Deane and Dawson JJ at 393). Reference was also made to Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139 per Heydon JA at 155 157 [70] [73] and per Foster A-JA at 167 [122] [123] and P. Dawson Nominees v ASIC (No. 2) (2009) 255 ALR 466 at [36] [49].


case_text: this Court, Burchett J in Weatherall v Satellite Receiving Systems (Australia) Pty Ltd [1999] FCA 741 ; (1999) 92 FCR 101 at [9] after reviewing both English and Australian authorities (including Jones v Insole and Hall v The Nominal Defendant ) concluded that an order striking out a statement of claim is an interlocutory order. Burchett's J analysis in Weatherall was cited with approval by Cowdroy J in Md Abdullah Al Mamun v Minister for Immigration and Citizenship [2007] FCA 541.


case_text: orders, by nature, lack finality. It follows, therefore, that they are insufficient to create an issue estoppel (see Wilson v Union Insurance Co [1992] NTSC 107 ; (1992) 112 FLR 166 ; cited with approval in Bowes v Fehlberg & Ors (No 2) [2001] TASSC 24 at [22] and by the New South Wales Court of Appeal in Miller v Deputy Commissioner of Taxation (1997) 38 ATR 51. (iii) The facts and law the subject of the 2007 notice of motion were not conducted on a final basis


case_outcome: affirmed

case_text: (xi) On 6 December 2007 his Honour rejected Ginos' application for costs and had "no hesitation": Ginos Engineers Pty Ltd v Autodesk Australia Pty Ltd [2007] FMCA 2156 at [30] ; in acceding to Autodesk Australia's request for costs. In the event he awarded costs in a lump sum in the figure of $22,500. The appeal is against that order. There is no appeal against the Federal Magistrate's order rejecting Ginos' application for costs. 15 I preface my consideration of this matter with the observations that, for present purposes, the award of costs was in his Honour's discretion: FM Act s 79; and that under r 21.02(2)(a) of the FMC Rules an order could be made setting the amount of the costs to be awarded. I would also note, as did the Federal Magistrate, that r 1.03 (insofar as presently relevant) provides: 1.03 Objects (1) The object of these Rules is to assist the just, efficient and economical resolution of proceedings. (2) ... the Rules aim to help the Federal Magistrates Court: • to operate as informally as possible • to use streamlined processes • to encourage the use of appropriate dispute resolution procedures. ... (4) To assist the Court, the parties must: • avoid undue delay, expense and technicality • consider options for primary dispute resolution as early as possible. In quoting the above, his Honour highlighted the word "economical" in r 1.03(1). For reasons I give below, I quite understand why he did. 16 Having quoted the above provisions (at [32]-[34]), the Federal Magistrate went on to say (at [35]): Given the objects to the rules and costs r.21.02, I have no hesitation in deciding to award costs here and calculated on a lump sum basis. Importantly, I would note in passing, his Honour had put the parties on notice at the 4 December 2007 hearing that he was predisposed to fix the costs himself and he indicated his reasons for so doing as the following exchange with the appellants' counsel illustrates: HIS HONOUR: Mr Scragg, this matter has come to an end. MR SCRAGG: Yes, I know, your Honour. The simple way is the usual order, that costs be taxed. That's a simple way be agreed or taxed. HIS HONOUR: Mr Scragg, you've addressed me on that and I've also heard from Mr Hennessy about that. Given the way that this matter has progressed since it was commenced, the amount of time that has been spent at every step, I'm not disposed at the moment to make an order that the costs be taxed. Because I can see that it's simply going to result in one or other of the parties or perhaps more accurately both incurring considerable extra expense in sorting out the question of costs. I will return to this matter. 17 The Federal Magistrate then indicated in his reasons that he was assisted in determining the appropriate costs order by the affidavit of Mr Williams whom, he noted, had given similar evidence which was accepted in "other similar intellectual property cases". Mr Williams had been involved in numerous copyright infringement cases in this Court and in the Federal Magistrates Court. It is unnecessary for me to comment on the degree of similarity between the case before his Honour and those to which he referred. The case before him clearly was an appropriate one for a lump sum order irrespective of whether it could be said to be a complex one. The discretion given in r 21.02(2)(a) is not circumscribed. I would emphasise that no ground of appeal challenged directly the decision to make a lump sum order as such although ground 7 (which must fail as I will indicate) might be said to do so obliquely. Mr Williams' evidence was that in his experience costs are assessed for between 50 per cent and 70 per cent of the professional costs and disbursements expended on a matter. He was familiar with the work undertaken on the file and the accounts rendered in respect of this work; he provided an estimate of the costs that in his view were likely to be recoverable by the respondent in an assessment process, having regard to his experience of costs awards made in complex cases in the Federal Magistrates Court; he listed the items of work that had been undertaken; and, in the exhibit to his affidavit, he provided an itemised invoice of professional costs. He concluded that the total professional costs and disbursements that had been incurred or made (whether or not billed) totalled $24,558. He applied a 60 per cent recovery figure to that sum to produce a "taxed amount" of approximately $14,734.80. When account was taken of professional costs incurred after the date of Mr Williams' affidavit the total of professional costs became $45,136.39. A reduction of $380 was made to this figure (it represented work in the New South Wales proceeding) as were other minor reductions so reducing the total to $44,693.64. 18 His Honour went on to indicate that he had "studied the schedules". It is not clear whether this is a reference to the confidential exhibit (cf [44] of the reasons) or, perhaps more probably, to the schedule of costs referred to in r 21.10 of the FMC Rules (which schedule specifies lump sum orders for designated events but from which a federal magistrate could depart: r 21.10). In light of that he indicated he "would feel more comfortable with a reduction of 50% rather than the 60% that Mr Williams mentioned". He reduced the amount (rounded off) to $22,500 and ordered accordingly. 19 It is necessary to set out the grounds of appeal in full. They are: 1. The assessment was based on a rate of solicitor's charges of $632.50 and $687.50 per hour for senior practitioners, $319 per hour for a junior practitioners and $220 and $242 per hour for law clerks; such rates are significantly higher than the Adelaide rate which should have been applied and are unreasonable; 2(a). The assessment made no allowance in favour of the applicant for costs associated with a claim by the respondent that the applicant had sued the wrong party; the claim was not sustained; 2(b). The assessment made no allowance in favour of the applicant for costs awarded for the refusal by the respondent to consent to the production of the exhibit "MJW1" to the affidavit of Mr Williams, a director of the applicant, which refusal it eventually abandoned; 3. The assessment made no allowance in favour of the applicant for steps which duplicated work already done so as to make the further work unnecessary; 4. The assessment included costs incurred by the respondent in relation to another matter; 5. In making the assessment, the learned Judge should have used the scale of fees set out in rule 21 and should not have in the circumstances departed from that scale; 6. That a proper charge for the work in question, if taxed in accordance with the scale or otherwise, would have been approximately $5000 to $8000. 7. Contrary to the view of the Magistrate, it would not have imposed significant additional costs upon the parties to tax the respondent's costs on an item by item basis. 20 I would note immediately that the challenges made to the lump sum costs order in Grounds 1 to 5 relate to the manner in which the assessment was made. Ground 6 simply makes an assertion as to what the award might have been if they had been taxed. Whatever Ground 7's purpose was meant to be, it must fail for reasons I will later give. 21 Having noted the grounds I should emphasise they do not include: (i) an allegation of a denial of procedural fairness in the adjournment given from 4 December to 6 December; (ii) a challenge to Mr Williams' expertise and to the reception of his opinion evidence that was said to be inadmissible; or (iii) an allegation of inadequacy of reasons. Counsel for the appellant sought to raise these on the appeal. I refused to allow it. I should also indicate that at the hearing before the Federal Magistrate, Mr Williams was available for cross-examination. Counsel refrained from availing of this. Nonetheless, he proceeded to contend before his Honour that the invoice annexed to Mr Williams' affidavit disclosed unnecessary services being rendered, excessive charges being made and charges made for matters on which the respondent was unsuccessful. Additionally, he contended before me, surprisingly, that his submissions to the Federal Magistrate by way of criticism of Mr Williams' evidence were evidence before his Honour notwithstanding that no ruling or agreement to that effect was made. While his Honour invited counsel to put on evidence on the issue of costs and in relation to Mr Williams' evidence, again he refrained from so doing.


case_outcome: cited

case_text: Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules , which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 ; Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 ; see generally on fixing of costs by courts, Dal Pont, Law of Costs (2003) at [15.14] ff and Quick on Costs at [6.20]. 23 It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films & Television Pty Ltd at [8]. 24 It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films & Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].


case_text: Rules of Court such as r 21.02(2)(a) of the FMC Rules and O 62 r 4(2)(c) of the Federal Court Rules , which empower a court to order a gross amount in costs instead of an amount determined after taxation, are well accepted as being directed to the avoidance of expense, delay and the protraction of litigation, whether the case be a complex or a simple one: see Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120; Australasian Performing Rights Association Ltd v Marlin [1999] FCA 1006 ; Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046 ; see generally on fixing of costs by courts, Dal Pont, Law of Costs (2003) at [15.14] ff and Quick on Costs at [6.20].


case_title: Nine Films & Television Pty Ltd v Ninox Television Ltd [2006] FCA 1046


case_title: Leary v Leary [1987] 1 All ER 261

case_text: It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films & Television Pty Ltd at [8].


case_text: It is inconsistent both with the terms of r 21.02(2)(a) and to the clear objective in making a lump sum order that the costs in issue be subjected to the detailed scrutiny often applied in taxations: Leary v Leary [1987] 1 All ER 261 at 265; Dal Pont at [15.17] and [15.19]. In specifying a lump sum, it is well accepted that it is appropriate to apply a "much broader brush" than would be applied on a taxation: see Sony Entertainment (Australia) Ltd v Smith [2005] FCA 228 ; (2005) 215 ALR 788 at [196] - [200] . Nonetheless, the discretion to make a lump sum order, no less than the general discretion to order costs, must be exercised judicially and in accordance with principle. In particular in making a lump sum estimate the approach of the court should be "logical, fair and reasonable": Beach Petroleum NL at 123; Nine Films & Television Pty Ltd at [8]. 24 It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films & Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].


case_text: It is not uncommon, particularly, but not only, in intellectual property cases, for the court to take as its starting point the evidence of the charges for professional costs incurred and disbursements made by the lawyers of the party awarded costs and this irrespective of whether the costs are to be estimated on an indemnity basis: cf Beach Petroleum NL at 120; or on a party and party basis: cf Universal Music Australia Pty Ltd v Miyamoto [2003] FCA 812 at [29] ff. That figure is then characteristically adjusted to take account of the acceptability of the charges made, the conduct of the proceeding, the measure of success on issues etc, to produce a sum which as a matter of judgment is neither overcompensatory nor prejudicial to the successful party. Consistent with the broad brush approach, that adjustment ordinarily is effected through the application of a discount to the figure accepted by the court on the available evidence as appropriately reflecting actual professional costs charged and disbursements made. The case law evidences wide variations in the percentages of discount sought and/or applied to reflect the exigencies of the matter in question: cf Sony Entertainment (Australia) , 60%; Beach Petroleum NL , 39%, Nine Films & Television , 23%. What is clear is that a lump sum award may be in an amount that is greater or smaller than would have been the taxed costs payable: see Dal Pont at [15.20].


case_text: The respondent's case, put shortly, is that the appeal is against an exercise of a "judicial discretion": cf House v The King [1936] HCA 40 ; (1936) 55 CLR 499 at 504; but neither the grounds of appeal nor the appellant's submissions disclose an appellable error in the circumstances. 27 Before dealing with the appellant's grounds, four general and/or contextual matters should be mentioned. First, it is clear from his Honour's reasons and from the transcript of the costs hearings on 4 and 6 December 2007 that the Federal Magistrate made plain to the parties that he was disposed to make a lump sum award to bring to an end what already had been a protracted litigation. As I earlier indicated, the appellant has not challenged his Honour's decision to make such an award, although it has been impugned obliquely by the repeated assertions that taxation should have been ordered and, if it had, a much lesser sum would have been payable by way of costs. 28 Secondly, I have referred above to the common practice of the use of evidence of the actual costs and disbursements charged to a successful party as providing the starting point for an estimation of an appropriate lump sum award. As again is clear from his Honour's reasons (at [36]), he was both aware of this practice (and, for that matter, of Mr Williams' prior involvement in giving such evidence in intellectual property cases) and how it might assist in arriving at an appropriate estimate of costs. It is, in my view, quite erroneous to assert that the Federal Magistrate engaged, or considered he was engaging, in a form of taxation, notwithstanding that Mr Williams gave evidence of what he expected would be the taxed amount payable on the sum billed. His Honour rightly chaffed at being asked to engage in a defacto taxation. At the 6 December costs hearing, he observed: HIS HONOUR: Could I interrupt you, Mr Hennessy. This matter seems to be proceeding pretty much like a taxation at this stage. It seems to me that what we're trying to do is avoid a taxation, so that you have to justify every particular item. In fact doesn't Mr Williams say that the discount really takes into account all of these arguments that might be presented about this taking too long or that not being completely on point or an issue has been won here or an issue lost there. Is that the case, or am I misunderstanding Mr Williams' evidence? MR HENNESSEY: With respect, both Mr Williams' evidence and what has just fallen from your Honour are precisely right. 29 Thirdly, both before his Honour, and again before me, counsel for the appellant engaged in a detailed dissection of the invoices exhibited to Mr Williams' affidavit descending into matters such as alleged excessive charging and services, account not being taken of "victories", the scales of costs for disbursements and lawyer's fees of various jurisdictions, the incidence of GST, etc. While it, doubtless, was open to him to comment upon the invoice and upon Mr Williams' evidence, he neither cross-examined Mr Williams nor put on evidence (expert or otherwise) on costs. Much in his submissions was in consequence devoid of any evidentiary foundation. It clearly was open to his Honour to accept Mr Williams' evidence as he did: see reasons [37]. I earlier indicated there is no ground of appeal challenging Mr Williams' evidence or the Federal Magistrate's reliance upon it. It is difficult to resist the conclusion either that counsel did not understand the function performed by the 50% discount in his Honour's estimation of the appropriate sum, or that he simply disputes the percentage chosen. The latter of these, though, is not reflected in any ground of appeal. 30 Fourthly, it again is clear from the transcript that the issues relating to the assessment agitated before me were raised before his Honour. It also is clear that considerable latitude was given to counsel for the appellant in raising issues before his Honour. As the Federal Magistrate said at the 6 December costs hearing: HIS HONOUR: ... I wanted to give Mr Scragg every opportunity to put everything that he has, and he certainly has taken every point, as you say. It could never be said that he hasn't closely examined it all and brought up every possible argument, but really, I approach it somewhat differently, I think. I think I'm entitled to approach it somewhat differently. 31 In making this observation his Honour clearly was adverting to the objective in making a lump sum award and to the function of the discount rate to be applied in estimating an appropriate sum of costs. On the appeal, counsel for the appellant has sought to turn the latitude given him in raising "every possible argument" into a means of attack on the decision under appeal. It is said that, as the reasons did not disclose that the Federal Magistrate expressly addressed his arguments, his Honour has not taken them into account. It is perfectly clear that, as on the appeal, counsel raised a range of "arguments" which clearly were not relevant given his Honour's decision not to order costs to be taxed, or which necessarily were rejected given his Honour's acceptance of Mr Williams' evidence. Equally, when one has regard to the function performed by the discount rate chosen by his Honour, it is obvious, in my view, that account was taken of matters raised by Mr Scragg to the extent that they were relevant, or were not inconsistent with the evidence accepted by his Honour. Again I would note that there is no ground of appeal based on inadequacy of the Federal Magistrate's reasons though this appears to inform the above challenge to the reasons. 32 Turning briefly to the grounds of appeal, almost all of which have been implicitly rejected in what I have already said, I will merely note the following. 33 The ground 1 challenge to the practitioner's charge out rates "allowed" (which it is complained were higher than Adelaide rates) was the major matter raised by the Federal Magistrate with counsel for Autodesk Australia. Having regard to the facts that negotiations over the copyright were being held in Sydney prior to the institution of the Adelaide proceeding and that an advantage in those negotiations was being sought in initiating a proceedings in Adelaide (albeit one doomed to failure), it is unsurprising that Sydney lawyers were engaged for the purposes of the proceedings and that, in selecting the starting point for the lump sum estimates, the Sydney rates (being the actual rates charged the respondent) were employed but were then discounted. In short, the appellant misapprehends the process employed by the Federal Magistrate. It was not a taxation. The same comment can be made of grounds 2(a) and 2(b), but with the additional emphasis that a function of the discount is to avoid the necessity for engaging in detailed examination of the "allowances" referred to in those grounds. For my own part, given that the application was dismissed at the appellant's request and was in any event doomed, I do not consider that an "issues based" approach to costs, even if a taxation had been made, would have been appropriate in this matter. I need not enlarge upon this. Grounds 3 and 4 appear to relate to costs incurred in the New South Wales proceedings. It is to be noted that the invoice exhibited to Mr Williams' affidavit erroneously included a minor amount from those proceedings which amount was removed from the process of calculation at the 6 December hearing. A related allegation that an identical affidavit was used in both proceedings was conceded by Autodesk Australia, but the evidence is that it was prepared for the Adelaide proceedings. It was in consequence properly included in the costs incurred in that proceeding, howsoever it may be dealt with for costs purposes in the other proceedings. Ground 5 is simply misconceived. Ground 6 is at best a challenge to the fairness of the award made and, on the material before his Honour, I am not satisfied that the alleged unfairness has been made out. As to ground 7, I merely say in light of the matter's history, there was ample justification for his Honour taking the course he did. The course of this appeal is further testament to the need for finality and economy perceived by his Honour. 34 I will order that the appeal be dismissed with costs. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn. Associate: Dated: 16 July 2008 Counsel for the Appellant: Mr P Scragg Solicitor for the Appellant: Peter Scragg and Associates Counsel for the Respondent: Mr J Hennessy Solicitor for the Respondent: Gilbert + Tobin Lawyers Date of Hearing: 13 June 2008 Date of Judgment: 16 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1051.html


case_outcome: distinguished

case_text: On the first issue, Phipps FM, referred to the judgment of Jacobson J in Quan v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 764. In Quan , the Court held that the Tribunal had asked itself the wrong question by not considering "whether it had reached a state of satisfaction as to the contact hours attended"; see Quan at [36]. 20 In Quan the attendance records related to only the total number of days at which Mr Quan attended at the school. They bore no relation to what actually occurred during his attendance at school. 21 The Federal Magistrate observed that the records from Eltham College were class attendance records and not daily attendance records as in Quan. At [14], his Honour said: "The reasonable reading of them is that the tribunal considered that when the College records and other material showed that the [appellant] was absent from a class, that meant he missed the class, not that he was there for part of the class. Therefore, to calculate a percentage of classes attended was to calculate a percentage of contact hours attended." 22 His Honour then noted the appellant's submission that the Tribunal had not taken into account other activities at the College in assessing attendance, such as School Assessed Coursework. His Honour said that the Tribunal had evidence before it about attendance and determined, on that evidence, that the required percentage of contact hours was not attained. Therefore, he considered that the Tribunal did not ask itself the wrong question. 23 The Federal Magistrate also dismissed the appellant's submissions based on natural justice and related grounds. He said that the Tribunal was not obliged to search for evidence on the College's practice of recording lateness for class or the way attendance on medical practitioners affected attendance records. 24 His Honour found, in any event, that the Tribunal had independent valid grounds for affirming the cancellation of the visa given the lack of certification of a satisfactory academic result and the failure of the appellant to be enrolled in full time study from 11 June 2003 until the cancellation of the visa. 25 Counsel for the appellant took issue with his Honour's distinguishing of Quan . Counsel also said that the Tribunal was not able to rely on a breach of condition 8202(2)(b), or the condition relating to satisfactory academic performance, given that the s 20 notice only referred to attendance requirements. Counsel contended that reliance on these conditions by the Tribunal amounted to a denial of natural justice. In his oral submissions, counsel contended that the Tribunal's reliance on the condition relating to satisfactory academic performance amounted to a breach of s 359A of the Act. Counsel also submitted that the Tribunal erred by considering whether the applicant was engaged in full time study, and not whether he was enrolled in a course. Counsel further submitted that the Tribunal erred by disregarding the effect of the alleged statement of the delegate that the applicant was not permitted to study in Australia. 26 Counsel for the Minister submitted that "contact hours" in condition 8202 refers to the proportion of required contact hours attended by the student. He said that there was no suggestion before the Tribunal that the length of classes varied from subject to subject. Counsel also agreed with the Court below that Quan was distinguishable. Counsel stated in his written outline of submissions that Quan : "...was a case in which there was no inquiry made as to the number of classes attended, and the decision rested on a simplistic calculation based on the number of days the visa holder had not attended school." 27 Counsel for the Minister calculated from the attendance records before the Tribunal that "expressed as a proportion of the total number of classes the appellant was required to attend in term 1, [of 2003] his attendance was less that the required 80%". Counsel also contended that there was no basis for the submission of the appellant that the attendance records did not properly reflect when he was late, as distinct from absent. Counsel drew attention to the appellant's failure to persuade the Tribunal that he had been marked as absent on two occasions when he had merely been late. 28 Counsel for the Minister submitted that the s 20 notice did not act as precondition to the cancellation under s 116. He also contended that the appellant could not have been taken by surprise by the findings that he was not enrolled in course of study and was not the beneficiary of certificate of satisfactory completion of study as each matter was an incontrovertible fact. Further, counsel disputed that the delegate of the Minister told the appellant that he was not permitted to study 30 The records relied on by the Tribunal were attendance records for classes, school assessed coursework and examinations. Those records enabled an assessment of "contact hours" within the definition of those words in the regulations. The Tribunal's calculation of the contact hours attended by the appellant was a question of fact for it to determine. Unlike in Quan , the Tribunal did consider whether it had reached a state of satisfaction as to contact hours attended. It did not merely consider the total number of days attended as a proportion of the number of days in the term. No judicially reviewable error arose as a result of the Tribunal's treatment of this issue. 31 The Tribunal was entitled to consider the appellant's failure to be enrolled in full time study and his failure to achieve satisfactory academic results as grounds for visa cancellation, despite the s 20 notice not referring to these grounds.


case_outcome: applied

case_text: In Minister for Immigration and Multicultural and Indigenous Affairs v Yu [2004] FCAFC 333 it was held, by majority, that s 20 of the Education Services for Overseas Students Act does not limit the circumstances in which s 116 of the Migration Act might operate where condition 8202 has not been complied with by a visa holder.


case_text: Consequently there was nothing stopping the Tribunal from relying on grounds other than the attendance record ground. No breach of natural justice arose as a consequence because the facts giving rise to these breaches of condition 8202 were obvious and incontrovertible. This is especially so where, as here, s 357A applied to the application for review such that general procedural fairness grounds of review were not open to the appellant in the Court below. Any allegation that s 359A of the Act was not complied with by the Tribunal, due to an alleged failure to raise with the appellant the College's lack of certification of satisfactory completion of his course, is met by the fact that the Tribunal had two other independent grounds for cancelling the visa. See, by way of analogy in respect of s 424A, SZEEU v The Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [160] per Weinberg J and [233] per Allsop J. In other words, the failure of the Tribunal to inform the appellant that the visa could be cancelled as a consequence of a lack of certification of successful completion of his course did not affect the outcome of the review. Furthermore, the lack of certification was something so obvious that it need not have been stated and was a vital requirement for satisfaction of condition 8202. 34 The appeal ground relating to the Tribunal's consideration of whether the applicant was engaged in study, rather than whether he was enrolled in a course, was not developed further in oral submissions before the Court. The contention of the appellant that he was not so enrolled because the delegate allegedly told him not to enrol does not deny the fact of his non-enrolment. In any event, this ground is, again, independent of the other grounds for cancellation of the visa, that is, failure to achieve satisfactory academic results and failure to meet the attendance requirements.


case_text: As the s 20 notices in this matter suffered from the vices detected in Morsed v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 193 , I invited the parties to present written submissions dealing with that judgment. 36 In Morsed , the appellant claimed that his breach of condition 8202 was due to exceptional circumstances beyond his control. No such issue of circumstances beyond the control of the appellant is relevant here. On that view alone, Morsed is distinguishable. 37 In any event, the cancellation of the student visa in Morsed arose as a result of the automatic effect of s 137J of the Migration Act , consequent upon a s 20 notice. It did not arise, as here, by virtue of the independent operation of s 116 of the Migration Act . 38 Having regard to the foregoing I dismissed the appeal, with costs. I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 12 April 2006 Counsel for the Appellant: Mr J Levine Solicitor for the Appellant: Issac Brott & Co Counsel for the 1 st Respondent: Mr P Gray Solicitor for the 1 st Respondent: Australian Government Solicitor Date of Hearing: 12 April 2006 Date of Judgment: 12 April 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/408.html


case_text: The discretion to order gross sum costs is in quite general terms and may be exercised whenever the circumstances warrant it: Harrison v Schipp (2002) 54 NSWLR 738 at [21]. The purpose of the rule is to avoid the expense, delay and aggravation involved in litigation arising out of the taxation process: Leary v Leary [1987] 1 WLR 72; Beach Petroleum NL v Johnson (No 2) (1995) 57 FCR 119 at 120.


case_title: Harrison v Schipp (2002) 54 NSWLR 738


case_title: Leary v Leary [1987] 1 WLR 72


case_text: A delegate of the Minister refused to grant the permanent visa. That refusal was affirmed on review by the Migration Review Tribunal. An application for judicial review was refused by Connolly FM: Chinda Nouv v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FMCA 1101. The appellant now appeals to this Court. 3 The factual background, the relevant legislation and the terms of the Tribunal's decision are set out in the decision of the learned Magistrate and it is not necessary to repeat them. 4 The appellant's counsel contended that the learned Magistrate erred in that he should have set aside the Tribunal's decision on the grounds that: 1. The Tribunal failed to take into account a mandatory relevant consideration, namely the appellant's travelling to Cambodia to participate in her husband's funeral; 2. The Tribunal misconstrued the visa criteria in that it: (a) failed to fix a point in time at which the visa criteria were to be considered; and (b) failed to take proper account of the effect of the grant of the provisional visa.


case_text: However, the way with which the Tribunal was required to deal with the factual material before it was affected by the way the case was put. Thus in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at 375 Deane J said: "... it is largely for the decision-maker, in light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide." 9 There were before the Tribunal some photographs showing the appellant at the funeral. Also some of the statutory declarations by friends of the appellant made passing reference to her attendance at the funeral. However, in four detailed submissions made to the Tribunal by the appellant's solicitors, totalling 16 pages, the only reference to the attendance at the funeral is in a letter of 22 September 2005 at page 6 where the solicitors say: "In response to some of the issues raised by the Delegate we are instructed: ... 6. The clothing belonging to the applicant's deceased husband was taken to Cambodia by the applicant when she attended his funeral. It is normal for a widow to give her husband's clothing to the poor and this is what she did. ... 10. The deceased left many of his personal papers with the applicant when he went to Cambodia. Copies of these accompany this letter. The applicant says this is consistent with normal arrangements between spouses. The applicant obtained her husband's passport from his mother in Cambodia when she visited at the time of the funeral." 10 Thus the references to the appellant's attendance at the funeral were not only brief, but were incidental to some other issue that was being dealt with. The funeral attendance was not put as something of relevance in itself.


case_text: As Phipps FM pointed out in the analogous case of Ho v Minister for Immigration and Multicultural Affairs [2006] FMCA 1285 at [28] , the Tribunal may have, and often will have, different and additional evidence bearing on the parties' relationship at the time of the grant of the permanent visa. It must make its own assessment of that evidence. There is no basis in the regulations for saying that it must accept as correct a previous decision based on different evidence. 15 The appeal will be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey. Associate: Dated: 10 November 2006 Counsel for the Appellant: J Gibson Solicitors for the Appellant: Clothier Anderson & Associates Counsel for the Respondent: G Livermore Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 November 2006 Date of Judgment: 10 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1474.html


case_title: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 29

case_text: This was a consideration the Tribunal was bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd 1986) [1986] HCA 40 ; 162 CLR 24 at 29. 7 It is true that in its detailed reasons the Tribunal did not mention the appellant's attendance at the funeral, although it did (at [41]) accept that she "may have experienced sadness at the time of the sponsor's death and ... that she and the sponsor may have been friends or become friends in the process of preparing and pursuing the visa application".


case_text: Once the new positions of Sous Chef and Chef de Partie had been filled, I am satisfied that the employer no longer required the job previously undertaken by Mr Roberts as Level 5 Supervisor to be done by anyone. Mr Roberts' position had become redundant ( R v Industrial Commission of South Australia; ex parte Adelaide Milk Supply Co-op Ltd (1977) 16 SASR 6 per Bray CJ at 8). However, Mr Roberts was unwilling to give up the position of Level 5 Supervisor. It seems likely that he did not understand that continuing in that position was not an option open to him. 26 The salary that was to be paid to the holder of the position of Chef was less than Mr Roberts was earning in the position of Level 5 Supervisor. Mr Roberts acknowledged that after he was offered the position of Chef on 10 October 2006 he spoke with Mr Osborne and expressed concern about the position's salary but not the need to sign an AWA. I accept that Mr Roberts was unwilling to sign an AWA that provided for an annual salary of $35,000 per annum. However, I am satisfied that he would not have accepted the Chef's position on that salary even if he were not required to sign an AWA. 27 I conclude that the only reasons why Mr Roberts' employment by the Club was terminated were that his position of Level 5 Supervisor became redundant following the implementation of the catering division's restructure and he was unwilling to accept the lower paid position of Chef. The Club has therefore proved that the termination was for reasons that do not include a proscribed reason (s 664 of the Act).


case_text: The application should be dismissed. Even if Mr McIlroy and Ms St Henry were members of the applicant at the relevant time (and I make no finding with respect to this issue) I am satisfied on the balance of probabilities, taking into account factors including the nature of the action, the respondent's defence, the nature of the subject-matter of the proceeding and the gravity of the matters alleged (including the fact that the claim involves breach of a civil remedy provision), that Mr McIlroy and Ms St Henry were not dismissed by the respondent for prohibited reasons in the meaning of s 793(1)(a) and (o) of the Act . I am satisfied that the presumption that the termination of the employment of Mr McIlroy and Ms St Henry was for a prohibited reason is rebutted by the credible evidence of Ms Burey and Mr Marshall as to the actual reasons for termination. Whether those reasons were "fair" reasons is not relevant the claim of the applicant as pleaded does not require me to consider the fairness or reasonableness of the conduct of the respondent (cf similar comments of Boon JR in Anderson v Edith Cowan University [1999] FCA 1802 at 104). 74 As a result of this finding, it is unnecessary for me to consider whether Mr McIlroy and Ms St Henry were in fact members of the applicant at the relevant times. ORDER 1. The application be dismissed. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 22 February 2007 Counsel for the Applicant: M Hinson SC and D Kent Solicitor for the Applicant: Hall Payne Lawyers Counsel for the Respondent: A Horneman-Wren Solicitor for the Respondent: Franklin Athanasellis Date of Hearing: 8 February 2007 Date of Judgment: 22 February 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/169.html


case_text: Mr Horneman-Wren on behalf of the respondent however submitted that in fact the burden of proof was akin to the Briginshaw test ( Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336) and therefore required proof to a higher standard than a mere balance of probabilities. 38 As Dixon J said in Briginshaw 60 CLR at 362-363 however: This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues... But consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.


case_title: Hamberger v CFMEU (2000) 104 IR 45

case_text: The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities is applicable as required by s 140(1) Evidence Act , however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the "mere balance of probabilities" as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.


case_text: The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ).


case_title: Maritime Union of Australia and Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34

case_text: As explained by Nicholson J in Maritime Union of Australia v Geraldton Port Authority [1999] FCA 899 ; (1999) 93 FCR 34 at 69, the words "or for reasons that include a prohibited reason" in s 792(1) permit a reason to be an operative reason provided it is one of the reasons for the conduct. As his Honour pointed out, it would not therefore have to be the "substantial" reason. 29 An important aspect of considering applications pursuant to Pt 16 of the Act is the onus of proof. Section 809(1) of the Act provides: (1) If: (a) in an application under section 807 relating to a person's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and (b) for the person to carry out the conduct for that reason or with that intent would constitute a contravention of this Part; it is presumed, in proceedings under this Division arising from the application, that the conduct was, or is being, carried out for that reason or with that intent, unless the person proves otherwise. (2) This section does not apply in relation to the granting of an interim injunction. 30 I have already explained that s 807 sets out penalties for contraventions of, inter alia , s 792(1). 32 The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ). 36 I note that both Nicholson J in Maritime Union of Australia [1999] FCA 899 ; 93 FCR 34 and Buchanan J in Seymour [2006] FCA 1452 recognised that it is for the respondent to prove, on the balance of probabilities, that the termination was not motivated by an impermissible reason. Mr Hinson SC on behalf of the applicant submitted that the standard of proof in this case was the civil standard of the balance of probabilities. 39 The case before me involves the application of civil remedy provisions, and penalties which can be awarded against the respondent if appropriate. In my view the issue raised by Mr Horneman-Wren may be addressed by recognising that the civil standard of proof - that is, the balance of probabilities is applicable as required by s 140(1) Evidence Act , however in applying the civil standard it is appropriate to take into account the issues prescribed in s 140(2). This does not mean that I am required to apply a higher standard of proof than the "mere balance of probabilities" as submitted by Counsel. It does, however, require me in this case, in applying the civil standard, to take into account the nature of the claim, the nature of the subject-matter of the proceeding, and the gravity of the matters alleged. In particular in the context of a civil remedy provision, I take into account the fact and the nature of the penalties which can be awarded against the respondent. This approach is consistent with the approach taken by Nicholson J in Maritime Union of Australia 93 FCR at 65. The duty of the court in such cases to take into account issues specified in s 140(2) has also been recognised in other Federal Court decisions including The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454 at 464 and Hamberger v CFMEU (2000) 104 IR 45 at 49.


case_title: Seymour v Saint-Gabain Abrasives Pty Ltd [2006] FCA 1452

case_text: The reasoning behind the reversal of the onus of proof was explained in the context of earlier equivalent sections of the Act by Nicholson J in Maritime Union of Australia 93 FCR at 68, citing Heidt v Chrysler Australia Ltd (1976) 26 FLR 257 at 266-271 per Northrop J, where his Honour said: If the applicant proves the conduct and alleges that the conduct was carried out for a prohibited reason, it is for the respondent to prove, on the balance of probabilities, that it was not motivated by an impermissible reason....... The reversal of the onus in respect of proof of the reasons for the conduct is a recognition that "the circumstances by reason of which an employer may take action against an employee are, of necessity, peculiarly with the knowledge of the employer": Heidt v Chrysler Australia Ltd at 267. (cf recent comments of Buchanan J in Seymour v Saint-Gobain Abrasives Pty Ltd [2006] FCA 1452 at [28] ). 33 Accordingly, in most cases an explanation of the real reason for dismissal consistent with the absence of a prohibited reason is, in a practical sense, also necessary to rebut the presumption (cf Buchanan J in Seymour [2006] FCA 1452 at [29] ). This explanation must appear in the evidence of the person or persons who made the decision to terminate the employment of the relevant employees. 34 Section 729 of the Act provides: A court hearing a proceeding under a civil remedy provision must apply the rules of evidence and procedure for civil matters. 35 The rules of evidence for civil matters are set out in s 140 of the Evidence Act 1995 (Cth): (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence; and (b) the nature of the subject-matter of the proceeding; and (c) the gravity of the matters alleged. 36 I note that both Nicholson J in Maritime Union of Australia [1999] FCA 899 ; 93 FCR 34 and Buchanan J in Seymour [2006] FCA 1452 recognised that it is for the respondent to prove, on the balance of probabilities, that the termination was not motivated by an impermissible reason. Mr Hinson SC on behalf of the applicant submitted that the standard of proof in this case was the civil standard of the balance of probabilities.


case_title: The Employment Advocate v National Union of Workers [2000] FCA 710 ; (2000) 100 FCR 454


case_text: The principles that can be drawn from these High Court decisions are similarly applicable in respect of the operation of ss 236 and 237 of the Act. It is not a matter of characterising the provisions of ss 236 and 237 as procedural or substantive (which may be relevant in another context (see eg Advent Investors Pty Ltd v Goldhirsch (2001) 37 ACSR 529 per Warren J)), but the question is whether the provisions condition the court's jurisdiction.


case_text: In relation to the Bank, the applicants submitted that the Bank: ...will be liable for the conduct of the Receivers if the Receivers were in fact its agents. If [the Bank] directed or interfered with the Receivers' activities, they will be the agents of [the Bank] (see American Express International Banking Corporation v Hurley [1985] 3 All ER 564 at 568(f) and 571(g); Florgale at [496]). The present case goes "beyond mere consultation or the communication of preferences" by [the Bank] but demonstrates that [the Bank] was "heavily involved in the performance of the Receivers' duties" (see State Bank of New South Wales Ltd v Chia [2000] NSWSC 552 ; (2000) 50 NSWLR 587 at [885-886] ). 111 I accept that if a mortgagee directs the exercise of the powers of a receiver, or interferes with his or her conduct in the realisation of assets, then the usual consequences of the agency relationship between the receiver and mortgagor may be displaced: Florgale 11 VR at [496]; Chia 50 NSWLR at [881]-[886]; American Express International Banking Corporation v Hurley (1985) 3 All ER 564 at 568 and 571.


case_text: The High Court of Australia recently revisited the question of applications for interlocutory injunctions in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (see especially at [19] per Gleeson CJ and Crennan J, and at [65]-[72] per Gummow and Hayne JJ). Justices Gummow and Hayne at [65] stated: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. (Emphasis added). 101 It is important, at this point, to again emphasise the context in which I am assessing the evidence. I am not to treat the application as a trial of the substantive issues. I need only be satisfied that there is a serious question to be tried in the way described by Gummow and Hayne JJ in O'Neill (2006) 227 CLR at [65]. I must look at the matter having regard to the whole of the evidence before me, and assess the conduct of the Receivers.


case_text: The High Court of Australia recently revisited the question of applications for interlocutory injunctions in Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 (see especially at [19] per Gleeson CJ and Crennan J, and at [65]-[72] per Gummow and Hayne JJ). Justices Gummow and Hayne at [65] stated: The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1 ; (1968) 118 CLR 618. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued [at 622-623]: "The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief ... The second inquiry is ... whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted." By using the phrase "prima facie case", their Honours did not mean that the plaintiff must show that is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. (Emphasis added).


case_text: More recently, the High Court of Australia considered the effect of non-compliance with statutory requirements in the decisions of Emanuele v Australian Securities Commission [1997] HCA 20 ; (1997) 188 CLR 114 and Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 ; (2006) 225 CLR 364. 46 In Berowra [2006] HCA 32 ; 225 CLR 364, the provision under consideration prohibited the commencement of proceedings within a specified time period. In breach of that provision, proceedings were commenced and an issue arose as to whether the proceedings so commenced were a nullity. The High Court (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) decided that the provision did not exclude the jurisdiction of the court (at [33] to [34]): Section 151C should not be read as if the entitlement of a plaintiff to commence court proceedings after the passage of six months from the giving to the employer of notice of the injury was a pre-condition to the jurisdiction conferred upon the court to determine claims for work injury damages... The better view is that the provision does not inevitably result in the invalidity of proceedings commenced in contravention of it, either for want of the court's jurisdiction or because the court has no jurisdiction except to accede to a defendant's application (whenever brought) to set aside the proceedings and to do so without regard to the procedural history and the relevant Rules of Court. 47 Justice Kirby noted in a separate judgment at [86] (footnotes omitted): Where parliament has enacted a provision in language which holds back from attaching consequences of nullity and voidness to the acts of a person in breach, it requires a very strong indication elsewhere in the Act that this is Parliament's purpose, if the Court is to derive an implication that this is so. This is because of the drastic consequences that can follow conclusions of nullity and voidness in the law. 50 In a similar way, the analysis undertaken in Berowra [2006] HCA 32 ; 225 CLR 364 is usefully applicable to my task of construing ss 236 and 237. Sections 236 and 237 are silent as to the consequences of commencing a proceeding without leave. There is no warrant to conclude that parliament intended that such proceedings be beyond the court's jurisdiction, as I can find no indication, strong or otherwise, to so conclude. It cannot be inferred that in the absence of parliament expressly stating that leave can be granted nunc pro tunc , the court does not have jurisdiction. This would be inconsistent with the wealth of authorities which provide for the grant of leave nunc pro tunc in respect of other provisions. More importantly however, by reference to the stated purposes of the legislation in the Explanatory Memorandum, it cannot be inferred that parliament contemplated that a company may be denied the benefit of the institution of proceedings where there is a proper basis to otherwise institute the proceedings, simply because proceedings were issued without leave. The express intention of parliament in introducing the statutory derivative action was to allow a simplified process for shareholders to appropriately bring valid causes of action on behalf of a company, which it would not do in its own right. 51 Further, I do not consider that, in expressly allowing for ex parte applications, it may be inferred that the legislation does not authorise the prior issue of the proceeding with leave to follow. True it is that the stated reasons for the requirement of leave are to allow the court to supervise the expenditure of company money, to prevent abuse of proceedings, and to guard against potentially "vexatious or unmeritorious" litigation. However, this purpose would not necessarily be defeated if leave were granted nunc pro tunc , as the criteria for the bringing of the proceedings still need to be considered to allow the matter to proceed. To permit an application to be made ex parte shows that parliament envisaged that in certain circumstances a party may need to approach the court urgently and without notice to interested persons, and permits the court to hear that application accordingly. By so permitting such an application to be made without notice and ex parte does not mean that it is a pre-condition to the jurisdiction of the court that leave be brought prior to the institution of proceedings in all circumstances. 52 In construing the provisions of legislation, it is always necessary to have cognisance of their context and the purpose the provisions are intended to serve. Sections 236 and 237 in themselves do not create the relevant causes of action that are sought to be maintained on behalf of the Company in the proceedings. Sections 236 and 237 identify the persons who may make or pursue a claim on behalf of a company and the requirements that must be met before the claims may be advanced. The court's jurisdiction is found in the substantive provisions of the Act or common law which empower it to adjudicate claims for breach of statutory and other duties. It may be inferred that parliament contemplated that the court having jurisdiction to hear the application, its general powers of correction would be available if faced with circumstances such as those arising in this application, or where there was inadvertence or oversight by a party in obtaining the necessary leave.


case_text: Thirdly, as I have said, I am proceeding on the basis that the applicants have available potential claims against the Receivers under ss 180 and 420A of the Act and on the basis of an equitable duty in favour of the Company. I accept that the equitable duty is as set out in Deangrove Pty Ltd v Buckby (2006) 56 ACSR 630 at [44] where Branson J said: ... the general law duties of a receiver when exercising a power of sale are analogous to those of a mortgagee (see, for example, Expo International Pty Ltd v Chant [1979] 2 NSWLR 820). As I observed in Gomez v State Bank of NSW Ltd [2001] FCA 1059 at [10] , that duty is a duty to act in good faith, without wilfully or recklessly sacrificing the interests of the mortgagor. The principle underlying the duty is that of 'unconscionability' (Hawkesbury Valley Developments Pty Ltd v Custom Credit Corporation Ltd (1995) NSW Conv R 55-731 per McLelland CJ in Eq.).


case_title: Donne v Lewis (1805) 32 ER 1221

case_text: Having taken the view that obtaining prior leave is not a condition to jurisdiction of the Court, it is still necessary to determine whether, in the circumstances of this case, leave should be granted nunc pro tunc . The general principle is that the court will enter a decree nunc pro tunc if it is satisfied that it is only doing now what it would have done then: see Emanuele 188 CLR at 132 per Toohey J citing Donne v Lewis (1805) 32 ER 1221 at 1222.


case_text: This requirement may be equated with that which applies on an application for an interlocutory injunction: Swansson 42 ACSR at [25] per Palmer J; Goozee 42 ACSR at [32]-[32] per Barrett J; Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705 at [59] per Austin J. 80 There is no requirement for the Court to make factual determinations about contested issues, as stated in Ehsman v Nutectime 58 ACSR 705 at [6]: In particular, under s 237(2)(d), the court does not make factual determinations concerning the case that the plaintiff seeks leave to assert on behalf of the company, but only considers whether there is a serious question to be tried. The limited nature of that question will often enable the court to avoid making determinations on contested questions of fact. 81 Three further matters must be observed. First, the application must be supported by evidence. I do not accept, with respect, that an "indication of the evidence" without actual evidence is sufficient (cf Re Varsity Queensland Ltd (2006) 60 ACSR 366 at [10] per Mullins J). 82 Secondly, the respondents have chosen not to rely upon any evidence as to the merits of the application. Whilst I may draw certain inferences from the failure of the respondents to provide evidence, the applicants must nevertheless satisfy each of the criteria on the balance of probabilities. The failure of the respondents to provide evidence cannot fill gaps in any necessary evidence of the applicants. However, where certain inferences are open, and the respondents have not led any evidence to rebut such inferences, I may be more confident that the inference should be made.


case_text: More recently, the High Court of Australia considered the effect of non-compliance with statutory requirements in the decisions of Emanuele v Australian Securities Commission [1997] HCA 20 ; (1997) 188 CLR 114 and Berowra Holdings Pty Ltd v Gordon [2006] HCA 32 ; (2006) 225 CLR 364. 42 In Emanuele [1997] HCA 20 ; 188 CLR 114, the Australian Securities Commission had failed to obtain leave before applying for a winding up order under the Corporations Law . The court held by majority that the absence of leave was a defect or irregularity capable of correction by the court. The majority approved the observations of Sholl J in Re Testro Bros [1965] VR 18 (at 125 per Dawson J; at 129 per Toohey J; at 153 per Kirby J). 49 The actual provisions considered in Emanuele [1997] HCA 20 ; 188 CLR 114 are not materially different to those with which I am concerned, and in my view the analysis of the High Court in that decision is equally applicable to ss 236 and 237 of the Act. The fact that ss 236 and 237 of the Act were not enacted against the background of a well-known body of case law which recognised the court's power to grant leave nunc pro tunc is irrelevant. The question is ultimately one of construction of ss 236 and 237, even accepting they create a new regime. In both the context of s 459P, as considered in Emanuele [1997] HCA 20 ; 188 CLR 114, and ss 236 and 237 there is envisaged the exercise of the court's supervisory jurisdiction in advance of the commencement of proceedings. Further, I do not consider that the mandatory terms of s 237(2) are sufficiently different to the requirement of s 459P(3), the latter being that the court be satisfied that there is a prima facie case that the company is insolvent. Both provisions have requirements which can be equally considered before or after the commencement of proceedings. 54 As Kirby J said in Emanuele 188 CLR at 152-153 (footnotes omitted): It is trite to say, but worth repeating, that the power of a court, such as the Federal Court, to correct obvious slips by orders in appropriate cases nunc pro tunc is one granted by legislation and the rules and implied in the express powers of the Court to avoid injustice. There is a reason for the tendency in the series of cases cited by McHugh JA in Woods v Bate [(1986) 7 NSWLR 560 at 567] and in other cases to like effect, for the reluctance of courts in recent times to invalidate acts done pursuant to a statutory provision because of a failure to comply with a prior procedural condition. Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural pre-conditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements. The Law is a case in point. Its complexity and detail is such that it has necessitated, within a short time of its enactment, the passage of the First Corporate Law Simplification Act 1995 (Cth). A number of further stages of simplification are promised. An undue rigidity in insisting upon strict compliance with all of the procedural requirements of the Law could become a mask for injustice and a shield for wrong-doing. 55 The real preliminary question in this application is that which I have just considered, namely whether the legislation, in requiring leave prior to the institution of proceedings, conditions the Court's jurisdiction. In my view it clearly does not. 57 Having taken the view that obtaining prior leave is not a condition to jurisdiction of the Court, it is still necessary to determine whether, in the circumstances of this case, leave should be granted nunc pro tunc . The general principle is that the court will enter a decree nunc pro tunc if it is satisfied that it is only doing now what it would have done then: see Emanuele 188 CLR at 132 per Toohey J citing Donne v Lewis (1805) 32 ER 1221 at 1222.


case_text: As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 61 The applicants bear the onus of satisfying the Court, on the balance of probabilities, that the criteria identified in s 237(2) have been met: Swansson v RA Pratt Properties Pty Ltd (2002) 42 ACSR 313 at [24]-[26] per Palmer J; Fiduciary v Morningstar 53 ACSR at [15] per Austin J; Re Varsity Queensland Pty Ltd [2006] QSC 356 at [9] per Mullins J. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: • whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and • whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J. 67 I accept that more than "bald assertion" is required in order to establish an applicant's honest belief: Swansson 42 ACSR at [36] per Palmer J; Fiduciary Ltd 53 ACSR at [22] per Austin J. In fact, in the present case no applicant has deposed that he or she honestly believes that a good cause of action exists and has a reasonable prospect of success. The applicants' solicitor, Mr Maitland, has not sought to give hearsay evidence as to the existence of such an honest belief. 72 In Fiduciary v Morningstar 53 ACSR at [51], Austin J held that: ... there is a balance to be struck between the prejudice that the company will suffer if claims are pressed unsuccessfully on its behalf and there is an adverse costs order, and the advantage that it will gain, indirectly for the benefit of its shareholders, if the claims are successful... 73 This issue is to a certain extent connected to the strength or otherwise of the case the applicants wish to advance on behalf of the Company. The applicants have accepted that they will bear the costs of the proceedings if unsuccessful. This puts the balance of the consideration of what is in the best interests of the Company in favour of the applicants. 74 I was concerned that whether the applicants could sufficiently demonstrate that the Company would be entitled to some monetary compensation, and not just nominal damages, could impact upon this criterion. After all, if there were no monetary advantage to the Company even if successful, this would need to be considered in the context of determining whether the proceedings would be in the best interests of the Company. In the course of submissions a great deal of time was spent on the issue of whether or not the applicants proved that the sale was for an undervalue. Objections were made to evidence (including expert evidence) sought to be adduced by the applicants on this issue.


case_text: Whilst it may be said that generally receivers should obtain two independent valuations prior to sale, or sell assets at a public auction, with a private sale as a last resort (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [10.2370]), this is not a rule of law. Nor is it a rule of law that receivers should attempt to bring competing bidders into competition (but see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 at 508-509 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2004) 11 VR 54 at [410] - [438] especially at [418]-[419]). However, they are matters of common sense in normal circumstances, and no satisfactory explanation has been offered for such a course not being followed in the circumstances. 111 I accept that if a mortgagee directs the exercise of the powers of a receiver, or interferes with his or her conduct in the realisation of assets, then the usual consequences of the agency relationship between the receiver and mortgagor may be displaced: Florgale 11 VR at [496]; Chia 50 NSWLR at [881]-[886]; American Express International Banking Corporation v Hurley (1985) 3 All ER 564 at 568 and 571.


case_text: Whilst it may be said that generally receivers should obtain two independent valuations prior to sale, or sell assets at a public auction, with a private sale as a last resort (see O'Donovan J, Company Receivers and Administrators (Lawbook Company) at [10.2370]), this is not a rule of law. Nor is it a rule of law that receivers should attempt to bring competing bidders into competition (but see Forsyth v Blundell [1973] HCA 20 ; (1973) 129 CLR 477 at 508-509 and Florgale Uniforms Pty Ltd v Orders [2004] VSC 65 ; (2004) 11 VR 54 at [410] - [438] especially at [418]-[419]). However, they are matters of common sense in normal circumstances, and no satisfactory explanation has been offered for such a course not being followed in the circumstances.


case_text: As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: • whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and • whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J. 78 This requirement may be equated with that which applies on an application for an interlocutory injunction: Swansson 42 ACSR at [25] per Palmer J; Goozee 42 ACSR at [32]-[32] per Barrett J; Ehsman v Nutectime International Pty Ltd (2006) 58 ACSR 705 at [59] per Austin J.


case_text: As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: • whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and • whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J.


case_text: As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point.


case_text: There was no contention that the court would not have the power to make the appropriate correction if the court had the appropriate jurisdiction. The proceeding having now been filed with the Court has enlivened the jurisdiction of the Court, and the Court can thus proceed to consider the issues raised for its determination: see Johnston v Vintage Developments Pty Ltd [2006] FCAFC 171.


case_title: Karam v ANZ (2000) 34 ACSR 545

case_text: In addition, given the possibility that the causes of action will be statute-barred if one takes the view that leave should not be granted nunc pro tunc , this will deny the Company any potentially good cause of action. In those circumstances incurable prejudice may flow to the Company. On the other hand, the respondents merely seek to protect a forensic windfall, which is not a proper basis for denying leave nunc pro tunc : see Karam v ANZ (2000) 34 ACSR 545 per Santow J. Nowhere does any respondent indicate any other relevant prejudice arising from granting leave nunc pro tunc , if it were otherwise appropriate to do so.


case_text: I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances. 60 As set out above, a person referred to in s 236(1)(a) may apply to the court for leave to bring proceedings. On such application, the court must grant leave if the criteria set out in s 237(2) are satisfied. The prevailing view is that failure to satisfy any one of these criteria means that leave must be refused: see Jeans v Deangrove Pty Ltd [2001] NSWSC 84 at [9] per Santow J; Goozee v Graphic World Holdings Pty Ltd [2002] NSWSC 640 ; (2002) 42 ACSR 534 at [27] per Barrett J; Herbert v Redemption Investments Ltd [2002] QSC 340 at [25] per Mackenzie J; Maher v Honeysett [2005] NSWSC 859 at [12] per Brereton J; compare Fiduciary Ltd v Morningstar Research Pty Ltd (2005) 53 ACSR 732 at [16], where Austin J found it unnecessary to decide the point. 64 In relation to the second criterion that the applicants are acting in good faith it is established that there are at least two interrelated factors to which the court will have regard, namely: • whether the applicants have an honest belief of a good cause of action with reasonable prospects of success; and • whether the applicants have a collateral purpose that would amount to an abuse of process. See Swansson 42 ACSR at [36] per Palmer J; Goozee 42 ACSR at [56] per Barrett J; Herbert [2002] QSC at [27] per Mackenzie J; Fiduciary v Morningstar 53 ACSR at [21] per Austin J; Maher v Honeysett [2005] NSWSC 859 at [28] per Brereton J.


case_text: The first matter raised was whether this application was to be regarded as interlocutory or as a final proceeding. This question arose in the context of the operation of s 75 of the Evidence Act . A number of authorities were referred to, but it is important to recall that care must be taken before applying cases which are not concerned with the meaning of the term "interlocutory" for the purposes of the Evidence Act , but rather with the meaning of the term in the context of statutory provisions concerning leave to appeal. The point was made by the Full Court in Malouf v Malouf [1999] FCA 284 ; (1999) 86 FCR 134 at [33] : It has long been accepted that the terms "final" and "interlocutory" may mean different things in different contexts: see Salter Rex and Co v Ghosh [1971] 2 QB 597 at 600-601; Tampion v Anderson (1973) 48 ALJR 11 at 12-13; Wentworth v Wentworth (unreported, Supreme Court, NSW, Santow J, 17 April 1997) at p 4. It is not difficult to find good reason for allowing relaxation of the hearsay rule in a narrower category of cases than that in which the right of appeal is truncated by a requirement for leave. The latter requirement merely places the parties in the hands of the Court. Relaxation of the hearsay rule may substantially affect the outcome of the proceedings or the way in which they are conducted. 23 I need not and do not consider this matter any further, as whether the application is treated as interlocutory or not for the purposes of s 75 of the Evidence Act does not impact upon my conclusions. However, I am of the tentative view that for the purposes of s 75 of the Evidence Act the application should be regarded as interlocutory. 24 The second preliminary matter related to the characterisation of the right under ss 236 and 237 of the Act to bring the proceedings and whether leave can be granted nunc pro tunc .


case_text: A mortgagee has no power to direct a receiver in the performance of the receiver's task: Medforth v Blake [1999] EWCA Civ 1482 ; [2000] Ch 86 at 94-95; Chia 50 NSWLR at [881]. Nevertheless, communication between the receiver and the mortgagee is entirely proper. As was stated by Einstein J in Chia 50 NSWLR at [881] (citations omitted): But there is no doubt that the law allows, and even requires, interaction between a receiver and his or her appointors. The receiver occupies a fiduciary relationship with his or her appointors, one aspect of which is the duty of the receiver to keep his or her appointors informed about the progress of the receivership.


case_text: I note that there have been a number of cases in which leave to proceed under s 237 has been granted nunc pro tunc : see McLean v Lake Como Venture Pty Ltd [2004] 2 Qd R 280; RTP Holdings Pty Ltd v Roberts (2000) 36 ACSR 170; and Maher v Honeysett & Maher Electrical Contractors [2005] NSWSC 859. I accept that in these cases no objection was taken to the grant of leave nunc pro tunc . It seems to me, having analysed the position, the grant of leave nunc pro tunc would be an available order to make in appropriate circumstances.