case_text: The respondent challenged the competency of the appeal on the ground that it did not disclose a question of law as required by s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) ('the AAT Act'). That objection to competency came before Branson J who accepted that the notice of appeal did not identify a question of law capable of constituting the subject matter of the purported appeal ( Lim v Secretary, Department of Education, Employment and Workplace Relations [2008] FCA 1058). Her Honour concluded at [12] that the: ... factual assertion that Mr Lim had made arrangements, apparently after breaching one of his agreements, to attend at WorkDirections on an extra day in a later week does not itself constitute a question of law. Nor does it by implication raise a question of law the answer to which could throw doubt on the correctness of the decision of the Tribunal. The references in the notice of appeal to the law of "attendance" and "reasonable excuse" do not assist Mr Lim in this regard. 9 However, her Honour gave consideration to any questions of law that Mr Lim could reasonably expect to be able to obtain leave to include in his notice of appeal were he to apply to amend the document. Her Honour said at [15]: However, it seems to me that it is at least arguable that none of the agreements between Mr Lim and WorkDirections is "a Newstart Activity Agreement between the Secretary and the person" within the meaning of s 624 of [the Act]. In particular I consider it arguable that the Secretary has not approved a form of Newstart Activity Agreement for an agreement between a person and a party other than Centrelink. It may also be arguable that the authority of the Secretary to delegate all or any of the Secretary's powers under [the Act] is insufficient to alter the requirements of s 605(4) that a Newstart Activity Agreement be between the person and the Secretary. I do not mean thereby to suggest that the Secretary could not delegate his or her power to sign such an agreement. However, the agreements entered into by Mr Lim do not purport to be agreements between him and the Secretary. They purport to be agreements between him and WorkDirections. 10 Mr Lim filed an amended notice of appeal on 25 July 2008 and a further amended notice of appeal on 20 August 2008. In the further amended notice of appeal the questions of law raised are: 1. Whether it was open to the Tribunal to be satisfied that the agreements entered into by Mr Lim were Newstart Activity agreements within the meaning of s 624 of [the Act] . 2. Whether it was open to the Tribunal to proceed hearing when the respondent (Secretary, DEWR) was not the same person who purported to have activity agreement with Mr Lim within the meaning of s 624 of [the Act] . 11 The ground stated in the further amended notice of appeal is ' covering up the truth and deceiving the court process '. I do not propose to deal with this ground further. Nothing was raised that would support any such conclusion. 12 The findings of fact that Mr Lim asks the Court to make are: 1. Agreements which Mr Lim signed are not approved by the Secretary s 234 instrument. Agreements which Mr Lim signed are purported to be agreement between Mr Lim and Workdirections. 2. The newstart agreement was purported between Mr Lim and the Secretary of liberal govt. At the AAT hearing, the solicitor of respondent represent Miss Lisa Paul, Secretary of labour govt. Miss Paul was not privity to the newstart agreement with Mr Lim. 49 Although the respondent was unsuccessful in the objection to competency of the appeal, it was Branson J, not Mr Lim or his notice of appeal, that disclosed an arguable case. 50 While the respondent has established the validity of the Lim Activity Agreements and Mr Lim's application is to be dismissed, it was only after a series of attempts to validate the agreements and errors that were identified by Mr Lim and by the Court. In the circumstances, I note that the respondent has not sought an order as to costs and I will make no order as to costs. I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett. Associate: Dated: 21 November 2008 The Applicant was self-represented Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 8 October 2008, 6 November 2008 Date of last written submissions: 13 November 2008 Date of Judgment: 21 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1752.html


case_outcome: cited

case_text: As was the case for the Departmental Officer in Luan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 72 , an employee of WorkDirections Australia could only exercise the power to sign an agreement that resulted in Centrelink payments if delegated by the Secretary to do so. The Lim Activity Agreements are written agreements in a form approved by the Secretary. That approved form provides not for the signature of the Secretary but for the signature of the Employment Service Provider/Customer Service Adviser. This was the format of the Lim Activity Agreements. 41 The fact that the agreements were signed by employees of WorkDirections Australia, as delegates of the Secretary, does not preclude the agreements being between the Secretary and Mr Lim, despite the fact that the WorkDirections Australia employees did not indicate the source of power to enter into the agreements. Nor does it otherwise preclude the agreements being Newstart Activity Agreements within s 605(4). 42 The Lim Activity Agreements are agreements between the person (Mr Lim) and the Secretary for the purposes of ss 605(4) and 624 of the Act.


case_text: The applicant has filed a notice of appeal, appealing against the judgment and orders made by Jessup J. In due course that appeal will proceed to an appellate hearing subject to any other orders that might be made in the usual course of the preparation of an appeal. The general principle which is applied in the Court is that an appeal does not operate as a stay unless the Court or a Judge otherwise orders. Whether or not such a stay should be granted depends upon whether the Court or a Judge thinks in all the circumstances that the matter is an appropriate case for the grant of a stay. See, for example, Powerflex Services Pty Ltd v Data Access Co (1996) 137 ALR 498. 7 The application for the stay is made in respect of all the orders made by Jessup J but, as I understand it, particularly in respect of order number 4. In respect of the first three orders there is not, so far as the applicant is concerned, anything to stay which might impact upon her. 8 The first order is that, to the extent not previously dealt with by the Court, the applicant's motion is dismissed. There is no point in staying that order if the applicant is dissatisfied with that order. The proper process is to appeal against it and that she has done.


case_outcome: followed

case_text: approach to be followed in considering this application is well-settled. In Bankinvest AG v Seabrook (1988) 14 NSWLR 711 at 714, Street CJ described the question as a "nuts and bolts" management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute. There is no principle to be enunciated other than the necessity of applying the specific considerations stated in the cross-vesting legislation; the primary amongst them being the pursuit of the interests of justice. Rogers A-JA, with whom Kirby P agreed, said at 727 that the only "lodestar" that a judge may steer by is what to do in the interests of justice. His Honour observed that it is inapt to speak in terms of onus. Rogers A-JA also referred, at 729, to the expense and inconvenience which must be taken into account in determining which court is the more appropriate. His Honour also observed, at 725, that it is important to give full effect to the imaginative and detailed code laid down by the cross-vesting legislation for ensuring that throughout Australia, disputes are dealt with by the one court and that be the court which is most appropriate for the particular dispute. In BHP Billiton Limited v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 , Gleeson CJ, McHugh and Heydon JJ observed, at [7], that the criterion for transfer established in section 5 is that it is in the interests of justice that the proceedings be determined in the other court. Their Honours, at [13], referred, with apparent approval, to the remarks of Street CJ in Bankinvest . Their Honours also went on to say, at [14], that the exercise is not one of determining whether the particular court's jurisdiction has been regularly invoked; rather, the court hearing such an application is required to ensure that cases are heard in the forum dictated by the interests of justice. A scheme has been established for the shareholder claims to be the subject of the representative action which has now been brought in the WA Supreme Court. It is in the interests of justice that account be taken of the scheme and the need to avoid unnecessary duplication of the costs. Moreover, as their Honours observed in BHP Billiton v Schultz , the interests of justice are wider than those of the parties to the proceedings and, here, it is important to take into account the interests of the creditors generally. It cannot be in the interests of the creditors of SOG to have two related proceedings running in two separate jurisdictions. The observations made by Rogers A-JA in Bankinvest also support this factor as a relevant one to take into account in determining the interests of justice.


case_text: BHP Billiton Limited v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 , Gleeson CJ, McHugh and Heydon JJ observed, at [7], that the criterion for transfer established in section 5 is that it is in the interests of justice that the proceedings be determined in the other court. Their Honours, at [13], referred, with apparent approval, to the remarks of Street CJ in Bankinvest . Their Honours also went on to say, at [14], that the exercise is not one of determining whether the particular court's jurisdiction has been regularly invoked; rather, the court hearing such an application is required to ensure that cases are heard in the forum dictated by the interests of justice. A scheme has been established for the shareholder claims to be the subject of the representative action which has now been brought in the WA Supreme Court. It is in the interests of justice that account be taken of the scheme and the need to avoid unnecessary duplication of the costs. Moreover, as their Honours observed in BHP Billiton v Schultz , the interests of justice are wider than those of the parties to the proceedings and, here, it is important to take into account the interests of the creditors generally. It cannot be in the interests of the creditors of SOG to have two related proceedings running in two separate jurisdictions. The observations made by Rogers A-JA in Bankinvest also support this factor as a relevant one to take into account in determining the interests of justice.


case_outcome: referred to

case_text: other legislative provisions on which SOG and the administrators rely state the criteria for the exercise of the power to transfer proceedings in terms which may be said to be less prescriptive than under the cross-vesting legislation. The power to transfer under the Trade Practices Act is stated in discretionary terms. In Re Wilcox; ex parte Venture Industries Pty Limited (1996) 66 FCR 511 at 529, the Full Court said that: [A] manifest object of the cross-vesting legislative scheme as enacted by the Commonwealth in 1987 was for the [ Trade Practices Act ] and the [ Cross-Vesting Act ] to provide separate, albeit overlapping, but additional sources ... of power ... Under section 1337H of the Corporations Act , the Federal Court is not required to consider whether the proceedings arise out of or are related to another proceeding. The background to these matters is set out in the affidavit of Darren Gordon Weaver sworn on 18 June 2008. Mr Weaver is one of the respondents to the proceedings and is one of the administrators of SOG. It is convenient to refer to the content of Mr Weaver's affidavit.


case_outcome: related

case_text: The background and the nature of the principal proceeding is set out in the judgment given by me in relation to an application by the applicants for an asset preservation order: see KGL Health Pty Limited v Mechtler [2007] FCA 1410. I will not repeat those matters here. 3 The Amended Cross-Claim alleges that, in breach of a lease ("the Lease") with Rosanza, Peninsula Hospital Management Pty Limited ("Peninsula") as lessee, has failed to pay rent, GST, outgoings, insurance premiums and interest in the amount of $419,129.40 to Rosanza. 4 In paragraph 1 of the Defence to the Amended Cross-Claim, the cross-respondents admit that they are in breach of the Lease because Peninsula failed to pay the above amount. However, that admission is made subject to paragraphs 8 and 9, which deny that Rosanza is entitled to any relief sought due. This non-entitlement, it is said, is due to Peninsula's claims in the principal proceeding, or to the contention that the rent and other payments due under the Lease were abated to nil from the commencement of the Lease by reason of clause 11.


case_text: It was contended by the appellants that his Honour erred in law in finding that some link must be established between the claims expressly articulated by the applicant and other claims that clearly arise on the material before the Tribunal. It was contended that in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 ; (2004) 219 ALR 27 at [60] , the Full Court confirmed that a Tribunal is required to consider claims that clearly arise on the material before it when conducting a review, and the Full Court did not limit this requirement to those claims the applicant adopted or which were aligned with the claims advanced by the applicant. 45 It was then contended that his Honour erred in finding that there was no evidence which identified the relationship between the statements of the witnesses and the appellants' claims. It was argued that the relationship was clearly made out by the appellants having requested the witnesses give evidence before the Tribunal and by the content of the witnesses' evidence, and that that evidence contained information specific to the appellants and made specific claims about the consequences the appellants faced if they were made to return to Laos. As such, it was submitted, the learned Federal Magistrate erred in finding that the Tribunal had not failed to conduct a review as required by s 414 when it did not consider all the claims that clearly arose on the material before it. 46 It seems clear to me that whether or not it was obliged to do so, it is apparent from the Tribunal's decision that it did have regard to the evidence supplied by the three witnesses. The content of the material supplied by the witnesses was set out comprehensively in the Tribunal's reasons and the Tribunal's substantive consideration of that material is also apparent. In the relevant passage the Tribunal notes that the witnesses' statements were directed to the likely consequences to the appellants of a return to Laos and concludes that the witnesses 'went beyond giving evidence about matters they had knowledge about and speculated about what they thought would happen to the applicants in Laos'. The witness statements were effectively discounted as being speculative. 47 Therefore, even if the statements did cover claims other than those of the appellants, the Tribunal found the statements were speculative and therefore could not be relied upon. It would not matter then whether the evidence of the witnesses purported to support the claims of the appellants; they were of such quality that the Tribunal could not rely upon them for any purpose, even if they did canvass other claims or matters. 48 In the terms of the Full Court decision in NABE , the claims said to arise out of the letters of the three witnesses were not claims that clearly arose from the material before the Tribunal in view of the evidence's speculative nature as found by the Tribunal. The Tribunal, having reviewed all the material before it, including the unreliability of the appellant husband, gave no weight to the three witnesses the appellants sought to rely upon. This, the Tribunal was entitled to do. 49 It is worthwhile setting out the relevant part of the Tribunal's reasons, which in my view show clearly the approach of the Tribunal as outlined above. The Tribunal notes that Mr Sacsady, Mr Arounsavat and Miss Arounsavat made certain assertions in their letters about what the applicants would face if they returned to Laos which the applicants themselves had not explicitly or implicitly claimed to fear . Mr Sacsady stated that the first and second named applicant had 'declared' themselves to be against communism and would be punished as 'political criminals'. However, the second named applicant has made no such claim. The only fear of harm she claimed to have was related to her husband allegedly accommodating members of the underground group in their home in Laos. She did [not] claim that she would be viewed adversely by the Lao government for any other reason or that she feared harm fro any other reason. Mr Arounsavat stated that if the applicants returned to Laos the first named applicant would not be able to return to teaching, the second named applicant would not be able to continue to operate her business and the third named applicant's education would be negatively affected. No such claims were made by the applicants and in fact the second named applicant stated in the protections visa application that her occupation in Laos was 'home duties'. Ms Arounsavat asserted that the applicants would face certain financial and social difficulties if they returned to Laos. Again no such difficulties were claimed by the applicants. There is nothing in the letters to indicate that the applicants had made such claims to Mr Sacsady, Mr Arounsavat or Miss Arounsavat. Although Mr Arounsavat assisted the applicants with their application and was listed as the applicants' adviser in the review application, he was invited to write to the Tribunal in his capacity as a witness not as an adviser. Further, nothing in his letter indicates that he was advancing the matters referred to in the last paragraph of his letter upon the instructions of the applicants in his capacity as their adviser. The Tribunal concludes that Mr Sacsady, Mr Arounsavat or Miss Arounsavat went beyond giving evidence about matters they had knowledge about and speculated about what they thought might happen to the applicants in Laos . The applicants had the opportunity to make their claims in their protection visa application, in their review application, prior to the Tribunal hearing and at the Tribunal hearing. As they neither explicitly nor implicitly made claims about the above matters raised by Mr Sacsady, Mr Arounsavat and Miss Arounsavat they do not require consideration by the Tribunal. ... On the basis of the above problems with the first named applicant's evidence the Tribunal has concluded that he is thoroughly lacking in credibility and invented the claims that he joined the underground government group. The Tribunal does not accept that he did so or that he assisted the group in any way. Having found him to be an unreliable witness, the Tribunal gives no weight to the second named applicant's evidence or the letters from the first named applicant's father and godfather. There is nothing in the evidence of Mr Sacsady or Miss Arounsavat which indicates that they have independent or personal first hand knowledge of the applicant's involvement with the group thus their evidence is of no weight in that regard. In his written evidence, Mr Arounsavat states '... in knowing that Khongmany has proactively helped his uncle ...'. It is not clear from this whether Mr Arounsavat is claimed to know that the first named applicant was involved with the uncle in Laos because that is what the first named applicant has told him or because he has some other independent knowledge of this. Given that Mr Arounsavat states he came to Australia in 1988 and has not been able to return to Laos it seems unlikely he would have any first hand knowledge that the first named applicant was associated with his uncle's group in Laos. In any event, as the Tribunal has found the first named applicant to be an unreliable witness, it gives no weight to this aspect of Mr Arounsavat's evidence. The Tribunal accepts on the basis of the receipts, the copy of the article and the evidence of Mr Sacsady that the first named applicant joined some Lao organisations in Australia and wrote at least one article critical of the Lao government. However, as it has found the first named applicant to be an unreliable witness who invented his claims about his political activities in Laos, it is not satisfied that he engaged in that conduct other than for the sole purpose of strengthening his claim that he is a refugee . Accordingly, pursuant to s 91R(3) the Tribunal must disregard the first named applicant's conduct in Australia in assessing his claim to be a refugee. (own emphasis added) 50 I do note that the Tribunal did observe that as the appellants did not make claims about certain matters raised by the three witnesses, 'they do not require consideration by the Tribunal'. Having regard to the passages referred to above, this may have been one basis for the decision, but a fair reading of the Tribunal's reasons as set out above indicates that the Tribunal did in fact consider the evidence and that the substantive basis for disregarding the evidence was its speculative nature.


case_text: The relevant matters to be considered in an application for leave to adduce a new ground of appeal are those outlined in VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at [21] - [38] ; and NAJT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 134 ; (2005) 147 FCR 51 at [154] - [175] . Such matters are as follows: • the merit of the new ground; • any explanation as to why the new ground was not raised at trial; • the dislocation to the court and the efficient use of judicial sitting time if the new ground were to be argued; • the stakes for the appellant if leave is refused; • the prejudice, if any, to the respondent; and • where the interests of justice lie with the granting of leave.


case_text: As I have found no jurisdictional error I do not need to consider whether I should exercise my discretion to refuse relief in the event that jurisdictional error was found. However, it seems to me this would have been the appropriate case to refuse relief if the only jurisdictional error was a failure to comply with s 441A: see generally Re Refugee Review Tribunal; Ex parte Aala [2000] FCA 57 ; (2000) 204 CLR 82 and SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609.


case_title: SZBYR v Minister for Immigration and Citizenship [2007] FCA 26 ; (2007) 235 ALR 609


case_title: VAAC v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168


case_text: Zealand, by its counsel, has confirmed that, in accordance with the requirements of the Extradition Act 1988 (Cth), the respondents will not be removed to New Zealand before any timely application which they may make for special leave to appeal to the High Court is heard and determined. I therefore consider it appropriate to approach the question of whether a stay of the orders of the Full Court should be granted on the basis that the discretion to order a stay should only be exercised if the circumstances justify a departure from the ordinary rule that a successful litigant is entitled to the benefit of a court's judgment pending the determination of any appeal ( Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13 ; (1986) 160 CLR 220 per Dawson J at 222-223). It would not be appropriate to order a stay simply to preserve the status quo ( Edelsten v Ward (No 2) (1988) 63 ALJR 346).


case_title: Federal Commissioner of Taxation v Myer Emporium Ltd [1986] HCA 13 ; (1986) 160 CLR 220


case_outcome: applied

case_text: I observed in the case of Heslehurst v Government of New Zealand [2000] FCA 937 at [16] , in the context of an application for bail under s 35(6)(g)(iv) of the Extradition Act : 'The Court does not treat lightly the deprivation of liberty of any person before it, particularly where that person is unwell. However, the Court is obliged to apply the direction of the legislature which places a significant onus in a case such as this on an applicant for bail. It is to be remembered that Australia has continuing obligations to New Zealand which are reflected in the terms of s 35(6) of the Act.' The onus to which I referred in Heslehurst is applicable in this case in a practical, if not a strictly legal, sense (see [4] above). The present application is not brought under s 35(6) of the Extradition Act but Australia's obligations to New Zealand are the same as the obligations to New Zealand to which I referred in Heslehurst . Having given anxious consideration to the material upon which the respondents rely in support of their stay application, I am not satisfied that the material demonstrates the exceptional circumstances necessary to warrant the grant of the stay which they seek. It is open to them to follow the course envisaged by the Extradition Act (ie to make an application to the High Court for bail) with little delay. If such an application is made and it succeeds, the time that they will spend in custody because of the failure of this application for a stay of the Full Court's orders will be brief. The application to stay the orders of the Full Court pronounced this morning is dismissed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson. Associate: Dated: 18 October 2006 Counsel for the Applicant: Ms W Abraham QC and Mr I Bourke Solicitor for the Applicant: Commonwealth Director of Public Prosecutions Counsel for the Respondent: Mr P Byrne SC and Mr M Thangaraj Solicitor for the Respondent: Greg Walsh & Co Date of Hearing: 5 October 2006 Date of Judgment: 5 October 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1363.html


case_text: considering whether the above test is satisfied in this case it is appropriate to note that special leave to appeal to the High Court is not readily granted. Apart from the exceptional case in which special leave to appeal to the High Court is granted, a final judgment of the Full Court of this Court is conclusive of any issue arising under the Extradition Act (cf Rahme v Commonwealth Bank of Australia [1993] HCA 62 ; (1993) 117 ALR 618 per Deane J at 620). It is always difficult to assess the likelihood of an application to the High Court for special leave succeeding. Nonetheless in this case I consider it appropriate to give some weight, but not overriding weight, to the fact that the judgment of the Full Court was a unanimous judgment of five judges based on established authority. For this reason it may be assumed that the respondents' application to the High Court will face particular difficulty. The respondents have placed primary reliance on factors which can, I think, be categorised under three headings. First, their previous conduct in the sense that they have been on bail for a long time; have a good record of compliance with conditions of their bail; and have voluntarily attended before this Court on the hearing of their appeal and when judgment was delivered this morning. Secondly, that they seek a stay for a relatively short period of time. Thirdly, that they are both in poor health, including poor psychological health and may face more than usual problems should they be incarcerated.


case_text: appellant, a minor, now aged 11, appeals from the decision of the Federal Magistrates Court of Australia published on 30 June 2008 ( SZLWA v Minister for Immigration & Anor [2008] FMCA 952) dismissing an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 20 November 2007 affirming a decision of the Minister's delegate not to grant the appellant a protection visa. Background to the application for a protection visa The appellant arrived in Australia with her mother on 3 February 2001. Her mother applied for a protection visa on 19 March 2001 with the appellant included as a dependent without separate claims of her own. The application was refused on 2 April 2001. That refusal was affirmed by the Tribunal on 27 June 2003. The Federal Magistrates Court of Australia (the "Federal Magistrates Court") dismissed an application for review and the Full Court of the Federal Court of Australia dismissed an appeal from that decision. The High Court of Australia (the "High Court") refused special leave to appeal. The appellant's father arrived in Australia on 4 September 1997. He applied for a protection visa on 16 October 1997. The application was refused on 11 November 1997 and that refusal was affirmed by the Tribunal on 15 November 1999. An application for review before the Federal Court was dismissed on 15 August 2000. He made an application for Ministerial intervention. That application was refused. He lodged another application for a protection visa on 5 October 2001 on the footing that his original application was invalid. The application was accepted for consideration but was refused on 26 March 2002. That refusal was affirmed by the Tribunal on 30 June 2003. The Federal Magistrates Court dismissed an application for review and the Full Court of the Federal Court dismissed an appeal from that decision. The High Court refused special leave to appeal. Another application for Ministerial intervention was made by the appellant's mother and father on 4 January 2006. The application was unsuccessful. The appellant made an application for a protection visa on 17 May 2007 and lodged in support of that application a statement and other supporting information and documents. The appellant relies on the factual foundation previously identified by her parents as the basis for a claim that she holds a well-founded fear of persecution for a Convention reason, namely, her membership of a social group. On 15 June 2007, the appellant's application was refused. On 16 July 2007, the appellant applied for review of the delegate's decision before the Tribunal. On 17 August 2007, the Tribunal invited the appellant to give evidence at a hearing before the Tribunal and to provide further information in accordance with s 424 of the Migration Act 1958 (Cth) ("the Act"). On 22 August 2007, the appellant was invited to provide further information in accordance with s 424 of the Act and on 13 September 2007 the appellant gave oral evidence before the Tribunal. The appellant presented arguments in support of the application for review with the assistance of a Bengali interpreter. The appellant's father also gave oral evidence at the hearing. On 20 September 2007, the Tribunal wrote to the appellant in accordance with s 424A of the Act and invited the appellant to comment on a range of information which the Tribunal considered would be the reason or at least part of the reason for its decision. The Tribunal received a response to that letter on 15 October 2007. On 20 November 2007, the Tribunal affirmed the delegate's decision. The reasons for the decision were handed down on 11 December 2007. Short synopsis of the foundation facts relied upon by the applicant/appellant The appellant is a child. She is a member of the Bihari ethnic group. She has resided at the Mohammadpur Geneva Camp Dhaka from the time she was born until she left Bangladesh in January 2001 for Australia. She is stateless due to her membership of the Repatriate Bihari community. When her father left Bangladesh, the Bangladeshi community, supported by Awami League activists, harassed and tortured the appellant's mother on several occasions. On 29 July 1999, Bangladeshi locals together with Awami League activists attacked the camp and abducted the appellant and her mother together with some other females in the Bihari community. They were detained and tortured physically and mentally for three days before being thrown on the street unconscious. The police were reluctant to accept and register a complaint from the appellant's mother due to the support by the police of Bangladeshi locals.


case_text: the appellant's father had acknowledged to a previous Tribunal that the relevant documents were fraudulent and the Tribunal was satisfied that he was a party to the falsification of the documents (AB386). At AB602, the Tribunal noted that the appellant's father had admitted that his friends had falsely put particular documents together for him. Moreover, these matters were raised by the s 424A letter of 20 September 2007. Second, the Tribunal is not required to make enquiries to verify contentions or to make out a case for the appellant ( Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at [78]). Third, as to the question of putting the appraisal process to the appellant, Finn and Stone JJ said this in VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471 at [24] in connection with what might constitute information for the purposes of a s 424A letter: ...the word ["information" in the s 424A setting] does not encompass the Tribunal's subjective appraisals, thought processes or determinations: Tin at [54]; Paul at [95]; Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 1679 at [25] ; appr [2002] FCAFC 120 ; nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the Tribunal in weighing up the evidence by reference to those gaps, etc: WAGP of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 266 ; (2002) 124 FCR 276 at [26] [29].


case_title: VAF v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 206 ALR 471


case_text: although the appellant was previously included as a dependent in her mother's application for a protection visa, the appellant remains entitled to make an independent application for a protection visa: Soondur v Minister for Immigration & Multicultural Affairs (2002) 122 FCR 578 per Gray, Carr and Goldberg JJ. The respondent makes no challenge to the competency of the application. Second, there seems to be no authority on the question of whether the scope of the inquisitorial role of the Tribunal might be different or whether the Tribunal might be required to make particular enquiries, in discharging the statutory duty of review, when the application for review is made by or on behalf of a minor. In this case, however, the question does not arise because the application was made by the appellant in reliance on the circumstances and claims of her parents and her father had the carriage and prosecution of the application for a protection visa on her behalf and also in relation to all subsequent challenges by the appellant. The appellant's interests before the Tribunal were represented by her father as next friend. Accordingly, it follows that none of the grounds of appeal to this Court have been made out. It therefore follows that the appeal must be dismissed with an order that the appellant pay the first respondent's costs of and incidental to the appeal. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate: Dated: 26 August 2009 Counsel for the Appellant: Appellant appeared in person Solicitor for the Appellant: Appellant appeared in person Counsel for the First Respondent: Ms S Sirtes Solicitor for the First Respondent: DLA Phillips Fox Lawyers Date of Hearing: 3 November 2008 Date of Judgment: 26 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/952.html


case_outcome: distinguished

case_text: There is no dispute that ASIO may be subject to judicial review. So much was conceded in, and accepted by, the High Court in Church of Scientology Inc v Woodward [1980] HCA 38 ; (1982) 154 CLR 25. There are limits on the scope of that review but the usual administrative law remedies would be available to the applicants if they are able to establish jurisdictional error. 18 The primary difficulty that each of the applicants faces in bringing his claim is that he has not seen his adverse security assessment and alleges that he does not know the facts or reasoning by which the Director-General made the adverse security assessment. Without this material, it will be difficult, if not impossible, for the applicants to make out their claim that the adverse security assessments were not made in accordance with law. It is therefore critical to the applicants that the Court order discovery of, at very least, the adverse security assessments. I therefore ordered, on 1 June 2006, that the parties make submissions on discovery, which they have subsequently done both in writing and at the hearing on 20 July 2006. 40 In Church of Scientology v Woodward [1980] HCA 38 ; (1982) 154 CLR 25, the High Court had to consider a claim that the Director-General of ASIO did not have a reasonable basis for believing that members of the Church of Scientology were a security risk and therefore had no power to investigate them. It was accepted that judicial review of the ASIO Act was available. 43 It is apparent from these passages that what Brennan J had in mind was not merely discovery, but the dual process of discovery and production. His use of the word discovery appears to be a short-hand reference to this dual process. Because the Court in Church of Scientology did not need to decide whether to order discovery, Brennan J's obiter remarks were directed to difficulties generally in bringing review proceedings against ASIO. They were not directed to the important distinction between discovery and the subsequent production of non-privileged discovery documents. Mason J's judgment also refers to the difficulties in bringing this type of claim. He notes, at 61, that: "Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument ... [but the] fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials." 44 The reference to Crown privilege demonstrates that His Honour has in mind the production of documents at least as much as the discovery of them, for it is at the production stage that a successful claim for privilege may thwart a plaintiff. The Church of Scientology case may have critical implications for the parties at the production stage, but it is not determinative of the discovery question. 45 The Director-General submits that there is no live issue between the parties and that discovery therefore should not be ordered. In order to make out their respective claims, the applicants will need to demonstrate jurisdictional error on the part of the Director-General. They will need to show that there was no evidence on which ASIO could have formed the opinion that the applicants were security threats. Given the extreme difficulty of this task, the Court should not be satisfied that the applicants have a good case proof of which may be aided by discovery. 46 I am not persuaded by this argument. The applicants' claim is that they have done nothing to justify their security assessments. Therefore ASIO must be wrong to conclude that they are security threats. In order to demonstrate this to a court they need to understand why and on what basis ASIO has formed the view that it has. It stands to reason that they do not yet have the evidence to demonstrate this; that is why they have sought discovery. The Director-General's argument is circular. It is, in effect, that because the applicants do not have the evidence they need, they therefore have no case and so do not need that evidence. In the circumstances of these applicants, it is not possible to say whether they do or do not have any chance of making out a good case. It would be premature at this stage to say that there is no live issue between the parties.


case_title: Home Office v Harman [1983] 1 AC 280

case_text: Discovery in this Court is discretionary. It is governed by Order 15 of the Federal Court Rules . In particular, r 15.15 provides that the Court will not make an order for discovery "unless satisfied that the order is necessary at the time when the order is made." The exercise of this discretion is usually seen as involving the balancing of competing interests. In Home Office v Harman [1983] 1 AC 280, 308, Lord Keith said: "Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality." 20 Relevant factors in determining whether or not the discretion should be exercised include the burden on the discovering party, the benefits of discovery and the circumstances of the discovering party: see Practice Note 14. Further factors include whether discovery would constitute a "fishing exercise" and whether there are policy reasons not to order it. 21 The ASIO Act, by s 6, continues the operation of ASIO. The Director-General is appointed pursuant to s 7 and, by virtue of sub-s 8(1), controls ASIO.


case_text: Courts have long been wary of ordering discovery to enable parties to 'fish' for a case. Of the term 'fishing expedition' in the discovery context, Lindgren J in Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 at 438 said: "ex hypothesi, the giving of discovery will often, if not always, reveal documents of which the other party was not previously aware ... What is meant is that discovery must not be used for the purpose of ascertaining whether a case exists, as distinct from the purpose of compelling the production of documents where there is already some evidence that a case exists"


case_title: WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175

case_text: In WA Pines Pty Ltd v Bannerman ((1980) 41 FLR 175 at 181-182) Brennan J, with whom Bowen CJ agreed, said: "In the present case, discovery is sought before there is a tittle of evidence to suggest that the [respondent] did not have the requisite cause to believe which par 6 of the statement of claim would put in issue. Some assistance was sought to be derived from cases where discovery had been given to a party before he was required to give particulars of his claim ... but in cases of that kind there is either an anterior relationship between the parties which entitles one to obtain information from the other, or sufficient is shown to ground a suspicion that the party applying for discovery has a good case proof of which is likely to be aided by discovery. This is not such a case. This is a case where a bare allegation is made ... and, the paragraph being denied, the applicant seeks to interrogate the [respondent] and ransack his documents in the hope of making a case. That is mere fishing." 41 The Court noted that discovery and production were critical issues in any judicial review proceeding under the ASIO Act. Brennan J said, at 75, that "[i]t would be an unusual case, however, if a plaintiff without discovery against the Director-General could discharge the burden of proving that [ASIO] had engaged in the particular activity of which he complains". He continued, at 76: "discovery would not be given against the Director-General save in a most exceptional case. The secrecy of the work of an intelligence organization which is to counter espionage, sabotage, etc is essential to national security, and the public interest in national security will seldom yield to the public interest in the administration of civil justice ... Nevertheless, the veil of secrecy is not impenetrable, for the public interest in litigation to enforce the limitation of function prescribed by s 17 is never entirely excluded from consideration ... But the veil is not penetrated merely by a plaintiff's deposition that he is not a security risk." 42 Further on, at 76-77, his Honour noted the "large obstacles in the path of a plaintiff" seeking orders against ASIO. These obstacles arise in part because "of the restrictions imposed upon discovery in aid of proving, and upon the admission of evidence in proof of, what is and what is not relevant to security". 43 It is apparent from these passages that what Brennan J had in mind was not merely discovery, but the dual process of discovery and production. His use of the word discovery appears to be a short-hand reference to this dual process. Because the Court in Church of Scientology did not need to decide whether to order discovery, Brennan J's obiter remarks were directed to difficulties generally in bringing review proceedings against ASIO. They were not directed to the important distinction between discovery and the subsequent production of non-privileged discovery documents. Mason J's judgment also refers to the difficulties in bringing this type of claim. He notes, at 61, that: "Crown privilege may exclude from consideration the very material on which the plaintiff hopes to base his argument ... [but the] fact that a successful claim for privilege handicaps one of the parties to litigation is not a reason for saying that the Court cannot or will not exercise its ordinary jurisdiction; it merely means that the Court will arrive at a decision on something less than the entirety of the relevant materials."


case_text: More recently, it has been observed by Full Courts of this Court that the reluctance of the court to allow a fishing expedition is not as great as it once was: Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113; Treasurer of the Commonwealth of Australia v CanWest Global Communications Corp [1997] FCA 578 ; see also Bertran v Vanstone [1999] FCA 1753 at [18] to [23]. There are two significant reasons for this. The first is that the Federal Court Rules do not, as most jurisdictions traditionally did, provide for discovery as of right. The second is the introduction in 1988 of Order 15A and its equivalents in other jurisdictions which permit preliminary discovery and discovery against a non-party. These considerations led Burchett J (with whom Lockhart and Gummow JJ agreed) to conclude in Caltex Refining Co Pty Ltd v Amalgamated Metal Workers Union (1990) 51 IR 113 at 116 that " This [fishing] objection to applications for discovery of documents does not now have the weight it was once thought to have. Perhaps it should be seen as a metaphor with more colour than substance." 37 In a sense, the present application is a fishing expedition, and as much is admitted by the applicants. But I do not think it is an impermissible fishing expedition. The purpose of the discovery that is sought is not for the applicants to determine if they have a case. If the applicants are right that they have no idea why the adverse security assessments have been made, then it follows that they must have a case that is at least arguable. Their case is that, because they have done nothing to constitute a threat to national security, any finding that they are such a threat must have been made in error. The purpose of discovery is to determine the nature of that error, not whether it exists. The classes of document sought are not overly broad and can be stated simply. The existence of the security assessments is admitted and the existence of documents supporting them can be readily inferred. The 'fishing' allegation does not dissuade me from ordering discovery. 38 I have said at [32] that discovery and production are not the same thing; a party may be entitled to the one but not the other. So far, I have not had to consider whether the applicants would be entitled to have produced to them or to their legal advisers the documents sought in discovery. That question was not addressed in argument. If I were satisfied that under no circumstances could they compel production of the documents sought, then I would be inclined against ordering discovery on the ground that it would be futile. For the same reason that a court will not grant leave to hear an appeal that is doomed to fail, it should not generally order discovery of a document production of which can never be compelled. Courts do not make nugatory orders.


case_title: Chanel Ltd v Kim (2007) 166 FCR 1

case_text: The other matter which flows is a question of statutory construction. That question is whether or not, in the events which transpired, there was an invalid extension of time under s 137(1). That particular issue having been drawn to my attention, it seemed to me appropriate, in the circumstances and having regard to the potentially limited timeframe for the making of an order under s 137(5), that notice of the question which had arisen be given to the respondents and also to the Chief Executive Officer of the Australian Customs Service, before any final decision was made in respect of the meaning and effect of that provision in the circumstances. I note that Sackville J followed a similar course of giving notice of a question concerning the meaning and effect of s 137(5) of the Act in Chanel Ltd v Kim (2007) 166 FCR 1. I therefore gave directions for the giving of notice concerning the issue and the making of submissions in respect of it, to the Respondents and the Chief Executive Officer of Customs. 12 I am satisfied on the evidence before me that such notice has been given. I am further satisfied on the evidence that the existence of the proceedings has not only been drawn to the attention of the Chief Executive Officer of Customs but that there has been an opportunity for the Chief Executive Officer to take advice from the Australian Government Solicitor in respect of the question. 13 It suffices to note that correspondence has been directed to the Court from the Australian Government Solicitor, the effect of which is that the Chief Executive Officer is aware of the submissions made in respect of the provisions at s 137(1) by Jemella Australia, but does not wish to make any submission concerning the meaning and effect of that section on his own behalf. I am also satisfied on the evidence that the substantive applications have been served both on Mr Bowman and Mr MacKinnon. I note that in respect of Mr Bowman there was an appearance on his behalf by a firm of solicitors in Echuca at the first return date of the application. That appearance was not repeated on the adjourned date when substantive submissions were made in respect of the meaning and effect of s 137(1). 16 Neither in the helpful submissions made on behalf of Jemella Australia, nor as a result of my own researches has any authority directly impinging on the construction of s 137(1) of the Act been disclosed. The closest point to which one gets is a passage at paragraph 31 in the reasons for judgment of Sackville J in the Chanel case: Had the draughter wished to make it clear that no application for an order preventing release of the goods could be made after the 20 day period, or that the court could not make any such order, it would have been easy to say so. Section 137(1), for example, makes it quite clear that an action for infringement must be brought within the 10-day period specified in the notice or with any extended period granted by the Customs Chief Executive Officer, provided the objector has applied for an extension "before the end of the notified period". There would have been no difficulty about incorporating similar language in s 137(5). 17 In the Chanel case Sackville J was confronted with a case which required the construction of s 137(5) of the Act. In that case which concerned a consignment of scarves bearing the applicant's trademark which had been seized by the Customs, the applicant applied for an order to restrain the Customs from releasing the scarves to the respondent. The question which arose for decision was whether it was possible for an order to be made where, as was the case there, more than 20 days had elapsed from the date on which the applicant had commenced its action for infringement of its trademark. It suffices to note that his Honour found that s 137(5) of the Act was not intended to be an exhaustive statement of the circumstances in which this court might make an order preventing the Chief Executive Officer of Customs from releasing seized goods. In other words, it was possible, albeit not under s 137(5), but under more generally conferred powers even after a lapse of the 20 day period, to make an order which prevented the Chief Executive Officer of Customs releasing seized goods. 18 One sees then from the passage which I have quoted from Sackville J's judgment in the Chanel case some indication of a view that there is a degree of rigidity in relation to the 10-day period that one sees in s 137(1). 19 No particular guidance as to the construction of the provision is to be obtained either from the relevant explanatory memorandum or the relevant second reading speech. Section 137(1) falls with Pt 13 of the Act. That part is directed to the importation of goods infringing Australian trademarks. The place of s 137 in that part seems to be to provide a means by which an objector may secure a holding of allegedly infringing goods in the Customs zone, pending the hearing and determination of an infringement application. 20 There is utility in that provision in that it preserves the subject matter of a proceeding and in particular preserves the utility of an infringement proceeding by preventing the passage of allegedly infringing goods from the Customs zone into domestic trade and commerce. 22 There are, therefore, readily identifiable and potentially conflicting commercial purposes which are resolved by the Parliamentary value judgment that I have mentioned. The time that is specified prime facie is quite short. It seems to me that that time represents Parliament's view of a reasonable proportionality between potentially conflicting commercial interests. In those circumstances it seems to me unlikely that Parliament envisaged that there would be any ability for there to be what one might term "slippage" in the time limit prima facie specified in s 137(1). The language of s 137(1) also tends to reinforce that particular impression gleaned from evident purposes in the statute. Sackville J was plainly of the view that the language of s 137(1) had that quality. 23 In my opinion it is not the case though that a failure to institute a proceeding within the 10-day period renders the infringement application incompetent. Part 13 serves a very particular purpose, but it is not in any way exhaustive of the circumstances in which an infringement application may be brought in this court. 24 In short then my opinion is that there was no occasion for the granting of an extension of time to Jemella Australia by the Chief Executive Officer of Customs. It seems to me that what follows from that is that there is no engagement of the particular mechanism found in s 137(5) for the making of an order directed to the Chief Executive Officer of Customs. That is not to say that the court has no power to make such an order, see the Chanel case. 25 The evidence before me satisfies me firstly that there is a serious question to be tried in respect of infringement. There is evidence of a confidential nature in respect of particular identifying qualities of the hairstyling irons, which would lead one to the at least tentative conclusion that the goods which have been seized by the Customs have about them an absence of relevant identifiers. Further, in each instance, the volume of the goods concerned is such that they are unlikely to be merely for personal consumption, but rather there is a likelihood from the volume alone that they are intended to be articles of commerce in this country and have been imported for that purpose. 26 Jemella Australia has made reference to evidence in each case of what is said to be other indicia which suggest that the articles concerned are infringing and have been imported for commercial purposes. It is not necessary, in my opinion, to refer to that evidence, because it seems to be plain enough from the evidence of identification and volume that they are intended for commerce in this country.


case_outcome: considered

case_title: Tasker v Fullwood (1978) 1 NSWLR 20

case_text: On behalf of Jemella Australia the submission which is made is that one ought not to regard the references in s 137(1) to a 10-day period as rigid. In aid of that particular construction reference is made to a passage in the reasons for judgment of the New South Wales Court of Appeal in Tasker v Fullwood (1978) 1 NSWLR 20 at 23, which was approved by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355 at 390. The passage from Tasker v Fullwood , which received approval is as follows: The problem is to be solved in the process of construing the relevance statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. The task of construction is to determine whether the legislature intended that if only to comply with the stipulated requirement would invalidate the act done, or whether the validity of the act would be preserved notwithstanding non-compliance: the Franklin Stores Pty Ltd case. The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. The intention being sought is the effect upon the validity of the act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true inquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. In particular, it is wrong to say that, if a statute is couched in directory terms, the act will be invalid, unless substantial performance is demonstrated; the Franklin Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the act in question, even for total non-observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth (internal footnote references omitted).


case_title: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 29 ; (1998) 194 CLR 355


case_text: The issues involved in this proceeding require a detailed consideration and analysis of a number of provisions of the TIA Act and the Mutual Assistance Act. The TIA Act was the subject of recent consideration by a Full Court of the Federal Court in Commissioner, Australian Federal Police v Samsonidis [2007] FCAFC 54. That proceeding involved an earlier application by the applicant in which he sought from the AFP the material supplied to Mr Livanis and the telephone intercepts which formed the basis of Mr Livanis' evidence in Greece. Ultimately the applicant gained access to that material from the court file in Greece. 21 In that case Jessup J explained the relevant structure of the TIA Act in the following passage ([48] and [49]): "Relevantly to the present case, the purpose of the TIA Act is, as stated in the preamble, "to prohibit the interception of, and other access to, telecommunications except where authorised in special circumstances". Chapter 2 of the TIA Act deals with the matter of the interception of telecommunications. It commences with s 7(1) , which contains a sweeping prohibition. The balance of the chapter is largely concerned with the exceptions to that prohibition. Relevantly to the present matter, there is a pattern in the chapter of providing for an exception, and then limiting the extent to which information obtained as a result of the application of the exception may be used, communicated etc. Thus it may be seen that the area marked out by each exception is tightly defined and guarded. Each seepage of information beyond any such area should rightly be regarded as a failure to achieve the object to which the preamble refers, and which is given practical expression in s 7(1) and the "special circumstances" to which subsequent provisions of Chapter 2 relate. In my view, both the nature of the subject matter of, and the detailed provisions in, the TIA Act bespeak the appropriateness of a court showing particular deference to the terms in which the legislature has chosen to express itself. It is those terms which should, save in a very clear case, be treated as embodying legislative purpose. Relevantly to the present matter, I can think of no reason why the purpose of the legislation should be seen as anything other than preventing the communication, use etc of lawfully intercepted information save in the specific circumstances for which the TIA Act itself provides. Section 63 operates subject to Part 2 - 6 , in which words I discern a purpose that only the provisions of that part should qualify the otherwise absolute prohibitions set out in the section itself." 22 It was accepted by the applicant that the interception of the telephone conversations which had occurred and which were the subject of Mr Livanis' evidence in Greece and which were contained in the material sent to Greece was lawful. What was in issue was the lawfulness of the further communication of the intercepted telephone conversations after they were intercepted and recorded. 23 Section 7 of the TIA Act provides: "(1) A person shall not: (a) intercept; (b) authorize, suffer or permit another person to intercept; or (c) do any act or thing that will enable him or her or another person to intercept; a communication passing over a telecommunications system. (2) Subsection (1) does not apply to or in relation to [a number of specified circumstances] ." Section 63 of the TIA Act provides: "(1) Subject to this Part, a person shall not, after the commencement of this Part: (a) communicate to another person, make use of, or make a record of; or (b) give in evidence in a proceeding; lawfully intercepted information or information obtained by intercepting a communication in contravention of subsection 7(1). (2) Subject to this Part, a person must not, after the commencement of this subsection: (a) communicate interception warrant information to another person; or (b) make use of interception warrant information; or (c) make a record of interception warrant information; or (d) give interception warrant information in evidence in a proceeding." As I have noted earlier, it was accepted by the applicant that the intercepted telephone conversations were "lawfully intercepted information". 24 Section 67(1) of the TIA Act provides: "An officer or staff member of an agency may, for a permitted purpose, or permitted purposes, in relation to the agency, and for no other purpose, communicate to another person, make use of, or make a record of the following: (a) lawfully intercepted information other than foreign intelligence information; (b) interception warrant information." The expression "permitted purpose" is defined in s 5 , in relation to an interception agency (which includes an agency and the AFP), an eligible Commonwealth authority or an eligible authority of a State, as meaning, inter alia : "...a purpose connected with ... an investigation by the agency or eligible authority of a prescribed offence". A prescribed offence includes a serious offence, as defined, against the laws of the Commonwealth or a State. 25 Section 74(1) of the TIA Act provides: "A person may give lawfully intercepted information (other than foreign intelligence information) in evidence in an exempt proceeding." 26 Section 5B(1)(h) of the TIA Act provides that a reference in the Act to an "exempt proceeding" is a reference to, inter alia : "...a proceeding under section 13 of the Mutual Assistance in Criminal Matters Act 1987 in relation to a criminal matter (within the meaning of that Act) that concerns an offence, against the laws of the foreign country that made the request resulting in the proceeding, that is punishable by imprisonment for life or for a period, or maximum period, of at least three years." 27 I turn to relevant provisions of the Mutual Assistance Act. Section 7(1) provides that "Subject to this section, this Act applies to all foreign countries". Relevantly, in relation to one of the submissions raised by the Attorney-General, s 7(3) provides: "If the regulations provide, in accordance with subsection (2), that this Act applies to a foreign country subject to a mutual assistance treaty, then: (a) if the treaty relates wholly to the provision of assistance in criminal matters this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to the treaty in relation to that country; or (b) if the treaty relates in part to the provision of assistance in criminal matters this Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect, in relation to that country, to that part of the treaty that relates to the provision of assistance in criminal matters." 28 The Mutual Assistance in Criminal Matters (Greece) Regulations 2004 provide in reg 4 that the Mutual Assistance Act: "... applies to Greece subject to the Treaty between Australia and the Hellenic Republic on Mutual Assistance in Criminal Matters done at Athens on 4 July 2002, a copy of the English text of which is set out in Schedule 1." Article 1 of the Treaty provides: "The Contracting Parties undertake to afford to each other, in accordance with the provisions of this Treaty, the widest measure of assistance in connection with investigations or proceedings brought in respect of offences the punishment of which at the time of the request for assistance falls within the jurisdiction of the Requesting State, including the supply of evidence for the proceedings." Article 9 of the Treaty provides: "PROTECTING CONFIDENTIALITY AND RESTRICTING USE OF EVIDENCE AND INFORMATION 1. The Requested State, if so requested, shall keep the application for assistance, the contents of a request and its supporting documents, and the fact of granting of such assistance, confidential. If the request cannot be executed without breaching confidentiality, the Requested State shall so inform the Requesting State which shall then determine whether the request should nevertheless be executed. 2. The Requesting State, if so requested, shall keep confidential information and evidence provided by the Requested State, except to the extent that the evidence and information is needed for the investigation and proceeding described in the request. 3. The Requesting State shall not use information or evidence obtained, nor anything derived from either, for purposes other than those stated in the request without the prior consent of the Requested State."


case_text: In Brown v Rezitis [1970] HCA 56 ; (1970) 127 CLR 157 the High Court considered the proper construction of s 88F(2) of the Industrial Arbitration Act 1940-1967 (NSW), which provided (at 160): "The commission, in making an order or award pursuant to subsection one of this section, may make such order as to the payment of money in connection with any contract, arrangement, condition or collateral arrangement declared void, in whole or in part, or varied in whole or in part, as may appear to the commission to be just in the circumstances of the case." Barwick CJ, with whom the other members of the Court agreed, said at 165: "Whilst it can be said that the expression 'in connection with' is of wide import, it does emphasize the need for a close connexion between the order made and the contract or arrangement varied or avoided. In my opinion, the power to make an order for the payment of money is at best no more than a power to make such an order as can reasonably be thought to have a real connexion with the making, variation or avoidance of the contract or arrangement which has been varied or avoided."


case_text: In Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 a Full Court of the Federal Court was concerned with the construction of s 164 of the Customs Act 1901 (Cth) which provided for the payment of a rebate in respect of diesel fuel used for certain purposes. The term "agriculture" was defined as including certain operations "connected with" certain other operations. The Full Court said at 288: "The words 'connected with' are capable of describing a spectrum of relationships ranging from the direct and immediate to the tenuous and remote. As Sheppard and Burchett JJ observed in Australian National Railways Commission v Collector of Customs (SA) at 378, the meaning of the word 'connection' is wide and imprecise, one of its common meanings being 'relation between things one of which is bound up with, or involved in, another': Shorter Oxford English Dictionary ."


case_text: This passage was adopted by Sackville J in Taciak v Commissioner of Australian Federal Police (1995) 59 FCR 285 at 295. Sackville J continued: "The question remains in a particular case what kind of relationship will suffice to establish the connection contemplated by the statute. This requires, to use the language in Pozzolanic , at FCR 289, a 'value judgment about the range of the Act'. The value judgment required is more likely to depend on the statutory context than on dictionary definitions." 45 I consider that the same approach should be taken to the meaning of "permitted purpose" in s 67(1) of the TIA Act . It will be a question of fact as to what is the close or real connection but I do not consider that it must be established that the connection must have a purpose of advancing, helping or aiding the Australian investigation. It is a sufficient connection that the purpose of the communication was to assist the Greek authorities in relation to the prosecution of the applicant in Greece, in relation to the same or similar offences which the AFP was investigating in Australia. 46 As I have noted earlier, there is no evidence which enables me to determine the circumstances under which the contents of the intercepted telephone conversations were communicated to Mr Livanis. Accepting for the purpose of the analysis what Mr Livanis said to the Athens Court, it is apparent that by May 2005 the American Drug Enforcement administration and the AFP were investigating a network that was trafficking various kinds of drugs in a number of countries, including Greece and Australia. It is apparent from Mr Livanis' evidence that the American Drug Enforcement administration and the AFP were exchanging information about this network. I am prepared to infer from Mr Livanis' evidence that if indeed it was the AFP that communicated to him the details of the intercepted telephone conversations that such communication had a close and real connection with the AFP's investigations in Australia in relation to contraventions of Australian law by the applicant and others.


case_text: The applicant submitted that the s 13 proceeding before the Magistrate was a process to which the rules of natural justice, in particular the right to be heard, applied. The applicant relied, in particular, on subs (4) of s 13 (par [29] above). He also submitted that in exercising her discretion under subs (3) of s 13 (par [29] above) whether to take the evidence of a witness in the presence or absence of the applicant, the Magistrate should have given the applicant a hearing in relation to the exercise of that discretion. The applicant relied on Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408 in support of his submission. The applicant relied, in particular, upon the reasoning of McHugh J at 472: "Thus, procedural fairness required as a minimum that the appellant be given the opportunity to put submissions before the A.S.C. relating to matters requiring the non-disclosure of information by the A.S.C." 53 The applicant submitted that the circumstances in Johns v Australian Securities Commission (supra) were the same as existed before the Magistrate. He contended that the statutory scheme in the Mutual Assistance Act did not interfere with his right to be heard. In Johns v Australian Securities Commission (supra), it was held that the delegate of the Australian Securities Commission should have given Mr Johns an opportunity to be heard before she decided to allow the transcripts of Mr Johns' evidence before the Australian Securities Commission to be made available to the Royal Commission. It was clear in that case that the decision to allow the use of the transcripts of Mr Johns' evidence in public hearings were prejudicial to his interests. 54 However, I consider that the statutory scheme under the Mutual Assistance Act is significantly different from the facts and circumstances which underpin the decision in Johns v Australian Securities Commission (supra). As noted earlier in par [28] above, the Mutual Assistance Act applies to Greece with whom Australia has entered into a Mutual Assistance Treaty. Accordingly, the Mutual Assistance Act applies subject to the limitations, conditions, exceptions or qualifications that are necessary to give effect to that Treaty. Article 9 of the Treaty (par [28] above) required the relevant Australian officers to keep the request from Greece confidential. Further, the relevant Australian officers were required by Article 9 to keep confidential the evidence provided by Australia. It is apparent from the request for assistance from Greece that it required confidentiality to be applied to its request and to the evidence provided. 55 Such confidentiality could not have been maintained if the Magistrate or the Attorney-General were obliged to inform the applicant of the request or invite his participation in the Mutual Assistance Act s 13 proceeding. In exercising the discretion committed to her in s 13(3) of the Mutual Assistance Act, the Magistrate was obliged to take into account the application of s 7(3) of the Mutual Assistance Act and the confidentiality sought by Greece. Section 13(4) does not take the matter any further as the discretion to allow a person in the position of the applicant to have legal representation at the proceeding was dependent upon the Magistrate deciding whether or not to take evidence in the presence or absence of the applicant. 56 Further, I consider that the nature of the procedure under s 13 of the Mutual Assistance Act to be different in nature from the process considered by the High Court in Johns v Australian Securities Commission (supra). Under that procedure the Magistrate had no discretion in relation to the acceptance or rejection of the evidence. 57 It follows that I do not accept the submission that the applicant was entitled to be given notice of the application to the Magistrate or that he was entitled to be heard in relation to it. 58 I turn to the applicant's submission that the s 13 Mutual Assistance Act procedure undertaken was not lawful or in accordance with the provisions of the Mutual Assistance Act. It is important to note that a proceeding under s 13 of the Mutual Assistance Act in relation to a criminal matter that concerns an offence against the laws of a foreign country that made the request resulting in a proceeding that is punishable by imprisonment for life or for a period or maximum period of at least three years is an "exempt proceeding": s 5B(1)(h) of the TIA Act . Section 74(1) of the TIA Act provides that a person may give lawfully intercepted information (other than foreign intelligence information) "in evidence" in an exempt proceeding.


case_title: Jess v Scott (1986) 12 FCR 187

case_text: these reasons, I do not consider that special circumstances have been established within the well-known principle stated in Jess v Scott (1986) 12 FCR 187 at 195. Accordingly, I see no reason to justify a departure from the ordinary rule prescribing the period within which a notice of appeal must be filed and served. Accordingly, the order I will make is that the application be dismissed. The ordinary order to make in these circumstances is that the applicant pay the costs of this application, and that is the order I will make. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 24 August 2009 The Appellant appeared in person. Solicitor for the Respondents: Clayton Utz Date of Hearing: 21 August 2009 Date of Judgment: 21 August 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/950.html


case_text: order that the Court can deal with the issue of whether the proceedings are vexatious or oppressive it is not necessary to establish that the continuance of the action would involve moral delinquency on the part of the plaintiff or applicant: what is decisive is the objective effect of the continuation of the action in the forum when other proceedings are pending in a court of another State or Territory within the Commonwealth: Batistatos v Road & Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 442 [70] per Gleeson CJ, Gummow, Hayne and Crennan JJ. In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 ; (2006) 227 ALR 425 at 427-431 [4] - [16] Gleeson CJ, Gummow, Hayne and Crennan JJ discussed the concept of abuse of court process. They noted that what amounts to abuse of court process is insusceptible of a formulation comprising closed categories and that development continues (227 ALR at 428 [9]). Here, I am of opinion that it would be unduly vexatious and oppressive upon Wholefoods to require it to litigate these proceedings in this Court. Mr Kinnear, although in law a separate individual, in a practical sense is closely connected to Wholefoods. He will be required to litigate in the Supreme Court proceedings, issues which, even the Dairy, in the joinder motion before Bongiorno J recognized were closely connected. The Courts must have regard to the realities of the capacity of individuals, including corporations, to deal with litigation. Litigation is invariably expensive. It is stressful on individuals concerned with it, be they personal parties to the litigation or, where there are small, and sometimes large, corporations involved, on the individual director or shareholder or employee concerned. Courts must be mindful that there are both matters of public and private interest in ensuring that litigation does not become overwhelming for one or other of the parties concerned because it is conducted on more than one front in different courts or different jurisdictions.


case_text: course, the principles relating to a stay on the ground of oppression or vexation are not directly applicable to the application currently before me. Rather, I am concerned with the test in s 5(4)(d) of the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth) as to whether it is otherwise in the interests of justice that these proceedings be determined by the Supreme Court of Victoria in which case I must transfer the proceedings to that court. As Callinan J noted in BHP Billiton Ltd v Schultz [2004] HCA 61 ; (2004) 221 CLR 400 at 492 [258] , one person's legitimate advantage is another person's disadvantage and there should be no presumption in litigation in favour of any party. His Honour continued: 'Courts are required to do equal justice.' And, as Gleeson CJ, McHugh and Heydon JJ said in that case (221 CLR at 421 [14]): '... the Court is required by statute to ensure that cases are heard in the forum dictated by the interests of justice.' The Dairy can hardly complain if I see the Supreme Court of Victoria as being the place where the interests of justice require these proceedings to be determined. After all, the Dairy has initiated defamation proceedings in that forum and has joined Mr Kinnear there. The other respondent to this application, Mr Whitsed, now consents to the application to cross vest the proceedings, and he is a resident of Victoria.


case_text: Gleeson CJ, McHugh, Gummow and Hayne JJ said in Dow Jones & Co Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575 at 604 [36] : 'Clearly, the common law favours the resolution of particular disputes between parties by the bringing of a single action rather than successive proceedings. The principles of res judicata ( Jackson v Goldsmith [1950] HCA 22 ; (1950) 81 CLR 446), issue estoppel ( Blair v Curran [1939] HCA 23 ; (1939) 62 CLR 464), and what has come to be known as Anshun estoppel (Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589), all find their roots in that policy. ...Effect can be given to that policy by the application of well-established principles preventing vexation by separate suits ... .' Of course, the proceedings in this Court raise a separate cause of action, namely under the Trade Practices Act 1974 (Cth), from the common law and statutory causes of action in defamation the subject of the two Victorian Supreme Court proceedings. The only common party in each set of proceedings is the Dairy itself. On the other hand, if all proceedings brought by the Dairy based on Mr Kinnear's letter of 23 November 2004 were tried in different courts, there could be conflicting findings made on one or more issues common to the two proceedings. That is an indication that there is a single matter or controversy between the parties: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 586 [141] per Gummow and Hayne JJ. Here, at the present time, Bongiorno J has held that there is, in substance, a single controversy between the parties to the first Supreme Court proceedings notwithstanding that there are two separate matters complained of published by apparently separate individuals with no common connexion other than the fact that the Dairy is the plaintiff against all those defendants. And the Dairy asserts that the second Supreme Court proceedings are also part of that one controversy. There can be no doubt that the concurrent maintenance of proceedings in two different jurisdictions involving the same parties can be seen as vexatious and oppressive within the meaning of the test on which the exercise of the power of a superior court of record to stay proceedings exists. Bringing multiple proceedings with respect to the same subject matter in different courts in Australia was discussed by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry [1995] HCA 64 ; (1996) 185 CLR 571 at 590-591. They said: 'In Union Steamship Co of New Zealand Ltd v The Caradale [1937] HCA 1 ; (1937) 56 CLR 277 at 281, Dixon J observed of that latter situation that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration". From the parties' point of view, there is no less -- perhaps, considerably more -- inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue (see Moore v Inglis (1976) 9 ALR 509; 50 ALJR 589 and, on appeal, (1976) 51 ALJR 207).' And, in Re Wakim; Ex parte McNally (1999) 198 CLR at 587 [145] Gummow and Hayne JJ noted that the bringing of separate proceedings and the joining of different parties would often be important facts in deciding whether there was a single justiciable controversy for the purposes of Ch III of the Australian Constitution . In my opinion there is a single controversy arising out of the assertions made in the letter signed by Mr Kinnear on the letterhead of Wholefoods that the Dairy ought be investigated by Consumer Affairs Victoria, in respect of whether or not it is accurate to say its milk was labelled as organic. The way in which the Supreme Court has treated the first two matters complained of in the defamation proceedings emphasises that it so regards that question. And the Dairy regards its proceedings against the Director in the same light.


case_text: can be no doubt that the concurrent maintenance of proceedings in two different jurisdictions involving the same parties can be seen as vexatious and oppressive within the meaning of the test on which the exercise of the power of a superior court of record to stay proceedings exists. Bringing multiple proceedings with respect to the same subject matter in different courts in Australia was discussed by Dawson, Gaudron, McHugh and Gummow JJ in Henry v Henry [1995] HCA 64 ; (1996) 185 CLR 571 at 590-591. They said: 'In Union Steamship Co of New Zealand Ltd v The Caradale [1937] HCA 1 ; (1937) 56 CLR 277 at 281, Dixon J observed of that latter situation that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration". From the parties' point of view, there is no less -- perhaps, considerably more -- inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes. It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue (see Moore v Inglis (1976) 9 ALR 509; 50 ALJR 589 and, on appeal, (1976) 51 ALJR 207).'


case_text: Court is clearly able to hear and determine the claims in defamation. They are in federal jurisdiction because the Australian Broadcasting Corporation, among other things, pleaded a defence of qualified privilege which relied upon the principle in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520. It said the broadcast concerned government or political matters that affected the people of Australia and that it was published within the implied constitutional freedom of communication on government and political matter. This Court has jurisdiction to hear and determine that matter under s 39B(1A)(b) of the Judiciary Act 1903 (Cth) as a matter arising under the Constitution or involving its interpretation. However, no party has applied to the Supreme Court of Victoria to cross vest the matter here. I have not overlooked one possibility which may be available that, until matters clarify in the Supreme Court proceedings, this matter could be transferred to the Victorian Registry of the Court where, if need be, it could be later cross vested under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth).


case_text: sought to have the Dairy answer properly a particular identifying whether the Dairy was alleging that it had suffered any and, if so, what loss of business or economic loss or special damage. To those questions the Dairy simply responded 'Yes'. As I pointed out during the course of argument, in commercial litigation of this character and, as indeed in other litigation in today's society, that approach is unacceptable for the reasons given by Allsop J in White v Overland [2001] FCA 1333 at [4] which were applied by Heydon JA with the endorsement of Mason P and Young CJ in Eq in Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 ; (2001) 53 NSWLR 116 at 128-129 [28] - [32] and by a Full Court of this Court in Maniotis v JH Lever & Co Pty Ltd [2006] FCAFC 7 at [72] per Finn, Emmett and Bennett JJ. In the last case, the Court said: '[72] In the efficient and proper conduct of civil litigation, even civil litigation hard fought between parties, it should always be recognised that, in the propounding of issues for trial, the parties should take steps to ensure that all relevant parties to the dispute are cognisant of what the issues are. Quietly leaving footprints in correspondence or directions hearings to be uncovered some time later in an attempt to reveal that a matter was always in issue is a practice that must be firmly discouraged. Where it is evident, or indeed suspected, that the other side is proceeding on the basis of a misconception or has not appreciated something, common sense will, as a general rule, mandate that a party ensure that the other is not proceeding on a misconception or that the other does appreciate something that has been said. No one's interests are advanced by litigation proceeding on assumptions which are seen or suspected to be false. The only consequence of keeping issues hidden or not clearly identifying them is to disrupt the business of the court leading to the waste of valuable public resources and to lead to the incurring of unnecessary costs by the parties, costs which ultimately have to be borne by someone: see White v Overland [2001] FCA 1333 at [4] .' And as Heydon JA noted that even in personal injury litigation 'the ambush theory of life has been abandoned' (53 NSWLR at 128 [30]). Counsel for the Dairy recognized that particulars were required, and I made an order at the conclusion of the hearing that they be given within three weeks.


case_text: is important that this Court retain the flexibility as to venue which was established by the decision in National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155 at 165 per Bowen CJ, Woodward and Lockhart JJ. They said that the Court's powers under s 48 of the Federal Court of Australia 1976 (Cth) and under the Court's Rules exist within the context of a national court. Earlier they said that the power under s 48 should be exercised flexibly having regard to the circumstances of a particular case. The Court or judge is in a position to mould orders under the section to take account of the many and varied circumstances that arise in particular cases (19 FCR at 162). However, in light of the evidence this is not the appropriate course to take here. The new material confirms that there is a single controversy arising out of the assertions made in the letter signed by Mr Kinnear. I am satisfied that these proceedings should be transferred to the Supreme Court of Victoria in the interests of justice. The more recent developments make it even more compelling that the whole controversy be decided in the one forum. The Dairy has chosen to litigate on a considerable scale there. Given that the Dairy asserts that all its Victorian claims for defamation should be heard together because of the commonality of facts, I am of opinion that these proceedings are so closely connected to them that they should be cross-vested. I will hear the parties on whether I should make an order for these proceedings to be referred to mediation on 17 November 2006 before the same mediator as is dealing with the media claims. If that mediator needs to conduct mediations separately with those parties or in a different way I am provisionally of the view that the mediator will be able to devise an effective means of doing so, even if the ABC and its journalists who are defendants do not consent to that course. However, the parties should have an opportunity to consider the position and to approach the mediator to see whether what I have in mind is feasible. If all parties were to approach the mediation in good faith with a view to resolving disputes, there would be considerable advantages in a common mediation.