case_text: It may be accepted that the fact that a person is a shareholder, or a director, of a deregistered company does not in itself establish that person to be a "person aggrieved" for the purpose of s 601AH(2) of the Act. However, a shareholder who is a creditor of the company who could have expected payment of the debt in whole or in part, or who had an expectation of a distribution from surplus assets or a dividend from retained profits would be a person prejudicially affected by deregistration of the company and, therefore, a "person aggrieved". (See: Casali v Crisp [2001] NSWSC 860 ; (2001) 165 FLR 79 per Young CJ in Equity at 82-83). 24 The company has assets that exceed its liabilities, the net worth of the company being represented in substantial measure by undistributed profits. A shareholder in the company, therefore, has an expectation of the distribution of a dividend from the retained profits and is a person aggrieved by deregistration of the company, an event that has removed that expectation and has vested the property of the company in ASIC for ASIC to dispose of, and deal with, as it sees fit pursuant to s 601AE(2)(a) of the Act. 25 I am satisfied that it is appropriate that Mr Bertuol be substituted for the company as plaintiff in the matter.


case_outcome: referred to

case_text: The provisions of s 601AH(5) suggest that the Act has continued to recognise that a deregistered company has sufficient existence for the purpose of making an application under s 601AH(2) as a "person aggrieved" notwithstanding that under s 601AD(1) the company "cease(d) to exist" upon deregistration. (See: GA & RJ Elliot Pty Ltd (formerly a company) Ex parte Mitcham (1978) 3 ACLR 523 per Young CJ at 526; CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534, 536). The terms of s 601AH(5) are consistent with a statutory form of a "nunc pro tunc" order. That is to say the Act contemplates that an order under s 601AH(2) will have a retrospective effect that makes good the deregistered company's standing to make the application. There are no authorities directly on point. It may be accepted that the deregistered company has no standing to commence other proceedings. (See: Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356).


case_text: In the absence of any material that suggests that the legislature identified and sought to remedy a mischief that had arisen out of a company being permitted to apply for reinstatement of its registration there seems to be no reason to apply a restrictive interpretation to the term "person aggrieved" as used in s 601AH(2)(a)(i). Apart from the historical context referred to above the term is an expression of wide import that is not to be given a restrictive interpretation. (See: GIS Electrical Pty Ltd v Melsom [2002] WASCA 302 ; (2002) 172 FLR 218 per Steytler J at 230-231). If the proper construction of the Act is as I have posited the company would have capacity to make an application as a "person aggrieved". 21 Putting to one side for the moment the question whether the Act contemplates that a deregistered company has capacity to make an application under s 601AH(2), there would seem to be adequate grounds in this case to conclude that by the company being subjected to deregistration when it was successfully carrying on business it became a person "aggrieved" for the purpose of s 601AH(2). Indeed s 601AB(1) does not empower ASIC to deregister a company unless it has no reason to believe that the company is carrying on business. Although the subsequently enacted 601AB(1A), empowers ASIC to deregister a company that has defaulted in paying "review fees" without qualifying that power by requiring ASIC not have reason to believe that the company is carrying on business, that provision does not detract from the foregoing argument. 22 To avoid doubt as to whether the company has the capacity to make application under s 601AH(2)(a)(i) Mr Bertuol now seeks to be substituted for the company as plaintiff in this matter.


case_title: CTG Pty Ltd v Yamamori (Hong Kong) Pty Ltd (1992) 10 ACSR 534


case_title: Re L Carroll Ltd [1975] 1 NZLR 79

case_text: The respective legislative provisions acknowledged however, that a deregistered company had capacity to make application for the restoration of registration, notwithstanding the cessation of existence of the company. (See: Re L Carroll Ltd [1975] 1 NZLR 79 per O'Regan J at 80).


case_title: Sweeney & Vandeleur Pty Ltd v BNY Australia Ltd (1993) 11 ACSR 356


case_outcome: cited

case_text: it was contended by the Deputy Commissioner that it was s 105-100 of Schedule 1 to the Taxation Administration Act which made the present assessments " conclusive ". And no submission was advanced that there had been any error committed which amounted to a jurisdictional error: cf Commissioner of Taxation v Futuris Corp Ltd [2008] HCA 32 , 247 ALR 605. See also: Kocic v Commissioner of Taxation [2008] FCA 1576.


case_outcome: applied

case_title: Dekkan v Evans [2008] FCA 1004

case_text: is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, — whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188.


case_title: Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431


case_outcome: followed

case_text: addressing the terms of s 52(j) of the Bankruptcy Act 1924 (Cth), in Ebert v Union Trustee Co of Australia Ltd [1960] HCA 50 ; (1960) 104 CLR 346 Dixon CJ, McTiernan and Windeyer JJ observed (at 350): ... Section 52 (j) makes it necessary that a debtor served with a bankruptcy notice, if he does not comply with its requirements, should satisfy the Court of Bankruptcy that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt. The debtor clearly must satisfy the Court that there exists in him a counter-claim, set-off or cross demand. "Cross demand" is the word relied upon here. The appellant cannot satisfy the Court that a cross demand exists by showing no more than that she propounds one and states how she suggests that she can make it out. In Re Duncan; Ex parte Modlin [(1917) 17 SR (NSW) 152 ; 34 WN 49] Street J. said that the debtor need not satisfy the Court that there are reasonable grounds for believing that he will establish his cross action, but only that he has a bona fide claim which he is fairly entitled to litigate. This perhaps is expressed too favourably to the debtor. In Re A Debtor [(1958) 1 Ch 81] Roxburgh J. said : "But not every demand will suffice. A demand made in bad faith would not be good enough. The debtor must satisfy the Court that he has a genuine demand... But in my opinion a demand must be more than bona fide : the Court must be satisfied that it has a reasonable probability of success" [(1958) 1 Ch 81]. Perhaps the standard may be expressed by saying that the debtor must show that he has a prima facie case, even if then and there he does not adduce the admissible evidence which would make out a prima facie case before a court trying the issues that are involved in his counter-claim, set-off or cross demand.


case_title: Guss v Johnstone [2000] HCA 26 , 171 ALR 598


case_text: prior Notice of Motion seeking to have the present proceeding heard in this Court with a jury was dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1403. An application for leave to appeal that decision has also been dismissed: Harding v Deputy Commissioner of Taxation [2008] FCA 1516. The present Application is thus to be heard by a Judge of this Court, sitting alone.


case_title: Harding v Deputy Commissioner of Taxation [2008] FCA 1516


case_outcome: considered

case_text: before the Court is an Application seeking to set aside a Bankruptcy Notice dated 15 January 2007, being Bankruptcy Notice NN 104/07. The Application as filed states that the Bankruptcy Notice was served on the Applicant, Mr Robert Harding, on 17 August 2007. There may be some uncertainty as to whether or not it was served on 17 July 2007 as opposed to 17 August 2007 but, whenever it was served, the Applicant wants it set aside. The form of Bankruptcy Notice as served attaches the " judgments or orders relied upon by the creditor ", being a judgment entered against the present Applicant by the Respondent in the District Court of New South Wales on 9 November 2006 for the principal sum of $373,772.47. A hand-written alteration to the Bankruptcy Notice records that " within 21 days after 17 August 2007 " Mr Harding was required to either pay the Deputy Commissioner the amount of the debt or make an arrangement to her satisfaction for settlement of the debt. The Application as filed in this Court was filed within 21 days, namely on 5 September 2007. Section 41(7) of the Bankruptcy Act 1966 (Cth) provides, in such circumstances, that the time for compliance with the Bankruptcy Notice is " deemed to have been extended ". It is understood that the Applicant contends that the Bankruptcy Notice should be set aside because: (i) the judgment of the District Court is not a " final judgment " within the meaning of and for the purposes of s 40(1)(g) or s 41 of the Bankruptcy Act ; (ii) the Applicant maintains that he has a " counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt " within the meaning of s 40(1)(g) of the 1966 Act; (iii) that " counter-claim, set-off or cross demand " could not have been " set up in the action or proceeding " in which the Deputy Commissioner obtained judgment, namely the District Court proceedings; and (iv) irrespective of whether there was any such " counter-claim, set-off or cross demand " which could have been " set up in the action or proceeding ", there nevertheless remained a discretion in the Court to set aside the Bankruptcy Notice. The conclusion that has been reached is that the judgment of the District Court is a " final judgment " and that no state of satisfaction can be reached within the meaning of s 41(7) of the 1966 Act that the Applicant has a " counter-claim, set-off or cross demand " which has any prospects of success, let alone " a fair chance of success " or one which he is " fairly entitled to litigate ". Nor is it considered that any such " counter-claim, set-off or cross demand " could not have been " set up in the action or proceeding " in which the Deputy Commissioner obtained judgment. Finally, there is not considered to be any separate discretion to set aside the Bankruptcy Notice in circumstances where, relevantly, the requirements of s 40(1)(g) have not been met. The submission as finally advanced on behalf of Mr Harding as to why the judgment of the District Court was not a " final judgment " settled upon a conversation that occurred as between Mr Harding and a solicitor from the Australian Government Solicitor that took place outside the hearing room of the District Court immediately before judgment was entered against him. Mr Harding maintained that he " tried to talk to the Government's Solicitor prior to going into the room " to tell " her about the Malcolm McClure problem ". Whatever was told to the solicitor was not further expanded upon. The solicitor's response was that " she basically said that it had no relevance ". In re-examination, Mr Harding agreed with the proposition that he " tried to talk to the government solicitor and tell her about the McClure problem and she said it had no relevance ". But, whatever the meaning to be given to the term, it has to date been held that an action " must be something sounding in money ": Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. An application seeking declaratory relief as to an entitlement to a charge on the proceeds of property has thus been said not to be a " counter-claim, set-off or cross demand ": In re A Bankruptcy Notice [1934] 1 Ch 431. See also: Massih v Esber [2008] FCA 1452 at [22] [24].


case_text: support of the contrary conclusion, it was understood that Counsel on behalf of Mr Harding contended that the term " cross demand " was not a technical term but rather a term which should not be given any confined meaning: In re Judd; Ex parte Pike (1924) 24 SR (NSW) 537.


case_title: James v Abrahams (1981) 51 FLR 16

case_text: 41(1)(a), (2) and (7) of the 1966 Act provides as follows: Bankruptcy notices (1) An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor: (a) a final judgment or final order that: (i) is of the kind described in paragraph 40(1)(g); and (ii) is for an amount of at least $2,000... ... (2) The notice must be in accordance with the form prescribed by the regulations. ... (7) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter-claim, set-off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter-claim, set-off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied. Section 41(7) operates as an " automatic extension of time for compliance with the bankruptcy notice until the court can determine whether it is satisfied by the debtor that the debtor has a counterclaim, set-off or cross demand of the type referred to in s. 40(1)(g) ": cf James v Abrahams (1981) 51 FLR 16 at 21 per Deane and Lockhart JJ. Section 41(1) provides that a bankruptcy notice may be issued where there is a " final judgment " of the kind described in s 40(1)(g) and, if the bankruptcy notice is to be set aside, s 41(7) requires the Court to be " satisfied that the debtor has ... a counter-claim, set-off or cross demand " of the kind set forth in s 40(1)(g). Numerous decisions of this Court have addressed the requirement that a Court must be " satisfied " that a debtor has a counter-claim, set-off or cross demand. A more modern instance of that which may fall within the statutory phrase is provided by Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694. An application had there been made for relief under s 106 of the Industrial Relations Act 1996 (NSW), that being a provision which allowed the Industrial Relations Commission of New South Wales to declare void or to vary a contract. His Honour Justice Madgwick there relevantly concluded: Measurable in money? [33] A further matter put forward by the applicant was that the debtor was unable to satisfy the Court of the existence of a counter demand or cross-claim, because the claim does not sound in money. In James v Abrahams [1981] FCA 46 ; (1981) 34 ALR 657 , at 664 Deane and Lockhart JJ endorse the view of Latham CJ in Vogwell at 85, in respect of the corresponding provision of the Bankruptcy Act 1924 , that: The words of the section are that the debtor must satisfy the court that he has a 'counter-claim ... which equals or exceeds the amount of the judgment debt'. In the first place it is accordingly clear that the counter-claim ... must be something sounding in money. [34] The creditor argues that the claim before the Commission is not one sounding in money, but is a claim akin to the rectification of a contract. However, the debtor seeks, among other things, an order that the creditor pay to the debtor any money that may be found owing under the arrangement as varied by the Commission and his claim is that the amount Network sued for in the Local Court plus interest at something like commercial rates should be found to be owing. If successful, this would amount to a direct order for money and the Commission clearly has the power to make such an award. The other remedies sought are, in a practical sense, subsidiary to that claim. Therefore, this objection to the application must fail.


case_title: Kocic v Commissioner of Taxation [2008] FCA 1576


case_title: Massih v Esber [2008] FCA 1452

case_text: recently, in Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331 , His Honour Justice Lindgren reviewed the authorities and observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a " prima facie case ", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim; ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135, 30 ALR 433] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a " prima facie case " ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined. Reference may also be made to Massih v Esber [2008] FCA 1452 at [16] [19]. But, whatever the meaning to be given to the term, it has to date been held that an action " must be something sounding in money ": Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. An application seeking declaratory relief as to an entitlement to a charge on the proceeds of property has thus been said not to be a " counter-claim, set-off or cross demand ": In re A Bankruptcy Notice [1934] 1 Ch 431. See also: Massih v Esber [2008] FCA 1452 at [22] [24]. The requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].


case_text: ground of review as formulated by Counsel for Mr Harding was that Mr Scott's decision to issue the amended assessments was vitiated by reason of a failure to consider relevant considerations, namely: the conversation with " Laura "; and the acknowledgment on the part of Mr Scott that, had he known of the claimed GST exemption, he would have made further inquiries. But neither consideration was a consideration that Mr Scott was bound to take into account or further pursue: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40 ; (1986) 162 CLR 24 at 39 41 per Mason J, even assuming that all that Mr Harding had to establish was a ground of review falling short of jurisdictional error. The rejection of the two suggested " cross-claims " or " cross demands " as formulated on behalf of Mr Harding makes it unnecessary to address the further submission as to whether any such " counter-claim " or " cross demand " " could ... have [been] set up in the action or proceeding " in the District Court.


case_text: recently, in Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331 , His Honour Justice Lindgren reviewed the authorities and observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a " prima facie case ", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim; ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135, 30 ALR 433] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a " prima facie case " ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined. Reference may also be made to Massih v Esber [2008] FCA 1452 at [16] [19]. But, whatever the meaning to be given to the term, it has to date been held that an action " must be something sounding in money ": Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. An application seeking declaratory relief as to an entitlement to a charge on the proceeds of property has thus been said not to be a " counter-claim, set-off or cross demand ": In re A Bankruptcy Notice [1934] 1 Ch 431. See also: Massih v Esber [2008] FCA 1452 at [22] [24].


case_text: recently, in Re Glew; Glew v Harrowell [2003] FCA 373 , 198 ALR 331 , His Honour Justice Lindgren reviewed the authorities and observed: [9] There are authorities suggesting that Glew and Tresidder must satisfy me of the following interrelated and sometimes overlapping matters: that they have a " prima facie case ", even if they do not adduce evidence which would be admissible on a final hearing making out that case ... that they have "a fair chance of success" or are "fairly entitled to litigate" the claim; ... and that they are advancing a "genuine" or "bona fide" claim ... It may be that the first and second formulations are intended to cover the same ground. In Brink [ Re Brink; Ex parte Commercial Banking Co of Sydney Ltd [1980] FCA 78 ; (1980) 44 FLR 135, 30 ALR 433] Lockhart J treated (at ALR 438 9; FLR 141) the reference to a " prima facie case " ... as a reference to "a fair chance of success". ... [11] Plainly, in order to "satisfy" the Court for the purposes of par 40(1)(g), the debtor is not required to prove, as on a final hearing, the asserted entitlement to recover from the creditor. Accordingly, evidence tendered on an application to set aside is to be tested for admissibility, not as if the proceeding were one in which the debtor's claim was being finally determined, but by reference to the question whether the Court should be satisfied that the debtor has a claim deserving to be finally determined. Reference may also be made to Massih v Esber [2008] FCA 1452 at [16] [19].


case_title: Re Jocumsen (1929) 1 ABC 82

case_text: whatever the meaning to be given to the term, it has to date been held that an action " must be something sounding in money ": Re Brink; Ex parte Commercial Banking Co of Sydney Ltd (1980) 44 FLR 135 at 138 per Lockhart J. See also: Re Jocumsen (1929) 1 ABC 82 at 85 per Henchman J. An application seeking declaratory relief as to an entitlement to a charge on the proceeds of property has thus been said not to be a " counter-claim, set-off or cross demand ": In re A Bankruptcy Notice [1934] 1 Ch 431. See also: Massih v Esber [2008] FCA 1452 at [22] [24]. The requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].


case_text: requirement imposed by s 40(1)(g) that the " counter-claim, set-off or cross demand " be one which " could not have [been] set up in the action or proceeding in which the judgment or order was obtained " is a requirement which refers to the ability to set up the claim, set-off or demand as a matter of law. A mere failure to take advantage of an opportunity to do so does not fall within s 40(1)(g): Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323. Fisher J there usefully summarised as follows some of the relevant authorities (at 326): The relevant words of the Act were considered by Lockhart J in Re Brink; Ex parte The Commercial Banking Company of Sydney Ltd. (1980) 44 F.L.R. 135, at p. 139, when he said: "The words 'that he could not have set up in the action or proceeding in which the judgment or order was obtained' mean 'which he could not by law set up in the action': see Re Jocumsen (1929) 1 A.B.C. 82 , at p. 85; Re A Debtor [1914] 3 K.B. 726 , at p. 730 per Avory J.; Re Stockvis (1934) 7 A.B.C 53 , at p. 57, especially per Lukin J. where his Honour said: 'I take as a counterclaim, set off or cross demand which could not be set up as one which, from point of time, or from its nature, or from absence of empowering provisions, or from positive inhibition so to do, could not be set up in the particular case in which judgment was obtained .... Mere failure to take advantage of the opportunity can hardly be said to be inability.'" In Re A Debtor the circumstances were that, at the time of judgment, the debtor was not the assignee of a debt, which debt he in answer to the bankruptcy notice relied upon as constituting a counterclaim which he could not have set up in the proceedings. Thus at the time of judgment he could not have as a matter of law set up the counterclaim. It was nothing to the point that he might have earlier taken an assignment. At p. 730 Avory J said: "I think that upon the true interpretation of the section a debtor is entitled to set up in answer to a bankruptcy notice a counter-claim which rebus sic stantibus he could not in law have set up in the action in which the judgment was obtained, even though he could, if he had chosen, have taken steps which would have rendered the counter-claim available to him in the action. "I think it means a counter-claim which as things then stood the debtor could not set up in the action." Whether a claim " could not have [been] set up " is to be determined " by reference to legal considerations " and not " by reference to practicalities ": Re Ling; Ex parte Ling v Commonwealth [1995] FCA 1410 ; (1995) 58 FCR 129 at 132. See also: Smart v Esanda Finance Corp Ltd [2000] FCA 235 at [17] per Lee, Goldberg and Kenny JJ; Tzovaras v Nufeno Pty Ltd [2003] FCA 1152 at [34] [35] per Jacobson J; and Massih v Esber [2008] FCA 1452 at [28] [29].


case_title: Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182


case_title: Re Vicini; Ex parte E A Sealey & Co (1982) 64 FLR 323


case_text: more modern instance of that which may fall within the statutory phrase is provided by Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694. An application had there been made for relief under s 106 of the Industrial Relations Act 1996 (NSW), that being a provision which allowed the Industrial Relations Commission of New South Wales to declare void or to vary a contract. His Honour Justice Madgwick there relevantly concluded: Measurable in money? [33] A further matter put forward by the applicant was that the debtor was unable to satisfy the Court of the existence of a counter demand or cross-claim, because the claim does not sound in money. In James v Abrahams [1981] FCA 46 ; (1981) 34 ALR 657 , at 664 Deane and Lockhart JJ endorse the view of Latham CJ in Vogwell at 85, in respect of the corresponding provision of the Bankruptcy Act 1924 , that: The words of the section are that the debtor must satisfy the court that he has a 'counter-claim ... which equals or exceeds the amount of the judgment debt'. In the first place it is accordingly clear that the counter-claim ... must be something sounding in money. [34] The creditor argues that the claim before the Commission is not one sounding in money, but is a claim akin to the rectification of a contract. However, the debtor seeks, among other things, an order that the creditor pay to the debtor any money that may be found owing under the arrangement as varied by the Commission and his claim is that the amount Network sued for in the Local Court plus interest at something like commercial rates should be found to be owing. If successful, this would amount to a direct order for money and the Commission clearly has the power to make such an award. The other remedies sought are, in a practical sense, subsidiary to that claim. Therefore, this objection to the application must fail.


case_title: Smart v Esanda Finance Corp Ltd [2000] FCA 235


case_outcome: distinguished

case_text: submission on behalf of Mr Harding was that this conversation brought him within SZFDE v Minister for Immigration and Citizenship [2007] HCA 35 , 232 CLR 189. In SZFDE the applicants had there not attended a hearing before the Refugee Review Tribunal. They had failed to respond to an invitation to do so on the advice of a person they had retained, a Mr Hussain. That person had wrongly represented himself to be a solicitor and a migration agent. The fraud of the agent, it was concluded, had the effect that the decision of the Tribunal was no decision at all. Although the Tribunal was unaware of the fraud of the agent, the result of his fraud was that the applicants had been denied such natural justice as was afforded by the Migration Act 1958 (Cth). The submission advanced on behalf of Mr Harding was understood to be that, just as the conduct of Mr Hussain had deprived the applicants in SZFDE of the opportunity to be heard before the Refugee Review Tribunal, the conduct of the solicitor had deprived Mr Harding of his opportunity to be heard before the District Court. The submission was that Mr Harding was " lied to or at least misled by the Respondent's legal representative about the utility of his cross claim before Kearns DCJ ". The submission is to be rejected. Whether or not Mr Harding should have applied to the District Court to have the judgment set aside, as was contended by the Deputy Commissioner, may be left to one side. Also left to one side is whether the approach pursued in SZFDE may be extended so as to potentially vitiate proceedings before a court as opposed to an administrative tribunal. The submission is to be rejected upon the more fundamental basis that the conduct of the solicitor is in no way comparable to that of Mr Hussain. It is not considered that Mr Harding was " lied to or at least misled ". The extent of the detail provided by Mr Harding to the solicitor is unknown. But even if the solicitor had been told such detail as to Mr McClure's conduct as was explained in the present proceeding, the solicitor's statement that that conduct " had no relevance " was accurate if the solicitor was directing attention to the issues then before the District Court. Mr Harding certainly had not been " lied to ". On the basis of the statement of claim as filed in the District Court and upon the basis of the defence as filed, the conduct of Mr McClure was irrelevant to the issues then before that Court. Nor is it considered that Mr Harding was " misled ". It was no part of the duty of the solicitor then appearing for the Deputy Commissioner to give advice to the then defendant, Mr Harding, as to either the prospect of a claim being made against the Commonwealth or even advice confined to the prudence of Mr Harding getting independent legal advice. The Australian Government Solicitor is established pursuant to s 55J of the Judiciary Act 1903 (Cth). That Act further provides for the issue by the Attorney-General of Legal Services Directions : s 55ZF. Directions have in fact been issued requiring the Commonwealth and its legal representatives to act as a " model litigant ". No particular provision of the Directions was relied upon by the Applicant. But it is not considered that the standards of a " model litigant " extend to imposing any general duty to give advice to an opponent as to the prospect of resisting a claim being advanced by the Commonwealth, or even a duty to suggest that independent advice be obtained. Whether or not the duty of a " model litigant " may in some particular circumstances embrace such a duty need not be resolved. Considerable caution should be exercised before imposing any such duty upon solicitors within the Australian Government Solicitor. Confined to the circumstances of the present proceeding, there was scant evidence as to what the solicitor had in fact been told by Mr Harding. Even assuming that Mr Harding had told the solicitor the entirety of his dealings with Mr McClure and his subsequent conversations with officers of the Australian Taxation Office, it is not considered, even on that assumption, that there was any requirement upon the solicitor to proffer advice. It is not considered that Mr Harding was deprived of any opportunity to have his case resolved by the District Court. The conduct of the solicitor can in no way be equated with the conduct of Mr Hussain in SZFDE . The submission that Mr Harding had a " counter-claim " or " cross demand " by reason of misrepresentation is also to be rejected. The " counter-claim " or " cross demand " relied upon by Mr Harding was said to be either: a claim for " misrepresentation ", namely a misrepresentation that Mr Harding had the benefit of a GST exemption issued by the Australian Taxation Office; or an action in the nature of judicial review to have the assessments or amended assessments upon which the District Court proceeded to enter judgment set aside and declared void. Each limb to the submission must be rejected.


case_title: Tzovaras v Nufeno Pty Ltd [2003] FCA 1152


case_title: Vogwell v Vogwell (1939) 11 ABC 83

case_text: is not considered that any state of satisfaction could possibly be reached that Mr Harding has any counter-claim, set-off or cross demand which it is " just " to be resolved before allowing the bankruptcy proceedings to continue: Dekkan v Evans [2008] FCA 1004 at [54] per Jacobson J; Dekkan v Macquarie Leasing Pty Ltd (No 2 ) [2008] FCA 1431 per Buchanan J; Re Cox (1934) 7 ABC 98. The task to be undertaken was formulated in Guss v Johnstone [2000] HCA 26 , 171 ALR 598 by Gleeson CJ, Gaudron, McHugh, Kirby and Callinan JJ as follows: [39] In Vogwell v Vogwell [(1939) 11 ABC 83] , Latham CJ said, in relation to a corresponding provision: "[T]he authorities show that the matter to which the court looks is this, — whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue; in other words, whether it is a claim which it is proper and reasonable to litigate." [40] The state of satisfaction referred to in s 40(1)(g), and s 41(7), involves weighing up considerations as to the legal and factual merit of the claim relied upon by the debtor, and the justice of allowing the bankruptcy proceedings to go ahead or requiring them to await the determination of the claim. It is, with respect, not even possible to be satisfied that Mr Harding has a " shadowy " claim that could be litigated: cf Re Rivett; Ex parte Edward Fay Ltd (1932) 5 ABC 182 at 188. A more modern instance of that which may fall within the statutory phrase is provided by Re Zakrzewski; Zakrzewski v Rodgers [2000] FCA 1187 , 178 ALR 694. An application had there been made for relief under s 106 of the Industrial Relations Act 1996 (NSW), that being a provision which allowed the Industrial Relations Commission of New South Wales to declare void or to vary a contract. His Honour Justice Madgwick there relevantly concluded: Measurable in money? [33] A further matter put forward by the applicant was that the debtor was unable to satisfy the Court of the existence of a counter demand or cross-claim, because the claim does not sound in money. In James v Abrahams [1981] FCA 46 ; (1981) 34 ALR 657 , at 664 Deane and Lockhart JJ endorse the view of Latham CJ in Vogwell at 85, in respect of the corresponding provision of the Bankruptcy Act 1924 , that: The words of the section are that the debtor must satisfy the court that he has a 'counter-claim ... which equals or exceeds the amount of the judgment debt'. In the first place it is accordingly clear that the counter-claim ... must be something sounding in money. [34] The creditor argues that the claim before the Commission is not one sounding in money, but is a claim akin to the rectification of a contract. However, the debtor seeks, among other things, an order that the creditor pay to the debtor any money that may be found owing under the arrangement as varied by the Commission and his claim is that the amount Network sued for in the Local Court plus interest at something like commercial rates should be found to be owing. If successful, this would amount to a direct order for money and the Commission clearly has the power to make such an award. The other remedies sought are, in a practical sense, subsidiary to that claim. Therefore, this objection to the application must fail. Reliance was sought to be placed on the observation of Latham CJ in Vogwell v Vogwell (1939) 11 ABC 83 at 85 that a Court should consider " whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue ". Reliance cannot be placed upon those observations of the Chief Justice in isolation. The balance of the passage is as follows: The words of the section are that the debtor must satisfy the court that he has "a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt". In the first place it is accordingly clear that the counter-claim, set-off or cross demand must be something sounding in money. It is also obvious that the section does not apply or refer to an already established right. If there were an already established set-off, for example, the judgment debt would have been reduced pro tanto and if there had been a counter-claim or cross demand which had already been applied as against the amount of the judgment the position would have been entirely different. What the section contemplates is a claim to the enforcement of a right sounding in money. It must be a real claim ; it is insufficient that the debtor believes that he has a claim, and the authorities show that the matter to which the court looks is this, — whether it is just that the claim should be determined before the bankruptcy proceedings are allowed to continue ; in other words, whether it is a claim which it is proper and reasonable to litigate. Read in its entirety, it is clear that the Chief Justice was not propounding any proposition that a Court could set aside a bankruptcy notice simply because it considered it " just " to do so. The Application is to be dismissed. It should, perhaps, be further noted that at one stage a Schedule of Questions of Fact and/or of Mixed Law and Fact was filed on behalf of the Applicant. That Schedule was filed in support of the application as previously made for the present proceeding to be heard with a jury. Such facts as did require resolution in the present proceeding were within a limited compass and could readily be resolved by a judge sitting alone.


case_text: I note that, in interpreting and applying ss 120(3) and 120A (3) of the Act , the Tribunal is required to ask and answer the question whether there is in force a Statement of Principles, or multiple Statements of Principles, determined under s 196B of the Act , that upholds the whole , not just part, of the Veteran's hypothesis: McKenna v Repatriation Commission [1999] FCA 323 ; (1999) 86 FCR 144 at 150-151. Further, a relevant hypothesis must consist of a link or links which connect, at one end, the type of death suffered by the Veteran, which is the basis of the claim under the Act , with, at the other end, the circumstances of the particular service rendered by the Veteran: McKenna 86 FCR at 151. Each of these links must be upheld by a Statement of Principles and, if need be, more than one Statement of Principles: McKenna 86 FCR at 151. 6 In this case the cause of death on the Veteran's death certificate was stated to be: "1. (a) ?Cerebrovascular accident with ?seizure (b) Hypertension (c) Epilepsy 2. Ischaemic heart disease, cerebral haemorrhage, transient ischaemic attack." 11 Ms Bowskill for the applicant submitted that the Act requires more than a factual linking between, in this case, hypertension and operational service. As made clear in McKenna [1999] FCA 323 ; 86 FCR 144, all "links" in the hypothesis must be supported by Statements of Principles. Accordingly, having regard to the links contained in the hypothesis advanced before the Tribunal in addition to the three Statements of Principle already mentioned, it was also necessary for the Tribunal to have regard to the Statements of Principles concerning anxiety disorder (Instrument No 1 of 2000) and panic disorder (Instrument No 9 of 1999). However, no reference was made by the Tribunal to the Statements of Principles concerning anxiety disorder and panic disorder. Accordingly, it follows from that submission that, contrary to the finding of the Tribunal, the second Deledio step was not satisfied. 14 In my view it is appropriate that the decision of the Tribunal be set aside and the matter be remitted to the Tribunal for a rehearing, not only for the reason conceded by Ms Skennar, but also on the basis that, to the extent that any hypothesis is identifiable in circumstances where the Tribunal has not specifically identified an hypothesis, the Tribunal has not properly identified and addressed Statements of Principles that uphold the whole of that hypothesis. If, for example, the hypertension of the Veteran was caused by anxiety or a panic disorder, that link in the hypothesis needs to be supported by the relevant Statements of Principles. The link between the war service and the hypertension is not substantiated nor supported by identified Statements of Principles in these proceedings as required by McKenna [1999] FCA 323 ; 86 FCR 144. In any event, I also note that any possible hypothesis referable to ingestion of salt by the Veteran could not, in circumstances where the point was unequivocally abandoned, have properly formed the basis for decision by the Tribunal. 15 In light of the usual rule that costs follow the event, the success of the Repatriation Commission, and the fact that the Repatriation Commission has sought an order that its costs be paid by the respondent, it follows that an appropriate order is that the Repatriation Commission's costs of the appeal be met by the respondent. However at the hearing, Ms Skennar for the respondent submitted that the Court should exercise its discretion pursuant to s 6 Federal Proceedings (Costs) Act 1981 (Cth) to grant a costs certificate. Section 6 provides, so far as relevant: "(1) Subject to this Act , where a Federal appeal succeeds on a question of law, the court that heard the appeal may, on the application of a respondent to the appeal, grant to the respondent a costs certificate in respect of the appeal. ... (3) The certificate that may be granted under subsection (1) or (2) by a court to a respondent to a Federal appeal is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney-General to authorise a payment under this Act to the respondent in respect of: (a) the costs incurred by the respondent in relation to the appeal; and (b) any costs incurred by an appellant in relation to the appeal that have been, or are required to be, paid by the respondent to the appellant in pursuance of an order of the court, not being costs to which a costs certificate granted under section 7 relates." 16 It is not in contention that s 6 is enlivened in this case. The matter before me is a Federal appeal, and it has succeeded on a question of law. The issue however is whether the Court should exercise its discretion to grant the certificate.


case_text: In summary, Ms Skennar has submitted that relevant factors for the Court to consider in exercising its discretion are: • the fact that the respondent's husband was a war veteran: Repatriation Commission v Cornelius [2002] FCA 930 • by making appropriate concessions, the respondent limited the appeal to a short point • although no new issue of law has arisen in this matter, the appeal results in a confirmation of the steps that must be taken in considering an application such as this, particularly in circumstances where there is more than one hypothesis connecting the veteran's death to his war service • the critical issue in this matter is that the Tribunal failed to give appropriate reasons identifying each of the steps taken • a further concession in relation to the ingestion of salt might have been forthcoming if the Repatriation Commission had provided further submissions with respect to the hearing before the Tribunal to Ms Skennar prior to the hearing before this Court, rather than providing relevant documents to her the morning of the hearing. 18 However, Ms Bowskill for the applicant submitted in summary that the Court should not exercise its discretion pursuant to s 6 because: • appeals of this nature from the Tribunal only involve questions of law, so they can only ever succeed on a question of law • the material with respect to the ingestion of salt, in particular the transcript of the hearing before the Tribunal, was material to which the respondent's legal representatives would already have had access • the decision of Branson J in Cornelius [2002] FCA 930 serves to support the submission that it is not appropriate to grant a costs certificate in this case. 19 In my view there are no circumstances in this case which warrant departure from the usual rule that costs follow the event. I make this finding for the following reasons. 20 First, as pointed out by Branson J in Cornelius [2002] FCA 930 , a submission that a costs certificate should be granted only because a Veteran is a party to the proceeding, is not sustainable. Her Honour continued: "I am unable to discern any such legislative intent in the Act . Section 6 of the Act , in my view, requires that each application for a certificate, including each application made on behalf of a war veteran, be considered individually and on its merit. [9] This is not to discount the significance of ' the special contribution made by war veterans to protecting Australian society in time of war '. Parliament has given recognition to this special contribution in the Veterans' Entitlements Act 1986 (Cth) by, amongst other things, providing for a relatively low standard of proof to be applied in the determination of whether a veteran's death, injury or disease is war-caused. The Executive Government has given recognition to the special contribution in the formulation of the Commonwealth guidelines for the administration of legal aid. It seems to me that the status of a respondent as a war veteran is a factor which may be taken into account in the exercise of the discretion to grant a certificate under s 6 of the Act . However, I am not persuaded that it is a factor which either compels, or necessarily suggests strongly in favour of, the grant of a certificate. As indicated above, each application must be considered on its merits. [10]" 21 Second, although it is commendable that the respondent made appropriate concessions thus limiting the appeal to a short point, the obvious response is that such an approach has the beneficial effect of limiting costs which may arise in the appeal rather than justifying a complete relief from the obligation to pay costs.


case_text: The course of reasoning which ss 120 and 120A of the Act require a decision-maker to take in relation to a claim lodged under the Act for a pension arising out of operational service rendered by a Veteran was authoritatively articulated by the Full Court in Repatriation Commission v Deledio (1998) 83 FCR 82. The relevant principles are as follows: 1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail. 2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a Statement of Principles determined by the Authority under s 196B(2) or (11). If no such Statement of Principles is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. 3. If a Statement of Principles is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the Statement of Principles. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail. 4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. 7 In this case the Tribunal found that: • on the balance of probabilities, a cerebrovascular accident was a main cause of the death of the Veteran (Tribunal decision at [16]); and • the whole of the material pointed to a hypothesis connecting the death of the Veteran with the circumstances of his service, and accordingly the first Deledio step was satisfied (Tribunal decision at [39]). 8 The Tribunal did not identify the relevant hypothesis. This was conceded by the respondent. However, as Ms Bowskill for the applicant submitted, the relevant hypothesis may be inferred as: • that the Veteran's death was caused by cerebrovascular accident • the cerebrovascular accident was caused by hypertension • the hypertension was caused by either an anxiety disorder or panic disorder suffered by the Veteran • the anxiety disorder or panic disorder was caused by the Veteran's operational service. 9 The Tribunal identified that three Statements of Principles were relevant in relation to this claim, namely: • Statement of Principles for Cerebrovascular Accident (Instrument No 57 of 2003 and Instrument No 51 of 2006) • Statement of Principles for Ischaemic Heart Disease (Instrument No 53 of 2003, as amended by Instrument No 9 of 2004) • Statement of Principles for Hypertension (Instrument No 35, as amended by Instrument No 3 of 2004). 10 I note that the Tribunal in its decision referred to these Statements of Principles as relevant to a hypothesis connecting the death of the Veteran to the circumstances of the case, and found that in this respect the second Deledio step was satisfied (Tribunal decision at [41]). 11 Ms Bowskill for the applicant submitted that the Act requires more than a factual linking between, in this case, hypertension and operational service. As made clear in McKenna [1999] FCA 323 ; 86 FCR 144, all "links" in the hypothesis must be supported by Statements of Principles. Accordingly, having regard to the links contained in the hypothesis advanced before the Tribunal in addition to the three Statements of Principle already mentioned, it was also necessary for the Tribunal to have regard to the Statements of Principles concerning anxiety disorder (Instrument No 1 of 2000) and panic disorder (Instrument No 9 of 1999). However, no reference was made by the Tribunal to the Statements of Principles concerning anxiety disorder and panic disorder. Accordingly, it follows from that submission that, contrary to the finding of the Tribunal, the second Deledio step was not satisfied. 22 Third, no new issue of law arose in this litigation, and indeed I have found that the reasons for setting aside the decision of the Tribunal were that not only was there a failure to articulate a hypothesis as required by the first Deledio step, but also that relevant Statements of Principles had not been identified to support each link in that hypothesis as required by the second Deledio step. 23 Finally, although I understand Ms Skennar's submission concerning the stage in the proceedings before me at which the Repatriation Commission had drawn her attention to concessions made by the respondent's Counsel below, in my view this is answered by Ms Bowskill's submission that the material with respect to the ingestion of salt, in particular the transcript of the hearing before the Tribunal, was material to which the respondent's legal representatives - in particular the solicitors - would already have had access. 24 As no circumstances exist which warrant the Court exercising its discretion pursuant to s 6 Federal Proceedings (Costs) Act 1981 (Cth), the appropriate order is that the respondent pay the applicant's costs of the appeal. THE COURT ORDERS THAT: 1. The decision of the Tribunal whereby the Tribunal set aside the decision of the Veterans' Review Board made on 22 November 2005 and decided "that the death of the late Mr Charles Sergeant is war-caused within the meaning of s 9 of the Veterans' Entitlements Act 1986 " be set aside. 2. The matter be remitted to the Tribunal to have the question whether the death of the late Mr Charles Sergeant is war-caused heard and decided again. 3. The respondent pay the applicant's costs of the appeal. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Collier. Associate: Dated: 10 September 2007 Counsel for the Applicant: H Bowskill Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D Skennar Solicitor for the Respondent: Files Stibbe Date of Hearing: 5 September 2007 Date of Judgment: 10 September 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1408.html


case_text: A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.


case_text: I am prepared to assume, in the appellant's favour, that the fact that the claim of political interference with the police investigation was made in support of the original applications but not reiterated at the hearing before the Tribunal constitutes "information" for the purposes of s 424A(1) of the Act . However, the Tribunal is only bound to provide particulars of information "that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review." Information will not be "a part of the reason" for affirming a decision unless it is established that the information "contributed in some way, which renders it an operative causal link, to the decision itself": see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 256 [182] ; NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 224 [79] . 16 A written submission was made to the Tribunal on behalf of the appellant. Although no express reference was made, in that submission, to the alleged political interference with the police investigation, the Tribunal's attention was directed to the appellant's statement in support of her protection visa application. Part of the submission read: "She has also been politically involved as can be seen from the statement she made in support of her protection visa application." As already noted, one aspect of the appellant's political involvement was her work for the UNP which it was said led to the interference by a political opponent. She thereby expressly relied on the information and invited the Tribunal to have regard to it: see M55 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 131 at [25] . The Tribunal was, therefore seized of the political interference claim. Was it also seized of the "information" that the claim had not been reiterated during the hearing which it conducted? Although there are some decisions of the Court (see for example VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471) which may be understood as supporting the view that omissions from an appellant's account do not constitute "information" for the purposes of s 424A of the Act , the weight of authority supports the conclusion reached by Weinberg J in NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 212-13 that: "There is no reason in principle why such an omission (which the Tribunal views as important, and which is plainly adverse to the applicant's case) should be treated any differently, when it comes to s 424A , than a positive statement. This is particularly so when, as the Tribunal seems to have done here, it treats the omission as though it provides implicit support for a positive assertion that is detrimental to an applicant's case. It makes no difference whether the omission is to be found in a prior statement of an applicant or as in this case in a statement provided by a third party." See also SZEEU at 252, 262-3; SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435 at [72] . Although his Honour was dealing with a case in which the relevant omission was made in the original application, there is no reason, in principle, why the failure to mention a particular matter when advancing a case before the Tribunal should not also constitute "information" for the purposes of s 424A.


case_text: I am prepared to assume, in the appellant's favour, that the fact that the claim of political interference with the police investigation was made in support of the original applications but not reiterated at the hearing before the Tribunal constitutes "information" for the purposes of s 424A(1) of the Act . However, the Tribunal is only bound to provide particulars of information "that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review." Information will not be "a part of the reason" for affirming a decision unless it is established that the information "contributed in some way, which renders it an operative causal link, to the decision itself": see SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 256 [182] ; NBKS v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 174 ; (2006) 156 FCR 205 at 224 [79] . 15 Moreover, there is force in the Minister's contention that the claim about political interference had formed part of the claims made in support of the appellant's visa applications and that these claims had been republished to the Tribunal when review of the delegate's decision was sought. Section 424A(3)(b) provides that the requirements of s 424A(1) do not apply to information which an applicant "gave" for the purpose of the application. Most, if not all, cases in which s 424A(3)(b) has been invoked have been cases in which an applicant makes a significant claim before the Tribunal which was not made in support of the original protection visa application. This case differs because a claim which was made in the original application was not repeated during the oral hearing before the Tribunal. Section 424A(3)(b) could only operate in this case if the claims made in support of the original visa application were made (given) to the Tribunal by the appellant: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 ; (2006) 150 FCR 214 at 222, 252, 256.


case_title: SZGGT v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 435


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


case_text: application was filed approximately 3 weeks outside the 21 day time limit prescribed by the Federal Court Rules (O 52 r 15(1)(a)(i)). No explanation for the delay is given, other than an assertion by the applicant that she believed that the time limit had not expired. That explanation does not constitute special reasons for the grant of an extension of time. Nevertheless, it is appropriate to consider the merits of the appeal in determining whether leave should be granted ( NBBD v Minister for Immigration and Multicultural Affairs [2006] FCA 1029 at [12] ). Federal Magistrate Smith set out the history of this matter in his decision at [4] to [14]. In summary, the applicant lodged an application for a protection visa. That application was refused by a delegate of the Minister and the applicant sought review of the Minister's decision before the Refugee Review Tribunal. The application form to the Tribunal included an authority for a migration agent (Mr Mollah) to act for the applicant in relation to her application. The form indicated that correspondence was to be sent to the applicant's residential address and that her agent was authorised to receive correspondence in connection with the review by the Tribunal. The form explained that, if such a person was nominated, all correspondence would be sent to that person, identified by the form as the "authorised recipient". Letters addressed to the applicant were sent to Mr Mollah regarding the Tribunal proceeding. One such letter informed the applicant that the Tribunal had considered the material before it but was unable to make a decision in her favour and invited her to attend a hearing. Smith FM summarised the steps taken by the Tribunal to notify the applicant of the hearing date through Mr Mollah (at [10] to [14]).


case_text: the contrary, in the ordinary course, the instruction to the agent to submit "all the matters on my behalf" would include the completion of the application form and lodgement of the application with the Tribunal. Similar instructions have been found to give rise to an authority to sign a protection visa application ( SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [7] ). On the basis of the evidence before me, and in circumstances where the applicant gave that general authority and expected it to result in an appearance before the Tribunal, I am satisfied that the agent's authority extended to an authorisation to sign the application form on her behalf. I am also satisfied, in the circumstances, that the agent's authority extended to an authority for Mr Mollah to receive correspondence in relation to the review by the Tribunal. That is, the applicant authorised the agent to give the Tribunal written notice of his own name and address as the person authorised by the applicant to receive documents. Such notice was given by Mr Mollah when he completed and sent the application form. He became an "authorised recipient" within the meaning of s 441G(1)(b) of the Act. An application to the Tribunal for review must be in the approved form (s 412(1)(a) of the Act). Accepting the applicant's evidence that the signature on the application form was not hers, a question arises as to the status of the application to the Tribunal. It may be that an application must be signed personally by an applicant to be in approved form. If the application was defective for this reason, the applicant had not applied to the Tribunal for review of the delegate's decision. The Tribunal then had no jurisdiction to hear the application. It would follow that an appeal to this Court alleging a failure by the Tribunal to give notice of the hearing and failure by the Federal Magistrate to make that finding does not arise and the application for an extension of time to appeal should be refused ( SZGJO v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 393 at [4] to [5]). If an application form need not be signed by an applicant personally, the application for review by the Tribunal was validly made. However, as I have noted, notice was given to the Tribunal that Mr Mollah was the "authorised recipient" for the purposes of s 441G of the Act. Where the Tribunal gives a document to the authorised recipient, the Tribunal is taken to have given the document to the applicant (s 441G(2) of the Act). Indeed, the Tribunal is required to give documents to the authorised recipient (s 441G(1)). Accordingly, in corresponding with the agent alone, the Tribunal did not deny the applicant procedural fairness. If the application was valid the Tribunal was entitled to proceed pursuant to s 426A of the Act and no jurisdictional error has been established. The parties did not make submissions on whether an application to the Tribunal must be signed personally by an applicant in order to be in approved form. In any event, the proposed appeal must fail. It cannot be established that there has been any jurisdictional error on the part of the Tribunal.


case_text: The power conferred by s 21 is a discretionary power which is not to be limited by the laying down of rules as to the manner of its exercise: Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564. Mason CJ, Dawson, Toohey and Gaudron JJ there observed (at 581 2): It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which "[i]t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise." However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have "a real interest" and relief will not be granted if the question "is purely hypothetical", if relief is "claimed in relation to circumstances that [have] not occurred and might never happen" or if "the Court's declaration will produce no foreseeable consequences for the parties". (citations omitted) 22 Given the functions entrusted to Comcare by the 1991 Act, there can be no question but that Comcare has " a real interest " in securing the relief which is sought. Indeed, cl 5 to sch 2 of the 1991 Act expressly provides that either Comcare or an investigator may apply for a declaration of contravention. 23 The manner in which the Court is to inform itself as to whether or not there has been a breach of the 1991 Act is not surprisingly left unspecified. Whether or not there has been a breach may involve, in some cases, a contested and lengthy hearing. Alternatively, and as in the present proceeding, the parties may provide to the Court a statement of agreed facts and limited further evidence .


case_title: Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 , ATPR 42-199

case_text: Of particular concern is the need to ensure that this Court is " not merely giving effect to the wishes of the parties ": cf Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 at [18] , [1999] FCA 18 ; 161 ALR 79 at 86 per French J. The Court is not to be regarded as a " rubber stamp ": Australian Competition and Consumer Commission v Australian Abalone Pty Ltd [2007] FCA 1834 at [121] , ATPR 42-199 per Weinberg J.


case_title: Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 , ATPR 42 216

case_text: In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801.


case_title: Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 , ATPR 41 801


case_title: Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534


case_title: Australian Competition and Consumer Commission v Real Estate Institute of Western Australia Inc [1999] FCA 18 , 161 ALR 79


case_text: In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] .


case_title: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 , 240 ALR 120


case_text: In the statutory context of the present legislation, Madgwick J has focussed attention upon those considerations relevant to the imposition of a penalty in Comcare v Commonwealth [2007] FCA 662 , 163 FCR 207. A member of the Australian Defence Force had there died in November 1994 as a result of heat stress sustained during an army training exercise. His Honour there observed: [120] Decisions under the cognate New South Wales Act refer to the following considerations among others: (i) the penalty must be such as to compel attention to occupational health and safety generally, to ensure that workers whilst at work will not be exposed to risks to their health and safety; (ii) it is a significant aggravating factor that the risk of injury was foreseeable even if the precise cause or circumstances of exposure to the risk were not foreseeable; (iii) the offence may be further aggravated if the risk of injury is not only foreseeable but actually foreseen and an adequate response to that risk is not taken by the employer; (iv) the gravity of the consequences of an accident does not of itself dictate the seriousness of the offence or the amount of penalty. However the occurrence of death or serious injury may manifest the degree of the seriousness of the relevant detriment to safety; (v) a systemic failure by an employer to appropriately address a known or foreseeable risk is likely to be viewed more seriously than a risk to which an employee was exposed because of a combination of inadvertence on the part of an employee and a momentary lapse of supervision; (vi) general deterrence and specific deterrence are particularly relevant factors in light of the objects and terms of the Act; (vii) employers are required to take all practicable precautions to ensure safety in the workplace. This implies constant vigilance. Employers must adopt an approach to safety which is proactive and not merely reactive. In view of the scope of those obligations, in most cases it will be necessary to have regard to the need to encourage a sufficient level of diligence by the employer in the future. This is particularly so where the employer conducts a large enterprise which involves inherent risks to safety; (viii) regard should be had to the levels of maximum penalty set by the legislature as indicative of the seriousness of the breach under consideration; (xi) the neglect of simple, well-known precautions to deal with an evident and great risk of injury, take a matter towards the worst case category; (x) the objective seriousness of the offence, without more may call for the imposition of a very substantial penalty to vindicate the social and industrial policies of the legislation and its regime of penalties. These considerations, it was concluded, " provide [d] useful, analogical, general guidance as to the approach to be taken in consideration of penalties under the Commonwealth Act ". His Honour noted that the maximum penalty was 2,200 penalty units, a penalty of less than $250,000. The maximum penalty would be appropriate where there had been a " conscious decision to flout the law ". A penalty of 1,800 penalty units ($198,000) was ordered. His Honour found that there had been " systemic failures of the most serious kind ": at [125]. 37 These considerations may also be applied to the task of assessing the penalty to be imposed under the current legislation. To some extent the considerations set forth by Madgwick J overlap with those set forth by French J; to some extent they do not. 39 A final matter of principle should also be noted. It is inappropriate to fix a penalty simply by reference to the quantum of a penalty imposed in another case. It was thus understood to be common ground between the parties to the present proceeding that it was not appropriate to regard (in particular) the penalty of $198,000 in Comcare v Commonwealth as itself fixing a " benchmark " against which other penalties are to be determined in cases involving death. In NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134 ; (1996) 71 FCR 285 , Burchett and Kiefel JJ observed (at 295): A hallmark of justice is equality before the law, and, other things being equal, corporations guilty of similar contraventions should incur similar penalties: Trade Practices Commission v Axive Pty Ltd [(1994) ATPR 41-368] (at 42,795). There should not be such an inequality as would suggest that the treatment meted out has not been even-handed: cf the criminal law case Lowe v The Queen [1984] HCA 46 ; (1984) 154 CLR 606. However, other things are rarely equal where contraventions of the Trade Practices Act are concerned. In the present case, differing circumstances, size, market power and responsibility for the contraventions, as well as other factors, complicate any attempt to compare the penalties imposed on the appellant with those imposed on the other corporations. Another form of comparison is not appropriate. The facts of the instant case should not be compared with a particular reported case in order to derive therefrom the amount of the penalty to be fixed. Cases are authorities for matters of principle; but the penalty found to be appropriate, as a matter of fact, in the circumstances of one case cannot dictate the appropriate penalty in the different circumstances of another case. The point was well made by Spender J in Trade Practices Commission v Annand and Thompson Pty Ltd [(1987) ATPR 40-772] (at 48,394) when he said: "Each case must, of course, be viewed on its own facts and facts may be infinite in their variety." It follows, as his Honour also said, that "[t]he quantum of penalties imposed in other cases can seldom be of very much direct assistance". A comparison of the facts in Comcare v Commonwealth and the facts in the present proceeding only serves to underline the point there being made by Burchett and Kiefell JJ (and by Spender J) -- namely that the facts and circumstances of individual cases are infinitely diverse. The quantum of any penalty to be imposed must necessarily be fixed by reference to the peculiar facts arising in each case as and when they arise. 40 In the present proceeding it is considered that an appropriate penalty is $165,000 -- that being the sum as agreed between the parties. 41 In imposing that penalty, consideration has been given to both: • the agreement as between the parties; and • the facts and circumstances as set forth in the Statement of Agreed Facts and such evidence as has been relied upon.


case_text: In Comcare v National Gallery of Australia [2007] FCA 1548 , 98 ALD 67 a penalty of $20,000 had been agreed between the parties and ordered by the Court. Whilst not downplaying the serious risks involved, the injuries sustained by the workers were relatively mild. Gyles J there further observed: [8] All things considered, I am satisfied that the pecuniary penalty proposed is appropriate. As the cases indicate, it is not so much a question of me deciding what figure I would independently propose and then seeing whether it accords with the figure proposed. A commonsense approach is to take the agreed figure and give consideration to whether it is within the range of appropriate figures. In my opinion it is. I make the orders set out in the draft order which I have initialled and placed with the papers. 34 Although the particular legislative regime which is being enforced must always remain the source whereby considerations relevant to the imposition of a penalty are to be discerned, there nevertheless remain some more general considerations that inform the discretion being exercised. 35 Many other Commonwealth Acts provide for a regulator to approach this Court seeking an order for the imposition of a pecuniary penalty as a means of securing compliance with legislative provisions. A degree of learning has emerged from those authorities dealing with those other legislative provisions as to the matters to be taken into account when assessing a penalty. 42 The extent to which this Court may inform itself as to the appropriate quantification of any penalty to be imposed by reference to any agreement between the parties has been the subject of consideration in the context of other legislation: eg, Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [33] [42]. Reference was there made to the decision of the Full Court of this Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and to the earlier decision in NW Frozen Foods . The Full Court in Mobil Oil continued on to observe: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. In Comcare v National Gallery of Australia [2007] FCA 1548 at [4] , [2007] FCA 1548 ; 98 ALD 67 at 68 Gyles J referred to Mobil Oil and accepted that " that decision does provide appropriate guidance ".


case_title: Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 , 136 LGERA 89


case_text: The extent to which this Court may inform itself as to the appropriate quantification of any penalty to be imposed by reference to any agreement between the parties has been the subject of consideration in the context of other legislation: eg, Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [33] [42]. Reference was there made to the decision of the Full Court of this Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and to the earlier decision in NW Frozen Foods . The Full Court in Mobil Oil continued on to observe: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. In Comcare v National Gallery of Australia [2007] FCA 1548 at [4] , [2007] FCA 1548 ; 98 ALD 67 at 68 Gyles J referred to Mobil Oil and accepted that " that decision does provide appropriate guidance ".


case_title: Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 , 168 FCR 383

case_text: In fixing the penalty at $165,000, considerations has been given in particular to the following matters, namely: • the fact that the breach of the duty occasioned the death of Mr Lapidario; • the lack of attention previously given to the training extended to supervisors and team leaders; • the lack of attention previously given to the training of employees and contractors; • the fact that there was a degree of " horseplay " engaged in by Mr Lapidario himself; • the steps which have been implemented since his death in an effort to ensure that the health and safety of employees is now protected; • the contrition expressed by the present Respondent; and • the fact that the Respondent has been able to reach agreement with Comcare as to those facts considered by the parties to be relevant to the penalty to be imposed, thereby not necessitating a contested hearing. In so proceeding, it is accepted that the Respondent has expressed a " willingness to facilitate the course of justice ": Mornington Inn Pty Ltd v Jordan [2008] FCAFC 70 at [74] , [2008] FCAFC 70 ; 168 FCR 383 at 404 per Stone and Buchanan JJ.