case_text: The principles which govern an application under s 178 are as follows: 1. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ. The section confers on the Court a very wide discretion: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547 at 552-553. 2. It is not necessary for an applicant for relief under the section to show that the trustee's decision was absurd, or unreasonable or taken in bad faith. The Court has a wide discretion to make such order as seems appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10; [1977] FCA 15 ; 17 ALR 182 at 186 per Deane J. At the same time, the Court will be slow to make orders which will have the effect of interfering in the day-to-day administration of a bankrupt's estate and, in cases involving an exercise of business or commercial judgment, will place considerable weight on the trustee's decision. Furthermore, a Court will not intervene under s 178 simply because the Judge forms a different view from that of the trustee. 3. An order may be made under s 178 even if the trustee's decision was correct on the material before him, if, for example, additional material is put before the Court. 4. The power to make orders under s 178 is not necessarily ousted by the presence of an alternative remedy. In any particular case, the presence of an alternative remedy may lead to an argument that the alternative procedure is a code for correcting alleged errors by a trustee. That was a possibility discussed by the Full Court of this Court in McGoldrick , although the argument did not succeed in that case. In almost all cases, the presence of an alternative remedy will be relevant to the exercise of a discretion under s 178 not to make an order. There is, with respect, an illuminating discussion of the relevant principles by French J in Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101. Counsel for the respondent in this case referred to McGoldrick and the argument that an alternative review procedure might be construed as a code excluding relief under s 178 , but by the time of their respective closing submissions both parties accepted that there is no alternative review procedure which might affect this application either as a matter of law or as a matter of discretion. The position taken by the parties is correct because the review procedure in Part VII , Division 2, Subdivision C relates to a trustee's decision to file a notice of objection (s 149K(1)) ; not a decision (or act or omission) by a trustee not to withdraw an objection. 35 As far as the objection provisions in the Act are concerned, although a number of the authorities deal with provisions which have since been amended, it seems the basic principles remain the same. They are as follows: 1. The power to prevent a discharge from bankruptcy by operation of law by filing a notice of objection is "a great power": Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 430-431; 50 ALR 253 at 260; Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296 at 300 [19] - [21] . 2. In Inspector-General in Bankruptcy v Nelson (1998) 86 FCR 67 the Court referred to s 149C as it then was and concluded that to make an objection a trustee would need to have reasons directed to the purposes and objects of the Act and that the existence of a permissible ground supported by sufficient evidence was a threshold and that there must also be reasons justifying the making of the objections in the particular case. Section 149C has since been amended to insert subs (1A) which excludes the sub-group of ten grounds to which I have previously referred from the operation of s 149C(1)(c) (see [21] above). It is not necessary for me to consider whether this amendment might affect the question of whether all the reasoning in Nelson should be applied to the amended provisions because there is no challenge in this case to the respondent's decision to make the objections or the notices of objections themselves. 3. Unlike this case, in Wharton v Official Receiver in Bankruptcy [2001] FCA 96 ; (2001) 107 FCR 28 there was a challenge to a trustee's decision to file a notice of objection and at the time relevant to Weinberg J's decision there were fourteen, not twenty-one, grounds of objection in s 149D(1). Nevertheless, with respect, his Honour's observations at 41 [77] give an insight into the objection procedure: Section 149A is an important provision. It provides a strong incentive to bankrupts to cooperate with their trustees during the administration of their estates. In some circumstances, an incentive of that type is plainly necessary. However, unless the section is construed in a sensible manner, it is capable of operating oppressively. It is reasonable to assume that trustees who make requests for information from bankrupts, including those concerning their income, will make due allowance for what might be regarded as the ordinary exigencies of life. Requests for information are often not met in as timely a manner as they ought to be. Some delays may be regarded as excusable while others will properly give rise to the filing of notices of objection. A bankrupt cannot ignore requests from his or her trustee. A particularly lengthy delay in responding to a request may trigger a notice of objection to discharge which is entirely justifiable. A relatively short delay in answering a request may be a different matter. Section 149D(1)(d) must be construed in the light of the requirement in s 149B(2)(b) that the trustee must believe that the filing of a notice of objection is the only way to induce the bankrupt to discharge his duties under the Act . It is plainly a course of last resort. 4. In Thomas v Donnelly [1997] FCA 1142 , Emmett J considered the trustee's discretionary power under s 149J to consider and make a decision as to whether, in particular circumstances, he should withdraw an objection which he has lodged. His Honour made the point that a trustee is an officer of the Court and that in exercising his powers and functions, he is required to take into account not only the interest of creditors but also the interest of the bankrupt and of the community generally. His Honour also said: In exercising his powers, the trustee should have in mind the object of enforcing careful and moral conduct on the part of the debtor and to uphold the commercial morality of the community. In Macchia , French J cited with approval authority to the effect that trustees are appointed to administer the estates of bankrupts in the interests of creditors and, in so doing, to have regard also to the interests of bankrupts (at 116 [38]). 5. In a case such as the present one where there has been a failure to provide information or material and to pay money and there is no challenge to the decision to make objections on those grounds, a trustee, on being asked to consider a withdrawal of objections, will consider the following: (1) Whether the obligation has now been complied with or, at least, substantially complied with. Literal compliance may not in fact be possible. The ground in s 149D(1)(e) provides an example. The twenty-one day period referred to in s139U(1) is likely to have expired long ago. I will refer to substantial compliance as embracing the concept of compliance in a practical sense with the relevant obligation. It is difficult to see how a trustee could be criticised for refusing to withdraw an objection that had not been substantially complied with. (2) Even if an objection has been substantially complied with, the trustee has a discretion not to withdraw it. That discretion must be exercised having regard to the interests of the bankrupt's creditors and the interest of the bankrupt and the community generally. The discretion should not be exercised to punish the bankrupt. Despite legislative amendments since Nelson the principle that a notice of objection should not be filed to penalise a bankrupt (at 82) remains valid and in the same way a trustee should not refuse to withdraw an objection for the purpose of penalising a bankrupt. The most important consideration in the exercise of the discretion whether to withdraw an objection will be whether there is utility in the administration of the estate continuing. If there is utility in the administration of the estate continuing, then even though a properly based objection has been substantially complied with it may be appropriate for the trustee to refuse to withdraw the objection. In exercising the discretion it is likely that it will be appropriate for a trustee to consider a range of matters. It is not possible to state those matters exhaustively. Some of the matters which seem to me to be relevant are the nature and extent of the benefit which may accrue to the estate if the administration continues, any connection between the ground of objection and delay in the timely administration of the estate, delay by the trustee in the timely administration of the estate for reasons unrelated to the ground of objection and any connection between the ground of objection and a need by the trustee to conduct further inquiries and investigations. It would also be appropriate for the trustee to have regard to the interests of the bankrupt and the overall period of the bankruptcy. In a proper case, it will also be appropriate for the trustee to take into account the fact that he retains certain powers, or is owed certain obligations by a bankrupt, even after the bankrupt's discharge from bankruptcy. Examples are the power to examine and require the production of books in s 81 , and the obligation in s 152 of the Act . Section 152 is in the following terms: s 152 A discharged bankrupt must, even though discharged, give such assistance as the trustee reasonably requires in the realization and distribution of such of his or her property as is vested in the trustee. Penalty: Imprisonment for 6 months. One factor which the respondent advanced as a factor he could rely on to support his decision not to withdraw the objections was the fact that, if not discharged, there will be a further CAP and it was said that that might produce a contribution for the benefit of creditors. The CAPs cease at the end of bankruptcy although an assessment may be made at any time: s 139WA. The discharge of a bankrupt from a bankruptcy does not release the bankrupt from liability to pay an amount to the trustee under s 139ZG(1). In my opinion, the fact that there will be a further CAP is not a factor to be taken into account. It is a consequence of an administration continuing, but not a reason to continue it. I do not think the Full Court of this Court said anything to the contrary in Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296.


case_outcome: referred to

case_text: The principles which govern an application under s 178 are as follows: 1. Section 178 confers a "supervisory jurisdiction over the conduct of the trustee": Cummings v Claremont Petroleum NL [1996] HCA 19 ; (1996) 185 CLR 124 at 132 per Brennan CJ, Gaudron and McHugh JJ. The section confers on the Court a very wide discretion: McGoldrick v Official Trustee in Bankruptcy [1993] FCA 636 ; (1993) 47 FCR 547 at 552-553. 2. It is not necessary for an applicant for relief under the section to show that the trustee's decision was absurd, or unreasonable or taken in bad faith. The Court has a wide discretion to make such order as seems appropriate in the circumstances of the case: Re Tyndall; Ex parte Official Receiver (1977) 30 FLR 6 at 9-10; [1977] FCA 15 ; 17 ALR 182 at 186 per Deane J. At the same time, the Court will be slow to make orders which will have the effect of interfering in the day-to-day administration of a bankrupt's estate and, in cases involving an exercise of business or commercial judgment, will place considerable weight on the trustee's decision. Furthermore, a Court will not intervene under s 178 simply because the Judge forms a different view from that of the trustee. 3. An order may be made under s 178 even if the trustee's decision was correct on the material before him, if, for example, additional material is put before the Court. 4. The power to make orders under s 178 is not necessarily ousted by the presence of an alternative remedy. In any particular case, the presence of an alternative remedy may lead to an argument that the alternative procedure is a code for correcting alleged errors by a trustee. That was a possibility discussed by the Full Court of this Court in McGoldrick , although the argument did not succeed in that case. In almost all cases, the presence of an alternative remedy will be relevant to the exercise of a discretion under s 178 not to make an order. There is, with respect, an illuminating discussion of the relevant principles by French J in Macchia v Nilant [2001] FCA 7 ; (2001) 110 FCR 101. Counsel for the respondent in this case referred to McGoldrick and the argument that an alternative review procedure might be construed as a code excluding relief under s 178 , but by the time of their respective closing submissions both parties accepted that there is no alternative review procedure which might affect this application either as a matter of law or as a matter of discretion. The position taken by the parties is correct because the review procedure in Part VII , Division 2, Subdivision C relates to a trustee's decision to file a notice of objection (s 149K(1)) ; not a decision (or act or omission) by a trustee not to withdraw an objection.


case_text: As far as the objection provisions in the Act are concerned, although a number of the authorities deal with provisions which have since been amended, it seems the basic principles remain the same. They are as follows: 1. The power to prevent a discharge from bankruptcy by operation of law by filing a notice of objection is "a great power": Van Reesema v Official Trustee in Bankruptcy (1983) 69 FLR 424 at 430-431; 50 ALR 253 at 260; Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296 at 300 [19] - [21] . 2. In Inspector-General in Bankruptcy v Nelson (1998) 86 FCR 67 the Court referred to s 149C as it then was and concluded that to make an objection a trustee would need to have reasons directed to the purposes and objects of the Act and that the existence of a permissible ground supported by sufficient evidence was a threshold and that there must also be reasons justifying the making of the objections in the particular case. Section 149C has since been amended to insert subs (1A) which excludes the sub-group of ten grounds to which I have previously referred from the operation of s 149C(1)(c) (see [21] above). It is not necessary for me to consider whether this amendment might affect the question of whether all the reasoning in Nelson should be applied to the amended provisions because there is no challenge in this case to the respondent's decision to make the objections or the notices of objections themselves. 3. Unlike this case, in Wharton v Official Receiver in Bankruptcy [2001] FCA 96 ; (2001) 107 FCR 28 there was a challenge to a trustee's decision to file a notice of objection and at the time relevant to Weinberg J's decision there were fourteen, not twenty-one, grounds of objection in s 149D(1). Nevertheless, with respect, his Honour's observations at 41 [77] give an insight into the objection procedure: Section 149A is an important provision. It provides a strong incentive to bankrupts to cooperate with their trustees during the administration of their estates. In some circumstances, an incentive of that type is plainly necessary. However, unless the section is construed in a sensible manner, it is capable of operating oppressively. It is reasonable to assume that trustees who make requests for information from bankrupts, including those concerning their income, will make due allowance for what might be regarded as the ordinary exigencies of life. Requests for information are often not met in as timely a manner as they ought to be. Some delays may be regarded as excusable while others will properly give rise to the filing of notices of objection. A bankrupt cannot ignore requests from his or her trustee. A particularly lengthy delay in responding to a request may trigger a notice of objection to discharge which is entirely justifiable. A relatively short delay in answering a request may be a different matter. Section 149D(1)(d) must be construed in the light of the requirement in s 149B(2)(b) that the trustee must believe that the filing of a notice of objection is the only way to induce the bankrupt to discharge his duties under the Act . It is plainly a course of last resort. 4. In Thomas v Donnelly [1997] FCA 1142 , Emmett J considered the trustee's discretionary power under s 149J to consider and make a decision as to whether, in particular circumstances, he should withdraw an objection which he has lodged. His Honour made the point that a trustee is an officer of the Court and that in exercising his powers and functions, he is required to take into account not only the interest of creditors but also the interest of the bankrupt and of the community generally. His Honour also said: In exercising his powers, the trustee should have in mind the object of enforcing careful and moral conduct on the part of the debtor and to uphold the commercial morality of the community. In Macchia , French J cited with approval authority to the effect that trustees are appointed to administer the estates of bankrupts in the interests of creditors and, in so doing, to have regard also to the interests of bankrupts (at 116 [38]). 5. In a case such as the present one where there has been a failure to provide information or material and to pay money and there is no challenge to the decision to make objections on those grounds, a trustee, on being asked to consider a withdrawal of objections, will consider the following: (1) Whether the obligation has now been complied with or, at least, substantially complied with. Literal compliance may not in fact be possible. The ground in s 149D(1)(e) provides an example. The twenty-one day period referred to in s139U(1) is likely to have expired long ago. I will refer to substantial compliance as embracing the concept of compliance in a practical sense with the relevant obligation. It is difficult to see how a trustee could be criticised for refusing to withdraw an objection that had not been substantially complied with. (2) Even if an objection has been substantially complied with, the trustee has a discretion not to withdraw it. That discretion must be exercised having regard to the interests of the bankrupt's creditors and the interest of the bankrupt and the community generally. The discretion should not be exercised to punish the bankrupt. Despite legislative amendments since Nelson the principle that a notice of objection should not be filed to penalise a bankrupt (at 82) remains valid and in the same way a trustee should not refuse to withdraw an objection for the purpose of penalising a bankrupt. The most important consideration in the exercise of the discretion whether to withdraw an objection will be whether there is utility in the administration of the estate continuing. If there is utility in the administration of the estate continuing, then even though a properly based objection has been substantially complied with it may be appropriate for the trustee to refuse to withdraw the objection. In exercising the discretion it is likely that it will be appropriate for a trustee to consider a range of matters. It is not possible to state those matters exhaustively. Some of the matters which seem to me to be relevant are the nature and extent of the benefit which may accrue to the estate if the administration continues, any connection between the ground of objection and delay in the timely administration of the estate, delay by the trustee in the timely administration of the estate for reasons unrelated to the ground of objection and any connection between the ground of objection and a need by the trustee to conduct further inquiries and investigations. It would also be appropriate for the trustee to have regard to the interests of the bankrupt and the overall period of the bankruptcy. In a proper case, it will also be appropriate for the trustee to take into account the fact that he retains certain powers, or is owed certain obligations by a bankrupt, even after the bankrupt's discharge from bankruptcy. Examples are the power to examine and require the production of books in s 81 , and the obligation in s 152 of the Act . Section 152 is in the following terms: s 152 A discharged bankrupt must, even though discharged, give such assistance as the trustee reasonably requires in the realization and distribution of such of his or her property as is vested in the trustee. Penalty: Imprisonment for 6 months. One factor which the respondent advanced as a factor he could rely on to support his decision not to withdraw the objections was the fact that, if not discharged, there will be a further CAP and it was said that that might produce a contribution for the benefit of creditors. The CAPs cease at the end of bankruptcy although an assessment may be made at any time: s 139WA. The discharge of a bankrupt from a bankruptcy does not release the bankrupt from liability to pay an amount to the trustee under s 139ZG(1). In my opinion, the fact that there will be a further CAP is not a factor to be taken into account. It is a consequence of an administration continuing, but not a reason to continue it. I do not think the Full Court of this Court said anything to the contrary in Prentice v Wood [2002] FCAFC 48 ; (2002) 119 FCR 296.


case_text: As to the third issue, neither counsel made submissions about whether the respondent was entitled at law to use the sum of $4,217.67 to discharge a liability other than the liability identified by the payor. It is far from clear that he was: Halsbury's Laws of England (4 th ed) Vol 9 [956]-[960]. The applicant's counsel put a different argument and that was that even if the respondent was legally entitled to do what he did the respondent as an officer of the Court was bound to act fairly and he had not acted fairly by purporting to allocate the payment to a liability other than that identified by the payor. The applicant's counsel sought to invoke the principle in In re Condon; Ex parte James (1874) LR 9 Ch App 609 (see Re Clark (a bankrupt); Ex parte the trustee of the property of the bankrupt v Texaco Ltd [1975] 1 All ER 453; [1975] 1 WLR 559). I do not think that there is any room for the application of that principle in this case. The payment was not made by a third party but by the bankrupt and the payment was not made in circumstances of unfairness leading to the enrichment of the estate.


case_title: Stevens and Stevens [2007] FamCA 680

case_text: He also referred to the decision of the Court of Appeal of the Family Court of Australia in Stevens and Stevens [2007] FamCA 680 at [100] per Finn J and at [255] per Warnick J. 78 The submission seems to me to depend on a number of assumptions, not all of which were addressed in submissions. However, I cannot rule it out as a possibility and it seems to be a discretionary reason in favour of allowing the administration of the estate to continue.


case_title: Thomas v Donnelly [1997] FCA 1142


case_outcome: followed

case_text: my opinion the parties should be left to bear their own respective costs. There has not been an adjudication upon the merits and it is not possible to say what the ultimate outcome of the proceeding would have been. In all the circumstances, the test that is to be applied to the conduct of the antagonists is one of reasonableness in the light of the nature of the particular proceeding and all the circumstances. In Re the Minister for Immigration and Ethnic Affairs of the Commonwealth of Australia; ex parte Lai Qin [1997] HCA 6 ; (1997) 186 CLR 622 , McHugh J said (at 625) that where both parties appear to have acted reasonably, the proper exercise of the discretion as to costs will usually be that the Court will make no order as to costs. Similarly, in Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585 ; (1993) 44 FCR 194 at 202-203, Hill J applied a test of reasonableness to the conduct of ASIC's predecessor, the Australian Securities Commission in respect of a discontinued proceeding under s 1323 of the Corporations Law and determined that each party should bear its own costs.


case_title: Australian Securities Commission v Aust-Home Investments Limited [1993] FCA 585 ; (1993) 44 FCR 194


case_outcome: distinguished

case_text: Young CJ in Eq (as Young JA then was) observed in Australian Securities and Investments Commission v Krecichwost [2008] NSWSC 855 ; (2008) 219 FLR 235 in relation to a costs issue on an application under s 1323 , "[e]ach case must be decided on its own facts and merits" (at [27]). In that case, on which Mr Groves relies, his Honour ordered ASIC to pay the relevant defendant's costs. However, the circumstances were that ASIC had obtained ex-parte relief against the relevant defendant who consented to extensions of that relief. With respect, it is understandable that his Honour treated that defendant's costs as an incident of the costs of ASIC's investigation that ASIC should bear. The present proceeding is very different. ASIC did not seek ex parte relief; its application under s 1323 was resisted by Mr Groves and Ms Collins-Rubie; they and ASIC filed and served extensive affidavit evidence; the proceeding was fixed for final hearing; and even when, at the beginning of the hearing on 27 July 2009 it was clear that ASIC did not seek to pursue Perfection Too, Mr Groves and Ms Collins-Rubie wished the hearing to proceed. As at the beginning of the date fixed for the final hearing, the parties were still strongly in dispute. It was only progressively throughout the day that they reached agreement.


case_outcome: cited

case_text: McGregor (from par 27-063) traces the development of the rule. The general rule as to the measure of damage is taken to have been stated and applied in Smith v M'Guire (1858) 3 H&N 554; 157 E.R. 589, and as ascertained by the calculation of: ' ... the freight to be earned, and the deduction of the expenses which the shipowner would be put to in earning it; and what the ship earned (if anything) during the period which would have been occupied in performing the voyage, ought also to be deducted.' In that case Martin B expressed some doubt as to whether the shipowner was obliged to look for employment for his ship, but McGregor regards this as being wrong ' now that the rules as to mitigation have been worked out, and the contrary view is stated in later cases ' (at 27-065). Scrutton is of a similar opinion (at Art 192, p 389 footnote 31). McGregor refers to statements in Aitken Lilburn v Ernsthausen [1894] 1 QB 773 and Wallems Rederij A/S v Muller [1927] 2 KB 99, to the effect that the shipowner is bound to search out other cargo or otherwise he would not be able to recover full damages.


case_title: Basma v Weekes [1950] AC 441

case_text: In the present case there was no qualification made by Dartbrook as to the capacity in which it contracted. The knowledge of a third party of the existence of the principal is not sufficient to excuse an agent from liability: Stanley Yeung Kai Yung v Hong Kong and Shanghai Banking Corporation [1981] AC 787 at 795. To do otherwise would permit oral evidence to contradict the written agreement: Basma v Weekes [1950] AC 441 at 451. In the present case there is nothing to suggest that the parties intended that Dartbrook not be liable as charterer. Even if one were to have regard to Hyundai MM's state of knowledge, it could not be assumed that it understood Dartbrook was not intended to have that liability. It merely knew that it was acting for the joint venture in connexion with its sale.


case_text: At the heart of the submissions for the defendants are the decisions in Cobelfret (UK) Ltd v Austin and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales, Brownie J, 24 February 1988); Cobelfret (UK) Ltd and Anor v Austen and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales Court of Appeal, Kirby P, Priestley JA, Meagher JA, 5 April 1991) (' Cobelfret '). It is submitted that that case involves the application of the normal rule to a case such as this and that it recognises that the plaintiff is under an obligation to seek alternative employment for the vessel which was intended to be used under the charter. This forms part of its proof of damage.


case_title: Cobelfret (UK) Ltd and Anor v Austen and Butta (Sales) Pty Ltd (unreported, Supreme Court of New South Wales Court of Appeal, Kirby P, Priestley JA, Meagher JA, 5 April 1991)


case_outcome: applied

case_title: Golden Strait Corporation v Nippon Yusen Kubishika Kaisha (The Golden Victory) [2005] 1 Lloyd's Law Rep 443; [2005] 2 Lloyd's Law Rep 747

case_text: None of the cases which make reference to a substituted cargo and an obligation, on part of the shipowner, to obtain it, suggest that there is a ' rule ' to that effect which is of universal application, applying in every case involving a failure to supply cargo. The reference in the ' rule ' to the deduction of market freight, which was or could have been earned, expresses no more than what a shipowner, having a vessel available for the charter, would do in the ordinary course of business and acting reasonably. It is assumed that the shipowner would go into the market and obtain a substitute cargo. Likewise where a shipowner breaches a charterparty it is assumed that the charterer will charter a substitute vessel and this is reflected in statements of the ' normal ' measure of damage: Koch Marine Inc v D'Amica Societa Di Navigazione A.R.L (The Elena D'Amico) [1980] 1 Lloyd's Law Rep 75 (' The Elena D'Armico '). It is the operation of mitigation principles which are responsible for the rule. This was pointed out in Golden Strait Corporation v Nippon Yusen Kubishika Kaisha (The Golden Victory ) [2005] 1 Lloyd's Law Rep 443 (' The Golden Victory ') (appeal dismissed [2005] 2 Lloyd's Law Rep 747). It is not therefore to be seen as stating a new principle.


case_text: Dartbrook and Anglo Coal sought to raise an issue as to whether Hyundai MM was ready and willing to perform the contract. An averment to this effect, on the part of a plaintiff, is usually taken as implied: Hensley v Reschke [1914] HCA 88 ; (1914) 18 CLR 452 at 467 (' Hensley v Reschke') . Whilst a plaintiff is absolved from further performance, upon their acceptance of a wrongful repudiation by the other party, it is nevertheless necessary for them to show that they were ready and willing to perform their part of the bargain, and this includes their ability to perform: Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25 ; (1954) 90 CLR 235 at 253 ( 'Peter Turnbull and Co' ); Hensley v Reschke at 467. The only allegation of inability to perform was that mentioned above and related to the vessel's draft. Dartbrook and Anglo Coal also submitted that Dartbrook's repudiation may not have been so clear as to amount to a refusal to perform. It was said there was a question whether ' the failure of Dartbrook necessarily conveyed to HMM that, even if HMM performed its obligations, Dartbrook will still not perform its obligations '. If Dartbrook had not clearly done so, it would follow that performance by Hyundai MM was not excused: see Peter Turnbull and Co at 246, 252 ; Mahoney v Lindsay (1981) 55 ALJR 118 at 119, referring to Jones v Barkley (1781) 1 Dougl. 684; 99 E.R. 434.


case_text: A general, but not universal, rule as to damages must, in any event, give way in a particular case to solutions which fairly compensate a plaintiff: Johnson v Perez [1988] HCA 64 ; (1988) 166 CLR 351 at 355 -356. In The 'Golden Victory ' Langley J considered that the ' normal measure ' referred to in The Elena D'Amico , was merely a prima facie rule and the ' governing principle ' remains that the measure of damage is the loss directly and naturally resulting, from the breach of contract. The application of principles relating to mitigation must be understood in this light. 81 Hyundai MM owns ships and charters ships both on long and short term. Part of its business is the carriage of cargo by hiring vessels. In the present case it had contracted as an owner, but the vessel to be nominated was not limited to one of its own vessels. Clause 34(A) of the charterparty recognises that the vessel might be provided from any such source. Its terms reflect the concern that Hyundai MM have control of the vessel used. 82 The situation with respect to Hyundai is similar to that of Cobelfret . A factual difference however is that it was known that Cobelfret would have two ships on time charter for the purposes of the charterparty in question. They were at their disposal and able to be used. It was obliged to mitigate for this reason. This accords with the approach taken in the cases referred to above. The basis upon which the ' rule ' proceeds is that there is a vessel available for use. That circumstance, and the shipowner's failure to use it for substituted cargo, are the only grounds for a conclusion that the loss claimed against the charterer was not a consequence of the breach of contract, but flowed from the shipowner's unreasonable inaction. 83 If it could be concluded that Hyundai MM had available to it a ship to take substitute cargo a short time after 16 April 2004, the profits that ship could have earned must be taken into account against contract freight. This accords with what might be expected in practice, as Mrs Richards said. An owner would simply be pursuing revenue for ' his fleet '. It is simply a matter of comparing income streams. It will be recalled that Scrutton, 20 th Edn, Art 193, makes an observation to similar effect. At a practical level there would have been no reason why a shipowner with a vessel available could not have gone into the market for substitute cargo. At the relevant time there was more cargo than ships available. 84 Mrs Richard's view, that Hyundai MM would have had a vessel available, appeared to have two bases. She considered that in a fleet such as Hyundai MM's a vessel could be made available by it. The second was that Hyundai MM should have maintained the fixture on the Tian Bai Feng , not the least because it was at a good price. The latter does not provide a basis for an assumption that a vessel was available at the date of acceptance of repudiation, or shortly thereafter. It is not even relevant to mitigation, since Hyundai MM could not have known, when it agreed to alter the laycan dates and not take a fixture on the vessel, that Dartbrook would later repudiate the charterparty.


case_title: Jones v Barkley (1781) 1 Dougl. 684; 99 E.R. 434


case_title: Koch Marine Inc v D'Amica Societa Di Navigazione A.R.L (The Elena B'Amico) [1980] 1 Lloyd's Law Rep 75


case_text: In any event the submission for Dartbrook and Anglo Coal ignores the need to construe each force majeure clause by reference to its words, having due regard to the nature and general terms of the contract: Lebeaupin v Richard Crispin and Co [1920] 2 KB 714 per McCardie J. Here the objective of Dartbrook was to load the specified cargo of coal. The obligation was not dependant upon the existence of a particular purchaser, as previously discussed, and could be fulfilled without a sale to National Power. Clause 45 requires that Dartbrook be prevented from performing that obligation before it is excused. The clause itself gives examples of what may amount to prevention. It includes ' hindrances of whatsoever nature in mining production ' with the rider that they not be caused by the actions of Dartbrook itself. The requirement that Dartbrook be prevented from performance, in practical terms, implies causation between the event and the inability to perform. Some force majeure clauses have been recognised as operating in this way (see Treitel at par 12 019). Nothing in National Power's refusal to proceed with its contract prevented Dartbrook from providing coal for delivery to Masinloc in accordance with the charter. The ' practical ' considerations, to which Dartbrook and Anglo Coal point, are indicative of matters which may affect a party which considers itself to be at risk of loss. Proceeding with the charterparty may not have been to their advantage, but there was nevertheless a choice open with respect to performance. They were not prevented from performance. They considered it not be in their interests to do so and chose not to perform. 63 In their defences Dartbrook and Anglo Coal alleged that Hyundai MM would not have been able to perform its obligations under the charterparty because it could not have secured a ship meeting the requirements of the charterparty within the time required for performance. Those defendants alleged that they would not have accepted the nomination of the ' Szare Szeregi ', or a like vessel, because it did not conform to the description of the vessel required under the charterparty. Further particulars of the allegation identified the requirement as to the maximum draft of the vessel as relevant. After some evidence was given on that matter I was informed that this allegation was no longer pursued. There was evidence that the Szare Szeregi would have been able to discharge the maximum load at Masinloc and that there were other vessels meeting the requirements of the charterparty which were likely to have been available at the relevant time.


case_title: Mahoney v Lindsay (1981) 55 ALJR 118


case_text: Dartbrook and Anglo Coal do not dispute that an agreement came into existence with National Power by 29 March 2004, albeit one which was subject to the terms being restated in a fuller or more precise form, but not different in effect. It therefore belonged to the first class of contracts referred to in Masters v Cameron [1954] HCA 72 ; (1954) 91 CLR 353 at 360, by which the parties intended to be immediately bound to performance. 45 Marubeni and Ssangyong however deny that an agreement between Dartbrook and National Power was concluded and allege that Ms Tan knew that it was not in place on 29 March 2004 when she concluded the charterparty agreement with Hyundai MM. Evidence as to her true understanding about the coal sales agreement is relevant to the allegations of wilful misconduct on the part of Dartbrook, which may affect its entitlement to an indemnity from these defendants. 46 Marubeni and Ssangyong contend that there was a lack of correspondence between the offer and acceptance with respect to a number of contractual terms: the price for freight; the FOBT price; the specifications as to the moisture and ash content of the coal; the terms as to the nomination of a vessel; and the terms and conditions as to discharge. Alternatively it is submitted that any binding agreement was made subject to a formal contract being agreed between the parties. This can be seen from the reference, at the foot of the letter of 25 March 2004, to ' all other terms and conditions are to be mutually agreed in a new contract '. The formal contract was never agreed.


case_title: Peter Turnbull and Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd [1954] HCA 25 ; (1954) 90 CLR 235


case_outcome: considered

case_text: Impractability of performance is not generally recognised as a ground of discharge of a contracting party's obligations: E McKendrick, Force Majeure and Frustration of Contract , 2 nd edn, LLP, London, 1995 at pp 24-25; G Treitel, Frustration and Force Majeure , Sweet and Maxwell, London, 1994 at par 6-021. To the extent that it has been accepted as a ground by American courts, Treitel at par 6-020 observes that they have become increasingly reluctant to regard the increased cost or difficulty of performance as sufficient for this purpose. The assertion that force majeure ' includes every event which is beyond the control of the parties' (see L D'Arcy, Schmitthoff's Export Trade: The Law and Practice of International Trade, 9 th edn, Sweet and Maxwell, London, 1990 at p 199) has been regarded as too wide: McKendrick at p 8 footnote 41. In PJ van der Zijden Wildhandel N.V. v Tucker [1975] 2 Lloyd's Rep 240 the sellers were entitled to cancel the contract if they did not effect shipment in time by reason of war, flood, fire or storm or ' any other cause beyond their control '. This was held not to protect them when their supplier let them down, since the event did not prevent them from performing by other means. 61 There is no doctrine in English law which corresponds with the doctrine of force majeure in French law. The use of the words in contracts have required English and Australian courts to give them some meaning. The characteristics by McKendrick at pp 24 25, which have been recognised by the courts as constituting a force majeure event have regard to something which is: (a) irresistible; (b) unforeseeable; (c) external to the person claiming discharge; and has (d) made performance impossible and not merely more onerous or difficult (and see Treitel at par 12 017). In the present case (a) (b) and (d) are not present.


case_title: Rheinoel v Huron Liberian Co.(The Concordia C) [1985] 2 Lloyd's Rep 55

case_text: McGregor points to the difference between stating the measure of damages as ' contract rate of freight subject to mitigation ' and as ' contract rate less market rate of freight ' as lying in the practical matter of onus of proof. Suggesting the latter as the ' modern rule ' (at par 27-066), the author explains that the effect is that a claimant will recover only contract rate less market rate unless the claimant can prove that in the particular circumstances substitute freight was not, and could not reasonably have been, earned. He cites two decisions as apparently supporting the modern rule: Rheinoel v Huron Liberian Co. (The Concordia C) [1985] 2 Lloyd's Rep 55 (' The Concordia C ') and SIB International v Metallgesellschaft Corp. (The Noel Bay) [1989] 1 Lloyd's Rep 361 CA (' The Noel Bay '). 78 In the Concordia C the ' guiding principle ' confirmed by Bingham J (at 57) was that ' the owners damages should be such sum as would put them in the same financial position as if the Rheinoel charter had been performed, ' noting that the principle is easy to state but far from easy to apply. In applying that principle it was considered necessary to reduce the net revenue which the owners would have earned under the charter by the net amount which they did in fact earn during its currency. In the The Noel Ba y Staughton LJ at 363 likewise described the shipowner's entitlement as taking into account the money they in fact earned.


case_title: SIB International v Metallgesellschaft Corp. (The Noel Bay) [1989] 1 Lloyd's Rep 361


case_text: Scutton on Charterparties , 20 th edn, Sweet and Maxwell, London, 1996, Art 193 at p 394 says that in an action against a charterer for not loading a cargo the measure of damage is: 'the amount of freight which would have been earned under the charter after deducting the expenses of earning it and any net profit the ship made, or might, have earned during the period of the charter on a substituted voyage.' and goes on to say that if the expense of earning freight on a substituted voyage of the same duration is the same as on the chartered voyage, the same result is arrived at by taking the difference between the charterparty rate of freight and the market rate of freight. In relation to the duty to mitigate (at Art 192, p 388, note 4) the authors say that a plaintiff is under a duty to mitigate its loss and damages will not be awarded for losses that it could reasonably have avoided. In relation to the 'so-called duty' reference is made to Sotiros Shipping Inc v Sameiet Solholt (The Solholt) [1983] 1 Lloyd's Rep 605. There Sir John Donaldson M.R. said (at p 608) that a plaintiff is under no duty to mitigate his loss despite the habitual use by lawyers of the phrase ' duty to mitigate '. As a matter of causation however a loss may be directly attributable to a breach of contract ' unless avoidable by some reasonable further action ', and that is a question of fact. Scrutton (at note 4) continues in the same terms as the previous edition (at [73] above). 75 McGregor on Damages, 17 th edn, Sweet and Maxwell, London, 2003 at par 27-062 deals with the 'growth of the modern measure ' of damages where there has been a failure to supply cargo. The author says that: 'The normal measure of damages may be stated today as the contract rate of freight less the market rate of freight. This is calculated by taking not the gross amounts of the contract and the market freights but the net amounts after the costs of earning the freights. The market freight is deducted on the ground that this sum was or could have been earned by the defendant on the claimant's refusal to supply cargo. This is in accordance with general principles and in particular with the measure of damages in an action for non-acceptance of goods sold. However, this measure allowing for the deduction of market freight developed slowly in carriage contracts.' In connexion with contracts for the sale of goods, Carter on Contract , Vol 2, Butterworths at par 41 380 notes that the prime facie rule, which relies on a comparison of market price and contract price, assumes that the plaintiff will (or should) mitigate loss by going into the market. G Treitel , The Law of Contract, 11 th edn, Sweet and Maxwell, London, 2003 at p 977 says that where a seller fails to deliver, the buyer must go into the market at the relevant time to buy substitute goods. This requirement finds expression in legislation concerned with the sale of goods.


case_title: Stanley Yeung Kai Yung v Hong Kong and Shanghai Banking Corporation [1981] AC 787


case_text: Generally speaking, where a party signs a contract without qualification as to the capacity in which they are signing, they are taken to be contracting personally. This may be otherwise where disclosure of the agency is made, but it needs to be clear that the party is acting as agent in the legal sense: Treitel , Law of Contract at p 727. In Universal Steam Navigation Co v James McKelvie and Co [1923] AC 492 an agent was not held personally liable where they had signed ' as agent '. The question was what that meant. Lord Sumner (at 501-502) considered that, in the circumstances of the case, the words could only mean: ' I am not liable but someone else is and he only '. On the other hand the words ' This vessel was chartered on behalf of ...... for account of ... ' was not held to mean that the parties intended the agent not to be liable as charterer: Tudor Marine Ltd v Tradax Export S.A. (The Virgo) [1976] 2 Lloyd's Rep 135.


case_title: Universal Steam, Navigation Co v James McKelvie and Co [1923] AC 492


case_title: Wallems Rederij A/S v Muller [1927] 2 KB 99


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 364 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 EVIDENCE whether survey evidence is admissible whether exception to the hearsay rule applies - whether discretion should be exercised to exclude survey evidence non-compliance with Practice Note 11. Evidence Act 1995 (Cth) ss 72 , 190 (3), 135 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 cited Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [1999] FCA 1379 at [23] followed CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (No 2) NO. VID 555 of 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavit of Caroline Judy Shelton and exhibits thereto will be admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LES CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 2 Cadbury seeks to rely on an affidavit of Caroline Judy Shelton which exhibits the report of a chocolate sensory study conducted in November last year. Survey evidence has been admitted in this Court at least since Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313. 3 Broadly speaking, the study involved 102 participants who attended at the premises of Ms Shelton's organisation, National Field Services (NFS). The people were shown chocolates of undisclosed origin, in fact made by Cadbury, in different forms, such as block, Easter eggs, chocolate coated almonds etc, with different coloured wrappings. Different questions were asked of the participants in relation to their reactions, for example, did they recognise any particular brand of chocolate manufacturer. 4 It was said in opposition to the tender that it was hearsay. I think insofar as the responses that the participants gave to the persons conducting the study, they fall within section 72 of the Evidence Act 1995 (Cth) as being a representation made by such persons that were a contemporaneous representation about their feelings, sensations, knowledge or state of mind.


case_text: Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) [ Home ] [ Databases ] [ WorldLII ] [ Search ] [ Feedback ] Federal Court of Australia You are here:   AustLII >> Databases >> Federal Court of Australia >> 2006 >> [2006] FCA 364 [ Database Search ] [ Name Search ] [ Recent Decisions ] [ Noteup ] [ Download ] [ Help ] Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 (31 March 2006) Last Updated: 7 April 2006 FEDERAL COURT OF AUSTRALIA Cadbury Schweppes Pty Ltd v Darrell Lea Chocolate Shops Pty Ltd (No 2) [2006] FCA 364 EVIDENCE whether survey evidence is admissible whether exception to the hearsay rule applies - whether discretion should be exercised to exclude survey evidence non-compliance with Practice Note 11. Evidence Act 1995 (Cth) ss 72 , 190 (3), 135 Arnotts Ltd v Trade Practices Commission (1990) 24 FCR 313 cited Eveready Australia Pty Ltd v Gillette Australia Pty Ltd [1999] FCA 1379 at [23] followed CADBURY SCHWEPPES PTY LTD v DARRELL LEA CHOCOLATE SHOPS PTY LTD (No 2) NO. VID 555 of 2005 HEEREY J 31 MARCH 2006 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY NO. VID 555 of 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE OF RULING: 31 MARCH 2006 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: The affidavit of Caroline Judy Shelton and exhibits thereto will be admitted into evidence. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules . IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VID 555 OF 2005 BETWEEN: CADBURY SCHWEPPES PTY LTD APPLICANT AND: DARRELL LES CHOCOLATE SHOPS PTY LTD RESPONDENT JUDGE: HEEREY J DATE: 31 MARCH 2006 PLACE: MELBOURNE RULING 1 The applicant Cadbury Schweppes Pty Ltd (Cadbury) has brought this proceeding against the respondent Darrell Lea Chocolate Shops Pty Ltd (Darrell Lea) alleging contravention of ss 52 , 53 (c) and 53 (d) of the Trade Practices Act 1974 (Cth) and passing off constituted by Darrell Lea's use in its chocolate confectionary business of "the colour Cadbury purple or any colour bearing a striking and obvious likeness to the colour Cadbury purple". 12 Finally, as to whether it would cause or result in undue waste of time, I must say I am troubled by the attitude that Cadbury's solicitors have taken to the Practice Note No. 11. No explanation has been proffered for the non-compliance in relation to this survey. As Tamberlin J said in Eveready Australia Pty Ltd v. Gillette Australia Pty Ltd (1999) FCA 1379 at par [23] : "The purpose of the practice note - which was issued as long ago as 8 April 1994 - is to minimise costs and hearing time by obtaining an early determination as to the admissibility and form of survey evidence." 13 However, counsel for Cadbury is, I think, correct in saying there is no evidence before the Court to draw any inference as to the absence of compliance with Practice Note 11. It would be wrong to use the exercise of discretion under s 135 in effect as a punishment for non-compliance with the Practice Note. It is well established that compliance with the Practice Note is not a criterion of admissibility. 14 As to undue waste of time, senior counsel for Darrell Lea criticised the report. For example, he said there was a disproportionate number of female participants and failure to disclose the protocols. If these points are taken up in cross-examination, they may cause some time to be taken up. Perhaps that is a waste which could have been avoided if the Practice Note had been followed, but in all the circumstances I do not think I can say it will be an undue waste of time. So the affidavit of Ms Shelton will be received. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ruling herein of the Honourable Justice Heerey. Associate: Dated: 7 April 2006 Counsel for the Applicant: A J Myers QC and M D Wyles Solicitors for the Applicant: Mallesons Stephens Jaques Counsel for the Respondent: C Golvan SC and S Ricketson Solicitors for the Respondent: Middletons Lawyers Date of Hearing: 31 March 2006 Date of Judgment: 31 March 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/364.html


case_outcome: discussed

case_text: That same issue occurred in relation to proposals to acquire native title rights and interests, or certain of them, in the Town of Timber Creek. On 31 July 2003, a judge of the Supreme Court of the Northern Territory decided that such notices were invalid as being beyond power in the circumstances: Griffiths v Lands and Mining Tribunal and Minister for Lands Planning and the Environment (2003) 179 FLR 241. That decision was reversed by the Full Court of the Supreme Court of the Northern Territory: Minister for Lands, Planning & Environment (2004) 14 NTLR 188. The High Court subsequently granted leave to appeal from that decision. On 15 November 2007, judgment on the appeal was reserved. It addresses questions as to whether s 43 of the Lands Acquisition Act permits the compulsory acquisition of native title rights and interests in land for the purpose of extinguishing native title in order to alienate land for the private benefit of another citizen; whether s 24MD of the NT Act permits the acquisition of native title rights and interests in land for the purpose of vesting the affected land in the Northern Territory freed and discharged of the native title rights and interests; and whether s 46 of the Lands Acquisition Act is repugnant to s 238 of the NT Act.


case_title: Minister for Lands, Planning & Environment (2004) 14 NTLR 188


case_text: In the meantime, an application for the determination of native title in respect of the Timber Creek township area has been heard and determined: Griffiths v Northern Territory of Australia [2006] FCA 903 on 17 July 2006. That decision was upheld by the Full Court: Griffiths v Northern Territory of Australia [2007] FCAFC 178 delivered on 22 November 2007.


case_title: Griffiths v Northern Territory of Australia [2007] FCAFC 178


case_text: They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights. 21 Upon that basis, in my view, the Town of Batchelor No 1 applicants have demonstrated that their interests are adversely affected by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application. The potential benefits or advantages which they enjoyed before that decision, by reason of the Town of Batchelor No 1 application having been accepted for registration, would be diminished so they would have suffered a disadvantage or detriment to an extent greater than the ordinary members of the public: Onus v Alcoa of Australia Ltd at 75. In Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 , at [23] French J remarked upon the extent to which overlapping native title claims had impacted upon the imposition of those claims, and upon the administration of the right to negotiate the process. I think his Honour's remarks are consistent with the conclusion to which I have come.


case_text: They contend that their interests are adversely affected by the Registrar's decision, so that success in this application for review will result in a benefit to them, or relieve them of a detriment, to an extent greater than ordinary members of the public: see Onus v Alcoa of Australia Ltd [1981] HCA 50 ; (1981) 149 CLR 27 at 75-76; Right to Life Association (NSW) Inc. v Secretary, Department of Human Services and Health (1995) 56 FCR 50 at 60-65. That must be because the procedural rights which they obtain by registration of the Town of Batchelor No 1 application, as discussed above (see Fejo v Northern Territory (1998) 196 CLR 96 at 121-125; Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242 at 244-246), or the enjoyment of those rights and the extent to which they can be exercised, are restricted by the decision of the Registrar which gives the Town of Batchelor No 2 applicants equivalent procedural rights.


case_title: Fejo v Northern Territory (1998) 196 CLR 96


case_title: Strickland v Native Title Registrar [1999] FCA 1530 ; (1999) 168 ALR 242


case_text: In Western Australia v Native Title Registrar [1999] FCA 1591 ; (1999) 95 FCR 93 , Carr J decided that the State of Western Australia was a "person aggrieved" for the purposes of making an application for review under s 5 of the ADJR Act in respect of a decision of the Registrar to admit for registration a particular native title claim. His Honour found that the adverse effect of registration upon the State so qualified it, because as owner of the land the subject of that particular native title claim, the State was restricted in its capacity to deal with its proprietary interest, and was obliged to submit to the statutory requirements of negotiation in respect of future acts under the NT Act. Obviously, the impact upon an owner of land of an application for the determination of native title being admitted for registration under s 190A of the NT Act is different from the impact upon a person or persons in the position of the Batchelor No 1 applicants. They are competing native title claimants whose claim has been registered, and not land owners. 16 One of the reasons Carr J reached that conclusion in Western Australia v Native Title Registrar [1999] FCA 1591 ; 95 FCR 93 was that the government, being primarily responsible for the development and manner of use of the land the subject of that particular native title claim, had a "very close relationship with the subject matter" of the registration decision, and that the NT Act recognised that closeness by, for example, the requirement in s 66(2) of the Act not only that the State be notified of the application for registration, but also that it be supplied with all affidavits and documents in support of it: see at [20]. 17 A similar obligation is imposed upon the Registrar under s 66(2A) of the NT Act in relation to the relevant representative body of the area covered by the application, in this case the NLC. 18 I was referred by counsel for the Batchelor No 1 applicants to s 66(3)(a)(i) of the NT Act. Under that provision, the Registrar is obliged to give notice containing details of an application for determination of native title to any registered native title claimant in relation to any of the area covered by the application which is being assessed for registration under s 190A. I do not think that that provision operates to provide or enhance the status of the Batchelor No 1 applicants in this matter as persons aggrieved by the decision of the Registrar. That is because s 66(3) commences by saying that it is generally subject to the section. The Registrar's obligation is specifically then explained or qualified, at least in terms of the time when it must be implemented, by s 66(6)(a). Pursuant to s 66(6)(a), in the event of a claimant application, the Registrar must not comply with sub-section (3) until the Registrar has decided, in accordance with s 190A, whether or not to accept for registration the claim made in the application. In my view the position is clear. Not only is the Registrar not required by s 66(3)(a)(i) to have given notice of the Batchelor No 2 application to the Batchelor No 1 applicants, as registered native title claimants in respect of the same claim area, until the Registrar has decided whether or not to accept the Batchelor No 2 application for registration, but he is positively directed not to do so by s 66(6)(a). 19 Consequently, if the Town of Batchelor No 1 applicants are to establish that they are persons aggrieved by the decision of the Registrar, they must do so by some circumstance un-unsupported by, and perhaps even informed by, s 66(6)(a). 20 In my view, the procedural rights which they obtained by registration of the Town of Batchelor No 1 application are not, in terms, diminished by the fact of the acceptance for registration of the Town of Batchelor No 2 application. Their procedural rights under the Act remain the same. But, at a practical level, it is said that the enjoyment of those procedural rights is diminished because the persons with whom they have rights of negotiation would also have to deal with the Town of Batchelor No 2 applicants who would possess equivalent rights of negotiation. The outcomes of negotiations in relation to a future act or future acts which might be the subject of such negotiation would, it is argued, in a practical sense have to be shared or may have to be shared between the two sets of registered applicants. In my view, as a matter of commonsense, that is likely to be correct. In such negotiations, the person or entity who is the potential beneficiary of the future act is unlikely to negotiate in a way which would give each of the negotiating registered native title applicants the same benefits as if there were only one group of registered native title applicants with whom those negotiations should be conducted. To put it somewhat crudely, the potential fruits of the negotiations would probably be shared rather than doubled.


case_text: Upon that basis, in my view, the Town of Batchelor No 1 applicants have demonstrated that their interests are adversely affected by the decision of the Registrar to accept for registration the Town of Batchelor No 2 application. The potential benefits or advantages which they enjoyed before that decision, by reason of the Town of Batchelor No 1 application having been accepted for registration, would be diminished so they would have suffered a disadvantage or detriment to an extent greater than the ordinary members of the public: Onus v Alcoa of Australia Ltd at 75. In Strickland and Nudding (on behalf of the Maduwongga People) v Native Title Registrar [1999] FCA 1089 , at [23] French J remarked upon the extent to which overlapping native title claims had impacted upon the imposition of those claims, and upon the administration of the right to negotiate the process. I think his Honour's remarks are consistent with the conclusion to which I have come.


case_text: Certain principles are clear. When a statute confers a power on a public officer, the exercise of which may affect a third person's rights or interests, that person is entitled to procedural fairness until that entitlement is excluded by express terms or by any necessary implication: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 ; Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57. The way in which procedural fairness should be provided in any particular circumstance depends upon the nature of the decision of the statutory framework in which it is made: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515. In this matter, if the Town of Batchelor No 1 applicants were entitled to procedural fairness (as they claim), the opportunity to make written submissions and to present material to the Registrar would have been an appropriate step for the Registrar to have taken. They seek no more than that.


case_title: Minister for Agricultural Affairs; ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57


case_title: SZBEL v Minister for Immigration [2006] HCA 63 ; (2006) 81 ALJR 515


case_text: In my view s 66 of the NT Act, for the reasons I have given above, proceeds on the basis that a decision to accept for registration a native title claim under s 190 not only may, but must, be made before competing registered native title claimants in respect of the same claim area are notified of the competing claim. In Griffith University v Tang (2005) 31 CLR 99 Gummow, Callinan and Heydon JJ at 117-118 referred to there generally being a relationship between the questions of standing and, in the context of procedural fairness, the right to be heard. However, in my view s 66(6)(a) makes it plain that in the normal course a competing registered native title claimant is not entitled to be given the opportunity to be heard when the Registrar is considering whether to accept for registration a native title determination application over the same area of land. The mere fact of having standing to challenge the Registrar's decision does not mean that the Town of Batchelor No 1 applicants were entitled to the opportunity to make submissions to the Registrar and to present material to him when he was considering such a decision. 27 However, there are particular features in the present matter which take the position further. The Town of Batchelor No 1 applicants were in fact aware of the Town of Batchelor No 2 application, and that the Registrar would in due course consider whether to accept it for registration. The NLC, as the relevant representative body for the area covered by both applications, was entitled to be given a copy of the Town of Batchelor No 2 application and other documents relating to it pursuant to s 66(2A) of the Act. That may be how the Town of Batchelor No 1 applicants came to learn of the later application. The NLC had certified the Town of Batchelor No 1 application. The solicitors acting for the NLC were the same solicitors as were acting for the Town of Batchelor No 1 applicants. Those solicitors had indicated a desire to make a submission to the Registrar on whether the Town of Batchelor No 2 application should be accepted for registration. There was then an e-mail exchange between the Registrar by his officers and those solicitors on 1 December 2005 in which it was acknowledged that such a submission was to be made, and that such a submission would be made after the proposed amendment to the Town of Batchelor No 2 application. The officer of the Registrar indicated that the time within which the submission should be made and material presented would be notified to the NLC once the amendments had been effected. I accept that, on the evidence, the proposed submission in opposition to the potential registration of the Town of Batchelor No 2 claim was delayed until after the proposed amendment of that claim and that the Registrar gave notification that the Registrar was considering whether to accept for registration the amended Town of Batchelor No 2 application. I also accept, as I have said above, that had such a submission been made it would have raised significant material for the Registrar's consideration relevant to whether the Town of Batchelor No 2 application should have been accepted for registration. 28 It is that combination of particular circumstances which, in my view, gave rise to a legitimate expectation on the part of the Town of Batchelor No 1 applicants and an obligation on the part of the Registrar that he would give the NLC and its solicitors notification that he was considering whether to accept for registration the Town of Batchelor No 2 application and a time within which to take the opportunity to make submissions and to provide information in relation to it. I am mindful of the fact that relevant communications on 1 December 2005 were between the solicitor for the Town of Batchelor No 1 applicants and for the NLC on the one hand, and an officer of the Registrar, but referred only to a submission from the NLC. In my view, there was such a coincidence of interest between the Town of Batchelor No 1 applicants and the NLC in the present circumstances, a coincidence which was apparent to the Registrar from the Town of Batchelor No 1 application having been certified by the NLC, that the opportunity to make a submission and to present additional information was one which was an entitlement to procedural fairness which covered both the NLC and the Town of Batchelor No 1 applicants. 29 It is accepted that that opportunity was not provided by the Registrar. 30 In my judgment, therefore, there was a failure to accord procedural fairness to the Town of Batchelor No 1 applicants in the particular circumstances before the decision was made by the Registrar to accept the Town of Batchelor No 2 application for registration. The nature of the submission, and additional information, which may have been provided in response to such an opportunity might have affected the outcome of the Registrar's decision. 31 I accordingly propose to set aside the Registrar's decision on that ground. 32 I will briefly refer to the other two grounds upon which the Registrar's decision is attacked.


case_text: The Town of Batchelor No 2 applicants are entitled to provide additional material to the Registrar, in addition to that in the native title determination itself, to support the Registrar's satisfaction of the requirements of s 190B(5): see Martin v Native Title Registrar [2001] FCA 16. 38 Section 53A does not prevent a party producing in evidence the same material as that presented at a mediation, provided of course it is relevant. That is really self-evident. If it were not so, no party could (for example) at a mediation refer to a statement of a proposed witness without the risk that that witness statement could not be adduced at a later hearing. Of course, the fact that that witness statement was referred to at the mediation could not be adduced at evidence at the hearing. Nor, generally, would it be relevant. What was improperly before the Registrar (if any error was made) was the fact that what he called "the FRBG Submissions" were presented at the mediation. But subject to their relevance, the FRBG Submissions could have been (and were) presented to the Registrar as material relevant to his satisfaction under s 190B(5). And the Registrar simply recorded that he understood that material "to have been prepared for the purposes of mediation" in the Court. He did not receive material as to what was said at the mediation, or of anything there said. Had he actually received material that the FRBG Submissions were presented at the mediation, then s 53A may have been infringed. But there was no apparent reliance by the Registrar upon the fact of their presentation to the mediation, so it would have been an error without consequence. The material apparently is of a factual and conclusory nature, and was equally eligible to be presented to the Registrar as to a mediator. 39 It is not necessary to consider, therefore, whether the role of the Registrar in considering whether to accept for registration the Town of Batchelor No 2 application is a proceeding attracted by the scope of s 53A(b) of the Federal Court of Australia Act .


case_text: The third principal contention of counsel for the Batchelor No 1 applicants is that the Registrar fell into error by identifying the wrong issue and asking himself the wrong question in addressing the procedural requirements in s 190C(2) and (4). If that were made out, it would amount to reviewable error on the part of the Registrar: Craig v South Australia [1995] HCA 58 ; (1995) 184 CLR 163 at 179.


case_text: Section 190C(2) requires the Registrar to be satisfied that the application contains all the details and other information, and is accompanied by any affidavit or other document, required by ss 61 and 62. That requires the Registrar to consider whether the requirements of ss 61 and 62 are met in the amended Town of Batchelor No 2 application. For the reasons I expressed in Northern Territory of Australia v Doepel [2003] FCA 1384 ; (2003) 133 FCR 112 at [32] - [37] , I do not think the Registrar was required to go beyond the application in considering if that requirement was satisfied, and in particular was not required to undertake some form of merit assessment of the material. 42 The Registrar has worked through each of the requirements or elements of s 61 and s 62 of the Act, and assessed the application, that is the Town of Batchelor No 2 application, by reference to each of those requirements. That involved a careful consideration of the Town of Batchelor No 2 application and of the affidavits which accompanied it, as required by s 62(1)(a). He concluded that the application contained all the details and other information, and was accompanied by the documents, required by ss 61 and 62. I have gone through the documents to which he referred, in the light of submissions by counsel for the Town of Batchelor No 1 applicants. In my view, the Registrar's conclusion was reasonably available to him. I do not think he is shown to have misunderstood the law or to have asked himself the wrong question in addressing the requirements of s 190C(2). 43 The gravamen of the contention on behalf of the Town of Batchelor No 1 applicants was more focused upon the requirements of s 190C(4)(b). It provides that the Registrar must be satisfied that the Town of Batchelor No 2 applicants are members of the native title claim group and are authorised to make the application, and to deal with matters arising in relation to it, by all the persons in the native title claim group. The alternative provided by s 190C(4)(a) was not available because the NLC as the relevant representative body had not certified the Town of Batchelor No 2 application under Pt 11 of the NT Act. The requirements of s 190C(4)(b) are then further explained by s 190C(5) which is in the following terms: If the application has not been certified as mentioned in paragraph (4)(a), the Registrar cannot be satisfied that the condition in sub-section (4) has been satisfied unless the application: (a) includes a statement to the effect that the requirements set out in paragraph (4)(b) has been met; and (b) briefly sets out the grounds on which the Registrar should consider that it has been met. 44 The Registrar noted the definition of authorisation in s 251B of the NT Act. He correctly identified that he was required to be satisfied of the matters set out in s 190C(4)(b). He also identified the nature of that task as described in Doepel at [78]. As he said, the NT Act places fundamental importance upon ensuring that claimant applications are properly authorised: see e.g. Quall v Risk [2001] FCA 378. The Registrar said that the necessary statements for s 190C(5)(a) are made in the s 62 affidavits. There are affidavits pursuant to s 62 of the NT Act of May Stevens, Thomas Edward Petherick and Captain Wodidj adopting or using the words of s 62 of the NT Act, and therefore apparently providing a foundation for the Registrar's satisfaction that the requirement of s 190D(5)(a) of the NT Act had been met. He then said that he was satisfied that there was material at Schedule R and in Attachments R1, R2 and R3 to the Town of Batchelor No 2 application which met the requirements of s 190C(5)(b) as that material briefly set out the grounds on which he should consider that the requirements of s 190C(4)(b) had been met.


case_title: Quall v Risk [2001] FCA 378

case_text: The Registrar noted the definition of authorisation in s 251B of the NT Act. He correctly identified that he was required to be satisfied of the matters set out in s 190C(4)(b). He also identified the nature of that task as described in Doepel at [78]. As he said, the NT Act places fundamental importance upon ensuring that claimant applications are properly authorised: see e.g. Quall v Risk [2001] FCA 378. The Registrar said that the necessary statements for s 190C(5)(a) are made in the s 62 affidavits. There are affidavits pursuant to s 62 of the NT Act of May Stevens, Thomas Edward Petherick and Captain Wodidj adopting or using the words of s 62 of the NT Act, and therefore apparently providing a foundation for the Registrar's satisfaction that the requirement of s 190D(5)(a) of the NT Act had been met. He then said that he was satisfied that there was material at Schedule R and in Attachments R1, R2 and R3 to the Town of Batchelor No 2 application which met the requirements of s 190C(5)(b) as that material briefly set out the grounds on which he should consider that the requirements of s 190C(4)(b) had been met.


case_text: In Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1981) 147 CLR 35 (' Anshun (No 1) '), the Court was concerned with an appeal from the Full Court of the Supreme Court of Victoria which had upheld an order of McGarvie J staying forever an action by the Port of Melbourne Authority in relation to a claim by way of indemnity. His Honour had ordered a stay because he thought that it was an abuse of process to raise in subsequent proceedings matters which could and reasonably should have been litigated in earlier proceedings. 36 Gibbs J, with whom Mason and Murphy JJ agreed, said at 38: ' In support of the objection to competency before us, Mr. Griffith naturally relied upon the decision of the Privy Council in Tampion v. Anderson (1973) 48 A.L.J.R. 11; 3 A.L.R. 414, where it was held that an order staying an action on the ground that it is frivolous, vexatious and an abuse of the process of the court is an interlocutory judgment. Their Lordships in the course of their reasons refer to a number of authorities, but none of those authorities was a case in which a stay had been granted on the ground that there was an estoppel of the kind which McGarvie J. found to have been raised in the present case. If the view expressed in Licul v. Corney (1976) 50 A.L.J.R., at p. 444 is correct, and the true test of finality is whether the judgment or order, as made, finally disposes of the rights of the parties, it would seem clear that the order made in the present case was a final judgment. It is not necessary to consider whether the view expressed in Tampion v. Anderson is one which is consistent with the view taken in the Australian authorities. There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v. Anderson has nothing to say about a case of the latter kind.' 41 Kenny J said: '6 The distinction between an interlocutory and final judgment is not always a clear one. In this case, however, the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1980) 147 CLR 35 (" Anshun (No 1) ") provides an authoritative answer. In Anshun (No 1) , the High Court unanimously held that an order that a proceeding be stayed as an abuse of process on the grounds of estoppel and res judicata was a final judgment, for the purposes of appeal. The approach of the High Court in Anshun (No 1) is equally applicable in relation to applications for leave to appeal in this Court: see, e.g., The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453 at 480 [85] - [86] per Dowsett J. Anshun (No 1) applies with even stronger force in this case than in case of The Lardil Peoples , because the proceeding from which the current appeal is brought was dismissed on the same bases as in Anshun (No 1) .' 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].'


case_text: In a later decision of the High Court, Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck '), Gleeson CJ had refused Ms Luck leave to issue a writ of summons and statement of claim which had been the subject of a direction made by Callinan J pursuant to O 58 r 4(3) of the High Court Rules. The question before the Court was whether Gleeson CJ's order was final or interlocutory. 38 The Court in Luck , after referring with approval to the dicta of Lord Evershed in Hunt v Allied Bakeries Ltd (1956) 3 All ER 513 at 514, said at [9]: 'Given the long-established English rule, the decision in Tampion and our decisions in Pye, Hall, Carr and Bienstein, we see no valid reason for departing from the rule laid down in Tampion . An order is an interlocutory order, therefore, when it stays or dismisses an action or refuses leave to commence or proceed with an action because the action is frivolous, vexatious, an abuse of the process of the court or does not disclose a reasonable cause of action.' 39 Their Honours did not refer to Anshun (No 1) in Luck . 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].' 44 Branson J followed that decision in SZDEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 748 and said: '8 It does not appear that either the Full Court of this Court or the High Court has given express consideration to the present status of Anshun No 1 . I am thus placed in the difficult position of deciding which of the above decisions of my colleagues I should follow. With some hesitation, and with great respect to Kenny J, I have concluded that the view adopted by Selway J is the preferable view. The unqualified nature of the statement in Re Luck at [9] which is highlighted in [4] above seems to me to carry considerable weight as it was made in a case decided after Anshun No 1. Additionally, I note that the Full Court in Wride v Schulze [2004] FCAFC 216 placed reliance on Re Luck at [9] and made no reference to Anshun No 1. 9 I conclude that the judgment of the Federal Magistrates Court in respect of which the notice of appeal was filed is an interlocutory judgment. As mentioned above, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave.' 45 The respondent, on this application, has urged me to follow the decisions which followed Luck rather than Anshun (No 1) . In Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 , the Full Court of the Federal Court, of which I was a member (Madgwick, Lander and Crennan JJ), considered the decision of the High Court in Luck , the earlier decision of the Privy Council in Tampion v Anderson , and the earlier decision of the English Court of Appeal in Hunt v Allied Bakeries Ltd , and concluded that an order dismissing an action because it does not disclose a reasonable cause of action was interlocutory. In that case, the decision in Anshun (No 1) was not cited to the Court. 47 The High Court said in Luck at 2: 'That question is answered by determining whether the legal effect of the judgment is final or not. If the legal effect of the judgment is final, it is a final order; otherwise, it is an interlocutory order.' (Footnote omitted.) 49 In those circumstances, I am disposed to follow the decisions which have followed Luck and proceed upon the basis that leave to appeal is required.


case_text: In MZWHW v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 466 , Kenny J was concerned with a notice of appeal and an application for leave to appeal filed in the same matter against an order of a Federal Magistrate dismissing an application for judicial review on the ground that it raised the same cause of action considered in previous proceedings for reason of res judicata or issue estoppel. 41 Kenny J said: '6 The distinction between an interlocutory and final judgment is not always a clear one. In this case, however, the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1) [1980] HCA 41 ; (1980) 147 CLR 35 (" Anshun (No 1) ") provides an authoritative answer. In Anshun (No 1) , the High Court unanimously held that an order that a proceeding be stayed as an abuse of process on the grounds of estoppel and res judicata was a final judgment, for the purposes of appeal. The approach of the High Court in Anshun (No 1) is equally applicable in relation to applications for leave to appeal in this Court: see, e.g., The Lardil Peoples v State of Queensland [2001] FCA 414 ; (2001) 108 FCR 453 at 480 [85] - [86] per Dowsett J. Anshun (No 1) applies with even stronger force in this case than in case of The Lardil Peoples , because the proceeding from which the current appeal is brought was dismissed on the same bases as in Anshun (No 1) .'


case_text: That decision was followed by Tamberlin J in SZEEO v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 546 and Graham J in NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975.


case_title: NADZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 975


case_text: The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].'


case_text: Branson J followed that decision in SZDEG v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 748 and said: '8 It does not appear that either the Full Court of this Court or the High Court has given express consideration to the present status of Anshun No 1 . I am thus placed in the difficult position of deciding which of the above decisions of my colleagues I should follow. With some hesitation, and with great respect to Kenny J, I have concluded that the view adopted by Selway J is the preferable view. The unqualified nature of the statement in Re Luck at [9] which is highlighted in [4] above seems to me to carry considerable weight as it was made in a case decided after Anshun No 1. Additionally, I note that the Full Court in Wride v Schulze [2004] FCAFC 216 placed reliance on Re Luck at [9] and made no reference to Anshun No 1. 9 I conclude that the judgment of the Federal Magistrates Court in respect of which the notice of appeal was filed is an interlocutory judgment. As mentioned above, s 24(1A) of the Federal Court of Australia Act 1976 (Cth) operates to prevent an appeal being brought from an interlocutory judgment of the Federal Magistrates Court unless the Court or a judge gives leave.'


case_text: The respondent, on this application, has urged me to follow the decisions which followed Luck rather than Anshun (No 1) . In Lashansky v Bruvecchis Pty Ltd [2005] FCAFC 64 , the Full Court of the Federal Court, of which I was a member (Madgwick, Lander and Crennan JJ), considered the decision of the High Court in Luck , the earlier decision of the Privy Council in Tampion v Anderson , and the earlier decision of the English Court of Appeal in Hunt v Allied Bakeries Ltd , and concluded that an order dismissing an action because it does not disclose a reasonable cause of action was interlocutory. In that case, the decision in Anshun (No 1) was not cited to the Court.


case_text: In a later decision of the High Court, Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 (' Luck '), Gleeson CJ had refused Ms Luck leave to issue a writ of summons and statement of claim which had been the subject of a direction made by Callinan J pursuant to O 58 r 4(3) of the High Court Rules. The question before the Court was whether Gleeson CJ's order was final or interlocutory. 43 The disagreement amongst judges was adverted to by Selway J in S1000 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 285 where he said: '2 The original application made by the applicant was by Notice of Appeal. There may be some disagreement in the cases as to whether an order dismissing an action on the basis that it is vexatious and or an abuse of process is an interlocutory order, contrast Re Luck [2003] HCA 70 ; (2003) 203 ALR 1 at 4, [9] , and Port of Melbourne Authority v Anshun [1980] HCA 41 ; (1980) 147 CLR 35. As the decision of the High Court in Re Luck is the most recent, I should follow it. This is consistent with other recent practice in this court. I refer, for example, to the decisions of the Full Court of this Court in Wride v Schulze [2004] FCAFC 216 , Lindsey v Philip Morris Limited [2004] FCAFC 40 , and in Johnson Tiles Pty Limited v Esso Australia Pty Limited [2000] FCA 1572 ; (2000) 104 FCR 564, [43].' 46 Of course, as the High Court has said in Bienstein v Bienstein [2003] HCA 7 ; (2003) 195 ALR 225 at 230, the test for whether an order is final or interlocutory is whether the order made finally determines the rights of the parties in the principal action before the Court.


case_text: In my opinion, the Court can have regard to the jurisdiction which was exercised by the Court below in determining whether the effect of the order which was sought is to finally determine the issues between the parties. Where the Court is exercising its summary jurisdiction to dispose of the matter without proceeding to examine the matter on its merits it is more likely that the order made is not a final order but an interlocutory order because the order does not usually finally determine the legal rights of the parties: MZWHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 491 per Crennan J.


case_text: The tests that have to be considered in an application for leave to appeal are well know: Décor Corporation Pty Ltd v Dart Industries (1991) 33 FCR 397. On an application such as this, an applicant must establish that the decision is attended with sufficient doubt to warrant it being reconsidered by the Court of Appeal. If so, the applicant must also satisfy the Court considering the question of leave that substantial injustice would result if leave were refused. Of course, the two tests are not considered independently of each other but are interrelated. 51 In my opinion, there can be no doubt that the applicant has failed to satisfy the Court that the decision is attended with sufficient doubt to warrant it being re considered by the Full Court. Except for the claim of bias, the grounds which gave rise to the order dismissing the application were in substance the same grounds which had previously been ventilated before Smith FM in the Federal Magistrates Court and on appeal to this Court, and in the application for special leave to the High Court. 52 The Magistrate was right to conclude that the application was in that respect an abuse of process.