case_text: 17 April 2009, the winding up application was adjourned to 29 April 2009 to enable the administrators to isolate and identify with Mr Tracy the terms and conditions attaching to his proposal to establish a Deed of Company Arrangement and how that deed might be funded. Since the field of creditors is very contained and Mr Tracy has the carriage of Citrus's affairs and is the party proposing the deed, the application was adjourned to 29 April 2009 to enable discussions to take place between Mr Tracy and the administrator. Those discussions would necessarily inform the exercise of the Court's discretion on the question arising under s 440A(2) as to whether the Court could be affirmatively satisfied that "it is in the interests of the company's creditors for the company to continue under administration rather than be wound up". The administrator was ordered to provide a report arising out of his discussions with Mr Tracy in relation to the company's affairs and Mr Tracy's proposal for a deed. A report was filed on 27 April 2009. In that report, Mr McLeod confirms the field of creditors of Citrus as discussed in these reasons. He says he has spoken with Mr Tracy. He is to receive the books of account and financial statements of Citrus from Mr Tracy and the company's former accountant shortly. He has not had time to determine whether any other assets might be available to the company arising out of any transactions that might be susceptible of challenge. The company is plainly insolvent. Mr McLeod attaches to his report a deed proposed by Mr Tracy by which he proposes to continue to fund the costs of the appeal, which costs would be repaid to him in priority. Any fruits of a successful appeal would be available to the creditors. Upon approval of the deed, the day to day management, operation, control, supervision and administration of Citrus would be returned to Mr Tracy subject only to the specific reservations expressed in the deed (cl 6.6.1). During the arrangement, Citrus, subject to the overall supervision of the administrator, would be entitled to continue its business and undertaking (cl 6.6.2). That undertaking now involves the acquisition of legal services in the conduct of the appeal and the conduct of consequential proceedings. Clause 7.4 of the deed provides for a discharge of claims against Citrus. By cl 9.1.3, the proceeds of any judgment against Sunstate Orchards or Mr Strahley in the appeal or any subsequent retrial will be paid into the fund established for creditors under the deed. By cl 9.2.1, Mr Tracy shall cause Citrus to prosecute the appeal and shall pay all legal expenses of Citrus in so doing. A monthly report is to be made to the administrator. In the event that the administrator in good faith believes that Citrus is failing to prosecute the appeal with due diligence, he may require Citrus to show cause why he should not convene a meeting of creditors and seek termination of the deed. By cl 9.2.6, Mr Tracy agrees to pay Citrus's costs of conducting any retrial of the primary proceeding and in the event that the administrator forms a good faith belief that Citrus is failing to prosecute any retrial, a meeting of creditors can be convened to consider termination of the deed. The discretion under s 440A(2) is to be exercised having regard to the well known observations of McPherson J (Davies and Pincus JJ concurring) in Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 (see also Re First Netcom Pty Ltd (2000) 35 ACSR 615 , per Santow J) concerning the closely related question of whether the creditors could hope to get more by way of payment of their debts from administration rather than liquidation and whether there is persuasive evidence of assets which if realised under one form of administration rather than the other would produce a larger or accelerated dividend to the creditors. The hope must however be a real and not remote possibility, unclouded by cascading contingencies all of which must fall in before an asset might become available to the creditors as a group. In Creevey , the Court discounted a contended claim as a possible asset available to creditors. In that case the foreshadowed claim had not been formulated in any concrete way. The claim in this case has been formulated but has already been found to be unmeritorious after a lengthy trial. A liquidator of Citrus could form a view about the merits of the proceeding and conduct discussions with Mr Tracy as to his willingness to fund the liquidator in the conduct of an appeal and any subsequent retrial of the proceeding.


case_outcome: cited

case_text: discretion under s 440A(2) is to be exercised having regard to the well known observations of McPherson J (Davies and Pincus JJ concurring) in Creevey v Deputy Commissioner of Taxation (1996) 19 ACSR 456 (see also Re First Netcom Pty Ltd (2000) 35 ACSR 615 , per Santow J) concerning the closely related question of whether the creditors could hope to get more by way of payment of their debts from administration rather than liquidation and whether there is persuasive evidence of assets which if realised under one form of administration rather than the other would produce a larger or accelerated dividend to the creditors. The hope must however be a real and not remote possibility, unclouded by cascading contingencies all of which must fall in before an asset might become available to the creditors as a group. In Creevey , the Court discounted a contended claim as a possible asset available to creditors. In that case the foreshadowed claim had not been formulated in any concrete way. The claim in this case has been formulated but has already been found to be unmeritorious after a lengthy trial. A liquidator of Citrus could form a view about the merits of the proceeding and conduct discussions with Mr Tracy as to his willingness to fund the liquidator in the conduct of an appeal and any subsequent retrial of the proceeding.


case_outcome: discussed

case_text: The issue as to Mr Hill's eligibility for an invalidity service pension has previously been addressed by the AAT: Hill v Repatriation Commission [2003] AATA 114. It had affirmed the decision of the Repatriation Commission to reject that claim. The Court found legal error in that decision: Hill v Repatriation Commission (2004) 39 AAR 103, and on appeal: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88, so the claim was remitted to the AAT for reconsideration. On 31 October 2006 the AAT again affirmed the decision that Mr Hill was not entitled to an invalidity service pension under the Act: Hill v Repatriation Commission [2006] AATA 925. It did so because it was not satisfied that he was permanently incapacitated for work in accordance with a determination under s 37AA of the Act.


case_title: Hill v Repatriation Commission (2004) 39 AAR 103


case_title: Hill v Repatriation Commission [2006] AATA 925


case_title: Repatriation Commission v Hill [2005] FCAFC 7 ; (2005) 142 FCR 88


case_outcome: referred to

case_text: The contention of Mr Hill, in essence that the conclusion of the AAT was so unreasonable that no reasonable decision-maker could have reached it, can also be expressed as saying that the evidence accepted by the AAT could not as a matter of law support a conclusion that Mr Hill is permanently able to work for periods adding up to more than eight hours per week. See Collector of Customs (Tas) v Flinders Island Community Association (1985) 7 FCR 205. If the evidence can reasonably support the AAT's conclusion, then there is no error of law: Hope v Bathurst City Council [1980] HCA 16 ; (1980) 144 CLR 1 at 7; Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439. I have put the proposition in the affirmative notwithstanding the words of cl 5(2)(b) of the Determination because the AAT made a positive finding to that effect in [29] of its reasons.


case_title: Vetter v Lake Macquarie City Council [2001] HCA 12 ; (2001) 202 CLR 439


case_text: The process of reasoning of the AAT is transparent. It made a factual decision on this aspect of the claim in the light of all the evidence. It has identified in its reasons the evidence upon which it made that decision. True it is that the AAT has not then minutely dissected that evidence to explain which particular parts of it attracted its general factual conclusions. But it has made findings on the material questions of fact (see per McHugh J in Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 ; (2000) 168 ALR 407), and its reasons for those findings are exposed sufficiently to enable the Court (and the parties) to understand how it reached those findings and so to discern if they were reached through legal error (see Commonwealth of Australia v Smith (1989) 18 ALD 224; Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115). In my view, no error of law by failing to comply with s 43 of the AAT Act has been made out in respect of the decision of the AAT concerning the invalidity service pension claim; see generally Comcare v Lees (1997) 151 ALR 647.


case_title: Commonwealth of Australia v Smith (1989) 18 ALD 224


case_title: Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 222 CLR 115


case_title: Comcare v Lees (1997) 151 ALR 647


case_title: Benjamin v Repatriation Commission (2001) 34 AAR 270

case_text: The AAT proceeded on the basis that by reason of s 120(4) the first task was to be reasonably satisfied that the applicant suffered from the conditions he asserted. It expressed that task as being that "matters of diagnosis are to be determined on the balance of probabilities", relying upon Benjamin v Repatriation Commission (2001) 70 ALD 622 at [54]-[55] per Moore, Emmett and Allsop JJ. Neither that decision, nor the Full Court decisions of Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200 or Repatriation Commission v Cooke (1998) 90 FCR 307 on the issue which preceded it, used the expression "on the balance of probabilities" as a substitute for the statutory expression "to its reasonable satisfaction", although in Cooke 90 FCR 307 at 313, reference is made to the "civil standard of proof". In substance, there may be no difference between the two expressions of the legal test for diagnosis of injury. As nothing was made of the difference in submissions, it is not necessary to explore that matter. As noted, applying that test, the AAT concluded that Mr Hill suffered from alcohol dependence, depressive disorder and pathological gambling, but not from PTSD.


case_title: Repatriation Commission v Budworth [2001] FCA 1421 ; (2001) 116 FCR 200


case_title: Repatriation Commission v Cooke (1998) 90 FCR 307


case_text: In Repatriation Commission v Deledio (1988) 83 FCR 82, the Full Court (Beaumont Hill and O'Connor JJ) at 97-98 set out the four steps required of the AAT in circumstances such as the present. They are commonly called now the Deledio steps. The first required it to determine whether upon all the material, it pointed to a hypothesis connecting Hill's alcohol dependence with the circumstances of his operational service. That step having been answered affirmatively, the second step was to determine if there was an applicable SOP in force. There was: Alcohol Dependence or Alcohol Abuse SOP (Instrument 76 of 1998) (the AD SOP). The third step was to determine whether the hypothesis fitted the "template" in the AD SOP, that is whether it was consistent with it. The fourth step then was to apply s 120(1), and as the AAT recognised, it is only at the fourth step that it was required to find facts from the material before it. 57 There were two hypotheses put forward on behalf of Mr Hill which were said to fit the AD SOP. One was that he had a psychiatric disorder, namely alcohol intoxication, while serving in Vietnam which was the precursor to his alcohol dependence or which was the precursor to the clinical worsening of his alcohol dependence. Clauses 4 and 5 of the AD SOP provide: Factors that must be related to service 4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Factors 5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting alcohol dependence or alcohol abuse or death from alcohol dependence or alcohol abuse with the circumstances of a person's relevant service are: (a) suffering from a psychiatric disorder at the time of the clinical onset of alcohol dependence or alcohol abuse; or (b) experiencing a severe stressor within the two years immediately before the clinical onset of alcohol dependence or alcohol abuse; or (c) suffering from a psychiatric disorder at the time of the clinical worsening of alcohol dependence or alcohol abuse; or (d) experiencing a severe stressor within the two years immediately before the clinical worsening of alcohol dependence or alcohol abuse; or (e) inability to obtain appropriate clinical management for alcohol dependence or alcohol abuse. The term "psychiatric disorder" is defined in cl 8 of the AD SOP as meaning "any Axis 1 or 2 disorder of mental health attracting a diagnosis under DSM IV". 58 The AAT, after reviewing the medical and other evidence, said that it pointed to hypotheses either that Mr Hill had the condition of alcohol intoxication prior to the clinical onset or the clinical worsening of alcohol dependence. As the AAT considered alcohol intoxication to be a psychiatric disorder, the hypothesis met either cl 5(a) or cl 5(c) of the AD SOP. 104 In Mines v Repatriation Commission (2004) 86 ALD 62, Gray J after referring to the Full Court decisions I mentioned in [44] above said at 74, [48]: It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio , come into operation.


case_text: There was differing medical evidence, in particular from Dr Parker and from Professor Goldney, as to the time during his operational service when Mr Hill first had the clinical onset of alcohol dependence. There was also and significantly differing medical evidence from them on two other topics. The first was whether Mr Hill ever had the psychiatric disorder of alcohol intoxication or whether he was simply intoxicated from time to time and then his alcohol dependence further led to or exposed his subsequent intoxication from time to time. The second was whether (if Mr Hill did suffer from alcohol intoxication as a psychiatric disorder) his psychiatric disorder of alcohol intoxication only followed his alcohol dependence. That evidence and the lay evidence touching on it was carefully considered by the AAT. It concluded, in terms of s 120(3), that the hypothesis that Mr Hill was suffering from the psychiatric disorder of alcohol intoxication in Vietnam before the clinical onset of alcohol dependence was a reasonable one. In the context of the issues it was considering, I think that conclusion clearly represents a finding as to the hypothesis that his psychiatric disorder arose in Vietnam before the clinical onset of alcohol dependence and continued to exist to and at the time of the clinical onset of alcohol dependence. That was the principal issue of medical contention. It is consistent with that reading of the AAT's reasons that it described Dr Parker's evidence, upon which it found that hypothesis was reasonable and as fitting the AD SOP template, as saying that "alcohol intoxication pre-dated or co-existed with alcohol dependence". In my view, the contrary contention requires an over-zealous reading of the AAT's reasons: see Minister for Immigration and Ethnic Affairs v Wu [1996] HCA 6 ; (1996) 185 CLR 259 at 272; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.


case_title: Collector of Customs v Pozzolanic (1993) 43 FCR 280


case_text: Notwithstanding the characteristics of the material referred to by the Repatriation Commission, I was left with the firm view that Dr Parker (whose evidence on this topic was accepted) considered that alcohol intoxication preceded, and continued to exist to, the time when Mr Hill had the clinical onset of alcohol dependence. As the AAT said, it did not need to prefer his evidence to reach that view, so long as it was rational and available to support the hypothesis: see the comments of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415. The fact that both alcohol intoxication and alcohol dependence arose after Mr Hill commenced his operational service was clearly consistent with his and other's evidence about his alcohol consumption before that time, although it noted one drinking episode before that time which (the AAT said) fitted with the diagnostic description of alcohol intoxication. The AAT made the observation that it was implicit in the evidence of both specialists (Dr Parker and Professor Goldney) that Mr Hill's pattern of alcohol consumption in Vietnam represented deterioration or worsening of a psychiatric condition. Having considered the evidence of Dr parker, as the AAT's preferred witness on this topic, that is a fair observation. The AAT also had the evidence of Professor Varghese that alcohol dependence usually develops gradually. Dr Parker's evidence was described in the AAT's reasons as saying that "... the behaviour exhibited by Mr Hill was that of a diagnosable condition of alcohol intoxication, which condition at some stage later, but still while he was in Vietnam, developed into dependency." It did so in the light of his cross-examination. That reliably reflects his evidence. He was speculative as to the precise dates of onset of each of those conditions, but not as to the fact of their onset or as to their sequence. His evidence supports the critical issue the existence of alcohol intoxication at the time of the clinical onset of alcohol dependence. That was material upon which the AAT could have reached its conclusion that a reasonable hypothesis had been raised by reason of either cl 5(a) or cl 5(c) of the AD SOP being met, i.e. that one of the alternative minimum factors specified for the existence of a reasonable hypothesis connecting Mr Hill's alcohol dependence with his operational service. 87 One variation of this submission was to start with the observation of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415 that it will be rare that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner with appropriate expertise. The AAT was not unmindful of that statement. It referred to it elsewhere in its reasons. But the AAT did not regard the "raised facts" as supporting the hypothesis first suggested by Dr Parker, and as it explained upon all the evidence, Dr Parker's initial view came to be qualified. It was left with material upon which it did not regard the hypotheses put forward by Mr Hill as reasonable. In my view, it did not somehow misapply the law which, earlier in its reasons, it had correctly identified as applicable. In particular, it did not commit the error discerned in Repatriation Commission v Whetton (1991) 31 FCR 513 of reversing the question posed by s 120(3) to the positive existence of a reasonable hypothesis. That case, upon which counsel for Mr Hill relied, was quite different factually: the uncontroverted evidence in that case was that during service the deceased serviceman had been substantially exposed to material which could have led to the disease from which he did; the evidence in this matter in relation to pathological gambling did not go anywhere near so far. 107 I do not think that the decisions referred to by counsel for Mr Hill in this context dictate a contrary conclusion. Bushell v Repatriation Commission [1992] HCA 47 ; 175 CLR 408 concerned the process by which a diagnosed disease might be connected to service. It proceeded on the basis of the claimant having suffered essential hypertension. So the question of "diagnosis" (to use the AAT's word) was not in issue. So too in Byrnes v Repatriation Commission (1993) 177 CLR 465. The claimant's condition of cervical and thoracic spondylosis was not in issue. What was in issue was its relationship to his service, in that case in the Royal Australian Navy between 1942 and 1945.


case_text: Counsel for Mr Hill did not contend that the AAT had misdirected itself in law. It correctly said that a hypothesis must be reasonable, that is more than a mere possibility or not fanciful, and it must be consistent with the known facts: East v Repatriation Commission (1987) 16 FCR 517; Bull v Repatriation Commission (2001) 188 ALR 756.


case_title: Bull v Repatriation Commission (2001) 188 ALR 756


case_title: Willcocks v Comcare (2001) 66 ALD 119

case_text: In my view, the AAT's conclusion that, on the evidence as a whole, the hypothesis connecting Mr Hill's pathological gambling with his operational service was "speculative", based on "some very general research", was open to it. So too was its conclusion that the hypothesis was not pointed to by the facts. Its factual conclusions, so long as they were reasonably open to the AAT, do not expose error of law even though other decision-makers may have reached a different conclusion: see e.g. Willcocks v Comcare (2001) 66 ALD 119. 86 Some of the alternative grounds of cross-appeal on this issue are in reality merely alternative ways of putting the same argument. They can be shortly dealt with. The AAT is not shown to have failed to recognise the breadth of Mr Hill's hypothesis as to the aetiology of his pathological gambling: it was either that he developed pathological gambling during his operational service, or that the seeds for the condition were sown during that period, associated with substance abuse and his depressive disorder. The AAT expressly recognised both those alternatives. Its rejection of the claim involved firstly rejecting the reasonableness of the hypothesis that the clinical onset of pathological gambling occurred during his service, and then that its later onset was in some way connected to his service. In the AAT's reasons, there is nothing which in my view suggests that it imposed an onus of proof upon Mr Hill on this issue, rather than addressing the question it was required to address.


case_title: Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408


case_text: One variation of this submission was to start with the observation of Mason CJ, Deane and McHugh JJ in Bushell v Repatriation Commission [1992] HCA 47 ; (1992) 175 CLR 408 at 414-415 that it will be rare that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner with appropriate expertise. The AAT was not unmindful of that statement. It referred to it elsewhere in its reasons. But the AAT did not regard the "raised facts" as supporting the hypothesis first suggested by Dr Parker, and as it explained upon all the evidence, Dr Parker's initial view came to be qualified. It was left with material upon which it did not regard the hypotheses put forward by Mr Hill as reasonable. In my view, it did not somehow misapply the law which, earlier in its reasons, it had correctly identified as applicable. In particular, it did not commit the error discerned in Repatriation Commission v Whetton (1991) 31 FCR 513 of reversing the question posed by s 120(3) to the positive existence of a reasonable hypothesis. That case, upon which counsel for Mr Hill relied, was quite different factually: the uncontroverted evidence in that case was that during service the deceased serviceman had been substantially exposed to material which could have led to the disease from which he did; the evidence in this matter in relation to pathological gambling did not go anywhere near so far.


case_outcome: followed

case_text: In Mines v Repatriation Commission (2004) 86 ALD 62, Gray J after referring to the Full Court decisions I mentioned in [44] above said at 74, [48]: It is therefore clear that the question whether a veteran is suffering, or has suffered, a claimed injury or disease must be determined to the reasonable satisfaction of the decision-maker, that is, on the balance of probabilities. That question is not to be determined by asking whether there is a reasonable hypothesis that the veteran is suffering, or has suffered, the injury or disease and asking whether the material establishes that the facts supporting that hypothesis do not exist beyond reasonable doubt. If the question is posed as whether a veteran has suffered PTSD as a result of a traumatic event said to have occurred during the veteran's operational service, it must be answered by saying that the decision-maker must be reasonably satisfied that the traumatic event occurred before reaching the conclusion that the veteran suffered PTSD. Only if such a conclusion is reached does the reasonable hypothesis process of reasoning, outlined in the four steps referred to in Deledio , come into operation. 105 Counsel for Mr Hill did not directly attack the correctness of that decision. It being a long standing decision of a judge of the Court, unless I am persuaded that it is clearly wrong, I should follow it. I propose to do so. Indeed, I respectfully agree with Gray J, and that his Honour's conclusion flowed from the Full Court decisions referred to. 106 It is perhaps curious that, once a disease is found to exist so that the decision-making process explained in the Deledio steps commences, a question may arise which asks firstly in a hypothetical way and then by the application of the reverse criminal onus of proof, the same question (or almost the same question) as is required to be answered as a fact to the decision-maker's satisfaction in the process of finding if a claimant suffers a particular disease. But that is the case where the existence of a disease such as PTSD requires as a fact the experiencing of a stressor (by its nature and definition).


case_title: Bushell v Repatriation Commission [1992] HCA 47 ; 175 CLR 408


case_text: I do not think that the decisions referred to by counsel for Mr Hill in this context dictate a contrary conclusion. Bushell v Repatriation Commission [1992] HCA 47 ; 175 CLR 408 concerned the process by which a diagnosed disease might be connected to service. It proceeded on the basis of the claimant having suffered essential hypertension. So the question of "diagnosis" (to use the AAT's word) was not in issue. So too in Byrnes v Repatriation Commission (1993) 177 CLR 465. The claimant's condition of cervical and thoracic spondylosis was not in issue. What was in issue was its relationship to his service, in that case in the Royal Australian Navy between 1942 and 1945.


case_text: Similarly, in Repatriation Commission v Constable [2006] FCAFC 102 ; (2006) 151 FCR 391, the fact that the claimant suffered from alcohol abuse or dependence was not in issue, and in Repatriation Commission v Hill (2002) 69 ALD 581, the claimant (not the same person as the present cross-appellant) was acknowledged by the Repatriation Commission to suffer from PTSD, so the question now under consideration did not arise.


case_title: Repatriation Commission v Hill (2002) 69 ALD 581


case_text: The Tribunal did consider in some detail the question of the alleged membership of a particular social group. The Tribunal set out the tests to be applied in consideration of the determination and membership of a particular social group. It cited and applied the tests set out in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387. It identified the claimed group as being ' Tamil persons who borrow monies from loan sharks in Malaysia ' or ' persons who borrow money from loan sharks ' or ' persons who are unable to repay debts to loan sharks '.


case_text: The Tribunal did consider in some detail the question of the alleged membership of a particular social group. The Tribunal set out the tests to be applied in consideration of the determination and membership of a particular social group. It cited and applied the tests set out in Applicant A v Minister for Immigration & Ethnic Affairs [1997] HCA 4 ; (1997) 190 CLR 225 and Applicant S v Minister for Immigration & Multicultural Affairs [2004] HCA 25 ; (2004) 217 CLR 387. It identified the claimed group as being ' Tamil persons who borrow monies from loan sharks in Malaysia ' or ' persons who borrow money from loan sharks ' or ' persons who are unable to repay debts to loan sharks '. 7 The second issue raised by the appellant is whether the Tribunal formulated the correct test in determining whether there was in existence the claimed particular social group and whether the appellant feared persecution for that reason. It is not suggested that the Tribunal applied the wrong test in principle in its application of the test set out in Applicant S at [36] per Gleeson CJ, Gummow and Kirby JJ. The Tribunal took into account the High Court's characterisation of a particular social group and relevant country information. It found nothing to enable it to be satisfied that the activities complained of by the appellant would be other than one of many such criminal activities causing concern to the Malaysian authorities, as such activities cause concern in many countries. 8 The Tribunal concluded that none of the country information satisfied it that a social group similar to that suggested by the appellant would be ' identifiable by a characteristic or attribute common to all members of the group ' or that the relevant ' characteristic or attribute would distinguish the group from society at large ' in order for them to be a social group for the purposes of the Convention. Accordingly, the Tribunal was not satisfied that the appellant would be persecuted for reason of his membership of a particular social group. 9 The appellant has not demonstrated that the Tribunal applied the wrong test.


case_outcome: considered

case_text: The Tribunal's reasons set out in some detail the claims of the appellant and the material it considered in coming to its decision. The appeal to the Federal Magistrates Court ( SZJDH v Minister for Immigration & Citizenship [2007] FMCA 1561) and to this Court raises the issue of the Tribunal's determination of the particular social group to which the appellant claimed he belonged. In his notice of appeal the appellant says that the Federal Magistrate erred by failing to hold that the Tribunal failed to take into account a relevant consideration being the failure, ' to discern convention reason with that convention reason being a particular social group '. 3 The way this ground has been framed in the appellant's written submissions is that he says that the Tribunal failed to discern the relevant Convention reason for his application. The appellant says that he belonged to a particular social group with that social group ' being group of persons who had dealings with loan sharks in Malaysia and who have been threatened by those loan sharks '. In his further written submissions the appellant characterised it as ' a person who had dealings with the loan sharks in who was unable to pay back the debts to the loan sharks '.


case_text: for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 concerned one Mr Gray, who was the agent for Haig & Son, selling whisky on commission. When his agency ended, a dispute arose as to the amount of the commission due and an account was ordered. However, after the dispute arose, Gray destroyed the books, on which the taking of the account depended. The Master of the Rolls held, at 226, that: In a case before me this year, one partner, several years before the institution of the suit, and upwards of twenty years after the closing of the partnership business, and when the accounts had been settled between him and his partners by arbitration, and never afterwards opened or disputed, had destroyed the books which contained the accounts of that partnership, I treated lightly the circumstance of that destruction, and did not suffer it to prejudice his case. But the case is very different when the transactions to which they relate are recent, where the accounts arising from them have not been finally adjusted, or the balance ascertained or paid, and still more when that destruction takes place by the person who has actually filed a bill to have the accounts taken of those very transactions to which these books relate. In such a case some very cogent reason must be given to satisfy the Court that the destruction was proper or justifiable, and, in the absence of any such satisfactory reason, which is the fact here, I am compelled to act on the principle laid down in the well-known case of Armory v Delamirie (1 Strange, 505), and presume, as against the person who destroyed the evidence, everything most unfavourable to him, which is consistent with the rest of the facts, which are either admitted or proved. Counsel for the applicants stated that this was the applicants' "inspiration for [their] plea". The passage makes it clear, however, that the principle that was under discussion was essentially an evidentiary principle, the application of which depended on the particular circumstances of the case. These circumstances included that the documents in question were essential to the taking of the account and destroyed by the very person who sought the relief at a time when the account was yet to be taken. The destruction of the documents in this circumstance was reprehensible and not merely mistaken.


case_title: The Ophelia [1916] 2 AC 206

case_text: for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. The Ophelia [1916] 2 AC 206 concerned a German steamship, which was seized by the British ship, HMS "Meteor", in October 1914 and taken as a prize. The German Government claimed her release upon the ground that she had been operating as an auxiliary military hospital ship. The British Crown contended that she had been operating as a signalling ship for military purposes. The case was first heard in the Prize Court, which condemned the "Ophelia" as lawful prize. An appeal was taken directly to the Privy Council, where their Lordships' advice was delivered by Sir Arthur Channell. At the time of the seizure, various documents, including signals log, were thrown overboard. One of the issues in the case concerned the principles of evidence relating to the "spoliation of documents". The signals log was in the circumstances of the case a most important document. In respect of this document, Sir Arthur Channell said (at [1916] 2 AC at 228-229): There seems, taking the evidence as a whole, the greatest uncertainty as to what books recording signals were really kept; but the one thing which is certain is that any which were kept, except the news log, were thrown overboard when it was seen that the vessel was about to be searched. If nothing but innocent signals had been sent, the signal log was the very book of all others which should have been preserved. The result, therefore, is that the appellant has nothing to show to vouch his story that all signals sent ... were of an innocent character. Further, the absence of such evidence, if any ever existed, is caused by his own act. This leads to the subject of what is technically called spoliation of documents, on which the President, rightly, as their Lordships think, laid much stress ... Sir Arthur Channell subsequently described the doctrine relating to spoliation of documents in the following passage (at [1916] 2 AC at 229-230): [I]t may be that in some respects the old doctrine was rather technical. The substance of it, however, remains and is as forcible now as ever, and it is applicable not merely in prize cases, but to almost all kinds of disputes. If any one by a deliberate act destroys a document which, according to what its contents may have been, would have told strongly either for him or against him, the strongest possible presumption arises that if it had been produced it would have told against him; and even if the document is destroyed by his own act, but under circumstances in which the intention to destroy evidence may fairly be considered rebutted, still he has to suffer. He is in the position that he is without the corroboration which might have been expected in his case. ... In stating their Lordships' opinion, Sir Arthur Channell concluded (at [1916] 2 AC at 230-231): Their Lordships are of opinion that Captain Pfeiffer [the "Ophelia's" commander] and the other witnesses have by their acts put themselves in such a position that their evidence cannot be relied on; that the evidence discloses facts of which no satisfactory explanations are or can be given; and that although on the Crown affidavit evidence some ambiguities have been pointed out which have not been cleared up by cross-examination or re-examination, yet there are incriminatory matters in those affidavits to which no answer has been given. They are of opinion that the President was fully justified in finding that the Ophelia was not constructed or adapted or used for the special and sole purpose of affording aid and relief to the wounded, sick, and shipwrecked, and that she was adapted and used as a signalling ship for military purposes. Notwithstanding Sir Arthur Channell's comment that the doctrine of spoliation is applicable "to almost all kinds of disputes", The Ophelia [1916] 2 AC 206 is essentially a case on the law of prize. In any event, the case makes plain that the doctrine of spoliation is an evidentiary one. The case illustrates an approach to evidence, especially in a prize context. Further, it is clear from the report of the case that what was in issue was a very clear and deliberate act of spoliation the deliberate destruction of evidence. The case is not authority for the broad principle that the applicants espouse that every destruction of documents attracts an adverse inference. That is, I doubt that Sir Arthur Channell intended to say that, in any litigation, where it can be shown that one party destroyed a document, then it must be presumed that that document supported the opposing party. Such a proposition would be unreasonable. The significance of The Ophelia [1916] 2 AC 206 depends, so it seems to me, on what is intended by the word "spoliation": see The Oxford English Dictionary , which includes that "spoliation" means "[t]he action of spoliating, despoiling, pillaging, or plundering; seizure of goods or property by violent means; depredation, robbery. Also, the condition of being despoiled or pillaged". The doctrine of spoliation is sometimes expressed as " omnia praesumuntur contra spoliatorem ". For the purposes of the doctrine of spoliation, there is a distinction between: (1) the deliberate destruction of documents with the intention of destroying evidence; and (2) the deliberate destruction of documents where there is no such intention. That is, there must be something reprehensible about the destroying party's conduct for the doctrine of spoliation to apply. It seems to me that such a distinction is inherent in the passage set out at [27] above. It is only in the first situation that there may arise a presumption adverse to the destroying party. In the second situation, the destroying party suffers a detriment, but only in the sense that he has thereby lost corroboration. Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 largely confirms this view of The Ophelia [1916] 2 AC 206. Allen v Tobias commenced as an action for penalties against one Leslie William Allen on the ground that he had acted as a shire councillor, while being disqualified from so acting since he was concerned in a contract with the municipality concerning the municipal rubbish tip. There was a question as to whether the documents in which the agreement was made were executed by him. The trial judge said that there was a suspicion that the documents were destroyed by the defendant "lest the fact of execution ... might prove difficult for the defendant in anticipated litigation": 98 CLR at 371. In the High Court, this observation led Dixon CJ, McTiernan and Williams JJ to say (98 CLR at 375): It is perhaps desirable to refer again to one question of fact which Sholl J [the trial judge] left unsettled. Did the defendant and his brothers execute the agreement with the council drawn up in April 1953, the three copies of which were destroyed by the defendant? Notwithstanding the difficulty which his Honour felt in arriving at a conclusion, there are two grounds why the Court should proceed upon the assumption that the document was so executed. In the first place to presume the fact against the defendant seems but a proper application to the circumstances of the principle omnia praesumuntur contra spoliatorem . It is a far cry from the municipal warfare of the present case to a case in Prize but no statement of the principle could be more apposite than that of Sir Arthur Channell delivering the opinion of the Privy Council in The Ophelia . ... At this point, their Honours set out the passage at [27] above. The report of Allen v Tobias demonstrated that what was at issue was the deliberate destruction of documents with the intention of destroying evidence in anticipated litigation. As in The Ophelia , this was a proper occasion in which to apply the doctrine of spoliation as an evidentiary presumption. Further, in the High Court, their Honours did not rely on this doctrine alone, but also on the further reason that the statute cast the burden of proof on the defendant to disprove the disqualifying facts.


case_text: for the applicants stated that the applicants proposed to invite the Court to draw an inference or inferences against the respondent from various facts including that: (1) emails were deleted; (2) the contents of a laptop computer used by Ms Allen were erased; (3) not all Channel Reports have been made available; and (4) the backup TL drive files were not retained. In support of this submission, the applicants referred to the following three authorities: Gray v Haig [1855] EngR 469 ; (1855) 20 Beav 219 ; The Ophelia [1916] 2 AC 206 ; and Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367. The material fact was, so the applicants said, the destruction of documents. If they were to plead the inferences to be drawn from this destruction, then, so they said, they would be pleading impermissibly matters of evidence. The applicants' case was that it was the fact of destruction by the respondent that was sufficient and necessary for their pleading. Allen v Tobias [1958] HCA 13 ; (1958) 98 CLR 367 largely confirms this view of The Ophelia [1916] 2 AC 206. Allen v Tobias commenced as an action for penalties against one Leslie William Allen on the ground that he had acted as a shire councillor, while being disqualified from so acting since he was concerned in a contract with the municipality concerning the municipal rubbish tip. There was a question as to whether the documents in which the agreement was made were executed by him. The trial judge said that there was a suspicion that the documents were destroyed by the defendant "lest the fact of execution ... might prove difficult for the defendant in anticipated litigation": 98 CLR at 371. In the High Court, this observation led Dixon CJ, McTiernan and Williams JJ to say (98 CLR at 375): It is perhaps desirable to refer again to one question of fact which Sholl J [the trial judge] left unsettled. Did the defendant and his brothers execute the agreement with the council drawn up in April 1953, the three copies of which were destroyed by the defendant? Notwithstanding the difficulty which his Honour felt in arriving at a conclusion, there are two grounds why the Court should proceed upon the assumption that the document was so executed. In the first place to presume the fact against the defendant seems but a proper application to the circumstances of the principle omnia praesumuntur contra spoliatorem . It is a far cry from the municipal warfare of the present case to a case in Prize but no statement of the principle could be more apposite than that of Sir Arthur Channell delivering the opinion of the Privy Council in The Ophelia . ... At this point, their Honours set out the passage at [27] above. The report of Allen v Tobias demonstrated that what was at issue was the deliberate destruction of documents with the intention of destroying evidence in anticipated litigation. As in The Ophelia , this was a proper occasion in which to apply the doctrine of spoliation as an evidentiary presumption. Further, in the High Court, their Honours did not rely on this doctrine alone, but also on the further reason that the statute cast the burden of proof on the defendant to disprove the disqualifying facts.


case_text: applicants relied on Dare v Pulham [1982] HCA 70 ; (1982) 148 CLR 658 to support their contention that, given the function of pleadings, the Court should grant leave to amend. In a well-known passage (at 664), the High Court said in that case that: Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ...; and they give a defendant an understanding of a plaintiff's claim in aid of the defendant's right to make a payment into court. Counsel for the applicants argued that the applicants would be at risk of the respondent claiming at trial that it was taken by surprise if they had not sought to amend their pleadings. Further, counsel stated that the applicants wanted to adduce evidence at trial concerning the fact of destruction of documents; and the admissibility of such evidence would not be apparent without the amendment. Further, counsel for the applicants said the amendment enabled the respondent to understand how the applicants put the case against it. In addition, as indicated above, the applicants sought discovery of two categories of documents: (a) the Respondent's policies or practices with respect to the retention and/or destruction of documents (including, but not limited to, email and MySingle correspondence); and (b) any variations or exceptions to those policies or practices implemented since November 2006.


case_text: By contrast, there is no res judicata nor, as I understand the law, Anshun estoppel, when the earlier proceedings have been discontinued. In relation to res judicata at least, the same conclusion applies when the earlier proceedings have been dismissed on account of default in compliance with orders for discovery ( Baines v State Bank of NSW (1985) 2 NSWLR 729), on account of default in the provision of particulars ( Samuels v Linzi Dresses Ltd [1981] QB 115) or for want of prosecution ( Hart v Hall & Pickles Ltd [1969] 3 All ER 291; Pople v Evans [1969] 2 Ch 255). The question with which these cases do not deal, however, is whether, notwithstanding that there would be no res judicata , it might nonetheless be regarded as vexatious, and in that sense as an abuse of process, for a moving party, by his or her own default, to allow proceedings to be terminated, without adjudication, to his or her disadvantage, and then to bring new proceedings seeking the same remedy on closely related grounds.


case_outcome: applied

case_text: I turn then to the respondents' application for security for costs. The power to order security arises under s 56(1) of the Federal Court of Australia Act 1976 (Cth), the discretionary exercise of which is not limited to the particular circumstances set out in O 28 r 3(1) of the Rules of Court: Bell Wholesale Co Pty Ltd v Gates Export Corporation (No 2) (1984) 2 FCR 1, 2-3. Mr Frenkel drew my attention to the list of considerations referred to in Equity Access Limited v Westpac Banking Corp (1989) ATPR 40-972. Those matters are the applicant's chances of success, whether the order would shut out the applicant from pursuing its claim, whether the applicant's impecuniosity arose out of the breaches alleged against the respondent, the public interest, discretionary matters peculiar to the present case and the risk that the applicant would not be able to satisfy an order for costs.


case_title: Clout v Klein [2001] QSC 401

case_text: The proposition that the later proceedings in Deangrove might have been regarded as an abuse of process not in the sense of demonstrating contumely but in the sense of an attempt to relitigate a matter which had previously been the subject of a final order disposing of identical proceedings appears not to have been the way the matter was put to Sackville J. That proposition was put to Holmes J in Clout v Klein [2001] QSC 401. There the earlier proceeding had been terminated not by a self-executing order but by a direct order of a Judge of the court. The ground which sustained the order, however, was that the plaintiffs in that proceeding had failed to comply with an order for security for costs. His Honour referred (at [44]) to some cases in which the application of the Anshun principle to situations in which there had been no adjudication had been doubted; doubts which, in my respectful view, would almost always be regarded as well-founded. However, on the facts, his Honour held that it was not unreasonable for the plaintiff which was common to both proceedings not to have raised the relevant claim in the earlier proceeding.


case_text: I think the answer to that question is: not necessarily. In Deangrove Pty Ltd (Rec & Mgrs Aptd) v Commonwealth Bank of Australia [2001] FCA 173 ; (2001) 108 FCR 77, one of a number of points which Sackville J had to decide arose from the circumstance that the applicants had, in a previous proceeding, several times failed to comply with an order that they file a Statement of Claim, in consequence of which that proceeding was dismissed. A few months later, the instant proceeding was commenced by the same applicants against the same respondent as had been parties to the earlier proceeding. Identical relief was claimed. Sackville J dealt with the argument that the later proceeding amounted to an abuse of process as follows (108 FCR at 82-83): "[21] Mr Bell relied on a line of English authority in holding that it is an abuse of process for a litigant to commence fresh proceedings founded on the same cause of action as previous proceedings, where the previous proceedings have been terminated in consequence of the litigant's failure to comply with self-executing orders (which are known as "unless orders" in England). Mr Bell relied particularly on Janov v Morris [1981] 3 All ER 780. In that case, an action for damages for breach of contract was dismissed in consequence of an order that, unless the plaintiff issued and served a summons for directions by a particular date, the action would be dismissed for want of prosecution. Three months later, the plaintiff brought a second action against the defendant founded on the same cause of action. The master struck out the second action as an abuse of process but, on appeal, a judge in chambers allowed the appeal and rescinded the master's order. [22] A further appeal to the Court of Appeal was allowed. Dunn LJ, with whom Watkins LJ agreed, said this (at 785): 'The court then has to consider whether, in the exercise of its discretion under Ord 18, r 19, [the] second action should be struck out. In my view, the court should be cautious in allowing the second action to continue and should have due regard to the necessity of maintaining the principle that orders are made to be complied with and not to be ignored... I regard it as a matter of discretion to be exercised having regard to the circumstances of the particular case. In this case there had, from first to last, been no explanation whatever by the plaintiff why there was the 10-month delay before the application to strike out the first action.... There was no explanation at all why he failed to comply with the 'unless' order [that is, the self-executing order] , and there has been no indication in this present action that he intends to comply with the orders of the court any more than he did in the first action. Indeed, he is still in contempt of court.' [23] An important factor in the reasoning of the Court of Appeal in Janov v Morris was the absence of any explanation for the failure to comply with the self-executing order. A similar approach has been taken in later English cases. In Re Jokai Tea Holdings Ltd [1993] 1 All ER 630, Browne-Wilkinson V-C observed (at 637) that the basis of the decision in Janov v Morris 'was that the failure to comply with the peremptory order was contumacious.... It is clear that the court, in reaching the conclusion that the conduct was contumacious, placed much reliance on the fact that no explanation or excuse being given by the plaintiff for his disobedience to the order. In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an 'unless' order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.' See also Grand Metropolitan Nominee (No 2) Co Ltd v Evans [1993] 1 All ER 642 (CA)". In Deangrove , the applicants' solicitor gave evidence that counsel had advised that their cause of action was not then complete, in consequence of which a Statement of Claim could not be drawn. Counsel advised that the applicants should allow the self-executing order to take effect. Sackville J accepted this evidence, and observed that it demonstrated that the applicants' behaviour had not been contumacious or such as to reflect wilful disobedience to the orders of the court. 35 The proposition that the later proceedings in Deangrove might have been regarded as an abuse of process not in the sense of demonstrating contumely but in the sense of an attempt to relitigate a matter which had previously been the subject of a final order disposing of identical proceedings appears not to have been the way the matter was put to Sackville J. That proposition was put to Holmes J in Clout v Klein [2001] QSC 401. There the earlier proceeding had been terminated not by a self-executing order but by a direct order of a Judge of the court. The ground which sustained the order, however, was that the plaintiffs in that proceeding had failed to comply with an order for security for costs. His Honour referred (at [44]) to some cases in which the application of the Anshun principle to situations in which there had been no adjudication had been doubted; doubts which, in my respectful view, would almost always be regarded as well-founded. However, on the facts, his Honour held that it was not unreasonable for the plaintiff which was common to both proceedings not to have raised the relevant claim in the earlier proceeding. 44 I do not believe that I would, on the facts of the present case, be justified in finding contumely on the part of the applicant apropos the self-executing order in the Victorian proceeding. Mr Frenkel did not put his case on this basis, at least explicitly, but he did urge me to find that the applicant's purpose in commencing the present proceeding was to "avoid" the operation and consequences of that order. In a sense it was, but in another sense so to conclude is to do no more than to beg the question. Although the applicant appears to remain in breach of so much of the order of Mandie J as required it provide security (a matter which is not for me to decide), it has suffered the adverse consequences of the self-executing part of that order. On one view, the respondents have achieved more from this sequence of events than they could have hoped for had security been provided and the Victorian proceeding continued. As in Deangrove , I think that the correct approach is to treat the applicant as, prima facie at least, entitled to allow the Victorian self-executing order to operate to its own disadvantage without holding that such conduct involves contumely.


case_title: Equity Access Limited v Westpac Banking Corp (1989) ATPR 40-972


case_text: There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action: see eg Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Wilson v Commonwealth of Australia [1999] FCA 1308 ; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198; However, these authorities, like Anshun , speak only of situations in which the earlier point was actually decided by the court concerned.


case_title: Hart v Hall & Pickles Ltd [1969] 3 All ER 291


case_title: Hunter v Chief Constable of the West Midlands Police [1982] AC 529


case_outcome: distinguished

case_title: Moore v Inglis (1976) 9 ALR 509

case_text: In the facts leading to the judgment of Mason J in Moore v Inglis (1976) 9 ALR 509, the plaintiff had commenced a proceeding in the Supreme Court of the Australian Capital Territory alleging conspiracy, and seeking damages. While those proceedings were pending, the plaintiff commenced a proceeding in the original jurisdiction of the High Court alleging, in a reformulated way, what was essentially the same conspiracy, or series of conspiracies. In the High Court, the plaintiff sought declarations and injunctions only, not damages. The parties in the two actions were different. Mason J granted the defendants a perpetual stay upon the principle that it was prima facie vexatious to sue concurrently in different courts for the same thing, relying in this regard upon Logan v Bank of Scotland (No 2) [1906] 1 KB 141, 150; Slough Estates Ltd v Slough Borough Council [1968] Ch 299, 314-5; and Re Christiansborg (1885) 10 PD 141, 148. His Honour considered it inconsequential that the plaintiff sought different kinds of relief in the two proceedings: the Supreme Court of the ACT had jurisdiction to grant relief by way of declarations and injunctions, should the plaintiff choose to seek that, either in substitution for, or in addition to, her existing claim for damages (9 ALR at 514-5). Mason J continued at 515: "Any difficulty which the plaintiff may encounter in securing appropriate amendments to the proceedings in the Supreme Court will stem, not from jurisdictional limitations, but from the manner in which the plaintiff has presented her case to date and from the insufficiency of the matters upon which she relies to ground the relief which she claims. However, these difficulties do not provide a reason for allowing the plaintiff to maintain a second proceeding in this Court relating to the subject matter already in course of litigation in the Supreme Court." On the subject of different parties, Mason J noted that, if a proper case were made out, the Supreme Court proceeding could be amended so as to add or remove parties. With respect to this and other potential amendments, his Honour said (at 515): "Although I acknowledge that the plaintiff may not secure all the amendments which she desires it is neither just nor fair that she should, after commencing one action which is about to come to issue on the pleadings, bring another action on the same subject matter, making minor alterations only to the substantive allegations and to the parties. She must make up her mind once and for all as to how she is going to present her case." His Honour held that the commencement and continuation of the action in the High Court was vexatious and oppressive, and constituted an abuse of the process of the Court. 38 Turning to the motion before the Court, it is necessary to examine the applicant's respective causes of action in the Victorian proceeding, and here. In the Victorian proceeding, aside from the defences that the respondents raised, the applicant would have been required to establish that • the respondents were directors of Mactec at the time it incurred the debt to the applicant; • Mactec was insolvent at that time, or became insolvent by incurring the debt; • there were reasonable grounds for suspecting that Mactec was insolvent, or would become insolvent by incurring the debt; • the respondents were aware, or a reasonable person in a like position in a company in Mactec's circumstances would have been aware, that there were reasonable grounds for so suspecting; • the respondents failed to prevent Mactec from incurring the debt; • because of Mactec's insolvency, the applicant suffered loss or damage; • the debt was wholly or partly unsecured; and • Mactec was being wound up. In the present proceeding (as pleaded by the applicant, and again putting aside any defences that might be raised), the applicant would be required to establish that • Mactec was a trading corporation; • Mactec represented to the applicant, at or prior to entering into the loan agreement, that the waste supply agreement was executed and in place and/or that Mactec could repay the $500,000 loan before 23 May 2000; • the representations were misleading or deceptive either in fact (ie, as the case requires, that the waste supply agreement was not executed or in place or that Mactec could not repay the $500,000 loan before 23 May 2000) or in the statutory sense that, when made, its maker or makers had no reasonable grounds for believing that Mactec could repay the loan, on account of Mactec's insolvency; • the applicant relied on the representations in advancing the amount of the loan to Mactec; • the respondents were involved in the making of the representations within the meaning of s 75B of the Trade Practices Act ; and • the applicant suffered loss or damage. 39 There are several obvious differences between the causes of action, and the factual elements that would be required to be established, as between the Victorian proceeding and this proceeding. Section 588M of the Corporations Act involves no element of conduct by company directors: it is concerned with their knowledge, or constructive knowledge, as to the state of the company's solvency; and, of course, with the objective fact of solvency. Under s 52 of the Trade Practices Act , by contrast, conduct is everything, whereas the company's condition of solvency or otherwise is not, at least directly, relevant; and the respondents' ignorance of the falsity of the representations made by Mactec may not be fatal to the applicant's case. The waste supply agreement, and the questions of whether it was executed at the relevant time, of what representations were made about it, and the like, will constitute very significant elements of the applicant's case in the present proceeding, whereas, it does not appear that such matters would have been agitated in the Victorian proceeding. 41 The cases to which I have most recently referred above, especially Moore v Inglis , show that the question whether a later proceeding is an abuse of process because of similarity with an earlier, extant, proceeding is not concluded in the negative merely because the parties, the causes of action, the specific relief sought, or even the forensic issues which may arise, are not identical. In that case Mason J held that the later proceeding was abusive notwithstanding that, to accommodate all its elements, some amendments to the earlier proceeding might be required. The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier. One sees the same underlying values as to the requirements of a fair and efficient system for the administration of justice here as are to be seen, in a different but analogous context, in Anshun . 42 In the present case, were it not for one factor to which I shall turn next, I would consider that the commencement of the present proceeding was an abuse of process in the sense of being a course preferred by the applicant over what I would regard as the more obvious, more convenient, less costly and less vexing expedient of seeking to make the necessary amendments to the pleadings in the Victorian proceeding. The applicant was, as plaintiff in the Victorian proceeding, suing to achieve compensation for the very loss around which this proceeding is constructed. It was suing the same parties as are respondents here. Broadly speaking, it was putting the same series of transactions in 2000 into controversy. Had the Victorian proceeding still been on foot when this proceeding was commenced, I would have regarded the present case as covered by Williams v Hunt and Moore v Inglis . 43 However, the Victorian proceeding was dismissed on 9 February 2006 the very day on which the present proceeding was commenced as a result of the operation of the self-executing order which Mandie J had made in September 2005. This takes the present situation, in my view, out of the Moore v Inglis line of authority. The evil with which the principle in such cases is concerned arises where a plaintiff tries to have a foot in each camp, as it were, by keeping more than one proceeding alive at the same time. I am not aware of any instance in which the same or an analogous principle has been applied to a situation of successive, rather than concurrent, proceedings. In the case of successive proceedings, it may be that the plaintiff in the later proceeding will be met by a successful plea of res judicata or of Anshun estoppel; or it may be shown, on the facts, that the commencement of the later proceeding revealed a contumacious disregard for the authority of the court, or of another court. But, absent any of these situations, there is no established basis upon which I should regard the commencement of a later proceeding making the same or similar claims as those previously, or even contemporaneously, disposed of in an earlier proceeding by a self-executing order as necessarily amounting to an abuse of process. 45 The circumstances before Hargrave J on 3 March 2006 were, of course, different from those now confronting me. His Honour had before him an application which, if granted, would have kept alive two proceedings covering essentially the same things. It was a conventional Moore v Inglis situation. His Honour, quite correctly in my respectful view, recognised the objective of the then plaintiff as involving an abuse of process. He would not allow it. He refused to keep the Victorian proceeding alive, the result of which is that that proceeding was finally terminated on 9 February 2006 and the present proceeding remains the only relevant one which the respondents are obliged to defend. 46 For the above reasons I shall dismiss so much of the respondents' motion as seeks that the proceeding be dismissed or stayed as an abuse of process.


case_title: Pople v Evans [1969] 2 Ch 255


case_text: Mr Frenkel relied upon the judgment of the High Court in Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45 ; (1981) 147 CLR 589. But Anshun estoppel, as the principle for which that case stands is sometimes called, is concerned with the ability of a party in later proceedings to rely upon a point of claim or defence which was so relevant to the matters adjudicated upon in earlier proceedings to which that party was also a party that it would have been unreasonable not then to have relied on it. As is apparent from the statement in Henderson v Henderson (1843) 3 Hare 100, 115 which the High Court regarded as stating the law, the principle applies only where there has been an adjudication by the Court in the earlier proceedings. Anshun does not stand as authority for the proposition that it is an abuse of process to make a claim in a later proceeding that could have been made in an earlier proceeding, where the earlier proceeding has been stayed or dismissed without adjudication. 32 There is, of course, no shortage of authority for the proposition that it is an abuse of process for a party to seek to contest, in later proceedings, a point which it has lost, or substantially lost, in earlier proceedings, even where there may not be complete overlap between all facts, parties, and causes of action: see eg Hunter v Chief Constable of the West Midlands Police [1982] AC 529; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Wilson v Commonwealth of Australia [1999] FCA 1308 ; Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198; However, these authorities, like Anshun , speak only of situations in which the earlier point was actually decided by the court concerned. 33 By contrast, there is no res judicata nor, as I understand the law, Anshun estoppel, when the earlier proceedings have been discontinued. In relation to res judicata at least, the same conclusion applies when the earlier proceedings have been dismissed on account of default in compliance with orders for discovery ( Baines v State Bank of NSW (1985) 2 NSWLR 729), on account of default in the provision of particulars ( Samuels v Linzi Dresses Ltd [1981] QB 115) or for want of prosecution ( Hart v Hall & Pickles Ltd [1969] 3 All ER 291; Pople v Evans [1969] 2 Ch 255). The question with which these cases do not deal, however, is whether, notwithstanding that there would be no res judicata , it might nonetheless be regarded as vexatious, and in that sense as an abuse of process, for a moving party, by his or her own default, to allow proceedings to be terminated, without adjudication, to his or her disadvantage, and then to bring new proceedings seeking the same remedy on closely related grounds. 35 The proposition that the later proceedings in Deangrove might have been regarded as an abuse of process not in the sense of demonstrating contumely but in the sense of an attempt to relitigate a matter which had previously been the subject of a final order disposing of identical proceedings appears not to have been the way the matter was put to Sackville J. That proposition was put to Holmes J in Clout v Klein [2001] QSC 401. There the earlier proceeding had been terminated not by a self-executing order but by a direct order of a Judge of the court. The ground which sustained the order, however, was that the plaintiffs in that proceeding had failed to comply with an order for security for costs. His Honour referred (at [44]) to some cases in which the application of the Anshun principle to situations in which there had been no adjudication had been doubted; doubts which, in my respectful view, would almost always be regarded as well-founded. However, on the facts, his Honour held that it was not unreasonable for the plaintiff which was common to both proceedings not to have raised the relevant claim in the earlier proceeding. 41 The cases to which I have most recently referred above, especially Moore v Inglis , show that the question whether a later proceeding is an abuse of process because of similarity with an earlier, extant, proceeding is not concluded in the negative merely because the parties, the causes of action, the specific relief sought, or even the forensic issues which may arise, are not identical. In that case Mason J held that the later proceeding was abusive notwithstanding that, to accommodate all its elements, some amendments to the earlier proceeding might be required. The important, perhaps critical, point was that the court in which the earlier proceeding was commenced had jurisdiction to deal with everything raised in the later proceeding and there was no reasonable justification, based on legitimate considerations of convenience, cost or the like, for commencing the second proceeding rather than seeking to amend the earlier. One sees the same underlying values as to the requirements of a fair and efficient system for the administration of justice here as are to be seen, in a different but analogous context, in Anshun . 43 However, the Victorian proceeding was dismissed on 9 February 2006 the very day on which the present proceeding was commenced as a result of the operation of the self-executing order which Mandie J had made in September 2005. This takes the present situation, in my view, out of the Moore v Inglis line of authority. The evil with which the principle in such cases is concerned arises where a plaintiff tries to have a foot in each camp, as it were, by keeping more than one proceeding alive at the same time. I am not aware of any instance in which the same or an analogous principle has been applied to a situation of successive, rather than concurrent, proceedings. In the case of successive proceedings, it may be that the plaintiff in the later proceeding will be met by a successful plea of res judicata or of Anshun estoppel; or it may be shown, on the facts, that the commencement of the later proceeding revealed a contumacious disregard for the authority of the court, or of another court. But, absent any of these situations, there is no established basis upon which I should regard the commencement of a later proceeding making the same or similar claims as those previously, or even contemporaneously, disposed of in an earlier proceeding by a self-executing order as necessarily amounting to an abuse of process.


case_title: Rippon v Chilcotin Pty Ltd [2001] NSWCA 142 ; (2001) 53 NSWLR 198


case_title: Samuels v Linzi Dresses Ltd [1981] QB 115


case_text: The finding which I have just made does not, however, mean that the respondents succeed on their abuse of process arguments. Their difficulty, as Mr Frenkel frankly acknowledged, was that the present circumstances do not fit neatly within any recognised category of abuse. Mr Frenkel referred me to the statement by French J in Sea Culture International Pty Ltd v Scoles (1991) 32 FCR 275, 279 that "the possible varieties of abuse of process are only limited by human ingenuity and the categories are not closed." With respect, I agree; but I cannot, as at present advised, envisage the circumstances in which I, sitting as a single Judge, would take it upon myself to create a new category, and I do not understand Mr Frenkel to have submitted that I should. Rather, while accepting that the facts of the present case were not on all fours with those of any binding or persuasive authority, he submitted that the principles which informed the decided cases should likewise lead to the conclusion that the applicant's conduct in commencing the present proceeding constituted an abuse of process.


case_title: Williams v Hunt [1905] 1 KB 512

case_text: Moving to a somewhat different line of authority, it is at least regarded prima facie as an abuse of process for a moving party to vex his or her opponent by instituting multiple proceedings to right a single wrong. In Williams v Hunt [1905] 1 KB 512, the Court of Appeal restored the order of a master in the Kings Bench Division to stay an action on a specially indorsed writ claiming principal and interest under a covenant in a mortgage deed, when there was waiting for trial in the Chancery Division an earlier proceeding in which the same plaintiff claimed, in relation to the same mortgage, an account, payment of the sum found to be due, and in default, sale or foreclosure. Collins MR said (at 514): "Where two separate remedies are possible, and a start is made by putting in force one of those remedies by a writ which would entitle the plaintiff to the relief he subsequently desires, he cannot by deliberately leaving that out of his claim reserve his right to ask for it in another proceeding. Where proceedings have been started, it is an abuse of the process of the Court to divide the remedy where there is a complete remedy in the Court where the suit was first started." Stirling LJ was of the same opinion (at 515). 42 In the present case, were it not for one factor to which I shall turn next, I would consider that the commencement of the present proceeding was an abuse of process in the sense of being a course preferred by the applicant over what I would regard as the more obvious, more convenient, less costly and less vexing expedient of seeking to make the necessary amendments to the pleadings in the Victorian proceeding. The applicant was, as plaintiff in the Victorian proceeding, suing to achieve compensation for the very loss around which this proceeding is constructed. It was suing the same parties as are respondents here. Broadly speaking, it was putting the same series of transactions in 2000 into controversy. Had the Victorian proceeding still been on foot when this proceeding was commenced, I would have regarded the present case as covered by Williams v Hunt and Moore v Inglis .


case_text: The judgment of the High Court in Williams v Spautz [1992] HCA 34 ; (1992) 174 CLR 509 is often regarded as the leading Australian authority on abuse of process. The particular concept of abuse with which that judgment was concerned, however, was that of commencing and prosecuting proceedings for a purpose collateral to that for which the proceedings were designed: 174 CLR at 526-527. The Court was there concerned with the kind of case in which court proceedings are used as an instrument of oppression in the sense of seeking to achieve some collateral end rather than to vindicate the moving party's legitimate legal rights for which proceedings of the relevant kind were intended. A ready answer to the present problem is not provided by Williams v Spautz . It could not be suggested that the applicant had any purpose collateral to that achievable under s 52 of the Trade Practices Act in mind when the present proceeding was commenced. It is true that, as I have held, it was commenced as a separate proceeding because the more obvious expedient of seeking to amend the Victorian proceeding was unattractive. But on no view could it be asserted that the applicant is seeking to achieve some object extraneous to the rights and protections which it claims to have under the Trade Practices Act .


case_title: Wilson v Commonwealth of Australia [1999] FCA 1308


case_text: Telstra seeks a declaration that ' the decision of [the Commission] made on or about 12 April 2006 under section 151AKA ' of the Act to issue the Competition Notice was invalid. Telstra submits that it has ' a real interest in a clearly defined, straightforward declaration ' ( Ainsworth v Criminal Justice Commission [1992] HCA 10 ; (1992) 175 CLR 564 at 582). 98 The Commission submits that the appropriate declaration is that, in the events that have happened and in the circumstances of this case, the Commission was not entitled to issue the Competition Notice. The Commission submits that the decision to issue the Competition Notice in the form in which it was issued did not, in and of itself, affect Telstra's rights in any way or have any statutory consequences; it was the issue and service of the Competition Notice that was defective. 99 Telstra relies on s 163A of the Act which relevantly provides: (1) Subject to this section, a person may, in relation to a matter arising under this Act... [seek] the making of: (aa) a declaration in relation to the validity of any act or thing done, proposed to be done or purporting to have been done under this Act. 100 The act or thing done under the Act was the issue of the Competition Notice. The words "in relation to" in s 163A have wide import but the subject to which the declaration relates is the validity of the issue of the Competition Notice, not the anterior decision to issue that notice, which was not done under the Act. Section 151AKA of the Act is not concerned with the decision to issue the Competition Notice but with the issue of and content of the Competition Notice and the preceding notice under s 151AKA(10), the Consultation Notice. 106 Telstra also relies on s 16(1)(a) of the ADJR Act, which does not provide for a declaration of invalidity. As an alternative to a declaration, Telstra now seeks an order quashing the decision. Telstra points out that it was denied natural justice in the making of the decision. Telstra submits that the Commission's decision has consequences for its reputation. In those circumstances, it submits, it is appropriate that a declaration be made ( Ainsworth at 582). However, apart from the fact that a decision was made to issue the invalid Competition Notice, there is no evidence that the decision had an effect or the consequences alleged.


case_text: Further, Telstra was not given a reasonable opportunity to consult, or to comment and make submissions, or to change its conduct to avoid the issue of the Competition Notice ( Telstra No 2 at [181]). The statutory scheme and common law principles afforded such a right. Telstra was, therefore, denied procedural fairness in the issue of the Competition Notice. The fact that the Commission could have issued a different Part A competition notice, such as the one now proposed, does not discharge the Commission's obligation to give Telstra procedural fairness ( Applicant VEAL of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 72 ; (2005) 225 CLR 88 at [18] ). 64 Section 2 of the Interpretation Act provides that the Interpretation Act applies to all Acts subject to a contrary intention. Subject to a contrary intention the Competition Notice is an instrument which is considered an Act for the purposes of the Interpretation Act and s 46(1) applies (s 46(1)(a)). The Commission submits that any contrary intention for the application of s 46 must be found in the instrument. The parties do not submit a contrary intention is apparent in the Competition Notice. 65 Whether or not there is a contrary intention apparent in the Competition Notice, an indication of contrary intention is not limited to the instrument. It may be apparent from the legislation authorising the making of the instrument.


case_text: It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court.


case_title: Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307


case_text: A distinction is also to be drawn between, on the one hand, questions of severance which involve an excess of power so that the ultra vires portion of an instrument can be severed and the intra vires portion preserved and, on the other hand, a lack of power to make the whole instrument by reason of a failure to comply with the consultation provision in a statute ( Darling Casino Limited v Minister for Planning and Sydney Harbour Casino Pty Ltd (1995) 86 LGERA 186). As Pearlman CJ observed in Darling Casino at 207, if the power was improperly exercised, the instrument is invalid in its totality. It is no answer that part of it could have been validly made.


case_text: It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court. 85 The Commission submits that Telstra No 2 allows for the invalid parts of the Competition Notice to be distinctly identified so that they can be severed and that there is no indication of interdependence with other sections. Also, the Commission submits that severance would not give the Competition Notice a substantially different operation or effect ( Evans [2002] FCA 945 at [43] per Merkel J). The Commission seeks to sever paragraphs 5(g) and 12(a) referring to Lower Spend Customers and paragraph 12(e) referring to unbundled Fixed Voice Services, being the different kinds of anti-competitive conduct to those summarised in the Consultation Notice. 86 To the extent that the Commission seeks to sever the references to those parts of conduct that were not part of the conduct described in summary form in the Consultation Notice, severance is not possible. The Commission submits that the offending parts of the notice should be disregarded, as if they were not there. While it is possible to rule a line through the offending provisions, such a "blue pencil exercise" is not appropriate. To do so alters the nature of the conduct the subject of the notice ( Victoria at 502) and also alters the content and meaning of the notice. I am not satisfied that the clauses proposed to be severed are other than interrelated and interdependent within the remainder of the Competition Notice.


case_text: If an Act, legislative instrument or an instrument issued by an authority acting within the power of a provision is construed as being in excess of authority, it is to be "read down" or severed to be valid to the extent that it is not within power. It is read down to bring it within power, providing that the instrument itself contains some test that would permit severance ( Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 276 ; (2003) 135 FCR 306 at [63] per Kenny J). However, as Kenny J pointed out at [65], it may not be possible if various aspects or requirements that are within and beyond power are interdependent. 51 The Commission's submissions are as follows: • Section 46(1)(c) of the Interpretation Act operates to ensure that the Competition Notice is read and construed subject to Pt XIB of the Act and so as not to exceed the power of the Commission to issue the notice. • When the Competition Notice is so construed, if it is found still to be in excess of the power of the Commission, then it is taken as a valid notice to the extent that it is not in excess of power by s 46(2). • If two constructions of the Competition Notice were open and only one was within power, s 46(1)(c) requires the Court to construe the notice so as to be within power. This may be achieved by severing the offending paragraphs, which are those that deal with the Lower Spend Customers and the bundling issues. The balance of the Competition Notice would therefore be valid. 52 Section 46(1)(a) of the Interpretation Act provides that each provision in the Competition Notice is to be construed as if it were a section of an Act. The Commission submits that s 46 can be satisfied by simply excising references to additional matter found to constitute a disconformity between the matter the subject of the Consultation Notice and the terms of the Competition Notice. The Commission recognises that this may not be appropriate if what seems to be a simple excision alters the sense of the Competition Notice or causes it to operate in an otherwise unintended or invalid manner.


case_text: The validity of the Competition Notice and procedural fairness afforded before its issue are determined by the content and context of the provisions of Pt XIB of the Act. There is no evidence of the decision or decisions that were made. A decision or, indeed, a series of decisions concerning a Part A competition notice or its issue could be made and never implemented. The decision itself has no statutory consequences in the Act. It does not sufficiently relate to the validity of the Competition Notice. Counsel were unable to point to any comparable case, such as those arising under s 155 of the Act or ss 263 and 264 of the Income Tax Assessment Act 1936 (Cth) where not only the statutory notice but also the decision to issue the notice was quashed or declared invalid (cf Fieldhouse v Commissioner of Taxation (1989) 25 FCR 187 where the validity of four notices issued by the Deputy Commissioner of Taxation pursuant to s 264(1) of the Income Tax Assessment Act was considered but the decision to issue those notices was not, in effect, considered). 102 A declaration under s 163A(1)(aa) of the Act could extend to the validity of the Consultation Notice, the validity of the Competition Notice and the entitlement of the Commission to issue the Competition Notice. It does not extend to the decision to issue the Competition Notice. 103 However, Telstra also relies on the ADJR Act. The Commission did not and does not dispute that the decision to issue the Competition Notice is a decision to which s 5 of the ADJR Act applies. In the light of that concession, I gave no consideration in Telstra No 2 as to whether or not this was so.


case_text: It is not disputed that the Competition Notice is an instrument to which s 46 applies because: (a) Section 151AKA(2) of the Act specifies the power to issue a Part A competition notice. (b) The power is expressly conferred on the Commission, which is a body established by s 6A(1) of the Act and which is a statutory agency under the Public Service Act 1999 (Cth) ( Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 at [135] per Wilcox J). The Commission is therefore an "authority" for the purposes of s 46 of the Interpretation Act . (c) The relevant power is the power of the Commission to issue a document, namely the Part A competition notice, which is an "instrument" (Shorter Oxford English Dictionary, Azevedo v Secretary, Department of Primary Industries and Energy (1992) 35 FCR 284 at 299-300 per French J; Collector of Customs (NSW) v Lawlor (1979) 24 ALR 307 at 313 and 323-324 referred to in Evans v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 945 at [22] per Merkel J). (d) A Part A competition notice is not a legislative instrument under the Legislative Instruments Act as it is not legislative in character, nor is it a rule of Court. 83 There is a presumption in favour of the independence of various provisions in an enactment, to which effect should be given unless there is a positive indication of interdependence which is apparent from the text, context, content or subject matter of the provision ( Foxtel Management at [136], Fraser Henleins Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 127).


case_text: There is a presumption in favour of the independence of various provisions in an enactment, to which effect should be given unless there is a positive indication of interdependence which is apparent from the text, context, content or subject matter of the provision ( Foxtel Management at [136], Fraser Henleins Pty Ltd v Cody [1945] HCA 49 ; (1945) 70 CLR 100 at 127).


case_text: Section 46 of the Interpretation Act , like s 15A, may apply where ' particular clauses, provisos and qualifications, separately expressed' are beyond power ( Harrington v Lowe [1996] HCA 8 ; (1996) 190 CLR 311 at 327). It does not apply to validate a provision which extends beyond power unless the operation of the remaining parts of the instrument remain unchanged. It does not apply where the instrument was intended to operate fully and completely according to its terms or not at all ( Victoria v The Commonwealth [1995] HCA 45 ; (1995) 187 CLR 416 at 502). 87 Section 46 of the Interpretation Act , like s 15A ( Harrington at 327), cannot be applied to effect a partial validation if, as here, it is apparent that the statutory provision for consultation was intended to operate fully and completely according to its terms or not at all ( Victoria at 502). 88 This is not a case of a notice issued within power being, in its terms or content, in excess of power. Assuming, without deciding, that the proposed changes to the Competition Notice make it accord with the Consultation Notice, those changes do not alter the fact that Telstra was, at the time of the issue of the Competition Notice, denied the opportunities provided for in the Act as referred to in Telstra No 2 at [181] and [202]. The notice is invalid in its entirety.


case_text: Factors relevant to the exercise of discretion include the interests of the party seeking to have the matter argued, any prejudice to the respondent party, the policy inherent in s 22 of the Federal Court of Australia Act 1976 (Cth) and the public interest in the finality of justice ( Hyster Australia Pty Ltd v Anti-dumping Authority (No 2) (1993) 41 FCR 259 at 263). 17 One consideration is whether s 46 applies to "save" the Competition Notice. 18 The question of utility arises as the Competition Notice is no longer in force. The Competition Notice was revoked on 2 March 2007 with effect from 28 February 2007. Optus has consented to orders dismissing with costs the proceedings it commenced against Telstra in reliance on the Competition Notice.


case_title: Minister for Immigration & Multicultural Affairs v Bhardwaj [2002] HCA 11 ; (2002) 209 CLR 597

case_text: There was therefore a failure on the part of the Commission to comply with the procedures required by law to be observed. The pre-condition for the issue of the Competition Notice was not met. A failure to comply with mandatory procedures constitutes jurisdictional error ( SZBYR v Minister for Immigration & Citizenship (2007) 235 ALR 609 at [13]). If there was no authorised decision to issue a Part A competition notice, the Competition Notice did not accord with the [2002] HCA 11 ; Act ( Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [43] and [51] per Gaudron and Gummow JJ).