case_text: In regulatory contexts comparable to the present, this Court has informed itself as to those facts necessary for the granting of declaratory relief by reference to agreed facts and indeed the consent of the parties: Bank of Kuwait and the Middle East v Ship MV 'Mawashi Al Gasseem' (No 2) [2007] FCA 815 at [10] [16], [2007] FCA 815 ; 240 ALR 120 at 122 4; Australian Competition & Consumer Commission v Info4PC.com Pty Ltd [2006] FCA 1534 at [10] per Nicholson J; Australian Competition and Consumer Commission v EDirect Pty Ltd [2008] FCA 65 at [20] [30], ATPR 42 216; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [74] [79]; Australian Competition and Consumer Commission v Goldy Motors Pty Ltd [2000] FCA 1885 at [30] , [34], ATPR 41 801. 36 In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] . 42 The extent to which this Court may inform itself as to the appropriate quantification of any penalty to be imposed by reference to any agreement between the parties has been the subject of consideration in the context of other legislation: eg, Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [33] [42]. Reference was there made to the decision of the Full Court of this Court in Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 and to the earlier decision in NW Frozen Foods . The Full Court in Mobil Oil continued on to observe: [51] The following propositions emerge from the reasoning in NW Frozen Foods: (i) It is the responsibility of the Court to determine the appropriate penalty to be imposed under s 76 of the TP Act in respect of a contravention of the TP Act. (ii) Determining the quantum of a penalty is not an exact science. Within a permissible range, the courts have acknowledged that a particular figure cannot necessarily be said to be more appropriate than another. (iii) There is a public interest in promoting settlement of litigation, particularly where it is likely to be lengthy. Accordingly, when the regulator and contravenor have reached agreement, they may present to the Court a statement of facts and opinions as to the effect of those facts, together with joint submissions as to the appropriate penalty to be imposed. (iv) The view of the regulator, as a specialist body, is a relevant, but not determinative consideration on the question of penalty. In particular, the views of the regulator on matters within its expertise (such as the ACCC's views as to the deterrent effect of a proposed penalty in a given market) will usually be given greater weight than its views on more "subjective" matters. (v) In determining whether the proposed penalty is appropriate, the Court examines all the circumstances of the case. Where the parties have put forward an agreed statement of facts, the Court may act on that statement if it is appropriate to do so. (vi) Where the parties have jointly proposed a penalty, it will not be useful to investigate whether the Court would have arrived at that precise figure in the absence of agreement. The question is whether that figure is, in the Court's view, appropriate in the circumstances of the case. In answering that question, the Court will not reject the agreed figure simply because it would have been disposed to select some other figure. It will be appropriate if within the permissible range. In Comcare v National Gallery of Australia [2007] FCA 1548 at [4] , [2007] FCA 1548 ; 98 ALD 67 at 68 Gyles J referred to Mobil Oil and accepted that " that decision does provide appropriate guidance ".


case_outcome: considered

case_text: In the statutory context of the Trade Practices Act 1974 (Cth), French J (as he then was) has attempted to summarise some of these considerations: Trade Practices Commission v CSR Ltd (1991) ATPR 41-076. When assessing the penalty to be imposed pursuant to s 76(1) of the 1974 Act His Honour observed (at 52,152 52,153): The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following: 1. The nature and extent of the contravening conduct. 2. The amount of loss or damage caused. 3. The circumstances in which the conduct took place. 4. The size of the contravening company. 5. The degree of power it has, as evidenced by its market share and ease of entry into the market. 6. The deliberateness of the contravention and the period over which it extended. 7. Whether the contravention arose out of the conduct of senior management or at a lower level. 8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention. 9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention. These considerations have since been applied to other legislative contexts: eg, Minister for the Environment and Heritage v Greentree (No 3) [2004] FCA 1317 at [51] , [2004] FCA 1317 ; 136 LGERA 89 ; Australian Prudential Regulation Authority v Derstepanian [2005] FCA 1121 at [30] ; Secretary, Department of Health & Ageing v Pagasa Australia Pty Ltd [2008] FCA 1545 at [24] . 37 These considerations may also be applied to the task of assessing the penalty to be imposed under the current legislation. To some extent the considerations set forth by Madgwick J overlap with those set forth by French J; to some extent they do not.


case_outcome: applied

case_text: Consideration has also been given to: • the two earlier events that took place in November 2002 and July 2003. It would be inappropriate to increase the penalty now to be imposed by reason of those two earlier contraventions of the New South Wales Act -- to do so " would be to impose a fresh penalty for past offences ": Veen v The Queen (No 2) [1988] HCA 14 ; (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ. But those events do assume some limited relevance. There was no explanation as to why those steps which have more recently been implemented in order to address the safety of employees working in the vicinity of forklifts were not implemented at a far earlier date. The dangers inherent in working in the vicinity of forklifts had very clearly emerged long ago. 47 It is considered that it is " appropriate " to give effect to the agreement between the parties as to penalty. Whether or not the Court would have reached the same figure is not to the point; the sum of $165,000, as agreed between the parties, is within the " permissible range ". 48 The Court declares that: 1. In or about March 2006 and on 25 May 2006 Post Logistics Australasia Pty Ltd contravened clause 2(1) of Schedule 2 of the Occupational Health and Safety Act 1991 (Cth) by reason of its having breached section 16(1) of the said Act in that: (a) The duties of Post Logistics Australasia Pty Ltd under subsection 16(1) apply not only in relation to its employees, but also, to the extent provided for in subsection 16(4), in relation to its contractors, as defined in section 9A. (b) In or about March 2006 its contractor Mr John Lapidario approached a moving forklift operated by its employee Mr Van Trot Tran and disconnected the power on that forklift. (c) On another occasion in or about March 2006 Mr Lapidario, without any qualifications or training to do so, operated a moving forklift in warehouse 1 in the vicinity of Mr Tran. (d) On another occasion in or about March 2006 Mr Lapidario approached an operating forklift operated at the time by Mr Tran and applied the handbrake. (e) At approximately 2.45 pm on 25 May 2006 Mr Tran was operating a forklift from the driver's seat in the vicinity of the work benches and immediately to the south of the southern-most rack of shelving at the Site. In an attempt to engage in horseplay with Mr Tran, Mr Lapidario climbed onto the forklift putting his right hand on Mr Tran's head and neck, and his left hand under Mr Tran's leg. The forklift travelled in reverse and Mr Lapidario was accidentally crushed between a pole and the forklift. Mr Lapidario died at the scene of the accident. 2. In this regard Post Logistics Australasia Pty Ltd breached its duty under section 16(1) of the Occupational Health and Safety Act 1991 (Cth) to take all reasonably practical steps to protect the health and safety at work of its employee Mr Tran and its contractor Mr Lapidario in that it: (a) failed to provide adequate supervision or instruction to Mr Lapidario so as to ensure that he did not engage in the conduct set out above. (b) failed to ensure that there was an adequate traffic management system in place to prevent or reduce the risk of Mr Lapidario coming into contact with a moving forklift. 3. The Commonwealth entity to which the conduct related is Post Logistics Australasia Pty Ltd.


case_outcome: discussed

case_text: The respondents nevertheless submitted that the facts necessary to induce the state of mind (reasonable grounds) must be established on the balance of probabilities. However, as soon as evidence is adduced that shows that on the balance of probabilities there was not a serious and imminent risk to air safety, then the evidentiary burden shifts back to the applicant. The respondents also submitted that the well-known principles in Briginshaw v Briginshaw [1938] HCA 34 ; (1938) 60 CLR 336 (' Briginshaw ') at 361-3 are applicable. 24 Although in the present case there was time for a full investigation to take place, ordinarily the legislature's evident contemplation was that the Court will have the task of forming its judgment on incomplete materials. Thus a reasonably sanguine view must be taken of the way in which reasonable people might differ in their approach to matters. So, even if the Court took the view that a serious and imminent risk to air safety were not affirmatively proven on the balance of probabilities, in my opinion the Court nevertheless should be cautious, if there be some evidence of relevant matters for concern, before concluding that there is no reasonable ground for belief. 62 As to the ease with which the Court should be satisfied of matters adverse to them, the respondents submitted that, given the seriousness of the consequences for their reputation and livelihood of adverse findings, the evidentiary principles in Briginshaw at 361-3 are applicable. I disagree. The proceedings are primarily protective of the public, notwithstanding that fairness to impugned authorisation holders is an important part of the process. Further, any adverse finding that the Court might make is provisional only: it would merely assert that there are reasonable grounds for believing that some conduct had been in contravention of the statutory requirement. It would be inconsistent with the statutory commands to the Court to consider 'reasonable grounds to believe' and to give safety the primary emphasis to require that the Court only act on proofs which are not 'inexact', testimony which is not 'indefinite' and inferences which are not 'indirect' (see Briginshaw at 362). 63 Mr Boatman was in his sixties, and an extremely well-qualified and experienced pilot in relation to bush flying, including in relation to the use of narrow and curved runways. He had over 12 000 hours of flying experience, mostly in light single-engine aircraft such as Cessnas, accumulated over a period of 40-odd years. He had been to Innamincka and other like remote places before. He had many years, and thousands of hours of experience in instructing trainee pilots and licensed pilots in advanced safe handling techniques. For 14 years he had conducted an advanced safe handling course, training pilots in relation to using airstrips with difficult approaches, upslopes, downslopes and undulations, including landings and take-offs on curved strips, and using strips narrower than the road at Innamincka. He had, among other things, at the request of a Papua New Guinea commercial airline operator, trained some 50 pilots for operations in the notoriously difficult airstrips and conditions there. 64 Mr Boatman had also trained Ms Kennedy in such specialised techniques including take-offs and landings into strips much more difficult, in Mr Boatman's opinion, than would be the road at Innamincka. Ms Kennedy had some four years' flying experience, including 'reasonable experience flying in the outback and in respect of operations from unmade surfaces and marginal areas'.


case_outcome: cited

case_text: However, this matter has followed a much more protracted course. Prior to the substantive issue being heard, the matter was twice before a Full Federal Court, first in relation to the validity of s 30DE of the Act, the validity of the section being upheld: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165 (' CASA No 1 '); and secondly, in relation to confusion over consent orders that are not relevant to the present proceedings: Civil Aviation Safety Authority v Boatman [2004] FCAFC 336 ; (2004) 139 FCR 444 (' CASA No 2 ').


case_outcome: followed

case_title: Civil Aviation Safety Authority v Boatman [2004] FCAFC 165


case_title: Fleming v Hutchinson (1991) 66 ALJR 211

case_text: In relation to the third factor of potential consequences, the applicant contended that the 'word "serious" imports a test which is relative to the range of possible risks'. It is a question of degree: see Fleming v Hutchinson (1991) 66 ALJR 211 at 211 per Mason CJ, Brennan and Dawson JJ, albeit in a different context, where it was said by McGarvie J that 'elements of fact, degree and judgement are involved'.


case_title: George v Rockett (1990) 170 CLR 140

case_text: The applicant further relied on George v Rockett [1990] HCA 26 ; (1990) 170 CLR 104 (' Rockett ') at 116: 'The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.' 20 CASA submitted that, in deciding whether grounds are 'reasonable', emphasis is to be given to the primacy of the maintenance, enhancement and promotion of air safety, with particular emphasis on prevention of accidents and incidents. The applicant further contended that the establishment of those grounds, though objective, contemplates a reasonable person in the position of CASA, as is apparent from the reference in s 30DE(3) to ss 3A and 9A(1). 21 The principal proposition advanced by the respondents is that it cannot be the case that all that is required is 'reasonable grounds to believe' without taking account of any rebuttal evidence, as such a test would result in CASA's application being successful every time. 22 As to what is involved in 'reasonable grounds for a belief', the passage cited from Rockett is obiter as to belief because that case concerned suspicion. In any case, the respondents said that the High Court really decided in Rockett that 'reasonable grounds for believing' '[r]equires the existence of facts sufficient to induce' an actual belief (at 112-3), so that, to discharge its legal onus, while the applicant does not need to prove on the balance of probabilities that the take-offs at Innamincka constituted a serious and imminent risk to air safety, it must nevertheless prove facts sufficient to induce a belief in that proposition. 25 I do not accept that the establishment of the reasonable grounds for the necessary belief necessarily contemplates a reasonable person in the position of CASA . The point of the requisite approach to the Court is clearly to enable the Court to decide on all the materials before it, whether, objectively, there are reasonable grounds for the requisite belief. The Court is to adjudicate that matter, not CASA. It is not a mere question of considering whether CASA's view was such that no reasonable person could hold it. The Court is to form its own view of what are reasonable grounds for belief. So, the question is: regardless of whether or not there was in fact a serious and imminent risk to air safety, are reasonable grounds shown to the Court's satisfaction to induce an actual belief that there was such a risk? As the High Court said in Rockett (at [116]): 'Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.' 26 Whereas the fact of such a risk need not be established, it will not, on the other hand, be sufficient to show reasonable grounds for a mere suspicion, even a serious suspicion, that there was a risk of the relevant kind. 27 If the judge is moved by all the evidence to conclude that there was in fact such a risk, it will follow that there were reasonable grounds for that belief. If not, the judge must consider whether, nevertheless, there are, in the judge's opinion, reasonable grounds for so believing.


case_title: Kennelly v Incitec Ltd [1998] FCA 1470

case_text: Further, the applicant drew an analogy with Kennelly v Incitec Ltd [1998] FCA 1470 (' Kennelly '). In that case, Mr Kennelly was an experienced 'versatile operator' of an elevator used to transport fertilizer to the top of a tower approximately five storeys high. He was dismissed for conduct said to be such as to cause 'imminent and serious risk' to the 'safety, of a person' within the meaning of reg 30CA of the Workplace Relations Regulations 1989 (Cth). The central feature of the impugned conduct of Mr Kennelly was the removal of a 'danger tag' on the head roller of the elevator without ensuring by inspection that it was safe to commence the operation of the elevator. Spender J said (at 15-16): '...in my opinion, it remains plain that his failure to ensure that the machinery, which the danger tag indicated had been the subject of fitter repairs, was in a position properly to be started, is an act that involved the risk of very serious injury to any person working on or in the vicinity of the machine at the time of it start up. The failure to inspect the machine was a serious breach of Mr Kennelly's obligations in the operation of the systems dealing with safety in the workplace. Such visual inspection as he performed was wholly insufficient to discharge his responsibilities in the circumstances, and the fact that fortunately no person was injured or killed as a result of the operation of the elevator on that morning cannot affect the conclusion that the start up in the circumstances involved a serious risk of injury . "Risk" is defined in the Macquarie Dictionary to include "exposure to the chance of injury or loss; a hazard or dangerous chance; to expose to the chance of injury or loss, or hazard". It is clear on the evidence that Mr Kennelly exposed employees and maintenance workers to the chance of injury or loss in removing the danger tag and operating the elevator without performing the physical inspection of the head roller on the morning of 8 September 1997, and satisfying himself that it was safe to remove the danger tag and operate the elevator. There was the possibility that such persons might be working on, or in the vicinity of, the head roller, when Mr Kennelly removed the danger tag and commenced the operation of the head roller.' (emphasis added) 35 The applicant said the following can be taken from this case: (i) it is the risk that must be imminent, not the actuality of the occurrence; and (ii) the occasioning of the means by which the risk may be manifested (that is, the operation of an aircraft) affects the imminence of the risk. 36 The respondents submitted that both 'serious' and 'imminent' import the notion, in their context, of a high probability of a risk being realised, whether or not it is in fact realized. Where that high probability is missing (as in the present case, on the respondents' submission), no matter how catastrophic the potential consequences, a risk cannot be characterized as a serious and imminent risk to air safety. 37 The respondents submitted that the meaning of the phrase 'serious and imminent risk to air safety' should be determined by reference to its context in Division 3A of the Act. Given the scope of reg 269 of the CAR (see para [11] above), Division 3A should be confined to the hopefully exceptional circumstance of serious and imminent risk to air safety. 38 The respondents submit that the notion of 'serious risk' has two limbs to it. (i) The seriousness of the risk is principally, but not solely, related to the probability of the risk being realised; and (ii) In the context of s 30DB, it must also relate to the significance of the consequence: a high chance of quite minor harm occurring is not what the section is aimed at. 39 As to 'imminent', this necessarily entails not only that there is a high probability of the risk being realised, but that that risk is one that may be realised in a short time frame, that is, very soon. 40 The respondents submitted that the case of the applicant focused on the magnitude of the potential consequences, and not on the probabilities of such consequences being realised. In the present case, the respondents cast no doubt upon the potential seriousness of the consequences, but said that there was only an 'outside' (to use a word discussed in argument) or remote chance that such consequences would materialize. Therefore there was not a 'serious risk'. 41 The respondents say that if there were a strong chance of some quite minor harm, that is not what the section is concerned with. Neither, if there were a miniscule chance of major harm, is such the concern of the section. All flying involves a degree of risk. A really significant chance of significant harm occurring is what the section contemplates. 42 In CASA No 1 , Sundberg J observed at [15]: 'The power conferred by s 30DE is no different in its nature from that routinely exercised by a court of determining whether a motor vehicle is being driven dangerously, recklessly or negligently' . 56 In Kennelly a danger tag was attached to grain-elevating machinery having the capacity, if it malfunctioned, to threaten safety. The purpose of the tag was to indicate that a danger existed if the machinery were started before a competent person had indicated that it was safe to do so. A supervising employee removed the tag without ensuring by inspection that it was safe to put the equipment into operation. Thus, in the face of a clear indication that a dangerous situation might exist, a person responsible for making an inspection to see whether that dangerous situation did exist, failed to do so. His Honour's finding that this was conduct that caused 'imminent, and serious, risk' to safety commands respect. 57 That case is different from the present. In Kennelly there was no doubt that a dangerous situation existed. The worker did not take a readily available step to confirm or dispel the warning offered by the danger tag. Here, the question is whether there are reasonable grounds to believe that such elevation of the risks in taking-off as occurred was in the actual circumstances prevailing, 'serious' and whether, the steps taken to recognise and avert any such risks were sufficient to render the risks, in their context, less than 'serious'. As will appear, in my view, reasonable grounds do not exist to believe that the elevation of the risks given the steps taken by the experienced pilots in the interests of their own and their passengers' safety constituted a serious risk to air safety. 58 The respondents submitted: 'Realisation of a risk which was no more than an "outside chance" would not necessarily be caught by section 30DB. For example: a) consider a landing aircraft which collided with an aircraft which was positioned adjacent to the runway at a holding point but which unexpectedly moved forward on to the runway into the path of the landing aircraft. Notwithstanding the seriousness (in the sense of significance) of the consequences, this circumstance would not necessarily be conduct that constitutes, contributes to or results in a serious and imminent risk to air safety, in respect of the landing aircraft. The relevant conduct is proceeding with the landing with an aircraft adjacent to the runway (a common occurrence). There is plainly a possibility that the parked aircraft will infringe the runway. But despite that remote possibility occurring, landing an aircraft in that circumstances does not constitute, contribute to or result in encountering a serious and imminent risk to air safety. It entails encountering a remote possibility, which against the odds, materialised. b) consider a single engine aircraft flying over the sea, beyond gliding distance of land. Despite the reliability of aircraft engines, they can and do fail. To undertake such a flight with a normally functioning well maintained engine, is acceptable and lawful conduct not caught by section 30DB, because to undertake such a flight is to encounter merely a remote risk to air safety, not a serious and imminent risk to air safety. This is so whether or not the engine actually fails over the water and the aircraft is forced to ditch with serious consequences.' (original emphasis) 59 While there may be less stark examples than those given of flying which constitutes a serious and imminent risk to air safety, I agree with the general thrust of the distinctions drawn.


case_title: R v Magdulski (1989) 40 A Crim R 154

case_text: CASA submitted that the requirement to establish 'reasonable grounds to believe' falls well short of a requirement to satisfy the Court that the respondents did in fact engage in conduct of the requisite character. It requires only that the Court be persuaded that, upon the evidence before it, there are grounds upon which a belief may be based that the respondent had engaged in such conduct (or is likely to engage in it). The presence of grounds to believe the contrary is not inconsistent with the presence of grounds that satisfy the test: R v Magdulski (1989) 40 A Crim R 154.


case_text: Counsel for the applicant attacked the Tribunal's findings that the essential character of the function remained and that it continued to be an officially-approved function at a place of work attended by the respondent and his work colleagues. However, this was a matter of fact and degree: Maunder v Commonwealth (1983) 51 ALR 44 at 49, Gregory v Comcare Australia (1997) 72 FCR 196 at 202.


case_text: Counsel for the applicant attacked the Tribunal's findings that the essential character of the function remained and that it continued to be an officially-approved function at a place of work attended by the respondent and his work colleagues. However, this was a matter of fact and degree: Maunder v Commonwealth (1983) 51 ALR 44 at 49, Gregory v Comcare Australia (1997) 72 FCR 196 at 202. 22 Counsel for the applicant relied on Hatzimanolis v ANI Corporation Limited [1992] HCA 21 ; (1992) 173 CLR 473. But, as the Tribunal correctly observed, that case was concerned with quite a different situation, where the worker's injury was sustained in an "interlude or interval occurring within an overall period or episode of work" as distinct from "after the day's work has ceased" (see at 483 and the discussion by Cooper J in Gregory at 200-202). The question in the present case is whether the day's work had ceased before the respondent mounted his motor cycle or, more correctly, whether it was open to the Tribunal to find it had not.


case_text: I did not understand counsel for the applicant to dispute the finding that at its inception the function was work-related and that the respondent was required or expected to attend it as part of his duties: cf Roncevich v Repatriation Commission [2005] HCA 40 ; (2005) 218 ALR 733 at [23] . Rather, counsel submitted that, at some time before the respondent left, the function ceased to have the character of an officially-approved work function. However, there was ample evidence on which the Tribunal could make the finding it did including: • Leave was not good prior to the function; • Leave was not piped or formally announced during the function; • There was no evidence of any announcement that the function had concluded; • Most of the function occurred within normal working hours; • It was reasonable to infer that work issues were still being discussed towards the end of the function; • The final clean-up did not occur until about 5.30 pm. 21 Understandably, counsel for the applicant did not submit that the Tribunal was obliged to find that the work-related character of the function ceased on the dot of 3.50 or 4.00 pm. That being so, the applicant's case has to be that the only finding open to the Tribunal was that at some unspecified time after 4.00 pm but (well) before 5.30 or 6.00 pm, and without any announcement or other identifiable event, the character of the function changed. This argument must be rejected.


case_outcome: distinguished

case_text: Counsel for the applicant relied on Hatzimanolis v ANI Corporation Limited [1992] HCA 21 ; (1992) 173 CLR 473. But, as the Tribunal correctly observed, that case was concerned with quite a different situation, where the worker's injury was sustained in an "interlude or interval occurring within an overall period or episode of work" as distinct from "after the day's work has ceased" (see at 483 and the discussion by Cooper J in Gregory at 200-202). The question in the present case is whether the day's work had ceased before the respondent mounted his motor cycle or, more correctly, whether it was open to the Tribunal to find it had not.


case_outcome: referred to

case_text: In response to this, counsel for the Minister relied on the decision of Besanko J in Beyazkilinc v Manager, Baxter Immigration Reception and Processing Centre [2006] FCA 1368 ; (2006) 155 FCR 465. In that case, Besanko J decided that the question of "reasonable practicability" under s 198(6) , which question may include an assessment of the relevant non-citizen's physical and/or mental health, is not a jurisdictional fact which conditions the existence of the duty in that provision of the Act . The difficulty for the applicant in that case was that the jurisdictional error was not pleaded in the Statement of Claim because the case proceeded on the assumption that it was sufficient to allege that it was not reasonably practicable, as a matter of fact, to remove the applicant from Australia. His Honour did not consider that was a sufficient ground. On this point, Mr Asaad submits that the present case gives rise to issues different to those canvassed by Besanko J, and that Beyazkilinc [2006] FCA 1368 ; 155 FCR 465 is therefore not determinative in this application. 16 As I have decided to transfer the proceeding to the Federal Magistrates Court (see below at [19]-[22]), it is not necessary for me to make a final determination in this case as to whether this Court has jurisdiction to hear and determine Mr Asaad's application. I shall, however, make some brief comments on the submissions advanced before me. 17 As noted above at [10], s 5E of the Act provides that a purported privative clause decision is a decision purportedly made, proposed to be made, or required to be made under the Act , which would be a privative clause decision except for the fact that there was a failure to exercise jurisdiction or an excess of jurisdiction when the decision was made. The word "decision", as it is defined in s 474(3) , includes a determination as to whether it is reasonably practicable to remove a person pursuant to s 198(6). Moreover, in light of s 5E of the Act , if the decision under s 198(6) is affected by error (whether by not determining a jurisdictional fact or by some other means), it still "purports" to be a decision and thus is properly described as a "purported privative clause decision". In other words, a decision of administrative character for the purposes of s 474(2) of the Act will have been made, or at least purportedly made. In this case, the decision of an administrative character is the decision that it is reasonably practicable to remove Mr Asaad from Australia. The fact that this decision is impugned as erroneous does not enliven jurisdiction in this Court which is otherwise excluded by s 476A. 18 On the basis of this reasoning, it seems reasonably clear to me that this Court does not have jurisdiction to hear and determine the application. However, even if it were to be eventually found that this Court did have jurisdiction to hear the matter, I am of the view that the convenient and expedient course is to transfer the matter to the Federal Magistrates Court, which undoubtedly has jurisdiction. This is preferable because it shall avoid the risk, which may arise if I proceed to determine the issues raised, of involving the parties in future disputes as to the jurisdiction of this Court. It is appropriate not to address the jurisdictional question, at least insofar as the present application before this Court is concerned, as this is a matter for the Federal Magistrate. It is also not necessary to consider whether the reasonable practicability of a non-citizen's removal is a jurisdictional fact in s 198(6) of the Act . 19 This Court has power under s 32AB of the Federal Court of Australia Act 1976 (Cth) and O 82 r 7 of the Federal Court Rules to transfer a proceeding from this Court to the Federal Magistrates Court on the application of a party or on its own initiative. In deciding whether to transfer a proceeding to the Federal Magistrates Court, this Court is directed by O 82 r 7 to several factors, which it may take into account. These include: whether the proceeding is likely to involve questions of general importance such that it would be desirable for there to be a decision of this Court; whether, if transferred, the proceeding is likely to be determined at less cost and more convenience to the parties; whether, if transferred, the proceeding is likely to be heard and determined earlier; and whether the parties desire the transfer. 20 In this case, I am satisfied that the above considerations, on balance, favour transferring the proceeding to the Federal Magistrates Court, thereby avoiding unnecessary delay and expense resulting from disputes concerning jurisdiction. 21 I note that during argument as to whether the Court ought to transfer the matter to the Federal Magistrates Court, a question arose as to whether this Court has power to remit a "proceeding" to the Federal Magistrates Court where this Court does not have jurisdiction due to the absence of a federal "matter". In my view, the expression "proceeding" in s 32AB of the Federal Court of Australia Act 1976 (Cth) is distinct from the expression "matter" (as used in s 39B(1) of the Judiciary Act 1903 (Cth)) and is sufficiently wide to encompass the present dispute between the parties. I therefore consider that the Court has power to, and should, transfer the proceeding notwithstanding any doubt which may exist as to its jurisdiction to hear and determine the application. 22 Accordingly, I order that this proceeding be transferred to the Federal Magistrates Court. The costs to date shall be costs in the cause. I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin. Associate: Dated: 14 July 2008 Counsel for the Applicant: Mr S. Prince Solicitor for the Applicant: SBA Lawyers Counsel for the Respondent: Mr G. Kennett Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 25 June 2008 Date of Judgment: 14 July 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1039.html


case_title: Duffy v Construction, Forestry, Mining & Energy Union (No 2) [2009] FCA 299

case_text: are three instances of similar previous conduct by the Union involving breaches of s 38 ; see Stuart-Mahoney, Temple v Powell [2008] FCA 714 ; (2008) 169 FCR 169 and Duffy v Construction, Forestry, Mining and Energy Union (No 2) [2009] FCA 299. Although the relevant conduct in Temple , concerned breaches by the Western Australian Branch of the Union of s 38 of the Act, nevertheless the conduct is previous relevant conduct; see Williams v Construction, Forestry, Mining and Energy Union (No. 2) [2009] FCA 548 per Jessup J at [22] [25], see also Temple per Dowsett J at [63]. The second respondent has not engaged in any similar previous conduct. In contrast to the circumstances in Stuart-Mahoney, Temple and Duffy (No 2) , the respondents' conduct on 6 October 2006 was of limited duration and impact and penalties at the lower end of the scale are appropriate.


case_title: Stuart-Mahoney v Construction, Forestry, Mining & Energy Union [2008] FCA 1426

case_text: factors relevant to a penalty for a contravention of the Act have been thoroughly discussed by this Court; see, eg, Stuart-Mahoney v Construction, Forestry, Mining and Energy Union [2008] FCA 1426 per Tracey J at [40] and citations therein. As Tracey J observed in Stuart-Mahoney at [40], the relevant considerations include: The respondents' conduct consisted of a brief stop work meeting and a short-lived ban on crane work. Crane work at the Site was only affected for 90 minutes and during this time the Sergi employees continued to perform other work at the Site. The ban and stop work meeting did not significantly disrupt work at the Site and any loss or damage caused was minimal. Given the brief period of time in which the ban and stop work meeting occurred, and the interrelationship between the two events, it is appropriate to regard the stop work meeting and subsequent ban as a single course of conduct giving rise to a single contravention; see s 36(3) of the Act.


case_title: Minister for Industry, Tourism & Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72

case_text: light of the parties' agreement as to the appropriate penalties to be imposed, the relevant question for this Court is whether the agreed penalty is "appropriate in all the circumstances"; see Minister for Industry, Tourism and Resources v Mobil Oil Australia Pty Ltd [2004] FCAFC 72 per Branson, Sackville and Gyles JJ at [51]. The penalties are not inappropriate merely because I would have imposed different figures. Rather, the penalties agreed by the parties must be within the permissible range of penalties for such a contravention; see Mobil Oil at [51] and [54]. The Court must still consider the factors relevant to the contraventions by the respondents to determine the permissible range of penalties for the contraventions. An agreed penalty must adequately give effect to general and specific deterrence; Mobil Oil at [69]. Despite the limited duration and impact of the ban and stop work meeting, the imposition of penalties is appropriate in order to provide general and specific deterrence. Although the respondents may have held legitimate health and safety concerns, other avenues were available to the respondents to address these concerns in a lawful manner; see Duffy (No 2) at [18]. In light of these factors, I am satisfied that the agreed penalties proposed by the parties are sufficient to provide both general and specific deterrence. In view of considerations discussed, I consider that the appropriate range of penalty is in the lower to medium range for the contravention of the Union and that the penalty agreed by the parties is appropriate in all the circumstances. I do have some concerns about imposing a monetary penalty on the second respondent for performing his job in accordance with the approach to industrial relations taken by his employer, the first respondent, in circumstances where that respondent has had a monetary penalty imposed on it. The penalty on the second respondent is within the permissible range, albeit at the upper end of that range. That is especially so where no prior contravention is alleged against the second respondent. Absent the parties' agreement I would not have imposed a penalty in that amount on the second respondent but as the agreed penalty is within the permissible range, albeit barely, I will order accordingly. The parties have agreed that each should bear his and its own costs of the proceeding. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall. Associate: Dated: 29 July 2009 Counsel for the Applicant: Mr J Bourke Solicitor for the Applicant: DLA Phillips Fox Counsel for the Respondents: Mr C Dowling Solicitor for the Respondents: Construction, Forestry, Mining and Energy Union Date of Hearing: 15 July 2009 Date of Judgment: 29 July 2009 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/787.html


case_text: It is not necessary to resolve that issue as, in my opinion, the objection cannot succeed in the face of the decision of the Full Court in Laing v Carroll [2005] FCAFC 202 ; (2005) 146 FCR 511 which concerned the operation of the predecessors to s 169 of the Act, namely, s 83BH and s 86 of the Act as it stood in 2003. The sections cannot be distinguished in substance and the reasoning in Laing [2005] FCAFC 202 ; 146 FCR 511 is directly applicable to the present circumstances. Lander J gave the leading judgment on this point (at [246] [286]). Kenny J agreed (at [82]) but added some observations of her own on this point ([90] [93]). On this reasoning, the powers in question are not spent, even by the institution of civil penalty proceedings. It seems that Spender J would agree ([76]). There is no need for me to repeat the analysis of the authorities to be found in those judgments. I would only add a reference to the judgment of Merkel J in Health Insurance Commission v Freeman (1998) 88 FCR 544 at 558 560 (agreed with by Von Doussa J and Carr J). The argument is weaker in this case than in Laing [2005] FCAFC 202 ; 146 FCR 511 as the proceeding had not been commenced at the time of the interviews. It can be concluded that a decision in principle to commence the proceeding had been taken by 2 December 2006. That is not incompatible with the necessity for completion of the investigation prior to actual commencement of the proceeding. I should add that there is no basis here for an argument that the interviews constituted a contempt of court. The evidence was not illegally obtained.


case_text: the contention that cl 869.214 was invalid because it was uncertain, Smith FM said: The applicants' submissions referred to a statement by Starke J in Brunswick Corp v Stewart [1941] HCA 7 ; (1941) 65 CLR 88 at 97, cited by Weinberg J in Vanstone v Clark at [143]. This suggests that delegated legislation could be held invalid because it is " uncertain, that is, does not contain adequate information as to the duties of those who are to obey it ... or is unreasonable, that is, in this connection, so oppressive or capricious that no reasonable mind can justify it". The applicants argued that there was uncertainty or unreasonableness in the test of 'not generally acceptable in Australia', because it lacked a meaningful identification of the standards of 'acceptability' for business activities which were to be applied by a decision-maker. As a consequence, it was conceivable that decision-makers might apply their own idiosyncratic standards, and might penalise behaviour which was trivial or not deserving of the withholding of a visa. 26. However, I do not accept these arguments. ... In my judgment, the Federal Magistrate was correct to reject the contention that cl 892.214 was invalid because it did not contain adequate information as to the duties of those who are to obey it: cf City of Brunswick v Stuart [1941] HCA 7 ; (1941) 65 CLR 88 and Evans v New South Wales [2008] FCAFC 130 ; (2008) 168 FCR 576 , at 579 and 597.


case_title: Ireland v Wilson (1936) All ER 358

case_text: J also referred to Ireland v Wilson (1936) All ER 358 , where a by-law which provided "Every driver of a motor hackney carriage shall when working or plying for hire ... conduct himself in a proper civil and decorous manner at all times" was held to be valid. His Honour noted, at [53]: ... there are many examples of criminal laws which depend upon judgment: dangerous driving and manslaughter by negligent conduct come easily to mind. Refshauge J concluded that reg 2.1 was not invalid, as being uncertain.


case_text: J, as he then was, in King Gee Clothing Company Pty Ltd v Commonwealth [1945] HCA 23 ; (1945) 71 CLR 184 ( King Gee ) said, at 195: I am unaware of any principle of law or of interpretation which places upon a power of subordinate legislation conferred upon the Governor-General by the Parliament a limitation or condition making either reasonableness or certainty indispensable to its valid exercise. Dixon J did acknowledge in King Gee that a regulation could be invalid if it provided a standard according to a fact that was not ascertainable. The High Court held in King Gee that the regulation, properly construed, was incapable of determining a price for outwear clothing which was what the empowering Act required the regulation to do. As a consequence, it was held that the regulation was invalid.


case_title: Merrell v Roberts (1909) 26 WN (NSW) 73

case_text: J referred to Merrell v Roberts (1909) 26 WN (NSW) 73 , which held that a regulation which prohibited driving "at such rate of speed ... or in a manner as to ... frighten or injure any ... animal" was held not to be uncertain. Refshauge J said: The court held that it was not difficult for a court to consider whether under the circumstances of the case the vehicle was being driven at such a speed.


case_text: for the appellants referred also to the judgment of Refshauge J in R v Goreng-Goreng [2008] ACTSC 74 ; (2008) 220 FLR 21. That case was concerned with the validity of a regulation, reg 2.1(3) of the Public Service Regulations 1999 (Cth). Regulation 2.1(3) prohibited the disclosure of information which Australian public service employees had obtained or generated in connection with their employment, where it was: ... reasonably foreseeable that the disclosure could be prejudicial to the effective working of government, including the formulation or implementation of policies or programs. His Honour held that the description of what information should not be permitted to be disclosed, by reference to the "effective working of government", did not invalidate the regulation on the ground of uncertainty.


case_text: I do not consider that the documents identified in categories 7 and 8 are "necessary" within the terms of O 15 r 15 or Practice Note 14. Nor are they "directly relevant" to the proceeding: Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd [2005] FCA 366 at [21] [23] per Lindgren J. The issues in this proceeding are different from those in the Cadbury proceeding. Such overlap as does exist is not sufficient to warrant the orders. To the extent that the documents are sought on the issue of damages, I do not consider they are relevant or necessary. As was submitted by the respondents, any relevant documents are already covered by existing orders so that what is really sought is nothing more than the right to "fish" for further material.


case_text: background to the claim for the first six categories is to be found in two judgments of Tamberlin J, Jarra Creek Central Packaging Shed Pty Ltd v Amcor Ltd [2007] FCA 1559 ; Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60. Tamberlin J was the docket judge for the matter before he reached the age of Constitutional retirement on 31 March 2009.


case_title: Jarra Creek Central Packaging Shed Pty Ltd v Amcor Limited [2009] FCA 60


case_text: essence of Professor Rubinfeld's further evidence is that the material provided to date does not have sufficient coverage or detail to enable him to conduct a reliable analysis. There was some criticism by counsel for the Amcor and Visy respondents of the nature of Professor Rubinfeld's evidence. However, I am satisfied that it does demonstrate that the discovery of data for a wider period than that ordered by Tamberlin J is "necessary in the interests of a fair trial": Trade Practices Commission v CC (New South Wales) Pty Limited (No 4) (1995) 58 FCR 426 at 436 per Lindgren J. The "clean period" data which is sought places some emphasis on the post-cartel period. This is because of the inadequacy of the pre-cartel data discovered to date. Although Professor Rubinfeld accepts that it is preferable to analyse data for the period prior to the formation of the cartel, he says that in the absence of such data, post-cartel material takes on an even greater importance. Although some post-cartel material, namely from November 2004 to May 2006 has already been produced, Professor Rubinfeld says that this is "highly unlikely" to be sufficient. I accept this evidence and the reasons given for it, including the difficulties associated with the lingering effects of cartel behaviour.


case_title: S 58 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 85 ALD 492


case_text: The Magistrate found that Mr Han advised the appellant not to attend the Tribunal and so he did not go. The Magistrate found that the appellant would have gone to the hearing if he had been told that his attendance was necessary or useful. The Magistrate found that the Tribunal was in no way aware that the appellant had been misled by Mr Han and he said that there was no evidence that 'the Tribunal was aware of any suspicious circumstances about the migration agent'. The Magistrate said that the appellant had followed the advice of his migration agent and could not now complain that the Tribunal fell into error as a result. He referred to the decision of the Full Court of this Court in S58 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 283. The Magistrate said that there was no evidence of fraud in the case and he said that in the absence of 'some exceptional circumstance' like fraud, there is no jurisdictional error where there is no defect in the Tribunal's decision-making process. The Magistrate said that the decision of the House of Lords in Al-Mehdawi v Secretary of State for the Home Department [1990] 1 AC 876 (' Al-Mehdawi ') was persuasive and should be followed. 27 I start with the submission which takes as its basis the allegation that the agent's conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word 'fraud' in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges' explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal's decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283. 34 There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFD E (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3 rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE . The appellant's alternative submission fails on this ground.


case_text: The Magistrate referred to s 422B(1) of the Act. He noted the decision of Gray J in Moradian v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1590 ; (2004) 142 FCR 170, but he said that he was not confident that the approach taken by Gray J 'is the preferred view any more' and referred to the decision in Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908.


case_title: Minister for Immigration and Multicultural and Indigenous Affairs v Katisat [2005] FCA 1908


case_text: I start with the submission which takes as its basis the allegation that the agent's conduct was fraudulent. In examining the authorities it seems to me that it is not always clear what is encompassed by the word 'fraud' in this context. It would include the making a false statement knowing it was false or engaging in conduct which deceives another, knowing that it would, or was likely to, have that effect. It could include other circumstances and some of the authorities suggest that circumstances may be sufficiently analogous to fraud to lead to the granting of relief. I refer by way of example to Lord Bridges' explanation in Al-Mehdawi (at 895-896) of the basis of the Court of Appeal's decision in R v Leyland Justices; Ex parte Hawthorn [1979] QB 283.


case_text: Even if I am wrong and the Magistrate erred in not making a finding of fraud, such a finding would not lead to the setting aside of the Tribunal's decision. The effect of fraud by a migration agent on a decision of the Tribunal was considered by the Full Court of this Court in the recent decision of Minister for Immigration and Multicultural Affairs v SZFDE [2006] FCAFC 142 (' SZFDE '). Applicants for a protection visa engaged a man who said he was a solicitor with a lot of experience in migration matters. Unbeknown to the applicants he had been struck off as a solicitor and deregistered as a migration agent. He told the applicants that they should not accept an invitation to appear before the Tribunal at an oral hearing because their application would be refused. He told them that he was going to write to the Minister on their behalf and he was concerned that if they appeared before the Tribunal they might say something inconsistent with what he said in the letter. He told them not to worry, that he was doing what was best for them. The Magistrate found that the agent had acted dishonestly and fraudulently. In other word s, his advice was not only bad, but also fraudulent. A majority of the Court (Allsop and Graham JJ) said that the fraud in that case did not provide a basis for setting aside the decision of the Tribunal. The Tribunal was not aware of the fraud and had complied with the Act in terms of extending an invitation to the applicants (ss 425 , 425A ). 30 Allsop J said that the decision of the Tribunal was not induced or affected by fraud (at [136]). Allsop J made the point that in the circumstances of the case before him the fraud was linked to the complaint that there had been a failure of procedural fairness. The complaint of a lack of procedural fairness could not succeed in light of ss 422B , 425 and 426A of the Act. Allsop J also said that it was not a case where it could be said that the statutory process was corrupted by fraud (at [139]). Graham J also dismissed the challenge based on fraud saying that even if there was fraud it was of no relevance (at [191] and [237]). 31 French J dissented. His Honour held that the fraud of the agent gave rise to a jurisdictional error on the part of the Tribunal, saying that the Tribunal made its decision (at [131]): '... blamelessly but pursuant to a process which, unknown to it, was compromised by third party fraud.' 32 On the basis of the majority decision in SZFDE the appellant's submission that the fraud of Mr Han (assuming, contrary to my earlier conclusion, that he was fraudulent) vitiates the decision must be rejected. 33 The appellant's alternative submission was that the agent's conduct led to a breach of the rules of procedural fairness and that that gave rise to a jurisdictional error. This submission raises two questions. First, absent the particular statutory context, is there what might perhaps be called a general rule that there is a breach of the rules of procedural fairness if a party fails to attend a hearing due to the erroneous advice of his agent? Secondly, if there is such a rule, does the particular statutory context negate the rule or the granting of relief. I realise that dividing the issue into two questions is somewhat artificial, but I think it does assist in the overall analysis. 34 There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFD E (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3 rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE . The appellant's alternative submission fails on this ground. 35 The submission would fail in any event because even if there was such a general rule it could not operate in the context of the provisions of the Act. Section 422B provides that Division 4 of Part 7 is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with. Section 425 requires that the Tribunal must invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review. That invitation was given in this case. Section 426A provides that where an applicant fails to appear in response to an invitation, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it. That is how the Tribunal decided to proceed in this case and it was entitled to do so. The conclusion that the statutory provisions allow no room for a claim that there was a breach of the rules of procedural fairness based on the erroneous advice of an applicant's agent was a conclusion reached by a majority of the Court in SZFDE (per Allsop J at [138] per Graham J at [237]-[239]). 36 The decision of the Tribunal did not involve jurisdictional error and the Magistrate's decision that the application was not competent was correct. 37 The appeal must be dismissed with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 3 November 2006 Counsel for the Appellant: B Zipser Counsel for the Respondent: G Kennett Solicitor for the Respondent: Phillips Fox Date of Hearing: 9 August 2006 Date of Judgment: 3 November 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1420.html


case_text: There are many cases in which the courts have considered whether, in the absence of fault on the part of the decision-maker, there can be a breach of the rules of procedural fairness. A number are discussed in the reasons for judgment of French J in SZFD E (see also Aronson, Dyer and Groves, Judicial Review of Administration Action (3 rd ed, 2004) pages 460-463). They can perhaps be placed in various categories depending on one or more of: the powers the Court was exercising; the status of the person at fault (ie, party's agent, other party to the proceeding or a third party); the nature of the conduct of the party at fault (ie, fraudulent or negligent); and the effect of the procedural departure. It seems fairly clear on the authorities that there can be a breach of the rules of procedural fairness in the absence of fault on the part of the decision-maker: Hot Holdings Pty Ltd v Creasy [2002] HCA 51 ; (2002) 210 CLR 438 per Gleeson CJ at 448 [22]. Equally, it seems clear on the authorities that there is no breach of the rules of procedural fairness if the fault leading to the procedural departure was that of the agent of the applicant for relief. That was the view of the House of Lords in Al-Mehdawi (supra) and of French J (at [101]-[103]) and Allsop J (at [138]) in SZFDE . The appellant's alternative submission fails on this ground.


case_text: Roche submitted that the October 2006, February 2007 and June 2007 decisions were so unreasonable that no reasonable person could have exercised the power in the way the Committee did ( Associated Provincial Picture Houses Limited v Wednesbury Corporation [1947] EWCA Civ 1 ; [1948] 1 KB 223). It also submitted that the decisions lacked a "legally defensible foundation" in their factual material and in logic ( Luu v Renevier (1989) 91 ALR 39); were capricious and irrational ( Tickner v Bropho (1993) 40 FCR 183 at 197-199) or were so at variance with the material before the Committee as to be unreasonable ( Fuduche v Minister for Immigration, Local Government and Ethnic Affairs (1993) 45 FCR 515). 116 The Committee accepted that its decisions are open to review under s 39B of the Judiciary Act on the ground of unreasonableness notwithstanding that the Court does not have jurisdiction to review those decisions under the ADJR Act . 117 Roche placed particular weight on the following statement in the record of reason concerning the Committee's February 2007 decision: Orlistat is currently only indicated for use in a relatively small group of patients with serious and significant weight problems (those with a Body Mass Index (BMI) greater than 27 with other serious diseases, or those with a BMI greater than 30), not for the general population who might wish to manage more minor weight issues. 127 For the reasons given above for rejecting the complaint of Wednesbury unreasonableness, I reject both of these contentions. 128 Roche submitted that each of the February and June 2007 decisions involved the exercise of a personal power at the behest of another person or the exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case. It placed reliance on the extract from the transcript of the February 2007 meeting of the Committee set out in [51] above. The significance of the statements made by Committee members as recorded in that extract from the transcript of the meeting is explained by documents produced by two Committee members in response to subpoenas served on them. 129 Shortly before the February 2007 meeting of the Committee, Mr James Galloway, the jurisdictional member of the Committee who represented Tasmania, advised Mr Roscoe Taylor, the Tasmanian Director of Public Health, that the Schedule 3 and Appendix H listing of orlistat was to be reconsidered at the Committee's February 2007 meeting and asked: "Do you wish to direct me on voting on this matter?" Mr Taylor responded: "Unless you have any arguments to the contrary, I would like Tasmania to strongly support rescheduling Orlistat to S4" .


case_text: The extent to which the rules of natural justice apply to decisions of the Committee under s 52D(2) is controlled by the relevant provisions of the Act and Regulations ( Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550 per Mason J at 577, Wilson J at 594, Brennan J at 609 and Deane J at 633). 138 As outlined above (see [19]-[20]) the Regulations require advance public notice to be given of a meeting of the Committee at which a decision is to be made concerning the scheduling of a substance. They do not require advance notice to be given of a decision to foreshadow consideration of the scheduling of a substance. The Regulations establish a regime for the receipt and consultation of public submissions both before and following a scheduling decision. A sponsor who seeks a scheduling decision concerning a substance will, it may be assumed, make a submission in support of the scheduling decision sought by it. Certainly Roche did in respect of the scheduling of orlistat. A scheduling decision does not come into effect until after the Committee has had the opportunity to consider the further submissions, if any, made in response to its decision by those who made submissions concerning the scheduling decision. A record of the Committee's reasons for the decision are to be publicly accessible. 139 In my view the statutory provisions which govern the exercise of the Committee's power under s 52D(2) of the Act do not disclose an intention that the exercise of that power is conditioned on sponsors of substances being given rights to be heard additional to the rights to make the submissions for which the Regulations provide.


case_text: The record of reasons of the Committee are "not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed" ( Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 ; (1996) 185 CLR 259 per Brennan CJ, Toohey, McHugh and Gummow JJ at 272). In particular, in the circumstances of this case, the different contexts in which the Committee evaluated the prevalence of obesity and other significant weight problems are important. 120 In February 2006 the Committee agreed to include orlistat in Appendix H on the grounds of potential public health benefit. It was then concerned to identify the total number of adults in Australia for whom orlistat might be indicated. By contrast, in February 2007 the Committee was concerned to review the current scheduling and Appendix H listing of orlistat in the context of criticism of its earlier decision. That criticism was based in large part upon the advertising of Xenical during the television program Australian Idol . The reference in the Committee's record of reasons of February 2007 to the "relatively small group of patients with serious and significant weight problems" is, in my view, to be understood as a reference to the relatively small proportion of the viewers of Australian Idol who were likely to have serious and significant weight problems. That is, it is to be understood as a reflection on the audience to which the Committee understood the advertisements to be directed. The Committee, it may be assumed, would have adopted a different approach had Roche directed the advertisement to an audience comprised mainly or significantly of overweight adults by, for example, placing the advertisements in a magazine directed to adults with weights problems. 121 For the above reasons, I do not accept that the reference in the Committee's record of reasons of February 2007 to a "relatively small group of patients with serious and significant weight problems" is suggestive of unreasonableness affecting the decision of the Committee.


case_text: As the Full Court observed in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855 ; (2001) 113 FCR 185 ("R G Capital" ) at 194 at [40], there is no simple rule for determining whether a decision is of an administrative or legislative character. At 194 at [44] the Court cited the following passage from the judgment of the Full Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit [(1943) [1943] HCA 44 ; 67 CLR 58] ; Hamblin v Duffy No 2 [34 ALR 333] and de Smith's Judicial Review of Administrative Action 4th ed, p 71. In Commonwealth v Grunseit , Latham CJ expressed ... the distinction in these terms: 'The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases'.


case_text: Additionally, it seems to me that the legitimacy of the Committee's apparent practice of not recording the number of votes cast for and against resolutions moved at its meetings is open to serious doubt. However, it was not contended in this case that the Act or Regulations disclose an intention that deficiencies in a record of proceeding of the Committee affect the validity of any conduct or decision of the Committee to which the record relates (see Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 ; (1998) 153 ALR 490). 68 The parties agreed that the best evidence available concerning the reasons for the June 2007 decision of the Committee to confirm the decision to remove orlistat from Appendix H is found in the draft minutes of that meeting. No ratified minutes of the meeting had come into existence at the time of hearing. The draft minutes record that the reasons of the Committee include: • that direct-to-consumer advertising had the potential to lead to inappropriate extent and patterns of use of orlistat outside its registered indications; • that direct-to-consumer advertising may adversely affect the ability of pharmacists to provide advice about other appropriate weight management strategies; • that there were concerns about the ability of direct-to-consumer advertising to accurately present information about the potential toxicity, safety, risks and benefits of orlistat and the specific indications for use; • that while acknowledging the need to address the problems of obesity in the Australian community, pharmacotherapy was not the first line of treatment for weight management and direct-to-consumer advertising had the potential to over-emphasise its role over those of lifestyle change; • that the safeguards that allowed inclusion in Schedule 3, such as education programmes for pharmacists and consumer information, did not remove the potential for direct-to-consumer advertising to adversely affect appropriate provision of orlistat; • that the changes to the wording of the Therapeutic Goods Advertising Code (TGAC) aimed at strengthening the requirements of advertising weight loss products had not sufficiently prevented messages promoting inappropriate use of orlistat and the Committee did not feel that the current TGAC was able to prevent advertising from over-emphasising the role of pharmacotherapy. • on balance, the NDPSC believed that direct-to-consumer advertising worsened the risk-benefit balance of access to orlistat and the committee felt it necessary to protect public health by preventing direct to consumer advertising. 69 The draft minutes summarise the Committee's June 2007 decision in the following way: In summary, after considering all post-meeting submissions, the [Committee] decided to confirm its February 2007 decision to revoke the Appendix H listing as, under section 52E of the Act and according to the NCCTG Guidelines, it is not appropriate for orlistat to be advertised direct-to-consumers.


case_text: As the Full Court observed in RG Capital Radio Ltd v Australian Broadcasting Authority [2001] FCA 855 ; (2001) 113 FCR 185 ("R G Capital" ) at 194 at [40], there is no simple rule for determining whether a decision is of an administrative or legislative character. At 194 at [44] the Court cited the following passage from the judgment of the Full Court in Minister for Industry and Commerce v Tooheys Ltd (1982) 42 ALR 260 at 265: The distinction is essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases: Commonwealth v Grunseit [(1943) [1943] HCA 44 ; 67 CLR 58] ; Hamblin v Duffy No 2 [34 ALR 333] and de Smith's Judicial Review of Administrative Action 4th ed, p 71. In Commonwealth v Grunseit , Latham CJ expressed ... the distinction in these terms: 'The general distinction between legislation and the execution of legislation is that legislation determines the content of a law as a rule of conduct or a declaration as to power, right or duty, whereas executive authority applies the law in particular cases'. 28 In reaching a decision as to whether in exercising its powers under s 52D(2) of the Act the Committee was acting legislatively or administratively, it is necessary to have regard to considerations traditionally regarded as relevant for this purpose. Nonetheless, the task ultimately is an evaluative one; a judgment must be made taking into account all relevant considerations, but no single consideration is likely to be decisive ( RG Capital Radio at 194 at [42]). 29 In Visa International Services Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 424 at [592] Tamberlin J summarised the matters which were regarded as relevant in RG Capital Radio as follows: • Whether the decisions determined rules of general application or whether there was an application of rules to particular cases. • Whether there was Parliamentary control of the decision. • Whether there was public notification of the making of the regulation. • Whether there has been public consultation and the extent of any such consultation. • Whether there were broad policy considerations imposed. • Whether the regulations could be varied. • Whether there was power of executive variation or control. • Whether provision exists for merits review. • Binding effect.


case_text: In Visa International Services Association v Reserve Bank of Australia [2003] FCA 977 ; (2003) 131 FCR 300 at 424 at [592] Tamberlin J summarised the matters which were regarded as relevant in RG Capital Radio as follows: • Whether the decisions determined rules of general application or whether there was an application of rules to particular cases. • Whether there was Parliamentary control of the decision. • Whether there was public notification of the making of the regulation. • Whether there has been public consultation and the extent of any such consultation. • Whether there were broad policy considerations imposed. • Whether the regulations could be varied. • Whether there was power of executive variation or control. • Whether provision exists for merits review. • Binding effect.


case_text: Secondly, the learned Chief Justice indicated at 671 [36] that he did not propose to follow the decision of the Full Court of the Supreme Court of Western Australia in Bayview Holdings Pty Ltd (in liq) v Zan Holdings Pty Ltd (unreported, Supreme Court of Western Australia, Ipp, Wallwork and Steytler JJ, 19 October 1998). The Full Court had there adopted a somewhat liberal approach to materiality. It seems to me that a fair reading of the reasons of the Chief Justice is that the proper approach to materiality is the narrow one. For completeness, it should be noted that in my opinion two justices of this Court have approached the matter on the more narrow view and have certainly thought themselves to be implementing the position in Switz: see HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 [53] per French J; Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] - [45] per Besanko J. That would be sufficient for me to feel obliged to approach the matter on the same basis.


case_text: In terms, s 459S applies to prevent a party opposing a winding up application on a ground that the company could have relied upon for the purposes of setting aside a statutory demand but did not so rely. The meaning of that provision has been the subject of some consideration by the courts. Effectively, it has been interpreted to mean that the ground must be such that it was actually available to be asserted according to the facts and circumstances existing at the time of the winding up: see Perpetual Nominees Ltd v Masri Apartments Pty Ltd [2004] NSWSC 551 ; (2004) 49 ACSR 719 at 722-723 [9] per Austin J. 14 I accept that as a correct interpretation of s 459S(1). The question devolves therefore to one of whether it can be said as a matter of fact that the ground now sought to be relied upon by the defendant in opposing the winding up is a ground which was not, in fact, available. As Masri demonstrates at 723 [12], where there has been a change of premises without a corresponding alteration in the registered office, that test will ultimately require an examination of the issue of the reasonableness of the superintendence by the applicant of its registered office. 15 That is, one needs to ask whether the defendant applicant took reasonable steps to check its mail. Mr Stowe has submitted that the fact that the plaintiff was aware the defendant had moved its business premises is not material to what he submitted was an objective test. On the other hand, Mr Davidson submitted that knowledge by the plaintiff was significant for the purposes of the Masri test. I think that the submissions of Mr Stowe are to be preferred. The question posed by s 459S , it is to be borne constantly in mind, is a question of fact as to whether a particular ground was actually available. It seems to me that the subjective state of mind of the plaintiff, or its knowledge, simply does not go to that question. 16 Brought down to the level of how that applies when there has been a change of business premises without a corresponding alteration of a registered office, that seems to me to require an analysis which focuses simply on the reasonableness of the steps taken by the defendant company to check its mail. The knowledge of the plaintiff is irrelevant. That being so, it is pertinent to note that the evidence suggests that the defendant would have, if it had read its email, been aware that demands for moneys had been made upon the registered address. It certainly knew that after the statutory demand was served that the registered office still remained at its original location. 17 Mr Stowe submitted that, once one accepted that Mr Dwyer was so aware, it followed that he should have checked the registered office to see what had arrived. Had he done so, he would have discovered the statutory demand and that in that circumstance, s 459S could not apply. I accept that submission. Upon Mr Dwyer becoming aware in the terms to which he deposed in paragraph 11 of his affidavit, it was reasonable to expect of him that he would at least check to see what mail had arrived at that office; more is that so when, as Mr Stowe correctly submitted, the plaintiff was required by law to serve the statutory demand at that office.


case_text: Mr Davidson drew my attention to a decision of White J in Radiancy (Sales) Pty Ltd v Bimat Pty Ltd [2007] NSWSC 962 ; (2007) 25 ACLC 1216 where at 1226 [64] his Honour said this: The question is not whether the debt demanded by Radiancy (Sales) is determinative of Bimat's insolvency. The question is whether it is material to proving the company is solvent. If the debt is owed, the company is undoubtedly insolvent. If it is not owed, the company may be solvent if Mr Colosimo's evidence as to the payment of creditors is accepted. Accordingly, s 459S(2) is satisfied in relation to the grounds that Radiancy (Sales) is not a creditor, or that the alleged debt is genuinely disputed. (Emphasis added.) 23 Mr Davidson says that this paragraph is an acceptance of the more liberal view. I accept that is a construction which may be open. However, looking at the balance of his Honour's reasons, it does not appear to me that his Honour was turning his mind in explicit terms to that question. I doubt therefore, whether White J, actually intended to say that. Even if his Honour had, however, the decision of the Court of Appeal and the two decisions of the Judges of this Court to which I have referred make it appropriate that I adopt the narrow approach to materiality.


case_text: However, it seems to me that I should accept that the authorities show that "material" means that an applicant, under s 459S , must show that the debt in respect of which it is seeking leave is pivotal to the question of solvency. That is, the defendant must demonstrate that if the debt exists then the company will be insolvent and if the debt does not exist, then the company will be solvent. In my opinion, that is the better reading of the reasons of Spigelman CJ in Switz Pty Ltd v Glowbind Pty Ltd (2000) 48 NSWLR 661 at 674 [56]. I accept that, at first blush, paragraph [53] can be read the other way, however, for two reasons I do not think that passage should be so interpreted. 20 First, it is apparent, for the reasons given by the Chief Justice in that judgment at 673-674 [47]-[51] that the evident statutory intention which underpins s 459S is very much directed to diminishing, rather than expanding, the circumstances in which debts are to be debated. Put another way, as the Chief Justice demonstrated in that case, the previous situation which obtained prior to the introduction of the predecessor to s 459S , where it was common, frequent and unwelcome for debates about debts to take place at the time of the winding up petition, was to be expunged by that provision. It is consistent with that interpretation, or that understanding, of the intention underpinning 459S to interpret materiality in a way which is circumscribed. 21 Secondly, the learned Chief Justice indicated at 671 [36] that he did not propose to follow the decision of the Full Court of the Supreme Court of Western Australia in Bayview Holdings Pty Ltd (in liq) v Zan Holdings Pty Ltd (unreported, Supreme Court of Western Australia, Ipp, Wallwork and Steytler JJ, 19 October 1998). The Full Court had there adopted a somewhat liberal approach to materiality. It seems to me that a fair reading of the reasons of the Chief Justice is that the proper approach to materiality is the narrow one. For completeness, it should be noted that in my opinion two justices of this Court have approached the matter on the more narrow view and have certainly thought themselves to be implementing the position in Switz: see HVAC Construction (Qld) Pty Ltd v Energy Equipment Engineering Pty Ltd (2002) 44 ACSR 169 at 184 [53] per French J; Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376 at [43] - [45] per Besanko J. That would be sufficient for me to feel obliged to approach the matter on the same basis. 24 Before me this afternoon, Mr Davidson proffered a concession that, at least on the materials which were before the Court today, the existence of the debt was pivotal to its success. The defendant did not proffer that undertaking in a qualified sense: that is, the defendant did not submit in terms of s 459S that the ground was material to proving that the company was solvent. Rather, it was a hedged concession that for the purposes of the present application, the company was insolvent if the debt existed. It seems to me that when one has regard to the matters to which Spigelman CJ adverted in Switz that to permit such a concession to be sufficient for s 459S(2) purposes would be to contradict the apparent aim underpinning the legislation, namely, the ending so far as possible, of debates about the existence or otherwise of debts during the course of winding up proceedings. 25 In those circumstances, I do not regard that concession as making out materiality in the relevant sense. Against that possibility, Mr Davidson proffered what was termed in the course of argument, a conditional concession. The conditional concession was to the effect that if I came to a view that the reasoning in Switz meant that I had to take a narrow view of the meaning of materiality, and if I was of the view that the concession that had been proffered was not sufficient to make out that materiality, the defendant would concede that the existence or otherwise of the debt was pivotal to its solvency. [ There was brief discussion with counsel. ] 26 During the course of the delivery of my reasons for judgment, Mr Davidson proffered a concession that the debt in question was pivotal, in the sense I have just discussed, to the question of solvency of the defendant. It seems to me to follow that the test under s 459S(2) is satisfied. There were no other bases upon which it was said that leave should not be granted. In that circumstance it seems to follow from what has been conceded that the defendant should be granted leave. 27 The decision in Switz that materiality is established by showing that the contested debt is pivotal was supported by at least two Judges of this Court. Against that there was a Full Court decision in Western Australia which suggested to the contrary. But in the circumstances, it seems to me that the authorities were clearly in one direction on this issue and that had the concession been made at an earlier time the plaintiff would have, for obvious reasons, consented to a grant of leave. This means that this afternoon's hearing has been an escapade which has taken place as a result of the defendant not proffering the concession at an earlier time. 28 I will make orders accordingly. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 28 November 2008 Counsel for the Plaintiff: Mr HWD Stowe Solicitors for the Plaintiff: Brown Wright Stein Lawyers Counsel for the Defendant: Mr IE Davidson Solicitors for the Defendant: W Lawyers Date of Hearing: 7 November 2008 Date of Judgment: 7 November 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1777.html


case_title: Web Wealth Pty Ltd v Helimount Pty Ltd [2006] FCA 1376


case_text: In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P & O Cruises Australia Pty Ltd (formerly P & O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J).


case_text: In Australian Securities & Investments Commission v Money for Living (Aust) Pty Ltd (admin appted) & Ors (No.2) [2006] FCA 1285 , Finkelstein J described the factual background to these proceedings in the following terms: "Money for Living (Aust) Pty Ltd (admin apptd) ["MFL"] and MFL Property Holdings Pty Ltd (admin apptd) ["MFPL"] , by their directors, ... Stephen O'Neill, Gary O'Neill and Jolanta Olszewski - promoted a scheme that enticed home-owners, typically retirees or pensioners, to sell their homes in return for what the promoters described as a 'guaranteed' income and a 'guaranteed' right to live in their former home for life. Many people were induced to participate in the scheme. The idea was that the home-owners could free up and live off the equity that would otherwise be tied up in their family home. To the great misfortune of those people the scheme collapsed. The companies that purchased their homes (the purchaser was either MFL or MFLP) are insolvent and have had administrators appointed. The 'guaranteed income' is not being paid. For some, their life tenancy may be at risk." I will describe this as the 'MFL Scheme'. 3 Six home-owners of the kind described by Finkelstein J commenced these proceedings in the Federal Court of Australia against MFL, MFPL, the directors of MFL, Diakou Faigen, four third party investors and three lenders. 4 The applicants comprise a number of categories. Category A group members are those who, at the date of filing of the Application, had entered into Contracts of Sale of their property ("Contracts of Sale"), either Deeds or Deeds of Agreement ("Deeds of Agreement") and either Residential Tenancy Agreements or Deeds of Tenancy ("Leases") with MFL and remained registered proprietors of their respective properties. The first applicant is a member of this category. Category B group members are those who, at the date of filing of the Application, had entered into Contracts of Sale, Deeds of Agreement and Leases with MFL but the title to whose respective properties the subject of the Contract of Sale was registered in the name of MFL. The second and third applicants are members of this category. Category C group members are those who, at the date of filing of the Application, had entered into Contracts of Sale, Deeds of Agreement and Leases with MFPL and whose title to their respective properties the subject of the Contract of Sale was registered in the name of MFPL. The fourth to sixth applicants are members of this category. 5 Each of the applicants retained the thirteenth respondent, Diakou Faigen, to advise them prior to entry into the MFL Scheme and to prepare the necessary contract documentation to facilitate their entry into the MFL Scheme. As a consequence of the collapse of the MFL Scheme, the applicants suffered loss and damage. The applicants alleged that their losses and damages were caused by Diakou Faigen having breached its retainer and its duty of care and the fiduciary duties owed to the applicants.


case_title: Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311


case_text: In assessing a compromise under s 33V of the Act, the Court's task is an onerous one particularly in circumstances such as the present where the application is unoppossed: see Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678 at [16]. The Court is required: (1) to assess whether the proposed settlement or compromise is fair and reasonable and adequate having regard to the claims made on behalf of the group members who will be bound by the settlement: see Williams v FAI Home Security Pty Ltd (No 4) (2000) 180 ALR 459 at [19]; and (2) " to be satisfied that any settlement or discontinuance of representative proceedings has been undertaken in the interests of the group members as a whole, and not just in the interests of the applicant and the respondent ": Australian Competition and Consumer Commission v Chats House Investments Pty Ltd (1996) 71 FCR 250 at 258; Lopez v Star World Enterprises Pty Ltd [1999] ATPR 41-678 at [15] and Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134 at [30] and [31]. See also Neil v P & O Cruises Australia Pty Ltd (formerly P & O Holidays Ltd) [2002] FCA 1325 (Weinberg J) at [6] [7]; Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114 (Crennan J) at [10]; Courtney v Medtel Pty Ltd (No 5) (2004) 212 ALR 311 (Sackville J) at [37] [42]) and Georgiou v Old England Hotel Pty Ltd [2006] FCA 705 at [18] (Young J). 19 In Darwalla Milling Co Pty Ltd v F Hoffman-La Roche Ltd (No 2) (2007) ATPR 42-134, Jessup J said that because s 33V of the Act identified no criteria by reference to which the court should approve, or should decline to approve, a particular settlement, he could see no particular warrant for incorporating into Pt IVA of the Act the requirements of rules of court in an overseas jurisdiction. Similarly, Jessup J stated that although the notion that a settlement should be 'fair and reasonable' seemed unobjectionable as a matter of principle, if that consideration was to inform the process of approval under s 33V, it should be because of its harmony with the scheme of Pt IVA of the Act and because it tended to achieve the implicit object of the section. Having stated those qualifications, Jessup J stated (at [40]) that he was minded to decide the matter before him: "by reference to the question whether the proposed settlement [was] fair and reasonable in the interests of group members as a whole, but ... approach[ed] the question of 'adequacy' with some caution."


case_title: Georgiou v Old England Hotel Pty Ltd [2006] FCA 705


case_text: In my view, the analysis undertaken by Goldberg J is not properly to be read as seeking to 'incorporate' into Pt IVA of the Federal Court Act the requirements of Rules of Court in an overseas jurisdiction. The analysis provided and continues to provide a useful guide in considering applications for approval under s 33V of the Act: see most recently Gillard J in Harrison v Kerrili Pty Ltd (trading as Diakou Faigen) (Unreported, Supreme Court of Victoria, 6 June 2007). It should, in appropriate cases and subject to the circumstances of any particular case, continue to be employed as a useful guide.


case_title: Jarrama Pty Ltd v Caltex Australia Petroleum Pty Ltd [2004] FCA 1114


case_title: Lopez v Star World Enterprises Pty Ltd (in liq) (1999) ATPR 41-678


case_title: Neil v P & O Cruises Australia Pty Ltd (formerly P & O Holidays Ltd) [2002] FCA 1325