case_text: Where the Tribunal was unable to be satisfied upon the material before it that the appellant's claims are genuine it has no duty to make further enquiries: Minister for Immigration & Multicultural Affairs v SGLB [2004] HCA 32 ; (2004) 207 ALR 12; VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459 at [27] ; WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277 at [21] , [24]-[25]; W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407 at [74] - [78] ; NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528 at [18] - [21] .


case_outcome: cited

case_text: As to the merits, in my opinion, the proposed second ground cannot succeed. I accept the submissions of the first respondent which were to the following effect. The appellant was given the opportunity to appear before the Tribunal and put such information before it as she wished. In circumstances where the appellant failed to attend her hearing, she cannot complain if her application was rejected because amongst other reasons, she failed to take up the opportunity: S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283 at [26] . See also NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 346 at [10] - [12] , upheld on appeal in NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287 at [5] ; SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214. There is no substance to her claim that the Tribunal failed to consider the information in the appellant's case. The Tribunal was simply not satisfied as to the applicable criteria: Minister for Immigration & Multicultural & Indigenous Affairs v VSAF of 2003 [2005] FCAFC 73 ; SJSB v Minister for Immigration [2004] FCAFC 215 ; and SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457.


case_title: NAVX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 287


case_title: NAYU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 528


case_text: It is no part of the duty of the decision-maker to make the applicant's case for him: Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155 at 169-170. I do not accept that the Tribunal failed to carry out any duty, as contended for by the applicant, to demonstrate that the applicant did not face a risk of being persecuted if she was returned to China. No such duty exists as a matter of law. This ground discloses no error of law.


case_title: S58 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 283


case_title: SJSB v Minister for Immigration [2004] FCAFC 215


case_title: SZBCS v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1457


case_title: SZDJT v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 214


case_text: This necessitates reference to a number of considerations namely, the appellant's prospects of success on the appeal on the new argument, the explanation given by the appellant for failing to raise the argument before the primary judge, the prejudice to the respondent in allowing the appellant to raise the new argument, the potentially serious consequences to the appellant if leave to amend is refused, and the integrity of the appellate process: VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74 ; (2003) 129 FCR 168 at 177 [26] .


case_title: VCAK of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 459


case_title: WAGJ of 2002 v Minister for Immigration & Multicultural Affairs [2002] FCAFC 277


case_title: W389/01A v Minister for Immigration & Multicultural Affairs [2002] FCAFC 432 ; (2002) 125 FCR 407


case_outcome: referred to

case_text: It is well recognised that the Court may allow a ground of appeal even where that ground was not raised in the Court or Tribunal below but only where all of the relevant facts have been established beyond controversy or where the point is one of construction or a point of law: Water Board v Moustakas (1988) 77 ALR 193 at 196; Federal Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451; Cubillo v Commonwealth [2001] FCA 1213 ; (2001) 183 ALR 249. The first respondent conceded that the point could not have been met by any evidence had it been raised below but that the proposed ground was without merit and accordingly leave should be refused. It is necessary therefore to consider whether it is "expedient in the interests of justice" to allow the new ground to be argued and determined: H v Minister for Immigration & Multicultural Affairs [2000] FCA 1348 at [6] .


case_outcome: considered

case_text: The discretion to order security for costs is a very broad one: Lucas v Yorke (1983) 50 ALR 228. The authorities have identified a number of factors relevant to the exercise of the discretion. I refer, by way of example, to the discussion by Beazley J in KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189 at 196-198, French J in Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 1334 at [28] , Hill J in Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972 and Jessup J in Acohs Pty Ltd v Ucorp Pty Ltd [2006] FCA 1279 ; (2006) 155 FCR 181 at 183-186 [7] - [12] .


case_text: As to the fourth matter, the applicant has not established that the litigation will be stifled if an order for security for costs is made. The onus is on it to do so: Bell Wholesale Co Ltd v Gates Export Corporation (1984) 2 FCR 1. While it has been established that it will not be able to pay the respondents' costs if they are successful in their defence it has not been established that those who stand behind the applicant cannot provide security. As I have said, no evidence as to the financial position of Mr Stewart has been put before me. 36 As to the fifth and sixth matters, in view of the order which I have made, it is not necessary for me to say anything more about those factors. 37 As to the seventh matter, it is not relevant here.


case_title: Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2004] FCA 1334


case_text: In this case the first matter, namely, the delay in bringing the application is a very significant matter. There is no doubt the respondents were aware of the Court's power to make an order for security for costs and, indeed, they raised the issue with the applicant's former solicitor in March 2006 and with the applicant's present solicitor in October 2006. The applicant's financial statements could have been obtained by the respondents from October 2006. The application for security was not brought until less than two weeks before the first adjusted trial date. The fact that that trial date has now been changed to 13 August 2007 is relevant but, in the end, I do not think that it detracts in any significant way from the importance to be attached to the respondents' delay. The respondents submit that any delay on their part cannot be decisive of their application and, in fact, in the absence of prejudice, is of minimal significance. They referred to Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Unreported, Supreme Court of New South Wales, Hunter J, 7 November 1995); Clarence Street v ISIS Projects Pty Ltd [2007] NSWSC 380. In Clarence St , McDougall J said (at [22]): "The authorities, I think, on a proper analysis also make it plain that delay is not to be looked at in the abstract. What is important is whether, assuming that delay has been shown, such delay causes actual prejudice to the party against whom the order is sought. Even if prejudice is shown, the application need not fail; but unless it is shown, the significance of delay as a countervailing factor disappears. See the decision of Hunter J in Hughes Bros Pty Limited v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (7 November 1995, unreported; BC 95079079)."


case_outcome: applied

case_text: In my opinion, it would cause prejudice to the applicant and be quite unfair to it to make an order for security for costs by way of a cash deposit or bank guarantee at this late stage. To my mind, that is a sufficient reason to refuse the application insofar as it seeks security of that nature. However, having regard to the matters outlined below, it does not stand in the way of an order that the party who will benefit from the proceeding if it is successful, Nicholas Jules Stewart, be required to provide a personal guarantee whereby he guarantees the payment of any costs the applicant is ordered to pay the respondents and incurred by the respondents on or after 5 July 2007. I realise that I have conducted no inquiry into Mr Stewart's financial position and his ability to meet a costs order, but I do not think that that means that such a guarantee cannot constitute a form of security: Clyde Industries Ltd v Ryad Engineering Pty Ltd (1993) 11 ACLC 325 at 328 per Rowland J (see also the discussion in Dal Pont at 964-965 [29.28]-[29.29]). In any event, if such a guarantee is worthless, that would be a reason to refuse an order for security for costs because the proceedings would otherwise be stifled. 32 My conclusions have been reached not only in the context of the delay, but also having regard to the other factors which I turn now to address. 33 As to the second matter referred to in [27], I am satisfied that the applicant's claim is bona fide. However, I am not prepared to go any further than that because there are a number of contested issues and, in those circumstances, it would be inappropriate for me to comment on the merits of the applicant's claim.


case_title: Equity Access Ltd v Westpac Banking Corporation (1989) ATPR 40-972


case_title: Hughes Bros Pty Ltd v Trustees of the Roman Catholic Church for the Archdiocese of Sydney (Unreported, Supreme Court of New South Wales, Hunter J, 7 November 1995)


case_text: I will not recite the details of all the interlocutory steps taken in the proceedings. However, two should be mentioned. On 4 April 2007 I refused an application by the applicant for summary judgment on part of its claim: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd [2007] FCA 489. In May 2007 I dealt with an application by the respondents for a stay or dismissal of the proceedings by reason of non-compliance by the applicant with various orders of the Court. The details of the application are set out in my reasons on a question of costs: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903.


case_title: Jianshe Southern Pty Ltd v Turnbull Cooktown Pty Ltd (No 2) [2007] FCA 903


case_text: This is an application by the respondents by notice of motion for an order for security for costs. The application is brought pursuant to s 1335 of the Corporations Act 2001 (Cth) or s 56 of the Federal Court of Australia Act 1976 (Cth), or both. There is no dispute that it appears by credible testimony that there is reason to believe that Jianshe Southern Pty Ltd, the applicant in the proceedings, will be unable to pay the respondents' costs if they are successful in their defence. In those circumstances, similar factors are relevant to whether an order for security for costs should be made whether the application be considered under s 1335 of the Corporations Act 2001 (Cth) or s 56 of the Federal Court of Australia Act 1976 (Cth): Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248 per Hill J. 2 The respondents seek an order that the applicant provide security for their costs by way of a bank guarantee in the sum of $250,000. They seek an order that if the security is not provided, the applicant's proceeding should be stayed or dismissed. The respondents have brought a cross-claim against the applicant but, on the hearing of their notice of motion, they have indicated that if security is granted they will not pursue the cross-claim. 3 On 16 July 2007 I made the following order: "Nicholas Jules Stuart [sic] on or before 23 July 2007 provide a personal guarantee to the respondents whereby he guarantees the payment of any costs the applicant is ordered to pay the respondents and incurred by the respondents on or after 5 July 2007 up to a sum of $200,000.00." My reasons for making that order follow.


case_title: KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189


case_title: Lucas v Yorke (1983) 50 ALR 228


case_text: It was put by the cross-claimant that the cross-claimant will need only to establish that the cross-respondent's conduct was "a cause" of the cross-claimant's damages: I&L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd [2002] HCA 41 ; (2002) 210 CLR 109. The cross-claimant, of course, will not have to establish that the cross-respondent's conduct was the only cause. The question will be whether the contravention was a cause of the cross-claimant's loss. However, the plea as it presently stands allows the cross-respondent to say that the issue whether the cross-respondent's conduct was "a cause" has been raised and, in those circumstances, documents which might be adverse to the cross-claimant's case should be discovered. 17 For those reasons, I made the order to which I have already referred. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 19 February 2008 Counsel for the Applicant/Cross-Respondent: Mr B Caine SC with Mr G Tye Solicitor for the Applicant/Cross-Respondent: Johnson Winter & Slattery Counsel for the Respondent/Cross-Claimant: Mr R Whitington QC with Mr M Evans and Mr C Beames Solicitor for the Respondent/Cross-Claimant: Norman Waterhouse Date of Hearing: 20 December 2007 Date of Judgment: 19 February 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/87.html


case_text: conclusion requires that the application for leave to appeal from that interlocutory decision should be dismissed. Neither of the limbs in Decor Corporation Pty Ltd v Dart Industries Inc (1991) 104 ALR 621 has been made out in the present case. In summary, there is not sufficient doubt about the Federal Magistrate's decision to warrant it being reconsidered by the Federal Court. The applicant, apart from evincing her unhappiness that the Federal Magistrate's decision was adverse to her, has not identified any error in that decision. It is plain also that no substantial injustice will result from the refusal of leave. In those circumstances the application for leave should be dismissed with costs to be taxed, if not agreed. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender. Associate: Dated: 11 August 2006 The Appellant appeared in person Solicitor for the Respondent: Ms Therese Quinn, Phillips Fox Date of Hearing: 7 August 2006 Date of Judgment: 7 August 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1044.html


case_outcome: followed

case_text: Also, in Official Trustee in Bankruptcy v Raeffaele, in the matter of Tindaro Raeffaele [2003] FCA 328 , Allsop J was satisfied that it was appropriate to make an order under s 146 notwithstanding the fact that the bankrupt was plainly solvent. In that case, the bankrupt had nearly $200,000 in cash in a bank account and two properties. The total value of creditors was a little over $3,000. His Honour said at [7] that he had thought it might be appropriate to identify as a condition of making the order that further attempts be made to notify the bankrupt of the orders and to stay them for a period of time. However, his Honour went on to say that given the respondent's "total lack of interest in his own bankruptcy" and the small amount owing to the creditors, such a course would only act to the bankrupt's further disadvantage and would delay the creditors in the receipt of funds that were due to them. 13 Clearly enough, these two authorities establish that in a case such as the present, the only appropriate course is to make an order under s 146. For the reasons mentioned by Allsop J in Raeffaele , I am satisfied that there is no point in staying the order. Nor would I impose as a condition of the order that further steps be taken to notify the bankrupt of these orders. 14 Nevertheless, I have been informed that the trustee is anxious to complete the administration of the bankruptcy as soon as possible. It is plain that in view of the substantial surplus of assets, an annulment order would ordinarily be made but it is important for the bankrupt to understand that the bankruptcy cannot be annulled until she files her statement of affairs. Once this is done, control of the respondent's affairs can be returned to her. 15 I have been told from the bar table that steps will be taken to try to notify the respondent of this but as I have said, I do not consider it appropriate to make this a condition of the order. This is because the respondent's unfortunate situation has been brought about entirely by her refusal to take any interest in her own affairs thereby leaving the petitioning creditor and subsequently the Trustee in the position in which they now find themselves. 17 The form of these orders follows the form adopted by Spender J and Allsop J in the matters referred to above.


case_text: A similar situation arose in the matter of Rees (Trustee) in the matter of Stubberfield v Stubberfield (Bankrupt) [1999] FCA 1862. In that case, Spender J observed at [17] that it was apparent that the bankrupt was solvent, but his Honour was satisfied that that circumstance was not a matter which would have prevented the making of a sequestration order. He said it was a matter which the Court would have had regard to in considering whether in the exercise of its discretion, a sequestration order ought to have been made. 11 His Honour said at [19] that he was concerned in the application before him only with the question of whether on the failure of the bankrupt to file a statement of affairs, the Court should make an order under s 146 of the Act. His Honour said it was plain beyond argument that the failure of Mr Stubberfield to file a statement of affairs was a deliberate choice on his part. He said that, in those circumstances, it was appropriate that the trustee be able to proceed with the administration of the bankrupt estate. 17 The form of these orders follows the form adopted by Spender J and Allsop J in the matters referred to above.


case_text: Introduction 2 (a) The Yawuru community ([366]) 2 - 3 (b) Traditional laws and customs ([367]-[369]) 3 - 4 (c) Possession of native title rights and interests ([370]-[376]) 4 - 5 (d) The Walman Yawuru claim 5 (e) The remaining issues 5 - 6 2. The native title determination area 6 - 31 (a) Introduction 6 (b) The southern area 7 (c) The northern area 7 - 31 (i) Introduction 7 - 11 (ii) The Djugan 'tribe' 11 - 13 (iii) Yawuru 'country' 13 - 16 (iv) Practice of the northern and southern traditions in Yawuru 'country' 16 - 18 (v) Yawuru language in Yawuru 'country' 18 - 22 (vi) The contemporary Yawuru community 22 - 25 (vii) The native title holding community for Yawuru 'country' 25 - 27 (viii) Succession 27 - 30 (ix) Connection 30 - 31 (x) Conclusion 31 3. Membership of the native title holding community 31 - 35 4. The nature and extent of native title 35 - 38 1. Introduction In interim reasons for judgment ( Rubibi Community v State of Western Australia (No 5) [2005] FCA 1025) ('the interim reasons') I determined that: The key findings in the interim reasons that are relevant for present purposes may be summarised as follows. The present Yawuru community, as generally defined in the genealogies before the Court, is a recognisable body of persons who are likely to be descendants, on an ambilineal or cognatic basis, of members of the Yawuru community at the time of colonial contact and therefore at the time of sovereignty. The genealogies before the Court support an inference of continuity of the Yawuru community that existed at the time of sovereignty through to the present time. As the definition of the Yawuru community, based on ambilineal or cognatic descent, is in accordance with the traditional laws and customs of the Yawuru community, it follows that the present Yawuru community is one whose members are descended from the members of the Yawuru community at sovereignty in accordance with traditional laws and customs.


case_text: Rubibi Community v The State of Western Australia [2001] FCA 607 (' Rubibi '), which concerned the Yawuru community's claim to the law ground at Kunin, the evidence concerning the Djugan led me to conclude (at [99]) that 'at least in relation to their traditional connection to Kunin, the Djugan people are a subgroup of the Yawuru people'. At the hearing in this proceeding, which related to the establishment of native title in the Yawuru claim area, a considerably greater body of evidence was adduced in relation to the Djugan. An aspect of that evidence was that, unlike the Yawuru who practiced the southern tradition, the Djugan practiced the northern tradition. In the interim reasons I made certain observations (at [55]-[61] and [79]) about the two traditions practiced in the claim area: '55. Two legal traditions, which lay down "the law", are claimed to be applicable in Yawuru country. Each of the traditions involves the creation of the world by mythological creatures or heroes who gave the people their "law", waterholes (soaks or jilas ), "law grounds", songs, "skin sections" and languages. Patrick Dodson outlined the path of the southern tradition in the Yawuru claim area in a restricted exhibit. The southern tradition is "the law" that is generally practiced by the Yawuru, Karajarri, Nyangumarta, Nygina and Mangala people. The northern tradition is generally practiced by the Bardi, Nyul Nyul, Jabirrr Jabirrr and Nyambal people. The southern tradition (southern law) may be referred to in Yawuru country as the Yawuru law. The northern tradition is often called Bardi law. The "law bosses" for the southern tradition in Yawuru country are Felix Edgar, Frank Sebastian (Gajai), Francis Djiagween (Lulga), Joseph "Nipper" Roe and Patrick Dodson. The "law bosses" for the northern tradition in Yawuru country were said to be Joseph Roe, Richard Hunter and Phillip Hunter. The two traditions are kept separate. Joseph Roe said that the laws sit side by side without overlapping because "Bugarrigarra make them like that, we're just following Bugarrigarra." While the Bugarrigarra and many of the basic rituals, customs and laws it prescribes are common to the northern and southern traditions, the two mytho-ritual traditions differ in their origin, being the journeys and undertakings of the mythological creators of the respective traditions. However, support for the claim of the Yawuru claimants that both traditions were observed in the same country is to be found in R Piddington's article, which contains observations about the initiation ceremonies under both traditions in the country of the Karajarri people, which is to the south of the Yawuru claim area. (R Piddington, "Karadjeri Initiation", Oceania , vol 3, no 1, 1932, p 46) Men can go through both northern and southern law. Gajai said "[i]t has always been okay for a man to go through more than one law...The two laws don't mix but they are respected in this country." Patrick Dodson said "[i]t's not a unusual thing for a Yawuru man to go through northern law." Yawuru community members who have been through both laws include Lulga and Patrick Dodson's grandson (by "skin" and nephew by blood), Sooty Pigram. Several men who are now deceased, have also been through both laws, namely Paddy Djiagween, Bandak Bernard, Peter Kajit, Johnny Peters, and Stanley Djiagween, as well as Lulu and Paul Sampi. Paul Sampi, a senior Bardi "law man", described how the northern tradition of "law" travels along two paths. The first path, Ungui , which is the first stage of "law", travels down from Bardi country along the east coast of the Dampier Peninsula from Swan Point to the mouth of the Fitzroy River at Langey Crossing, then west to Garawan and then to Willie Creek. From there, it travels back to the east to Garawan and then north to La Djardarr Bay. The other part, Ululong , the second stage of "law", travels down along the west coast of the Dampier Peninsula from Swan Point through to Wapunu in Karajarri country. Paul's evidence was that, after World War Two, Bardi men, who were living and working in Broome and wanted to be able to practice Bardi law in Yawuru country, asked permission of the Yawuru "law men" to start Ululong at Four Mile. Paul was living in Broome in 1949 and, as he had been through Ungui , was able to go through the second stage of the southern law. He says that "[i]n those days people went through both law[s]." There is also a third tradition, which starts at Bilinnguru (Hidden Valley) in Yawuru country and goes out into the desert. This tradition is like a "song line" and is known as the Wanji or Dingarri . Peter Clancy, a Mangala man who gave evidence about the Wanji , stated that it speaks "Yawuru language in Yawuru country, Karajarri language in Karajarri country, and Mangala language in Mangala country. I know the songs for the Wanji right through." There was some confusion as to how the Yawuru claimants relied upon the northern tradition in making out their case. Ultimately, they accepted that the normative system upon which they relied was the southern tradition, but they claimed that under that tradition there was a recognition and acceptance of the overlapping role played by the northern tradition in the Yawuru claim area. ... ... The evidence referred to above establishes that, on balance, "the law" is still acknowledged and observed, notwithstanding that many of the rituals of "the law" are no longer practiced. Fundamentally, "the law", as laid down by the southern tradition, remains "the law" that is acknowledged and accepted by the Yawuru community as governing all aspects of its traditional life.'


case_text: Rubibi Community v The State of Western Australia [2001] FCA 607 (' Rubibi '), which concerned the Yawuru community's claim to the law ground at Kunin, the evidence concerning the Djugan led me to conclude (at [99]) that 'at least in relation to their traditional connection to Kunin, the Djugan people are a subgroup of the Yawuru people'. At the hearing in this proceeding, which related to the establishment of native title in the Yawuru claim area, a considerably greater body of evidence was adduced in relation to the Djugan. An aspect of that evidence was that, unlike the Yawuru who practiced the southern tradition, the Djugan practiced the northern tradition. In the interim reasons I made certain observations (at [55]-[61] and [79]) about the two traditions practiced in the claim area: '55. Two legal traditions, which lay down "the law", are claimed to be applicable in Yawuru country. Each of the traditions involves the creation of the world by mythological creatures or heroes who gave the people their "law", waterholes (soaks or jilas ), "law grounds", songs, "skin sections" and languages. Patrick Dodson outlined the path of the southern tradition in the Yawuru claim area in a restricted exhibit. The southern tradition is "the law" that is generally practiced by the Yawuru, Karajarri, Nyangumarta, Nygina and Mangala people. The northern tradition is generally practiced by the Bardi, Nyul Nyul, Jabirrr Jabirrr and Nyambal people. The southern tradition (southern law) may be referred to in Yawuru country as the Yawuru law. The northern tradition is often called Bardi law. The "law bosses" for the southern tradition in Yawuru country are Felix Edgar, Frank Sebastian (Gajai), Francis Djiagween (Lulga), Joseph "Nipper" Roe and Patrick Dodson. The "law bosses" for the northern tradition in Yawuru country were said to be Joseph Roe, Richard Hunter and Phillip Hunter. The two traditions are kept separate. Joseph Roe said that the laws sit side by side without overlapping because "Bugarrigarra make them like that, we're just following Bugarrigarra." While the Bugarrigarra and many of the basic rituals, customs and laws it prescribes are common to the northern and southern traditions, the two mytho-ritual traditions differ in their origin, being the journeys and undertakings of the mythological creators of the respective traditions. However, support for the claim of the Yawuru claimants that both traditions were observed in the same country is to be found in R Piddington's article, which contains observations about the initiation ceremonies under both traditions in the country of the Karajarri people, which is to the south of the Yawuru claim area. (R Piddington, "Karadjeri Initiation", Oceania , vol 3, no 1, 1932, p 46) Men can go through both northern and southern law. Gajai said "[i]t has always been okay for a man to go through more than one law...The two laws don't mix but they are respected in this country." Patrick Dodson said "[i]t's not a unusual thing for a Yawuru man to go through northern law." Yawuru community members who have been through both laws include Lulga and Patrick Dodson's grandson (by "skin" and nephew by blood), Sooty Pigram. Several men who are now deceased, have also been through both laws, namely Paddy Djiagween, Bandak Bernard, Peter Kajit, Johnny Peters, and Stanley Djiagween, as well as Lulu and Paul Sampi. Paul Sampi, a senior Bardi "law man", described how the northern tradition of "law" travels along two paths. The first path, Ungui , which is the first stage of "law", travels down from Bardi country along the east coast of the Dampier Peninsula from Swan Point to the mouth of the Fitzroy River at Langey Crossing, then west to Garawan and then to Willie Creek. From there, it travels back to the east to Garawan and then north to La Djardarr Bay. The other part, Ululong , the second stage of "law", travels down along the west coast of the Dampier Peninsula from Swan Point through to Wapunu in Karajarri country. Paul's evidence was that, after World War Two, Bardi men, who were living and working in Broome and wanted to be able to practice Bardi law in Yawuru country, asked permission of the Yawuru "law men" to start Ululong at Four Mile. Paul was living in Broome in 1949 and, as he had been through Ungui , was able to go through the second stage of the southern law. He says that "[i]n those days people went through both law[s]." There is also a third tradition, which starts at Bilinnguru (Hidden Valley) in Yawuru country and goes out into the desert. This tradition is like a "song line" and is known as the Wanji or Dingarri . Peter Clancy, a Mangala man who gave evidence about the Wanji , stated that it speaks "Yawuru language in Yawuru country, Karajarri language in Karajarri country, and Mangala language in Mangala country. I know the songs for the Wanji right through." There was some confusion as to how the Yawuru claimants relied upon the northern tradition in making out their case. Ultimately, they accepted that the normative system upon which they relied was the southern tradition, but they claimed that under that tradition there was a recognition and acceptance of the overlapping role played by the northern tradition in the Yawuru claim area. ... ... The evidence referred to above establishes that, on balance, "the law" is still acknowledged and observed, notwithstanding that many of the rituals of "the law" are no longer practiced. Fundamentally, "the law", as laid down by the southern tradition, remains "the law" that is acknowledged and accepted by the Yawuru community as governing all aspects of its traditional life.' However, it does not follow that the Djugan and the Yawuru each possessed their own discrete communal native title rights and interests at and since sovereignty in respect of the northern and southern areas respectively. The entitlement of different groups to communal native title was considered by the Full Court in Northern Territory of Australia v Alyawarr, Kaytetye, Warumungu, Wakaya Native Title Claim Group [2005] FCAFC 135 ; (2005) 145 FCR 442 (' Alyawarr ') at 466-475 [78]-[112]. The Full Court, after citing a number of cases, observed that members of a 'community' may possess communal native title rights and interests, albeit that they are 'intramurally allocated' to different groups or subsets of the community. Although each of the cases cited by the Full Court turns on its own facts, their Honours (at 475 [112]) accepted that the evidence of 'extensive connections' across the claimant groups supported the primary judge's characterisation of those groups as 'one native title holding community' that had the necessary connection with the land in the claim area 'at a communal or claim group level'. Accordingly, it is necessary to consider the totality of the evidence concerning the Djugan and the Yawuru in order to determine whether, notwithstanding their cultural and other differences at and since sovereignty, the Djugan and the Yawuru are one native title holding community that had the necessary connection with Yawuru 'country' at a communal level. Extensive evidence was adduced to the effect that Yawuru 'country' included the northern area. The evidence, which included the views of senior law men and women, was not seriously challenged. The evidence of senior law men from 'country' adjacent to the claim area and the evidence adduced as to the views of senior Yawuru law men and women was that Yawuru 'country' consisted of the southern and the northern areas. Peter Clancy, a senior Mangala law man regarded the northern area as being within 'Yawuru Country because the old people told me'. A senior Nyangumarta law man stated that the shared law that comes from the Bugarrigarra included 'the whole lot of that country up to Willie Creek'. Evidence adduced as part of the Walman Yawuru case was also to the effect that 'Mimi', a senior Yawuru law woman who lived in Broome up to the 1950s, had claimed that Yawuru country included Broome and extended up to Willie Creek.


case_text: to the possible exception referred to above, I am satisfied that, generally, the evidence supports the inference contended for by the Yawuru claimants of exclusive possession and occupation of the Yawuru claim area (excluding the intertidal zone) where there has been no extinguishment. However, for the reasons given by French J in Sampi on behalf of the Bardi and Jawi People v Western Australia [2005] FCA 777 at [1072] , the right should be limited to exclusive possession and occupation and should not extend to the broader concepts of 'use and enjoyment'. I also agree with his Honour that the right claimed to 'speak for' the land and to make decisions about its use and enjoyment by others is also subsumed in the global right of exclusive possession and occupation.


case_text: conclusion, the evidence and findings to which I have referred support a finding of the existence of the rights claimed by the Yawuru claimants as set out in [111] save that the references to use and enjoyment are to be deleted. Also, the proposed determination of the Yawuru claimants does not state the purposes for which the resources of the land and waters in the claim area, including the intertidal areas, may be accessed and used: cf Sampi v Western Australia (No 3) [2005] FCA 1716. I doubt that it is contended that the purposes are to be unlimited or are to extend to a general right of commercial exploitation. In the circumstances, it is desirable that the Yawuru claimants address that issue. I would add that, apart from the fact that the rights claimed in the intertidal zone are not exclusive and are necessarily more limited than the rights claimed in the land areas, I see no proper basis for otherwise distinguishing between the native title rights and interests in that zone and in the land. No such distinction was drawn in the evidence or in the traditional laws and customs acknowledged and observed by the Yawuru community. As there will be some issues as to how the final determination should reflect my findings and conclusions, I propose to afford the parties an opportunity of making further submissions on that matter. There also remains for determination the issues the parties still propose to press in relation to extinguishment, as well as any issues arising out of these reasons. I propose to give directions for an early determination of all of those issues. I certify that the preceding one hundred and twenty one (121) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 13 February 2006 Counsel for the Applicants: Mr K Bell QC with Mr G Irving and Mr A Firth Solicitor for the Applicants: Mr I Irving of the Kimberley Land Council Counsel for the State of Western Australia: Ms R Webb QC with Mr B King Solicitors for the State of Western Australia: Crown Solicitor for the State of Western Australia Counsel for the Commonwealth of Australia: Mr P Quinlan with Mr A Rorrison Solicitors for the Commonwealth of Australia: Australian Government Solicitors Counsel for the Western Australian Fishing Industry Council (Inc): Mr G Hiley QC with Mr M McKenna Solicitors for the Western Australian Fishing Industry Council (Inc): Hunt and Humphrey Counsel for the Walman Yawuru Respondents: Mr I Viner QC Appearing as a representative of the Walman Yawuru Respondents: Ms R Hanigan Solicitor for Shire of Broome: Mr P Wittkuhn of McLeods Dates of hearing: 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 May 2003; 3, 4, 5, 6, 9, 10, 11, 12, 13 June 2003; 27, 28, 29, 30, 31 October 2003; 3, 4, 5, 6, 7, 10, 11, 12, 13, 14 November 2003; 14, 15, 16, 17, 18 June 2004; 27, 28, 29, 30 September 2004; and 1, 4, 5, 6, 7 October 2004. Date of Interim Reasons: 29 July 2005 Date of these further Reasons: 13 February 2006 SCHEDULE APPLICANTS: CORPUS, Michael DJIAGWEEN, Cecilia DJIAGWEEN, Francis DODSON, Patrick EDGAR, Elsie EDGAR, Felix HUNTER, Richard ROE, Joseph ROE, Joseph 'Nipper' ROE, Teresa SADDLER, Thelma SEBASTIAN, Frank RESPONDENTS: 01 Government Interests State of Western Australia Aboriginal Affairs Department Aboriginal Lands Trust Commissioner of Main Roads Electricity Corporation Minister for Aboriginal Affairs Minister for Energy Minister for Fisheries Minister for Lands Minister for Mines Minister for Transport Minister for Water Resources State of Western Australia 02 Government Interests Commonwealth of Australia Airservices Australia 02A Government Interests Commonwealth of Australia Commonwealth of Australia 02A Government Interests Local Government Shire of Broome 04 Indigenous Interests Bilgungurr Aboriginal Corporation Kimberley Land Council MATSUMOTO, Peter ROBINSON, Margaret Mary ROE, Edward Leonard 05 Mining Interests CONNOLLY, Peter Scott COUNTY, Brian Stanley Maple Oil Exploration NL (Administrators Appointed) (Receivers and Managers Appointed) 06 Pastoral Interests CROOK, Reginald D Thangoo Pty Ltd (Thangoo Station) 07 Telecommunications Industry Interests Telstra Corporation Limited 08 Tourism Interests Broome Crocodile Park Cable Beach Jet Boat Charter Dampier Creek Boat Tours Kimberley Birdwatching The Kimberley Connection Pty Ltd 09 Fishing Interests Australian Ocean Exporters Pty Ltd BLATCHFORD, Kevin Broometime Charters CANNEY, Pam FRASER, Alan John IGNOTI, Les IGNOTI, Peter IGNOTI, Russell Kimberley Fish and Ice Supplies Lenden Nominees Pty Ltd Leveque Wilderness Fishing Charters LEW, Ian LITTLETON, Kyran R MOORE, Gary NEWTON, Ross Pearl Coast Charters Pearl Sea Coastal Cruises WEIR, Neville 09A Fishing Interests Western Australian Fishing Industry Council (Inc) 10 Pearling Interests Australian Sea Pearls Pty Ltd Broome Pearls Pty Ltd Cygnet Bay Pearls Paspaley Pearling Company Pty Ltd Pearls Pty Ltd Roebuck Pearl Producers Pty Ltd Willie Creek Pearl Farm and Broome Coachlines 11 Petroleum Interests E-Com Multi Limited 12 Non Party (For Information Only) National Native Title Tribunal AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/82.html


case_text: The short point made by the Defendant is that the Plaintiff did not serve the documents marked 'RM1', 'RM2' and 'RM3' to Robert McInnes's affidavit, as filed . The Defendant says that s 459G(3) contemplates, in effect, a linear progression with the result that a Plaintiff must file an application supported by an affidavit and must then serve a copy of the application as filed and a copy of the supporting affidavit together with the exhibits as filed, upon the Defendant all within 21 days after the demand is served. There is no issue that the application was filed within time. The contention is that the failure to serve the three exhibits to the affidavit of Robert McInnes after they were filed, within the relevant 21 day period, is fatal. The Defendant says that the requirements of s 459G(3) are not only jurisdictional but demand strict compliance consistent with David Grant & Co v Westpac Banking Corporation [1995] HCA 43 ; (1995) 184 CLR 265. 24 Rule 2.2(3) of the F C C R 2000 requires an application pursuant to s 459G(1) to be in accordance with Form 2. Rule 2.4 of the F C C R 2000 requires such an application to be supported by 'an affidavit' stating the facts in support of the application. Rule 2.4A(2) provides that in respect of an application by a company under s 459G, a Plaintiff (the 'plaintiff' for the purposes of the F C C R 2000) may file with the originating process seeking the particular orders, a copy of the statutory demand and a copy of any affidavit that accompanied the statutory demand and rule 2.4A(3) provides that such a plaintiff must no earlier than seven days before the application is filed and no later than the hearing of the application, carry out a search of the records maintained by Australian Securities and Investments Commission ('ASIC') in relation to the plaintiff and either annex a record of that search to the affidavit in support of the application or file the record of the search on the hearing of the application. The form of any affidavit relied upon in any application must comply with the rules of the Federal Court of Australia or, alternatively, the rules of the Supreme Court of the State where the affidavit was sworn. In this case, the affidavit of Robert McInnes in support of the application was sworn at Glen Waverley in the State of Victoria. 25 Each of the exhibits 'RM1', 'RM2' and 'RM3' to the affidavit of Robert McInnes are properly described as 'exhibits' although that term is not used in the body of the affidavit. The form of language adopted in respect of each document is either 'now produced to me and marked with the letters "RM (number)" is a true and complete copy of' or 'produced to me and marked with the letters "RM (number)" is a true copy of'. Accordingly, the deponent has elected to treat each of 'RM1', 'RM2' and 'RM3' as exhibits produced to the deponent at the time of swearing the affidavit. Mr Timothy Whitehead before whom the affidavit was sworn has certified that each document so described is the document produced to the deponent. Each of the exhibits bears a handwritten endorsement by Mr Whitehead that the pages comprising each exhibit make up the 'annexure' marked either 'RM1', 'RM2' or 'RM3'. It seems that Mr Whitehead has proceeded on the footing so far as the production of the documents to the deponent is concerned, that 'RM1', 'RM2' and 'RM3' are annexures to and form part of the affidavit, at least as so described in identifying the document although, in formulating the affidavit , Mr Whitehead has used language descriptive of a process of treating the material making up 'RM1', 'RM2' or 'RM3' as exhibits. Presumably, those documents were referred to in the body of the affidavit by the deponent and produced to the deponent because they are directly or indirectly probative of the existence of a fact in issue in the proceeding.


case_text: The historical development of the treatment of material referred to in an affidavit as an exhibit and the point of distinction between material 'produced and shown to the deponent' at the time of swearing an affidavit and material annexed to the affidavit is canvassed in the judgment of Kennedy J in the decision of the Full Court of the Supreme Court of Western Australia in Robowash Pty Ltd v Robowash Finance Pty Ltd (2000 2001) [2000] WASCA 409 ; 158 FLR 338, at [10] to [23], with whom Wallwork and Anderson JJ agreed. 27 An affidavit in support of an application made under s 459G must be in a form that complies with either the F C C R 2000 or, for the purposes of this application, the rules of the Supreme Court of Victoria. Order 14, rule 4 of the Federal Court Rules provides that any original document to be used in conjunction with an affidavit shall be exhibited and not annexed to the affidavit (O 14, r 4(1)). Any exhibit to an affidavit must be identified by a certificate entitled in the same manner as the affidavit and made by the person before whom the affidavit is sworn (O 14, r 4(2)). Copies of all documents exhibited or annexed to an affidavit shall be served with the affidavit (O 14, r 7(3)). 28 Order 43, rule 43.03 of the Supreme Court (General Civil Procedure) Rules 2005 of the State of Victoria provides that an affidavit shall be confined to facts which the deponent is able to state of the deponent's own knowledge and as to documents referred to by such a deponent O 43, r 43.06 is in these terms: ' 43.06 Annexure and exhibits (1) A document referred to in an affidavit shall not be annexed to the affidavit but may be referred to as an exhibit. (2) An exhibit to an affidavit shall be identified by a separate certificate annexed to it bearing the same heading as the affidavit and signed by the person before whom the affidavit is sworn. (3) The certificate shall be in Form 43A and shall contain in the bottom right hand corner of the page in bold type and in a font size not less than 20 points, the distinguishing mark of the exhibit and a brief and specific description of the exhibit.' 30 Section 459G(3) requires a Plaintiff to serve the supporting affidavit within the relevant time frame. Notwithstanding the distinctions between an exhibit and an annexure to an affidavit, it would seem an odd result in relation to an application to set aside a statutory demand that a Defendant to such an application must be served with any supporting affidavit and any annexures to and thus incorporated within such an affidavit ( Robowash Pty Ltd v Robowash Finance Pty Ltd (supra) at [23]), yet no obligation arises to serve documents marked as an exhibit. If the true purpose of s 459G is to cast an obligation upon a Plaintiff to provide the Defendant with a copy of the material relied upon by the Plaintiff so that the Defendant might understand, test and respond before the forum to that material in a way which addresses the merits of the application in the interests of justice, it would be an odd result if that purpose might be defeated by crafting an affidavit in such a way that documents probative of a fact in issue are produced to the deponent, marked as an exhibit and not served upon the Defendant. It seems to me that the reference to 'an affidavit' in s 459G(3) contemplates an affidavit and all documents annexed or exhibited to the affidavit and thus relied upon by the Plaintiff in support of the merits said to be persuasive of the Court making an order in favour of the Plaintiff. 31 Accordingly, in the ordinary course, a Plaintiff would be required to file an application seeking the relevant relief and serve a copy of the application, a copy of the supporting affidavit and a copy of any exhibit or annexure to the affidavit within the time limited by s 459G(3). 32 In this application, the Plaintiff on 26 October 2006 foreshadowed the immediate filing of an application and provided the Defendant with a draft application formulated in accordance with Form 5 of the Federal Court Rules rather than Form 2 of the F C C R 2000 together with copies of the material described at [18], [19] and [20]. On 27 October 2006, the Plaintiff filed a Form 2 application together with a supporting affidavit of Robert McInnes. The Plaintiff did not serve further copies of exhibits 'RM1', 'RM2' and 'RM3' marked with any reference to a filing stamp or date endorsed on any of those documents by the Federal Court Registry. The Plaintiff complied with s 459G(3)(b) by serving upon the Defendant within time a copy of the filed application sealed by the Court and a copy of the filed affidavit of Robert McInnes endorsed by the Court with the filing date. Section 459G(3)(b) speaks of a copy of the supporting affidavit and the need to serve that document within the prescribed time. A copy of each exhibit 'RM1', 'RM2' and 'RM3' was served upon the Defendant although the copy was provided prior to the actual filing of the document. Nevertheless, each exhibit as served upon the Defendant is properly and accurately described as a copy of the exhibits as later filed. There is no point of departure between the form or content of exhibits 'RM1', 'RM2' and 'RM3' as filed and the form or content of those exhibits as served albeit that those documents were served before the documents of which they are a mirror image, were filed in the Court the following day. 33 Provided there is no disjunction between the documents as filed and the documents served, one is truly characterised as a copy of the other unlike the circumstances before the Court in Robowash . In that case, four pages of the annexures to the relevant affidavit supporting the application were missing from the service copy of the affidavit and annexures. The important consideration is whether there is a demonstrated lack of identity between the material as filed and the material served upon the Defendant. In Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services [2001] NSWSC 73 , the omitted material was missing from both the filed affidavit and the copy as served. His Honour, Santow J concluded that since there was no lack of identity between the affidavit filed and the affidavit served, s 459G(3) had been satisfied. 34 In Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2001] WASCA 299 , a decision of the Full Court of the Supreme Court of Western Australia, Miller J with whom Wallwork and Burchett JJ agreed, considered at [20] that where any lack of identity between the material filed and the material served is 'slight', the notion that compliance with s 459G(3) is extremely strict and that substantial compliance with the section may be insufficient, 'may be questionable'. In that case, the affidavit in support of the application annexed a copy of Reasons for Decision of Hasluck J and pages of the Judgment were either missing from the annexure as served or duplicated in the annexure as served. There were two copies of page 3 of the Reasons, no page 4; two copies of page 11; no page 12; two copies of page 21 followed by a blank page. The Full Court concluded that since the parties to the application to set aside the demand were parties to the proceeding before Hasluck J, the contents of the Reasons were taken to be known to the respondent to the application and, in any event, since the Reasons of Hasluck J are Reasons of the Court, it was arguably only necessary for the deponent to make reference to the Reasons without the necessity of annexing the Reasons to the affidavit. Accordingly, the Full Court concluded that, 'Any deficiencies in relation to the copy of the Reasons annexed to the affidavit are therefore, in my view, in a different category to the deficiencies which were the subject of the decision in Robowash Pty Ltd v Robowash Finance Pty Ltd' . 35 The significance of an obligation to serve a copy of an application and a copy of an affidavit as filed is the need to inform the Defendant of precisely the final form of the material the Plaintiff relies upon in seeking to advance the merits of the application. In one sense, a Defendant might be entitled to disregard documents sent by facsimile or otherwise in support of an application before the material is filed as the Defendant might not know whether such material will actually be filed, pressed, relied upon or abandoned by the Plaintiff. Accordingly, a Defendant might be reluctant to respond to material unless and until the Defendant is certain that the Plaintiff's foreshadowed material has become the actual material. However, in this application, the Plaintiff provided on 26 October 2006 an actual copy of the affidavit material and exhibits to be filed the following day and on 27 October 2006 confirmed to the Defendant that an application had been filed in accordance with the correct form required by F C C R 2000 supported by the affidavit of Robert McInnes. The Defendant was provided with a copy of the affidavit of Robert McInnes marked with the filing date which was in the same terms as the version provided to the Defendant on 26 October 2006 identifying the three exhibits. The Defendant was also provided with a copy of the filed and sealed application document. 36 It seems to me that it is not correct to say that there must necessarily be in all cases a strict linear sequence in the filing of the affidavit and any exhibits or annexures to the affidavit and then service of that material. In circumstances where the Plaintiff has provided the Defendant with the affidavit material (including any exhibits or annexures to the affidavit) in the immediacy of a foreshadowed application and has then filed material entirely consistent with that material, that is, a copy of that material, and has confirmed the filing, in fact, of the affidavit material, s 459G(3) is satisfied. However, it seems to me that such a principle does not extend to the application document which must issue from the Court and be sealed. The provision of an unfiled and unsealed version of an application to set aside a statutory demand could never be 'a copy' for the purposes of s 459G(3) because such a document would fail to exhibit the issue date, the seal of the Court and a return date for the hearing of the application or alternatively a date for the hearing of a directions hearing concerning the application. In addition, the application document is the foundation document which demonstrates that a plaintiff has sought to enliven the jurisdiction of the Court in a particular way, on a particular footing and in respect of specific identified relief. In this case, a copy of the application document as issued and sealed together with the affidavit of Robert McInnes as filed was served in any event on 27 October 2006. 37 Accordingly, the Federal Court's jurisdiction under s 459G is properly enlivened. 38 Since the jurisdiction is enlivened, the second question to be determined is whether the Plaintiff has demonstrated that 'there is a genuine dispute between the company and the Defendant about the existence or amount of a debt to which the demand relates' or, alternatively, that the Plaintiff has an off-setting claim, as contemplated by s 459H.


case_text: Provided there is no disjunction between the documents as filed and the documents served, one is truly characterised as a copy of the other unlike the circumstances before the Court in Robowash . In that case, four pages of the annexures to the relevant affidavit supporting the application were missing from the service copy of the affidavit and annexures. The important consideration is whether there is a demonstrated lack of identity between the material as filed and the material served upon the Defendant. In Re Bell Construction Services Pty Ltd; Bell Construction Services Pty Ltd v Form-Kwip Building Services [2001] NSWSC 73 , the omitted material was missing from both the filed affidavit and the copy as served. His Honour, Santow J concluded that since there was no lack of identity between the affidavit filed and the affidavit served, s 459G(3) had been satisfied.


case_text: The question to be determined by the Court is not where the merits lie in any contest but simply whether there is a genuine dispute or a genuine claim. No question of the resolution of any contested question of fact arises. The only question is whether the Plaintiff has deposed to facts which give rise to a conclusion that there is a genuine dispute rather than facts which operate at such a high level of abstraction that the Court might conclude that a failure to deal with the content of the Defendant's claim reflects obfuscation or a lack of genuineness. The supporting affidavit must depose to facts which promote the company's case. A supporting affidavit that fails to satisfy the minimum requirements in this regard, represents a failure of jurisdiction ( Graywinter Properties Pty Ltd v Gas & Fuel Corporation Superannuation Fund (1996) 21 ACSR 581 at 587L, 20 to 40, per Sundberg J). Although an affidavit in support of the application need not go into the evidence supporting the dispute and may assert material facts much in the nature of a pleading, a mere assertion that there is a genuine dispute coupled with a bare claim that the debt is disputed, is not sufficient. What is required, 'in all cases is something between mere assertion and the proof that would be necessary in a court of law. Something more than mere assertion is required because if that were not so then anyone could merely say it did not owe a debt' ( John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250 at 253, L15-23 per Young J; Re Louisbridge Pty Ltd [1994] 2 Qd R 144 at 145; Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230 at 235 L6-18).


case_title: John Holland Construction and Engineering Pty Ltd v Kilpatrick Green Pty Ltd (1994) 14 ACSR 250


case_title: Re Louisbridge Pty Ltd [1994] 2 Qd R 144


case_title: Dromore Fresh Produce Pty Ltd v W Paton (Fertilisers) Pty Ltd (1997) 23 ACSR 230


case_text: On 21 December 2006 solicitors for the applicant applied to ASIC for documents in relation to the Multiplex examinations. ASIC in accordance with its natural justice obligations (see Johns v Australian Securities Commission [1993] HCA 56 ; (1993) 178 CLR 408), has notified third parties who may be affected by the release of the documents and has received submissions from some of them. This has proved to be a lengthy process and ASIC has not yet provided any documents to the applicant. 13 As has been mentioned, the documents the subject of item 1 of the subpoena number about 3000 (assuming, as seems reasonable, that ASIC retains the documents it has reviewed, or most of them) and have been sorted into some 200 folders. The remaining documents sought would seem to be relatively much less numerous. 14 The present proceeding commenced on 18 December 2006. Pleadings have been filed. Multiplex has brought applications for (i) an order under s 33N of the Federal Court Act that the matter no longer proceed under Pt IVA, (ii) security for costs and (iii) transfer to the New South Wales District Registry. Finkelstein J heard the s 33N application on 27 April 2007 and his decision is reserved. The other two applications have not yet been heard. I understand that a date will be fixed after his Honour delivers judgment on the s 33N application. The matter is in Finkelstein J's docket and the present application has come before me as duty judge. 15 The parties have been in protracted negotiations as to security for costs. The applicant accepts that security should be ordered but the parties have not agreed on quantum or the form of security, due mainly to disputes about the likely extent of discovery (security is not sought at the moment for steps beyond discovery). Initially Multiplex sought $24.1 million, of which $24 million was for discovery based on a review of 3.5 million documents with approximately 880,000 potentially discoverable documents. That figure has since been reduced to $6 million, based on an estimate of 266,000 documents. The applicant proffers $1.9 million. 16 The applicant relies particularly on the assistance the subpoena will give in narrowing the scope of discovery and, as a consequence, reducing the amount of security ordered. 21 Further it is said that the subpoena would subvert ASIC's natural justice considerations as required by Johns . 22 Insofar as the subpoena by items 4 and 5 seeks the terms of reference and report of the consultant, it is said to be fishing and enquiring after irrelevant matter.


case_text: It has been firmly established since the decision of Toohey J when a judge of this Court in Hughes v Western Australian Cricket Association (Inc) (1986) 66 ALR 541 that a subpoena duces tecum may be directed to a non-party prior to trial. The power exists "where it appears to the court to be in the interests of justice and the proper and expeditious conduct of a proceeding that a person produce documents before the date of hearing of the [substantive] application": at 543. (That case was the converse of the present in that issue of the subpoena was opposed by the proposed recipient, the Australian Cricket Board, but the respondent in the proceeding did not appear.) 24 In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant".


case_outcome: discussed

case_text: In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant".


case_text: In the present case senior counsel for Multiplex cited a line of cases which hold that a subpoena duces tecum is not to be used as a substitute for discovery: Commissioner for Railways v Small (1938) 38 SR (NSW) 564, Australian Competition and Consumer Commission v Shell Co of Australia Ltd (1999) 161 ALR 686, Pasini v Vanstone [1999] FCA 1271. However, all these cases were concerned with subpoenas directed to a party. True it is that in Hughes (at 543) Toohey J, citing Small , said that a party may not though a subpoena "obtain discovery from a stranger to the action". But what was meant by obtaining discovery from a stranger emerges from the judgment of Jordan CJ in Small at 573: "If [a subpoena duces tecum ] be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced. A subpoena duces tecum ought not to be issued to such a person requiring him to search for and produce all such documents as he may have in his possession or power relating to a particular subject matter. It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery. A stranger to the cause ought not to be required to go to trouble and perhaps to expense in ransacking his records and endeavouring to form a judgment as to whether any of his papers throw light on a dispute which is to be litigated upon issues of which he is presumably ignorant". 27 The caution that courts have exercised where parties seek to obtain documents by subpoena from other parties is influenced by the principle that a particular procedure has been prescribed for obtaining such documents, namely discovery: Shell Co at [50]. With non-parties, however, the position is reversed. In recent times the introduction of O 15A r 8 has allowed discovery from non-parties, but it is a jurisdiction which "should be exercised with caution" and is not intended "for the general run of case": McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [33]. So for the obtaining of documents from a non-party such as ASIC, subpoena duces tecum is the norm rather than the exception.


case_title: Pasini v Vanstone [1999] FCA 1271


case_text: The documents sought have at least potential relevance to the issues in this case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] . At the very least they could be reasonably be expected to throw light on some of the issues: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432, McIlwain at [35]. In particular, this can be said of the consultant's report. The fact that a document may not be admissible in evidence does not of itself mean it cannot be the subject of a valid subpoena.


case_title: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432


case_text: The caution that courts have exercised where parties seek to obtain documents by subpoena from other parties is influenced by the principle that a particular procedure has been prescribed for obtaining such documents, namely discovery: Shell Co at [50]. With non-parties, however, the position is reversed. In recent times the introduction of O 15A r 8 has allowed discovery from non-parties, but it is a jurisdiction which "should be exercised with caution" and is not intended "for the general run of case": McIlwain v Ramsey Food Packaging Pty Ltd (2005) 221 ALR 785 at [33]. So for the obtaining of documents from a non-party such as ASIC, subpoena duces tecum is the norm rather than the exception. 31 The documents sought have at least potential relevance to the issues in this case: Australian Gas Light Company v Australian Competition and Consumer Commission [2003] FCA 1101 at [8] . At the very least they could be reasonably be expected to throw light on some of the issues: Cosco Holdings Pty Ltd v Commissioner of Taxation (1997) 37 ATR 432, McIlwain at [35]. In particular, this can be said of the consultant's report. The fact that a document may not be admissible in evidence does not of itself mean it cannot be the subject of a valid subpoena.


case_text: In Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17 ; (2001) 205 CLR 507, Gleeson CJ and Gummow J accepted as "orthodox" the test for actual bias that requires demonstration of a pre-existing state of mind which disables the decision-maker from undertaking or renders him or her unwilling to undertake any or any proper evaluation of the materials which are relevant to the decision to be made (at [72] read with [36]). Their Honours observed (at [71]): Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. 65 Neither the conduct of the review nor the sending of the s 424A letter, nor the second Tribunal's reasons for decision, nor all of those things taken together, allow the conclusion to be drawn that the second Tribunal approached its task with a closed mind. It was entitled to have regard, as it did, to the claims made by the appellant before the first Tribunal as well as the materials put before it. The appellant was given every opportunity to put her case to the second Tribunal. Her advisor was invited to speak and gave a substantial oral submission. It might rightly be said that the s 424A letter raised matters which could properly have been put at the review. It might have been preferable if that had been done. For some applicants however, a challenging approach by the Tribunal at review has itself been seen as an indicator of bias rather than a proper disposition of the inquisitorial function. To the extent that the s 424A letter gave the appellant an opportunity to comment upon the Tribunal's provisional views rather than new information relevant to the appellant, it may not have been necessary. In any event there was no basis in the materials before her Honour for the erection of the structure of impropriety propounded by counsel for the appellant. Ground 1(a) fails. 66 Counsel for the appellant in written submissions contended that the second Tribunal had failed to afford the appellant the opportunity to give evidence and present arguments "relating to the issues arising in relation to the decision under review". The thrust of this argument was that the second Tribunal, by putting its questions relevant to credibility in the s 424A letter, did not afford the appellant the opportunity in oral responses to demonstrate her credibility. Counsel put it thus in the written submissions (at [69]): Credibility is very critical issue in refugee matters. The main thing that affected the credibility was the Tribunal's disbelief in the events allged to have happened. That is an issue that arose in the matter but no opportunity was given to deal with this matter during the hearing. It would been appropriate to question the Appellant if the Tribunal did not belive her or question the witness. This was avoided, we submit deliberately. [sic] 67 Section 425 requires, in the circumstances in which it applies, that an applicant for review be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review. That does not impose a duty upon the Tribunal to cross examine the applicant on claims which it may have difficulty in accepting. There was no failure to comply with s 425 of the Act in this case. 68 This ground rested upon the assertion that the second Tribunal had formed an opinion that the appellant's claims were fraudulent based on the first Tribunal's decision. It had applied its opinion to the appellant's case and not given fresh consideration to the application for review. The short duration of the hearing, 45 minutes, compared with what was said to be a usual average time of between 2 and 2 1/2 hours, allegedly indicated that the Tribunal "did not want to spend much time during the hearing as it has prejudged the critical issues" [sic]. 69 An apprehension of bias was said to arise from the fact that a fair minded lay observer would wonder why the second Tribunal would invite the appellant and her sister to a hearing but not ask them about the main incidents alleged to have happened to the appellant before holding that all were fabricated. The way in which it dealt with her advisor's request in relation to the credibility of the appellant would also, it was said, have caused apprehension of bias when taken in combination with the decision record. 70 In my opinion, however, a reading of the transcript of the proceedings and of the express opportunities given to the appellant and to her advisor to put to the second Tribunal anything they wanted to say would have prevented any apprehension of bias arising. Nor does the sending of the s 424A letter or the terms of the reasons for decision give rise to such an apprehension.


case_text: Even if the appellant's failure to attend involved no fault on his part, the RRT was authorised to proceed to decide the review in the appellant's absence: see VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407 at [16] ; NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184 at [16] ; SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457 ; B41 of 2003, in the matter of an application for a Writ of Mandamus, Prohibition and Certiorari against Refugee Review Tribunal [2004] FCA 30 at [23] to [35].


case_text: The application for review by the RRT was filed after the provisions of s 422B came into force in July 2002; that section was therefore applicable: see SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356 at [4] . There may be some doubt as to the construction and effect of s 422B: see WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106 at [57] ; see also Moradian v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 1590 at [29] to [36].


case_title: NADK of 2002 v Minister for Immigration, Multicultural and Indigenous Affairs [2002] FCAFC 184


case_text: The learned Federal Magistrate then went on to consider whether there was an arguable case of jurisdictional error arising from the failure of the RRT to take any steps to contact the applicant's migration agent. He referred to a decision of a Full Court in NAJT v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 134 (" NAJT "). 10 Federal Magistrate Driver found at [6] that the RRT had met its statutory obligation under s 425 of the Act to invite the applicant to a hearing. The learned Magistrate observed at [7] that the RRT believed the appellant had accepted the hearing invitation and that the form of acceptance of the invitation was potent evidence of that. 11 His Honour went on to say that whilst he did not exclude the possibility that the signature on the form of acceptance was not the appellant's signature, any default or misbehaviour on the part of the migration agent could not invalidate the decision of the RRT. 12 His Honour found that there was nothing before the RRT to indicate that the appellant did not want to attend the hearing. His Honour found that the RRT had invited the appellant to attend in accordance with its statutory obligation and that it was entitled pursuant to s 426A to proceed in his absence. 13 The learned Magistrate went on at [9] to say that there may be circumstances where it is desirable for the RRT to attempt to contact a migration agent but he said that whether there was a breach of a general law fair hearing rule in the present case was not a question which it was necessary to decide because of the provisions of s 422B of the Migration Act . 14 His Honour said that the only remaining issue was whether there was a possible breach of s 424A of the Act in not notifying the appellant of the information contained in the protection visa application upon which the RRT relied in coming to its decision. 15 However, his Honour found at [11] that the information was adopted by the appellant in his application for review and accordingly the information fell within the exception contained in s 424A(3)(b) of the Act . 16 The notice of appeal raises the same grounds as were put before the learned Federal Magistrate, with one exception. The additional ground is that the Minister asserted before the Federal Magistrate that the appellant entered Australia in 1997 whereas in fact he arrived in 2003. 17 There is no error in the Federal Magistrate's finding that the appellant's claims were not overlooked. His Honour was correct in adopting the Minister's submissions set out at [2] of the judgment. 18 The appellant is correct in asserting that the Minister's submissions before the Federal Magistrate mistakenly referred to the applicant's date of arrival in Australia as 1997. However, that was of no relevance to the decision; indeed the RRTs decision specifically refers to the fact that the appellant arrived in Australia in March 2003. The learned Magistrate was correct in finding that the RRT was entitled to proceed under s 426A. 19 The exercise of the power under s 426A(1) is predicated upon the satisfaction of two conditions, these are: first, an invitation under s 425 , and second, a failure to appear. Both of those conditions were satisfied. 21 Whether or not the decision in NAJT might be thought to have been decided on analogous provisions of the Act , namely ss 57 , 494A , 494B and 494C , it is clear that the case turns on its own facts. 22 Madgwick J, with whom Conti J agreed, said at [189] that on the evidence in that case it was known to the delegate before he proceeded to make his decision that an effective invitation had not been sent. That was not the position here. 23 As the learned Federal Magistrate held, the RRT believed that the invitation had been received and accepted, indeed it was entitled to do so. The return of the form of invitation sent to the appellant's residential address was not to the point because the RRT had received a form of acceptance apparently signed by the appellant. It was entitled to proceed on the basis that the form had been sent to and received by the appellant's authorised agent.


case_title: SZBCS v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1457


case_title: SZBJW v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 1356


case_text: The appellant's adoption of the contents of his migration file in his application for review had the effect that the appellant gave that information for the purpose of his review application: see s 424A(3)(b). The RRT was therefore not required to provide particulars of information under section 424A(1): see SZBNK v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCA 998. 27 For the reasons that I have given the appeal must be dismissed with costs. I certify that the preceding twenty seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 17 February 2006 The Appellant appeared in person Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 10 February 2006 Date of Judgment: 10 February 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/96.html


case_title: VNAA v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCAFC 134 ; (2004) 136 FCR 407


case_title: WAJR v Minister for Immigration, Multicultural and Indigenous Affairs [2004] FCA 106


case_text: This Court has power under s 23 of the Federal Court of Australia Act 1976 (Cth) to make orders of such kinds, including interlocutory orders, as the Court thinks appropriate. That power extends to the making of orders that are necessary to enable the Federal Court to exercise its jurisdiction effectively, or to prevent any abuse or frustration of, or interference with, its processes: see Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (No 3) [1998] HCA 30 ; (1998) 195 CLR 1 (' Patrick' ), at 32-33 [35] per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ, and at 61-62 [127] per Gaudron J; and Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199 at 217-218 [10] - [12] and [15] per Gleeson CJ, at 231-232 [60] per Gaudron J, and at 241 [91] and 242-243 [93]-[94] per Gummow and Hayne JJ. The authorities establish that Courts can restrain executive action where it poses a real risk of interfering with the processes of the Court or the administration of justice generally: see Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328; Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188; and Victoria v Australian Building Construction Employees & Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25.


case_title: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 ; (2001) 208 CLR 199


case_title: Brambles Holdings Limited v Trade Practices Commission (1980) 32 ALR 328


case_title: Hammond v Commonwealth [1982] HCA 42 ; (1982) 152 CLR 188


case_title: Victoria v Australian Building Construction Employees & Builders Labourers' Federation [1982] HCA 31 ; (1982) 152 CLR 25


case_text: In claiming confidentiality (albeit unsuccessfully) and in making this application for an interlocutory injunction, AWB has done everything within its power to prevent the publication of the documents. It is difficult to see why, in those circumstances, the step that the Inquiry wishes to take of publishing the documents on its website would increase the risk that AWB's conduct would be regarded as effecting a waiver of privilege over other documents. Imputed waiver arises where the party claiming legal professional privilege engages in conduct which is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect: Mann v Carnell [1999] HCA 66 ; (1999) 201 CLR 1 at 13 [29] . 12 Secondly, the references to legal advice in the documents have essentially the same character as other disclosures that AWB has previously made to the Commission. Those disclosures have been the subject of evidence in public proceedings at the Inquiry, and are already in the public domain. It is difficult to see why the additional references in the documents to legal advice would alter the risk of waiver that AWB already confronts as a result of the prior publication of very similar material. 13 Thirdly, in the course of this case, the Commonwealth has relied upon previous occasions on which AWB has disclosed the existence and substance of legal advice to contend that AWB has waived legal professional privilege over associated documents. Mr Harrison, senior counsel for the Commonwealth, informed the Court that the Commonwealth does not intend to rely upon the further references to legal advice in the documents in support of its waiver arguments in these proceedings. 14 AWB argues that, even if these additional references are not to be relied upon by the Commonwealth in this case, that does not remove the risk that in another piece of litigation, at some later point, some other party will seek to rely upon these additional references to argue that AWB has thereby waived privilege over other documents. I do not think that this possible future circumstance supports AWB's contention that publication poses a real risk of interference with the processes of this Court or the administration of justice generally. 15 AWB did not base its application on any contention that the first respondent had exercised his powers improperly or for any extraneous purpose. Its application was based solely on principles of contempt of Court. 16 Turning to the balance of convenience, I am not satisfied that the publication of the documents will cause irreparable harm or any serious prejudice to AWB. In my view, the risk of prejudice to which AWB points is remote. 17 I must also take account of the public interest in the conduct of the Inquiry and the first respondent's desire to conduct further proceedings in public at which these additional documents may be the subject of evidence. This consideration outweighs the remote risk of any prejudice to AWB.


case_text: In the absence of a hearing on the merits, Finkelstein J has concluded that " it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287. His Honour also there referred to the following summary of propositions provided by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201: (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial.... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... Some reservation has been expressed as to whether each party should bear its own costs in the circumstances contemplated by Finkletstein J " except in special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47] per Gillard J. Concurrence is, however, expressed with respect to the general approach as set forth by both Finkelstein and Hill JJ.


case_text: The second difficulty confronting the Applicant's Motion for discovery was the fact that it expressly sought the discovery of documents post-dating the decision made in November 2007. An order for discovery may, of course, be made in judicial review proceedings: Australian Securities Commission v Somerville (1994) 51 FCR 38 at 45. But how the discovery of documents post-dating the decision the subject of judicial review may have been relevant to the November 2007 decision-making process remained largely unexplained. Also unexplained was why such an order would have been " necessary ": Federal Court Rules , O 15, r 15. And an applicant for discovery bears the onus of satisfying the Court that an order is " necessary ": Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426.


case_title: Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214


case_title: Clark v ING Life Ltd [2007] FCA 1960

case_text: Where leave is sought to discontinue proceedings pursuant to O 22, r 2(1)(d), the question as to who should bear the costs falls to be determined under s 43(2) of the Federal Court of Australia Act : Clark v ING Life Ltd [2007] FCA 1960 at [16] [17] per Rares J. Where such leave is sought, it is not the function of the Court to make a prediction as to the outcome. 21 Even though there has been no hearing in respect of the Amended Application seeking review of the s 16 notice issued in November 2007, the hearing of the Applicant's Motion seeking discovery had proceeded virtually to the conclusion of submissions on behalf of the Applicant. Agreement as to the manner in which the proceedings were to be resolved also necessarily carried with it the conclusion that a decision with respect to the Motion became unnecessary. A view had been formed, however, that had it been necessary to resolve the Motion , the Applicant would in all likelihood have been unsuccessful.


case_title: Dutton v Republic of South Africa [1999] FCA 1016 , 92 FCR 575

case_text: Counsel for the Applicant contended that the purported revocation of the November 2007 notice was beyond power. Counsel contended that there was simply no power to revoke or withdraw a notice issued under s 16: Dutton v Republic of South Africa [1999] FCA 1016 at [13] , [1999] FCA 1016 ; 92 FCR 575 at 578 per Wilcox, Whitlam and Moore JJ. However that contention may have been resolved, Counsel accepted that there would be no utility in pursuing the present proceedings if no reliance was to be placed by the Minister upon that November 2007 notice. 11 Finland, it may be noted, also has not placed reliance upon that notice in the Local Court and the Local Court file has been marked " no jurisdiction ". 12 Given the revocation, or at least the purported revocation, in April 2008, it was not surprising that Counsel for the Respondent Minister gave the assurance which was sought, namely that no reliance was to be placed upon the November 2007 notice. There then emerged some common ground, namely that there was no utility in further pursuing the proceedings and that the assurance was to be noted by the Court. 18 One consideration relied upon in concluding that there should be no order for costs is the fact that there was an agreement reached in advance of any final hearing that the proceedings should not further be pursued. From the Applicant's perspective, the assurance offered by the Respondent Minister that there would be no reliance placed upon the November 2007 notice was " as good as a win "; from the Minister's perspective, he maintained that the notice had been validly issued and also validly revoked, but that there was little point in ultimately resolving either contention. How the decision of the Full Court in Dutton was to be addressed remained unexplained. From whichever perspective the proceedings were approached, the result was the same -- there was agreement that there was no utility in further pursuing the litigation.


case_text: In the absence of a hearing on the merits, Finkelstein J has concluded that " it is difficult to see how any order, other than an order that each party bear its own costs, can be made except in special circumstances ": Gribbles Pathology Pty Ltd v Health Insurance Commission (1997) 80 FCR 284 at 287. His Honour also there referred to the following summary of propositions provided by Hill J in Australian Securities Commission v Aust-Home Investments Ltd [1993] FCA 585 ; (1993) 44 FCR 194 at 201: (1) Where neither party desires to proceed with litigation the Court should be ready to facilitate the conclusion of the proceedings by making a cost order ... (2) It will rarely, if ever, be appropriate, where there has been no trial on the merits, for a Court determining how the costs of the proceeding should be borne to endeavour to determine for itself the case on the merits or, as it might be put, to determine the outcome of a hypothetical trial.... This will particularly be the case where a trial on the merits would involve complex factual matters where credit could be an issue. (3) In determining the question of costs it would be appropriate, however, for the Court to determine whether the applicant acted reasonably in commencing the proceedings and whether the respondent acted reasonably in defending them ... (4) In a particular case it might be appropriate for the Court in its discretion to consider the conduct of a respondent prior to the commencement of the proceedings where such conduct may have precipitated the litigation ... (5) Where the proceedings terminate after interlocutory relief has been granted, the Court may take into account the fact that interlocutory relief has been granted ... Some reservation has been expressed as to whether each party should bear its own costs in the circumstances contemplated by Finkletstein J " except in special circumstances ": Champagne View Pty Ltd v Shearwater Resort Management Pty Ltd [2000] VSC 214 at [47] per Gillard J. Concurrence is, however, expressed with respect to the general approach as set forth by both Finkelstein and Hill JJ. 22 The approach set forth by Finkelstein J in Gribbles Pathology does not preclude consideration being given to such an assessment as to prospects of success of an application or a motion filed in proceedings. It may well be inappropriate to entertain submissions for the purpose of forming an assessment as to prospects of success solely to inform the discretion as to costs; but where agreement as to the manner in which proceedings may be resolved has been reached only at a point of time when the Court has in fact entertained submissions and been informed as to the competing submissions of the parties, any preliminary view that a Court has reached at that point of time may be taken into account when making an order as to costs. 23 Such practical success as the Applicant may have achieved in securing the assurance from the Minister that there was to be no reliance placed upon the November 2007 notice -- and perhaps thereby entitling him to an order for costs in his favour -- has been very much tempered by the lack of success that he would in all likelihood have suffered had the Motion proceeded to decision. Moreover, the discontinuance of the proceedings has denied the Respondent Minister the opportunity of vindicating his position. 24 This assessment of the competing positions of the parties has also been a consideration upon which considerable reliance has been placed in concluding that there should be no order for costs.


case_text: The August 2006 and April 2007 notices have been the subject of other proceedings. At first instance both notices were declared to be invalid: Tervonen v Minister for Justice and Customs [2007] FCA 1684 , 98 ALD 589. On appeal, the order declaring invalid the April 2007 notice was varied and the notice was held not to be a valid notice only with respect to specified offences: Minister for Home Affairs v Tervonen [2008] FCAFC 24 , 101 ALD 12. An application for special leave to appeal from the decision of the Full Court has apparently been filed with the High Court.


case_title: O'Neill v Mann [2000] FCA 1680

case_text: The power to order costs, conferred by s 43 of the Federal Court of Australia Act 1976 (Cth), is a discretionary power. The discretion conferred is absolute and unfettered, except that it must be exercised judicially and not arbitrarily or capriciously: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213. Order 22, r 3 of the Federal Court Rules does not make express provision for costs where proceedings have been discontinued with the leave of the Court pursuant to O 22, r 2(1)(d): Smith v Airservices Australia [2005] FCA 997 at [39] , [2005] FCA 997 ; 146 FCR 37 at 48 per Stone J. Where the leave of the Court is required, the Court has the discretion to impose conditions including as to costs: [2005] FCA 997 at [45] , [2005] FCA 997 ; 146 FCR 37 at 49. There is an " underlying policy " in the Rules that a discontinuing party should be liable to pay costs ( O'Neill v Mann [2000] FCA 1680 at [13] per Finn J) but that policy has not " hardened into a usual rule ": Smith v Airservices Australia [2005] FCA 997 at [44] , [2005] FCA 997 ; 146 FCR 37 at 49. The " underlying policy " nevertheless suggests a " starting point " for any consideration of the awarding of costs.


case_title: Smith v Airservices Australia [2005] FCA 997 , 146 FCR 37


case_title: Tervonen v Minister for Justice and Customs [2007] FCA 1684 , 98 ALD 589


case_title: Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426


case_title: Trade Practices Commission v Nicholas Enterprises Pty Ltd (No 3) (1979) 42 FLR 213